A federal court in California has ruled that defendants in a RCRA lawsuit who are not defendants in a CERCLA action may not pursue CERCLA contribution claims against other potentially responsible parties (PRPs). Sisters of Notre Dame De Namur v. Garrett-Murray, No. 10-1807 (N.D. Cal. 5/20/11). Plaintiff owns a property in Sunnyvale, California, adjacent to a shopping center owned by defendant and leased to a dry cleaning operation. After discovering high levels of perchloroethylene (PCE) on their property, plaintiff sued the shopping center owner and the owner and operator of the dry cleaner under RCRA. Defendants then filed a claim for contribution and injunctive relief under CERCLA against several PRPs, including the former owners of the dry cleaner and a company that transported PCE waste from the dry cleaner for disposal. The third-party defendants moved to dismiss the contribution claim, arguing that a private party can seek contribution from other PRPs under CERCLA only if they have first been sued under CERCLA section 106 or 107(a).

Citing U.S. v. Atlantic Research Corp., 551 U.S. 128 (2007), the court dismissed the contribution claims, finding no evidence that defendants had been sued under section 106 or 107(a). The court, however, denied the motion to dismiss with respect to defendants’ claim for injunctive relief under CERCLA, finding that “this limitation does not apply to any remedy under CERCLA; rather it only applies to claims for contribution.”