Taylor Farm Ltd. Liability Co. v. Viacom Inc. (234 F. Supp. 2d 950, 2002)

United States District Court for the Southern District of Indiana 2002-12-24

The Public Health and Welfare

Citations

Full opinion text

ORDER ON MOTION FOR SUMMARY JUDGMENT

McKINNEY, Chief Judge.

This matter comes before the Court on a motion for summary judgment by the Defendant, Viacom Inc. (“Viacom”). Viacom asks this Court to find that the complaint filed by the Plaintiff, Taylor Farm, L.L.C. (“Taylor”), under the Indiana Environmental Legal Action statute (“IELA”) is barred by the federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”).

The gist of Viacom’s argument is that: because it entered into a court-approved comprehensive settlement agreement (the “Settlement Agreement,” also referred to by the parties as the “Consent Decree”) with the Environmental Protection Agency (“EPA”), requiring it to clean up the hazardous waste site known as Neal’s Landfill, it cannot be subject to further lawsuits in state or federal court, seeking to force it to perform or pay for further cleanup activities. Viacom invokes two clauses of CERCLA, arguing alternatively that section 113(f)(2) of CERCLA (hereinafter, the “contribution bar”) prevents Taylor from making a “contribution” claim against Viacom, or that section 113(h) of CERCLA (hereinafter, the “jurisdiction bar”) prevents this Court from exercising jurisdiction over Taylor’s claim.

Taylor, on the other hand, argues that, because it did not contribute in any way to the original contamination of Neal’s Landfill, it is not suing Viacom for contribution, but rather for damages to its land. Taylor further points out that it is not seeking additional cleanup at the specific site, Neal’s Landfill, which was the subject of the Settlement Agreement. Rather, it is seeking the cleanup of property located downstream from Neal’s Landfill, subsequently contaminated by the PCBs that Viacom disposed of in Neal’s Landfill.

For the reasons discussed below, the Court finds that there is a question of fact as to whether Taylor is an “innocent landowner.” If innocent, Taylor’s claim cannot be characterized as a contribution claim and therefore the claim is not subject to the contribution bar. The Court further finds, as a matter of law, that the jurisdiction bar only applies to federal claims or state law claims that really constitute a backdoor attack on a CERCLA settlement agreement. There is no evidence that Taylor’s lawsuit was intended to prevent or delay the implementation of Viacom’s Settlement Agreement, nor that it would be likely to have that effect. And, to the extent that Taylor’s claim is like a federal claim, it most closely resembles a so-called “cost recovery” claim under section 107(a) of CERCLA. Such claims are explicitly exempted from CERCLA’s jurisdiction bar. Therefore, the Court DENIES the Defendant’s motion for summary judgment.

I. FACTS AND PROCEDURAL POSTURE

The facts in the light most favorable to Taylor are these:

Taylor, whose sole proprietor is Craig Taylor (“C. Taylor”), owns 179 acres of land (the “Taylor Farm”) in Monroe County, Indiana, just a few miles west of Bloomington. Affidavit of Craig Taylor (“C. Taylor Aff.”) ¶ 2; Complaint, ¶¶ 1, 7. About 40 acres originally belonged to C. Taylor’s grandfather, Chester Taylor, who used that parcel to grow hay and raise cattle. Deposition of C. Taylor (“C. Taylor Dep.”), tab 4 at 42-3.

The remaining 139 acres, hereinafter the “Neal Parcel”, was acquired from Richard Neal (“Neal”) in 1977 by C. Taylor’s parents, William Taylor (“Wm. Taylor”) and Wanda Taylor (“W. Taylor”), together with two other investors. Complaint, ¶ 9; Tab F, Ex. 6; Viacom’s Reply to Plaintiffs Response to Defendant’s Statement of Material Facts (hereinafter “Facts”), ¶2. At the time of the purchase, both Wm. Taylor and W. Taylor knew that Neal had been using an 18-acre portion of his property as a solid waste landfill (“Neal’s Landfill.”). Complaint, ¶ 10. However, there is no evidence that they knew about any hazardous wastes having been deposited in the landfill.

In the late 1960’s Viacom, through its predecessor company, Westinghouse Electric Corporation (hereinafter, collectively referred to as “Viacom”), operated a facility in Bloomington which manufactured electrical capacitors. Deposition of Stephen Wardzinski (“Wardzinski Dep.”), Tab 8 at 11, 14, 16-7. The plant generated a substantial amount of Polychlorinated Biphenyl (“PCB”) contaminated waste (of a type known as “inerteen”). Id. at 11; Tab 9 at 2. For a period from approximately 1966-1968, Viacom contracted with Neal to dispose of such waste — including sawdust, rags, a clay material called fuller’s earth, and a large number of rejected capacitors and capacitor parts — in Neal’s landfill. Id. In a letter dated October 1, 1968, Viacom instructed Neal that “[i]t is permissible to dump inerteen ... out of containers in the approved location so long as the liquid dumped soaks completely into the ground leaving no pools.” Tab 10. Viacom further instructed: “When the ground is saturated, the location must be backfilled to a minimum depth of one foot.” Id. Viacom did not instruct Neal to make any further effort to contain the PCB’s at the site. Id.

The groundwater that flows beneath Neal’s Landfill ultimately resurfaces at a location known as “Northwest Springs,” which consists of two primary springs known as “North Spring” and “South Spring.” Complaint ¶ 22. Taylor contends that PCBs have migrated to the Northwest Springs, and thence downstream to Conard’s Branch and ultimately to Richland Creek. Complaint, ¶¶ 22^4. The Northwest Springs and the uppermost portion of Conard’s Branch are located on Taylor Farm. Viacom’s Statement of Material Facts (“D. Facts”) ¶ 13.

In 1981, the United States EPA wrote to Wm. Taylor, as owner of the Neal’s Landfill, informing him that “there is a substantial threat of discharge of Polychlorinated Biphenyls (PCB’s), a hazardous substance, from Neal’s Landfill into tributaries of Richland Creek.” The EPA further stated that its policy is “to request the owner or operator ... or party responsible ... to accept responsibility to abate the threat.” Tab F, C. Taylor Dep., Ex. 16. The EPA then noted that it has the authority, “pursuant to 33 U.S.C. 1321(c)(1)” to initiate action to hold “[t]he owner or operator or party responsible ... liable for the costs of the remedial actions” necessary. Id.

In 1982, the EPA wrote to Wm. Taylor that it “has determined that there have been and continue to be actual releases of a hazardous substance, i.e. [PCB’s] at the Neal’s landfill site, which you own,” and that it “may also undertake such remedial measures as are indicated.” Tab F, C. Taylor Dep., Ex. 18. The EPA further noted that “under the law, federal costs incurred in this manner may be recovered in a civil suit from ... the owner of the site from which a hazardous substance is released.” Id.

In early 1983, the United States and the State of Indiana sued Viacom under the CERCLA, seeking to force Viacom to clean up the PCB wastes it deposited at Neal’s Landfill. D Facts, ¶ 17. Not long thereafter, the EPA declared Neal’s Landfill a federal Superfund site. 48 Fed.Reg. 40670, 40672 (Sept. 8,1983).

During the same year, Wm. Taylor acquired the interests of his wife and the other two investors, becoming the sole owner of Taylor Farm. D. Facts, ¶ 5. Following his death in 1997, the property then passed to his widow, W. Taylor. D. Facts, ¶ 6. Taylor LLC acquired ownership in 1998. Id.

In 1985, Viacom entered into a Settlement Agreement with the EPA, addressing PCB contamination at Neal’s Landfill and five other related sites. Viacom Ex. B. The Agreement required Viacom to take the following remedial response actions affecting Taylor Farm:

1) Excavate and incinerate waste from a defined area of Neal’s Landfill. Viacom Ex. B, ¶¶ 42-6.

2) Remove and incinerate PCB-contaminated soils and sediments from Conard’s Branch and a portion of Richland Creek. Id., ¶ 51.

3) Construct and operate a facility to treat groundwater flowing from the North and South Springs to reduce PCB levels before the water enters Conard’s Branch. Id., ¶ 59(a).

The Settlement. Agreement further required Viacom to submit plans to “close” the landfill site following the excavation. Id., ¶ 52. After closure, Viacom was to sample sediments from various locations on Richland Creek and Conard’s Branch, to determine whether the sediments in any given area contained excessive amounts of PCBs. Id., ¶¶ 51(g)(1), 51(e), 51(g)(3). If so, the Agreement further required Viacom to remove the contaminated sediment, Id., ¶ 51(g)(1), and incinerate it. Id., ¶ 51(h). The amounts to be incinerated were not to exceed 1,100 cubic yards from Richland Creek and 900 cubic yards from Conard’s Branch. Id., ¶ 51(g)(3).

The Consent Decree also included a Covenant Not to Sue. Id., ¶ 111. “[C]ondi-tioned only upon compliance by [Viacom] with the provisions of this Decree and subject to the reservation of rights set forth in [§ 111(e) ],” the United States, City, and County “[undertake] not to assert against [Viacom] ... any claim arising under federal, state or local law, including common law, intended to protect the environment ... [which] result[s] from or relates] to: (l)[t]he past disposal or discharge of PCBs or materials contaminated with PCBs at [Neal’s Landfill] ...; (2)[t]he release or threatened release of PCBs or materials contaminated with PCBs from [Neal’s Landfill] ...; [and] (5) [activities which [Viacom] performs in compliance with this Consent Decree ..., excluding the performance of activities in a manner which violates standards of care required by applicable federal, state, or local law.” Id. ¶ 111(a).

The Covenant further specified: “Nothing in this Section shall be construed to relieve [Viacom] from any liability at law or equity for ... any acts, omissions or events not expressly referred to in this Covenant.” Id. ¶ 111(b). Although the signatories agreed “based on currently available information that the remedies provided under this Consent Decree are adequate to abate the release or threat of release of hazardous ... substances from [Neal’s Landfill],” they also recognized that unforeseen circumstances may lead to an environmental threat in the future. In such an event, “nothing ... in this Consent Decree is intended to affect the statutory rights of the United States to seek appropriate relief to abate a release or threat of release of hazardous wastes or substances, or to seek cost recovery ... where such release or threat of release may present an imminent and substantial endangerment to health, welfare, or the environment and results from previously unknown or unforeseen conditions that arise or are discovered after entry of the Consent Decree.”

Viacom performed some of the response actions required by the Settlement Agreement. In 1988, Viacom removed sediment from the entire length of Conard’s Branch and a small part of Richland Creek. Viacom Ex. D, p. 5. In 1990, Viacom finished construction and began operating a spring water treatment plant. Id. The plant was designed to treat up to one cubic foot per second of water and reduce the PCB content of that water to one part per billion (“ppb”). Id.

However, after entry of the Consent Decree, public opposition to the incinerator arose. Viacom Ex. C, p. 3. Viacom applied for a permit to build an incinerator, but the Indiana legislature passed a series of laws designed to prevent Viacom from incinerating PCB-contaminated materials. Viacom Ex. C, p. 3; I.C. §§ 13-22-3-8,13-22-3-9,13-7-10 et. seq.

As a result, approximately 320,000 cubic yards of PCB-contaminated waste that were to have been excavated from Neal’s Landfill and incinerated have instead remained on-site at Neal’s Landfill. Complaint, ¶¶ 31-2; Viacom Ex. B, ¶ 46(d). In 1994, the original signatories to the Consent Decree decided to explore alternatives to incineration. Complaint, ¶ 34. In 1997, this Court appointed Magistrate Judge Kennard P. Foster as Special Master to oversee the process, which eventually resulted in an alternative source-control agreement for Neal’s Landfilll. Viacom Ex. C, p. 3, and Ex. E. That agreement, and the Report and Recommendations of the Special Master were approved by this Court in February of 1999 and memorialized in a Record of Decision Amendment (“RODA”). Viacom Exs. C, E.

The modified source-control remedy (“Modified Agreement”) for Neal’s Landfill required Viacom to:

(1)Excavate and remove contamination in areas of the landfill considered to be “hot spots” (ie. contaminated with greater than 500 ppm PCBs), and dispose of these wastes, believed to amount to about 7000 cubic yards, in an approved off-site chemical waste landfill. Viacom Ex. C at VT 005515.

(2) Excavate and remove all visible PCB contamination, such as capacitors and capacitor parts, and dispose of them off-site in an approved incinerator. Id. at VT 005516.

(3) Consolidate the remaining less heavily contaminated material into the more environmentally stable central 10-acres of the 18-acre landfill, thereby reducing the possibility of back-flooding of PCB contaminated soil. Id.

(4) Construct a landfill cap, compliant with regulations, to “close” the remaining 10-acre landfill. Id.

(5) Ensure that areas of the old landfill outside of the capped 10-acres have an average of less than 25 ppm PCBs with a maximum of 50 ppm, and cover those areas with six inches of clean soil. Id.

(6) Remediate areas located in drainage waterways outside the landfill cap to ensure a level of 1 ppm PCB’s. Id.

(7) Develop a long-term inspection and maintenance plan for the landfill cap, and a groundwater and surface water monitoring program that is satisfactory to the governmental parties. Id.

This proposal was found to be effective in addressing the nine evaluation criteria used by the EPA, as set forth in the National Contingency Plan, 40 CFR Part 300.430. Id. at VT 005530. Most importantly, the Modified Agreement was found to be “protective of human health and the environment,” and compliant with all Federal and State “applicable or relevant and appropriate requirements” directly associated with this action. Id. at VT 005516. The Agreement was also found to be cost-effective, with an estimated cost of $16.13 million. Id. at VT 005530.

In approving the Modified Agreement, this Court, per Judge S. Hugh Dillin (“Dil-lin”), directed Viacom to complete excavation and consolidation at Neal’s Landfill in 1999, and to construct a cap and close the landfill in 2000. Viacom, Ex. E, VT 004981. Judge Dillin then ordered the parties to spend the next year conducting “water conduit and other relevant investigations ... as necessary or useful to determine the [further] need for interim and permanent water treatment ... and sediment removal.” Id. At the end of that year, Judge Dillin directed that the parties “shall engage in further settlement negotiations regarding water treatment and sediment removal aspects of remediation.” Id. Judge Dillin vested authority in the Special Master “to continue to oversee the implementation of the consent decree and the resolution of disputes among the parties until the work is completed, [and] the Consent Decree, as amended, is fully implemented.” Id. at VT 004982.

In December of 2000, Viacom issued a report entitled FINAL REPORT: REMEDIATION OF NEAL’S LANDFILL. Viacom Ex. D. Dorothy M. Alke (“Alke”), the director of the clean-up project for Viacom, certified that “the information contained in or accompanying this submission is true, accurate and complete.” Id. at VT 006740 a. The report stated that Viacom had completed the excavation of hot spots, the consolidation of the remaining contaminated materials, and the capping and closing of the landfill as of October, 1999. Id.

That did not entirely end Viacom’s obligations under Judge Dillin’s Order and the Modified Agreement. Viacom was still required to monitor the spring treatment plant for up to five years after the closing of the landfill. Viacom Ex. B, ¶ 59(a)(1)(h). And, per Judge Dillon’s Order, Viacom was still obligated to conduct • investigations for a year after the closure, to determine if there were any problems that might require further water treatment and sediment removal, and then to1 undertake negotiations with the governmental parties to the Consent Decree to address such problems, if any.

The parties have not provided this Court with information about the results of Viacom’s investigations or about the nature of subsequent negotiations which have dragged on for about three-and-a-half years. But, to the extent that further sediment removal may be necessary, Viacom’s degree of liability for the costs of such removal under its existing agreements is unclear. Judge Dillin’s Order merely requires Viacom to negotiate about such issues.

In a January 29, 1999, letter to Thomas Alcamo of the EPA, Alke expressed Viacom’s opinion that it is not required to perform any other sediment removal because: (a) it “already complied with the [original] Consent Decree requirements for ... removing] sediments from Co-nard’s Branch and Richland Creek” in 1988; and (b) the Modified Agreement “only covers source control measures and not ... sediment removal.” Taylor, Tab 9, at VT004984. Thus, according to Alke, Viacom “is prepared to discuss the performance of additional [sediment removal]” with the EPA and other governmental parties, but any agreement by Viacom to do so would “go beyond its obligations under the [original] Consent Decree, [the Modified Agreement], and applicable law.” Id.

As of June, 2002, settlement negotiations with respect to water treatment and sediment removal due to the contamination of Neal’s Landfill were ongoing. Alke Aff. ¶¶ 9-10. Pursuant to these negotiations, Viacom continues to conduct “investigatory work, under the supervision of the [EPA] with respect to groundwater and surface water in the vicinity of Neal’s Landfill— including the North and South Springs ..., Conard’s Branch and Richland Creek — [in order to] evaluate whether further remedial action with respect to water treatment is necessary.” Id.

In 2000, Taylor filed a Complaint in Monroe Circuit Court against Viacom asserting various common law theories and an IELA claim relating to the alleged releases of PCBs from Neal’s Landfill. Facts, ¶ 89. Viacom had the case removed to this Court. Facts, ¶ 40. Taylor then moved to remand. Id. This Court, per Judge Richard L. Young (“Young”), found that, given the incomplete state of the remedial activities then being undertaken by Viacom, Count IV of Taylor’s Complaint, the IELA claim, should be dismissed without prejudice. Viacom Ex. I (Jan. 11, 2001, Order on Plaintiffs’ Motion to Remand), pp. 6-9. The Court then remanded the remaining Counts for consideration in state court. Id. at 1.

After Viacom made more progress toward completing its obligations with respect to the Settlement Agreement, and the Seventh Circuit, in Frey v. EPA, 270 F.3d 1129 (7th Cir.2001), issued a new opinion regarding the completeness issue, Taylor re-filed its IELA Complaint in November of 2001.

Taylor is an Indiana limited liability company with its principal office in Bloom-ington, Indiana. Complaint, ¶ 2. Viacom is a Delaware corporation with its principal place of business in New York City. Complaint, ¶ 3. The potential cost of PCB cleanup at Taylor Farm exceeds $75,000. Complaint, ¶ 5.

II. STANDARDS — SUMMARY JUDGMENT

Summary judgment is granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). An issue is genuine only if the evidence is such that a jury reasonably could return a verdict for the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A disputed fact is material only if it might affect the outcome of the suit in light of the substantive law. Id. “In deciding a motion for summary judgment, the court will conclude that there is no genuine issue as to any proposed finding of fact to which no response is set out.” Hartley v. Wisconsin Bell, Incorporated, 124 F.3d 887, 890 (7th Cir.1997); Fed.R.Civ.P. 56(e).

The moving party has the initial burden to show the absence of genuine issues of material fact. Schroeder v. Barth, 969 F.2d 421, 423 (7th Cir.1992). This burden does not entail producing evidence to negate claims on which the opposing party has the burden of proof. See Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n. 3 (7th Cir.1994). The party opposing a summary judgment motion bears an affirmative burden of presenting evidence that a disputed issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Scherer v. Rockwell Int’l Corp., 975 F.2d 356, 360 (7th Cir.1992). The opposing party must “go beyond the pleadings” and set forth specific facts to show that a genuine issue exists. See Hong v. Children’s Mem. Hosp., 993 F.2d 1257, 1261 (7th Cir.1993), cert. denied, 511 U.S. 1005, 114 S.Ct. 1372, 128 L.Ed.2d 48 (1994). This burden cannot be met with conclusory statements or speculation, see Weihaupt v. American Med. Ass’n, 874 F.2d 419, 428 (7th Cir.1989), but only with appropriate citations to relevant admissible evidence. See Local Rule 56.1; Brasic v. Heinemann’s Inc., Bakeries, 121 F.3d 281, 286 (7th Cir.1997); Waldridge v. American Hoechst Corp., 24 F.3d 918, 923-24 (7th Cir.1994). Evidence sufficient to support every essential element of the claims on which the opposing party bears the burden of proof must be cited. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In considering a summary judgment motion, the Court must draw all reasonable inferences “in the light most favorable” to the opposing party. Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 392 (7th Cir.1992). The Court must review all the evidence in the record, without making credibility determinations or weighing the evidence. Reeves v. Sanderson Plumbing Products Inc., 530 U.S. 133, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000). If a reasonable fact-finder could find for the opposing party, then summary judgment is inappropriate. Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir.1992). Conversely, if the standard embraced in Rule 56(c) is met and the Court determines that a reasonable jury could not find for the party opposing the motion, then summary judgment is mandatory. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548; Shields Enters., 975 F.2d at 1294.

III. DISCUSSION

A. VIACOM’S ARGUMENT

The Court has jurisdiction over this case pursuant to 28 U.S.C. § 1332.

Viacom makes two independent arguments for summary judgment. The first is that Taylor’s complaint should be barred by section 113(f)(2) of CERCLA (the “contribution bar”). 42 U.S.C, § 9613(f)(2). The contribution bar enables a party “who has resolved its liability to the United States ... in a[] judicially approved settlement” (hereinafter a “settling party” or “SP”) to avoid further liability to a non-settling party “for contribution regarding matters addressed in the settlement.” Id.

Viacom’s second argument is that Taylor’s complaint should be barred by section 113(h) of CERCLA (the “jurisdiction bar”). Under the heading “Timing of Review,” section 113(h) provides in relevant part:

No Federal court shall have jurisdiction under Federal law other than under section 1332 of Title 28 [diversity jurisdiction] or under State law which is applicable under section 9621 of this title [relating to CERCLA clean-up standards] to review any challenges to removal or remedial actions selected under section 9604[or] 9606(a) of this title, in any action except one of the following:

(1) An action under section 9607 of this title to recover response costs or damages or for contribution.

(2) An action to enforce an order issued under section 9606(a) of this title or to recover a penalty for violation of such order.

(4) An action under section 9659 of this title (relating to citizens suits) alleging that the removal or remedial action taken under section 9604 of this title or secured under section 9606 of this title was in violation of any requirement of this chapter. Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at the site.

B. CHARACTERIZING TAYLOR’S COMPLAINT

An obvious problem with both of Viacom’s arguments is that, on their face, the contribution bar and the jurisdiction bar apply only to actions brought under CERCLA. But Taylor has filed its claim under the Indiana Environmental Legal Action (“IELA”). Ind.Code § 13-30-9-1 et. seq. Section 13-30-9-2 of the IELA provides:

A person may bring an environmental legal action against a person who caused or contributed to the release of a hazardous substance ... into the ... soil or groundwater ... to recover reasonable costs of a removal or remedial action involving the hazardous substance.

Taylor claims that Viacom, through its predecessor Westinghouse, caused the release of PCB’s into the soil and groundwater of Taylor Farm, not just at Neal’s Landfill, but also (through migration) into the property downstream from the landfill (hereinafter the “Downstream Property”). Complaint, ¶¶ 57-8. Taylor seeks reimbursement for any costs that it will have to incur in removing the PCB’s or taking other remedial action as necessary to decontaminate the Downstream Property. Complaint, ¶ 59 and prayer for relief. Taylor’s complaint is well-pleaded and clearly falls within the scope of the IELA.

Nevertheless, Viacom contends that Taylor’s IELA claim is equivalent to a CERCLA claim and that, being equivalent to a CERCLA claim, it should be subject to the contribution bar and jurisdiction bar, even though it was brought under state law. But that raises the preliminary question: To what type of CERCLA claim is Taylor’s IELA claim equivalent?

There are three distinct causes of action under CERCLA that have been discussed by the parties in their briefs. The first is a cause of action for cost recovery, which can be initiated by a private party or a governmental entity that incurs costs in cleaning up a contaminated site. CERC-LA § 107(a), 42 U.S.C, § 9607(a). The second is a cause of action for contribution, which can be initiated by a defendant in a CERCLA lawsuit or by a person already found to be at least partially responsible for contaminating the site. CERCLA § 113(f)(1), 42 U.S.C, § 9613(f)(1). The third is a citizen suit, which can be initiated by “any person ... on his own behalf’ seeking a court order “against any person ... alleged to be in violation of any standard, regulation, condition, requirement, or order which has become effective pursuant to this chapter.” 42 U.S.C. § 9659.

The parties primarily debate whether Taylor’s complaint should be characterized as being more like a claim for cost recovery or more like a claim for contribution. This, in turn, depends upon whether Taylor should be considered an innocent party or a responsible party under CERCLA.

Section 107(a) (cost recovery) describes the types of persons who are potentially liable under CERCLA for cleaning up a hazardous waste site. To paraphrase, potentially liable persons include:

(1) the current owner or operator of the site;

(2) the owner or operator of the site at the time hazardous wastes were deposited there; and

(3) any person who disposed of, treated, or arranged for the disposal of hazardous wastes at the site.

Such persons have been widely described in CERCLA cases as “potentially responsible parties” or “PRP’s.” See, e.g., Akzo Coatings, Inc., v. Aigner Corp., 30 F.3d 761 (7th Cir.1994). However, despite the intuitive content of this phrase, different courts have interpreted it differently. For example, in a footnote to Pneumo Abex Corp. v. High Point, Thomasville and Denton R. Co. the Fourth Circuit noted that: “[wjhile CERCLA does not define ‘potentially responsible party,’ the courts have understood it to refer to a party” who is: (1) potentially subject to liability under section 107(a); and (2) a defendant in a CERCLA lawsuit. 142 F.3d 769, 773 (4th Cir.1998). On the other hand, in a footnote to New Castle County v. Halliburton NUS Corp., the Third Circuit defined a PRP as someone who is: (1) potentially subject to liability under section 107(a); and (2) not entitled to the statutory defenses under section 107(b). 111 F.3d 1116, 1120 (3d Cir.1997).

This Court knows of no other case in which a court has provided an explicit definition of “PRP.” However, the Court believes that, as a matter of common usage, a potentially responsible party should include any person who might be subject to liability under section 107(a). The Court further believes that this definition of “PRP” is consistent with the usage of “PRP” within the Seventh Circuit. See, e.g., Rumpke of Indiana,, Inc., v. Cummins Engine Company, Inc., 107 F.3d 1235, 1236 (7th Cir.1997) (opening its discussion with: “The net of potential liability under [CERCLA] is wide indeed, reflecting the need both to clean up the nation’s toxic waste sites and the practical imperative to find the necessary money for the job. The cleanup will be less likely to occur if potentially responsible parties do not come forward.”) Therefore, this Court will carefully distinguish the broad category of potential defendants, or PRP’s, from the narrower class of “responsible parties,” meaning those persons who are: (1) potentially responsible under CERCLA, and (2) have no legally viable defense against liability.

Section 107(a) also defines the scope of a party’s potential liability. PRP’s can be sued for:

(A) all costs of removal or remedial action incurred by the United States Government or a State ... not inconsistent with the national contingency plan;

(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; and

(C) damages for injury to, destruction of, or loss of natural resources.

In particular, section 107(a)(B) authorizes an innocent private party who has incurred “response” costs to sue a PRP in an effort to recover those costs. See Rumpke 107 F.3d at 1241-2. For exam-pie, if a landowner discovers that someone has surreptitiously dumped hazardous materials on his or her property and acts immediately to prevent those materials from contaminating the land, the landowner may subsequently sue the responsible party under section 107(a) for the cleanup costs. Id.

The nature of the defendants’ liability, in a cost recovery action, is joint and several. Id. at 1240. See, also, United States v. Colorado & Eastern R.R., 50 F.3d 1530, 1535-6 (10th Cir.1995). That means that the government may, in principle, sue one PRP for the entire cost of cleaning up a hazardous waste site, even if that PRP was only responsible for a small amount of the contamination.

However, a PRP who is sued (or who settles) under CERCLA can, in turn, seek contribution from other PRP’s. Section 113(f)(1) provides that:

Any person may seek contribution from any other person who is liable or potentially. liable under section 9607(a) [cost recovery] during or following any civil action under section 9606[or] 9607(a) of this title .... In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. (Emphasis added.).

C. THE CONTRIBUTION BAR

As the First Circuit explained in United Technologies Corp. v. Browning-Ferris Indus., Inc., 33 F.3d 96, 100-1 (1st Cir.1994), Congress intended CERCLA’s contribution clause to be consistent with the standard legal doctrine of contribution, which “permits a readjustment of liability [among jointly and severally liable parties] in accordance with the[ir] relative fault.” Jinwoong, Inc. v. Jinwoong, Inc., 310 F.3d 962, 966 (7th Cir.2002). A party who is a defendant in a lawsuit may implead other parties who it believes are also responsible. Fed.R.Civ.P. 14(a). Or, if the underlying substantive law permits, the party may pursue its own defenses vigorously, and then sue other responsible parties for contribution only after it is adjudged to be liable.

But, as discussed above, there is an important exception. CERCLA exempts SP’s from being subject to further liability in contribution actions. Specifically, section 113(f)(2) provides:

A person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement.

Viacom argues that Taylor’s complaint should be characterized as one for contribution, not cost recovery. Viacom reasons that, under § 107(a), the owner of a hazardous waste site is a PRP. And, a PRP should not be able to sue an SP for cost recovery, either under CERCLA or under state law, because that would allow PRP’s to evade the contribution bar.

The Court recognizes Viacom’s point that the policy underlying the contribution bar is vital to CERCLA’s overall scheme of “encourag[ing] responsible parties to come forward to settle CERCLA cases and perform the necessary cleanup work.” Brief in Support of Viacom’s Motion for Summary Judgment (“D. Brief’) at 3-4. As one court put it, “the carrot the EPA can offer potential settlors is that they no longer [have to] fear that a later contribution action by a non-settlor will compel them to pay still more money to extinguish their liability.” United States v. Union Gas Co., 743 F.Supp. 1144, 1152 (E.D.Pa.1990).

This Court is also persuaded that a defendant in a CERCLA lawsuit should not be able to evade the contribution bar by pursuing a state law contribution scheme (instead of a cause of action under section 113(f)(1)). See, e.g., Crown Cork and Seal Co., Inc. v. Clark Equip. Co., 907 F.Supp. 147 (M.D.N.C.1995). But Taylor is not a defendant in a CERCLA lawsuit, or in any other lawsuit requiring a cleanup of the PCB’s on its property. And the IELA is not, on its face, a contribution scheme. To the contrary, the IELA permits “any person” to sue to “recover the reasonable costs of a removal or remedial action.” Thus, it most closely resembles a section 107(a) cost recovery claim.

Viacom attempts to circumvent this problem by arguing that CERCLA simply does not permit a PRP such as Taylor to bring a section 107(a) claim. Therefore, in Viacom’s view, the only viable way to interpret Taylor’s state law cause of action is as a subterfuge, designed by a party responsible for the contamination (i.e. Taylor) in order to obtain contribution from an SP (ie. Viacom).

The fallacy in this argument is that it equates potentially responsible parties such as Taylor with responsible parties. As such, it imputes liability upon Taylor, when no such liability has been determined.

Contribution is an action among parties who have been found to be liable for at least some portion of the damages alleged in the underlying lawsuit. Of course, an action for contribution may also be initiated by a party who is a defendant in a lawsuit (and therefore not yet liable). But once a person is sued, that person’s potential liability is not merely hypothetical. A ruling on contribution, or relative fault, will not occur unless the defendant is first found to be liable during the course of the lawsuit.

Implicit in the claim by Viacom that Taylor’s IELA suit is really one for contribution is an underlying presumption that Taylor has a right, under CERCLA, to sue Viacom for contribution. Where does this right come from, given that Taylor has never been sued and has never admitted any Lability for contaminating Taylor Farm? Viacom does not say. However, the Court can only think of two possible theories that (might) support Viacom’s notion that Taylor would have had a right to seek contribution under CERCLA, if it had chosen to do so. Either the Court must find that:

1) Potential defendants, at least in CERCLA cases, may initiate preemptive actions for contribution against other potential defendants, even before being sued for damages; or

2) The facts in this case make clear that Taylor would have been found liable, if a section 106 or 107(a) suit had been brought.

The Court rejects the first theory as being unprecedented. It would permit parties to sue for contribution before they have suffered any legal harm. And, it would require courts to determine the relative fault of parties before making a finding that any of them are liable for damages at all. That would be tantamount to giving advisory opinions, something which Article III courts are not permitted to do.

Furthermore, section 113(f)(1) of CERC-LA does not authorize preemptive contribution actions. It only authorizes a party who is potentially liable to seek contribution during a civil action, or alternatively, a party who is found liable under section 106 or 107(a) to seek contribution following that civil action. Viacom could try to argue that Taylor’s IELA suit essentially meets the condition of being a civil action under 107(a). But that would put Viacom in the untenable position of arguing that, for the purpose of applying 113(f)(1), Taylor’s IELA claim should be considered a 107(a) cost recovery action, but, for the purpose of applying 113(f)(2), Taylor’s IELA claim should be considered a 113(f)(1) contribution action.

Besides, the procedural posture in this case does not fit section 113(f)(1). Taylor is the plaintiff in this action, not the defendant. Of course, a party like Taylor can initiate a contribution action, making it the putative plaintiff. But the party can only do so if it already has been found to be liable for damages in a previous action. In this case, there was a previous action involving Viacom, which culminated in the settlement agreement. But there was no such previous action involving Taylor.

It is significant that Viacom opens the “ARGUMENT” portion of its brief by exaggerating the extent of immunity provided by the contribution bar. Under heading I.A., Viacom states “CERCLA § 113(f)(2) Protects Settling Parties from, Being Sued Again.” D. Brief at 3. And then, in the first sentence, Viacom asserts unequivocally that CERCLA “provides protection for settling parties against claims regarding matters addressed in the settlement with the government.” Id. Viacom thereby implies that section 113(f)(2) provides almost complete immunity for SP’s. It does not. Section 113(f)(2) only provides immunity from suits initiated by other CERCLA defendants seeking contribution.

To be sure, courts have consistently stated that the contribution bar must be interpreted broadly. For example, in Akzo Coatings, Inc. v. Aigner Corp., the Seventh Circuit held that a claim, though well-pleaded as a cost recovery claim under CERCLA, is really a claim for contribution if the party making that claim has already been found to be partially liable (under § 106) and that party is, in effect, seeking to reduce its degree of liability. 30 F.3d 761 (7th Cir.1994). And, the Fifth Circuit held that when “one liable party sues another to recover its equitable share of the response costs, the action is one for contribution.” Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672 (5th Cir.1989).

In a similar vein, a number of district courts have held that a CERCLA defendant cannot use state law contribution schemes to evade the CERCLA contribution bar. See, e.g., Dravo Corp. v. Zuber, 804 F.Supp. 1182 (D.Neb.1992) (holding that a party who had been subject to an EPA cleanup order pursuant to section 106 could not sue an SP under a state common law contribution theory or an equitable subrogation theory); United States v. Pretty Products, Inc., 780 F.Supp. 1488, 1494-96 nn. 3, 7 (S.D.Ohio 1991) (dismissing third party complaint initiated by a party being sued by the EPA, making claims under Ohio state law which it labeled as indemnity, breach of contract, quasi-contract, quantum meruit, and unjust enrichment, but which were really contribution claims); Crown Cork and Seal Co., Inc. v. Clark Equip. Co., 907 F.Supp. 147 (M.D.N.C.1995) (dismissing counterclaims by defendant PRP seeking common law contribution and indemnity from plaintiffs who were SP’s).

The facts of the Akzo case are particularly instructive to this Court. Akso was among approximately 200 firms that had generated hazardous wastes which were sent to various facilities within an industrial park now known as the Fisher-Calo site. Id. at 762. Among those facilities was the Two-Line Road facility where Akso admitted disposing of some hazardous materials. Id.

Akso performed initial cleanup work at the Two-Line Road facility in response to an Order issued by the EPA, pursuant to CERCLA § 106, 42 U.S.C. § 9606. Id. at 762-3. The EPA then attempted to negotiate a comprehensive settlement for the entire Fisher-Calo site. Id. But Akso refused to participate, “after concluding that it was not liable for any contamination of the Fisher-Calo site beyond the Two-Line Road facility.” Id. Aigner, on the other hand, was a member of the group that negotiated a broad settlement with the EPA. Id.

Thus, when Akso sued Aigner to recover some or all of the costs that it incurred in response to the initial Order from the EPA, Aigner moved to dismiss, arguing that Akso’s complaint was barred by section 113(f)(2). Id. at 763. In response, Akso argued that section 107(a) permits “any person” to bring suit for the recovery of costs incurred in cleaning up a hazardous site, and therefore Akso believed that it was entitled to characterize its suit as one for cost recovery. Id. at 764. However, the Seventh Circuit held otherwise:

Akso has experienced no injury of the kind that would typically give rise to a direct claim under section 107(a). It is not, for example, a landowner forced to clean up hazardous materials that a third party spilled onto its property or that migrated there from adjacent lands. Instead, Akso itself is a party liable in some measure for the contamination at the Fisher-Calo site, and the gist of Akso’s claim is that the costs it has incurred should be apportioned equitably amongst itself and the others responsible.

Id. Therefore, the Seventh Circuit held that Akso’s claim was “quintessential[ly][a] claim for contribution.” Id.

The difference between this case and Akzo is that Taylor has never been subject to any EPA order or lawsuit regarding the hazardous materials at Neal’s Landfill or on the Downstream Property, and there has been no finding that Taylor caused or contributed in any measure to the contamination of Taylor Farm. Thus, whereas Akso could not (and did not) deny at least partial responsibility for the contamination of the Fisher-Calo site, Taylor can deny having any responsibility for the contamination that forms the basis for its IELA claim.

That leads the Court to the second possible explanation for Viacom’s theory that Taylor’s IELA claim should be treated as a contribution claim. Viacom seems to believe that Taylor’s legal responsibility under CERCLA for the contamination of* the downstream portion of Taylor Farm is undeniable. In Viacom’s own words:

[Taylor] clearly is a responsible party under CERCLA. Taylor ... is the owner of the property ... As such, Taylor ... is subject to liability under Section 107(a) of CERCLA ... Furthermore, ... William Taylor, [Taylor Farm’s] predecessor owner, was directed by [the EPA] to respond to the releases of hazardous substances from Neal’s Landfill, but refused to do so and clearly was a liable party under CERC-LA. In 1981, [the EPA] informed William Taylor [of the] “substantial threat of discharge of ... [PCB’s] ...” and requested that he ... eliminate the threat. In addition, [the EPA] notified William Taylor in 1982 that the “EPA has determined that there have been and continue to be actual releases of [PCB’s] at the Neal’s Landfill site, which you own,” and advised him of his liability therefore. Every dollar Viacom has spent addressing releases at and from Neal’s Landfill has reduced the potential liability of [Taylor] and its predecessor owners.

D. Brief at 10-11 (citations omitted).

Thus, Viacom appears to be asking this Court to first find that Taylor is liable under CERCLA (even though it has not yet been sued), and then conclude, as a matter of law, that this unpursued or hypothetical liability is sufficient to trigger the contribution bar. If so, Viacom’s legal proposition is highly questionable. It is one thing to argue that Taylor probably would be found liable, if sued; it is another thing to argue that Taylor probably would be sued, given the fact that in the intervening twenty years since the EPA first served notice to Wm. Taylor that he was a PRP, neither the EPA nor any other party has attempted to sue him or his successors to establish that he was actually a responsible party.

Courts do not make hypothetical determinations about liability. If Viacom truly believed (and still believes) that Taylor is liable for some part of the contamination addressed in Viacom’s settlement agreement, then Viacom’s proper course of action would have been to counterclaim against Taylor under section 113(f)(1) of CERCLA (which imputes liability according to the terms of section 107(a)). Viacom did not do so.

However, even if Viacom had chosen to sue Taylor for contribution, the Court is not convinced that the facts in the record are such as to justify summary judgment in Viacom’s favor. As the quotation above suggests, Viacom believes that Taylor ought to be treated as a responsible party for two reasons. First, according to Viacom, the current owner of a hazardous waste site is automatically responsible for the contamination. Second, according to Viacom, Taylor is further implicated because: (a) Taylor (or more precisely, Taylor’s predecessor) received 1 notification from the EPA in 1981 and again in 1982 that it might be held liable for cleaning up hazardous materials on the land; and (b) Taylor was the direct financial beneficiary of Viacom’s cleanup efforts under the settlement agreement.

The Court is not persuaded. In the first place, being the current owner of a hazardous waste site does not make Taylor automatically liable for response costs under CERCLA. At a minimum, Taylor is entitled to the innocent landowner defense set forth in section 107(b). The language of that defense is quite complicated, depending in part upon how and when the land was obtained. It requires the court to weigh a number of factors in determining the landowner’s guilt or innocence. But in general terms, it states that the owner of a hazardous waste site is not liable for any response costs under CERC-LA, if he or she did not know that hazardous materials had been deposited at the site at the time he or she purchased the land and if he or she exercised the kind of diligence to find out that would have been appropriate at the time of the purchase. 42 U.S.C. § 9607(b)(3); 42 U.S.C. § 9601(35)(B) (“Reason to Know”).

The parties appear to agree, and the Court concurs, that the relevant time of purchase for applying section 107(b) is either 1977 (when Wm. Taylor first signed an installment land-sale contract) or 1980 (when Wm. Taylor obtained the deed for the parcel of land containing Neal’s Landfill), not 1997 (when the land ultimately passed to his son’s limited liability company). This is because CERCLA does not consider a transfer “by inheritance or bequest” to be the type of land transfer that requires a new analysis under section 107(b). 42 U.S.C. § 9607(b)(3); 42 U.S.C. § 9601(35)(A). That being so, the letters from the EPA to Wm. Taylor in 1981 and 1982 have no bearing upon the question of what Taylor knew or should have known when the land was acquired. Of course, there can be no doubt that Wm. Taylor knew or should have known that the property he purchased contained a landfill. But there is no evidence in the record that Wm. Taylor had any reason to know that hazardous materials had been disposed of there in the late 1960’s.

Still, Viacom implies in its Reply Brief that the burden lies with Taylor to explain why Wm. Taylor was an innocent purchaser. Viacom Inc.’s Reply Brief in Support of Motion for Summary Judgment (“D. Reply Brief’) at 3 (“Plaintiff does not even argue they [sic] qualify as ‘innocent purchasers.’ ”). Granted, CERCLA’s statutory scheme establishes that it is an affirmative defense for a CERCLA defendant to claim that it exercised due diligence at the time of its purchase. Thus, if Taylor stood accused of being responsible for the contamination, and if Taylor’s accuser first established that Taylor was potentially liable according to section 107(a), the burden would then lie with Taylor to show concretely why it is entitled to the statutory defense laid out in section 107(b).

But that is not the procedural posture of this case. As the Court has already pointed out, Taylor has never been accused of liability for any part of the contamination at Taylor Farm. Nor is Taylor a defendant in the current lawsuit. Therefore, Taylor had no reason to invoke section 107(b) in order to defend itself from liability.

Indeed, as explained above, Viacom’s only purpose in questioning Taylor’s right to invoke the statutory defense is to further persuade this Court that Taylor’s lawsuit against Viacom is more like a contribution claim than a cost recovery claim. Viacom’s legal theory is predicated upon establishing that Taylor is not an innocent landowner. As such, the Court finds that the burden of production and persuasion lies with Viacom, not Taylor. The Court further finds that Viacom has failed to meet its burden.

In reaching this conclusion, the Court cautions that it has not made a finding that Wm. Taylor did, in fact, meet the statutory criterion for being an innocent landowner. The Court is merely saying that Viacom has not established sufficient evidence as to leave a fact-finder with no alternative but to conclude that he was not innocent.

At the time that Wm. Taylor purchased the Neal property, he was aware of the landfill. It certainly can be argued that this created a duty to investigate further. However, Taylor’s original lease-purchase contract for the land pre-dated the CERC-LA statute. At that time, the Court cannot say, as a matter of law, that any purchaser of a landfill should have been put on notice to perform a full-scale environmental investigation. Because Viacom has presented no other evidence that Wm. Taylor knew or should have known about the hazardous' waste at the time he purchased the land, the Court finds that there is still a question of fact as to whether Taylor would be entitled to the defense established in section 107(b), if sued under section 107(a).

Moreover, the Seventh Circuit has established an “innocent landowner exception” to the contribution bar that is (arguably) even broader than the statutory defense. In Rumpke of Indiana, Inc., v. Cummins Engine Company, Inc., the Seventh Circuit held that the current landowner Rumpke, as a PRP, could sue a group of SP’s (the “Cummins group”) for cost recovery under section 107(a). 107 F.3d 1235, (7th Cir.1997).

The land in question was a 274-acre dump known as the Uniontown Landfill, which Rumpke purchased in 1984. Id. at 1236-7. At the time of purchase, the previous owners informed Rumpke that the landfill had never accepted hazardous waste, but Rumpke did not conduct its own environmental investigation and, as it turned out, “a cocktail of hazardous wastes had been deposited at Uniontown for many years.” Id.

In addition, other toxic waste had “migrated” there from a site about ten miles away known as the “Seymour site” and described by the Seventh Circuit as “an environmental disaster area.” Id. The Seymour site contained some 60,000 drums and 98 bulk storage tanks that were in various stages of decay — leaking, exploding, and sending clouds of toxic chemicals into the air. Id.

In 1982, the EPA entered into a settlement agreement with the Cummins group to clean up the hazardous waste at the Seymour site. Id. In 1990, Rumpke discovered that the Uniontown Landfill was also contaminated, and that some of the drums from the Seymour site had come to be deposited in the Uniontown Landfill. Therefore, Rumpke brought suit against the Cummins group under CERCLA. Id.

Rumpke’s suit alleged separate Counts for cost recovery under section 107(a) and contribution under section 113(f)(1). The Cummins group moved for summary judgment, “reasoning] that: (1) the Rumpke suit [really] presented ‘claims for contribution,’ and (2) the claims were ‘matters addressed in the settlement,’ “ wherefore both of Rumpke’s claims should be barred by section 113(f)(2).” Id. at 1237-8.

The trial court “found that it was factually uncertain whether Rumpke was entitled to invoke the Akzo [innocent landowner] exception, and ... denied summary judgment for the Cummins group on that point.” Id. at 1238. But the trial court then found, as a matter of law, that the settlement agreement only addressed the Seymour site and did not address contamination of the Uniontown Landfill. Id. Therefore, the trial court found that the contribution bar did not apply to either of the Rumpke’s claims and awarded summary judgment to Rumpke. Id.

On appeal, the Seventh Circuit decided to address the innocent landowner exception first, before deciding if it was necessary to address the trial court’s opinion about the scope of the Seymour settlement agreement. Id. at, 1239. The Seventh Circuit began its discussion by noting that “Rumpke is not a party that is now or ever has been subject to a civil action [by any public authority] under CERCLA § 106.” Id. The Seventh Circuit subsequently noted that “[i]t is also undisputed that no party has ever brought a cost recovery action against Rumpke under § 107.” Id. Therefore, Rumpke’s “status as a PRP ... is based solely on its ownership of the Uniontown site — ownership, we assume at this stage, it acquired without knowledge of the presence of environmental hazards and after all the [hazardous] deposits had been made.” Id.

Accordingly, the Seventh Circuit characterized the determinative issue as whether: “a landowner PRP [may] bring a direct liability suit for cost recovery under § 107(a) against other PRP’s ..., if it contributed nothing to the hazardous conditions at the site.” Id. at 1239-40. The Seventh Circuit concluded in the affirmative. Id. at 1241. “[L]andowners who allege that they did not pollute the site in any way may sue for their direct response costs under § 107(a).” Id. To hold otherwise “would epme perilously close to reading § 107(a) itself out of the statute.” Id.

For the sake of completeness, the Seventh Circuit also considered “whether the contribution bar ... has any role to play in a [true] cost recovery action under § 107(a).” Id. at 1242. The Seventh Circuit held that it did not. Id. Cost recovery serves a different purpose from contribution in the statutory scheme. Id. Therefore, the contribution bar only applies to claims that are truly contribution claims. Id. A cost recovery claim may target matters directly addressed by a settlement agreement without precipitating the contribution bar.

It is obvious that the facts in Rumpke are quite similar to the case before this Court. Taylor is a landowner who has never been sued under sections 106 or 107 of CERCLA. No evidence has been offered that Taylor contributed in any way to the pollution of Neal’s Landfill. Therefore, the central holding in Rumpke applies. Taylor has a right to bring a suit against Viacom for response costs under section 107(a). The fact that Taylor chose to bring its suit under the IELA makes no difference. Taylor’s purpose is still to recover the response costs it will incur in cleaning up its property.

Nevertheless, Viacom argues that Rumpke is distinguishable. In Viacom’s own words:

[T]he Seventh Circuit made clear [that] the ‘central issue’ in Rumpke was whether the ‘matters addressed’ in a prior consent decree at the Seymour site barred Rumpke’s CERCLA claim for costs at the Uniontown site .... 107 F.3d at 1236. In the course of holding that the Seymour decree did not address matters at the Uniontown site and therefore did not protect settlors in the Seymour decree from Rumpke’s suit, the Seventh Circuit briefly discussed certain differences between CERCLA § 107 and § 113(f)(1).

D. Reply Brief at 5-6.

This is an inaccurate characterization of the Seventh Circuit’s opinion. The Seventh Circuit acknowledged that the central issue addressed by the trial court in Rumpke was whether the settlement agreement at the Seymour site was sufficiently broad as to justify applying the contribution bar at the Uniontown site. Rumpke, 107 F.3d at 1238, 1239. But the Seventh Circuit also explicitly disavowed the notion that that was the central issue in the case. Id. at 1239. The central issue, according to the Seventh Circuit, was the innocent landowner exception to the contribution bar1. Id. at 1240. In that regard, the Seventh Circuit did not just mention the “differences between CERC-LA § 107 and CERCLA § 113(f)(1)” in passing. The Seventh Circuit discussed those differences at great length, because they form the basis for the exception. Id. at 1239^42.

Still, Viacom insists that the Seventh Circuit’s holding should be limited to the facts of the case, most particularly, the fact that Rumpke did not benefit from the cleanup efforts undertaken by the Cum-mins group in accordance with the Seymour settlement. D. Reply Brief at 6. By contrast, nearly every dollar spent by Viacom in cleaning up Neal’s Landfill benefit-ted Taylor. Thus, Viacom seems to be arguing that when a landowner has already benefitted in some significant amount from the cleanup activities of the defendant, the landowner cannot sue the defendant for cost recovery, only for contribution.

The Court cannot find any support in the text of Rumpke for this argument. The Seventh Circuit did not base its reasoning upon equitable considerations. Nor is Viacom’s argument inherently persuasive. The fact that a landowner may have benefitted from another party’s cleanup efforts, undertaken subsequent to the landowner’s purchase of the land, might affect a court’s apportioning of liability in a contribution action, but it has no bearing upon the initial question of whether that landowner was “innocent” at the time of purchase.

It is certainly possible that equitable considerations played a role in the trial court’s determination that Rumpke’s suit addressed matters not covered in the Seymour agreement. After all, the fact that Rumpke, as the owner of the Uniontown site, obtained no economic benefits from the cleanup of the Seymour site makes it hard to argue that Rumpke’s suit regarding the Uniontown site somehow addressed matters covered in the Seymour agreement. But, even so, the trial court’s reasoning has little precedential value because the Seventh Circuit did not endorse it.

Moreover, if there were any remaining doubt, after Rumpke, that the Seventh Circuit did not intend for economic considerations to play a role in the innocent landowner exception, those doubts should have been dispelled by AM Int’l, Inc. v. Datacard Corp., 106 F.3d 1342 (7th Cir.1997).

Datacard purchased a site in 1985 that previously had housed a “tank farm.” Id. at 1345-6. Datacard conducted an environmental audit and discovered significant contamination at the site. Id. at 1346. “Despite th[at] find, Datacard went ahead with the purchase, figuring it had a good shot at recovering the cleanup costs” from AM International (“AMI”) and that, in any event, the cleanup costs would constitute only a small percentage of the overall purchase costs. Id.

After the purchase, Datacard cleaned up the co