The opinion of the court was delivered by: J. Leon Holmes United States District Judge
William M. Gurley brought this action under the Comprehensive Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq., against the City of West Memphis. He seeks contribution from the City for liability that he incurred when the Environmental Protection Agency successfully brought suit against him for the environmental cleanup of the South Eighth Street Landfill in West Memphis. Gurley has filed a motion for partial summary judgment in which he asks, first, that the Court find as a matter of law that the City's settlement with other parties in another case does not bar his claim for contribution, and, second, that the City is liable for contribution as an operator or as an arranger or transporter of hazardous wastes. The City has also filed a motion for summary judgment, arguing, first, that Gurley is barred from bringing suit under 42 U.S.C. § 9607; second, that it is protected from Gurley's claim for contribution by virtue of a settlement with different parties in a different case; and, third, that as a matter of law it is not a responsible party as defined by CERCLA.
Gurley admits that he cannot bring a direct action for contribution pursuant to 42 U.S.C. § 9607. Accordingly, summary judgment is granted on behalf of the City on Gurley's § 9607 claim.
Gurley does, however, contest the City's other contentions. For the following reasons, the Court finds as a matter of law that the City's settlement with other parties does not bar Gurley's claim for contribution. Gurley's motion for summary judgment is granted on that issue; the City's motion for summary judgment on that issue is denied. Gurley's motion for summary judgment on the City's liability as a past operator or as an arranger or transporter is denied. The City's motion for summary judgment on the issue of whether it is a responsible party is denied.
A court should enter summary judgment if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed. 2d 202 (1986); Cheshewalla v. Rand & Son Constr. Co., 415 F.3d 847, 850 (8th Cir. 2005). A genuine issue of material fact exists only if there is sufficient evidence to allow a jury to return a verdict for the nonmoving party. Anderson, 477 U.S. at 249, 106 S.Ct. at 2511.
The subject of this action is the South Eighth Street Landfill Superfund Site in West Memphis, Arkansas, a tract of land adjacent to the Mississippi River. Between the early 1950s and 1971, the City used portions of the site as a disposal area for municipal solid wastes. During that same time period, Gurley used a 2.5-acre portion of the site (dubbed the "oily sludge pit" by the Environmental Protection Agency) to dump the industrial waste from his oil reclamation business, Gurley Refining Company, Incorporated.
In October 1992 the South Eighth Street Site was listed on the National Priorities List. In August 1992, the EPA initiated a remedial investigation and feasibility study that addressed the nature and extent of contamination at the site and identified alternative means of remedying the contamination. During that process the EPA named both the City and Gurley, as well as several private companies, as potentially responsible parties (PRPs) for the contamination. On September 27, 2001, Gurley was held liable for the response costs incurred by the United States at the site as well as response costs to be incurred in the future at the site. United States v. Gurley, 317 F. Supp. 2d 870, 875 (E.D. Ark. 2004).
On December 19, 2000, a consent decree was entered between the United States and a group of more than 170 PRPs, not including Gurley or the City. USA v. Aircraft Serv. Int'l, Inc., et al., No. 3:98CV00362 (E.D. Ark. Dec. 19, 2000) (Document #66). That group of PRPs then brought suit against the City for contribution. Signature Combs, Inc., et al. v. City of West Memphis, No. 3:99CV00315 (E.D. Ark.) (filed Aug. 3, 1999). The City and the group settled. An order entered June 27, 2005, dismissed the group's claims against the City and purported to bar any future actions for contribution against the City based on the environmental cleanup of the South Eighth Street Site. See id. (Document #16). Gurley filed this suit on April 21, 2004, before the settlement in Signature Combs. Gurley did not receive notice of the settlement in Signature Combs before the June 27, 2005, order was entered and had no opportunity to participate in the settlement or to object to its approval.
The City argues that Gurley is barred from bringing this contribution action because of the judicially-approved settlement between the City and other private-party PRPs in Signature Combs, Inc., et al. v. City of West Memphis, No. 3:99CV00315 (E.D. Ark.). The June 27, 2005, order in Signature Combs stated:
The Settling Defendant [the City] is entitled, as of the date of entry of this Order, to protection from contribution actions or claims, such protection to be equivalent to the protection provided by CERCLA Section 113(f)(2), 42 U.S.C. § 9613(f)(2) for all matters addressed in the Consent Decree entered on December 19, 2000 in Civil Action Nos. J-C-98-362 and J-C-98-363 by the United States District Court for the Eastern District of Arkansas, Jonesboro Division ("Consent Decree") and all such contribution claims are, therefore, BARRED. "It is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process." Hansberry v. Lee, 311 U.S. 32, 40, 61 S.Ct. 115, 117, 85 L. Ed 22 (1940) (citing Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877)). Gurley was not a party to either the settlement or the action in Signature Combs, so that order does not bind him.*fn1 Thus, the fact that the June 27 order in Signature Combs purported to bar other contribution claims, by itself, is not sufficient to bar Gurley's suit.
The City argues, however, that CERCLA § 113(f)(2), codified at 42 U.S.C. § 9613(f)(2), mandates that this Court bar Gurley's contribution suit. Section 113(f)(2) establishes a contribution bar that applies to those who settle their liability for environmental cleanup with the United States or a State. The City asserts that § 113(f)(2) ...