| 
Supreme Court: Voluntary Cleanups Provide
a Basis for Superfund Claims
By Lawrence
B. Burke and Merryn
B. DeBenedetti
[June 2007]
The Supreme Court has held that a company that
had cleaned up a site (which it leased from the federal government
and contaminated while doing government work) may sue the government
under the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA) to recover costs it incurred. United
States v. Atlantic Research Corp., 551 U.S. ___ (2007)
(decided June 11, 2007).
The unanimous opinion in Atlantic Research
answers a question that was left open in Cooper Industries,
Inc. v. Aviall Services, Inc. 543 U.S. 157 (2004)—namely
whether a party that: (1) is liable under CERCLA § 107;
and (2) does not satisfy the requirements for bringing an action
for contribution under of CERCLA § 113(f), may bring an
action against another liable person for cost recovery under
§ 107(a).
This decision answers two questions while leaving
one other unresolved:
- There had been uncertainty as to whether parties who voluntarily
undertake cleanups could recover costs from other potentially
responsible parties under CERCLA at all. The Supreme Court
decision in Atlantic Research allows CERCLA cost-recovery
claims when contribution claims are unavailable and directs
that regardless of how the claim is titled, such claims will
normally be decided based on the trial court’s determination
of what is equitable or fair.
- There had also been uncertainty as to which statutes of
limitation are potentially applicable since cost-recovery
and contribution claims must be brought within different time
periods. Although the distinction between what is a contribution
claim and what is a cost-recovery claim could still be tricky,
in most cases it will now be more apparent which claim is
appropriate, allowing parties to know when such claims need
to be filed.
- It remains uncertain, however, whether joint and several
liability is available in cost-recovery claims. The Supreme
Court continued to assume, without deciding, that it may be
available in some circumstances. Joint and several liability
is important to a party who spends money on a cleanup and
cannot recover against the party primarily responsible (for
example, a dissolved or bankrupt corporation). If liability
is joint and several, then parties with less responsibility
may be held liable for proportionally more costs. Until that
is decided, parties will need to look at lower court decisions,
and state law, to determine their chances of recovery in such
circumstances. If joint and several liability is available,
it may be advantageous to “volunteer” instead
of waiting to be forced to incur costs.
Case Background
CERCLA § 107(a) defines four categories of potentially
responsible persons (PRPs) and makes them liable for, among
other things, “any other necessary costs of response incurred
by any other person consistent with [such] plan.” §
107(a)(4)(B) Some courts had interpreted § 107(a)(4)(B)
as providing a cause of action for any private party that had
voluntarily incurred response costs to seek contribution. Other
courts had held that § 107 was only available to parties
that are not themselves PRPs. Those courts had held § 113(f),
which authorizes one PRP to sue another for contribution, was
the exclusive remedy for PRPs. In Cooper Industries, Inc.
v. Aviall Services, Inc., 543 U.S. 157, the Supreme Court
held that a private party could only seek contribution under
§ 113(f) after having been sued under § 106 or §
107(a). Therefore, the recourse of PRPs who “volunteered”
to clean up sites had been uncertain.
The federal government may have assumed the Court had reached
its Aviall distinction to limit CERCLA, but the Court
held, “The Government’s interpretation makes little
textual sense.”
For more information, please contact:
This advisory is a publication of the Environmental Group of
Davis Wright Tremaine LLP. Our purpose in publishing this advisory
is to inform our clients and friends of recent legal developments.
It is not intended, nor should it be used, as a substitute for
specific legal advice as legal counsel may only be given in
response to inquiries regarding particular situations.
Copyright © 2007, Davis Wright
Tremaine LLP.
return to Advisory
Bulletins main page |
