Supreme Court: Voluntary Cleanups Provide a Basis for Superfund Claims

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:

1. 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.
   
   
2. 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.
   
   
3. 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.”