A federal court in Wisconsin has held that a plaintiff could simultaneously seek contribution and cost recovery for different costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). N. States Power Co. v. City of Ashland, Wis., No. 3:12-cv-00602 (W.D. Wis. 4/2/13).
The issue arose from cleanup costs that plaintiff incurred performing remedial work under 2003 and 2012 U.S. Environmental Protection Agency (EPA) orders, as well as costs plaintiff had incurred between 1995 and 2003, before entry of the first EPA order. Plaintiff asserted that “each defendant has contributed to” contamination of the site. Defendants argued that plaintiff could not simultaneously seek contribution under section 113 of CERCLA and pursue a cost-recovery action under section 107.
While the court agreed that the two causes of action are mutually exclusive, it found that plaintiff had expended money to respond to releases without any order from the United States and had a direct cost-recovery claim for those amounts. The court also found that it had a contribution claim for costs incurred under the two EPA orders. Plaintiff also asserted state-law causes of action against some defendants, including negligence, public nuisance and common law contribution. The court declined to dismiss the claims because “defendants have not shown that these claims conflict with the CERCLA remedial scheme.”