The federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) allows private parties that incur cleanup costs to reallocate those costs to others through a cost recovery claim under section 107(a)(1-4)(B) or a contribution claim under section 113(f)(1) or (3)(B). So do some state statutes and state common law. There can only be one allocation — one list of numbers that adds up to the whole liability. Which law governs?
The federal courts have fairly uniformly said that CERCLA preempts state law contribution or cost recovery claims, other than contract claims. That seems obvious when the claim is among parties liable under federal law and state law to reallocate costs that are recoverable under both federal and state law. The shares determined under CERCLA should govern.
What about claims to reallocate costs that are recoverable under state law, but not under federal law? In Pennsylvania, think about remedies selected and implemented under the Land Recycling and Environmental Remediation Standards Act (“Act 2″); Act 2 was explicitly constructed so that the cumbersome process under the National Contingency Plan (“NCP”) would not impede prompt cleanups, so those costs are often not incurred consistently with the NCP and therefore not recoverable under CERCLA. Typically, those costs would be recoverable under the Pennsylvania Hazardous Sites Cleanup Act (“HSCA”). Yet, the federal courts seem to hold that costs that could be recoverable under CERCLA but that are not recoverable by reason of inconsistency with the NCP are also not recoverable under state law.
What about claims to reallocate costs under state law to parties liable under state law, but not liable under federal law? An example in Pennsylvania would be an interim owner of real property between the time when hazardous substances were disposed and when a release occurred. Under CERCLA, that person is not liable. Under HSCA, that person probably is liable. The federal courts — to be sure not considering HSCA — have held state law to be preempted in this circumstance as well.
Is anything left, then, of contribution claims under laws like Pennsylvania HSCA? I consider the question in my column this month in the Pennsylvania Law Weekly. Read Does CERCLA Preempt Contribution Under the HSCA?, 37 Pa. L. Weekly 1072 (Nov. 11, 2014), by clicking here.
For those specifically interested in HSCA, click here to request a reasonably comprehensive list of reported HSCA decisions.