The U.S. Supreme Court in United States v. Atlantic Research Corp 551 U.S. __(2007) (slip op) clarified the scope of private party recoveries under CERCLA, which had been clouded by its 2004 decision in Cooper Industries, Inc. v. Aviall Services, Inc. (“Aviall”). Aviall held that private parties had no contribution remedy under Section 113(f) of CERCLA absent a pending or settled suit by the government under Section 106 or 107(a). That decision upended settled practice and left potentially responsible parties (“PRPs”) and their counsel searching for remedies to recover costs caused by the releases of others. The Atlantic Research Court concluded that a contribution remedy existed all along (!)-in Section 107 (a)(4)(B).
Section 107 (a)(4)(A) makes PRPs liable for “all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan…” and Section 107(a)(4)(B) makes PRP’s liable for “any other necessary costs of response incurred by any other person consistent with the [NCP].” Reading the sections together, the Court concluded that “any other person” must include PRPs in order to give the sections meaning.
Consequently, a PRP may sue other PRPs under Section 107 for these “necessary costs.” The Court found that the remedies under Sections 107(a) and 113(f) were distinct and complementary. Section 113 authorizes contribution actions involving PRPs with common liability arising out of Section 106 or 107(a) actions, and Section 107(a) permits recovery by private parties who have incurred cleanup costs. The Court found no friction between the sections because parties cannot choose the remedy to obtain longer limitation periods or to avoid equitable allocation or contributor if under Section 113. Another significant impact of the decision is that U.S. government agencies are once again targets for contribution claims.
The decision neatly addresses all of the rights and remedies of PRPs in multi-party clean-up cases. It just leaves you wondering why it took almost 30 years to get here!