Ending three years of uncertainty that resulted after the Supreme Court's decision in Cooper Industries v. Aviall Services,Inc. 543 US 157 (2004) the Supreme Court issued a unanimous decision in United States v. Atlantic Research Corp, 75 U.S.L.W. 4408 (U.S. June 11, 2007) allowing a party which has voluntarily cleaned up contaminated property to recover their clean up costs from other Potentially Responsible Parties (PRPs). The two decisions are not in conflict because the Cooper case interpreted only section 113(f)(1) of the Superfund statute (42 U.S.C. Sec. 9600) and the Supreme Court in this more recent opinion was interpreting the right to recover based on section 107(a) of the statute.

Although many companies had undertaken voluntary clean-ups, and in many states programs exist to permit such voluntary clean-ups, after the Coopers decision there was a chilling effect on voluntary remediations. The motivation to conduct a voluntary clean-up is severely limited when there is uncertainty as to whether the voluntary nature of the clean-up will eliminate a right to recover from other PRPs.

In this most recent decision the government was sued by Atlantic Research, after the Company conducted a voluntary clean-up of a site it had leased from the Department of Defense. The government argued that under the Cooper decision no claim could be made under section 113 (f) and that the only "other persons" who can bring an action under section 107 (a)(4)(B) are those parties who are not potentially responsible parties themselves. The Supreme Court, in a unanimous decision by Justice Thomas rejected this interpretation. Instead, the court noted that because the statute's definition of a PRP is so broad, if PRPs cannot bring an action under section 107(a)(4)(B), it is unclear what private party could.

Further the Court also noted that there are two distinct causes of action under sections 113 and 107 of the statute. Section 113 is a contribution action which permits joint tort feasors to recover a portion of their expenses where they have paid more than their proportionate share for the same tort. While section 107 provides for a right to cost recovery. Section 107(a) permits recovery of cleanup costs when it has incurred those costs in cleaning up a site. There is a logical distinction between incurring clean up costs to conduct a remediation and paying a sum of money to satisfy a judgment or as part of a settlement. In the Supreme Court's view, when a party voluntarily undertakes the cleanup it can recover from other PRPs for their fair share of the costs of the cleanup under Section 107(a).

Although EPA was not a party to this lawsuit, it has long been EPA's position, despite the Coppers decision, that PRP's could undertake cleanups voluntarily and still recover those costs incurred from other parties. The Atlantic Research case should now remove any lingering doubt about EPA's interpretation of CERCLA.