The Eighth Circuit Court of Appeals has ruled that section 113 of CERCLA provides the exclusive remedy for a liable party compelled to incur response costs by an administrative- or judicially approved settlement under sections 106 or 107. Morrison Enters., LLC v. Dravo Corp., No. 10-1468 (8th Cir. 4/5/11).
In July 2008, plaintiff and the City of Hastings sued Dravo Corp. under CERCLA section 107 seeking to recover the cleanup costs of toxic chemicals released at the Hastings groundwater contamination site. Defendant argued that plaintiff Morrison could not sue under section 107 because Morrison had been required to clean up the site by a series of administrative orders on consent (AOCs) with EPA, therefore making Morrison’s claim one for contribution and not cost recovery. Defendant also argued that a cost-recovery claim was time barred.
The district court agreed, ruling that section 113 provided the exclusive remedy. The district court also denied Morrison’s motion to amend its complaint to assert a claim under section 113. Morrison appealed and, citing U.S. v. Atlantic Research Corp., 551 U.S. 128 (2007), argued that the district court erred because the company had “voluntarily” cleaned up the site. The appeals court rejected Morrison’s arguments, finding that section 113 provided the company’s exclusive remedy and upholding the district court’s denial of the company’s motion to amend. According to the court, unlike the voluntary plaintiff in Atlantic Research, Morrison had been “required” to clean up the site by a series of EPA AOCs.