The Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) provides causes of action that allow parties who have incurred costs cleaning up a contaminated site to recover those costs from other parties alleged to have caused the contamination, commonly referred to as potentially responsible parties (“PRPs”). For private parties, the two main routes of recovery are (1) cost recovery under § 107(a) of CERCLA and (2) contribution under § 113(f) of CERCLA. Even if a party is a PRP itself, if that PRP has incurred costs to clean up a contaminated site, it can seek cost recovery or contribution from other PRPs. See, United States v. Atlantic Research Corp., 551 U.S. 128 (2007).
PRPs subject to a court order or consent decree requiring cleanup of a contaminated site routinely bring contribution claims under CERCLA to recover costs incurred pursuant to the order or decree. However, in Atlantic Research, the Supreme Court explicitly left open the question of whether a PRP can recover costs under § 107 if the PRP incurred those costs subject to a consent decree with the government. Id. at 139 n.6 (emphasis added) (“we recognize that a PRP may sustain expenses pursuant to a consent decree following a suit under § 106 or § 107(a)…In such a case, the PRP does not incur costs voluntarily but does not reimburse the costs of another party. We do not decide whether these compelled costs of response are recoverable under § 113(f), § 107(a), or both.”).
Ever since Atlantic Research, PRPs and courts have been struggling with a crucial question: Whether parties subject to a consent decree may file claims for cost recovery under § 107(a) of CERCLA, or whether their remedies are limited to contribution claims under § 113(f) of CERCLA. This distinction can be significant due to the more favorable statute of limitations for § 107 cost recovery claims. On October 9, 2012, the Supreme Court declined the opportunity to clarify that question when it denied cert in the appeal of Solutia Inc. v. McWane, Inc., 672 F.3d 1230 (11th Cir. 2012).
In Solutia, the 11th Circuit held that a PRP who has incurred cleanup costs pursuant to a consent decree cannot obtain cost recovery under § 107, and is instead left with only a contribution claim under § 113. 672 F.3d at 1237. As the 11th Circuit explained in its opinion, the majority of courts that have addressed this issue have held that § 113 provides the exclusive remedy for a PRP compelled to incur response costs pursuant to a consent decree. See, e.g., Morrison Enter., LLC v. Dravo Corp., 638 F.3d 594, 603 (8th Cir. 2011); Agere Sys., Inc. v. Advanced Envtl. Tech. Corp., 602 F.3d 204, 229 (3d Cir. 2010); Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 128 (2d Cir. 2010).
While there is no circuit split, uncertainty remains, however, due to inconsistent rulings on this issue, primarily at the district court level. For example, district courts in Illinois and Michigan have allowed § 107 claims to proceed despite the presence of a consent decree compelling cleanup. See, e.g., United States v. Pharmacia Corp., 713 F. Supp. 2d 785, 791 (S.D. Ill. 2010); Ford Motor Co. v. Michigan Consol. Gas. Co., No. 08-CV-13503 (E.D. Mich. Sept. 29, 2009). PRPs who have entered into a consent decree and then seek recovery of their cleanup costs are still left with the decision of what type of CERCLA claim to pursue. Without clarification of these issues from the Supreme Court, PRPs will likely initially continue to pursue claims under both § 107 and § 113, leaving it to each individual court to decide the validity of the cost recovery and contribution claims.
