Third Circuit Revisits CERCLA Precedent Consistent with Supreme Court's Atlantic Research Decision
On November 20, the Third Circuit reversed itself in E.I. DuPont de Nemours & Co. v. United States, on remand from the U.S. Supreme Court, to hold that private parties have a claim under section 107 of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") to recover costs associated with voluntary cleanups. The long-running DuPont litigation has endured the sea changes in CERCLA cost recovery litigation that was triggered by the Supreme Court's 2004 decision in Cooper Industries v. Aviall Services, which held that private parties do not have contribution claims for voluntary cleanups under CERCLA section 113. Now, once again, the plaintiffs in DuPont have a claim for voluntarily incurred cleanup costs, and in the process the Third Circuit has noted that its pre-2004 CERCLA precedents in In Re Reading Co. and New Castle County v. Halliburton NUS Corp. have been "undermined."