High Court to Rule on CERCLA Cost Recovery for Voluntary Cleanups

January 16, 2007
by KATE CAMPBELL
Client Alert Newsletter Forecast 2007

The U.S. Supreme Court will hear argument this term on the availability of Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") cost recovery for voluntary cleanups after the Court's 2004 landmark decision in Cooper Industries v. Aviall Services. In Aviall, the Court ruled that a potentially responsible person ("PRP") who voluntarily cleans up a contaminated site cannot recover its costs from other PRPs under CERCLA section 113(f)(1), unless the contribution action is brought during or following a civil action under sections 106 or 107(a). The Court left open, however, whether a PRP performing voluntary cleanup may pursue contribution under section 107(a), which provides that any covered person shall be liable for cleanup costs incurred by the United States or a state and "any other necessary costs of response incurred by any other person .…"

Following Aviall, several courts, including unanimous panels in the Second and Eighth Circuits, opened the door for PRPs to use section 107(a) to recover cleanup costs in lieu of section 113. One exception has been the Third Circuit, where a divided panel in E.I. du Pont de Nemours and Co. v. United States refused to find an implied section 107(a) right of action for PRPs. With the circuits split, the Supreme Court will now decide the issue it declined to resolve in Aviall. In January, the Court granted certiorari to hear United States v. Atlantic Research Corp. – the Eighth Circuit decision holding that section 107(a) provides a right of private contribution claims for PRPs. Oral argument is scheduled for April 23.