Federal Case Law Impacts Superfund Cost Recovery And Contribution Actions

The dividing line between Superfund cost recovery and contribution actions under sections 107(a) and 113(f) of CERCLA, respectively, have long been complicated and unclear. Potentially responsible parties (PRPs) typically prefer to proceed under § 107 due to its more favorable statute of limitations and joint and several liability standard, but often plead both sections alternatively when seeking reimbursement and response costs. Several recent court decisions provide additional clarity as to which section is appropriate given the procedural status of the claim.

In United States v. Atl. Research Corp., 551 U.S. 128 (2007), the Supreme Court held that the availability of remedies under § 107 and § 113 depends on the procedural posture of the case. If a party has settled or otherwise resolved its liability with the federal government or a state for any response costs or has been the subject of a CERCLA action under § 106 or § 107, the party must use § 113 to seek contribution from other potentially responsible parties. However, a party that has voluntarily incurred response costs and is not subject to a settlement or an enforcement action may use § 107(a).

In a lower-court decision that appears consistent with the reasoning of Atl. Research Corp...