Superfund Parties May Sue To Recover 'Voluntary' Clean-Up Costs

The United States Supreme Court has resolved a Circuit split involving Superfund liability, holding that section 107(a)(4)(B) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA") authorizes any person to recover incurred cleanup costs from other potentially responsible parties (PRPs) in a separate cause of action. United States v. Atlantic Research Corp., 551 U.S. __, 127 S. Ct. 2331 (2007).

Sections 107(a) and 113(f) of CERCLA both provide for recovery of expenses related to cleanup of contaminated sites. Courts have held differing views, however, as to the scope of their coverage.

In 2004, the Supreme Court held that section 113(f) authorized PRPs to sue for contribution from other PRPs only after liability had been assessed under sections 106 or 107(a). See Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 161 (2004). This holding left unanswered the question of whether a nongovernmental person (including but not limited to PRPs) also may sue a PRP for recovery of "necessary costs of response incurred" (as opposed to contribution based on inequitable apportionment of costs) under section 107(a)(4)(B). (Section 107(a)(4)(A) authorizes governmental entities to recover all incurred costs).

A Circuit split resulted, with the U.S. Courts of Appeal for the Second and Seventh Circuits concluding that section 107(a) authorizes a separate cause of action, and the Third Circuit holding that Section 113(f) was the exclusive remedy for PRPs seeking to recover from other PRPs for cleanup costs.

In this case, the plaintiff, Atlantic Research, sued under both CERCLA sections. Cooper Industries vitiated the section 113(f) action because liability had not yet been assessed under sections 106 or 107. The defendant successfully moved to dismiss the remaining section 107 claim.

The Eighth Circuit reversed, adopting the reasoning of the Second and Seventh Circuits and holding that section 107(a) authorizes a PRP to sue another PRP for cleanup costs. The Supreme Court affirmed, resolving the split in authority.

In a unanimous opinion authored by...