Although CERCLA has been around for many years, courts are still interpreting both its parts and its whole.  In recent years, the Supreme Court has tried to direct traffic between Section 107(a), which permits PRPs to bring cost recovery actions against other PRPs for “any necessary costs of response incurred” by the PRP bringing suit, and Section 113(f), which permits PRPs who have been sued under section 106 or 107(a) or have entered into a judicially-approved settlement with a federal or state government resolving CERCLA liability to bring actions for contribution against other PRPs to recover amounts paid in excess of their equitable share of liability.   Because these two provisions have differing limitations periods, burdens of proof, and allow for different forms of recovery against multiple defendants, the distinction is often significant.

In Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157 (2004), the U.S. Supreme Court held that a PRP must have either been sued under §106  or §107(a), or must have entered into a settlement agreement resolving all or part of its CERCLA liability in order to obtain contribution from other PRPs under §113(f).  Three years later, the Court held that a PRP who voluntarily incurs cleanup costs may bring a cost recovery claim under §107(a) against other PRPs.  United States v. Atl. Research Corp., 551 U.S. 128 (2007).  However, in Atl. Research, the Supreme Court expressly left open the possibility that the two provisions may overlap: 

For instance, we recognize that a PRP may sustain expenses pursuant to a consent decree following a suit under . . . § 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.

Atl. Research, 551 U.S. at 139 n.6. 

Since the decision in Atl. Research, several appellate courts have taken on this question.  In Agere Sys., Inc. v. Advanced Envtl. Tech. Corp., 602 F.3d 204 (3d Cir. 2010), the Third Circuit held that PRPs who had entered into consent decrees and directly incurred clean-up costs in compliance with the decrees only had claims under §113(f).  The court focused on the fact that, under CERCLA §113(f)(2) and the terms of the consent decrees, the government settlement PRPs were protected against contribution claims by other PRPs.  That is, if the consent decree parties could assert a claim under § 107(a) – which normally imposes joint and several liability on defendants – then they could improperly recover all their response costs, including “costs to undo what the plaintiff itself has done.”   Similarly, the Second Circuit has held that a PRP who has entered into an administrative consent order with a state environmental agency resolving CERCLA liability also has claims under §113(f), but not under §107(a).  Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112 (2d Cir. 2010).  The Eighth Circuit has also weighed in inMorrison Enter. LLC v. Dravco Corp., 638 F.3d 594 (8^th Cir. 2011), similarly holding that §113(f) is the exclusive remedy for parties who enter into consent decrees with the government.

And as of yesterday, the Eleventh Circuit has joined the tide.  In Solutia, Inc. v. McWane, Inc., No. 10-15639 (8^th Cir. Mar. 6, 2012), the plaintiffs incurred costs remediating PCB contamination pursuant to a consent decree entered into with the EPA.  Subsequently, it filed suit against other parties under both §107(a) and  §113(f).  Initially the district court had allowed both claims to proceed, but after the decision in Atl. Research, the defendant’s moved for reconsideration of the denial of their summary judgment motions, and the court vacated its earlier order and entered judgment against the plaintiffs on the §107(a)  claim.  The Eighth Circuit affirmed, for the same reasons relied upon by the Second, Third, and Eighth Circuits that allowing both forms of action would “completely undermine” the structure of CERCLA by permitting “a party subject to a consent decree [to] simply repackage its §113(f) claim for contribution as one for recovery under §107(a).” 

So, with four circuits reporting in since Atl. Research, a consensus is surely being reached – only those who truly voluntarily engage in a remediation, not those who do so as a result of a civil action under CERCLA or a settlement resolving CERCLA liability[1] may recover under §107(a), reaping the benefits of a longer statute of limitations period, joint and several liability among defendants.

[1] In WR Grace v. Zotos, 559 F.3d 85 (2d Cir. 2009), the Second Circuit held that a party who had resolved only state law claims by way of a consent order requiring remediation would still have a right of recovery under §107(a) because ““there is a risk EPA will take later actions or select different remedies that could expose the PRP to additional liabilities.”  As a practical matter, too, a PRP in this situation would have no contribution claim under §113(f), so that without the availability of a §107(a) claim, the PRP would have no ability to recover under CERCLA

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