On Monday, the Second Circuit issued two opinions in the consolidated case of State of New York v. Solvent Chemical Co., Nos. 10-2026-cv, 10-2166-cv, & 10-23830-cv (2^nd Cir. Dec. 19, 2011).  The first was a Summary Opinion, without precedential effect, which partially affirmed and partially rejected the district court’s method of allocating liability for past response costs incurred by Solvent Chemical Co. in remediating contamination at a site along the Niagara River in New York.  The second, a precedential opinion, reversed the trial court’s decision denying Solvent a declaratory judgment holding two other PRPs, DuPont and Olin Corp., liable for future remediation costs.  In essence, the Court of Appeals held that if the trial court could determine that DuPont and Olin were partially liable for past remediation costs, then it was required to find them liable for future costs, even if the trial court was not then able to allocate those future costs.  From a purely logical standpoint, not a very controversial or earth-shattering decision.

What is interesting about the decision is the Court’s discussion of the interplay between various sections of CERCLA and the Declaratory Judgment Act, 28 U.S.C. §2201(a)(the “DJA”).  Specifically, the Court refused to determine whether CERCLA Section 113(g)(2), which expressly provides for the entry of a declaratory judgment on liability for response costs under Section 107, also applies to contribution claims under Section 113(f).  Noting that at least two circuits have held that a declaratory judgment may be entered pursuant to 113(g)(2) in a Section 113(f) contribution claim, the Court nevertheless refused to address the issue head on.  Instead, the Court found that a declaratory judgment was proper under the DJA, without reference to CERCLA.  The decision also fails to address many of the questions that have arisen in other cases and other circuits beyond the applicability of 113(g)(2) to claims under 113(f), such as whether there must still be a “case or controversy” despite 113(g)(2)’s silence on the matter, and whether a plaintiff’s failure to establish liability for its past costs necessarily forecloses its ability to obtain a declaratory judgment with respect to future costs.

In other words, there’s still plenty of room for interpretation of – and legal battles over – the scope and application of CERCLA in a variety of situations and settings.

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