May an owner of contaminated property, or anyone else potentially liable under federal law, voluntarily cleanup that property and then seek to recover the cleanup costs from others? Until now, some courts said yes while others said no. The United States Supreme Court has now answered the question with a unanimous yes.
In United States v. Atlantic Research Corp., U.S. No. 06-652 (June 11, 2007), the Supreme Court unanimously held that potentially responsible parties (PRPs) may sue to recover cleanup costs from other PRPs under the federal Superfund Statute, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), § 107(a), 42 U.S.C. § 9607(a).
Atlantic Research leased property at a facility operated by the Department of Defense, where the operations of Atlantic Research contaminated soil and groundwater. Atlantic Research cleaned up this contamination and then sued the United States under CERCLA Sections 107(a) and 113(f). In the meantime, the Supreme Court decided in Cooper Industries v. Aviall Services, Inc. that a PRP could not sue under Section 113(f) unless and until the PRP had been sued itself under Section 106 or 107(a). Atlantic Research’s only remaining means of recovering its cleanup costs was its claim under Section 107(a), which had been held to be unavailable to PRPs by some lower federal courts.
The Supreme Court, in an opinion by Justice Clarence Thomas, concluded that CERCLA Section 107 authorizes cost-recovery actions by any party, including a PRP.
The Supreme Court rejected the federal government’s argument that allowing PRPs a choice between Sections 107(a) and 113(f) would allow PRPs to avoid Section 113(f)’s shorter statute of limitations and equitable apportionment. The Supreme Court explained that these two sections provide different remedies in different procedural postures: Section 107(a) allows a private party to recover its own cleanup costs from a PRP in the absence of a prior lawsuit; and Section 113(f) allows a PRP sued under Section 106 or 107(a) to bring a contribution action against another PRP. Thus, costs incurred voluntarily are recoverable only under Section 107(a) (because no prior lawsuit was filed giving rise to a contribution action) and reimbursement of costs of another person pursuant to a legal judgment or settlement are recoverable only under Section 113(f) (because those costs are not the PRP’s own cleanup costs). So even though the remedies are somewhat overlapping, neither “swallows the other,” according to the Supreme Court.
The Supreme Court’s decision ensures the future vitality of voluntary cleanup programs since those who undertake cleanups voluntarily will know that they will be able to recover others’ fair share of the costs of those cleanups, even if the entity undertaking the cleanup also bears some responsibility for the contamination at issue.
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