This is the seventh and final blog entry
in a series of blog entries regarding the evolution of CERCLA §107 cost
recovery claims and CERCLA §113 contribution claims. It will summarize the entire overarching argument of this
series of blog entries that cost recovery and contribution were distinct remedies
prior to SARA, then the Circuit Courts blurred the distinctions between these
two remedies, and now, starting primarily with Cooper Industries,
Inc. v. Aviall Services, Inc.,
543 U.S. 157 (2004), the Supreme Court
and other courts have begun restoring those distinctions that existed prior to
SARA.
My first blog entry to this series discussed how cost recovery and
contribution were distinct legal remedies prior to SARA being enacted. My second blog entry to this series
discussed how the circuit courts blurred those distinctions after SARA was
enacted. My third blog entry to this series discussed how Cooper Industries and other cases have begun restoring
the nature of a contribution action to the way it was before SARA was enacted. My fourth blog entry to this series discuss how U.S. v. Atlantic Research
Corp., 551 U.S. 128 (2007), and other cases have begun restoring the nature of a cost recovery action
to the way it was before SARA was enacted. My fifth blog entry in this series discussed how Atlantic Research,
Burlington Northern & Santa Fe Ry. v. United States, 129 S.Ct. 1870 (2009), and other cases have
continued to restore the nature of a contribution action to the way it was
before SARA was enacted. Most
recently, my sixth blog entry to this series discussed how the Supreme Court
restored the overlap between the cost recovery and contribution remedies.
Prior to SARA, cost recovery and contribution were distinction
remedies and they can be described as follows:
Cost Recovery: Any person that incurred costs, including PRPs, could seek cost
recovery.
Contribution: CERCLA did not
explicitly provide for a right to contribution, but one was derived from the
case law. Any person that had been
sued in a cost recovery action (or an enforcement action) could seek
contribution, but obtaining contribution was contingent upon the parties being
jointly liable.
Overlap: Where a person is
sued and found liable for a cleanup and forced to incur the response costs to
perform that cleanup, as opposed to reimbursing someone else for their having
paid for a cleanup, it appeared as though the cost recovery and contribution
remedies overlap. In other words,
the person could recover the costs they incurred in either a cost recovery action
or a contribution action.
After SARA was enacted, but prior to Cooper Industries, the Circuit Courts blurred the distinctions
between cost recovery and contribution.
They were essentially the same remedy available to different people. Cost recovery was for non-PRPs, and
contribution was for PRPs:
Cost Recovery: Some
Circuit Courts prohibited PRPs from suing in cost recovery. Some Circuit Courts allowed only
“innocent” PRPs to sue in cost recovery.
Cost recovery was generally for non-PRPs.
Contribution: The
Courts basically ignored the statutory preconditions to asserting a
contribution action under CERCLA §§ 113(f)(1) (during or following a civil
action) and 113(f)(3)(B) (after a settlement). Some Circuit Courts allowed PRPs to pursue contribution as soon as costs were incurred regardless of
whether their had been a prior cost recovery action or an enforcement action. Some Circuit Courts held contribution no
longer requires joint liability between the parties.
Overlap:
Some Circuit Courts
held cost recovery and contribution were non-overlapping remedies.
The Supreme Court in Cooper Industries, Atlantic Research and Burlington
Northern, and other courts restored the distinctions between cost recovery
and contribution that existed prior to SARA being enacted:
Cost Recovery: Any
person that incurred costs, including PRPs, can seek cost recovery. See
my fourth blog entry in this series.
Contribution under CERCLA §
113(f)(1):
Any person that had been sued in a cost recovery action or an enforcement
action could seek contribution, but obtaining contribution is contingent upon
that person be found liable in a judgment. Further, contribution can only be sought for the costs paid
in accordance with that judgment. In
other words, only costs incurred pursuant to a judgment resulting from a cost
recovery action or an enforcement action are obtainable in a contribution
action. See my third blog entry in this series. Moreover,
obtaining contribution is contingent upon the parties being jointly liable. See
my fifth blog entry to this series.
Contribution under CERCLA §
113(f)(3)(B): Only costs incurred
pursuant to an administrative settlement
under CERCLA §§ 122(g) or (h), or pursuant to a judicially approved settlement,
are obtainable in a contribution action.
See my third blog entry in this series.
Overlap: Contribution
and cost recovery are somewhat overlapping remedies. The overlap occurs in two places. One, where a person performs a cleanup and incurs response
costs pursuant to a judgment resulting from a cost recovery action or an
enforcement action; and two, where a person performs a cleanup and incurs
response costs pursuant to an administrative settlement
under CERCLA §§ 122(g) or (h), or pursuant to a judicially approved settlement.
In both of theses scenarios,
the person could recover the costs they incurred in either a cost recovery
action or a contribution action.
See my sixth blog entry in this series.
If this argument is correct in means that there
are numerous Circuit Court decisions have been overruled even though it has
never been explicitly stated they have been overruled. Therefore, it will take sometime for
the Courts to cleanup the case law and decipher which what parts of the post
SARA, pre Cooper Industires, case law
remain an accurate statement of the law.
THAT’S MY ARGUMENT.
© September 2013 Brandon J. Evans
