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Since its enactment in 1980, the federal Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601 et seq. (CERCLA), has been the cornerstone for the cleanup of contaminated sites around the country. Under the statute, the federal government may impose strict, retroactive and joint and several liability on a responsible party for the costs the government incurs remediating contaminated sites and may compel a responsible party to perform cleanup activities under the threat of such liability. See 42 U.S.C. 9607(a), 9606. In 1986, the Superfund Amendments and Reauthorization Act (SARA) created express rights of contribution under CERCLA, 42 U.S.C. 9613(f), for a party that, if sued under CERCLA, would itself be liable under � 9607(a)-commonly known as a potentially responsible party (PRP). Section 9613(f)(3)(B) grants contribution rights to a “person who has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement.” More broadly, � 9613(f)(1) (CERCLA � 113(f)(1)) provides that “[a]ny person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of [CERCLA], during or following any civil action under section 9606 of this title or under section 9607(a) of this title.” For almost 20 years, most federal courts and CERCLA litigants ignored this “during or following” language in CERCLA � 113(f)(1). As a result, a PRP who “voluntarily” cleaned up a contaminated site in the absence of a government civil action under 42 U.S.C. 9606 or 9607(a) could maintain a federal contribution claim to recover some or, in rare cases, all of its cleanup costs from other PRPs under CERCLA � 113(f)(1). At the same time, a majority of federal appellate courts held that a PRP could not maintain a claim for cost recovery under 42 U.S.C. 9607(a) (CERCLA � 107(a)) unless the party could demonstrate that it was “innocent,” i.e., that it was not itself a PRP. See, e.g., Bedford Affiliates v. Sills, 156 F.3d 416, 423-24 (2d Cir. 1998); Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d 344, 349-56 (6th Cir. 1998); Pneumo Abex Corp. v. High Point, Thomasville & Denton R.R., 142 F.3d 769, 776 (4th Cir. 1998); Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1301-06 (9th Cir. 1997); New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1120-24 (3d Cir. 1997); Redwing Carriers Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 & n.7 (11th Cir. 1996); U.S. v. Colorado & E. R.R. Co., 50 F.3d 1530, 1534-36 (10th Cir. 1995); United Tech. Corp. v. Browning-Ferris Indus., 33 F.3d 96, 98-103 (1st Cir. 1994). Thus, a PRP that sought to recover the costs of performing a voluntary cleanup under CERCLA typically was limited to a contribution claim under CERCLA � 113(f)(1). In December 2004, the U.S. Supreme Court dramatically changed this legal landscape by significantly restricting the ability of a PRP to recover cleanup costs. In Cooper Industries Inc. v. Aviall Services Inc., 125 S. Ct. 577, 580 (2004), the court held that a private party who has not been sued by the government under CERCLA � 106 or � 107(a) could not obtain contribution under CERCLA � 113(f)(1) from another liable party based on CERCLA � 113(f)(1)’s “during or following” language. Notably, the Supreme Court also expressly declined to decide whether a noninnocent PRP could maintain a cost-recovery claim under CERCLA � 107(a) or whether that section provided a PRP an implied right of contribution. See id. 584-85, 586. In Aviall’s aftermath, many PRPs that had voluntarily cleaned up contaminated sites were left without any means to recover their costs under CERCLA � 113(f) and without any guidance as to whether recovery might be had under CERCLA � 107(a). One year after the Supreme Court decided Aviall, lower federal courts have wrestled with and revisited earlier decisions addressing whether and under what circumstances a PRP can maintain a claim under CERCLA � 107(a). This article highlights the key lower court decisions. Federal circuit courts To date, the 2d U.S. Circuit Court of Appeals is the only federal appellate court to tackle the issues left unresolved in Aviall. In Consolidated Edison Co. of New York Inc. v. UGI Utils. Inc., 423 F.3d 90 (2d Cir. 2005), Consolidated Edison (Con Ed) sought to recover cleanup costs incurred cleaning up several contaminated sites under the direction of the New York State Department of Environmental Conservation (NYSDEC). Con Ed represented to the court that it had expended in excess of $4 million on cleanup work and estimated “that the total amount to complete the investigation and cleanup may exceed $100 million.” Id. at 93. Because Con Ed had not been sued in a civil action under CERCLA �� 106 or 107, it effectively conceded its inability to bring suit under CERCLA � 113(f)(1) based on Aviall. Because it was performing this cleanup work under a voluntary cleanup agreement it entered into with the NYSDEC, Con Ed contended that it had standing to bring a contribution action under CERCLA � 113(f)(3)(B). The 2d Circuit rejected this argument, concluding that the voluntary cleanup agreement did not resolve Con Ed’s liability to the state of New York under CERCLA, but, at most, resolved liability to the state solely under state law. The court narrowly construed CERCLA � 113(f)(3)(B) and found the voluntary cleanup agreement’s resolution of state-law liability insufficient to constitute an administrative settlement: “We read section 113(f)(3)(B) to create a contribution right only when liability for CERCLA claims, rather than some broader category of legal claims, is resolved.” Id. at 95. Having eliminated Con Ed’s contribution claims under CERCLA � 1139(f), the court, sua sponte, considered whether Con Ed could maintain a claim for cost recovery under CERCLA � 107(a), an issue left unresolved in Aviall. The 2d Circuit noted that its own decision in Bedford Affiliates v. Sills, 156 F.3d 416 (2d Cir. 1998), seemingly barred a right of action under CERCLA � 107(a) for a party like Con Ed that, if sued under CERCLA, would itself be liable under � 107(a). However, the court decided to revisit the issue of whether and under what circumstances a PRP could bring suit under CERCLA � 107(a) in light of the Supreme Court’s statement in Aviall that the remedies provided in CERCLA �� 107(a) and 113(f)(1) are distinct: “This holding impels us to conclude that it no longer makes sense to view section 113(f)(1) as the means by which the section 107(a) cost recovery remedy is effected by parties that would themselves be liable if sued under section 107(a). Each of those sections, 107(a) and 113(f)(1), embodies a mechanism for cost recovery available to persons in different procedural circumstances.” Id. at 99. Broad construction of 107(a) The court therefore concluded that CERCLA � 107(a) “makes its cost recovery remedy available, in quite simple language, to any person that has incurred necessary costs of response, and nowhere does the plain language of section 107(a) require that the party seeking necessary costs of response be innocent of wrongdoing.” Id. at 100. The court’s broad construction of CERCLA � 107(a) ostensibly would permit a PRP to maintain a cost-recovery claim under any circumstances, including circumstances that would not permit a party to maintain a CERCLA contribution claim. The U.S. District Court for the Eastern District of Texas reached a similar result nearly six months earlier. See Vine Street LLC v. Keeling, 362 F. Supp. 2d 754, 763 (E.D. Texas 2005) (“[W]here a potentially responsible party cannot meet the specific requirements to state a claim for contribution under Section 113(f)(1), the Court concludes that a potentially responsible party can bring a claim under Section 107(a)(4)(B)”). The 2d Circuit, however, was unwilling to construe CERCLA � 107(a) that broadly. Instead, the court recognized a CERCLA � 107(a) claim solely for a PRP that has incurred response costs “voluntarily, not under a court or administrative order or judgment.” Id. at 100. This limited holding may have resulted from the court’s desire to avoid overruling its own precedent in Bedford Affiliates, which it distinguished as barring a PRP from maintaining a claim under CERCLA � 107(a) for response costs incurred under a consent order with a government agency. Thus, in the 2d Circuit, a PRP without recourse under CERCLA � 113(f)(1) or � 113(f)(3)(B) may maintain a claim under CERCLA � 107(a), but only if the party incurred response costs voluntarily. If a PRP that cannot satisfy CERCLA � 113(f)’s prerequisites incurs cleanup costs performing work under a court order or a consent or unilateral order entered into with or issued by a government agency, then CERCLA provides it with no remedy. The 2d Circuit is currently the only federal appellate court after Aviall to have squarely addressed whether and under what circumstances a PRP can maintain an action under CERCLA � 107(a). Shortly after Aviall was decided, the 10th Circuit was presented with an opportunity to revisit its prior decisions barring a PRP from maintaining a claim under CERCLA � 107(a). See Young v. U.S., 394 F.3d 858 (10th Cir. 2005). The court, however, expressly avoided the “difficult question” of whether the plaintiff was a CERCLA PRP, and therefore barred by precedent from bringing a cost-recovery claim under CERCLA � 107(a). In the 9th Circuit, a pending appeal should decide whether a PRP in that circuit may bring a claim for implied contribution under CERCLA � 107(a). See City of Rialto v. U.S. Dep’t of Defense, No. 05-56749 (9th Cir. filed Nov. 22, 2005), consolidated with Goodrich Corp. v. County of San Bernardino, No. 05-56694 (9th Cir. filed Nov. 8, 2005). Finally, the 3d Circuit will likely address whether and under what circumstances a PRP can utilize CERCLA � 107(a) in E.I. du Pont de Nemours & Co. v. U.S., No. 04-2096 (3d Cir. filed April 27, 2004). Federal district courts In the meantime, the battle over Aviall‘s effect on claims by PRPs under CERCLA continues in the U.S. district courts. And few district courts have been willing to revisit, much less reinterpret, their circuits’ prior decisions barring PRPs from maintaining a cost recovery action under CERCLA � 107(a). See, e.g., Boarhead Farm Agreement Group v. Advanced Envtl. Tech. Corp., 381 F. Supp. 2d 427, 435 & n.3 (E.D. Pa. 2005) (holding that a PRP’s proposed amendment adding a CERCLA � 107(a) claim was futile under the 3d Circuit’s decision in New Castle County); Mercury Mall Assocs. Inc. v. Nick’s Mkt. Inc., 368 F. Supp. 2d 513, 520 (E.D. Va. 2005) (dismissing a PRP’s implied-contribution suit under CERCLA � 107(a) in light of the 4th Circuit’s decision in Pneumo Abex Corp.); Blue Tee Corp. v. ASARCO Inc., No. 03-5011-CV-SW-FJG, 2005 U.S. Dist. Lexis 15360, at 18 (W.D. Mo. June 27, 2005) (holding that a PRP’s proposed amendment adding CERCLA � 107(a) claim was futile under the 8th Circuit’s decision in Dico Inc. v. Chemical Co., 340 F.3d 525 (8th Cir. 2003)); Atlantic Research Corp. v. U.S., No. 02-CV-1199, 2005 U.S. Dist. Lexis 20484, at 9-10 (W.D. Ark. June 1, 2005) (dismissing a PRP’s CERCLA � 107(a) claim in light of Dico). Thus, PRPs seeking to maintain a claim under CERCLA � 107(a) in the 3d, 4th and 8th circuits will find little support in the decisions of their district courts. In contrast, U.S. district courts in the 7th and 9th circuits have held that a PRP may maintain a claim under CERCLA � 107(a). However, district courts within each circuit remain split on this issue, and have reached conflicting constructions of their circuit’s prior precedent. In the 9th Circuit, a majority of U.S. district courts have held that a PRP has an implied right to seek contribution under CERCLA � 107(a). See Aggio v. Aggio, No. C 04-4357 PJH, 2005 WL 2277037, at 5 (N.D. Calif. Sept. 19, 2005); Ferguson v. Arcata Redwood Co., No. C 03-05632 SI, 2005 U.S. Dist. Lexis 18015, at 17-18 (N.D. Calif. Aug. 4, 2005); Koutros v. Goss-Jewett Co. of N. Ca. Inc., No. S-02-1520 FCD JFM, at 13-15 (E.D. Calif. June 16, 2005); Adobe Lumber Inc. v. Taecker, No. S-02-186 GEB GGH, 2005 U.S. Dist. Lexis 15374, at 5-6 (E.D. Calif. May 24, 2005). These courts interpret the 9th Circuit’s decisions in Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1301 (9th Cir. 1997), and Western Properties Service Corp. v. Shell Oil Co., 358 F.3d 678, 685 (9th Cir. 2004), as recognizing an implied right of contribution under CERCLA � 107(a) that survived SARA’s enactment of CERCLA � 113(f). In City of Rialto v. U.S. Department of Defense, No. EDCV 04-00079-VAP, 2005 U.S. Dist. Lexis 26941, at 11-19 (C.D. Calif. Aug. 16, 2005), however, the U.S. District Court for the Central District of California took a contrary view, refusing to permit the plaintiff to use CERCLA � 107(a) to circumvent the limitations on a contribution action under CERCLA � 113(f)(1), and granting judgment on the pleadings dismissing the � 107(a) claim. In Rialto, the court concluded that Pinal Creek and Western Properties did not recognize an implied right of contribution under CERCLA � 107(a) that was independent of � 113(f)(1), but, instead, held that � 113(f)(1) “‘governs,’ ‘regulates,’ and ‘qualifies’ a � 107(a) contribution action.” City of Rialto, 2005 U.S. Dist. Lexis 26941, at 11-12, 16. On Sept. 23, 2005, the court entered a separate judgment on that claim and stayed the action pending appeal. See Rialto, 2005 U.S. Dist. Lexis 25179 (C.D. Calif. Sept. 23, 2005). That appeal is pending before the 9th Circuit (see Rialto, No. 05-56749, consolidated with Goodrich, No. 05-56694), and should decide whether, post- Aviall, the circuit recognizes an implied right of contribution under CERCLA � 107(a). In the 7th Circuit, the U.S. district courts for the Eastern District of Wisconsin and the Northern District of Illinois have similarly reached conflicting conclusions on whether a PRP may bring a claim for implied contribution under CERCLA � 107(a). In Metropolitan Water Reclamation Dist. v. Lake River Corp., 365 F. Supp. 2d. 913, 917-18 (N.D. Ill. 2005), the court found such a right in � 107(a), despite acknowledging that the 7th Circuit “has yet to allow a claim made by a PRP to go forward on the basis of an implied right to contribution under � 107(a).” In contrast, the court in City of Waukesha v. Viacom International Inc., 362 F. Supp. 2d 1025, 1028 (E.D. Wis. 2005), held that CERCLA � 113(f) provides the sole means by which a PRP can recover response costs under CERCLA under 7th Circuit precedent. (citing Akzo Coatings Inc. v. Aigner Corp., 30 F.3d 761 (7th Cir. 1994)). See also In re FV Steel & Wire Co., 331 B.R. 385, 393 (E.D. Wis. 2005) (same). After sending mixed signals concerning its views on whether a PRP can maintain a contribution action under CERCLA � 107(a), the government recently staked out its position in a pending appeal before the 3d Circuit. See E.I. du Pont de Nemours & Co. There, the government argues that a PRP may not bring a contribution action under CERCLA � 107(a) or federal common law and thereby avoid the preconditions for a contribution claim under CERCLA � 113(f). See id., Br. for the Federal Appellees, at 24-55. As the above cases make clear, the battle lines are being drawn from circuit to circuit, and it seems certain that the U.S. Supreme Court will be called upon to finally decide whether a PRP can invoke CERCLA � 107(a) to recover its cleanup costs from another PRP. Until then, corporations and other entities performing voluntarily cleanup work will have to continue to look very carefully and closely at the decisions and the positions taken by parties in other cases in their respective circuits. Douglas S. Arnold and David M. Meezan are both partners in the environmental and land-use group at Atlanta’s Alston & Bird. Their respective practices concentrate on complex environmental and toxic tort litigation. They also represent clients in enforcement proceedings under federal and state environmental statutes.

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