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A polluter that voluntarily takes on the duty to clean up a toxic waste site cannot later seek contributions from the federal government-even if the government itself was also a polluter at the site-the 3d U.S. Circuit Court of Appeals has ruled. But a dissenting judge argued that the majority was relying on two 3rd Circuit precedents that, she believes, have effectively been overruled by the U.S. Supreme Court, and that the outcome would discourage voluntary cleanups. “I am concerned that the effect of the majority’s opinion will be that parties will be reluctant to engage in voluntary cleanups for fear that they may not be able to obtain contribution,” Judge Dolores K. Sloviter wrote in her dissent in E.I. Dupont de Nemours Co. v. United States, No. 04-2096. “Spills that could be most efficaciously dealt with if cleaned up immediately will remain untouched while parties attempt to settle with the government,” she wrote. In the suit, three companies-Dupont, Conoco Inc. and Sporting Goods Properties Inc.-sought contributions from the government for cleanups at 15 sites. Each of the sites was owned or operated by the government at various times during World War I, World War II and the Korean War, the suit said, during which time the government was responsible for some contamination. U.S. District Judge William J. Martini of the District of New Jersey granted summary judgment in favor of the government, holding that a “responsible party” that conducts a voluntary, unsupervised cleanup cannot assert a claim for contribution. Sticking to precedents On appeal, lawyers for the three companies urged the 3d Circuit to reconsider two of its environmental law precedents- New Castle County v. Halliburton NUS Corp. and In re Matter of Reading Co.-in light of the U.S. Supreme Court’s 2004 decision in Cooper Industries Inc. v. Aviall Services Inc., 543 U.S. 157. But Judge Thomas L. Ambro of the 3d Circuit, in an opinion joined by visiting Judge Paul R. Michel of the U.S. Court of Appeals for the Federal Circuit, found that both of the 3d Circuit’s decisions remain good law. “ Cooper Industries did not explicitly or implicitly overrule our precedents; indeed, the Supreme Court expressly declined to consider the very questions at issue here,” Ambro wrote. Ambro acknowledged the case involved “a particularly convoluted area of the law.” He sketched the history of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the 1986 law that amended it, the Superfund Amendments and Reauthorization Act (SARA). After SARA was passed, Ambro said, the courts “retreated from implied causes of action” for contribution under CERCLA’s Section 107(a). Instead, they read Section 107 and the newly added Section 113 as establishing two “clearly distinct” remedies-”cost recovery” and “contribution,” respectively. In its 1997 decision in New Castle County, Ambro said, the 3d Circuit held that a cost recovery action may be brought only by “innocent parties” that have undertaken cleanups, and that an action brought by a “potentially responsible person” (PRP) must be brought as an action for contribution. The court’s rationale, Ambro said, was that since Section 107 imposes strict joint and several liability on all PRPs for the costs of cleanup, a PRP allowed to bring a cost recovery action under Section 107 against another PRP “could recoup all of its expenditures regardless of fault”-a result that the New Castle County court said “strains logic.” In Reading, the 3d Circuit held that a PRP also may not invoke the pre-SARA implied cause of action for contribution under Section 107. But in Cooper Industries, Ambro said, “the Supreme Court significantly altered this understanding.” Looking to the “plain language” of Section 113(f), the justices held that a pre-existing civil action-either pending or completed-must exist before a PRP could seek contribution from other PRPs. Ambro said Cooper Industries “left open the questions of whether a PRP may seek cost recovery under Section 107, and whether that section includes an implied cause of action for contribution on which a PRP may rely independently of Section 113.” Dupont lawyers insisted that the two decisions are in direct opposition to CERCLA’s broad remedial purpose, and that the 3d Circuit should recognize an implied cause of action for contribution, available to PRPs that voluntarily clean up contaminated sites, to fill the gaps that Cooper Industries recognized in Congress’ remedial scheme. Ambro said that argument would be better aimed at Congress than the courts.

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