US Supreme Court to Decide Whether a CERCLA PRP May Bring a § 9607 Claim

February 6, 2007

The United States Supreme Court will review whether a CERCLA potentially responsible party (“PRP”) may bring a contribution or cost recovery claim under 42 U.S.C. § 9607 when that PRP lacks a contribution claim under 42 U.S.C. § 9613(f)(1).  See U.S. v. Atlantic Research Corp., 2007 U.S. Lexis 1163 ( Jan. 19, 2007).  This case should resolve a 3-1 split among federal circuit courts on whether a party who volunteers to clean contaminated property may assert an implied or express action against other PRPs under 42 U.S.C. § 9607.

This is the first time that the United States Supreme Court has considered this issue since Cooper Indus. v. Aviall Servs., 543 U.S. 157 (2004).  The Aviall case created substantial uncertainty in CERCLA jurisprudence by eliminating the 42 U.S.C. § 9613(f)(1) remedy for any PRP who has not been subject to a prior civil action under CERCLA.  Effectively, the Aviall decision eliminated a contribution remedy for any party who cooperated with EPA authorities to clean a property without first being sued.

The Aviall decision strongly suggests that the United States Supreme Court will not imply a contribution remedy from 42 U.S.C. § 9607, but Aviall also expressly declined to decide the issue.  It remains to be seen whether the Court will find that a PRP nonetheless may assert an express remedy by the terms of 42 U.S.C. § 9607 itself or whether the addition of two new justices will alter the Court’s alignment on the issue of implied rights.

Since Aviall, three federal circuit courts have provided PRPs with an implied or express  § 9607 claim.  See Atlantic Research Corp. v. U.S. , 459 F.3d 827 (8th Cir. 2006); Metro. Water Reclam. Dist. v. North American Galvanizing & Coatings, 2007 U.S. App. Lexis 913 (7th Cir. Jan. 17, 2007; Consolidated Edison Co. v. UGI Utilities, 423 F.3d 90 (2d Cir. 2005).  In contrast, one federal circuit court has dismissed the § 9607 claim, as have both federal district courts within the Sixth Circuit who have considered the issues.  See DuPont v. U.S., 460 F.3d 515 (3d Cir. 2006); Carrier Corp. v. Piper, 2006 U.S. Dist. Lexis 80098 (W.D. Tenn. Sept. 30, 2006); ITT Indust. v. Borgwarner, Inc., 2006 U.S. Dist. Lexis 59877 (W.D. Mich. Aug. 22, 2006).  Indeed, there are almost 100 decisions split on these issues since Aviall was decided.

Attorneys at Frost Brown Todd presently are litigating several CERCLA cases concerning PRP rights, including what may become the first officially-reported decision by a federal court in the Sixth Circuit on the 42 U.S.C. § 9607 issues that are before the United States Supreme Court.  As a firm, Frost Brown Todd draws upon environmental attorneys in seven offices spanning the Midwest and Midsouth.  In the 25 years since CERCLA became law, we have litigated environmental issues in at least 36 states and continue to represent virtually every industry affected by the statute.

Should you have any questions on this or other CERCLA issues, please feel free to contact David Walulik (513) 651-6877 (dwalulik@fbtlaw.com) or Paul Casper (513) 651-6490 (pcasper@fbtlaw.com).  Mr. Walulik recently briefed and argued the issue of 42 U.S.C § 9607 PRP rights in a multi-million dollar CERCLA case and can explain how the evolving nature of CERCLA recovery can impact your business.

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