Jeffrey Gaba, ‘The Private Causes of Action Under CERCLA: Navigating the Intersection of Sections 107(a) and 113(f)’

The Comprehensive Environmental, Response, Compensation, and Liability Act (CERCLA) provides three distinct ‘private’ causes of action that allow parties to recover all or part of their cleanup costs from ‘potentially responsible parties’. Section 107(a)(1)(B) provides a ‘direct’ right of cost recovery. Sections 113(f)(1) and 113(f)(3)(B) provide a right of contribution following a CERCLA civil action or certain judicial or administrative settlements. Determination of the appropriate cause of action has consequences for the standard of liability, the statute of limitations, and the protection afforded parties who settle with the government.

The relationship among these causes of action has been the source of considerable confusion. Two Supreme Court cases, Cooper Industries, Inc v Aviall Services, Inc and United States v Atlantic Research Corp have identified certain situations in which the causes of action exclusively apply, but the Court did not resolve which cause or causes of action apply in a number of other common situations. These include cases in which costs are directly incurred as an obligation under an administrative or judicial settlement or following a CERCLA cleanup order.

This Article provides a rational approach to allocating rights of cost recovery among sections 107(a), 113(f)(1) and 113(f)(3)(B) that is consistent both with the language of CERCLA and the Supreme Court’s analysis in Cooper and Atlantic Research. First, the Article evaluates the rather unsatisfying rationales asserted by the US courts of appeals for determining whether the causes of action under 107(a) and 113(f) are mutually exclusive. The Article suggests that the proper resolution focuses on whether there is textual overlap among the sections. Quite simply, in the event of textual overlap, standard canons of construction and the express text of section 113(f)(3)(B), not discussed by any of the courts of appeals, suggest that 113(f) provides the exclusive cause of action for cost recovery under CERCLA.

Second, the Article evaluates the textual scope of the causes of action and whether costs incurred in a variety of common situations thus fall within the scope of 107(a)(4)(B) or 113(f). Both the specific text and the Supreme Court’s approach, particularly its focus on the ‘traditional’ meaning of contribution, can help resolve these issues. The result of this analysis is a straightforward application of the statute that results in a consistent and coherent structure to CERCLA that both provides incentives for cleanup and helps ensure that the polluter pays.

Gaba, Jeffrey M, The Private Causes of Action Under CERCLA: Navigating the Intersection of Sections 107(a) and 113(f) (August 1, 2015). 5 Michigan Journal of Environmental and Administrative Law 117 (2015).

First posted 2016-01-22 06:50:42

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