A Good Deed May Go Unpunished: Parties That Voluntarily Clean Up Sites Can Sue for Cost Recovery Under CERCLA

In the first few years after CERCLA's passage, it was unclear whether a PRP that had cleaned up contaminated property could bring an action for cost recovery against other PRPs under '107. The question appeared to become moot after 1986, when Congress passed the Superfund Amendment and Reauthorization Act ('SARA'), which added a number of new provisions to CERCLA, including '113, a provision expressly allowing PRPs to assert claims for contribution against other PRPs. Following the SARA amendments, every federal circuit adopted the approach that, whether or not plaintiff PRPs who brought CERCLA actions asserted separate claims under '107 and '113, the claims were uniformly treated as contribution claims.

However, in Cooper Indus. v. Aviall Servs., 543 U.S. 157 (2004), the Supreme Court narrowly interpreted the statutory contribution right to apply only to PRPs that had actually been sued under CERCLA or entered into certain judicially approved or administrative settlements. As a result, whether PRPs that voluntarily undertook to clean up contaminated land could bring suit for cost recovery under CERCLA '107 ' a question that had basically lain dormant for nearly two decades ' was suddenly of primary concern to many voluntary remediators that viewed '107 as their sole route to financial recovery. A split developed among the Circuits. The Second, Seventh, and Eighth Circuits held that PRPs could assert CERCLA claims under '107(a); the Third Circuit said they could not.