New Ninth Circuit Decision Confirms that Parties Who Undertake Soil and Groundwater Cleanups Voluntarily or at the Request of State Agencies May Seek Recovery of Costs Via Superfund Lawsuits

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A new decision by the U.S. Court of Appeals for the Ninth Circuit holds that parties who undertake environmental investigations and cleanups absent a U.S. Environmental Protection Agency (EPA) or court decree or judgment compelling them to do so may recover costs from other potentially responsible parties (PRPs) under section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), better known as the federal “Superfund” statute.

Responding to the U.S. Supreme Court’s recent decision in United States v. Atlantic Research Corp., 127 S. Ct. 2331 (2007), on April 17, 2008, the Ninth Circuit confirmed that parties who incur CERCLA response costs—where the EPA has not issued them a section 106 order or where they have not been sued and have response costs imposed on them via a CERCLA consent decree or judgment—can nonetheless properly seek cost recovery under section 107(a) of the statute. Kotrous v. Goss-Jewett Co. No. 06-15162 (9th Cir. Apr. 17,

2008).

Since CERCLA’s passage in 1980, it has been clear that section 107(a) establishes that PRPs may be held liable for qualifying responses costs. Innocent parties and governments have successfully sued to impose joint and several liability under section 107(a) to recover costs incurred in the investigation and remediation (including monitoring) of sites at which hazardous substances had previously been released and polluted soils or groundwater. From 1980 to 1986, however, different judicial opinions emerged about whether or not noninnocent PRPs could use section 107(a) to seek contribution from other PRPs. In 1986, Congress addressed the issue by amending the statute to include section 113. CERCLA section 113(f) specifically provides that a PRP “may seek contribution from any other person who is liable or potentially liable.”

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