SUPREME COURT ASKED TO RESOLVE KEY CERCLA CONTRIBUTION ISSUE

     The April 21, 2006 edition of BNA's Environmental Reporter (subscription site) contains two important updates on the evolving law as to when a "Responsible Party" can bring a lawsuit for contribution under CERCLA:

Court Allows Use of CERCLA Section 107 As Vehicl to Sue Others for Contribution

The U.S. District Court for the District of Oregon joined the ranks of a growing number of federal courts March 14, holding that a potentially responsible party that voluntarily cleans up its property can sue under Section 107 of the superfund law (McDonald v. Sun Oil Co., D. Or., No. 03-1504, 3/14/06).

Over the last 16 months, more and more federal courts have read Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act broadly to mitigate the fallout of the U.S. Supreme Court's ruling in Cooper Industries v. Aviall, 543 U.S. 157, 59 ERC 1545 (2004).

In Cooper Industries, the Supreme Court ruled that a potentially responsible party (PRP) can file a contribution action against another PRP under Section 113 of CERCLA only if a "civil action" or a settlement has been filed previously (35 ER 2581, 12/17/04 ).

Supreme Court Asked to Review Ruling Allowing Section 107 Cost Recovery Lawsuit

UGI Utilities Inc. petitioned the U.S. Supreme Court April 17 to review an appeals court ruling that a private party may bring a superfund cost recovery action against other potentially liable parties after it has voluntarily cleaned up hazardous waste (UGI Utilities Inc. v. Consolidated Edison Co., U.S., docket number unavailable, 4/17/06). The high court was asked to review a U.S. Court of Appeals for the Second Circuit decision, which was the first federal appeals court decision to address cost recovery under Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act since the Supreme Court decided Cooper Industries v. Aviall, 543 U.S. 157, 59 ERC 1545 (2004) (35 ER 2581, 12/17/04 ).

In Cooper Industries, the Supreme Court held that only potentially responsible parties that have been sued or have otherwise resolved their superfund liability with the government may bring a Section 113 contribution claim for costs incurred. However, the decision left open the question of whether a PRP may pursue a 107(a) action against other PRPs, including as an alternative remedy to a barred Section 113 claim.

***

The Second Circuit decision said that after Cooper Industries, it "no longer makes sense" to view Section 113 as the sole means by which PRPs can seek to recover from other PRPs (Consolidated Industries Co. v. UGI Utilities Inc., 423 F.3d 90, 61 ERC 1321 (2d Cir. 2005) (36 ER 1954, 9/23/05 ).

Comments

[Roossangel]

Hey, I thought kings and qeenus were gotten rid of on 3/22/2010.I guess it is acceptable to have a Metis who is a state senator and the chairman of Turtle Mountain tribe. I don't approve of a chairman who is a retired BIA official and wears a fake headdress with rabbit skins from it and say's we don't have a position for a chief in our tribe. What a joke! I question if some of our tribal leaders are acually U.S. citizens. (many have come from Canada illegally) Also, do any of them actually have the blood quantum to actually be an Indian. And no , the chieftainship status isn't directed towards me .and if it was, my fellow relatives would have to approve that. I would accept otherwise because I have taken on roles to be one. It would be interesting if I requested an enrollment audit (and it will take years) I know the referendum would be turned down at election time. If that became the case, then I would have to address congress to do it.

[Impotence causes]

Very good day to everyone. My name is James, I would firstly like to thank the creators of the blog for allowing me to express my opinion. Any friend or acquaintance I would recommend this article, is great, effective, comprehensive and dynamic. I was very young I have always admired people who are dedicated to reporting and writing on public issues, I think they are very special, just the fact that they are dedicated to publishing articles for everybody and that is admirable.

[dragonball gold]

Utilities Inc., 423 F.3d 90, 61 ERC 1321 (2d Cir. 2005) (36 ER 1954, 9/23/05 ).