Over a decade after the Supreme Court’s decision in Cooper Industries v. Aviall, the divide between CERCLA Section 107 cost recovery claims and Section 113 contribution claims remains unsettled. PRPs incurring response costs at Superfund sites would almost always prefer to seek reimbursement of those costs as a Section 107 claim given its more favorable statute of limitations and joint and several liability standard. However, the post-Aviall case law offers little clarity as to the precise dividing line between Section 107 and 113 claims.
The recent Michigan decision in Ford Motor Company v. Michigan Consolidated Gas Co., the 2014 Sixth Circuit decision in Hobart Corporation v. Waste Management of Ohio, Inc. and the 2014 Montana decision in ASARCO LLC v. Atlantic Richfield Company might suggest that post-Aviall courts favor treating claims for reimbursement of response costs incurred by PRPs pursuant to a consent order with the government as claims for contribution. However, the Seventh Circuit decision in Bernstein v. Blankert in 2012 went out of its way to say that a PRP which incurred response costs pursuant to a CERCLA consent order with the government still had a Section 107 claim at least until the consent decree work was finalized and the PRP had formally resolved its liability. To further confuse things, a federal court in New York last year ruled in HLP Properties, LLC v. Consolidated Edison Company that different PRPs seeking to recover response costs for the same site were in some instances entitled to bring Section 107 claims but in other instances Section 113 claims.
In the face of all this murkiness, my partner Seth Jaffe last week suggested in a blog post that perhaps it was time to kick CERCLA to the curb and start over. As attractive an option as that might be, it doesn’t seem likely to happen. So in the interim, it may be prudent for PRPs to plead alternatively under both Section 107 and Section 113 when they seek reimbursement of response costs. Certainty as to which cause of action applies is unlikely to be reached until either Congress or the Supreme Court addresses this issue — and that may never happen.