Given the uncertainties after Cooper Industries v. Aviall about what cause of action a PRP has for recovering response costs under CERCLA, many parties take the prudent course of pleading claims under both for cost recovery and for contribution. A federal court in South Carolina in PCS Nitrogen, Inc. v. Ross Develop Corporation recently held that when a PRP can satisfy the pleading requirements of both a cost recovery claim and a contribution claim it is limited to only a contribution claim.
In that case, a PRP performed certain response work pursuant to a Section 106(a) unilateral order and sought to recovery its costs under both Section 107(a) and Section 113(f). The court reasoned that the PRP had a potential cause of action under Section 107(a) since it had incurred necessary response costs and also had a potential cause of action for contribution since a unilateral order was the functional equivalent of a civil action under Section 106. The court then ruled that whenever a party may properly bring a contribution action, it is precluded from bringing a cost recovery action as well:
if [the PRP] has met one of the statutory triggers for a § 113 action, then [the PRP] may proceed under only § 113 and not under § 107(a).
While a consensus is gradually growing in the case law as to what facts will permit a CERCLA contribution claim, there remains considerable uncertainty . Until that uncertainty is resolved, the prudent course remains for a party to plead a claim for both cost recovery and contribution.