Avoiding the Contribution 'Catch-22': CERCLA Administrative Orders for Cleanup Are Civil Actions

Date01 September 2016
Author
9-2016 NEWS & ANALYSIS 46 ELR 10791
Avoiding the
Contribution
“Catch-22”:
CERCLA
Administrative
Orders for
Cleanup Are Civil
Actions
by Alfred R. Light
Alfred Light is Professor of Law at
St. omas University School of Law.
Summary
Under CERCLA, nonsettling parties and EPA take
the position that the statute of limitations for a right
of contribution can be triggered whenever the agency
and a potentially responsible party sign an adminis-
trative order on consent (AOC). Although the overall
costs of the settlement are not set, this view is that the
statute of limitations expires three years from the sign-
ing of the order no matter how long it takes to f ully
comply with the order. is amounts to an AOC recip-
ient’s “Catch-22” and is an incorrect interpretation of
the statute. is Article concludes that, to the con-
trary, contribution under CERCLA does not depart
from the approach of most other contribution actions
in tort: e statute of limitations does not begin to
run until after actions called for in an administrative
order (AO) are completed or costs paid. is resolu-
tion, however, turns on the conclusion that all AOs
for cleanup under CERCLA §106 are “civil actions
within the meaning of CERCLA §113(f)(1).
The right of contribution is supposed to encourage
settlement.1 W here a plainti sues one of several
defendants who are jointly and severally liable to
the plainti, a defendant may decide to settle with the
plainti for the plainti’s entire loss or for a signicant
amount of the relief sought if, and only if, the defendant
can obtain reimbursement from other liable defendants for
amounts above the settling defendant’s “fair share” of that
relief.2 e absence of the defendant’s right of contribu-
tion is a disincentive to its settlement with the plainti for
more than its fair share.3 In the absence of contribution, it
is more likely that t he plainti may as a practical matter
have to pursue many of the liable defendants, even though
each of them may be legally liable for the full amount of
the relief sought.4 In other words, joint and several liability
does not work well a s a compensation system unless it is
accompanied by a right of contribution among the jointly
and severally liable defendants.5
Where there is a right of contribution, when can a
defendant sue in contribution? Under the Federal Rules
of Civil Procedure, the defendant may sue during the
plainti’s suit against the defendant, either through cross-
claims against other defendants sued by the plainti or via
1. See generally Contribution Among Joint Tortfeasors as Aected by Settle-
ment With Injured Party by One or More Tortfeasors, 17 A.L.R. 6th
(2015).
2. Uniform Comparative Fault Act, §1(b), 12 U.L.A. C P.  R.
L 43 (1988) (“Fault” is “acts or omissions that are in any measure neg-
ligent or reckless ... or that subject a person to strict tort liability, [and]
unreasonable failure to avoid an injury or to mitigate damages.”); United
States v. Atlantic Research Corp., 551 U.S. 128, 138, 37 ELR 20139 (2007)
(quoting Black’s Law Dictionary dening contribution as a “tortfeasor’s right
to collect from others responsible for the same tort after the tortfeasor has
paid more than his or her proportionate share, the shares being determined
as a percentage of fault”).
3. In advocating the addition of a right of contribution to the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA) in
1985, the government testied, “e fairness of a joint and several liabil-
ity scheme depends upon the clear availability of contribution. Moreover,
responsible parties need both a right of contribution and contribution
protection to bring all other responsible parties to the settlement table.” A
Bill to Extend and Amend the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 and for Other Purposes: Hearings
Before the Senate Committee on the Judiciary on S. 51, 99th Cong. 1, 52
(1985) (statement of F. Henry Habicht II, Assistant Attorney General, Land
and Natural Resources Division, U.S. Department of Justice).
4. Before CERCLA was amended in 1986 to add an express right of contribu-
tion, potentially responsible parties (PRPs) argued that the private cause of
action in §9607(a)(4)(B) provided the right of contribution. See United
States v. New Castle Cnty., 642 F. Supp. 1258, 1265-68, 16 ELR 21007 (D.
Del. 1986); Colorado v. ASARCO, Inc. 608 F. Supp. 1484, 1486-90, 15
ELR 20523 (D. Colo. 1985). e U.S. Environmental Protection Agency
(EPA) supported this interpretation. See Alfred R. Light, CERCLA’s Con-
  , 30
N R  E’ 42, 42-43 (2015); Alfred R. Light, 
  -
CLA, 37 E: U-C D E’  P’ J. 197, 204-09 (2014).
5. Cf. Richard A. Epstein, Two Fallacies in the Law of Joint Torts, 73 G. L.J.
1377 (1985) (suggesting that the joint and several liability standard itself
increases the total level of pollution “beyond what it would be if each rm
were held responsible for its pro rate share of the loss”).
Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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