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

• Date: 01 September 2016

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.