Section 107 Cost Recovery Versus §113 Contribution Claims

• Author: Allison Rumsey/Michael Daneker
• Pages: 33-40

Page 33

III.Section 107CostRecovery

Versus §113 Contribution Claims

Once a site cleanup is under way or completed, the Environmental Protection Agency (EPA) or the poten-

tially responsible parties (PRPs), depending on who carried out the work, typically will attempt to recoup

its costs from other responsible parties. ere are two statutory provisions by which to do this, as discussed

below. e Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or

“Superfund”) contains two principal provisions permitting private recovery of funds expended in relation

to Superfund sites—§107(a), for cost recovery, and §113(f), for contribution.

A. What Is a §107 Claim?

Section 107(a) creates a cause of action permitting a party to recover response costs from current and for-

mer owners and operators, arrangers of disposal or treatment, and transporters.1 e EPA, states, and tribal

governments, as well as private parties, may utilize §107(a), although their rights are not identical. Under

CERCLA §107(a)(4)(A), the U.S. government and Indian tribes may recover “all costs of removal or reme-

dial action . . . not inconsistent with the national contingency plan.”2 Under CERCLA §107(a)(4)(B), on

the other hand, private parties may recover response costs “consistent with the national contingency plan.”3

Interpreting these provisions, courts have held that the government benets from a presumption that its

costs were incurred in a manner consistent with the national contingency plan, but private plaintis bea r

the burden of proving consistency.4 PRPs as well as “innocent” parties are permitted to bring suit under

§107(a)(4)(B).5

e statute of limitations for §107 claims is determined by the provisions of §113 and provides diering

periods depending on whether the cleanup involved is considered a remedial or a removal action.6 Removal

actions generally are relatively short-term responses designed to address immediate releases or threats of

release; remedial actions tend to be longer-term, higher-cost, permanent remedies.7 For a removal action,

a §107 cost recovery-action generally may be brought within three years of the completionof the removal

action.8 For a remedial action, a §107 action may be brought within six years of the initiation of physical

construction.9 In circumstances where a remedial action follows within three years of a related removal

action, a plainti may recover the removal costs in the same action as the remedial costs, and the six-year

statute of limitations for the remedial action governs.10

1. See discussion of categories of covered persons supra Part I.

2. 42 U.S.C. §9607(a)(4)(A); see discussion of national contingency plan in infra Part IV.B.

3. 42 U.S.C. §9606(a)(4)(B).

4. Coeur D’Alene Tribe v. Asarco, Inc., 280 F. Supp. 2d 1094, 1121 (D. Idaho 2003); United States v. W.R. Grace & Co., 280 F. Supp. 2d 1149,

1179 (D. Mont. 2003); United States v. Domenic Lombardi Realty, Inc., 290 F. Supp. 2d 198, 212 (D.R.I. 2003).

5. Resolving an issue that previously had deed easy resolution, the Supreme Court ruled in 2007 that PRPs are not barred from seeking recovery

under §107(a). See United States v. Atl. Research Corp., 551 U.S. 128, 135 (2007).

6. See42 U.S.C. §9613(g)(2).

7. See id. §9601(23)–(24) (dening removal and remedial); Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594, 608 (8th Cir. 2011), cert.

denied, 132 S. Ct. 244 (2011) (upholding determination that “the ongoing activities the City performed for the provision of alternative water

supplies constituted a remedial action, not a removal action under CERCLA”).

8. See 42 U.S.C. §9613(g)(2)(A).

9. See id. §9613(g)(2)(B).

10. See id.