Section 107 Cost Recovery Versus §113 Contribution Claims

AuthorAllison Rumsey/Michael Daneker
Page 33
III. Section 107 Cost Recovery
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, a nd 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 a s 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
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 release s 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 completion of the removal
action.8 For a remedial ac tion, 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 yea rs of a related removal
action, a plainti may recover the removal costs in t he same action as t he remedial costs, a nd 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.
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).
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.

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