Section 15 Private Cause of Action

• Library: Environmental Law 2007 Supp

In Cooper Industries, Inc. v. Aviall Services, Inc.,543 U.S. 157, 166 (2004), the United States Supreme Court reversed decades of CERCLA jurisprudence by holding that a private party that had not been sued under § 106 or 107 was not eligible to bring a contribution action under § 113(f)(1). In cases decided before Cooper Industries, a majority of circuit courts of appeals had held that a potentially responsible person (PRP) was precluded from bringing a § 107(a) cost recovery action and that a PRP’s sole remedy was a contribution action under § 113(f). See:

• United Techs. Corp. v. Browning-Ferris Indus. Inc.
  33 F.3d 96, 101 (1^st Cir. 1994)

• New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1122 (3^rd Cir. 1997)

• Pneumo Abex Corp. v. High Point, Thomasville & Denton R.R. Co., 142 F.3d 769, 776 (4^th Cir. 1998)

• Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672 (5^th Cir. 1989) (dictum)

• Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d 344, 350–51 (6^th Cir. 1998)

• Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 764 (7^th Cir. 1994)

• Dico, Inc. v. Amoco Oil Co., 340 F.3d 525, 530–31 (8^th Cir. 2003)

• Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1301–03 (9^th Cir. 1997)

• United States v. Colo. & E. R.R. Co., 50 F.3d 1530, 1536 (10^th Cir. 1995)

• Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11^th Cir. 1996)

Note: As the Eighth Circuit has explained:

The PRP term has been developed by the courts. It is not found in CERCLA. The term refers ‘‘to a party who may be covered by the statute at the time the party is sued under the statute.” [But] [a]fter Aviall, the term has been weakened and ‘‘may be read to confer on a party that has not been held liable a legal status that it should not bear.”

See Atl. Research Corp. v. United States, 459 F.3d 827, 831 n.6 (8^th Cir. 2006) (citations omitted). The authors agree with the Eighth Circuit’s decision to decline to use this term and note that the term is used throughout this chapter only to the extent that it is used in the cases discussed.

The combination of these rulings left PRPs that had incurred response costs voluntarily or under a unilateral administrative order without a clear remedy to recover those costs from other PRPs. In response, PRPs adopted two primary arguments to restore their right of contribution:

1. Despite prior precedent, a PRP should be able to use § 107 to recover its response costs, either in a cost recovery action or in an implied right of contribution under § 107

2. A unilateral administrative order is a “civil action” and is sufficient to trigger the right of contribution under §113(f)(1)

Courts’ reactions to the first argument have been varied. A number of courts, including the Second and Eighth Circuits, have allowed PRPs to proceed with an implied right of contribution under § 107(a). See:

• Atl. Research Corp., 459 F.3d at 837

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