Unresolved CERCLA Issues After Atlantic Research and Burlington Northern

• Date: 01 December 2010
• Author: Kevin A. Gaynor, Benjamin S. Lippard, and Sean M. Lonnquist

40 ELR 11198 ENVIRONMENTAL LAW REPORTER 12-2010

C O M ME N TS

Unresolved CERCLA Issues

After Atlantic Research and

Burlington Northern

by Kevin A. Gaynor, Benjamin S. Lippard, and Sean M. Lonnquist

Kevin A. Gaynor is a Partner, Benjamin S. Lippard is Counsel, and Sean M. Lonnquist is an Associate at Vinson & Elkins LLP.

In two major Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA)1 opinions,

United States v. Atlantic Research, Inc.2 and Burlington

Northern & Santa Fe R.R. v. United States,3the U.S. Supreme

Court provided long-sought guidance for parties litigating

hazardous waste cleanup issues under CERCLA. Atlantic

Research addressed the right of certain potentially responsible

parties (PRPs) under CERCLA—those who had incurred

CERCLA response costs without being subject to prior liti-

gation or administrative action—to bring a §107 cost recov-

ery action against other allegedly liable parties. is issue

became critical when the Court’s 2004 Cooper Industries, Inc.

v. Aviall Services, Inc.4 decision held that such a party could

not assert a §113 contribution claim, the usual remedy in

such cases. Burlington Northern addressed the standards that

would govern “divisibility” of a CERCLA site—one mecha-

nism by which parties can avoid joint and several liability—as

well as the standards for “arranger liability” under CERCLA

in the context of sales of a useful product. Burlington North-

ern has widely been recognized as a setback for the aggressive

theories of joint and several liability often advanced by the

government in CERCLA enforcement actions, although the

full implications of the decision are not yet clear. At mini-

mum, Burlington Northern reiterated traditional principles

of common-law apportionment and reduced—but denitely

did not eliminate—the prospects for joint and several liabil-

ity to be imposed on parties at a CERCLA site.

is Article addresses some of the major issues that

remain open after Atlantic Research and Burlington Northern.

First, does Atlantic Research allow all PRPs to assert §107 cost

recovery claims against other PRPs, or only some limited cat-

egory of PRPs? Second, are PRPs asserting §107 claims enti-

tled to obtain joint and several liability against other PRPs?

And how does this aect the government at sites where it is

also a PRP? ird, does the contribution protection provided

to settling parties under CERCLA protect them from §107

1. 42 U.S.C. §§9601-9675, ELR S. CERCLA §§101-405.

2. 551 U.S. 128, 37 ELR 20139 (2007).

3. 129 S. Ct. 1870, 39 ELR 20098 (2009).

4. 543 U.S. 157, 34 ELR 20154 (2004).

claims? Fourth, what are the operative standards for estab-

lishing divisibility at a CERCLA site post-Burlington North-

ern? Fifth, can the government avoid limitations on joint and

several liability by showing that a PRP’s individual contribu-

tion would have required the same remedy if there had been

no other PRPs involved? Last, to what extent do limitations

on joint and several liability and a reinvigorated divisibility

defense impact the government’s ability to impose unilateral

administrative orders under §106 of CERCLA?

I. Overview of Joint and Several Liability

Under CERCLA

e signicant litigation that has surrounded many of the

issues considered in this Article has been driven by the

potential availability of joint and several liability in a §107

cost recovery action. Given the high costs of environmental

cleanup, and the reality that much of the environmental con-

tamination at particular CERCLA sites was caused by bank-

rupt or defunct companies, the issue of whether, and in what

circumstances, the remaining solvent defendants can be held

liable for contamination caused in part by others has been

a major source of disputes from the inception of CERCLA

through the present. is is a major issue for the govern-

ment, in terms of funding cleanups, and it has also prompted

certain private parties to pursue aggressive theories allowing

them to shift costs to other parties.

When CERCLA was originally passed, a reference to

“joint and several liability” was deleted from the statute.5 As

explained in one of the earliest and most inuential CER-

CLA decisions, United States v. Chem-Dyne Corp., CER-

CLA’s legislative history suggests that this term was deleted

“to avoid a mandatory legislative standard applicable in all

situations which might produce inequitable results in some

cases.”6 Rather, under CERCLA, the scope of liability is to

be “determined under common law principles, where a court

5. United States v. Chem-Dyne Corp.,572 F. Supp. 802, 806, 13 ELR 20986

(S.D. Ohio 1983).

6. Id. at 808.

Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.