40 ELR 11198 ENVIRONMENTAL LAW REPORTER 12-2010
C O M M E N T S
Unresolved CERCLA Issues
After Atlantic Research and
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,3 the U.S. Supreme
Court provided long-sought guida nce 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 aga inst 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 a ssert a §113 contribution cla im, the usual remedy in
such cases. Burlington Northern addressed the standa rds 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 t he
full implications of the decision are not yet clear. At mini-
mum, Burlington Northern reiterated traditional principles
of common-law apportionment and reduced—but denitely
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 PR Ps?
And how does this aect 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.
3. 129 S. Ct. 1870, 39 ELR 20098 (2009).
claims? Fourth, what are the operative standa rds 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 a nd 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
e signicant litigation t hat 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 CERCL A
through the present. is is a major issue for the govern-
ment, in terms of funding cleanups, and it has also prompted
certain private par ties 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 inuential CER-
CLA decisions, United States v. Chem-Dyne Corp., CER-
CLA’s legislative history sug gests 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
(S.D. Ohio 1983).
6. Id. at 808.
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