Superfund Law: 11th Circuit Holds That a Party with a 113 Contribution Claim Cannot Bring a 107(a) Cost Recovery Claim

In United States v Solutia, Inc., 2012 WL 695007 (11th Cir. 2012), the Eleventh Circuit Court of Appeals held that a resposible party who remediated a Superfund Site pursuant to a consent order (i.e. was not a volunteer) could bring a contribution claim against other potentially responsible parties (PRPs), but could not bring a section 107(a) cost recovery action against other PRPs.  In so doing, the Court addressed a question regarding the relationship between sections 107 and 113 of the Superfund Law (42 U.S.C 9607 and 9613) that was expressly left open in the Supreme Court’s decision in United States v Atlantic Research, 551 U.S 129, 139 (2007).

The case arose out of the remediation of a Superfund Site in Alabama.  In 2002, EPA brought an enforcement action against Solutia to require it to remediate two areas known as the Anniston PCB Site and the Anniston Lead Site.  The enforcement action was resolved with a partial consent decree, which required Solutia to finance and perform specified cleanup operations.  In June of 2003, Solutia filed an action against other PRPs seeking to recover costs and stating causes of action under both sections 107 and 113.  Defendants moved for summary judgment on the section 107 claim and the court, after analyzing the relationship between sections 107 and 113, granted the motion for summary judgment, reasoning that a party who remediates pursuant to a consent decree, cannot have a section 107 claim because to permit such a claim would undermine the role of section 113 in the statute.  Private party section 107 claims, the court explained, can only be brought by voluntary remediators.

The relationship between sections 107 and 113 has been the source of two Supreme Court decisions, Cooper Industries, Inc. v Aviall Services, Inc., 543 U.S. 157 (2004) and the Atlantic Research decsion in 2007.  In both, the Supreme Court concluded that the way most federal courts were interpreting the sections was not consistent with the statute.  In Atlantic Research, the Court spoke at length about the need to give effect to every part of the statute.  The 11th Circuit’s decision in Solutia could be setting course for another Supreme Court decision that counsels the courts to read the statute.  The distinction between a volunteer and a person forced to clean up is nowhere in the statute.  When the Atlantic Research Court analyzed the statute, it stated that section 107 is for people who have incurred response costs and section 113 is for people who have reimbursed someone else for response costs.  However, both the Cooper Industries and Atlantic Research decisions dealt with volunteers.  Thus, we can see why a court might think that being a volunteer is important.  The relationship between the two provisions is dealt with in my article entitled, “United States v Atlantic Research Corp.:  Who Should Pay to Clean Up Inactive Hazardous Waste Sites, 19 Duke Environmental Law and Policy Forum 119 (2008), which concludes that the statute does not support any special status for a volunteer.

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