Friday, October 27, 2006

Dingell Requests Clarification On CERCLA Liability Issues

Oct 23: U.S. Representative John Dingell (D-MI), Ranking Member of the House Energy and Commerce Committee, in a letter to U.S. EPA Administrator Stephen Johnson, has requested clarification of the case law and EPA's position relating to CERCLA responsible party liability issues since the U.S. Supreme Court decided in Cooper Industries, Inc. v. Aviall Services, Inc. 125 S. Ct, 577 (2004) [See WIMS 12/14/04]. In addition to the letter, Representative Dingell includes a list of 14 questions for Administrator Johnson and requests a response by November 9, 2006. In his letter, Dingell writes:

"On December 13, 2004, the Supreme Court decided in Cooper Industries, Inc. v. Aviall Services, Inc. 125 S. Ct, 577 (2004) that a private party may not obtain contribution from other liable parties under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (Section 113 (f)(1)) unless the private party has been sued under Section 106 or Section 107(a) of CERCLA. The ruling reversed a decision by the U.S. Court of Appeals for the Fifth Circuit that held parties who initiate private cleanups may bring contribution suits irrespective of prior enforcement action. The Supreme Court reserved judgment on the question whether liable parties who are not subject to an action under Section 107 may instead seek relief under Section 107(a)(4)(B).

"Since the Supreme Court decision in Cooper Industries v. Aviall there have been several United States Circuit Court of Appeals decisions and numerous district courts that have directly addressed the availability of a CERCLA subsection 107(a) contribution claim to potentially responsible parties who have voluntarily incurred cleanup costs. I am aware of two Circuit Court of Appeals decisions, Consolidated Edison Company of New York, Inc. v. UGI Utilities, Inc., 423 F.3d 90 (2nd Cir., 2005) and Atlantic Research Corp. v. United States of America (8th Cir., August 11, 2006) [
See WIMS 8/14/06], that held a liable party may, under appropriate procedural circumstances, bring a cost recovery action under Section 107. These two Circuit Courts concluded that it no longer made sense to view Section 113 as a liable party's exclusive remedy. Several weeks after the Eighth Circuit's decision in Atlantic Research Corp., the United States Court of Appeals for the Third Circuit in El Dupont DeNemours and Company and Conoco, Inc., et al, v. United States of America (August 29, 2006) [See WIMS 9/12/06] refused to imply a cause of action for contribution under Section 107 or the common law available to potentially responsible parties engaged in sua sponte voluntary cleanups.

"I would like to obtain additional information relating to the case law in the other circuits with respect to the availability of Section 107 for contribution as well as the Environmental Protection Agency's (EPA) view on the impact of the decision in Cooper Industries v. Aviall on the overall cleanup program and the EPA's reaction to proposed legislative language to overturn the Supreme Court Decision in Cooper Industries v. Aviall."

Access the letter and questions to Administrator Johnson (click here). Access the complete Cooper Industries v. Aviall S.Ct. opinion (click here). [*Remed]