June 25, 2007
Superfund Cost Recovery and Contribution:
What to Expect After Atlantic Research & Aviall
On June 11, the Supreme Court unanimously held in United States v. Atlantic Research Corporation that private parties can bring cost recovery actions under CERCLA Section 107(a) even if they voluntarily cleaned up a site and could not bring a contribution action under Section 113(f). While many private parties breathed a sigh of relief, the decision leaves open major questions, including whether parties who have settled their CERCLA liabilities may be subject to new suits, how counterclaims under Section 113 may be brought, what avenues of recovery are available for PRPs that perform work pursuant to a consent decree or administrative order, and other issues.
In the wake of Aviall and Atlantic Research, the Supreme Court will likely not revisit CERCLA for some time. Our expert panel examined what the Court held in Atlantic Research and how Superfund contribution and cost recovery actions are likely to function in practice in the coming years.
Tom Mounteer, Paul Hastings LLP
William Hyatt, K&L Gates LLP
Jimmy Slaughter, Beveridge & Diamond PC
Ron Spritzer, Staff Attorney, Appellate Section, Environment and Natural Resources Division, U.S. Department of Justice