Richard Sieg

April 23, 2007

Atlantic Research Corp. argues today before the Supreme Court that it should be allowed to sue other potentially responsible parties (PRPs) for recovery of cleanup costs even if EPA has not forced it to cleanup the site. The Court must decide whether Atlantic Research may force the government or others to share in the costs. At stake for the Department of Defense (DOD) are hundreds of billion of dollars of environmental liabilities at the end of fiscal year 2006.

Atlantic Research used an Arkansas Superfund site to retrofit rocket motors under a federal contract with the DOD. The company's activities caused leakage of rocket propellant into soils and groundwater.

In 2004, the Court decided Cooper Industries v. Aviall and essentially invited this case. The Aviall court held that a PRP, who had not yet been sued for cleanup by the government, could not sue for contribution under Section 113(f). While Justices Ruth Bader Ginsburg and John Paul Stevens, in dissent, would have found in favor of contribution under Section 107, the Court refused to decide whether Section 107 offered an expressed or implied cause of action since the issue was not argued in the lower courts. Today, United States v. Atlantic Research Corp. places this issue squarely into the lap of the Supreme Court.

According to Atlantic Research's brief, the Court should follow the reasoning adopted by the Second, Seventh and Eighth Circuits "holding that PRPs voluntarily cleaning up contaminated sites have a viable [Section] 107(a)(4)(B) claim." This line of cases moved away from the "misconception" that relief under this section "is reserved exclusively for non-PRPs . . . ."

However, the government argues that such an interpretation is inconsistent with the structure and plain language of Section 107(a). Furthermore, the government attorneys argue that "[i]t would also render Section 113(f) essentially superfluous, negating Congress's decision to create an express and carefully delimited contribution remedy for PRPs, and frustrating Congress's clear intent to provide powerful incentives to encourage PRPs to settle voluntarily with the government and perform government-supervised cleanups."

The Eighth Circuit agreed with Atlantic Research, "finding that the Superfund law gives PRPs the right to seek contribution from others even if EPA has not taken enforcement action." According to Atlantic Research's brief, "[t]he court correctly concluded that to accept the government's claim that Section 113(f) provided the sole source of cost recovery for voluntary remediators would mean that [Superfund Amendments and Reauthorization Act (SARA)] withdrew the prior universally-recognized right of voluntary remediators to recover a portion of their response costs under Section 107(a)(4)(B), which not only had no factual support, but directly conflicted with the legislative intent underlying SARA . . . ."

This time around, Chief Justice Roberts and Justice Samuel Alito will weigh-in as the Court decides whether CERCLA Section 107 allows voluntary remediators to compel payment of cleanup costs from other responsible parties.

Sources:

Lucy Kafanov, Supreme Court to hear arguments over efforts to recover cleanup costs, Greenwire, Apr. 20, 2007, http://stevens.vermontlaw.edu:2069/Greenwire/print/2007/04/20/1.

Reply Brief for the United States, U.S. v. Atlantic Research Corp., appeal docketed, No. 06-562, 2007 WL 1130631 (Supreme Court Apr. 23, 2007).

Brief for Respondent Atlantic Research Corporation, U.S. v. Atlantic Research Corp., appeal docketed, No. 06-562, 2007 WL 1046709 (Supreme Court Apr. 23, 2007).

Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004).