No Right Of CERCLA Contribution For Potentially Responsible Parties Who Engage In Voluntary Cleanups
October, 2006
In E.I. DuPont de Nemours and Co. v. U.S., 2006 WL 2474339, the U.S. Court of Appeals for the Third Circuit held that contribution under CERCLA §113 for environmental cleanup costs is not available to potentially responsible parties (PRPs) who engage in voluntary environmental cleanups.
In DuPont, the plaintiffs were owners and operators of industrial facilities located throughout the Unites States who admitted that they were responsible for some of the hazardous waste contamination at these sites and voluntarily cleaned them. The sites had also been owned or operated by the United States at various times during World War I, World War II, and/or the Korean War. Alleging that the United States was also responsible for some part of the contamination, plaintiffs sought a ruling that the U.S. must contribute to a share of the clean up costs under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C.§ 9601 et seq.
The district court granted summary judgment for the government, and the Third Circuit affirmed. The Third Circuit reasoned that the intention of Congress in creating CERCLA § 113(f), CERCLA’s contribution provision, was to create an exclusive remedy and eliminate independent common law remedies of contribution. The court then refused to reconsider its holdings in previous cases and reiterated that a PRP who voluntarily cleans up a contaminated site may only seek contribution from other PRPs when it has been the subject of a civil action or has been adjudged liable as a result of a civil action. “[T]he import of Congress’ scheme (an express desire to oversee cleanups via settlements and other enforcement actions, the explicit promise of contribution as an incentive for PRPs to enter into negotiated cleanup agreements, and the desire for quality-control standards for safe, effective, and reliable cleanups) is consistent with the EPA’s wariness of wholly voluntary and unregulated cleanups.
* * * CERCLA’s purpose was never to encourage wholly unsupervised private remediation activities, but rather to facilitate government-sponsored cleanups.” Because plaintiffs here had voluntarily cleaned up the sites without being subject to an enforcement action or a negotiated clean up agreement, they were precluded from seeking contribution from the United States.
Learning Point:
This decision emphasizes the reward and preference for negotiated clean ups that are supervised by the EPA. A voluntary clean up without a negotiated consent decree or other agreement may be at the peril of a polluting party.
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