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Classifying CERCLA claims: a critique of Pinal Creek v. Newmont Mining.

I. INTRODUCTION

Last year, in Pinal Creek Group v. Newmont Mining Corp. (Pinal Creek),(1) the Ninth Circuit decided an important issue of hazardous waste law--what cause of action is available to a potentially responsible party (PRP) who has cleaned up a hazardous waste site and wishes to recover some of the cleanup costs from other PRPs. The statute governing the issue is the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).(2) Despite what appears to be a straightforward statutory scheme, federal courts differ over whether section 107, providing a right to recover response costs,(3) or section 113, providing a right to contribution,(4) is the correct cause of action where the plaintiff is also potentially responsible for site contamination.

Pinal Creek arose from an effort to remediate the Pinal Creek Drainage Basin, located in Central Arizona, one hundred kilometers east of Phoenix.(5) Copper has been mined in the basin for over a century, first in underground mines, and beginning in 1948, in open-pit mines. In 1984, the United States Geological Survey began researching acidic metal contamination in the basin. Their initial efforts focused on a plume of acidic groundwater in the regional alluvium, but expanded to investigations of streamflow contamination and transport interactions between streamflow and shallow groundwater. In the late 1980s, the basin was placed in the Water Quality Assurance Revolving Fund, a state version of the federal Superfund program.

At the same time, three mining companies formed the Pinal Creek Group to reduce contaminant sources and to remediate existing contamination. In the process, they incurred over $1 million in response costs without any help from other mining companies that contributed to the waste. After their requests for help were denied, the Pinal Creek Group sued in federal district court to recover response costs under subsection 107(a) and contribution under section 113.(6)

Sections 107 and 113, however, provide two different causes of action. In particular, PRPs who have incurred substantial cleanup costs want to use section 107's cost recovery action to impose joint and several liability on other PRPs, and to make the defendants assert a contribution counterclaim against them for their proportionate shares of liability. To illustrate this, a corporation that has incurred $1 million cleaning up a contaminated river could sue in cost recovery and shift that entire amount onto other corporations that contributed to the contamination. The defendant corporations would then have to counterclaim or bring a contribution suit under section 113 in the amount for which the plaintiff corporation was liable.

On the other hand, defendant-PRPs want courts to limit plaintiff-PRPs to contribution actions, where each PRP's liability is several, extending only to each party's share of the costs. Thus, a corporation that voluntarily cleaned up a site could only ask for the amount for which it could prove other corporations were liable. It could not ask for the total amount of costs incurred. Although this approach will probably result in a similar outcome as a cost recovery action coupled with a contribution counterclaim, there may be some important differences.

Most importantly, the limitations periods for the two causes of action are different. The statute of limitations for a contribution action is only three years,(7) whereas the period for a cost recovery action can be up to six years.(8) The events triggering each period are also different. A cost recovery action for a remedial action accrues from the date of on-site construction.(9) A contribution action, on the other hand, accrues from the date of the judgment order, administration order, or settlement agreement.(10) If a PRP sues under cost recovery, it is clear when the limitations period begins. However, if a PRP sues under contribution and none of the events in subsection 113(g) have occurred, then the statute of limitations arguably never begins to run for that PRP.

In addition, the burdens of proof are different for the two causes of action. With joint and several liability, the burden is on the defendant.(11) The defendant can only escape strict liability by showing that his harm is divisible.(12) Several liability, however, imposes the burden on one PRP to show the amount of damages for which another PRP is responsible,(13) Given these differences between the two causes of action, it is easy to see how PRPs would strongly advocate one action or the other, depending on whether they were the plaintiff or defendant. The placement of the burden of proof could ultimately decide the case.

The courts have also advanced strong arguments concerning whether liability should stem from section 107, section 113, or both. The Seventh Circuit and a number of district courts have allowed PRPs to bring cost recovery actions.(14) However, the trend among the federal circuit courts is to limit PRPs to contribution claims, or to view the sections as working in conjunction, but essentially allocate liability like a contribution claim.(15) In Pinal Creek, the Ninth Circuit followed the circuit court trend in holding that section 107 determines liability while section 113 apportions that liability among responsible parties,(16) essentially limiting a PRP to a contribution action.(17)

This Chapter evaluates the analysis used by the Ninth Circuit and the ultimate conclusion it reached. To begin with, Part II explains how the problem of classifying a PRP's claim for response costs arose. Part III then surveys the varying solutions courts have adopted to resolve this problem. Part IV of this Chapter gives a summary of the Ninth Circuit's analysis and conclusion in Pinal Creek. Through an in-depth analysis in Part V, this Chapter concludes that PRPs such as the Pinal Creek Group should be allowed to bring cost recovery actions, but subject to contribution actions or counterclaims.

The justification for this conclusion is that a party whose liability has not been determined, as section 113 requires, cannot sue for contribution. Thus, even if a party is a PRP, it must bring a section 107 action and defendants must in turn bring a section 113 contribution counterclaim or action in order to recoup costs above their share. The statutory language of section 113 is the best support for this conclusion. It implies that a judgment order, administrative order, or judicially approved settlement decree must establish liability before a party can shift that liability onto someone else. Traditional notions of contribution law, and the policy goals behind CERCLA, support this conclusion as well.

II. ORIGINS OF THE PROBLEM OF PRP LIABILITY

A. CERCLA's Joint and Several Liability

In 1980, Congress enacted CERCLA in order to clean up hazardous waste sites quickly,(18) In furthering this goal, Congress created a cause of action in section 107 which allows any person who cleaned up a site to recoup "any ... necessary costs of response incurred by any other person" so long as the costs are consistent with the national contingency plan.(19) Courts have interpreted this section as allowing for the imposition of joint and several liability on any one of the numerous parties Congress designated, unless that party can distinguish its harm from others.(20) Given the difficulty in dividing harm when many sources contributed to a site's contamination over many years before a right of contribution was created, a court could impose the total cost of cleanup on one party.(21)

B. The Emergence of Contribution

To remedy the harsh effects of joint and several liability, courts began creating contribution rights under section 107 of the 1980 version of CERCLA.(22) CERCLA defendants and the government both argued for a right to seek some degree of reimbursement, and courts generally found such a right.(23) The courts justified this implied right to contribution by first looking to the language of subsection 107(a)(4)(b), which enables a PRP to recover its response costs from other PRPs. Courts then looked to subsection 107(e), which preserves any cause of action that a PRP has against any other person.(24) Other courts relied on the federal common law of contribution as justification because Congress clearly implied such authority in CERCLA's legislative history.(25) Some courts relied on CERCLA's goal of promoting settlement as justification for the implied right.(26) Finally, some courts looked to the Restatement (Second) of Torts or simply relied on their discretionary power to equitably apportion damages.(27)

Congress codified the judicial recognition of an implied right of contribution under section 107 by expressly adopting a contribution action in subsection 113(f) of the 1986 Superfund Amendments and Reauthorization Act (SARA).(28) That subsection allows any person to seek "contribution from any other person who is liable or potentially liable under section 107(a) of this title, during or following any civil action under section 106 of this title or under section 107(a) of this title."(29) It also allows any settling party, one "who has resolved its liability to the United States or a State for ... some or all of the costs of [a response] action in an administrative or judicially approved settlement," to seek contribution from a nonsettling party.(30) Thus, section 113 allows a party whose liability was resolved in a civil action or settlement decree to recoup some of those costs above its share.

C. The Cumulative Effect of Sections 107 and 113

For courts in some jurisdictions, one effect of the addition of subsection 113(f) has been the creation of two types of liability they can impose on a defendant-PRP. First, courts have allowed PRPs who have incurred substantial cleanup costs to sue under subsection 107(a).(31) This places joint and several liability on defendant-PRPs for the totality of their costs, but gives defendants a right to a contribution counterclaim. Alternatively, courts have limited plaintiffs to a contribution action.(32) The legislative history of section 113 indicates that this action is one for costs greater than one's share,(33) implying several liability, which limits each plaintiff's recovery to the defendant's share of the costs.(34) Between the two sections, often there may be no difference in the outcome of the case. The counter-claim will simply counteract the cost recovery claim and amount to the same result as if the PRP was limited to a contribution action.

However, depending on the cause of action available, the particular statute of limitations may bar the action from being brought. The limitations period for a cost recovery action may be as long as six years, whereas for a contribution action it is three years.(35) The distinction between the claims is most significant where a court limits a plaintiff-PRP to section 113 but the three year statute of limitations has run, barring the claim.(36) The events triggering each statute of limitations are also different. A cost recovery action begins to run from the time a PRP initiates physical on-site construction of a remedial action or from the time it completes a removal action.(37) In contrast, a contribution action accrues from the day of the judgment order of a cost recovery action, the administrative order, or the entry of a judicially approved settlement.(38)

The type of action that a court allows a plaintiff-PRP may also affect which party has the burden of proof, and consequently, the ultimate outcome of the case. With joint and several liability imposed, the burden is on the defendant to show that his harm is divisible.(39) Several liability, however, imposes the burden on the plaintiff to show the amount of damages for which the defendant is responsible.(40) Liability under section 107 is strict in the sense that a court does not determine fault.(41) This stems from Congress's desire to motivate private parties to clean up hazardous waste sites quickly. Thus, under section 107, a plaintiff need only show that 1) the defendant was one of four types of responsible parties,(42) 2) a hazardous substance was disposed, 3) hazardous substances were released or threatened to be released into the environment, and 4) the plaintiff incurred response costs due to the release.(43) The burden then shifts to the defendant.(44)

The defendant must at least prove that the environmental harm at the site is divisible or that there is a reasonable basis for apportioning liability for response costs.(45) The defendant's burden of showing divisibility is a substantial one, and courts have rarely found it satisfied.(46) The practical effect of section 107 is that a defendant is most likely subject to joint and several liability with a subsequent right to sue in contribution.(47) In the defendant's counterclaim, the burden is on the defendant to show the amount for which the plaintiff is liable.(48)

If a court limits a plaintiff-PRP to section 113, however, the burden is on the plaintiff to prove that it is entitled to relief and that the allocation is appropriate.(49) This is reflected in legislative history in which Congress asserted that "the burden of proof is on the ... party seeking apportionment to establish that it should be granted."(50) Thus, a person who cleaned up a site and wants to recover some of the cleanup costs from other PRPs must prove each defendant-PRP's amount of damages.(51) This may present daunting evidentiary problems, particularly where contaminating activities date back a long time.(52) Thus, if a court limits a PRP to contribution, its burden of proof will be greater than if it was allowed to sue under section 107.

The strongest differences between the sections are in the statute of limitations and burden of proof. Some commentators note that another difference is found in cost allocation.(53) They point to the fact that subsection 113(f) expressly authorizes a court to allocate response costs among the parties using such equitable factors as it deems "appropriate." However, section 107 does not specifically allow equitable allocation.(54) Although section 107 does not require such factors to be considered, if a defendant counterclaims under section 113, such factors will surely be considered.

Another asserted allocation difference is that in a contribution action, defendants may be able to avoid the costs of orphan shares.(55) Orphan shares are those shares of liability attributable to insolvent or unidentifiable PRPs. Several liability indicates that a plaintiff can only recover the amount a defendant contributed. Thus, commentators conclude that section 113 imposes additional costs on plaintiff-PRPs, such as the costs of orphan shares.(56) They claim that this distinction can have severe consequences, as the orphan shares at any given Superfund site can be quite substantial.(57) Most likely, however, courts will equitably apportion orphan shares between plaintiffs and defendants where both are PRPs.(58)

One final argument is that the sections differ in the settlement protection they afford settling parties.(59) Where one party has settled with the government, CERCLA expressly prohibits a non-settling party from bringing a contribution suit against the settling party.(60) Congress designed this provision to encourage parties to settle with the government, which, in turn, quickly brings about urgent cleanup operations.(61) Yet, because Congress included this provision only in the language of section 113, and not section 107, a court could find that its protection does not extend to a section 107 action.(62) Arguably, a nonsettling party could sue a party settling with the government for cost recovery but not contribution. Courts, however, are wary of situations where a plaintiff brings a cost recovery action merely to circumvent contribution protection granted by the government to a settling party.(63) Thus, courts usually protect a settling party from being sued under section 107 because allowing the suit would thwart the intent of Congress to provide protection for all settling parties.

In sum, the greatest differences in the two sections are the statute of limitations and the burden of proof. For a PRP whose liability has not been determined by a judicial or administrative action, or a judicially-approved settlement decree, allowing it the benefits of section 107 seems not only implied by statute, but also warranted by the goals behind CERCLA. First, this gives them six years to bring a cause of action and search out other PRPs who contributed to the contamination of a site yet have not paid their share of the cleanup costs. Second, this approach places the burden of proof on the defendant-PRPs. These defendants will have to prove the amount of liability attributable to the plaintiff and others brought into a suit. These differences will encourage private parties to voluntarily clean up a site without waiting to be held liable for such costs. Many courts have taken such an approach.

III. VARYING SOLUTIONS OUTSIDE THE NINTH CIRCUIT

A. Key Tronic Corp. v. United States (64)

The only Supreme Court case touching on the issue of PRP liability is Key Tronic Corp. v. United States. In this case, the court primarily dealt with a different issue: whether parties could recover attorney fees associated with bringing a cost recovery action.(65) Key Tronic settled with EPA by agreeing to contribute $4.2 million for cleanup costs.(66) Key Tronic then brought both cost recovery and contribution actions against the United States and other parties.(67) In its section 113 claim, it sought contribution for part of the $4.2 million settlement.(68) Its cost recovery claim sought an additional $1.2 million for response costs incurred before settling.(69)

The Supreme Court acknowledged that "[section] 107 unquestionably provides a cause of action for private parties to seek recovery of cleanup costs,"(70) and "implies ... that [the defendant] may have a claim for contribution."(71) In addition, the Court recognized that "the statute now expressly authorizes a cause of action for contribution in [section] 113 and impliedly authorizes a similar and somewhat overlapping remedy in [section] 107."(72) Some courts have interpreted this to mean that even responsible or liable parties, such as Key Tronic, may still have a cause of action under section 107 despite section 113.(73)

Although this case did not deal with the issue of when a PRP may bring a cost recovery action, there are some indications that PRPs may still have a section 107 action. To begin with, Key Tronic was "one of several parties responsible for contaminating a landfill."(74) Yet, the Court did not hold that Key Tronic's cost recovery claims failed because Key Tronic was a responsible party. Rather, the Court merely assumed Key Tronic could bring a section 107 action for claims brought before the settlement agreement and proceeded to decide whether attorney fees were recoverable under section 107. Because Key Tronic's ultimate issue was attorney fees, it is important to analyze how lower courts have dealt with the specific issue at hand.

B. Lower Court Decisions

Most lower courts and commentators have divided the decisions between those allowing cost recovery actions and those limiting PRPs to contribution actions. They then try to find distinguishing factors for the two lines of cases. Some of these factors have been 1) whether the plaintiff was an "innocent PRP"(75) or was itself a "potentially responsible part[y],"(76) 2) whether the plaintiff has an affirmative defense,(77) 3) whether the plaintiff "voluntarily undertook clean-up,"(78) and 4) whether there had been a prior "civil action" in which liability was adjudicated(79) This subsection reviews these various approaches.

1. Decisions Classifying PRP Claims as Contribution Claims Only

The majority of circuit courts dealing with the issue, particularly the First, Third, Seventh, Tenth, and Eleventh Circuits, have classified PRP claims as contribution claims,(80) According to these courts, sections 113 and 107 create two distinct kinds of legal actions: contribution and cost recovery. Their rationales for limiting a PRP to a contribution action vary, however. Courts commonly rely on the "plain language" of the statute, canons of statutory interpretation, legislative history, and definitions of contribution. Some less common justifications include the following: 1) the PRP lacks section 107 injury;(81) 2) a government action, rather than a private action, is the focus of section 107;(82) 3) a PRP lacks an "affirmative defense;"(83) and 4) section 107's longer statute of limitations can only reward innocent PRPs.(84)

Relying on the "plain language" of the statute, some courts tend to focus on the "any other" language in section 113.(85) Specifically, the language provides that "[a]ny person may seek contribution from any other person who is liable or potentially liable.(86) From this language, courts have concluded that a plaintiff who is "liable or potentially liable," like the defendant, must sue under section 113.(87) Otherwise, the statute would have read "any person" rather than "any other person.(88)

Other courts have relied on the customary legal meaning of "contribution." Traditionally, contribution means "by and between jointly and severally liable parties for an appropriate division of the payment one of them has been compelled to make."(89) Thus, after assuming that PRPs are liable parties, courts often hold that contribution is the appropriate action between such parties.(90) Other courts rely on the Black's Law Dictionary definition of contribution.(91) There, contribution is defined as a principle under which "a tort-feasor against whom a judgment is rendered is entitled to recover proportional shares of judgment from other joint tort-feasors whose negligence contributed to the injury and who were also liable to the plaintiff."(92)

Another rationale some courts give for the contribution-only approach is that with section 113, Congress intended to codify case law providing an implied right to contribution under section 107.(93) According to the First Circuit, pre-SARA cases had employed contribution when one liable party sued another liable party.(94) Therefore, a PRP suing another PRP can only sue under section 113. Because section 113 replaced the judicially created right of contribution, these courts reason that plaintiff PRPs no longer need an initial claim under section 107.(95)

Some courts reason that in striving to give effect to each subsection contained in the statute, they cannot allow a PRP to sue under subsection 107(a)(4) because that would completely swallow subsection 113(g)(3).(96) One court reasoned that allowing PRPs to sue under section 107 would nullify the three-year statute of limitations associated with actions for contribution.(97) In addition, at least one court, the Third Circuit, reasoned that if a PRP could sue under section 107, section 113 would still be an "appropriate vehicle for non-settling parties to apportion potential liability,"(98) but settling parties would no longer use it.(99)

Some courts also set forth the rationale that a PRP cannot sue under section 107 unless it has a "section 107 injury."(100) The Seventh Circuit used the innocent landowner as an example of a party that would have the requisite injury.(101) An innocent landowner is injured when forced to clean up hazardous materials merely because a third party spilled hazardous waste onto its property or when wastes migrated there from adjacent lands.(102) On the other hand, a party that is liable in some measure for the contamination is not injured,(103) even though it has paid for all the cleanup costs.

At least one circuit has justified its contribution-only approach by pointing out that typically a governmental plaintiff brings a section 107 action.(104) In such a case, courts can hold defendants jointly and severally liable because "the focus is on allowing state and federal governments to recoup their expenses."(105) Indeed, subsection 107(a)(4)(A) refers to "costs ... incurred by the United States Government or a State"(106) while subsection (a)(4)(B) refers to "costs ... incurred by any other person."(107) The court implied that a private action is rarely used, given the greater importance of subsection (a) in that taxpayers' dollars were spent cleaning up a facility.(108) Thus, courts could place greater restrictions on a private cost recovery action.

The Third Circuit has limited PRPs to contribution actions because only "[a] non-covered party that incurs clean-up costs can bring a cost recovery action."(109) Subsection 107(a) lists the four classes of covered or liable parties.(110) According to the Third Circuit, a party that is not one of the four covered or liable parties can only bring an action under section 107; otherwise, the court limits the PRP to subsection 113(0(1) which allocates liability among "liable" parties.(111) Another approach used by the Third Circuit is that a PRP "who is not entitled to any of the defenses enumerated under section 107(b)"(112) is by necessity limited to a section 113 action for contribution.(113) In other words, this approach asks if the plaintiff could be considered a liable party under section 107 and if the plaintiff would have a defense under section 107.

Structurally, some courts rationalize that the two statutes of limitation compliment each other in a way that supports limiting PRPs to contribution actions. They assert that the shorter period in subsection 113(g)(3) governs actions brought by liable parties, while the longer period in subsection 113(g)(2) rewards innocent parties that have undertaken cleanups.(114) However, it has been argued that this structure favors cost recovery actions as well in that subsection 113(g)(2) simply rewards parties that have done cleanups, regardless of culpability.(115)

In sum, the weaker arguments for limiting contribution are those based on the plain language, as it does not plainly limit PRPs to contribution, and those based on traditional contribution law, as traditionally contribution requires a determination of liability which is not granted merely by PRP status. The argument that section 113 might disappear is weak because section 113 would still be available for anyone who has been adjudged liable in court or by an administrative agency, or who has a judicially-approved settlement decree. In regard to the rarer justifications discussed, those courts seem to be stretching to reach a fair result.

What lies at the heart of most of these decisions is the notion that it seems wrong for a party who is liable or potentially liable to be able to recoup its expenses in cost recovery. However, a fair result can also be achieved by allowing PRP suits under section 107. One reason is that defendants will still be able to bring a contribution counterclaim in the same or a later action. Furthermore, before a PRP can sue in contribution, the plain language of section 113 suggests that a court or administrative agency must first determine that the PRP is a liable party.

2. Decisions Allowing PRPs to Bring Cost Recovery Actions

A minority of decisions have allowed cost recovery actions. In fact, the Seventh Circuit is the only circuit court to allow such an action,(116) However, numerous district courts have allowed cost recovery actions.(117) The primary justification for these decisions is the plain language of section 107, which allows any person who has cleaned up a site to recoup "any ... necessary costs of response incurred by any other person."(118) Courts also look to the statute's remedial purpose and goals, traditional contribution law, and evolving principles such as the retention of joint and several liability in the area of hazardous wastes

In the Seventh Circuit aberration, Amcast Industrial Corp. v. Detrex Corp. (Amcast,(119) Judge Posner held that subsection 107(a)(4)(b) permits a PRP to recover all or part of its response costs from another.(120) In this case, the plaintiff, Elkahart (a subsidiary of Amcast and manufacturer of copper fittings), was admittedly a responsible person.(121) It incurred more than $1 million in costs cleaning up contamination at the site.(122) In order to shift that $1 million onto Detrex, it brought a cost recovery action against Detrex for spilling a toxic chemical when filling Amcast's storage tanks.(123)

The Seventh Circuit held that Detrex could have filed a counterclaim for contribution but failed to do so and instead brought a separate suit for contribution.(124) Detrex argued that the judge had to apportion responsibility in the section 107 action.(125) The judge rejected this argument because "It]he statute is clear that whoever ... incurs costs in cleaning up a contaminated site can seek to recover them from any responsible person."(126) The responsible person can in turn bring a counterclaim.(127)Because there was no such counterclaim, Judge Posner held Detrex liable for the response costs Amcast incurred.(128)

Many district courts have followed Judge Posner's trend.(129) The Arizona district court in Pinal Creek was one such court. Like the Seventh Circuit, the district court first pointed to the plain language in subsection 107(a)(4)(B) as granting standing to "any ... person" who has incurred response costs, not just "any innocent person."(130) Because of the remedial nature of the statute, the district court found that it had to "construe the statutory language broadly in order to give effect to the statute's remedial purposes."(131) In other words, section 107 had to be broadly interpreted to afford a cause of action to liable and nonliable parties alike.

Furthermore, the district court found that allowing PRPs to proceed under section 107 supports CERCLA's goals of encouraging private parties to initiate prompt voluntary cleanup of hazardous wastes and ensuring that cleanup costs will be equitably allocated among responsible parties.(132) Specifically, PRPs would be encouraged to undertake voluntary cleanups for the following reasons: 1) the burden of proof concerning allocation of cleanup would be on the defendants, 2) plaintiffs would not have to risk being held liable for orphan shares, 3) plaintiffs could minimize transaction costs involved in tracking down and suing every PRP, 4) the available defenses would be limited to those in subsection 107(b), and 5) plaintiffs would be given the benefit of a longer statute of limitations.(133) If plaintiffs were not allowed to seek joint and several liability, according to the Arizona district court, these incentives would not exist and plaintiffs would be less likely to perform a "lengthy and costly cleanup."(134)

The district court also relied on traditional contribution law to justify PRP standing under section 107.(135) Under traditional common law, a suit for contribution is brought on the ground that the parties were both guilty of negligence and should share the costs,(136) However, the court reasoned that, under CERCLA, responding parties are less blameworthy than nonresponding parties and are entitled to their entire cleanup costs.(137) The district court not only relied upon traditional principles, but also evolving legal principles, such as Arizona's retention of joint and several liability for cases relating to hazardous wastes, substances, or solid waste disposal sites.(138)

The strongest arguments for allowing cost recovery actions are those based on the plain language of the statute and the statute's remedial purpose and goals. First, the statute does not impose any limits on who may bring a cost recovery action. Second, allowing a less blameworthy party to benefit from a longer statute of limitations while placing the burden of proof on the more blameworthy party will encourage all parties to voluntarily clean up sites, even when they are responsible themselves but have not yet been held liable. Finally, the plain language of section 113 implies that a PRP's liability must be determined before bringing a contribution action.

3. Decisions Viewing Sections 107 and 113 as Working in Conjunction

Some courts have followed neither Judge Posner's approach nor the circuit court trend, but have resolved the conflict between sections 107 and 113 by harmonizing the two sections and viewing them as working in conjunction with one another,(139) Usually, these courts hold that section 107 determines liability while section 113 allocates that liability,(140) The action, however, is essentially a contribution action:

In the Tenth Circuit's latest decision, Sun Co. v. Browning-Ferris, Inc.,(141) the court held that PRP actions between jointly and severally liable PRPs are both actions under section 107 and contribution actions under section 113(f).(142) Despite this language, the court left PRPs with essentially a contribution action.(143) Similarly, the Eighth Circuit, in Control Data Corp. v. S.C.S.C.,(144) held that once liability is established under section 107, the focus shifts to allocation, controlled by subsection 113(f).(145) First, under section 107, a court determines if a party is liable, or in other words, if that party is one of four listed parties and a release has caused the plaintiff to incur response costs.(146) Then, "once a party is liable, it is liable for its share, as determined by Section 9613(f)."(147) However, the plaintiff does not benefit from section 107's longer statute of limitations and burden of proof rules.

The main problem with this approach is that it is a disguised contribution claim. After stating that section 107 is the source of the contribution claim, the courts go on to apply section 113's burden of proof rules and statute of limitations. Thus, the courts are not using section 113 merely to allocate liability equitably among the parties. Instead, they are using the section to set forth ground rules for the initial determination of liability. This approach recognizes that a PRP's liability must be determined before it can allocate liability in a contribution claim. The approach's drawback, as illustrated in Pinal Creek, is that courts do not literally apply it.

IV. THE NINTH CIRCUIT'S SOLUTION

A. Factual Context and Procedural Posture of Pinal Creek

The Pinal Creek Drainage Basin is located near the towns of Globe and Miami, Arizona. Mining and mineral processing activities have occurred there since 1823,(148) and as a result, have contaminated the groundwater in the aquifer underlying Pinal Creek with hazardous substances.(149) In 1989, the Director of the Arizona Department of Environmental Quality (ADEQ) executed a Decision Record authorizing the use of moneys from the Arizona Water Quality Assurance Revolving Fund "for purposes related to the investigation and remediation of the Pinal Creek site."(150) In 1989, Cyprus Miami Mining Corporation provided ADEQ with a proposed interim Remedial Action Plan, which ADEQ approved in May of 1990.(151) In 1990, Cyprus and two other mining companies, Inspiration Consolidated Copper Company and Magma Copper Company, together calling themselves the Pinal Creek Group, entered into a "Group Agreement" to voluntarily clean up the Pinal Creek Drainage Basin and share remediation costs.(152) In cleaning up the basin, the group spent more than $1 million in response costs.(153) ADEQ asked the other companies that owned or operated mining facilities in the Pinal Creek area to help reimburse ADEQ for costs, but the companies refused.(154)

In 1991, the Pinal Creek Group filed suit against these companies in the Arizona district court, bringing actions in both cost recovery and contribution.(155) The defendants asserted contribution counterclaims under subsection 113(f).(156) As discussed earlier, the district court held that the Pinal Creek Group had standing to bring claims under CERCLA's cost recovery provision, and were not limited to actions for contribution.(157) The district court dismissed the defendants' motions to dismiss and motions for summary judgment, but certified an order for an immediate interlocutory appeal.(158)

B. Analysis and Holding of Pinal Creek

On appeal, the Ninth Circuit reversed the district court(159) and followed the lead of those circuits viewing sections 107 and 113 as working in conjunction.(160) Like other courts, it stated that section 107 is the source of the contribution claim, while section 113 creates a mechanism for apportioning that liability among responsible parties.(161) In essence, however, the court limited a PRP's claim for recovery of cleanup costs to a contribution action.(162) Thus, each PRP's contribution liability corresponds to that party's equitable share of the total liability and is not joint and several. Furthermore, PRPs are subject to section 113's statute of limitations and burden of proof rules.

In support of its holding, the Ninth Circuit first looked to CERCLA and its legislative history. The court recognized that section 107 creates a duality. First, it makes a PRP liable for its cleanup costs, and second, it allows "any other person" to hold other PRPs liable for those same costs.(163) According to the Ninth Circuit, this duality is best implemented by limiting a PRP to a contribution claim against other PRPs.(164) The court also found that the legislative history behind subsection 113(f) supported its conclusion. Statements by the Senate that indicated that section 113 was merely confirming and clarifying the judicially created contribution action were particularly persuasive.(165) Because an implied contribution claim existed between liable parties, the Ninth Circuit concluded that a section 113 action was the only action for liable parties.

The Ninth Circuit also briefly touched upon traditional contribution law and the allocation of orphan shares. Traditionally, contribution actions between tortfeasors only result in several liability.(166) The court feared that if it held a group of defendant-PRPs jointly and severally liable, the defendants would end up absorbing all of the costs attributable to orphan shares.(167) In other words, joint and several liability would immunize the plaintiff-PRP from the risk of orphan shares and would restrict the court from dividing costs equitably between all PRPs.(168) The court contrasted this with subsection 113(f)(1), which expressly requires that costs be equitably divided among all PRPs.(169) In a footnote, however, the court admitted that its concern may be unwarranted because even under section 107, courts can equitably allocate orphan shares.(170) In addition, the concurrent or subsequent contribution action will equitably allocate costs among all PRPs. Thus, PRPs will not be immune from the costs of orphan shares. However, the Ninth Circuit felt that even dividing the costs of orphan shares equally would result in a chain reaction of multiple and unnecessary lawsuits, guaranteeing inefficiency, potential duplication, and a prolonged litigation process.(171)

Finally, the Ninth Circuit rejected policy considerations such as promoting rapid and voluntary environmental responses by private parties.(172) The court pointed out that PRPs already have incentives to conduct cleanup operations promptly--namely, the protection of on-going operations and control of cleanup costs.(173) Rather than policy considerations, the circuit based its decision on what it called the "light of the controlling text, structure, and logic of CERCLA."(174) Ultimately, the court's primary concern was fairness. The court indicated that it would be unfair for a working PRP (one that conducts cleanup operations) to avoid the effect of subsection 113(f) (in particular, its delay, burden of proof rules, statute of limitations, and equitable allocation of orphan shares).(175)

V. A CRITIQUE OF THE NINTH CIRCUIT'S SOLUTION

This section analyzes the Ninth Circuit's decision in light of CERCLA and its legislative history, Ninth Circuit precedent, traditional contribution law, the allocation of orphan shares, and the goals behind CERCLA. This Chapter ultimately concludes that where there has been no determination of a plaintiff-PRP's liability (by a judgment order, administrative order, or judicially approved settlement decree, for example), a PRP can only sue in cost recovery and is thereby governed by the rules of section 107. Of course, defendant-PRPs can bring contribution counterclaims or subsequent suits in contribution.

A. Textual Analysis of Sections 107 and 113

1. Section 107

The Ninth Circuit analyzed section (107) and found that it creates a "duality," meaning that a PRP that is partly responsible for its cleanup costs can also hold other PRPs liable for a portion of those same costs.(176) However, limiting a PRP to a contribution action is not the best way to implement this duality. The best solution is to allow a PRP to sue in cost recovery unless a court or agency has determined its liability for response costs, in which case courts should allow a contribution action.

The plain language of section 107 states that certain persons (e.g., owners and operators of facilities) are "liable for (A) all costs of removal or remediation incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan; (B) any other necessary costs of response incurred by any other person consistent with the national contingency plan."(177) Basically, subsection (A) provides for costs incurred by the government while subsection (B) allows for costs incurred by private parties. (178) Section 107's language, "any other person," implies that Congress intended the liability of the provision to sweep broadly.(179) Indeed, the term "person" includes numerous private parties such as individuals, corporations, and commercial entities.(180) Facially, the statute draws no distinction between innocent and noninnocent persons. Thus, given the plain language of the statute, any person, regardless of culpability, who has incurred response costs has a potential cost recovery action.(181)

The language in the statute of limitations for section 107 supports this. Under subsection 113(g)(2), an action for recovery of the costs to which section 107 refers begins to run "after completion of the removal action" or "after initiation of physical on-site construction of the remedial action."(182) A "PRP who initiates and conducts a cleanup is taking the kind of action spoken about in Section 113(g)(2), in effect, initiating remedial action."(183) Thus, the plain language of subsection 113(g)(2) suggests that a cause of action provided by section 107 is available to any person who has taken affirmative action to remove or remediate hazardous wastes.(184)

2. Section 113

Given that the Ninth Circuit found the action to be one in contribution, one must certainly analyze section 113 as well. The plain language of section 113 states that "[a]ny person may seek contribution from any other person who is liable or potentially liable under section [107](a) of this title, during or following any civil action, under section [106] of this title or under section [107](a) of this title."(185) This language does not indicate that contribution is the exclusive remedy for PRPs. Rather, it indicates that in order to sue under section 113, 1) the plaintiff must be seeking contribution, 2) the contribution must be sought from a person who is liable or potentially liable under subsection 107(a), and 3) the contribution must be sought during or following a civil action under subsection 107(a). From the plain language of section 113, evidently Congress anticipated a prior or concurrent civil action under subsection 107(a).

However, subsection 113(f) goes on to state that "[n]othing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section [106] of this title or section [107] of this title."(186) Subsection 113(f)(3) addresses the question of when a person can bring a contribution action in the absence of a civil action. That subsection specifically states that "[a] person who has resolved its liability to the United States or a State for some or all of a response action for some or ail of the costs of such action in an administrative or judicially approved settlement may seek contribution from any person who is not party to a settlement."(187) From this language, clearly a person may seek contribution when a court has resolved its liability in a civil action under section 106 or subsection 107(a), or by an "administrative or judicially approved settlement" agreement.(188)

The plain language of subsection 113(g)(3), providing the statute of limitations for a contribution action, also supports this conclusion. The period for a contribution action runs from "CA) the date of judgment in any action under this chapter for recovery of such costs or damages, or CB) the date of an administrative order under section 9622(g) of this title (relating to de minimis settlements) or 9622(h) of this title (relating to cost recovery settlements) or entry of a judicially approved settlement with respect to such costs or damages."(189) This statute of limitations does not speak to the initiation of cleanup or recovery of response costs. Rather, it speaks in terms of liability imposed on "those who have paid or have incurred a fixed liability as opposed to some open-ended cleanup operation."(190) When coupled with subsection 113(f), subsection (g)(2) implies that contribution requires some form of liability determination in the form of a civil judgment, an administrative order, or a judicially approved settlement decree.

Many courts have analyzed the availability of section 113 in terms of whether a PRP's liability has been determined. In Wolf, Inc. v. L. & W. Service Center, Inc., the court allowed a PRP to bring a cost recovery action because the PRP was "not the subject of an administrative order by the state or federal government" and "not the subject of civil actions under either sections 106 or 107 of CERCLA."(191) Similarly, in United States v. SCA Services of Indiana,(192) the court found it "difficult, if not impossible, to view SCA's claim against the third-party defendants as a claim for contribution" because SCA had never admitted liability, had never been adjudicated as a liable party, and had entered into a consent decree that expressly was not to constitute an admission.(193) On reconsideration, the court stressed that "[e]ven though liability is strict under CERCLA, it is obvious that legal liability cannot attach until a party has either admitted liability or has been adjudicated as liable."(194)

If courts limit a PRP to section 113 when there has been no determination of liability, then arguably no statute of limitations could apply.(195) However, this could not have been Congress's intent,(196) and the courts should avoid such an anomaly. The Ninth Circuit avoided the issue entirely by stating that a statute of limitations issue was not before it.(197) However, looking at the statute of limitations provision may have given the court more insight as to the role of contribution in the CERCLA scheme. When properly construed, sections 107 and 113 work together, one governing liability and the other governing contribution from those found liable. First, a PRP shows that a defendant has incurred section 107 liability. Then, once liability has been determined, and a defendant has been ordered to pay more than its fair share, it can counterclaim for contribution under subsection 113(f).(198)

B. Legislative History of Section 113

Because CERCLA does not expressly allow or prohibit PRPs from bringing cost recovery actions, not surprisingly, courts have come to differing interpretations. In many cases, legislative history has been used in an attempt to illuminate the meaning of section 113. Section 113 states that "any person may seek contribution from any other person who is liable or potentially liable under section [107](a) of this title."(199) In that section's legislative history the House Committee of the Judiciary stated that section 113 clarifies the availability of judicial review regarding contribution claims.(200) The legislative history also contains a statement from the Senate asserting that the new provision "clarifies and confirms the right of a person held jointly and severally liable under CERCLA to seek contribution from other potentially liable parties."(201)

In Pinal Creek, the Ninth Circuit used these statements to support its position that CERCLA limits PRPs to contribution actions. The court stressed the fact that the legislative intent was to codify the implied right to contribution that courts created before section 113.(202) However, the legislative history says nothing about limiting all PRPs to a contribution action. If section 113 codified judge-made law, it did not codify a rule whereby PRPs were limited to section 113 because the pre-SARA cases were inconsistent as to what kind of suits a PRP could bring. Even before SARA, PRPs were bringing cost recovery actions under section 107.(203) Thus, the only thing Congress was confirming when it added section 113 was the availability of a contribution action to a person held jointly and severally liable for response costs.(204)

C. Ninth Circuit Precedent

In the 1986 case Mardan Corp. v. C.G.C. Music, Ltd.,(205) the Ninth Circuit held that "[s]ection 107(a) of CERCLA authorizes both governmental and private entities to sue statutorily defined `responsible parties' to recover costs incurred in cleaning up hazardous waste disposal sites."(206) Although the case was eventually dismissed because of a settlement agreement, the court initially allowed one responsible party to sue another responsible party under section 107. The court noted in a footnote that most district courts had interpreted section 107 to impose joint and several liability for indivisible injuries with a correlative right of contribution.(207) Thus, at least prior to SARA, the Ninth Circuit allowed PRPs to sue under section 107. However, the inception of subsection 113(f) seems to have changed this.

In a post-SARA case, Dant & Russell, Inc. v. Burlington Northern Railroad,(208) the Ninth Circuit held that a PRP could not assert a CERCLA claim for the totality of its response costs.(209) However, the court held that section 113 governed because Dant & Russell essentially brought a contribution claim in response to Burlington Northern's cost recovery action.(210) The court recognized Burlington Northern's claim as one for contribution because Dant & Russell, in response to Burlington Northern's cost recovery claim, was asking Burlington Northern to contribute its fair share. Because of Dant & Russell's contribution counterclaim, the Ninth Circuit held that it had to equitably apportion liability.(211) However, the court could have come to the same result by pointing out that Burlington Northern's liability had already been determined. EPA had ordered Burlington Northern to conduct immediate removal activities.(212) Thus, Burlington Northern was limited to a contribution action, and albeit for different reasons, the court correctly apportioned liability.

Whether the Ninth Circuit followed that case is debatable given that courts have interpreted Dant & Russell differently. In Pinal Creek the Ninth Circuit stated that it was following its earlier case law.(213) Indeed, Dant & Russell limited the PRPs in that case to contribution actions. However, Dant & Russell is clearly distinguishable. The Pinal Creek Group differed substantially from Burlington Northern-it had not been held liable. There was no judgment, administrative order, or judicially approved settlement. Yet, the Ninth Circuit found that the group was liable merely because it had incurred response costs. However, just because a PRP cleans up a site does not mean it is liable. In Pinal Creek, the parties were concededly liable, but that is not enough to constitute a determination of liability. If Congress had so intended, the statute of limitations would have run from the date of an admission of liability. Given the differences between the two PRPs, the Ninth Circuit's reliance on Dant & Russell was misplaced.

D. Traditional Doctrine of Contribution

In Pinal Creek, the Ninth Circuit stated briefly that the traditional doctrine of contribution supported its holding in that traditionally contribution results in several liability between joint tortfeasors.(214) Indeed, in the absence of any express CERCLA definition, many courts have turned to general tort law principles to interpret section 113's use of the term "contribution."(215) However, the traditional doctrine of contribution does not advance the notion of limiting PRPs to section 113. Under the Restatement analysis, a PRP, as a volunteer, may not be able to recover in contribution if no common legal obligation has arisen.(216) In other words, the PRP must have acted under compulsion or legal duty, such as pursuant to an administrative or judicial order, or consent decree. CERCLA, in itself, "does not obligate anyone to clean up any site."(217) An agency or court imposes liability upon a party. Even before section 113, when courts created implied contribution actions, such actions were brought in response to a cost recovery action that determined liability.(218) Furthermore, as the Ninth Circuit admitted, PRP status, by itself, does not create a common legal obligation.(219) Oddly, the court found that once a PRP cleaned up a site and undertook costs, it became liable.(220) The PRP, however, was not compelled to clean up the site. Accordingly, under traditional contribution principles, the PRP did not have a contribution action. Therefore, the Ninth Circuit's reliance on traditional contribution principles does not support its conclusion in Pinal Creek.

E. Costs of Orphan Shares

In Pinal Creek, the Ninth Circuit was concerned about which parties would be absorbing all of the costs attributable to orphan shares, and whether the courts would still be able to apportion costs equitably under subsection 113(f).(221) The court concluded that in a cost recovery action, it would be forced to immunize plaintiffs from orphan shares and shift the orphan shares onto the defendant.(222) In contribution, however, the court would be able to equitably allocate responsibility, considering the fact that a PRP itself engaged in cleanup efforts.(223)

This approach ignores the fact that orphan shares are not necessarily shifted entirely onto defendants in cost recovery actions. Indeed, many courts have held that orphan share amounts should be equitably apportioned among all solvent PRPs.(224) This alleviates defendant-PRPs' fear that they will be liable for the entire amount of orphan shares. If one PRP has to cover the costs of orphan shares, it might rationally conclude that it would be better to allow the EPA, or someone else, to shoulder the burden of a cleanup.(225) Thus, equitably allocating orphan shares is consistent with the primary goals of CERCLA.(226) It provides a powerful incentive for other PRPs to clean up sites promptly and voluntarily.

The Ninth Circuit was also concerned that reducing liability by a portion of the orphan shares would result in a chain reaction of multiple, unnecessary lawsuits.(227) Yet, judges can hear cost recovery and contribution actions in the same case. Besides, a rule that permits contribution in any form may entail costly suits among PRPs attempting to shift part of their loss.(228) Nevertheless, liability should not be apportioned merely to avoid lawsuits.

F. Goal of Encouraging Cleanups

One cannon of statutory interpretation directs courts to give effect to a statute's purposes.(229) The primary goal of CERCLA is to foster the prompt cleanup of hazardous waste sites.(230) The district court in Pinal Creek pointed out that in order to give effect to the statute's remedial purposes, it had to construe the statutory language broadly.(231) When construing the language in this manner, the remedial nature of the statute weighs in favor of allowing cost recovery actions. Although a PRP is potentially responsible for contamination, voluntary cleanup is precisely the conduct Congress sought to encourage, and therefore, is commendable.(232) Accordingly, the volunteer should be granted a longer statute of limitations and benefit from the burden of proof being placed on the defendant-PRPs. Allowing PRPs to proceed under section 107 will result in PRPs, rather than the government, conducting Superfund cleanups. This accomplishes one of the primary goals behind CERCLA--cleaning up the environment at the expense of those who caused the contamination.(233)

The Ninth Circuit did not believe that the goal of encouraging voluntary cleanups would be undermined by limiting PRPs to section 113.(234) The court pointed to other incentives to clean up sites, such as predictability of cleanup costs, and protection of on-going operations.(235) Regarding predictability, the Ninth Circuit asserted that allowing a cost recovery action results in each party being uncertain of its cost.(236) According to the court, this uncertainty could be dispelled by a mechanical contribution rule applied to all of the liable parties.(237) However, there is no more uncertainty when a section 107 action is allowed than there is when the court requires a section 113 action. Costs and orphan shares will be equitably allocated in the end, either in a section 113 action or a section 107 action followed by a contribution counterclaim.

VI. CONCLUSION

PRPs should be able to bring cost recovery actions subject to contribution claims. Although the actual result may not be significantly different under a sole contribution action, there are reasons for separating the two causes of action. First, separation follows most naturally from the plain language of sections 107 and 113. Section 107 broadly allows a person to recover response costs, while section 113 is a party's response to being held liable for those costs. Thus, contribution is allowed only against a party that is liable during or following a section 107 action or judicially approved settlement. Second, section 107's statute of limitations begins to run when the cleanup has been initiated, yet section 113 begins to run when a party's liability has been resolved by a judgment, administrative order, or judicially-approved settlement. Given the plain language of these sections, the Ninth Circuit should not have allowed the Pinal Creek Group to sue under section 113 absent a determination of its liability.

The Ninth Circuit's reliance on legislative history was also misplaced. Congress intended to codify the judicially created implied right of contribution. However, Congress did not intend to limit a class of private parties to section 113. Rather, Congress was merely confirming the availability of a contribution action between liable parties. The Ninth Circuit's concern about orphan shares is also misplaced. Many courts have held that orphan shares are equitably apportioned among all solvent PRPs. Furthermore, reducing liability by a portion of the orphan shares will not result in unnecessary lawsuits as defendants can bring contribution counterclaims at the same time as cost recovery actions.

Finally, the Ninth Circuit failed to consider two important policy considerations. Allowing PRPs to bring cost recovery actions provides the following incentives for PRPs to volunteer to clean up a site before being held liable: 1) they receive a predictable, lengthy statute of limitations, and 2) the burden of proof is placed on the defendants. This furthers the primary goal of CERCLA: to get hazardous waste sites quickly cleaned up without the prompting of another party or the Environmental Protection Agency.

On June 22, 1998, the Supreme Court denied certiorari in this case.(238) The Supreme Court should have granted certiorari and reversed the Ninth Circuit. If the Court confronts this issue again in the future, the Court should allow those who can make out a prima facie case under section 107 to bring a cost recovery action and those who have been adjudged liable to bring a contribution action. The section 113 action will most likely be concurrent or subsequent to the section 107 action. This is the procedural route that the language of CERCLA suggests. At the same time, it provides strong incentives for the prompt cleanup of hazardous waste sites, which is the primary goal behind the enactment of such a statutory scheme.

(1) 118 F. 3d 1298 (9th Cir. 1997), cert. denied, 66 U.S.L.W. 3364 (U.S. June 22, 1998) (No. 97-795).

(2) Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. [subsections] 9601-9675 (1994).

(3) Id. [sections] 9607(a)(4)(B). Response costs are those costs incurred in remedying hazardous contamination. Id. [sections] 9601(23). An action under subsection 107(a)(4)(B) is labeled a cost recovery action.

(4) Id. [sections] 9613(f). An action under section 113 is labeled a contribution action.

(5) U.S. Geological Survey, Toxic Substances Hydrology Program: Pinal Creek Toxics Study (visited May 5, 1998) <http://www.daztcn.wr.usgs.gov/pinal/index.html>.

(6) Pinal Creek Group v. Newmont Mining Corp., 926 F. Supp. 1400 (D. Ariz. 1996), rev'd, 118 F.3d 1298 (9th Cir. 1997), cert. denied, 66 U.S.L.W. 3364 (U.S. June 22, 1998) (No. 97-795).

(7) 42 U.S.C. [sections] 9613(g)(3).

(8) Id. [sections] 9613(g)(2).

(9) Id. [sections] 9613(g)(2)(B).

(10) Id. [sections] 9613(g)(3)(A)-(B).

(11) See, e.g., United States v. Taylor, 909 F. Supp. 355, 360-61 (M.D.N.C. 1995).

(12) Id.

(13) Id. See also William D. Araiza, Text, Purpose and Facts: The Relationship Between CERCLA Sections 107 and 113, 72 NOTRE DAME L. REv. 193, 195 n.15 (1996).

(14) See, e.g., Amcast Indus. Corp. v. Detrex Corp., 2 F.3d 746, 748 (7th Cir. 1993); Adhesives Research, Inc. v. American Inks & Coatings Corp., 931 F. Supp. 1231, 1236 (M.D. Pa. 1996); Laidlaw Waste Sys., Inc. v. Mallinckrodt, Inc., 925 F. Supp. 624, 629-31 (E.D. Mo. 1996); Pinal Creek Group v. Newmont Mining Corp., 926 F. Supp. 1400, 1405-06 (D. Ariz. 1996), rev'd, 118 F.3d 1298 (9th Cir. 1997), cert. denied, 66 U.S.L.W. 3364 (U.S. June 22, 1998) (No. 97-795); Pneumo Abex Corp. v. Bessemer & Lake Erie R.R., 921 F. Supp. 336, 346-48 (E.D. Va. 1996); Idylwoods Assocs. v. Mader Capital, Inc., 915 F. Supp. 1290, 1312-14 (W.D.N.Y. 1996); Barmet Aluminum Corp. v. Doug Brantley & Sons, Inc., 914 F. Supp. 159, 161-64 (W.D. Ky. 1995); United States v. Taylor, 909 F. Supp. 355, 360-66 (M.D.N.C. 1995); Prisco v. New York, 902 F. Supp. 374, 388-92 (S.D.N.Y. 1995); United States v. Atlas Minerals & Chem., Inc., No. CIV.A. 91-5118, 1995 WL 510304, at *77-*80 (E.D. Pa. Aug. 22, 1995); Bethlehem Iron Works, Inc. v. Lewis Indus., Inc., 891 F. Supp. 221,223-25 (E.D. Pa. 1995); United States v. SCA Servs. of Ind., Inc., 865 F. Supp. 533, 540-43 (N.D. Ind. 1994); Companies for Fair Allocation v. Axil Corp., 853 F. Supp. 575, 578-82 (D. Conn. 1994); Barton Solvents, Inc. v. Southwest Petro-Chem, Inc., No. CIV.A.91-2382-GTV, 1993 WL 382047, at *3 (D. Kan. Sept. 14, 1993); City of N. Miami v. Berger, 828 F. Supp. 401, 407 (E.D. Va. 1993); United States v. Jagiella, No. 87-C-1406, 1991 WL 78171, at *2 (N.D. Ill. May 2, 1991); United States v. Kramer, 757 F. Supp. 397, 413-17 (D.N.J. 1991); Kelley v. Thomas Solvent Co., 790 F. Supp. 710, 717-19 (W.D. Mich. 1990); Southland Corp. v. Ashland Oil, Inc., 696 F. Supp. 994, 1002-03 (D.N.J. 1988); Sand Springs Home v. Interplastic Corp., 670 F. Supp. 913, 916 (N.D. Okla. 1987).

(15) See, e.g., Sun Co. v. Browning-Ferris, Inc., 124 F.3d 1187, 1190 (10th Cir. 1997), cert. denied, 118 S. Ct. 1045 (1998); Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1301-03 (9th Cir. 1997), cert. denied, 66 U.S.L.W. 3364 (U.S. June 22, 1998) (No. 97-795); In re Matter of Reading Co., 115 F.3d 1111, 1117-20 (3rd Cir. 1997); New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1120 (3rd Cir. 1997); Rumpke of Ind., Inc. v. Cummins Engine Co., 107 F.3d 1235, 1242 (7th Cir. 1997); Redwing Carriers, Inc. v. Saraland Apts., 94 F.3d 1489, 1496 (11th Cir. 1996); Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930, 935 (8th Cir. 1995); United States v. Colorado & E. R.R. Co. (CERC), 50 F.3d 1530, 1534-36 (10th Cir. 1995); United Techs. Corp. v. Browning-Ferris Indus., Inc., 33 F.3d 96, 98-101 (1st Cir. 1994); Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 764-65 (7th Cir. 1994); Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672 (5th Cir. 1989).

(16) Pinal Creek, 118 F.3d at 1302.

(17) Id. at 1306 ("[A] PRP does not have a claim for the recovery of the totality of its cleanup costs against other PRPs, and a PRP cannot assert a claim against other PRPs for joint and several liability.").

(18) See, e.g., Araiza, supra note 13, at 201-02.

(19) 42 U.S.C. [sections] 9607(a)(4)(B) (1994).

(20) See, e.g., United States v. Taylor, 909 F. Supp. 355, 360-61 (M.D.N.C. 1995) (asserting that if defendant-PRPs cannot establish that harm is divisible, they are responsible for paying the full amount of the cleanup) (citing CERC, 50 F.3d at 1535-36).

(21) Araiza, supra note 13, at 207.

(22) See, e.g., United States v. Chem-Dyne Corp., 572 F. Supp. 802 (S.D. Ohio 1983) (finding an implied contribution claim under section 107).

(23) See, e.g., United States v. New Castle County, 642 F. Supp. 1258, 1265-69 (D. Del. 1986) (finding right of third party action); United States v. Conservation Chem. Co., 628 F. Supp. 391, 404 (W.D. Mo. 1985), modified, 681 F. Supp. 1394 (W.D. Mo. 1988) (finding right of third party action); Wehner v. Syntex Agribusiness, Inc., 616 F. Supp. 27, 31 (E.D. Mo. 1985) (finding right of third party action).

(24) See, e.g., Conservation Chem., 628 F. Supp. at 404; Philadelphia v. Stepan Chem. Co., 544 F. Supp. 1135, 1143 (E.D. Pa. 1982). See also Nicholas J. Wallwork & Caroline L. Carver, Spreading the Costs of Environmental Clean Up: Contribution Claims Under CERCLA and RCRA, SA88 A.L.I.-A.B.A. 199, 205 (1996). The language of subsection 107(e)(2) provides that "[n]othing in this title ... shall bar a cause of action that ... any other person subject to liability ... has or would have ... against any person." 42 U.S.C. [sections] 9607(e)(2).

(25) S. REP. No. 99-11, at 44 (1985), reprinted in 2 LEGISLATIVE HISTORY OF THE SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986, at 636 (1990).

(26) See, e.g., Colorado v. ASARCO, Inc., 608 F. Supp. 1484, 1486 (D. Colo. 1985) (stating that allowing defendants a right to contribution is consistent with CERCLA's statutory goal of expeditious cleanup of hazardous waste sites).

(27) John M. Hyson, "Fairness" and Joint and Several Liability in Government Cost Recovery Actions Under CERCLA, 21 HARV. ENVTL. L. REv. 137, 153 (1997).

(28) 42 U.S.C. [sections] 9613(f)(1) (1994).

(29) Id. [sections] 9613(f)(1).

(30) Id. [sections] 9613(f)(3)(B).

(31) See supra note 14.

(32) See supra note 15.

(33) S. REP. No. 99-11, at 44 (1985), reprinted in 2 LEGISLATIVE HISTORY OF THE SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986, at 636 (1990). See also David L. Bearman, CERCLA--Cost Recovery, Contribution and Statutes of Limitations: Working Toward a Solution, 27 U. MEM. L. REV. 149, 155 (1996).

(34) The First, Third, and Eleventh Circuits, as well as federal district courts, have held that liability for contribution under subsection 113(f) is several only. E.g., New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1121-22 (3rd Cir. 1997); Redwing Carriers, Inc. v. Saraland Apts., 94 F.3d 1489, 1513-14 (11th Cir. 1996); United Techs. Corp. v. Browning-Ferris Indus., Inc., 33 F.3d 96, 98-101 (1st Cir. 1994). A few courts, however, have suggested that CERCLA's general joint and several liability scheme should apply in the context of contribution actions under subsection 113(f)just as for cost recovery actions under subsection 107(a). E.g., Central Ill. Pub. Serv. Co. v. Industrial Oil Tank & Line Cleaning Serv., 730 F. Supp. 1498, 1505 (W.D. Mo. 1990).

(35) 42 U.S.C. [sections] 9613(g)(2)-(3) (1994).

(36) David Sive & Daniel Riesel, A Majority of Courts Limit Parties Held Liable Under CERCLA to Contribution Actions by Denying Them Cost Recovery Actions, NAT'L L. J., Feb. 24, 1997, at B6.

(37) 42 U.S.C. [sections] 9613(g)(2).

(38) Id. [sections] 9613(g)(2)(A). In many instances, none of these events have occurred, which might imply that there is no limitations period for a contribution action. Jose R. Allen & Karen L. Petersen, Private Party Litigation Under Superfund: Claims for Cost Recovery and Contribution, SB91 A.L.I.-A.B.A. 663, 681 (1997). As a result, one district court supplied its own rule for when the limitations period is triggered: when the party seeking contribution has paid more than its fair share. Sun Co. v. Browning-Ferris, Inc., 919 F. Supp. 1523, 1531 (N.D. OKla. 1996), modified, 124 F.3d 1187 (10th Cir. 1997), cert. denied, 118 S. Ct 1045 (1998).

(39) United States v. Taylor, 909 F. Supp. 355, 360-61 (M.D.N.C. 1995).

(40) Id.

(41) Araiza, supra note 13, at 195 n. 17. There are only three narrow defenses: 1) an act of God; 2) an act of war; and 3) an act or omission of unrelated third parties. 42 U.S.C. [sections] 9607(b) (1994). The purpose behind these narrow defenses is the fact that CERCLA is a strict liability statute designed to promote the quick, voluntary cleanup of hazardous waste sites. Araiza, supra note 13, at 198.

(42) The plaintiff is allowed to name as a defendant any of the following parties: (1) present owners or operators of a facility; (2) persons who were an owner or operator of a facility at the time of hazardous substance disposal; (3) persons who arranged for disposal of hazardous substances; or (4) persons who received hazardous substances for transport to a disposal or treatment facility. 42 U.S.C. [sections] 9607(a)(1)-(4).

(43) United States v. Alcan Aluminum Corp. (Alcan I), 964 F.2d 252, 258-59 (3rd Cir. 1992).

(44) United States v. Alcan Aluminum Corp. (Alcan II), 990 F.2d 711, 722 (2nd Cir. 1993); Alcan I, 964 F.2d at 270-71.

(45) Alcan H, 990 F.2d at 722; United States v. Monsanto Co., 858 F.2d 160, 168-70 (4th Cir. 1988).

(46) United States v. Colorado & E. R.R. Co. (CERC), 50 F.3d 1530, 1535 (10th Cir. 1995).

(47) O'Neil v. Picillo, 883 F.2d 176, 178-79 (1st Cir. 1989). Even so, a court may consider equitable factors in allocating each defendant's share, especially where the plaintiff is a PRP. A plaintiff-PRP would be wise to prepare to establish its own equitable share of response costs. Sive & Riesel, supra note 36, at B6.

(48) The burden is on the party seeking contribution. See, e.g., CERC, 50 F.3d at 1535-36; Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 764 (7th Cir. 1994); Alcan I, 964 F.2d at 269 n.28; United States v. R.W. Meyer, Inc., 889 F.2d 1497, 1507-08 (6th Cir. 1989).

(49) R.W. Meyer, 889 F.2d at 1508,

(50) H.R. REP. No. 29-253, at 19 (1986), reprinted in 1986 U.S.C.C.A.N. 2835, 3038, 3042.

(51) United States v. Taylor, 909 F. Supp. 355, 361 (M.D.N.C. 1995).

(52) Wallwork & Carver, supra note 24, at 207.

(53) See, e.g. Mark A. Stach, Only "Innocent" Parties Need Apply: The Death of Private Party Recovery Actions Under Superfund? 20 WM. & MARY ENVTL. L. & POL'Y REV. 33, 43 (1995) (setting forth several of the differences between the two causes of action).

(54) See Hatco Corp. v. W.R. Grace & Co., 59 F.3d 400, 411 (3rd Cir. 1995); CERC, 50 F.3d at 1536; Environmental Transp. Sys., Inc. v. ENSCO, Inc., 969 F.2d 503, 509 (7th Cir. 1992); United States v. R.W. Meyer, Inc., 932 F.2d 568, 574 (6th Cir. 1991). Thus, depending on the totality of the circumstances, a court may consider several factors or only one determining factor in allocating response costs among parties. See, e.g., AL Tech Specialty Steel Corp. v. Allegheny Int'l Credit Corp. (AL Tech), 104 F.3d 601, 608 (3rd Cir. 1997); Bancamerica Commercial Corp. v. Mosher Steel of Kansas, Inc., 100 F.3d 792, 802 (10th Cir. 1996); ENSCO, 969 F.2d at 509. Some factors that courts have considered appropriate include a party's ability to distinguish its contribution of waste, the amount and toxicity of waste, and a party's degree of involvement, care, and cooperation. Other factors include the facility's discount in purchase price because of the contamination, the party's financial resources, financial benefits it received from contaminated activities, contracts allocating liability, the liability of nonparties, the relative culpability or state of mind of the parties, and traditional equitable defenses. AL Tech, 104 F.3d at 608; SmithKline Beecham Corp. v. Rohm & Haas Co., 89 F.3d 154, 158-59 (3rd Cir. 1996); CERC, 50 F.3d at 1536 n.5; Control Data Corp. v. S.C.S.C., 53 F.3d 930, 938 (8th Cir. 1995); FMC Corp. v. Aero Indus., Inc., 998 F.2d 842, 847 (10th Cir. 1993); In re Hemingway Transport, Inc., 993 F.2d 915, 921-22 n.4 (lst Cir. 1993); ENSCO, 969 F.2d at 508-09; Jones-Hamilton Co. v. Beazer Materials & Servs., Inc., 959 F.2d 126, 129 (9th Cir. 1992); R.W. Meyer, 932 F. 2d at 571-572; United States v. Monsanto Co., 858 F.2d 160, 173 n.29 (4th Cir. 1988).

(55) Araiza, supra note 13, at 206.

(56) Id.

(57) David Sive & Daniel Riesel, Although Many Courts Provide for the Equitable Apportionment of Orphan Shares, the Issue is Not Yet Settled, NAT'L L. J., Mar. 3, 1997, at B5. A court may, however, equitably allocate liability for those costs. Id.

(58) Id.

(59) Id.

(60) 42 U.S.C. [sections] 9613(f)(2) (1994).

(61) Stach, supra note 53, at 42.

(62) Araiza, supra note 13, at 207.

(63) Pinal Creek Group v. Newmont Mining Corp., 926 F. Supp. 1400, 1409 (D. Ariz. 1996).

(64) 511 U.S. 809 (1994).

(65) Id. at 814 (holding that attorney fees were not response costs).

(66) Id. at 811.

(67) Id. at 812.

(68) Id.

(69) Id.

(70) Id. at 818.

(71) Id. at 818 n. 11.

(72) Id. at 816.

(73) See, e.g., Adhesives Research, Inc. v. American Inks & Coatings Corp., 931 F. Supp. 1231, 1246 (M.D. Pa. 1996) (stating that the Supreme Court's language in Key Tronic lends support to the court's decision to allow a PRP to bring a cost recovery action); Laidlaw Waste Sys., Inc. v. Mallinckrodt, Inc., 925 F. Supp. 624, 629-31 (E.D. Mo. 1996) (citing Key Tronic and holding that plaintiff PRP had standing to bring section 107 claim against other PRPs).

(74) Key Tronic, 511 U.S. at 811.

(75) Sire & Riesel, supra note 36, at B6.

(76) Redwing Carriers, Inc. v. Saraland Apts., 94 F.3d 1489, 1513 (11th Cir. 1996) (stating that there are two avenues of recovery for two types of plaintiffs, those liable or potentially liable and those that are innocent).

(77) New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1120 (3rd Cir. 1997) (holding that a PRP who is not entitled to any of the defenses enumerated under subsection 107(b) is, by necessity, limited to a section 113 action for contribution).

(78) Sive & Riesel, supra note 36, at B6.

(79) Robert P. Redemann & Michael F. Smith, The Evolution of PRP Standing Under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 21 WM. & MARY ENWRL. L. & POL'Y REV. 300, 309 (1997) (finding that where liability was adjudicated in a prior civil action, courts limited PRPs to contribution actions).

(80) See supra note 15.

(81) Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 764 (7th Cir. 1994).

(82) Redwing Careers, Inc. v. Saraland Apts., 94 F.3d 1489, 1513 (11th Cir. 1996).

(83) New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1120 (3rd Cir. 1997) (holding that a PRP who is not entitled to any of the defenses enumerated under subsection 107(b) is by necessity limited to a section 113 action for contribution).

(84) United Techs. Corp. v. Browning-Ferris Indus., Inc., 33 F.3d 96, 99 (1st Cir. 1994).

(85) Halliburton, 111 F.3d at 1122.

(86) 42 U.S.C. [sections] 9613(f)(1) (1994) (emphasis added).

(87) Halliburton, 111 F.3d at 1122.

(88) Id. (emphasis added).

(89) United Techs., 33 F.3d at 99 (quoting Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 763, 764 (7th Cir. 1994)).

(90) See, e.g., In re Matter of Reading Co., 115 F.3d 1111, 1120 (3rd Cir. 1997) (holding that a PRP that brought actions against another PRP under both sections 107 and 113 was limited to an action in contribution under section 113).

(91) BLACK'S LAW DICTIONARY 328 (6th ed. 1990).

(92) Id.

(93) Halliburton, 111 F.3d at 1120; United Techs., 33 F.3d at 100-01.

(94) United Techs., 33 F.3d at 100-01.

(95) Reading Co., 115 F.3d at 1120.

(96) United Techs., 33 F.3d at 101; Halliburton, 111 F.3d at 1123.

(97) Halliburton,, 111 F.3d at 1123.

(98) Id.

(99) Id.

(100) E.g., id. at 1122-24 (holding that plaintiff could not sue under section 107 because plaintiff was not an "innocent" party); Rumpke of Ind., Inc. v. Cummins Engine Co., 107 F.3d 1235, 1237-38 (7th Cir. 1997) (concluding that landowner may bring cost recovery action if landowner did not contribute to hazardous waste at the site); AM Int'l, Inc. v. Datacard Corp., 106 F.3d 1342, 1347 (7th Cir. 1997) (holding that landowner who did not contribute to waste spill could sue under section 107 for response costs); Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 764 (7th Cir. 1994) (suggesting that private landowner may be able to pursue cost recovery claim where it is forced to clean up hazardous waste spilled by third party).

(101) Rumpke, 107 F.3d at 1237; Datacard, 106 F.3d at 1347; Akzo, 30 F.3d at 764.

(102) Datacard, 106 F.3d at 1347; Akzo, 30 F.3d at 764.

(103) Akzo, 30 F.3d at 764.

(104) Redwing Carriers, Inc. v. Saraland Apts., 94 F.3d 1489, 1513 (11th Cir. 1996).

(105) Id. (emphasis added).

(106) 42 U.S.C. [sections] 9607(4)(A) (1994); see infra notes 180-81 and accompanying text.

(107) 42 U.S.C. [sections] 9607(a)(4)(B) (emphasis added).

(108) Redwing Carriers, 94 F.3d at 1513.

(109) Aluminum Co. of America v. Beazer E., Inc., 124 F.3d 551, 562 (3d Cir. 1997).

(110) The four covered parties are the following: 1) owners and operators of vessels or facilities; 2) a person who at the time of disposal of hazardous substances owned or operated a facility where such substances were disposed of; 3) generators of hazardous substances or any person who arranges for their disposal or treatment; and 4) transporters of waste, if they participate in the selection of the disposal site or facility. 42 U.S.C. 9607(a).

(111) Beazer, 124 F.3d at 562 (citing 42 U.S.C. [sections] 9613(f)(1)).

(112) New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1124 (3rd Cir. 1997).

(113) Id. at 1123-24.

(114) Sun Co. v. Browning-Ferris, Inc., 124 F.3d 1187 (10th Cir. 1997), cert. denied, 118 S. Ct. 1045 (1998).

(115) Id. at 1193-94.

(116) Amcast Indus. Corp. v. Detrex, 2 F.3d 746 (7th Cir. 1993).

(117) For representative examples, see supra note 14.

(118) 42 U.S.C. [sections] 9607(a)(4)(B) (1994).

(119) 2 F.3d at 746.

(120) Id. at 748.

(121) Id.

(122) Id.

(123) Id.

(124) Id.

(125) Id.

(126) Id. (citing United States v. R.W. Meyer, Inc., 932 F.2d 568, 571 n.2 (6th Cir. 1991); United States v. Mexico Feed & Seed Co., 764 F. Supp. 565, 573 (E.D. Mo. 1991), rev'd in part on other grounds, 980 F.2d 478 (8th Cir. 1992)).

(127) Id.

(128) Id. at 751. The court notes that the defendant may be able to shift some of the liability back onto the plaintiff in its contribution lawsuit. Id.

(129) See supra note 14.

(130) Pinal Creek Group v. Newmont Mining Corp., 926 F. Supp. 1400, 1405 (D. Ariz. 1996), rev'd, 118 F.3d 1298 (9th Cir. 1997), cert. denied, 66 U.S.L.W. 3364 (U.S. June 22, 1998) (No. 97-795).

(131) Id.

(132) Id. at 1407.

(133) Id. at 1407-08.

(134) Id. at 1408.

(135) Id. at 1409-10.

(136) Id.

(137) Id. at 1410.

(138) Id. at 1410 n. 12 (citing the Uniform Contribution Among Joint Tortfeasors Act, ARIZ. REV. STAT. ANN. [subsections] 12-2501 to 12-2509 (West 1995)).

(139) See, e.g., Sun Co. v. Browning-Ferris, Inc., 124 F.3d 1187, 1193 (10th Cir. 1997) (stating that while PRP's liability is determined by section 107, subsection 113(f) determines apportionment of a PRP's several liability), cert. denied, 118 S. Ct. 1045 (1998); Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930, 936 (8th Cir. 1995) (stating that once a party is found liable as a responsible party under section 107, that party is liable for its fair share of the response costs as determined by section 113).

(140) Sun Co., 124 F.3d at 1193; Control Data, 53 F.3d at 936.

(141) 124 F.3d 1187 (10th Cir. 1997), cert. denied, 118 S. Ct. 1045 (1998).

(142) Id. at 1191.

(143) The Tenth Circuit dismissed the plaintiffs traditional cost recovery action under section 107. Id. at 1193.

(144) 53 F.3d 930 (8th Cir. 1995).

(145) Id. at 935.

(146) Id. at 934.

(147) Id. at 936.

(148) U.S. Geological Survey, supra note 5.

(149) Id.

(150) Pinal Creek Group v. Newmont Mining Corp., 926 F. Supp. 1400, 1402 (D. Ariz. 1996).

(151) Id. at 1400.

(152) Id. at 1402. All are concededly liable parties under section 107.

(153) Id.

(154) Id. at 1400, 1402-03. These companies were Newmont Mining Corporation, Occidental Petroleum Company, CanadianOxy Offshore Production Company, Atlantic Richfield Company, and Phelps Dodge Corporation.

(155) Pinal Creek, 926 F. Supp. at 1402.

(156) Id. at 1403.

(157) Id. at 1405. See supra notes 130-38 and accompanying text.

(158) Id. at 1415.

(159) Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1306 (9th Cir. 1997), cert. denied, 66 U.S.L.W. 3364 (U.S. June 22, 1998) (No. 97-795).

(160) See supra note 139 and accompanying text.

(161) Pinal Creek, 118 F.3d at 1301.

(162) Id. at 1303 (citing Key Tronic Corp. v. United States, 511 U.S. 809, 818 n.11 (1994); New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1120 (3d Cir. 1997); Redwing Carriers, Inc. v. Saraland Apts., 94 F.3d 1489, 1496 (llth Cir. 1996); United States v. Colorado & E. R.R. Co. (CERC), 50 F.3d 1530, 1536 (10th Cir. 1995); United Techs. Corp. v. Browning-Ferris Indus., Inc., 33 F. 3d 96, 99 n.8, 100 (1st Cir. 1994); Amoco Oil Co. v. Borden, Inc., 889 F.3d 664, 672-73 (5th Cir. 1989)).

(163) Id.

(164) Id.

(165) Id. (citing H.R. REP. No. 99-253, at 18, 19 (1986), reprinted in 1986 U.S.C.C.A.N. 3038, 3041; S. REP. No. 99-11, at 43 (1985), reprinted in 2 LEGISLATIVE HISTORY OF THE SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986, at 635 (1990); United Techs., 33 F.3d at 100-01).

(166) Id.

(167) Id.

(168) Id.

(169) Id.

(170) Id. at 1303 n.4.

(171) Id. (citing Ciba-Geigy Corp. v. Sandoz Ltd., No. Civ. A. 92-4491, 1993 WL 668325, at *7 (D.N.J. June 17, 1993)).

(172) Id.

(173) Id.

(174) Id.

(175) Id.

(176) Id. at 1301.

(177)42 U.S.C.[sections] 9607(a)(4) (1994).

(178) In Key Tronic Corp. v. United States, the Supreme Court recognized that "[section] 107 unquestionably provides a cause of action for private parties to seek recovery of cleanup costs." 511 U.S. 809, 818 (1994).

(179) Laidlaw Waste Sys., Inc. v. Mallinckrodt, 925 F. Supp. 624 (E.D. Mo. 1996); Companies for Fair Allocation v. Axil Corp., 853 F. Supp. 575, 579 (D. Conn. 1994); New Castle County v. United States, 642 F. Supp. 1258, 1264 (D. Del. 1986).

(180) 42 U.S.C. [sections] 9601(21) (1994). Section 101 defines person as "an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, State, municipality, commission, political subdivision of a State, or any interstate body." Id.

(181) Araiza, supra note 13, at 210-11.

(182) 42 U.S.C. [sections] 9613(g)(2) (1994).

(183) United States v. Taylor, 909 F. Supp. 355, 365 (M.D.N.C. 1995).

(184) Many courts have allowed cost recovery actions based on the broad language of section 107. Southland Corp. v. Ashland Oil, Inc., 696 F. Supp 994, 1002-03 (D.N.J. 1998); Adhesives Research, Inc. v. American Inks & Coatings Corp., 931 F. Supp. 1231, 1246 (M.D. Pa. 1996); Mallinckrodt, 925 F. Supp. at 630; Pneumo Abex Corp. v. Bessemer & Lake Erie R.R. Co., 921 F. Supp. 336, 347 (E.D. Va. 1996); Barmet Aluminum Corp. v. Doug Brantley & Sons, Inc., 914 F. Supp. 159, 162 (W.D. Ky. 1995); Bethlehem Ironworks, Inc. v. Lewis Indus. Inc., 891 F. Supp. 221, 225 (E.D. Pa. 1995); Taylor, 909 F. Supp. at 361.

(185) 42 U.S.C. [sections] 9613(f)(1) (1994).

(186) Id. [sections] 9613(f)(1).

(187) Id. [sections] 9613(f)(3)(B) (emphasis added).

(188) Id.

(189) Id. [sections] 9613(g)(3) (emphasis added).

(190) United States v. Taylor, 909 F. Supp. 355, 365 (M.D.N.C. 1995).

(191) Wolf, Inc. v. L. & W. Serv. Ctr., Inc., No. 4:CV96-3099, 1997 WL 141685, at *7 (D. Neb. Mar. 27 1997).

(192) United States v. SCA Servs. of Ind., Inc., 849 F. Supp. 1264, 1283 (N.D. Ind. 1994), reconsideration denied, 865 F. Supp. 533 (N.D. Ind. 1994). 193 Id.

(194) SCA Servs. of Ind., 865 F. Supp. at 542.

(195) Redemann & Smith, supra note 79, at 338.

(196) Bethlehem Ironworks, Inc. v. Lewis Indus., Inc., 891 F. Supp. 221, 225 (E.D. Pa. 1995).

(197) Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1305 (9th Cir. 1997), cert. denied, 66 U.S.L.W. 3364 (U.S. June 22, 1998) (No. 97-795).

(198) United States v. Atlas Minerals & Chems., Inc., No. Civ. A. 91-5118, 1995 WL 510304, at *77 (E.D. Pa. Aug. 22, 1995).

(199) 42 U.S.C. [sections] 9613 (f)(1) (1994).

(200) H.R. REP. No. 99-253, at 19 (1986), reprinted in 1986 U.S.C.C.A.N. 2835, 3038, 3041-42.

(201) S. REP. No. 99-11, at 44 (1985), reprinted in 2 LEGISLATIVE HISTORY OF THE SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986, at 636 (1990) (emphasis added).

(202) Pinal Creek, 118 F.3d at 1301.

(203) See, e.g., Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887 (9th Cir. 1986) (allowing present owner to bring cost recovery action against previous owner despite lack of governmentally authorized cleanup); Sand Springs Home v. Interplastic Corp., 670 F. Supp. 913 (N.D. Okla. 1987) (finding that plaintiff PRP, owner of hazardous waste site, could bring section 107 action against defendants who disposed of waste at site); Pinole Point Properties, Inc. v. Bethlehem Steel Corp., 596 F. Supp. 283 (N.D. Cal. 1984) (holding that present owner of disposal site has standing to state claim for relief under section 107); City of Philadelphia v. Stepan Chem. Co., 544 F. Supp. 1135 (E.D. Pa. 1982) (concluding that city, as owner of landfill, could maintain its cost recovery action against defendants who illegally dumped hazardous waste).

(204) The language of subsection 113(f), allowing contribution from "any other person who is liable," supports this conclusion. See Southland Corp. v. Ashland Oil, Inc., 696 F. Supp. 994, 1002-03 (D.N.J. 1988) (interpreting the language of subsection 113(f) as supporting contribution).

(205) 804 F.2d 1454 (9th Cir. 1986).

(206) Id. at 1455.

(207) Id. at 1457 n.3.

(208) 951 F.2d 246 (9th Cir. 1991).

(209) Id. at 249.

(210) Id.

(211) See id. (upholding bankruptcy court's decision to apportion liability in part because Dant & Russell argued that Burlington Northern should pay portion of cleanup costs).

(212) Id. at 247.

(213) Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1302 (9th Cir. 1997), cert. denied, 66 U.S.L.W. 3364 (U.S. June 22, 1998) (No. 97-795).

(214) Id. at 1303.

(215) Id.

(216) RESTATEMENT (SECOND) OF TORTS [sections] 886A(1), cmts. b, e (1977).

(217) Michael V. Hernandez, Cost Recovery or Contribution?: Resolving the Controversy over CERCLA, 21 HARV. ENVTL. L. REV. 83, 118 (1997).

(218) See, e.g., Sand Springs Home v. Interplastic Corp., 670 F. Supp. 913, 916 (N.D. Okla. 1987) (holding that there is implied right to contribution where PRP brought and was allowed to maintain section 107 cost recovery action against other PRPs).

(219) Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1305 (9th Cir. 1997), cert. denied, 66 U.S.L.W. 3364 (U.S. June 22, 1998) (No. 97-795).

(220) Id.

(221) Id. at 1303.

(222) Id.

(223) Id.

(224) E.g., Town of New Windsor v. Tesa Tuck Inc., 919 F. Supp. 662, 681 (S.D.N.Y. 1996); General Elec. Co. v. Buzby Bros. Materials Corp., No. 87-4263, slip op. at 5 (D.N.J. Aug. 12, 1996); Caldwell Trucking PRP Group v. Spaulding Composites Co., No. 94-3531, 1996 WL 608490 (D.N.J. Apr. 22, 1996); City of Fresno v. NL Indus., 25 Envtl. L. Rep. (Envtl. L. Inst.) 21,465 (E.D. Cal. 1995).

(225) Hernandez, supra note 217, at 120.

(226) Id.

(227) Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1303 (9th Cir. 1997), cert. denied, 66 U.S.L.W. 3364 (U.S. June 22, 1998) (No. 97-795).

(228) WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW 201 (1987).

(229) Pinal Creek Group v. Newmont Mining Corp., 926 F. Supp. 1400, 1405 (D. Ariz. 1996), rev'd, 118 F.3d 1298 (9th Cir. 1997), cert. denied, 66 U.S.L.W. 3364 (U.S. June 22, 1998) (No. 97-795).

(230) Stach, supra note 53, at 34.

(231) Pinal Creek, 926 F. Supp. at 1405.

(232) Hernandez, supra note 217, at 121-26.

(233) Stach, supra note 53, at 37-38.

(234) Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1304 (9th Cir. 1997), cert. denied, 66 U.S.L.W. 3364 (U.S. June 22, 1998) (No. 97-795). 235 Id.

(236) Id.

(237) Id. at 1306.

(238) Pinal Creek Group v. Newmont Mining Corp., cert. denied, 66 U.S.L.W. 3364 (June 22, 1998) (No. 97-795).

TAMARA A. TAYLOR, Attorney, Benton County Prosecutor's Office; J.D. 1998, Northwestern School of Law of Lewis & Clark College; Environmental and Natural Resources Law Certificate 1998; B.A. cum laude in Political Science, 1995, Washington State University. The author wishes to thank Professor Craig Johnston for his valuable comments. This Chapter is dedicated to the loving memory of James J. Mudra.
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