Friday, January 26, 2007

Another case from the Eighth Circuit Court of Appeals going up to the Supremes: Atlantic Research v. USA 05-3152 (WD Ark 2006) whether parties may seek contribution for superfund cleanup costs. See Scotusblog. Atlantic Research contaminated its area where the company retrofitted rocket motors for the federal government during the 80's. Bloggers note that industry, state governments and enviromentalists came together on the same side. The issue’s importance to owners of Superfund sites, which include many industrial corporations, is self evident: remediation of these “brownfield” sites can be so costly that, without a legal mechanism to share costs prior to EPA-initiated clean-ups, these properties remain abandoned until EPA turns its attention to them. But EPA has so many sites to attend to that it could be years before it seeks to compel clean-up at any given site. Granting a pre-enforcement contribution right, landowners contend, allows them to clean up property much earlier than they otherwise would and reap the benefit from idling assets, and the Eighth Circuit along with the 2nd circuit agreed. The United States Supreme Court earlier in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 125 S. Ct. 577, 160 L. Ed. 2d 548 (2004) (“Aviall”) found that a party could only attempt to obtain § 113(f) contribution “during or following” a §§ 106 or 107(a) CERCLA civil action. Id. at 161, 125 S. Ct. at 580. Atlantic Research amended its complaint to seek Section 107(a) contribution. The Western District of Arkansas Federal Court dismissed the complaint on the federal governments 12b6 motion. The Eighth Circuit reversed finding that after Aviall, Section 107a provides a distinct avenue to recover cleanup costs, following a 2nd Circuit opinion holding this, Consolidated Edison Co. v. UGI Utilities, Inc., 423 F.3d 90, 100 (2d Cir. 2005 at 99. {“it no longer makes sense” to view section 113(f)(1) as the exclusive route by which liable parties may recover cleanup costs. } Therefore [the eighth circuit] concluded that the broad language of § 107 supports not only a right of cost recovery but also an implied right to contribution.

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