ELR Citation: ELR 20069
No(s). 00-10197 (5th Cir. Aug 14, 2001)

The court affirms a district court holding that a current owner of contaminated property could not seek Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §113 contribution against a previous owner of the property unless the current owner had incurred or at least faced liability under a CERCLA §106 administrative abatement action or a CERCLA §107 cost recovery action. The court first holds that the plain language of CERCLA §113(f)(1) requires a party seeking contribution to be or to have been a defendant in a §106 or §107 action. Although §113(f)(1) states that any person may seek contribution during or following a §106 or §107 action, the word "may" establishes an exclusive cause of action and means "shall" or "must." Likewise, the CERCLA §113(f)(1) savings clause, which states that nothing in §113(f) shall diminish the right of any person to bring a contribution action in the absence of a §106 or §107 action, does not allow contribution suits regardless of whether the parties are defendants in a §106 or §107 action. The §113(f) savings clause merely states that the statute does not affect a party's ability to bring contribution actions based on state law. A contrary interpretation would impermissibly nullify that part of §113(f)(1) that requires a party seeking contribution to face a §106 or §107 action. Moreover, the legislative history of CERCLA reinforces the analysis that parties found liable under §106 or §107 have a right to contribution. In addition, the majority of the courts addressing §113(f)(1) have held that a §106 or §107 action must be pending or adjudicated for a party to seek contribution. Therefore, because the current owner conceded that it did not file its §113(f)(1) contribution claim during or following a §106 or §107 action, the district court properly dismissed the current owner's contribution action against the previous owner.

Counsel for Plaintiff
Richard O. Faulk
Gardere, Wynne & Sewell
1000 Louisiana St., Houston TX 77002
(713) 276-5500/5651

Counsel for Defendant
Dale E. Stephenson
Squire, Sanders & Dempsey
4900 Key Tower
127 Public Sq., Cleveland OH 44114
(216) 479-8500/8675

Garza, J. Before Wiener, J., dissenting, and Barksdale, J.