Narrowing the Roads of Private Cost Recovery: Recent Developments Limiting the Recovery of Private Response Costs Under CERCLA §107

November 1995

Citation:

ELR 10593

Issue

Author

Steven F. Baicker-McKee and James M. Singer

Editors' Summary: Despite adding the §113(f) "contribution" provision to CERCLA in 1986, Congress did not indicate whether the section was meant to supplement private parties' efforts to recover response costs form other potentially responsib parties's efforts to recover response costs form other potentially responsible parties under CERCLA §107 or was meant to preclude such cost recovery actions. More and more courts that address this issue are requiring plaintiffs to file §113(f) actions. The differences between the two types of actions are sufficiently significant to render important under which section a party's claim arises.

This Article addresses the differences between the two types of actions and reviews CERCLA's liability scheme and the case law that sets forth the two primary approaches courts have used to address the relationship between §107 and §113(f). the authors suggest a straightforward approach for courts to use that reconciles the various CERCLA provisions that the dichotomy affects.

Steven F. Baicker-McKee is a shareholder in the litigation group of Babst, Calland, Clements & Zomnir. He received a B.A. from Yale University in 1980 and graduated from Marshall-Wythe School of Law, College of William and Mary, in 1987. Mr. Baicker-McKee has experience in Superfund cost recovery actions, environmental insurance coverage disputes, toxic tort actions, defamation and media law, products liability, and a wide variety of commercial and environmental issues. He also has authored a book on the rules of civil procedure for litigation in federal court.

James M. Singer is an associate in the environmental group of Babst, Calland, Clements & Zomnir. He received a B.S. in electrical engineering from Pennsylvania State University in 1989. Mr. Singer graduated from the University of Pittsburgh School of Law in 1994. Mr. Singer has experience in the regulation of air pollutants, industrial site redevelopment, and other environmental issues.

The authors thank Kenneth K. Kilert for his advice and comments in the preparation of this Article.

Narrowing the Roads of Private Cost Recovery: Recent Developments Limiting the Recovery of Private Response Costs Under CERCLA §107

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Narrowing the Roads of Private Cost Recovery: Recent Developments Limiting the Recovery of Private Response Costs Under CERCLA §107