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Kotrous v. Goss-Jewett Co. of N. Cal.

ELR Citation: 38 ELR 20091
Nos. Nos. 06-15162, -16019, (9th Cir., 04/17/2008)

The Ninth Circuit, in light of the U.S. Supreme Court's decision in United States v. Atlantic Research Corp., 127 S. Ct. 2331, 37 ELR 20139 (2007), vacated and remanded two Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) actions seeking recovery of costs associated with the cleanup of hazardous waste sites. In Atlantic Research, the Supreme Court held that §107(a) provides potentially responsible parties (PRPs) with a cause of action to recover costs from other PRPs, whereas §113 provides an action for contribution. In so holding, the Court undermined the Ninth Circuit's ruling in Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 27 ELR 21211 (9th Cir. 1997) that §107 entitles PRPs to seek only contribution, not cost recovery, from other PRPs. To the extent, therefore, that Pinal Creek conflicts with Atlantic Research, Pinal Creek has been overruled. As such, the plaintiffs are entitled to bring a claim for recovery of costs under §107(a) even if they are PRPs. However, they must seek cost recovery under §107, not contribution under §113, because they have not been subject to an action under CERCLA §§106 or 107.