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Contribution Claims Under Section 113(f)(1) of CERCLA: Preconditions, Elements of Liability, and Entitlement to Relief

February 2002

Citation: ELR 10151

Author: John M. Hyson

The federal courts are in agreement1 that an action by a potentially responsible party (PRP) against another PRP to recover privately incurred response costs is a claim for contribution in which the plaintiff is limited to the relief that is available under § 113(f)(1)2 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).3 This Article considers: (1) the preconditions for the assertion of contribution claims under § 113(f)(1); (2) the plaintiff's burden in establishing a defendant's liability; and (3) the plaintiff's burden in establishing entitlement to relief.

[Editors' Note: This Article will appear as a chapter in a forthcoming monograph by Professor Hyson, to be published by the Environmental Law Institute in the spring of 2002. The monograph will thoroughly discuss private cost recovery actions under the Comprehensive Environmental Response. Compensation, and Liability Act (CERCLA). Although there has been a significant decrease in the number and scope of government enforcement actions under CERCLA, a marked increase in private cost recovery actions is occurring. Only in recent years have the courts begun to straighten out the relationship between CERCLA's imposition of liability for private response costs and CERCLA's provision of a right to contribution. But the courts are still struggling with a number of questions involving the relationship between CERCLA's liability provision, § 107, and the statute's contribution provision, § 113(f). These and other issues are comprehensively addressed in the monograph; in addition, Professor Hyson goes beyond the difficult substantive legal issues to provide guidance to practitioners and courts who deal with the complexities and high transition costs of contribution litigation. Throughout the work, Professor Hyson focuses on procedures that might be used to reduce transaction costs. For more information on the monograph, please visit www.eli.org or call 1-800-433-5120 or 202-939-3844.]

John Hyson is a Professor of Law at Villanova Law School.