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

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 int he preparation of this Article.

[25 ELR 10593]

Enacted in 1980, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)¹ continues to evolve as courts interpret the Act in new ways. In particular, the contours of private causes of action under CERCLA are changing because in a growing number of cases, courts have barred many private parties from pursuing the traditional avenue for the recovery of response costs under CERCLA. These courts have held that private parties who are themselves also liable under CERCLA may not recover costs under § 107, but rather are restricted in their attempts to recover such costs under CERCLA to the Act's contribution provision, § 113(f).

This Article discusses the importance of the means available to recover costs under CERCLA to parties who face CERCLA liability at contaminated sites, and it describes the two primary schools of thought that have emerged in case law regarding the relationship between §§ 107 and 113(f). This Article also suggests an approach to reconcile the various CERCLA provisions that the § 107/§ 113(f) dichotomy affects.

Section 107 or Section 113(f)? Why It Matters

The focus of this Article begs the following question: "Why does anyone care which section a party's claim arises under?" Although both §§ 107 and 113(f) provide generally similar rights of recovery, some differences in the actions brought under each section can be quite significant, depending on the way the court construes CERCLA. These differences are most significantly related to (1) the nature of liability that attaches under each section; (2) the statutes of limitations that courts apply to each section; and (3) the contribution protection provided to parties settling with the government.

In actuality, the distinction between § 107 and § 113(f) should be one of form, not function. Whether a contribution claim between two potentially responsible parties (PRPs) is labelled a § 107 claim or a § 113 claim should not affect the allocation of liability, the statute of limitations, or contribution protection. The sections' statutory language does not indicate that the result should depend on whether the claim has been brought under § 107 or under § 113. Unfortunately, courts appear to be overreacting, redrafting a central component of CERCLA's liability scheme instead of fine-tuning some of the Act's procedural provisions. In any event, as long as differences exist from court to court in the nature of CERCLA liability and in the way courts apply the Act's procedural provisions, the significant differences noted above may remain.

Allocation of Liability

Section 107 declares PRPs liable for "all costs of removal or remedial action incurred by [government entities, as well as] any other necessary costs of response incurred by any other person consistent with the national contingency plan."² Although not clearly articulated in the Act, § 107 has nearly always been interpreted to impose joint and several liability on PRPs.³ The primary effect of joint and several liability under § 107 is that the party performing the cleanup may sue a limited number of defendants who then face potential exposure for the entire cleanup, less amounts attributable to the plaintiff in a counterclaim. Defendants in a § 107 action may therefore be saddled with orphan share liability, which is that liability attributable to insolvent or unlocated defendants.⁴ Accordingly, to avoid the risk of this excess liability, the named defendants must find and join any additional PRPs that are not present in the action.

Section 113(f), however, expressly allocates liability among all parties using " equitable factors."⁵ Courts frequently state that the liability of a contribution claim defendant may be limited in accordance with the defendant's contribution to the contamination in question; that is, the defendant will be held responsible only for its fair share, and orphan shares may remain with the plaintiffs.⁶ Accordingly, a plaintiff PRP that is limited to a § 113(f) action may have to name all PRPs as defendants in the complaint, because the named defendants will have less incentive to joint other PRPs if they are not faced with the extra liability that they potentially face under § 107.⁷

Statutes of Limitations

CERCLA § 113(g) sets forth the statutes of limitations for § 107 and § 113 actions. Section 113(g)(2) provides that "initial" actions for response cost recovery under § 107 must generally be commenced no more than six years after physical on-site construction for the remedial action is begun.⁸ Section 113(g)(3) provides that "contribution" actions must be commenced within three years after the date of a judgment, administrative order, or judicially approved settlement pertaining to CERCLA costs.⁹ It is not uncommon for courts to have to decide which statute of limitations to apply to actions between PRPs.

Both § 113(f) and § 113(g)(3) are labelled "Contribution."¹⁰ Therefore, many courts have ruled that § 113(f) contribution claims are subject to the § 113(g)(3) contribution statute of limitations. The contribution statute of limitations, however, is by its terms limited to cases involving one of the three specific events listed in § 113(g)(3): A judgment, an administrative order, or a judicially approved settlement.¹¹ In many situations, such as a "voluntary" response, a PRP will conduct remedial activities and none of these triggering events will ever occur. If § 113(g)(3) is the only applicable statute of limitations for such "contribution claims," it is unclear whether any statute of limitations ever starts to run.¹² As at least one court has noted, "it seems strange that no statute of limitations applies to these parties."¹³

Contribution Protection

CERCLA § 113(f)(2) provides that any person that has resolved its liability to the government in an administrative or judicially approved settlement is not liable for contribution claims regarding matters addressed in the settlement.¹⁴ This provision gives rise to the issue of whether the protection extends to § 107 claims. Some courts have viewed the use of § 107 as an attempt to avoid the contribution protection § 113(f)(2) affords and have reacted by deciding that § 107 claims are unavailable to private PRPs.¹⁵

CERCLA's Liability Scheme: An Historical Overview

Much of the confusion surrounding private causes of action between PRPs under CERCLA stems from the fact that § 113 was enacted six years after § 107 was enacted and that Congress did not clearly indicate how the sections are, or might be, linked. Courts have struggled to reconcile the relative scopes of §§ 107 and 113(f). This difficulty has led to an abandonment of what had been viewed as established interpretations of § 107.

Section 107 CERCLA was enacted in 1980 in response to growing public concern about the public health hazard posed by the past disposal of toxic and hazardous wastes and the continuing threat of spills and other releases of such materials.¹⁶ To ensure that those responsible for environmental contamination contribute to the cleanup of that contamination, § 107(a) established the liability scheme that is as central to the Act today as it was in 1980.¹⁷

In essence, § 107(a) provides that whenever a release of hazardous substances causes response costs to be incurred, four categories of persons¹⁸ are liable for those costs: (1) the present owner or operator of the facility in question; (2) the owner or operator of the facility at the time of the disposal of hazardous substances; (3) any person who arranged for treatment or disposal of hazardous substances at the facility; and (4) any transporter of hazardous substances to the facility.¹⁹ Section 107(a)(4)(A) imposes liability on such persons for response costs the federal government or a state incurs, and § 107(a)(4)(B) imposes liability for response costs "any other person" incurs.²⁰ PRPs, or persons who fit one of the four § 107(a) categories, typically find it very difficult to avoid CERCLA liability, as the few available defenses to liability are often impossible to establish.²¹

After CERCLA was enacted, courts were quickly confronted with the question of whether CERCLA provided a cause of action for persons other than federal or state government entities. A majority of courts held that § 107 allows private causes of action for response costs. For example, in City of Philadelphia v. Stepan Chemical Co.,²² the district court stated that CERCLA's "liability provision is an integral part of [the statute] for it gives a private party the right to recover its costs from responsible third parties."²³ Similarly, in Colorado v. ASARCO, Inc.,²⁴ the district court noted that a PRP's ability to sue another PRP for response costs was a powerful means of achieving CERCLA's goal of quickly cleaning up hazardous waste sites.²⁵ By 1986, courts addressing the issue had become virtually unanimous in allowing private parties to recover their costs of response from other PRPs through CERCLA litigation.

SARA and Section 113(f)

In 1986, Congress added to CERCLA the Superfund Amendments and Reauthorization Act (SARA).²⁶ A key provision of SARA is § 113(f), which is entitled " Contribution." It states that "any person may seek contribution from any other person who is liable or potentially liable under section 107(a)."²⁷

Congress indicated that § 113(f) was enacted to "clarify and confirm that parties found liable under . . . CERCLA have a right of contribution which would allow them to sue other liable or potentially liable person."²⁸ Unfortunately, neither § 113(f)'s language nor SARA's legislative history settled whether § 113(f) was intended to preclude cost recovery actions that private PRPs brought under § 107, or whether it was intended merely to supplement § 107. This ambiguity is the root of the dispute over the relative scopes of §§ 107 and 113(f).

Post-SARA Case Law

In the first years after Congress added § 113(f) to "clarify and confirm" the right of private contribution under CERCLA, courts continued to allow PRPs to maintain § 107 private cost recovery actions, often taking for granted the right of a PRP to bring a § 107 action.²⁹ Recently, however, a significant number of courts have questioned whether private PRPs may bring actions under § 107 or are restricted to § 113(f) actions. An examination of the reasoning these courts employed in resolving these issues provides insight as to the nature and implications of the § 107/§ 113(f) distinction.

Cases Limiting PRPs to Section 113(f) Claims

More and more courts are holding that PRPs are limited to § 113(f) claims when they bring private causes of action under CERCLA.³⁰ In general, the decisions are based on a simple premise: When a liable party sues another party to recover a portion of the amount for which the claimant has been found liable, that claim appears to be a classic claim [25 ELR 10596] for contribution. Noting that the title of § 113(f) is "Contribution," these courts have summarily concluded that liable parties must use § 113(f) to bring their claims.³¹ The cases reaching this conclusion are often result-oriented, using the distinctions between §§ 107 and 113(f) as a means to place liability where the court believes it belongs in that case. The U.S. Courts of Appeal for the First, Seventh, Ninth, and Tenth Circuits have issued such interpretations.

Contribution Protection Cases

The most common fact pattern prompting courts to restrict PRPs to § 113(f) claims involves the § 113(f)(2) contribution protection provision. Typically, the defendant has settled with the government and is then sued by another PRP. Section 113(f)(2) protects the settling party from claims for contribution regarding matters addressed in the settlement. To prevent settling defendants from circumventing § 113(f)(2) by bringing claims under § 107, many courts have held that PRPs cannot maintain claims under § 107.³²

An example of this scenario arose in Akzo Coatings, Inc. v. Aigner Corp.³³ The court denied a PRP's § 107 claim against a party that had settled with the government, because the court believed that the plaintiff was trying to bypass CERCLA's contribution protections. A similar result was reached in United States v. Colorado & Eastern Railroad Co.³⁴ In that case two PRPs had entered into a consent decree in which they agreed to finance and perform all remedial activities at a contaminated site. These PRPs then filed claims under §§ 107 and 113(f) against other PRPs that had already resolved their liability to the government for contamination at the site through a separate consent decree. The court refused to allow the PRP-plaintiffs' § 107 claim, and it only permitted their § 113(f) claim to the extent that it concerned matters not addressed in the settlement.³⁵

Statute of Limitations Cases

Another common fact pattern prompting courts to restrict PRPs to § 113(f) involves the statutes of limitations that apply to private actions under CERCLA.³⁶ For example, in United Technologies Corp. v. Browning-Ferris Industries, Inc.,³⁷ a private party agreed to perform remedial activities at a contaminated landfill. This agreement was formalized in a consent decree that was entered in 1986. Almost six years later, the party brought suit against other PRPs to recover its past and future response costs. Because the suit was brought more than three years after the entry of a CERCLA consent decree, the court held that the § 113(g)(3) contribution claim statute of limitations barred the action. The court noted that it perceived the plaintiff's § 107 claim as an attempt to avoid that statute of limitations, and, therefore, limited the plaintiff to a § 113(f) claim and found that its entire claim was time barred.³⁸

Ekotek Site PRP Committee v. Self,³⁹ presented an interesting twist on the statute of limitations issue. In Ekotek the district court dismissed § 107 claims based on precedent set forth in Colorado & Eastern and allowed the § 113(f) claims for future costs to proceed, even though the plaintiffs had let the § 113(g)(3) three-year statute of limitations lapse by not acting on their claims in more than three years since they entered into a consent order with the U.S. Environmental Protection Agency. The court explained that because the consent order only encompassed past government costs and not future costs, which the plaintiffs were seeking, the consent order did not trigger the statute of limitations for the costs that were the subject of the plaintiffs' contribution claim.⁴⁰

Cases Allowing PRPs to Use Both Section 107 and Section 113(f)

A substantial number of courts have allowed PRPs to pursue claims under either § 107 or § 113(f).⁴¹ These courts found support for this approach in the wording of § 107(a)(4)(A) and 107(a)(4)(B). Section 107(a)(4)(A) provides that PRPs are liable to the United States, and § 107(a)(4)(B) provides that PRPs are liable to "any other person."⁴² These courts [25 ELR 10597] also gave the phrase "any other person" its plain meaning, and they refused to restrict the phrase to persons who were not liable in some way for conditions at the facility in question.

Bethlehem Iron Works, Inc. v. Lewis Industries, Inc.,⁴³ is illustrative of this line of cases.⁴⁴ In Bethlehem, the owners and operators of a steel fabricating facility brought a § 107 cost recovery action against the facility's former owners and operators. Despite the defendant PRPs' argument that the plaintiffs could not bring § 107 claims because the plaintiffs were PRPs, the court allowed the claims, noting that CERCLA "does not provide that section 113(f) is the exclusive remedy for potentially liable parties."⁴⁵ The court also stated that permitting the plaintiffs to proceed with § 107 claims "comports with CERCLA's goal of encouraging parties to initiate cleanup operations promptly and voluntarily."⁴⁶

In Charter Township of Oshtemo v. American Cyanamid Co.,⁴⁷ the court allowed a private PRP to bring a § 107 action but also modified the "joint and several liability" standard. The court viewed the PRP plaintiffs in a § 107 action as still proportionately responsible for orphan shares attributable to insolvent or bankrupt PRPs. The court, however, retained the joint and several liability standard to the extent that the PRP plaintiffs were not held responsible for the defendants' failure to bring contribution actions against other solvent PRPs. Liability attributable to solvent defendants not present in the action was, therefore, allocated to the named defendants.

While many other cases have expressly held that both § 107 claims and § 113(f) claims are available to private PRPs,⁴⁸ significant support for allowing PRPs to bring both types of claims can also be found in Key Tronic Corp. v. United States.⁴⁹ In Key Tronic, the U.S. Supreme Court stated that CERCLA "expressly authorizes an action for contribution in § 113 and impliedly authorizes a similar and somewhat overlapping remedy in § 107."⁵⁰ Although this statement was merely dicta, it reflects the Court's detailed analysis of both § 107 and § 113 to determine the contours of a cause of action by a PRP. By noting that § 107 "impliedly authorizes private parties to recover cleanup costs from other PRP's [sic],"⁵¹ the Court suggested that a § 107 action is available to a PRP notwithstanding the availability of a similar action under § 113.

"Hybrid" Cases

Not all cases fit precisely into the two categories described.⁵² For example, some courts consider § 107 and § 113(f) as working together to create a single cause of action. In Transtech Industries, Inc. v. A&Z Septic Clean,⁵³ the court explained that it is erroneous to view § 107 and § 113(f) as separate, because "the two sections work together, one governing liability and the other governing contribution from those found liable."⁵⁴ Accordingly, the court held that a "[Section] 107(a) action against defendants is authorized by Section 113(f)(1)'s contribution provisions."⁵⁵

In another "middle ground" approach, a district court adopted an interpretation that partially, but not totally, precludes PRPs from bringing § 107 actions. While allowing a PRP to bring a § 107 claim so long as the party is only potentially responsible under CERCLA, the court in United States v. SCA Services of Indiana, Inc.,⁵⁶ held that once a PRP's liability has been actually established, that PRP may only pursue contribution under § 113(f). In SCA Services, a PRP that the government sued filed third-party claims against other PRPs alleging that they were liable for the cross-claiming PRP's response costs under § 107. The court noted that, while the cross-claiming PRP had signed a consent decree and conducted response activities, this PRP had neither actually admitted liability in the consent decree nor formally been found liable with respect to the site.⁵⁷ Accordingly, the court held that the cross-claiming PRP could maintain its § 107 third-party claims.⁵⁸

An Alternate Interpretation of CERCLA's Section 107 and Section 113(f) Liability Scheme

Despite the frequency with which the § 107/§ 113(f) issue has arisen, courts have yet to consider an interpretation that reconciles the two sections, is consistent with other CERCLA sections, and furthers the Act's underlying goals.⁵⁹ An approach that accomplishes these three aims views §§ 107 and 113(f) as overlapping, but not completely identical, [25 ELR 10598] and as working together to support two distinct, yet consistent, causes of action.

Under the plain and unambiguous language of § 107, which allows "any . . . person" who has incurred "costs of response" to recover those costs from other parties deemed liable under CERCLA, any PRP who has directly incurred response costs should be allowed to bring a § 107 cost recovery action. Any other interpretation of CERCLA is violative of § 107's language. On the other hand, any party who has not directly incurred response costs, but who instead has paid another party in satisfaction of a claim for response costs or who faces a claim for response costs, could only state a claim for costs under § 113(f).

This construction of CERCLA would avoid the unfair results that have prompted the "Section 113(f) only" rulings. For example, many courts have denied PRPs the option of bringing a § 107 claim if such a claim appeared to be a ploy to avoid the contribution protection given to settling parties under § 113(f)(2).⁶⁰ Because Congress intended to "clarify and confirm" the right of contribution that already existed under CERCLA when it adopted § 113, however, it follows that the source of the original right of contribution was § 107. Accordingly, when a PRP brings a claim under § 107, that claim would still be one for contribution that should therefore be subject to the contribution protection restrictions of § 113(f)(2).

This approach would also resolve the statutes of limitations issue with which courts have struggled. The "§ 113(f) only" courts conclude that the contribution statute of limitations should govern such actions, because (1) actions between PRPs are contribution claims that therefore must be brought under the section labelled "Contribution," § 113(f), and (2) they are concerned that plaintiffs will use § 107 to circumvent the § 113(g)(3) three-year statute of limitations that applies to contribution claims. The language of the two statute of limitations provisions, however, does not link the limitations periods to a particular section of CERCLA, but rather to underlying events, such as the commencement of field work for a remedial action or the entry of specified types of orders. By focusing on underlying events, the § 107/§ 113(f) distinction becomes irrelevant to the statutes of limitations analysis. PRPs that actually perform the remediation would be entitled to the long limitations periods necessitated by the lengthy cleanups that occur under CERCLA. Conversely, PRPs that have not incurred response costs would be limited to the shorter limitations periods.

Allowing PRPs to use § 107 would also be consistent with CERCLA's policy objectives. One of CERCLA's paramount policy objectives is to encourage private parties to address environmental conditions without waiting for a court order or agency enforcement action.⁶¹ In contravention of this policy objective, the "Section 113(f) only" approach actually discourages private parties from conducting voluntary cleanups. Section 107 is generally construed to provide for joint and several liability,⁶² thus allowing a private party who steps forward and incurs response costs to be rewarded by shifting to defendants the burden or risk of orphan shares and the onus of finding other PRPs. By making of § 107 actions unavailable to private parties, courts eliminate the primary incentive that private parties currently have under CERCLA to clean up contaminated sites voluntarily. Instead, these courts should allow PRPs who directly incur response costs to bring both § 107 and § 113 claims, thereby promoting CERCLA's policy of encouraging private -party cleanups.

The language in CERCLA § 113(h)(1), the Act's judicial review provision, also supports the use of § 107 by PRPs incurring response costs. Section 113(h)(1) provides that a federal court may review either an "action under section 107 to recover response costs or damages or for contribution."⁶³ By listing all three types of actions as being "under § 107," this provision strongly indicates that actions for response costs, actions for damages, and actions for contribution are available under § 107, and that Congress' addition of § 113 under SARA did not diminish the availability of contribution claims under § 107. This reference therefore supports the conclusion that §§ 107 and 113 can work together to create two overlapping, but not completely identical, causes of action.

A recent case came close to adopting the above approach. In City of Fresnov. NL Industries, Inc.,⁶⁴ a district court held that a claim by a CERCLA-liable party against another PRP must be characterized as a contribution action. The court, however, maintained that the plaintiff's claim was "a civil action under § 107(a)" even though it characterized the claim as a contribution action.⁶⁵ The court reconciled any apparent inconsistency in this holding by looking beyond the § 107/§ 113 distinction and realizing that "regardless of how it is drafted, the complaint's gravamen is that the [plaintiff] has and will incur costgs for which the [plaintiff] contends the defendant is also responsible."⁶⁶ The court noted that its characterization of the claim as for contribution allowed it to apportion liability in an equitable fashion.⁶⁷ The court also noted that the applicable statute of limitations would be determined by examining whether one of the triggering events of § 113(g)(3) had occurred, and not by simply calling the claim a" § 107 claim" or a "§ 113 claim."⁶⁸

This approach also finds support in U.S. Supreme Court case law. In Key Tronic,⁶⁹ the Court stated that "[CERCLA] now expressly authorizes a cause of action for contribution in § 113 and impliedly authorizes a similar and somewhat overlapping remedy in § 107."⁷⁰

Conclusion

As in the first years following CERCLA's enactment, private parties once again face uncertainty about their ability [25 ELR 10599] to recover the costs associated with cleanups, because courts have not consistently applied CERCLA's cost recovery and contribution provisions. The struggle to resolve this issue stems largely from concerns that plaintiffs are maneuvering around some of CERCLA's procedural safeguards. Unfortunately, rather than simply enforcing the safeguards broadly, some courts are restricting CERCLA's central liability provision in a manner contrary to CERCLA's language and the principles underlying the Act. Until CERCLA is reformed or amended, or until the U.S. Supreme Court addresses these issues, the law will continue to vary significantly from court to court, with quite significant potential consequences based on the approach the forum adopts.

1. 42 U.S.C. §§ 9601-9675, ELR Stat. CERCLA §§ 101-405.

2. Id. § 9607(a)(4)(A)-(B), ELR State. CERCLA § 107(a)(4)(A)-(B).

3. See, e.g., Barton Solvents, Inc. v. Southwest Petro- Chem, Inc., 25 ELR 21454, 21455 (D.Kan. 1993).

4. In at least one case, however, the court required that orphan shares attributable to insolvent parties be apportioned among all solvent parties present in the litigation, including the plaintiffs. See Charter Township of Oshtemo v. American Cyanamid Co., 25 ELR 21460 (W.D. Mich. 1995).

5. See 42 U.S.C. § 9613(f)(1), ELR STAT. CERCLA § 113(f)(1) ("In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.").

6. At least one court, however, has allocated some liability for orphan shares among all parties, including defendants, under the "equitable factors" language in § 113(f). See FMC Corp. v. Aero Indus., Inc., 998 F.2d 842, 846-47, 23 ELR 21312, 21313-142 (10th Cir. 1993). And another court has indicated that it has discretion to allocate orphan shares equitably among all parties. See City of Fresno v. NL Indus., Inc. 25 ELR 21465 (E.D. Cal. 1995).

7. Although the nature of the liability and assignment of orphan shares is sometimes a consequence of the § 107/§ 113(f) dichotomy, it need not be. Orphan shares seemingly can be allocated as the court sees fit under either provision. Under § 113(f), of course, courts may allocate all liability at their discretion using equitable factors. When the plaintiff uses § 107, the prudent defendant should bring a counterclaim under § 113(f). When ruling on the counterclaim, the court can likewise assign liability as it sees fit. Thus, under either section, the results should be the same.

8. 42 U.S.C. § 9613(g)(2), ELR STAT. CERCLA § 113(g)(2). This limit has one exception: If the plaintiff seeks recovery of response costs for removal activities, and no remedial activities were commenced within three years after completion of the removal activities, then the response costs must be sought within three years of completion of the removal activities. Id.

9. Id. § 9613(g)(3), ELR STAT. CERCLA § 113(g)(3).

10. See id. § 9613, ELR STAT. CERCLA § 113.

11. See City of Fresno v. N.L. Indus., Inc., 25 ELR 21465, 21467 (E.D. Cal. 1995) ("in these particular situations, the [plaintiff] must seek contribution costs from other PRPs within three years").

12. In such a situation, a court might subject the costs to the longer six-year statute of limitations that applies to actions for cost recovery. See, e.g., Ekotek Site PRP Comm. v. Self, 881 F. Supp. 1516, 1523-24, 25 ELR 21331, 21335 (D. Utah 1995).

13. Bethlehem Iron Works, Inc. v. Lewis Indus., Inc., 25 ELR 21458, 21460 (E.D. Pa. 1995).

14. 42 U.S.C. § 9613(f)(2), ELR STAT. CERCLA § 113(f)(2). See also id. § 9622(h)(4), ELR STAT. CERCLA § 122(h)(4).

15. See United States v. Colorado & E. R.R. Co., 50 F.3d 1530 (10th Cir. 1995); Akzo Coatings, Inc. v. Aigner Corp. 30 F.3d 761 (7th Cir. 1994).

16. S. REP. NO. 96-848, 96th Cong., 2d Sess. 2 (1980).

17. See id. at 12-13 (noting that strict liability is "the foundation of" CERCLA).

18. "Person" is defined to include not only individuals but also firms, corporations, associations, partnerships, and other commercial and government entities. 42 U.S.C. § 9601(21), ELR STAT. CERCLA § 101(21).

19. Id. § 9607(a)(1)-(4), ELR STAT. CERCLA § 107(a)(1)-(4).

20. Id. § 9607(a)(4)(A)-(B), ELR STAT. CERCLA § 107(a)(4)(A)-(B).

21. Under the Act, defenses to liability are only available if the release was caused solely by an act of God, an act of war, or an act or omission of an unrelated third party. Id. § 9607(b), ELR STAT. CERCLA § 107(b). These defenses to liability have been narrowly construed. See, e.g., United States v. Conservation Chem. Co., 619 F. Supp. 162, 203, 16 ELR 20193, 20209 (W.D. Mo. 1985).

22. 544 F. Supp. 1135, 12 ELR 20915 (E.D. Pa. 1982).

23. Id. at 1143, 12 ELR at 20917.

24. 608 F. Supp. 1484, 15 ELR 20523 (D. Colo. 1985).

25. Id. at 1491, 15 ELR at 20527.

26. Pub. L. No. 99-499, 100 Stat. 1613 (1986).

27. 42 U.S.C. § 9613(f)(1), ELR STAT. CERCLA § 113(f)(1).

28. H.R. REP. No. 99-962, 99th Cong., 2d Sess. 221 (1986).

29. For example, in Sand Springs Home v. Interplastic Corp., 670 F. Supp. 913 (N.D. Okla. 1987), a property owner ordered to conduct cleanup activities under CERCLA sued those parties that generated the hazardous waste on the property. The court held that the property owner could bring an action under § 107 to collect response costs from other PRPs, even if the owner was itself a responsible party under CERCLA. Id. at 917. See also United States v. Hardage, 733 F. Supp. 1424, 20 ELR 21307 (W.D. Okla. 1989); Allied Corp. v. Acme Solvents Reclaiming, Inc., 691 F. Supp. 1100, 19 ELR 21254 (N.D. Ill. 1988).

31. In fact, in a number of cases that restrict PRPs to § 113(f) claims, the courts' entire analysis consists of references to the dictionary definition of the term "contribution" and to the title of § 113(f). See Reichhold Chems., 888 F. Supp. at 1123, 25 ELR at 21508-09 (holding that adoption of an independent statutory provision labeled "Contribution" required that future claims for contribution under CERCLA be brought under that provision, and noting that "the status of contribution claims prior to the adoption of Section 113 was changed once Congress addressed the subject of contribution under CERCLA"); TH Agric. & Nutrition, 884 F. Supp. at 362, 25 ELR at 21443 (holding that a party that stipulated to its own CERCLA liability could not maintain an action under § 107 because general legal principles consider a claim for contribution to be one where one liable party attempts to recover costs from another potentially liable party); Kaufman & Broad-South Bay, 868 F. Supp. at 1216, 25 ELR at 20677 (holding that an action by a PRP must be characterized as one for "contribution" under the common meaning of the term).

32. See, e.g. Colorado & E. R.R., 50 F.3d 1530, 25 ELR 20309; Akzo Coatings, 30 F.3d 761, 24 ELR 21254. Most of these courts apparently do not even consider the simpler option of extending contribution protection under § 113(f)(2) to actions between two PRPs brought under § 107.

33. 30 F.3d 761, 24 ELR 21254 (7th Cir. 1994).

34. 50 F.3d 1530, 25 ELR 20309 (10th Cir. 1995).

35. Id. at 1536, 25 ELR at 20312. In Colorado & Eastern, the court appeared troubled by the possibility that, because § 107 has been construed to provide for joint and several liability, the court would be prohibited from using the equitable factors of contribution to allocate costs among the PRPs if a § 107 claim were allowed. Id. at 1535, 25 ELR at 20311.

36. United Technologies v. Browning-Ferris Indus., Inc., 33 F.2d 96, 24 ELR 21356 (1st Cir. 1994), cert. denied, 115 S. Ct. 1176 (U.S. Feb. 21, 1995); Ekotek Site PRP Comm. v. Self, 881 F. Supp. 1516, 25 ELR 21331 (D. Utah 1995).

37. 33 F.3d 96, 24 ELR 21356 (1st Cir. 1994), cert. denied, 115 S. Ct. 1176 (U.S. Feb. 21, 1995).

38. Id. at 103, 24 ELR at 21359.

39. 881 F. Supp. 1516, 25 ELR 21331 (D. Utah 1995).

40. Id. at 1522-24, 25 ELR at 21335.

41. See, e.g., In re Hemingway Transp., Inc., 993 F.2d 915, 23 ELR 20953 (1st Cir. 1993), cert. denied, Kahn v. Juniper Dev. Corp., 114 S. Ct. 303 (U.S. 1993); Bethlehem Iron Works, Inc. v. Lewis Indus., Inc., 25 ELR 21458 (E.D. Pa. 1995); Charter Township of Oshtemo v. American Cyanamid Co., 25 ELR 21460 (W.D. Mich. 1995); Companies for Fair Allocation v. Axil Corp., 853 F. Supp. 575, 24 ELR 21581 (D. Conn. 1994); Transportation Leasing Co. v. California, 861 F. Supp. 931 (C.D. Cal. 1993); Barton Solvents, Inc. v. Southwest Petro-Chem, Inc., 25 ELR 21454 (D. Kan. 1993); Chesapeake & Potomac Tel. Co. of Va. v. Peck Iron & Metal Co., 814 F. Supp. 1269, 25 ELR 21488 (E.D. Va. 1992); United States v. Kramer, 757 F. Supp. 397, 21 ELR 20879 (D.N.J. 1991); Chemical Waste Management v. Armstrong World Indus., 669 F. Supp. 1285, 18 ELR 20191 (E.D. Pa. 1987).

42. 42 U.S.C. § 9607(a)(4)(A)-(B), ELR STAT. CERCLA § 107(a)(4)(A)-(B).

43. 25 ELR 21458 (E.D. Pa. 1995).

44. See also Companies for Fair Allocation, 853 F. Supp. 575, 580-81, 24 ELR 21581, 21584 (holding that a PRP may bring a § 107 claim even if the PRP has also brought a § 113(f) claim); Barton Solvents, 25 ELR 21454 (holding that a PRP performing a cleanup can bring either type of action); In re Hemingway Transport, 993 F.2d at 915, 23 ELR at 20953 (holding that a § 107 claim is available to any person without regard to that person's PRP status); Chesapeake & Potomac Tel., 814 F. Supp. at 1277, 25 ELR at 21491 (having "little difficulty determining that [a PRP] is entitled to bring its claim under Section 107(a)"); Chemical Waste Management, 669 F. Supp. at 1291, 18 ELR at 20194 (finding an argument that PRPs may not bring § 107 actions "without merit" and "in the face of statutory language that appears clearly to permit" PRPs to proceed under § 107).

45. Bethlehem Iron Works, 25 ELR at 21460.

46. Id. See infra text accompanying notes 61-62 for a discussion of how allowing § 107 claims is consistent with CERCLA's goals.

47. 25 ELR 21460 (W.D. Mich. 1995).

48. See supra note 44.

49. 114 S. Ct. 1960, 24 ELR 20955 (U.S. 1994).

50. Id. at 1966, 24 ELR at 20956.

51. Id., 24 ELR at 20957 (emphasis added).

52. See, e.g., City of Fresno v. NL Indus., Inc., 25 ELR 21465 (E.D. Cal. 1995); United States v. SCA Servs. of Ind., Inc., 849 F. Supp. 1264, 24 ELR 21437 (N.D. Ind. 1994); Transtech Indus. v. A&Z Septic Clean, 798 F. Supp. 1079, 25 ELR 21493 (D.N.J. 1992), appeal dismissed, 5 F.3d 51, 24 ELR 20036 (3d Cir. 1993), cert. denied, 114 S. Ct. 2692 (U.S. 1994); Avnet, Inc. v. Allied-Signal, Inc., 825 F. Supp. 1132, 23 ELR 21602 (D.R.I. 1992).

53. 798 F. Supp. 1079, 25 ELR 21493 (D.N.J. 1992), appeal dismissed, 5 F.3d 51, 24 ELR 20036 (3d Cir. 1993), cert. denied, 114 S. Ct. 2692 (U.S. 1994).

54. Id. at 1086, 25 ELR at 21497.

55. Id. See also Avnet, Inc., 825 F. Supp. at 1132, 23 ELR at 21602.

56. 849 F. Supp. 1264, 24 ELR 21437 (N.D. Ind. 1994).

57. Id. at 1282, 24 ELR at 21445.

58. Id.

59. The court in City of Fresno v. NL Indus., Inc., 25 ELR 21465 (E.D. Cal. 1995), possibly came closest to accomplishing this goal by looking beyond the § 107/§ 113 distinction to determine the true nature of the claim. See infra notes 64-68 and accompanying text.

60. See supra note 32.

61. See United States v. Summit Equip. & Supplies, Inc., 805 F. Supp. 1422, 1429 (N.D. Ohio 1992) ("The purpose of [§ 107(a)] is . . . to induce . . . potentially liable persons to pursue appropriate environmental response actions voluntarily." (quoting H.R. REP. NO. 1016, 96th Cong., 2d Sess. 33)).

62. See, e.g., United States v. Colorado & E.R.R. Co., 50 F.3d 1530, 1535, 25 ELR 20309, 20311 (10th Cir. 1995).

63. 42 U.S.C. § 9613(h)(1), ELR STAT. CERCLA § 113(h)(1) (emphasis added).

64. 25 ELR 21465 (E.D. Cal. 1995).

65. Id. at 21467.

66. Id.

67. Id. (citing 42 U.S.C. § 9613(f)(1), ELR STAT. CERCLA § 113(f)(1).

68. Id.

69. 114 S. Ct. 1960, 25 ELR 20955 (U.S. 1994).

70. Id. at 1966, 25 ELR at 20956.