In the News December 10, 2012

Eleventh Circuit Superfund Win Stands after Supreme Court Denies Certiorari

Alston & Bird recently helped its clients U.S. Pipe & Foundry Co. and Walter Energy defend their March 2012 appellate victory in Solutia, Inc., et al. v. McWane, Inc., et al., 672 F.3d 1230 (11th Cir. 2012) from potential review by the United States Supreme Court.

The Solutia appeal, which involved environmental liability under the federal Superfund or CERCLA, presented the question of whether a potentially responsible party (PRP) that has a Section 113 claim for contribution for cleanup costs may also bring a cost recovery claim for joint and several liability under Section 107. The Eleventh Circuit held that to permit an election of remedies between Section 107 and 113 would undermine the structure of CERCLA altogether. In reaching that result, the Eleventh Circuit became the fourth federal court of appeals to so hold, joining the Second, Third and Eighth Circuits. The appellants in one of those cases, Morrison Enterprises, LLC v. Dravo Corp., 638 F.3d 594, 603 (8th Cir. 2011), also had filed a petition for a writ of certiorari, which was denied last year.

With this second denial of certiorari, it seems increasingly clear that a PRP with standing to bring a Section 113 claim under CERCLA may not instead elect to seek recovery of its costs under Section 107.

The members of Alston & Bird’s environmental team involved in this appeal were Doug Arnold, Beverlee Silva, Meaghan Boyd and Sarah Babcock.
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