Boundaries between Superfund cost recovery and contribution in the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) are frequently debated for being either clear or hazy.
Doug Arnold, co-chair of Alston & Bird’s Environment, Land Use & Natural Resources Group, said CERCLA’s cost recovery and contribution provisions are clearer because of recent court decisions barring parties from bringing a Superfund cost recovery action once they qualify to bring a contribution claim.
“It’s wishful thinking on the part of lawyers and their clients,” Arnold said. “The trend here is that courts have case law to back them up in holding that once a party has standing to bring a contribution claim, that’s the only claim they have.”
Arnold continued: “Parties need to understand that the mere fact that a client has voluntarily incurred costs prior to an administrative settlement or entered into a consent decree, doesn’t mean those costs can be pursued under Section 107.”