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E.I. du Pont De Nemours and Company v. United States

297 F.Supp.2d 740 (D.N.J. 2003)

CERCLA—Absent a primary CERCLA action, a potentially responsible person cannot bring a contribution action under CERCLA.

A manufacturer operated a plant in Kentucky during World War II to manufacture hazardous substances for the U.S. Government. Although the manufacturer came to own the plant, it was the Government who owned it between 1942 and 1948. During that time, at least one hazardous substance was disposed at the plant, and because of a release, or a threat of a release, of at least one hazardous substance into the environment, the manufacturer incurred environmental response costs. Accordingly, the manufacturer brought an action for the recovery of environmental clean-up, removal, and response costs against the U.S. Government based on the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA).

The central question was whether or not CERCLA’s contribution provision made the United States liable to the manufacturer. First, CERCLA requires that in order to bring a contribution claim, there must be an ongoing or completed CERCLA suit. Here, no such suit had been initiated. However, the statute has a “savings clause” that reads: “[n]othing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action” (emphasis added). This led to the question of whether this “savings clause” suggested that the CERCLA suit requirement was not mandatory, and therefore an action could be brought by any party against any other potentially responsible party, at any time, before, during, or after a CERCLA suit is brought. This implicated a central legal question: “What is a contribution action?”

“Contribution” is not defined within CERCLA. Therefore, the Court chose to use the word’s traditional, common law meaning, i.e., a contribution action “denotes a claim by and between jointly and severally liable parties for an appropriate division of the payment one of them has been compelled to make.” This definition requires a common liability to a third party, meaning that the defendant in a contribution action must also be potentially liable to the primary plaintiff.

The Court then reviewed the facts in the context of that definition. A CERCLA contribution action can be brought only in three circumstances. The first is during or after a CERCLA action. Here, there was no such action. The second circumstance is where there has been a judicially or administratively approved settlement of CERLCA liability. Since there was no prior suit, there couldn’t have been a settlement. Finally, a CERLCA contribution action can be brought pursuant to the “savings clause.”

The Court then analyzed the “savings clause.” A contribution action requires two parties to be jointly and severally liable to a third party. Here, however, it was an arm of the United States Government that had sought clean-up costs from the manufacturer. Consequently, this was not a traditional contribution action because, in this situation, the United States was both the primary action plaintiff and the contribution action defendant. As a consequence, it was possible for the United States Government to have common liability to the State of Kentucky pursuant to Kentucky’s own permitting program, which like the federal permitting program, requires manufacturers to take on remedial and clean-up costs.

Also, a contribution action “denotes a claim by and between jointly and severally liable parties for an appropriate division of the payment one of them has been compelled to make” (emphasis added). Compulsion embraces obligations created by law. In this case, however, the manufacturer was not compelled to pay a claim, but had in fact voluntarily applied for a Kentucky permit. Consequently, the manufacturer was not under compulsion.

Finally, a right of contribution exists in favor of a party who is saddled with the responsibility for a whole claim, and who pays more than its equal share. Here, because no claim had been filed against the manufacturer, the manufacturer’s claim for contribution failed as a matter of law. Similarly, even assuming that a CERCLA contribution action might be brought simultaneously with a primary action, only a proper defendant can bring such an action. And because the manufacturer was not a defendant in any clean-up related litigation, the manufacturer could not bring a contribution action. Further, the Court held that only a primary action brought pursuant to CERCLA can support a contribution action. An action brought under any other federal or state statute, without express statutory authority, is insufficient to support a CERCLA contribution action. For those reasons, the Court granted summary judgment in favor of the United States Government.

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