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E.I. DuPont De Nemours and Company v. United States

460 F. 3d 515 (3rd Cir. 2006)

ENVIRONMENTAL REMEDIATION; CONTRIBUTION — No implied cause of action for contribution under CERCLA’s cost recovery provision or federal common law is available to potentially responsible parties that engage in wholly voluntary, unsupervised environmental cleanups.

Owners of industrial facilities contaminated with hazardous waste brought an action in federal district court against the United States, as an additional responsible party, for contribution toward cleanup costs pursuant to the federal Comprehensive, Environmental, Response Compensation and Liability Act (CERCLA). The district judge granted summary judgment for the government as to all listed contaminated sites. The owners appealed.

The Court of Appeals affirmed the lower court ruling. It held that under CERCLA, a potentially responsible party may only seek contribution if it is the subject of a government abatement action or cost recovery action or has been adjudged liable as a result of such action. The Court held that the exclusive remedy for a potentially responsible party seeking to offset cleanup costs is contribution under CERCLA’s, and that no implied cause of action for contribution survived passage of this statute. It also noted a recent U.S. Supreme Court precedent holding that a CERCLA contribution action was not available to parties who voluntarily clean up contaminated sites, and that this decision was not inconsistent with the Court of Appeal’s prior precedental ruling that potentially responsible parties seeking to offset its cleanup costs must invoke CERCLA’s contribution statute for any right to contribution, notwithstanding that the precedent stated an action for contribution could be brought in the absence of pre-existing cost recovery action by the government, Indian tribe, or innocent landowner.

In conclusion, the Court of Appeals held that no implied cause of action for contribution under CERCLA’s cost recovery provision or federal common law is available to potentially responsible parties that engage in wholly voluntary, unsupervised environmental cleanups. The Court stated, in the instant matter, that the owners of these industrial facilities that were responsible, at least in part, for the sites’ environmental contamination did not allege facts sufficient to demonstrate, even by inference, that they could possibly prevail on their CERCLA contribution claims against the United States when the owners did not set out in their complaint any facts suggesting that the cleanups at any of the contaminated sites were undertaken pursuant to suit, settlement, or consent decree, as required for a potentially responsible party to seek CERCLA contribution. While sympathetic to the argument that this decision could provide a disincentive to any landowner who would voluntarily clean up a site, rather than wait to be sued, the Court postured that such a landowner, consistent with statutory law and U.S. Supreme Court precedents, could approach the Environmental Protection Agency or a state environmental agency and settle its liability, and then seek contribution from others.


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