A potentially responsible party need not be the subject of a cost
recovery claim under superfund Section 106 or 107 to bring a superfund
contribution claim under Section 113 of the Comprehensive
Environmental Response, Compensation, and Liability Act, a federal
district court held Sept. 30 (Port of Tacoma v. Todd Shipyards
Corp.,
W.D. Wash.,
No. 08-5132,
9/30/08).
So long as the party's contribution action stems from an underlying
Section 106 or 107 claim, the party has a valid contribution claim,
even if the Section 106 or 107 claim was filed against another party,
the U.S. District Court for the Western District of Washington
held.
On that basis, the court held that a Washington state company, Todd
Shipyards Corp., could maintain a third-party contribution claim
against the United States related to which of them is responsible for
hazardous substances contamination that allegedly occurred near Tacoma
during World Wars I and II.
The company filed its Section 113 claim against the federal
government after Washington state's Port of Tacoma filed its own
contribution claim against the company over the cleanup. The court
held that because the Port of Tacoma's contribution claim came after
the port was sued by the federal government for cleanup costs under
Section 107, a Section 107 claim ultimately underlay Todd Shipyards'
contribution action, and its action did not run afoul of U.S. Supreme
Court and other superfund precedent.
“In Atlantic Research, the Supreme Court framed
CERCLA's contribution provision as follows: '[Section 9613(f)(1)]
authorizes a contribution action to PRPs with common liability
stemming from an action instituted under [Section 9606 or
Section 9607].'”
The government had argued that Cooper Industries Inc. v. Aviall
Services Inc.,
543 U.S. 157, 59 ERC 1545 (2004), United States v. Atlantic
Research Corp.,
127 S. Ct. 2331 (2007), and Kotrous v. Goss-Jewett Co. of Northern
Cal.,
523 F.3d 924 (9th Cir. 2008) all required Todd Shipyards itself to be
sued for cost recovery to maintain its claim.
Copyright 2009, The Bureau of National Affairs, Inc.