EI DuPont de Nemours v. United States

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

11-20-2007

EI DuPont de Nemours v. USA

Precedential or Non-Precedential: Precedential

Docket No. 04-2096

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT

No. 04-2096

E.I. DUPONT DE NEMOURS AND COMPANY;

CONOCO, INC.; SPORTING GOODS PROPERTIES, INC.,

Appellants

v.

UNITED STATES OF AMERICA;

UNITED STATES DEPARTMENT OF COMMERCE;

UNITED STATES DEPARTMENT OF DEFENSE;

UNITED STATES DEPARTMENT OF THE ARMY;

UNITED STATES DEPARTMENT OF ENERGY;

UNITED STATES DEPARTMENT OF THE INTERIOR;

UNITED STATES DEPARTMENT OF THE NAVY

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 97-cv-00497)

District Judge: Honorable William J. Martini

Argued April 17, 2006

Before: SLOVITER, AMBRO, and MICHEL,* Circuit Judges.

Opinion Filed August 29, 2006

On Remand from the Supreme Court of the United States

June 18, 2007

*

Hon. Paul R. Michel, United States Circuit Judge for the

Federal Circuit, sitting by designation.

(Filed: November 20, 2007 )

_______

William H. Hyatt, Jr. (Argued)

Kirkpatrick & Lockhart Preston Gates Ellis

Newark, NJ 07102

John McGahren

Patton Boggs

Newark, NJ 07102

Attorneys for Appellants

John T. Stahr

Ellen J. Durkee (Argued)

United States Department of Justice

Environment & Natural Resources Division

Washington, DC 20026

Attorneys for Appellees

Michael W. Steinberg

Morgan, Lewis & Bockius LLP

Washington, DC 20004

Attorney for Amicus-Appellants

Superfund Settlements Project and

American Chemistry Council

_____

OPINION OF THE COURT

SLOVITER, Circuit Judge.

This matter is before us on the order of the Supreme

Court of the United States dated June 18, 2007, which granted

the petition for a writ of certiorari filed by DuPont, vacated the

2

judgment of this court, and remanded for further consideration in

light of its opinion in United States v. Atlantic Research Corp.,

551 U.S. , 127 S. Ct. 2331 (2007). In our earlier opinion, a

majority of this court held that DuPont could not pursue an

action under CERCLA to recover from the United States a

portion of its cleanup costs. The dissent would have held that

DuPont could maintain an action for cost recovery under § 107

of CERCLA. In light of the Supreme Court’s order, we return to

the issue presented.

I.

Introduction

Appellants E.I. DuPont de Nemours & Co.,

ConocoPhillips Co., and Sporting Goods Properties, Inc.

(collectively “DuPont” or “appellants”) own and operate

industrial facilities throughout the United States that are

contaminated with hazardous waste. DuPont admits that it

contaminated those sites, but alleges that the United States also

contaminated parts of the sites. After DuPont voluntarily

cleaned up a site jointly polluted by both DuPont and the

government, DuPont filed this suit under the Comprehensive

Environmental Response, Compensation, and Liability Act

(“CERCLA”), 42 U.S.C. § 9601 et seq., seeking an order

requiring the government to reimburse it for a share of the

cleanup costs. The District Court granted the motion of the

United States for summary judgment. E.I. DuPont de Nemours

& Co. v. United States, 297 F. Supp. 2d 740 (D.N.J. 2003). The

District Court thereafter entered judgment on the pleadings for

the United States with respect to the remaining sites. E.I.

DuPont de Nemours & Co., No. 97-497, 2004 U.S. Dist. LEXIS

30498, at *2 (D.N.J. Mar. 1, 2004). This court affirmed.

In the opinion accompanying the now-vacated judgment,

we held that two of our precedents – New Castle County v.

Halliburton NUS Corp., 111 F.3d 1116 (3d Cir. 1997), and

Matter of Reading Co., 115 F.3d 1111 (3d Cir. 1997) –

precluded DuPont’s claims. See E.I. DuPont de Nemours & Co.

v. United States, 460 F.3d 515, 518 (3d Cir. 2006). We read our

opinion in New Castle County as barring potentially responsible

3

parties from pursuing a cost recovery action under CERCLA §

107(a), 42 U.S.C. § 9607(a), thereby limiting potentially

responsible parties to an express cause of action for contribution

under CERCLA § 113, 42 U.S.C. § 9613.1 Id. In our opinion in

Reading, which was decided a few weeks after New Castle

County, we held that the statutory remedy in § 113 was the

exclusive remedy for potentially responsible parties seeking

contribution, thereby replacing any judicially created implied

cause of action for contribution under § 107. Id. We held that

because the Supreme Court’s decision in Cooper Industries, Inc.

v. Aviall Services, Inc., 543 U.S. 157 (2004), limited use of §

113 to parties that cleaned up contaminated sites pursuant to an

order adjudging them liable or who settled such an action,

DuPont, which had cleaned up voluntarily, had no viable claim.

Id.

Subsequently, the Supreme Court decided United States

v. Atlantic Research Corp., 551 U.S. ___, 127 S. Ct. 2331

(2007), holding that a private party may recover under § 107

voluntarily incurred cleanup costs from another party, including

the government, without any establishment of liability to a third

party. It is apparent that Atlantic Research Corp. impels us to

reconsider our precedents.

II.

Statutory Framework

The apportionment of cleanup costs among the entities

generally referred to as potentially responsible parties (“PRPs”)2

1

We refer to the sections of CERCLA rather than the

codified versions of those sections in the United States Code,

except that we note each initial reference to a new section of the

statute.

2

There has been some discussion in the case law about the

accuracy of the use of the term “potentially responsible party” or

“PRP” to refer to those parties that potentially bear some liability

for contaminating a site. See, e.g., Consol. Edison Co. of N.Y. v.

UGI Utils., Inc., 423 F.3d 90, 97 n.8 (2d Cir. 2005) (criticizing use

4

is set forth in the applicable provisions of CERCLA. Congress

enacted CERCLA in 1980 to address the “serious environmental

and health risks posed by pollution.” United States v. Bestfoods,

524 U.S. 51, 55 (1998). CERCLA has two principal purposes.

See Morton Int’l, Inc. v. A.E. Staley Mfg. Co., 343 F.3d 669,

676 (3d Cir. 2003). First, CERCLA is a remedial statute that

“grants the President broad power to command government

agencies and private parties to clean up hazardous waste sites.”

Key Tronic Corp. v. United States, 511 U.S. 809, 814 (1994).

Second, the statute requires “everyone who is potentially

responsible for hazardous-waste contamination . . . to contribute

to the costs of cleanup.” Bestfoods, 524 U.S. at 56 n.1

(emphasis and internal quotation marks omitted).

Several sections of CERCLA are relevant to our

discussion.

A. Sections 106 and 107

CERCLA § 106(a) provides that the United States may

act to “secure such relief as may be necessary to abate” a

“substantial endangerment to the public health or welfare or the

environment because of an actual or threatened release of a

hazardous substance from a facility.” 42 U.S.C. § 9606(a).

CERCLA § 107(a)(1)-(4) defines “covered persons,” that is, the

class of persons responsible for the costs incurred pursuant to §

106 or other sections, as follows:

(1) the owner and operator of a vessel or a facility,

(2) any person who at the time of disposal of any

hazardous substance owned or operated any facility

at which such hazardous substances were disposed

of,

(3) any person who by contract, agreement, or otherwise

of the term “PRP” as vague and imprecise because the term does

not appear anywhere in CERCLA). Because the Supreme Court in

Atlantic Research Corp. uses the term “PRP,” we use that term here

as well.

5

arranged for disposal or treatment, or arranged with

a transporter for transport for disposal or treatment,

of hazardous substances owned or possessed by such

person, by any other party or entity, at any facility or

incineration vessel owned or operated by another

party or entity and containing such hazardous

substances, and

(4) any person who accepts or accepted any hazardous

substances for transport to disposal or treatment

facilities, incineration vessels or sites selected by

such person, from which there is a release, or a

threatened release which causes the incurrence of

response costs, of a hazardous substance . . . .

42 U.S.C. § 9607(a).

Section 107(a)(4)(A)-(D) provides that those covered

persons “shall be liable for”:

(A) all costs of removal or remedial action incurred by

the United States Government or a State or an Indian

tribe not inconsistent with the national contingency

plan;

(B) any other necessary costs of response incurred by

any other person consistent with the national

contingency plan;

(C) damages for injury to, destruction of, or loss of

natural resources, including the reasonable costs of

assessing such injury, destruction, or loss resulting

from such a release; and

(D) the costs of any health assessment or health effects

study carried out under section 9604(i) of this title.

42 U.S.C. § 9607(a)(4)(A)-(D).

B. Section 113

In 1986, Congress enacted the Superfund Amendments

and Reauthorization Act (“SARA”), Pub. L. No. 99-499, 100

Stat. 1613, which added § 113 to CERCLA. Section 113(f)(1)

6

provides:

Any person may seek contribution from any other person

who is liable or potentially liable under section 9607(a)

[CERCLA § 107(a)] of this title, during or following any

civil action under section 9606 [CERCLA § 106] of this

title or under section 9607(a) [CERCLA § 107(a)] of this

title. . . . In resolving contribution claims, the court may

allocate response costs among liable parties using such

equitable factors as the court determines are appropriate.

Nothing in this subsection shall diminish the right of any

person to bring an action for contribution in the absence

of a civil action under section 9606 [CERCLA § 106] of

this title or section 9607 [CERCLA § 107] of this title.

42 U.S.C. § 9613(f)(1).

There are three subsections of § 113 that are of particular

relevance. They provide that: (1) a PRP that “has resolved its

liability to the United States or a State in an administrative or

judicially approved settlement” will not be liable for claims for

contribution from other PRPs with respect to “matters addressed

in the settlement,” id. § 113(f)(2); (2) a settling PRP may seek

contribution from non-settling PRPs, id. § 113(f)(3)(B); and (3)

the statute of limitation for an action under § 107(a) is six years,

whereas the statute of limitation for an action under § 113(f)(1)

is three years, id. § 113(g).

C. Section 120

CERCLA § 120(a)(1) contains a waiver of the United

States’ sovereign immunity. 42 U.S.C. § 9620(a)(1). Section

120(a)(1) provides that “[e]ach department, agency, and

instrumentality of the United States . . . shall be subject to, and

comply with, this chapter in the same manner and to the same

extent . . . as any nongovernmental entity, including liability

under section 9607 [CERCLA § 107] of this title.” See FMC

Corp. v. U.S. Dep’t of Commerce, 29 F.3d 833, 840 (3d Cir.

1994) (en banc) (“[W]hen the government engages in activities

that would make a private party liable [under CERCLA] if the

7

private party engaged in those types of activities, then the

government is also liable.” (emphasis omitted)).

III.

Facts and Procedural History

As we noted in our earlier opinion, DuPont owns fifteen

facilities in various states, each of which is contaminated with

hazardous waste.3 DuPont, 460 F.3d at 525. The United States

also owned each site during World War I, World War II, and/or

the Korean War. The United States polluted the sites during its

period of ownership.

In January 1997, DuPont commenced this action against

the government in the United States District Court for the

District of New Jersey, seeking recovery for some of the cost of

its voluntary cleanup efforts. The complaint alleged causes of

action for cost recovery under § 107(a) of CERCLA, as well as

for contribution under § 113(f)(1) of CERCLA. DuPont

voluntarily dismissed its claims under § 107(a) and for

“recoupment” of costs without prejudice. In order to curtail the

expenses of discovery, the District Court designated the

Louisville, Kentucky facility as a “test case” to determine

whether DuPont could maintain its action against the

government. Following completion of discovery, the

government moved for summary judgment, arguing that DuPont

had no cause of action for contribution under § 113 because it

was a PRP that had voluntarily undertaken cleanup costs without

having been sued or without settling its liability.

3

The facilities include DuPont sites in Newark, New Jersey;

Carneys Point, New Jersey; Parlin, New Jersey; Pompton Lakes,

New Jersey; Gibbstown, New Jersey; Buffalo, New York; Niagara,

New York, Niagara Falls, New York; East Chicago, Indiana;

Louisville, Kentucky; Nashville, Tennessee; Spruance, Virginia;

and Belle, West Virginia; a ConocoPhillips site in Ponca City,

Oklahoma; and a Sporting Goods Properties site in Bridgeport,

Connecticut.

8

On December 30, 2003, the District Court granted the

government’s motion for summary judgment with respect to the

Louisville, Kentucky site. DuPont, 297 F. Supp. 2d at 743. The

District Court concluded that because DuPont had not been sued

under § 106 or § 107 and had not otherwise settled its liability

with respect to the Louisville facility, it could not pursue an

action for contribution under § 113. See id. at 747-48. A

contribution action under § 113 required, according to the

District Court, a prior or ongoing lawsuit. Id. at 749. The

District Court had correctly foreseen the subsequent decision of

the Supreme Court in that respect.

On March 1, 2004, the District Court issued a ruling and

order granting the government judgment on the pleadings with

respect to the other fourteen sites. The District Court concluded

that the pleadings did not suggest any basis to conclude that the

fourteen other sites would yield a different result than the

Louisville site.

DuPont appealed. We stayed the appeal pending the

Supreme Court’s decision in Cooper Industries, Inc. v. Aviall

Services, Inc., 543 U.S. 157 (2004), which held that a party who

had neither been held responsible following an action under §

106 or § 107 nor settled could not pursue a claim under § 113.

After the Cooper Industries opinion was filed, DuPont argued

that (1) we should rule that as a matter of law, in light of Cooper

Industries, DuPont has a right of contribution under CERCLA

that is independent of the remedy provided by § 113, even in the

absence of a civil action under § 106 or § 107; (2) a PRP, such

as DuPont, has a cause of action implied under CERCLA to

recover an equitable share of response costs from another PRP

pursuant to the text of § 107(a)(4)(B) or federal common law

even in the absence of a prior or pending § 106 or § 107 civil

action or a § 113(f)(3)(B) settlement; (3) the District Court erred

by declining to imply a right of contribution based on any other

provision of CERCLA and that the decision in Cooper Industries

demolished the assumptions underlying our analysis in Reading;

and (4) the District Court erred in granting judgment on the

pleadings by dismissing DuPont’s § 113(f) contribution claims

with respect to all fifteen sites.

9

On August 29, 2006, a divided panel of this court issued

an opinion, principally affirming the District Court’s judgment.

DuPont, 460 F.3d at 528. DuPont filed a petition for writ of

certiorari to the Supreme Court. On June 18, 2007, the Court

granted the writ. See E.I. DuPont de Nemours & Co. v. United

States, 127 S. Ct. 2971 (June 18, 2007). The Court vacated the

judgment and remanded the case to this court for further

consideration in light of Atlantic Research Corp. Id. We asked

the parties to submit supplemental briefing on the effect of

Atlantic Research Corp. on the issues in this case.

IV.

Rights of a PRP under CERCLA and SARA

The District Court’s grant of summary judgment and

judgment on the pleadings is subject to plenary review. See

Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 219-20 (3d Cir.

2005).4 On review, we construe all facts and inferences in the

light most favorable to the non-moving party, and “[j]udgment

will not be granted unless the movant clearly establishes there

are no material issues of fact, and he is entitled to judgment as a

matter of law.” Id. at 220. Questions of statutory interpretation

are also subject to plenary review. Lafferty v. St. Riel, 495 F.3d

72, 76 n.5 (3d Cir. 2007).

Although our precedents, New Castle County and

Reading, counseled that DuPont could not maintain a cause of

action against the United States for cost recovery of voluntarily

incurred cleanup expenses under CERCLA § 107, the Supreme

Court’s decision in Atlantic Research Corp. causes us to

reevaluate our precedents. Notwithstanding this court’s strict

adherence to our precedents, we have made clear that those

precedents may be reevaluated when there has been intervening

authority. See George Harms Constr. Co. v. Chao, 371 F.3d

156, 161 (3d Cir. 2004) (“We recognize that we may reevaluate

4

The District Court had subject matter jurisdiction over this

case pursuant to 28 U.S.C. § 1331. We have jurisdiction on appeal

under 28 U.S.C. § 1291.

10

a precedent in light of intervening authority even without en

banc consideration.”); Reich v. D.M. Sabia Co., 90 F.3d 854,

858 (3d Cir. 1996) (“Although a panel of this court is bound by,

and lacks authority to overrule, a published decision of a prior

panel . . . , a panel may reevaluate a precedent in light of

intervening authority[.]”).

Even though we must be particularly cautious in

revisiting cases involving questions of statutory interpretation, a

reevaluation of precedent is appropriate in this case. As the

Supreme Court has explained, in “cases where statutory

precedents have been overruled, the primary reason for the

Court’s shift in position has been the intervening development of

the law, through either the growth of judicial doctrine or further

action taken by Congress. Where such changes have removed or

weakened the conceptual underpinnings from the prior decision,

or where the later law has rendered the decision irreconcilable

with competing legal doctrines or policies, the Court has not

hesitated to overrule an earlier decision.” Patterson v. McLean

Credit Union, 491 U.S. 164, 173 (1989) (citations omitted).

The Supreme Court’s decision in Atlantic Research Corp.

is such intervening authority. It impels us to reevaluate our

holdings in Reading and New Castle County

because Atlantic Research Corp. weakens the conceptual

underpinnings of those decisions.

Section 107 states that various parties, including the

owner or operator of a facility, may be responsible for “any . . .

necessary costs of response incurred by any other person

consistent with the national contingency plan,” § 107(a)(4)(B),

and provides a cause of action to parties that incur cleanup costs

but have not themselves been sued under § 106 or § 107. For

years after the 1980 enactment of CERCLA, district courts

almost unanimously found that § 107 contained an implied cause

of action for contribution. See, e.g., United States v. New Castle

County, 642 F. Supp. 1258, 1265-69 (D. Del. 1986) (holding that

contribution right arises under federal common law); Colorado

v. ASARCO, Inc., 608 F. Supp. 1484, 1489-91 (D. Colo. 1985)

(same); Wehner v. Syntex Agribusiness, Inc., 616 F. Supp. 27,

11

31 (E.D. Mo. 1985) (holding that contribution right is implied

from language of § 107(e)(2)). However, with the enactment of

§ 113, the courts turned to that section and away from § 107 to

provide the cause of action.

As we noted briefly above, we too veered away from §

107 in our decision in New Castle County, where we stated that

§ 113 provided a “potentially responsible person[] with the

appropriate vehicle” to “recoup that portion of its expenditures

which exceeds its fair share of the overall liability.” 111 F.3d at

1122. We further held that “a section 107 action brought for

recovery of costs may be brought only by innocent parties that

have undertaken clean-ups.” Id. at 1120 (emphasis in original).5

Similarly, in Reading, we held that a potentially responsible

party may not seek contribution under § 107(a)(4)(B). In fact,

we stated Ҥ 113(f)(1) specifically permits an action for

contribution to be brought in the absence of civil action under

section 107.” 115 F.3d at 1120 (internal punctuation and

quotation marks omitted).

The trend toward application of § 113 was halted by the

Supreme Court’s decision in Cooper Industries, where the Court

held that the plain language of § 113(f)(1) does not allow PRPs

to bring contribution actions unless and until a related civil

action is brought against them under either § 106 or § 107. 543

U.S. at 166. The Court reserved judgment on the question

whether PRPs who are not subject to an action under § 106 or §

107 may instead seek relief under § 107(a)(4)(B).

5

Our imposition of the “innocent” standard on parties

seeking to bring suit under § 107 is not based on the statutory text.

Arguably, the “innocent” standard imposed by this and other

circuits violates fundamental rules of statutory construction by

imposing a requirement not evident on the statute’s face. This

court-created standard ignores the fact that § 107(a)(4)(B) plainly

allows a private party plaintiff to be “any other person” besides the

government, state, and Indian tribes and does not expressly exclude

parties that may be responsible for a spill. See Atlantic Research

Corp., 551 U.S. ___, 127 S. Ct. at 2336.

12

In Reading and New Castle County, we assumed that all

potentially responsible parties — those whose responsibility had

been adjudicated and those who voluntarily admitted their

responsibility — were “potentially responsible parties” who

could recoup losses by bringing suit pursuant to § 113(f).

Cooper Industries changed that premise, however, by holding

that only a party who has in fact been held responsible (via

adjudication or settlement with the EPA) may bring an action

under § 113(f), whereas a party who concedes it is a PRP but

whose responsibility has not been established may not. After the

Cooper Industries decision, therefore, a PRP that had not been

subject to suit or settled its liability had no recourse to recover

cleanup costs under CERCLA because under our precedents it

could not bring a § 107 claim, and under Cooper Industries, it

could not bring a § 113 claim.

Following the decision in Cooper Industries, the Court of

Appeals for the Eighth Circuit considered the effect of Cooper

Industries in a case pending before it. In Atlantic Research

Corp. v. United States, 459 F.3d 827 (8th Cir. 2006), Atlantic

Research (a PRP) had sought partial reimbursement under both §

107 and § 113 from the United States for costs incurred in a

voluntary environmental cleanup. While that litigation was

ongoing, the Supreme Court decided Cooper Industries, thereby

foreclosing Atlantic Research’s claim under § 113 because it

had not been subject to suit or otherwise settled its liability.

The district court before which the litigation was pending

dismissed the complaint on the basis of the Eighth Circuit’s

precedent in Dico Inc. v. Amoco Oil Co., 340 F.3d 525 (8th Cir.

2003), holding that a PRP could not bring a claim under § 107

because it was not an innocent party. On appeal by Atlantic

Research, the Eighth Circuit concluded that Cooper Industries

“undermined Dico’s reasoning for parties in Atlantic’s

position[,]” i.e., for a party who had not been sued or had not

otherwise settled its liability. 459 F.3d at 830 n.4. The court

explained that in a post-Cooper Industries world, PRPs are not

foreclosed from obtaining relief under § 107. Id. at 834, 837

(concluding that barring Atlantic Research from a cost recovery

action under § 107 would be “contrary to CERCLA’s purpose”

13

to encourage voluntary cleanups and would be an “an absurd and

unjust outcome”). See also Consolidated Edison Co. of New

York v. UGI Utilities, Inc., 423 F.3d 90 (2d Cir. 2005) (re-

evaluating its prior precedent following Cooper Industries).

Our precedent in New Castle County and Reading was

similar to the Eighth Circuit’s precedent in Dico because we also

assumed that § 113 was a viable basis for obtaining relief and

that a § 107 action for cost recovery or contribution was

unavailable. It is similarly clear that Cooper Industries

undermined our precedent as well.

The Supreme Court decision thereafter in Atlantic

Research Corp., which affirmed the Eighth Circuit’s decision, is

dispositive of the issue before us. Atlantic Research, a PRP, had

contaminated the soil and groundwater at an ammunition facility

with burned fuel, but the United States had also polluted the site.

See 127 S. Ct. at 2335. Atlantic Research voluntarily cleaned up

the site, even though it had not been the subject of a suit under §

106 or § 107. Id. It then sued the United States under both §§

107(a) and 113(f) to recover a share of its voluntary cleanup

expenses. Id. The Court, in a unanimous opinion authored by

Justice Thomas, held that, although Atlantic Research could not

sue the United States under § 113(f) in that case because no §

106 or § 107 action was pending or had been brought against

Atlantic Research, it could bring a cost recovery claim under §

107(a). Id. at 2335-39.

More specifically, in Atlantic Research Corp. the

Supreme Court concluded that PRPs may apply both §§

107(a)(4)(B) and 113(f)(1) to recover cleanup expenses,

but the two sections “provide two ‘clearly distinct’ remedies.”

Id. at 2337 (quoting Cooper Indus., 543 U.S. at 163 n.3).

Specifically, “‘CERCLA provide[s] for a right to cost recovery

in certain circumstances, § 107(a), and separate rights to

contribution in other circumstances, §§ 113(f)(1), 113(f)(3)(B).’”

Id. (quoting Cooper Indus., 543 U.S. at 163) (emphasis in

original). Section 113(f) authorizes a PRP to seek recovery

because of an inequitable distribution of common liability

among liable parties “during or following” a suit under § 106 or

14

§ 107(a). See id. at 2338. Section 107(a), by contrast, “permits

recovery of cleanup costs but does not create a right to

contribution.” Id. Under § 107(a), a PRP may “recover only the

costs it has ‘incurred’ in cleaning up a site.” Id. (quoting 42

U.S.C. § 9607(a)(4)(B)). Thus, in sum, the Court stated:

the remedies available in §§ 107(a) and 113(f)

complement each other by providing causes of action “to

persons in different procedural circumstances.”

Consolidated Edison, 423 F.3d at 99; see also E.I. DuPont

de Nemours, 460 F.3d at 548 (Sloviter, J., dissenting).

Section 113(f)(1) authorizes a contribution action to PRPs

with common liability stemming from an action instituted

under § 106 or § 107(a). And § 107(a) permits cost

recovery (as distinct from contribution) by a private party

that has itself incurred cleanup costs. Hence, a PRP that

pays money to satisfy a settlement agreement or a court

judgment may pursue § 113(f) contribution. But by

reimbursing response costs paid by other parties, the PRP

has not incurred its own costs of response and therefore

cannot recover under § 107(a). As a result, though

eligible to seek contribution under § 113(f)(1), the PRP

cannot simultaneously seek to recover the same expenses

under § 107(a).

Id.

The Court’s conclusion that “the plain language of

subparagraph [§ 107(a)(4)](B) authorizes cost-recovery actions

by any private party, including PRPs,” id. at 2336 (citing Key

Tronic, 511 U.S. at 818), thereby overruled our holding in

DuPont, 460 F.3d at 518, that § 113 provided the sole cause of

action to PRPs. Following Atlantic Research Corp., there is no

doubt that, contrary to our precedents, a PRP may bring a cause

of action for cost recovery under § 107 and need not rely upon §

113 as its exclusive remedy. See 127 S. Ct. at 2339.

Permitting parties who voluntarily incur cleanup costs to

bring suit under § 107 comports with the fundamental purposes

of CERCLA. As this court noted in Horsehead Industries, Inc.

15

v. Paramount Communications, Inc., 258 F.3d 132 (3d Cir.

2001):

The purpose of CERCLA is “to assure that the current

and future costs associated with hazardous waste

facilities, including post-closure costs, will be adequately

financed and, to the greatest extent possible, borne by the

owners and operators of such facilities.”

Id. at 135 (quoting 42 U.S.C. § 9607(k)(6)(E)); see OHM

Remediation Servs. v. Evans Cooperage Co., 116 F.3d 1574 (5th

Cir. 1997) (noting CERCLA’s broad, remedial purpose to

facilitate prompt cleanup of hazardous waste sites and to shift

costs of environmental response from taxpayers to parties who

benefitted from wastes that caused harm); see also In re Tutu

Water Wells CERCLA Litig., 326 F.3d 201, 206 (3d Cir. 2003)

(stating that CERCLA’s purpose is “making those responsible

for problems caused by the disposal of chemical poisons bear the

costs and responsibility for remedying the harmful conditions

they created”) (citation and quotation marks omitted).

Voluntary cleanups are vital to fulfilling CERCLA’s

purpose. During deliberations on the SARA Amendments,

Congress emphasized the importance of voluntary action, stating

that “[v]oluntary cleanups are essential to a successful program

for clean up of the Nation’s hazardous substance pollution

problem.” H.R. Rep. No. 99-253, pt. 5, at 58 (1985), as

reprinted in 1986 U.S.C.C.A.N. 3124, 3181; see also 131 Cong.

Rec. 24725, 24730 (1985) (statement of Sen. Domenici) (“The

goal of CERCLA is to achieve effective and expedited cleanup

of as many uncontrolled hazardous waste facilities as possible.

One important component of the realistic strategy must be the

encouragement of voluntary cleanup actions or funding without

having the President relying on the panoply of administrative

and judicial tools available.”).

Although supervised cleanups are to be encouraged

wherever possible, they need not be encouraged at the expense

of unsupervised cleanups. Under § 107(a)(4)(B), a party is liable

for costs incurred in a cleanup (voluntary or otherwise) only

16

insofar as those costs are “costs of response incurred by any

other person consistent with the national contingency plan.” 42

U.S.C. § 9607(a)(4)(B). By the plain text of the statute, a party

that seeks recovery for costs incurred in a cleanup that does not

comport with the national contingency plan is without recourse.

Because there has been no suggestion that DuPont’s cleanup is

in that position, it has stated a viable cause of action for cost

recovery under § 107(a).6

For the reasons set forth, we will reverse the decision of

the District Court with respect to any claim made by DuPont for

costs incurred while undertaking voluntary cleanup efforts and

remand for further proceedings in accordance with this opinion.7

_____________________

6

This court considered DuPont’s claims under § 107(a)

notwithstanding its earlier voluntary dismissal of those claims,

approved without prejudice by the District Court. It would be

prudent, in light of developments in the case law, for DuPont to

seek District Court approval to amend its complaint to specifically

state a cause of action under § 107(a) once again. Atlantic

Research, in the case decided by the Supreme Court, had amended

its complaint following the decision in Cooper Industries. See 127

S. Ct. at 2335.

7

DuPont has requested that we order briefing on the District

Court’s definition of “contribution” and that we revisit the viability

of our decisions in New Castle and Reading. Our within opinion

explicitly covers the latter issue. In addition, the Supreme Court’s

opinion in Atlantic Research makes clear the meaning of

“contribution” and we see no reason to add to its discussion. The

parties are free to proceed with that issue in the District Court on

remand. We also leave for the District Court’s consideration

DuPont’s claims with respect to the other fourteen sites.

17