United States District Court Judge Alfred Lechner, Jr., in Borough of Sayreville, et. al v. Union Carbide, et. al, recently ruled that entities that are themselves liable under CERCLA may not bring a Section 107 claim for joint and several liability against other liable parties. Rather, liable parties may only bring a Section 113 claim for contribution and, therefore, only receive the fair share allocation of the defendants' liability. In its opinion, the Court presented a review of the previous decisions that have addressed this issue, including holdings from several Circuit Courts of Appeals. The Court noted that "[a]ll Courts of Appeal that have considered this issue agree a PRP cannot maintain a cost recovery suit under Section 107(a) of CERCLA." But in fact, the Sixth and Ninth Circuits have held that potentially responsible parties (PRPs) may bring Section 107 claims.
Although the Third Circuit, which includes New Jersey, has not directly addressed this question, the Court in Borough of Sayreville found indirect support for its holding in various Third Court opinions. In so doing, the Court rejected plaintiffs' argument that a responsible party "qualifies as 'any other person' under Section 107(a)(4)(B), ..." Rather, the court concluded that only innocent parties may bring a claim under section 107.
In an unrelated, United States District Court Judge William G. Bassler agreed with the defense in Caldwell Trucking PRP Group v. Spaulding Composites Co. that the plaintiff PRP group could only maintain an action in contribution under section 113 of CERCLA. Accordingly, the court dismissed the PRP Group's Section 107 claim for joint and several liability.
With the District Court of New Jersey's clear and concise rulings, this hotly-contested aspect of CERCLA is on the way towards resolution for litigants in the state -- responsible party plaintiffs cannot impose joint and several liability upon defendants, but can only recover from other PRPs their fair share allocation of liability.
