CERCLA Lesson from Recent Ninth Circuit Decision


My colleagues Mark Elliott, Kevin Fong and I, in Lesson of Ninth Circuit CERCLA Decision: Prepare to Prove Recoverable Costs, discuss the lesson to be learned from the Ninth Circuit Court of Appeals’ June 13, 2016 decision in Whittaker Corp. v. United States. The Ninth Circuit held that a party which has settled its liability pursuant to a Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) section 107 cost recovery claim may recover any response costs not covered by the settlement under CERCLA section 107. This decision confirms that a responsible party is not necessarily limited to a claim for CERCLA contribution under section 113 merely because it has been sued under section 107. Although Whittaker does not present a sea change for CERCLA claims, it serves as a reminder that documentation and segregation of costs sought in a CERCLA action are important to simplify recovery and to preserve recovery options