ELR Citation: 45 ELR 20092
No(s). 2:14-4252 (D.S.C. May 8, 2015) (Seymour, J.)

A district court held that a corporation subject to an EPA unilateral administrative order (UAO) in connection with the Columbia Nitrogen Superfund site in Charleston, South Carolina, may seek contribution under CERCLA §113 and not §107. Defendant companies argued that the corporation was precluded from raising a §107(a) claim against them for past response costs because the response costs are being incurred under a UAO and are not, therefore, voluntary. But nowhere does the statutory language of CERCLA §107(a) limit the cause of action only to voluntarily incurred response. But the defendant companies also argued that the corporation may not bring both a §107(a) cost recovery action and a §113(f) claim for contribution. The court agreed. If a PRP meets one of the requirements for suit under §113, then it must proceed under that section rather than under §107(a). In addition, a §106 administrative order of the type issued to the corporation in this case is a type of "civil action" under §106 that gives rise to a contribution claim under §113(f)(1). Because there are unquestionable similarities between the effect of the UAO and that of a civil action in terms of coercing a party to undertake remedial actions, the corporation has met one of the statutory triggers for a §113 action.