ELR Citation: ELR 20030
No(s). 03 Civ. 5150(LBS) (S.D.N.Y. Jan 31, 2005)

A district court held that a company that concededly bears some legal responsibility under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for contamination at particular sites but has not been the subject of a previous civil action under CERCLA §§106 or 107(a) and has not entered into a settlement of its CERCLA liability with the federal government or a state government may not seek to recover response costs from other parties that bear some responsibility for contamination at those same sites. Not having been previously sued under §§106 or 107, the company is precluded by Cooper Industries, Inc. v. Aviall Services, Inc., 125 S. Ct. 577, 34 ELR 20154 (2004), from seeking recovery under §113(f)(1). Thus, any successful CERCLA claim by the company regarding the sites at issue in this case would have to be pursuant to §107(a). But the problem the company faces in making a §107(a) claim is that existing Second Circuit precedent, Bedford Affiliates v. Sills, 156 F.3d 416, 29 ELR 20229 (2d Cir. 1998), appears to preclude a party who is a potentially responsible party (PRP) with respect to a particular site and who lacks a §107(b) affirmative defense with respect to that site from proceeding under §107(a). The company did not dispute its designation as a PRP or contend that it qualifies for an affirmative defense under §107(b) so as to escape the prohibition of Bedford Affiliates. And it failed to convince the court that Bedford Affiliates is no longer binding law. The court, therefore, granted summary judgment to defendants on the company's CERCLA causes of action.