ELR Citation: ELR 21318
No(s). 96-30714 (5th Cir. Jul 22, 1997)

The court holds that the phrase "causes the incurrence of response costs" in §107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not require CERCLA plaintiffs to have a protectable interest in the contaminated property, and only potentially responsible parties (PRPs) may bring §113(f) contribution actions. Plaintiff, which was contracted to clean up a contaminated recycling site, sought to recover its cleanup costs under CERCLA §107 from companies that sent waste there. The district court denied recovery, determining that the word "causes" in §107 implies a requirement of connection between the plaintiff and the property satisfied only by an interest in the site. The circuit court first notes that a protectable interest requirement is nowhere in the statute. In addition, reading the word "causes" to include this requirement confounds a common sense reading of §107. Under the district court's reading, the causation requirement would constrain the government as well as private parties. But surely Congress did not require the government to have a protectable interest in any Superfund site for which it incurs response costs. A protectable interest limitation is not fairly implied by the text of the statute, by the legislative history, or by reading the statute as a whole.

Addressing the district court's dismissal of plaintiff's contribution claims, the court holds that only the PRPs may bring actions for contribution under §113(f). Under plaintiff's reading, §113 would only prevent a party from suing itself and would essentially parrot §107(a). But the legislative history of CERCLA supports the idea that §113(f) was not meant to be duplicative of §107(a). The court holds, however, that a party may be "potentially liable" simply by being sued under the statute, and concludes that plaintiff, which is also a cross-defendant in the suit, is a PRP under the statute. The court, therefore, reverses the district court's dismissal of plaintiff's contribution claim.

Counsel for Plaintiff
Allen D. Darden
Phelps Dunbar
City National Bank Bldg.
P.O. Box 4412, Ste. 701, Baton Rouge LA 70821
(504) 346-0285

Counsel for Defendant
Daniel A. Ranson, Michael D. Peytavin
Windhorst, Gaudry, Ranson, Higgins & Gremillion
Oakwood Corporate Center
401 Whitney Ave., Ste. 500, Gretna LA 70056
(504) 362-2466

Before EMILIO M. GARZA, PARKER, and DENNIS, Circuit Judges.