ELR Citation: ELR 21007
No(s). 80-489 LO (D. Del. Jul 17, 1986)

The court rules that a right to contribution exists under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as a matter of federal common law. The court initially notes that while the language of CERCLA §107(a)(4)(B) authorizes a private right-of-action, this language does not necessarily authorize a right to contribution. The court first holds that Congress did not affirmatively create a right to contribution, either expressly or by clear implication. Although §107(a)(4)(B) authorizes recovery by a responsible party for its response costs, language that provides a cause of action to "any other person" incurring response costs for which another person is liable does not compel the conclusion that Congress intended to create a right to contribution. Since the statute is ambiguous as to whether response costs must be incurred voluntarily to be recoverable in a private action or whether money spent after being sued also qualifies as response costs, the court turns to the legislative history, which reveals that one of CERCLA's principal goals is to achieve voluntary cleanup. While this goal is enhanced by the ability of responsible parties to recover voluntarily incurred response costs from other responsible parties pursuant to §107(a)(4)(B), a right to contribution does not directly further this goal because it does not apply until after a lawsuit has been instituted against a responsible party. The court holds that Congress also did not create a right to contribution under §107(e)(2) by clear implication. A reading of the plain language of this provision reveals that this provision was intended to simply preserve actions not provided by CERCLA.

The court next rules that Congress authorized the federal courts to establish a federal common law of contribution under CERCLA. The court finds support for its conclusion in CERCLA's legislative history, which is replete with statements supporting a judicially created right to contribution, and in statements made during discussions on the 1986 CERCLA amendments. The presence of substantial federal interests also supports the court's conclusion. A right to contribution under CERCLA would encourage expeditious settlement of suits brought by the government against responsible parties. With the availability of a right to contribution, CERCLA defendants will want to implead other responsible parties, thereby increasing the number of defendants and the chances for settlement. A right of contribution also protects the Superfund from depletion since it encourages private parties to clean up hazardous waste sites for which they are responsible.

Counsel for Plaintiff
Richard G. Andrews, Ass't U.S. Attorney
J. Caleb Boggs Fed'l Bldg., 844 King St., Rm. 5001, Wilmington DE 19801
(302) 573-6277

Counsel for Defendants/Third-Party Plaintiffs
B. Wilson Redfearn
Tybout, Redfearn, Casarino & Pell
Suite 1110, Bk.-of-Delaware Bldg., 300 Delaware Ave., P.O. Box 2092, Wilmington DE 19801
(302) 658-6901

Jeffrey B. Bove
Connolly, Bove, Lodge & Hutz
1220 Market St., P.O. Box 2207, Wilmington DE 19899-2207
(302) 658-9141

Joseph C. Kelly, Senior Counsel
ICI Americas, Inc.
Concord Pike & New Murphy Rd., Wilmington DE 19897
(302) 575-3741