S.D. Texas Notes Split and Grant of Certiorari on Whether a PRP May Sue Another PRP for Cost Recovery or Contribution under Section 107(a) of CERLA

Per Halliburton Energy Services, Inc. v. NL Industries, 2007 WL 268492 (S.D. Tex. Jan. 26, 2007):

Halliburton sued Georgia-Pacific and Milwhite for cost recovery and contribution under Section 107(a) of CERCLA. (Docket Entry No. 1 at 9). Because Georgia-Pacific and Milwhite have been sued under Section 107(a), Cooper Industries does not preclude them from seeking contribution under Section 113(f)(1). The Tremont Parties assert that in Cooper Industries, the Supreme Court held that a person sued under Section 106 or 107 may only assert a Section 113(f)(1) claim during or following "a specified civil action by a governmental entity." (Docket Entry No. 64 at 10). The Supreme Court expressly refused to decide whether a PRP could sue another PRP under Section 107(a). Cooper Industries, 543 U.S. 159 ("The Court declines to address in the first instance Aviall's claim that it may recover costs under § 107(a)(4)(B) even though it is a PRP."). The circuit courts have divided on that issue since Cooper Industries was decided. Compare Atlantic Research Corp. v. United States, 459 F.3d 827, 832 (8th Cir.2006) and Consolidated Edison Co. of New York, Inc. v. UGI Utilities, Inc., 423 F.3d 90, 99 (2d Cir.2005) (holding that a potentially responsible party may bring an action against another potentially responsible party under Section 107(a)) with E.I. DuPont De Nemours & Co. v. United States, 460 F.3d 515, 532 (3d Cir.2006) (holding that a potentially responsible party may not sue another potentially responsible party for cost recovery or contribution under Section 107(a) or federal common law.). The Supreme Court has granted a writ of certiorari to resolve whether a PRP may sue another PRP for cost recovery or contribution under Section 107(a). United States v. Atlantic Research Corp., No. 06-562, 2007 WL 124673 (Jan. 19, 2007).