                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-20-2007

EI DuPont de Nemours v. USA
Precedential or Non-Precedential: Precedential

Docket No. 04-2096




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                                               PRECEDENTIAL

 UNITED STATES COURT OF APPEALS FOR THE THIRD
                   CIRCUIT


                           No. 04-2096




    E.I. DUPONT DE NEMOURS AND COMPANY;
 CONOCO, INC.; SPORTING GOODS PROPERTIES, INC.,
                                  Appellants
                       v.

           UNITED STATES OF AMERICA;
    UNITED STATES DEPARTMENT OF COMMERCE;
     UNITED STATES DEPARTMENT OF DEFENSE;
    UNITED STATES DEPARTMENT OF THE ARMY;
      UNITED STATES DEPARTMENT OF ENERGY;
   UNITED STATES DEPARTMENT OF THE INTERIOR;
     UNITED STATES DEPARTMENT OF THE NAVY




          On Appeal from the United States District Court
                   for the District of New Jersey
                      (D.C. No. 97-cv-00497)
           District Judge: Honorable William J. Martini




                 Argued April 17, 2006
 Before: SLOVITER, AMBRO, and MICHEL,* Circuit Judges.
              Opinion Filed August 29, 2006

   On Remand from the Supreme Court of the United States
                      June 18, 2007


      *
        Hon. Paul R. Michel, United States Circuit Judge for the
Federal Circuit, sitting by designation.
                   (Filed: November 20, 2007 )

                             _______

William H. Hyatt, Jr. (Argued)
Kirkpatrick & Lockhart Preston Gates Ellis
Newark, NJ 07102

John McGahren
Patton Boggs
Newark, NJ 07102

       Attorneys for Appellants

John T. Stahr
Ellen J. Durkee (Argued)
United States Department of Justice
Environment & Natural Resources Division
Washington, DC 20026

       Attorneys for Appellees

Michael W. Steinberg
Morgan, Lewis & Bockius LLP
Washington, DC 20004

       Attorney for Amicus-Appellants
       Superfund Settlements Project and
       American Chemistry Council
                            _____

                   OPINION OF THE COURT




SLOVITER, Circuit Judge.

       This matter is before us on the order of the Supreme
Court of the United States dated June 18, 2007, which granted
the petition for a writ of certiorari filed by DuPont, vacated the

                                  2
judgment of this court, and remanded for further consideration in
light of its opinion in United States v. Atlantic Research Corp.,
551 U.S.      , 127 S. Ct. 2331 (2007). In our earlier opinion, a
majority of this court held that DuPont could not pursue an
action under CERCLA to recover from the United States a
portion of its cleanup costs. The dissent would have held that
DuPont could maintain an action for cost recovery under § 107
of CERCLA. In light of the Supreme Court’s order, we return to
the issue presented.

                               I.
                          Introduction

       Appellants E.I. DuPont de Nemours & Co.,
ConocoPhillips Co., and Sporting Goods Properties, Inc.
(collectively “DuPont” or “appellants”) own and operate
industrial facilities throughout the United States that are
contaminated with hazardous waste. DuPont admits that it
contaminated those sites, but alleges that the United States also
contaminated parts of the sites. After DuPont voluntarily
cleaned up a site jointly polluted by both DuPont and the
government, DuPont filed this suit under the Comprehensive
Environmental Response, Compensation, and Liability Act
(“CERCLA”), 42 U.S.C. § 9601 et seq., seeking an order
requiring the government to reimburse it for a share of the
cleanup costs. The District Court granted the motion of the
United States for summary judgment. E.I. DuPont de Nemours
& Co. v. United States, 297 F. Supp. 2d 740 (D.N.J. 2003). The
District Court thereafter entered judgment on the pleadings for
the United States with respect to the remaining sites. E.I.
DuPont de Nemours & Co., No. 97-497, 2004 U.S. Dist. LEXIS
30498, at *2 (D.N.J. Mar. 1, 2004). This court affirmed.

       In the opinion accompanying the now-vacated judgment,
we held that two of our precedents – New Castle County v.
Halliburton NUS Corp., 111 F.3d 1116 (3d Cir. 1997), and
Matter of Reading Co., 115 F.3d 1111 (3d Cir. 1997) –
precluded DuPont’s claims. See E.I. DuPont de Nemours & Co.
v. United States, 460 F.3d 515, 518 (3d Cir. 2006). We read our
opinion in New Castle County as barring potentially responsible

                                3
parties from pursuing a cost recovery action under CERCLA §
107(a), 42 U.S.C. § 9607(a), thereby limiting potentially
responsible parties to an express cause of action for contribution
under CERCLA § 113, 42 U.S.C. § 9613.1 Id. In our opinion in
Reading, which was decided a few weeks after New Castle
County, we held that the statutory remedy in § 113 was the
exclusive remedy for potentially responsible parties seeking
contribution, thereby replacing any judicially created implied
cause of action for contribution under § 107. Id. We held that
because the Supreme Court’s decision in Cooper Industries, Inc.
v. Aviall Services, Inc., 543 U.S. 157 (2004), limited use of §
113 to parties that cleaned up contaminated sites pursuant to an
order adjudging them liable or who settled such an action,
DuPont, which had cleaned up voluntarily, had no viable claim.
Id.

       Subsequently, the Supreme Court decided United States
v. Atlantic Research Corp., 551 U.S. ___, 127 S. Ct. 2331
(2007), holding that a private party may recover under § 107
voluntarily incurred cleanup costs from another party, including
the government, without any establishment of liability to a third
party. It is apparent that Atlantic Research Corp. impels us to
reconsider our precedents.

                                II.
                      Statutory Framework

      The apportionment of cleanup costs among the entities
generally referred to as potentially responsible parties (“PRPs”)2


       1
         We refer to the sections of CERCLA rather than the
codified versions of those sections in the United States Code,
except that we note each initial reference to a new section of the
statute.
       2
        There has been some discussion in the case law about the
accuracy of the use of the term “potentially responsible party” or
“PRP” to refer to those parties that potentially bear some liability
for contaminating a site. See, e.g., Consol. Edison Co. of N.Y. v.
UGI Utils., Inc., 423 F.3d 90, 97 n.8 (2d Cir. 2005) (criticizing use

                                 4
is set forth in the applicable provisions of CERCLA. Congress
enacted CERCLA in 1980 to address the “serious environmental
and health risks posed by pollution.” United States v. Bestfoods,
524 U.S. 51, 55 (1998). CERCLA has two principal purposes.
See Morton Int’l, Inc. v. A.E. Staley Mfg. Co., 343 F.3d 669,
676 (3d Cir. 2003). First, CERCLA is a remedial statute that
“grants the President broad power to command government
agencies and private parties to clean up hazardous waste sites.”
Key Tronic Corp. v. United States, 511 U.S. 809, 814 (1994).
Second, the statute requires “everyone who is potentially
responsible for hazardous-waste contamination . . . to contribute
to the costs of cleanup.” Bestfoods, 524 U.S. at 56 n.1
(emphasis and internal quotation marks omitted).

       Several sections of CERCLA are relevant to our
discussion.

       A. Sections 106 and 107

        CERCLA § 106(a) provides that the United States may
act to “secure such relief as may be necessary to abate” a
“substantial endangerment to the public health or welfare or the
environment because of an actual or threatened release of a
hazardous substance from a facility.” 42 U.S.C. § 9606(a).
CERCLA § 107(a)(1)-(4) defines “covered persons,” that is, the
class of persons responsible for the costs incurred pursuant to §
106 or other sections, as follows:

       (1)   the owner and operator of a vessel or a facility,
       (2)   any person who at the time of disposal of any
             hazardous substance owned or operated any facility
             at which such hazardous substances were disposed
             of,
       (3)   any person who by contract, agreement, or otherwise



of the term “PRP” as vague and imprecise because the term does
not appear anywhere in CERCLA). Because the Supreme Court in
Atlantic Research Corp. uses the term “PRP,” we use that term here
as well.

                                5
            arranged for disposal or treatment, or arranged with
            a transporter for transport for disposal or treatment,
            of hazardous substances owned or possessed by such
            person, by any other party or entity, at any facility or
            incineration vessel owned or operated by another
            party or entity and containing such hazardous
            substances, and
      (4)   any person who accepts or accepted any hazardous
            substances for transport to disposal or treatment
            facilities, incineration vessels or sites selected by
            such person, from which there is a release, or a
            threatened release which causes the incurrence of
            response costs, of a hazardous substance . . . .

42 U.S.C. § 9607(a).

      Section 107(a)(4)(A)-(D) provides that those covered
persons “shall be liable for”:

      (A) all costs of removal or remedial action incurred by
          the United States Government or a State or an Indian
          tribe not inconsistent with the national contingency
          plan;
      (B) any other necessary costs of response incurred by
          any other person consistent with the national
          contingency plan;
      (C) damages for injury to, destruction of, or loss of
          natural resources, including the reasonable costs of
          assessing such injury, destruction, or loss resulting
          from such a release; and
      (D) the costs of any health assessment or health effects
          study carried out under section 9604(i) of this title.

42 U.S.C. § 9607(a)(4)(A)-(D).

      B. Section 113

       In 1986, Congress enacted the Superfund Amendments
and Reauthorization Act (“SARA”), Pub. L. No. 99-499, 100
Stat. 1613, which added § 113 to CERCLA. Section 113(f)(1)

                                 6
provides:

       Any person may seek contribution from any other person
       who is liable or potentially liable under section 9607(a)
       [CERCLA § 107(a)] of this title, during or following any
       civil action under section 9606 [CERCLA § 106] of this
       title or under section 9607(a) [CERCLA § 107(a)] of this
       title. . . . In resolving contribution claims, the court may
       allocate response costs among liable parties using such
       equitable factors as the court determines are appropriate.
       Nothing in this subsection shall diminish the right of any
       person to bring an action for contribution in the absence
       of a civil action under section 9606 [CERCLA § 106] of
       this title or section 9607 [CERCLA § 107] of this title.

42 U.S.C. § 9613(f)(1).

        There are three subsections of § 113 that are of particular
relevance. They provide that: (1) a PRP that “has resolved its
liability to the United States or a State in an administrative or
judicially approved settlement” will not be liable for claims for
contribution from other PRPs with respect to “matters addressed
in the settlement,” id. § 113(f)(2); (2) a settling PRP may seek
contribution from non-settling PRPs, id. § 113(f)(3)(B); and (3)
the statute of limitation for an action under § 107(a) is six years,
whereas the statute of limitation for an action under § 113(f)(1)
is three years, id. § 113(g).

       C. Section 120

       CERCLA § 120(a)(1) contains a waiver of the United
States’ sovereign immunity. 42 U.S.C. § 9620(a)(1). Section
120(a)(1) provides that “[e]ach department, agency, and
instrumentality of the United States . . . shall be subject to, and
comply with, this chapter in the same manner and to the same
extent . . . as any nongovernmental entity, including liability
under section 9607 [CERCLA § 107] of this title.” See FMC
Corp. v. U.S. Dep’t of Commerce, 29 F.3d 833, 840 (3d Cir.
1994) (en banc) (“[W]hen the government engages in activities
that would make a private party liable [under CERCLA] if the

                                  7
private party engaged in those types of activities, then the
government is also liable.” (emphasis omitted)).

                             III.
                 Facts and Procedural History

        As we noted in our earlier opinion, DuPont owns fifteen
facilities in various states, each of which is contaminated with
hazardous waste.3 DuPont, 460 F.3d at 525. The United States
also owned each site during World War I, World War II, and/or
the Korean War. The United States polluted the sites during its
period of ownership.

        In January 1997, DuPont commenced this action against
the government in the United States District Court for the
District of New Jersey, seeking recovery for some of the cost of
its voluntary cleanup efforts. The complaint alleged causes of
action for cost recovery under § 107(a) of CERCLA, as well as
for contribution under § 113(f)(1) of CERCLA. DuPont
voluntarily dismissed its claims under § 107(a) and for
“recoupment” of costs without prejudice. In order to curtail the
expenses of discovery, the District Court designated the
Louisville, Kentucky facility as a “test case” to determine
whether DuPont could maintain its action against the
government. Following completion of discovery, the
government moved for summary judgment, arguing that DuPont
had no cause of action for contribution under § 113 because it
was a PRP that had voluntarily undertaken cleanup costs without
having been sued or without settling its liability.




       3
        The facilities include DuPont sites in Newark, New Jersey;
Carneys Point, New Jersey; Parlin, New Jersey; Pompton Lakes,
New Jersey; Gibbstown, New Jersey; Buffalo, New York; Niagara,
New York, Niagara Falls, New York; East Chicago, Indiana;
Louisville, Kentucky; Nashville, Tennessee; Spruance, Virginia;
and Belle, West Virginia; a ConocoPhillips site in Ponca City,
Oklahoma; and a Sporting Goods Properties site in Bridgeport,
Connecticut.

                                 8
       On December 30, 2003, the District Court granted the
government’s motion for summary judgment with respect to the
Louisville, Kentucky site. DuPont, 297 F. Supp. 2d at 743. The
District Court concluded that because DuPont had not been sued
under § 106 or § 107 and had not otherwise settled its liability
with respect to the Louisville facility, it could not pursue an
action for contribution under § 113. See id. at 747-48. A
contribution action under § 113 required, according to the
District Court, a prior or ongoing lawsuit. Id. at 749. The
District Court had correctly foreseen the subsequent decision of
the Supreme Court in that respect.

        On March 1, 2004, the District Court issued a ruling and
order granting the government judgment on the pleadings with
respect to the other fourteen sites. The District Court concluded
that the pleadings did not suggest any basis to conclude that the
fourteen other sites would yield a different result than the
Louisville site.

        DuPont appealed. We stayed the appeal pending the
Supreme Court’s decision in Cooper Industries, Inc. v. Aviall
Services, Inc., 543 U.S. 157 (2004), which held that a party who
had neither been held responsible following an action under §
106 or § 107 nor settled could not pursue a claim under § 113.
After the Cooper Industries opinion was filed, DuPont argued
that (1) we should rule that as a matter of law, in light of Cooper
Industries, DuPont has a right of contribution under CERCLA
that is independent of the remedy provided by § 113, even in the
absence of a civil action under § 106 or § 107; (2) a PRP, such
as DuPont, has a cause of action implied under CERCLA to
recover an equitable share of response costs from another PRP
pursuant to the text of § 107(a)(4)(B) or federal common law
even in the absence of a prior or pending § 106 or § 107 civil
action or a § 113(f)(3)(B) settlement; (3) the District Court erred
by declining to imply a right of contribution based on any other
provision of CERCLA and that the decision in Cooper Industries
demolished the assumptions underlying our analysis in Reading;
and (4) the District Court erred in granting judgment on the
pleadings by dismissing DuPont’s § 113(f) contribution claims
with respect to all fifteen sites.

                                 9
        On August 29, 2006, a divided panel of this court issued
an opinion, principally affirming the District Court’s judgment.
DuPont, 460 F.3d at 528. DuPont filed a petition for writ of
certiorari to the Supreme Court. On June 18, 2007, the Court
granted the writ. See E.I. DuPont de Nemours & Co. v. United
States, 127 S. Ct. 2971 (June 18, 2007). The Court vacated the
judgment and remanded the case to this court for further
consideration in light of Atlantic Research Corp. Id. We asked
the parties to submit supplemental briefing on the effect of
Atlantic Research Corp. on the issues in this case.

                              IV.
           Rights of a PRP under CERCLA and SARA

       The District Court’s grant of summary judgment and
judgment on the pleadings is subject to plenary review. See
Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 219-20 (3d Cir.
2005).4 On review, we construe all facts and inferences in the
light most favorable to the non-moving party, and “[j]udgment
will not be granted unless the movant clearly establishes there
are no material issues of fact, and he is entitled to judgment as a
matter of law.” Id. at 220. Questions of statutory interpretation
are also subject to plenary review. Lafferty v. St. Riel, 495 F.3d
72, 76 n.5 (3d Cir. 2007).

       Although our precedents, New Castle County and
Reading, counseled that DuPont could not maintain a cause of
action against the United States for cost recovery of voluntarily
incurred cleanup expenses under CERCLA § 107, the Supreme
Court’s decision in Atlantic Research Corp. causes us to
reevaluate our precedents. Notwithstanding this court’s strict
adherence to our precedents, we have made clear that those
precedents may be reevaluated when there has been intervening
authority. See George Harms Constr. Co. v. Chao, 371 F.3d
156, 161 (3d Cir. 2004) (“We recognize that we may reevaluate



       4
        The District Court had subject matter jurisdiction over this
case pursuant to 28 U.S.C. § 1331. We have jurisdiction on appeal
under 28 U.S.C. § 1291.

                                10
a precedent in light of intervening authority even without en
banc consideration.”); Reich v. D.M. Sabia Co., 90 F.3d 854,
858 (3d Cir. 1996) (“Although a panel of this court is bound by,
and lacks authority to overrule, a published decision of a prior
panel . . . , a panel may reevaluate a precedent in light of
intervening authority[.]”).

        Even though we must be particularly cautious in
revisiting cases involving questions of statutory interpretation, a
reevaluation of precedent is appropriate in this case. As the
Supreme Court has explained, in “cases where statutory
precedents have been overruled, the primary reason for the
Court’s shift in position has been the intervening development of
the law, through either the growth of judicial doctrine or further
action taken by Congress. Where such changes have removed or
weakened the conceptual underpinnings from the prior decision,
or where the later law has rendered the decision irreconcilable
with competing legal doctrines or policies, the Court has not
hesitated to overrule an earlier decision.” Patterson v. McLean
Credit Union, 491 U.S. 164, 173 (1989) (citations omitted).

       The Supreme Court’s decision in Atlantic Research Corp.
is such intervening authority. It impels us to reevaluate our
holdings in Reading and New Castle County
because Atlantic Research Corp. weakens the conceptual
underpinnings of those decisions.

       Section 107 states that various parties, including the
owner or operator of a facility, may be responsible for “any . . .
necessary costs of response incurred by any other person
consistent with the national contingency plan,” § 107(a)(4)(B),
and provides a cause of action to parties that incur cleanup costs
but have not themselves been sued under § 106 or § 107. For
years after the 1980 enactment of CERCLA, district courts
almost unanimously found that § 107 contained an implied cause
of action for contribution. See, e.g., United States v. New Castle
County, 642 F. Supp. 1258, 1265-69 (D. Del. 1986) (holding that
contribution right arises under federal common law); Colorado
v. ASARCO, Inc., 608 F. Supp. 1484, 1489-91 (D. Colo. 1985)
(same); Wehner v. Syntex Agribusiness, Inc., 616 F. Supp. 27,

                                11
31 (E.D. Mo. 1985) (holding that contribution right is implied
from language of § 107(e)(2)). However, with the enactment of
§ 113, the courts turned to that section and away from § 107 to
provide the cause of action.

       As we noted briefly above, we too veered away from §
107 in our decision in New Castle County, where we stated that
§ 113 provided a “potentially responsible person[] with the
appropriate vehicle” to “recoup that portion of its expenditures
which exceeds its fair share of the overall liability.” 111 F.3d at
1122. We further held that “a section 107 action brought for
recovery of costs may be brought only by innocent parties that
have undertaken clean-ups.” Id. at 1120 (emphasis in original).5
Similarly, in Reading, we held that a potentially responsible
party may not seek contribution under § 107(a)(4)(B). In fact,
we stated “§ 113(f)(1) specifically permits an action for
contribution to be brought in the absence of civil action under
section 107.” 115 F.3d at 1120 (internal punctuation and
quotation marks omitted).

       The trend toward application of § 113 was halted by the
Supreme Court’s decision in Cooper Industries, where the Court
held that the plain language of § 113(f)(1) does not allow PRPs
to bring contribution actions unless and until a related civil
action is brought against them under either § 106 or § 107. 543
U.S. at 166. The Court reserved judgment on the question
whether PRPs who are not subject to an action under § 106 or §
107 may instead seek relief under § 107(a)(4)(B).



       5
          Our imposition of the “innocent” standard on parties
seeking to bring suit under § 107 is not based on the statutory text.
Arguably, the “innocent” standard imposed by this and other
circuits violates fundamental rules of statutory construction by
imposing a requirement not evident on the statute’s face. This
court-created standard ignores the fact that § 107(a)(4)(B) plainly
allows a private party plaintiff to be “any other person” besides the
government, state, and Indian tribes and does not expressly exclude
parties that may be responsible for a spill. See Atlantic Research
Corp., 551 U.S. ___, 127 S. Ct. at 2336.

                                 12
       In Reading and New Castle County, we assumed that all
potentially responsible parties — those whose responsibility had
been adjudicated and those who voluntarily admitted their
responsibility — were “potentially responsible parties” who
could recoup losses by bringing suit pursuant to § 113(f).
Cooper Industries changed that premise, however, by holding
that only a party who has in fact been held responsible (via
adjudication or settlement with the EPA) may bring an action
under § 113(f), whereas a party who concedes it is a PRP but
whose responsibility has not been established may not. After the
Cooper Industries decision, therefore, a PRP that had not been
subject to suit or settled its liability had no recourse to recover
cleanup costs under CERCLA because under our precedents it
could not bring a § 107 claim, and under Cooper Industries, it
could not bring a § 113 claim.

       Following the decision in Cooper Industries, the Court of
Appeals for the Eighth Circuit considered the effect of Cooper
Industries in a case pending before it. In Atlantic Research
Corp. v. United States, 459 F.3d 827 (8th Cir. 2006), Atlantic
Research (a PRP) had sought partial reimbursement under both §
107 and § 113 from the United States for costs incurred in a
voluntary environmental cleanup. While that litigation was
ongoing, the Supreme Court decided Cooper Industries, thereby
foreclosing Atlantic Research’s claim under § 113 because it
had not been subject to suit or otherwise settled its liability.

       The district court before which the litigation was pending
dismissed the complaint on the basis of the Eighth Circuit’s
precedent in Dico Inc. v. Amoco Oil Co., 340 F.3d 525 (8th Cir.
2003), holding that a PRP could not bring a claim under § 107
because it was not an innocent party. On appeal by Atlantic
Research, the Eighth Circuit concluded that Cooper Industries
“undermined Dico’s reasoning for parties in Atlantic’s
position[,]” i.e., for a party who had not been sued or had not
otherwise settled its liability. 459 F.3d at 830 n.4. The court
explained that in a post-Cooper Industries world, PRPs are not
foreclosed from obtaining relief under § 107. Id. at 834, 837
(concluding that barring Atlantic Research from a cost recovery
action under § 107 would be “contrary to CERCLA’s purpose”

                                13
to encourage voluntary cleanups and would be an “an absurd and
unjust outcome”). See also Consolidated Edison Co. of New
York v. UGI Utilities, Inc., 423 F.3d 90 (2d Cir. 2005) (re-
evaluating its prior precedent following Cooper Industries).

        Our precedent in New Castle County and Reading was
similar to the Eighth Circuit’s precedent in Dico because we also
assumed that § 113 was a viable basis for obtaining relief and
that a § 107 action for cost recovery or contribution was
unavailable. It is similarly clear that Cooper Industries
undermined our precedent as well.

        The Supreme Court decision thereafter in Atlantic
Research Corp., which affirmed the Eighth Circuit’s decision, is
dispositive of the issue before us. Atlantic Research, a PRP, had
contaminated the soil and groundwater at an ammunition facility
with burned fuel, but the United States had also polluted the site.
See 127 S. Ct. at 2335. Atlantic Research voluntarily cleaned up
the site, even though it had not been the subject of a suit under §
106 or § 107. Id. It then sued the United States under both §§
107(a) and 113(f) to recover a share of its voluntary cleanup
expenses. Id. The Court, in a unanimous opinion authored by
Justice Thomas, held that, although Atlantic Research could not
sue the United States under § 113(f) in that case because no §
106 or § 107 action was pending or had been brought against
Atlantic Research, it could bring a cost recovery claim under §
107(a). Id. at 2335-39.

        More specifically, in Atlantic Research Corp. the
Supreme Court concluded that PRPs may apply both §§
107(a)(4)(B) and 113(f)(1) to recover cleanup expenses,
but the two sections “provide two ‘clearly distinct’ remedies.”
Id. at 2337 (quoting Cooper Indus., 543 U.S. at 163 n.3).
Specifically, “‘CERCLA provide[s] for a right to cost recovery
in certain circumstances, § 107(a), and separate rights to
contribution in other circumstances, §§ 113(f)(1), 113(f)(3)(B).’”
Id. (quoting Cooper Indus., 543 U.S. at 163) (emphasis in
original). Section 113(f) authorizes a PRP to seek recovery
because of an inequitable distribution of common liability
among liable parties “during or following” a suit under § 106 or

                                14
§ 107(a). See id. at 2338. Section 107(a), by contrast, “permits
recovery of cleanup costs but does not create a right to
contribution.” Id. Under § 107(a), a PRP may “recover only the
costs it has ‘incurred’ in cleaning up a site.” Id. (quoting 42
U.S.C. § 9607(a)(4)(B)). Thus, in sum, the Court stated:

       the remedies available in §§ 107(a) and 113(f)
       complement each other by providing causes of action “to
       persons in different procedural circumstances.”
       Consolidated Edison, 423 F.3d at 99; see also E.I. DuPont
       de Nemours, 460 F.3d at 548 (Sloviter, J., dissenting).
       Section 113(f)(1) authorizes a contribution action to PRPs
       with common liability stemming from an action instituted
       under § 106 or § 107(a). And § 107(a) permits cost
       recovery (as distinct from contribution) by a private party
       that has itself incurred cleanup costs. Hence, a PRP that
       pays money to satisfy a settlement agreement or a court
       judgment may pursue § 113(f) contribution. But by
       reimbursing response costs paid by other parties, the PRP
       has not incurred its own costs of response and therefore
       cannot recover under § 107(a). As a result, though
       eligible to seek contribution under § 113(f)(1), the PRP
       cannot simultaneously seek to recover the same expenses
       under § 107(a).

Id.

       The Court’s conclusion that “the plain language of
subparagraph [§ 107(a)(4)](B) authorizes cost-recovery actions
by any private party, including PRPs,” id. at 2336 (citing Key
Tronic, 511 U.S. at 818), thereby overruled our holding in
DuPont, 460 F.3d at 518, that § 113 provided the sole cause of
action to PRPs. Following Atlantic Research Corp., there is no
doubt that, contrary to our precedents, a PRP may bring a cause
of action for cost recovery under § 107 and need not rely upon §
113 as its exclusive remedy. See 127 S. Ct. at 2339.

       Permitting parties who voluntarily incur cleanup costs to
bring suit under § 107 comports with the fundamental purposes
of CERCLA. As this court noted in Horsehead Industries, Inc.

                               15
v. Paramount Communications, Inc., 258 F.3d 132 (3d Cir.
2001):

      The purpose of CERCLA is “to assure that the current
      and future costs associated with hazardous waste
      facilities, including post-closure costs, will be adequately
      financed and, to the greatest extent possible, borne by the
      owners and operators of such facilities.”

Id. at 135 (quoting 42 U.S.C. § 9607(k)(6)(E)); see OHM
Remediation Servs. v. Evans Cooperage Co., 116 F.3d 1574 (5th
Cir. 1997) (noting CERCLA’s broad, remedial purpose to
facilitate prompt cleanup of hazardous waste sites and to shift
costs of environmental response from taxpayers to parties who
benefitted from wastes that caused harm); see also In re Tutu
Water Wells CERCLA Litig., 326 F.3d 201, 206 (3d Cir. 2003)
(stating that CERCLA’s purpose is “making those responsible
for problems caused by the disposal of chemical poisons bear the
costs and responsibility for remedying the harmful conditions
they created”) (citation and quotation marks omitted).

       Voluntary cleanups are vital to fulfilling CERCLA’s
purpose. During deliberations on the SARA Amendments,
Congress emphasized the importance of voluntary action, stating
that “[v]oluntary cleanups are essential to a successful program
for clean up of the Nation’s hazardous substance pollution
problem.” H.R. Rep. No. 99-253, pt. 5, at 58 (1985), as
reprinted in 1986 U.S.C.C.A.N. 3124, 3181; see also 131 Cong.
Rec. 24725, 24730 (1985) (statement of Sen. Domenici) (“The
goal of CERCLA is to achieve effective and expedited cleanup
of as many uncontrolled hazardous waste facilities as possible.
One important component of the realistic strategy must be the
encouragement of voluntary cleanup actions or funding without
having the President relying on the panoply of administrative
and judicial tools available.”).

       Although supervised cleanups are to be encouraged
wherever possible, they need not be encouraged at the expense
of unsupervised cleanups. Under § 107(a)(4)(B), a party is liable
for costs incurred in a cleanup (voluntary or otherwise) only

                               16
insofar as those costs are “costs of response incurred by any
other person consistent with the national contingency plan.” 42
U.S.C. § 9607(a)(4)(B). By the plain text of the statute, a party
that seeks recovery for costs incurred in a cleanup that does not
comport with the national contingency plan is without recourse.
Because there has been no suggestion that DuPont’s cleanup is
in that position, it has stated a viable cause of action for cost
recovery under § 107(a).6

        For the reasons set forth, we will reverse the decision of
the District Court with respect to any claim made by DuPont for
costs incurred while undertaking voluntary cleanup efforts and
remand for further proceedings in accordance with this opinion.7
_____________________




       6
         This court considered DuPont’s claims under § 107(a)
notwithstanding its earlier voluntary dismissal of those claims,
approved without prejudice by the District Court. It would be
prudent, in light of developments in the case law, for DuPont to
seek District Court approval to amend its complaint to specifically
state a cause of action under § 107(a) once again. Atlantic
Research, in the case decided by the Supreme Court, had amended
its complaint following the decision in Cooper Industries. See 127
S. Ct. at 2335.
       7
         DuPont has requested that we order briefing on the District
Court’s definition of “contribution” and that we revisit the viability
of our decisions in New Castle and Reading. Our within opinion
explicitly covers the latter issue. In addition, the Supreme Court’s
opinion in Atlantic Research makes clear the meaning of
“contribution” and we see no reason to add to its discussion. The
parties are free to proceed with that issue in the District Court on
remand. We also leave for the District Court’s consideration
DuPont’s claims with respect to the other fourteen sites.

                                 17
