PRP Contribution Claims Under CERCLA Strategies for Cost Recovery Against Other Potentially Responsible Parties

Presenting a live 90 minute webinar with interactive Q&A PRP Contribution Claims Under CERCLA Strategies for Cost Recovery Against Other Potentially Responsible Parties TUESDAY, SEPTEMBER 13, 2011 1pm Eastern 12pm Central 11am Mountain 10am Pacific Td Today s faculty features: Glenn A. Harris, Partner, Ballard Spahr, Cherry Hill, N.J. Michael W. Steinberg, Senior Counsel, Morgan Lewis & Bockius, Washington, D.C. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.

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Glenn A. Harris, Esq. Michael W. Steinberg, Esq. Ballard Spahr Morgan Lewis harrisg@ballardspahr.com msteinberg@morganlewis.com 856-761-3440 (202) 739-5141

OVERVIEW Slide No. I. Contribution Claims *Their Varieties, Availability, Pros and Cons 7 II. Recent Case Law Developments *Courts Directing Traffic to Either 107 or 113 33 III. Discussion of Current Issues 76 IV. Question-and-Answer Session 77 6

How important is contribution? Contribution as used here means any legal theory by which a PRP recovers cleanup costs from other PRPs Important to PRPs as the primary defense against unfairness of joint and several liability to EPA Other tools to mitigate t unfairness have not been widely available or highly effective: Divisibility of harm (although this is in flux after Burlington Northern) Mixed funding EPA orphan share funding policy 7

How important is contribution? (cont d) Important to EPA because contribution is essential to achieve settlements that will maintain the historic high rate (~70%) of PRP-lead cleanups Especially important now as EPA has no budget to perform cleanups except at orphan sites So EPA and the PRPs have a shared interest t in an effective contribution framework But don t assume that EPA will help you obtain contribution from other PRPs at your site! 8

Varieties of contribution claims CERCLA 107(a) cost recovery CERCLA 113(f) contribution following litigation or settlement under 106 or 107 113(f)(1) for costs incurred in an action under 106 or 107 113(f)(3) for costs incurred in settlements with EPA or a State State law Statutory (e.g., New Jersey Spill Act) Common law (e.g., equitable contribution among tortfeasors) 9

Why does it matter how the claim is styled? Rapidly shifting case law makes this terrain difficult to navigate For example, 2 recent decisions by the Second Circuit on the 107/ 113 split appear to be directly contradictory In the first case, decided in 2009, the court allowed a PRP to bring a 107 cost recovery claim but not a 113 contribution claim In the second case, decided in 2010, the court allowed a similarly situated PRP to bring a 113 contribution claim but not a 107 cost recovery claim 10

Why does it matter how the claim is styled? (cont d) W.R. Grace v. Zotos, 59 F.3d 85 (2d Cir. 2009) Niagara Mohawk v. Chevron, 596 F.3d 112 (2d Cir. 2010) suit by current owner following settlement with NY DEC; DEC consent order obligated plaintiff to perform RI/FS and RD/RA; orders released all claims under NY law, but made no mention of CERCLA suit by former owner following settlement with NY DEC; DEC consent orders obligated plaintiff to perform RI/FS and RD/RA; order released all claims under both CERCLA and NY law 11

Why does it matter how the claim is styled? (cont d) W.R. Grace v. Zotos, 559 F.3d 85 (2d Cir. 2009) Niagara Mohawk v. Chevron, 596 F.3d 112 (2d Cir. 2010) 113 claim rejected because AOC makes no reference to CERCLA; there is a risk the EPA will take later actions or select different remedies that could expose the PRP to additional liabilities 113 claim allowed because AOC recites that DEC releases its CERCLA claims against plaintiff upon completion of the work [N.B.: Isn t there the same risk as in Zotos that EPA will take later actions?] 12

Why does it matter how the claim is styled? (cont d) WR W.R. Grace v. Zotos, Niagara Mohawk v. Chevron, 559 F.3d 85 (2d Cir. 2009) 596 F.3d 112 (2d Cir. 2010) 107 claim allowed even though its expenditures were made in compliance with a consent order ; because 107(a) not limited to those who act voluntarily ; relevant inquiry... is whether [plaintiff acted without] the type of administrative or judicial action that would give rise to a contribution claim under section 113(f) 107 claim rejected because allowing it would in effect nullify the SARA amendment and abrogate the requirements Congress placed on contribution claims under 113 [N.B.: Court cites only to the CERCLA statute of limitations to support the reference to requirements ] 13

Why does it matter how the claim is styled? (cont d) Some legal theories are inherently more favorable to the plaintiff than others Many worthy claims founder on procedural issues, e.g., a statute of limitations problem that no one anticipated EPA/DOJ involvement in private-party t litigation can be a wild card EPA/DOJ often seeks to block 107 claims against settling PRPs Yet EPA/DOJ refuses to confer such protection up front in settlement t agreements 14

Why does it matter how the claim is styled? (cont d) CERCLA 107(a) cost recovery Pros: Joint and several liability y( (subject to counterclaim for equitable contribution) Easier prima facie case and burden of proof (need not delineate the equitable shares of each defendant Defenses typically limited to those set forth in 107(b) (act of God, act of war, third-party defense) Benefit of highly favorable case law built up by EPA/DOJ over 30 years Recovery may even include attorney s fees as enforcement cost. 15

Why does it matter how the claim is styled? (cont d) CERCLA 107(a) cost recovery (cont d) Pros (cont d): Longer statute of limitations than for 113(f) () contribution claims Text of CERCLA 113(g)(2): (2) Actions for recovery of costs. An initial action for recovery of the costs referred to in section 107 must be commenced (A) for removal action, within 3 years after completion of the removal action,.; and (B) for a remedial action, within 6 years after initiation of physical on-site construction of the remedial action 16

Why does it matter how the claim is styled? (cont d) CERCLA 107(a) cost recovery (cont d) Cons: Courts may be reluctant to grant PRPs the powerful weapon of joint and several liability. Agere Systems v. AETC, 602 F.3d 204 (3d Cir. 2010) (discussed infra); Solutia, Inc. v. McWane, Inc., 726 F. Supp. 2d 1316 (N.D. Ala., 2010). Defendants may raise divisibility of harm based on Burlington Northern, effectively turning claim into one for contribution 17

Why does it matter how the claim is styled? (cont d) CERCLA 107(a) cost recovery (cont d) Cons (cont d): EPA/DOJ may seek to block 107 claims brought against other PRPs, especially against if those other PRPs have settled with EPA EPA/DOJ argues that 107 claims are available only for purely voluntary cleanups, although the Supreme Court said no such thing in Atlantic Research Ashland v. Gar, 729 F. Supp. 2d 526 (DRI (D.R.I. 2010) ( clearly the focus of the Supreme Court s analysis [in Atlantic Research] was on the type of recovery sought, not on the voluntariness of the cleanup or the innocence of that party bringing the action. ). 18

Why does it matter how the claim is styled? (cont d) CERCLA 107(a) cost recovery (cont d) Cons (cont d): EPA/DOJ contend that any PRP incurring costs under government agency oversight is limited to a contribution claim under 113 EPA/DOJ argues that worker PRPs had 113 claims based on the AOC they signed, and even if those claims are now time-barred, they still cannot pursue 107 claims! 19

Why does it matter how the claim is styled? (cont d) CERCLA 113(f) contribution Pros: Usually no objection/challenge by EPA/DOJ Cons: Must be tied to a statutory trigger event EPA (or State) 107 cost recovery action EPA 106 civil action to compel performance of work RD/RA consent decree Other administrative i ti or judicially i approved settlement t with EPA or the State Query whether 113 plaintiff may also seek other response costs that were not incurred pursuant to the same trigger event. 20

Why does it matter how the claim is styled? (cont d) CERCLA 113(f) contribution (cont d) Cons (cont d): Must be tied to a statutory trigger event EPA Issuance of 106 Unilateral Administrative Order? NO -- Emhart Industries, Inc. v. New England Container Co., Inc., 478 F. Supp. 2d 199 (D.R.I. RI 2007); Raytheon Aircraft Co. v. United States, 435 F. Supp. 2d 1136 (D. Kan. 2006); Pharmacia Corp. v. Clayton Chemical Acquisition LLC, 382 F. Supp. 2d 1079 (S.D. Ill. 2005). 21

Why does it matter how the claim is styled? (cont d) CERCLA 113(f) contribution (cont d) Cons (cont d): AOC for RI/FS? NO -- ITT Indus.. Inc. v. BorgWarner. Inc., 506 F.3d 452 (6th Cir. 2007); Pharmacia Corp. v. Clayton Chemical Acquisition LLC, 382 F. Supp. 2d 1079 (S.D. Ill. 2005). Practice Tip: Ask to perform RI/FS under a CERCLA consent decree instead, triggering the right to seek contribution 22

Why does it matter how the claim is styled? (cont d) CERCLA 113(f) contribution (cont d) Cons (cont d): Even if plaintiff is entitled to seek contribution, that s not the end of the story Prima facie case includes several common-law elements that may be difficult to prove in the CERCLA context: common liability to a third party complete discharge of that party s claim, costs were incurred under compulsion of law 23

Why does it matter how the claim is styled? (cont d) CERCLA 113(f) contribution (cont d) Cons (cont d): See, e.g., Du Pont v. United States, 297 F. Supp. 2d 740, 751-55 (D.N.J. 2003), aff d on other grounds, 460 F.3d 515 (3d Cir. 2006), vacated on other grounds, 127 S. Ct. 2971 (2007). See also BASF Catalysts LLC v. United States, 479 F. Supp. 2d 214 (D.Mass. 2007). 24

Why does it matter how the claim is styled? (cont d) CERCLA 113(f) contribution (cont d) Cons (cont d): Recovery limited to the equitable share of each defendant Courts have broad discretion to consider any equitable factors (not just the Gore factors), reviewable on appeal only for abuse of discretion Court may find that defendants are liable, but equity dictates that no contribution should be allowed... Appleton Papers Inc. v. George A. Whitting Paper Co., 2009 WL 5064049 (E.D.Wis. Dec. 16, 2009) or that defendants should be assigned a zero share Kalamazoo River Study Group v. Eaton Corp., p, 258. F. Supp. 2d 736 (W.D. Mich. 2002) 25

Why does it matter how the claim is styled? (cont d) CERCLA 113(f) contribution (cont d) Cons (cont d): Statute of limitations is shorter, less predictable ( 113(g)(3)) Many contribution claims have no limitation period at all! Text of CERCLA 113(g)(3): (3) Contribution. No action for contribution for any response costs or damages may be commenced more than 3 years after (A) (B) the date of judgment in any action under this Act for recovery of such costs or damages, or the date of an administrative order under section 122(g) (relating to de minimissettlements) or 122(h) (relating to cost recovery settlements) or entry of a judicially approved settlement with respect to such costs or damages. 26

Why does it matter how the claim is styled? (cont d) CERCLA 113(f) contribution (cont d) Cons (cont d): Defendants may argue no common liability if an EPA claim against them would have been time-barred based on SOL Agere Systems v. AETC,, 602 F.3d 204 (3d Cir. 2010) )(discussed infra) Attorney s fees generally not recoverable Litigation fees versus PRP search fees 27

Why does it matter how the claim is styled? (cont d) State law claims Pros: May cover petroleum or other substances not covered by CERCLA May impose liability on broader universe of arrangers or generators (e.g., New Jersey Spill Act: any person responsible for a discharge) May authorize recovery of plaintiff s attorney s fees 28

Why does it matter how the claim is styled? (cont d) State law claims (cont d) Cons: May be preempted p by CERCLA (e.g., if recovery would be allowed where CERCLA would bar such recovery) Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 138 (2d Cir. 2010) ( state (state law contribution claims for CERCLA response costs conflict with CERCLA contribution claims and therefore are preempted ) 29

Why does it matter how the claim is styled? (cont d) State law claims (cont d) Cons (cont d): Some courts distinguish between statutory claims and common-law claims: In re Reading Corp., 115 F.3d 1111, 1117 (3d Cir. 1997) ( Permitting independent common law remedies would create a path around the statutory settlement scheme, raising an obstacle to the intent of Congress. ) Manor Care, Inc. v. Yaskin, 950 F.2d122 122, 126 (3d Cir. 1991) (upholding New Jersey DEP s authority to issue Spill Act directives: Congress did not intend for CERCLA remedies to preempt p complementary state remedies. 30

Why does it matter how the claim is styled? (cont d) State law claims (cont d) Cons (cont d): Courts tend to finding that state-law contribution remedies are preempted, but: Preemption cases are difficult to reconcile with CERCLA s savings clauses in 114(a) and 310(h) Preemption cases are not carefully reasoned, and so the law in this area should not be viewed as stable or settled State law claims may also be subject to state-specific specific anomalies E.g., the Minnesota Environmental Response and Liability Act (MERLA) allows PRPs to recover their removal costs but not their remedial costs 31

OVERVIEW Slide No. I. Contribution Claims *Their Varieties, Availability, Pros and Cons 3 II. Recent Case Law Developments *Courts Directing Traffic to Either 107 or 113 33 III. Discussion of Current Issues 76 IV. Question-and-Answer Session 77 32

Cooper Industries, Inc. v. AillS Aviall Services, Inc., 543 U.S. 157 (2004). 33

Cooper Industries, Inc. v. Aviall Services, Inc. Plaintiff, Aviall Services Inc., bought property from defendant, Cooper Industries, Inc. Aviall later discovered environmental contamination on the property and voluntarily remediated Aviall brought a civil action against Cooper, seeking recovery of Cooper s equitable share of environmental response costs One of Aviall s several claims was ultimately brought under CERCLA section 113(f)(1) 34

Cooper s Motion for Summary Judgment Cooper argued that Aviall could not state a claim under section 113(f)(1) because Aviall had not been sued under section 106 or 107 District Court agreed, and dismissed the claim 5th Circuit Court of Appeals affirmed, then reversed the dismissal by a divided en banc panel vote The Supreme Court affirmed dismissal of the claim by the lower courts 35

Supreme Court s Holding Private party who has not first been sued under section 106 or 107 cannot seek contribution under section 113(f)(1) from other potentially responsible parties ( PRPs ) for remediation costs it incurred Supreme Court based its decision on the plain language of section 113(f)(1): Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 or under section 9607(a). (emphasis added) 36

37

United States v. Atlantic Research Corp. Plaintiff, Atlantic Research Corp., leased property from US Department of Defense In the course of work done for the U.S., Atlantic contaminated the site, then voluntarily cleaned it Atlantic brought a civil action against the US under CERCLA section 107 to recover share of costs incurred in voluntarily cleaning up contaminated site 38

U.S. Moves to Dismiss U.S. argued that section 107(a) does not allow PRPs (such as Atlantic) to recover costs District Court granted dismissal 8th Circuit Court of Appeals reversed, stating that section 113(f) does not provide the exclusive route by which PRPs may recover cleanup costs Supreme Court affirmed judgment of the Court of Appeals 39

Supreme Court s Holding PRPs who have voluntarily incurred remediation costs may bring cost recovery action against other PRPs under section 107(a)(4)(B) The decision harmonized section 107(a) cost recovery and 113(f) contribution: 107(a) permits cost recovery (as distinct from contribution) by a private party that has itself incurred clean-up costs.... [C]osts of reimbursement to another person pursuant to a legal l judgment or settlement are recoverable only under 113(f). (emphasis added) 40

Supreme Court s Holding (cont d) While recognizing possible scenario, Court declined to decide whether costs of work done pursuant to consent decree under section 106 or 107 (compelled costs) are recoverable under section 113(f), 107(a), or both 41

Footnote Six We do not suggest that 107(a)(4)(B) and 113(f) have no overlap at all. Key Tronic Corp. v. United States, 511 U.S. 809, 816, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994) (stating the statutes provide similar and somewhat overlapping remed[ies] ). For instance, we recognize that a PRP may sustain expenses pursuant to a consent decree following a suit under 106 or 107(a). See, e.g., United Technologies Corp. v. Browning-Ferris Industries, Inc., 33 F.3d 96, 97 (C.A.1 1994). In such a case, the PRP does not incur costs voluntarily but does not reimburse the costs of another party. We do not decide whether these compelled costs of response are recoverable under 113(f), 107(a), or both. For our purposes, it suffices to demonstrate that costs incurred voluntarily are recoverable only by way of 107(a)(4)(B), and costs of reimbursement to another person pursuant to a legal judgment or settlement are recoverable only under 113(f). Thus, at a minimum, neither remedy swallows the other, contrary to the Government's argument. 42

Section 107 Language g Section 107(a) Liability The statute sets out who is liable in 107(a)(1)-(4) and then states in 107(a)(4) to whom those parties are liable and what they are liable for: To the government for all costs of a removal or remedial action not inconsistent with the NCP and, To any other person for any other costs of response incurred which costs are consistent with the NCP. 43

Section 113(f) () Language g Section 113(f) Contribution Contribution. Any person may seek contribution from any other person who is liable or potentially liable under 107(a) during or following any civil action under 106 or under 107(a). Settlement. A person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement. 44

Section 113(f) () Language g (cont d) Persons not party to settlement. A person who has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement may seek contribution from any person who is not party to a settlement referred to in paragraph (2). 45

Costs Clearly Recoverable Under Either 107 or 113 Claims that must be brought under 107: Costs incurred in cleanup undertaken without EPA oversight or involvement. Claims that must be brought under 113: Claims against 3rd parties for government incurred costs where the government has conducted d a cleanup and sued your client for cost recovery. 46

Agere Systems, Inc., et al. v. Advanced Environmental Technology Corp., et al. 602 F.3d 204 (3d Cir. 2010) 47

Agere Systems, Inc., et al. v. Advanced Environmental Technology Corp., et al. Three of five plaintiffs agreed in US Consent Decree to perform OU-1 Work Those three plus another plaintiff, TI, agreed in a second US Consent Decree to reimburse US past costs and to perform OU-2 Work TI joined OU-1 Group and Agere joined OU-1 and OU- 2 Groups Claims asserted under Section 107(a) and Section 113(f) 48

Agere Systems, Inc., et al. v. Advanced Environmental Technology Corp., et al. (cont d) Held -- 1) Plaintiffs who if permitted to bring a Section 107(a) claim would be shielded from contribution counterclaims under Section 113(f)(2) do not have any 107(a) claims for costs incurred 2) TI and Agere have 107(a) claims for Work costs, as they were never sued Statutory language ignored, sole focus was perceived inequity of permitting joint and several liability without perceived possibility of equitable allocation counterclaims 49

Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., et al. 596 F.3d 112 (2nd Cir. 2010) 50

Niagara Mohawk Power Corp. v. Chevron USA U.S.A., Inc., et al. Plaintiff entered into State Consent Order to perform remediation Consent Order expressly resolved State s CERCLA claims Claims asserted under Section 107(a) and Section 113(f) Held Plaintiffs limited to Section 113(f) Statutory language ignored, allowing Section 107(a) claims would nullify the SARA amendment and abrogate the requirements Congress placed on contribution claims under Section 113 noting different statutes t t of limitations it ti 51

Morrison Enterprises, LLC, et al. v. Dravo Corp. 638 F.3d 594 (8th Cir. 2011) 52

Morrison Enterprises, LLC, et al. v. Dravo Corp. Plaintiffs entered into US AOCs and Consent Decree to do work Claims asserted under Section 107(a) and Section 113(f) Held Section 107(a) claim dismissed Entitled to Section 113(f) claim, but claim dismissed as time barred Statutory language ignored, no Section 107(a) claim because work costs were not incurred voluntarily 53

Bernstein, et al. v. Bankert, et al. 2010 WL 3893121 (S.D. Ind. 2010) 54

Bernstein, et al. v. Bankert, et al. Held -- No Section 107(a) -- Statutory language ignored, no Section 107(a) because work pursuant to Consent Decree, so not voluntary Follows Agere, because Consent Decree gave contribution ti protection would prohibit Section 113(f) counterclaim, prevent injustice 55

Solutia, Inc. et al. v. McWane, Inc. 726 F. Supp. 2d 1316 (N.D. Ala. 2010) 56

Solutia, Inc. et al. v. McWane, Inc. Held Section 113(f) only because State Consent Decree released CERCLA claims If settlement gives rise to contribution rights, then Section 113(f) only; if not, then Section 107(a) only No voluntary requirement, acknowledges statutory language in Section 107(a), but Congress could not have intended that a plaintiff could avoid the less favorable aspects of Section 113(f) claims just by seeking those very same costs via Section 107(a) -- relies on some or all of a response action or for some or all of the costs of such action 57

United States t v. Pharmacia Corp., et al. 713 F. Supp. 2d 785 (S.D. Ill. 2010) 58

United States v. Pharmacia Corp., et al. Held Section 107(a) cross-claim claim permitted for costs incurred voluntarily outside the scope of Pharmacia s partial US Consent Decree and not reimbursable bl to the US Section 113(f) claim previously dismissed because US lost liability trial against remaining defendant 59

Opinions allowing a Section 107(a) claim where there is no right to a Section 113(f) claim 60

W.R. Grace & Co. CONN v. Zotos Int l, Inc. 559 F.3d 85 (2d Cir. 2009) 61

W.R. Grace & Co. CONN v. Zotos Int l, Inc. Plaintiff entered into State Consent Order to do work and reimburse State response costs CO did not mention CERCLA Held Section 107(a) claim permitted, no Section 113(f) claim No Section 113(f) claim because not a CERCLA settlement No statutory requirement that costs be voluntary, and Grace did the work itself 62

W.R. Grace & Co. CONN v. Zotos Int l, Inc., (cont d) The relevant inquiry is whether the party undertook the remedial actions without the need for the type of administrative or judicial action that would give rise to a contribution ti claim under section 113(f) Encourage cleanups 63

ITT Industries, Inc. v. BorgWarner, Inc. 506 F.3d 452 (6th Cir. 2009) 64

ITT Industries, Inc. v. BorgWarner, Inc. Plaintiff entered into ACO that was not a Section 113(f) settlement Held Section 107(a) permitted ACO gave no contribution rights, so Section 107(a) permitted 65

Ahl Ashland Inc. v. GAR Electroforming, ig et al. 729 F. Supp. 2d 526 (D.R.I. 2010) 66

Ashland Inc. v. GAR Electroforming, et al. Plaintiff responded to EPA letter and accompanying AOC with a letter agreeing to be a Performing Party (others had settled with EPA) and thereafter performed certain work and reimbursed EPA oversight costs Held Section 107(a) claim permitted against parties to EPA Consent Decree; no Section 113(f) claim because Plaintiff was never sued, never judicial i or administrative i ti approval of settlement t 67

Ashland Inc. v. GAR Electroforming, et al., (cont d) No statutory requirement that costs be voluntary ; follows Grace Contribution protection given to CD parties did not bar Section 107(a) claim 68

Ford Motor Co. v. Michigan Consolidated Gas Co. 2009 WL 3190418 (E.D. Mich. 2009) 69

Ford Motor Co. v. Michigan Consolidated Gas Co. Plaintiff entered into State voluntary CERCLA CACO to do remediation Brought Section 107(a) and Section 113(f) claims Held Section 107(a) claim permitted; Section 113(f) claim dismissed No Section 113(f) claim because wasn t 122(g) or (h) (statute of limitations) No statutory requirement that costs be voluntary and it was voluntary Encourage cleanups 70

US v. Pharmacia Corp., et al. v. Rogers Cartage 713 F. Supp. 2d 785 (S.D. Ill. 2010) 71

US v. Pharmacia Corp., et al. v. Rogers Cartage Cross-claim Plaintiffs sued by US, entered into partial settlement Cross-claim Defendants found not liable to US at trial Cross-claims asserted under Section 107(a) and Section 113(f) for costs outside scope of settlement (that claim dismissed when cross-claim claim Defendant found not liable) Held Section 107(a) claim permitted, but only for costs outside the scope of any ACO or Consent Decree and not reimbursement Being sued by the US under Section 107(a) does not bar a Section 107(a) claim 72

Queens West Development Corp. v. Honeywell International Inc. No. 3:10-cv-04876 (D.N.J. Aug. 17, 2011) 73

Queens West v. Honeywell International Queens West remediated a former chemical works operated by Honeywell s predecessor in Long Island City. Remediation performed under New York DEC s voluntary cleanup program Contribution claim asserted under 113(f) Held No 113 claim permitted for costs incurred voluntarily, which (citing Atlantic Research) are recoverable only under 107(a). Queens West did not allege (1) that it is a PRP, or (2) that it entered into an administrative or judicially i approved settlement t 74

OVERVIEW Slide No. I. Contribution Claims *Their Varieties, Availability, Pros and Cons 7 II. Recent Case Law Developments *Courts Directing Traffic to Either 107 or 113 33 III. Discussion of Current Issues 76 IV. Question-and-Answer Session 77 75

Discussion of Current Issues 76

Question-and-Answer Session 77

Glenn A. Harris, Esq. Michael W. Steinberg, Esq. Ballard Spahr Morgan Lewis harrisg@ballardspahr.com msteinberg@morganlewis.com 856-761-3440 (202) 739-5141