RECENT FEDERAL DECISIONS

April 2005

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District Court in New York Refuses to Contradict the Supreme Court’s Decision on CERCLA Contribution Claims
Elementis Chemicals Inc. v. T. H. Agriculture and Nutrition, LLC, ___F.Supp.2d___

When faced with the question of whether a potentially responsible party (PRP) could pursue a § 107 claim in light of the Supreme Court’s decision in Cooper Industries, Inc. v. Aviall Services, Inc., 125 S. Ct. 577 (2004) barring potentially responsible parties (PRPs) who voluntarily incur cleanup costs from obtaining contribution relief under § 113 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Southern District of New York followed pre-Aviall Second Circuit precedent and held that a PRP who cannot establish a § 107(b) affirmative defense may not pursue a § 107(a) cost recovery action against other PRPs.