RECENT FEDERAL DECISIONS

May 2009

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Second Circuit Holds Party Who Remediates Contamination under State Consent Order Can Bring CERCLA Action for Response Costs–Not for Contribution
W.R. Grace & Co.-Conn. v. Zotos International, Inc., ___F.3d___

W.R. Grace & Co.-Conn. (Grace) sought to recover response costs incurred in remediating its contaminated property from a fellow potentially responsible party (PRP), Zotos International (Zotos). Zotos asserted that Grace was prohibited from recovering its response costs under § 113 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) because it had not been previously sued under §106 or §107; and §107 because Grace was also a PRP. The Second Circuit affirmed the District Court’s decision as to § 113. However, in light of Atlantic Research, the Second Circuit determined that Grace’s §107 claim was appropriate and remanded the case back to the District Court.