Are Concurrent CERCLA Claims For Section 107(A) Cost Recovery And Section 113(F) Contribution Permissible?

Given the uncertainties after Cooper Industries v. Aviall about what cause of action a PRP has for recovering response costs under CERCLA, many parties take the prudent course of pleading claims under both for cost recovery and for contribution.  A federal court in South Carolina in PCS Nitrogen, Inc. v. Ross Develop Corporation recently held that when a PRP can satisfy the pleading requirements of both a cost recovery claim and a contribution claim it is limited to only a contribution claim.

In that case, a PRP performed certain response work pursuant to a Section 106(a) unilateral order and sought to recovery its costs under both Section 107(a) and Section 113(f).  The court reasoned that the PRP had a potential cause of action under Section 107(a) since it had incurred necessary response costs and also had a potential cause of action for contribution since a unilateral order was the functional equivalent of a civil action under Section 106.  The court then