CERCLA Cost Recovery Or Contribution Claim: Another Judicial Misstep

The chaos unleashed by Aviall continues in a recent decision by the Seventh Circuit. In Bernstein v. Blankert, the Seventh Circuit revisited the issue whether a party having entered into an Administrative Order by Consent had a claim against other PRPs for cost recovery under Section 107(a) or for contribution under Section 113(f)(1). Offering a novel and entirely misguided conclusion, the court found that whether a party has a claim for cost recovery or for contribution hinges on whether that party had completed all of its obligations under the AOC.

According to the Seventh Circuit, CERCLA provides that a party has a contribution action when it (1) is sued by the government or (2) has "resolved its liability to the United States or a State". Because a party entering into an AOC has by definition not been sued by the government, the court reasoned that such a party can only have a contribution action if it has resolved its liability. So far so good, but the court then