March 21, 2013 Articles

Bernstein v. Bankert: CERCLA Claims by Settling Parties

The decision potentially leads to even greater confusion than before.

Bina Joshi – March 21, 2013

On December 19, 2012, the Seventh Circuit Court of Appeals issued a decision in Bernstein v. Bankert, No. 11-1501 and 11-1523 (Dec. 19, 2012), addressing when Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 113 contribution actions and CERCLA § 107 cost-recovery actions may be brought by parties that have settled their liability with regulators through settlement. The decision sought to add clarity to the CERCLA claim scheme expounded by the U.S. Supreme Court in Cooper Industries v. Aviall Services Inc., 543 U.S. 157 (2004) and in United States v. Atlantic Research Corp., 551 U.S. 128 (2007). However, the decision potentially leads to greater confusion regarding when and how recovery is available for costs incurred under a CERCLA settlement agreement.

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