Kotrous v. Goss-Jewett Co. of Northern California, Inc.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES KOTROUS, INDIVIDUALLY AND 
DOING BUSINES AS THE MATTRESS
FACTORY,
Plaintiff-Appellee,
v.
GOSS-JEWETT COMPANY OF No. 06-15162
NORTHERN CALIFORNIA, INC.; et al.,
Defendants,
 D.C. No.
CV 02-1520 FCD
and
BAYER CROPSCIENCE, INC.,
Defendant-Appellant,
EDWARD ANSELMO,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, District Judge, Presiding
ADOBE LUMBER, INC., a California 
corporation,
Plaintiff-Appellee,
No. 06-16019
v.
F. WARREN HELLMAN; WELLS  D.C. No.
CV 05-1510 WBS
FARGO BANK NA, as Trustees of
OPINION
Trust A created by the Estate of
Marco Hellman,
Defendants-Appellants.

4105
4106 KOTROUS v. BAYER CROPSCIENCE, INC.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted
October 18, 2007—Pasadena, California
Filed April 17, 2008
Before: Alex Kozinski, Chief Judge, A. Wallace Tashima,
and M. Margaret McKeown, Circuit Judges.
Opinion by Judge Tashima
4108 KOTROUS v. BAYER CROPSCIENCE, INC.
COUNSEL
Jacqueline L. McDonald, Somach, Simmons & Dunn, Sacra-
mento, California, for plaintiff-appellee James Kotrous.
John D. Edgcomb, San Francisco, California, for defendant-
appellant Bayer CropScience, Inc.
Jeffory J. Scharff, Sacramento, California, for defendant-
appellee Edward Anselmo.
Robert L. Wainess, Bartko, Zankel, Tarrant & Miller, San
Francisco, California, for plaintiff-appellee Adobe Lumber,
Inc.
Thomas M. Donnelly, Heller Ehrman LLP, San Francisco,
California, for defendants-appellants F. Warren Hellman and
Wells Fargo Bank, N.A.
KOTROUS v. BAYER CROPSCIENCE, INC. 4109
OPINION
TASHIMA, Circuit Judge:
We are required to consider the continued viability of Pinal
Creek Group v. Newmont Mining Corp., 118 F.3d 1298 (9th
Cir. 1997), in light of the Supreme Court’s most recent prece-
dent addressing the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675
(“CERCLA”). Sections 107 and 113(f) of CERCLA, 42
U.S.C. §§ 9607 and 9613, “allow private parties to recover
expenses associated with cleaning up contaminated sites.”
United States v. Atl. Research Corp., 127 S. Ct. 2331, 2333
(2007). In Atlantic Research, the Supreme Court held that
§ 107(a) provides “so-called potentially responsible parties
(PRPs) . . . with a cause of action to recover costs from other
PRPs,” id. at 2334, whereas § 113 provides an action for con-
tribution. In so holding, the Court undermined Pinal Creek’s
holding that § 107 entitles PRPs to seek only contribution, not
cost recovery, from other PRPs. To the extent, therefore, that
Pinal Creek conflicts with Atlantic Research, we conclude
that Pinal Creek has been overruled.
This opinion addresses two separate appeals, in separate
actions, seeking recovery of costs associated with the clean-
up of hazardous waste sites.1 In the first appeal, James
Kotrous sued numerous defendants, including Bayer Crop-
Science, Inc., seeking contribution under CERCLA for costs
he had incurred in cleaning soil and groundwater contamina-
tion on land he owned. The district court denied Bayer’s
motion to dismiss Kotrous’ claim under CERCLA § 107 for
1
These appeals were consolidated for oral argument with two other
CERCLA cases, Goodrich Corp. v. United States Dep’t of Defense, No.
05-56694, and City of Rialto v. United States Dep’t of Defense, No. 05-
56749. Goodrich and Rialto are addressed in a separate memorandum dis-
position, filed concurrently with this opinion. We decide these cases,
Kotrous and Adobe, together because they present the same issue.
4110 KOTROUS v. BAYER CROPSCIENCE, INC.
contribution. It then granted Bayer’s motion for certification
for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
In the second appeal, Adobe Lumber, Inc., the owner of
contaminated land, sued the owners of a dry cleaning business
run on the property, as well as prior landowners, chemical and
equipment manufacturers, and the City of Woodland, for con-
tribution for costs Adobe had incurred in dealing with the
contamination. The district court denied the defendants’
motion to dismiss for failure to state a claim. Adobe Lumber,
Inc. v. Hellman, 415 F. Supp. 2d 1070 (E.D. Cal. 2006). The
district court subsequently certified its order for appeal. We
agreed to hear both interlocutory appeals pursuant to 28
U.S.C. § 1292(b).
BACKGROUND2
I. Kotrous
Since October 1995, Kotrous has owned land in Sacra-
mento, California, and operated a business called “The Mat-
tress Factory” on the site. Prior to 1995, the land was owned
by numerous defendants.
Goss-Jewett Company operated a dry cleaner supply busi-
ness on the property from approximately 1970 to 1996. Dur-
ing that period, it stored and distributed the solvent
perchloroethylene (“PCE”) and other hazardous substances.
Defendant Stauffer Chemical Company and its successors,
which includes Bayer, supplied the PCE. Stauffer accidentally
released PCE into the soil and groundwater while making its
deliveries, resulting in contamination of the property.
2
Because of the procedural posture of the cases, the facts are taken from
the pertinent complaints and construed in the light most favorable to the
non-moving parties. Deveraturda v. Globe Aviation Sec. Servs., 454 F.3d
1043, 1046 (9th Cir. 2006).
KOTROUS v. BAYER CROPSCIENCE, INC. 4111
In February 2000, the California Regional Water Quality
Control Board (“RWQCB”) sent Goss-Jewett a letter request-
ing that it prepare and submit a work plan for assessment of
the site. Goss-Jewett refused to do so. In November 2001, the
RWQCB issued a Cleanup and Abatement Order requiring
Goss-Jewett to investigate and clean the soil and groundwater
at the site. Kotrous was directed to conduct the work if Goss-
Jewett failed to do so. When Goss-Jewett failed to act,
Kotrous incurred costs performing site characterization and
investigation, and identification and investigation of PRPs.
Kotrous then commenced this action. His First Amended
Complaint (“FAC”) included a claim for contribution under
§ 107(a) of CERCLA for costs “Kotrous has incurred and will
incur” in responding to the contamination. He also requested
declaratory relief under § 113(g) “on liability for response
costs or damages,” and alleged various state law causes of
action.
Bayer filed a motion for judgment on the pleadings, which
the district court denied. After an unsuccessful motion for
reconsideration, Bayer filed a motion for certification under
28 U.S.C. § 1292(b) for immediate appeal of the issue of
whether Kotrous, as a PRP, could request contribution under
§ 113(f) without first being sued under § 106 or § 107(a). The
district court granted the motion and we granted the petition
for interlocutory appeal.
II. Adobe Lumber
Adobe is the owner of the Woodland Shopping Center in
Woodland, California (the “Site”). Over the years, the Site has
had a succession of owners: Marco Hellman owned the prop-
erty from 1971 until his death in 1973; his estate (the “Hell-
man Estate”) owned the property from 1973 until 1976. F.
Warren Hellman (“Hellman”), Marco’s son, was the trustee of
two trusts created by the Hellman Estate and owned the prop-
erty from 1976 until 1979. As co-trustee to one of the trusts,
4112 KOTROUS v. BAYER CROPSCIENCE, INC.
Wells Fargo Bank also owned the site during that period. The
shopping center was owned by various other owners until
Adobe purchased the property in 1998.
Between 1974 and November 2001, all of the owners
leased part of the property to Harold and Geraldine Taecker
(the “Taeckers”), who owned and operated a dry cleaning
facility on the property. The Taeckers used PCE, produced by
several manufacturer-defendants, as a cleaner during that
time. Throughout their dry cleaning operations, the Taeckers
released and disposed of PCE on the Site. A faulty sewer line
also caused discharge of PCE and resultant contamination of
the Site.
In August 2001, Adobe voluntarily examined the Site to see
whether the Taeckers’ long-time dry cleaning business had
affected the soil and groundwater. After discovering elevated
levels of chemical pollutants, Adobe reported the contamina-
tion to the RWQCB and the County Environmental Health
Department. The RWQCB began working with the Taeckers
and Adobe to create a work plan for the investigation of soil
and groundwater contamination at the Site. During this pro-
cess, Adobe incurred costs investigating the contamination at
the Site.3 A variety of legal actions followed, culminating in
this lawsuit.
Adobe filed suit in the district court alleging several federal
claims, including claims under the Resource Conservation and
Recovery Act, 42 U.S.C. § 6972, and §§ 107(a) and 113(g) of
CERCLA. Adobe’s FAC also asserted state environmental
claims and common law property and tort claims. As to the
CERCLA claims at issue in this appeal, Adobe sought to
recover costs that it had incurred or would incur in complying
3
Adobe has not alleged that it already spent any money to remediate the
contamination at the Site. At the time the Second Amended Complaint
was filed, the RWQCB had not yet issued a final Cleanup and Abatement
Order.
KOTROUS v. BAYER CROPSCIENCE, INC. 4113
with the national contingency plan through implied contribu-
tion under § 107(a). It also requested “contribution . . . for all
or a portion of past, present and future costs incurred in
response to the release or threatened release of hazardous sub-
stances at the Site[ ]” under § 113(g). The defendants filed a
motion to dismiss the complaint for failure to state a claim.
The district court denied the motion to dismiss Adobe’s
claim for contribution under CERCLA.4 Adobe Lumber, 415
F. Supp. 2d at 1079. The court noted that the combined effect
of the Supreme Court’s decision in Cooper Industries, Inc. v.
Aviall Services, Inc., 543 U.S. 157 (2004), and existing Ninth
Circuit precedent would be to prevent Adobe from recovering
under either § 107 or § 113 of CERCLA. 415 F. Supp. 2d at
1077. Nevertheless, it had “difficulty imagining that the Ninth
Circuit would prevent PRPs from pursuing contribution
claims for clean up costs incurred voluntarily.” Id. at 1078.
Noting that several CERCLA cases sharing the same issue
had reached the Ninth Circuit on appeal, the district court
denied the motion to dismiss and stayed discovery in the case.
Id. at 1079.
STANDARDS OF REVIEW
The district court’s interpretation of a statute is reviewed de
novo. Pinal Creek, 118 F.3d at 1300. Similarly, the district
court’s grant of judgment on the pleadings is reviewed de
novo. Ventress v. Japan Airlines, 486 F.3d 1111, 1114 (9th
Cir. 2007). “On review of a judgment on the pleadings, ‘[t]he
appellate court must accept all material allegations in the
complaint as true and construe them in the light most favor-
able to [the non-moving party].’ ” Deveraturda, 454 F.3d at
4
The district court granted the defendants’ motion to dismiss several
state claims in the complaint as time barred and denied the motion to dis-
miss by one defendant, who argued that it was not a liable party under
CERCLA. Adobe Lumber, 415 F. Supp. 2d at 1079-83. Those issues are
not before us in this appeal.
4114 KOTROUS v. BAYER CROPSCIENCE, INC.
1046 (quoting Turner v. Cook, 362 F.3d 1219, 1225 (9th Cir.
2004)) (alterations in original). The district court’s dismissal
for failure to state a claim is reviewed de novo. Pakootas v.
Teck Cominco Metals, Ltd., 452 F.3d 1066, 1072 (9th Cir.
2006), cert. denied, 128 S. Ct. 858 (2008).
DISCUSSION
[1] “CERCLA is a comprehensive statute that grants the
President broad power to command government agencies and
private parties to clean up hazardous waste sites.” Key Tronic
Corp. v. United States, 511 U.S. 809, 814 (1994). CERCLA
§ 107(a) “authorizes suits against certain ‘statutorily defined
“responsible parties” to recover costs incurred in cleaning up
hazardous waste disposal sites.’ ” Pinal Creek, 118 F.3d at
1300 (quoting Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d
1454, 1455 (9th Cir. 1986) (in turn quoting 42 U.S.C.
§ 9607(a))). Section 107, “the ‘cost recovery’ section of CER-
CLA,” sets forth four types of PRPs. Cooper, 543 U.S. at 161.
The classes include “the owner and operator of . . . a facility,”
“any person who at the time of disposal of any hazardous sub-
stance owned or operated any facility at which such hazard-
ous substances were disposed of,” and “any person who . . .
arranged for disposal or treatment . . . of hazardous substances
. . . at any facility.” 42 U.S.C. § 9607(a)(1)-(3). Such PRPs
shall be liable for—
(A) all costs of removal or remedial action incurred
by the United States Government or a State or an
Indian tribe not inconsistent with the national contin-
gency plan;
(B) any other necessary costs of response incurred
by any other person consistent with the national con-
tingency plan;
(C) damages for injury to, destruction of, or loss of
natural resources, including the reasonable costs of
KOTROUS v. BAYER CROPSCIENCE, INC. 4115
assessing such injury, destruction, or loss resulting
from such a release; and
(D) the costs of any health assessment or health
effects study carried out under section 9604(i) of this
title.
Id. § (a)(4)(A)-(D).
[2] “After CERCLA’s enactment in 1980, litigation arose
over whether . . . a private party that had incurred response
costs, but that had done so voluntarily and was not itself sub-
ject to suit, had a cause of action for cost recovery against
other PRPs” under § 107. Cooper, 543 U.S. at 161. “Various
courts held that § 107(a)(4)(B) . . . authorized such a cause of
action.” Id. (citing cases). Also, as originally enacted, CER-
CLA did not provide an express cause of action for contribu-
tion. Id. at 162; Pinal Creek, 118 F.3d at 1300. Litigation
accordingly ensued over the question of “whether a private
entity that had been sued in a cost recovery action (by the
Government or by another PRP) could obtain contribution
from other PRPs.” Cooper, 543 U.S. at 162. The district
courts “almost unanimously found that § 107 contained an
implied cause of action for contribution.” E.I. DuPont de
Nemours & Co. v. United States, 508 F.3d 126, 132 (3d Cir.
2007).
Congress amended CERCLA in the Superfund Amend-
ments and Reauthorization Act of 1986 (“SARA”), Pub. L.
No. 99-499, § 113, 100 Stat. 1613 (1986), creating an express
cause of action for contribution in CERCLA § 113, 42 U.S.C.
§ 9613. Section 113 provides, in pertinent part, as follows:
Any person may seek contribution from any other
person who is liable or potentially liable under sec-
tion 9607(a) of this title, during or following any
civil action under section 9606 of this title or under
section 9607(a) of this title. Such claims shall be
4116 KOTROUS v. BAYER CROPSCIENCE, INC.
brought in accordance with this section and the Fed-
eral Rules of Civil Procedure, and shall be governed
by Federal law. In resolving contribution claims, the
court may allocate response costs among liable par-
ties using such equitable factors as the court deter-
mines are appropriate. Nothing in this subsection
shall diminish the right of any person to bring an
action for contribution in the absence of a civil
action under section 9606 of this title or section 9607
of this title.
42 U.S.C. § 9613(f)(1).
In Pinal Creek, we held that § 113 merely “confirm[ed] and
clarif[ied]” the existing claim for contribution that most courts
had found to be implied by § 107. Pinal Creek, 118 F.3d at
1301. We concluded that “§§ 107 and 113 work together —
the first section creating the claim for contribution between
PRPs, and the second qualifying the nature of that claim.” Id.
at 1302. That is, “section 107 governs liability, while section
113(f) creates a mechanism for apportioning that liability
among responsible parties.” Id. (quoting United States v.
ASARCO, Inc., 814 F. Supp. 951, 956 (D. Colo. 1993)).
[3] The plaintiff, Pinal Creek Group, was composed of
three mining companies that had engaged in the voluntary
cleanup of a hazardous waste site. It sought to recover the
totality of its costs from other PRPs, asserting that the other
PRPs would then be entitled to seek contribution from it
(Pinal Creek) for its portion of the costs. Reasoning that the
language of § 107 only allowed a PRP to “hold other PRPs
liable for a portion of” its cleanup costs, we concluded that “a
PRP is not entitled to recover all its response costs from other
PRPs, but instead is limited to asserting a claim for contribu-
tion.” Id. at 1301, 1302. We reasoned “that a CERCLA claim
by a PRP against another PRP is necessarily for contribution.”
Id. at 1303 (citing cases). We therefore held that “a PRP does
not have a claim for the recovery of the totality of its cleanup
KOTROUS v. BAYER CROPSCIENCE, INC. 4117
costs against other PRPs, and a PRP cannot assert a claim
against other PRPs for joint and several liability.” Id. at 1306.
We addressed CERCLA contribution again in Western
Properties Service Corp. v. Shell Oil Co., 358 F.3d 678 (9th
Cir. 2004). Western Properties sought “ ‘recovery of response
costs and contribution, under § 107 and § 113 respectively,’ ”
primarily from oil companies, after spending several million
dollars on an environmental response to petroleum waste pits
on property it had purchased. Id. at 682. We agreed with the
oil companies that “the district court erred in granting recov-
ery against them jointly and severally for 100% of the cleanup
expense,” because, pursuant to Pinal Creek, Western Proper-
ties, as a PRP, could bring only a claim for contribution. Id.
at 687-89.
Western Properties also answered a question not decided in
Pinal Creek — whether a non-polluting PRP landowner may
sue under § 107(a) for full joint and several recovery. We rea-
soned that CERCLA already provided a statutory exception
for innocent parties in § 101(35), and that allowing non-
polluting PRP landowners to recover under both § 107(a) and
§ 113 would allow such landowners to “evade the § 113(f)(1)
requirement that factors for allocation be ‘equitable,’ ” and
potentially allow them double recoveries. Id. at 689-91. We
therefore “reject[ed] a non-polluting PRP landowner excep-
tion beyond the one provided by § 101(35),” and held that
“Western Properties, as a PRP, [was] limited to bringing a
contribution action governed by § 113.” Id. at 692.
In December 2004, the Supreme Court decided Cooper,
holding that “a private party who has not been sued under
§ 106 or § 107(a)” may not “obtain contribution under
§ 113(f)(1) from other liable parties.” Cooper, 543 U.S. at
160-61. Cooper therefore abrogated our prior assumption that
a PRP could sue for contribution without being subject to suit
4118 KOTROUS v. BAYER CROPSCIENCE, INC.
under § 106 or § 107. See W. Props., 358 F.3d at 683 & n.18
(citing cases allowing such actions).5
Cooper involved sites in Texas that had been contaminated
by both Aviall Services, Inc., and Cooper Industries, Inc. Avi-
all cleaned up the properties under the supervision of the State
of Texas and subsequently sought contribution, pursuant to
§ 113(f)(1), from Cooper for response costs. Aviall asserted
that it had “framed its claim in the manner compelled by Fifth
Circuit precedent holding that a § 113 claim is a type of § 107
claim.” Cooper, 543 U.S. at 164 n.4. The Fifth Circuit, sitting
en banc, held that Ҥ 113(f)(1) allows a PRP to obtain contri-
bution from other PRPs regardless of whether the PRP has
been sued under § 106 or § 107.” Id. at 165. The Supreme
Court reversed. Id.
The Court reasoned that allowing a contribution action at
any time, “regardless of the existence of a § 106 or § 107
action,” would render superfluous the explicit language of the
statute that “ ‘[a]ny person may seek contribution . . . during
or following any civil action under section 9606 of this title
or under section 9607(a) of this title.’ ” Id. at 166 (quoting 42
U.S.C. § 9613(f)(1)). The Court construed the last sentence of
§ 113(f)(1), the so-called saving clause,6 as “rebut[ting] any
presumption that the express right of contribution provided by
5
A preliminary question in Western Properties was whether the district
court had jurisdiction to award damages against the oil companies, where
“there was no prior civil action against Western Properties pursuant to
CERCLA §§ 106 or 107.” W. Props., 358 F.3d at 683. Western Properties
had asserted “both a § 107(a) response-cost recovery and a § 113(f)(1)
contribution claim,” and the oil companies had counterclaimed against
Western Properties under both sections. Id. at 685. We thus held that the
district court had jurisdiction because the contribution action was pursued
during a civil action under § 107(a). Id.
6
The clause provides that “[n]othing in this subsection shall diminish
the right of any person to bring an action for contribution in the absence
of a civil action under section 9606 of this title or section 9607 of this
title.” 42 U.S.C. § 9613(f)(1).
KOTROUS v. BAYER CROPSCIENCE, INC. 4119
the enabling clause is the exclusive cause of action for contri-
bution available to a PRP,” but not as creating a cause of
action. Id. at 166-67. Because Aviall had never been subject
to an action under § 106 or § 107, the Court held that it had
no claim for contribution under § 113(f)(1). Id. at 168.
Aviall contended that, in the alternative to a contribution
claim under § 113(f)(1), it could recover costs under
§ 107(a)(4)(B), even though it was a PRP, but the Court
declined to consider the issue because the district court and
the Fifth Circuit had not addressed it. Id. The Supreme Court
accordingly left open the questions of whether Aviall could
pursue cost recovery under § 107 and whether Aviall had an
implied right to contribution under § 107. Id. at 170.
In Atlantic Research, the Supreme Court answered the first
question left open in Cooper: “whether § 107(a) provides . . .
PRPs . . . with a cause of action to recover costs from other
PRPs.” Atl. Research, 127 S. Ct. at 2334. The Court held that
it does. Id.
[4] The Court examined the structure of § 107(a)(4) and
concluded that “the plain language of [§ 107(a)(4)(B)] autho-
rizes cost-recovery actions by any private party, including
PRPs.” Id. at 2336. The Court explained that “the remedies
available in §§ 107(a) and 113(f) complement each other by
providing causes of action ‘to persons in different procedural
circumstances.’ ” Id. at 2338 (quoting Consol. Edison Co. v.
UGI Utils., Inc., 423 F.3d 90, 99 (2d Cir. 2005), cert. denied,
127 S. Ct. 2995 (2007)). CERCLA § 113(f) grants an explicit
right to contribution to PRPs “with common liability stem-
ming from an action instituted under § 106 or § 107(a).” Id.
Section § 107(a), by contrast, “permits recovery of cleanup
costs but does not create a right to contribution. A private
party may recover under § 107(a) without any establishment
of liability to a third party,” but a PRP may recover only the
costs it has incurred in cleaning a site, not the costs of a settle-
ment agreement or a court judgment. Id.
4120 KOTROUS v. BAYER CROPSCIENCE, INC.
A PRP cannot choose remedies, but must proceed under
§ 113(f)(1) for contribution if the party has paid to satisfy a
settlement agreement or a court judgment pursuant to an
action instituted under § 106 or § 107.7 Id. If, however, the
private party has itself incurred response costs, it may seek
recovery under § 107. Id.
[5] The holding in Atlantic Research that a PRP may sue
for cost recovery under § 107 undermines our holding in
Pinal Creek that an action between PRPs is necessarily for con-
tribution.8 Although “a three-judge panel may not itself over-
rule a prior decision of the court, ‘where the reasoning or
theory of our prior circuit authority is clearly irreconcilable
with the reasoning or theory of intervening higher authority,’
three-judge panels ‘should consider themselves bound by the
intervening higher authority and reject the prior opinion of
this court as having been effectively overruled.’ ” Ortega-
Mendez v. Gonzales, 450 F.3d 1010, 1019 (9th Cir. 2006)
(quoting Miller v. Gammie, 335 F.3d 889, 893, 900 (9th Cir.
2003) (en banc)). We therefore conclude that Pinal Creek’s
holding that an action between PRPs is necessarily for contri-
bution has been overruled.9 Cf. E.I. DuPont, 508 F.3d at 135
(concluding that Atlantic Research overruled the Third Cir-
7
The Court declined to address whether § 107(a) “contains an additional
implied right to contribution for PRPs who are not eligible for relief under
§ 113(f).” Atl. Research, 127 S. Ct. at 2339 n.8.
8
Western Properties’ holding, in reliance on Pinal Creek, that a non-
polluting PRP is limited to a contribution action under § 113, W. Props.,
358 F.3d at 692, also has been undermined.
9
In view of the Supreme Court’s express refusal to decide whether
§ 107 contains an implied right to contribution, see Atl. Research, 127
S. Ct. at 2339 n.8 (declining to address whether § 107(a) contains an
implied right to contribution), we decline to reconsider this assumption in
Pinal Creek. Moreover, although the parties asked us at oral argument to
address Pinal Creek’s holding that a PRP cannot assert a claim against
other PRPs for joint and several recovery of its cleanup costs, that ques-
tion is not before us. We note that, in Atlantic Research, the Court “as-
sume[d] without deciding that § 107(a) provides for joint and several
liability.” Id. at 2339 n.7.
KOTROUS v. BAYER CROPSCIENCE, INC. 4121
cuit’s prior holding “that § 113 provided the sole cause of
action to PRPs”).
[6] Under Atlantic Research, a PRP such as Kotrous or
Adobe that incurs costs voluntarily, without having been sub-
ject to an action under § 106 or § 107, may bring a suit for
recovery of its costs under § 107(a); a party in such a position
does not need a right to implied contribution under § 107.
Any of the defendants sued by such a PRP may seek contribu-
tion under § 113(f) because they now will have been subject
to an action under § 107. See Atl. Research, 127 S. Ct. at 2339
(stating that “a defendant PRP in such a § 107(a) suit could
blunt any inequitable distribution of costs by filing a § 113(f)
counterclaim”); see also Atl. Research Corp. v. United States,
459 F.3d 827, 835 (8th Cir. 2006) (“CERCLA, itself, checks
overreaching liable parties: If a plaintiff attempted to use
§ 107 to recover more than its fair share of reimbursement, a
defendant would be free to counterclaim for contribution
under § 113(f).”), aff’d, 127 S. Ct. 2331 (2007); Consol. Edi-
son, 423 F.3d at 100 n.9 (“While we express no opinion as to
the efficacy of such a procedure, there appears to be no bar
precluding a person sued under section 107(a) from bringing
a counterclaim under section 113(f)(1) for offsetting contribu-
tion against the plaintiff volunteer who, if sued, would be lia-
ble under section 107(a).”).
Applying Atlantic Research to Kotrous’ claims, the first
claim in Kotrous’ complaint sought recovery of his response
costs pursuant to § 107 and contribution pursuant to § 113.
Bayer moved to dismiss this claim, but the district court
denied the motion, relying on Pinal Creek and Western Prop-
erties to conclude that SARA’s provision of an explicit right
to contribution in § 113(f) did not supplant the implicit right
to contribution in § 107(a) that we previously had found. The
district court rejected Bayer’s argument that “Kotrous’ status
as a PRP bars him from seeking any relief under § 107(a),”
stating that “Pinal Creek held only that a PRP cannot main-
tain an action under § 107(a) for joint and several liability.”
4122 KOTROUS v. BAYER CROPSCIENCE, INC.
The district court noted the Supreme Court’s skepticism
regarding the implied right to contribution, see Cooper, 543
U.S. at 162, but reasoned that the Court had not overruled the
cases recognizing an implicit right to contribution. Because
Kotrous had invoked § 107(a) in his claim for contribution,
the court concluded that he had stated a claim for contribution
under CERCLA.
[7] Although the district court correctly interpreted our pre-
cedent as it existed at the time, Atlantic Research has changed
the state of the law. The Supreme Court has made it clear that
a PRP who has not been subject to a § 106 or a § 107 action,
like Kotrous, is not entitled to seek contribution under § 113.
Instead, he should proceed under § 107 for cost recovery.10
We therefore vacate the order of the district court and remand
for proceedings consistent with this opinion. On remand,
Kotrous should be granted leave to amend his complaint as
needed.
[8] Turning next to Adobe’s claims, Adobe’s complaint
sought contribution “for all or a portion of” its response costs
pursuant to § 107. As in Kotrous, the district court denied the
defendants’ motion to dismiss, in reliance on Ninth Circuit
precedent that now has been undermined by Atlantic
Research. We therefore vacate section II.B. of the district
court’s order, which is the portion addressing Adobe’s CER-
CLA claim, and remand for further proceedings consistent
with this opinion.11 On remand, Adobe should be allowed to
amend its complaint as needed.
10
Kotrous did not waive his claim for an implied right to contribution.
However, we need not address whether § 107 contains an implied right to
contribution because Kotrous should seek cost recovery instead.
11
At oral argument, Adobe correctly anticipated our holding and waived
its claim for an implied right to contribution.
KOTROUS v. BAYER CROPSCIENCE, INC. 4123
CONCLUSION
Atlantic Research overruled our holding in Pinal Creek that
an action between PRPs is necessarily for contribution. Under
Atlantic Research, Kotrous and Adobe are entitled to bring a
claim for recovery of costs under § 107(a), even if they are
PRPs. The Supreme Court’s holding, however, has made it
clear that they must seek cost recovery under § 107, not con-
tribution under § 113, because they have not been subject to
an action under § 106 or § 107.
In each of these appeals, the judgment of the district court
is vacated and the case remanded for further proceedings.
Each party shall bear its own costs on appeal.
VACATED and REMANDED.