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.,  D.C. No.

Defendants, 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. D.C. No.

F. WARREN HELLMAN; WELLS  CV 05-1510 WBS

FARGO BANK NA, as Trustees of OPINION Trust A created by the Estate of

Marco Hellman,

Defendants-Appellants. 

4105
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

4106 KOTROUS v. BAYER CROPSCIENCE, INC.
COUNSEL

Jacqueline L. McDonald, Somach, Simmons & Dunn, Sacramento, California, for plaintiff-appellee James Kotrous. 

John D. Edgcomb, San Francisco, California, for defendantappellant Bayer CropScience, Inc. 

Jeffory J. Scharff, Sacramento, California, for defendantappellee 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. 

4108 KOTROUS v. BAYER CROPSCIENCE, INC.
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 precedent 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 contribution. 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 cleanup of hazardous waste sites.1

 In the first appeal, James

Kotrous sued numerous defendants, including Bayer CropScience, Inc., seeking contribution under CERCLA for costs

he had incurred in cleaning soil and groundwater contamination on land he owned. The district court denied Bayer’s

motion to dismiss Kotrous’ claim under CERCLA § 107 for

1These 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 disposition, filed concurrently with this opinion. We decide these cases,

Kotrous and Adobe, together because they present the same issue. 

KOTROUS v. BAYER CROPSCIENCE, INC. 4109
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 contribution 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 Sacramento, California, and operated a business called “The Mattress Factory” on the site. Prior to 1995, the land was owned

by numerous defendants. 

Goss-Jewett Company operated a dry cleaner supply business on the property from approximately 1970 to 1996. During 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.

2Because 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). 

4110 KOTROUS v. BAYER CROPSCIENCE, INC.
In February 2000, the California Regional Water Quality

Control Board (“RWQCB”) sent Goss-Jewett a letter requesting 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 GossJewett 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 property from 1971 until his death in 1973; his estate (the “Hellman 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 property from 1976 until 1979. As co-trustee to one of the trusts,

KOTROUS v. BAYER CROPSCIENCE, INC. 4111
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 contamination 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 process, 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

3Adobe 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. 

4112 KOTROUS v. BAYER CROPSCIENCE, INC.
with the national contingency plan through implied contribution 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 substances 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 favorable to [the non-moving party].’ ” Deveraturda, 454 F.3d at

4The district court granted the defendants’ motion to dismiss several

state claims in the complaint as time barred and denied the motion to dismiss 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. 

KOTROUS v. BAYER CROPSCIENCE, INC. 4113
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 CERCLA,” 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 substance owned or operated any facility at which such hazardous 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 contingency plan; 

(B) any other necessary costs of response incurred

by any other person consistent with the national contingency plan; 

(C) damages for injury to, destruction of, or loss of

natural resources, including the reasonable costs of

4114 KOTROUS v. BAYER CROPSCIENCE, INC.
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 subject 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, CERCLA did not provide an express cause of action for contribution. 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 Amendments 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 section 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

KOTROUS v. BAYER CROPSCIENCE, INC. 4115
brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed

by Federal law. In resolving contribution claims, the

court may allocate response costs among liable parties using such equitable factors as the court determines 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 contribution.” 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

4116 KOTROUS v. BAYER CROPSCIENCE, INC.
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 recovery against them jointly and severally for 100% of the cleanup

expense,” because, pursuant to Pinal Creek, Western Properties, 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 reasoned that CERCLA already provided a statutory exception

for innocent parties in § 101(35), and that allowing nonpolluting 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 exception 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

KOTROUS v. BAYER CROPSCIENCE, INC. 4117
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. Aviall 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 “§ 113(f)(1) allows a PRP to obtain contribution 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

5A 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.

6The 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). 

4118 KOTROUS v. BAYER CROPSCIENCE, INC.
the enabling clause is the exclusive cause of action for contribution 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)] authorizes 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 stemming 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 settlement agreement or a court judgment. Id.

KOTROUS v. BAYER CROPSCIENCE, INC. 4119
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 § 107.7Id. 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 contribution.8

 Although “a three-judge panel may not itself overrule 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.’ ” OrtegaMendez 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 contribution has been overruled.9 Cf. E.I. DuPont, 508 F.3d at 135

(concluding that Atlantic Research overruled the Third Cir7The 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. 

8Western Properties’ holding, in reliance on Pinal Creek, that a nonpolluting 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 question is not before us. We note that, in Atlantic Research, the Court “assume[d] without deciding that § 107(a) provides for joint and several

liability.” Id. at 2339 n.7. 

4120 KOTROUS v. BAYER CROPSCIENCE, INC.
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 subject 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 contribution 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. Edison, 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 contribution against the plaintiff volunteer who, if sued, would be liable 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 Properties 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 maintain an action under § 107(a) for joint and several liability.”

KOTROUS v. BAYER CROPSCIENCE, INC. 4121
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 precedent 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 CERCLA claim, and remand for further proceedings consistent

with this opinion.11 On remand, Adobe should be allowed to

amend its complaint as needed. 

10Kotrous 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. 

11At oral argument, Adobe correctly anticipated our holding and waived

its claim for an implied right to contribution. 

4122 KOTROUS v. BAYER CROPSCIENCE, INC.
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 contribution 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.

KOTROUS v. BAYER CROPSCIENCE, INC. 4123