Cost Recovery Against U.S. Related to Prior Suit OK

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By Peter Hayes

June 13 — A company that has been sued under the Superfund law is not limited to a contribution action to recover cleanup costs at a separate but related site, the Ninth Circuit ruled June 13 ( Whittaker Corp. v. United States, 2016 BL 187374, 9th Cir., No. 14-55385, 6/13/16 ).

Military contractor Whittaker Corp. may pursue a cost recovery claim against the federal government for the Bermite site—a former munitions facility in Santa Clarita, Calif.

While Whitakker was sued by other parties for contamination at an adjacent site, the company is seeking to recover expenses that are separate from those in the prior action, the court said.

In that case, the Castaic Lake Water Agency filed a Superfund suit against Whittaker, alleging that perchlorate migrated from a nearby property owned by Whittaker—the Bermite site, causing well water contamination.

A party that has been sued under the Superfund law is generally limited to bringing an contribution claim.

Cost recovery actions allow for joint and several liability and a six-year statute of limitations, while contribution claims carry a three-year time bar.

The Ninth Circuit reinstated the case and reversed a ruling that Whittaker is limited to a contribution claim.

Judge Mary H. Murguia wrote the opinion, joined by Judges Stephen Reinhardt,, and John B. Owens.

Pillsbury Winthrop Shaw Pittman LLP in Los Angeles and Covington & Burling LLP in Los Angeles represent Whittaker.

To contact the reporter on this story: Peter Hayes at

To contact the editors responsible for this story: Steven Patrick at and Jeffrey D. Koelemay at