Cooper Industries, Inc. v. Aviall Services, Inc. 543 U.S. 157 (2004)
Aviall bought some property in Texas from Cooper. The
property was contaminated with jet fuel and required cleanup.
Availl understood that as owners, they were liable under Comprehensive
Environmental Response, Compensation, and Recovery Act (CERCLA)
to pay for the remediation of the site. They voluntarily began cleanup
without being sued by EPA or Texas.
Availl did notify the Texas Natural Resource Conservation
Commission which informed Availl that they were in violation of
environmental laws and might be sued if they did not undertake
Aviall sued to force Cooper to pay some of the clean up
Aviall argued that Cooper was liable under CERCLA
§113(f) says that one potentially responsible
party (PRP) can sue other PRPs in order to allocate final costs
responsibility on an equitable basis.
Cooper admitted to being a PRP, but claimed it was not
liable because Aviall was never sued to clean up the land and had no
federal requirement to do so.
The Trial Court found for Cooper. Availl appealed.
The Trial Court found that you couldn't recover under §113(f)
unless you have been sued under CERCLA.
The Appellate Court affirmed, but decided to hear the case
The Appellate Court en banc reversed. Cooper appealed.
The Appellate Court looked to the savings clause of §113(f)
and found CERCLA does not require a PRP to first be sued before
seeking clean up funds from other PRPs.
The US Supreme Court reversed and found for Cooper.
The US Supreme Court found that a private party, who,
like Aviall, had not been sued under CERCLA could not obtain
cleanup contributions from other liable parties.
The Court found that CERCLA's language made clear
that parties could seek cleanup contribution only during or following a
Specifically, §113(f)(1) says that a party may
obtain contribution "during or following any civil
Availl unsuccessfully argued that may did not
mean may only.
In a dissent, it was suggested that Availl might be able
to recover under §107(a)(4)(B), but since they did not bring this
issue up at trial, the Court couldn't consider it.
§107(a)(4)(B) says that PRPs "shall be liable
for any necessary costs or response incurred by any other person
consistent with the National Contingency Plan."
In the past, courts had been reluctant to allow PRPs to
sue under §107(a)(4)(B), saying that §113(f) is more
§107(a)(4)(B) is for cost recovery, while §113(f)
is for cost contribution.
The US Supreme Court indeed found that PRPs can sue under
§107(a)(4)(B) in United States v. Atlantic Research Corporation
(127 S. Ct. 2331 (2007))