SC Lawyer, May 2005, #4. Voluntary cleanups: down for the count or just on the ropes?.

AuthorBy Ron Cardwell

South Carolina Lawyer


SC Lawyer, May 2005, #4.

Voluntary cleanups: down for the count or just on the ropes?

South Carolina Lawyer May 2005

Voluntary cleanups: down for the count or just on the ropes?By Ron CardwellLate last year the U.S. Supreme Court landed a haymaker that staggered potentially responsible parties (PRPs) voluntarily cleaning up contaminated properties. In a seven to two decision, the high court ruled that a private party who has not been sued under § 106 (administrative abatement order) or § 107(a) (cost recovery action) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) may not bring a claim for contribution under § 113(f)(1) against other PRPs to recover cleanup costs incurred voluntarily. Cooper Industries, Inc. v. Aviall Services, Inc., 542 U.S. ____ (2004), 125 S. Ct. 577, 2004 U.S. LEXIS 8271 [hereinafter Aviall, 542 U.S. ____].

The decision reversed long-standing practice across much of the nation that encouraged PRPs to voluntarily initiate cleanups and then to seek recovery from other PRPs of cleanup costs that exceeded the volunteers' equitable shares. Most Courts of Appeals, including the Fourth Circuit, interpreted CERCLA § 113(f)(1) broadly, allowing PRPs to sue other PRPs to recover cleanup costs at any time after cleanup costs were incurred. See Crofton Ventures Ltd. Partnership v. G & H Partnership, 258 F.3d 292, 294 (4th Cir. 2001) (PRP notified state environmental agency, cleaned up the site and sought contribution under CERCLA § 113(f)).

The history of the case

The case concerns four contaminated aircraft engine maintenance sites in Dallas, TX. Cooper Industries, Inc. (Cooper Industries) owned and operated the sites until 1981 when it sold them to Aviall Services, Inc. (Aviall Services). Aviall Services operated the sites for a number of years. Ultimately, Aviall Services discovered that it and Cooper Industries had contaminated the sites with petroleum and hazardous substances.

Aviall Services notified the Texas Natural Resource Conservation Commission (TNRCC), now known as the Texas Commission on Environmental Quality, about the soil and groundwater contamination on the sites. As instructed by TNRCC, Aviall Services began cleaning up the sites in 1984 under TNRCC's supervision. Neither TNRCC nor the U.S. Environmental Protection Agency (EPA) took judicial or administrative measures to compel cleanup of the sites. Over the next decade, Aviall Services incurred approximately $5 million in cleanup costs.

In August 1997, Aviall Services filed an action against Cooper Industries in federal court in Texas seeking to recover cleanup costs. The original complaint included a claim for cost recovery under CERCLA § 107(a) and a claim for contribution under CERCLA § 113(f)(1). Aviall Services amended the complaint by combining its two CERCLA claims into a single claim based upon contribution under...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT