A Lesson in Pleading: Cooper Industries, Inc v. Aviall Services, Inc.

In Cooper Industries, Inc. v. Aviall Services, Inc., 125 S. Ct. 577 (2004), the Supreme Court faced the question of whether section 113(f)(1) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA) allows one who pollutes property (and cleans it up voluntarily) to seek contribution from other responsible polluters.

Section 107(a) of CERCLA establishes four types of persons, so called “potentially responsible persons” (PRPs), who can be liable for the costs of cleaning up a hazardous waste site.  In addition, in two sections CERCLA contemplates that certain PRPs may seek contribution from other PRPs.  First, section 107(a) provides that a PRP is liable for “costs of response incurred by any other person . . . .”  Thus, one who cleans up a site could seek contribution from a PRP.  Similarly, section 113(f)(1) provides:

Any person may seek contribution from any other person who is liable or potentially liable under [§ 107(a)], during or following any civil action under [§ 106] or under [§ 107].  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 [§ 106] or [§ 107].

In Cooper Industries, Aviall Services had purchased the property in question from Cooper.  Subsequent to the sale, Aviall discovered that the property was contaminated with petroleum and hazardous wastes.  Aviall notified the state of Texas, which directed it to clean up the site.  However, neither Texas nor the federal government initiated any type of enforcement action against Aviall

In 1997, Aviall sued Cooper seeking to recover cleanup costs in the amount of $5 million.  Initially, Aviall’s Complaint included contribution claims under both sections 107(a) and 113(f)(1) of CERCLA.  However, Aviall later amended its complaint and combined its claims all under 113(f)(1).  The District Court found that Aviall had abandoned its 107(a) claim and ruled that it could not seek relief under section 113(f)(1) because it had not cleaned up the site “during or following a civil action . . .” as 113(f)(1) requires.  A panel of the Fifth Circuit Court of Appeals affirmed that decision.  However, en banc, the Fifth Circuit held that the language of 113(f)(1) does allow a contribution action even if the clean up was not done in response to a civil action.

The Supreme Court succinctly decided that Aviall could not obtain relief under section 113(f)(1) because it’s clean up did not follow “any civil action . . . .”  As it did in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 531 U.S. 159 (2001), the Court explained that it would not read any words out of the statute and to allow Aviall to seek relief in this matter would mean that the words “following any civil action . . .” were superfluous.

Furthermore, Aviall also argued that it could seek contribution under section 107(a)(4)(B).  The Court, however, noted that the District Court understood Aviall’s amended complaint to mean that it was seeking contribution only under section 113(f)(1).  Because the question of contribution under section 107(a) was not addressed below, and would require the Court to overturn other cases that were not fully briefed, it declined to address the issue.

Aviall had initially sought contribution under both sections 107(a) and 113(f)(1) of CERCLA.  If it had not amended its Complaint, there is a good chance that Aviall would have already had its case decided on the merits.  However, in hindsight, its error at the earliest part of the litigation may have cost it a chance of obtaining any contribution for its voluntary clean up. [ return to top ]