High Court Limits Private Superfund
By Walter E. Wilson
On December 13, 2004, the United States Supreme Court issued
a ruling that will likely impact whatever incentive private property owners
may have to take the initiative with respect to costly contaminated-site remediation.
In Cooper Industries, Inc. v. Aviall Services, Inc., the Court ruled
that a landowner who voluntarily cleans up property contaminated by hazardous
substances without having been sued in an abatement or cost-recovery action
under the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (CERCLA, or Superfund) may not seek contribution for its environmental
cleanup costs from prior owners and other potentially-responsible parties under
Section 113 (f) of the Superfund law.
CERCLA § 113 (f), which was added to the Superfund law
in 1986 as part of the Superfund Amendments and Reauthorization Act (SARA),
allows a person to seek contribution from any other potentially-responsible
party (PRP) during or after a civil action brought against that person under
CERCLA. However, § 113 (f) contains a savings clause stating 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 [§ 106 or 107
(a)].” SARA also created a separate express right of contribution for
a “person who has resolved its liability to the United States or a State
for some or all of the costs of [environmental cleanup] in an administrative
or judicially approved settlement.”
CERCLA § 106 authorizes the federal government to require a responsible
party to clean up contaminated property, while § 107 (a) allows the federal
government to recover from PRPs the costs of the government’s cleanup
efforts on properties contaminated or threatened by the release of hazardous
The underlying litigation that led to the Supreme Court’s
decision involved four properties in Texas used as aircraft engine-maintenance
sites that Aviall Services, Inc. (“Aviall”) had purchased from
Cooper Industries, Inc. (“Cooper”) in 1981. Aviall realized several
years later that the properties were contaminated after discovering the release
of hazardous substances in the soil and ground water that were attributable
to its own activities as well as those of the previous owner, Cooper. Aviall
notified the Texas Natural Resource Conservation Commission of its discovery.
That state agency in turn directed Aviall to clean up the sites and threatened
to pursue an enforcement action against Aviall if the company did not take
the expected corrective measures. Despite the threat, however, neither Texas
environmental regulators nor the U.S. Environmental Protection Agency (EPA)
ever actually initiated any judicial or administrative enforcement actions
to compel cleanup. In fact, the EPA never even designated the property as contaminated.
Nonetheless, in response to prodding from state officials, Aviall cleaned the
sites under state supervision and, after incurring $5 million in cleanup costs,
sued Cooper to recover a portion of those costs under CERCLA § 113(f).
Aviall eventually prevailed in an en banc ruling by the Fifth Circuit
Court of Appeals, but the Supreme Court reversed the Fifth Circuit’s
ruling in a 7-2 decision written by Justice Clarence Thomas. The Court opined
that Aviall’s use of the Superfund law to sue another party for contribution
was not allowed because Aviall had not been the subject of an abatement or
cost recovery action under CERCLA § 106 or 107 (a).
The Court noted that the plain language of the enabling clause
in § 113 (f) establishes a right of contribution only “during or
following” a § 106 or 107 (a) civil action or following a settlement;
both of which were legislative prerequisites that Aviall had not satisfied.
As for the savings clause noted earlier, which provides that “nothing
in [113 (f)] shall diminish the right of any person to bring an action for
contribution in the absence of a civil action under  or [107 (a)],” the
Court stated that the savings clause was not intended to establish new causes
of action or expand the remedies available under § 113 (f) to include
contribution lawsuits not brought “during or following” a
CERCLA civil action. Instead, said the Court, the sole function of that provision
was to clarify that any causes of action for contribution that might be available
to a plaintiff independently of § 113 (f) remained unaffected by that
part of the Superfund law.
In some ways Aviall is noteworthy for certain important
questions that the Court intentionally left unresolved. For instance, Aviall
argued that as an alternative to a § 113 (f) contribution claim it was
entitled to cost recovery from other PRPs under § 107 (a), despite being
a PRP itself. The federal appeals courts that have addressed this issue have
usually ruled against PRP plaintiffs seeking cost recovery under § 107
(a). However, the Court declined to rule on that issue, finding the matter
to be beyond the scope of both the briefing and the questions presented. The
Court also declined to issue a definitive ruling as to whether a PRP in Aviall’s
situation who undertakes voluntary cleanup may have an implied right of contribution
under 107 (a), which is what some lower courts have held, as opposed to cost
recovery. Finally, the Court discussed (but did not decide) whether a pre-enforcement
cleanup “order” might qualify as a “civil action” under § 113
(f) such that voluntary compliance with that order would trigger a right of
contribution. The Court instead left those questions to be addressed either
on the remand of Aviall or in other ongoing cases.
For now however, for companies who voluntarily incur cleanup
costs by remediating their contaminated properties and have neither been sued
by the EPA, state environmental agencies, or any private party claiming standing
under CERCLA § 107 (a), the message from Aviall appears to be that those
companies may just be out of luck if they expect to recover any of those costs
from the persons whose actions made the cleanup necessary in the first place.
Yet, interestingly enough, Congress in 2002 enacted the Brownfields Revitalization
and Environmental Restoration Act, which amended CERCLA to limit liability
and encourage developers to voluntarily remediate and redevelop contaminated
sites that the EPA does not consider sufficiently contaminated to subject the
owner to a civil action. Obviously, some of the companies affected by Aviall would
include PRPs that are currently participating in state “brownfields” programs
along with other PRPs who, like Aviall, incur the costs of site remediation
in response to state or federal agency notifications or orders that may fall
short of the type of “civil action” contemplated under § 113
(f). This may explain why 23 states sided with Aviall in an amicus brief,
arguing that the Superfund law does allow contribution lawsuits when private
parties, on their own initiative, seek to clean their contaminated properties.
What remains to be seen is what the long-term impact of Aviall will
be on the state brownfields programs in the absence of Congressional action
to further amend CERCLA to ensure that private parties need not wait for government
agencies to become involved before being certain of what rights they have to
recover at least some of their monetary output when they voluntarily perform
or fund contaminated site remediation.
Walter E. Wilson, an Associate County Attorney, serves as general counsel
to the Montgomery County Department of Environmental Protection.