Fifth Circuit Reverses Aviall

Civil action not a prerequisite to CERCLA contribution claim


The regulated community has been closely following Aviall Services, Inc. v. Cooper Industries, Inc. (No. 00-10179), which involved a significant issue under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” or “Superfund”)  –  whether a potentially responsible party (“PRP”) may seek contribution from other PRPs for environmental cleanup costs when no civil action has been brought under CERCLA sections 106 and 107(a).  On November 14th, the Fifth Circuit, in an en banc decision, reversed a panel decision that had held that a CERCLA civil action was a prerequisite to filing a Section 113(f)(1) claim for contribution.

Under CERCLA, PRPs, including present and certain past owners and operators of facilities, are responsible for costs of investigation and remediation of contaminated sites.  Case law following CERCLA’s enactment in 1980 generally confirmed that a PRP that remediated a site, under federal common law, had a right of contribution against other PRPs  for the costs it incurred.  According to the en banc court, Congress added section 113(f)(1) in the Superfund Amendments and Reauthorization Act of 1986 to provide the details for, and explicit recognition of, the right of contribution that was missing from the text.

The language in section 113(f)(1), however, was ambiguous.  Under the panel’s interpretation, a prerequisite to bringing a section 113(f)(1) contribution claim was prior or pending involvement in a civil action under Section 106 or 107(a), and the section’s savings provision preserved state law claims only.  Under the interpretation of the en banc court, the provision, requiring involvement in prior or pending CERCLA civil action spelled out one method of recovery, and the savings provision preserved the implied federal common law right of contribution under section 107, which existed prior to the Amendments.

Under Aviall, the bottom line is that PRPs now may perform cleanups and seek contribution under Superfund without first being subject to a section 106 or 107(a) CERCLA action.  This decision does not affect any rights a PRP may have to seek contribution under state law.

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