Tina Arnold

September 13, 2006

Round two of the Cooper v. Aviall fight may be just beginning. In a decision issued by the United States District Court for the Northern District of Texas this August, the court has precluded Aviall Services, Inc. from recovering some of its cleanup costs under CERCLA from Cooper Industries after Aviall voluntarily cleaned up the site under the State of Texas' Voluntary Cleanup Program.

After voluntarily cleaning up the property, Aviall sued Cooper, another potentially responsible party, under CERCLA § 113 for past and future response costs. Aviall eventually lost this battle when the U.S. Supreme Court ruled in 2004 that Aviall could not recover under § 113 because this section "authorizes contribution claims only ‘during or following' a civil action under § 106 or § 107(a), and it is it undisputed that Aviall has never been subject to such action."

On remand and under order by the Fifth Circuit, the district court allowed Aviall to amend its complaint to include a claim for contribution under § 107. However, upon review, the court held that "section 107(a) does not confer on a private PRP [partially responsible party] a statutory right to bring a cost recovery action." It continued stating that "Congress created a separate remedy in § 113(f) for private PRPs to recover response costs from other PRPs" and that because Aviall concedes that it is a PRP, it is "relegated to bringing an action against Cooper under § 113(f)."

Herein lies Aviall's dilemma. The Supreme Court has held that it may not recover costs under § 113 because it has not been sued under §106 or § 107, but the district court held that Aviall may not recover under § 107(a), the only other available section under CERCLA for recovery of costs or contribution, because that is the congressional purpose of § 113. Aviall disagrees with this ruling and is considering an appeal to the U.S. Court of Appeals for the Fifth Circuit.

For more information, please see the following sources:

Aviall Services v. Cooper Industries, 2006 WL 2263305 (N.D. Tex. 2006).

Aviall Has NO Claim under Superfund Law, Tex. Court Rules, Andrews Environmental

Litigation Reporter, August 25, 2006; 27 No. 2 Andrews Envtl. Litig. Rep. 2