Chemical \Vaste Litigation Reporter 1601 Connecticut Avenue, N.W., Suite 602, Washington, DC 20009 • 202-462-5755· Fax 202-328-2430 The Fall-Out From Cooper v. Avian By Thomas M. Donnelly and Matthew K. Narensky* The United States Supreme Court ruled last cleanup efforts, and thus no longer have a claim for December, in Cooper Industries, Inc. v. Aviall contribution under section 113, is that an implied Services, Inc., 125 S.Ct. 577 (2004), that private right to contribution under section 107(a) remains parties in CERCLA litigation may not seek viable. The following highlights the key post-Aviall contribution toward cleanup costs they have Services district court decisions. incurred under CERCLA section 113(f)(l), unless a lawsuit has been filed against them under In a recent case out of the Eastern District of CERCLA section 106 or 107(a). Prior to this California, Adobe Lumber v. Taecker, 2005 WL ruling, many Circuit Court of Appeals (including 1367065 (E.D. Cal. May 24, 2005), a landowner the Ninth Circuit in Pinal Creek Group v. "voluntarily" commenced the cleanup of property Newmont Mining Corp., 118 F. 3d 1298 (9th Cir. that had been contaminated by a tenant dry-cleaning operation. 1 1997», had already determined that potentially The landowner sued the dry-cleaning responsible parties not seek joint and operation for cost recovery under CERCLA section several cost recovery pursuant to CERCLA section 107(a), for contribution under section 113. 107(a), but were limited to section 113 Following the decision in Aviall Services, the dry- contribution actions against other PRPs. The cleaner moved to dismiss these claims. Because the Supreme Court identified this well established body PRP admittedly initiated the cleanup of federal case law, and recognized that in light of effol1 the absence an underlying civil action these cases its decision raised the following under sections 106 or 107, and did not claim to be question--do responsible parties who undertake an landowner, the court dismissed both voluntary cleanup efforts have any CERCLA the section 113 claim for contribution and the remedies available outside of section 113 (in section 107(a) claim for cost recovery. contribution or otherwise) to recover cleanup costs from other PRPs? The Court refused to resolve Relying on Pinal Creek, however, the court this critical issue (over a strong dissent), and refused to dismiss the case entirely, holding that the remanded to the trial court to decide the issue. landowner retained a viable claim for contribution pursuant to court noted that the enactment the SARA. amendments argument section but voluntarily undertaken 13 the 'contours' section 107, so a claim for contribution requires the 'joint operation' of both sections." ld. quoting Thomas M. and chair of the Environmental Litj'gation in the San Francisco office Ehrman LLP. Matthew context means in the absence civil the San Francisco office 107 to Heller Ehl'm2m environmental regulation
en~!,aglcs ad(jresse~d Chemical Waste Litigation Reporter 1601 Connecticut Avenue, N.W., Suite 602, Washington, DC 20009 • 202-462-5755 • Fax 202-328-2430 Westem Properties Service Corp. v. Shell Oil Co., In Mercury Mall Associates, Inc. v. Nick's Market, Inc., 368 F. Supp. 2d 513 (ED. Va. Feb. 358 F. 3d 678,685 (9th Cir. 2004). From this, the court reasoned that after Aviall Services a PRP's 28, 2005), the court also identified these same policy concerns, but reached the opposite result. claim for contribution that is brought in the absence As in Pinal Creek, the Fourth Circuit Court of of a civil action under sections 106 or 107 should Appeals, in Pneumo Abex Corp. v. High Point, be construed as it was before the congressional Thomasville & Denton R.R., 142 F. 3d 769, 776 enactment of section 113, and thus allowed the case See also Kotrous Goss-Jewett (4th Cir. 1998), determined that section 113 must to proceed. v. Company of Northem Califomia, Inc., 2005 WL be used by potentially responsible parties seeking 1417152 (ED. Cal. June 16, 2005) (employing a recoverj from other PRPs. In contrast to Adobe Lumber's reading of Pinal Creek, however, the similar analysis in finding an implicit right to district court in Mercury Mall determined that the contribution under 107(a) was still viable). previously implied right of action for contribution arising solely under section 107 was obviated by The Adobe Lumber decision illustrates the the addition of section 113 to CERCLA in 1986. subtlety of the arguments surrounding this issue. See Mercury Mall, 368 F. Supp. 2d at 519. Thus, While it is true that Pinal Creek recognized an based on the combined operation of Aviall Services implicit right of contribution in section 107(a), the and Pneumo Abex, Mercury Mall held that the party Ninth Circuit also held that section 113 now who had initiated the voluntary cleanup effort was "governs" and "regulates" that right. See Pinal left without a remedy under CERCLA. The court Creek, 118 F. 3d at 1302. Adobe Lumber's described this result as "quixotic" contrary to somewhat strained reading of Pinal Creek as the underlying purposes of CERCLA, but (contrary providing for two distinct contribution remedies to Vine Street and Adobe Lumber) determined that under CERCLA, one governed by section 113, and "when the law is transparent, notwithstanding the the other governed solely by section 107, is difficult logic underpinning it, this Court is bound to to justify in light of the plain language in Pinal impose it." ld. Creek. One possible motivation for Adobe Lumber's Similarly, in Elementis Chemicals v. T H Agriculture and Nutrition, C. (S.D.N.Y. Jan. contrary decision could be the reluctance to 31,2005), the comt relied upon Bedford v. foreclose a CERCLA remedy to a PRP that Sills, 156 F. 3d 416,425 (2d Cir. 1998), like voluntarily engages in cleanup efforts. District Pinal Creek and Pneumo Abex, held a PRP is courts in other circuits have more clearly identified such policy considerations. Vine Street LLC v. limited to a section 113 claim for COll1tnlbution. Keeling, 362 F. Supp. 2d 754 (ED. Tex. March 24, Bedford Affiliates points out that section 113 apportions liability based on equitable 2005), the court held that a PRP that does not have considerations and has a three year statute of recourse to section 113 may nevertheless pursue a limitations, whereas section 107(a) has a six year claim under Section 107(a)(4)(B). The court recognized that the "Fifth Circuit has not directly statute of limitations. Thus, the Circuit the of precisely who a reasoned, if a choose, 3 become a as a rec:()vi~rirHY under Section 107(a)[.]" See id. at court examined Pinal Creek and other circuit court would readily abandon 13 in decisions had addressed this issue, concluding generous provisions of these courts "did not rule that a PRP without a Affiliates, 156 at 424. district court rl",'c"",,,,;,,,,,,-j section 113(f) cannot a claim under Section 107(a)." ld. at reading Services leaves a PRP that the was based on public policy cleanup without a CERCLA renne{lv pmticularly that PRP at *13; see also vo!unl:arily works States of <>,,,>nr'\! to 2,
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