Who Pays Cleanup Costs? Navigating the Post Cooper v. Aviall Waters

Originally published 3^rd Quarter 2005

On December 13, 2004, the United States Supreme Court issued a landmark decision concerning the contribution provisions of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Since issuance of the Court’s decision in Cooper Industries, Inc. v. Aviall Services, Inc., 125 S. Ct. 577, 160 L. Ed. 2d 548 (2004), there has been considerable speculation about how lower courts will interpret the case and apply it in other contribution actions. This article will review some recent post Aviall decisions.

By way of background, the Supreme Court ruled in Aviall that, under Section 113(f)(1) of CERCLA, a potentially responsible party (PRP) that cleans up a contaminated site must be or must have been part of an civil action involving either Section 106 or Section 107(a) of CERCLA as a prerequisite for bringing a contribution action against other PRPs. This case