Supreme Court Docket Report, October Term, 2003 - Number 7

Profession:Mayer, Brown, Rowe & Maw LLP

By Miriam R. Nemetz and Craig Canetti

On January 7th, 2004, the Supreme Court granted certiorari in three cases of potential interest to the†business community. Amicus briefs in support of the petitioners are due on Monday, February†23, 2004, and amicus briefs in support of the respondents are due on Wednesday, March 24,†2004.

1. Environmental Law - CERCLA - Contribution. The Supreme Court granted†certiorari in Cooper Industries Inc. v. Aviall Services Inc., No. 02-1192, to decide whether a†private party that is potentially liable under the Comprehensive Environmental Response,†Compensation, and Liability Act (CERCLA), 42 U.S.C. ß 9601 et seq., for cleanup of property†contaminated by hazardous substances, but has not been subject to any action under CERCLA,†may nevertheless seek contribution under CERCLA from other jointly responsible parties to†recover costs spent voluntarily to clean up contaminated properties.

CERCLA makes present and former owners and operators of contaminated waste sites,†persons who disposed of waste at such sites, and certain transporters ("potentially responsible†parties" or "PRPs") responsible for the cost of cleaning up the contamination. The†Environmental Protection Agency (EPA) may clean up hazardous sites itself (see 42 U.S.C.†ß 9604) or, under Section 106(a), may compel the responsible parties to undertake the necessary†response actions. See 42 U.S.C. ß 9606(a). Under either approach, the government may recover†its response costs from responsible parties through a cost recovery action under Section 107. See†42 U.S.C. ß 9607(a).

Section 113(f) of CERCLA provides that "[a]ny person may seek contribution from any†other person who is liable or potentially liable under [Section 107(a)], during or following any†civil action under Section 106] or under Section 107(a)]." 42 U.S.C. 9613(f)(1). The last†sentence of Section 113(f) provides that "nothing in this subsection shall diminish the right of†any person to bring an action for contribution in the absence of a contribution under [Section†106] or [Section 107]."

Aviall Services, Inc. ("Aviall") purchased an aircraft engine maintenance facility from†Cooper Industries, Inc. ("Cooper"), but later discovered that the property was contaminated with†hazardous substances. Aviall voluntarily cleaned up the site and then commenced an action for†contribution against Cooper under Section 113(f). Both parties concede that they are PRPs as†defined by CERCLA, but neither party has been compelled by the EPA to clean up the site or†sued for response costs under Section 107(a). The district court granted summary judgment in†favor of Cooper, holding that, under the plain language of Section 113(f), contribution is†unavailable where the plaintiff "is not the subject of a prior or pending CERCLA enforcement action." 2000 WL 31730 (N.D. Tex. Jan. 14, 2000). It concluded that the last sentence of the†provision was merely a savings clause, which only "ensure(s) that parties who cannot fulfill the†prerequisites of ß 113(f)(1) are not precluded...

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