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Superfund Frequently Asked Questions: Aviall and Atlantic Research
Printable version of Aviall/ARC Frequent Questions (PDF) (8pp, 77K, About PDF)
- What is "Aviall"? And where can I find the Supreme Court's decision?
- What are the facts and procedural history of the case?
- What did the U.S. Supreme Court hold in Aviall?
- Did the Aviall decision address contribution rights under § 113(f)(3)(B) of CERCLA?
- Is EPA named as a party in the Aviall litigation?
- What positions did the United States take in its amicus brief on Aviall?
- Did the Aviall decision address whether a party that voluntarily incurs cleanup costs may recover those costs under state law?
- Did the Aviall decision address the right of non-liable parties to sue for costs?
- Does EPA have a position on possible legislative changes in light of the Aviall decision?
- Have there been any major court decisions regarding contribution and cost recovery since Aviall?
- What was the Supreme Court’s holding in Atlantic Research Corp. v. United States, 127 S.Ct. 2331 (2007) (“ARC”)?
- How can I find out more information about the Atlantic Research decision?
- In the post-Aviall/Atlantic Research decision ITT Indus., Inc. v. BorgWarner, Inc., 506 F.3d 452 (6th Cir. 2007), what did the Sixth Circuit hold?
- What did the United States argue in its amicus brief filed in the ITT Indus., Inc. v. BorgWarner, Inc. case?
- What impact will Aviall and Atlantic Research have on EPA's enforcement and brownfields programs?
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1. What is "Aviall"? And where can I find the Supreme Court's decision?
Aviall Services, Inc. is a party in a case that reached the U.S. Supreme Court.
The case concerned Aviall's ability to get a share of its costs - known as "contribution"-
for hazardous site cleanup from another company.
The official name and citation of the case is Cooper Industries, Inc. v. Aviall
Services, Inc. , 125 S.Ct. 577 (2004); the case is often referred to as "Aviall." The U.S.
Supreme Court issued its decision 
on
December 13, 2004.
2. What are the facts and procedural history of the case?
Cooper Industries, Inc. owned and operated four aircraft engine maintenance sites in Texas for a number of years before it sold the sites to Aviall. Aviall continued to operate at the sites and ultimately, discovered that both it and Cooper had contaminated the facilities. After undertaking a cleanup, Aviall sued Cooper for contribution toward the cleanup costs.
On summary judgment, the U.S. District Court for the Northern District of Texas held that Aviall could not obtain contribution from Cooper under section 113(f)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) because Aviall had not been sued under CERCLA §§ 106 or 107. A divided panel of the Court of Appeals for the Fifth Circuit affirmed, but on rehearing en banc, the entire Fifth Circuit, by a divided vote, reversed the panel. The case then reached the U.S. Supreme Court.
3. What did the U.S. Supreme Court hold in Aviall?
The issue before the Supreme Court in Aviall was whether "a private
party who has not been sued under section 106 or section 107 of CERCLA may nevertheless
obtain contribution under section 113(f)(1) [of CERCLA] from other liable parties." CERCLA § 113(f)(1)
provides, in part: "Any person may seek contribution from any other person
who is liable or potentially liable under section 9607(a) of this title, during
or following any civil action under section 9606 of this title or under section
9607(a) of this title."
The Supreme Court held that the plain language of CERCLA § 113(f)(1) allows a "potentially responsible party" (PRP) to seek contribution only "during or following" a "civil action" under CERCLA §§ 106 or 107(a). In other words, because Aviall had not previously been sued for clean up of the site or for cost recovery under CERCLA, Aviall cannot sue for contribution under section 113(f)(1).
The Supreme Court declined to decide whether a PRP may recover costs under CERCLA § 107(a)(4)(B), which provides for recovery "of any other necessary costs of response incurred by any other person consistent with the national contingency plan." The Court remanded the case to the U.S. Court of Appeals for the Fifth Circuit.
On February 15, 2005, the Fifth Circuit remanded the case to the U.S. District Court for the Northern District of Texas with instructions to permit Aviall to amend its complaint to bring whatever statutory claims it believes necessary in light of the Supreme Court's decision. In a subsequent petition for a writ of mandamus from the Supreme Court, Cooper argued that the Fifth Circuit's remand instructions were inconsistent with the Supreme Court's decision.
4. Did the Aviall decision address contribution
rights under section 113(f)(3)(B) of CERCLA?
No. While the Court noted that CERCLA § 113(f) provides another avenue for contribution under section 113(f)(3)(b), the Court did not address that subsection because it was not at issue in the case. That section provides that a potentially responsible party (PRP) "who has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement" may seek contribution from non-settling PRPs.
The United States acknowledged at oral argument before the Supreme Court that if a party enters into an administrative order on consent or a judicial settlement that resolves liability for response costs or response actions, that would entitle the party to seek contribution. Thus, for example, a remedial design/remedial action consent decree with the United States, or an administrative order on consent with EPA for remedial investigation/feasibility study, removal action, or reimbursement of response costs should give rise to a right of contribution pursuant to section 113(f)(3)(B). In order to clarify this issue, EPA and the U.S. Department of Justice signed “Interim Revisions to CERCLA Removal, RI/FS and RD AOC Models to Clarify Contribution Rights and Protection Under Section 113(f) (PDF)” (12pp, 153K) on August 3, 2005.
5. Is EPA named as a party in the Aviall litigation?
No, EPA is not named as a party in the Aviall litigation. However, on February
23, 2004, the United States filed an amicus
brief (PDF) (39pp, 133K) on
the merits of this case.
6. What positions did the United States take
in its amicus
brief on Aviall (PDF)? (39pp, 133K)
Among other things, the United States took the position that, based on
the plain language of CERCLA § 113(f)(1), a party that is itself liable
or potentially liable may seek contribution under that section only during
or following a civil action under section 106 or section 107, and conversely,
that section 113(f)(1) does not authorize a contribution action in the
absence of an ongoing or completed section 106 or section 107(a) civil
action. The United States also stated that a liable party is limited
to seeking contribution in the manner authorized by section 113(f), and
that CERCLA § 107(a)
does not provide an independent basis for a liable person to recover
response costs from another liable person. The United States also stated
that a "civil
action" is "commonly understood to mean a judicial proceeding," and
that "EPA's issuance of a section 106(a) administrative order does not
generally entitle the recipient to seek contribution under section 113(f)(1)."
7. Did
the Aviall decision address whether a party that voluntarily incurs cleanup
costs may recover those costs under state law?
No. The opinion
addressed recovery under federal law, specifically, CERCLA § 113(f)(1).
8. Did
the Aviall decision address the right of non-liable parties to sue for costs?
No. The Supreme Court's opinion does not address the right of non-liable
parties to sue for costs under section 107(a). Persons who clean up Brownfields
sites may qualify as non-liable parties through the bona fide prospective
purchaser exemption under CERCLA § 107(r).
9. Does
EPA have a position on possible legislative changes in light of the Aviall decision?
EPA does not have a position on this issue.
Yes. Since the Supreme Court’s 2004 decision, there has been significant new case law regarding the scope of private parties’ CERCLA contribution and cost recovery rights. EPA has compiled a list of some of the most significant cases. [NOTE: The list is not an exhaustive list of all cases that cite to Aviall and/or all cases that discuss the scope of cost recovery and contribution rights under CERCLA §§ 107(a) or 113.]
11. What was the Supreme Court’s holding in Atlantic Research Corp. v. United States, 127 S.Ct. 2331 (2007) (“ARC”)?
On June 11, 2007, the Supreme Court affirmed the Eighth Circuit’s decision and held that under the plain terms of CERCLA § 107, a potentially responsible party (PRP) in Atlantic Research’s situation can recover incurred cleanup costs from other PRPs where there is no corresponding legal action (suit or settlement) by EPA or a state under CERCLA §§ 106 or 107.
12. How can I find out more information about the Atlantic Research decision?
For more information see the Supreme Court’s decision Atlantic
Research Corp. v. United States, along
with the following documents:
- Brief for the Petitioner United States (PDF) (73pp, 258K),
- Brief for the Respondent (PDF) (60pp, 246K), and
- Reply Brief for the Petitioner United States (PDF) (26pp, 115K).
In several post-Atlantic Research cases, the United States filed briefs that discuss Atlantic Research-related issues. These briefs represent the positions of the United States at the time of filing as applied to the unique facts of each case.
- Solutia, Inc. and Pharmacia v. McWane, Inc., et al. (PDF), (35pp, 1594K) United States Supplemental Amicus Curiae, July 27, 2007.
- United States v. Industrial Excess Landfill (PDF), (24pp, 54K) United States’ Response to Bridgestone/Firestone’s Surreply in Opposition to the United States’ Motion for Entry of De Minimis Partial Consent Decrees, September 28, 2007.
- City of Colton v. American Promotional Events (PDF), (28pp, 1472K) Response Brief for Third-Party Defendant-Appellee the United States Department of Defense, November 14, 2007.
- American Premier Underwriters, Inc. v. General Electric Co. (PDF) , (24pp, 163K) Brief of the United States as Amicus Curiae in Partial Support of the Defendant’s Renewed Motion to Dismiss, May 21, 2008.
- Appleton Papers, Inc. v. George A. Whiting Paper Co., (43pp, 291K) United States’ Brief as Amicus Curiae Addressing Issues Raised by Motions to Dismiss Certain Claims in Plaintiffs’ Third Amended Complaint, May 22, 2008.
- Pinal Creek Group v. Newmont Mining Corp., (6pp, 21K) United States’ Brief as Amicus Curiae in Opposition to PDMI/Inspiration’s Motion for Reconsideration, August 11, 2008.
- Ashland Inc. v. GAR Electroforming, (35pp, 219K) Memorandum of the United States as Amicus Curiae Concerning Effect of Settlement Between United States and UTC on Ashland’s Action and Concerning Application of Prior Equitable Allocation to Ashland’s Action, December 18, 2008.
- Niagara Mohawk Power Corp. v. Chevron U.S.A, (38pp, 218K) Brief of the United States as Amicus Curiae Supporting Appellant, December 23, 2008.
The law in this area is evolving, so please refer to online legal research services or your local law library for comprehensive legal research on these issues. For more information, you may also contact EPA’s Office of Site Remediation Enforcement at (202) 564-4200.
13. In the post-Aviall/Atlantic Research decision ITT
Indus., Inc. v. BorgWarner, Inc., 506 F.3d 452 (6th Cir. 2007), what did
the Sixth Circuit hold?
The Sixth Circuit reversed the district court's dismissal of the plaintiff's
Section 107(a) cost recovery claim and remanded that action to the district court
for further consideration in light of the Atlantic Research decision. The
court also upheld the district court’s opinion that the plaintiff’s
administrative agreement with EPA did not resolve plaintiff’s CERCLA liability
and thus did not confer contribution rights under Section 113(f)(3)(B). On
remand, the district court issued its opinion on March 31, 2009. ITT Indus.,
Inc. v. BorgWarner, Inc., No. 1:05-CV-00674, 2009 WL 891721 (W.D. Mich.,
March 31, 2009).
14. What did the United States argue in its amicus
brief filed in the ITT Indus., Inc. v. BorgWarner, Inc. case?
In its Court of Appeals brief (PDF), the United States argued that Administrative Orders on Consent (AOCs)
like the administrative agreement at issue in ITT resolve the settlor’s
CERCLA liability for the matters addressed in the settlement and that these settlements
provide contribution protection and rights under Sections 113(f)(2) and 113(f)(3)(B). Further,
the United States argued that if a PRP has contribution rights under Section
113(f), it must use this cause of action and cannot proceed under Section 107(a)(4)(B)
instead.
For more details about the United States’ position, see the amicus brief that the United States filed with the Sixth Circuit (PDF), (16pp, 765K) ITT Indus., Inc. v. BorgWarner, Inc., United States’ Brief as Amicus Curiae in Support of Petition for Panel Rehearing, Dec. 27, 2007.
15. What impact will Aviall and
Atlantic Research have on EPA's enforcement and brownfields programs?
Currently, EPA is evaluating the potential impacts of these Supreme Court decisions
on enforcement and brownfields programs and considering whether
any actions are necessary. EPA also anticipates working in close coordination
with state governments and organizations and the U.S. Department of Justice on
issues related to these decisions.
Last Updated April 16, 2009