Congress, Agencies Responding to Aviall Decision

January 16, 2007
by REBECCA BODNER
Client Alert Newsletter Forecast 2006

In 2004, the U.S. Supreme Court held in Cooper Industries v. Aviall Services that a potentially responsible party ("PRP") undertaking a cleanup voluntarily, without first being sued by or entering into an administrative or judicially approved settlement with the government, cannot assert a contribution claim against other PRPs under section 113(f) of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). As a result, many PRPs who performed voluntary cleanups have been precluded from recovering their costs. In response to Aviall's significant impact, federal lawmakers reportedly are considering legislation to clarify the ability of PRPs who voluntarily clean up contaminated sites to recover their costs from other PRPs. On a similar note, the U.S. Environmental Protection Agency ("EPA") and the Department of Justice have issued guidance (Interim Revisions to CERCLA Removal, RI/FS and RD AOC Models to Clarify Contribution Rights and Protection Under Section 113(f) (Aug. 3, 2005)) to clarify and confirm the agencies' intent that EPA administrative orders on consent resolve a settling PRP's liability to the United States within the meaning of CERCLA section 113(f)(3)(B), thereby allowing the PRP to seek contribution from other parties under this CERCLA provision based upon an administrative settlement. These recent and possible future responses to Aviall indicate a growing government effort to allay the concerns of PRPs undertaking voluntary cleanups regarding their ability to recover from other PRPs.