Aviall Services, Inc. v. Cooper Industries, Inc., 00-10197.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation312 F.3d 677
Docket NumberNo. 00-10197.,00-10197.
PartiesAVIALL SERVICES, INC., Plaintiff-Counter Defendant-Appellant, v. COOPER INDUSTRIES, INC., Defendant-Counter Claimant-Appellee.
Decision Date14 November 2002
312 F.3d 677
AVIALL SERVICES, INC., Plaintiff-Counter Defendant-Appellant,
COOPER INDUSTRIES, INC., Defendant-Counter Claimant-Appellee.
No. 00-10197.
United States Court of Appeals, Fifth Circuit.
November 14, 2002.

Page 678

Richard Oran Faulk (argued), Gardere, Wynne & Sewell, Houston, TX, Cynthia J. Bishop, Gardere, Wynne & Sewell, Dallas, TX, for Aviall Services, Inc.

Dale E. Stephenson (argued), Squire, Sanders & Dempsey, Cleveland, OH, Elizabeth Ellen Mack, Locke, Liddell & Sapp, Dallas, TX, for Cooper Industries, Inc.

Paul Stanley Weiland, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, for United States of America, Amicus Curiae.

Tracy Don Hester, Timothy A. Wilkins, Bracewell & Patterson, Houston, TX, for American Petroleum Institute, American Chemistry Council, Texas Oil & Gas Ass'n and Texas Chemical Council, Amici Curiae.

Michael W. Steinberg, Morgan, Lewis & Bockius, Washington, DC, for Superfund Settlements Project, Amicus Curiae.

Page 679

Appeal from the United States District Court for the Northern District of Texas.


EDITH H. JONES, Circuit Judge:

The question presented in this case is whether § 113(f)(1) of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") allows a "potentially responsible party" (PRP) to seek contribution from other PRPs for environmental cleanup costs when no civil action has been brought under CERCLA §§ 106 or 107(a). See 42 U.S.C. §§ 9606, 9607(a), 9613(f)(1) (2000) (hereinafter, citations are to sections of CERCLA). We hold, contrary to the panel majority whose opinion generated this en banc proceeding, that it does.


Appellant Aviall Services, Inc., purchased from appellee Cooper Industries, Inc. property in Dallas, Texas, that was contaminated with various hazardous substances. After prodding from the Texas Natural Resource Conservation Commission (TNRCC), Aviall began cleaning up the property.2 The federal Environmental Protection Agency (EPA) never contacted Aviall or designated the property as contaminated. To recover some of the millions of dollars it had incurred in cleanup expenses, Aviall sued Cooper in the district court seeking contribution under CERCLA and damages under state law theories. Cooper filed counterclaims. Both Cooper and Aviall concede that they are PRPs under CERCLA because they contributed to the contamination of the property. Aviall Servs., Inc. v. Cooper Indus., Inc., 263 F.3d 134, 137 (5th Cir. 2001).

Holding that Aviall could not yet assert a claim for contribution under CERCLA because it had not been subjected to an action under §§ 106 or 107(a), the district court granted summary judgment for Cooper on Aviall's CERCLA claim, dismissed it without prejudice, and declined to exercise supplemental jurisdiction over the parties' state law claims. Aviall appealed.

A divided panel of this court affirmed, holding that "a PRP seeking contribution from other PRPs under § 113(f)(1) must have a pending or adjudged § 106 administrative order or § 107(a) cost recovery action against it." Aviall Servs., Inc., 263 F.3d at 145. For this conclusion, the panel majority relied primarily on its textual interpretation of § 113(f)(1) of CERCLA, which provides:

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. Such claims shall be brought in accordance with this section and the Federal Rules of Civil

Page 680

Procedure, and shall be governed by Federal law. In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 of this title or section 9607 of this title.

42 U.S.C. § 9613(f)(1) (2000). The panel read the first sentence of § 113(f)(1) to "require[] a PRP seeking contribution from other PRPs to have filed a § 113(f)(1) claim `during or following' a federal CERCLA action against it." Aviall Servs., Inc., 263 F.3d at 138. The term "contribution" was understood to "require[] a tortfeasor to first face judgment before it can seek contribution from other parties," id., and the term "may" in the first sentence of § 113(f)(1) was viewed by the majority as creating "an exclusive cause of action and mean[ing] `shall' or `must.'" Id. at 138-39. Compare Resolution Trust Corp. v. Miramon, 22 F.3d 1357 (5th Cir.1994). As for the final sentence of § 113(f)(1) — sometimes referred to as the "savings clause" — the panel read this "to mean that the statute does not affect a party's ability to bring contribution actions based on state law." Id. at 139. (emphasis in original). The panel majority believed that interpreting the savings clause "to allow contribution suits, regardless of whether the parties are CERCLA defendants in a § 106 or § 107(a) action," would "render superfluous the first sentence of § 113(f)(1), the enabling clause," id., and thus, would violate the canon of statutory construction that a specific provision governs over a general provision. Id. at 140.

Judge Wiener dissented, furnishing the alternative interpretation of § 113(f)(1) that we adopt here and pointing out that the great majority of circuit courts implicitly reject the panel majority's conclusion.

Because of the importance of this question to the allocation of financial responsibility for CERCLA cleanups, we granted Aviall's petition for en banc rehearing.


Statutory construction begins with the plain language of a statute, but "plain" does not always mean "indisputable" or "pellucid." Consequently, sound interpretation reconciles the text of a disputed provision with the structure of the law of which it is a part; may draw strength from the history of enactment of the provision; and acknowledges the legislature's general policies so that the interpretation does not become absurd.3

Reasonable minds can differ over the interpretation of section 113(f)(1), because its syntax is confused, its grammar inexact and its relationship to other CERCLA provisions ambiguous. Using the above tools, however, we adopt what we consider the

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most reasonable interpretation of the provision. To facilitate the discussion, we first state the preferred interpretation and compare it briefly with the interpretation advocated by the panel majority. Prefatory to defending our interpretation, a review of the statutory and decisional background leading to the passage of § 113(f) will be helpful.

The en banc majority concludes that section 113(f)(1) does not constrain a PRP for covered pollutant discharges from suing other PRPs for contribution only "during or following" litigation commenced under sections 106 or 107(a) of CERCLA. Instead, a PRP may sue at any time for contribution under federal law to recover costs it has incurred in remediating a CERCLA site. Section 113(f)(1) authorizes suits against PRPs in both its first and last sentence which states without qualification that "nothing" in the section shall "diminish" any person's right to bring a contribution action in the absence of a section 106 or section 107(a) action.

The dissent's narrow textual interpretation is flawed for several reasons.4 Regarding the first sentence, it focuses unduly on the phrase "during or following", and it implicitly interprets "civil action" to include administrative remedial orders only when the government files suit to enforce them in federal court. It narrows the last sentence arbitrarily and without textual support to the preservation of state law contribution claims. Finally, the dissent's interpretation distorts the interplay of the first and last sentences and fails to make sense against the background of caselaw and other interpretive guideposts.

I. Background — Why Section 113(f) Was Needed

CERCLA was enacted in 1980 to establish a means of controlling and financing governmental and private cleanups of hazardous releases at abandoned and inactive waste disposal sites. CERCLA's twin purposes are to promote prompt and effective cleanup of hazardous waste sites and the sharing of financial responsibility among the parties whose actions created the hazards. See, e.g., OHM Remediation Servs. v. Evans Cooperage Co., 116 F.3d 1574, 1578 (5th Cir.1997); Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 880 (9th Cir.2001) (en banc), cert. denied, 535 U.S. 971, 122 S.Ct. 1437, 152 L.Ed.2d 381 (2002). Under the statute, the EPA possesses broad powers to remediate sites itself and require "covered persons" (PRPs) to reimburse the government's costs, and to compel PRPs to perform the cleanups by administrative order or court action. 42 U.S.C. §§ 9604, 9606(a) (2000). The definition of "covered persons" encompasses nearly all those who have or had contact with a particular site.5 Further, every PRP is jointly and severally liable unless it can prove the specific amount of harm it caused. See generally Bell Petroleum Servs. v. Sequa Corp., 3 F.3d 889, 894-902 (5th Cir.1993) (applying principles of apportionment found in Restatement

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(Second) of Torts to CERCLA liability). These circumstances, together with the enormous costs of remediating hazardous waste sites, make the availability of contribution among PRPs all the more important for achieving the purposes of the statute — that those responsible for environmental damage to sites, not other parties, properly bear the costs of their actions, and that the sites are actually cleaned up.

As enacted, however, CERCLA contained no explicit provision...

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24 cases
  • Aviall Services, Inc. v. Cooper Industries, LLC, Civil Action No. 3:97-CV-1926-D.
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    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
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    ...suit under § 106 or § 107(a).” Atlantic Research, 551 U.S. at 132, 127 S.Ct. 2331 (citing Aviall Servs., Inc. v. Cooper Industries, Inc., 312 F.3d 677, 681 (5th Cir.2002) (en banc)). In its decisions in Cooper Industries and Atlantic Research, however, the Supreme Court established a differ......
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    ...of contribution among PRPs all the more important for achieving the purposes of the statute." Aviall Servs., Inc. v. Cooper Indus., Inc., 312 F.3d 677, 681-82 (5th Cir.2002) (en banc). The Supreme Court, however, focused exclusively on the statute's text. It first examined the "natural mean......
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1 books & journal articles
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    • United States
    • Environmental Law Reporter No. 40-12, December 2010
    • December 1, 2010
    ...62. United States v. Chem-Dyne, 572 F. Supp. 802, 13 ELR 20986 (S.D. Ohio 1983). 63. See Aviall Services Inc. v. Cooper Indus., Inc., 312 F.3d 677, 681, 33 ELR 20101 (5th Cir. 2002) . 64. Raytheon Aircraft Co. v. United States, 532 F. Supp. 2d 1306, 38 ELR 20010 (D. Kan. 2007). 65. United S......

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