From: Patty Reinert, Houston Chronicle
Published October 7, 2004 12:00 AM

Supreme Court Takes up Pollution Suit Against Manufacturer Cooper Industries

Oct. 7—WASHINGTON — Companies responsible for hazardous waste cleanups have long argued over who should pay. On Wednesday, the U.S. Supreme Court used a Texas case to consider whether one polluter can force another to share the cost of a voluntary cleanup.

The case, which involves Houston manufacturer Cooper Industries and pollution at Dallas' Love Field, is expected to affect the pace of thousands of cleanups nationwide.

The justices must decide whether companies that voluntarily clean up the sites can sue their fellow polluters under the federal Superfund law to help defray their costs, or whether they can only collect the money once the government forces a cleanup.

The Superfund law, passed in 1980, was intended to speed up the cleanup of the country's most toxic sites by allowing the federal Environmental Protection Agency to demand cleanups and to force current and previous owners of the property to foot the bill.

But the EPA hasn't demanded a cleanup at Love Field, where for decades aircraft maintenance companies disposed of airplane fuel and chemical solvents on the ground, in water-filled pits and in underground storage tanks that eventually leaked.

Cooper Industries and Dallas aviation products distributor Aviall Services, which purchased the property from Cooper in 1981, both contributed to the problem.

Aviall, which voluntarily cleaned up the site to avoid legal action by the state of Texas, sued Cooper to recover some of the $5 million it spent on the cleanup. Cooper responded that it can't be forced to pay its share until the government goes after the two polluters under the Superfund law.

Lower courts found in Cooper's favor, but when the case went to the full U.S. 5th Circuit Court of Appeals in New Orleans in 2002, the court reversed that ruling. Cooper appealed to the U.S. Supreme Court.

On Wednesday, Cooper's lawyer, William Reynolds of Washington, backed up by a Bush administration lawyer, told the justices that under the Superfund law, Aviall should have reached an official settlement with the government, either with state environmental officials or with the EPA, to preserve its right to sue Cooper for the cleanup costs.

Without that intervention, he said, Cooper could not be assured that the cleanup was complete, and it could be vulnerable to future lawsuits.

But Justice Ruth Bader Ginsburg repeatedly asked the lawyers why it would make sense for the high court to interpret the Superfund law as discouraging companies from voluntarily cleaning up pollution. EPA has a lot on its plate, she said, and companies like Aviall "might be sitting and waiting forever" for the government to force a cleanup.

"I think you would want to construe the law as saying clean up sooner rather than later," she said. And she added that while Aviall wasn't specifically ordered to clean up the site, it was threatened with legal action by state environmental officials.

Aviall's attorney, Richard Faulk of Houston, agreed, saying it was a myth that this cleanup was strictly voluntary.

"The state of Texas said, 'Clean this up, or else,' " he said, and waiting any longer would have put groundwater and a nearby lake in jeopardy.

Regardless of whether the state threat was enough for Aviall to force Cooper into court, Faulk said, the very purpose of the Superfund law is to "motivate voluntary cleanup without government action."

A decision is expected by next summer.

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