From: David Ivanovich, Houston Chronicle
Published December 14, 2004 12:00 AM

Supreme Court's Decision Changes Rules on Toxic Waste Cleanups

Dec. 14—WASHINGTON — In a decision that could slow the cleanup of the nation's most toxic waste, the Supreme Court ruled Monday that Cooper Industries could not be forced to help cover the cost of work at contaminated sites at Dallas' Love Field.





In a 7-2 decision, the high court ruled Dallas' Aviall Services could not compel Houston-based Cooper to share the $5 million tab for cleaning up four aircraft engine maintenance sites.





The ruling has far broader implications than that dollar value would imply.





By siding with Cooper, the court has done away with an avenue companies involved in voluntary cleanup programs have long used to recoup some of their costs.





Instead, the court, in essence, said companies stuck with hazardous sites must wait to be sued by state or federal regulators before they have the right to pursue claims against other players.





"It could be an impediment to voluntary cleanups," noted John Eldridge, an attorney specializing in environmental law with Haynes & Boone in Houston. "It's going to cause companies to rethink their legal strategy."





Cooper, which makes electrical products, Crescent tools and other hardware items, operated the aircraft engine maintenance facilities until 1981, when it sold them to Aviall Services.





Aviall later discovered that petroleum and other hazardous substances were leaking out of underground storage tanks.





Aviall notified the Texas Natural Resource Conservation Commission, which ordered the company to clean up the sites or face an enforcement action.





Neither state regulators nor the U.S. Environmental Protection Agency took official action against the company.





Instead, Aviall launched a voluntary cleanup. And in 1997, Aviall filed suit against Cooper under the federal Superfund law.





It argued that the leaking dated backed to when Cooper owned the site, so it should pay.





The Superfund law was designed to ensure the cleanup of the country's most toxic sites.





By entering into a voluntary cleanup program and then filing suit, Aviall was following in the footsteps of a number of other companies. But Cooper argued it could not be forced to pay up unless regulators had taken action.





Cooper won a lower court ruling, but the usually conservative 5th Circuit Court of Appeals in New Orleans reversed that decision. Cooper then appealed to the U.S. Supreme Court.





The case quickly became a key battleground in the decades-long Superfund debate.





Cooper was backed by the Bush administration, while 23 states and military contractor Lockheed Martin sided with Aviall.





Writing for the court, Justice Clarence Thomas said the provision of the law in question "does not authorize Aviall's suit."





The high court left open the possibility Aviall might be more successful pursuing its claim under a different provision of the Superfund law.





But the court did not try to tackle that issue.





In a dissenting opinion, Justice Ruth Bader Ginsburg argued the 5th Circuit had already indicated it believed Aviall could pursue its claim against Cooper using another provision.





"I see no cause for protracting this litigation by requiring the 5th Circuit to revisit a determination it has essentially made already," Ginsburg wrote.





Cooper spokesman John Breed said company officials are "glad they found with our position in the case." But company officials realize "this doesn't settle the case."





Paul Weiland, a former Justice Department attorney now in private practice in Irvine, Calif., said Monday Cooper officials "should be happy today.





The decision will certainly delay and could permanently derail Aviall's efforts to recoup its costs.





Aviall officials could not be immediately reached for comment.





Monday's ruling "is going to have a number of implications," Eldridge said. "A lot of people have predicated settlements and deals based on an understanding of that law that's now been overturned."





Cleanup work could be delayed, as companies wait for clarification from lower courts or the EPA.





The decision has created so much ambiguity in what was thought to be well understood law, it could take six moths to several years to straighten out, Weiland said.





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