The U.S. Supreme Court's decision to grant review of the en banc decision of the U.S. Court of Appeals for the Fifth Circuit in the Aviall Services, Inc. v. Cooper Industries, Inc. case was something of a surprise. After all, in the view of many Superfund lawyers, the en banc decision had gotten it right, vacating a panel decision that was contrary to the general understanding of the Superfund bar. Every Superfund lawyer knew--or at least assumed--that a potentially responsible party (PRP) under the §107 liability provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) who incurred response costs in cleaning up a contaminated site could seek recovery of its response costs in a contribution action under §113(f)(1) and that such an action could be brought irrespective of the circumstances under which the PRP had incurred the response costs--whether pursuant to a consent decree, a U.S. Environmental Protection Agency (EPA) or state administrative order, or even if the costs had been incurred voluntarily. Or so it seemed until the panel decision in Aviall. But then the en banc decision of the Fifth Circuit set things straight. And, since the en banc decision, several courts have followed the decision; only a single district court has expressed disagreement.

The question presented in Aviall involves the interpretation of §113(f)(1), which provides:

Any person may seek contribution from any other person who is liable or potentially liable under [§]9607(a) of this title, during or following any civil action under [§]9606 of this title or under [§]9607(a) of this title. Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by [f]ederal 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 [§]9606 of this title or [§]9607 of this title.