Reference no: EM131740419

Question: Avail Services purchased several pieces of land from Cooper Industries. After operating for several years, Aviall discovered that both it and Cooper had contaminated the land with hazardous substances. Aviall notified the state of Texas, but neither the state nor federal governments sued Aviall or officially ordered it to clean up the land. However, Aviall cleaned up the land voluntarily and then sued Cooper for contribution for the cleanup. The federal district court ruled that section 113 (f) of CER CLA did not authorize Aviall to recover contribution under these circumstances. On appeal the Fifth Circuit Court of Appeals reversed the district court. The Supreme Court agreed to decide the case. THOMAS, ].: Section 113(f) does not authorize Aviall's suit. The first sentence that establishes the right of contribution provides: "Any person may seek contribution during or following any civil action.

The natural meaning of this sentence is that contribution may only be sought subject to the specified conditions, namely, "during or following" a specified civil action. Aviall answers that "may " should be read permissively, such that "during or following" a civil action is one, but not the exclusive, instance in which a person may seek contribution. We disagree. First, as just noted, the natural meaning of " may" is that it authorizes certain contribution actions-ones that satisfy the subsequent specified conditions-and no others. Second, if 113(f) were read to authorize contribution actions at any time, then Congress need not have included the explicit "during or following" condition. There is no reason why Congress would bother to specify conditions under which a person may bring a contribution claim, and at the same time allow contribution actions absent those conditions. We hold that section 113(f) does not support Aviall's suit. We therefore reverse the judgment of the Fifth Circuit and remand the case for further proceedings consistent with this opinion.

1. Why was contribution not allowed in this case?

2. What should Avian have done to make sure it could get contribution from Cooper under CERCLA?

3. Anytime you buy a piece of land which may have been used for industrial or commercial purposes, that should you do to help protect yourself from CERCLA liability?