On November 9, 2006 the staff of Taylor & Hammel LLC attended the Environmental Law Institute's "Fall Practice Update" held in Washington DC.  One of the three panels, consisting of Andrew Skroback of Hunton & Williams LLP and Thomas R. Mounteer of Paul Hastings LLP, discussed the December 2004 Supreme Court decision, Cooper Industries v. Aviall, and its impact on the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund.   While the majority of the discussion was primarily oriented around CERLCA's legislative origins and its disputed statutory construction and meaning, some of the discussion concerned how this decision impacted businesses and industry voluntarily engaging in site remediation, due diligence research, and potentially reponsible party searches.

Although the panel did not completely agree on the impact of this decision, a general consensus did form that the decision, thus far, has had a minimal impact on the practical effects of CERCLA enforcement due to a number of factors, including: a property owner's interest in maintaining real estate value, the potential of nuisance and other torts claims from neighboring parties, good public and community relations, and the retroactive nature of CERCLA eventually "coming home to roost."

Taylor & Hammel LLC is a litigation and environmental research company that frequently engages in CERCLA/PRP Research projects for law firms and businesses.   Therefore, we will continue to monitor how this decision will effect our clients.

The Supreme Court's Opinion in the Aviall Case can be found here:  http://a257.g.akamaitech.net/7/257/2422/13dec20041215/www.supremecourtus.gov/...

The Environmental Law Institute's (ELI) page for the Fall Practice Update: http://www2.eli.org/seminars/pastevent.cfm?eventid=160

Several Attorneys at Paul Hastings LLP, including co-author Thomas Mounteer, wrote an in-house article on the decision: http://www.paulhastings.com/Backup/Client_Alerts/33195.PDF?wt.mc_ID=33195.pdf

Several Attorneys at Hunton & Williams LLP, including Andrew Skroback, Esq., also wrote an article concerning Aviall in the Andrews Litigation Reporter: http://www.hunton.com/files/tbl_s47Details%5CFileUpload265%5C1563%5CCooper_In...