Amicus Curiae Brief — Atlantic Richfield Company, Petitioner v. Gregory A. Christian, et al.

No. 17-1498

IN THE

Supreme Court of the United States

————

ATLANTIC RICHFIELD COMPANY,

Petitioner,

v.

GREGORY A. CHRISTIAN, ET AL.,

Respondents.

————

On Writ of Certiorari

to the Supreme Court of Montana

————

BRIEF OF AMICI CURIAE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA, NATIONAL

ASSOCIATION OF MANUFACTURERS, AMERICAN

FUEL & PETROCHEMICAL MANUFACTURERS, NATIONAL MINING ASSOCIATION, AMERICAN PETROLEUM INSTITUTE, AND SUPERFUND SETTLEMENTS

PROJECT SUPPORTING PETITIONER

————

STEVEN P. LEHOTSKY

MICHAEL B. SCHON

U.S. CHAMBER LITIGATION

CENTER

1615 H St., NW

Washington, D.C. 20062

(202) 659-6000

Counsel for Amicus Curiae

Chamber of Commerce of the

United States of America

(additional counsel listed on

inside cover)

AARON M. STREETT

Counsel of Record

J. MARK LITTLE

BAKER BOTTS L.L.P.

910 Louisiana St.

Houston, TX 77002

(713) 229-1234

aaron.streett@bakerbotts.com

Counsel for Amici Curiae Chamber of Commerce of the United

States of America, National Association of Manufacturers,

American Fuel & Petrochemical

Manufacturers, National Mining Association, American Petroleum Institute, and Superfund Settlements Project

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

MATTHEW A. HAYNIE

AMERICAN PETROLEUM INSTITUTE

1220 L St. NW

Washington, D.C. 20005

(202) 828-8000

Counsel for Amicus Curiae

American Petroleum Institute

LAURIE DROUGHTON MAT-

THEWS

DUKE K. MCCALL

MORGAN, LEWIS & BOCKIUS

LLP

1111 Pennsylvania Ave., NW

Washington, D.C. 20004

(202) 739-3000

Counsel for the Superfund

Settlements Project

MARTHA S. THOMSEN

BAKER BOTTS L.L.P.

The Warner

1299 Pennsylvania Ave., NW

Washington, D.C. 20004-2400

(202) 639-7700

Counsel for Amici Curiae Chamber of Commerce of the United

States of America, National Association of Manufacturers,

American Fuel & Petrochemical

Manufacturers, National Mining Association, American Petroleum Institute, and Superfund Settlements Project

PETER C. TOLSDORF

LELAND P. FROST

MANUFACTURERS’ CENTER

FOR LEGAL ACTION

733 10th St., N.W., Suite 700

Washington, D.C. 20001

(202) 637-3000

Counsel for Amicus Curiae the

National Association of Manufacturers

i

QUESTIONS PRESENTED

1. Whether a common-law claim for restoration seeking

cleanup remedies that conflict with EPA-ordered remedies is a “challenge” to EPA’s cleanup jurisdictionally

barred by § 113 of CERCLA.

2. Whether a landowner at a Superfund site is a “potentially responsible party” that must seek EPA’s approval

under CERCLA § 122(e)(6) before engaging in remedial

action, even if EPA has never ordered the landowner to

pay for a cleanup.

3. Whether CERCLA preempts state common-law

claims for restoration that seek cleanup remedies that

conflict with EPA-ordered remedies.

ii

TABLE OF CONTENTS

Page

Questions Presented ............................................................. i

Interest of Amici Curiae ..................................................... 1

Summary of Argument ........................................................ 3

Argument .............................................................................. 6

I. The Montana Supreme Court’s Decision is

Incompatible with CERCLA’s Text, Frustrates

CERCLA’s Goals, and Imperils Superfund

Cleanups .......................................................................... 6

A. CERCLA seeks to promote effective and

expeditious cleanups by mandating a

regimented remedy-selection procedure

and prohibiting challenges to EPA’s

remedial decisions ................................................ 6

B. The Montana Supreme Court’s decision

conflicts with CERCLA’s prohibition

against challenging EPA’s remedial

decisions .............................................................. 12

C. Historical Superfund projects and practical

considerations illustrate how the decision

below conflicts with CERCLA and would

frustrate its goals ............................................... 17

II. CERCLA’s Robust Public Outreach Mechanisms

Provide the Proper Means for Influencing EPA’s

Remedial Decisions ...................................................... 24

Conclusion ........................................................................... 28

iii

TABLE OF AUTHORITIES

Page

CASES

Broward Gardens Tenants Ass’n v.

EPA,

311 F.3d 1066 (11th Cir. 2002) ............................... 11

Burlington N. & Santa Fe Ry. Co. v.

United States,

556 U.S. 599 (2009) ................................................... 6

Clinton Cty. Comm’rs v. EPA,

116 F.3d 1018 (3d Cir. 1997) .................................. 10

Edgar v. MITE Corp.,

457 U.S. 624 (1982) ................................................. 23

Geier v. Am. Honda Motor Co., Inc.,

529 U.S. 861 (2000) ................................................. 23

Gen. Elec. Co. v. Jackson,

610 F.3d 110 (D.C. Cir. 2010) ................................ 22

Hines v. Davidowitz,

312 U.S. 52 (1941) ..............................................23, 24

Key Tronic Corp. v. United States,

511 U.S. 809 (1994) ................................................... 4

Maryland v. Louisiana,

451 U.S. 725 (1981) ................................................. 16

McClellan Ecological Seepage

Situation v. Perry,

47 F.3d 325 (9th Cir. 1995) ................................10, 11

Merck Sharp & Dohme Corp. v.

Albrecht,

139 S. Ct. 1668 (2019) ............................................. 17

Mut. Pharm. Co., Inc. v. Bartlett,

570 U.S. 472 (2013) ................................................. 16

iv

TABLE OF AUTHORITIES—Continued

Page

Razore v. Tulalip Tribes of Wash.,

66 F.3d 236 (9th Cir. 1995) ..................................... 11

United States v. Cannons Eng’g Corp.,

899 F.2d 79 (1st Cir. 1990) ..................................... 21

United States v. P.H. Glatfelter Co.,

768 F.3d 662 (7th Cir. 2014) ................................... 10

Virginia Uranium, Inc. v. Warren,

139 S. Ct. 1894 (2019) ............................................. 16

STATUTES

42 U.S.C. § 9604 .........................................................7, 23

42 U.S.C. § 9606 ............................................................ 10

42 U.S.C. § 9607 .........................................................4, 10

42 U.S.C. § 9613 ................................... 4, 10, 16, 20,21,22

42 U.S.C. § 9617 .......................................................24, 25

42 U.S.C. § 9621 .............................................................. 8

42 U.S.C. § 9622 .........................................................4, 16

REGULATORY AUTHORITIES

40 C.F.R. Part 300, Subpart I ..................................... 25

40 C.F.R. § 300.420 ......................................................... 7

40 C.F.R. § 300.425 ....................................................... 25

40 C.F.R. § 300.430 .............................. 7, 8, 13, 14, 25, 26

40 C.F.R. § 300.435 ....................................................... 26

National Oil and Hazardous Substances

Pollution Contingency Plan

Preamble,

55 Fed. Reg. 8666 (Mar. 8, 1990)........................... 23

v

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

131 Cong. Rec. 24725 (1985) ........................................ 21

EPA and Montana Department of

Environmental Quality, Record of

Decision Amendment, Anaconda

Regional Water, Waste, and Soils

Operable Unit (Sept. 2011) ................... 12, 13, 27, 28

EPA, Community Advisory Groups:

Partners in Decisions at Hazardous

Waste Sites, Case Studies (Winter

1996) ......................................................................... 27

EPA, Guidance on EPA Oversight of

Remedial Designs and Remedial

Actions Performed by Potentially

Responsible Parties (Interim Final) ...................... 7

EPA, Record of Decision, Portland

Harbor Superfund Site, Portland,

Oregon (Jan. 2017).............................................17, 18

EPA, Summary of Technical

Impracticability Waivers at

National Priorities List Sites (Aug.

2012) ......................................................................... 13

EPA, Superfund Program Proposed

Plan, BF Goodrich Superfund Site,

Calvert City, Marshall County,

Kentucky (Nov. 30, 2017) ....................................... 10

EPA, Grasse River Superfund Site

Community Involvement Plan for

Remedial Design and Remedial

Action (Aug. 2014) .............................................26, 27

vi

TABLE OF AUTHORITIES—Continued

Page

Gelber, U.S. Department of Justice,

Memorandum Defining “Matters

Addressed” in CERCLA

Settlements (Mar. 14, 1997) .............................20, 21

H.R. Rep. No. 99-253 (1985), reprinted

in 1986 U.S.C.C.A.N. 2835 ..................................... 21

Woolford, Office of Superfund

Remediation and Technology

Innovation, Clarification of the

Consultation Process for Evaluating

the Technical Impracticability of

Groundwater Restoration at

CERCLA Sites, OLEM Directive

9200.3-117 (Dec. 28, 2016) ...................................... 14

IN THE

Supreme Court of the United States

————

NO. 17-1498

————

ATLANTIC RICHFIELD COMPANY,

Petitioner,

v.

GREGORY A. CHRISTIAN, et al.,

Respondents.

————

On Writ of Certiorari

to the Supreme Court of Montana

————

BRIEF OF AMICI CURIAE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA, NATIONAL

ASSOCIATION OF MANUFACTURERS, AMERICAN

FUEL & PETROCHEMICAL MANUFACTURERS, NATIONAL MINING ASSOCIATION, AMERICAN PETROLEUM INSTITUTE, AND SUPERFUND SETTLEMENTS

PROJECT SUPPORTING PETITIONER

————

INTEREST OF AMICI CURIAE1

Amici are six national trade associations. Their

members include many businesses that are involved in

the cleanup of Superfund sites across the country and,

accordingly, have a direct interest in the outcome of this

case. Amici all have strong interests in reversing the

Petitioner’s counsel of record and respondents’ counsel of record

consented to the filing of this brief. In accordance with this Court’s

Rule 37.6, no counsel for any party has authored this brief in whole

or in part, and no person or entity, other than amici, their members,

or their counsel, have made a monetary contribution to the preparation or submission of this brief.

1

2

decision below and preserving the U.S. Environmental

Protection Agency’s (EPA) authority under the

Comprehensive

Environmental

Response,

Compensation, and Liability Act (CERCLA) to

comprehensively, efficiently, and with finality address

remediation issues at Superfund sites.

The Chamber of Commerce of the United States (the

Chamber) is the world’s largest business federation. It

represents approximately 300,000 members and

indirectly represents the interests of more than three

million companies and professional organizations of every

size, in every industry sector, and from every region of

the country. A vital function of the Chamber is to

represent the interests of its members in matters before

this Court. The Chamber regularly files amicus curiae

briefs in cases such as this one that raise issues of

concern to the Nation’s business community.

The National Association of Manufacturers (NAM) is

the largest manufacturing association in the United

States, representing small and large manufacturers in

every industrial sector and in all 50 states.

Manufacturing employs more than 12 million men and

women, contributes $2.25 trillion to the U.S. economy

annually, has the largest economic impact of any major

sector, and accounts for more than three-quarters of all

private-sector research and development in the nation.

The NAM is the voice of the manufacturing community

and the leading advocate for a policy agenda that helps

manufacturers compete in the global economy and create

jobs across the United States.

The National Mining Association (NMA) is a national

trade association whose members include the producers

of most of America’s coal, metals, and industrial and

agricultural minerals; the manufacturers of mining and

mineral-processing machinery, equipment, and supplies;

and engineering and consulting firms, financial

3

institutions, and other firms serving the mining industry.

NMA is U.S. mining’s advocate and the only national

trade organization that represents the interests of

mining before Congress, the administration, federal

agencies, and the judiciary. NMA has participated as an

amicus curiae in numerous cases in this Court, including

cases involving application of CERCLA and other

environmental laws.

American Fuel & Petrochemical Manufacturers

(AFPM) is a national trade association whose members

comprise virtually all refining and petrochemical

manufacturing capacity in the United States. AFPM’s

members supply consumers with a wide variety of

products that are used daily in homes and businesses.

Among its other missions, AFPM engages in legal

advocacy on issues important to its members.

The American Petroleum Institute (API) is a national

trade association representing more than 600 companies

involved in all aspects of the oil-and-natural-gas industry.

API frequently advocates for the interests of its

members by participating as an amicus curiae in cases

that are important to the oil-and-natural-gas community.

The Superfund Settlements Project (SSP) is an

association of major companies from many different

sectors of American industry. It was organized in 1986 in

order to help improve the effectiveness of the Superfund

program by encouraging settlements, streamlining the

settlement process, and reducing transaction costs for all

concerned. SSP provides constructive input to EPA,

other federal agencies, and Congress on critical policy

issues affecting the cleanup of contaminated sites and

engages in legal advocacy in the CERCLA arena.

SUMMARY OF ARGUMENT

“As its name implies, CERCLA is a comprehensive

statute that grants the President broad power to

4

command government agencies and private parties to

clean up hazardous waste sites.” Key Tronic Corp. v.

United States, 511 U.S. 809, 814 (1994). CERCLA aims

to place a premium on efficient cleanup, which often can

be achieved only through settlement with private parties.

The statute delegates decision making about the type and

degree of cleanup to EPA, with significant opportunity

for public input, while limiting any party’s ability to

challenge those decisions. See 42 U.S.C. § 9613(h).

Meanwhile, any “potentially responsible parties” can be

held jointly and severally liable for cleanup costs,

regardless of their degree of responsibility. Id. § 9607.

For some sites, those costs can stretch into the billions of

dollars.

For all of its imperfections, this system provides a

silver lining for those facing liability—relative certainty.

CERCLA cleanups and settlements can set fixed

liabilities, which ensure a stable environment for

businesses, shareholders, insurers, creditors, and others

to make decisions about future investments. Indeed, the

statute creates heavy incentives for early settlement

among potentially responsible parties and EPA.2 Those

incentives would be meaningless without a degree of

certainty regarding the ultimate financial exposure (i.e.,

cleanup costs) and a relatively “hard target” for parties

negotiating among themselves to fund the cleanup.

In the decision below, the Montana Supreme Court

created a new regime in which EPA’s generally binding

remediation decisions under CERCLA are viewed as

For example, § 9613(f)(2) shields those who resolve liability to the

United States or a state from contribution claims by others, and

§ 9622(f) authorizes EPA to include a covenant not to sue in its settlement agreements with potentially responsible parties. Section 9607(c)(3) exerts settlement pressure from another angle by

exposing potentially responsible parties who are uncooperative to

treble damages.

2

5

mere suggestions, with any jury having the power to

order other remediation efforts—even ones that EPA

specifically considered and rejected. Opening the doors

for anyone to second-guess EPA’s Superfund

remediation decisions through state tort law is

incompatible with the text and function CERCLA. The

Montana Supreme Court’s approach destroys the

stability CERCLA promises to the business community

and imperils EPA’s ability to achieve CERCLA’s central

purpose—the prompt cleanup, based on sound science, of

the Nation’s thousands of contaminated Superfund sites.

If this approach were to become the law of the land,

the result would be chaos across the Nation’s Superfund

sites, with EPA pursuing one remediation course and

various ad hoc private lawsuits mandating different,

potentially dangerous or conflicting remediation work.

Worse yet, the business community—which bears the

remediation costs—would face significant additional

liability, for the decision below hampers EPA’s ability to

enter into settlements that definitively fix remediation

obligations. Businesses would thus have a reduced

incentive to cooperate with EPA by entering into

settlements, further prolonging what Congress intended

to be an efficient and definitive cleanup process. All of

that flies in the face of CERCLA’s core aim of promoting

expeditious and effective remediation of Superfund sites

for the protection of human health and the environment.

Beyond the clear errors in statutory interpretation

catalogued by the petitioner, the decision below cannot

be defended on public-policy grounds. CERCLA and its

accompanying regulations offer numerous opportunities

for public involvement in the Superfund process. Those

avenues ensure that interested parties, such as the

respondents, can make their voices heard. But EPA has

the final say under CERCLA—or at least it did until

now. The Montana Supreme Court has created a

6

blueprint for making precisely the type of challenge

Congress, in CERCLA, sought to prevent: any interested

party who fails to obtain its desired remediation plan

from EPA is now free to pursue its preferred plan in

collateral litigation. That renders CERCLA’s robust

public-participation provisions redundant and frustrates

its most central goals.

This Court should reverse the decision below and

restore the carefully calibrated Superfund framework

that CERCLA demands.

ARGUMENT

I. THE MONTANA SUPREME COURT’S DECISION IS INCOMPATIBLE WITH CERCLA’S TEXT, FRUSTRATES

CERCLA’S GOALS, AND IMPERILS SUPERFUND

CLEANUPS

One of CERCLA’s primary goals is to promote

“timely cleanup of hazardous waste sites.” Burlington N.

& Santa Fe Ry. Co. v. United States, 556 U.S. 599, 602

(2009). Two important and necessary tools to achieve

that goal are EPA’s exclusive decision-making authority

and CERCLA’s emphasis on settlements as a means to

effectuate cleanup. The Montana Supreme Court’s

decision cannot be reconciled with CERCLA’s grant of

authority to EPA in this sphere.

The resulting

interference with EPA’s authority frustrates EPA’s

efforts to achieve CERCLA’s primary goal and, indeed,

undermines the entire statutory and regulatory program

of Superfund cleanups.

A. CERCLA seeks to promote effective and expeditious cleanups by mandating a regimented

remedy-selection procedure and prohibiting

challenges to EPA’s remedial decisions

CERCLA (1) mandates that EPA follow a regimented

remedy-selection process and (2) bars any collateral

challenges to EPA’s remedial decisions pursuant to that

7

process. It is through the combination of those two

features that CERCLA acts as a powerful force for the

effective and expeditious cleanup of Superfund sites.

1. CERCLA and its accompanying regulations establish a strict path for EPA to follow when selecting a

remedy to clean up a Superfund site. Required steps include: (1) conducting a remedial preliminary assessment,

40 C.F.R. § 300.420(b); (2) undertaking a remedial site

inspection, id. § 300.420(c); (3) conducting a remedial investigation that collects “data necessary to adequately

characterize the site for purposes of developing and evaluating effective remedial alternatives,” id. § 300.430(d);

(4) drafting a feasibility study that evaluates and provides a detailed analysis of “appropriate remedial alternatives,” id. § 300.430(e); (5) presenting to the public a

proposed plan detailing the preferred remedial alternative, id. § 300.430(f)(2); (6) soliciting comment from the

public on the proposed plan, id. § 300.430(f)(3); (7), reassessing EPA’s “initial determination” regarding its preferred alternative and factoring in any new information

and community comments before making a final remedyselection decision, id. § 300.430(f)(4); and (8) documenting

EPA’s final remedy-selection decision through the issuance of a record of decision, id. § 300.430(f)(5).3

Once selected, the remedial action will be conducted either by EPA

or by a potentially responsible party with substantial EPA oversight.

42 U.S.C. § 9604(a)(1); see also EPA, Guidance on EPA Oversight of

Remedial Designs and Remedial Actions Performed by Potentially

Responsible Parties (Interim Final), EPA/540/G-90/001, OSWER

9355.5-01(April 1990), https://semspub.epa.gov/work/11/174047.pdf.

For any remedy where hazardous substances remain on site above

levels that permit unrestricted use and unlimited exposure, EPA, in

addition, must conduct a review of the remedy no less often than

every five years after initiation of the remedial action to assure that

the remedy remains protective of human health and the environment

3

8

The following depiction that EPA recently provided in

connection with a different Superfund site visually

illustrates the myriad steps involved in this detailed,

orderly process from site selection to completion of

remediation:

and, if it does not, initiate action to make it so. 42 U.S.C. § 9621(c);

see also 40 C.F.R. § 300.430(f)(4)(ii).

9

10

EPA, Superfund Program Proposed Plan, BF Goodrich

Superfund Site, Calvert City, Marshall County,

Kentucky, at 2 (Nov. 30, 2017).4

2. Navigating through this comprehensive process

can, and does, take years or even decades. Recognizing

the need to prevent collateral attacks from shortcircuiting EPA’s deliberate progression through these

steps, “Congress enacted [42 U.S.C.] § 9613(h) to prevent

judicial interference, however well-intentioned, from hindering EPA’s efforts to promptly remediate sites that

present significant danger to public health and the environment.” Clinton Cty. Comm’rs v. EPA, 116 F.3d 1018,

1023 (3d Cir. 1997); see also McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325, 329 (9th Cir. 1995)

(Section 9613(h) “protects the execution of a CERCLA

plan during its pendency from lawsuits that might interfere with the expeditious cleanup effort.”) (emphasis

omitted). That provision bars “any challenges to * * *

remedial action” outside of certain defined circumstances

not implicated here.5 42 U.S.C. § 9613(h); see also Pet.

Br. 27 (explaining that § 9613(b)’s grant of exclusive jurisdiction to federal courts over “all controversies arising

under” CERCLA “[e]xcept as provided in subsections (a)

https://semspub.epa.gov/work/04/11095220.pdf.

For instance, if EPA initiates suit to recover response costs or enforce a cleanup order, CERCLA permits the defendant potentially

responsible parties to challenge the cleanup plan as “arbitrary and

capricious or otherwise not in accordance with law.” 42 U.S.C.

§§ 9613 (j)(2), (h)(1), (h)(2); see, e.g., United States v. P.H. Glatfelter

Co., 768 F.3d 662, 668 (7th Cir. 2014). It should be noted, however,

that allowable suits challenging remedy selection before implementation are infrequent. For EPA to bring a suit to enforce a cleanup

order, for instance, it must first issue a unilateral administrative order under CERCLA Section 106 and the potentially responsible party must refuse to comply. Since such refusal risks daily penalties

and treble damages, 42 U.S.C. §§ 9606(b)(1), 9607(c)(3), suits by EPA

to enforce these orders are typically unnecessary.

4

5

11

and (h)” deprives state courts of jurisdiction over challenges barred under § 9613(h) as well); Pet. App. 67a n.2

(U.S. amicus brief) (“[S]tate courts, like federal courts,

lack subject matter jurisdiction to decide claims like the

landowners’ restoration damages claim.”).

Courts have taken a commonsense approach to

determining when a lawsuit constitutes a “challenge” that

would interfere with EPA’s implementation of its

selected remedial plan. The term “challenge” naturally

encompasses lawsuits directly seeking a change or

alteration in EPA’s cleanup plan, but it also includes

other suits that are “related to the goals of a cleanup.”

Razore v. Tulalip Tribes of Wash., 66 F.3d 236, 239 (9th

Cir. 1995). Accordingly, courts have barred suits that

seek to impose additional reporting and permitting

requirements on an ongoing CERCLA cleanup because,

even though such requirements might not directly

change the substance of the work, “such relief would

constitute the kind of interference with the cleanup plan

that Congress sought to avoid or delay by the enactment

of Section [9613(h)].” McClellan Ecological Seepage

Situation, 47. F.3d at 330. The same goes for claims for

injunctive relief that seek to implement “stricter

standards in the remedial plan.” Broward Gardens

Tenants Ass’n v. EPA, 311 F.3d 1066, 1070, 1073 (11th

Cir. 2002). The guiding principle in these decisions is

that if EPA could have ordered certain measures, but

“chose not to do so,” Section 9613(h) bars any challenge

to that choice. See id. at 1073 (“Asserting that a remedial

plan is inadequate because it fails to include a measure

that [EPA] could have included is challenging the plan

for section [9613(h)] purposes.”).

12

B. The Montana Supreme Court’s decision conflicts with CERCLA’s prohibition against challenging EPA’s remedial decisions

1. The Montana Supreme Court adopted an

unreasonable interpretation of Section 9613(h)’s

prohibition against “challenge[s]” to EPA’s remedyselection decisions. Contrary to uniform federal law, it

held that a private lawsuit does not constitute a

“challenge” to EPA’s remedy selection unless it would

“stop, delay, or change the work EPA is doing.” Pet.

App. 11a-12a. Using that logic, the court permitted local

landowners to proceed with their lawsuit that sought

“restoration work in excess of what the EPA required

* * * in its selected remedy.” Id. at 4a (emphasis added).

In other words, the court found no problem with EPA’s

proceeding with its Atlantic Richfield-funded remedial

plan in parallel to the landowners’ forcing Atlantic

Richfield to fund their different preferred remediation

plan, provided that “a jury of twelve Montanans” agree

with them. Id. at 13a.

The court was unmoved by the fact that EPA had

considered—and rejected—the restoration work the

landowners were pursuing in their lawsuit. For example,

the landowners sought to “remove the top two feet of soil

from affected properties” and “install permeable walls to

remove arsenic from the groundwater.” Id. at 4a, 72a.

But EPA had already “considered construction of an

underground Permeable Reactive Barrier (PRB), similar

to the barrier proposed by the landowners” and

concluded “that this approach would not necessarily

achieve the human health standard in Willow Creek and

would not eliminate exceedances of arsenic in

downstream receiving waters.” Id. at 63a (United States’

amicus brief below); see also EPA and Montana

Department of Environmental Quality, Record of

Decision Amendment, Anaconda Regional Water, Waste,

13

and Soils Operable Unit, § 6.4.2 (Sept. 2011).6 In

addition, the remedial work the landowners seek would

require “[t]earing up” the protective layer of soil EPA

chose to put in place as part of its selected remedy, which

“could expose the neighborhood to an increased risk of

dust transfer or contaminant ingestion.” Pet. App. 73a

(U.S. amicus brief).7

2. While such a direct clash with CERCLA’s text

should never be countenanced, it was particularly

inexcusable here. EPA followed CERCLA’s rigorous

decisional procedures. EPA conducted extensive studies

of the arsenic issue and ultimately concluded that “it was

technically

impracticable

to

reduce

arsenic

concentrations below 10 ppb” in groundwater in one of

the relevant areas of the site and “therefore did not

select below-ground structures to address groundwater

arsenic concentrations.” Pet. App. 63a (U.S. amicus

brief); Record of Decision Amendment § 6.4.4; see also

EPA, Summary of Technical Impracticability Waivers at

National Priorities List Sites, at A-80 (Aug. 2012).8 EPA

thus issued a technical impracticability waiver related to

groundwater restoration for a portion of the site.

The

technical-impracticability-waiver

process

demands a careful, regimented analysis. “EPA expects

to return usable groundwaters to their beneficial uses

wherever practicable, within a timeframe that is

reasonable given the circumstances of the site.” 40

C.F.R. § 300.430(a)(1)(iii)(F) (emphasis added). But the

https://semspub.epa.gov/work/08/1211311.pdf.

Importantly, those impacts would be from the Superfund site, and

EPA and Atlantic Richfield would then be required to address those

impacts under CERCLA. See, e.g., 40 C.F.R. § 300.430(a)(iii)(A) (In

developing remedial plans “EPA expects to use treatment to address

the principal threats posed by a site, wherever practicable.”) (emphasis added).

8

https://semspub.epa.gov/work/HQ/175391.pdf.

6

7

14

governing regulation permits waiving that requirement

when it “is technically impracticable from an engineering

perspective.” Id. § 300.430(f)(1)(ii)(C)(3).

EPA has

expounded on these directives in multiple guidance

documents addressing the technical-impracticabilitywaiver process for groundwater at Superfund sites,

culminating in a 2016 guidance document designed to

compile and clarify all “existing relevant Superfund

policy and guidance” on the subject. Woolford, Office of

Superfund Remediation and Technology Innovation,

Clarification of the Consultation Process for Evaluating

the Technical Impracticability of Groundwater

Restoration at CERCLA Sites, OLEM Directive 9200.3117, at 1 (Dec. 28, 2016).9 It includes a flowchart to

illustrate the intricate workings of the technicalimpracticability-waiver process:

9

https://semspub.epa.gov/work/HQ/198193.pdf.

15

Id. at Attachment 1.

As a result of that thorough, mandatory decisional

process, EPA concluded that a technical impracticability

waiver was warranted for groundwater at a portion of the

site. Respondents do not contend that this technical-

16

impracticability-waiver process or the underlying

regulations are unlawful. Yet the Montana Supreme

Court’s exempting of state-law tort remedies from

Section 9613(h)’s bar has empowered a “jury of twelve

Montanans” to overrule EPA on this point (and any other

Superfund remedial decision), thereby opening the door

to all manner of challenges to EPA’s remedial decisions

at Superfund sites. Pet. App. 13a.

3. CERCLA not only jurisdictionally bars

respondents’ restoration remedy, but also preempts it.

CERCLA enshrines EPA’s remedial decisions as the

final say on the matter. “[L]ooking to the text and

context of the law in question,” Virginia Uranium, Inc.

v. Warren, 139 S. Ct. 1894, 1901 (2019), § 9613(h)’s plain

language flatly bars “any challenges to * * * remedial

action.”

42 U.S.C. § 9613(h).

CERCLA further

prohibits Atlantic Richfield or any other potentially

responsible party from “undertak[ing] any remedial

action at the facility unless such remedial action has been

authorized.”

42 U.S.C. § 9622(e)(6).

A state-law

restoration remedy that mandates different remedial

action than that ordered by EPA under the aegis of

CERCLA is incompatible with those provisions. See Pet.

Br. 41-47. “What the text states, context confirms.”

Virginia Uranium, 139 S. Ct. at 1902. The context of

CERCLA—with its principal aim of orderly,

comprehensive, and definitive remediation plans for

heavily polluted sites—reinforces that commonsense

conclusion.

The state-law restoration remedy imposed here thus

conflicts with CERCLA, and “it has long been settled

that state laws that conflict with federal law are ‘without

effect.’” Mut. Pharm. Co., Inc. v. Bartlett, 570 U.S. 472,

479-480 (2013) (quoting Maryland v. Louisiana, 451 U.S.

725, 746 (1981)). The fact that it is impossible to both

17

comply with EPA’s exclusive and comprehensive

remedial plan and undertake the different remedial

action required under the state-law restoration remedy

only underscores that conclusion. See Merck Sharp &

Dohme Corp. v. Albrecht, 139 S. Ct. 1668, 1679 (2019)

(state law must yield in the event of “an actual conflict

between state and federal law such that it [is] impossible

to comply with both”).

C. Historical Superfund projects and practical

considerations illustrate how the decision below conflicts with CERCLA and would frustrate its goals

The Montana Supreme Court’s weakening of Section

9613(h)’s prohibition on challenging EPA’s remedial

decisions threatens the core goals of CERCLA.

Effective and expeditious cleanup is impossible if third

parties are allowed to second-guess every EPA remedial

decision before a jury. Avoiding the chaos that would

result from such challenges is the entire point of Section

9613(h)’s bar. Yet under the Montana Supreme Court’s

decision, that chaos—and the resultant undermining of

CERCLA’s central purpose—will become the norm.

1. The Court need not guess at how the Montana

Supreme Court’s overhaul of CERCLA will play out.

The history of other Superfund projects is fertile ground

for posing counterfactuals regarding what would have

occurred had this new legal regime been in place at other

Superfund sites.

Consider the Portland Harbor Superfund Site in

Oregon and the Grasse River Superfund Site in New

York.

At Portland Harbor, EPA developed and

evaluated nine separate remedial alternatives for

cleaning up contaminated sediments at the bottom of the

harbor. EPA, Record of Decision, Portland Harbor

18

Superfund Site, Portland, Oregon § 10 (Jan. 2017).10 In

conducting that analysis, EPA concluded that dredging

could be counterproductive in some areas because

disturbing contaminated sediment would risk additional

“potential releases to the environment.” Id. § 10.2.8. For

that and other reasons, EPA chose to dredge only a

portion of the site. Id. §§ 10.2.6, 14.

Similarly, at Grasse River, EPA specifically

considered whether it could “return[] the lower Grasse

River to its previous pristine conditions” by dredging all

river sediment areas containing a threshold level of

polychlorinated biphenyls (PCBs). EPA, Grasse River

Superfund Site Cleanup Decision Announced, at 2 (April

2013).11 EPA instead selected a cleanup plan that would

dredge only some areas of contamination, based on the

following three conclusions: (1) dredging all areas of

contamination would not “return the lower Grasse River

to pristine conditions”; (2) the short-term impacts of such

a path forward would be “severe” and require off-site

disposal of 1.5 million cubic yards of dredged sediment,

which carries its own set of risks; and (3) a complete

dredge of the river would take “nearly three times as

long as the selected remedy to achieve PCB interim

target levels in fish.” Ibid.

EPA’s final decisions were given their binding effect

under CERCLA in those instances. But under the

Montana Supreme Court’s decision, those remedial

choices would be reduced to mere suggestions.

Interested parties would be free to invoke state tort law

and hold jury trials over whether the entire sites should

be dredged as “restoration work in excess of what EPA

required.” Pet. App. 4a. While that remedy would

https://semspub.epa.gov/work/10/100036257.pdf.

https://www.epa.gov/sites/production/files/2017-03/documents/fact

sheet_alcoa_4-2013.pdf.

10

11

19

directly contradict EPA’s remedial decisions and risk

further contamination, it would pass muster under the

decision below because it would not “stop, delay, or

change the work EPA is doing.” Id. at 11a.

The UGI Columbia Gas Plant Superfund Site in

Pennsylvania offers another disturbing window into the

future under the Montana Supreme Court’s vision of

CERCLA.

There, EPA issued a technicalimpracticability waiver after finding that complete

restoration of the groundwater at that site would cause

more harm than good.

Summary of Technical

Impracticability Waivers at National Priorities List

Sites, at A-45. Specifically, EPA determined that the

remaining contamination at the site was related to dense

non-aqueous phase liquid (DNAPL), which could be

removed only by first mobilizing it and then extracting it.

Ibid. EPA determined that while mobilizing the DNAPL

was possible, there existed no known technologies

capable of extracting it from the complicated fractured

bedrock geologic system. Ibid. Moreover, mobilizing the

DNAPL was a risky endeavor because any attempt to do

so “may cause ecological and human health risks, which

currently do not exist in the vicinity of the site and

Susquehanna River.” Ibid. EPA thus made a decision,

based on site-specific conditions, available technology,

sound science, and risk considerations, that complete

removal of DNAPL was not warranted. Ibid. But under

the Montana Supreme Court’s approach, private litigants

would be free to convince a jury that attempting DNAPL

removal—“restoration work in excess of what the EPA

required,” Pet. App. 4a—was in fact warranted despite

the risks and seemingly insurmountable technical

challenges.

Another example is the Silver Bow Creek/Butte Area

Site, for which EPA issued a technical-impracticability

waiver because it concluded that the remedy could not

20

reduce concentrations of arsenic, cadmium, lead, copper,

and sulfate to levels normally required in a Superfund

cleanup. Summary of Technical Impracticability Waivers

at National Priorities List Sites, at A-73. Specifically,

EPA reasoned:

A [technical-impracticability waiver] is

required because * * * the extremely large

horizontal and vertical extent of the

contamination problem—the sheer size of

the source, calculated to be 27 billion cubic

yards—would leave an open pit about 62

times larger than the current Berkeley Pit,

would eliminate the historic city of Butte,

and would have untold environmental

consequences.

Ibid.

EPA further considered, and rejected, all

“potentially applicable remediation technologies” to

address the groundwater contamination at that site,

concluding that such an attempt would be ineffective at

best and could “reverse the currently observable trends

of improving bedrock quality” at worst. Ibid. Yet under

the Montana Supreme Court’s ruling, any interested

party remains free to file a state-law tort action for

restoration damages to conduct the remedial actions

EPA rejected—despite EPA’s determinations that such

remediation would be infeasible, could do more harm

than good, and would wipe an entire city off the map.

2. Permitting circumvention of Section 9613(h)’s bar

undermines CERCLA in less obvious, but no less important, ways as well. In order to promote expeditious

remediation of Superfund sites, CERCLA authorizes

EPA to negotiate settlements with responsible parties to

fund or perform investigation and cleanup efforts. 42

U.S.C. § 9613(f)(2); see generally Gelber, U.S. Department of Justice, Memorandum Defining “Matters Ad-

21

dressed” in CERCLA Settlements, at 4 n.3 (Mar. 14,

1997).12

With that settlement authority, EPA wields the power

to fix a responsible party’s otherwise open-ended liability

at a definite sum in return for cooperation during the

cleanup efforts. 42 U.S.C. § 9613(f)(2). This ability to

bring certainty to a responsible party’s remediation

obligations is a crucial tool for negotiating quick cleanup

of Superfund sites because, as the Government explained

below, “the main incentive for a responsible party to

enter into a CERCLA consent decree with the United

States is to fix the party’s cleanup obligations.” Pet. App.

71a. Indeed, § 9613(f)(2) was added to CERCLA as part

of the 1986 Superfund Amendments and Reauthorization

Act in an effort to induce responsible parties to settle

their liability with the agency overseeing the cleanup so

the settling party would have a “measure of finality.”

United States v. Cannons Eng’g Corp., 899 F.2d 79, 92

(1st Cir. 1990). Incentivizing settlement was intended by

Congress to “encourage quicker, more equitable

settlements, decrease litigation and thus facilitate

cleanups.” H.R. Rep. No. 99-253, at *6 (1985), reprinted

in 1986 U.S.C.C.A.N. 2835, 2840-41; see also 131 Cong.

Rec. 24725, 24730 (1985) (statement of Sen. Domenici)

(“The goal of CERCLA is to achieve effective and

expedited cleanup of as many uncontrolled hazardous

waste facilities as possible. One important component of

the realistic strategy must be the encouragement of

voluntary cleanup actions or funding without having the

President relying on the panoply of administrative and

judicial tools available.”).

These settlements have downstream predictability

effects as well. An EPA settlement with one responsible

https://www.epa.gov/sites/production/files/2013-09/documents/defi

n-cersett-mem.pdf.

12

22

party gives the other potentially responsible parties an

idea of what kind of settlement EPA will accept for them.

EPA’s reaching settlements with all of the largest

potentially responsible parties often sets the practical

upper limit on all potentially responsible third parties’

total combined liability. That is because at many sites

EPA focuses its enforcement efforts on a subset of

responsible parties and leaves it to those parties who

settle to bring contribution claims against the nonsettling potentially responsible parties to recover a

portion of the monies paid in settlement. 42 U.S.C.

§ 9613(f)(3)(B).

The settlement mechanism thus can

sometimes inform the outer bounds of liability for the

non-settling potentially responsible parties too.

The Montana Supreme Court’s decision removes that

incentive for cooperation and the ability of potentially

responsible parties to fix their liability because it strips

EPA of the power to bring certainty and finality to a

potentially responsible party’s remediation obligations.

Instead, private litigants can file lawsuits seeking

additional “restoration work in excess of what the EPA

required” in any settlement agreement. Pet. App. 4a.

Permitting such lawsuits prevents responsible parties

from ever obtaining the final resolution of their liability

that CERCLA empowered EPA to provide.

The

Montana Supreme Court’s decision thus frustrates

EPA’s ability to bring parties to the bargaining table and

achieve CERCLA’s goal of a prompt cleanup.13

In absence of settlement, EPA must either conduct the cleanup

itself and then pursue potentially responsible parties for reimbursement, or try to force the potentially responsible parties to perform

the cleanup through administrative order or court action. See Gen.

Elec. Co. v. Jackson, 610 F.3d 110, 114 (D.C. Cir. 2010) (summarizing

EPA’s four options for conducting cleanup at a Superfund site).

These routes typically take longer, jeopardizing EPA’s ability to ob13

23

3. Allowing private lawsuits also distorts the holistic

lens through which Congress required EPA to assess

remediation. Interested parties may want to challenge

cleanup plans because they believe their preferred approach would be better for them, regardless of the negative externalities it may inflict on the rest of the site or

the general public. But CERCLA charges EPA to identify the solution that is best for “the public health” and

“environment” as a whole. 42 U.S.C. § 9604(a)(1); National Oil and Hazardous Substances Pollution Contingency Plan Preamble, 55 Fed. Reg. 8666, 8695 (Mar. 8,

1990) (CERCLA remedial actions should “comprehensively address all threats at a site.”). Allowing a jury to

evaluate third parties’ preferred remedy addresses only

a fraction of the relevant question and, worse, can lead to

a result that is detrimental to the larger community.

CERCLA allows interested parties to make their individualized interests known through the public-input process but assigns EPA the task of selecting the optimal

measures for the entire affected population. The decision

below departed from this design by permitting third parties to elevate their narrow self-interest above that of the

broader public.

4. The state-law restoration remedy also “stands as

an obstacle to the accomplishment and execution of the

full purposes and objectives of Congress” when it enacted

CERCLA. Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

It “upset[s] the careful balance struck by Congress”

when it crafted such a uniquely comprehensive statute.

Edgar v. MITE Corp., 457 U.S. 624, 634 (1982). Accordingly, the state law must yield so that the federal statute

can apply as Congress intended. See Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 881 (2000) (“Because the

tain prompt cleanup and straining limited Government resources by

requiring the Government to pay or litigate in the first instance.

24

rule of law for which petitioners contend would have

stood ‘as an obstacle to the accomplishment and execution of’ the important means-related federal objectives

that we have just discussed, it is pre-empted.”) (quoting

Hines, 312 U.S. at 67).

II. CERCLA’S ROBUST PUBLIC OUTREACH MECHANISMS PROVIDE THE PROPER MEANS FOR INFLUENCING EPA’S REMEDIAL DECISIONS

Reversing the Montana Supreme Court’s decision and

restoring the congressional vision of CERCLA would not

thwart public involvement in EPA’s remedy-selection

process. Far from it. While court challenges to EPA’s

selected remedy would be prohibited, CERCLA provides

many other avenues for interested parties to make their

voices heard at the appropriate time and venue. Reversal

of the decision below would thus ensure that interested

parties’ concerns will be channeled into the statutory

mechanisms Congress designed for precisely that

purpose.

A. CERCLA establishes a robust public-participation

framework. Before adopting a remediation plan, EPA

must “[p]ublish a notice and brief analysis of the

proposed plan and make such plan available to the

public.” 42 U.S.C. § 9617(a). EPA then must “[p]rovide a

reasonable opportunity for submission of written and oral

comments and an opportunity for a public meeting at or

near the facility at issue regarding the proposed plan.”

Ibid. Reflecting the importance of this notice-andcomment process, EPA’s “final plan shall be accompanied

by a discussion of any significant changes (and the

reasons for such changes) in the proposed plan and a

response to each of the significant comments, criticisms,

and new data submitted.”

Id. § 9617(b).

Similar

obligations apply after adoption of a final remediation

plan. If EPA’s later actions “differ[] in any significant

25

respects from the final plan,” then it “shall publish an

explanation of the significant differences and the reasons

such changes were made.”

Id. § 9617(c).

By

implementing a notice-and-comment process and

imposing on EPA a continuing obligation to explain its

rejection of any significant comments, these statutory

mandates ensure that the interested parties have a voice

in the remedy-selection process.

CERCLA’s regulations add more public-participation

mandates on top of those statutory requirements,

ensuring that EPA consults with interested parties at

nearly every step in the Superfund process. Before

placing a site on the National Priorities List, EPA must

publish notice in the Federal Register, solicit comments,

and “make available a response to each significant

comment and any significant new data submitted during

the comment period.” 40 C.F.R. § 300.425(d)(5). Then,

before commencing the remedial investigation, EPA

must (1) conduct “interviews with local officials,

community residents, public interest groups, or other

interested or affected parties, as appropriate, to solicit

their

concerns

and

information

needs,”

id.

§ 300.430(c)(2)(i), and (2) prepare a “formal community

relations plan” to “ensure the public appropriate

opportunities for involvement in a wide variety of siterelated decisions, including site analysis and

characterization, alternatives analysis, and selection of

remedy,” id. § 300.430(c)(2)(ii).

Additionally, EPA

maintains an administrative record for each site so that

any person has easy access to relevant studies, data, and

information. See generally 40 C.F.R. Part 300, Subpart

I.

The regulations continue to impose publicparticipation obligations after EPA has made an initial

determination regarding the preferred remedy. At that

point, it must “[p]rovide a reasonable opportunity * * *

26

for submission of written and oral comments on the

proposed plan and the supporting analysis” and hold a

“public meeting * * * at or near the site at issue.” Id.

§ 300.430(f)(3)(i). Following the comment period on the

proposed plan, EPA must “reassess its initial

determination[,] * * * factoring in any new information or

points of view expressed by the * * * community during

the public comment period.”

Id. § 300.430(f)(4)(i).

Indeed, the regulations specifically contemplate that

“comments may prompt [EPA] to modify aspects of the

preferred alternative or decide that another alternative

provides a more appropriate balance.” Ibid. Taking all

of this into account, EPA then must document and justify

its final remedy selection in a publicly available record of

decision. Id. § 300.430(f)(3), (5). Before carrying out the

final plan, EPA must determine whether it is necessary

to revise its community-relations plan to “describe

further public involvement activities.” Id. § 300.435(c)(1).

In sum, there is no shortage of public involvement in

EPA’s Superfund identification and remediation process.

Preventing interested parties from challenging EPA’s

remediation decisions through private lawsuits would

enforce the statutory design, while leaving ample means

of public expression. Indeed, interested parties would

continue to actively participate through the host of

carefully calibrated mechanisms provided by CERCLA

and its regulations, just as Congress intended.

B. Examples of a few EPA community-relations

plans provide a real-world glimpse into the functioning of

CERCLA’s public-participation mechanisms.

At the Grasse River Superfund Site, EPA engaged the

public with fact sheets, flyers, public notices, door-todoor solicitations, school outreach, mail, email, websites,

and social media. EPA, Grasse River Superfund Site

Community Involvement Plan for Remedial Design and

27

Remedial Action, at 19-23 (Aug. 2014).14 That was in

addition to EPA’s coordination efforts with state and

tribal authorities. Ibid. This aggressive public-outreach

strategy paid dividends, as the Community Advisory

Panel “played a valuable role in representing community

viewpoints * * * [and] helped guide and inform the EPA’s

decision-making process at the site.” Id. at 23.

Community involvement at the Colorado School of

Mines Research Institute Superfund Site likewise proved

effective. The public there had a demonstrably direct

impact on the remedial alternatives considered: “By

going to the community up front, EPA was able to screen

out remedial alternatives that the community simply

would not accept prior to spending EPA resources on

analysis of their feasibility.” EPA, Community Advisory

Groups: Partners in Decisions at Hazardous Waste Sites,

Case Studies, at 40 (Winter 1996).15

The record similarly reflects the public-participation

process for the Anaconda Smelter Superfund Site at

issue here. As the Government’s amicus brief below

detailed, EPA has ensured that “[t]he remedy-selection

process continues to respond to public concerns and new

data. For example, EPA significantly amended the

[records of decision] in 2011 and 2013 based on new

information.” Pet. App. 65a. On the September 2011

Record of Decision Amendment alone, EPA received and

responded to comments from Anaconda-Deer Lodge

County, the Clark Fork River Technical Assistance

Committee, the Clark Fork Coalition, the Arrowhead

Foundation, and others. Record of Decision Amendment,

Anaconda Regional Water, Waste, and Soils Operable

Unit, Responsiveness Summary & Appendix A.

https://www.epa.gov/sites/production/files/2017-03/documents/gras

se-river-cip.pdf.

15

https://semspub.epa.gov/work/HQ/174150.pdf.

14

28

C. Respondents were well aware of CERCLA’s

public-participation framework.

Indeed, respondent

Penny Ryan submitted a number of comments to EPA

objecting to various aspects of its remediation plan. Id.

at Responsive Summary § 6.0.C. EPA considered and

responded to her comments. Ibid. Then it rendered its

own expert decision on how to move forward with the

cleanup. The court below erred by allowing collateral

attacks on the outcome of this process.

*

*

*

CERCLA’s text, structure, and purpose cannot

countenance interference through private lawsuits by

interested third parties. Yet that is precisely what the

decision below enables. The Court should reverse the

decision below and restore the comprehensive Superfund

structure that CERCLA mandates.

CONCLUSION

The judgment of the Supreme Court of Montana

should be reversed.

29

Respectfully submitted.

STEVEN P. LEHOTSKY

MICHAEL B. SCHON

U.S. CHAMBER LITIGATION

CENTER

1615 H St., NW

Washington, D.C. 20062

(202) 659-6000

Counsel for Amicus Curiae

Chamber of Commerce of the

United States of America

MATTHEW A. HAYNIE

AMERICAN PETROLEUM

INSTITUTE

1220 L St. NW

Washington, D.C. 20005

(202) 828-8000

Counsel for Amicus Curiae

American Petroleum

Institute

PETER C. TOLSDORF

LELAND P. FROST

MANUFACTURERS’ CENTER

FOR LEGAL ACTION

733 10th St., N.W., Suite 700

Washington, D.C. 20001

(202) 637-3000

Counsel for Amicus Curiae

the National Association of

Manufacturers

August 2019

AARON M. STREETT

Counsel of Record

J. MARK LITTLE

BAKER BOTTS L.L.P.

910 Louisiana St.

Houston, TX 77002

(713) 229-1234

aaron.streett@bakerbotts.com

MARTHA S. THOMSEN

BAKER BOTTS L.L.P.

The Warner

1299 Pennsylvania Ave., NW

Washington, D.C. 20004-2400

(202) 639-7700

Counsel for Amici Curiae

Chamber of Commerce of the

United States of America,

National Association of

Manufacturers, American

Fuel & Petrochemical

Manufacturers, National

Mining Association,

American Petroleum

Institute, and Superfund

Settlements Project

LAURIE DROUGHTON

MATTHEWS

DUKE K. MCCALL

MORGAN, LEWIS & BOCKIUS

LLP

1111 Pennsylvania Ave., NW

Washington, D.C. 20004

(202) 739-3000

Counsel for the Superfund

Settlements Project