Petition for Writ of Certiorari — Joslyn Manufacturing Company, LLC, et al., Petitioners v. Valbruna Slater Steel Corporation, et al.

No. 19IN THE

Supreme Court of the United States

___________

JOSLYN MANUFACTURING CO., LLC AND JOSLYN CORP.,

Petitioners,

v.

VALBRUNA SLATER STEEL CORP. AND FORT WAYNE

STEEL CORP.,

Respondents.

___________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

___________

PETITION FOR A WRIT OF CERTIORARI

___________

JOSHUA G. VINCENT

HINSHAW & CULBERTSON

151 N. Franklin St., #2500

Chicago, Illinois 60606

(312) 704-3463

STEPHEN D. DAVIS

STEVE DAVIS LAW, P.C.

1333 Burr Ridge Parkway

Burr Ridge Illinois 60527

(630) 756-3042

CARTER G. PHILLIPS *

TIMOTHY K. WEBSTER

JENNIFER J. CLARK

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

cphillips@sidley.com

Counsel for Petitioner

January 21, 2020

* Counsel of Record

QUESTION PRESENTED

The Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA), contains

two different statutes of limitations for suits to recover environmental clean-up costs: (1) a three-year limitations period for suits to recover “removal” costs;

and (2) a six-year period for suits to recover “remedial” costs. See 42 U.S.C. § 9613(g)(2)(A), (B). The

three-year period to seek removal costs starts when

the removal work is completed; the six-year period to

seek remedial costs starts when physical on-site remedial construction begins.

The terms “removal” and “remedial” are defined

terms under CERCLA. See 42 U.S.C. § 9601(23), (24).

“Removal” activity generally consists of clean-up

measures taken in response to immediate threats to

public health and safety; “remedial” activity means

“actions consistent with [a] permanent remedy.” 42

U.S.C. § 9601(24).

The question presented is:

Whether the six-year statute of limitations for “remedial” work is triggered, as the court of appeals held

below, only when the construction of a permanent solution for environmental contamination meets a

threshold level of comprehensiveness.

(i)

ii

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT

Petitioners Joslyn Manufacturing Company, LLC

and Joslyn Corporation were the defendantsappellants in the court below. Respondents Valbruna

Slater Steel Corporation and Fort Wayne Steel Corporation were the plaintiffs-appellees in the court below.

Petitioner Joslyn Manufacturing Company, LLC is

a Delaware limited liability company. Joslyn Company, also a Delaware limited liability company, owns

100% of Joslyn Manufacturing Company, LLC. Danaher Corporation, a publicly held company, owns

100% of Joslyn Company. Petitioner Joslyn Corporation was a Delaware corporation that ceased to exist

in 1997.

RELATED PROCEEDINGS

There are no proceedings in state or federal courts

that are directly related to this case.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...................................

i

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT ............................................

ii

RELATED PROCEEDINGS.................................

ii

TABLE OF AUTHORITIES .................................

v

OPINIONS BELOW .............................................

1

JURISDICTION....................................................

1

STATUTORY PROVISIONS INVOLVED ...........

1

INTRODUCTION .................................................

1

STATEMENT OF THE CASE..............................

4

A. Statutory and Regulatory Background ....

4

B. Factual and Procedural Background .......

5

REASONS FOR GRANTING THE PETITION ...

8

I. THE CIRCUITS HAVE ADOPTED DISPARATE TESTS FOR TRIGGERING

CERCLA’S SIX-YEAR STATUTE OF LIMITATIONS FOR ACTIONS TO RECOVER

COSTS OF REMEDIATION. .......................

9

II. THE DECISION BELOW IS CONTRARY

TO THE STATUTORY LANGUAGE AND

RISKS ELIMINATING THE STATUTE OF

LIMITATIONS ALTOGETHER ...................

12

III. THIS CASE INVOLVES A RECURRING

ISSUE OF NATIONAL IMPORTANCE

AND IS AN EXCELLENT VEHICLE TO

RESOLVE THE ACKNOWLEDGED SPLIT

AMONG THE COURTS OF APPEALS .......

15

CONCLUSION ....................................................

17

(iii)

iv

TABLE OF CONTENTS—continued

Page

APPENDICES

APPENDIX A: Valbruna Slater Steel Corp. v.

Joslyn Mfg. Co., 934 F.3d 553 (7th Cir.

2019) ...................................................................

1a

APPENDIX B: Entry of Final Judgment, Valbruna Slater Steel Corp. v. Joslyn Mfg. Co.,

No. 1:10-CV-044-JD (N.D. Ind. July 20,

2018) ................................................................... 23a

APPENDIX C: Opinion and Order, Valbruna

Slater Steel Corp. v. Joslyn Mfg. Co., No. 1:10CV-44 (N.D. Ind. June 5, 2013) ......................... 25a

APPENDIX D: Opinion and Order, Valbruna

Slater Steel Corp. v. Joslyn Mfg. Co., No. 1:10CV-044 JD (N.D. Ind. Mar. 21, 2013) ............... 32a

APPENDIX E: Order Denying Rehearing, Valbruna Slater Steel Corp. v. Joslyn Mfg. Co.,

Nos. 18-2633 & 18-2738 (7th Cir. Sept. 6,

2019) ................................................................... 60a

APPENDIX F: Statutory Provisions Involved .... 61a

42 U.S.C. § 9601 (excerpts) ............................. 61a

42 U.S.C. § 9613 (excerpts) ............................. 63a

v

CASES

TABLE OF AUTHORITIES

Page

California ex rel. Cal. Dep’t of Toxic

Substances Control v. Neville Chem. Co.,

358 F.3d 661 (9th Cir. 2004) .......... 3, 10, 11, 15

Commander Oil Corp. v. Barlo Equip.

Corp., 215 F.3d 321 (2d Cir. 2000) ............

4

GenCorp, Inc. v. Olin Corp., 390 F.3d 433

(6th Cir. 2004) ............................................

10

Geraghty & Miller, Inc. v. Conoco Inc., 234

F.3d 917 (5th Cir. 2000), abrogated on

other grounds by Vine Street LLC v. Borg

Warner Corp., 776 F.3d 312 (5th Cir.

2015) ........................................................... 3, 10

Schaefer v. Town of Victor, 457 F.3d 188 (2d

Cir. 2006) .............................................. 3, 10, 15

United States v. Kubrick, 444 U.S. 111

(1979) ..........................................................

14

United States v. Navistar Int’l Transp.

Corp.,

152

F.3d

702

(7th

Cir.

1998) ............................................. 10, 13, 14, 15

United States v. Raytheon Co., 334 F. Supp.

3d 519 (D. Mass. 2018)............................. 11, 15

Valbruna Slater Steel Corp. v. Joslyn Mfg.

Co., 934 F.3d 553 (7th Cir. 2019) .............. 1, 15

STATUTES AND REGULATION

42 U.S.C. § 6901 et seq. .................................

5

§ 9601(23) ......................................

1

§ 9601(24) .......................... 1, 2, 3, 6, 12

§ 9607(a) ........................................

4

§ 9613(g)(2) .................................... 1, 12

§ 9613(g)(2)(A) ............................... 2, 4

§ 9613(g)(2)(B) ............................. 2, 3, 4

40 C.F.R. § 300.5 ...........................................

6

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals is reported at

934 F.3d 553 (7th Cir. 2019). Pet. App. 1a-22a. The

district court’s unpublished decisions striking the

statute of limitations defense and denying summary

judgment are reproduced at Pet. App. 25a-31a and

32a-59a.

JURISDICTION

The court of appeals entered judgment on August 8,

2019, and denied a timely petition for rehearing en

banc by order dated September 6, 2019. Pet. App.

60a. This Court extended the time to file a petition

for a writ of certiorari to January 20, 2020. This petition is timely filed on January 21, 2020 due to the

federal holiday on January 20, 2020. This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved are set forth in

the appendix to this petition: 42 U.S.C. § 9613(g)(2)

(providing a three-year statute of limitations for actions to recover removal costs and a six-year statute

of limitations for actions to recover remediation

costs); 42 U.S.C. § 9601(23) (defining “removal”); 42

U.S.C. § 9601(24) (defining “remedy” or “remedial action”). Pet. App. 61a-64a.

INTRODUCTION

The courts of appeals are in disarray over the correct application of CERCLA’s limitations period for

actions to recover clean-up costs. Multiple courts of

appeals have adopted disparate tests for what constitutes initiation of remedial action that triggers CER-

2

CLA’s six-year limitations period for recovery of “remediation” costs as opposed to the three-year period

for “removal” costs. This Court’s guidance is warranted to clarify this confusion and enable parties to

know with greater certainty when a cause of action

for cost recovery accrues and, more importantly,

when a claim has expired.

Under CERCLA, “removal” actions are generally

short-term actions to address an immediate threat to

public health or the environment from the release or

threatened release of hazardous materials. CERCLA

requires suits to recover costs of removal actions to be

filed within three years of the completion of the work.

42 U.S.C. § 9613(g)(2)(A). This encourages parties to

address the threat to public health or the environment first and sue for costs afterwards.

Remedial actions, by contrast, are longer-term and

indeed can go on for decades. The remedial work at

issue here has been ongoing since 1981. Timely actions and finality would be impossible if the limitations period did not commence until remediation was

completed. Accordingly, Congress provided a limitations period that commences, not with the completion

of the work, but instead with the “initiation of physical on-site construction” “consistent with” a “permanent” remedy. 42 U.S.C. §§ 9613(g)(2)(B), 9601(24)

(emphasis added). Suits must be filed within six

years of the initiation of that type of clean-up effort.

The Seventh Circuit’s decision—that otherwise

permanent remedial work is merely “removal” if it

resolves only a portion of the contamination at a

site—does violence to the plain language of the statute and runs counter to Congress’ intent. The decision below delays the accrual of actions to recover the

cost of remedial activity until remedial work meets

an amorphous level of comprehensiveness. This is the

3

exact opposite of what the statute says: “‘remedial action’ means those actions consistent with permanent

remedy,” and an action to recover remedial costs

must be brought within six years after remediation

begins. 42 U.S.C. §§ 9601(24), 9613(g)(2)(B).

The Seventh Circuit’s decision also brings further

confusion into the disagreement among the courts of

appeals over whether the permanent containment or

disposal of contamination at its source must be part

of a “comprehensive” remedial action plan before it

can trigger the statute of limitations for “remedial”

activity. The Ninth and Fifth Circuits hold that the

statute of limitations for “remedial” cost recovery is

not triggered until a final remedial action plan has

been adopted. See California ex rel. Cal. Dep’t of Toxic Substances Control v. Neville Chem. Co., 358 F.3d

661, 667 (9th Cir. 2004); Geraghty & Miller, Inc. v.

Conoco Inc., 234 F.3d 917, 927 (5th Cir. 2000), abrogated on other grounds by Vine Street LLC v. Borg

Warner Corp., 776 F.3d 312 (5th Cir. 2015). The Second Circuit has rejected that approach and holds that

a permanent fix undertaken before adoption of a remedial action plan can trigger the six-year statute of

limitations for “remedial” costs if it is consistent with

a permanent remedy. Schaefer v. Town of Victor, 457

F.3d 188, 207 (2d Cir. 2006). Like the Second Circuit,

the Seventh Circuit has rejected the Ninth Circuit’s

requirement of a ratified action plan. But, in the decision below, the court created yet a third test for starting the remedial statute of limitations, requiring that

to qualify as remedial, the clean-up work, no matter

how permanent, must be “meant to substantially resolve the bulk of the site’s ongoing pollution problems.” Pet. App. 17a.

This Court should grant certiorari to resolve the

split of authority over the statutory meaning of “re-

4

medial” clean-up activity, to ensure the statutory text

is enforced as written and thereby provide parties

with notice that their exposure to clean-up costs has

ended.

STATEMENT OF THE CASE

A. Statutory and Regulatory Background

CERCLA establishes “a regime of broad-ranging liability, permitting the government to recover its remediation expenses directly from parties responsible

for pollution and authorizing private parties to pursue contribution or indemnification from potentially

responsible parties for expenses incurred responding

to environmental threats.” Commander Oil Corp. v.

Barlo Equip. Corp., 215 F.3d 321, 326 (2d Cir. 2000)

(citation omitted). Among other provisions, section

107(a) of CERCLA authorizes the government and

certain private parties to bring suit against any of

four categories of potentially responsible parties to

recover costs of clean-up and prevention of future pollution at contaminated sites. 42 U.S.C. § 9607(a).

Section 113 of CERCLA distinguishes between removal, which “generally refers to a shortterm action

taken to halt risks posed by hazardous wastes immediately,” and remedial actions which “are longer

term, more permanent responses.” Pet. App. 15a.

CERCLA provides different statutes of limitations

for recovery of removal costs and remediation costs.

Actions to recover costs related to “removal actions”

must be brought within three years after the completion of the removal action. 42 U.S.C. § 9613(g)(2)(A).

Actions to recover costs related to “remediation,” by

contrast, must be brought within six years of the initiation of physical on-site construction of the remediation. Id. § 9613(g)(2)(B).

5

B. Factual and Procedural Background

From 1928 to 1981, petitioners and their predecessors (collectively “Joslyn”) owned and operated a steel

production business in Fort Wayne, Indiana (the

“Site”). Pet. App. 2a. The Site was sold to Slater

Steels Corporation (“Slater”) in 1981. Id.

At that time, the Site was an Interim Status

Treatment Disposal and Storage Facility under the

Resource Conservation and Recovery Act of 1976, 42

U.S.C. § 6901 et seq. (“RCRA”). Pet. App. 2a There

were three hazardous waste storage units at the Site

that required RCRA compliance: a waste pile; a drum

storage area; and a former surface impoundment,

which contained sludge generated in the steelmaking process. Slater immediately began incurring

environmental response costs to clean up and officially close these units in an effort to reduce its overall

environmental costs and liability. Id. at 2a-3a.

Closing the impoundment required the most work.

From 1981 to 1987, Slater conducted a series of excavations to dig up contaminated material and dispose

of it offsite for the purpose of closing the impoundment. After each effort, Slater thought it had done

enough to satisfy RCRA; each time, however, Indiana’s regulatory agency wanted more excavated. Pet.

App. 2a, 37a. In 1988, Slater entered into a Consent

Decree with the U.S. Environmental Protection

Agency (“EPA”), which provided in relevant part that

if the impoundment could not be “closed by removal,”

it would be “closed by landfill.” Id. at 2a; ECF No. 467, at 8-9.1 Stated more plainly, Slater would construct

a cap over the former impoundment to contain the

1 All “ECF No.” citations refer to the district court docket:

Valbruna Slater Steel Corp. v. Joslyn Mfg. Co., No. 1:10-cv00044-JD (N.D. Ind.).

6

residual contamination in place. Pet. App. 2a. The

cap would prevent rainwater from percolating

through the residual contamination and spreading it

farther, falling squarely within the statutory definition of “remedial action.” See 42 U.S.C. § 9601(24)

(“[T]hose actions consistent with permanent remedy . . . to prevent or minimize the release of hazardous substances so that they do not migrate to cause

substantial danger to present or future public health

or welfare or to the environment.”).

A reinforced concrete cap was constructed over the

former impoundment in November 1991. Pet. App.

2a. A groundwater monitoring system was built

around the impoundment in 1992. Id. at 3a. After

monitoring results showed the cap was containing the

contamination, the Indiana Department of Environmental Management (“IDEM”) certified closure of the

impoundment in 1999 on the condition that the other

sources of contamination at the Site would be addressed. Id. Thus, the impoundment’s “closure by

landfill” met the definition of a CERCLA “operable

unit,” i.e., “a discrete action that comprises an incremental step toward comprehensively addressing site

problems.” 40 C.F.R. § 300.5.

On March 22, 2000, Indiana issued a Covenant Not

to Sue for the project. (ECF No. 42-7, at 4-5.) The

Certificate of Completion for the Voluntary Remediation Program and the Covenant were both conditioned on Slater addressing the other sources of contamination at the Site. (ECF No. 42-7, at 12, 5 ¶ 7.)

On March 25, 2002, Slater entered into an Agreed

Order with IDEM to do the other work. Pet. App. 36a37a.

By 2003, however, Slater was bankrupt. Respondents acquired the Site at a bankruptcy auction in

2004. Pet. App. 4a. In 2005, respondents undertook

7

treatment of trichloroethylene (TCE) contamination

at the Site, and, in 2008, respondents entered the

Site in Indiana’s Voluntary Remediation program to

address other sources of contamination. Respondents’

2012 Work Remediation Plan submitted to Indiana’s

environmental authorities described Slater’s 1991

closure of the former impoundment as a “key component[]” of the Site’s overall remedial strategy. (ECF

No. 101-11, § 3.0, ¶ 1.)

Respondents brought this CERCLA action against

Joslyn in 2010 to recover past and future clean-up

costs. Pet. App. 4a. Joslyn moved for summary judgment, asserting the action was untimely under 42

U.S.C. § 9613(g)(2)(B). Joslyn argued that Slater initiated physical construction of the remedial action at

the former surface impoundment either in 1981

(when excavation began), or at the latest in 1991

(when the concrete cap was poured), both of which

occurred more than six years before respondents’

2010 suit was filed. Id. at 5a.

The district court denied Joslyn’s motion, entered

summary judgment for respondents on the issue of

liability, and held a trial limited to the issue of damages and contribution. Pet. App. 5a. Ultimately, the

district court awarded respondents $1,410,767.20 in

past response costs and a declaratory judgment that

Joslyn is responsible for 75% of respondents’ future

response costs. Id. at 5a-6a.

Joslyn appealed the rejection of its statute of limitations defense. The Seventh Circuit affirmed. It held

that the reinforced concrete cap Slater constructed on

the surface impoundment in 1991 did not trigger the

six-year limitations period for recovery of the costs of

remedial action because the cap constituted removal

action, not remedial action. The court reasoned that

treating the permanent concrete cap constructed on

8

the impoundment as “remedial” would “prioritize[]

form (the cap’s makeup) over function (the cap’s purpose and effect),” because “[t]he concrete cap covered

just one area” and was not “meant to substantially

resolve the bulk of the site’s ongoing pollution problems.” Pet. App. 17a.

REASONS FOR GRANTING THE PETITION

The decision below exacerbates an acknowledged

circuit split about the nature of clean-up work required to trigger CERCLA’s six-year statute of limitations for actions to recover costs of “remediation.” The

Ninth and Fifth Circuits hold that the statute for remedial action is not triggered by clean-up work conducted before the adoption of a comprehensive remedial action plan. The Second Circuit rejects this requirement and requires only that clean-up work be

consistent with a permanent remedy to trigger the

six-year limitations period. The Seventh Circuit’s decision below adopts yet a third test, requiring that

permanent clean-up work meet a threshold level of

comprehensiveness to trigger the six-year statute of

limitations. This disagreement among the courts of

appeals matters. The court below held that the costrecovery action was timely; under the Second Circuit’s approach in Schaefer, the action would be timebarred.

The Seventh Circuit’s decision runs counter to the

statutory language and fails to provide parties with

clarity and predictability over when a cost-recovery

action accrues and ignores the practical reality of

CERCLA clean-up efforts. The test adopted by the

court below also improperly extends the statute of

limitations, possibly indefinitely, which severely interferes with the ability of all potentially responsible

parties to be able to determine their liability risks.

9

This case presents an excellent vehicle to resolve

the disagreement among the lower courts. The relevant facts are typical of CERCLA cost-recovery actions and are not in dispute. The Seventh Circuit’s

published opinion squarely addresses the question,

and published decisions from other circuits present

opposing views. This Court should grant certiorari

and provide uniformity on this important and recurring question.

I. THE CIRCUITS HAVE ADOPTED DISPARATE TESTS FOR TRIGGERING CERCLA’S

SIX-YEAR STATUTE OF LIMITATIONS

FOR ACTIONS TO RECOVER COSTS OF

REMEDIATION.

The decision below exacerbated an acknowledged

circuit split about the nature of clean-up work required to trigger CERCLA’s six-year statute of limitations for actions to recover costs of “remedial” work.

The Ninth and Fifth Circuits on the one hand and the

Second Circuit on the other have adopted directly

contradictory tests. The Seventh Circuit has expressly rejected the Ninth Circuit’s approach and, in the

decision below, created yet a third approach for deciding when a permanent containment effort should be

classified as “remediation” and thereby trigger the

six-year limitations period. These disparate approaches to the statute of limitations mean that

whether a given cost-recovery action is timely turns

on the happenstance of geography. Cost recovery may

be barred in New York, but not in Chicago. That is

precisely the situation in which this Court should intervene.

The Ninth Circuit has adopted a bright-line rule

that remedial action starts when a final remedial action plan is adopted, and therefore even permanent

containment efforts must be treated as “removal” un-

10

til a final remedial plan is agreed upon. Neville, 358

F.3d at 666-67. The Ninth Circuit reasoned that the

statute defines remedial as actions “consistent with

permanent remedy,” and “[f]or an action to be ‘consistent with permanent remedy,’ a permanent remedy [i.e., a final remedial action plan] must already

have been adopted.” Id. at 667. The Fifth Circuit has

similarly held a clean-up program was not remedial

prior to the state’s approval of the final remediation

plan. See Geraghty & Miller, Inc., 234 F.3d at 927.

The Second Circuit has expressly rejected the

Ninth Circuit’s approach. The Second Circuit explained that the “plain language of the statute”

makes no mention of a “final remedial action plan,”

and requires only that remedial activity be “consistent with permanent remedy.” Schaefer, 457 F.3d

at 207 (emphasis omitted). The Second Circuit held

that using a crane to spread topsoil, sand, and gravel

over a landfill was “consistent with permanent remedy” and thus triggered the six-year limitations period.

Id. at 204.2

The Seventh Circuit has likewise rejected the requirement that a final remedial action plan be approved before clean-up efforts can be classified as remedial. United States v. Navistar Int’l Transp. Corp.,

152 F.3d 702, 712 (7th Cir. 1998) (“The statute is devoid of any reference that would lead us to conclude

from its plain language that Congress intended to incorporate this specific aspect of the administrative

process in establishing the actions that would trigger

2 The Sixth Circuit has also held that remedial action begins

when construction is initiated if it is “consistent with” a “permanent remedy” but has declined to reach the question whether a

final remediation plan is also required. See GenCorp, Inc. v. Olin

Corp., 390 F.3d 433, 444 (6th Cir. 2004).

11

the limitations period.”). But in the decision below,

the Seventh Circuit created a new, additional requirement. It held that the concrete cap and the containment of the surface impoundment at the Site was

permanent, but not remedial, because it did not address any other areas of contamination at the Site

and therefore was not sufficiently comprehensive.

Pet. App. 17a.

Curiously and notwithstanding the Seventh Circuit’s rejection of the Ninth Circuit’s precise approach, the action would likely have been untimely

under the Ninth Circuit’s test. Although there was no

final remedial action plan approved for this Site

when the cap was built over the impoundment in

1991, a 1988 consent decree between Slater and the

EPA provided that the impoundment would be

“closed by landfill” if it could not be “closed by removal.” This agreement on the means of remediation

would likely satisfy the Ninth Circuit’s requirement

of an agreed action plan that would make the concrete cap qualify as initiation of remediation. See Neville, 358 F.3d at 671 (explaining that the result in

Navistar would be the same under the Ninth Circuit

test because the clay cap occurred after the EPA determined that “the landfill needed to be covered with

a permanent clay cap to isolate the hazardous materials from the rest of the environment”). And because

the containment system was plainly consistent with a

permanent remedy (indeed, it is still in place and has

since been incorporated into respondents’ final remedial action plan), this cost-recovery action would be

untimely under the Second Circuit’s approach in

Schaefer.

The disagreement among the courts of appeals also

sows confusion among district courts in circuits that

have not yet addressed the question. See, e.g., United

12

States v. Raytheon Co., 334 F. Supp. 3d 519, 526 (D.

Mass. 2018) (noting absence of First Circuit guidance

and disagreeing with another district court on the

proper test). The circuit split also creates uncertainty

for environmental enforcement agencies, businesses,

and insurers.

This Court should grant the petition for a writ of

certiorari to resolve the confusion among the lower

courts regarding the nature of clean-up work required to trigger CERCLA’s six-year statute of limitations for cost-recovery actions. This Court’s guidance

is warranted to clarify this important—and often dispositive—threshold legal question.

II. THE DECISION BELOW IS CONTRARY TO

THE STATUTORY LANGUAGE AND RISKS

ELIMINATING THE STATUTE OF LIMITATIONS ALTOGETHER.

The Seventh Circuit’s test cannot be reconciled with

the relevant statutory language. CERCLA defines

remedial work as “actions consistent with permanent

remedy . . . to prevent or minimize the release of hazardous substances so that they do not migrate to

cause substantial danger to present or future public

health or welfare or the environment.” 42 U.S.C.

§ 9601(24) (emphasis added). And it provides that

suits for recovery of remediation costs must be

brought “within 6 years after initiation of physical

on-site construction of the remedial action.” Id.

§ 9613(g)(2) (emphasis added). It says nothing about

“substantially resolv[ing] the bulk of the site’s ongoing pollution problems,” as the court below required.

Pet. App. 17a. The Seventh Circuit’s test effectively

reads out of the statute the phrases “consistent with

permanent remedy” and “initiation of . . . construction of the remedial action.” It requires instead that

the clean-up work constitute the entirety of the per-

13

manent remedy and does not allow for phased initiation of clean-up efforts. The result is that the court

below found that the cost-recovery action was timely

filed 18 years after installation of a permanent concrete cap and groundwater monitoring system to prevent the release of hazardous substances. There is no

way to reconcile that outcome with the plain language and intent of CERCLA’s two-part limitations

scheme.

As the Seventh Circuit itself recognized in Navistar, “‘remedial action’ is a term broadly defined by the

statute—a fact of which Congress was no doubt well

aware when it incorporated that term in the statute

of limitations.” 152 F.3d at 712. If Congress had intended to require a “comprehensive” remedy that addressed the “bulk” of the contamination at a site before the limitations period could begin, it “surely

would have provided [the courts] with a more explicit

direction to that effect.” Id.

The decision below sows uncertainty for the timely

commencement of cost recovery-actions and ignores

the practical reality of the mine-run of CERCLA

clean-up efforts. The Seventh Circuit’s approach

dates the limitations period from a point that cannot

be calibrated with any degree of certainty. When does

otherwise permanent clean-up work become sufficiently “comprehensive” to be considered remedial?

When it affects 25% of the contamination at a site?

40%? 50? More? What if there are different forms of

contamination at the site (e.g., soil, sediment,

groundwater) that are not amenable to quantitative

comparison? The problems with this approach are obvious. It permits the commencement of the statute of

limitations to become a wholly discretionary determination of when “enough” permanent clean-up work

has been done to make it “remedial” and thus invites

14

widely disparate accrual dates across jurisdictions. It

would also encourage strategic behavior to preclude

the limitations period from ever accruing, thereby effectively eliminating the statute of limitations and

imposing potentially indefinite liability. There is no

possibility of repose embedded in the Seventh Circuit’s approach to determining when the limitations

period begins to run.

One of the primary functions of a limitations period, especially with regard to regulatory matters, is to

ensure an intelligible record for review. Statutes of

limitations “protect defendants and the courts from

having to deal with cases in which the search for

truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or

otherwise.” United States v. Kubrick, 444 U.S. 111,

117 (1979). The rule the Seventh Circuit adopted in

this case has all of these risks. And it defeats the

purpose of a statute of limitations which, above all

else, is supposed to provide certainty for both the party seeking relief and the party who may be liable. See

Navistar, 152 F.3d at 707-08 (Congress enacted 42

U.S.C. § 9613(g)(2)(B) to “serve the important purpose of encouraging the prompt filing of claims and

by doing so of enhancing the likelihood of accurate

determinations and removing debilitating uncertainty about legal liabilities”).

The Seventh Circuit’s test also fails to account for

the practical realities of CERCLA clean-up efforts.

The clean-up of large, contaminated industrial sites

necessarily occurs in phases, and permanent fixes often commence before a complete remedial action plan

is in place. It is time-consuming, expensive work. The

fact that otherwise permanent remedial work frequently occurs on a piecemeal basis does not trans-

15

form that work into “removal” activity that delays indefinitely the start of the limitations period for the

recovery of remedial costs.

Congress provided a statute of limitations for

CERCLA cost-recovery actions to promote timely

claims and accurate determinations, and to provide

finality to potentially responsible parties. It pursued

these purposes by requiring initial suits for remedial

costs to be filed within six years after the initiation of

physical on-site construction “consistent with permanent remedy.” It did not require comprehensiveness.

The Seventh Circuit erred by finding physical construction consistent with a permanent remedy not to

trigger the statute of limitations.

III. THIS CASE INVOLVES A RECURRING ISSUE OF NATIONAL IMPORTANCE AND IS

AN EXCELLENT VEHICLE TO RESOLVE

THE ACKNOWLEDGED SPLIT AMONG

THE COURTS OF APPEALS.

CERCLA applies nationwide, and the issue of what

activities trigger the start of CERCLA’s six-year statute of limitations for recovery of remediation costs

arises frequently, as evidenced by the multiple district court and court of appeals decisions addressing

the issue. E.g., Navistar, 152 F.3d 702; Neville, 358

F.3d 661; Schaefer, 457 F.3d 188; Valbruna, 934 F.3d

553; Raytheon Co., 334 F. Supp. 3d 519. This Court’s

guidance on this important question of statutory interpretation would provide much-needed national

uniformity.

This case is an excellent vehicle with which to resolve this question. The relevant facts are typical of

CERCLA cost-recovery actions. This case involves a

large industrial site that was in use for more than a

century with multiple owners. The facts concerning

16

who caused the contamination of the Site are not in

dispute, nor is there any dispute over the clean-up

work that was performed, when it was performed,

how it was performed, or by whom. The permanent

remedy that was constructed—a concrete cap and

groundwater monitoring system—is also a commonly

used method for the disposal and containment of contamination. State environmental enforcement agencies were involved as early as 1982 and at various

times reviewed and approved the remediation efforts

at the Site. As such, the instant case contains all of

the facts that are characteristic of those that were at

issue in the cases that have divided the circuits over

how to interpret CERCLA’s limitations period for

suits to recover remedial costs.

In addition, this Court now has the benefit of the

views of multiple courts of appeals. The Seventh Circuit’s published opinion squarely addresses the question, and published decisions from other circuits present opposing views with significant analysis.

A decision by this Court on this record will resolve

the circuit split and provide the certainty that is essential to the proper operation of the statute of limitations.

17

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

JOSHUA G. VINCENT

HINSHAW & CULBERTSON

151 N. Franklin St., #2500

Chicago, Illinois 60606

(312) 704-3463

STEPHEN D. DAVIS

STEVE DAVIS LAW, P.C.

1333 Burr Ridge Parkway

Burr Ridge Illinois 60527

(630) 756-3042

CARTER G. PHILLIPS *

TIMOTHY K. WEBSTER

JENNIFER J. CLARK

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

cphillips@sidley.com

Counsel for Petitioner

January 21, 2020

* Counsel of Record