Respondents Brief — APC Investment Co., et al., Petitioners v. Howmet Aerospace Inc., fka Arconic, Inc., et al.

No. 20-1337

IN THE

Supreme Court of the United States

_________________________________________________________________

APC INVESTMENT CO. ET AL.,

v.

Petitioners,

HOWMET AEROSPACE INC. ET AL.,

Respondents.

_________________________________________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_________________________________________________________________

BRIEF IN OPPOSITION

_________________________________________________________________

Nancy Sher Cohen

Ronald A. Valenzuela

LATHROP GPM LLP

2049 Century Park East

Suite 3500S

Los Angeles, CA 90067

(310) 789-4600

nancy.cohen@lathropgpm.com

E. Joshua Rosenkranz

Counsel of Record

Brian P. Goldman

Elizabeth R. Cruikshank

Karim J. Kentfield

ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5000

Counsel for Respondents jrosenkranz@orrick.com

Counsel for Respondents

Baxter Healthcare

Corporation, The Boeing

Company, and The Dow

Chemical Company

i

QUESTION PRESENTED

The Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 (CERCLA)

authorizes parties who have paid more than their fair

share to clean up a contaminated site to seek “contribution” from other liable parties. The statute authorizes two types of contribution claims, each with

distinct statutory requirements. The first allows parties to seek contribution during or following CERCLA

lawsuits against other potentially liable parties at the

site. See 42 U.S.C. § 9613(f)(1). The second allows parties to seek contribution after entering into certain

settlement agreements with the United States. See 42

U.S.C. § 9613(f)(3)(B).

In this case, the Ninth Circuit evaluated the timeliness of Respondents’ action under the first type of

CERCLA contribution claim (under subsection (f)(1)).

By contrast, in Guam v. United States, No. 20-382,

this Court is considering requirements unique to the

second type of contribution claim (under subsection

(f)(3)(B))—in particular, whether Guam’s settlement

with the United States under the Clean Water Act

“resolved [Guam’s] liability to the United States” for

“a response action.” 42 U.S.C. § 9613(f)(3)(B). That

critical language appears only in the provision governing the second type of CERCLA contribution

claim, not in the provision governing this case.

The question presented is:

Should the Court decline to hold this petition

pending its decision in Guam and deny certiorari

without regard to the outcome of Guam?

ii

PARTIES AND CORPORATE DISCLOSURE

STATEMENT

1. Respondent Arconic, Inc., formerly known as

Alcoa Inc., is now named H owmet Aerospace Inc. It

has no parent corporation, and no publicly held corporation owns ten percent (10%) or more of its stock. The

Vanguard Group, a privately owned investment management company, holds more than ten percent (10%)

of the outstanding shares in Howmet Aerospace Inc.

2. Respondent Applied Micro Circuits Corporation is now named MACOM Connectivity Solutions,

LLC, and is a wholly owned subsidiary of MACOM

Technology Solutions Inc., a Delaware corporation.

MACOM Technology Solutions Inc. is a wholly owned

subsidiary of MACOM Technology Solutions H oldings, Inc., a publicly traded Delaware corporation.

3. Respondent BASF Corporation is a wholly

owned subsidiary of BASF Americas Corporation.

BASF Americas Corporation is a wholly owned subsidiary of BASFIN Corporation. BASFIN Corporation

is a majority-owned subsidiary of BASF USA Holding

LLC, a Delaware limited liability company. BASF

USA H olding LLC is a wholly owned subsidiary of

BASF Nederland BV, a Dutch limited liability company. BASF Nederland BV is a wholly owned subsidiary of BASF SE (Societas Europaea), a publicly held

European company.

4. Respondent Baxter Healthcare Corporation is

a wholly owned subsidiary of Baxter International

Inc., a publicly held corporation.

iii

5. Respondent Cal-Tape & Label Co. has no parent corporation, and no publicly held corporation

owns ten percent (10%) or more of its stock.

6. Respondent California H ydroforming Company, Inc. has no parent corporation, and no publicly

held corporation owns ten percent (10%) or more of its

stock.

7. Respondent Cintas Corporation has no parent

corporation, and no publicly held corporation owns

ten percent (10%) or more of its stock.

8. Respondent Columbia Showcase & Cabinet

Company, Inc. has no parent corporation, and no publicly held corporation owns ten percent (10%) or more

of its stock.

9. Respondent Crosby & Overton, Inc. has no

parent corporation, and no publicly held corporation

owns ten percent (10%) or more of its stock.

10. Respondent Disney Enterprises, Inc. is a

wholly owned subsidiary of The Walt Disney Company, a publicly held corporation.

11. Respondent FHL Group has no parent corporation, and no publicly held corporation owns ten percent (10%) or more of its stock.

12. Exchange Building Corporation is the parent

corporation of Respondent Forenco, Inc. No publicly

held corporation owns ten percent (10%) or more of

Respondent Forenco, Inc.’s stock.

iv

13. Respondent General Dynamics Corporation

has no parent corporation, and no publicly held corporation owns ten percent (10%) or more of its stock.

14. Respondent Hercules, Inc. is now named Hercules LLC, reflecting its change from a stock corporation to a membership company. It is a wholly owned

subsidiary of Ashland Inc., a publicly held corporation.

15. Respondent Hexcel Corporation has no parent

corporation, and no publicly held corporation owns

ten percent (10%) or more of its stock.

16. Respondent Honeywell International Inc. is a

public company, and no publicly held corporation

owns ten percent (10%) or more of its stock.

17. Respondent International Paper Company

has no parent corporation, and no publicly held corporation owns ten percent (10%) or more of its stock.

18. Respondent Masco Corporation of Indiana

has been incorrectly identified. Its correct name is

Masco Building Products Corporation. It is a wholly

owned subsidiary of Masco Corp., a publicly traded

company.

19. Respondent Mattel, Inc. has no parent corporation, and no publicly held corporation owns ten percent (10%) or more of its stock.

20. Merck & Co., Inc. is the parent corporation of

Respondent Merck Sharp & Dohme Corp. No other

publicly held corporation owns ten percent (10%) or

v

more of Respondent Merck Sharpe & Dohme Corp.’s

stock.

21. Respondent Pilkington Group Limited, formerly known as Pilkington PLC, is an indirect wholly

owned subsidiary of Nippon Sheet Glass Co., Ltd., a

publicly traded company in Japan.

22. Respondent Quest Diagnostics Clinical Laboratories, Inc. is a wholly owned subsidiary of Quest

Diagnostics Holdings Incorporated, which is a subsidiary of Quest Diagnostics Incorporated, a publicly

held corporation.

23. Respondent Raytheon Company has no parent corporation, and no publicly held corporation

owns ten percent (10%) or more of its stock.

24. Respondent Safety-Kleen Systems, Inc. is a

wholly owned subsidiary of SK H olding Company,

Inc., which is a wholly owned subsidiary of SafetyKleen, Inc. Safety-Kleen, Inc. is a wholly owned subsidiary of Clean Harbors, Inc., a publicly traded company.

25. Brilliant National Services, Inc., a privately

held company, is the parent corporation of Respondent Soco West, Inc. No publicly held corporation owns

ten percent (10%) or more of its stock.

26. Respondent Sparton Technology, Inc. is a

wholly owned subsidiary of Sparton Corporation, a

publicly traded corporation.

27. Respondent The Boeing Company has no parent corporation. As of May 12, 2021, no corporation

vi

had filed a Schedule 13G with the U.S. Securities and

Exchange Commission disclosing ownership of ten

percent (10%) or more of the stock of Respondent The

Boeing Company.

28. Respondent The Dow Chemical Company is a

wholly owned subsidiary of Dow Inc., a publicly

traded company.

29. Respondent TriMas Corporation has no parent corporation, and no publicly held corporation

owns ten percent (10%) or more of its stock. The Wellington Management Group, a privately owned investment management company, holds more than ten

percent (10%) of the outstanding shares in TriMas

Corporation.

30. Respondent Univar USA Inc. is now named

Univar Solutions USA Inc., and is a wholly owned

subsidiary of Univar, Inc. No publicly held corporation owns ten percent (10%) or more of Univar Inc.

vii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................ i

PARTIES AND CORPORATE DISCLOSURE

STATEMENT ..................................................... ii

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

OPINIONS BELOW .................................................. 1

JURISDICTION ........................................................ 1

INTRODUCTION ..................................................... 1

STATEMENT OF THE CASE .................................. 3

REASONS FOR DENYING CERTIORARI ........... 11

I.

Holding This Petition For Guam Is

Unwarranted Because This Case Presents

Different Questions On Different Facts

Concerning Different Statutory

Provisions.......................................................... 12

A. Neither question presented in Guam is

relevant to this case. ................................... 13

B. Petitioners’ assertion of a thematic

tension with the D.C. Circuit’s Guam

decision is meritless. ................................... 16

II. The Decision Below Is Correct. ........................ 21

CONCLUSION ........................................................ 26

viii

TABLE OF AUTHORITIES

Page(s)

Cases

Am. Cyanamid Co. v. Capuano,

381 F.3d 6 (1st Cir. 2004) ....................................22

ASARCO, LLC v. Celanese Chem. Co.,

792 F.3d 1203 (9th Cir. 2015)........................22, 24

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

United States,

556 U.S. 599 (2009) ................................................3

Cooper Indus., Inc. v. Aviall Servs., Inc.,

543 U.S. 157 (2004) ............................................4, 5

Gov’t of Guam v. United States,

950 F.3d 104 (D.C. Cir. 2020) ........................18, 19

Green v. Brennan,

136 S. Ct. 1769 (2016)..........................................10

Pennsylvania v. Union Gas Co.,

491 U.S. 1 (1989) ....................................................3

RSR Corp. v. Com. Metals Co.,

496 F.3d 552 (6th Cir. 2007)................................22

Sekhar v. United States,

570 U.S. 729 (2013) ..............................................17

Shaw v. R.R. Co.,

101 U.S. 557 (1879) ..............................................20

ix

United States v. Atl. Research Corp.,

551 U.S. 128 (2007) ...................... 4, 5, 9, 17, 18, 23

Whittaker Corp. v. United States,

825 F.3d 1002 (9th Cir. 2016)..............................22

Statutes

28 U.S.C. § 1254(1)......................................................1

42 U.S.C. § 9601, Pub. L. No. 96-510, 94

Stat. 2767 (1980) ....................................................3

42 U.S.C. § 9601(25) ....................................................3

42 U.S.C. § 9606 ........................ 3, 4, 6, 7, 8, 10, 15, 24

42 U.S.C. § 9607 .................................... 3, 4, 6, 7, 8, 10

42 U.S.C. § 9607(a)............................ 3, 4, 7, 14, 15, 24

42 U.S.C. § 9607(a)(1) .............................................4, 6

42 U.S.C. § 9607(a)(2) .............................................4, 6

42 U.S.C. § 9607(a)(3) .............................................4, 6

42 U.S.C. § 9607(a)(4) .............................................4, 6

42 U.S.C. § 9607(a)(4)(B) ........................................4, 5

42 U.S.C. § 9613 .................................. 1, 12, 16, 19, 20

42 U.S.C. § 9613(f) .................... 5, 9, 14, 17, 19, 23, 24

42 U.S.C. § 9613(f)(1) ........................................ passim

x

42 U.S.C. § 9613(f)(3)(B) .................. 1, 4, 5, 11, 13, 14,

15, 16, 18, 19, 20

42 U.S.C. § 9613(f)(3)(C) ...........................................20

42 U.S.C. § 9613(g)(3) ......... 3, 5, 10, 12, 21, 22, 23, 25

42 U.S.C. § 9613(g)(3)(B) ......................................9, 23

42 U.S.C. § 9622(g)(1)(A) ............................................7

Rules

Fed. R. App. P. 28(j) ..................................................11

Fed. R. Civ. P. 54(b) ..................................................26

Other Authorities

Black’s Law Dictionary (8th ed. 2004) .....................23

Black’s Law Dictionary (11th ed. 2019) ...................18

H.R. Rep. No. 99-253, pt. 1 (1985) ............................24

Office of Solid Waste & Emergency Response Directive No. 9834.7-1C, Methodology for Early

De Minimis Waste Contributor Settlements

Under CERCLA Section 122(g)(1)(A) (1992).......25

Restatement (Second) of Torts (1979) ......................23

Restatement (Third) of Torts (2000).........................23

1

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 123) is reported at 969 F.3d 945. The opinion of the district court (Pet. App. 24-73) is unreported.

JURISDICTION

The judgment of the court of appeals was entered

on August 10, 2020. A petition for rehearing was denied on October 21, 2020 (Pet. App. 76). The petition

for writ of certiorari was filed on March 22, 2021. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

INTRODUCTION

Petitioners urge this Court to hold their petition

pending disposition of Guam v. United States, No. 20382. But Guam has nothing to do with this case.

The only way Petitioners can even suggest a connection between this case and Guam is by misstating

the questions at issue. Petitioners frame the question

in both cases as whether “the statutory claim for contribution in section 113 of CERCLA … [is] governed

exclusively by the statute’s text without reference to

‘common law’ or other non-CERCLA principles of contribution.” Pet. i. That is not the question presented

in Guam. Guam raises two interpretive questions

about specific words in the provision governing a

claim for contribution under CERCLA § 113(f)(3)(B).

This case, by contrast, analyzed a different contribution cause of action, CERCLA § 113(f)(1), and raises

different questions of interpretation. The critical

2

language this Court is parsing in Guam does not even

appear in the provision that governs this case.

Moreover, this Court has no reason to “consider

and decide” in Guam whether common law principles

inform the interpretation of CERCLA’s contribution

provisions as a general matter, Pet. i, because, as both

parties in Guam agree, this Court has already resolved that question: CERLCA does incorporate the

common law understanding of contribution. The D.C.

Circuit’s opinion in Guam likewise looked to the common law in construing the contribution provision at

issue there.

The Ninth Circuit did the same in construing the

distinct contribution provision at issue here. Far from

“reject[ing]” the statutory text, Pet. 14, the court of

appeals started with, and focused intensely on, the

text. A key word in the text is “contribution,” and so,

as one part of its analysis, the court of appeals followed this Court’s direction and invoked common law

to inform what that word means.

Guam is so irrelevant to this case that the Ninth

Circuit did not even comment on the D.C. Circuit’s

analysis. Nor did Guam’s petition for certiorari even

cite the decision in this case, much less feature it as a

basis for finding a circuit conflict. And, as if to confirm

the harmony between the two opinions, the same Government that defends the D.C. Circuit’s opinion in

Guam also filed a brief as amicus curiae advocating

the result and analysis the Ninth Circuit reached in

this case.

3

The Ninth Circuit’s decision was a factbound

holding on the timeliness of a particular contribution

action based on a correct interpretation of CERCLA

§ 113(f)(1) and (g)(3). Petitioners’ effort to hitch their

case to Guam should fail. This Court should reject Petitioners’ request to hold the case and deny the petition outright.

STATEMENT OF THE CASE

1. Congress enacted CERCLA to address the serious environmental and health risks posed by properties contaminated with hazardous substances. 42

U.S.C. § 9601, Pub. L. No. 96-510, 94 Stat. 2767

(1980). CERCLA “provides a mechanism for cleaning

up hazardous-waste sites, and imposes the costs of

the cleanup on those responsible for the contamination.” Pennsylvania v. Union Gas Co., 491 U.S. 1, 7

(1989) (citations omitted).

CERCLA offers EPA two mechanisms for holding

parties responsible for an environmental “response,”

defined as an action to “remove, … remedy, and remedia[te]” contamination. 42 U.S.C. § 9601(25). One option is for EPA to undertake the response itself and

then, under CERCLA § 107, recover “all costs of removal or remedial action” from the responsible parties. 42 U.S.C. § 9607(a); see Burlington N. & Santa

Fe Ry. Co. v. United States, 556 U.S. 599, 609 (2009).

Alternatively, EPA may order a responsible party to

undertake the response itself under EPA supervision,

pursuant to CERCLA § 106. See 42 U.S.C. § 9606. Under either avenue, liability under CERCLA is joint

and several: The Government can recover its response

costs from any “covered person,” commonly referred to

4

as “potentially responsible parties,” id. § 9607(a)(1)(4), or order any potentially responsible party to take

response actions directly, id. § 9606.

When joint and several liability would otherwise

require a party to incur a disproportionate share of

cleanup costs, CERCLA offers several routes for “private parties to recoup [those] costs” from others.

Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157,

163 n.3 (2004). The first, CERCLA § 107, applies to “a

private party that has itself incurred cleanup costs,”

such as a party who has voluntarily begun cleaning

up a site. United States v. Atl. Research Corp., 551

U.S. 128, 139 (2007). Section 107(a) allows such parties “to recover costs from other [potentially responsible parties].” Id. at 141; see 42 U.S.C. § 9607(a)(4)(B).

The second route allows parties to seek contribution for cleanup costs imposed on them through litigation or settlement. In that circumstance, defendants

held liable for more than their fair share in an initial

litigation or settlement may seek “contribution” from

others responsible for the contamination. CERCLA

§ 113(f)(1) provides that “[a]ny person may seek contribution from any other person who is liable or potentially liable under section [107(a)] …, during or

following any civil action under” § 106 or § 107(a). 42

U.S.C. § 9613(f)(1).

A separate contribution remedy applies to those

private parties who incurred their liability in a settlement with the federal Government or a State. Under

§ 113(f)(3)(B), a “person who has resolved its liability

to the United States or a State” in “an administrative

or judicially approved settlement” may also bring a

5

contribution action against a non-party to that settlement. 42 U.S.C. § 9613(f)(3)(B).

The “cost recovery remedy of § 107(a)(4)(B) and

the contribution remedy of § 113(f)(1) are similar at a

general level in that they both allow private parties to

recoup costs from other private parties,” but the “two

remedies are clearly distinct.” Cooper Indus., 543 U.S.

at 163 n.3. The remedies “complement each other by

providing causes of action to persons in different procedural circumstances.” Atl. Research, 551 U.S. at 139

(internal quotation marks omitted).

Section § 113(f) contribution claims are subject to

a three-year statute of limitations. Section 113(g)(3)

provides: “No action for contribution for any response

costs or damages may be commenced more than 3

years after … (A) the date of judgment in any action … for recovery of such costs or damages, or (B)

the date of … entry of a judicially approved settlement

with respect to such costs or damages.” 42 U.S.C.

§ 9613(g)(3).

2. In the mid-1990s, EPA discovered that a waste

recycling plant in California operated by the Omega

Chemical Corporation had been mishandling toxic

chemicals sent to it for processing for years, “severely

contaminating nearby soil and groundwater.” Pet.

App. 5. Further study revealed that Omega was only

one of several contributors to a large plume of contamination spanning at least four miles. Pet. App. 7.

EPA set about developing a plan for cleaning up

the Superfund site, dividing it into discrete, incremental phases called “operable units.” Pet. App. 5.

6

EPA started its cleanup efforts by addressing the soil

and groundwater contamination in the very small

area at and immediately surrounding the Omega facility, which it designated “Operable Unit 1” (OU-1).

Pet. App. 5-6.

3. Respondents are a subset of the thousands of

customers who had trusted Omega to properly dispose

of their chemicals, and thus were potentially liable for

the contamination Omega caused. They were potentially responsible for the cleanup of OU-1 because

CERCLA imposes strict liability for cleanup costs not

only on owners or operators of facilities that directly

release hazardous substances (like Omega), but also

on any entity that merely sent hazardous substances

to those facilities for disposal or treatment (like Respondents). 42 U.S.C. § 9607(a)(1)-(4).

Respondents banded together with a handful of

other Omega customers to form the Omega Chemical

Potentially Responsible Parties Organized Group

(OPOG). Pet. App. 5. EPA and OPOG negotiated the

cleanup of OU-1, ultimately agreeing that OPOG

would lead the remedial efforts under EPA oversight.

Pet. App. 5. Once the parties had reached a consent

decree covering OU-1, the United States formally

filed an action against OPOG under CERCLA § 106

and § 107 and simultaneously lodged the proposed

consent decree with the district court for judicial approval. Pet. App. 5-6. The cleanup work mandated by

the OU-1 consent decree focused almost entirely on

efforts to contain groundwater contamination at the

Omega facility and prevent it from spreading beyond

OU-1’s boundary. Pet. App. 6.

7

Having both been sued by the United States under CERCLA § 106 and § 107 and incurred response

costs in the consent decree, OPOG’s next step was to

sue under CERCLA § 107(a) and § 113(f)(1) to recover

its excess costs from over a hundred other Omega customers who had also sent hazardous substances to

Omega but had refused to participate in the OU-1

cleanup. Pet. App. 6. EPA designated many of the defendants in those suits “de minimis defendants” because their contribution to the contamination was

comparatively small in amount and effect. Pet. App.

6; see 42 U.S.C. § 9622(g)(1)(A). Because these actions

were focused on OU-1, they did not target Petitioners

in this case—Omega’s neighbors, who contributed to

pollution along the large plume outside of OU-1.

OPOG and the de minimis defendants reached a

judicially approved settlement in 2007. Pet. App. 6. In

keeping with their minimal liability, the de minimis

defendants paid OPOG $1.7 million to settle OPOG’s

claims for OU-1.

Meanwhile, after finalizing the OU-1 consent decree, EPA turned its attention to Operable Unit 2

(OU-2), its name for the effort to address the groundwater contamination in the broader Superfund site.

Pet. App. 7. OU-2 covered not just contamination that

had migrated from the Omega facility itself, but also

significant amounts of contamination that other properties within the region had released. Pet. App. 7. After years of study, EPA announced its OU-2

remediation plan in 2011. Pet. App. 7.

OPOG promptly began OU-2 response work. Petitioners, by contrast, refused to work with EPA or

8

OPOG to fund or participate in the OU-2 work. By

2014, OPOG had already incurred considerable OU-2

costs. So it sued Petitioners under CERCLA § 107,

which allows a party who has undertaken voluntary

remedial action to seek “cost recovery” from others.

Pet. App. 8.

After EPA determined that OPOG members were

potentially responsible parties for OU-2, OPOG and

EPA crafted a consent decree in 2016 covering a significant portion of the cleanup work required for OU2. Pet. App. 7. Once the deal was struck, the Government again filed an action against OPOG under CERCLA § 107 and simultaneously lodged the proposed

consent decree with the district court for judicial approval. Pet. App. 7. The district court approved the

OU-2 consent decree in March 2017. Pet. App. 7.

After the Government filed its complaint in April

2016, OPOG amended its complaint against Petitioners to drop its cost-recovery claim and to substitute a

contribution claim, because it was now subject to a

suit under § 106 or § 107 for OU-2, and thus eligible

to assert a contribution claim for OU-2. Pet. App. 8.

In this case, OPOG seeks contribution for the $16.5

million it has already spent on response work in OU2 and for the tens of millions more it expects to incur

as the cleanup continues over the next 30-plus years.

4. Petitioners here are among the defendants in

that contribution action. They sought summary judgment, arguing that OPOG’s 2007 settlement agreement with the de minimis defendants (concerning

OU-1) triggered the three-year statute of limitations

for any contribution action OPOG might ever bring

9

against anyone related to any part of the Superfund

site. After issuing two tentative orders initially rejecting Petitioners’ arguments, Pet. App. 25 n.1, the district court reversed course, accepting Petitioners’

statute of limitations argument and granting them

summary judgment, Pet. App. 24-73.

The court determined that the costs OPOG seeks

here are the same as those “covered in” the 2007 settlement agreement and therefore held that this suit

was time-barred because it sought “response costs or

damages” more than “3 years after … the date of …

entry of a judicially approved settlement with respect

to such costs or damages,” 42 U.S.C. § 9613(g)(3)(B).

Pet. App. 58-73.

5. Respondents appealed, supported by amicus

briefs from the United States and the California Department of Toxic Substances Control. The court of

appeals unanimously reversed. Pet. App. 1-23.

“Starting … with the statute’s text,” the court explained that it found “the limitations provision’s applicability to claims for ‘contribution’ largely

dispositive.” Pet. App. 11. Following this Court’s guidance in Atlantic Research that “[n]othing in § 113(f)

suggests that Congress used … ‘contribution’ in anything other than [its] traditional sense,” the Ninth

Circuit reiterated that the term “refers to the ‘tortfeasor’s right to collect from others responsible for the

same tort after the tortfeasor has paid more than his

or her proportionate share.’” Pet. App. 11 (quoting Atl.

Research, 551 U.S. at 138) (alterations in original).

10

Based on the plain text of § 113(g)(3), which provides that the limitations period is triggered by a “settlement with respect to such costs,” the Ninth Circuit

held that a settlement “starts the limitations period

on a § 113(f)(1) claim for response costs only if it imposed those costs and serves as the basis for seeking

contribution.” Pet. App. 12-13. The court noted that,

in this action, Respondents “seek[] the [Petitioners’]

share of the liability [Respondents] assumed in the

2017 OU-2 consent decree”—so it is that consent decree, and not the 2007 settlement agreement, that

triggered the statute of limitations on Respondents’

contribution claim. Pet. App. 13. The 2007 settlement

agreement did not “address those costs,” “resolve[] …

who would pay for OU-2’s remediation nor what that

effort would entail,” “impose on [Respondents] any response costs or remedial obligations,” or “extinguish

[Respondents’] and [Petitioners’] common liability to

the United States for OU-2.” Pet. App. 13. Accordingly, that earlier agreement “did not start the limitations period.” Pet. App. 13.

The court of appeals was unpersuaded by Petitioners’ arguments to the contrary. The court rejected

Petitioners’ “capacious” reading in which “the limitations period” for a § 113(f)(1) contribution claim “could

expire prior to the filing of a § 106 or § 107 claim” that

would give rise to the contribution claim. Pet. App. 1415. The court explained that such a “nonsensical” interpretation would “contravene[] not only the central

tenet of common-law contribution, but also the ‘standard rule’ that a limitations period does not run—let

alone expire—before a party can assert the associated

claim.” Pet. App. 14-16 (quoting Green v. Brennan,

136 S. Ct. 1769, 1776 (2016)). The court concluded

11

that “CERCLA’s symmetrical scheme for pursuing

contribution claims,” precedent from this Court and

the Ninth Circuit, the legislative history, and CERCLA’s remedial objectives all supported its interpretation of the plain statutory text. Pet. App. 16-21.

The Ninth Circuit denied rehearing and rehearing en banc, with no judge calling for a vote on the

petition. Pet. App. 76.

REASONS FOR DENYING CERTIORARI

Petitioners’ main contention (Pet. i, 7-8) is that

this Court should hold their petition pending disposition of Guam v. United States. A hold is unwarranted,

however, because nothing this Court says in Guam

will have any bearing on this case.

The only similarity between the cases is that both

relate to the timeliness of CERCLA contribution

claims. But the questions of statutory interpretation

are entirely different. Guam raises two interpretive

questions about specific words in the provision governing a claim under CERCLA § 113(f)(3)(B). This

case, by contrast, analyzed a different contribution

cause of action, CERCLA § 113(f)(1), raising different

questions of interpretation. That is why the Ninth

Circuit did not even cite—much less dispute—the

D.C. Circuit’s analysis in Guam, even though Petitioners cited that decision to the court below in two

separate Fed. R. App. P. 28(j) letters shortly after oral

argument. That is why Guam’s petition for certiorari

did not cite the decision in this case as part of any

conflict among the courts of appeals, even though the

decision below was issued over a month before

12

Guam’s petition. And that is why the United States

went out of its way to file an amicus brief supporting

Respondents here (the contribution plaintiffs) even as

it appeared as the defendant in a contribution action

in Guam.

Petitioners do not otherwise contend that the decision below conflicts with any decision of this Court

or any court of appeals. The court of appeals correctly

applied CERCLA § 113(f)(1) and (g)(3) to the specific

sequence of litigations at issue here. That factbound

holding does not warrant review.

I.

Holding This Petition For Guam Is

U nwarranted Because This Case Presents

Different Questions On Different Facts

Concerning Different Statutory Provisions.

The first indication that something is terribly

amiss with Petitioners’ portrayal of a connection between Guam and this case comes on page i, where Petitioners resort to misstating the question presented

in Guam, as follows:

Is the statutory claim for contribution in section 113 of CERCLA … governed exclusively

by the statute’s text without reference to

“common law” or other non-CERCLA principles of contribution?

Pet. i. That is not even close to the question presented

in Guam. Nor does it remotely capture what the court

of appeals decided here.

13

The dispute in Guam concerns whether, in a settlement between the United States and Guam under

the Clean Water Act, Guam accrued a contribution

claim against the United States under CERCLA

§ 113(f)(3)(B). The two questions presented in Guam

revolve around the meaning of the italicized words of

§ 113(f)(3)(B), which provides that a contribution

claim accrues only to:

[a] person who has resolved its liability to the

United States or a State for some or all of a

response action or for some or all of the costs

of such action in an administrative or judicially approved settlement.

42 U.S.C. § 9613(f)(3)(B) (emphasis added). Those

words are not in the statutory provision at issue here

and those questions bear no relation to any question

the court of appeals resolved below. So Guam, regardless of its outcome, will not affect this case. We address first the actual questions presented in Guam

and then turn to Petitioners’ assertion of a thematic

inconsistency between the D.C. Circuit’s opinion in

Guam and the opinion below.

A. Neither question presented in Guam is

relevant to this case.

1. The first question presented in Guam is

whether Guam accrued a § 113(f)(3)(B) contribution

claim when it entered into “a non-CERCLA settlement” (specifically, a settlement that resolved claims

brought under the Clean Water Act). Guam Petr. Br.

ii. That question is irrelevant here.

14

At the most basic level, the key factual predicate

is absent here, because the settlement that Petitioners say triggered Respondents’ contribution claim in

this case resolved claims under CERCLA itself. See

supra at 7 (the 2007 settlement agreement arose from

Respondents’ CERCLA § 107(a) and § 113(f) suit).

As important, the statutory language that resolves the question in Guam is not at issue here. Petitioners assert that Respondents accrued a

§ 113(f)(1) contribution claim in 2007 when they settled with the de minimis defendants. So the only contribution provision in dispute here is CERCLA

§ 113(f)(1)—not § 113(f)(3)(B), as in Guam, because

the 2007 settlement did not involve any government

counterparty. But nothing in § 113(f)(1) asks whether

a party has “resolved its liability to the United States

… for some or all of a response action.” That language

appears only in § 113(f)(3)(B). The parties in Guam

are debating what kind of “liability” must be resolved

under § 113(f)(3)(B): liability in a suit under CERCLA

itself (Guam’s position), or liability that merely obligates the settling party to perform cleanup activities

falling within CERCLA’s ambit (the United States’

view). Whatever the answer to that question, it will

not impact the analysis of claims under a statute that

does not contain that requirement.

Indeed, both sides in Guam agree that a contribution claim under § 113(f)(1) (the type of claim at issue

here) arises only from a lawsuit under CERCLA.

Compare Guam Petr. Br. 14, with U.S. Br. 27. That

much is clear from § 113(f)(1)’s plain text, which authorizes a contribution claim only “during or following

any civil action under [CERCLA § 106] or under

15

[CERCLA § 107(a)]”). 42 U.S.C. § 9613(f)(1). So,

whether the same is true of § 113(f)(3)(B), or whether

that provision is broader in scope, would not affect

this case.

2. The second question presented in Guam is

equally irrelevant here. It asks whether Guam actually “resolved its liability to the United States” when

it included several caveats in its settlement of the

Government’s suit against it: Guam disclaimed any

admission of liability; the United States reserved certain rights to sue Guam in the future; and the settlement’s liability release was contingent on Guam’s

performance under the agreement. See Guam Petr.

Br. 41-43. But none of those features is present here,

and so this Court’s evaluation of their legal effect will

be immaterial to this case.

Indeed, resolution of the second question presented in Guam will have no bearing on the proper

interpretation of § 113(f)(1). Once again, the question

focuses on contribution claims under a different statutory provision—§ 113(f)(3)(B). It involves the same

disputed phrase (“resolved its liability”) that appears

only in § 113(f)(3)(B)—not in § 113(f)(1). And the 2007

settlement that Petitioners say triggered the limitations period on Respondents’ § 113(f)(1) contribution

claim was not one in which Respondents “resolved

[their] liability” at all: Respondents were the plaintiffs

in that action, suing the de minimis defendants for

contribution. See supra at 7.

Accordingly, whether or not Guam’s resolution of

liability against it as a defendant immediately gave

rise to a § 113(f)(3)(B) contribution claim,

16

notwithstanding the settlement features Guam

points to, would not affect the court of appeals’ conclusion here that Respondents did not accrue a

§ 113(f)(1) contribution claim when they settled a case

against third parties that they had brought years earlier.

B. Petitioners’ assertion of a thematic

tension with the D.C. Circuit’s Guam

decision is meritless.

Despite the stark differences between the two

cases, Petitioners assert a sort of thematic tension.

They build their petition around the claim that “this

case and Guam present the same issue—what controls the application of section 113: the text or ‘traditional contribution principles’?” Pet. 8 (header

formatting omitted). Petitioners assert that the court

of appeals below chose an “atextual” approach, in contrast to the D.C. Circuit’s textual approach in Guam.

Pet. 17. That is a grotesquely inaccurate portrayal of

the opinion below, the D.C. Circuit’s opinion in Guam,

and the arguments before this Court in Guam. Even

if this Court were to affirm the D.C. Circuit’s decision

that Petitioners paint as contrary, it would not affect

this case.

1. As to the opinion below, at no point did the

court of appeals say—or even suggest—that “atextual

principles trump CERCLA’s directives,” Pet. 17, or

that “federal courts are free to rewrite section 113

based on” common law principles, Pet. 11. The first

words of the court’s analysis were: “Starting, as we

must, with the statute’s text …” Pet. App. 11. The

court focused on the meaning of the word

17

“contribution,” which is not defined in the statute.

Pet. App. 11-12. It wrestled with the phrase “settlement with respect to such costs.” Pet. App. 12-13 (emphasis added). It addressed Petitioners’ parsing of

“with respect to,” noting that one problem with their

reading was that “we construe statutory language in

context.” Pet. App. 14. It noted the absurd results that

would arise from Petitioners’ “broad construction of

‘settlement’ and ‘costs,’” choosing what it considered

“[t]he better reading.” Pet. App. 15, 17. It “construe[d]

‘judicially approved settlements.’” Pet. App. 17 n.5.

There was nothing atextual about this careful dissection of the statutory text.

The only basis on which Petitioners contend that

the court of appeals elevated common law over text

was a passage addressing the meaning of the word

“contribution.” Petitioners fault the court of appeals

for giving this undefined word its ordinary legal

meaning based on its “common law” roots. Pet. 10-11.

But the court was not citing “‘basic precepts of common law contribution’ as the basis for not enforcing

the natural meaning of CERCLA’s text.” Pet. 7. It was

following this Court’s “settled principle of interpretation that … Congress intends to incorporate the wellsettled meaning of the common-law terms it uses” unless it indicates otherwise. Sekhar v. United States,

570 U.S. 729, 732 (2013) (internal quotation marks

omitted). Indeed, the court of appeals was following

this Court’s own application of that principle to this

very word in this very statute: “Nothing in § 113(f)

suggests that Congress used the term ‘contribution’ in

anything other than this traditional sense.” Atl. Research, 551 U.S. at 138.

18

2. More to the point, there is simply no conflict

between the decision below and the D.C. Circuit’s decision in Guam. To start, the D.C. Circuit expressly

agreed with existing Ninth Circuit precedent holding

that “[a]t common law, tortfeasors … were typically

entitled to ‘contribution.’” Gov’t of Guam v. United

States, 950 F.3d 104, 107 (D.C. Cir. 2020). Contra Pet.

10-11 (denying that a common law of contribution exists). And the D.C. Circuit’s description of that common-law right of contribution—a “‘right to collect

from joint tortfeasors when, and to the extent that,

the tortfeasor has paid more than his or her proportionate share to the injured party,’” Guam, 950 F.3d

at 107 (quoting Black’s Law Dictionary (11th ed.

2019))—is exactly the same as the decision below. See

Pet. App. 11 (in its “‘traditional sense,’ the term [contribution] refers to the ‘tortfeasor’s right to collect

from others responsible for the same tort after the

tortfeasor has paid more than his or her proportionate

share’” (quoting Atl. Research, 551 U.S. at 138)). The

decision below may have said more about the common-law roots of contribution claims than the D.C.

Circuit did. But both understand CERCLA contribution claims to work the same way.

Nothing about the D.C. Circuit’s opinion presented a “disagreement … about the primacy of CERCLA’s text.” Pet. 2. The D.C. Circuit looked to the

“ordinary meaning” of the phrase “resolved its liability,” Guam, 950 F.3d at 115, in the very same way

that the opinion below addressed the traditional

meaning of “contribution.” And it was the D.C. Circuit—not the court of appeals below—that explicitly

said that it would not “read” § 113(f)(3)(B) “literally,”

as that “could create non-sensical results.” Guam, 950

19

F.3d at 112. So Petitioners are simply wrong that the

court below considered CERCLA’s “context” in construing the statute, while the D.C. Circuit eschewed

context in favor of “the text of 113” to resolve the questions before it. Pet. 6, 9. Both did exactly what Petitioners concede is appropriate: They read § 113 “in a

fashion that recognizes and combines the various

unique moving parts of CERCLA in a specific and easily applied manner.” Pet. 13.

3. The petition also contorts what the parties are

arguing to this Court in Guam. Contrary to Petitioners’ portrayal of the question presented in Guam

(quoted above, at 12), the parties there are not disputing what the term “contribution” means in CERCLA.

To the contrary, everyone in Guam agrees that Congress used the word “contribution” in its traditional

sense; neither party is asking the Court to adopt Petitioners’ interpretation. And both parties in Guam,

like the D.C. Circuit, flatly reject Petitioners’ assertion here that “[n]o ‘traditional principles’ of contribution exist, nor is there a ‘common law’ of contribution.”

Pet. 10.

On one side of the case is Guam, which asserts

that “[c]ontribution is a longstanding and familiar legal term,” and “Congress used the term in its traditional sense in Section 113(f).” Guam Petr. Br. 21

(internal quotation marks omitted); see also Guam

Petr. Br. 34-35 (the United States’ position would “upend[] the traditional understanding of contribution

animating Section 113(f)(3)(B), which … requires the

resolution of a common liability”); Guam Petr. Br. 39,

40; Guam Reply Br. 9-11, 16. At no point, however,

does Guam make the assertion that Petitioners

20

attribute to it: “that ‘traditional contribution principles’ override the text of section 113.” Pet. 7. Rather,

Guam acknowledges that the text controls. E.g.,

Guam Petr. Br. 16 (“The text of Section 113(f)(3)(B) …

compels the conclusion that Section 113(f)(3)(B) requires the resolution of CERCLA liability.”).

There is no dispute from the other side about

these basic principles. The Government—the defendant in the contribution action, defending the D.C. Circuit’s holding—explains that the substantive rules

that govern contribution should “be read to reflect”

the “background law of contribution”—“not to depart

from it.” Guam U.S. Br. 37; see id. (“A statute ‘is not

to be construed as making any innovation upon the

common law which it does not fairly express.’” (quoting Shaw v. R.R. Co., 101 U.S. 557, 565 (1879))); see

also Guam U.S. Br. 2, 28-30, 39. And it explains that,

by specifying that contribution claims “shall be governed by Federal law,” 42 U.S.C. § 9613(f)(1), (f)(3)(C),

CERCLA specifically “authoriz[es] the federal courts

to develop the applicable substantive rules [for contribution claims] as a matter of federal common law.”

Guam U.S. Br. 4; see also id. at 25.

Put simply, the dispute between the parties in

Guam is not over whether common law is relevant in

interpreting CERCLA’s text; everyone agrees it is.

And the dispute is not over whether common law

trumps text; everyone agrees it does not. The dispute

is over how those common law principles affect

Guam’s claim.

The briefing aside, there is another strong indication that Petitioners are wrong in asserting that

21

ruling against the Government in Guam will undermine the result in this case: The Government was defending against Guam’s contribution claim at the very

same time that it supported Respondents’ position in

the court of appeals here. And here, too, the Government rejected the position Petitioners are now pressing (and mistakenly attributing to the D.C. Circuit).

The Government insisted that “[t]raditional commonlaw notions of contribution confirm that OPOG’s OU2 contribution claims were not triggered by the 2007

settlement.” U.S. Amicus Br. *14, Arconic Inc. v. APC

Investment Co., No. 19-55181, 2019 WL 3430370 (9th

Cir. July 22, 2019).

For all these reasons, there is no possibility that

this Court’s decision in Guam will cast any doubt on

the court of appeals’ conclusion below—and certainly

not on the basis Petitioners assert.

II. The Decision Below Is Correct.

The court of appeals correctly held that a settlement “starts the limitations period on a § 113(f)(1)

claim for response costs only if it imposed those costs

and serves as the basis for seeking contribution.” Pet.

App. 12-13. This conclusion flows from the plain text

of the statute, the traditional operation of a contribution claim, this Court’s precedent, and the structure

and purpose of CERCLA. And because no court of appeals has held to the contrary, this Court’s review is

unwarranted.

1. Under CERCLA § 113(g)(3), a contribution action “for any response costs or damages” may not be

commenced more than three years after the date of

22

“entry of a judicially approved settlement with respect

to such costs or damages.” 42 U.S.C. § 9613(g)(3) (emphasis added). The key legal holding of the court of

appeals in this case is that the italicized words mean

that only a “contribution claim for particular remedial

costs is subject to a three-year statute of limitations,”

and the limitations period applies only “once liability

[for those particular costs] … becomes recognized

through a judicially approved settlement.” ASARCO,

LLC v. Celanese Chem. Co., 792 F.3d 1203, 1208 (9th

Cir. 2015) (emphasis added). The phrase “such costs”

means that the limitations period triggered by a judicially approved settlement runs only for the “costs”

imposed by that settlement. Conversely, there “is no

limit in the statute to prevent a party in an early settlement from seeking contribution related to a later

settlement, as long as those settlements cover separate obligations.” Whittaker Corp. v. United States,

825 F.3d 1002, 1011 (9th Cir. 2016) (quoting Celanese,

792 F.3d at 1215) (concluding that a party’s right to

contribution extends only to the party’s expenses that

were at issue in the triggering litigation or settlement).

Every circuit to address the question agrees with

this holding. See Am. Cyanamid Co. v. Capuano, 381

F.3d 6, 13 (1st Cir. 2004) (reasoning that the phrase

“such costs or damages” “identifies a particular claim

or payment” and limits only the time period in which

to recover costs that were actually incurred in a prior

judgment or settlement, not for “any response costs or

damages that could arise in the future”); RSR Corp.

v. Com. Metals Co., 496 F.3d 552, 559 (6th Cir. 2007)

(“[W]e likewise construe ‘such costs or damages’ in

23

§ 113(g)(3)(B) to refer only to those ‘costs or damages’

imposed by the judicially approved settlement.”).

Traditional requirements of a contribution action

confirm this interpretation. For the reasons already

discussed (at 16-21), the court of appeals was correct

in concluding that Congress used the word “contribution” in § 113(f) to capture its “traditional” meaning:

a “tortfeasor’s right to collect from others responsible

for the same tort after the tortfeasor has paid more

than his or her proportionate share” of a “common liability.” Atl. Research, 551 U.S. at 138-39 (quoting

Black’s Law Dictionary 353 (8th ed. 2004)); see Restatement (Second) of Torts § 886A (1979). A person

seeking contribution must first “extinguish the liability of the person against whom contribution is sought

for that portion of liability.” Restatement (Third) of

Torts § 23 cmt. b (2000).

It is only after a party has extinguished a common

liability owed to a third party that it can seek contribution from all other parties who should share in that

common liability; and the contribution plaintiff may

seek only “that portion of liability” it singlehandedly

satisfied in the earlier action. Id. It follows that when

§ 113(g)(3) refers to the limitations period for a contribution action being triggered by an earlier settlement, that limitations period extends only to the

liability extinguished in the settlement and thus eligible to be pursued via contribution—that is, the

“such costs” imposed by the agreement. And because

the costs for which Respondents seek contribution

here arose in 2017—not from the 2007 settlement

agreement that Petitioners point to—the statute of

24

limitations did not begin to run until 2017, and thus

Respondents’ claim was timely. Pet. App. 11-22.

2. The court of appeals was also correct in explaining that this interpretation is consistent with CERCLA’s structure and purpose. Pet. App. 16-17, 19-21.

Under “CERCLA’s symmetrical scheme for pursuing

contribution claims,” Congress provided that a contribution claim accrues when a party is sued under § 106

or § 107(a), and the statute of limitations on a contribution claim against others who should share in the

liability then begins to run “once that litigation settles

or ends by judgment” and the defendant in the initial

suit “knows the scope of its obligations.” Pet. App. 1617 (quoting Celanese, 792 F.3d at 1209). In accordance

with this structure, the cleanup during a typical CERCLA project is divided into incremental work phases;

as the Government determines its plan for each

cleanup phase, it sues potentially responsible parties

to conduct or pay for the work required, and those parties bring corresponding contribution actions against

others who should by right share in their liability for

that phase. Pet. App. 16-17.

Petitioners’ approach, by contrast, “would make a

mess of both § 113(f) and the traditional workings of

contribution.” Pet. App. 17. It would contravene the

remedial objectives of CERCLA by punishing the very

parties Congress sought to protect by adding a right

of contribution to the statute—those who cooperated

early with the Government and agreed to take on “a

share of the cleanup or cost that [is] greater than

[their] equitable share under the circumstances” to

get the response underway quickly. H.R. Rep. No. 99253, pt. 1, at 79 (1985). It would impede the “phased

25

and orderly resolution of response obligations for complex sites.” Pet. App. 20. And it would undermine an

important aspect of the CERCLA regime by discouraging settlements with de minimis potentially responsible parties, agreements that “supply a needed

influx of funds for cleanup work,” “simplify[] litigation,” and “reduc[e] transaction costs.” Pet. App. 1920; see also Office of Solid Waste & Emergency Response Directive No. 9834.7-1C, Method ology for

Early De Minimis Waste Contributor Settlements Under CERCLA Section 122(g)(1)(A), at 2 (1992).

3. The petition challenges only the court of appeals’ statutory construction, not how the court applied § 113(g)(3)’s plain meaning to the facts before it.

See Pet. 12-19. That factbound analysis is far from

cert-worthy.

It is also correct. The court of appeals correctly

held that Respondents’ contribution claim was not

time-barred because the costs they incurred under the

2007 settlement agreement are not the same “costs”

for which they seek contribution here. Pet. App. 1119. The 2007 settlement agreement primarily involved a payment to Respondents by the de minimis

defendants for their share of OU-1 costs, Pet. App. 67; it was also an indemnification agreement by which

Respondents agreed to assume liability for the unrealized future liability the de minimis defendants

might face across the Superfund site. The agreement

did not impose any costs on Respondents, much less

the ones sought in this case, which instead arose directly from Respondents’ 2017 consent decree with

the Government concerning the later OU-2 phase of

the cleanup. Thus, the court of appeals properly

26

applied these principles to find that the limitations

clock did not start running until 2017, when the district court approved the OU-2 consent decree between

Respondents and the Government.

***

In any event, Petitioners will get another shot at

the Ninth Circuit even without a hold. The case

reached the Ninth Circuit in an interlocutory posture

(on a partial final judgment under Fed. R. Civ. P.

54(b)); and since the Ninth Circuit remanded, the case

has been proceeding apace in the district court, where

cross-motions for summary judgment are currently

pending. If Petitioners are ultimately dissatisfied

with the district court’s final judgment, they are free

to address any new arguments to the Ninth Circuit at

that time. Given the interlocutory posture, there is no

need for this Court to step in at this time.

CONCLUSION

The petition for a writ of certiorari should be denied.

27

Respectfully submitted,

Nancy Sher Cohen

Ronald A. Valenzuela

LATHROP GPM LLP

2049 Century Park East

Suite 3500S

Los Angeles, CA 90067

(310) 789-4600

nancy.cohen@lathropgpm.com

E. Joshua Rosenkranz

Counsel of Record

Brian P. Goldman

Elizabeth R. Cruikshank

Karim J. Kentfield

ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5000

Counsel for Respondents jrosenkranz@orrick.com

Counsel for Respondents

Baxter Healthcare

Corporation, The Boeing

Company, and The Dow

Chemical Company

May 13, 2021