Respondents Brief — Territory of Guam, Petitioner v. United States

Supreme Court briefMar 24, 2021

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No. 20-382

In the Supreme Court of the United States

TERRITORY OF GUAM, PETITIONER

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES

ELIZABETH B. PRELOGAR

Acting Solicitor General

Counsel of Record

JEAN E. WILLIAMS

Acting Assistant Attorney

General

MALCOLM L. STEWART

Deputy Solicitor General

VIVEK SURI

Assistant to the Solicitor

General

JENNIFER SCHELLER NEUMANN

EVELYN YING

RACHEL HERON

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

Section 113(f )(3)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act of

1980 (CERCLA), provides a cause of action for contribution to any “person who has resolved its liability to

the United States or a State for some or all of a response

action * * * in an administrative or judicially approved

settlement.” 42 U.S.C. 9613(f )(3)(B). The questions

presented are as follows:

1. Whether a judicially approved settlement that resolves a claim brought under a law other than CERCLA

can give rise to a contribution action under Section

113(f )(3)(B).

2. Whether a judicially approved settlement that

conclusively establishes a person’s legal obligation to

perform response actions, but that disclaims any admission of liability, “resolves” the settling party’s “liability”

for “some or all of a response action” within the meaning

of Section 113(f )(3)(B).

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statutory provisions involved ...................................................... 1

Statement:

A. Legal background ............................................................ 2

B. Facts.................................................................................. 4

C. Proceedings below ........................................................... 7

Summary of argument ............................................................... 10

Argument:

I. Section 113(f )(3)(B) covers settlements that

resolve claims brought under other laws .................... 12

A. Settlements that resolve claims brought under

other laws may trigger Section 113(f )(3)(B) ........ 12

1. Section 113(f )(3)(B)’s text covers

settlements that resolve claims brought

under other laws ............................................... 12

2. Congress’s failure to include the words

“under this Act” or similar language in

Section 113(f )(3)(B) confirms that the

provision reaches settlements that resolve

claims brought under other laws .................... 16

3. The presumption against surplusage

confirms that Section 113(f )(3)(B) covers

settlements that resolve claims brought

under other laws ............................................... 19

4. The statutory context in which Section

113(f )(3)(B) appears confirms that the

provision covers settlements that resolve

claims brought under other laws .................... 21

5. Additional considerations reinforce the

conclusion that Section 113(f )(3)(B) covers

settlements that resolve claims brought

under other laws ............................................... 22

B. Guam’s contrary arguments lack merit ................ 24

(III)

IV

Table of Contents—Continued:

Page

1. Guam misreads the statute .............................. 24

2. The background principles that generally

govern contribution claims do not support

Guam’s reading ................................................. 28

3. The interplay between CERCLA and other

federal regulatory schemes does not

support Guam’s reading ................................... 30

4. Guam’s remaining arguments lack merit ....... 32

II. The consent decree in this case gave rise to a

potential contribution claim under Section

113(f )(3)(B) ..................................................................... 34

A. A settlement “resolves” a person’s “liability” if

it settles the person’s legal obligations ................. 34

B. The 2004 consent decree resolved Guam’s

liability for at least some of a response action ..... 40

III. Adopting Guam’s reading would distort the

statutory scheme............................................................ 45

Conclusion ................................................................................... 48

Appendix — Statutory provisions ........................................... 1a

TABLE OF AUTHORITIES

Cases:

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) ...... 31

ASARCO LLC v. Atlantic Richfield Co.,

866 F.3d 1108 (9th Cir. 2017). .......................... 23, 33, 35, 45

Atlantic Richfield Co. v. Christian,

140 S. Ct. 1335 (2020) ................................................... 22, 31

Chamberlain v. Carborundum Co., 485 F.2d 31

(3d Cir. 1973) ....................................................................... 29

Consolidated Edison Co. v. UGI Utilities, Inc.,

423 F.3d 90 (2d Cir. 2005), cert. denied,

551 U.S. 1130 (2007)............................................................ 23

Cooper Industries, Inc. v. Aviall Services, Inc.,

543 U.S. 157 (2004).......................................................... 3, 33

V

Cases—Continued:

Page

Credit Suisse Securities (USA) LLC v. Billing,

551 U.S. 264 (2007).............................................................. 32

Department of Homeland Security v. MacLean,

574 U.S. 383 (2015).............................................................. 19

Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134

(2018) .................................................................................... 19

Farmers Insurance Exchange v. Village of Hewitt,

143 N.W.2d 230 (Minn. 1966) ............................................. 29

FCC v. AT&T Inc., 562 U.S. 397 (2011)............................... 36

Florida Power Corp. v. FirstEnergy Corp.,

810 F.3d 996 (6th Cir. 2015) ............................................... 42

Frew v. Hawkins, 540 U.S. 431 (2004) ................................ 41

Guillard v. Niagara Machine & Tool Works,

488 F.2d 20 (8th Cir. 1973) ................................................. 29

Jama v. Immigration & Customs Enforcement,

543 U.S. 335 (2005).......................................17, 19, 25, 26, 27

Jennings v. Rodriguez, 138 S. Ct. 830 (2018) ..................... 16

Kansas v. Garcia, 140 S. Ct. 791 (2020) .............................. 32

Lomax v. Ortiz-Marquez, 140 S. Ct. 1721 (2020) ............... 16

Loughrin v. United States, 573 U.S. 351 (2014) ................. 26

Maher v. Gagne, 448 U.S. 122 (1980) ................................... 43

Maracich v. Spears, 570 U.S. 48 (2013)............................... 43

Niagara Mohawk Power Corp. v. Chevron U.S.A.,

Inc., 596 F.3d 112 (2d Cir. 2010)........................................ 24

Northwest Airlines, Inc. v. Transport Workers,

451 U.S. 77 (1981) ....................................................... 3, 4, 29

Peter v. NantKwest, Inc., 140 S. Ct. 365 (2019).................. 37

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) ........ 41

PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011) .................... 32

RSR Corp. v. Commercial Metals Co., 496 F.3d 552

(6th Cir. 2007) ...................................................................... 46

VI

Cases—Continued:

Page

RadLAX Gateway Hotel, LLC v. Amalgamated

Bank, 566 U.S. 639 (2012) .................................................... 8

Refined Metals Corp. v. NL Industries Inc.,

937 F.3d 928 (7th Cir. 2019) ......................................... 23, 46

Republic of Sudan v. Harrison, 139 S. Ct. 1048

(2019) .................................................................................... 19

Roberts v. Sea-Land Services, Inc., 566 U.S. 93

(2012) .................................................................................... 25

Russello v. United States, 464 U.S. 16 (1983) ..................... 17

Shaw v. Railroad Co., 101 U.S. 557 (1880).......................... 37

Southern Railway Co. v. Foote Mineral Co.,

384 F.2d 224 (6th Cir. 1967) ............................................... 29

Stone v. INS, 514 U.S. 386 (1995) ........................................ 43

Texas Industries, Inc. v. Radcliff Materials, Inc.,

451 U.S. 630 (1981)................................................................ 3

Trinity Industries, Inc. v. Chicago Bridge & Iron

Co., 735 F.3d 131 (3d Cir. 2013) ................................... 23, 33

United States v. Atlantic Research Corp.,

551 U.S. 128 (2007)........................................................ 37, 46

United States v. Colorado, 990 F.2d 1565

(10th Cir. 1993), cert. denied, 510 U.S. 1092 (1994) ......... 21

United States v. Government of Guam,

No. 02-cv-22 (D. Guam):

2008 WL 216918 (Jan. 24, 2008) ................................. 5, 47

2008 WL 732796 (Mar. 17, 2008) ........................ 5, 6, 7, 48

United States National Bank v. Independent

Insurance Agents of America, Inc.,

508 U.S. 439 (1993).............................................................. 18

W.R. Grace & Co.—Connecticut v. Zotos Int’l, Inc.,

559 F.3d 85 (2d Cir. 2009) .................................................. 24

Wood v. Allen, 558 U.S. 290 (2010) ...................................... 41

VII

Case—Continued:

Page

Zontelli Bros. v. Northern Pacific Railway Co.,

263 F.2d 194 (8th Cir. 1959) ............................................... 29

Constitution, statutes, and rules:

U.S. Const. Art. VI, Cl. 2 (Supremacy Clause) .................. 32

Clean Water Act, 33 U.S.C. 1251 et seq. ................................ 6

33 U.S.C. 1251 note ......................................................... 14

Comprehensive Environmental Response,

Compensation, and Liability Act of 1980,

Pub. L. No 96-510, 94 Stat. 2767 (42 U.S.C. 9601

et seq.)..................................................................................... 2

§ 113(a), 94 Stat. 2795 ..................................................... 18

42 U.S.C. 9601(7) ............................................................. 21

42 U.S.C. 9601(8) ............................................................. 21

42 U.S.C. 9601(10) ........................................................... 21

42 U.S.C. 9601(14) ............................................... 13, 21, 1a

42 U.S.C. 9601(20)(E)(i) .................................................. 21

42 U.S.C. 9601(20)(H)(iv)(III) ........................................ 21

42 U.S.C. 9601(23)-(25) ..................................................... 2

42 U.S.C. 9601(23) ............................................... 13, 21, 2a

42 U.S.C. 9601(24) ............................................... 13, 40, 2a

42 U.S.C. 9601(25) ..................................................... 13, 3a

42 U.S.C. 9601(35)(D)................................................ 18, 4a

42 U.S.C. 9604( j)(1) ................................................... 18, 4a

42 U.S.C. 9604(k)(12) ................................................ 14, 5a

42 U.S.C. 9605(b) ....................................................... 18, 5a

42 U.S.C. 9606 (§ 106) ............................2, 3, 17, 20, 24, 26

42 U.S.C. 9606(a) ................................................... 2, 20, 1a

42 U.S.C. 9607 (§ 107) ............................................... 27, 6a

42 U.S.C. 9607(a) (§ 107(a)) ..............................passim, 6a

VIII

Statutes and rules—Continued:

Page

42 U.S.C. 9607(a)(4)(B)

(§ 107(a)(4)(B)) ................................ 2, 15, 24, 28, 40, 7a

42 U.S.C. 9607(l)(2)(A) .............................................. 18, 8a

42 U.S.C. 9612(c)(2) ................................................... 14, 9a

42 U.S.C. 9613 (§ 113) ................................... 17, 19, 22, 9a

42 U.S.C. 9613(a) ....................................................... 18, 9a

42 U.S.C. 9613(b) ....................................................... 18, 9a

42 U.S.C. 9613(c) ..................................................... 21, 10a

42 U.S.C. 9613(d) ..................................................... 21, 10a

42 U.S.C. 9613(e) ..................................................... 18, 10a

42 U.S.C. 9613(f ) (§ 113(f )) .............................passim, 10a

42 U.S.C. 9613(f )(1) (§ 113(f )(1)) ....................passim, 10a

42 U.S.C. 9613(f )(2) (§ 113(f )(2)) ........................ 4, 43, 11a

42 U.S.C. 9613(f )(3) (§ 113(f )(3)) ..... 24, 25, 26, 27, 28, 11a

42 U.S.C. 9613(f )(3)(A)-(C) ............................................ 43

42 U.S.C. 9613(f )(3)(B) (§ 113(f )(3)(B)) .........passim, 11a

42 U.S.C. 9613(f )(3)(C) ....................................... 4, 25, 12a

42 U.S.C. 9613(g)(1) ................................................ 18, 12a

42 U.S.C. 9613(g)(2)(B) ........................................... 46, 13a

42 U.S.C. 9613(g)(3) ........................................ 4, 8, 46, 14a

42 U.S.C. 9613(g)(3)(A) ........................................... 18, 14a

42 U.S.C. 9613(h) ..................................................... 21, 15a

42 U.S.C. 9613(i) ................................................ 18, 21, 16a

42 U.S.C. 9613( j)(1) ................................................. 18, 17a

42 U.S.C. 9613( j)(2) ................................................. 18, 17a

42 U.S.C. 9613(k)(2)(C) ........................................... 18, 19a

42 U.S.C. 9614 .................................................................. 21

42 U.S.C. 9614(b) ............................................... 14, 18, 20a

42 U.S.C. 9619(e)(1) ................................................. 18, 21a

42 U.S.C. 9620(d)(2)(B) ........................................... 14, 22a

IX

Statute and rules—Continued:

Page

42 U.S.C. 9622(a) ..................................................... 22, 22a

42 U.S.C. 9622(c)(1) ................................................. 18, 24a

42 U.S.C. 9622(d)(1)(B) ........................................... 43, 26a

42 U.S.C. 9622(d)(1)(C) ........................................... 43, 27a

42 U.S.C. 9622(e)(6) ................................................. 18, 33a

42 U.S.C. 9622(f )(1) ................................................. 18, 33a

42 U.S.C. 9622(f )(2) ................................................. 18, 34a

42 U.S.C. 9622(f )(5) ................................................. 45, 36a

42 U.S.C. 9622(f )(6)(A) ........................................... 45, 36a

42 U.S.C. 9622(g)-(h) ....................................................... 20

42 U.S.C. 9622(g)(5) .....................................17, 42, 43, 40a

42 U.S.C. 9622(g)(6) ................................................ 18, 40a

42 U.S.C. 9622(g)(12) .............................................. 43, 43a

42 U.S.C. 9622(h)(1) ................................................ 18, 43a

42 U.S.C. 9622(h)(4) .....................................17, 42, 43, 44a

42 U.S.C. 9652(d) ..................................................... 31, 47a

42 U.S.C. 9656(b) ..................................................... 14, 47a

Organic Act of Guam, ch. 512, 64 Stat. 384 ........................... 4

Superfund Amendments and Reauthorization Act of

1986, Pub. L. No. 99-499, 100 Stat. 1613 ............................ 3

8 U.S.C. 1231(b)(2)(E) ........................................................... 26

18 U.S.C. 1344(2) ................................................................... 26

28 U.S.C. 1292(b) ..................................................................... 9

Sup. Ct. R.:

Rule 14.1(a) ...................................................................... 41

Rule 24.1(a) ...................................................................... 41

Miscellaneous:

Ballentine’s Law Dictionary (3d ed. 1969) .................. 35, 36

Black’s Law Dictionary:

(5th ed. 1979) .............................................................. 35, 36

X

Miscellaneous—Continued:

Page

(11th ed. 2019) .................................................. 2, 35, 36, 42

Comparative Negligence Manual (3d ed. 2020) ................ 29

Felix Frankfurter, Some Reflections on the Reading

of Statutes, 47 Colum. L. Rev. 527 (1947)......................... 16

Henry J. Friendly, Mr. Justice Frankfurter and the

Reading of Statutes, in Benchmarks (1967) .................... 25

18 Cecily Fuhr, Corpus Juris Secundum (2021) ............... 29

Guam Department of Public Works, Ordot Dump,

Ordot-Chalan Pago, Guam: Environmental

Data Summary Report (July 2005), http://

guamsolidwastereceiver.org/pdf/RFP%20SWD00111%20-%201b%20-%20Environmental%20

Data%20Summary%20Report.pdf...................................... 5

H.R. Rep. No. 253, 99th Cong., 1st Sess. (1985):

Pt. 1 ....................................................................... 33, 39, 46

Pt. 3 ......................................................................... 3, 22, 33

2 Barry A. Lindahl, Modern Tort Law: Liability

and Litigation § 19:27 (2d ed. 2020) ................................. 29

Oxford English Dictionary (3d ed. Mar. 2010) ............ 35, 38

Restatement (Second) of Contracts (1981) ......................... 39

Restatement (Second) of Torts (1979) ................................. 29

Restatement (Second) of Torts App. (1982) ....................... 37

Restatement (Third) of Torts: Apportionment of

Liability (2000) .............................................................. 37, 39

Richard Rosen, ed., Settlement Agreements in

Commercial Disputes: Negotiating, Drafting

and Enforcement (Supp. 2017) .......................................... 29

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012) ......................... 25

1 Stuart M. Speiser et al., The American Law of

Torts (2013) ......................................................................... 29

XI

Miscellaneous—Continued:

Page

3 Jacob A. Stein, Stein on Personal Injury Damages

(3d ed. 2020)......................................................................... 29

The Random House Dictionary of the English

Language (2d ed. 1987) ...................................................... 35

Webster’s New International Dictionary

(2d ed. 1934)......................................................................... 35

In the Supreme Court of the United States

No. 20-382

TERRITORY OF GUAM, PETITIONER

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-26a)

is reported at 950 F.3d 104. The opinion of the district

court (Pet. App. 51a-97a) is reported at 341 F. Supp. 3d

74.

JURISDICTION

The judgment of the court of appeals was entered on

February 14, 2020. A petition for rehearing was denied

on May 13, 2020 (Pet. App. 98a-99a). The petition for a

writ of certiorari was filed on September 16, 2020, and

was granted on January 8, 2021. The jurisdiction of this

Court rests on 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

Pertinent statutory provisions are reproduced in the

appendix to this brief. App., infra, 1a-47a.

(1)

2

STATEMENT

A. Legal Background

1. Congress enacted and President Carter signed

the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA or the Act),

Pub. L. No. 96-510, 94 Stat. 2767 (42 U.S.C. 9601 et seq.),

to promote the timely cleanup of contaminated sites and

to ensure that those responsible for the contamination

pay for the cleanup. The Act uses the word “response”

to refer to various actions to address hazardous substances, including monitoring the site, cleaning it up, removing and disposing of contaminants, and building

permanent structures to prevent or contain future releases. 42 U.S.C. 9601(23)-(25). The Act makes certain

broad classes of persons, known as potentially responsible parties or PRPs, strictly liable for response costs.

42 U.S.C. 9607(a).

The Act establishes (as relevant here) two mechanisms by which the United States and other persons

may compel a PRP to perform or pay for a response action. The United States may sue PRPs under Section

106 to compel them to undertake response actions.

42 U.S.C. 9606(a). A person also may perform a response action and then sue PRPs under Section 107(a)

to recover the “necessary costs of response.” 42 U.S.C.

9607(a)(4)(B).

2. This case concerns the right of a PRP to obtain

contribution. Contribution, in the sense relevant here,

is a “tortfeasor’s 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.” Black’s Law Dictionary 416 (11th ed. 2019). At

common law, tortfeasors originally had no right to contribution, but States began to recognize such a right in

3

the 20th century, sometimes by statute and sometimes

by judicial decision. See Northwest Airlines, Inc. v.

Transport Workers, 451 U.S. 77, 86-87 (1981). The

recognition of that remedy rests on the view that, when

many persons share responsibility for a tort, it is unfair

to force one of them to bear the whole loss. See id. at

87-88.

As originally enacted, CERCLA did not create an express cause of action for contribution. See Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 161

(2004). In two cases decided soon after the Act’s adoption, this Court declined to recognize implied or commonlaw contribution rights under other federal statutes.

See Texas Industries, Inc. v. Radcliff Materials, Inc.,

451 U.S. 630 (1981); Transport Workers, supra.

After those decisions, Congress passed and President Reagan signed the Superfund Amendments and

Reauthorization Act of 1986 (1986 Amendments), Pub.

L. No. 99-499, 100 Stat. 1613. The 1986 Amendments

created two express causes of action for contribution “to

avoid problems that might otherwise arise due to the

courts’ reluctance to imply new private rights of action

under federal statutes.” H.R. Rep. No. 253, 99th Cong.,

1st Sess. Pt. 3, at 20 (1985) (House Report). Under Section 113(f )(1), “[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 [Section 106] or under [Section 107(a)].” 42 U.S.C.

9613(f )(1). And under Section 113(f )(3)(B), “[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 may seek contribution

4

from any person who is not party to a settlement referred to in [Section 113(f )(2)].” 42 U.S.C. 9613(f )(3)(B).

(The cross-referenced provision, Section 113(f )(2), immunizes a person from contribution claims if it resolves

liability to the United States or a State in an administrative or judicially approved settlement.) Each of

those causes of action is subject to a three-year statute

of limitations, running from the date of the judgment or

settlement. 42 U.S.C. 9613(g)(3).

The relevant provisions of Section 113(f ) create a

procedural right to file contribution claims in federal

court, but they do not spell out all the substantive rules

that govern such claims. Those clauses instead provide

that contribution claims “shall be governed by Federal

law,” thus authorizing the federal courts to develop the

applicable substantive rules as a matter of federal common law. 42 U.S.C. 9613(f )(1) and (3)(C). At common

law, a contribution claim has two elements: (1) the contribution plaintiff and contribution defendant must

share a common liability for the same injury, and (2) the

contribution plaintiff must have paid more than its just

share of the liability. See Transport Workers, 451 U.S.

at 83.

B. Facts

1. Guam is an island in the west central Pacific

Ocean, located about 3800 miles west of Hawaii. Spain

ceded the island to the United States in 1898, after the

Spanish-American War. Pet. App. 5a. For the next half

century, the island remained under the jurisdiction of

the United States Navy. Ibid. In 1950, Congress transferred jurisdiction from the Navy to a new civilian government. Organic Act of Guam, ch. 512, 64 Stat. 384.

This case concerns the Ordot Dump, a site in a ravine

near the Lonfit River, approximately 2.5 miles south of

5

Hagåtña, the island’s capital. Guam Department of

Public Works, Ordot Dump, Ordot-Chalan Pago,

Guam: Environmental Data Summary Report 3 (July

2005) (Ordot Dump Report). Guam alleges that the

Navy began to use the site as a dump at some point before World War II. J.A. 66. Guam took over ownership

and management of the dump after the enactment of the

Guam Organic Act. Pet. App. 5a.

Guam continued to operate the dump for the next

sixty years. Pet. App. 55a. During that period, Guam

vastly expanded the dump, using it to store virtually all

the industrial and municipal waste produced by the civilian population of the island. United States v. Government of Guam, No. 02-cv-22, 2008 WL 216918, at *1

(D. Guam Jan. 24, 2008). The site reached capacity in

1986, but Guam continued to use it as a dump for several

decades more. Ibid. Under Guam’s ownership, what

began as a three-to-four-acre site grew to 40 to 50 acres.

D. Ct. 5/15/18 Tr. 25; Ordot Dump Report 7. And

“[w]hat was once a valley is now at least a 280-foot

mountain of trash.” Guam, 2008 WL 216918, at *1.

Guam failed to provide even rudimentary environmental safeguards at the dump, leaving it unlined at the

bottom and uncapped at the top. Guam, 2008 WL

216918, at *1. Under Guam’s ownership, the dump has

had a long history of environmental problems. Ibid.

The dump has acted “like a sponge, absorbing rain water and releasing it after it has percolated through the

landfill and picked up contaminants.” Ibid. It has attracted “flies, rodents, and other pests” and posed an

“odor problem” for nearby residents. United States v.

Government of Guam, No. 02-cv-22, 2008 WL 732796,

at *2 (Mar. 17, 2008). The dump also averaged approximately one fire per year. See Ordot Dump Report 3.

6

2. Starting in 1986, the U.S. Environmental Protection Agency (EPA) issued a series of administrative orders under the Clean Water Act (CWA), 33 U.S.C. 1251

et seq., directing Guam to stop further discharges of

contaminants from the Ordot Dump, but Guam disregarded those orders for more than a decade. Pet. App.

56a. For example, EPA issued an order requiring cessation of discharges by 1987, but Guam “failed to comply.” Guam, 2008 WL 732796, at *6. EPA issued another administrative order requiring cessation of discharges by 1992, but Guam “again failed to meet this

deadline,” despite receiving an extension. Ibid. In

1997, EPA ordered Guam to submit a proposal to build

a cover that would stop discharges from the dump, but

Guam’s response “lacked the funding commitment to

make the plan credible.” Ibid.

In 2002, the United States sued Guam under the

CWA. Pet. App. 130a-137a. In 2004, the parties settled

the suit through a court-approved consent decree. Id.

at 138a-173a.

The consent decree, which constituted a final judgment, required Guam to pay a civil penalty, close the

dump, build a new municipal landfill to replace it, and

take various steps designed to stop the discharge of contaminants from it. Pet. App. 141a-151a. The decree

contained three additional provisions that are relevant

to Guam’s arguments here. It stated that the court was

entering the decree “without any finding or admission

of liability against or by the Government of Guam.” Id.

at 140a. It also stated that the decree does not “limit

the ability of the United States to enforce any and all

provisions of applicable federal laws and regulations for

any violations unrelated to the claims in the Complaint”

and that, “[e]xcept as specifically provided [t]herein,

7

the United States does not waive any rights or remedies

available to it for any violation by the Government of

Guam of federal and territorial laws and regulations.”

Id. at 166a. And it stated that “[e]ntry of this Consent

Decree and compliance with the requirements [t]herein

shall be in full settlement and satisfaction of the civil

judicial claims * * * alleged in the Complaint.” Ibid.

Guam did not comply with the decree. See Guam,

2008 WL 732796, at *6. Four years after the decree was

adopted, the Ordot Dump remained in operation “with

no realistic end in sight.” Id. at *2. Guam had not even

begun the process of building a new dump. Id. at *6.

Finding Guam’s “highly dysfunctional, largely mismanaged, overly bureaucratic, and politically charged solid

waste system * * * beyond correction by conventional

methods,” the district court in Guam appointed a receiver to carry out Guam’s obligations at Guam’s expense. Id. at *1.

The receiver closed the dump in 2011. J.A. 67. In

2013, the receiver began to undertake additional steps

to comply with the consent decree, such as capping the

dump, installing ponds to store stormwater runoff, and

building tanks to store water that leaches through the

dump. J.A. 68.

C. Proceedings Below

1. Guam filed this suit in 2017, alleging that the

United States is a PRP under CERCLA and that it is

liable for some of the costs of complying with the 2004

consent decree. Pet. App. 59a-60a. Guam asserted two

causes of action: a claim under Section 107(a) for cost

recovery and an alternative claim under Section

113(f )(3)(B) for contribution. Ibid.

The United States moved to dismiss the complaint.

Pet. App. 53a. The United States observed that a claim

8

for contribution under Section 113(f ) is subject to a

three-year statute of limitations, running from the date

of the judgment or settlement. See 42 U.S.C. 9613(g)(3).

Guam brought this case thirteen years after entry of the

consent decree—ten years too late. Pet. App. 59a.

The United States also argued that Guam lacked a

valid claim under Section 107(a). Pet. App. 53a. Where

“a general authorization and a more limited, specific authorization exist side-by-side,” the “terms of the specific authorization must be complied with.” RadLAX

Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S.

639, 645 (2012). In accordance with that principle, every

court of appeals to consider the question has held that a

PRP whose claim falls within the more specific Section

113(f ) (authorizing suits for contribution) must sue under that provision rather than invoking the more general cost-recovery cause of action conferred by Section

107(a). See Gov’t Br. in Opp. 3-4 (collecting cases). The

United States argued that, because Guam’s claim fell

within Section 113(f ), Guam could not evade the corresponding statute of limitations by bringing its suit under Section 107(a) instead. Pet. App. 53a.

The district court denied the motion to dismiss. Pet.

App. 51a-97a. As relevant here, the court rejected the

United States’ premise that Guam’s claim fell within

Section 113(f ). Id. at 67a-97a. The court observed that

Section 113(f )(3)(B) provides a cause of action to any

party that has “resolved its liability to the United States

* * * for some or all of a response action.” Id. at 69a

(citation and emphasis omitted). The court concluded

that “the 2004 Consent Decree did not resolve Guam’s

liability for the Ordot Landfill cleanup given the broad,

open-ended reservation of rights, the plain non-

9

admissions of liability, and the conditional resolution of

liability that that agreement contains.” Ibid. At the

United States’ request, the court certified its order for

interlocutory appeal under 28 U.S.C. 1292(b). Pet. App.

27a-50a.

2. The court of appeals accepted the certification,

reversed the district court’s denial of the United States’

motion to dismiss, and remanded the case with instructions to dismiss the complaint. Pet. App. 1a-26a.

As relevant here, the court of appeals held that the

2004 consent decree gave rise to a potential claim for

contribution under Section 113(f )(3)(B). Pet. App. 16a24a. The court held that the decree fell within that provision even though it resolved only CWA claims, not

CERCLA claims. Id. at 16a-18a. The court observed

that “another provision of section 113 * * * expressly

requires that a party first be sued under CERCLA

* * * before pursuing contribution.” Id. at 17a. The

court concluded that, because “section 113(f )(3)(B) contains no such CERCLA-specific language,” “a settlement agreement can trigger section 113(f )(3)(B) even if

it never mentions CERCLA.” Id. at 17a-18a.

The court of appeals also held that the 2004 consent

decree had “resolved [Guam’s] liability to the United

States * * * for some or all of a response action.”

42 U.S.C. 9613(f )(3)(B); see Pet. App. 18a-25a. The

court explained that, in order to give rise to a potential

claim for contribution, a consent decree must have “decided, determined, or settled, at least in part,” a party’s

obligation to undertake some action that falls within

CERCLA’s definition of “response action.” Pet. App.

19a (citations and emphasis omitted). The court concluded that EPA’s 2002 suit “sought injunctive relief for

10

Guam to take action that qualified as a ‘response action,’ ” and that the 2004 consent decree resolved that

liability because it “released Guam from legal exposure

for that claim in exchange for Guam’s commitment to

perform work that qualified as a ‘response action.’ ” Id.

at 21a.

SUMMARY OF ARGUMENT

1. The court of appeals correctly held that the contribution right conferred by Section 113(f )(3)(B) extends beyond settlements that resolve claims brought

under CERCLA. Section 113(f )(3)(B) authorizes a person to seek contribution after it 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.” 42 U.S.C. 9613(f )(3)(B). The Act’s definition of

the term “response” includes actions taken under other

laws, and many CERCLA provisions make clear that

the term “liability for a response action” includes obligations incurred under other laws.

If Congress had intended to limit Section

113(f )(3)(B) to settlements that resolve CERCLA

claims, it could easily have achieved that result by including the words “under this Act.” Indeed, Congress

used such limiting language in other provisions of the

statute. Section 113(f )(3)(B) does not contain that limitation, however, and this Court should not narrow the

provision’s coverage by adding words that Congress left

out.

The rest of the Act confirms that Section 113(f )(3)(B)

means what it says. Congress designed CERCLA to

work in conjunction with other federal and state laws to

promote the cleanup of hazardous waste. The Act is replete with references to other federal laws, including

the CWA, the statute under which the consent decree at

11

issue in this case was entered. Section 113(f )(3)(B)’s application to settlements of claims brought under other

laws therefore is consonant with CERCLA’s design.

2. The consent decree in this case “resolved” Guam’s

“liability” for some or all of a response action. A settlement resolves a person’s liability for a response action

(or response costs) if it definitively requires the person

to perform (or pay for) that action. The consent decree

in this case did just that. It definitively ordered Guam,

on pain of stipulated penalties and potential contempt

sanctions, to build a cover at the Ordot Dump, to build a

system to divert surface water at the dump, and to monitor the site. Guam’s own theory of the case—that it may

sue the United States under Section 107(a) to recover

“response” costs—rests on the premise that those actions fall within the Act’s definition of “response.”

It makes no difference that Guam refused to admit

liability in the consent decree at issue here. Section

113(f )(3)(B) requires a resolution, not an admission. A

person can resolve liability even while refusing to admit

the legal or factual validity of the claims against it. It

also makes no difference that the decree leaves open the

possibility of future suits against Guam in certain circumstances. Section 113(f )(3)(B) requires resolution of

liability “for some or all of a response action or for some

or all of the costs of such action.”

42 U.S.C.

9613(f )(3)(B) (emphasis added). The decree at issue in

this case resolved Guam’s liability for at least some of a

response action. Under the plain language of Section

113(f )(3)(B), the possibility that the United States may

sue Guam in the future for additional response actions,

over and above the actions required by the decree, did

not delay the running of the limitations period for

Guam’s current suit.

12

ARGUMENT

I. SECTION 113(f )(3)(B) COVERS SETTLEMENTS THAT

RESOLVE CLAIMS BROUGHT UNDER OTHER LAWS

Guam contends that “a settlement must resolve liability under CERCLA to trigger Section 113(f )(3)(B),”

Br. 14, and that the settlement at issue here is not covered because the EPA claims it resolved were brought

under the CWA, see Br. 16-37. That argument is incorrect.

A. Settlements That Resolve Claims Brought Under Other

Laws May Trigger Section 113(f )(3)(B)

Congress designed CERCLA to work in tandem with

other federal and state laws to address the problem of

contaminated waste. The Act is replete with provisions

that apply to or interact with other statutes. Section

113(f )(3)(B) is one such provision. It authorizes claims

for contribution after settlements that resolve liability

for response actions, regardless of whether the settled

claim arose under CERCLA or some other law.

1. Section 113(f )(3)(B)’s text covers settlements that

resolve claims brought under other laws

Section 113(f )(3)(B) reads:

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

may seek contribution from any person who is not

party to a settlement referred to in paragraph (2).

42 U.S.C. 9613(f )(3)(B). This case turns on the meaning

of the phrase “liability * * * for * * * a response action.” The term “response action” includes actions

taken under laws other than CERCLA. A person incurs

13

“liability for a response action” when he becomes subject to a legally binding directive to take such an action,

regardless of the statute under which that directive is

imposed.

The Act’s definition of “response” focuses on what a

person does, not which law prompts her to do it. The

Act defines “response” to include “removal” and “remedy.” 42 U.S.C. 9601(25). “[R]emoval” includes shortterm actions such as “cleanup or removal of released

hazardous substances,” “disposal of removed material,”

and steps to “monitor, assess, and evaluate the release

or threat of release of hazardous substances.” 42 U.S.C.

9601(23). And “remedy” refers to more “permanent”

measures, such as providing “perimeter protection,”

building “dikes, trenches, or ditches,” “dredging or excavations,” “repair or replacement of leaking containers,” and “collection of leachate and runoff.” 42 U.S.C.

9601(24). Those definitions are not limited to measures

undertaken for the specific purpose of complying with

CERCLA. To the contrary, the definition of “removal”

“includes” (“without being limited to”) “emergency assistance which may be provided under the Disaster Relief and Emergency Assistance Act.”

42 U.S.C.

9601(23). And the “hazardous substance[s]” that response actions are designed to address are themselves

defined to include substances listed in other statutes,

including the CWA. 42 U.S.C. 9601(14).

Other CERCLA provisions confirm that a person

can perform, pay for, or incur liability for response actions (or its subsets, removal and remedy) under other

federal or state laws. For example:

• A clause titled “Response under other law” allows

the government, before invoking certain powers

14

under CERCLA, to consider whether it may “respond appropriately, under authority of a law

other than this [Act].” 42 U.S.C. 9620(d)(2)(B)

(emphasis omitted).

• One clause refers to “any liability or response authority under any Federal law”—“including”

“this [Act],” the “Solid Waste Disposal Act,” the

“Federal Water Pollution Control Act,” the

“Toxic Substances Control Act,” and the “Safe

Drinking Water Act.” 42 U.S.C. 9604(k)(12). The

“Federal Water Pollution Control Act” is the formal name of the CWA. See 33 U.S.C. 1251 note.

• A subrogation clause provides that, if a person

“pays compensation pursuant to this [Act] to any

claimant” for certain damages or costs, it inherits

“all rights, claims, and causes of action for such

damages and costs of removal that the claimant

has under this Act or any other law.” 42 U.S.C.

9612(c)(2) (emphasis added).

• A clause preventing double recovery provides

that a “person who receives compensation for removal costs * * * pursuant to any other Federal

or State law shall be precluded from receiving

compensation for the same removal costs * * * as

provided in this [Act].” 42 U.S.C. 9614(b).

• A clause specifies that, in certain cases, a common

carrier “shall be liable under other law * * * for

* * * remedial action.” 42 U.S.C. 9656(b).

Indeed, Guam’s current suit rests on the premise

that an action taken under a law other than CERCLA

can qualify as a “response action.” Guam has sued the

United States under Section 107(a). See p. 7, supra.

15

The suit raises questions about the scope of Section

113(f )(3)(B) only because the lower courts have held

(and Guam does not dispute) that Sections 107(a) and

113(f )(3)(B) are mutually exclusive. Guam’s suit thus

may proceed only if it falls both outside Section

113(f )(3)(B) and within Section 107(a). See p. 8, supra.

Guam’s claim under Section 107(a) depends on the

allegation that the expenditures it has incurred to comply with the 2004 consent decree, and that it seeks to

recover here, constitute “necessary costs of response”

under CERCLA, 42 U.S.C. 9607(a)(4)(B). Guam evidently perceives no inconsistency between that allegation and the fact that the EPA suit that ultimately produced the decree was brought under the CWA. Guam

is correct that no such inconsistency exists, since the

status of particular expenditures as “necessary costs of

response” turns on the nature of the activities that the

expenditures finance, not on the legal impetus behind

those activities. The same principle, however, applies

to the construction of Section 113(f )(3)(B). Guam’s own

theory of the case logically implies that the remedial actions for which it now seeks to recover its costs must

qualify as “response action[s]” within the meaning of

Section 113(f )(3)(B). See D. Ct. 5/15/18 Tr. 54-55 (district court’s questioning of Guam on this point).

In short, the Act’s definition of “response,” other

CERCLA provisions, and Guam’s own theory of the

case all show that the term “liability for a response action” includes a legally binding directive that is imposed

pursuant to a law other than CERCLA, but that requires a party to undertake a “response action” as

CERCLA uses that term. No sound basis exists to limit

the phrase in the manner that Guam advocates.

16

2. Congress’s failure to include the words “under this

Act” or similar language in Section 113(f )(3)(B)

confirms that the provision reaches settlements that

resolve claims brought under other laws

A court engaged in statutory construction must not

only “listen attentively to what a statute says,” but also

“listen attentively to what it does not say.” Felix Frankfurter, Some Reflections on the Reading of Statutes, 47

Colum. L. Rev. 527, 536 (1947). The provision at issue

here does not say that “a settlement must resolve liability under CERCLA to trigger Section 113(f )(3)(B).”

Guam Br. 14 (emphasis added). It uses the general terms

“liability,” “response action,” and “settlement,” not narrower terms such as “liability under this Act,” “response

action under this Act,” or “settlement under this Act.”

This Court should not narrow the provision’s scope by

adding limiting words that Congress left out. See Lomax

v. Ortiz-Marquez, 140 S. Ct. 1721, 1725 (2020).

Section 113(f )(3)(B)’s elaborate detail underscores

that point. Section 113(f )(3)(B) sets out in meticulous

terms the conditions that a person must satisfy before

bringing a claim for contribution. The person must resolve its liability to the right kind of party (“to the

United States or a State”); the liability must be for the

right kind of relief (“for some or all of a response action

or for some or all of the costs of such action”); and the

liability must have been resolved in the right kind of settlement (“in an administrative or judicially approved

settlement”). 42 U.S.C. 9613(f )(3)(B). Congress’s enumeration of those requirements implies the absence of

a further, unstated requirement that the settled liability arise under the Act. Expressio unius est exclusio

alterius. See Jennings v. Rodriguez, 138 S. Ct. 830, 844

(2018).

17

Reinforcing that conclusion, Section 113(f )(3)(B) as

a whole bespeaks breadth. The clause’s string of five

“or’s”—“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)—suggests that Congress meant the

clause to apply to a wide range of settlements. So does

the clause’s applicability to settlements that resolve liability for just “some” of a response action or “some” of

the costs of such action. What Congress made broad, a

court should not seek to narrow.

Further, although this Court never “lightly assume[s] that Congress has omitted from its adopted

text requirements that it nonetheless intends to apply,”

the Court’s “reluctance is even greater” when “Congress has shown elsewhere in the same statute that it

knows how to make such a requirement manifest.”

Jama v. Immigration & Customs Enforcement, 543

U.S. 335, 341 (2005); see Russello v. United States, 464

U.S. 16, 23 (1983). Other CERCLA provisions expressly limit the availability of contribution to claims

arising under particular sources of law. The nearby

Section 113(f )(1), for example, authorizes a person to

seek contribution during or after “any civil action under

[Section 106] or under [Section 107(a)]” of the Act.

42 U.S.C. 9613(f )(1) (emphasis added). And two clauses

that govern certain administrative settlements provide

that “[a] party who has resolved its liability to the

United States under this subsection shall not be liable

for claims for contribution regarding matters addressed

in the settlement.” 42 U.S.C. 9622(g)(5) (emphasis

added); see 42 U.S.C. 9622(h)(4) (similar). The contribution provision at issue here, by contrast, says nothing

18

about the source of law “under” which the settlement or

liability arose.

Congress used the phrase “under this Act” eleven

times across eight clauses in Section 113 alone. See

42 U.S.C. 9613(a), (b), (e), (g)(1) and (3)(A), (i) and ( j)(1)

and (2). 1 It also used the following terms in other CERCLA provisions:

• “liability under this [Act]” and “liability to the

United States under this [Act],” 42 U.S.C.

9601(35)(D), 9622(c)(1) and (f )(1) and (2);

• “judicial action under this [Act],” 42 U.S.C.

9613( j)(1) and (2);

• “consent decree under this [Act],” 42 U.S.C.

9622(e)(6);

• “settlements * * * under this [Act],” 42 U.S.C.

9622(g)(6);

• “response action under this [Act],” 42 U.S.C.

9607(l)(2)(A), 9613(k)(2)(C), 9622(h)(1);

• “removal costs * * * pursuant to this [Act]” and

“removal under this [Act],” 42 U.S.C. 9614(b),

9619(e)(1); and

• “remedial action under this [Act]” and “remedial

actions undertaken pursuant to this [Act],”

42 U.S.C. 9604( j)(1), 9605(b), 9613(g)(1), 9619(e)(1).

Congress used the term “this Act,” but the compilers of the U.S.

Code have changed it to “this chapter.” Compare CERCLA

§ 113(a), 94 Stat. 2795, with 42 U.S.C. 9613(a). The original text in

the Statutes at Large takes precedence over the edited text in the

Code. See United States National Bank v. Independent Insurance

Agents of America, Inc., 508 U.S. 439, 448 (1993).

1

19

Several aspects of the Act make the contrast between those provisions and Section 113(f )(3)(B) particularly conspicuous. While the CERCLA provisions

enumerated above use otherwise parallel language—

“liability under this Act,” “settlements under this

Act,” and “response action under this Act”—Section

113(f )(3)(B) refers to “liability,” “settlement” and “response action” simpliciter. Many of the contrasting provisions also appear in the same section as Section

113(f )(3)(B). And the phrase “under this Act” appears

multiple times in Section 113 and elsewhere in the statute. Those features make the contrast more noticeable,

and hence more likely deliberate. See Department of

Homeland Security v. MacLean, 574 U.S. 383, 392

(2015); Jama, 543 U.S. at 342.

3. The presumption against surplusage confirms that

Section 113(f )(3)(B) covers settlements that resolve

claims brought under other laws

A court should endeavor to give meaningful effect to

all the words of a statute, avoiding readings that render

particular statutory language superfluous. See Republic of Sudan v. Harrison, 139 S. Ct. 1048, 1058 (2019).

And when a statute uses the word “or” to connect its

antecedents and consequents—here, “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)—a court

should presume that the statute was meant to reach

every combination of its antecedents and consequents.

See Encino Motorcars, LLC v. Navarro, 138 S. Ct.

1134, 1141-1142 (2018).

20

Contrary to those principles, Guam’s reading would

render Section 113(f )(3)(B)’s reference to “judicially approved settlement[s]” largely redundant. The nearby

Section 113(f )(1) allows a person to seek contribution

“during or following any civil action under [Section 106]

or under [Section 107(a)].” 42 U.S.C. 9613(f )(1). That

clause independently authorizes contribution claims after the resolution of CERCLA civil actions, including

CERCLA civil actions that end in judicially approved

settlements. Section 113(f )(3)(B)’s reference to “judicially approved settlement[s]” will do meaningful additional work only if it reaches beyond settlements of

CERCLA claims.

Guam’s reading also would effectively negate Congress’s decision to make the clause applicable to settlements that resolve liability to “a State” for “a response

action.” 42 U.S.C. 9613(f )(3)(B). Although the Act

grants both the United States and States a right to recover response costs, see 42 U.S.C. 9607(a), it authorizes only the United States to sue to compel response

actions, see 42 U.S.C. 9606(a). State claims to compel

response actions therefore will necessarily arise under

laws other than CERCLA.

On Guam’s reading, the clause would also be inapplicable to an “administrative” settlement with a “State.”

42 U.S.C. 9613(f )(3)(B). The Act prescribes procedures

for administrative settlements with the United States,

but not for administrative settlements with States.

42 U.S.C. 9622(g)-(h). Administrative settlements with

States therefore will necessarily arise under laws other

than CERCLA. The only way to give full effect to every

word in the clause, and to every combination of the

clause’s nouns and adjectives, is to read it to cover settlements under other statutes.

21

4. The statutory context in which Section 113(f )(3)(B)

appears confirms that the provision covers settlements that resolve claims brought under other laws

CERCLA is not an island entire of itself. Throughout the Act, “Congress clearly expressed its intent that

CERCLA should work in conjunction with other federal

and state hazardous waste laws”—and, for that matter,

federal and state laws in general—“to solve this country’s hazardous waste problem.” United States v. Colorado, 990 F.2d 1565, 1575 (10th Cir. 1993), cert. denied,

510 U.S. 1092 (1994). The Act is replete with references

to other statutes. The definition section alone refers to

the “Safe Drinking Water Act,” “Magnuson-Stevens

Fishery Conservation and Management Act,” “Solid

Waste Disposal Act,” “Clean Air Act,” “Clean Water

Act,” “Toxic Substances Control Act,” “Atomic Energy

Act of 1954,” “Farm Credit Act of 1971,” “Alaska Native

Claims Settlement Act,” and “Disaster Relief and Emergency Assistance Act,” among others. 42 U.S.C. 9601(7),

(8), (10), (14), (20)(E)(i) and (H)(iv)(III), and (23).

Section 113 in particular addresses both CERCLA

and other laws. 42 U.S.C. 9613. One clause concerns

“the review of any regulation promulgated under [the

Internal Revenue Code].” 42 U.S.C. 9613(c). Another

addresses “litigation concerning any release of any hazardous substance * * * commenced prior to [the date

the Act came into force].” 42 U.S.C. 9613(d). A third

grants a right to intervene in “any action commenced

under this [Act] or under the Solid Waste Disposal Act.”

42 U.S.C. 9613(i). A fourth refers to “diversity” jurisdiction and jurisdiction “under State law.” 42 U.S.C.

9613(h). And the next section bears the title “Relationship to other law.” 42 U.S.C. 9614 (emphasis omitted).

22

Congress plainly had more than just CERCLA cases on

its mind when drafting Section 113.

5. Additional considerations reinforce the conclusion

that Section 113(f )(3)(B) covers settlements that

resolve claims brought under other laws

Guam’s reading of Section 113(f )(3)(B) would frustrate the provision’s purposes. Congress enacted CERCLA to promote the timely cleanup of contaminated

sites, see Atlantic Richfield Co. v. Christian, 140 S. Ct.

1335, 1345 (2020), and the Act acknowledges that settlements can “minimize litigation,” “expedite effective remedial actions,” and promote “the public interest,”

42 U.S.C. 9622(a). Section 113(f )(3)(B) in particular

serves “to encourage settlements.” House Report Pt. 3,

at 20. By allowing settling parties to claim contribution

from non-settling parties, it provides a significant incentive to enter into settlements and helps avoid costly

and time-consuming litigation that can delay cleanup.

Pet. App. 13a.

In providing that incentive, Congress focused on

what the settlement achieves: performance of a “response action” or payment of its “costs.” 42 U.S.C.

9613(f )(3)(B). “Congress gave no indication that it matters whether the authority governing the settlement is

CERCLA or something else. Its focus was, instead, on

cleaning up hazardous waste sites.” ASARCO LLC v.

Atlantic Richfield Co., 866 F.3d 1108, 1119 (9th Cir.

2017). “An interpretation that limits the contribution

right under § 113(f )(3)(B) to CERCLA settlements

would undercut private parties’ incentive to settle,”

thus undermining the provision’s evident purpose. Ibid.

Guam’s reading also would upset a near consensus in

the courts of appeals about Section 113(f )(3)(B)’s meaning. Four circuits have held, all through unanimous

23

panels and all in reliance on the statutory text, that Section 113(f )(3)(B) encompasses settlements that resolve

claims brought under statutes other than CERCLA.

See Trinity Industries, Inc. v. Chicago Bridge & Iron

Co., 735 F.3d 131, 136 (3d Cir. 2013); Refined Metals

Corp. v. NL Industries Inc., 937 F.3d 928, 932 (7th Cir.

2019); ASARCO, 866 F.3d at 1120 (9th Cir.); Pet. App.

17a. Only one court of appeals, the Second Circuit, has

limited Section 113(f )(3)(B) to settlements that resolve

CERCLA claims. Consolidated Edison Co. v. UGI

Utilities, Inc., 423 F.3d 90, 96 (2005), cert. denied, 551

U.S. 1130 (2007). The Second Circuit reached that conclusion based largely on the “legislative history,” ibid.,

but it later acknowledged that “there is a great deal of

force” to the contrary view “given the language of the

statute,” Niagara Mohawk Power Corp. v. Chevron

U.S.A., Inc., 596 F.3d 112, 126 n.15 (2010).

Finally, Guam’s approach would create uncertainty

about which settlements fall within Section 113(f )(3)(B).

Guam argues (Br. 16) that the provision does not extend

to “non-CERCLA settlements,” but the intended scope

of that carveout is uncertain. It is unclear, for example,

how Guam’s theory would apply if the suit that

prompted the settlement raised both CERCLA claims

and non-CERCLA claims, or if the plaintiff raised only

non-CERCLA claims, but agreed in the settlement to

release the defendant from both CERCLA and nonCERCLA liability. In the latter scenario, it is unclear

whether Guam would view it as necessary for the release to refer specifically to CERCLA liability, or

whether it would be sufficient that the settlement provided a general release from liability. All of those questions have actually arisen in the Second Circuit, the only

court of appeals that has limited Section 113(f )(3)(B)

24

along the lines Guam proposes. See Niagara Mohawk,

596 F.3d at 124-127; W.R. Grace & Co.—Connecticut v.

Zotos International, Inc., 559 F.3d 85, 90-91 (2d Cir.

2009). Guam’s brief leaves these questions unanswered.

B. Guam’s Contrary Arguments Lack Merit

Guam advances (Br. 16-37) a series of arguments in

support of its view that Section 113(f )(3)(B) applies only

to settlements that resolve CERCLA claims. Those arguments lack merit.

1. Guam misreads the statute

Guam argues that Section 113(f )(3)(B) applies only

to settlements of CERCLA claims because “response

action” is “a CERCLA-specific term.” Br. 17 (citation

omitted). But the term “response action” as used in

CERCLA encompasses actions taken under other laws,

see pp. 12-15, supra, and Guam identifies no textual

support for its contrary assertion. As explained above

(see pp. 14-15, supra), moreover, Guam’s own legal theory assumes that the cleanup expenses it has incurred

are “necessary costs of response” within the meaning of

Section 107(a)(4)(B). Guam does not explain how the

term “necessary costs of response” is less “CERCLAspecific” than the term “response action.”

Guam observes (Br. 18) that the nearby Section

113(f )(1) authorizes a contribution claim only during or

after civil actions under Section 106 or Section 107(a).

Guam describes (Br. 19) paragraph (f )(1) as the “anchor” for the rest of the subsection and argues that its

limitations implicitly carry over to paragraph (f )(3).

That argument reflects a misunderstanding of the relationship between the two provisions.

Guam’s interpretation disregards the textual differences between paragraphs (f )(1) and (f )(3). Paragraph

25

(f )(1) refers to the legal basis “under” which the civil

action arises, while paragraph (f )(3) does not. Guam

downplays (Br. 32) that textual difference, but “when

Congress employs the same word, it normally means

the same thing, when it employs different words, it usually means different things.” Henry J. Friendly, Mr.

Justice Frankfurter and the Reading of Statutes, in

Benchmarks 224 (1967) (footnote omitted); see Roberts

v. Sea-Land Services, Inc., 566 U.S. 93, 102 n.5 (2012).

Guam’s interpretation is also at odds with subsection

(f )’s structure. Paragraphs (f )(1) and (f )(3) appear under separate subheadings, with separate numbers and

indentation. Copying words from paragraph (f )(1) and

pasting them into the structurally discrete paragraph

(f )(3) would violate the presumption that “[m]aterial

within an indented subpart relates only to that subpart.” Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts § 22 (2012) (emphasis omitted); see Jama, 543 U.S. at 344.

Guam’s reading also fails to explain subsection (f )’s

inclusion of two separate sentences authorizing courts

to develop federal common law to govern contribution

claims. Paragraphs (f )(1) and (f )(3) separately specify

that contribution claims under the two provisions “shall

be governed by Federal law.” 42 U.S.C. 9613(f )(1) and

(3)(C). The repetition confirms that each paragraph

sets out a discrete, self-contained contribution remedy.

Guam’s reading also rests on the mistaken premise

that paragraphs (f )(1) and (f )(3) share “a structural

‘symmetry.’ ” Br. 19 (citation omitted). In fact, those

paragraphs differ in multiple ways:

• Paragraph (f )(1) applies only to liability resulting

from civil actions, not to liability that stems from

26

administrative proceedings. Paragraph (f )(3) applies to both judicially approved and administrative settlements.

• Paragraph (f )(1) authorizes contribution claims

both during and after civil actions. Paragraph

(f )(3) authorizes contribution claims only after a

settlement is approved.

• Paragraph (f )(1) authorizes contribution claims

during and after civil actions under Section 106

(which can be brought only by the United States)

and civil actions under Section 107(a) (which can

be brought by the United States, a State, an Indian tribe, or a private party). See 42 U.S.C. 9606,

9607(a). Paragraph (f )(3) allows contribution

claims after resolution of liability to the United

States or a State.

This Court has previously encountered—and

rejected—arguments similar to Guam’s. In Loughrin

v. United States, 573 U.S. 351 (2014), the Court considered a two-clause provision of the federal bank-fraud

statute; the first clause required intent to defraud a financial institution, but the second did not. See

18 U.S.C. 1344(2). The criminal defendant argued that

the intent requirement applied to the second clause as

well, but the Court rejected that interpretation as

“counter-textual.” Loughrin, 573 U.S. at 361. Similarly, in Jama v. ICE, supra, the Court considered a

multi-clause immigration provision that authorized removal of noncitizens to various countries; one clause required the consent of the country of removal, but the

others did not. 8 U.S.C. 1231(b)(2)(E). The noncitizen

argued that all the clauses required the consent of the

27

country of removal, but the Court explained that “importing” the requirement from one clause to another

would contravene the Act’s text and structure. Jama,

543 U.S. at 342. So too here.

Paragraph (f )(1) authorizes contribution claims to be

asserted only against a “person who is liable or potentially liable under [42 U.S.C.] 9607(a),” i.e., under CERCLA’s cost-recovery provision. 42 U.S.C. 9613(f )(1).

Paragraph (f )(3)(B) imposes no similar limitation, but

instead authorizes parties to qualifying settlements to

seek contribution “from any person who is not party to

a settlement referred to in paragraph (2).” 42 U.S.C.

9613(f )(3)(B). Guam nevertheless asserts (Br. 34) that

contribution claims under paragraph (f )(3) likewise can

be filed only against persons who are liable or potentially liable under CERCLA. That is incorrect. Where

(as here) a person has reached a settlement with the

United States or a State, and the agreement mandates

the performance of conduct that constitutes a CERCLA

“response action,” that person may seek contribution

from any defendant who shares responsibility for the

relevant contamination and has not entered into its own

settlement. 2

In all events, even if the Court does not view paragraph (f )(3) as a pure stand-alone provision, Guam’s ar-

Guam claims (Br. 22-23) that the United States took the contrary

position in the court of appeals, but it takes a statement from the

United States’ brief out of context. The brief explained (Gov’t C.A.

Supp. Br. 10) that CERCLA waives the United States’ sovereign

immunity from suit and that, in order to establish the United States’

liability under CERCLA, Guam would need to show that the United

States is a PRP under Section 107. The brief did not concede that

paragraph (f )(1)’s restrictions carry over to paragraph (f )(3).

2

28

gument in this case should be rejected. Guam’s structural argument would suggest at most that paragraph

(f )(1), the purported “anchor provision” (Br. 14), may

provide guidance when paragraph (f )(3) contains a gap

or is otherwise ambiguous. If (for example) paragraph

(f )(3)(B) standing alone is viewed as ambiguous with respect to which persons can be sued for contribution (see

p. 27, supra), a court could conclude based on paragraph

(f )(1) that the only permissible defendants are persons

who are liable or potentially liable under CERCLA.

That approach would not suggest, however, that a court

may invoke paragraph (f )(1) to override the explicit text

of paragraph (f )(3).

Here, paragraph (f )(3) sets out the governing standard: the resolved liability must be “for some or all of a

response action or some or all of the costs of such action.” 42 U.S.C. 9613(f )(3)(B). The expenditures that

Guam seeks to recoup are alleged to be “costs” of a “response action”—as Guam’s own invocation of Section

107(a)(4)(B) logically implies. See pp. 14-15, supra.

Paragraph (f )(1) cannot justify replacing that standard

with the different requirement that the resolved liability arise under CERCLA.

2. The background principles that generally govern

contribution claims do not support Guam’s reading

Guam argues (Br. 20-24) that a claim for contribution

presupposes the existence of a common liability, and

that no such common liability can exist in Section

113(f )(3)(B) cases unless the contribution plaintiff and

defendant are both liable under CERCLA. Guam is correct that contribution requires a “common liability,” but

wrong about what that requirement entails.

In tort law, two parties share a common liability, and

thus may seek contribution from one another, if they

29

share a liability to a plaintiff “for the same injury.”

Northwest Airlines, Inc. v. Transport Workers, 451

U.S. 77, 87-88 (1981); see Restatement (Second) of Torts

§ 886A(1) (1979) (“for the same harm”). As multiple authorities explain, “[c]ommon liability exists when two or

more actors are liable to an injured party for the same

damages, even though their liability may rest on different grounds.” Guillard v. Niagara Machine & Tool

Works, 488 F.2d 20, 22 (8th Cir. 1973); accord, e.g.,

18 Cecily Fuhr, Corpus Juris Secundum § 15 (2021);

Richard Rosen ed., Settlement Agreements in Commercial Disputes: Negotiating, Drafting and Enforcement

§ 12.02 (Supp. 2017); Comparative Negligence Manual

§ 9:2 (3d ed. 2020); 2 Barry A. Lindahl, Modern Tort

Law: Liability and Litigation § 19:27 (2d ed. 2020);

1 Stuart M. Speiser et al., The American Law of Torts

§ 3:21 n.4 (2013); 3 Jacob A. Stein, Stein on Personal

Injury Damages § 14:37 (3d ed. 2020). To take a textbook example, a drunk driver and a bar may share a

common liability for a car accident, and thus seek contribution from each other, even if the driver’s liability

rests on negligence while the bar’s rests on a dram shop

act. See Farmers Insurance Exchange v. Village of

Hewitt, 143 N.W.2d 230, 235 (Minn. 1966); see also

Chamberlain v. Carborundum Co., 485 F.2d 31, 34 (3d

Cir. 1973) (liability under different common-law theories); Southern Railway Co. v. Foote Mineral Co., 384

F.2d 224, 228 (6th Cir. 1967) (liability under statute and

common law); Zontelli Bros. v. Northern Pacific Railway Co., 263 F.2d 194, 198 (8th Cir. 1959) (liability under different statutes).

Under Guam’s own theory of the case, the United

States and Guam share a common liability for response

30

costs at the Ordot Dump. The 2004 consent decree requires Guam to take certain actions to prevent discharges from the dump. Guam argues that the United

States shares responsibility for the dump’s contaminated condition, and that CERCLA therefore requires

the United States to pay a share of the costs for the remedial actions specified in the decree. Even if the liabilities of the two parties arise from different sources of

law, they concern the same underlying harm. That is

enough to establish common liability and to allow a potential claim for contribution.

3. The interplay between CERCLA and other federal

regulatory schemes does not support Guam’s reading

Guam argues (Br. 24-29) that reading Section

113(f )(3)(B) to cover settlements of claims brought under other federal and state laws would interfere with

other federal remedial schemes and would undermine

state autonomy. But accepting Guam’s own theory

would produce the same results. Guam brought this

CERCLA suit to recover a portion of its costs of complying with the consent decree that settled EPA’s CWA

claims. Guam and the United States disagree only

about which CERCLA provision—Section 113(f )(3)(B)

or Section 107(a)—governs Guam’s suit. Guam does not

explain why allowing its suit to go forward under Section 107(a) would avoid the disruption that it associates

with a suit under Section 113(f )(3)(B).

In any event, applying Section 113(f )(3)(B) as written would not displace remedies provided by other federal or state laws; any person that wishes to invoke

those remedies remains free to do so.

Section

113(f )(3)(B) supplements rather than supplants whatever remedies are available under other laws. And that

31

supplemental remedy is available only in narrowly defined circumstances, i.e., when a settlement is “administrative or judicially approved,” resolves liability “to

the United States or a State,” and imposes liability

for a “response action” or for “the costs of such action.”

42 U.S.C. 9613(f )(3)(B).

Guam argues (Br. 25) that reading Section 113(f )(3)(B)

to allow even that modest supplement would “put that

provision on an island of its own,” because “[e]very

other component of the remedial scheme is linked to the

liability imposed by CERCLA.” That description of the

Act’s remedial scheme is wrong. As shown, the Act includes numerous provisions that add to and interact

with other laws. See pp. 13-14, 21, supra.

Guam also invokes (Br. 26) CERCLA’s saving clause,

which provides that nothing in the Act “shall affect or

modify in any way the obligations or liabilities of any

person under other Federal or State law.” 42 U.S.C.

9652(d). That clause is irrelevant here, because allowing a person to claim contribution after resolving its liability does not “affect or modify” the liability itself. In

any event, consistent with the principle that the specific

governs the general, this Court has refused to read

CERCLA’s general saving clause to override the Act’s

specific operative provisions. See Christian, 140 S. Ct.

at 1355. Section 113(f )(3)(B) covers settlements under

both CERCLA and other statutes; the more general

saving clause cannot override or truncate that coverage.

Guam argues (Br. 27) that Section 113(f )(3)(B)

should be construed as limited to CERCLA settlements

so as not to “disrupt other regulatory regimes.” But

federal statutes often overlap with each other, see, e.g.,

Alexander v. Gardner-Denver Co., 415 U.S. 36, 47-51

(1974), and when they do, a court should ordinarily give

32

effect to both, reading one to preclude the other only if

the two are “clearly incompatible,” Credit Suisse Securities (USA) LLC v. Billing, 551 U.S. 264, 275 (2007).

No such incompatibility is present here.

Guam and its amici also express concern that, if Section 113(f )(3)(B) applies to state-law settlements, it

might preempt the States’ own contribution remedies

with respect to those settlements. See Guam Br. 27-28;

States and Territories Amicus Br. 24-28. That argument is flawed. The question whether the Act provides

a federal contribution remedy in circumstances like

these is logically and analytically distinct from the question whether that federal remedy is exclusive. The

United States agrees with Guam and its amici that Section 113(f )(3)(B) does not occupy the field, and that

States retain the authority to provide their own contribution remedies, over and above the federal remedy.

In all events, concerns about potential preemption of

state law in future cases should not drive the interpretation of federal law in this case. The Supremacy Clause

makes federal law the supreme law of the land, “any

Thing in the Constitution or Laws of any State to the

Contrary notwithstanding.” U.S. Const. Art. VI, Cl. 2.

Courts therefore must give the federal statute “its natural meaning” and “let the chips fall where they may.”

Kansas v. Garcia, 140 S. Ct. 791, 807 (2020) (Thomas,

J., concurring) (citation omitted). A court should not

“distort federal law to accommodate conflicting state

law.” PLIVA, Inc. v. Mensing, 564 U.S. 604, 623 (2011)

(plurality opinion).

4. Guam’s remaining arguments lack merit

Invoking the Act’s legislative history, Guam asserts

(Br. 29-30) that Congress enacted Section 113(f )(3)(B)

to authorize contribution in CERCLA cases, not in

33

cases arising under other statutes. Guam quotes (Br.

29) a House Energy and Commerce Committee report

stating that Section 113(f ) codifies a right of contribution “for persons alleged or held to be liable under section 106 or 107 of CERCLA.” House Report Pt. 1, at 79.

But as two courts of appeals have noted, “this passage

refers to contribution claims under § 113(f )(1), not

§ 113(f )(3)(B).” Trinity Industries, 735 F.3d at 136 (citation omitted); see ASARCO, 866 F.3d at 1120. Guam

also quotes (Br. 29-30) a House Judiciary Committee report that describes Section 113(f ) as serving to encourage “[s]ettlement with the government under CERCLA.” House Report Pt. 3, at 19. But the same report

elsewhere states that the provision serves to encourage

“settlements,” without the qualifier “under CERCLA.”

Id. at 20. Consistent with the statutory text, the report

thus indicates that Section 113(f ) serves in part to encourage CERCLA settlements, but not that the provision is limited to such settlements.

Guam also argues (Br. 30-31) that the United States’

reading of Section 113(f )(3)(B) deprives parties of “fair

notice.” But adopting the United States’ interpretation

of Section 113(f )(3)(B) would establish a clear and easily

administered rule: if a settlement requires a person to

undertake or pay the costs of a response action, it gives

rise to a potential contribution claim, regardless of

whether the claim that produced the settlement arose

under CERCLA. It is Guam’s reading that leads to uncertainty about Section 113(f )(3)(B)’s scope. See pp. 2324, supra.

Finally, Guam invokes (Br. 20) the United States’

brief in Cooper Industries, Inc. v. Aviall Services, Inc.,

543 U.S. 157, 161 (2004). But that brief addressed the

interpretation of Section 113(f )(1), not Section

34

113(f )(3)(B). In the first of the two passages that Guam

cites, the United States argued that “Section 113(f )(1)’s”

legislative history shows that “the object was to provide

for contribution during or following a Section 106 or

107(a) action or after a CERCLA-based settlement.”

U.S. Amicus Br. at 23, Cooper Industries, supra (No.

02-1192). In the second passage, the government argued that “Section 113(f )(1)” allows “a responsible

party that satisfies its CERCLA liability to the government, through settlement or judgment, [to] obtain contribution.” Id. at 26. Those statements are consistent

with the understanding that Section 113(f )(1) allows

contribution claims after CERCLA suits that end in settlements. See p. 20, supra. Contrary to Guam’s suggestion, the United States has long taken the position

that Section 113(f )(3)(B) encompasses settlements that

resolve claims brought under other laws. See, e.g., U.S.

Amicus Br. at 15 n.4, Niagara Mohawk, supra (No. 083843).

II. THE CONSENT DECREE IN THIS CASE GAVE RISE TO

A POTENTIAL CONTRIBUTION CLAIM UNDER

SECTION 113(f )(3)(B)

Guam also argues (Br. 37-49) that the consent decree

in this case did not give rise to a potential claim for contribution because it did not resolve Guam’s liability for

a response action. That argument, too, is mistaken.

A. A Settlement “Resolves” A Person’s “Liability” If It

Settles The Person’s Legal Obligations

1. Section 113(f )(3)(B) authorizes a person to seek

contribution after it 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.

35

9613(f )(3)(B) (emphasis added). For purposes of that

provision, a settlement resolves liability if it “decides

with certainty and finality [the person’s] obligations for

at least some of its response actions or costs.”

ASARCO, 866 F.3d at 1125. The settlement need not,

as Guam suggests (Br. 38-41), determine whether the

legal claim against the settling party was valid.

The verb “resolve” has two closely related meanings.

First, the verb can mean “to determine, settle, or decide

upon (a point or matter regarding which there is doubt

or dispute),” Oxford English Dictionary (3d ed. Mar.

2010); to “settle,” The Random House Dictionary of the

English Language 1639 (2d ed. 1987); and “to determine or decide; to settle,” Webster’s New International

Dictionary 2122 (2d ed. 1934). For example: “The plea

of nolo contendere resolved the bank-robbery charges.”

“[R]esolve” can also mean “[t]o answer (a question),”

Oxford English Dictionary; “to deal with (a question, a

matter of uncertainty),” The Random House Dictionary of the English Language 1639, and “[t]o answer or

solve, as a question or problem,” Webster’s New International Dictionary 2122. For example: “The plea of

nolo contendere did not resolve whether the defendant

actually robbed the bank.”

The noun “liability,” too, has a range of meanings.

Lawyers sometimes use the noun as a synonym for legal

obligation. Dictionaries thus define “liability” as “[t]he

quality, state, or condition of being legally obligated,”

Black’s Law Dictionary 1097 (11th ed.); “every kind of

legal obligation, responsibility, or duty,” Black’s Law

Dictionary 823 (5th ed. 1979); and “[l]egal responsibility,” Ballentine’s Law Dictionary 732 (3d ed. 1969).

But lawyers sometimes use the noun in a more specific

way to refer to a legal obligation arising from a wrong.

36

Dictionaries thus also define “liability” or “liable” as

“the bond of necessity that exists between the wrongdoer and the remedy of the wrong,” Black’s Law Dictionary 1097 (11th ed.) (citation omitted); the

“[c]ondition of being bound to respond because a wrong

has occurred,” Black’s Law Dictionary 824 (5th ed.);

and “[t]he state or condition of a person after he has

breached his contract or violated any obligation resting

upon him,” Ballentine’s Law Dictionary 732.

The question in this case concerns the meaning of

the whole phrase “resolved its liability,” not the meaning of its component words. See FCC v. AT&T Inc., 562

U.S. 397, 406 (2011). The phrase “resolved its liability”

is most naturally read to mean “settled or determined

its legal obligation”—not “answered the question whether

the defendant committed a wrong.” The latter reading

might have been more plausible if Congress had said

“resolved the issue of liability” or “resolved the question

of liability,” but that is not the phrase Congress used.

The context in which the phrase appears reinforces

that inference. Section 113(f )(3)(B) allows a person to

seek contribution after it has “resolved its liability * * *

in * * * [a] settlement.” 42 U.S.C. 9613(f )(3)(B) (emphasis added). The function of a settlement is to resolve

the practical dispute over what actions the defendant

must take, not to determine whether the plaintiff ’s legal

claim is valid. Indeed, the whole point of settling ordinarily is to avoid the need to decide the claim’s validity.

A party thus “resolves its liability in a settlement” if the

settlement fixes its legal obligations, whether or not the

settlement addresses the validity of the plaintiff ’s legal

claim.

The nature of the “liability” to be settled further supports that conclusion. Section 113(f )(3)(B) confers a

37

right to contribution on a person who has “resolved its

liability * * * for some or all of a response action or

for some or all of the costs of such action.” 42 U.S.C.

9613(f )(3)(B) (emphasis added). The italicized language

refers to the steps the defendant must take going forward, not to the prior conduct for which the defendant

has been sued. That language confirms that it is the

nature and scope of the defendant’s prospective obligations, not its legal responsibility for prior contamination, that the settlement must “resolve.”

Consistent with that understanding, the Court in

United States v. Atlantic Research Corp., 551 U.S. 128

(2007), explained that “Section 113(f )(3)(B) permits private parties to seek contribution after they have settled

their liability with the Government.” Id. at 132 n.1. The

Court also stated that “settlement carries the inherent

benefit of finally resolving liability.” Id. at 141. The

Court thus construed the term “resolved its liability” in

Section 113(f )(3)(B) to mean “settled its liability.”

That reading also fits with the background law of

contribution. Tort law has long allowed contribution “in

favor of one who [has] settle[d] the injured party’s

claim.” Restatement (Second) of Torts App. § 886A Reporter’s Note cmt. b (1982); see Restatement (Third) of

Torts: Apportionment of Liability § 23(a) (2000). In the

absence of clear evidence of contrary congressional intent, Section 113(f )(3)(B) should be read to reflect that

rule, not to depart from it. A statute “is not to be construed as making any innovation upon the common law

which it does not fairly express.” Shaw v. Railroad Co.,

101 U.S. 557, 565 (1880); see Peter v. NantKwest, Inc.,

140 S. Ct. 365, 374 (2019).

38

Finally, that reading makes sense given the statute’s

purposes. Section 113(f )(3)(B) serves to encourage settlements to clean up contaminated sites. See p. 22, supra. The contribution remedy it provides also serves to

avoid the inequity of forcing a single tortfeasor to bear

an entire loss for which other tortfeasors share responsibility. See p. 3, supra. A settlement that orders a person to perform or pay for a response action directly implicates those purposes—it facilitates the cleanup that

the law seeks to encourage, and it could produce an inequitable distribution of costs if no contribution remedy

were available—whether or not it expresses any conclusion about the presence or absence of a prior statutory

breach.

2. In defending its contrary reading, Guam argues

(Br. 38-39) that the verb “resolve” connotes finality and

conclusiveness. So it does, but Guam is wrong about

what must be conclusively decided. The phrase “resolved its liability” requires a conclusive agreement

about what a party must do, not a conclusive agreement

about whether the plaintiff has a valid claim.

Equally mistaken is Guam’s argument (Br. 39) that

“there must be a preexisting liability for undertaking a

response action or paying response costs separate and

apart from the settlement itself.” The verb “resolve”

means “to determine, settle, or decide upon (a point or

matter regarding which there is doubt or dispute).” Oxford English Dictionary (emphasis added). The phrase

“resolved its liability” thus means that there was doubt

or dispute about the liability before the settlement. But

the language of Section 113(f )(3)(B)—“person who has

resolved its liability to the United States or a State * * *

in an administrative or judicially approved settlement,”

39

42 U.S.C. 9613(f )(3)(B)—makes clear that the settlement itself can “resolve” the “liability” and thereby

eliminate that prior doubt. A person who seeks contribution in these circumstances need not show in addition

that it actually committed a legal wrong, or that it would

have been found liable if it had contested the charges to

judgment.

Several considerations reinforce that reading. First,

under background principles of contract law, a claim

can provide consideration for a settlement even if the

claim later “proves to be invalid,” as long as the claim

was “doubtful because of uncertainty as to the facts or

the law” or the “surrendering party believe[d] that the

claim * * * [could] be fairly determined to be valid.”

Restatement (Second) of Contracts § 74(1) (1981). More

generally, contracts routinely have the effect of both

creating new legal obligations and (simultaneously) defining the scope and contours of those duties. To be

sure, Section 113(f )(3)(B) does not extend to contracts

generally; it applies only to “an administrative or judicially approved settlement” with “the United States or

a State.” 42 U.S.C. 9613(f )(3)(B); see Guam Br. 40. But

the contractual aspect of such settlements sheds light

on how those agreements can “resolve” a settling party’s

“liability.”

Second, under background principles of tort law, “[a]

settlor need not prove that he would have been found

liable to the plaintiff ” in order to seek contribution. Restatement (Third) of Torts: Apportionment of Liability

§ 23, cmt. h. Third, elsewhere in its brief, Guam quotes

a committee report stating that Section 113(f ) codifies

“an express ‘right of contribution . . . for persons alleged or held to be liable.’ ” Guam Br. 29 (quoting House

Report Pt. 1, at 79) (emphasis altered). Fourth, it would

40

make little sense to require a settling party who seeks

contribution to show that it would have been found liable to the plaintiff, when the very point of a settlement

is to avoid further litigation over that issue. Fifth, the

purpose of the contribution right is to ensure that, when

an adverse effect is caused by the combined actions of

multiple tortfeasors, the resulting costs are not unfairly

imposed on a single wrongdoer. That purpose is

squarely implicated (indeed, implicated with particular

force) if it is uncertain whether the party seeking contribution committed a wrong at all.

B. The 2004 Consent Decree Resolved Guam’s Liability For

At Least Some Of A Response Action

1. The consent decree in this case gave rise to a potential claim for contribution under Section 113(f )(3)(B).

The decree requires Guam to take a variety of steps, including building a cover for the Ordot Dump, building a

system to divert surface water at the dump, and monitoring the site. See Pet. App. 143a-151a. The case

comes to this Court on the premise that at least some of

those actions fall within the Act’s definition of “response” (which includes “repair or replacement of leaking containers,” “diversion,” and “monitoring,” 42 U.S.C.

9601(24)). Guam’s own theory of the case—that it may

sue the United States under Section 107(a) to recover

“necessary costs of response,” 42 U.S.C. 9607(a)(4)(B)

—depends on the understanding that the actions required by the 2004 consent decree qualify as CERCLA

“response[s].” See pp. 14-15, supra. Guam’s complaint

describes the actions as response actions. See J.A. 6970. And the court of appeals held that, at a minimum,

building a cover at the dump qualifies as a response action. See Pet. App. 22a. Although Guam now disputes

41

that fact-bound conclusion (Br. 36-37, 43 n.10), it forfeited that objection by failing to include it among the

questions presented in its petition (Pet. ii). See Sup. Ct.

R. 14.1(a), 24.1(a); Wood v. Allen, 558 U.S. 290, 304

(2010).

The consent decree “resolved” Guam’s “liability” for

those actions. Before the entry of the decree, Guam’s

legal obligation to perform those actions was open to

doubt or dispute. After the decree, no room for doubt

remained. The decree directed Guam to build a cover,

build a system to divert surface water, and monitor the

site, all on a timetable specified in the decree. See Pet.

App. 142a-151a.

Those directives, moreover, were final and conclusive. A consent decree constitutes both a binding contract and a binding judicial judgment. See Frew v.

Hawkins, 540 U.S. 431, 437 (2004). And a judgment of

a court of law is inherently “final and conclusive upon

the rights of the parties.” Plaut v. Spendthrift Farm,

Inc., 514 U.S. 211, 226 (1995) (citation omitted). The

language of the decree in this case reinforces that understanding: it orders that Guam “shall” perform the

specified actions; states that its provisions “shall apply

and be binding upon the Government of Guam”; describes its directives as “requirements” and “obligations”; forbids modifications to the decree without “the

written approval of the parties” and “the approval of the

Court”; and fixes stipulated penalties for violating its

commands. Pet. App. 140a, 142a, 152a-155a, 160a, 169a.

2. Contrary to Guam’s contention (Br. 41), it makes

no difference that the decree contains a non-admission

clause, stating that the court has entered the decree

“based on the pleadings, before taking testimony or ad-

42

judicating any issue of fact or law, and without any finding or admission of liability against or by the Government of Guam.” Pet. App. 140a. The non-admission

clause uses the term “admission of liability” to mean,

roughly, “acknowledgment of wrongdoing or of the validity of the plaintiff ’s claim.” See pp. 35-36, supra (discussing possible meanings of the word “liability”). The

word “liability” draws meaning from the nearby word

“admission,” and an “admission” is a “statement in

which someone admits that something is true or that he

or she has done something wrong.” Black’s Law Dictionary 58 (11th ed.).

On that understanding, the non-admission clause is

fully consistent with the holding below that the consent

decree “resolved” Guam’s “liability” within the meaning

of Section 113(f )(3)(B). A person can resolve its liability

(that is, settle its legal obligations going forward) even

if it refuses to admit liability (that is, acknowledge the

commission of a prior actionable wrong). “A person can

agree to undertake actions to resolve a claim against it

without admitting to the factual or legal truth purportedly underlying that claim.” Florida Power Corp. v.

FirstEnergy Corp., 810 F.3d 996, 1017 (6th Cir. 2015)

(Suhrheinrich, J., dissenting).

A contrary view would set the Act’s provisions on a

collision course. CERCLA encourages settlement by

providing various benefits to settling parties. Under

one set of provisions, a settling party that has “resolved” its liability (1) may file contribution claims

against other parties and (2) enjoys immunity from

other parties’ contribution claims against it. See

42 U.S.C. 9613(f ), 9622(g)(5) and (h)(4). Under a different set of provisions, a settling party’s participation in

the process of formulating a CERCLA settlement “shall

43

not be considered an admission of liability for any purpose,” 42 U.S.C. 9622(d)(1)(B), and the government

“may fashion a consent decree so that the entering of

such decree and compliance with such decree * * *

shall not be considered an admission of liability for any

purpose,” 42 U.S.C. 9622(d)(1)(C). On Guam’s view,

those two sets of benefits become mutually exclusive. If

a party invokes the option to avoid admitting liability, it

must forgo the benefits granted to those who have resolved their liability. That result would negate Congress’s decision to make both sets of benefits available

to settling parties, undermine Congress’s objective of

encouraging settlements, and violate the principle that

“[t]he provisions of a text should be interpreted in a way

that renders them compatible, not contradictory,” Maracich v. Spears, 570 U.S. 48, 68 (2013) (citation omitted).

Further, non-admission clauses are “customary” in

consent decrees. Maher v. Gagne, 448 U.S. 122, 126 n.8

(1980). During the district-court proceedings in this

case, Guam acknowledged that “it would be very unusual for a CERCLA settlement to announce or accept

or expressly address liability” and that, “[o]rdinarily,

there will be a statement of nonadmission of liability.”

D. Ct. 5/15/18 Tr. 52-53. On that view, few consent decrees would trigger either Section 113(f )(3)(B) or the

six other CERCLA provisions that use the term “resolved its liability.” 42 U.S.C. 9613(f )(2) and (3)(A)-(C),

9622(g)(5) and (12) and (h)(4). Such a result would violate the usual presumption that Congress means its enactments to have “real and substantial effect.” Stone v.

INS, 514 U.S. 386, 397 (1995).

Guam seeks (Br. 43-44) to distinguish the inclusion

of an express non-admission clause from the mere ab-

44

sence of a concession of liability. But it would make little sense for the availability of a CERCLA contribution

remedy to turn on that distinction. The clause in this

case states that the court has entered the decree “without any finding or admission of liability.” Pet. App.

140a. No sound basis exists to distinguish (1) a decree

that lacks a finding or admission of liability from (2) a

decree that says that it lacks a finding or admission of

liability.

3. Contrary to Guam’s contention (Br. 41-42), the

decree’s reservation-of-rights clause and conditional release also do not undermine the resolution of liability.

The reservation-of-rights clause states: “Except as

specifically provided herein, the United States does not

waive any rights or remedies available to it for any violation by the Government of Guam of federal and territorial laws and regulations.” Pet. App. 166a. The conditional release reads: “Entry of this Consent Decree

and compliance with the requirements herein shall be

in full settlement and satisfaction of the [United States’]

civil judicial claims.” Ibid. (emphasis added).

Section 113(f )(3)(B) allows a person to seek contribution if it 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.” 42 U.S.C.

9613(f )(3)(B). A settlement thus can give rise to a contribution claim if it resolves liability to the United

States but not a State, to one State but not others, for

response actions but not costs, for a response action but

not other response actions, or for some of a response

action but not all of it. The settlement must resolve

something, but it need not resolve everything. The settlement here did resolve something: it settled Guam’s

legal obligation to build a cover, build a system to divert

45

surface water, and monitor the site. See pp. 40-41, supra.

The clauses that Guam invokes do not detract from

that resolution. The reservation-of-rights clause preserves the United States’ ability, in certain circumstances, to sue Guam to obtain further remedies beyond

those granted by the consent decree. And the conditional release preserves the United States’ ability to reassert its CWA claims if Guam does not fulfill its promises in the decree. The clauses thus allow the United

States to go beyond the decree in some situations, but

they do not diminish the obligations that the decree has

already settled.

A contrary view would, again, cause Section

113(f )(3)(B) to contradict other parts of the Act. The

Act requires CERCLA settlements to reserve the right

to assert certain claims—namely, claims that arise out

of “conditions which are unknown at the time [EPA]

certifies * * * that remedial action has been completed.” 42 U.S.C. 9622(f )(6)(A). The Act also provides

that “[a]ny covenant not to sue” in a CERCLA settlement “shall be subject to the satisfactory performance

by such party of its obligations under the agreement

concerned.” 42 U.S.C. 9622(f )(5). If a reservation of

rights or a conditional release negated a resolution of

liability, “it is unlikely that a [CERCLA] settlement

agreement could ever resolve a party’s liability.”

ASARCO, 866 F.3d at 1124.

III. ADOPTING GUAM’S READING WOULD DISTORT THE

STATUTORY SCHEME

CERCLA establishes two potential avenues through

which a person may recover cleanup costs: contribution

actions under Section 113(f ) and claims to recover costs

under Section 107(a). See p. 2, supra. Under Guam’s

46

reading, Guam and other parties with similar settlements could seek recovery of costs under Section 107(a)

instead of contribution under Section 113(f )(3)(B). That

approach would distort the statutory scheme and could

produce harmful practical consequences.

Most significantly, adopting Guam’s proposed rule

could delay the timely cleanup of contaminated sites.

The limitations period for Section 113(f )(3)(B) suits

runs from the date of the judgment or settlement,

42 U.S.C. 9613(g)(3), but the limitations period for Section 107(a) claims runs, as relevant here, from the “initiation of physical on-site construction of the remedial

action,” 42 U.S.C. 9613(g)(2)(B). If a settling party

could invoke Section 107(a), it could “choose when a limitation period to which it is subject begins to run” by

deciding when to start on-site construction. Refined

Metals, 937 F.3d at 933. It also could “drag out the process” of seeking funds from other parties. Id. at 932. In

this very case, Guam brought suit 13 years after the

consent decree was entered. See pp. 7-8, supra; see also

Refined Metals, 937 F.3d at 932-933 (suit brought 19

years after consent decree). Those consequences would

undermine one of the Act’s core purposes: “ensur[ing]

that the responsible parties get to the bargaining—and

clean-up—table sooner rather than later.” RSR Corp.

v. Commercial Metals Co., 496 F.3d 552, 558 (6th Cir.

2007); see House Report Pt. 1, at 80.

Sections 107(a) and 113(f )(3)(B) also have different

recovery regimes. In Section 113(f )(3)(B) cases, courts

allocate cleanup costs equitably, in proportion to the

parties’ respective shares of the responsibility. See Atlantic Research, 551 U.S. at 138. Guam argues (Br. 4),

however, that if its suit is allowed to proceed under Sec-

47

tion 107(a), it could seek to impose joint and several liability on the United States—that is, to hold the United

States liable for the entire cost of the cleanup, and thus

to escape its own responsibility for contamination at the

dump.

Perhaps sensing the unattractiveness of that result,

Guam argued in the district court that the United States

could “blunt that blow” by filing a contribution counterclaim under the Act’s other contribution clause, Section

113(f )(1). D. Ct. 5/15/18 Tr. 16; see 42 U.S.C. 9613(f )(1)

(authorizing contribution claims during or after civil actions under Section 107(a)). That argument simply

highlights the pointlessness of Guam’s distortion of the

statute. Guam seemingly agrees that, in suits like this

one, responsibility for cleanup costs should ultimately

be allocated under contribution principles; its only evident purpose in identifying Section 107(a) as the basis

for its own claim is to invoke that provision’s longer

statute of limitations.

* * * * *

Guam asserts that the decision below leads to

“harsh” consequences, Br. 49 (citation omitted), but

Guam overlooks its own responsibility for its predicament. Guam alleges that the Navy disposed of waste at

the Ordot Dump decades ago, but since 1950, Guam has

used the site as a dumping ground for municipal and industrial waste, converting “[w]hat was once a valley”

into “a mountain of trash.” United States v. Government of Guam, No. 02-cv-22, 2008 WL 216918, at *1 (D.

Guam Jan. 24, 2008). For decades, Guam flouted federal

environmental laws and missed deadlines set by EPA’s

administrative orders. Ibid. It then continued to miss

deadlines for years after it entered into the 2004 consent decree. Id. at *2. Indeed, in 2008, the district court

48

in Guam appointed a receiver to carry out Guam’s responsibilities, observing that “there has been an historical and present lack of commitment by the island’s

leaders in addressing this solid waste crisis.” United

States v. Government of Guam, No. 02-cv-22, 2008 WL

732796, at *1 (D. Guam Mar. 17, 2008).

If Guam wished to recover a portion of its costs of

complying with the 2004 consent decree, it could have

filed suit under Section 113(f )(3)(B) within the applicable three-year statute of limitations. Yet Guam missed

that deadline too, and by more than a decade. There is

nothing inequitable about requiring Guam to bear the

legal consequences of its acts and omissions.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Acting Solicitor General

JEAN E. WILLIAMS

Acting Assistant Attorney

General

MALCOLM L. STEWART

Deputy Solicitor General

VIVEK SURI

Assistant to the Solicitor

General

JENNIFER SCHELLER NEUMANN

EVELYN YING

RACHEL HERON

Attorneys

MARCH 2021

APPENDIX

1.

42 U.S.C. 9601 provides in pertinent part:

Definitions

For purpose of this subchapter—

* * * * *

(14) The term “hazardous substance” means (A)

any substance designated pursuant to section

311(b)(2)(A) of the Federal Water Pollution Control

Act [33 U.S.C. 1321(b)(2)(A)], (B) any element, compound, mixture, solution, or substance designated

pursuant to section 9602 of this title, (C) any hazardous waste having the characteristics identified under

or listed pursuant to section 3001 of the Solid Waste

Disposal Act [42 U.S.C. 6921] (but not including any

waste the regulation of which under the Solid Waste

Disposal Act [42 U.S.C. 6901 et seq.] has been suspended by Act of Congress), (D) any toxic pollutant

listed under section 307(a) of the Federal Water Pollution Control Act [33 U.S.C. 1317(a)], (E) any hazardous air pollutant listed under section 112 of the

Clean Air Act [42 U.S.C. 7412], and (F) any imminently hazardous chemical substance or mixture with

respect to which the Administrator has taken action

pursuant to section 7 of the Toxic Substances Control

Act [15 U.S.C. 2606]. The term does not include petroleum, including crude oil or any fraction thereof

which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs

(A) through (F) of this paragraph, and the term does

not include natural gas, natural gas liquids, liquefied

(1a)

2a

natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas).

*

*

*

*

*

(23) The terms “remove” or “removal” means 2

the cleanup or removal of released hazardous substances from the environment, such actions as may

be necessary taken in the event of the threat of release of hazardous substances into the environment,

such actions as may be necessary to monitor, assess,

and evaluate the release or threat of release of hazardous substances, the disposal of removed material,

or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the

public health or welfare or to the environment, which

may otherwise result from a release or threat of release. The term includes, in addition, without being

limited to, security fencing or other measures to limit

access, provision of alternative water supplies, temporary evacuation and housing of threatened individuals not otherwise provided for, action taken under

section 9604(b) of this title, and any emergency assistance which may be provided under the Disaster

Relief and Emergency Assistance Act [42 U.S.C.

5121 et seq.].

(24) The terms “remedy” or “remedial action”

means2 those actions consistent with permanent remedy taken instead of or in addition to removal actions

in the event of a release or threatened release of a

hazardous substance into the environment, to prevent or minimize the release of hazardous substances

2

So in original.

Probably should be “mean”.

3a

so that they do not migrate to cause substantial danger to present or future public health or welfare or

the environment. The term includes, but is not limited to, such actions at the location of the release as

storage, confinement, perimeter protection using

dikes, trenches, or ditches, clay cover, neutralization,

cleanup of released hazardous substances and associated contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes,

dredging or excavations, repair or replacement of

leaking containers, collection of leachate and runoff,

onsite treatment or incineration, provision of alternative water supplies, and any monitoring reasonably

required to assure that such actions protect the public health and welfare and the environment. The

term includes the costs of permanent relocation of

residents and businesses and community facilities

where the President determines that, alone or in combination with other measures, such relocation is more

cost-effective than and environmentally preferable to

the transportation, storage, treatment, destruction,

or secure disposition offsite of hazardous substances,

or may otherwise be necessary to protect the public

health or welfare; the term includes offsite transport

and offsite storage, treatment, destruction, or secure

disposition of hazardous substances and associated

contaminated materials.

(25) The terms “respond” or “response” means2

remove, removal, remedy, and remedial action;, 3 all

3

So in original.

4a

such terms (including the terms “removal” and “remedial action”) include enforcement activities related

thereto.

* * * * *

(35)(D) Nothing in this paragraph shall affect

the liability under this chapter of a defendant who, by

any act or omission, caused or contributed to the release or threatened release of a hazardous substance

which is the subject of the action relating to the facility.

*

2.

*

*

*

*

42 U.S.C. 9604 provides in pertinent part:

Response authorities

*

*

*

*

*

( j) Acquisition of property

(1) Authority

The President is authorized to acquire, by purchase, lease, condemnation, donation, or otherwise,

any real property or any interest in real property

that the President in his discretion determines is

needed to conduct a remedial action under this chapter. There shall be no cause of action to compel the

President to acquire any interest in real property under this chapter.

* * * * *

(k) Brownfields revitalization funding

*

*

*

*

*

5a

(12) Effect on Federal laws

Nothing in this subsection affects any liability or response authority under any Federal law, including—

(A) this chapter (including the last sentence

of section 9601(14) of this title);

(B) the Solid Waste Disposal Act (42 U.S.C.

6901 et seq.);

(C) the Federal Water Pollution Control Act

(33 U.S.C. 1251 et seq.);

(D) the Toxic Substances Control Act (15

U.S.C. 2601 et seq.); and

(E) the Safe Drinking Water Act (42 U.S.C.

300f et seq.).

* * * * *

3.

42 U.S.C. 9605(b) provides:

National contingency plan

(b) Revision of plan

Not later than 18 months after the enactment of the

Superfund Amendments and Reauthorization Act of

1986 [October 17, 1986], the President shall revise the

National Contingency Plan to reflect the requirements

of such amendments. The portion of such Plan known

as “the National Hazardous Substance Response Plan”

shall be revised to provide procedures and standards for

remedial actions undertaken pursuant to this chapter

which are consistent with amendments made by the Superfund Amendments and Reauthorization Act of 1986

relating to the selection of remedial action.

6a

4.

42 U.S.C. 9606(a) provides:

Abatement actions

(a) Maintenance, jurisdiction, etc.

In addition to any other action taken by a State or

local government, when the President determines that

there may be an imminent and substantial endangerment to the public health or welfare or the environment

because of an actual or threatened release of a hazardous substance from a facility, he may require the Attorney General of the United States to secure such relief as

may be necessary to abate such danger or threat, and

the district court of the United States in the district in

which the threat occurs shall have jurisdiction to grant

such relief as the public interest and the equities of the

case may require. The President may also, after notice

to the affected State, take other action under this section including, but not limited to, issuing such orders as

may be necessary to protect public health and welfare

and the environment.

5.

42 U.S.C. 9607 provides in pertinent part:

Liability

(a) Covered persons; scope; recoverable costs and damages; interest rate; “comparable maturity” date

Notwithstanding any other provision or rule of law,

and subject only to the defenses set forth in subsection

(b) of this section—

(1)

ity,

the owner and operator of a vessel or a facil-

7a

(2) any person who at the time of disposal of any

hazardous substance owned or operated any facility

at which such hazardous substances were disposed

of,

(3) any person who by contract, agreement, or

otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal

or treatment, of hazardous substances owned or possessed by such person, by any other party or entity,

at any facility or incineration vessel owned or operated by another party or entity and containing such

hazardous substances, and

(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected

by such person, from which there is a release, or a

threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable

for—

(A) all costs of removal or remedial action incurred by the United States Government or a

State or an Indian tribe not inconsistent with the

national contingency plan;

(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan;

(C) damages for injury to, destruction of, or

loss of natural resources, including the reasonable

costs of assessing such injury, destruction, or loss

resulting from such a release; and

8a

(D) the costs of any health assessment or

health effects study carried out under section

9604(i) of this title.

The amounts recoverable in an action under this section

shall include interest on the amounts recoverable under

subparagraphs (A) through (D). Such interest shall accrue from the later of (i) the date payment of a specified

amount is demanded in writing, or (ii) the date of the

expenditure concerned. The rate of interest on the

outstanding unpaid balance of the amounts recoverable

under this section shall be the same rate as is specified

for interest on investments of the Hazardous Substance

Superfund established under subchapter A of chapter 98

of title 26. For purposes of applying such amendments

to interest under this subsection, the term “comparable

maturity” shall be determined with reference to the date

on which interest accruing under this subsection commences.

* * * * *

(l) Federal lien

*

*

*

*

*

(2) Duration

The lien imposed by this subsection shall arise at

the later of the following:

(A) The time costs are first incurred by the

United States with respect to a response action

under this chapter.

* * * * *

9a

6.

42 U.S.C. 9612(c)(2) provides:

Claims procedure

(c) Subrogation rights; actions maintainable

(2) Any person, including the Fund, who pays compensation pursuant to this chapter to any claimant for

damages or costs resulting from a release of a hazardous

substance shall be subrogated to all rights, claims, and

causes of action for such damages and costs of removal

that the claimant has under this chapter or any other

law.

7.

42 U.S.C. 9613 provides:

Civil proceedings

(a) Review of regulations in Circuit Court of Appeals of

the United States for the District of Columbia

Review of any regulation promulgated under this

chapter may be had upon application by any interested

person only in the Circuit Court of Appeals of the United

States for the District of Columbia. Any such application shall be made within ninety days from the date of

promulgation of such regulations. Any matter with respect to which review could have been obtained under

this subsection shall not be subject to judicial review in

any civil or criminal proceeding for enforcement or to

obtain damages or recovery of response costs.

(b) Jurisdiction; venue

Except as provided in subsections (a) and (h) of this

section, the United States district courts shall have exclusive original jurisdiction over all controversies arising under this chapter, without regard to the citizenship

10a

of the parties or the amount in controversy. Venue

shall lie in any district in which the release or damages

occurred, or in which the defendant resides, may be

found, or has his principal office. For the purposes of

this section, the Fund shall reside in the District of Columbia.

(c) Controversies or other matters resulting from tax

collection or tax regulation review

The provisions of subsections (a) and (b) of this section shall not apply to any controversy or other matter

resulting from the assessment of collection of any tax,

as provided by subchapter II1 of this chapter, or to the

review of any regulation promulgated under title 26.

(d) Litigation commenced prior to December 11, 1980

No provision of this chapter shall be deemed or held

to moot any litigation concerning any release of any hazardous substance, or any damages associated therewith,

commenced prior to December 11, 1980.

(e) Nationwide service of process

In any action by the United States under this chapter, process may be served in any district where the defendant is found, resides, transacts business, or has appointed an agent for the service of process.

(f ) Contribution

(1) Contribution

Any person may seek contribution from any other

person who is liable or potentially liable under section 9607(a) of this title, during or following any civil

1

See References in text note below.

11a

action under section 9606 of this title or under section

9607(a) of this title. Such claims shall be brought in

accordance with this section and the Federal Rules of

Civil Procedure, and shall be governed by Federal

law. In resolving contribution claims, the court may

allocate response costs among liable parties using

such equitable factors as the court determines are

appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section

9606 of this title or section 9607 of this title.

(2) Settlement

A person who has resolved its liability to the

United States or a State in an administrative or judicially approved settlement shall not be liable for

claims for contribution regarding matters addressed

in the settlement. Such settlement does not discharge any of the other potentially liable persons unless its terms so provide, but it reduces the potential

liability of the others by the amount of the settlement.

(3) Persons not party to settlement

(A) If the United States or a State has obtained

less than complete relief from a person who has resolved its liability to the United States or the State in

an administrative or judicially approved settlement,

the United States or the State may bring an action

against any person who has not so resolved its liability.

(B) 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

12a

an administrative or judicially approved settlement

may seek contribution from any person who is not

party to a settlement referred to in paragraph (2).

(C) In any action under this paragraph, the

rights of any person who has resolved its liability to

the United States or a State shall be subordinate to

the rights of the United States or the State. Any

contribution action brought under this paragraph

shall be governed by Federal law.

(g) Period in which action may be brought

(1) Actions for natural resource damages

Except as provided in paragraphs (3) and (4), no

action may be commenced for damages (as defined in

section 9601(6) of this title) under this chapter, unless

that action is commenced within 3 years after the

later of the following:

(A) The date of the discovery of the loss and

its connection with the release in question.

(B) The date on which regulations are promulgated under section 9651(c) of this title.

With respect to any facility listed on the National Priorities List (NPL), any Federal facility identified under section 9620 of this title (relating to Federal facilities), or any vessel or facility at which a remedial

action under this chapter is otherwise scheduled, an

action for damages under this chapter must be commenced within 3 years after the completion of the remedial action (excluding operation and maintenance

activities) in lieu of the dates referred to in subparagraph (A) or (B). In no event may an action for damages under this chapter with respect to such a vessel

13a

or facility be commenced (i) prior to 60 days after the

Federal or State natural resource trustee provides to

the President and the potentially responsible party a

notice of intent to file suit, or (ii) before selection of

the remedial action if the President is diligently proceeding with a remedial investigation and feasibility

study under section 9604(b) of this title or section

9620 of this title (relating to Federal facilities). The

limitation in the preceding sentence on commencing

an action before giving notice or before selection of

the remedial action does not apply to actions filed on

or before October 17, 1986.

(2) Actions for recovery of costs

An initial action for recovery of the costs referred

to in section 9607 of this title must be commenced—

(A) for a removal action, within 3 years after

completion of the removal action, except that such

cost recovery action must be brought within 6

years after a determination to grant a waiver under section 9604(c)(1)(C) of this title for continued

response action; and

(B) for a remedial action, within 6 years after

initiation of physical on-site construction of the remedial action, except that, if the remedial action is

initiated within 3 years after the completion of the

removal action, costs incurred in the removal action may be recovered in the cost recovery action

brought under this subparagraph.

In any such action described in this subsection, the

court shall enter a declaratory judgment on liability

for response costs or damages that will be binding on

any subsequent action or actions to recover further

14a

response costs or damages. A subsequent action or

actions under section 9607 of this title for further response costs at the vessel or facility may be maintained at any time during the response action, but

must be commenced no later than 3 years after the

date of completion of all response action. Except as

otherwise provided in this paragraph, an action may

be commenced under section 9607 of this title for recovery of costs at any time after such costs have been

incurred.

(3) Contribution

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 under

this chapter for recovery of such costs or damages,

or

(B) the date of an administrative order under

section 9622(g) of this title (relating to de minimis

settlements) or 9622(h) of this title (relating to

cost recovery settlements) or entry of a judicially

approved settlement with respect to such costs or

damages.

(4) Subrogation

No action based on rights subrogated pursuant to

this section by reason of payment of a claim may be

commenced under this subchapter more than 3 years

after the date of payment of such claim.

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(5) Actions to recover indemnification payments

Notwithstanding any other provision of this subsection, where a payment pursuant to an indemnification agreement with a response action contractor

is made under section 9619 of this title, an action under section 9607 of this title for recovery of such indemnification payment from a potentially responsible party may be brought at any time before the expiration of 3 years from the date on which such payment is made.

(6) Minors and incompetents

The time limitations contained herein shall not

begin to run—

(A) against a minor until the earlier of the

date when such minor reaches 18 years of age or

the date on which a legal representative is duly appointed for such minor, or

(B) against an incompetent person until the

earlier of the date on which such incompetent’s incompetency ends or the date on which a legal representative is duly appointed for such incompetent.

(h) Timing of review

No Federal court shall have jurisdiction under Federal law other than under section 1332 of title 28 (relating to diversity of citizenship jurisdiction) or under State

law which is applicable or relevant and appropriate under section 9621 of this title (relating to cleanup standards) to review any challenges to removal or remedial

16a

action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title,

in any action except one of the following:

(1) An action under section 9607 of this title to

recover response costs or damages or for contribution.

(2) An action to enforce an order issued under

section 9606(a) of this title or to recover a penalty for

violation of such order.

(3) An action for reimbursement under section

9606(b)(2) of this title.

(4) An action under section 9659 of this title (relating to citizens suits) alleging that the removal or

remedial action taken under section 9604 of this title

or secured under section 9606 of this title was in violation of any requirement of this chapter. Such an

action may not be brought with regard to a removal

where a remedial action is to be undertaken at the

site.

(5) An action under section 9606 of this title in

which the United States has moved to compel a remedial action.

(i) Intervention

In any action commenced under this chapter or under

the Solid Waste Disposal Act [42 U.S.C. 6901 et seq.] in

a court of the United States, any person may intervene

as a matter of right when such person claims an interest

relating to the subject of the action and is so situated

that the disposition of the action may, as a practical matter, impair or impede the person’s ability to protect that

interest, unless the President or the State shows that

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the person’s interest is adequately represented by existing parties.

( j) Judicial review

(1) Limitation

In any judicial action under this chapter, judicial

review of any issues concerning the adequacy of any

response action taken or ordered by the President

shall be limited to the administrative record. Otherwise applicable principles of administrative law

shall govern whether any supplemental materials

may be considered by the court.

(2) Standard

In considering objections raised in any judicial action under this chapter, the court shall uphold the

President’s decision in selecting the response action

unless the objecting party can demonstrate, on the

administrative record, that the decision was arbitrary and capricious or otherwise not in accordance

with law.

(3) Remedy

If the court finds that the selection of the response

action was arbitrary and capricious or otherwise not

in accordance with law, the court shall award (A) only

the response costs or damages that are not inconsistent with the national contingency plan, and (B)

such other relief as is consistent with the National

Contingency Plan.

(4) Procedural errors

In reviewing alleged procedural errors, the court

may disallow costs or damages only if the errors were

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so serious and related to matters of such central relevance to the action that the action would have been

significantly changed had such errors not been made.

(k) Administrative record and participation procedures

(1) Administrative record

The President shall establish an administrative

record upon which the President shall base the selection of a response action. The administrative record

shall be available to the public at or near the facility

at issue. The President also may place duplicates of

the administrative record at any other location.

(2) Participation procedures

(A)

Removal action

The President shall promulgate regulations in

accordance with chapter 5 of title 5 establishing

procedures for the appropriate participation of interested persons in the development of the administrative record on which the President will base

the selection of removal actions and on which judicial review of removal actions will be based.

(B)

Remedial action

The President shall provide for the participation of interested persons, including potentially

responsible parties, in the development of the administrative record on which the President will

base the selection of remedial actions and on

which judicial review of remedial actions will be

based. The procedures developed under this

subparagraph shall include, at a minimum, each of

the following:

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(i) Notice to potentially affected persons

and the public, which shall be accompanied by

a brief analysis of the plan and alternative

plans that were considered.

(ii) A reasonable opportunity to comment

and provide information regarding the plan.

(iii) An opportunity for a public meeting in

the affected area, in accordance with section

9617(a)(2) of this title (relating to public participation).

(iv) A response to each of the significant

comments, criticisms, and new data submitted

in written or oral presentations.

(v) A statement of the basis and purpose of

the selected action.

For purposes of this subparagraph, the administrative record shall include all items developed

and received under this subparagraph and all

items described in the second sentence of section

9617(d) of this title. The President shall promulgate regulations in accordance with chapter 5 of

title 5 to carry out the requirements of this subparagraph.

(C)

Interim record

Until such regulations under subparagraphs

(A) and (B) are promulgated, the administrative

record shall consist of all items developed and received pursuant to current procedures for selection of the response action, including procedures

for the participation of interested parties and the

public. The development of an administrative

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record and the selection of response action under

this chapter shall not include an adjudicatory

hearing.

(D)

Potentially responsible parties

The President shall make reasonable efforts to

identify and notify potentially responsible parties

as early as possible before selection of a response

action. Nothing in this paragraph shall be construed to be a defense to liability.

(l) Notice of actions

Whenever any action is brought under this chapter in

a court of the United States by a plaintiff other than the

United States, the plaintiff shall provide a copy of the

complaint to the Attorney General of the United States

and to the Administrator of the Environmental Protection Agency.

8.

42 U.S.C. 9614(b) provides:

Relationship to other law

(b) Recovery under other State or Federal law of compensation for removal costs or damages, or payment

of claims

Any person who receives compensation for removal

costs or damages or claims pursuant to this chapter shall

be precluded from recovering compensation for the

same removal costs or damages or claims pursuant to

any other State or Federal law. Any person who receives

compensation for removal costs or damages or claims

pursuant to any other Federal or State law shall be pre-

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cluded from receiving compensation for the same removal costs or damages or claims as provided in this

chapter.

9.

42 U.S.C. 9619(e)(1) provides:

Response action contractors

(e) Definitions

For purposes of this section—

(1) Response action contract

The term “response action contract” means any

written contract or agreement entered into by a response action contractor (as defined in paragraph

(2)(A) of this subsection) with—

(A)

the President;

(B)

any Federal agency;

(C) a State or political subdivision which has

entered into a contract or cooperative agreement

in accordance with section 9604(d)(1) of this title;

or

(D) any potentially responsible party carrying out an agreement under section 9606 or 9622

of this title;

to provide any remedial action under this chapter at

a facility listed on the National Priorities List, or any

removal under this chapter, with respect to any release or threatened release of a hazardous substance

or pollutant or contaminant from the facility or to

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provide any evaluation, planning, engineering, surveying and mapping, design, construction, equipment,

or any ancillary services thereto for such facility.

10. 42 U.S.C. 9620(d)(2)(B) provides:

Federal facilities

(d) Assessment and evaluation

(2) Application of criteria

(B)

Response under other law

It shall be an appropriate factor to be taken

into consideration for the purposes of section

9605(a)(8)(A) of this title that the head of the department, agency, or instrumentality that owns or

operates a facility has arranged with the Administrator or appropriate State authorities to respond

appropriately, under authority of a law other than

this chapter, to a release or threatened release of

a hazardous substance.

11. 42 U.S.C. 9622 provides:

Settlements

(a) Authority to enter into agreements

The President, in his discretion, may enter into an

agreement with any person (including the owner or operator of the facility from which a release or substantial

threat of release emanates, or any other potentially responsible person), to perform any response action (including any action described in section 9604(b) of this

title) if the President determines that such action will be

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done properly by such person. Whenever practicable

and in the public interest, as determined by the President, the President shall act to facilitate agreements under this section that are in the public interest and consistent with the National Contingency Plan in order to

expedite effective remedial actions and minimize litigation. If the President decides not to use the procedures in this section, the President shall notify in writing potentially responsible parties at the facility of such

decision and the reasons why use of the procedures is

inappropriate. A decision of the President to use or not

to use the procedures in this section is not subject to judicial review.

(b) Agreements with potentially responsible parties

(1) Mixed funding

An agreement under this section may provide that

the President will reimburse the parties to the agreement from the Fund, with interest, for certain costs

of actions under the agreement that the parties have

agreed to perform but which the President has agreed

to finance. In any case in which the President provides such reimbursement, the President shall make

all reasonable efforts to recover the amount of such

reimbursement under section 9607 of this title or under other relevant authorities.

(2) Reviewability

The President’s decisions regarding the availability of fund financing under this subsection shall not

be subject to judicial review under subsection (d).

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(3) Retention of funds

If, as part of any agreement, the President will be

carrying out any action and the parties will be paying

amounts to the President, the President may, notwithstanding any other provision of law, retain and

use such amounts for purposes of carrying out the

agreement.

(4) Future obligation of Fund

In the case of a completed remedial action pursuant to an agreement described in paragraph (1), the

Fund shall be subject to an obligation for subsequent

remedial actions at the same facility but only to the

extent that such subsequent actions are necessary by

reason of the failure of the original remedial action.

Such obligation shall be in a proportion equal to,

but not exceeding, the proportion contributed by the

Fund for the original remedial action. The Fund’s

obligation for such future remedial action may be met

through Fund expenditures or through payment, following settlement or enforcement action, by parties

who were not signatories to the original agreement.

(c) Effect of agreement

(1) Liability

Whenever the President has entered into an agreement under this section, the liability to the United

States under this chapter of each party to the agreement, including any future liability to the United

States, arising from the release or threatened release

that is the subject of the agreement shall be limited

as provided in the agreement pursuant to a covenant

not to sue in accordance with subsection (f ). A covenant not to sue may provide that future liability to

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the United States of a settling potentially responsible

party under the agreement may be limited to the

same proportion as that established in the original

settlement agreement. Nothing in this section shall

limit or otherwise affect the authority of any court to

review in the consent decree process under subsection (d) any covenant not to sue contained in an

agreement under this section. In determining the

extent to which the liability of parties to an agreement shall be limited pursuant to a covenant not to

sue, the President shall be guided by the principle

that a more complete covenant not to sue shall be provided for a more permanent remedy undertaken by

such parties.

(2) Actions against other persons

If an agreement has been entered into under this

section, the President may take any action under section 9606 of this title against any person who is not a

party to the agreement, once the period for submitting a proposal under subsection (e)(2)(B) has expired. Nothing in this section shall be construed to

affect either of the following:

(A) The liability of any person under section

9606 or 9607 of this title with respect to any costs

or damages which are not included in the agreement.

(B) The authority of the President to maintain an action under this chapter against any person who is not a party to the agreement.

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(d) Enforcement

(1) Cleanup agreements

(A)

Consent decree

Whenever the President enters into an agreement under this section with any potentially responsible party with respect to remedial action

under section 9606 of this title, following approval

of the agreement by the Attorney General, except

as otherwise provided in the case of certain administrative settlements referred to in subsection (g),

the agreement shall be entered in the appropriate

United States district court as a consent decree.

The President need not make any finding regarding an imminent and substantial endangerment to

the public health or the environment in connection

with any such agreement or consent decree.

(B)

Effect

The entry of any consent decree under this subsection shall not be construed to be an acknowledgment by the parties that the release or threatened release concerned constitutes an imminent

and substantial endangerment to the public health

or welfare or the environment. Except as otherwise provided in the Federal Rules of Evidence,

the participation by any party in the process under this section shall not be considered an admission of liability for any purpose, and the fact of

such participation shall not be admissible in any

judicial or administrative proceeding, including a

subsequent proceeding under this section.

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(C)

Structure

The President may fashion a consent decree so

that the entering of such decree and compliance

with such decree or with any determination or

agreement made pursuant to this section shall not

be considered an admission of liability for any purpose.

(2) Public participation

(A)

Filing of proposed judgment

At least 30 days before a final judgment is entered under paragraph (1), the proposed judgment shall be filed with the court.

(B)

Opportunity for comment

The Attorney General shall provide an opportunity to persons who are not named as parties to

the action to comment on the proposed judgment

before its entry by the court as a final judgment.

The Attorney General shall consider, and file with

the court, any written comments, views, or allegations relating to the proposed judgment. The Attorney General may withdraw or withhold its consent to the proposed judgment if the comments,

views, and allegations concerning the judgment

disclose facts or considerations which indicate that

the proposed judgment is inappropriate, improper,

or inadequate.

(3) 9604(b) agreements

Whenever the President enters into an agreement

under this section with any potentially responsible

party with respect to action under section 9604(b) of

this title, the President shall issue an order or enter

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into a decree setting forth the obligations of such

party. The United States district court for the district in which the release or threatened release occurs may enforce such order or decree.

(e) Special notice procedures

(1) Notice

Whenever the President determines that a period

of negotiation under this subsection would facilitate

an agreement with potentially responsible parties for

taking response action (including any action described

in section 9604(b) of this title) and would expedite remedial action, the President shall so notify all such

parties and shall provide them with information concerning each of the following:

(A) The names and addresses of potentially

responsible parties (including owners and operators and other persons referred to in section 9607(a)

of this title), to the extent such information is available.

(B) To the extent such information is available, the volume and nature of substances contributed by each potentially responsible party identified at the facility.

(C) A ranking by volume of the substances at

the facility, to the extent such information is available.

The President shall make the information referred to

in this paragraph available in advance of notice under

this paragraph upon the request of a potentially responsible party in accordance with procedures pro-

29a

vided by the President. The provisions of subsection (e) of section 9604 of this title regarding protection of confidential information apply to information

provided under this paragraph. Disclosure of information generated by the President under this section

to persons other than the Congress, or any duly authorized Committee thereof, is subject to other privileges or protections provided by law, including (but

not limited to) those applicable to attorney work

product. Nothing contained in this paragraph or in

other provisions of this chapter shall be construed,

interpreted, or applied to diminish the required disclosure of information under other provisions of this

or other Federal or State laws.

(2) Negotiation

(A)

Moratorium

Except as provided in this subsection, the President may not commence action under section

9604(a) of this title or take any action under section 9606 of this title for 120 days after providing

notice and information under this subsection with

respect to such action. Except as provided in

this subsection, the President may not commence

a remedial investigation and feasibility study under section 9604(b) of this title for 90 days after

providing notice and information under this subsection with respect to such action. The President may commence any additional studies or investigations authorized under section 9604(b) of

this title, including remedial design, during the

negotiation period.

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(B)

Proposals

Persons receiving notice and information under paragraph (1) of this subsection with respect

to action under section 9606 of this title shall have

60 days from the date of receipt of such notice to

make a proposal to the President for undertaking

or financing the action under section 9606 of this

title. Persons receiving notice and information

under paragraph (1) of this subsection with respect to action under section 9604(b) of this title

shall have 60 days from the date of receipt of such

notice to make a proposal to the President for undertaking or financing the action under section

9604(b) of this title.

(C)

Additional parties

If an additional potentially responsible party is

identified during the negotiation period or after an

agreement has been entered into under this subsection concerning a release or threatened release,

the President may bring the additional party into

the negotiation or enter into a separate agreement

with such party.

(3) Preliminary allocation of responsibility

(A)

In general

The President shall develop guidelines for preparing nonbinding preliminary allocations of responsibility. In developing these guidelines the

President may include such factors as the President considers relevant, such as: volume, toxicity,

mobility, strength of evidence, ability to pay, litigative risks, public interest considerations, prece-

31a

dential value, and inequities and aggravating factors. When it would expedite settlements under

this section and remedial action, the President may,

after completion of the remedial investigation and

feasibility study, provide a nonbinding preliminary allocation of responsibility which allocates percentages of the total cost of response among potentially responsible parties at the facility.

(B)

Collection of information

To collect information necessary or appropriate for performing the allocation under subparagraph (A) or for otherwise implementing this section, the President may by subpoena require the

attendance and testimony of witnesses and the production of reports, papers, documents, answers

to questions, and other information that the President deems necessary. Witnesses shall be paid

the same fees and mileage that are paid witnesses

in the courts of the United States. In the event

of contumacy or failure or refusal of any person to

obey any such subpoena, any district court of the

United States in which venue is proper shall have

jurisdiction to order any such person to comply

with such subpoena. Any failure to obey such an

order of the court is punishable by the court as a

contempt thereof.

(C)

Effect

The nonbinding preliminary allocation of responsibility shall not be admissible as evidence in

any proceeding, and no court shall have jurisdiction to review the nonbinding preliminary alloca-

32a

tion of responsibility. The nonbinding preliminary allocation of responsibility shall not constitute an apportionment or other statement on the

divisibility of harm or causation.

(D)

Costs

The costs incurred by the President in producing the nonbinding preliminary allocation of responsibility shall be reimbursed by the potentially

responsible parties whose offer is accepted by the

President. Where an offer under this section is

not accepted, such costs shall be considered costs

of response.

(E)

Decision to reject offer

Where the President, in his discretion, has provided a nonbinding preliminary allocation of responsibility and the potentially responsible parties have made a substantial offer providing for response to the President which he rejects, the reasons for the rejection shall be provided in a written explanation. The President’s decision to reject such an offer shall not be subject to judicial

review.

(4) Failure to propose

If the President determines that a good faith proposal for undertaking or financing action under section 9606 of this title has not been submitted within

60 days of the provision of notice pursuant to this

subsection, the President may thereafter commence

action under section 9604(a) of this title or take an

action against any person under section 9606 of this

title. If the President determines that a good faith

proposal for undertaking or financing action under

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section 9604(b) of this title has not been submitted

within 60 days after the provision of notice pursuant

to this subsection, the President may thereafter commence action under section 9604(b) of this title.

(5) Significant threats

Nothing in this subsection shall limit the President’s authority to undertake response or enforcement action regarding a significant threat to public

health or the environment within the negotiation period established by this subsection.

(6) Inconsistent response action

When either the President, or a potentially responsible party pursuant to an administrative order

or consent decree under this chapter, has initiated a

remedial investigation and feasibility study for a particular facility under this chapter, no potentially responsible party may undertake any remedial action

at the facility unless such remedial action has been

authorized by the President.

(f ) Covenant not to sue

(1) Discretionary covenants

The President may, in his discretion, provide any

person with a covenant not to sue concerning any liability to the United States under this chapter, including future liability, resulting from a release or threatened release of a hazardous substance addressed by

a remedial action, whether that action is onsite or

offsite, if each of the following conditions is met:

(A) The covenant not to sue is in the public

interest.

34a

(B) The covenant not to sue would expedite

response action consistent with the National Contingency Plan under section 9605 of this title.

(C) The person is in full compliance with a

consent decree under section 9606 of this title (including a consent decree entered into in accordance with this section) for response to the release

or threatened release concerned.

(D) The response action has been approved

by the President.

(2) Special covenants not to sue

In the case of any person to whom the President

is authorized under paragraph (1) of this subsection

to provide a covenant not to sue, for the portion of

remedial action—

(A) which involves the transport and secure

disposition offsite of hazardous substances in a facility meeting the requirements of sections 6924(c),

(d), (e), (f ), (g), (m), (o), (p), (u), and (v) and 6925(c)

of this title, where the President has rejected a

proposed remedial action that is consistent with

the National Contingency Plan that does not include such offsite disposition and has thereafter

required offsite disposition; or

(B) which involves the treatment of hazardous substances so as to destroy, eliminate, or permanently immobilize the hazardous constituents

of such substances, such that, in the judgment of

the President, the substances no longer present

any current or currently foreseeable future significant risk to public health, welfare or the environ-

35a

ment, no byproduct of the treatment or destruction process presents any significant hazard to

public health, welfare or the environment, and all

byproducts are themselves treated, destroyed, or

contained in a manner which assures that such byproducts do not present any current or currently

foreseeable future significant risk to public health,

welfare or the environment,

the President shall provide such person with a covenant not to sue with respect to future liability to the

United States under this chapter for a future release

or threatened release of hazardous substances from

such facility, and a person provided such covenant

not to sue shall not be liable to the United States under section 9606 or 9607 of this title with respect to

such release or threatened release at a future time.

(3) Requirement that remedial action be completed

A covenant not to sue concerning future liability

to the United States shall not take effect until the

President certifies that remedial action has been

completed in accordance with the requirements of

this chapter at the facility that is the subject of such

covenant.

(4) Factors

In assessing the appropriateness of a covenant not

to sue under paragraph (1) and any condition to be

included in a covenant not to sue under paragraph (1)

or (2), the President shall consider whether the covenant or condition is in the public interest on the basis

of such factors as the following:

36a

(A) The effectiveness and reliability of the

remedy, in light of the other alternative remedies

considered for the facility concerned.

(B) The nature of the risks remaining at the

facility.

(C) The extent to which performance standards are included in the order or decree.

(D) The extent to which the response action

provides a complete remedy for the facility, including a reduction in the hazardous nature of the

substances at the facility.

(E) The extent to which the technology used

in the response action is demonstrated to be effective.

(F) Whether the Fund or other sources of

funding would be available for any additional remedial actions that might eventually be necessary

at the facility.

(G) Whether the remedial action will be carried out, in whole or in significant part, by the responsible parties themselves.

(5) Satisfactory performance

Any covenant not to sue under this subsection

shall be subject to the satisfactory performance by

such party of its obligations under the agreement

concerned.

(6) Additional condition for future liability

(A) Except for the portion of the remedial action

which is subject to a covenant not to sue under para-

37a

graph (2) or under subsection (g) (relating to de minimis settlements), a covenant not to sue a person concerning future liability to the United States shall include an exception to the covenant that allows the

President to sue such person concerning future liability resulting from the release or threatened release that is the subject of the covenant where such

liability arises out of conditions which are unknown

at the time the President certifies under paragraph

(3) that remedial action has been completed at the facility concerned.

(B) In extraordinary circumstances, the President may determine, after assessment of relevant

factors such as those referred to in paragraph (4) and

volume, toxicity, mobility, strength of evidence, ability to pay, litigative risks, public interest considerations, precedential value, and inequities and aggravating factors, not to include the exception referred

to in subparagraph (A) if other terms, conditions, or

requirements of the agreement containing the covenant not to sue are sufficient to provide all reasonable

assurances that public health and the environment

will be protected from any future releases at or from

the facility.

(C) The President is authorized to include any

provisions allowing future enforcement action under

section 9606 or 9607 of this title that in the discretion

of the President are necessary and appropriate to assure protection of public health, welfare, and the environment.

38a

(g) De minimis settlements

(1) Expedited final settlement

Whenever practicable and in the public interest,

as determined by the President, the President shall

as promptly as possible reach a final settlement with

a potentially responsible party in an administrative

or civil action under section 9606 or 9607 of this title

if such settlement involves only a minor portion of the

response costs at the facility concerned and, in the

judgment of the President, the conditions in either of

the following subparagraph (A) or (B) are met:

(A) Both of the following are minimal in comparison to other hazardous substances at the facility:

(i) The amount of the hazardous substances contributed by that party to the facility.

(ii) The toxic or other hazardous effects of

the substances contributed by that party to the

facility.

(B)

The potentially responsible party—

(i) is the owner of the real property on or

in which the facility is located;

(ii) did not conduct or permit the generation, transportation, storage, treatment, or disposal of any hazardous substance at the facility;

and

(iii) did not contribute to the release or

threat of release of a hazardous substance at

the facility through any action or omission.

39a

This subparagraph (B) does not apply if the potentially responsible party purchased the real property with actual or constructive knowledge that

the property was used for the generation, transportation, storage, treatment, or disposal of any

hazardous substance.

(2) Covenant not to sue

The President may provide a covenant not to sue

with respect to the facility concerned to any party

who has entered into a settlement under this subsection unless such a covenant would be inconsistent

with the public interest as determined under subsection (f ).

(3) Expedited agreement

The President shall reach any such settlement or

grant any such covenant not to sue as soon as possible

after the President has available the information necessary to reach such a settlement or grant such a covenant.

(4) Consent decree or administrative order

A settlement under this subsection shall be entered as a consent decree or embodied in an administrative order setting forth the terms of the settlement. In the case of any facility where the total response costs exceed $500,000 (excluding interest), if

the settlement is embodied as an administrative order, the order may be issued only with the prior written approval of the Attorney General. If the Attorney General or his designee has not approved or disapproved the order within 30 days of this referral, the

order shall be deemed to be approved unless the Attorney General and the Administrator have agreed to

40a

extend the time. The district court for the district

in which the release or threatened release occurs

may enforce any such administrative order.

(5) Effect of agreement

A party who has resolved its liability to the United

States under this subsection shall not be liable for

claims for contribution regarding matters addressed

in the settlement. Such settlement does not discharge

any of the other potentially responsible parties unless its terms so provide, but it reduces the potential

liability of the others by the amount of the settlement.

(6) Settlements with other potentially responsible

parties

Nothing in this subsection shall be construed to

affect the authority of the President to reach settlements with other potentially responsible parties under this chapter.

(7) Reduction in settlement amount based on limited

ability to pay

(A)

In general

The condition for settlement under this paragraph is that the potentially responsible party is a

person who demonstrates to the President an inability or a limited ability to pay response costs.

(B)

Considerations

In determining whether or not a demonstration

is made under subparagraph (A) by a person, the

President shall take into consideration the ability

of the person to pay response costs and still main-

41a

tain its basic business operations, including consideration of the overall financial condition of the

person and demonstrable constraints on the ability of the person to raise revenues.

(C)

Information

A person requesting settlement under this paragraph shall promptly provide the President with

all relevant information needed to determine the

ability of the person to pay response costs.

(D)

Alternative payment methods

If the President determines that a person is unable to pay its total settlement amount at the time

of settlement, the President shall consider such alternative payment methods as may be necessary

or appropriate.

(8) Additional conditions for expedited settlements

(A)

Waiver of claims

The President shall require, as a condition for

settlement under this subsection, that a potentially responsible party waive all of the claims (including a claim for contribution under this chapter) that the party may have against other potentially responsible parties for response costs incurred with respect to the facility, unless the President determines that requiring a waiver would be

unjust.

(B)

Failure to comply

The President may decline to offer a settlement

to a potentially responsible party under this sub-

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section if the President determines that the potentially responsible party has failed to comply with

any request for access or information or an administrative subpoena issued by the President under

this chapter or has impeded or is impeding, through

action or inaction, the performance of a response

action with respect to the facility.

(C)

Responsibility to provide information and access

A potentially responsible party that enters into

a settlement under this subsection shall not be relieved of the responsibility to provide any information or access requested in accordance with

subsection (e)(3)(B) or section 9604(e) of this title.

(9) Basis of determination

If the President determines that a potentially responsible party is not eligible for settlement under

this subsection, the President shall provide the reasons for the determination in writing to the potentially responsible party that requested a settlement

under this subsection.

(10) Notification

As soon as practicable after receipt of sufficient

information to make a determination, the President

shall notify any person that the President determines

is eligible under paragraph (1) of the person’s eligibility for an expedited settlement.

(11) No judicial review

A determination by the President under paragraph (7), (8), (9), or (10) shall not be subject to judicial review.

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(12) Notice of settlement

After a settlement under this subsection becomes

final with respect to a facility, the President shall

promptly notify potentially responsible parties at the

facility that have not resolved their liability to the

United States of the settlement.

(h) Cost recovery settlement authority

(1) Authority to settle

The head of any department or agency with authority to undertake a response action under this

chapter pursuant to the national contingency plan may

consider, compromise, and settle a claim under section 9607 of this title for costs incurred by the United

States Government if the claim has not been referred

to the Department of Justice for further action. In

the case of any facility where the total response costs

exceed $500,000 (excluding interest), any claim referred to in the preceding sentence may be compromised and settled only with the prior written approval of the Attorney General.

(2) Use of arbitration

Arbitration in accordance with regulations promulgated under this subsection may be used as a

method of settling claims of the United States where

the total response costs for the facility concerned do

not exceed $500,000 (excluding interest). After consultation with the Attorney General, the department

or agency head may establish and publish regulations

for the use of arbitration or settlement under this

subsection.

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(3) Recovery of claims

If any person fails to pay a claim that has been settled under this subsection, the department or agency

head shall request the Attorney General to bring a

civil action in an appropriate district court to recover

the amount of such claim, plus costs, attorneys’ fees,

and interest from the date of the settlement. In

such an action, the terms of the settlement shall not

be subject to review.

(4) Claims for contribution

A person who has resolved its liability to the

United States under this subsection shall not be liable for claims for contribution regarding matters addressed in the settlement. Such settlement shall

not discharge any of the other potentially liable persons unless its terms so provide, but it reduces the

potential liability of the others by the amount of the

settlement.

(i) Settlement procedures

(1) Publication in Federal Register

At least 30 days before any settlement (including

any settlement arrived at through arbitration) may

become final under subsection (h), or under subsection (g) in the case of a settlement embodied in an administrative order, the head of the department or

agency which has jurisdiction over the proposed settlement shall publish in the Federal Register notice

of the proposed settlement. The notice shall identify the facility concerned and the parties to the proposed settlement.

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(2) Comment period

For a 30-day period beginning on the date of publication of notice under paragraph (1) of a proposed

settlement, the head of the department or agency

which has jurisdiction over the proposed settlement

shall provide an opportunity for persons who are not

parties to the proposed settlement to file written

comments relating to the proposed settlement.

(3) Consideration of comments

The head of the department or agency shall consider any comments filed under paragraph (2) in determining whether or not to consent to the proposed

settlement and may withdraw or withhold consent to

the proposed settlement if such comments disclose

facts or considerations which indicate the proposed

settlemen

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