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
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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-
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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.
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(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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