Petitioners Brief — Key Tronic Corp. v. United States

gupreme Court Ul

bh | FILED

93-376 Lay 26 1994

In the i oreice or THE CLERIE

Supreme Court of the United States

October Term, 1993

KEY TRONIC CORPORATION,

Petitioner,

Vv.

UNITEDSTATES, ET AL.,

Respondent.

ON A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF OF PETITIONER

James R. Moore

Counsel of Record

Mark W. Schneider

Michael Himes

Kathryn L. Tucker

PERKINS COIE

1201 Third Avenue

Seattle, WA 98101-3099

(206) 583-8888

Attorneys for Petitioner

(i)

QUESTIONS PRESENTED

Whether under the federal Superfund statute, a private

party may recover attorneys’ fees as response costs when

fees are incurred to (a) prepare and negotiate a reasonable

scope of work and consent decree related to cleanup of

contaminated property; (b) search for and identify other

parties responsible for the contamination; and (c) litigate

cost-recovery actions against other responsible parties to

compel their participation in the remediation.

(ii)

PARTIES (iii)

TABLE OF CONTENTS

Key Tronic Corporation (“Key Tronic”) and the United

States were parties in the proceeding before the Ninth

. . P

Circuit Key Tronic has no parent company. All of its age

subsidiaries are wholly owned. ' L. ED !

| a |

ar ’

[V. STATEMENTOFTHECASE......................... 1

A FACTUALBACKGROUND..........._.. 2

B PROCEDURAL BACKGROUND........_. 4

V SUMMARY OF ARGUMENT... 6

A 7

A. THECERCLASTATUTE......................... 7

B. “ENFORCEMENT ACTIVITIES”

MEANS ATTORNEYS’ FEES... 10

C. | ENFORCEMENT ACTIVITIES ARE

NOT LIMITED TO THE UNITED

a ea 13

EEE 16

g. ATTORNEYS’ FEES—THE

I 18

Vil. ATTORNEYS’ FEES ARE OTHERWISE

ae 25

VIL.

CONCLUSION

(v)

TABLE OF AUTHORITIES

Cases

Alveska Pipeline Service v. Wilderness

TE passim

Bolinv. Cessna Aircraft Co., 759 F.

Te 25

Cadillac Fairview California, Inc. v. Dow

Chemical Co. , 840 F.2d 691 (9th Cir.

EEL en 18

Cargill, Inc. v. Monfort of Colorado,

= Seem 17

Donahey v. Bogle, 987 F.2d 1250 (6th Cir.),

cert. denied, 126 L. Ed. 2d 594(1993) 0 eee 12,25

FMC Corp. v. Aero Industries, Inc..,

Ee 19,26,27

General Electric Co. v. Litton Industrial

Automation Systems, Inc., 920 F.2d 1415

(8th Cir. 1990), cert. denied, 499 U.S. 937

Griffin v. Oceanic Contractors, Inc.,

EEE SL eT TE 16

EE ET 25

(vi)

Hastings Building Products, Inc. v. National

Aluminum Corp., 815 F. Supp. 228 (W.D.

Ss ete eesserecreceentacenentnenenninenetnssnnsntaiesinsnsennsesessssensnaneneensesnensees 13

In re Hemingway Transport, Inc. , 993 F.2d

915(istCir.), cert. denied, 1148. Ct. 303

Key Tronic Corp. v. United States , 766

F. Supp. 865 (E.D. Wash. 1991),

rev'd, 934 F.2d 1025 (9th Cir.),

cert. granted, 126 L.Ed.2d 592

Mardan Corp. v.C.G.C. Music, Lid.,

ee 9

Pennsylvania v. Union Gas Co. , 491

EE Tee passim

a 18

Runyon v. McCrary, 427 U.S. 160

Stanton Road Associates v. Lohrey

Enterprises , 984 F.2d 1015(9thCir.),

cert. dismissed, 126 L.Ed.2d 609 (1993) 0000000... .cccccccccccceeceneeee passim

United States v. Mexico Feed & Seed Co., 729

FP. Sepp. 1I2SO(E._D. Boe. 1990)......cccceccceccscssoscvssesscesecsseseees ‘seit 1]

United States v. Motiolo, 695 F. Supp.

co meena 11

(vii)

United States v. Northeastern Pharmaceutical

& Chemical Co., 579 F. Supp. 823 (W.D.

Mo. 1984), aff'din part and rev'd in part,

810 F.2d 726 (8th Cir. 1986), cert. denied,

OO

United States v. Ron Pair E.

Inc., 489 U.S. 235 (1989) cesceooo-. ei.

United States v. South Carolina Recycling &

Disposal, Inc.,653 F.Supp. 984(D.S.C.

1984), aff'd in part and vacated in part,

858 F.2d 160 (4th Cir. 1988), cert. denied,

Ss Se tcteneenatanennmenneemacne

Welch v. State Department of Highways &

Public Transportation, 483 U.S. 468

EE

Wickland Oil Terminals v. Asarco,

Inc., 792 F.2d 887 (9th Cir. 1986)... cece.

Statutes

SEE LL

er a att Tie

as,

42 U.S.C. § 1988 oocccccssccsccecsssnecssenesesneesnneesenenee

io SEE Canara

ESR

Sees rales

ee

. (1)

_ -L OPINIONSBELOW

SII Y tncmeninncntenmatnsnatsrenemmeinamemmeinebineieiansite

. ane The opinion of the Ninth Circuit in Key Tronic Corp. v.

ee ae oN TE NS eee I 4 United States is reported at 984 F.2d 1025 and is reprinted in

> _ Appendix A to Key Tronic’s petition for certiorari (“Pet.

ai Cert.”), The opinion of the distr ig 1 at 766 F.

Other Authorities Supp. 865 and is reprinted in Pet. Cert. Appendix B. The

opinions of the Ninth Circuit and the district court in the

H.R. Rep. No. 99-253(II1), 99th Cong., 2d Sess. 15 companion case of Stanton Road Associates v. Lohrey

(1985), reprinted in 1986 U.S.C.C.A.N. 3038 ...ccsccocssssvssesssnnnneeee 9 Enterprises, 984 F.2d 1015 (9th Cir.), cert. dismissed, 126

H.R. Conf. Rep. No. 99-962, 99th Cong., 2d Sess. 185 L.Ed.2d 609 (1993), are reprinted in Pet. Cert. Appendices C

q (1986), reprinted in 1986 U.S.C.C.A.N. 3276 voccoccccocevsvsesssessvssveooe 15 and D.

H.R. Rep. No. 99-253(1), 99th Cong., 2d Sess., pt. IL. JURISDICTION

(1985), reprinted in 1986 U.S.C.C.A.N. 2835 .....ccccccccccesceeeeeseees 9,14 ;

The Ninth Circuit entered its judgment on January 28, :

H.R. Rep. No. 99-253(V), 99th Cong. , 2d Sess., pt. 1993. On June 7, 1993, the Ninth Circuit denied Key )

1 (1985), reprinted in 1986 U.S.C.C.A.N. 3124 o.o..cccccccccccceeseeseeees 15 Tronic’s petition for rehearing and also denied Kev Tronit’s

suggestion for rehearing en banc. Pet. Cert. Appendices E, F. :

The petition for certiorari was timely filed on September 3,

1993 and the Court has jurisdiction to review the judgment

of the Court of Appeals by writ of certiorari pursuant to 28

U.S.C. § 1254(1).

Il. STATUTES

This case involves the Comprehensive Environmental

Response, Compensation, and Liability Act (“CERCLA”), as

amended by the 1986 Superfund Amendments and

Reauthorization Act (“SARA”). The CERCLA statute is

codified at 42 U.S.C. § 9601 ef seq., pertinent sections of

which are appended hereto.

a

IV. STATEMENT OF THE CASE

This case concerns the recovery of Key Tronic’s costs of

performing environmental cleanup measures to protect public

(2)

health and then pursuing legal action against other liable

parties to enforce CERCLA’s scheme of requiring all who

contribute to environmental contamination to pay for its

cleanup.

A. FACTUAL BACKGROUND

Spokane County operated the Colbert Landfill (the

“Landfill”) in Eastern Washington during the 1970s. During

this period, liquid chemicals were disposed of at the Landfill

by a number of entities, including Key Tronic and the United

States Air Force. In the fall of 1980, the Washington

Department of Ecology (“WDOF”) tested drinking water

wells in the area surrounding the Landfill and determined

that they were contaminated by chemicals. Pet. Cert.

Appendix B-2, Key Tronic Corp. v. United States, 766 F.

Supp. 865, 867 (E.D. Wash. 1991). Key Tronic and Spokane

County jointly retained consultants to further evaluate

conditions at the Landfill, including extensive well water

sampling and analyses. CR 44, Ex. 15. Beginning in 1983,

Key Tronic, upon advice from WDOE and the County health

district, supplied bottled water to residents adjacent to the

Landfill and funded installation of anew water system. /d.

Key Tronic acted as a responsible corporate citizen by

stepping forward and publicly acknowledging that it had

previously disposed of hazardous wastes at the Landfill and

by taking measures to reduce the public health threat to

nearby residents. CR 44, Ex. 15; J.A. 7, CR 44, Ex. 16. Other

entities that had disposed of hazardous wastes at the Landfill,

including the Air Force, did nothing CR 44, Ex. 15. Key

Tronic undertook the necessary investigation to identify

other potentially responsible parties (“PRP”), i.e., persons

potentially liable under CERCLA, to ensure that they would

share the costs of the ultimate long-term cleanup. J.A. 7, CR

44, Ex. 16. Key Tronic’s efforts in identifying the Air Force

as a PRP and in establishing the Air Force’s disposal of

(3)

hazardous wastes at the Landfill resulted in action by the

Environmental Protection Agency (the “EPA”) against the

Air Force. Pet. Cert. Appendix B-14 n.4, Key Tronic, 766 F.

Supp. at 872 n.4.

In addition to identifying persons responsible for the

contamination, Key Tronic retained counsel and a consultant

to work with the EPA and WDOE to investigate the site,

develop a remedy, and draft the scope of work and consent

decree that established the remediation to be performed at the

Landfill. Pet. Cert. Appendix B-13-14, Key Tronic, 766 F.

Supp. at 872; CR 44, Exs. 16, 17. After performing this

work, Key Tronic and Spokane County accepted financial

responsibility for the cleanup and entered into a Consent

Decree (the “Consent Decree”) with the EPA and WDOE

setting forth the remedy to be performed. Pet. Cert.

Appendix B-2, Key Tronic, 766 F. Supp. at 867. Apart from

its own response costs of approximately $1.2 million, Key

Tronic agreed to pay $4.2 million under the Consent Decree.

Id.

In a previous action before the same district court, the

district court held the Air Force liable under Washington

State law for its disposal of hazardous wastes at the Landfill.

J.A. 29, CR 67, at 23. Thereafter, the Air Force and the EPA

in February, 1990, finalized an Interagency Agreement

whereby the Air Force agreed to pay $1.45 million to

implement the remedy set forth in the Consent Decree. Pet.

Cert. Appendix B-2, Key Tronic, 766 F. Supp. at 867; J.A. 9-

10.

(4)

B. PROCEDURAL BACKGROUND

Key Tronic filed its complaint against the Air Force in

October 1989.! CR 1. Key Tronic’s complaint asserted a

private cost-recovery claim under CERCLA Section

107(aX(4\(B), 42 U.S.C. § 9607(aX4)(B) (the “Section 107

claim”), and a contribution claim under CERCLA Section

113(f), 42 U.S.C. § 9613(f) (the “Section 113 claim”). The

Air Force moved to dismiss both of Key Tronic’s claims

against it CR 22. Key Tronic moved for partial summary

judgment regarding the Air Force’s liability on the Section

107 claim. CR 39.

The district court entered an order in August 1990

resolving the Air Force’s motion to dismiss and Key Tronic’s

motion for partial summary judgment. J.A. 12, CR 67. First,

as Key Tronic conceded the issue, the district court granted

the Air Force’s motion to dismiss the Section 113 claim (i.e.,

Key Tronic’s claims for recovery of the $4.2 million incurred

under the Consent Decree). J.A. 16-17, CR 67, at 6-7.

Second, the district court denied the Air Force’s motion to

dismiss the Section 107 claim. J.A. 23, CR 67, at 15. Third,

the district court granted Key Tronic’s motion for partial

summary judgment. The court held:

Key Tronic moves for partial summary

judgment that the USAF is liable under 42

U.S.C. § 9607(a)(4)(B) for a portion of the

$1.2 million in costs Key Tronic privately

incurred in responding to the Colbert release.

\Key Tronic’s complaint named several other defendants. During

proceedings in the district court, defendant William Schmidt was dismissed, J.A.

29, ER 67 at 23, and the Alumax defendants settled. Pet. Cert. Appendix B-4,

Key Tronic, 766 F . Supp. at 868.

eee enn

(5)

This court has previously held that the

USAF disposed of hazardous waste at

Colbert (Oral Findings of Fact and

Conclusions of Law, Key Tronic Corp. v.

United _ States, C-88-041-JLQ and

C-87-20-JLQ (E.D. WA, Nov. 3, 1989), p. 2;

Ex. 1 to Plaintiff's Statement of Facts.) This

fact establishes the USAF as a “person who

... arranged for disposal or treatment ... of

hazardous substances owned or possessed by

such person . . .” 42 U.S.C. § 9607(a)-(3). It is

undisputed that Colbert is a “facility” within

the definition of 42 U.S.C. § 9601(9), and that

a “release” has occurred at Colbert within the

definition of 42 U.S.C. §9601(22). Thus,

under 42 U.S.C. § 9607 (a)-(4\(B), the USAF

is liable for a portion of “any other necessary

costs of response incurred by any other person

consistent with the national contingency

plan.” Key Tronic’s motion for partial

summary judgment that the USAF is liable

under 42 U.S.C. § 9607 should be granted.

J.A. 30, CR67, at23-24.

In light of these rulings, the Air Force and Key Tronic

subsequently negotiated the amounts to be paid on Key

Tronic’s Section 107 response costs of approximately $1.2

million. First, the parties partially settled the Air Force’s

liability when the Air Force executed a consent decree

providing for payment of $185,000 to Key Tronic on two

categories of costs (well contamination investigation and

provision of alternative water supplies), but reserved the

remaining categories of costs (the “excepted claims”).

CR 92. The excepted claims concerned (1) prelitigation costs

and attorneys’ fees for identifying PRPs, (2) prelitigation

costs and attorneys’ fees for work on the Consent Decree,

(6)

(3) attorneys’ fees incurred in prosecuting this action, and (4)

prejudgment interest on the excepted claims. Pet. Cert.

Appendix B-3, Key Tronic, 766 F. Supp. at 867. The district

court later ruled that all the “excepted claims” costs were

recoverable as response costs in this action Pet. Cert.

Appendix B-6-14, Key Tronic, 766 F. Supp. at 869-72.

Second, after that ruling, the Air Force reserved its right to

appeal and stipulated that it would pay $155,000 on the

excepted claims so that a final judgment could be entered.

J.A. 43, CR 134.2 Judgment was entered on July 1, 1991.

CR 137, 138. The Air Force appealed from all excepted

claims, except prejudgment interest, and the Ninth Circuit

reversed. Pet. Cert. Appendix A, Key Tronic, 984 F.2d 1025.

V. SUMMARY OF ARGUMENT

CERCLA Section 107(a), 42 U.S.C. § 9607(a),

expressly provides a right of action to any person to recover

costs incurred in implementing CERCLA from any other

liable person, including States and the United States. A

2The stipulation excepted the following claims for appeal:

A. Costs and fees incurred by attorneys and investigators for Key Tronic in

the amount of $365,649 during Key Tronic’s search for additional potentially

responsible parties and costs and fees incurred by attorneys related to the

negotiation of the Consent Decree between Key Tronic, the United States, and the

State of Washington in The State of Washington v. County of Spokane, CS-89-

033-RJM;

B. The salary of David Powers, Key Tronic’s General Counsel and

Secretary, in the amount of $70,000 for time spent supervising the search for

additional potentially responsible parties and negotiating the Consent Decree

identified in A.

C. Attorneys’ fees and costs incurred by Key Tronic in the prosecution of

this action; and

D. Prejudgment interest on excepted claims.

(7)

person bringing such a cost-recovery action is entitled to

recover its “response” costs, which CERCLA

Section 101(25), 42 U.S.C. § 9601(25), defines to include

costs of “enforcement activities.” The plain language of the

statute thus expressly permits any party to recover its

“enforcement activities” costs in a Section 107(a) cost-

recovery action. CERCLA’s language and structure reveal

that the words “enforcement activities” have no reasonable

meaning other than to include attorneys’ fees.

These express statutory provisions support CERCLA’s

two overriding goals: (a) encouraging all persons, including

private persons, States, and Indian tribes, to respond to

pollution and to clean up hazardous waste sites, and (b)

holding liable all persons responsible for damage to the

environment.

Under the American Rule, a prevailing party in litigation

is not entitled to attorneys’ fees absent a recognized ground

in equity or statutory authorization for an award of fees.

Runyon v. McCrary, 427 U.S. 160, 185 (1976); Alyeska

Pipeline Service Co. v. Wilderness Society, 421 U.S. 240,

260 (1975). No magic words are required to provide for fees;

to authorize the award of attorneys’ fees Congress need only

use language that evinces its intent that attorneys’ fees are to

be awarded. The amendment of the definition of “response”

in 1986 to include costs of “enforcement activities” shows

such an intent by expressly providing for an award of

attorneys’ fees to persons who enforce CERCLA. The Ninth

Circuit erred in failing to award fees to Key Tronic.

VI. ARGUMENT

A. THECERCLASTATUTE

CERCLA provides an express right of action to any

person who has incurred costs to clean up a hazardous waste

(8)

site to recover those costs from any other person liable under

CERCLA. Section 107(a)(4)(A) and (B) provide:

Covered persons. .. 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... .

42 U.S.C. § 9607(a)(4)(A) and (B).?

CERCLA defines “response” as follows:

The terms “respond” or “response” means

[sic] remove, removal, remedy, and remedial

action, all such terms (including the terms

“removal” and “remedial action”) include

enforcement activities related thereto.

42 U.S.C. § 9601(25) (emphasis added). The underscored

language was added by the 1986 SARA amendments. Thus,

the definition of “response” in Section 101(25), as amended

by SARA, plainly applies to actions brought to recover

“necessary costs of response” under Section 107(a)(4\B)

(emphasis added). There is no dispute that Section 101(25), a

definitional section, applies to Key Tronic’s private cost-

recovery action under Section 107(a)(4)(B).

3The district court ruled that the Air Force is a “covered person” liable

under Section 107(a) and accordingly granted Key Tronic’s motion for partial

summary judgment on liability. J.A. 30, CR 67, at 23-24. The Air Force did not

appeal from this ruling.

(9)

Congress provided an express right of action in Section

107(a) to all persons who implement CERCLA in order to

further CERCLA’ s aims:

CERCLA has two goals: (1) to provide

for clean-up if a hazardous substance is

released into the environment or if such

release is threatened, and (2)to hold

responsible parties liable for the costs of these

clean-ups.

H.R. Rep. No. 99-253 (III), 99th Cong., 2d Sess. 15 (1985),

reprinted in 1986 U.S.C.C.A.N. 3038. See also Mardan

Corp. v. C.G.C. Music, Lid., 804 F.2d 1454, 1455 (9th Cir.

1986) (“[CERCLA’s] purpose was to ensure the prompt and

effective cleanup of waste disposal sites, and to assure that

parties responsible for hazardous substances bore the cost of

remedying the conditions they created.”) (citing statement of

Rep. Florio, 126 Cong. Rec. 31 ,964(1980)).

CERCLA’s express right of action under Section 107(a)

is designed to encourage prompt cleanups by providing for

recovery of response costs to all persons willing and able to

shoulder the costs of cleanups. That CERCLA encourages all

persons to implement CERCLA’s goals is hardly surprising

given the enormity of the task of cleaning up the thousands

of hazardous waste sites across our land. See H.R. Rep. No.

99-253(1), 99th Cong. 2d Sess., pt. 1, at 55, reprinted in 1986

U.S. Code Congressional and Administrative News

(“U.S.C.C.A.N.”) 2835, 2837 (noting tens of thousands of

sites needing cleanup and stating that “EPA will never have

adequate monies or manpower to address the problem itself.

As a result, an underlying principle of H.R. 2817 is that

Congress must facilitate cleanups of hazardous substances by

(10)

the responsible parties while assuring a strong EPA oversight

role witha set of tough legal enforcement standards.”).*

The Court has also noted CERCLA’s goals:

Congress did not think it enough, moreover,

to permit only the Federal Government to

recoup the costs of its own cleanups of

hazardous-waste sites; the Government's

resources being finite, it could neither pay up

front for all necessary cleanups nor undertake

many different projects at the same time.

Some help was needed, and Congress sought

to encourage that help by allowing private

parties who voluntarily cleaned up hazardous-

waste sites to recover a proportionate amount

of the costs of cleanup from the other

potentially responsible parties.

Pennsylvania v. Union Gas Co., 491 U.S. 1, 21-22 (1989)

(plurality opinion).

B. "ENFORCEMENT ACTIVITIES” MEANS

ATTORNEYS’ FEES.

Given Section 101(25)’s plain language—providing that

“enforcement activities” are to be recovered as costs of

response for actions brought under Section 107(a)}—the

Court must determine whether Congress, by providing fc-

the recovery of response costs, including costs of

“enforcement activities,” intended parties to recover

attorneys’ fees as costs of response under Section 107(a).

Key Tronic submits that “this language [enforcement

4H_R. 2817 was the predecessor bill to the bill passed and enacted as

SARA, Pub. L. 99-499. See 1986 U.S.C.C_A.N. 2835.

(11)

activities] must mean that private plaintiffs can recover the

attorneys’ fees expended in enforcing the liabilities that

CERCLA imposes on polluters.” Pet. Cert. Appendix C-16,

Stanton Road, 984 F .2d at 1023 (Canby, J., dissenting).

The Jnited States regularly seeks and recovers

attorneys’ fees when if brings a Section 107 cost-recovery

action; and the courts have accepted that “enforcement

activities” necessarily means, and provides for the recovery

of, attorneys’ fees when the United States brings suit See,

e.g., United States v. Mottolo, 695 F. Supp. 615, 631 (D.N.H.

1988) (relying on Section 101(25) to support award of

attorneys’ fees to the EPA in a cost-recovery action under 42

U.S.C. § 9607(a)); United States v. Mexico Feed & Seed Co.,

729 F. Supp. 1250, 1253-54 (E.D. Mo. 1990) (permitting

United States to amend complaint to pray for costs of

“enforcement activities” in a cost-recovery action under 42

U.S.C. § 9607(a)).

The United States itself argued to the Ninth Circuit in

this case that “enforcement activities” includes attorneys’

fees when the United States brings a cost-recovery action

Brief of United States at 13, Key Tronic v. United States,

Ninth Circuit No. 91-36021, (filed on January 31, 1992) (“It

is statutorily established that attorneys’ fees incurred by the

United States in seeking a remedial action or recovering

costs under the Act are recoverable as response costs

authorized by the Act, 42 U.S.C. 9604(b) & 960/(25).”)

(emphasis added). Key Tronic submits that if “enforcement

activities” means attorneys’ fees when the United States

brings a Section 107(a) cost-recovery action, it must have the

same meaning for other persons.

The United States argued to the Ninth Circuit that

“enforcement activities” provides for attorneys’ fees for the

simple reason that there is no other reasonable meaning. As

Judge Canby stated:

(12)

When Congress amended CERCLA to

permit such private litigants, among others, to

recover the “costs” of “enforcement

activities,” it is difficult to imagine what it

might have had in mind other than the

recovery of attorneys’ fees. The

“enforcement” of CERCLA by a private party

consists in suing to hold the polluter liable.

The lion’s share of the enforcement cost, as

opposed to cleanup cost, will lie in attorneys’

fees. Congress cannot have been ignorant of

that fact A private party simply cannot

recover its cost of enforcement if it cannot

recover its attorneys’ fees. If the language of

Congress in_ sections 107(aX4\(B) and

101(25) is to be given meaning and effect,

those fees must be recoverable.

Pet. Cert. Appendix C-17, Stanton Road, 984 F.2d at 1023

(Canby, J. dissenting). Accord General Electric Co. v. Litton

Industrial Automation Systems, Inc., 920 F.2d 1415, 1422

(8th Cir. 1990) (“Attorney fees and expenses necessarily are

incurred in this kind of enforcement activity and it would

strain the statutory language to the breaking point to read

them out of the ‘necessary costs’ that section 9607(a)(4)(B)

allows private parties to recover.”), cert. denied, 499 U.S.

937 (1991); Donahey v. Bogle, 987 F.2d 1250, 1256 (6th

Cir.) (same), cert. denied, 126 L. Ed. 2d 594 (1993). Neither

the language of the statute nor its history support any other

reasonable interpretation.

Under CERCLA as originally enacted in 1980, the

courts concluded that the United States was provided

statutory authority to recover its attorneys’ fees for enforcing

the CERCLA liability scheme. United States v. South

Carolina Recycling & Disposal, Inc. ,653 F. Supp. 984, 1009

(D.S.C. 1984) (under 42 U.S.C. § 9604(b)(1), United States

(13)

receives attorneys’ fees for bringing Section 107 action),

aff'd in part and vacated in part, 858 F.2d 160 (4th Cir.

1988), cert. denied, 490 U.S. 1106 (1989); United States v.

Northeastern Pharmaceutical & Chemical Co., 579 F. Supp.

823, 851 (W.D. Mo. 1984)\(same), aff'd in part and rev'd in

part, 810 F.2d 726 (8th Cir. 1986), cert. denied, 484 U.S.

848 (1987). The SARA amendment to Section 101(25),

facially applying to cost-recovery actions brought under both

Section 107(a)(4)(A) and Section 107(aX4\B), is rendered

superfluous if construed to provide for the recovery of

attorneys’ fees only in favor of the United States, because the

United States was awarded attorneys’ fees prior to the 1986

amendment to Section 101(25).5 Such an interpretation

“violates [a] cardinal rule of statutory interpretation that no

provision should be construed to be entirely redundant.”

Kungys v. United States, 485 U.S. 759, 778 (1988). See also

Hastings Building Products, Inc. v. National Aluminum

Corp., 815 F. Supp. 228, 232-33 (W.D. Mich. 1993)

(“[B]efore the 1986 amendments, § 9604(b)(1) provided for

the recovery of costs by the government Therefore, the

conclusion that the phrase ‘enforcement costs’ has no

relevance to private parties assumes that Congress expended

effort to alter § 9601(25) in 1986 with the intent of creating a

redundant provision. This seems improbable.”).

C. ENFORCEMENT ACTIVITIES ARE NOT

LIMITED TO THE UNITED STATES.

Recognizing that the term “enforcement activities”

encompasses attorneys’ fees, and that Section 101(25)

facially applies to private cost-recovery actions brought

under Section 107(a\(4\(B), the United States contends that

Section 101(25) has a limit not found in its plain and

5Key Tronic is unaware of any court, either before or after SARA, that has

refused attorneys’ fees to the United States when it brings a Section | 07(a) action.

(14)

unambiguous language. The United States contends that

recovery of costs of “enforcement activities” is limited to

recovery by the United States. This argument should be

rejected.

The plain language of CERCLA, 42 U.S.C. § 9601(25)

and § 9607(a), provides that a private person bringing a cost-

recovery action under Section 107(aX4\(B) (as well as an

Indian tribe, a State and the United States government

bringing a cost-recovery action under Section 107(a)(4)(A))

may recover costs of “enforcement activities.” Thus,

Section 101(25), permitting recovery of costs of

“enforcement activities” as “response” costs, plainly and

unambiguously applies to all persons who seek to recover

response costs under Section 107(a).

If the United States’ argument were correct, Congress

would have limited the definition of “enforcement activities”

to the United States. Congress did not do so. The United

States’ argument that Congress intended that it alone would

recover attorneys’ fees as costs of “enforcement activities” is

belied by the plain language of the statute.

To avoid Section 101(25)’s plain language, the United

States contends that SARA’s legislative history reveals

Congress’ intent that only the United States is entitled to

recover “enforcement activities” costs under Section 107(a).

In this regard, the House Committee on Energy and

Commerce commented that SARA’s amendment of

Section 101(25) “will confirm the EPA’s authority to recover

costs for enforcement actions taken against responsible

parties.” H.R. Rep. No. 99-253(I), 99th Cong., 2d Sess.,

pt. 1, at 66-67 (1985), reprinted in 1986 U.S.C.C.A.N. 2835,

2848-49. The United States contends that this passage

suggests, by negative implication, that only the EPA may

recover costs of enforcement activities under Section 107(a).

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The subsequent Conference Committee Report contains no

such negative inference:

The House amendment proposes to

modify CERCLA _ section 101(25),

which is the definition of “response,” to

expli- citly include enforcement

activities.

The conference substitute adopts the

House proposal. This amendment clari-

fies and confirms that such costs [i.e.,

enforcement costs] are recoverable from

responsible parties, as removal or

remedial costs under section 107.

H.R. Conf. Rep. No. 99-962, 99th Cong., 2d Sess. 185

(1986), reprinted in 1986 U.S.C.C.A.N. 3276, 3278. The

legislative history from the conference committee that

reported the final bill passed and enacted thus contains no

limiting reference to the EPA. Accord H.R. Rep. No. 99-

253(V), 99th Cong., 2d Sess., pt. 1, at 5-6 (1985), reprinted

in 1986 U.S.C.C.A.N. 3124, 3129 (“[The change to

§ 101(25)] amends the definition of what constitutes a

response to include related enforcement activities, thereby

permitting recovery of those costs.”).

In any event, resorting to a single piece of legislative

history to support a _ proffered interpretation of

Section 101(25), through negative implication, fails to

address the plain language of Section 101(25). The proffered

limitation of Section 101(25) should be rejected as contrary

to the statute’s plain and unambiguous language. United

States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 242

(1989) (“The plain meaning of legislation should be

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conclusive, except in the ‘rare cases [in which] the literal

application of a statute will produce a result demonstrably at

odds with the intentions of its drafters.’”) (quoting Griffin v.

Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)).

D. PRIVATE PARTIES ENFORCE CERCLA.

Alternatively, the United States contends that

Section 101(25)’s provision for recovery of “enforcement

activities” costs applies only to the United States because

only the United States can “enforce” CERCLA. That is

patently untrue. The plain language of the statute provides

that a// persons who bring cost-recovery actions do so under

Section 107(a)(4)(A) or (B) and that persons who bring an

action under (B) are entitled to costs of “enforcement

activities.”

Like the United States, a private person, an Indian tribe

or a State “enforces” statutory rights and “enforces”

CERCLA’s scheme by incurring costs to clean up hazardous

waste sites and in bringing suit to effect CERCLA’s policy

that the costs of cleanup be borne by polluters. This is,

indeed, the natural and commonplace understanding of the

term “enforce,” heard daily by attorneys and putative

wrongdoers from aggrieved persons who vow to “enforce”

their rights. Likewise, it is commonplace to hear attorneys

and non-atiorneys alike claim the existence of an

“enforceable contract,” i.e., a contract that a court will

enforce in the context of private litigation See also

Webster’s Ninth New Collegiate Dictionary 412 (1987)

(“enforce” means: (1) to give force to: strengthen, (2) to urge

with energy, (3) constrain, compel, (4) to effect or gain by

force, (5) to carry out effectively).

In accord with both the common understanding of

“enforce,” and with its dictionary definition, the Court has

stated that an express statutory right of action provides the

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“vehicle for private enforcement” of the laws. Cargill, Inc. v.

Monfort of Colorado, Inc., 479 U.S. 104, 109 (1986)

(discussing private right of action in context of antitrust

laws). See also Alyeska, 426 U.S. at 263 (noting that statutes

providing for award of fees generally suggest that Congress

has “opted to rely heavily on private enforcement to

implement public policy. ...”) (emphasis added).

Further, private parties and the EPA engage in the same

activities regardless of who enforces CERCLA. The EPA

may investigate potentially responsible parties with respect to

contamination at a CERCLA site, investigate and develop

appropriate remedial actions, and pursue legal action to have

responsible parties held liable for such response costs.

42 U.S.C. § 9604. All these activities constitute “enforce-

ment” if performed by the EPA; they are activities necessary

to “enforce” the liabilities and responsibilities created by

CERCLA. If, however, a responsible party implements

CERCLA, a private party, rather than the EPA, will

undertake the same enforcement activities that the EPA

otherwise might have performed. This is to be encouraged, as

the EPA alone is unable to respond to the thousands of sites

awaiting cleanup. See Union Gas, 491 U.S. at 21-22. The

enforcer of CERCLA — whether the EPA or a private party

— does not determine whether an activity is an “enforcement

activity” within the meaning of Section 101(25); rather, the

nature of the activity controls. CERCLA provides that

Congress intended private parties and the EPA to do the

same things: promptly clean up hazardous waste sites and

later recover the costs of such cleanups from other

responsible persons.

In this case, Key Tronic implemented CERCLA’s goal

of cleaning up contamination when it paid to address

problems caused by pollution at the Landfill. Likewise, Key

Tronic furthered CERCLA’s goal of requiring polluters to

pay when it retained experts and attorneys to (1) investigate

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persons responsible for that pollution, (2) negotiate and draft

the Consent Decree setting forth the ultimate cleanup plan,

and (3) bring this Section 107(a) action. Key Tronic “urged

with energy,” “compelled,” and “carried out effectively”

CERCLA’s express goals. In short, Key Tronic “enforced”

CERCLA.® Any other reading thwarts Congress’ express

intent that CERCLA be enforced by the United States and

others, including States, Indian tribes or any other person,

and ignores Congress’ plain language in providing that a//

such persons are authorized to recover costs of “enforcement

activities.”

E. ATTORNEYS’ FEES—THE AMERICAN RULE

The prevailing party in an action may not recover its

attorneys’ fees absent a recognized ground in equity or

Statutory authorization for an award of fees. Runyon, 427

U.S. at 185-86; Alyeska, 421 U.S. at 260. Congress is not

restricted to using “magic words” to clearly manifest its

intent that attorneys’ fees be awarded.

In Union Gas, 491 U.S. 1, the Court considered whether

Congress intended to subject the States to suit in federal

court for liability under CERCLA. Because Congress’

abrogation of the States’ immunity from suit implicates

important issues of federalism, Congress must employ

“unmistakably clear language” to abrogate the States’

Eleventh Amendment immunity. Welch v. State Department

of Highways & Public Transportation, 483 U.S. 468, 478

(1987). See also Quern v. Jordan, 440 U.S. 332, 345 (1979)

(no abrogation when statute failed “explicitly and by clear

General Elec., 920 F.2d at 1422 (private cost-recovery action under

Section 107(aX4\B) is “enforcement activity”); Cadillac Fairview/Cal., Inc. v.

Dow Chem. Co., 840 F.2d 691, 694 (9th Cir. 1988) (same); Wickland Oil

Terminals v. Asarco, Inc., 792 F 24887, 892 (9th Cir. 1986) (same).

(19)

language [to] indicate on its face an intent to sweep away the

immunity of the States”).

Notwithstanding that CERCLA does not use the words

“Eleventh Amendment,” “abrogate” or “immunity,” the

Court examined the language and structure of CERCLA to

determine whether Congress nevertheless intended to

abrogate Eleventh Amendment immunity. After reviewing

CERCLA’s language and structure, in conjunction with the

SARA amendments, the Court held that Congress clearly

intended to abrogate the States’ Eleventh Amendment

immunity. Union Gas, 491 U.S. at 13, 30. In this regard, the

Court stated: “If no magic words are required for abrogation

[of Eieventh Amendment immunity], then each statute must

be evaluated on its own terms, not defeated by reference to

another statute that uses more specific language.” Jd. at 13

n.4.

If no “magic words” are needed to meet the rigorous

standards applicable to abrogation of Eleventh Amendment

immunity, certainly no “magic words” are necessary for

Congress to authorize an award of fees. As discussed above,

Congress’ amendment of the definition of “response” to

include costs of “enforcement activities” has no reasonable

meaning other than to authorize an award of attorneys’ fees.

Thus, the language and structure of CERCLA, as amended

by SARA, reveal that Key Tronic may recover its attorneys’

fees in this action.

The Ninth Circuit agreed that attorneys’ fees are

“ordinarily expended in a private response action.” Pet. Cert.

Appendix C-9, Stanton Road, 984 F.2d at 1020. The Ninth

Circuit held, however, that Section 107(a\(4)(B)’s provision

for the recovery of “necessary costs of response” did not

explicitly provide for the recovery of attorneys’ fees under

Runyon and Alyeska. Pet. Cert. C-7, Stanton Road, 984 F.2d

at 1019. Accord FMC Corp. v. Aero Industries, Inc., 998

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F.2d 842, 847 (10th Cir. 1993); In re Hemingway Transport,

Inc., 993 F.2d 915, 935 (1st Cir.), cert. denied, 114 S. Ct.

303 (1993).

The Ninth Circuit’s holding was predicated upon an

application of Alyeska and Runyon that fails to acknowledge

the difference in the specificity of the language of the statutes

in those cases with the language of CERCLA and fails to

acknowledge that no “magic words,” Union Gas, 491 U.S. at

13 n.4, are required to conclude that Congress intended

attorneys’ fees to be recovered.

In Alyeska, the prevailing litigant secured relief in the

district court for violations of 30 U.S.C. § 185 and 42 U.S.C.

§ 4321 et seq. Alyeska, 421 U.S. at 242-43. Although neither

30 U.S.C. § 185 nor 42 U.S.C. § 4321 provided any language

remotely suggesting an award of fees to a prevailing party,

and no alternative statutory authorization for an award of

fees existed, the D.C. Circuit nonetheless held that fees were

recoverable because the plaintiffs had vindicated “important

statutory rights of all citizens.” 421 U.S. at 245. After

extensive review of the history of the American Rule, the

Court reversed and held that attorneys’ fees ordinarily may

be awarded only when Congress has specifically provided

for their recovery. Jd. at 269-71.

In Runyon, the plaintiffs successfully sued for relief

from racial discrimination under 42 U.S.C. § 1981, and the

district court awarded attorneys’ fees. 427 U.S. at 166.

Following Alyeska, the Fourth Circuit reversed the award of

fees. The petitioners argued to the Court that the fees were

properly awarded under Alyeska because 42 U.S.C. § 1988

authorizes the federal courts “to furnish suitable remedies”

for violations ofa person’s civil rights. 427 U.S. at 184.

The Court rejected this argument because:

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[Njothing in the legislative history of that

statute [42 U.S.C. § 1988] suggests that such a

radical departure from the long-established

American rule forbidding the award of

attorneys’ fees was intended.

Runyon, 427 U.S. at 185. The Court accordingly held:

the law of the United States, but for a few

well-recognized exceptions not present in

these cases, has always been that absent

explicit congressional authorization,

attorneys’ fees are not a recoverable cost of

litigation. Hence in order to “furnish” an

award of attorneys’ fees, we would have to

find that at least as to cases brought under

statutes to which § 1988 applies, Congress

intended to set aside this long-standing

American rule of law. We are unable to

conclude, however, from the generalized

commands of § 1988, that Congress intended

any such result.

Id. at 185-86 (emphasis added).

In contrast to the complete absence of language

evidencing Congress’ intent that fees be recovered under the

statutes in Runyon and Alyeska, Section 101(25) explicitly

provides that persons bringing suit under Section 107(a) are

entitled to recover the costs of “enforcement activities.” This

language is vastly different from the statutes at issue in

Runyon and Alyeska. No “magic words,” Union Gas, 491

U.S. at 13 n.4, or “particular linguistic formula,” Pet. Cert.

Appendix C-18, Stanton Road, 984 F.2d at 1024 (Canby, J.,

dissenting), are required to reveal Congress’ intent that

attorneys’ fees are recoverable response costs under

Section 107(a). Because there is no reasonable interpretation

(22)

of “enforcement activities” other than one that includes

attorneys’ fees, the Ninth Circuit erred when it failed “to give

fair and reasonable meaning to the text of the United States

Code, adopted by various Congresses at various times.”

Union Gas, 491 U.S. at 30 (Scalia, J., con-urring in part and

dissenting in part).’

The Ninth Circuit also supported its reasoning by

referring to CERCLA Section 310, 42 U.S.C. § $659, which

provides for the recovery of “attorney fees” to citizens suit

plaintiffs. The Ninth Circuit concluded that CERCLA’s

disparity in language, “attorney fees” under 42 U.S.C.

§ 9659 versus “response” costs and costs of “enforcement

activities” under Section 107(a), suggested that attorneys’

fees are not recoverable in a Section 107(a) action.® Pet. Cert.

Appendix C-7, Stanton Road, 984 F.2d at 1018. This

argument is unpersuasive for three reasons.

First, the citizens suit provision authorizes a citizen to

bring an action to correct certain CERCLA violations or to

remedy a failure on the part of the EPA to perform a

non-discretionary duty. 42 U.S.C. § 9659(a). The citizens

suit provision allows for the imposition of civil penalties, but

7The Ninth Circuit also erroneously concluded that the provision for

attorneys’ fees was not sufficiently explicit under Rumyon and Alyeska because

courts had split on this issue. Pet. Cert: Appendix C-7, Stanton Road, 984 F.2d at

1019. First, the courts in accord with the Ninth Circuit's holding that fees are not

recoverable have employed analyses similar to the Ninth Circuit's flawed

analysis. Second, this argument held true with respect to whether CERCLA

abrogated the Eleventh Amendment; yet such a “’judicial headcount’ is, of

course, not dispositive.” Union Gas, 491 U.S. at 46-47 (White, J., concurring in

part and dissenting in part).

8The Ninth Circuit’s decision creates the rather strange inconsistency of

allowing fees to citizens suit plaintiffs who seek to further CERCLA’s goals by

having someone else pay for a cleanup, but not allowing fees to persons like Key

Tronic who actually step up to the line and pay for acleanup.

7

(23)

not the recovery of response costs. 42 U.S.C. § 9659(c).

Because a citizens suit plaintiff could not recover fees as

“response” costs, Congress provided in 42 U.S.C. § 9659(f)

for the recovery of “attorney fees” in order to authorize the

recovery of fees under Runyon and Alyeska.

Second, “enforcement activities” encompasses a broader

meaning than “attorneys’ fees.” One of the statutory

provisions relied upon by the United States for an award of

fees, 42 U.S.C. § 9604(b)1), authorizes it to recover its costs

of “legal . . . studies,” a more expansive term than

“attorneys’ fees.” In the CERCLA context, the need for

attorneys to expend time and effort, particularly to identify

other potentially responsible persons, arises long before

litigation begins. Without providing a more expansive term

for recovering attorneys’ fees, such as “enforcement

activities” or “legal . . . studies,” prelitigation attorneys’ fees

incurred to enforce CERCLA might not be recoverable under

the litigation-bound analysis of Alyeska and Runyon. Thus,

the more expansive terms, providing for recovery of costs of

“enforcement activities” and “legal . . . studies,” bring these

prelitigation fees within their meaning.

Third, CERCLA nowhere provides for a recovery of

fees to the United States by using the words “attorneys’

fees.” In Stanton Road, the Ninth Circuit, however, stated

that the United States may recover its fees when bringing a

Section 107(a) cosi-recovery action pursuant to 42 U.S.C.

§ 9604(b)(1)’s provision for recovery of costs of “legal . . .

studies.” Pet. Cert. Appendix C-7, Stanton Road, 984 F.2d at

1019. That the Ninth Circuit understood that the United

States may recover attorneys’ fees under the rubric “legal . . .

studies” costs, instead of “attorneys’ fees,” underscores the

Ninth Circuit’s erroneous reading of CERCLA and Runyon.

The different wording illustrates that (a) Congress is not

required to employ particular words to evidence its intent

that fees be recovered, and (b) different wording, “legal . . .

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studies” and “enforcerzent activities” costs versus “attorneys’

fees,” was employed to allow a more expansive recovery of

attorneys’ fees, including fees incurred outside of actual

litigation, to persons who incur costs in cleaning up

hazardous waste sites.

An award of attorneys’ fees, specifical’ ; ovided for as

costs of “enforcement activities,” is also fully consistent with

and furthers CERCLA’s purpose of promoting prompt

cleanup of the environment and protection of public health.

Key Tronic stepped forward and paid more than its fair share

of response costs. It then incurred significant costs in

enforcing CERCLA’s scheme of requiring all polluters to

pay. A ruling that attorneys’ fees are recoverable encourages

prompt cleanups, because persons are more likely to

volunteer to act promptly to clean up hazardous waste sites if

they are able to recover from other liable parties a portion of

all response costs, including costs of enforcing CERCLA’s

liability scheme.

A ruling denying attorneys’ fees, however, defeats

CERCLA’s goal of encouraging prompt cleanups. Such a

ruling strongly discourages parties from responding to

contamination; without the ability to recover attorneys’ fees

for enforcing CERCLA’s liability scheme, a party otherwise

willing and able to clean up a polluted site will be less likely

to do so. Such a party may wait for others to do the work

because it does not wish to bear the substantial expense of

enforcing CERCLA. In that event, no work will be done on a

site because there will be no volunteers. A ruling that

attorneys’ fees are not recoverable as “enforcement

activities” will discourage volunteers and thwart prompt

cleanups. Such a ruling would frustrate, not further,

Congress’ express intent of having persons, including private

persons, promptly clean up the vast number of hazardous

waste sites across the nation. As stated by the Sixth Circuit:

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“By providing private parties with a federal

cause of action for the re- covery of necessary

expenses in the cleanup of hazardous wastes,

Congress intended § 107 as a powerful

incentive for these parties to expend their own

responsible persons to take action. The court

can conceive of no surer method to defeat this

purpose than to require private parties to

shoulder the financial burden of the very

litigation that is necessary to recover these

costs.”

Donahey, 987 F.2d at 1256 (quoting Bolin v. Cessna Aircraft

Co., 759 F. Supp. 692, 710 (D. Kan. 1991)); General Elec.

920 F.2d at 1422 (CERCLA’s purpose of ensuring prompt

cleanup and imposition of cleanup costs on responsible

parties would be undermined if polluters did not pay

litigation costs).

Vil. ATTORNEYS’ FEES ARE OTHERWISE

RECOVERABLE.

For two additional reasons, attorneys’ fees are

recoverable even if the Court concludes that they are not

authorized as “enforcement activities” under Section 107(a).

First, a party who incurs costs, including attorneys’ fees, in

bringing about a common benefit is entitled to recover those

costs from the persons benefited. See, e.g., Alyeska, 421 U.S.

at 257-58 (noting common fund exception to American

Rule); Hail v. Cole, 412 U.S. 1, 5-7 (1973) (noting common

benefit exception to American Rule). Someone must bear the

transaction costs in implementing CERCLA. When one

party, among several statutorily liable persons, bears the

costs, including attorneys’ fees, associated with designing

and negotiating the cleanup of a polluted site, identifying the

persons responsible for the pollution, and spreading those

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costs among the persons liable, a common benefit is

conferred on all liable parties. This common benefit should

be recoverable.

Second, even if attorneys’ fees are not recoverable under

the common benefit exception to the American Rule,

attorneys’ fees incurred prior to litigation should be

recoverable as response costs irrespective of the American

Rule. In FMC Corp., 998 F.2d at 847-48, the Tenth Circuit

concluded that Alyeska and Runyon barred recovery of

attorneys’ fees arising from private cost-recovery litigation

under Section 107(a)4)(B). The Tenth Circuit held,

however, that nonlitigation attorneys’ fees are recoverable:

We reach a different legal conclusion,

however, with respect to nonlitigation

attorneys fees. Such fees do not fall under the

American rule set out in Alyeska and Runyon

because they are not incurred in pursuing

litigation. Accordingly, recovery of these fees

is not barred as a matter of law. Rather, the

issue is whether nonlitigation attorneys fees

are necessary response costs within the

meaning of section 9607(a)(4)(B).

... Plaintiffs seek recovery of the

nonlitigation attorneys fees generated in

and in preparing and carrying out the work

plan approved by the EPA. For example,

professionals who performed the removal

work, negotiating changes to the work plan,

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and monitoring work progress. We cannot say

as a matter of law that, under the

circumstances here, none of _ these

nonlitigation attorneys fees were necessary

response costs.

Id.

While Key Tronic urges the Court to hold that it is

entitled to all attorneys’ fees, not just nonlitigation fees, Key

Tronic requests in the alternative that the Court adopt the

Tenth Circuit analysis. The Air Force stipulated to pay

$155, 000 of the following amounts on the excepted claims:

A. Costs and fees incurred by attorneys

and investigators for Key Tronic in the

amount of $365,649 during Key Tronic’s

search for additional potentially responsible

parties and costs and fees incurred by

attorneys related to the negotiation of the

Consent Decree between Key Tronic, the

United States, and the State of Washington in

The State of Washington v. County of

Spokane, CS-89-033-RJM;

B. The salary of David Powers, Key

Tronic’s General Counsel and Secretary, in

the amount of $70,000 for time spent

supervising the search for additional

potentially responsible parties and negotiating

the Consent Decree identified in A.

C. Attorneys’ fees and costs incurred by

Key Tronic in the prosecution of this action.

Pet. Cert. Appendix B-3, Key Tronic, 766 F. Supp. at 867. If

the Court adopts the Tenth Circuit approach, the Court

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should remand for entry of a modified award under the

stipulation.

Vill. CONCLUSION

For the reasons stated, the judgment of the Ninth Circuit

should be reversed. The Court should reverse the judgment

of the Ninth Circuit and remand with instructions to (1)

reinstate the district court judgment, (2) award fees and costs

on appeal, and (3) calculate interest on the district court

judgment.

PERKINS COIE

By

James R. Moore

Counsel of Record

Mark W. Schneider

Michael Himes

Kathryn L. Tucker

Attorneys for

Key Tronic

Corporation

A-l

PERTINENT PROVISIONS OF

42 U.S.C. § 9601 ET SEQ.

§ 9601. Definitions

For purposes of this subchapter—

(25) The terms “respond” or “response” means remove,

removal, remedy, and remedial action, all such terms

(including the terms “removal” and “remedial action”)

include enforcement activities related thereto.

§ 9607. 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) the owner and operator ofa vessel ora facility,

(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 witha

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

A-2 A-3

owned or operated by another party or entity and containing of judicial review), any person may commence a civil action

such hazardous substances, and . on his own behalf—

(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, ofa 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

(D) the costs of any health assessment or

health effects study carried out under

section 9604(i) of this title.

(1) against any person (including the United

States and any other governmental

instrumentality or agency, to the extent

permitted by the eleventh amendment to the

Constitution) who is alleged to be in violation

of any standard, regulation, condition,

requirement, or order which has become

effective pursuant to this chapter (including

any provision of an agreement under

section 9620 of this title, relating to Federal

facilities); or

(2) against the President or any other officer

of the United States (including the

Administrator of the Environmental

Protection Agency and the Administrator of

the ATSDR) where there is alleged a failure

of the President or of such other officer to

perform any act or duty under this chapter,

including an act or duty under section 9620 of

this title (relating to Federal facilities), which

is not discretionary with the President or such

other officer.

Paragraph (2) shall not apply to any act or duty under the

provisions of section 9660 of this title (relating to research,

development, and demonstration).

§ 9659. Citizens suits

(a) Authority to bring civil actions (c) Relief

Except as provided in subsections (d) and (e) of this

section and in section 9613(h) of this title (relating to timing The district court shall have jurisdiction in actions

brought under subsection (a)(1) of this section to enforce the

A4

standard, regulation, condition, requirement, or order

concerned (including any provision of an agreement under

section 9620 of this title), to order such action as may be

necessary to correct the violation, and to impose any civil

penalty provided for the violation. The district court shall

have jurisdiction in actions brought under subsection (a)(2)

of this section to order the President or other officer to

perform the act or duty concerned.

(d) Rules applicable to subsection (a)(1) actions

(1) Notice

No action may be commenced under subsection (a)(1) of

this section before 60 days after the plaintiff has given notice

of the violation to each of the following:

(A) The President.

(B) The State in which the alleged violation occurs.

(C) Any alleged violator of the standard, regulation,

condition, requirement, or order concerned (including any

provision of an agreement under section 9620 of this title).

Notice under this paragraph shall be given in such manner as

the President shall prescribe by regulation.

(2) Diligent prosecution

No action may be commenced under paragraph (1) of

subsection (a) of this section if the President has commenced

and is diligently prosecuting an action under this chapter, or

under the Solid Waste Act [42 U.S.C.A. § 6901 et seq.] to

require compliance with the standard, regulation, condition,

requirement, or order concerned (including any provision of

an agreement under section 9620 of this title).

~ ee ’

;

A-5

(e) Rules applicable to subsection (a)(2) actions

No action may be commenced under paragraph (2) of

subsection (a) of this section before the 60th day following

the date on which the plaintiff gives notice to the

Administrator or other department, agency, or

instrumentality that the plaintiff will commence such action.

Notice under this subsection shall be given in such manner as

the President shall prescribe by regulation.

(f) Costs

The court, in issuing any final order in any action

brought pursuant to this section, may award costs of

litigation (including reasonable attorney and expert witness

fees) to the prevailing or the substantially prevailing party

whenever the court determines such an award is appropriate.

The court may, if a temporary restraining order or

preliminary injunction is sought, require the filing of a bond

or equivalent security in accordance with the Federal Rules

of Civil Procedure.