Respondents Brief — Key Tronic Corp. v. United States

] uprance Court, US, i

MAR 1 1994

No. 93-376 \

;

In the Supreme Court of the United States

OcToOBER TERM, 1993

KEY TRONiIC CORPORATION, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON WRIT’ OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

Drew S. Days, III

Solicitor General

Lois J. SCHIFFER

Acting Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

RONALD J. MANN

Assistant to the Solicitor General

ANNE S. ALMY

DAVID C. SHILTON

M. ALICE THURSTON

SILEEN T. MCDONOUGH

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether the provision in Section 107(a) of the Com-

prehensive Environmental Response, Compensation, and

Liability Act, 42 U.S.C. 9607(a), that allows a private

party to recover the “costs of response” to pollution at

designated sites, implicitly authorizes the recovery of

attorney fees.

(1)

>

TABLE OF CONTENTS

assesses

EEE ST

Statutory provisions involved ...........................0..00005

STEED

EE

Argument:

Because CERCLA does not explicitly authorize a

private party to recover attorney fees in a suit

to recover response costs under Section 107 of

CERCLA, the district court erred in awarding

attorney fees in this case ................cccccccccceeeeeees

CERCLA does not explicitly authorize an

award of attorney fees in a suit by a private

party to recover response costs under

a

The inclusion of explicit authorizations of

attorney fee awards in other provisions of

CERCLA counsels against awarding fees

in this case, where no such provision

LS SEE LTT TEED

A suit to reallocate the costs of pollution

among polluters is not a suit to enforce

A. CERCLA is enforced by activities that

ensure that hazardous waste sites are

cleaned up or that shift costs to polluters

from society as a whole, not by activi-

ties that reallocate the costs of pollution

oa cc ccecssenngenscons

B. CERCLA does not use forms of the verb

“enforce” to refer to suits to reallocate the

costs of pollution among polluters .......

(Il)

10

12

16

18

IV Vv

a Page Cases—Continued: Page

4 e circumstances surrounding the United States v. South Carolina Recycling and

enactment of the reference to “en- Disposal, Inc., 653 F. Supp. 984 (D.S.C. 1984),

orcement activities do not indicate aff'd in part and vacated in part, 858 F.2d 160

that Congress intended that provision (4th Cir. 1988), cert. denied, 490 U.S. 1106

to cover suits to reallocate the costs i isiaiiciliscidiichatinecaneusseiidannninindntidimenansiananescnes 22

of pollution among polluters ................ 21 Wilson v. Key Tronic Corporation, 701 P.2d 518

IV. The attorney fees sought by petitioner ts Se reriicctsiecictctisiatencnnsasnescseces 2,3

are not otherwise necessary costs of Zobrest v. Catalina Foothills School District, 113

ETI? ‘secretistnisitesolincbaitindtuancehiaianieineediietinieicetcindinss 25 S. Ct. 2462 (VIDS) 0... ececeesereeneseeeererenerenenescens 26

aa 29 —_

eienae Constitution, statutes, regulation and rule:

snmemmannmdeanieiudenneatidindeeiinbebatiasiatnlaiaa sistas incite la US. Co :

(2 0 er 12

TABLE OF AUTHORITIES Administrative Procedure Act, 5 U.S.C. 708 ..... 16

Onsen Comprehensive Environmental Response, Com-

pensation, and Liability Act, 42 U.S.C. 9601

Alyeska Pipeline Service Co. v. Wilderness et seq.:

Society, 421 U.S. 240 (1975) .o....ccccccceees 6, 9, 10, 12 § 101(10)0), 42 U.S.C. 9GOICO)G)............. 20

FMC Corporation v. AERO Industries, Inc., § 101(23), 42 U.S.C. 9601(23) ............. 13

998 F.2d 842 (10th Cir. 1993) 00.0.0... 26, 28 § 101(23), 42 U.S.C. 9601(23) (1982) .......... 22

Key Tronic Corporation v. United States, No. § 101(23)-(25), 42 U.S.C. 9601(23)-(25)

C-87-20-JLQ (E.D. Wash. Nov. 7, 1989) ........ 2 i acancesesessstntrepescchedenninessinccnssciniataumacnpe- 22

Pennsylvania v. Union Gas Co., 491 US. 1 § 101(25), 42 U.S.C. 9601(25) ......... 2,6, 7, 11, 14,

SE ERE A ACER SE Oat 11 15, 21, 23, 24, la

Runyon v. McCrary, 427 U.S. 160 (1976) ........ 6, 10, 13 § 101 note, 42 U.S.C. 9601 note.................. 22

Thunder Basin Coal Co. v. Reich, No. 92-896 § 104(b)(1), 42 U.S.C. 9604()(1)............. 14, 20, 23

GRR, BB, TEI reczsessncenssessnrvscenensventnccssvesees 16 § 104(d)(1)(A), 42 U.S.C. 9604(d)(1)(A) ....... 14, 19

United States v. Conservation Chemical Company, § 104(d)(2), 42 U.S.C. 9604(d)(2) ................. 20

619 F. Supp. 162 (W.D. Mo. 1985) «0.0.0.0... 22 § 104(d)(3), 42 U.S.C, 9604(d)(3) .............-.-. 20

United States v. Hardage, 982 F.2d 1436 (10th § 104(e)(1), 42 U.S.C. 9604(@)(1) ce... 20

CO. HII sisnecisbuiniehinenhititesinaidiihiiatsenin 26, 28 § 104 note, 42 U.S.C. 9604 note .............0. 4

United States v. Northeastern Pharmaceutical 8 106, 4B U.S.C. GOOG ...........00002..scccccereeereees 11

and Chemical Company, 579 F. Supp. 823 § 106, 42 U.S.C. 9606 ...........cceeeecceeeeeeeeeeees 19

(W.D. Mo. 1984), aff'd in part and rev'd in § 106(a), 42 U.S.C. 9606 (a) ............... 22

part, 810 F.2d 726 (8th Cir. 1986), cert. § 106(b), 42 U.S.C. 9606(b) .............cece. 19

denied, 484 U.S. 848 (1987) ..........cccccccccecceeees 22 § 106(b)(1), 42 U.S.C. 9606(b)C) ............ 22

VI

Statutes, regulation and rule—Continued: Page

§ 106(c), 42 U.S.C. 9606(C) .00.... ccc. 20

MB 19, la-3a

§ 107(a), 42 U.S.C. 9607(a) «0.0.0... 2, 6, la

§ 107(a)(1)-(4), 42 U.S.C. 9607(a)(1)-(4) ... 11, la-2a

§ 107(a)(A), 42 U.S.C. 9607(a)(A) ........... 11, 13, 18,

la-2a

§ 107(a)(A), 42 U.S.C. 9607(a)(A) (1982)..... 22

§ 107(a)(B), 42 U.S.C. 9607(a)(B) ............. 7, 11, 19,

23, la-2a

§ 107(f)(1), 42 U.S.C. 9GO7(fIQ1) «0.0... 11

§ 107(k)(4)(a), 42 U.S.C. 9607(k)(4){a) ........ 20

§ 109(f), 42 U.S.C. 9609(f) ooo. 20

§ 110(a), 42 U.S.C. 9610(a) «0.0.0.0... 20

§ 110@), 42 U.S.C. 96106) .......................... 13

§ 110(e), 42 U.S.C. 9610€e) .0.00.0.0n. 20

§ 110(e)(5), 42 U.S.C. 9610(e)(5) ................. 20

§ 111(¢)(3), 42 U.S.C. 9611(6)(3) ....... oo . 19

§ 111(c)(6), 42 U.S.C. 961106) ....00000.... 19

§ 113(a), 42 U.S.C. 9613(a) «0.00.0... 19

§ 113¢h)(2), 42 U.S.C. 9613(h)(2)................. 19

§ 117(©)(2), 42 U.S.C. 9617(©)(2) ......... 19

§ 120(a)(4), 42 U.S.C. 9620(a)(4) ................. 20

§ 120(e)(5), 42 U.S.C. 9605(e)(5) ....0.0. 0... 20

§ 121(d)(2)( B)(ii)( 11D, 42 U.S.C. 962 1(d)(2)( B)

EE ee Ee St en 20

§ 121(e), 42 U.S.C. 9621¢e) ....0.... ee. 20

§ 122(b)(4), 42 U.S.C. 9622(b)(4) oo... 19

§ 122(d), 42 U.S.C. 9622(d) 00... 20

§ 122(d)(3), 42 U.S.C. 9622(d)(3) ................. 21

§ 122(e)(5), 42 U.S.C. 9622(e)(5) ........000... 19

§ 122(f)(6)(C), 42 U.S.C. 9622(f1)(6)(C) ......... 19

§ 122(g), 42 U.S.C. 9622(g)........... cc ccccecceee. 3

§ 122(g)(1)(A), 42 U.S.C. 9622(g)(1)(A)........ 3

§ 122(g)(5), 42 U.S.C. 9622(g)(5) ................. 3

§ 301(h)(1)(F), 42 U.S.C. 9651(h)(1)(P)....... 19

Vil

Statutes, regulation and rule—Continued: Page

SL 17

8 310@, 42 U.S.C. BEEBE ..............2200000000+. 19

8 3100), 42 U.S.C. SEGOT) .............00000000000+. 13

Superfund Amendments and Reauthorization

Act of 1986, Pub. L. No. 99-499, 100 Stat.

1613:

bo 8 15, 21

tl Gl SES 22

En 15

i id hash cicscicioteciliiadiibiiennidsinibiinsenmeesanecnne 11

BN GHEE, GED tethctentncictintnemasinitanenanisatiinescrenessnecsie 2

Miscellaneous:

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

ein 24

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

REET EOL IE STE 8 <A a 23

Ti, 7 soniactainihaatitenaiiiiesieaeecateiaitiieaianindinessindeniahiashinsitbiaitnin 17, 24

In the Supreme Court of the United States

OcToBER TERM, 1993

No. 93-376

KEY TRONIC CORPORATION, PETITIONER

Uv,

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pct. App. Al-A5)

is reported at 984 F.2d 1025. The opinion of the dis-

trict court (Pet.App. B1-B15) is reported at 766 F. Supp.

865. A related opinion of the district court (J.A. 14-39)

is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

January 28, 1993. A petition for rehearing was denied

on June 7, 1993. Pet. App. E1. The petition for a writ

of certiorari was filed on September 7, 1993, and was

granted on December 13, 1993.' The jurisdiction of this

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

' The petition for a writ of certiorari also sought review of the

related case of Stanton Road Associates v. Lohrey Enterprises,

(1)

STATUTORY PROVISIONS INVOLVED

The appendix, infra, sets forth the text of Sections

101(25) and 107(a) of the Comprehensive Environmen-

tal Response, Compensation, and Liability Act

(CERCLA), as amended in 1986 by the Superfund

Amendments and Reauthorization Act of 1986, 42

U.S.C. 9601(25) and 9607(a).

STATEMENT

1. This case involves the Colbert Disposal Site in

Spokane County, Washington. During the 1970's, the

operator of that site disposed of hazardous waste it

accepted from several parties, including both petitioner

and the United States Air Force. After the Washington

Department of Ecology (WDOE) discovered in 1980 that

water wells near the site were contaminated, and after

various neighbors of the site sued petitioner,’ petitioner

began to investigate the extent of the contamination

and took some initial steps in response. WDOE and

984 F.2d 1015 (9th Cir. 1993), reprinted in Pet. App. C1-C20. On

December 16, 1993, the Clerk of the Court, upon receipt of a

joint stipulation, dismissed the writ of certiorari as to Stanton

Road pursuant to Rule 46.1 of this Court. 114 S. Ct. 652.

* After a jury trial, those parties secured a judgment against

petitioner and the County in which the site was located for

$384,777.99, which was affirmed on appeal. See Wilson v. Key

Tronic Corporation, 701 P.2d 518, 528-529 (Wash. Ct. App. 1985).

When petitioner sought to recover some of its share of those

costs from the United States, a federal district court concluded

that petitioner was responsible for 90% of the contamination,

and hence held that the obligation of the United States was

limited to 10% of the sum for which petitioner was held liable in

the Wilson case. Key Tronic Corporation v. United States, No. C-

87-20-JLQ (E.D. Wash. Nov. 7, 1989) (Clerk's Record item 40,

Exhibit 1).

3

the federal Environmental Protection Agency (EPA) also

took action. By December 1987, the regulatory agen-

cies had expended a total of more than $900,000 in

responding to contamination at the site. To recover

those costs, the agencies instituted formal proceedings

against Key Tronic, the County of Spokane, and the

Air Force. See Pet. App. A2; J.A. 15-16; Administrative

Order on Consent and Interagency Agreement at 3, Jn

re Colbert Landfill, Spokane County, Washington (EPA

No. 1090-01-25-107) [hereinafter Air Force Consent Or-

der);> Wilson v. Key Tronic Corporation, 701 P.2d 518,

521 (Wash. Ct. App. 1985).

The proceedings against the Air Force were resolved

by an administrative consent order entered by EPA

pursuant to the de minimis settlement provision of

CERCLA, 42 U.S.C. 9622(g). Under that order, the Air

Force agreed to pay $1.45 million to EPA to resolve

whatever CERCLA liability it might have had because

of its activities at the Colbert Site. As required by Sec-

tion 9622(g)(1)(A), the order included findings—to which

petitioner did not object—that the Air Force's activity

at the site was minimal in comparison to that of other

parties. In accordance with Section 9622(g)(5), the or-

der indicated that the Air Force “shall not be liable for

claims for contribution for [matters covered by the or-

der] by any other person.” Air Force Consent Order,

supra, at 3-6, 12; see Pet. App. A2; J.A. 16-17.

The proceedings against petitioner were resolved by

a consent decree entered in an action the regulatory

agencies brought against petitioner and the County of

Spokane in the United States District Court for the

Eastern District of Washington. That document ex-

’That document appears in the record as Exhibit 1 to Clerk's

Record item 23.

4

pressly noted the concurrent consent order agreed to

with the Air Force, required petitioner to pay $4.2 mil-

lion toward the cost of cleaning up the site, and re-

quired the County to implement the cleanup. Consent

Decree at 4, 18-19, State of Washington v. County of

Spokane, Civ. No. 89-033-RJM [hereinafter Petitioner’s

EPA Consent Decree}*; see Pet. App. A2; J.A. 16-17.

2. Petitioner subsequently filed this suit against a

variety of parties (including the United States) in the

United States District Court for the Eastern District of

Washington, seeking contribution under CERCLA for

the costs it incurred pursuant to its settlement, as well

as attorney fees and additional response costs that it

claimed it had incurred independently. When the United

States responded that the Air Force’s consent order

protected it from liability for contribution toward the

costs of matters covered by the consent order, peti-

tioner limited its claim against the United States to

certain matters it viewed as being beyond the scope of

the consent order. In an August 9, 1990 opinion (J.A.

14-39), the court ruled that petitioner was entitled to

pursue recovery against the United States of response

costs that it claimed it had incurred independently of

the response of the regulatory agencies to problems at

the site. J.A. 20-27.

In response to that decision, petitioner and the United

States entered into a consent decree, under which the

United States agreed to pay to petitioner $185,000 to-

ward response costs petitioner had incurred before en-

try of the consent decree between petitioner and EPA.

Consent Decree at 1, Clerk’s Record item 92 fhereinaf-

ter Response Cost Consent Decree]. The parties were

* That document appears in the record as Exhibit 4 to Clerk's

Record item 23.

5

unable to agree, however, on whether the United States

was obligated to reimburse petitioner for certain speci-

fied attorney fees petitioner had incurred. Accordingly,

the decree excepted the following claims from the settle-

ment:

A. Costs and fees incurred by attorneys and in-

vestigators for [petitioner] in the amount of

$365,649 during [petitioner]’s search for addi-

tional potentially responsible parties and costs

and fees incurred by attorneys related to the

negotiation of [Petitioner’s EPA Consent De-

cree];

B. The salary of [petitioner]’s General Counsel

and Secretary in the amount of $70,000, for

time spent supervising the search for addi-

tional potentially responsible parties and ne-

gotiating [Petitioners EPA Consent Decree];

C. Attorneys’ fees and costs incurred by [peti-

tioner] in the prosecution of this action

[$73,500]; and

D. Prejudgment interest on the excepted claims

[$12,000].

Id. at 2-3 (quoted at Pet. App. B3-B4). After briefing

and oral argument, the district court concluded in a

1991 opinion (Pet. App. B1-B15) that the United States

was liable to petitioner for the excepted claims. /d. at

B6-B13.

3. A divided panel of the court of appeals reversed

the award of attorney fees.’ Pet. App. Al-A5. The rel-

evant portion of the opinion relied entirely on the opin-

ion in a related case, Stanton Road Associates v. Lohrey

* The government did not challenge the award of prejudgment

interest.

.

on

6

Enterprises, id. at C1-C20. In that case, the court re-

viewed the applicable statutory language, which au-

thorizes recovery of the “necessary costs of response”

and defines “response” as “removal, remedy, and reme-

dial action * * * includ[ing] enforcement activities re-

lated thereto.” CERCLA Sections 107(a), 101(25), 42

U.S.C. 9607(a), 9601(25). The court noted the “Ameri-

can Rule” described by this Court in Alyeska Pipeline

Service Co. v. Wilderness Society, 421 U.S. 240, 247

(1975), under which “a prevailing party cannot recover

attorneys’ fees in the absence of congressional author-

ity.” Pet. App. C6. The court also considered (id. at C7)

this Court’s opinion in Runyon v. McCrary, 427 U.S.

160 (1976), which stated that attorney fees are not

recoverable “absent explicit congressional authoriza-

tion,” id. at 185. Relying on those cases, the court con-

cluded that the reference to “enforcement activities” in

Section 101(25) of CERCLA was not sufficiently ex-

plicit to justify an award of attorney fees. Pet. App. C7.

Judge Canby dissented, both-in the Stanton Road case,

id. at C15-C20, and in this case, id. at A5.

SUMMARY OF ARGUMENT

The Court's decisions in Alyeska Pipeline Service Co.

v. Wilderness Society, 421 U.S. 240 (1975), and Runyon

v. McCrary, 427 U.S. 160 (1976), establish that federal

courts may not award attorney fees to a prevailing

party absent explicit statutory authorization. Because

there is no explicit authorization for an award of attor-

ney fees in this case, petitioner is not entitled to such

an award.

1. The relevant provisions of CERCLA authorize

petitioner to recover “necessary costs of response” and

7

define “response” to include “enforcement activities.”

CERCLA Sections 107(a)(B), 101(25), 42 U.S.C.

9607(a)(B), 9601(25). Those provisions do not refer to

attorney fees directly and, standing alone, do not con-

stitute the explicit authorization that Alyeska requires

for a fee award.

2. Theconclusion that Congress has not authorized

an award of attorney fees in this case is bolstered by

the presence of several unquestionably explicit autho-

rizations in other provisions of CERCLA, including one

provision enacted in the same statute that added the

reference to “enforcement activities” on which petitioner

relies. Congress’s ready use of precise language in other

circumstances counsels against concluding that the

vague language on which petitioner relies authorizes

an award of attorney fees in this case.

3. In any event, petitioner is not entitled to such an

award because petitioner's suit does not constitute en-

forcement activity. In the area of administrative law,

the term “enforcement” typically refers to an action

brought by an administrative agency to enforce some

directive of a statute it administers. Although the term

in some cases might include actions a statute autho-

rizes private parties to bring, we believe that the term

when applied to CERCLA must be limited to actions

that ensure that hazardous waste sites are cleaned up

or shift the costs of pollution to polluters from society

as a whole. Because petitioner’s suit does not further

those purposes, but rather is limited to reallocating the

costs of pollution among polluters, we do not view it as

enforcement activity under CERCLA.

CERCLA’s use of similar phrases in other provisions

supports our understanding of the meaning of “enforce-

ment.” The statute uses similar phrases—references to

8

enforcement actions, enforcement measures, and en-

forcement proceedings—almost exclusively to refer to

actions taken to ensure that hazardous waste sites are

cleaned up or to shift the cost of pollution to polluters.

None of CERCLA’s uses of forms of the verb “enforce”

unambiguously includes actions—such as the suit

here—that seek only to reallocate the cost of pollution

among polluters. That pattern of usage suggests that

our understanding, not petitioner’s, correctly captures

the intent of the statute.

Our understanding also is supported by the circum-

stances that occasioned enactment of the reference to

“enforcement activities.” Before that reference was

added, there was a controversy whether the govern-

ment could recover the cost of its enforcement activi-

ties. The addition of that reference resolved that con-

troversy by giving the government an express entitle-

ment to recover such costs.

4. Finally, petitioner is not entitled to recover the

fees it seeks under an exception to the Alyeska rule for

nonlitigation attorney fees. Even if such an exception

exists, it would be limited to the “necessary costs of

response” described in CERCLA Section 107(a), which

include only fees incurred in activities directly related

to the containment or cleanup of hazardous releases.

Because none of the fees petitioner seeks are directly

related to the protection of the environment, they would

not be covered by any such exception.

9

ARGUMENT

BECAUSE CERCLA DOES NOT EXPLICITLY AUTHO-

RIZE A PRIVATE PARTY TO RECOVER ATTORNEY

FEES IN A SUIT TO RECOVER RESPONSE COSTS

UNDER SECTION 107 OF CERCLA, THE DISTRICT

COURT ERRED IN AWARDING ATTORNEY FEES IN

THIS CASE

Although the rule in other common-law jurisdictions

has been different, the Court has recognized since the

eighteenth century that federal courts generally do not

award attorney fees to the prevailing party. See Alyeska

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

247-250 (1975). As the Court explained in Alyeska, that

rule started from the Court's early conclusion that fed-

eral courts did not have any inherent authority to im-

pose an award of fees and was reaffirmed by a long

course of congressional enactments specifying the types

of costs that federal courts should award to the prevail-

ing party. Jd. at 250-258. Hence, by the time the Court

decided Alyeska in 1975, Congress had enacted numer-

ous “specific and explicit provisions for the allowance

of attorneys’ fees under selected statutes granting or

protecting various federal rights.” /d. at 260. Against

that background, the Court held that it was inappro-

priate to imply “any roving authority to the Judiciary

to allow counsel fees as costs or otherwise whenever

the courts might deem them warranted.” /bid.® Accord-

® For that reason, we see little relevance in the extended policy

discussion offered by petitioner. As the Court explained in Alyeska,

the existence of important public policies is not sufficient to

justify judicial implication of authorization to award attorney

fees:

If the [policy at issue in Alyeska] *** is a matter of the

gravest importance, it would appear that a wide range of

‘Ss

10

ingly, federal courts can award fees to the prevailing

party in federal litigation only when Congress has

“carve[d] out specific exceptions to [that] general rule.”

Id. at 269. As the Court further explained two years

later in Runyon v. McCrary, 427 U.S. 160 (1976), fed-

eral courts should not assume that Congress “implic-

itly” intended to authorize fees: “absent explicit con-

gressional authorization, attorneys’ fees are not a re-

coverable cost of litigation.” Jd. at 184, 185. A mere

“generalized command” is insufficient. Jd. at 186. Be-

cause petitioner cannot identify any explicit congres-

sional authorization for an award of the fees it seeks in

this case, its claim should fail under the austere rea-

soning of Alyeska and Runyon.

I, CERCLA DOES NOT EXPLICITLY AUTHORIZE AN

AWARD OF ATTORNEY FEES IN A SUIT BY A

PRIVATE PARTY TO RECOVER RESPONSE

COSTS UNDER CERCLA SECTION 107

| Section 107(a) of CERCLA establishes a cause of ac-

tion against any party who is responsible for a hazard-

ous substance problem covered by CERCLA; its four

statutes would arguably satisfy the criterion of public im-

portance and justify an award of attorneys’ fees to the pri-

vate litigant. And, if any statutory policy is deemed so im-

portant that its enforcement must be encouraged by awards

of attorneys’ fees, how could a court deny attorneys’ fees to

private litigants in actions under 42 U.S.C. § 1983 seeking

to vindicate constitutional rights?

421 U.S. at 264. It is not the role of the judiciary to balance

petitioner's view (Pet. Br. 28) that the availability of attorney

fee awards will encourage parties such as petitioner to engage

in cleanup activity, against the contrary view that the availabil-

ity of attorney fee awards will encourage litigation and resis-

tance to enforcement activity.

numbered subparagraphs describe the types of defen-

dants covered by the cause of action. 42 U.S.C.

9607(a)(1)-(4). Section 107(a)(A) then provides that a

defendant in such an action (a responsible party) is

liable for “all costs of removal or remedial action in-

curred by the United States Government or a State or

an Indian tribe not inconsistent with the national con-

tingency plan.”’ 42 U.S.C. 9607(a)(A).* In contrast, Sec-

tion 107(a)(B)—the provision on which petitioner's ac-

tion rests—authorizes the recovery of “any other nec-

essary costs of response incurred by any other person

consistent with the national contingency plan.” 42

U.S.C. 9607(a)(B). Section 101(25), in turn, defines “re-

sponse” to mean “remove, removal, remedy, and reme-

dial action;, [sic] all such terms (including the terms

‘removal’ and ‘remedial action’) include enforcement ac-

tivities related thereto.” 42 U.S.C. 9601(25).

None of those provisions refers directly to attorney

fees, much less explicitly authorizes an award of attor-

ney fees in cases such as this one.’ Contrary to the

’ The national contingency plan was promulgated by EPA as a

regulation pursuant to CERCLA Section 105, 42 U.S.C. 9605,

and is codified at 40 C.F.R. Part 300.

* Although the court of appeals and petitioner have referred to

the lettered subparagraphs of Section 107(a) as subdivisions of

subparagraph (4) of Section 107(a), it is plain that each of the

lettered subparagraphs actually applies to each of the numbered

subparagraphs. Hence, we follow the more accurate practice of

referring to the four lettered subparagraphs of Section 107(a) as

subdivisions of Section 107(a) itself. Our practice is consistent

with internal citations contained in CERCLA itself. See, e.g., 42

U.S.C. 9607(f)(1)) (referring to “subparagraph (C) of subsection

(a) of this section’).

* Both petitioner and its amicus rely heavily on Pennsylvania

v. Union Gas Co., 491 U.S. 1 (1989). That case, of course, in-

12

suggestion of petitioner’s amicus (ARCO Br. 10 & n.11),

the term “enforcement activities” in CERCLA Section

101(25) does not refer only to attorney fees, much less

imply that all attorney fees are recoverable. For ex-

ample, environmental regulators engaged in enforce-

ment activity might incur substantial fees to third-

party professionals (other than attorneys) for technical

services involved in ascertaining and evaluating a

party's compliance with orders issued by the regula-

tors. Moreover, as we explain in Point III.C, infra, the

term “enforcement activities” was added to the statute

in 1986 to clarify that the government can recover its

enforcement costs, not to establish a general right to

attorney fees for prevailing parties in all CERCLA con-

texts.

Il. THE INCLUSION OF EXPLICIT AUTHORIZA-

TIONS OF ATTORNEY FEE AWARDS IN OTHER

PROVISIONS OF CERCLA COUNSELS AGAINST

AWARDING FEES IN THIS CASE, WHERE NO

SUCH PROVISION APPLIES

As the Court explained in Alyeska, one of the most

important bases for the canon of construction under

which federal courts will not award attorney fees un-

less a statute explicitly authorizes such an award is

the prevalence of statutes that include “specific and

explicit provisions for the allowance of attorneys’ fees.”

See Alyeska, 421 U.S. at 260 & n.33 (listing statutes

that explicitly authorize an award of attorney fees).

volved different provisions of CERCLA than those at issue here,

and involved the clear statement rule the Court has discerned in

the Eleventh Amendment context, rather than the American

Rule articulated in Alyeska. Hence, we find nothing in that case

that has direct relevance to decision of this case.

13

Because of the long tradition in this country against

an award of attorney fees to the prevailing litigant,

and because Congress in numerous instances has

adopted language that indubitably authorizes an award

of fees, federal courts should hesitate before conclud-

ing that a “generalized command” (Runyon, 427 US.

at 186) was intended to authorize an award of attorney

fees.

That concern applies with especial force here, be-

cause CERCLA itself contains several provisions that

undoubtedly authorize awards of attorney fees. For ex-

ample, the citizens suit provision in Section 310(f) of

CERCLA provides that a court “may award costs of

litigation (including reasonable attorney and expert

witness fees) to the prevailing or the substantially pre-

vailing party whenever the court determines such an

award is appropriate.” 42 U.S.C. 9659(f). Similarly,

Section 110(c) of CERCLA provides that the Secretary

of Labor may award “a sum equal to the aggregate

amount of all costs and expenses (including the

attorney’s fees)” that an applicant incurs in connection

with the whistleblower protection provisions of

CERCLA. 42 U.S.C. 9610(c).

Also, it is not disputed that Sections 107(a)(A),

101(23), and 104(b) combine to authorize the federal

government to recover all costs of response and en-

forcement that it incurs, including the cost of attorney

time. As we explained above, Section 107(a)(A) estab-

lishes a cause of action against responsible parties for

“all costs of removal or remedial action incurred by the

United States Government.” 42 U.S.C. 9607(a)(A). Sec-

tion 101(23), in turn, defines “removal” to include “ac-

tion taken under section 9604(b) of this title.” 42 U.S.C.

960 1(23). Finally, Section 104(b) authorizes EPA to “un-

oo

14

dertake such planning, legal, fiscal * * * and other stud-

ies or investigations as [it] may deem necessary or ap-

propriate to plan and direct response actions, to re-

cover the costs thereof, and to enforce the provisions of

this chapter.” 42 U.S.C. 9604(b)(1).’° Because the pro-

vision expressly authorizes the government to under-

take “legal * * * studies or investigations,” the provi-

sion authorizes the recovery of legal—i.e., attorney—

costs incurred in the course of the described activi-

ties.'' Because CERCLA authorizes EPA to delegate

authority under Section 104(b)(1) to “[a] State or politi-

cal subdivision thereof or Indian tribe,” CERCLA Sec-

tion 104(d)(1)(A), 42 U.S.C. 9604(d)(1)(A), those enti-

ties have a similar entitlement to recover legal costs

when they take actions pursuant to such delegations of

authority.

Congress's express and repeated authorizations of

attorney fee awards in CERCLA provide particularized

support in this context for the inference the Court drew

in Alyeska: because Congress has shown itself quite

ready to authorize an award of attorney fees explicitly,

the absence of an explicit authorization strongly sug-

gests that Congress did not form an intent to authorize

a fee award in a case such as this one. The timing of

the enactment of the express attorney fee provision in

The text of Section 9604(b)(1) refers to “the President,” but

the President has delegated the authority described in the text

to the Administrator of the EPA. See 42 U.S.C. 9604 note (de-

scribing delegation of functions under Section 9604).

'' See Pet. Br. 26-27 (agreeing that CERCLA authorizes recov-

ery of fees by the United States). Since 1986, it has been clear

that the reference to “response” actions in Section 104(b)(1)'s list

of covered activities includes “enforcement activities related

thereto.” CERCLA Section 101(25), 42 U.S.C. 9601(25).

15

CERCLA Section 310(f) bolsters that inference consid-

erably. That provision was added by Section 206 of the

Superfund Amendments and Reauthorization Act of

1986 (SARA), Pub. L. No. 99-499, 100 Stat. 1703, the

same statute that added to CERCLA Section 101(25)

the reference to “enforcement activities” on which peti-

tioner relies. See SARA § 101(e), 100 Stat. 1615 (amend-

ing 42 U.S.C. 9601(25)). That inference supports the

determination of the court of appeals that petitioner

was not entitled to the fees it sought in this case."

Il. A SUIT TO REALLOCATE THE COSTS OF POL-

LUTION AMONG POLLUTERS IS NOT A SUIT

TO ENFORCE CERCLA

The principal contention of petitioner and its amicus

Atlantic Richfield Company is that Congress explicitly

authorized an award of attorney fees in cases such as

this one when it included a reference to “enforcement

activities” in the definition of “response.” Pet. Br. 12-

2 Our reading of CERCLA reflects a rational design of attor-

ney fee awards, under which attorney costs generally are avail-

able for suits that further the primary purposes of CERCLA:

ensuring that hazardous waste sites are cleaned up and shifting

the costs of pollution to polluters. The two main types of suits

that further those purposes are suits by government entities in

their regulatory capacity and citizens suits seeking to enforce

compliance with CERCLA. Because of the great potential for

whistleblowers to reveal wrongful activity that otherwise would

not be uncovered (and thus not be remedied), whistleblower

suits serve those goals as well. By contrast, the suit in this case

merely reallocates costs among polluters, a goal that is not in

our view central to CERCLA’s enforcement objectives (as we

discuss in more detail in Point IIIL.A, infra).

16

21; ARCO Br. 9-16.'° Even if—contravry to our submis-

sion above—the reference to “enforcement activities”

were thought to be sufficiently explicit on its own to

justify an award of attorney fees in cases such as this

one, petitioner’s claim would fail because petitioner's

suit is not part of the “enforcement activities” described

in Section 101(25) of CERCLA.

A. CERCLA Is Enforced By Activities That Ensure

That Hazardous Waste Sites Are Cleaned Up Or

That Shift Costs To Polluters From Society As

A Whole, Not By Activities That Reallocate The

Costs Of Pollution Among Polluters

Petitioner's argument that CERCLA’s reference to

“enforcement activities” includes any suit whatsoever,

so long as it is described by the statute, ignores the

most common usage of the word “enforcement” in stat-

utes that delegate responsibilities to administrative

agencies—to describe suits by the agency to require

compliance with orders issued under the authority del-

egated by the statute. See, e.g., Thunder Basin Coal

Co. v. Reich, No. 92-896 (Jan. 19, 1994), slip op. 7

(describing “pre- and post-enforcement challenges” and

“enforcement proceedings” under the Federal Mine

Safety and Health Amendments Act of 1977); see also

5 U.S.C. 703 (provision of Administrative Procedure

'S Petitioner apparently does not argue that the attorney fees

associated with negotiating the consent decree (a portion of the

costs described in categories A and B of the costs at issue here,

see page 5, supra) are recoverable as part of the costs of “en-

forcement activities.” As we understand it, the only basis argued

in this Court for recovery of those costs is that they are not

covered by the Alyeska rule because they are nonlitigation attor-

ney fees. See Pet. Br. 30-32. We address that argument in Point

IV, infra.

=

Qiao re

17

Act referring to “civil or criminal proceedings for judi-

cial enforcement”). The most likely source of the termi-

nology adopted in Section 101(25) is that customary

usage, rather than the broader definition urged by pe-

titioner.'*

To be sure, a reference to “enforcement” activities

might not strictly be limited to actions brought by regu-

latory authorities; in some cases Congress relies on

private parties to compel compliance with a statute in

a manner that reasonably could be characterized as

“enforcement” of the statute. But whatever may be the

precise boundaries of the reference to “enforcement

activities,” we believe that the term cannot plausibly

be applied to activities that do not directly further what

we understand to be the primary goals of CERCLA:

ensuring that hazardous waste sites are cleaned up

and that the costs of pollution are borne by polluters as

a group rather than society as a whole. Cf. Pet. Br. 18

(referring to “CERCLA’s policy that the costs of cleanup

be borne by polluters”). Once cleanup has been achieved

and the costs of pollution have been shifted to pollut-

ers, CERCLA’s enforcement has been conipleted.

Even if it is true that some actions by private parties

under CERCLA might be characterized as enforcement

actions (such as citizens suits under CERCLA Section

310), actions such as petitioner’s suit—which seeks to

shift the burdens of CERCLA from one polluter to an-

other—further secondary goals that should not be char-

“The House Report that accompanied the portion of SARA

that added the “enforcement” language to CERCLA offers an

explanation consistent with our understanding of the concept of

“enforcement.” See H.R. Rep. No. 253, 99th Cong., Ist Sess., Pt.

V, at 5 (1985) (“Under existing law, the primary responsibilities

for cleanup and enforcement are vesied in the President.”).

acterized as “enforcement activities” covered by Sec-

tion 101(25). Petitioner’s argument that its suit to com-

pel contribution is a suit to “enforce” CERCLA rests on

the premise that a central goal of CERCLA is to en-

sure that polluters share costs in accordance with their

proportionate responsibility.’ Although CERCLA in-

cludes procedures under which private parties can at-

tempt to reallocate their financial obligation in ac-

cordance with their share of responsibility, we do not

view those procedures as furthering the primary thrust

of CERCLA or as part of its enforcement activities.

Most obviously, CERCLA imposes liability for the en-

tire cost of cleanup on any single responsible party,

without imposing any obligation that EPA pursue other

responsible parties. CERCLA Section 107(a)(A), 42

U.S.C. 9607(a)(A) (imposing liability for “all costs of

removal or remedial action” on “any person” who has a

sufficient connection to the pollution). That focus on

ensuring payment by some polluter in the first instance

suggests that litigation among polluters to reallocate

liability is not “enforcement” of CERCLA.

B. CERCLA Does Not Use Forms Of The Verb “En-

force” To Refer To Suits To Reallocate The Costs

of Pollution Among Polluters

CERCLA does not refer to “enforcement activities”

except in Section 101(25)’s definition of “response.” Its

use of related terms, however, supports our understand-

ing of the meaning of that phrase. The most similar

usages are the references in several provisions to en-

forcement actions, enforcement measures, and enforce-

5 See Pet. Br. 24 (referring to “scheme of requiring all pollut-

ers to pay”); see also ARCO Br. 3 (referring to a responsible

party's “statutory obligation to pay its share of response costs’)

19

ment proceedings.'® Consistently with our understand-

ing of the term, those references describe actions taken

to ensure the cleanup of hazardous waste sites and the

shifting of the costs of pollution to polluters. None of

those references describes actions to reallocate the costs

of pollution among polluters.'”

CERCLA also frequently uses various forms of the

verb “enforce.” The pattern of those usages supports

our view that the term “enforcement activities” does

not include actions brought by one polluter to shift to

other polluters the costs of responding to contamina-

tion to which the plaintiff contributed.'* A heavy pre-

© See, e.g., 42 U.S.C. 9604(d)(1)(A) (authorizing EPA to autho-

rize local governmental entities to “carry out * * * enforcement

actions [related to actions taken by the entity under 42 U.S.C.

9605(a)(8)]"), 9606(b) (‘action” by EPA “to enforce” an order is-

sued by EPA), 9611(c)(3) (authorizing use of Superfund to “take

enforcement *** action against releases of hazardous sub-

stances”), 9611(c)(6) (authorizing use of Superfund for “enforce-

ment measures’), 9613(a) (referring to “civil or criminal pro-

ceeding for enforcement”), 9613(h)(2) (referring to “action to en-

force an order issued [by regulatory authorities]’), 9617(c)(2)

(referring to “enforcement action” under 42 U.S.C. 9606),

9622(b)(4) (referring to “enforcement action” on behalf of the

Superfund), 9622(e)(5) (describing EPA's authority “to under-

take response or enforcement action”), 9651(h)(1)(F) (requiring

EPA to report on “enforcement actions” it has undertaken), 9659(c)

(granting jurisdiction over “actions * * * to enforce” rules issued

under CERCLA).

" Although the provision in 42 U.S.C. 9622(f)(6)(C) allowing

EPA to include in settlement agreements provisions for “future

enforcement action under [42 U.S.C. 9606 or 9607]” could be

construed to contemplate private party actions under Section

9607(a)(B), the context suggests that the reference is limited to

government enforcement.

'* As the text should make clear, our reading of the statute

does not give the United States any particular entitlement to

20

ponderance of the references plainly refer only to the

activities of government environmental regulators.’® Al-

though a few of the references—such as the reference

in Section 101(25)—could be construed to include ac-

tivities by other parties,” none of them expressly in-

fees not given to other similarly situated parties. In cases where

an agency of the United States incurred costs in response to

pollution to which that agency contributed, any attempt by the

agency to recover attorney fees in a contribution action would be

barred for the same reason petitioner's attempt should be barred

in this case.

See, e.g., 42 U.S.C. 9604(b)(1) (referring to acts of the EPA

“to enforce the provisions of this chapter’), 9604(e)(1) (authori-

zation of officials designated by the President to take actions for

“enforcing” CERCLA), 9606(c) (references to “enforcement

authorit|y]” established by Section 9606 and to “assignment of

responsibility for * * * enforcement of standards and permits ),

9609(f) (referring to “President's authority to enforce any provi-

sions of this chapter’), 9610(a) (referring to “enforcement” of

whistleblower provisions of CERCLA), 9610(e) (same), 9620(e)(5)

(referring to “enforcement status” of sites), 9621(e) (referring to

enforcement of permits by appropriate State and Federal agen-

cies), 9622(d) (section governing “enforce|ment]” of settlements

entered into with EPA). i

Several of the references that seem to contemplate only activi-

ties by environmental regulatory authorities seem less relevant

because they use the term in different contexts. See 42 U.S.C.

9601(10)(J) (referring to “enforceable” requirements in a pre-

treatment program submitted by a local government for federal

approval), 9604(d)(2) (authority of EPA to “enforce” a contract),

9604(d)(3) (authority of EPA to assist local government entity in

“enforcement” of a contract).

® See, e.g., 42 U.S.C. 9607(k)(4)(a) (obligating Secretary of the

Treasury to specify standards to assure that private insurance

will “carry out the purposes of this subsection in a reliable,

enforceable, and practical manner’), 9620(a)(4) (referring to “State

laws regarding enforcement’), 9621(d)(2)(B)(u) (111) (requiring that

proposed remedial action include “enforceable measures that will

preclude human exposure to * * * contaminated groundwater ).

21

cludes activities—like those at issue here— that seek

only to reallocate costs among polluters rather than to

shift them to polluters in the first instance.?!

The absence from CERCLA’s frequent references to

“enforcement” of any reference that necessarily includes

actions such as the one at issue here, coupled with the

preponderance of references that could not plausibly

include such an action, suggests that the term does not

include actions to reallocate the costs of pollution among

polluters.

C. The Circumstances Surrounding The 1986 En-

actment Of The Reference To “Enforcement Ac-

tivities” Do Not Indicate That Congress Intended

That Provision To Cover Suits To Reallocate

The Costs of Pollution Among Polluters

The provision on which petitioner relies was added

to CERCLA by Section 101(e) of SARA, 100 Stat. 1615.

That provision inserted a new clause into the defini-

tion of “respond” or “response,” highlighted in the fol-

lowing quotation of the current provision:

The terms “respond” or “response” means remove,

removal, remedy, and remedial action;, all such

terms (including the terms “removal” and “reme-

dial action”) include enforcement activities related

thereto.

42 U.S.C. 9601(25) (emphasis added).”

*! One provision authorizes federal district courts to “enforce”

settlement decrees entered into by EPA. 42 U.S.C. 9622(d)(3). In

our view, that provision sheds little light on the question before

the Court.

= Both the superfluous semicolon before the beginning of the

new phrase and the lack of agreement between the subject and

the verb of the main clause appear in the statute as currently

22

At the time that amendment was made, there was

contemporaneous litigation regarding the government’s

ability to recover the costs of attorney time expended

in enforcement activity.” Section 107(a)(A) of CERCLA

covered only the “costs of removal or remedial action.”

42 U.S.C. 9607(a)(A) (1982). The definitions of those

terms (in CERCLA Sections 101(23) through (25), 42

U.S.C. 9601(23)-(25) (1982)) did not directly refer to

enforcement, although the definition of “remove” in-

cluded “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.” CERCLA Section 101(23), 42 U.S.C. 9601(23)

(1982).

As a result, although the government believed—and

continues to believe—that Section 104(b)(1) and the

codified. See also 42 U.S.C. 9601 note regarding amendments to

Paragraph (25) (describing errors in Section 101(f) of SARA, 100

Stat. 1616).

% See, e.g., United States v. South Carolina Recycling and

Disposal, Inc., 635 F. Supp. 984, 1009 (D.S.C. 1984), aff'd in part

and vacated in part, 858 F.2d 160 (4th Cir. 1988), cert. denied,

490 U.S. 1106 (1989); United States vy. Conservation Chemical

Company, 619 F. Supp. 162, 186 (W.D. Mo. 1985); United States

v. Northeastern Pharmaceutical and Chemical Company, 579 F.

Supp. 823, 851 (W.D. Mo. 1984), aff'd, 810 F.2d 726 (8th Cir.

1986), cert. denied, 484 U.S. 848 (1987). Those courts concluded

that CERCLA adequately demonstrated that Congress had in-

tended for the United States to recover enforcement costs, in-

cluding the costs of attorney time.

* The most obvious activity that would constitute enforcement

activity, but not indubitably a response action under CERCLA's

pre-SARA language, in that category would be an action under

CERCLA Section 106(b)(1), 42 U.S.C. 9606()(1), to enforce or-

ders entered under CERCLA Section 106(a), 42 U.S.C. 960G6(a),

to protect public health and welfare.

23

related provisions of CERCLA authorized recovery of

the costs of enforcement activity, the litigation raised

an issue whether the language of CERCLA adequately

covered those costs. Given the wide variety of enforce-

ment proceedings authorized under CERCLA (see note

16, supra), that lack of clarity had the potential to be

quite detrimental to the funding of EPA's costly mis-

sion under CERCLA. The amendment neatly resolved

that issue by expressly including “enforcement activi-

ties” within the definition of “response.”

The House Report on the amendment supports that

understanding. The Committee explained:

The section also modifies the definition of “response

action” to include related enforcement activities.

The change will confirm the EPA’s authority to

recover costs for enforcement actions taken against

responsible parties.

H.R. Rep. No. 253, 99th Cong., Ist Sess., Pt. I, at 66-67

(1985).® Nothing in that explanation supports peti-

tioner’s view (Pet. Br. 16-18: see ARCO Br. 12-13) that

the amendment was intended to wreak a broad alter-

ation in the framework for attorney fee awards under

CERCLA. The difference between the House Report

statement that the amendment was intended to “con-

firm” Congress’ intent that the Government should re-

cover its enforcement costs, and petitioner's contention

that Congress intended to create a new right for pri-

vate parties to recover attorney fees is readily appar-

ent. Hence, although the discussion in the House Re-

port is not dispositive, it does provide considerable sup-

* The House Report describes the amendment as directed at

the definition of “response action,” a term found in CERCLA

Section 104(b)(1), 42 U.S.C. 9604()(1), but not found in the

provision on which petitioner relies, CERCLA Section 107(a)(B).

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

24

port for the understanding of the provision we have

offered, and strongly counsels against interpreting the

language of the amendment as explicit authorization

for attorney fee awards in cases such as this one.”

Contrary to petitioner’s submission (Pet. Br. 16; see

ARCO Br. 12-13), we see little significance in Congress's

choice to include the reference to enforcement activi-

ties in a definition of the costs of “response,” which are

covered by the cause of action for private parties in

Section 107(a)(B), rather than in the definition of the

costs of “removal” or “remedial action,” which are cov-

ered by the cause of action for government entities

under Section 107(a)(A). First, as even petitioner ad-

mits (Pet. Br. 16), the somewhat odd phrasing of the

amendment makes it clear that the reference to “en-

forcement activities” is included not only in the defini-

tion of the costs of “response,” but also in the definition

of the costs of “removal” and “remedial action.” See

CERCLA Section 101(25), 42 U.S.C. 9601(25) (“[A]ll

such terms (including the terms ‘removal’ and ‘reme-

dial action’) include enforcement activities related

thereto.”).2” Second, because the term “response” is de-

~ ® The other two references to the amendments in the commit-

tee reports do little more than paraphrase the language of the

statute, and thus shed little light on the question at hand, their

ambiguity is no more instructive than the ambiguity of the stat-

ute Congress enacted. See H.R. Rep. No. 253, 99th Cong., Ist

Sess., Pt. V, at 6 (1985) (describing subsection 101(d), the prede-

cessor to SARA § 101(e)); H.R. Conf. Rep. No. 962, 99th Cong.

2d Sess. 184 (1986). As the Conference Report explains. the

Senate version of the bill did not contain a similar provision,

and thus the Senate Report does not discuss the point. /d. at

185.

” The reference to “enforcement activities” in Section 101(25)

plainly applies to government “response actions” authorized by

Section 104, and to actions to recover such costs brought by the

United States under Section 107(a)(A). Hence, there is nothing

25

fined to include “remove,” “removal,” and “remedial ac-

tion,” Congress could add the concept of enforcement

activities to all of those defined terms most efficiently

by making a single amendment to the definition of

“response” in CERCLA Section 101(25).” The logistical

benefits of making the change in a single amendment

are a more plausible explanation for the placement of

the change in Section 101(25) than petitioner's sugges-

tion.

IV. THE ATTORNEY FEES SOUGHT BY PETI-

TIONER ARE NOT OTHERWISE NECESSARY

COSTS OF RESPONSE

Petitioner also argues (Pet. Br. 30-32)” that the at-

odd about the United States’ reliance in the court of appeals on

Section 101(25) as part of the basis for recovery by the United

States of the costs of attorney time in enforcement actions. See

Pet. Br. 13 (noting that reliance). As explained in the text, Sec-

tion 104(b) establishes that the government may recover legal

costs; the reference to Section 101(25) is necessary to make it

clear that enforcement activities are among the types of re-

sponse actions for which the costs described in Section 104(b)

may be recovered. Conversely, because CERCLA Section 10A(b)

plainly does not apply here, petitioner can draw no substantial

support for a fee award from the amendment to CERCLA Sec-

tion 101(25).

* Indeed, to the extent that Congress's precise purpose in ex-

panding the definition of “response” was to clarify the breadth

of the concept of the government's “response action” covered by

CERCLA Section 9604(b)(1)—as the House Report suggests, see

page 23 & n.25, supra—an amendment to the definitions of

“removal” and “remedial actions” would not have been adequate.

* Petitioner further argues (Pet. Br. 29) that it is entitled to

recover the fees it seeks under the common benefit exception to

the American Rule. That argument was not presented to the

court of appeals or in the petition and thus is not properly before

the Court. See, e.g, Zobrest v. Catalina Foothills School Dis-

trict, 113 S. Ct. 2462, 2466 (1993).

26

torney fees it seeks are recoverable because they are

nonlitigation attorney fees, based on its view that the

American Rule articulated in Alyeska covers only liti-

gation-related attorney fees.” Whatever merit there may

be to the view that the American Rule does not cover

some category of “nonlitigation” attorney fees, this is

not a suitable case in which to address that question

because the fees sought by petitioner would not be

recoverable under that exception.

Petitioner relies on the decision of the Tenth Circuit

in FMC Corporation v. AERO Industries, Inc., 998 F.2d

842 (1993). The panel in FMC reasoned that attorney

fees that are not incurred in pursuing litigation are not

covered by the Alyeska rule, and then determined that

such fees would be “necessary costs of response” recov-

erable under CERCLA Section 107(a)(B) if they were

“necessary to the containment and cleanup of hazard-

ous releases.” 998 F.2d at 848; see also United States v.

Hardage, 982 F.2d 1436, 1447-1448 (10th Cir. 1992)

(stating same rule in dictum). The FMC court explained

that the claimant in that case sought recovery for “at-

torneys fees generated in designing and negotiating

the removal action and in preparing and carrying out

the work plan approved by the EPA,” including “fees

paid for negotiating and drafting contracts with envi-

ronmental professionals who performed the removal

work, negotiating changes to the work plan, and moni-

toring work progress.” 998 F.2d at 848. Because some

of those costs might have been “necessary response

costs,” the court remanded the matter to the district

court to determine whether any of the claimed costs

could be recovered under Section 107(a)(B). /bid.

*® That argument apparently was not presented to the court of

appeals, and thus is not squarely before the Court. We neverthe-

less address it here because it arguably was raised in the peti-

tion, Pet. 11-12.

27

None of the fees at issue in this case are covered by

the rule articulated in FMC, which must in our view

be limited to costs directly related to remedying pollu-

tion, as opposed to costs incurred in resisting responsi-

bility or attempting to shift liability to third parties.

First, and most obviously, category C of the claims*

would not be covered, because that category covers fees

“incurred *** in the prosecution of this action.” Re-

sponse Cost Consent Decree, supra, at 3.*

Petitioner also seeks recovery for costs incurred in

searching for potentially responsible parties, whether

incurred by outside attorneys or by its general counsel

(included in categories A and B of the claims, respec-

tively). Those activities contributed nothing to the con-

tainment and cleanup of hazardous releases at the site:

petitioner's status as a responsible party under Section

107(a) makes petitioner liable for the entire cost of the

cleanup without regard to the existence, location, or

solvency of other potentially responsible parties. Neth-

ing in the definitions of “removal,” “remedial action,”

and “respond” in CERCLA Sections 101(23), (24), and

(25) suggests that those costs should be covered when

incurred solely for the purpose of reallocating costs

among polluters. Accordingly, those costs are not re-

coverable under the FMC rationale.

Finally, petitioner seeks to recover costs incurred in

negotiating the consent decree, whether incurred by

outside counsel or by its general counsel (included in

categories A and B of the claims, respectively). Although

* The covered claims are set out in full at page 5 of this brief

and at Pet. App. B3-B4.

* The petition comes close to conceding the point, by arguing

at Pet. 12 n.14 that the other two types of costs were recoverable

without referring to the category C costs.

28

that poses a closer question, we believe that the dis-

trict court plainly erred in granting summary judg-

ment for petitioner with respect to those costs. To the

extent those costs were incurred in resisting EPA's at-

tempt to enforce the statute, as appears to be the case,

the costs did not contribute to the cleanup or contain-

ment of hazardous substances. See Hardage, 982 F.2d

at 1448 (costs incurred in “investigating remedial al-

ternatives” not recoverable because “costs [a private

party incurs] in developing its own remedy, solely to

defend against the government's * * * action” are not

“necessary” within the meaning of CERCLA). If the

costs had been incurred in the voluntary design of a

remedy, as opposed to criticizing and opposing a rem-

edy proposed by the applicable government agency, re-

covery might be available under the FMC rule. See

FMC, 998 F.2d at 848 (remanding for consideration by

district court of costs that included “attorney fees gen-

erated in designing *** the removal action”). Be-

cause the fees were incurred in resisting the enforce-

ment of CERCLA by EPA, however, they did not con-

tribute to remedying pollution-at the site and thus are

not necessary costs of response.**

“We understand the references in FMC to “negotiating” the

removal action to refer to negotiations with contractors who

conducted the removal action, not to negotiation with EPA over

the requirements of the removal action. See 998 F.2d at 848

(describing costs of “negotiating and drafting contracts with en-

vironmental professionals who performed the removal work’).

“On that point, it is our understanding that the settlement

compensates petitioner for the fees it incurred to professionals

other than attorneys in the course of evaluating the remedy

proposed in the consent decree. See Affidavit of David L. Powers.

J A. 11 (describing fees paid to Dames and Moore and Landau

Associates, Inc.). We understand the dispute to cover only the

29

CONCLUSION

The judgment of the court of appeals should be af-

firmed.

Respectfully submitted.

Drew S. Days, Ill

Solicitor General

Lois J. SCHIFFER

Acting Assistant Attorney General

LAWRENCE G, WALLACE

Deputy Solicitor General

RONALD J. MANN

Assistant to the Solicitor General

ANNE S. ALMY

Davip C. SHILTON

M. ALice THURSTON

MILEEN T. MCDONOUGH

Attorneys

FEBRUARY 1994

fees payable for the time of its general counsel and to Perkins

Coie for its work on that issue. See ibid. (describing fees paid to

Perkins Coie).

APPENDIX A

§ 9601. Definitions

For purpose of this subchapter—

YY oS. = -e -@

(25) The terms “respond” or “response” means? re-

move, removal, remedy, and remedial action;,’ all such

terms (including the terms “removal” and “remedial

action”) include enforcement activities related thereto.

. = += 2 ¢

§ 9607. Liability

(a) Covered persons; scope; recoverable costs and dam-

ages; 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 of a vessel or a facil-

ity,

(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 ar-

ranged with a transporter for transport for disposal

or treatment, of hazardous substances owned or pos-

sessed by such person, by any other party or entity,

at any facility or incinceration vessel owned or oper-

ated by another party or entity and containing such

hazardous substances, and

* So in original. Probably should be “mean”.

* So in original.

(la)

2a

(4) any person who accepts or accepted any haz-

ardous substances for transport to disposal or treat-

ment facilities, incinceration 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 in-

curred by the United States Government or a State

or an Indian tribe not inconsistent with the na-

tional contingency plan;

(B) any other necessary costs of response in-

curred 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 re-

sulting from such a release; and

(D) the costs of any health assessment or health

effects study carried out under section 9604(j) of

this title.

The amounts recoverable in an action under this sec-

tion 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 re-

coverable under this section shall be the same rate as

is specified for interest on investments of the Hazard-

ous 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

3a

with reference to the date on which interest accruing

under this subsection commences.

i a a a

% US GOVERNMENT PRINTING OFFICE 1994—301.157/66113