Amicus Curiae Brief — Cooper Industries, Inc. v. Aviall Services, Inc.

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No. 02-1192

Jn the Supreme Court of the Gnited States

| DEC 12 2093

COOPER INDUSTRIES, INC., PETITIONER

Vv.

AVIALL SERVICES, INC.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

THEODORE B. OLSON

Solicitor General

Counsel of Record

THOMAS L. SANSONETTI

Assistant Attorney General

THOMAS G. HUNGAR

Deputy Solicitor General

JEFFREY P. MINEAR

Assistant to the Solicitor

General

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

_@ BEST AVAILABLE COPYS

26 pe

QUESTION PRESENTED

Whether a party that is potentially liable under the Com-

prehensive Environmental Response, Compensation, and

Liability Act (CERCLA), 42 U.S.C. 9601 et seq., for cleanup

of property contaminated by hazardous substances, but has

not been sued under CERCLA to undertake or to pay for

the cost of the cleanup, may nevertheless seek contribution

under CERCLA from other jointly responsible parties.

(I)

TABLE OF CONTENTS

Statement

A. The CERCLA liability scheme

B. The facts and proceedings below

Di ,

oan

A. The court of appeals erred in construing

CERCLA’s contribution provisions

B. This Court should grant the petition for a writ

of certiorari

Conclusion

TABLE OF AUTHORITIES

Cases:

Akzo Coatings, Inc. v. Aigner Corp., 30 F 3d 761

(7th Cir. 1994)

Bedford Affiliates v. Sills, 156 F.3d 416 (2d Cir.

1998)

Centerior Serv. Co. v. Acme Scrap Iron & Metal

Corp., 153 F.3d 344 (6th Cir. 1998)

Connecticut Nat'l Bank v. Germain, 503 U.S.

249 (1992)

Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930

(8th Cir. 1995) :

Dole Food Co. v. Patrickson, 123 S. Ct. 1655

(2003)

FMC Corp. v. Aero Indus., Inc., 998 F 2d 842

(10th Cir. 1993)

Key Tronic Corp. v. United States, 511 U.S. 809

(1994)

Morissette v. United States, 342 U.S. 246 (1952) .........

New Castle County v. Halliburton NUS Corp.,

111 F.3d 1116 (3d Cir. 1997)

Northwest Airlines, Inc. v. Transport Workers

Union, 451 U.S. 77 (1981)

(IID)

Cases—Continued: Page

Pavelic & LeFlore v. Marvel Entm’t Group,

493 U.S. 120 (1989) 15

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) ......... 2

Pinal Creek Group v. Newmont Mining Corp., 118

F.3d 1298 (9th Cir. 1997), cert. denied, 524 U.S. 937

(1998) 5, 16-17

Pneumo Abex Corp. v. High Point, Thomasville &

Denton R.R., 142 F.3d 769 (4th Cir.), cert. denied,

525 U.S. 963 (1998) 5

Reading Co., In re, 115 F.3d 1111 (3d Cir. 1997) ............... 4

Redwing Carriers, Inc. v. Saraland Apartments,

94 F.3d 1489 (11th Cir. 1996) 5

Rodriguez v. United States, 480 U.S. 522 (1987) .............. 15

Rumpke of Ind., Inc. v. Cummins Engine Co., 107

F.3d 1235 (7th Cir. 1997) 4,19

United States v. Aceto Agric. Chems. Corp., 872

F.2d 1373 (8th Cir. 1989) 10

United States v. Alcan Aluminum Corp., 964 F.2d

252 (3d Cir. 1993) . 10

‘nited States v. Bestfoods, 524 U.S. 51 (1998) ............. 2,3,9

United States v. Colorado & E. R.R., 50 F.3d 1530

(10th Cir. 1995) 5

United States v. Kayser-Roth Corp., 910 F.2d 24

(1st Cir. 1990), cert. denied, 498 U.S. 1084 (1991) ............ 10

United States v. Locke, 529 U.S. 89 (2000) 12

United States v. Monsanto Co., 858 F.2d 160 (4th

Cir. 1988), cert. denied, 490 U.S. 1106 (1989) ...............0+ 10

United States v. R.W. Meyer, Inc., 889 F.2d 1497,

(6th Cir. 1989), cert. denied, 494 U.S. 1057 (1990) ........... 10

United Techs. Corp. v. Browning-Ferris Indus.,

33 F.3d 96 (1st Cir. 1994), cert. denied, 513 U.S. 1183

(1995) 5,10,12 ~

Statutes and regulations:

Clean Water Act of 1977, 33 U.S.C. 1251 et seq.:

§ 311(c), 33 U.S.C. 1321(c)

§ 311(d), 33 U.S.C. 1321(d)

Comprehensive Environmental Response, Compensa-

tion, and Liability Act, 42 U.S.C. 9601 et seq. ......ccccccseeses

§ 101(9), 42 U.S.C. 9601(9)

9 101(14), 42 U.S.C. 9601(14)

§ 101(20)-(22), 42 U.S.C. 9601(20)-(22)

§ 101(23), 42 U.S.C. 9601(23)-(24)

§ 101(24), 42 U.S.C. 9601(24)

§ 101(26), 42 U.S.C. 9601(26)

§ 101(29), 42 U.S.C. 9601(29)

§ 101(31), 42 U.S.C. 9601(31)

§ 104, 42 U.S.C. 9604

§ 105, 42 U.S.C. 9605

§ 106, 42 U.S.C. 9606

§ 106(a), 42 U.S.C. 9606(a)

§ 106(b), 42 U.S.C. 9606(b)

§ 106(b)(2)(B), 42 U.S.C. 9606(b)(2)B)

§ 107, 42 U.S.C. 9607 2, 4, 5, 7, 12

§ 107(a), 42 U.S.C. 9607(a) passim

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

§ 107(a)(1)-(4)(A), 42 U.S.C. 9607(a)(1)-(4)(A) 02.0.

§ 107(a)(1)-(4)(B), 42 U.S.C. 9607(a)(1)-(4)(B) 4,

§ 113(f), 42 U.S.C. 9613(f) ........ 5, 6, 8, 10, 16, 17,

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

§ 113(f)(2), 42 U.S.C. 9613(£)(2) ........- 5,6, 7,15, 16, 18

§ 113(£)(3), 42 U.S.C. 9613(f)(3) 18, 19

§ 113(f(3)(B), 42 U.S.C. 9613(f(3\B) 6, 13

§ 113(g)(1), 42 U.S.C. 9613(g)(1) 14

§ 113(g)(3), 42 U.S.C. 9613(g)(3) 13, 14

§ 113(g\(3)B), 42 U.S.C. 9613(g)(3B) 13

§ 122, 42 U.S.C. 9622 6

§ 122(a), 42 U.S.C. 9622(a) 6

ehh yZehewkrkwwh & www e - &

Statutes and regulations—Continued: Page

§ 122(d), 42 U.S.C. 9622(d) 6

§ 122(g), 42 U.S.C. 9622(g) 6

§ 122(h), 42 U.S.C. 9622(h) 6

§ 122(i), 42 U.S.C. 9622(i) 6

Small Business Liability Relief and Brownfields

Revitalization Act, Pub. L. No. 107-118, 115 Stat.

2356 19

Superfund Amendments and Reauthorization Act of

1986, Pub. L. No. 99-499, 100 Stat. 1613 2

Uniform Contribution Among Tortfeasors Act

§ 1(d), 12 U.L.A. 123 (1955) 11

40 C.F.R. Pt. 300 4

Exec. Order No. 12,580, 3 C.F.R. 193 (1987) 3

Miscellaneous:

131 Cong. Rec. (1985):

P. 24,44D ..........-.0cscesssserseseereeneenensensesenscensenssessessessnsesssssnsossesees 14

p. 24,450 14

p. 24,452 14

p. 24,453 14

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

Pt.1. 14

Pt. 3 2,15

H.R. Rep. No. 962, 99th Cong., 2d Sess. (1986) .......-..---svs 15

S. Rep. No. 11, 99th Cong., Ist Sess. (1985) 14

Blacks Law Dictionary (6th ed. 1990) 11

General Accounting Office, Community Development:

Legal Growth Issues—Federal Opportunities and

Challenges (Sept. 2000) . _ 18

Restatement (Third) of Torts (1999) 11, 15, 18

Jn the Supreme Court of the Gnited States

No. 02-1192

COOPER INDUSTRIES, INC., PETITIONER

AVIALL SERVICES, INC.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

This brief is submitted in response to the Court’s order

inviting the Solicitor General to express the views of the

United States. The petition for a writ of certiorari presents

the question whether a party that is potentially liable under

the Comprehensive Environmental Response, Compensa-

tion, and Liability Act (CERCLA), 42 U.S.C. 9601 et seq., for

cleanup of property contaminated by hazardous substances

may seek contribution from other jointly responsible parties

in the absence of a CERCLA suit that would determine and

discharge the underlying liability. The United States sub-

mits that the court of appeals’ divided en banc decision,

which holds that a contribution action is available in that

situation, is mistaken and that this Court should grant the

petition to resolve that important and unsettled issue.

STATEMENT

Aviall Services, Inc., sued Cooper Industries, Inc., in the

United States District Court for the Northern District of

(1)

Texas to recover expenses that Aviall has incurred in clean-

ing up property Aviall purchased from Cooper. During their

respective ownerships, Cooper and Aviall each disposed of

hazardous substances at the site. Aviall asserted that Sec-

tion 107 of CERCLA, 42 U.S.C. 9607, subjects Aviall and

Cooper to joint and several liability for the cleanup, and it

claimed that Section 113(f)(1) of CERCLA, 42 U.S.C.

9613(f)(1), therefore renders Cooper liable to Aviall for con-

tribution. The district court dismissed that claim without

prejudice, ruling that, unless and until Aviall is itself subject

to suit under CERCLA, it cannot seek contribution from

other potentially liable parties. Pet. App. 90a-100a. A

divided panel o” he United States Court of Appeals for the

Fifth Circuit affirmed that judgment. Jd. at 47a-89a. The en

banc court of appeals, in a divided decision, vacated the

panel’s judgment and reversed. /d. at 9a-45a.

A. The CERCLA Liability Scheme

Congress enacted CERCLA in 1980 in response to the

serious environmental and health dangers posed by property

contaminated by hazardous substances. United States v.

Bestfoods, 524 U.S. 51, 55 (1998). CERCLA, as amended and

expanded through the Superfund Amendments and

Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499, 100

Stat. 1613, “grants the President broad power to com-

mand government agencies and private parties to clean up

hazardous-waste sites.” Key Tronic Corp. v. United States,

511 U.S. 809, 814 (1994). It “both provides a mechanism for

cleaning up hazardous waste sites, and imposes the costs of

the cleanup on those responsible for the contamination.”

Pennsylvania v. Union Gas Co., 491 U.S. 1, 7 (1989) (cita-

tions omitted); see H.R. Rep. No. 253, 99th Cong., Ist Sess.

Pt. 3, at 15 (1985) (“CERCLA has two goals: (1) to provide

for clean-up if a hazardous substance is released into the en-

vironment or if such release is threatened, and (2) to hold

responsible parties liable for the costs of these clean-ups.”).

CERCLA provides the President (acting primarily

through the Environmental Protection Agency (EPA), see

Exec. Order No. 12,580, 3 C.F.R. 193 (1987)), with alterna-

tive means for cleaning up contaminated property. Section

104 of CERCLA authorizes EPA itself to undertake re-

sponse actions designed to remove hazardous substances and

provide appropriate remediation, using the Hazardous Sub-

tance Superfund. See 42 U.S.C. 9604; see also Bestfoods, 524

U.S. at 55. Alternatively, Section 106(a) authorizes EPA to

compel, by means of an administrative order or a request for

judicial relief, the responsible parties to undertake response

actions, which the government then monitors. See 42 U.S.C.

9606(a). Under either approach, the United States may re-

cover its response costs from responsible parties through a

cost recovery action under Section 107(a). See 42 U.S.C.

9607(a).

Section 107(a) authorizes the United States, as well as

other entities, to seek recovery of cleanup costs from four

categories of “covered persons”—sometimes referred to as

“potentially responsible parties” or “PRPs”—associated with

the release or threatened release of hazardous substances.

42 U.S.C. 9607(a). Those entities are: (1) owners and opera-

tors of facilities at which hazardous substances are located;

(2) past owners and operators of such facilities at the time

hazardous substances were disposed; (3) persons who ar-

ranged for disposal or treatment of hazardous substances;

and (4) certain transporters of hazardous substances to the

site. 42 U.S.C. 9607(a)(1)-(4). Congress has broadly defined

the pertinent statutory terms—including “facility,” “hazard-

ous substance,” “owner or operator,” “person,” “release,”

“transport,” and “disposal”—to reach a wide range of enti-

ties and activities. See CERCLA § 101(9), (14), (20)-(22),

(26) and (29), 42 U.S.C. 9601(9), (14), (20)-(22), (26) and (29).

Section 107(a) of CERCLA specifically provides that the

United States, individual States, and Indian tribes are enti-

tled to recover from covered persons “all costs of removal or

remedial action incurred” that are “not inconsistent with the

national contingency plan.” CERCLA § 107(a)(1)-(4)(A), 42

U.S.C. 9607(a)(1)-(4)(A). The netional contingency plan

consists of federal regulations that prescribe the pro-

cedure for conducting hazardous substance cleanups under

CERCLA and other federal laws. See CERCLA § 105, 42

U.S.C. 9605; 40 C.F.R. Pt. 300; see also CERCLA § 101(23),

(24) and (31), 42 U.S.C. 9601(23), (24) and (31); Clean Water

Act of 1977 (CWA) § 311(c) and (d), 33 U.S.C. 1321(c) and (d).

CERCLA also authorizes entities other than the United

States, individual States, and Indian tribes to recover their

costs of cleaning up contaminated property under certain

circumstances. For example, a party that complies with a

government order under Section 106(a) to respond to an ac-

tual or threatened release of hazardous substances may peti-

tion the government for reimbursement of its expenses on

the ground that it is not liable for the response costs or that

the government’s decision in selecting a response action was

arbitrary and capricious or otherwise not in accordance with

law. See CERCLA § 106(b), 42 U.S.C. 9606(b). If the gov-

ernment denies the petition, the party may file a judicial ac-

tion seeking reimbursement. See CERCLA § 106(b)(2)(B),

42 U.S.C. 9606(b)(2)(B).

In addition, Section 107 of CERCLA provides that per-

sons “other” than the United States, an individual State, or

an Indian tribe may recover “any other necessary costs of

response” that are incurred “consistent with the national

contingency plan.” CERCLA § 107(a)(1)-(4)(B), 42 U.S.C.

9607(a)(1)-(4)(B). The courts of appeals have ruled that per-

sons who are not themselves liable may clean up contami-

nated property and then invoke this provision to seek reim-

bursement from the same four categories of potentially liable

parties that are subject to government cleanup actions.’ The

1 See In re Reading Co., 115 F.3d 1111, 1120 (8d Cir. 1997); Rumpke of

Ind., Inc. v. Cummins Engine Co., 107 F.3d 1235, 1241-1242 (7th Cir.

courts of appeals have uniformly concluded, however, that a

person who falls within one of those four categories cannot

rely on Section 107(a) to seek full cost recovery on a theory

of joint and several liability from another jointly liable party;

rather, a party that is subject to CERCLA liability is limited

to seeking contribution from other jointly liable parties in

accordance with Section 113(f).”

Section 113(f), which Congress added as part of the 1986

SARA amendments, explicitly addresses when a potentially

liable party may seek contribution. See 42 U.S.C. 9613(f).

Section 113(f)(1) provides in pertinent part:

Any person may seek contribution from any other

person who is liable or potentially liable under [Section

107(a)), during or following any civil action under [Sec-

tion 106] or under [Section 107(a)]. * * * Nothing in

this subsection shall diminish the right of any person to

bring an action for contribution in the absence of a civil

action under [Section 106] or [Section 107].

42 U.S.C. 9613(f)(1). Section 113(f)(2) additionally states

that a party that resolves its liability to the United States or

a State through an administrative or judicially approved set-

tlement shall not be subject to contribution “regarding mat-

1997); Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496

(11th Cir. 1996); United Techs. Corp. v. Browning-Ferris Indus., 33 F.3d

96, 100 (1st Cir. 1994), cert. denied, 513 U.S. 1183 (1995); Akzo Coatings,

Inc. v. Aigner Corp., 30 F.3d 761, 764 (7th Cir. 1994).

2 See, e.g., Bedford Affiliates v. Sills, 156 F.3d 416, 423-425 (2d Cir.

1998); Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d

344, 356 (6th Cir. 1998); Pneumo Abex Corp. v. High Point, Thomasville &

Denton R.R., 142 F.3d 769, 776 (4th Cir.), cert. denied, 525 U.S. 963 (1998);-

Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1301 (9th

Cir. 1997), cert. denied, 524 U.S. 937 (1998); New Castle County v.

Halliburton NUS Corp., 111 F.3d 1116, 1121-1123 (3d Cir. 1997); Redwing

Carriers, Inc., 94 F.3d at 1496; Control Data Corp. v. S.C.S.C. Corp., 53

F.3d 930, 935 (8th Cir. 1995); United States v. Colorado & E. R.R., 50 F.3d

1530, 1534-1536 (10th Cir. 1995); United Techs. Corp., 33 F.3d at 103; Akzo

Coatings, Inc., 30 F.3d at 764.

ters addressed in the settlement.” 42 U.S.C. 9613(f)(2). Sec-

tion 113(f)(3)(B) further provides:

A person who has resolved its liability to the United

States or a State for some or all of a response action or

for some or all of the costs of such action in an adminis-

trative or judicially approved settlement may seek con-

tribution from any person who is not party to a settle-

ment referred to in paragraph (2).

42 U.S.C. 9613(f)(3)(B). See CERCLA § 122, 42 U.S.C. 9622

(governing CERCLA settlements).”

The central issue in this case is whether Section 113(f)

authorizes a party that is potentially subject to CERCLA

liability, but has not been sued under Section 106 or 107(a) of

CERCLA and has not resolved its CERCLA liability

through an administrative or judicially approved settlement,

to seek contribution under CERCLA from another jointly

liable party.

B. The Facts And Proceedings Below

Aviall provides aircraft maintenance services. In 1981, it

purchased Cooper’s aircraft engine maintenance business

through an asset purchase agreement. Aviall later discov-

ered hazardous substance contamination, allegedly arising

from the activities of both Aviall and Cooper, at Texas facili-

ties acquired from Cooper. Aviall notified Texas environ-

3 Section 122(a) authorizes the President (or his delegate) to enter into

an agreement with persons (including responsible parties) to perform

response actions if the President determines such action will be done

properly by such person. 42 U.S.C. 9622(a). Section 122(d) provides that

such agreements, other than “de minimis settlements” under Section

122(g), shall generally be entered in the appropriate United States district

court as a consent decree. 42 U.S.C. 9622(d); see 42 U.S.C. 9622(g). Sec-

tion 122(g) “de minimis settlements,” 42 U.S.C. 9622(g), and Section 122(h)

settlements, reached by the head of any department or agency with

authority to undertake response action, 42 U.S.C. 9622(h), may be em-

bodied in an administrative order. See CERCLA § 122(i), 42 U.S.C.

9622(i).

mental authorities of the contamination. Those authorities

confirmed that Aviall was in violation of state environmental

laws and directed the company to take corrective actions. In

1984, Aviall commenced cleanup activities, and, in 1995, it

contacted Cooper seeking reimbursement for the response

costs. Aviall later sold the facilities, but remained contrac-

tually responsible for the cleanup. Pet. App. 10a, 48a, 91a.

Aviall commenced this action against Cooper in federal

district court to obtain recovery of its cleanup expenditures.

Aviall’s complaint alleged that Cooper had breached its con-

tractual and warranty obligations under the asset purchase

agreement. Pet. App. 9la-92a. In addition, although neither

the United States nor Texas had sued Aviall to compel

cleanup or to recover response costs, Aviall asserted that

Cooper was liable to Aviall for contribution under Section

113(f) of CERCLA and Texas law. [bid. The CERCLA con-

tribution claim provided the sole basis for federal jurisdic-

tion. Jd. at 98a-99a.

The district court rejected Aviall’s CERCLA contribution

claim. The court concluded that “[t]he plain language of

§ 113(f)(1) provides that contribution claims may only be

brought ‘during or following any civil action under [§ 106] or

under [§ 107(a)].’ (emphasis added).” Pet. App. 94a. The

court additionally concluded that the last sentence of Section

113(f)(1) is merely a savings clause that preserves independ-

ent contribution remedies so that “parties who cannot fulfill

the prerequisites of § 113(f)(1) are not precluded from

bringing contribution claims that are otherwise available,

such as under state law.” Ibid. The district court accord-

ingly dismissed Aviall’s CERCLA contribution claim, but

without prejudice in the event that a Section 106 or 107 ac-

tion were brought against Aviall in the future. Jd. at 97a-98a

& n.4. The-court declined to retain federal jurisdiction over

the remaining state law claims. /d. at 99a-100a.

A divided panel of the court of appeals affirmed. Pet.

App. 47a-89a. The majority concluded that, “as a matter of

statutory text and structure, CERCLA requires a party

seeking contribution to be, or have been, a defendant in a

§ 106 or § 107(a) action.” Jd. at 57a; see id. at 52a-56a. The

majority, like the district court, construed the final sentence

of Section 113(f)(1) as merely a “savings clause” that pre-

served independent bases for contribution, such as Aviall’s

contribution claims against Cooper under Texas law. Id. at

56a. The majority also stated that the legislative history of

CERCLA, prior CERCLA decisions, and the policy goals of

CERCLA all supported its construction of the statutory

text. Id. at 57a-66a. Judge Wiener dissented, reasoning that

the first sentence of Section 113(f)(1) does not categorically

require that a party seek contribution in response to a Sec-

tion 106 or 107(a) action and that the final sentence of Sec-

tion 113(f) explicitly authorizes a party to seek contribution

in the absence of such suits. Jd. at 66a-78a. Judge Wiener

also stated that the legislative history, case law, and policy

arguments supported his construction. Jd. at 78a-89a.

The court of appeals granted Aviall’s petition for rehear-

ing en banc “[bJecause of the importance of this question to

the allocation of financial responsibility for CERCLA clean-

ups.” Pet. App. 12a, 46a. The en banc court, by a divided

vote, reversed the judgment of the district court. Jd. at 9a-

45a. The majority adopted the reasoning of Judge Weiner

and concluded:

[SJection 113(f)(1) does not constrain a PRP for covered

pollutant discharges from suing other PRPs for contribu-

tion only “during or following” litigation commenced un-

der sections 106 or 107(a) of CERCLA. Instead, a PRP

may sue at any time for contribution under federal law to

recover costs it has incurred in remediating a CERCLA

site. Section 113(f)(1) authorizes suits against PRPs in

both its first and last sentence which states without

qualification that “nothing” in the section shall “dimin-

ish” any person’s right to bring a contribution action in

the absence of a section 106 or section 107(a) action.

Pet. App. 13a-14a. Judge Emilio Garza, joined by Judges

Smith and Barksdale, dissented, concluding that “the plain

language and statutory structure of CERCLA’s contribution

provisions demonstrate that the contribution remedy in

§ 113(f)(1) requires a prior or pending § 106 or § 107 action.”

Id. at 41a-42a.

DISCUSSION

The en banc court of appeals has misconstrued CER-

CLA’s contribution provisions. By its plain language, Sec-

tion 113(f)(1) provides a party that is jointly liable for re-

sponse costs under CERCLA with a right to contribution,

but only “during or following” a Section 106 or Section 107(a)

civil action that would quantify and resolve that liability.

Section 113(f)(1)’s savings clause does not negate that ex-

press limitation, but instead preserves any additional rights

to contribution that a party may have under other laws. The

en banc court’s erroneous decision conflicts with the plain

language of the statute and endorses an interpretation of

CERCLA that has broad repercussions on the allocation of

financial responsibility for CERCLA cleanups. Because the

issue is important and recurring, and the court of appeals’

decision endorses an unauthorized invocation of federal court

jurisdiction, this Court should grant the petition for a writ of

certiorari.

A. The Court Of Appeals Erred In Construing CERCLA’s

Contribution Provisions

CERCLA subjects parties that have contributed to the

release or threatened release of hazardous substances to li-

ability for the resulting response costs. CERCLA §§ 106,

107(a), 42 U.S.C. 9606, 9607(a). CERCLA, which operates

against a “venerable common law backdrop,” Bestfoods, 524

U.S. at 62, subjects a responsible party to joint and several

liability in accordance with common law principles if the

harm from the release of hazardous substances is not divisi-

ble, and it provides a corresponding statutory right of con-

tribution from other jointly liable parties. CERCLA

§ 113(f), 42 U.S.C. 9613(f). See Key Tronic Corp., 511 U.S.

at 816.’

Section 113(f)(1) of CERCLA explicitly identifies the cir-

cumstances in which a jointly liable party may seek contribu-

tion:

Any person may seek contribution from any other

person who is liable or potentially liable under [Section

107(a)], during or following any civil action under

[Section 106] or under [Section 107(a)].

42 U.S.C. 9613(f)(1) (emphasis added). Consistent with the

traditional understanding of contribution principles, that

provision allows a jointly responsible party to seek contribu-

tion, but only “during or following” a Section 106 or Section

107(a) civil action that would quantify and resolve the joint

liability it seeks to apportion among other responsible par-

ties. See Northwest Airlines, Inc. v. Transport Workers Un-

ion, 451 U.S. 77, 87-88 (1981) (“Typically, a right to contribu-

tion is recognized when two or more persons are liable to the

same plaintiff for the same injury and one of the joint tort-

feasors has paid more than his fair share of the common li-

ability.” (emphasis added)).”

4 See, e.g., Centerior Serv. Co., 153 F.3d at 348; United States v. Alcan

Aluminum Corp., 990 F.2d 711, 721-722 (2d Cir. 1993); United States v.

Alcan Aluminum Corp., 964 F.2d 252, 268-269 (3d Cir. 1993); United

States v. Kayser-Roth Corp., 910 F.2d 24, 26-27 (1st Cir. 1990), cert.

denied, 498 U.S. 1084 (1991); United States v. R.W. Meyer, Inc., 889 F 2d

1497, 1507 (6th Cir. 1989), cert. denied, 494 U.S. 1057 (1990); United States

v. Aceto Agric. Chems. Corp., 872 F.2d 1373, 1377 (8th Cir. 1989); United

States v. Monsanto Co., 858 F.2d 160, 167, 172 (4th Cir. 1988), cert. denied,

490 U.S. 1106 (1989).

5 See also, e.g., United Techs. Corp., 33 F.3d at 99 (“Contribution is a

standard legal term that enjoys a stable, well-known denotation. It refers

The court of appeals concluded (Pet. App. 24a-25a) that

the first sentence of Section 113(f)(1) allows contribution ac-

tions in the absence of an ongoing or completed Section 106

or 107(a) action on the mistaken ground that if Congress had

not intended to authorize such actions it would have pro-

vided that contribution actions shall “only” be brought dur-

ing or following a Section 106 or Section 107(a) action. Pet.

App. 24a-25a. Congress’s intentions, however, are clear

from the plain language of the statutory text. Section

113(f)(1)’s permissive phrasing—a “person may seek contri-

bution”—indicates that Congress intended to permit

contribution claims to be brought when the stated prerequi-

sites—namely, that contribution be sought “during or fol-

lowing” a Section 106 or Section 107(a) action—are satisfied.

It does not provide authorization for contribution claims

where those prerequisites are not satisfied. The court of ap-

peals’ contrary interpretation renders the “during or fol-

lowing” requirement entirely superfluous, in violation of ba-

sic canons of statutory construction. See, e.g., Dole Food Co.

v. Patrickson, 123 S. Ct. 1655 (2003); Connecticut Nat’l Bank

v. Germain, 503 U.S. 249, 253 (1992).°

to a claim ‘by and between jointly and severally liable parties for an

appropriate division of the payment one of them has been compelled to

make.’”) (emphasis added) (quoting Akzo Coatings, Inc., 30 F.3d at 764);

Restatement (Third) of Torts § 23 comment b (1999) (“A person seeking

co.. ribution must extinguish the liability of the person against whom

contribution is sought for that portion of liability, either by settlement

with the plaintiff or by satisfaction of judgment.”) (emphasis added);

Uniform Contribution Among Tortfeasors Act § 1(d), 12 U.L.A. 123 (1955)

(accord); Black’s Law Dictionary 328 (6th ed. 1990) (defining contribution

as a right “of one who has discharged a common liability to recover of

ancther, also liable, the aliquot portion which he ought to pay or bear”)

(emphasis added).

® Contrary to the court of appeals’ suggestions, Section 113(f)(1)’s

syntax is not “confused” and its grammar is not “inexact.” Pet. App. 13a.

Rather, Section 113(f(1) speaks unambiguously through the familiar

syntax and grammar that is routinely employed in granting a permissive,

but limited, license. For example, a sign stating that “Visitors May Enter

The court of appeals also mistakenly relied (Pet. App. 25a-

27a) on the last sentence of Section 113(f)(1), which provides

that “({njothing in this subsection shall diminish the right of

any person to bring an action for contribution in the absence

of civil action under [Section 106] or [Section 107].” 42

U.S.C. 9613(f)(1) (emphasis sdded). The court erroneously

construed that sentence, whic 1 is clearly written in the form

of a “savings” clause, as affirmatively creating a right to con-

tribution. The specific terms of the savings provision, how-

ever, merely preserve any independent right to contribution

that exists apart from Section 113(f)(1), such as the state law

right to contribution that Aviall invoked in this very case

(Pet. App. 91a). See United States v. Locke, 529 U.S. 89, 105

(2000)."

Through The Front Door During Normal Business Hours” informs the

visitor that, if he wants to enter through the front door, he must do so

during the prescribed period. It does not grant the visitor the right to use

the front door at any time he wishes. See Pet. App. 34a-35a (Garza, J.,

dissenting).

7 The court of appeals suggested that Congress added the last

sentence of Section 113(f)(1) to indicate that the federal courts “had been

right,” in CERCLA cases decided before Congress added Section 113(f)(1)

through the 1986 SARA amendments, in engrafting an implied federal

common law right of contribution onto CERCLA. Pet. App. 26a. The

court’s reasoning, however, rests on a mistaken understanding of the pre-

SARA caselaw and, in any event, is unpersuasive. As the First Circuit

explained in United Technologies, the pre-SARA courts were divided on

the question whether there was an implied right to contribution under

CERCLA. 33 F.3d at 100. Those lower courts that did recognize such a

right employed the term “contribution” in its “traditional legal sense.” /d.

at 100-101. As the First Circuit also explained, the term contribution is

traditionally understood to denote “a claim ‘by and between jointly and

severally liable parties for an appropriate division of the payment one of

them has been compelled to make.’” Id. at 99. See note 5 , supra. Con-

gress expressly provided for contribution under those circumstances

through the first sentence of Section 113(f)(1) by allowing contribution

“during or following” a Section 106 or 107(a) action. If Congress had

intended to create an even broader form of contribution, it would have

written the first sentence of Section 113(f)(1) to accompiish that result. It

In addition to misconstruing Section 113(f)(1), the court of

appeals overlooked the significance of Section 113(g)(3),

which addresses the limitations periods for contribution ac-

tions. See 42 U.S.C. 9613(g)(3). As previously explained (pp.

5-6, supra), Section 113(f(1) expressly allows contribution

“during or following” a Section 106 or 107(a) civil action,

while Section 113(f(3)(B) expressly allows contribution after ~

an administrative or judicially approved settlement. See 42

U.S.C. 9613(f)(1) and (3)(B). Section 113(g)(3) provides two

No action for contribution for any response costs or

damages may be commenced more than 3 years after—

(A) the date of judgment in any action under

[CERCLA] for recovery of such costs or damages, or

(B) the date of an administrative order under

(Section 122(g)] (relating to de minimis settlements) or

[Section 122(h)] (relating to cost recovery settlements) or

entry of a judicially approved settlement with respect to

such costs or damages.

42 U.S.C. 9613(gX3). Section 113(g)(3)(A) thus establishes a

three-year limitations period for contribution actions

brought “during or following” a Section 106 or 107(a) action,

while Section 113(g)(3)(B) designates a three-year limita-

tions period for contribution actions brought after the party

has resolved its liability through an administrative or judi-

cially approved settlement. But Section 113(g)(3) does not

provide a limitations period for contribution actions in the

absence of a Section 106 or 107(a) action or a settlement,

would not have perpetuated the pre-SARA uncertainty by depending on

courts to fashion a novel form of contribution, foreign to traditional legal

understanding, through Section 113(f)(1)’s savings clause. See, ¢g.,

Morissette v. United States, 342 U.S. 246, 263 (1952) (“absence of contrary

direction may be taken as satisfaction with widely accepted definitions,

not as a departure from them”).

which indicates that Congress did not intend to create a fed-

eral right to contribution in that situation.

The plain language of Section 113(f)(1), particularly when

read in light of Section 113(g)(3), conclusively establishes

that a party may not seek contribution under CERCLA in

the absence of a Section 106 or 107(a) action. There accord-

ingly is no need to resort to legislative history to answer that

question. But in any event, the legislative history includes

committee reports and statements in the floor debates indi-

cating that contribution is not available in the circumstances

presented here. The pertinent Senate and House bills that

ultimately became SARA contained differently worded con-

tribution provisions. But each chamber indicated that the

object was to provide for contribution during or following a

Section 106 or 107(a) action or after a CERCLA-based set-

tlement.°

8 The Senate bill initially provided that a contribution action may be

brought “(after judgment in any civil action under section 106 or under

[Section 107(a)].” See S. Rep. No. 11, 99th Cong., Ist Sess. 103 (1985)

(proposed Section 107(()(2)). The Senate report stated that “[t}his amend-

ment clarifies and confirms the right of a person held jointly and severally

liable under CERCLA to seek contribution from other potentially liable

parties.” Jd. at 44 (emphasis added). The Senate later revised its

proposed language through a floor amendment to allow contribution

“during or following” a Section 106 or 107(a) action so that contribution

claims could be resolved in one suit. See 131 Cong. Rec. 24,449 (1985).

The sponsors explained that the floor amendment would allow “any

defendant in a Government enforcement action under CERCLA * * * to

file a claim for contribution against others * * * as soon as the

enforcement action has been brought.” Id. at 24,450 (Sen. Stafford)

(emphasis added); see also id. at 24,452 (Sen. Thurmond); id. at 24,453

(Sen. DeConcini). The House bill initially provided that “any defendant

alleged or held to be liable in an action under section 106 or section 107”

may bring a contribution action. See H.R. Rep. No. 253, 99th Cong., Ist

Sess. Pt. 1, at 13 (1985) (proposed Section 113(g)(1)). Like the Senate

report, the House report stated that the proposed language “clarifies and

confirms the right of a person held jointly and severally liable under

CERCLA to seek contribution from other potentially liable parties.” Jd.

at 79 (emphasis added). The House Judiciary Committee later made

Similarly, the court of appeals’ reliance on “policy consid-

erations” (Pet. App. 3la) is misplaced. Congress expressed

the controlling policy through Section 113(f)(1)’s text, which

adopts the traditional practice of allowing a party to seek

contribution only if that party is itself subject to suit. The

judiciary’s task is “to apply the text, not to improve upon it.”

Pavelic & LeFlore v. Marvel Entm't Group, 493 U.S. 120,

126 (1989). The congressional judgment set forth in the

statutory text accordingly should control. See, e.g., Rodri-

guez v. United States, 480 U.S. 522, 525-526 (1987) (per cu-

riam). See also Pet. App. 44a-45a (Garza, J., dissenting).’

minor “technical” changes to the House bill that “simply clarif[y) and

emphasize(} that persons who settle with EPA (and who are therefore not

sued), as well as defendants in CERCLA actions, have a right to seek

contribution from other potentially responsible parties.” H.R. Rep. 253,

supra, Pt. 3, at 18. The House-Senate conference, which produced the

final language, adopted without further pertinent elaboration the Senate’s

“during or following” formulation and the House provisions allowing

contribution following settlement. See H.R. Rep. No. 962, 99th Cong., 2d

Sess. 37, 222 (1986).

® CERCLA seeks to encourage voluntary private party cleanups, but

there is no evidence in the record of this case to support the court of

appeals’ assumption (Pet. App. 31a) that the availability of a contribution

action in the absence of a Section 106 or 107(a) suit is critical in

encouraging such cleanups. Even if the court’s assumption were correct,

contribution under those circumstances poses a heightened risk that the

contributing party may be subject to double liability. Under CERCLA, a

responsible party’s voluntary cleanup does not discharge the underlying

liability to the government except as provided in a settlemént or federal

court judgment to which the government is a party. 42 U.S.C. 9613(f)(2).

Hence, a party that is ordered to pay “contribution” in the absence of such

a resolution has no guarantee that its payment will discharge its liability

and remains potentially subject to a future government cost recovery

action if any relevant government agency later investigates and deter-

mines that the voluntary conduct is inadequate or improper. See

Restatement (Third) of Torts § 23 (1999), Reporter’s Note, cmt. b (“A

person seeking contribution must extinguish the liability of the person

against whom contribution is sought. See Uniform Contribution Among

Tortfeasors Act § 1(d). Otherwise, the person against whom contribution

is sought would be subject to double liability.”).

B. This Court Should Grant The Petition For A Writ Of

Certiorari

The court of appeals granted en banc review on the issue

in this case “[bJecause of the importance of this question to

allocation of financial responsibility for CERCLA cleanups.”

Pet. App. 12a. The issue here is indeed important, and the

en banc court’s erroneous resolution augments its signifi-

cance. The court of appeals’ decision allows the unauthorized

invocation of federal court jurisdiction, endorses a mistaken

view of the CERCLA liability scheme, and condones the un-

authorized imposition of financial liability under federal law.

The en banc Fifth Circuit is the first court to address the

issue squarely in a concrete context, but its decision is in-

consistent with the statutory restrictions respecting contri-

bution under the CERCLA liability scheme. There is little

to be gained in allowing a new federal cause of action to con-

tinue in existence before correcting the court’s erroneous

interpretation.

As explained above, ten courts of appeals have uniformly

ruled that Section 107(a)(1)-(4)(B) of CERCLA allows a

“person” that falls within one of CERCLA’s four categories

of liable parties to obtain a recovery from another jointly

liable party only through a contribution action under Section

113(f). See 42 U.S.C. 9607(a)(1)-(4)(B); pp. 4-5 & note 2,

supra. That result avoids the anomaly of a jointly liable

party suing another jointly liable party for the full costs of a

CERCLA cleanup. It also ensures that parties that have

settled with the government and received protection from

“claims for contribution regarding matters addressed in the

settlement,” CERCLA § 113(f)(2), 42 U.S.C. 9613(f)(2), are

not subject to double liability through a Section 107(a) suit

on the theory that such a suit imposes direct liability rather

than contribution.”

10 The United States endorsed the uniform conclusion of the courts of

appeals on this issue in its response to an order of this Court inviting the

‘As a practical matter, the uniform view of the courts of

appeals that a responsible party can seek reimbursement for

response costs under CERCLA only through a contribution

action, when coupled with the understanding that a respon-

sible party may seek contribution under CERCLA only

“during or following” a Section 106 or 107(a) action or after

settlement, imposes a coherent structure on the allocation of

CERCLA response costs and a sensible limitation on CER-

CLA contribution suits. That construction ensures that

CERCLA does not create a free-ranging federal cause of

action under which responsible parties may sue each other at

United States’ views on a petition for writ of certiorari filed in Pinal

Creek Group v. Newmont Mining Corp., 118 F.3d 1298 (9th Cir. 1997),

cert. denied, 524 U.S. 937 (1998) (No. 97-795). In that case, the court of

appeals ruled that a private party that was concededly liable for the costs

of responding to hazards at a mine site under CERCLA could not recover

its cleanup costs by bringing an action against other responsible parties

seeking to hold them jointly and severally liable for those expenses. The

United States urged the Court to deny certiorari on the ground that the

courts of appeals were in agreement that a potentially responsible party

must sue for contribution under Section 113(f), stating:

Section 107(a)(4)(B) of CERCLA provides that a responsible

private party shall be liable for “necessary costs of response incurred

by any other person consistent with the national contingency plan.”

42 U.S.C. 9607(a)(4)(B). Section 107(a)(4)(B)’s reference to “any

other person” is broad enough to allow one jointly responsible party

to sue another for the former’s response costs. See Key Tronic Corp.

v. United States, 511 U.S. 809, 818 (1994) (Section 107 “impliedly

authorizes private parties to recover cleanup costs from other

PRPs.”). Section 107(a)(4)(B) does not describe, however, what form

that liability should take. Key Tronic, 511 U.S. at 818 & n.11. Section

113 fills that void. When read in combination, the clear implication of

Sections 107(a)(4)(B) and 113 is that the jointly responsible party is

limited to seeking contribution in accordance with Section 113(f).

Brief for the U.S. as Amicus Curiae at 10, Pinal Creek Group, supra (No.

97-795). Since the early stages of this litigation, Avial] has predicated its

contribution claim on that understanding of the relationship between

Section 107(a) and Section 113(f). See Pet. App. 94a (“Aviall has dropped

the independent § 107(a) claim and instead asserts a so-called ‘combined’

§ 107(a) and § 113(f)(1) claim.”).

any time for damages they jointly caused. Rather, a respon-

sible party that satisfies its CERCLA liability to the gov-

ernment, through settlement or judgment, may obtain con-

tribution from other responsible parties within a statutorily

prescribed limitation period. That construction also puts

CERCLA in alignment with the traditional legal rules gov-

erning joint liability and contribution.”

The en banc court’s contrary conclusion that CERCLA

authorizes responsible parties to bring federal suits for con-

tribution whenever they please endorses errant CERCLA-

based contribution suits, subject to no express limitation pe-

riod, arising out of the many contaminated sites throughout

the Nation. See General Accounting Office, Community De-

velopment: Local Growth Issues—Federal Opportunities

and Challenges (RCED-00-178) 118 (Sept. 2000). The fed-

eral courts face a substantial burden in resolving those com-

plex cases, in which they confront the conceptually awkward

task of ordering a responsible party to pay “contribution” to

another responsible party when the joint liability they po-

tentially owe to the federal or state government under

CERCLA has not been discharged. See note 9, supra.”

11 See Restatement (Third) of Torts § 23 cmt. b (1999) (“A person

seeking contribution must extinguish the liability of the person against

whom contribution is sought for that portion of liability, either by

settlement with the plaintiff or by satisfaction of judgment.”); see also p.

10 & note 5, supra. That construction also allows a responsible party to

clean up a CERCLA site voluntarily and apportion the costs among other

responsible parties by entering into a settlement with the federal or state

government to resolve its CERCLA liability, to the extent practicable

within government resources. If a party enters into such a settlement, it

would then be immune from contribution claims regarding matters

addressed in the settlement, and it would have the express right to seek

contribution from non-settling responsible parties, based on its discharge

of the joint liability through the settlement. See CERCLA

§ 113(f)(2) and (3), 42 U.S.C. 9613(f)(2) and (3).

12 Upon examination of the issue, Congress might wish to create an

appropriate remedy, apart from contribution under Section 113(f), for

responsible persons who engage in voluntary cleanups and seek to recover

Aviall’s suit illustrates some of the potential problems

posed by such CERCLA contribution claims. Aviall initially

characterized its suit as “primarily, but not exclusively, a

contract case,” Pet. App. 92a, and the district court properly

determined that the suit should be resolved in state court,

id. at 99a-100a. In reversing, the en banc court opened the

door for Aviall, or any other owner of a contaminated site, to

bypass the state courts and initiate a federal suit, ostensibly

for CERCLA “contribution,” to recover expenditures for

cleanup activities as CERCLA response costs. The federal

courts will be responsible for applying CERCLA’s complex

provisions to what even Aviall characterized as “primarily”

state law contract claims. It appears highly improbable that

Congress intended for CERCLA to expand so dramatically

the jurisdiction of the federal courts, when CERCLA’s text

gives the federal courts a far more structured and limited

role. See Rumpke of Ind., Inc. v. Cummins Engine Co., 107

F.3d 1235, 1241 (7th Cir. 1997) (“a § 106 or § 107(a) action ap-

parently must either be ongoing or already completed before

§ 113(f)(1) is available”).

This Court may, of course, allow the issue in this case to

“percolate” in the lower courts until a conflict among the

courts of appeals develops. But as Rumpke forebodes, and

in view of the inevitably recurring nature of the issue, the

prospects are high that a circuit split will emerge. The en-

suing percolation is likely to impose a substantial cost on an

their costs from other responsible persons. A properly fashioned remedy

could further Congress’s objective of facilitating cleanup of “brownfields”

sites, without requiring government enforcement actions or settlements

and the resulting expenditures of limited government resources. See

Small Business Liability Relief and Brownfields Revitalization Act, Pub.

L. No. 107-118, 115 Stat. 2356. But as this Court noted in the context of

CERCLA’s provisions respecting recovery of attorney’s fees, the matter

“is a policy decision that must be made by Congress, not by the courts.”

See Key Tronic Corp., 511 U.S. at 819, n.13 (quoting FMC Corp. v. Aero

Indus., Inc., 998 F.2d 842, 847 (10th Cir. 1993)).

-already overtaxed federal judiciary. Not only are there a

substantial number of potential plaintiffs who may have an

incentive to bring such suits, but those suits, which typically

involve multiple parties, are inherently complex. They usu-

ally involve difficult questions of allocating necessary re-

sponse costs based on expert testimony, including scientific

inquiry about conditions at the site. And, as this case illus-

trates, they may import, through the federal court’s supple-

mental jurisdiction, state law issues that would normally be

resolved in state court.

In short, if the United States is correct that CERCLA

does not authorize contribution claims in these circum-

stances, then allowing such litigation to go forward will re-

sult in a wasteful expenditure of time and resources for all

concerned. This question is best resolved sooner rather than

later, and it is sufficiently important to warrant resolution

now.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.