Respondents Brief — Cooper Industries, Inc. v. Aviall Services, Inc.

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a. US.

be [Supreme ct ;

| | APR g° 2004

No athe pues yHe CLERK '

IN THE

Supreme Court of the Gnited States

COOPER INDUSTRIES, INC.,

Petitioner,

AVIALL SERVICES, INC..,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF RESPONDENT

RICHARD O. FAULK WALTER DELLINGER

(Counsel of Record) PAMELA HARRIS

CYNTHIA J. BISHOP O’MELVENY & MYERS LLP

JEFFREY M. GABA 1625 Eye Street, N.W.

GARDERE WYNNE SEWELL LLP Washington, DC 20006

3000 Thanksgiving Tower (202) 383-5300

1601 Elm Street

Dallas, TX 75201-4761

(214) 999-3000

Counsel for Respondent

QUESTION PRESENTED

Whether a responsible party may bring an action for con-

tribution under section 113(f) of the Comprehensive Envi-

ronmental Response, Compensation and Liability Act

(“CERCLA”), 42 U.S.C. § 9613(f), in the absence of a prior

or pending federal civil action brought under sections 106 or

107 of CERCLA.

TABLE OF CONTENTS

CUES TRIN PRRIEIIN BED cececcersecesssesrevnensienemeseennnnenneieniia

STATEMENT OF THE CAGE .ccccccecesssessessssessstansnnsenenienon

SUMMARY OF ARGIUREENT ..cccccvscssssscssesesutsvesessnennnenecin

8), | ee

I = CERCLA § 113 AUTHORIZES

RESPONDENT TO SEEK CONTRIBUTION. .....

A. Respondent’s Claim Is A Quintessential

Chadee Per Camtrtigi, ...cccccssssnsseessssetnsnsnuane

B. The Text of Section 113 Permits An Action

For Contribution By PRPs Like Aviall.................

C. Nothing In The Legislative History Or

Statutory Structure Compels A Different

DRG IIER. .ccccccvssersesesseeseenenenessssienninnnnsiininnniinnnnnnnnnnnnnnE

Il. PETITIONER’S POSITION IS

INCONSISTENT WITH BOTH THE

LEGISLATIVE PURPOSE BEHIND CERCLA

AND DECADES OF SETTLED CASE LAW.......

A. Petitioner’s Position Would Lead To

Results That Are Directly Contrary To The

Congressional Intent Behind CERCLA. ...............

B. Petitioner’s Position Is Contrary To

Decades Of Well-Established Federal Law

And Would Undermine The Expectations

Of Businesses Across The Country...................06

Ill. © IF THIS COURT ADOPTS PETITIONER’S

INTERPRETATION OF § 113, IT MUST

REMAND FOR CONSIDERATION OF

AVIALL’S CLAIM UNDER § 107..............:ceseeee

CONCLUSION

TABLE OF AUTHORITIES

Page(s)

CASES

1325 "G" Street Associates, LP v. Rockwood Pigments NA,

Inc., 235 F. Supp. 2d 458 (D. Md. 2002) .........eececeeeeeeeee 32

Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761 (7th Cir.

Ia) cxcmscseenntninéenstcinneteninniansamapasincansinigaiiniadiianiiibinaniiieaniisinaia 5,14

Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 (Sth

ele BEI concrnennnmruneeminmnnemnn 14, 31

Artesian Water Co. v. New Castle County, 605 F.

a, Te Be i cnrrnnnnintcnnncsvencencinniniiimmann 2

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

TDUE) ecessensccecnesesssnssnsnsnsesnnanensteunanmnsmmauseannninsmenpenanenesnantn passim

Bethlehem Steel Corp. v. Bush, 918 F.2d 1323 (7th

Ee GPT cceeancencensannsenieninubinnasiiaiestiveinansibaiaiiissinitietiitieiaseil 26

Centerior Service Co. v. Acme Scrap Iron & Metal

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

Chrysler Realty Corp. v. Thomas Industries, Inc., 97

A FF igs 2? f & non 29

City of Merced v. R.A. Fields, 997 F. Supp. 1326

SERA TEED CITE esccsnccetsnssianctniesseennieminiinigeialaginiaiaiiiasiemmtalassa 25

City of Philadelphia v. Stepan Chem. Co., 544 F.

as Feat Gs Cree ccnciniicihisesiniicitnaninnimanetitinideiiaiaiias 2

City of Waukesha v. Viacom, Inc., 221 F. Supp. 2d

Pa Cs Bee ccrnccccnnssticssenaiiietennedniitiomntiiniintianaseds 32

Coastline Terminals of Conn., Inc. v. USX Corp., 156

A F ) fF fe ee 32

TABLE OF AUTHORITIES - continued

Page(s)

CASES

Colorado v. Asarco, Inc., 608 F. Supp. 1484 (D.

SR: Cort iceitennensninittiasiciiehaeciceienaininta dean ditacaii 2

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

SESEE EEE, SEI ea i ivuisiacsihasseeeieinsicariaeitatcniniiantenidineeabdddenindaiansaiiiidinands 14

Crofton Ventures LP v. G&H Partnership, 258 F.3d

Et Sei ccshicenerieensiteceeecieceideitntridarieatinataibiaiiiitaans 33

Cytec Industries, Inc. v. B.F. Goodrich Co., 232 F.

, Te Cs Ge i ccrcitenionnrinnnneninennencmnenssninnn 25

E. I. Du Pont de Nemours & Co. v. United States,

Pe is I, Ge Pils GI crcrtnentionientnttienccsneientes 33

Geraghty & Miller, Inc. v. Conoco, Inc., 234 F.3d

917 (Sth Cir. 2000), cert. denied, 533 U.S. 950

IT accevinesicintasennenteeesimenenncipninnsciiieninadiinbeigtliiainiaitaiaabutidibianiaiisiati 7,24

Jones v. Inmont Corp., 584 F. Supp. 1425 (S.D. Ohio

TaD ncccnssisienesnpuitatsseneasntaiinipelaiiaiiinteiniiuaiaaiadinalidadiataitdtdibiastiiaiins 2

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

EI Tai ersccenevsrceenittaonasiasidiaenitaitaisidabitibabaicaniuatintamneanintabiiiiatiibiie 3, 4, 34

Maine v. Department of Navy, 973 F.2d 1007 (lst

uaih Demat crensecssicisssheectnciasisnainigiinsthcinitaetnnentuaineeababianmsiaibidinssiiiiiign 30

Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454

SERGI ee herenncecteensnnninnisiecesnienipiinentiibintiiiinnasitaininiiiaiimmapainisl 27

NBD Bank v. Krueger Ringier Inc, 686 N.E.2d 704

> Ss GE Ba ee ccrtrteciitniecinnsttitisineianidlisiaitelistitalaainiitaiaieainiis 29

TABLE OF AUTHORITIES - continued

Page(s)

CASES

New Castle Co. v. Halliburton NUS Corp., 111 F.3d

Rs Ui iniuieniibaicectinsnpssctidainiecaipeaeinaniiiibiiiinimiaaigin 5, 21, 38

Niagara Mohawk Power Corp. v. Consolidated Rail

Corp., 291 F. Supp. 2d 105 (N.D.N.Y. 2003).............0000. 32

Northwest Airlines v. Transport Workers Union of

I Ge Gi FO EE siccernenienentsnctienntintnceinniensiass 3,12

O'Neal v. Department of the Army, 742 A.2d 1095

ST, TIE ciectnsnnianieiceiseeadaeiedi deat deaieabihianeaeeetnndipiammdananiseadidainiiesiinad 30

PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610

I I ieee haat hdneieaddeatne iain 33

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) ............... 27

Pfohl Brothers Landfill Steering Committee v. Allied

Waste Systems Inc., 255 F. Supp. 2d 134

Gao GUNN csiccinscenenennnsnnionicitinisianimninetgenigieinentonmenin 23

Pinal Creek Group v. Newmont Mining Corp., 118

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

Se a icnscsrsniercccreeetenmaceeeiiaiainatiindaaianeapaiuniniimemmaenenianen passim

Pinole Point Properties., Inc. v. Bethlehem Steel

Corp., 596 F. Supp. 283 (N.D. Cal. 1985)... cece 2

Pneumo Abex Corp. v. High Point, Thomasville &

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

I ceieitienitciasaiithinaiaiaiiaaciaiiaaaiiaias 5

In re Reading Co., 115 F.3d 1111 (3d Cir. 1997) 0000. 14, 20

Redwing Carriers, Inc. v. Saraland Apartments, 94

ee RED CI icicsrdisnescntininenninniainiennsiinuienes 5,14

vii

TABLE OF AUTHORITIES - continued

Page(s)

CASES

Rumpke of Ind. v. Cummins Engine Co., 107 F.3d

a E> MUU Dhicvistcnsiesisoritsienintaniineipitnisnmnienttheetetaiiiiapbamanneiiies 33

Sand Springs Home v. Interplastic Corp., 670 F.

Sk Se reneEL WI: SIUIEN TE tcisrersinicenniionesenndecitindnevmnianasentein 2

Seminole Tribe of Florida v. Florida, 517 U.S. 44

SITET cinicesiceninesindcetncndiandenndaienittapigadinanatnanibilentalieieiiiibaeiieslinatn 27

Sun Co. v. Browning-Ferris, Inc., 124 F.3d 1187

GEIL, SHUI kcestccicsencnesenmeninmniemnentianmincteninmenmmegieapiie .24

Tanglewood E. Homeowners v. Charles-Thomas, -

Bal., BED F 2B USGS CSRs Cat. 1GGG)...ccecccscocescocscscccessseseses 2

Texas Industries, Inc. v. Radcliff Materials, Inc., 451

ee a ccccesicienicinniiniiciaiiiniaiiansisiasieiiaiaipiattaiialnnsianbibaieaiias, 3

United States v. A&F Materials Co., Inc., 578 F.

ee a 28

United States v. ASARCO, Inc., 814 F. Supp. 951 (D.

SI iia aediiaataitcniinneiientniaaaiataeniainitlaialidii delete 21

United States v. Chem-Dyne Corp., 572 F. Supp. 802

SEGA, ITED StU rhitechiaciilatinstenriniaileaitsiibnaiaesianinaineasnitaninacaiutiniads 2, 28

United States v. Colorado & Eastern Railroad, 50

ne SIE Gs Gt hcisneneresnceeninseccdususcneusiniedamienn 4,5

United States v. New Castle County, 642 F. Supp.

SEPA TU SHUI censsiecsiensteneccienidabicncshabinnicttilaidensantianiamantiniain 26

United States v. Wade, 577 F. Supp. 1326 (E.D. Pa.

Te 2, 28

Vill

TABLE OF AUTHORITIES - continued

Page(s)

CASES

United Technologies Corp. v. Browning-Ferris, 33

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

FE a cisidinsinininicnesicncsinscemnsiniuiisstenninstnidapiaianinaniguadinpubieeen 4, 14, 21

Wehner v. Syntex Agribusiness, Inc., 616 F. Supp. 27

eS PERE: CRIED seinentssiceduerssinenintcnsininieincsiasiiniiiaaiatapaeaiaahaibiiaiaaate 2, 28

Western Properties Services Corp. v. Shell Oil Co.,

ee 32, 33, 38

STATUTES

Ry ets 0 Eat ssiensnsnenencsierterientenseniniinsinnnniniepiantdedeiatisibdeaieniaiians passim

eee Or EIT vorcnsnemmscaneprnnniscerenesatnitemtesimnctatettingtepniinaiiaeieiiin passim

aba UI TIEEEcdnsresnssenetenseinceninteimbineiimpenisinteestiiiniienesibidiiiis passim

ares Gir II TITED ccissinsniipsivchecstanenianenaenieenensitanssnnentancininiinbatiil 20

ea STII itrenicnesiirtincneinmnaieneiiaisianiatdaiinssiiiiilecsiaiianiabiitss 31

Sy ae nanne SiN UU ccceiersieciiniceiesiiihaicephiaiali ate ieaiacediainaiaiasiae 20

1986 Superfund Amendment and Reauthorization

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

Ss Ce III iciniticnninnceshanctrnnienitetntmmentinesiaineainiaaas 29

ns I icinsnseniinitsiedncteeasteeiacainetndaiaaittetitieeniaiadees 29

Fe NG I ictinierccinrsiricinsintenintienincnntetiedetaiimemesinas 29

Cal. Health & Safety Code 25363(e€) ...........cccccccscessesseesseeeenees 29

Ne a SUITE cnseesieiteinhccicinitngntaniniiihliiih ican 29

TABLE OF AUTHORITIES - continued

Page(s)

STATUTES

a 29

Bieey. Thaw. Bah. © BAB DG .nccseesccccescccssccscsssnsssnsscssenssvsseveonesee 29

Bed, Cain 6 BD BB BBD cnccncccscncnsvesscescssceverscccvescsessenessvensensscees 29

Ky. Rev. Stat. Ann. § 224.01-400(25) ........ccccccccceeseeeeeeeseeeeees 29

TNS GY) 29

Dib, Bhaw. Baas. GR. FE, © DEB cccccccencccccssesccccvscscsvessssessovenssssses 29

DOS, Cain, Tiwi. © PROG crccceseccsesssvescossssssssessnnsessssssscnsnens 29

DGaas. Gam. LAWS GR. SEE B 4 .ncceeceeccesccesscsesscscvsessssnsessessevsesees 29

Mich. Comp. Laws § 324.20126a(7) ........ccccccccsseseeeeeereeenerees 29

ED: ee 29

DIE. BR. B FR Tae cccecensccvencencevesenssenersesssersuscnssstnetenemmnensees 29

N.H. Rev. Stat. § 147-B: 10 TII(b) ..........ccsscsesseseseeseeseeeseseesens 29

Se 29

N.Y. Envtl. Conserv. § 27-1421 ...........sccccssssscccessssssseeseseseseees 29

DE, Be, FOG cccresrscsccnscserentnpeemecenemeennnmnnninants 29

Gide Rope. Cada, & BABB .xcceccscesevsccssvesenvevecevssceveseseesecsseseess 29

Dra, Cam, Bae. BH BGA FO cccccsccccccsszsevesnsssescvesssecesossecnsvesesees 29

Teme, Can 6 GG ccccecscccesscscccsssecsccescsecsnsesesscessssesnsosees 29

Tex. Health & Safety Code § 361.344 ........cccccccsseseseeteeeeeeeees 29

Cars Bae, B BOG TIED ceccececcsccvccscesossesssvesezsssceyseczesnssssnesvsene 29

10 Vt. Stat. Amn. § 6615(i)....cccccsccccsssccsssssssssesssseessssseessveesessen 29

TABLE OF AUTHORITIES - continued

OTHER AUTHORITIES

Black’s Law Dictionary (7th ed. 1999)...

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Be CI TBD. FE FET CRB D cncccescsesccccosorcecscassccsiscnsee

eife Be

ee es Me I ririciicieciicsinniiiiaiininnsciitiisinniuniai

H.R. Rep. No. 96-1016, pt. I, (1980), reprinted in

Fe east ls GE CF eccidececnnitsentoninnninanntmninnias

H.R. Rep. No. 99-253 (1985), reprinted in 1986

een ue TENE? snsceencincniientoeetatesdbtidacnininpinictincanniiiiins

Restatement (Second) of Torts, § 886A (1979)..........

Restatement (Third) of Torts: Apportionment of Li-

es Se ee iictercstennetntatinnsonininmncsiapiieninaiiians

Ses ON GI neresicnspncniinnstnnsnstnonesnsinensiniiens

Uniform Contribution Among Tortfeasors Act,

§ 1(b), 12 U.L.A. 194 (1996) ...cccccccscccseecsseesensnecee

Webster’s Third New International Dictionary (3d

Ca enctictesecccntsnsiceninniismsasismmesnnnnnaeninaniinslinninesngi

Page(s)

STATEMENT OF THE CASE

A. Statutory Background.

The Comprehensive Environmental Response, Compen-

sation, and Liability Act, 42 U.S.C. § 9601-9675 (2000),

(“CERCLA” or “Act”), enacted in 1980, addresses the prob-

lem of real property contaminated by hazardous substances.

The Act provides the federal government with powerful

mechanisms to ensure the clean-up of such properties. First,

§ 104, 42 U.S.C. § 9604, authorizes the federal government

to undertake response actions itself. Those actions may be

financed by a federal fund, known originally as the Hazard-

ous Substances Superfund, 42 U.S.C. § 9611, and the federal

government may sue a broad class of “potentially responsi-

ble parties” to recoup its “response costs,” 42 U.S.C.

§ 9607(a)(4)(A). Second, Congress gave the federal gov-

ernment the authority to compel private parties to undertake

response actions themselves. Under § 106(a), 42 U.S.C.

§ 9606(a), the government may initiate a civil action in fed-

eral district court to compel a clean-up, or, alternatively, may

issue an administrative order compelling a clean-up.

Congress also authorized private parties to recover their

own response costs. Section 107(a)(4)(B), 42 U.S.C.

§ 9607(a)(4)(B), provides a federal cause of action that al-

lows “any other person” who undertakes a response action to

recover costs from any entity potentially responsible for the

contamination (often referred to as a “potentially responsible

party,” or “PRP”’).

1. In the years immediately following CERCLA’s adop-

tion, there was considerable litigation to define the contours

of the Act. By 1986, however, at least one principle was

well-established: § 107 provided PRPs who undertook vol-

untary clean-ups with a cause of action against other PRPs

who had contributed to the contamination. The fact that the

suing entity was itself a PRP did not take it outside the scope

of § 107. See, e.g., City of Philadelphia v. Stepan Chem.

Co., 544 F. Supp. 1135 (E.D. Pa. 1982); Jones v. Inmont

Corp., 584 F: Supp. 1425 (S.D. Ohio 1984); Pinole Point

Props., Inc. v. Bethlehem Steel Corp., 596 F. Supp. 283, 290

(N.D. Cal. 1985). Nor — most important here — did it matter

that a PRP acted voluntarily in cleaning up a site; govern-

ment involvement in private clean-ups was not required be-

fore a PRP could recover under § 107. See, e.g., Tangle-

wood E. Homeowners v. Charles-Thomas, Inc., 849 F.2d

1568 (Sth Cir. 1988) (allowing cost recovery by PRP in the

absence of any government order or lawsuit); Sand Springs

Home vy. Interplastic Corp., 670 F. Supp. 913, 916 (N.D.

Okla. 1987) (PRP who “voluntarily pays CERCLA response

costs” may bring action for cost recovery); Artesian Water

Co. v. New Castle County, 605 F. Supp. 1348 (D. Del. 1985).

A question remained regarding the mechanism for appor-

tioning costs among PRPs. Under § 107, each PRP was po-

tentially liable for the entire cost of a clean-up, under “joint

and several liability” principles. See, e.g., United States v.

Wade, 577 F. Supp. 1326 (E.D. Pa. 1983). To allow for a

more equitable apportionment of costs, a series of court

opinions held that CERCLA contained an implied nght to

contribution, to be developed pursuant to a uniform, federal

common law. See Wehner v. Syntex Agribusiness, Inc., 616

F. Supp. 27 (E.D. Mo. 1985); Colorado v. Asarco, Inc., 608

F. Supp. 1484 (D. Colo. 1985); United States v. Chem-Dyne

Corp., 572 F. Supp. 802 (S.D. Ohio 1983).' Reviewing this

history, the Court stated:

In its original form CERCLA contained no express

provision authorizing a private party that incurred

' Some courts found the right of contribution arose from federal com-

mon law. See, e.g., Artesian Water Co. v. New Castle County, 642 F.

Supp. 1258, 1265-68 (D. Del. 1986). Other courts found an implied right

of contribution in § 107 of CERCLA. Wehner, 616 F. Supp. at 31. This

latter view was apparently the position of the Department of Justice. /d.

cleanup costs to seek contribution from other poten-

tially responsible parties. In numerous cases, how-

ever, district courts interpreted the statute — particu-

larly the § 107 provisions outlining the liabilities and

defenses of persons against whom the government

may assert claims — to impliedly authorize such a

cause of action.

Key Tronic Corp. v. United States, 511 U.S. 809, 816

(1994) (footnote omitted).

2. Due in part to this Court’s decisions in Texas Jndus-

tries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630 (1981),

and Northwest Airlines v. 1ransport Workers Union of Amer-

ica, 451 U.S. 77 (1981), concerns arose about the authority

of federal courts to find an implied cause of action in a fed-

eral statute such as CERCLA. Congress responded by

amending CERCLA to provide for an express right of con-

tribution. In the 1986 Superfund Amendment and Reau-

thonization Act, Pub. L. No. 99-499, 100 Stat. 1613 (1986)

(“SARA”), Congress provided:

Any person may seek contribution from any other

person who is liable or potentially liable under

[§107(a)] of this title, during or following any civil

action under [§106] of this title or under [§107(a)] of

this title. Such claims shall be brought in accordance

with this section and the Federal Rules of Civil Pro-

cedure, and shall be governed by federal law. In re-

solving contribution claims, the court may allocate

response costs among liable parties using such equi-

table factors as the court determines are appropriate.

Nothing in this subsection shall diminish the right of

any person to bring an action for contribution in the

absence of a civil action under [§106] of this title or

[§107] of this title.

42 U.S.C. § 9613(f)(1) (2000). Congress also expressly au-

thorized a right of contribution following “an administrative

or judicially approved settlement” with the EPA. /d. at

§ 9613(f)(3)(B).

The legislative history on § 113(f) is limited. It ac-

knowledges both the growing body of case law finding an

implied right of contribution and the uncertainty regarding

federal courts’ authority to establish such implied nghts.

The legislative history also indicates that the purpose of sec-

tion 113(f) was to “clarify” and “confirm” the nght of con-

tribution that existed prior to the adoption of SARA. H.R.

Rep. No. 99-253, pt. I, at 79 (1985), reprinted in 1986

U.S.C.C.A.N. 2835, 2861.

3. As amended by SARA, CERCLA contained both the

original cause of action for contribution established by § 107

and the express right of contribution recognized by § 113(f).

See Key Tronic, 511 U.S. at 816 (describing “similar and

somewhat overlapping remedies”). Courts were thus re-

quired to “allocate” the cause of action available to PRPs

between the two sections: were PRPs seeking cost recovery

from other PRPs entitled to sue under § 107, under § 113, or

both?

The answer was important for two principal reasons.

First, allocation of the cause of action would have implica-

tions for PRPs who settle with the government. Under

§ 113(f)(2), a settling party receives protection from actions

for “contribution” by non-settling PRPs, intended to provide

an incentive to settle with the government. If PRPs could

bring an independent claim under § 107, then the contribu-

tion protection offered by § 113 would be rendered largely

meaningless. See United Techs. Corp. v. Browning-Ferris,

33 F.3d 96, 102 (1st Cir. 1994), cert. denied, 513 U.S. 1183

(1995); United States v. Colorado & E.R.R., 50 F.3d 1530,

1536 (10th Cir. 1995). Even more fundamentally, the degree

to which PRPs may recover could be different under the two

sections. Courts were concerned that a § 107 cause of action

would entitle PRPs to a full recovery of all of their response

costs, under joint and several liability rules, rather than to the

equitable share provided for by § 113. See, e.g., New Castle

Co. v. Halliburton NUS Corp., 111 F.3d 1116, 1121-22 (3d

Cir. 1997); Pinal Creek Group v. Newmont Mining Corp.,

118 F.3d 1298, 1303 (9th Cir. 1997), cert. denied, 524 U.S.

937 (1998).

Without exception, the federal courts of appeal resolved

the “allocation” issue in favor of § 113, holding that PRPs

may sue each other for apportionment of costs under § 113

and only under § 113.7 The reasoning of the courts was as

uniform as the result: PRPs must sue for “contribution” un-

der § 113 because the very nature of their claim, one for an

equitable allocation of costs among jointly liable parties, is

inherently or quintessentially a claim for contribution. The

end result was a uniform and clear structure for private cost-

recovery claims under CERCLA. Non-PRPs - “innocent”

landowners who did not contribute to contamination on their

property — could sue for full cost recovery under § 107. But

parties who were in part responsible for contamination —

PRPs — were limited to actions for contribution under § 113,

where they would benefit from “contribution protection” if

they settled with the government but recover only an equita-

ble portion of their response costs.

> See, e.g., Bedford Affiliates v. Sills, 156 F.3d 416, 423-25 (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, 118 F.3d at 1301; New Castle County, 111

F.3d at 1121-23; Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d

1489, 1496 (11th Cir. 1996); Colorado & E.R.R., 50 F.3d at 1534-36;

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

B. Factual Background and Proceedings Below.

This case is about the nght of a property owner, respon-

dent Aviall Services, Inc. (“Aviall”), to recover an equitable

share of its clean-up costs from the property’s prior owner,

petitioner Cooper Industries, Inc. (“Cooper”). As outlined

above, actions such as this one have been brought routinely

in the many years since CERCLA was adopted. And the set-

tled nght of a PRP to seek contribution from another PRP

was the background against which the transaction in this case

was undertaken.

1. Petitioner Cooper owned and operated several aircraft

engine maintenance facilities in Texas. During the time

Cooper operated the property, petroleum and other hazard-

ous substarices were released into the soil and groundwater.

In 1981 Cooper sold the facilities to Aviall, which operated

the facilities until it sold them in the mid-1990s. While Avi-

all owned the property, petroleum and hazardous substances

apparently continued to leak into the soil and groundwater

through underground storage tanks and spills.

Aviall discovered hazardous substances in the soil and

groundwater on several occasions during the early 1990s.

Each time, Aviall reported the discovery to the Texas envi-

ronmental regulatory agency as required by Texas law. The

State of Texas directed Aviall to clean up the properties, un-

der threat of issuing an administrative order, and Aviall did

so under the State’s supervision.’ Aviall has spent in excess

of five million doilars to conduct its investigation and reme-

diation activities.

> See R. 144-49, 1454-55, 1462-64, 1496-97, 1505-06, 1522-23. Peti-

tioner’s description of Aviall’s activities as “voluntary” ignores the role

the State played in compelling the clean-up.

2. In August 1997 Aviall filed this action against Cooper

in the United States District Court for the Northern District

of Texas, seeking to recover the share of its clean-up costs

fairly charged to Cooper. J.A. 8A. In its original complaint,

Aviall sought recovery of its costs under several causes of

action, including § 107 and § 113 of CERCLA. J.A. 16A.

Aviall later amended its complaint to add new state law

claims, drop several common law claims, and combine its

CERCLA claims into one, joint claim. J.A. 41A.*

Both parties filed motions for summary judgment. The

district court granted Cooper’s motion. The court read § 113

to allow an action for contribution only during or after a civil

action under CERCLA. Pet. App. 90a. Because Aviall’s

clean-up was not undertaken pursuant to a CERCLA suit, the

court reasoned, Aviall could not maintain its contribution

action. /d. at 97a. A divided panel of the Fifth Circuit af-

firmed, on substantially the same reasoning. /d. at 47a.

3. On rehearing, the en banc court reversed and held that

Aviall could pursue its contribution action. Pet. App. 9a. In

an opinion written by Judge Edith Jones, the Court of Ap-

peals held that § 113, which provides that a party “may” seek

contribution during or following any civil action, does not by

its terms preclude a contribution action in other circum-

stances. Rather, use of the permissive “may” reflects con-

gressional intent to permit contribution actions in the ab-

sence of civil suits. /d. at 24a. Similarly, § 113’s “savings

clause,” which provides expressly that “nothing in this sub-

* Despite certain references in the district court opinion and the argu-

ments of petitioner, Aviall never abandoned its § 107 claim. J.A. 92A -

94A. Aviall framed its claim in the manner compelled by the Fifth Cir-

cuit’s decision in Geraghty & Miller, Inc. v. Conoco, Inc., 234 F.3d 917

(Sth Cir. 2000), cert. denied, 533 U.S. 950 (2001), which interpreted a

PRP’s cost-recovery action as arising jointly through the operation of

sections 107 and 113.

section shall diminish the nght of any person to bring an ac-

tion for contribution in the absence of a civil action” under

CERCLA, indicates that Congress did not intend to foreclose

contribution actions brought by parties who have undertaken

clean-ups without first litigating the issue. /d. at 25a. Fi-

nally, the Court of Appeals noted that its construction of

§ 113 was consistent with the purposes underlying CERCLA

as a whole, in that it would “promote prompt and efficient

cleanup of hazardous waste sites and the sharing of financial

responsibility among the parties whose actions created the

hazards.” /d. at 14a.

SUMMARY OF ARGUMENT

For the past twenty five years, CERCLA has been a cen-

tral component of this nation’s approach to the clean-up of

contaminated property. Business arrangements and real es-

tate transactions have been fashioned around a uniform un-

derstanding of CERCLA — an understanding that, regardless

of the vagaries of state law, CERCLA establishes a cause of

action for cost recovery by parties who undertake clean-ups

— whether they do so voluntarily, under state or federal order,

or following settlement with the government. That has been

the position of the federal courts of appeals, and the under-

standing underlying countless business transactions.

Now, a quarter century after enactment of CERCLA and

almost eighteen years after adoption of the provision at issue

in this case, petitioner urges upon the Court a brand new

reading of CERCLA. Under petitioner’s view, § 113 pre-

cludes a right of contribution by a PRP who either voluntar-

ily or in response to a state or federal order cleans up con-

taminated property. Indeed, petitioner goes one step further

than that: such PRPs are not only foreclosed from recover-

ing under § 113 but are also left without any right to cost re-

covery under CERCLA. That novel position is not sup-

ported by the language, legislative history, or structure of the

Act. Adoption of petitioner’s position would disrupt the

most basic and settled understanding of the operation of

CERCLA.

1. Section 113 expressly authorizes a right of action for

“contribution.” As the courts of appeals have uniformly

held, an action by a PRP who cleans up contaminated prop-

erty — whether voluntarily, under government direction, or

pursuant to litigation — and seeks partial recovery from an-

other PRP is a “quintessential” claim for contribution and

thus falls squarely within § 113. Were it otherwise, there

would be no basis for what is now the well-settled proposi-

tion that PRPs must sue for contribution under § 113 rather

than seeking recovery under § 107.

By its terms, § 113 permits actions by PRPs who conduct

clean-ups voluntarily or pursuant to administrative order.

Though Congress specified certain common situations in

which a contribution action can be expected — during or after

CERCLA litigation — it also expressly stated that the right to

bring an action at other times was not curtailed. The

straightforward reading adopted by the court below simply

takes Congress at its word.

Petitioner’s contrary reading, on the other hand, requires

significant alteration of the statutory language. “May” be-

comes “may only,” and the savings clause is rewritten to ap-

ply only to state law — which would itself pose difficult and,

for this Court, novel questions of CERCLA preemption. Pe-

titioner’s reading is also contrary to the long-standing posi-

tion of the Department of Justice (“DOJ” or “Justice”). De-

spite the fact that the Solicitor General has entered this case

as amicus in support of petitioner, DOJ in the past has read

the statute just as respondent and the Fifth Circuit do: use of

the permissive “may” in the first sentence, combined with

the savings clause in the last, make clear that a PRP may sue

for contribution whether or not the clean-up was the subject

of CERCLA litigation.

2. Petitioner’s reading of § 113 is inconsistent with the

congressional purpose behind CERCLA. Through

CERCLA, Congress intended to encourage voluntary clean-

ups of contaminated properties. But on petitioner’s reading,

PRPs have a decided disincentive to act voluntarily: only if

they resist voluntary action and provoke court action can

they recover any of their costs from entities partially respon-

sible for the contamination. Petitioner’s position also would

effectively immunize responsible parties from any liability

for their equitable share of costs once some other PRP had

voluntarily cleaned up a site, contrary to Congress’ intent.

Finally, petitioner’s arguments are utterly inconsistent with

one of the main purposes of CERCLA: to establish a uni-

form, national policy of liability.

Petitioner’s reading also runs contrary to decades of set-

tled case law, finding a cause of action for contribution under

CERCLA for PRPs who have engaged in clean-ups either

voluntarily or at the direction of administrative orders, and is

in tension with regulations of the Environmental Protection

Agency. And as noted above, it conflicts with the traditional

position of DOJ. All of these authorities have generated set-

tled expectations in the business community that would be

badly undermined were the Court to adopt petitioner’s novel

theory.

3. If this Court were to hold that respondent has no cause

of action under § 113, then the Court should remand to allow

respondent to proceed under its § 107 claim. There is no

merit to petitioner’s contention that Aviall has somehow

waived that claim. And if respondent is correct that-PRPs

like Aviall cannot bring an action for contribution under

§ 113, then it follows that those PRPs are entitled to recover

under § 107 instead.

ARGUMENT

Petitioner’s argument — that CERCLA precludes recov-

ery of an equitable share of costs by a PRP who cleans up

contaminated property either voluntarily or pursuant to an

administrative order — is virtually unprecedented. No federal

court of appeals has ever adopted that position — with the ex-

ception of the Fifth Circuit panel below, which was of course

promptly reversed by the en banc court of appeals. Indeed,

this case is the first in which a court of appeals has even ad-

dressed petitioner’s novel position. As demonstrated by the

numerous amicus briefs filed in this case, on behalf of parties

ranging from the American Petroleum Institute to the State

of New York to environmental organizations, petitioner’s

argument is not only incorrect but also deeply destructive to

the system for assigning liability under CERCLA that has

been well-established and smoothly functioning in the lower

courts for years.

I. CERCLA § 113 AUTHORIZES RESPONDENT TO

SEEK CONTRIBUTION.

A. Respondent’s Claim Is A Quintessential Claim

For Contribution.

Section 113 expressly authorizes parties to seek “‘contri-

bution” from other liable parties. That is exactly what re-

spondent Aviall is doing here. One jointly liable party, who

has properly cleaned up contaminated property under state

compulsion, is seeking an equitable allocation of costs with

another jointly liable party. That scenario satisfies the com-

mon understanding of “contribution” — the understanding

that has led the courts of appeals to hold uniformly that PRPs

may sue under § 113’s “contribution” action and on/y under

§ 113, rather than seeking full cost recovery under § 107.

1. This Court defined the essential elements of a claim

for contribution in Northwest Airlines v. Transport Workers

Union of America, 451 U.S. 77, 87-88 (1981):

Typically, a mght to contribution is recognized when

two or more persons are liable to the same plaintiff

for the same injury and one of the joint tortfeasors

has paid more than his ‘air share of the common li-

ability. Recognition of the nght reflects the view that

when two or more persons share responsibility for a

wrong, it is inequitable to require one to pay the en-

tire cost of reparation, and it is sound policy to deter

all wrongdoers by reducing the likelihood that any

will entirely escape liability.

The situation described by the Court is precisely the circum-

stance that exists when one PRP, jointly and severally liable

with other PRPs, cleans up property and seeks to share the

cost with another jointly liable party.

Contrary to petitioner’s argument, a formal court adjudi-

cation of liability is not a prerequisite to an action for contn-

bution at common law. Rather, a claim for contribution by a

PRP in the absence of a judgment or settlement is consistent

with general tort principles. The Restatement (Second) Of

Torts addresses the issue directly, clanfying that “when two

or more persons become liable in tort to the same person for

the same harm, there is a right of contribution among them,

even though judgment has not been recovered against all or

any of them.” RESTATEMENT (SECOND) OF TORTS § 886A

(1979) (emphasis added); see also id. at cmt. b (“the rule

stated applies . . . in favor of a tortfeasor who has paid more

than his equitable share . . . without any judgment or even

suit against him”). Other authorities, though less explicit,

also suggest that a claim for contribution may proceed with-

out a judgment or settlement. See BLACK’S LAW

DICTIONARY 329 (7th ed. 1999) (defining “contribution” as a

“tortfeasor’s right to collect from others responsible for the

same tort after the tortfeasor has paid more than his or her

proportionate share’’); Uniform Contribution Among Tort-

feasors Act § 1(b), 12 U.L.A. 194 (1996) (“right of contribu-

tion exists only in favor of a tortfeasor who has paid more

than his pro rata share of the common liability’).

Indeed, the Department of Justice has in the past taken

the position that a right to contribution may accrue in the ab-

sence of a formal adjudication of liability. In its brief in

Centerior Service Co. v. Acme Scrap Iron & Metal Corp.,

153 F.3d 344 (6th Cir. 1998) (“Centerior Br.”’),5 the Depart-

ment explained:

Every circuit court deciding this issue has held that

CERCLA suits among PRPs are in the nature of an

action for contribution, regardless of how the action

is labeled. That plaintiffs have not formally admitted

liability or otherwise been adjudged liable does not

alter the conclusion that plaintiffs are limited to a

contribution action.

Centerior Br., App. 8A. And in a brief to this Court oppos-

ing certiorari in Pinal Creek Group v. Newmont Mining Co.,

524 U.S. 937 (1998), the Solicitor General argued that a PRP

who voluntarily cleaned up property could sue in contribu-

tion under § 113, and relied on the uniform circuit court au-

thority holding that such actions by PRFs are inherently ac-

tions for contribution. Brief for the United States as Amicus

Curiae (Pinal Br.), 1998 WL 34103033 at *7, *15.°

* Because the Centerior Brief is not readily available on line, a copy is

attached to this brief as an Appendix (“App”).

° In its amicus brief in this case, the Solicitor General does not discuss

what appears to be a fairly substantial change in position, beyond a single

and rather cryptic reference to the possibility of “errant” language in

2. The federal courts of appeals have universally held

that an action by one PRP against another to recover clean-

up costs under CERCLA is a “quintessential” claim for con-

tribution. See Bedford Affiliates, 156 F.3d at 423-24 (claim

by PRP to recoup portion of costs exceeding its equitable

share of overall liability is “quintessential claim for contribu-

tion”). That authority includes cases in which the PRP in

question had engaged in wholly voluntary clean-up activi-

ties. See Pinal Creek Group, 118 F.3d at 1298; Control

Data Corp. v. S.C.S.C. Corp., 53 F. 3d 930, 932 (8th Cir.

1995); Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672

(Sth Cir. 1989).

As discussed earlier, those cases go on to hold that be-

cause any claim by one PRP against another is necessarily a

“contribution” claim, PRPs not only may sue under § 113,

but indeed must sue under § 113 instead of under § 107’s

cost-recovery provisions. Petitioner’s position (and the cur-

rent position of the Solicitor General) is of course inconsis-

tent with that consensus view: if a right to contribution does

earlier DOJ briefs. Brief for the United States as Amicus Curiae Sup-

porting Petitioner (“SG Br.”’) at 26. When it asked for examples, respon-

dent was advised that the Solicitor General was aware of no specific case

in which the Department had taken a contrary position or used “errant”

language.

* See also Centerior Serv. Co., 153 F.3d at 349; United Techs. Corp. Inc.,

33 F.3d at 101 (responsible parties seeking recovery of portion of their

response costs from other responsible parties were seeking contribution

within the common understanding of the term); Redwing Carriers, Inc.

v., 94 F.3d at 1496 (claim by a PRP is a claim for contribution); Akzo

Coatings Inc., 30 F.3d at 764 (precluding PRP from seeking cost recov-

ery claim and noting that action in which party liable for some of the site

contamination sought costs from other liable parties is a “quintessential

claim for contribution"); /n re Reading Co., 115 F.3d 1111, 1121 (3d

Cir. 1997) (to the extent the aim of action is cost recovery by one PRP

from another, it is an action for contribution).

not exist in the absence of a lawsuit or settlement, then at

least as to a significant subset of PRPs, there is no longer

any rationale for insisting that they sue under § 113 and for

thus precluding suits under § 107. If adopted, petitioner’s.

argument would disrupt the established view of the relation-

ship between sections 107 and 113 and necessarily revive an

independent claim by PRPs under § 107.

3. The contrary authorities cited by petitioner and the

Solicitor General, Pet. Br. at 16-17, SG Br. at 17-19, suggest,

at most, that a common law right of contribution might not

exist following a wholly gratuitous payment which does not

discharge or extinguish the underlying liability of a joint tort-

feasor. Under those circumstances, it is argued, the joint

tortfeasor against whom contribution is sought might be sub-

ject to double liability. See RESTATEMENT (THIRD) OF

TORTS: APPORTIONMENT OF LIABILITY, § 23 cmt. b (if initial

payment’ by party seeking contribution has not discharged

liability of joint tortfeasor, “the person against whom contn-

bution is sought would be subject to double liability’’) (cited

in SG Br. at 18). But even if that were so, it would not sup-

port petitioner’s position in this particular case, or foreclose

an action for contribution by Aviall.

First, petitioner’s position is that § 113 precludes actions

for contribution by PRPs, like Aviall, who clean up property

in response to state or federal orders. Such clean-ups cannot

in any sense be seen as gratuitous; rather, they are under-

taken under compulsion. Indeed, no clean-up by a PRP

should be seen as purely voluntary or gratuitous because,

even in the absence of an order, a PRP by definition exists

under a cloud of potential liability.

Second and more importantly, a clean-up by a PRP,

whether voluntary or in response to a government order,

does effectively extinguish the underlying liability of other

PRPs with respect to that clean-up. The fear of additional or

“double” liability arises only if the initial clean-up is inade-

quate, so that the government must insist on additional clean-

up activities (or undertake them itself and then seek reim-

bursement). But with limited exceptions, privately expended

clean-up costs qualify as recoverable damages only if they

are consistent with the National Contingency Plan (“NCP”),

42 U.S.C. § 9607(a)(4)(B), which requires that private par-

ties satisfy procedural and substantive requirements to pro-

duce a “CERCLA-quality cleanup,” 40 C.F.R.

§ 300.700(c)(3)(i) (2003). As a result, cases in which PRPs

may seek recovery of costs necessarily involve clean-ups

that are of “CERCLA-quality” and entirely adequate, giving

the government no reason to impose additional obligations

on anyone.*

The Department of Justice has argued in the past that a

clean-up in response to a government order “discharges” li-

ability and thus justifies contribution. Centerior Br., App.

33A-35A.. But under the carefully worked out NCP system,

the result is the same whenever a private party conducts a

clean-up that is substantially consistent with the NCP.

B. The Text of Section 113 Permits An Action For

Contribution By PRPs Like Aviall.

If, as uniformly held by the courts of appeals, an action

by a PRP is inherently an action for contribution, then the

only remaining issue is whether Congress intended, through

the language of § 113(f)(1), to restrict the nghts of PRPs to

seek contribution — to make the nght to contnbution nar-

® As the EPA has explained, “EPA believes that the [NCP] requirement

that private party responses comply with all applicable Federal, State and

local requirements, including permit requirements, as appropriate, is suf-

ficient to deter poorly planned cleanup proposals and minimize the pos-

sibility of independent private party and government responses.” 50 Fed.

Reg. 47,912, 47,934 (1985).

rower than it was under prior law. Nothing about the lan-

guage of § 113 suggests, let alone commands, that result.

Instead, § 113(f)(1) is plainly and sensibly read to mean

exactly what it says. A PRP “may” seek contribution “dur-

ing or following” a “civil action” under CERCLA. With that

sentence, Congress identified a common situation giving rise

to contribution claims by PRPs, and confirmed the validity

of pre-SARA case law finding a right of contribution in

those circumstances. But that specific endorsement does not

restrict the nght to seek contribution in other circumstances:

“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 [CERCLA].” As the en banc court held,

“(T]he first and last sentences of § 113(f)(1) combine to af-

ford the maximum latitude to parties involved in the complex

and costly business of hazardous waste site cleanups.” Pet.

App. 27a.

1. Section 113(f)(1) provides that contribution “may” be

sought “during or following any civil action” under

CERCLA. Petitioner would read that provision as establish-

ing the exclusive time in which actions for contribution must

be brought. But as the en banc court of appeals concluded,

that reading would revise the statute so that “may” becomes

“may only.” Pet. App. 24a. The more obvious interpretation

of the permissive “may” is that Congress allowed a right of

contnbution during or after a civil action but did not intend

to limit that mght to such circumstances. Jd; see also

BLACK’S LAW DICTIONARY 993 (7th ed. 1999) (defines pri-

mary meaning of “may” as “is permitted to” and states:

“This is the primary legal sense — usu. termed the ‘permis-

sive’ or ‘discretionary’ sense.”); WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY 1396 (3d ed. 1993) (defining

“may” as having permission or the liberty to do something).

In pnor cases, the Department of Justice has read

§ 113(f)(1) in just that manner:

The plain language of CERCLA § 113(f)(1) is not re-

strictive, i.e., it does not say that a contribution action

may only be brought during or following a civil ac-

tion under § 106.

Centerior Br., App. 32A (arguing that action for contnbution

may be brought-in absence of civil action under CERCLA)

(emphasis in original). The fact that the statutory language

appeared to Department of Justice to be wholly permissive in

the Centerior case is difficult to reconcile with any claim

that the statutory text is so “plain” that it admits of only one

— entirely contrary — reading today.

If, as petitioner argues, the word “may” is read to mean

“may only,” then it follows that actions for contribution may

not be brought when clean-ups are undertaken in compliance

with federal or state administrative orders. Section 113(f)(1)

allows actions for contribution “during or following any civil

action,” and an administrative order is not a “civil action.”

Such a restriction on the scope of contribution is inconsistent

with over twenty years of settled lower-court precedent and

the traditional position of the Department of Justice, see

Centerior Br., App. 8A-9A. It is also inconsistent with the

* Though petitioner appears to fully embrace this position, the original

Fifth Circuit panel, which otherwise ruled for petitioner, could not accept

this conclusion. Instead, it revised § 113(f)(1) so that “civil action” be-

came “civil action or administrative order.” Pet. App. 97a. The dissent-

ers to the en banc decision below rejected that creative rewriting of the

statute, and acknowledged that a right of contribution would exist in

cases involving administrative orders only if a party failed to comply

with the order and was then sued in federal court. /d. at 36a n.34. Under

that view, parties would have a perverse incentive to violate admunistra-

tive orders so that they could establish a mght to contribution under

§ 113.

petitioner’s and the Solicitor General’s discussion of contri-

bution in this very case: Under virtually any possible inter-

pretation of traditional common-law contribution principles,

a jointly responsible party who has been compelled by the

government to clean up property is deemed to discharge the

liability of other jointly liable parties. Centerior Br., App.

33A-35A.

2. In addition to using the permissive “may” in the first

sentence of § 113(f)(1), Congress made its intent unmistaka-

bly clear by including a “savings clause” in the final sen-

tence: “Nothing in this subsection shall diminish the nght of

any person to bring an action for contribution in the absence

of a civil action” under CERCLA. It would have been diffi-

cult for Congress to make more plain that it did not intend

the “during or following” a civil action language to act as a

restriction on the nght to pursue contribution“in other cir-

cumstances. See Pet. App. 22a.

That has been the traditional position of the Department

of Justice. In combination with the first sentence of

§ 113(f)(1), the Department has explained, the savings clause

at the end shows that a “contnbution action” after a volun-

tary clean-up “is allowed by the very terms of the statute.”

Centerior Br., App. 32A-35A. The contrary interpretation

adopted by petitioner in this case, according to the Depart-

ment, would “read out the last sentence of § 113(f)(1)” alto-

gether. /d. at 33A.

In order to give the savings clause some meaning, peti-

tioner, and now the Solicitor General, suggest that it is de-

signed only to preserve state common-law contribution

claims. Of course, that is not what the sentence says. And

when Congress intended to preserve state law from preemp-

tion under CERCLA, it knew how to say so: CERCLA con-

tains at least two explicit state-law “savings clauses” that

would, on petitioner’s reading, become surplusage. '° More

important, contrary to petitioner’s breezy suggestion, it is not

at all obvious that Congress intended to preserve state-law

contribution remedies from preemption under § 113 or

§ 107. Indeed, two federal circuit courts already have held to

the contrary. See Bedford Affiliates, 156 F.3d at 425; In re

Reading Co., 115 F.3d at 1117. In an effort to bolster its

strained reading of § 113(f)(1)’s savings clause, petitioner

would have this Court decide an entirely different and very

difficult question of preemption law, without the benefit of

consideration of the issue by the court below. The Court

should decline that invitation and give the savings clause its

plain meaning: Nothing in subsection 113(f)(1), including

the reference to actions “dunng or following’ CERCLA

suits, restricts a PRP’s right to seek contribution at any time.

Finally, petitioner notes that the last sentence of

§ 113(f)(1) does not affirmatively create a right of contribu-

tion, but simply provides that nghts of contribution are “not

diminished” by anything in the subsection. That is correct.

The right to contribution does not arise from the savings

clause of § 113(f)(1), but is simply preserved by that sen-

tence. The night itself flows from § 107. As the Ninth Cir-

cuit has explained, “while § 107 created the nght of contn-

bution, the ‘machinery’ of § 113 governs and regulates such

actions, providing the details and explicit recognition that

were missing from the text of § 113.” Pinal Creek Group,

‘© Section 302(d) of CERCLA provides that nothing in CERCLA “shall

affect or modify in any way the obligations or liabilities of any person

under other Federal or State law, including common law... .” 42 U.S.C.

§ 9652(d). Section 114(a) provides that CERCLA does not preempt “any

State from imposing any additional liability” with respect to hazardous

substances. /d at § 9614(a).

118 F.3d at 1301.'' The Department of Justice has endorsed

the same understanding — that liability for contribution arises

from § 107, while § 113 “fills [the] void” left by § 107 by

specifying precisely what “form that liability should take.”

Pinal Br. at *10.

In short, the last sentence of § 113(f)(1) acts not as a sav-

ings clause preserving state claims, but as an express reser-

vation of CERCLA’s once-implied right of contribution -

which is not “diminished” in any way by the “during or ful-

lowing” language found earlier in the subsection.

C. Nothing In The Legislative History Or Statutory

Structure Compels A Different Result.

1. The plain language of § 113(f)(1) avoids the need to

resort to legislative history. But in any event, that history is

perfectly consistent with the obvious and sensible reading

given § ) 13(f)(1) by the en banc court below.

Only one thing is clear from the legislative history. In

adopting § 113(f), Congress intended to “clarify” and “con-

firm” the right of contribution that federal courts had previ-

ously found implied in the statute. See, e.g, H.R. Rep. No.

99-253, pt. I, at 59, 79 (1985); S. Rep. No. 99-11, at 44

(1985); 131 Cong. Rec. 24,450 (1985) (statement of Sen.

Stafford) (predicting that § 113 would “remove any doubt as

to the nght of contnbution”). Nothing in the legislative his-

'' See also New Castle County, 111 F.3d at 1122 (§ 113 “does not in it-

self create any new liabilities; rather, it confirms the night of a [PRP] un-

der section 107 to obtain contribution from other [PRPs]”); United Tech.,

33 F.3d at 102 n.10; United States v. ASARCO, Inc., 814 F. Supp. 951,

956 (D. Colo. 1993) (“Section 113(f), however, does not create the right

of contribution - rather the source of a contribution claim is section

107(a). Under CERCLA’s scheme, section 107 governs liability, while

section 113(f) creates a mechanism for apportioning that liability among

responsible parties "') (citations omutted).

tory indicates that Congress intended to cut back on the then

prevailing right of PRPs who cleaned up property either vol-

untarily or in response to a government order to seek cost

recovery or contribution under § 107.'? Petitioner, however,

would read section 113(f) as an axe with which Congress

lopped off the prior rights of these PRPs. Nowhere in the

limited legislative history does Congress suggest any intent

to drastically curtail a PRP’s pre-existing right to seek cost

recovery under CERCLA."

Beyond confirming Congress’ intent to approve a night of

contribution, the legislative history must be viewed with cau-

tion. Section 113(f) was preceded by several drafts with

varying language, and selective quotation from the legisla-

tive history obscures the fact that many references were to

differing versions of what finally became § 113(f). See Pet.

App. 78a (Weiner, J., dissenting). The legislative history is

particularly confused and inconsistent regarding any con-

gressional intent on the timing of a nght of contribution.

Some statements in the legislative history indicate that Con-

gress generally intended to confirm a nght of contribution by

‘> Petinoner states that, prior to SARA, no federal court had recognized a

cause of action for contribution except in cases following federal civil

actions. That is incorrect. As the en banc court below explained, ail of

numerous cost-recovery claims by PRPs recognized by federal courts

under § 107 were inherently actions for contmbution. As the court of

appeals explained. in the pre-SARA era, “lower federal courts were im-

plementing. albeit unevenly, contribution nghts that did not depend on

pre-existing EPA admumistrative orders and that did not arise solely ‘dur-

ing or following’ CERCLA enforcement actions.” Pet. App. 18a.

> As the en banc court noted, “It would seem odd that a legislature con-

cerned with clanfying the nght to contnbution among PRPs and with

facilitating the courts’ development of federal common law apportion-

ment principles would have rather arbitrarily cut back the then-prevailing-

standard of contribution. In no even does the history ‘overwhelmingly

support’ the panel majority's narrow view of the statute.” Pet. App. 22a.

responsible parties. See, e.g., H.R. Rep. No. 99-253, pt. I, at

59 (1985) (“The bill would give potentially responsible par-

ties the explicit right to sue other liable or potentially liable

parties who also may be responsible for the hazardous waste

site.”); id. at 266 (“The section would also establish a federal

nght of contribution or indemnity for persons liable under

§ 106 or § 107 of current law . . . .”) (emphasis added); S.

Rep. No. 99-11 (1985) (principal goal of new section was to

“clanifly] and confirm{ ] the right of a person held jointly and

severally liable under CERCLA to seek contribution from

other potentially liable parties, when the person believes that

it has assumed a share of the clean-up cost that may be

greater than its equitable share under the circumstances.”).

Other statements indicate that members of Congress under-

stood that the right of contribution exists during or following

a “ederal civil action. See, e.g., H.R. Rep. No. 99-253, pt. I,

79 (1985) (“This section clarifies and confirms the right of a

person held jointly and severally liable under CERCLA to

seek contribution from other potentially liable parties.”’).

These snippets of language add little to understanding the

availability of a nght to contribution in the absence cf a prior

civil action, or the meaning of the last sentence in

§ 113(f)(1). At most, the phrases indicate that Congress con-

firmed a nght of contribution during and following a federal

civil action; they simply are silent on whether a federal right

to contribution exists at other times.'*

‘* Judge Weiner, in his dissent from the original panel decision in this

case, expressed appropriate concern about reliance on fragments from the

legislative history in this case. “I am mystified by the majority's will-

ingness to cast aside its healthy skepticism about legislative history to

read so much into the absence of legislative discussion on this issue, es-

pecially when the plain language of the statute, through its savings

Clause, expressly contemplates actions for contribution in the absence of

civil actions under § 106 or § 107(a).” Pet. App. 79a. See also Pfohl

Brothers Landfill Steering Comm. v. Allied Waste Sys, Inc., 255 F. Supp.

Nor does the legislative history support petitioner's read-

ing of the savings clause of § 113(f)(1). Petitioner, as a re-

sult of its convoluted reading of the statute, is forced to argue

that the last sentence of § 113(f) was intended to preserve

State common law contribution claims from preemption by

federal law. Nothing in the legislative history of § 113(f),

however, indicates that Congress had any intention to ad-

dress the issue of federal preemption. Petitioner would im-

pute to Congress the intent to resolve a fundamental issue of

federal-state relations without so much as a comment.

2. Petitioner argues that the statute of limitations provi-

sions of § 113(g) require that § 113(f)(1) be read to preclude

contnbution actions that do not arise during or after

CERCLA civil actions. Section 113(g) provides for two

separate statutes of limitations: § 113(g)(2), applicable to

cost-recovery actions under § 107, pegs the limitation period

to commencement or completion of clean-up activities;

§ 113(g)(3), applicable to an “action for contribution,” uses

the date of judgment or settlement as a referent point for the

limitations period. Because § 113(g)(3) relies on judgment

or settlement to calculate the limitations period, petitioner

argues, there can be no cause of action for contribution ab-

sent such a judgment or settlement.

If § 113(g) is problematic, it is a problem that has been

solved. The courts of appeal that have addressed the issue

have concluded that an action by a PRP brought in the ab-

sence of a pnor judgment or settlement is for limitations

purposes an “initial action for recovery” subject to

§ 113(g)(2)’s statute of limitations. See Geraghty & Miller,

Inc., 234 F.3d at 917; Sun Co. v. Browning-Ferris, Inc. 124

F.3d 1187, 1191 (10th Cir. 1997); see also Cytec Indus., Inc.

2d 134, 153 n.17 (W.D.N_Y. 2003) (rejecting implication from the legis-

lative history drawn by the majority pane! decision in Aviail/).

v. B.F. Goodrich Co., 232 F. Supp. 2d 821 (S.D. Ohio 2002)

(applying Sixth Circuit opinion in Centerior Serv. Co., 153

F.3d at 344).'° In doing so, each court of appeals has none-

theless concluded that the action by the PRP retained its es-

sential character as an action for contribution and was there-

fore properly brought under § 113(f). There is no need for

the Court to address the statute of limitations issue in this

case, and — as experience in the lower courts shows — noth-

ing about the statute of limitations provision precludes the

reading of § 113 advanced by Aviall and adopted by the

court below.

Il. PETITIONER’S POSITION IS INCONSISTENT

WITH BOTH THE LEGISLATIVE PURPOSE

BEHIND CERCLA AND DECADES OF SETTLED

CASE LAW.

A. Petitioner’s Position Would Lead To Results That

Are Directly Contrary To The Congressional In-

tent Behind CERCLA.

The position of the en banc court of appeals is consistent

not only with the plain language of the statute but also with

the fundamental purposes of CERCLA. In contrast, peti-

tioner advances a position whose consequences fly directly

in the face of Congress’ objectives and produce a result so

'S Courts have considered two other approaches to the statute of limita-

tions issue when a PRP commences a cost-recovery action in the absence

of a judgment or settlement. See City of Merced v. R.A. Fields, 997 F.

Supp. 1326, 1334-35 (E.D. Cal. 1998) (in addition to treating such a

claim as an “initial action” subject to § 113(g)(2), courts have considered

the possibility of (1) applying § 113(g)(3) but importing a different trig-

gering event or (2) concluding that CERCLA contains no statute of limi-

tations in such cases). No court of appeals, however, has adopted an ap-

proach other than that referred to in the text above — simply applying

§ 113(gX2).

odd and counter-intuitive that it is almost impossible to de-

fend as a matter of legislative intent or public policy.

1. An important objective of CERCLA is to encourage

parties to undertake clean-ups voluntarily, without the need

for government compulsion or intervention. See H.R. Rep.

No. 96-1016, pt. 1, at 17 (1980), reprinted in 1980

U.S.C.C.A.N. 6119 (“The legislation would establish a Fed-

eral cause of action in strict liability to enable the [EPA]

Administrator to pursue rapid recovery of the costs incurred

for the costs of such [clean-up] actions undertaken by him

from persons liable therefore and to induce such persons

voluntarily to pursue appropriate environmental response

actions with respect to inactive hazardous waste sites.””) (em-

phasis added). This purpose has consistently been acknow!-

edged by the federal courts. See Bethlehem Steel Corp. v.

Bush, 918 F.2d 1323, 1326 (7th Cir. 1990) (describing

CERCLA’s “manifest legislative intent to encourage volun-

tary private cleanup action”); United States v. New Castle

County, 642 F. Supp. 1258, 1264 (D. Del. 1986) (“A review

of CERCLA’s legislative history shows one of the Act’s

principle [sic] goals to be the achievement of expeditious

response to environmental hazards through voluntary com-

pliance by responsible parties.”) (emphasis in original).

If adopted, petitioner’s position would have the obvious

effect of removing a significant incentive to voluntary clean-

up. Under petitioner’s view, PRPs who undertake voluntary

clean-ups would have no mechanism under CERCLA for

seeking a fair share of costs from other responsible parties.

But the consequences of petitioner’s position go further

than that. Petitioner’s reading of the statute would actually

erect affirmative disincentives to voluntary action: in order

to obtain a nght of contribution under CERCLA, PRPs must

avoid voluntary clean-up and instead provoke federal in-

volvement. If a PRP did not want to absorb the entire cost of

a Clean-up for which it was only partly responsible, it would

have no choice but to wait to receive an administrative order

rather than proceeding voluntarily — and then violate that or-

der to provoke federal judicial enforcement. Alternatively,

PRPs would be encouraged to wait for a government clean-

up of the property and then a government suit to recover its

costs. Nothing in the language or history of CERCLA war-

rants a construction that increases the need for federal in-

volvement and discourages voluntary clean-ups.

2. It is undisputed that a key purpose of CERCLA is not

only to ensure the proper clean-up of contaminated property,

but also “to hold responsible parties liable for the costs of

these cleanups.” H.R. Rep. No. 99-253, pt. 3, at 15 (1985).

In other words, those parties who are responsible for a re-

lease of hazardous substances should bear their fair share of

the cost of clean-up of those hazardous substances. See

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

ruled on other grounds by Seminole Tribe of Fla. v. Florida,

517 U.S. 44 (1996); Mardan Corp. v. C.G.C. Music, Lid.,

804 F.2d 1454 (9th Cir. 1986).

Under petitioner’s reading, however, negligent PRPs are

essentially immune from liability if another PRP has cleaned

up property either voluntarily or in response to a government

order. In such a case, petitioner argues, the PRP who cleans

up the property has no cause of action against other PRPs -—

who are thus freed from any obligation to pay their fair share

of costs. The PRP who accepts responsibility for the clean-

up, or who is singled out for a government order, bears the

entire cost of the clean-up, while other jointly and severally

liable parties remain free from responsibility or liability.

That outcome runs directly counter to a basic purpose of

CERCLA.

3. Congress also intended CERCLA to establish a clear,

uniform rule of liability for the clean-up of hazardous sub-

stances. See, e.g., 126 Cong. Rec. 11787 (1980) (statement

of Rep. Florio) (“To ensure the development of a uniform

rule of law, and to discourage business [sic] dealing in haz-

ardous substances from locating primarily in states with

more lenient laws, the bill will encourage the further devel-

opment of a Federal common law in this area.”); Wade, 577

F. Supp. at 1337; Wehner, 616 F. Supp. at 27; United States

v. A&F Materials Co., Inc., 578 F. Supp. 1249 (S.D. Il.

1984); United States v. Chem-Dyne Corp., 572 F. Supp. at

802. Such a uniform national rule avoids a “race to the bot-

tom” in which industries move to states with the most lenient

rules of liability, and also provides certainty to commercial

transactions. A uniform national rule of liability, including a

right of contribution, promotes Congress’ intent in this area

and avoids the “balkanization” of national environmental

policy.

But under petitioner’s view, the contribution claims of

PRPs who clean up property either voluntarily or at the di-

rection of a government order would be subject to inconsis-

tent state rules of contribution. Petitioner has helpfully noted

that many states have adopted general rules of contnbution

among tortfeasors.'° What petitioner fails to note, however,

is the wide variety and inconsistency among the states re-

'® See Pet. Br. at 18 n.11. As noted above, however, the status of state

common law contribution claims for recovery of hazardous waste clean-

up costs is in some doubt. Several courts have held that such common

law claims are preempted if they conflict with the provisions of

CERCLA. See supra at 20. The issue of preemption of state common-

law claims is not before this court and need not be addressed if Aviall’s

position is adopted. Under the petitioner’s view, however, the last sen-

tence of § 113(f)(1) specifically preserves such state laws. If that view

were accepted by the Court, the effect would be to reverse the holdings

of the courts of appeals and preclude the opportunity for continued de-

velopment of the issue by lower courts.

garding a statutory right of contribution by responsible P -

ties who undertake the clean-up of hazardous substances.’

' There is enormous variety in the availability, scope, and prerequisites

of state statutory provisions dealing with the right of contribution for

parties cleaning up property. Thirteen states and the District of Columbia

appear to have no statutes specifically authorizing a general nght of con-

tribution by parties who clean up property contaminated by hazardous

substances. These include Colorado, the District of Columbia, Idaho,

lowa, Illinois (see NBD Bank v. Krueger Ringier Inc, 686 N.E.2d 704

(Ill. App. Ct. 1997); Chrysler Realty Corp. v. Thomas Indus., Inc., 97 F.

Supp. 2d 877 (N.D. Ill. 2000)), New Mexico, North Dakota (N.D. St. 23-

29-16; limited right of contribution by officers and directors of solid

waste landfill disposal facility), Rhode Island, South Carolina, (S.C. 1976

§ 44-56-750 provides only for protection from CERCLA contribution if

voluntary clean-up); South Dakota, Virginia, Wisconsin, and Wyoming.

State statutes that do authorize a right of contribution vary substan-

tally. One state provides for contribution if clean-up was initiated by the

state. See Ark. Stat. Ann. § 8-7-502. Another state defines its own nght

of contribution by reference to CERCLA sections 107 and 113. See Ky.

Rev. Stat. Ann. § 224.01-400(25). Other states generally allow for a

nght of contribution if the clean-up is consistent with state law. See Cal.

Health & Safety Code 25363(e); Del. Stat. 7 § 9105(d); Haw. Rev. Stat.

§ 128D-18; N.H. Rev. Stat. § 147-B:10.III(b). Two states require state

approval of the clean-up. See La. Rev. Stat. § 30:2276.G(3); Tex. Health

& Safety Code § 361.344. Others generally allow contribution for the

reasonable or necessary costs of clean-up. See Ariz. Rev. Stat. § 49-

1019; Mass. Gen. Laws ch. 21E § 4; Minn. Stat. § 115B.04. One state

provides a nght of contribution if the release resulted from a prohibited

discharge. See Fla. Stat. § 376.313. Some states provide a more general

right to contribution following clean-up of hazardous substances. See

Alaska Stat. § 46.03.822(j); Md. Code, Envir. § 7-221(d); Mich. Comp.

Laws § 324.20126a(7); Mont. St. § 75-10-724; NJ. Stat. § 58:10-23.11f,

Pa. Cons. Stat. 35 § 6020.75; 10 Vt. Stat. Ann. § 6615(i). Finally, still

other states simply refer to a right of contribution or provide contribution

protection following certain types of voluntary or brownfield clean-ups.

See Ind. Code § 13-25-5-20; Me. Rev. Stat. tit. 38, § 343-E; N.Y. Envtl.

Conserv. § 27-1421; Ohio Rev. Code, § 122.659; Tenn. Code § 68-212-

224; Utah Stat. § 19-6-325(5)(a).

The situation in the Fifth Circuit is instructive. Texas

and Louisiana provide statutory nghts of cost recovery to

responsible parties that vary in their details and require-

ments; Mississippi has no nght of contnbution at all. Within

the Fifth Circuit alone, a PRP’s nght to contnbution would

vary drastically — and often hinge on complicated “choice of

law” questions — if the view of the petitioner were adopted.

Such an approach to the remediation of hazardous substances

is simply inconsistent with Congress’ intent to develop a uni-

form, national rule of liability.'* Indeed, § 113(f)(1) itself

provides that the nght of contnbution under CERCLA “shail

be governed by federal law.”

4. A uniform federal rule that PRPs have a nght of con-

tnbution under CERCLA creates no additional nsk that

PRPS will be subject to multiple or piecemeal litigation. Pe-

titioner and the Solicitor General raise the specter of private

parties, unleashed to undertake inadequate clean-ups, who

would sue other PRPs in contribution. PRPs held liable in

such contribution actions would, in the view of petitioner

and the Solicitor General, apparently be subject to additional

liability as the government repairs the damage caused by

these inadequate voluntary clean-ups. Pet. Br. 34; SG Br.

28.

That view misunderstands the structure and operation of

CERCLA. First, as discussed above, in order to qualify as

recoverable damages in an action for contribution, the clean-

‘* Relegating contribution claims to state courts also shields from liability

the largest PRP — the federal government. Although CERCLA plainly

waived sovereign immunity for claims brought under its provisions, it

did not waive immunity for claims made against the United States under

state law. See Maine v. Department of Navy, 973 F.2d 1007, 1010, 1011

(Ist Cir. 1992) (Breyer, C.J.); O'Neal v. Department of the Army, 742

A.2d 1095 (Pa. 1999) (dismissing environmental claims against Army

because of sovereign immunity).

up costs must be substantially “consistent with the National

Contingency Plan.” See, e.g., Amoco Oil Co., 889 F.2d at

672. Because the NCP provides that response actions taken

by private parties must result in a “CERCLA-quality

cleanup,” 40 C.F.R. § 300.700(c)(3)(i), there is little risk that

an approved clean-up will require further government inter-

vention and hence impose additional liability on PRPs. See

supra at 15-16.

Second, even following a civil action or settlement with

the government, most PRPs remain liable for any additional

actions that might be necessary at the site. Section 122(f)(6)

of CERCLA provides for only a limited “covenant not to

sue” when the government settles with most PRPs,'® and the

government is required in most cases to reserve the nght to

undertake additional action for matters arising from new in-

formation.” Thus, despite the Solicitor General’s sugges-

tions to the contrary, SG Br. at 21, a lawsuit or settlement by

the government is not, in most cases, a dispositive determi-

nation of liability. Allowing contribution by private parties

who voluntarily or under government order incur damages

from a “CERCLA-quality cleanup” in a manner consistent

with the National Contingency Plan creates no greater risk of

subsequent federal action and multiple litigation.

'? A complete covenant not to sue is available only for a class of “de

minimis” settlements involving parties who contributed a small fraction

of hazardous substances at a site. See CERCLA § 122(g), 42 U.S.C.

§ 9622(g).

2° See CERCLA § 122(g)(6), 42 U.S.C. § 9622(g)(6).

tlw

B. Petitioner’s Position Is Contrary To Decades Of

Well-Established Federal Law And Would Un-

dermine The Expectations Of Businesses Across

The Country.

1. The decision below is the first by any federal court of

appeals expressly to address the question at issue: whether

the language of § 113(f)(1) precludes a PRP from bringing

an action for contribution in the absence of a civil action or

settlement.*' Since the Fifth Circuit’s en banc decision was

issued, virtually every federal court that has considered the

issue has agreed with the conclusion reached below. See

Western Properties Servs. Corp. v. Shell Oil Co., 358 F.3d

678, 684 (9th Cir. 2004) (agreeing with en banc decision be-

low); 1325 “G" Street Assocs., LP v. Rockwood Pigments

NA, Inc., 235 F. Supp. 2d 458 (D. Md. 2002) (same); Niag-

ara Mohawk Power Corp. v. Consolidated Rail Corp., 291 F.

Supp. 2d 105 (N.D.N.Y. 2003) (same). And prior to its re-

versal by the en banc court of appeals, the decision of the

Fifth Circuit panel in Avial/ was rejected by every district

court to consider the issue. See City of Waukesha v. Viacom,

Inc., 221 F. Supp. 2d 975 (E.D. Wis. 2002); Coastline Ter-

minals of Conn., Inc. v. USX Corp., 156 F. Supp. 2d 203 (D.

Conn. 2001).*

*! This absence of litigation is itself noteworthy to the court below. Sec-

tion 113(f) was adopted almost seventeen years ago; yet in all that time

no party seems to have deemed the issue in this case sufficiently cogent

to be raised to a court of appeals. With a nod to Conan Doyle, Judge

Jones noted: “Given the enormous monetary exposure and the volume of

ligation surrounding CERCLA mandates, one must assume that talented

attorneys have had sufficient incentive and opportunity to explore statu-

tory lacunae such as those created by a cramped reading of § 113(f)(1).

Yet all that existed before this case arose are isolated dicta. The absence

of direct precedent is like the dog that didn’t bark.” Pet. App. 29a. One

need not be Sherlock Holmes to appreciate that the absence of litigation

2. Although no court of appeals prior to this case had

been called upon to address directly whether a nght of con-

tribution exists in the absence of a federal civil action or set-

tlement, federal courts in the preceding seventeen years have

universally allowed claims for contnbution to be brought in

circumstances that would, on petitioner’s view, bar such

claims. The Fourth, Second, and Seventh Circuits have al-

lowed actions for contribution by PRPs following state-

ordered clean-ups, in the absence of any litigation or settle-

ment. See Crofton Ventures LP v. G&H P'ship, 258 F.3d

292 (4th Cir. 2001); Bedford Affiliates, 156 F.3d at 416;

PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610 (7th Cir.

1998).*° The Sixth Circuit has allowed a CERCLA contribu-

tion action to proceed following issuance of a federal admin-

reflects the common understanding that CERCLA authorizes a nght of

contribution by PRPs even in the absence of a civil action or settlement.

*> The only court to reach a contrary conclusion was the district court in

E. 1 Du Pont de Nemours & Co. v. United States, 297 F. Supp. 2d 740

(D.N.J. 2003). In Western Properties Service Corp. v. Shell Oil Co., 358

F. 3d 678 (9th Cir. 2004), the Ninth Circuit held that the plaintiff could

proceed because it had pleaded a cause of action under § 107 as well as

§ 113; because the source of the mght to contribution was § 107, the

plaintiff had, in effect, brought its claim for contribution “during” a civil

action under § 107. See 358 F.3d at 685. Though Western Properties

attempted to distinguish Aviall on its facts, the relevant facts are actually

the same here: as discussed earlier, supra n.4, Aviall has expressly

pleaded a combined cause of action brought under both sections 107 and

113. Thus, the holding of Western Properties is directly applicable to

this case.

° Rumpke of Ind. v. Cummins Engine Co., 107 F.3d 1235 (7th Cir. 1997),

contains ambiguous dicta that could be read as limiting a nght of contr-

bution under § 113(f) to situations in which a PRP sues “during or fol-

lowing” a federal “civil action.” That dicta, however, cannot be the law

of the Seventh Circuit following PMC. As noted above, the Seventh Cir-

cuit in PMC allowed a CERCLA contribution action to proceed follow-

ing a state, but not federal, enforcement order.

istrative order but prior to any federal “civil action” under

sections 106 or 107. See Centerior Serv. Co., 153 F.3d at

349. And the Ninth Circuit has allowed actions for contnbu-

tion following voluntary clean-ups. See Pinal Creek Group,

118 F.3d 1298. Indeed, even this Court, in Key Tronic, con-

sidered a § 107 cost-recovery claim by a PRP for costs out-

side the scope of a settlement — a claim that, by petitioner's

logic, could not be brought under CERCLA. Key Tronic,

511 U.S. at 1963.

This line of precedent is particularly telling because

§ 113 is often the sole basis for federal jurisdiction in what

would otherwise be state-law actions for contribution. To

the extent that jurisdiction rests on invocation of § 113, it

would have been incumbent on the courts themselves to con-

sider whether that section was applicable, regardless of

whether the issue was raised by litigants. The absence of

any decision holding that § 113 does not allow for contnbu-

tion absent a judgment or settlement is thus especially sig-

nificant.

3. The Environmental Protection Agency, the executive

agency with primary responsibility for the implementation of

CERCLA, has consistently supported the right of cost- re-

covery by private parties who, either voluntarily or following

government orders, clean up contaminated property. This

view is expressed in the National Contingency Plan, a set of

EPA regulations adopted through the notice and comment

procedures of the Administrative Procedure Act.

The NCP regulations specifically contemplate an action

for recovery by a PRP in the absence of a settlement or civil

action. Subpart H of the NCP defines the requirements that

apply to “activities by other persons.” This Subpart explic-

itly begins with the provision that “any person may under-

take a response action to reduce or eliminate a release of a

hazardous substance... .” 40 C.F.R. § 300.700(a). The

provisions of Subpart H then specifically address when, for

purposes of cost-recovery, private party actions will be con-

sidered “consistent with the NCP.” /d. § 300.700(c)(3). Ex-

pressly included are clean-ups by private parties undertaken

pursuant to an administrative order; such actions are per se

consistent with the NCP. /d. § 300.700(c)\(3)ii). The re-

maining complex provisions of Subpart H only apply to pri-

vate parties who clean up in the absence of a federal admin-

istrative order, settiement, or civil action. As noted above,

EPA considers such private party clean-ups to be appropriate

because these elements of the NCP ensure that such private

clean-ups are conducted properly. 50 Fed. Reg. 47,912,

47,934 (1985).

Under the construction of CERCLA adopted by the peti-

toner, however, responsible parties have no cause of action

under CERCLA at all in the absence of a federal settlement

or civil action. If that construction were correct, the provi-

sions of Subpart H would be rendered largely meaningless,

and the EPA’s clear and long-held understanding that PRPs

may, consistent with the NCP, recover costs when they un-

dertake clean-ups either voluntarily or in response to gov-

ernment orders would be rejected.

4. Since the passage of CERCLA, PRPs have relied on

their federal nght to recover clean-up costs from other PRPs

when buying contaminated property. See Brief for Lockheed

Martin as Amicus Cunae; Brief for Superfund Settlements

Project, et al. as Amicus Curiae. Without this right, many

properties would remain contaminated and unusable. Hence

a buyer’s ability to recover clean-up costs from others pro-

motes the marketability of contaminated property and fur-

thers the re-development of brownfields.

ll. IF THIS COURT ADOPTS PETITIONER'S

INTERPRETATION OF § 113, IT MUST REMAND

FOR CONSIDERATION OF AVIALL’S CLAIM

UNDER § 107.

Aviall has, as discussed above, brought this action jointly

under sections 107(a)4)(B) and 113(f). If, as petitioner ar-

gues, respondent's action is not governed by § 113, then this

Court should remand for consideration of Aviall’s remaining

claim under § 107(a)(4)(B).

1. Since the enactment of SARA in 1986, courts of ap-

peals have uniformly held that responsible PRPs seeking an

equitable allocation of costs with other PRPs must sue in

contribution under the provisions of § 113(f), rather than un-

der § 107. Limiting PRPs to claims in contnbution under

$ 113 ensured that an equitable allocation of costs could be

made among jointly liable parties and that the “contribution

protection” provisions of § 113(f)(2) could effectively pro-

tect settling parties. See supra at 5.

Petitioner, joined by the Solicitor General, now effec-

tively attacks that position, arguing that the basis for those

decisions — that a claim by one PRP against another is inher-

ently one for contribution, regardless of the existence of a

civil action or settlement — is incorrect. That position, if

adopted, necessarily reopens the possibility that a broad class

of PRPs have an independent claim for cost recovery under

§ 107. To be sure, petitioner and the Solicitor General reject

this conclusion, and argue that PRPs have no nght to recover

at all in the absence of a civil action or settlement. But they

cannot have it both ways. If an action by a PRP who seeks

recovery following a voluntary or government-ordered

clean-up is an action for “contribution” within the common

meaning of the term, then the action may and must be

brought under § 113. If not, then the uniform case law so

holding is invalidated, and there is nothing to stop such PRPs

from suing under § 107. Certainly, there is nothing in the

language or legislative history of SARA to even suggest that

Congress intended to severely restrict rights of cost recovery

under CERCLA by precluding suit under both § 113 and

§ 107.“

2. Petitioner's argument would thus create a different

allocation of claims by PRPs between § 113 and § 107.

PRPs who seek cost recovery “during or following” a “civil

action” or following an administrative or judicial settlement

can and must sue in contribution under § 113(f). All other

parties, including PRPs who seek cost recovery following a

** The Solicitor General argues that respondent is precluded from argu-

ing that § 107 provides an independent basis for recovery because re-

spondent brought this action jointly under sections 113 and 107, rather

than under § 107 alone. SG Br. at 21 n.10. But in fact, respondent has

asserted a claim under § 107, consistently maintaining that its action is

brought under both § 107 and § 113. That is because courts of appeals,

supported by the Department of Justice, have held that § 107 is the

source of a nght of cost recovery, including contribution, and § 113 op-

erates by providing the “mechanics” of contribution. See supra at p. 19.

If this Court were to hold that § 113 does not apply to this action, Avi-

all’s underlying claim under § 107 would still remain.

In any event, if the Court adopts petitioner's position in this case, fu-

ture PRPs will simply plead an exclusive cause of action under § 107,

and the Court will be obliged to address the issue of § 107’s application

at a later date. If, as the Solicitor General urges, a nuance of pleading

precludes the Court from addressing the fundamental relationship be-

tween sections 107 and 113, then perhaps this Court should wait to ad-

dress the matter until, in the view of the Solicitor General, it is presented

wiih a case that allows it to do so fully and efficiently, and dismiss the

grant of certiorari ‘n this case. That is especially true considering (1) the

absence of any split among the circuits on the issue of the scope of

§ 113(f), (2) the well-reasoned en banc decision of the Fifth Circuit, (3)

the unexplained reversal in position of the Department of Justice, and (4)

the existence of a well-established and properly working set of

a and expectations about the right of contribution under _

voluntary or government ordered clean-up, must sue exclu-

sively under § 107(a)(4)(B). This would be consistent with

petitioner's view of both the traditional common-law under-

standing of the term contribution and the statute of limita-

tions provisions of § 113(g). P

There is something to be said for this position, and if the

Court adopts it, Aviall will proceed accordingly in the court

below. But there 1s more to be said against petitioner’s posi-

tion. The courts of appeals have uniformly rejected it, in part

because a conclusion that some broad class of PRPs has an

independent cause of action under § 107(a)(4)(B) would

threaten the “contribution protection” provisions of

$ 113(f(2), and in part because a cause of action under

§ 107(a)(4)(B) would give PRPs an inappropnate nght to

recover all of their response costs from other PRPs without

regard to the equitable allocation available through contnbu-

tion.

This Court need not redefine the existing understanding

of the relationship between sections 113(f)(1) and

107(a)(4)(B). The existing case law is logical, coherent, and

consistent with the language and purpose of CERCLA.

** Some courts have been concerned by the possibility that PRPs, suing

exclusively under § 107(a)(4)(B), might be able to avoid the equitable

allocation of costs that exists in an action for contribution under § 11 3(f).

This concern may be misplaced. Defendants, faced with a claim under

§ 107(a4)(B), may plead a counterclaim for contribution under § 113(f)

“during” this civil action. Thus, a court, in one proceeding, could ad-

dress all issues relevant to an equitable allocation of costs. See Western

Props. Servs. Co., 358 F.3d at 658. Courts have avoided the complica-

tions arising from this approach by their universal holding that an action

by a PRP for cost recovery is a claim for contribution initially governed

by § 113(f). See Pinal Creek Group, 118 F.3d at 1303.

F.3d at 1121.

Quite simply, it works. The Court should resist the invita-

tion of the petitioner to disrupt the settled and effective struc-

ture of CERCLA.

CONCLUSION

For the foregoing reasons, the judgment should be af-

firmed.

Respectfully submitted,

RICHARD O. FAULK WALTER DELLINGER

(Counsel of Record) PAMELA HARRIS

CYNTHIA J. BISHOP O”’MELVENY & MYERS LLP

JEFFREY M. GABA 1625 Eye Street, N.W.

GARDERE WYNNE SEWELL LLP Washington, DC 20006

3000 Thanksgiving Tower (202) 383-5300

1601 Elm Street

Dallas, TX 75201-4761

(214) 999-3000

Counsel for Respondent

April 8, 2004

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CASE NO. 97-3163

CENTERIOR SERVICE COMPANY, GENERAL

ELECTRIC COMPANY, AND ASHLAND OIL,

INCORPORATED

Plaintiffs-Appellants,

Vv.

ACME SCRAP IRON & METAL CORPORATION, et al.,

Defendant-Appellees.

On Interlocutory Appeal from the United States District

Court

for the Northern District of Ohio, Eastern Division

PROOF BRIEF OF DEFENDANTS-APPELLEES SECRETARY

OF DEFENSE, SECRETARY OF

VETERANS AFFAIRS, AND ADMINISTRATOR OF NATIONAL

AERONAUTICS

AND SPACE ADMINISTRATION.

Lois Schiffer

Assistant Attorney General

David Shilton

Mark Nitczynski

Jeremy Heep

Attorneys U.S. Department of

Justice

Environment and Natural Resource

950 Pennsylvania Ave.. N.W.

Attomeys for Defendants-Appellees

STATEMENT OF JURISDICTION

The district court had jurisdiction under the

Comprehensive Environmental Response. Compensation,

and Liability Act (“CERCLA”) § 113(b). 42 U.S.C. §

9613(b). This Court has jurisdiction over the appeal pursuant

to its order of February 13, 1997 granting appellant’s petition

pursuant to 28 U.S.C. § 1292(b).

STATEMENT OF THE ISSUE

Whether the district court correctly ruled that a private

responsible parry that has conducted an emergency

hazardous waste cleanup pursuant to a CERCLA § 106

Administrative Order cannot bring a cost recovery claim

alleging joint and several liability under CERCLA § 107(a).

STATEMENT OF THE CASE

1. Statutory Background. CERCLA, 42 U.S.C. § 9601

et seg., was enacted in 1980 to address the vast problems

associated with hazardous waste disposal sites. The statute

was reauthorized and amended in 1986 by the Superfund

Amendments and Reauthorization Act of 1986 (“SARA”),

Pub. L. No. 99-499, 100 Stat. 1613 (Oct- 17. 1986).

CERCLA provides the Environmental Protection Agency

(“EPA”) with two alternate methods for achieving cleanup of

hazardous waste sites. First, under Section 104, EPA can

itself undertake “response” (i.e., cleanup) actions’ to clean up

' Response actions include “removal” actions and “remedial

actions.” 42 U.S.C. § 9601(23), (24), (25). Remedial

actions are those “consistent with permanent remedy” and are

designed to prevent or mitigate danger to present and future

public health and the environment. 42 U.S.C. § 9601(24).

Removal actions are those actions taken to prevent or

mitigate damage from the release of hazardous substances to

public health or the environment, 42 U.S.C. § 9601(23).

a site, using the Hazardous Substances Superfund (the

“Superfund’’). 42 U.S.C. § 96004. In such cases, EPA can

recover its response costs, defined under CERCLA §

107(a)(4)(A), 42 U.S.C. § 9607(a)(4)(A), from responsible

parties. Alternatively, under Section 106(a), EPA can seek to

require the private parties to undertake response actions,

either by issuing an administrative order requiring cleanup or

by seeking judicial injunctive relief. 42 U.S.C. § 9606(a).

When EPA incurs costs for response actions, those costs

can be recovered froth liable parties as defined under

CERCLA § 107(a), through an action under CERCLA §

107(a)(4)(A). 42 US.C. § 9607(a)(4)(A). In such a “cost

recovery” action, the government” is entitled to recover all

costs incurred that arc “not inconsistent with the national

contingency plan.” (“NCP”) the EPA regulation

promuigated pursuant to Section 105 of CERCLA at 40

C.F.R. Part 300.

CERCLA also authorizes private parties to bring an

action to recover response costs which they incur at a site

voluntarily or under compulsion by the government. Section

107(a)(4)(B) provides a claim for relief for “any other

necessary costs of response. incurred by any other person

consistent with the national contingency plan.” 42 U.S.C. §

9607(a)(4)(B) (emphasis added).

The liability of the responsible parties listed under

Section 107(a) is strict, subject only to a few limited defenses

specified in Section 107(b). United States v. R.W. Meyer,

Inc., 889 F.2d 1497, 1507 (6th Cir. 1989); United States v

Northeastern Pharmaceutical & Chemical Co., Inc., 810

F.2d 726, 743 (8 Cir. 1986); New York v. Shore Realty

? CERCLA § 107(a)(4)(A) applies to all actions for response

costs brought by “the United States Government or a State or

an Indian tribe.” CERCLA § 107(a)(4)(A).

Corp., 759 F.2d 1032, 1042 (1” Cir. 1985). Although not

expressly provided for in the statute, where the government is

the, plaintiff. lability under CERCLA § 107 is joint and

several except to the extent that defendants can establish that

the harm is divisible. Meyer, 889 F.2d at 1507 (citing United

States v. Chem Dyne Corp., 572 F. Supp. 802. 810 (S.D.

Ohio 1983)); County Line Investment Co. v. Tinney, 933 F.2d

1508, 1515 (10th Cir. 1991); O'Neil v. Picillo, 883 F.2d 176

(1* Cir. 1989), cert. denied sub nom American Cyanamid Co.

v. O'Neil, 493 U.S. 1071 (1990); United States v. Monsanto

Co., 858 F.2d 160 (4N Cir. 1988), cert denied, 490 U.S. 1106

(1989).

Before CERCLA was amended in 1986, the right of

responsible parties to seek contribution from other

responsible parties was disputed. See City of New York v.

Exxon Corp., 633 F. Supp. 609, 615 (S.D.N.Y. 1986); United

States v. New Castle County, 642 F. Supp. 1258, 1269 (D.

Del. 1986); Colorado v. Asarco Inc., 608 F. Supp. 1484,

1490 (D. Colo. 1985); Jones v. Inmont Corp., 584 F. Supp.

1425, 1428 (S.D. Ohio 1984); United States v. Ward, 14

Envtl. L. Rep. (Envtl. L. Inst.) 20,804, 20,806 (E.D.N.C.

1984); City Philadelphia v. Stepan Chemical Co., 544 F.

Supp. 1135, 1140 (E.D. Pa. 1982). This made potentially

responsible parties (“PRPs”) reluctant to clean up CERCLA

sites voluntarily, when not all PRPs would agree to

participate and pay their fair share of the cleanup costs.

When CERCLA was amended in 1986, Congress added

specific provisions to assure that PRPs who paid more than

their fair share of liability would have an opportunity to seek

contribution from other PRPS so as to encourage PRPs to

settle with the government. The provision confirming the

existence of contribution rights is CERCLA § 113(f)(1),

which provides:

Any person may seek contribution from any other

person who is liable or potentially liable under

section [107]... . Such claims shall be brought in

accordance with this section and the Federal Rules

of Civil Procedure, and shall be governed by

Federal law. In resolving contribution claims, the

court may allocate response costs among liable

parties using such equitable factors as the court

determines are appropriate. 42 U.S.C. § 9613(f)(1)

(emphasis added). The key provision added to

encourage settlements with the government is

CERCLA § 113(f)(2), which provides contribution

protection to PRPs who settle with the government,

as follows:

A party who has resolved its liability to the United

States or a State in an administrative or judicially

approved settlement shall not be liable for claims far

contribution regarding matters addressed in the

settlement. Such settlement does not discharge any

of the other potentially liable parties unless its terms

so provide, but it reduces the potential liability of

the others by the amount of the settlement.

42 U.S.C. § 9613(£)(2).

2. Factual Background. On October 5, 1990, EPA

issued a unilateral Administrative Order pursuant to

CERCLA § 106(a), requiring that Centerior Service

Company, General Electric Company (“GE”) and Ashland

Oil, Inc. (hereinafter “plaintiffs”) undertake and complete an

emergency cleanup to abate an endangerment to public health

and the environment at the Huth Oil Site. Memorandum at

3.2 The Administrative Order was based upon EPA’s

> Citations to the district court’s Memorandum of Opinion

and Order will be “Memorandum,” which is set forth in the

investigation of the site that resulted in a determination that

plaintiffs were responsible under CERCLA § 107(a) for

contamination of the site.* Jd. Specifically, EPA determined

that Ashland Oil was an owner-operator of the site and that

Centerior and GE arranged for disposal of hazardous

substances at the site. /d. Plaintiffs have not contested their

. liability and have not sought reimbursement from the

government. Br. at 5. Plaintiffs allege that they have

incurred over $10 million in cleanup costs pursuant to the

Administrative Order. Br. at 5. Plaintiffs, who did not plead

and have never claimed to be innocent parties, filed this

action solely under CERCLA § 107, alleging that defendants°

are jointly and severally liable to them for all of their costs

incurred while cleaning up the site.

3. Course of Proceedings. In these consolidated cases,

plaintiffs assert a single claim for relief: that under CERCLA

§ 107(a) defendants are jointly and severally liable for

response costs that plaintiffs allegedly incurred in conducting

appendix (R.983: Memorandum, Apx. at pp. XXX).

Citations to the plaintiffs’ opening brief in this appeal will be

to “Br.”

* Here, FPA based its Order upon its investigation and

findings that plaintiffs were liable parties within the meaning

of CERCLA (R, 983: Memorandum at 3, Apx. at pp.XXX;

R.1008, Ex.A: Defendants’ Motion for Summary Judgment,

Exhibit A (EPA Administrative Order) at 4, Apx, at

pp.XXX). Parties are liable under CERCLA § 107(a) based

on a four part test: (1) the site in question is a “facility” as

defined by CERCLA; (2) the Defendant is a “responsible

person” for the spill as defined by CERCLA; (3) there was a

release of hazardous substances; and (4) such release caused

the Plaintiff to incur response costs.

> The numerous defendants in this action include private

parties and government agencies.

a removal action at the Huth Oil site. On September 13,

1996, the district court, in response to a series of pending

motions® held that plaintiffs, as potentially responsible

parties, could not assert a CERCLA § 107 claim alleging

joint and several liability, but instead were limited to a

contribution action under CERCLA § 113. Memorandum at

23. Accordingly, the court ruled that it would interpret the

complaints as asserting contribution claims under CERCLA

§ 113. Jd. In reaching this decision, the district court

recognized that “the Sixth Circuit has not yet spoken on the

issue at hand,” id. at 8, and noted that “[t]he majority of

district courts have followed the Circuit Courts’ opinions and

held that PRPs were limited to recovery under Section 113.”

Id. at 14 (citing cases). The court reasoned that any other

interpretation would render CERCLA § 113 “superfluous,”

id. at 20, that the legislative history made clear that CERCLA

§ 113 was intended to “clarify and confirm” the common

law, and that allowing Section 107 joint and several liability

claims by PRPs would create inequitable results. Jd. at 22.

On December 3, 1996, the district court certified its order

for appeal (R.1043: Order at 1, Apx, at pp. XXX). On

February 13, 1997, this Court granted Plaintiffs’ Petition for

Permission to Appeal.

STANDARD OF REVIEW

This case presents a question of statutory interpretation

and therefore a question of law. Accordingly, this Court

reviews the question of whether the plaintiffs may bring a

joint and several liability cost recovery action under

CERCLA § 107(x) de novo. United States v. Malcuit, 104

° See Memorandum at 4, n. 2 for a list of ten motions, before

the district court. That address the issue of whether plaintiffs

are restricted to bringing a contribution action under

CERCLA § 113.

F.3d 880, 884 (6" Cir. 1997).

SUMMARY OF ARGUMENT

This appeal concerns the nature of the action available to

a potentially responsible party that has incurred CERCLA

response costs pursuant to an uncontested CERCLA § 106(a)

Administrative Order. The district court correctly held that

such parties are limited to an action for contribution

governed by CERCLA § 113 and may not bring a separate

and independent cost recovery action under CERCLA § 107

alleging that other parties are jointly and severally liable.

Every circuit court deciding this issue has held that

CERCLA suits among PRPs are in the nature of an action for

contnbution, regardless of how the action is labeled. That

plaintiffs have not formally admitted liability or otherwise

been adjudicated liable does not alter the conclusion that

plaintiffs are limited to a contribution action. While it is true

that the statute provides that “any person” can bring a

CERCLA § 107(a) claim, Congress clearly left the scope of

liability to be determined in accordance with principles of the

common law. According to the common law, an action by a

liable party is an action in contnbution, for which liability is

several only. CERCLA specifically provides that actions in

contnbution “should be brought in accordance with

[CERCLA § 113(1)(1)].” The plain language of the statute,

its legislative history and the case law all indicate that while

actions by PRPs arse under CERCLA § 107, they are

governed by CERCLA § 113 and the law of contribution.

Conversely, the only private patties who are entitled to

joint and several liability are wholly innocent, injured parties.

Plaintiffs have not plead, and could not prove, that they are

innocent parties. Plaintiffs’ suggestion that this Court create

novel exceptions for “working PRPs” or recipients of

CERCLA § 106 Orders is wholly inconsistent with the law

and would lead to the absurd result of allowing liable patties

to proceed on a joint and several liability basis and thus shift

the entire cost of cleanup to other responsible parties.

Apart from the legal principles, policy concerns strongly

counsel against allowing liable parties, including those

conducting cleanups pursuant to § 106 Orders, to employ the

doctrine of joint and several liability. Allowing liable parties

to bring joint and several cost recovery actions under

CERCLA § 107 promotes inefficiency, ancillary litigation

and unfairness. Indeed, such a result would eliminate the

finality Congress intended CERCLA § I 13(f)(2) to bring to

the CERCLA settlement process and therefore defeat the

Statutory intent of encouraging set‘iement. In contrast,

limiting private parties to actions in contribution encourages

settlement and discourages litigation abuses without

significantly adding new burdens or unfairly allocating

orphan shares to those who voluntarily undertake cleanups.

Moreover, potentially liable parties already have incentives

to conduct voluntary cleanups: they are less expensive,

involve less government control and may result in fair share

allocations through CERCLA § 113 contribution actions.

ARGUMENT

I. THE COURTS OF APPEALS HAVE CLEARLY

ESTABLISHED THAT CLAIMS BETWEEN

PRPS SOUND EXCLUSIVELY IN

- CONTRIBUTION

The district court concluded that the plaintiffs, as

potentially responsible parties, may not assert a

non-contribution cost recovery action under CERCLA §

107(a), but instead are limited to bringing a contribution

action under CERCLA § 113(f). All of the circuit courts that

have addressed this issue have held that whatever label is

applied, liable plaintiffs are entitled only to contribution, i.e.,

“to recover from another responsible party that portion of its

costs that are in excess of their pro rata share of aggregate

10A

response costs.” United Technologies Corp. v. Browning-

Ferris Indus., 33 F.3d 96, 103 (1% Cir. 1994), cert, denied,

115 S. Ct. 1176 (1995); Rumpke of Indiana, Inc. v. Cummins

Engine Co., Inc., 107 F.3d 1235, 1241 (7" Cir. 1997);

Redwing Carriers Inc. v. Saraland Apartments, 94 F. 3d

1489, 1496 (11™ Cir. 1996); United States v Colorado &

Eastern R.R Co. v Farmland Indus., Inc., 50 F.3d 1530,

1534-36 (10 Cir.,1995) (“CERC II’); Akzo Coatings. Inc. v.

Aigner Corp., 30 F.3d 761, 764 (7’s Cir. 1994); In re Dant &

Russell, Inc., 951 F.2d 246, 249 (9" Cir. 1991); Amoco Oil

Co. v. Borden, Inc., 889 F.2d 664, 672 (51" Cir. 1989) See

also Bancamerica Commercial Corp. v. Mosher Steel, 100

F.3d_792, 800 (10 Cir. 1996); Control Data Corp., v.

S.C.S.C., Corp., 53 F.3d 930, 935 (8" Cir. 1995); Smith Land

& Improvement Corp. v. Celotex Corp., 851 F.2d 86, 88-89

(3d Cir. 1988), cert. denied, 488 U.S. 1029 (1989).’

7 Plaintiffs’ assertion that Amcast Indus. Corp. v. Detrex

Corp., 2 F.3d 746 (7" Cir. 1993) “explained the relationship

between the plaintiffs CERCLA § 107 ciaim and the

CERCLA § 113 contribution counterclaim” is misleading.

Br. at 18; Br. at 14 n. 10. Akzo Coatings, Inc. v. Aigner

Corp., 30 F.3d 761 (7 Cir. 1994), has been widely

recognized as the prevailing authority in the Seventh Circuit.

Browning-Ferris, 33 F.3d at 101; U.S. v. Bay Battery, 895 F.

Supp. 1524, 1533 n.7 (N.D. Fla. 1995) (describing as

“dubious authority”). See also Borough of Sayreville v.

Union Carbide Corp., 923 F. Supp. 671, 677 (D. N.J. 1996);

In re Eagle-Picher Indus. Inc., 197 B.R. 260, 275 (S.D. Ohio

1996); Plaskon Electronic Materials, Inc. v. Allied-Signal,

Inc., 904 F. Supp. 644, 651 (N.D. Ohio 1995). Even courts

adopting the conclusion that liable parties may bring

CERCLA § 107 actions alleging joint and several liability

recognize that Akzo controls in the Seventh Circuit.

Adhesives, Research Inc. v. American Inks & Coatings Corp.,

Courts have consistently recognized that in enacting

CERCLA § 113(1), “Congress used the word ‘contribution’

in the conventional sense, and fully intended courts to give

the word its customary meaning.” Browning Ferris Indus.,

33 F.3d at 101. The conclusion of all of the above-cited

circuit court opinions is in accord with general tort principles

which hold that a claim for contribution is a claim in which

one liable party seeks to recover from another liable party for

the latter’s share of a common liability. See, e.g., Northwest

Airlines, Inc. v Transport Workers Union, 451 U.S. 77, 87-88

(1981); Jn re “Agent Orange” Prod Liab. Litig., 818 F.2d

204, 207 (2d Cir. 1987); Restatement (Second) of Torts §

886A (1979): Uniform Contribution Among Tortfeasors Act

(1955) (“UCATA”) §§ 1, l(a), 12 U.L.A. 63 (1975);

Uniform Comparative Fault Act (1977) (“UCFA”), § 4(a), 12

U.L.A. 42 (Supp, 1994).* See also Black’s Law Dictionary

399 (6 ed. 1990) (contribution defined as the “[r]ight of one

who has discharged a common liability to recover of another

also liable, the aliquot portion which be ought to pay or

bear’).

931 F. Supp. 1231, 1239 (M.D. Pa.1996); Laidlaw Waste

Systems, Inc. v. Mallinckrodt, Inc., 925 F: Supp. 624, 631

(E.D. Missouri 1996). To the extent there was ever any

doubt regarding whether Amcast or Akzo controlled in the

Seventh Circuit, the issue was resolved in

Indiana, Inc. Cummins Engine, 107 F.3d 1235, 1241 (7" Cir.

1997) (holding liable parties are limited to actions in

contribution).

8 The provisions of CERCLA regarding contribution claims

were modeled on such principles, in particular UCFA.

United Sates v. Cannons Eng'g Corp., 720 F. Supp. 1027,

1048 (D. Mass. 1989), aff'd, 899 F.2d 79 (1" Cir. 1990);

United States v. Bay Area Battery, 895 F. Supp. 1524, 1533

(D. Fla. 1995).

12A

Plaintiffs acknowledge this line of authority, but have

asserted that Velsicol Chemical Corp. v. Enenco, Inc., 9 F.3d

524 (6w Cir. 1993), and Key Tronic Corp. v. United States,

114 S. Ct. 1960 (1994), support their contention that liable

parties may bring a non-contribution action under CERCLA

§ 107(a). Br. at 30-32. They are wrong. In Velsicol, the

issue of whether a liable party could bring a CERCLA § 107

action alleging joint and several liability was not presented

to, or addressed by, this Court.’ Other circuit courts deciding

this issue since Velsicol do not even mention Velsicol. See,

e.g., Rumpke, 107 F.3d at 1240 (stating “The other courts of

appeals that have considered the problem have agreed with

our conclusion that claims properly characterized as

contribution may normally be brought only under CERCLA

§ 11,3(f)"); Redwing Carriers, 94 F.3d at 1496 (deciding that

liable parties limited to actions in contribution without citing

to Velsicoll), CERC II, 50 F.3d at 1534-36 (same);

Browning-Ferris, 33 F.3d at 103 (same); Akzo, 30 F.3d at

764 (same).

District courts in this Circuit agree. Jn re Eagle-Picher

Industries, Inc., 197 B.R. 260, 276 (S.D. Ohio 1996) (stating

“in Velsicol, the question . . . simply was not presented to the

Sixth Circuit”); Darton Corp. v. Uniroyal Chemical Co., 917

F. Supp. 1173 (N.D. Ohio 1996) (limiting liable parties to

contribution actions without citing Velsicoll; Plaskon

Electronic Materials, Inc. v. Allied-Signal, Inc., 904 F. Supp.

644 (N.D. Ohio 1995) (same). Even district courts deciding

the other way have recognized that “Velsicol did not address

* Rather, the Court addressed the issues of whether “the

Statute of limitations for a response cost recovery claim under

CERCLA § 107, 42 US.C. § 9607 . . . should be

retroactively applied to an accrued-but-not-yet-filed claim

and whether the equitable, defense of lathes is available for a

section 107 claim.” Velsicol, 9 F.3d at 526.

13A

the issue directly.” Charter Township of Oshtemo v.

American Cyanamid Co., 910 F. Supp. 332, 336 (W.D. Mi.

1995); Barmet Aluminum Corp. v. Doug Brantley & Sons,

Inc., 914 F. Supp. 159, 161 (W.D. Ky. 1995) (recognizing

that the “Sixth Circuit has not addressed this issue”). See

generally Boyce v. Bumb, 944 F. Supp. 807, 809 (N.D. Ca.

1996) (surveying relevant case law); Steams & Foster

Bedding v. Franklin Holding Corp., 947 F. Supp 790, 798-9

(D. N.J. 1996) (same); Plaskon, 904 F. Supp. at 651-2

(same); Gould Inc, v A & M Battery and Tire Service, 901 F.

Supp. 906, 912-13 (M.D. Pa. 1995) (same).

Nor was the issue presented to the Supreme Court in Key

Tronic,‘ which concerned the recoverability of attorneys’

fees under CERCLA § 107(a)(4)(B). Key Tronic, 114 S. Ct.

at 1963. However, Key Tronic contains dictum that sheds

light on the issue before this Court. In reviewing pre-SARA

'° The circuit courts have not relied on Key Tronic in

concluding that liable parties are limited to actions in

contribution. Rumpke, 107 F.3d at 1242; Redwing Carriers,

94 F.3d at 1496; Control Data Corp., 53 F.3d at 936; CERC

II, 50 F.3d at 1534-36; Browning-Ferris, 33 F.3d .:at 103;

Akzo, 30 F.3d at 764. See also, Stearns & Foster Bedding

Co. v. Franklin Holding Corp., 947 F. Supp. 790, 799 (D.

N.J. 1996) (stating “it was not the Supreme Court’s intention

in Key Tronic to comment on the viability of a PRP’s action

under CERCLA § 107); Gould Inc. v. A & M Battery and

Tire Service, 901 F. Supp. 906 (M.D. Pa. 1995); New Castle

County v. Halliburton NUS Corp., 903 F. Supp. 771 (D. Del.

1995); Plaskon Electronic Materials. Inc- v Allied-Si agn-1

Inc-, 904 F. Supp. 644 (N.D. Ohio 1995)). Even Oshtemo

recognizes that Key Tronic “did not address the issue of

whether a private company’s cost recovery claim under

section 107 should be considered or limited to a contribution

claim under section 113(f).” Oshtemo, 910 F. Supp. at 336.

14A

interpretations of CERCLA, the Key Tronic Court stated that,

to the extent district courts prior to SARA interpreted

CERCLA as providing a private right of action, such an

action was for contribution:

In its original form CERCLA contained no express

provision authonzing a private party that had

incurred cleanup costs to seek contribution from

other potentially responsible parties. In numerous

cases, however, district courts interpreted the statute

particularly the §107 provisions outlining the

liabilities and defenses of persons against whom the

Government may assert claims-to impliedly

authorize such a cause of action.

The “1986 SARA amendments included a

provision-CERCLA § 113(f) that expressly created

a cause of action for contribution .... Thus the statute

now expressly authorizes a cause of action for

contribution in § 113 and impliedly authorizes a

similar and somewhat overlapping remedy in § 107.

Id., at 1965 (footnote omitted) (emphasis added). In referring

to the similarity and overlap between CERCLA §§ 107 and

113, the Key Tronic Court indicated that both provisions

authorize responsible parties to bring contribution claims.''

Nothing in Key Tronic suggests that such parties previously

had a nght to bring CERCLA § 107 actions to impose joint

and several liability. See also Key Tronic, 114 S. Ct. at 1966

‘| See infra, part IIA (explaining that a contribution act(on

arises under CERCLA § 107 but is governed by CERCLA §

113). Plaintiffs’ citation to Kev Tronic for the proposition

that “§ 107 unquestionably provides a cause of action for

private parties to seek recovery of cleanup costs,” Br, at 32

omits the explanatory footnote that such action lies in

contnbution. Key Tronic, 114 S. Ct. at 1966.

ISA

n.11 (reiterating that the implied private right of action in

CERCLA § 107 was for contribution).

The fact that plaintiffs are undisputed PRPs, but have not

formally admitted liability or otherwise been adjudicated

liable, does not remove this action from the confines of

contribution. For example, in CER II, the Tenth Circuit,

relying on the Restatement (Second) of Torts stated, “There

is no disagreement that both parties are PRPs by virtue of

their past or present ownership of the site; therefore, any

claim that would reapportion costs between these parties is

the quintessential claim for contribution.” 50 F.3d at 1535.

(emphasis added). See also, Rumpke, 107 F.3d at 1241 (PRP

who cannot plead innocence limited to contribution claim);

Redwing Carriers, 94 F.3d at 1513 (“Parties who are not

themselves liable or potentially liable for response costs

under § 107(a) of CERCLA can bring a cost recovery action

directly under § 107(a) . . . .”); Akzo Coatings, Inc., 30 F.2d

at 763-64 (PRP cleaning. up site pursuant to consent decree

limited to contribution claim).

District courts agree. See Stearns & Foster Bedding Co.

v. Franklin Holding Corp., 947.F. Supp. 790, 800 (D. N.J.

1996) (non-innocent party cleaning up pursuant to a consent

order may not proceed with an action solely under CERCLA

§ 107(a)); Sun Co., Inc, v. Browning-Ferris, Inc., 919 F.

Supp. 1523, 1530 (N.D. Ok. 1996) (PRPs cleaning up

pursuant to EPA § 106 Order limited to action in

contribution); Town of New Windsor v. Tesa Tuck, Inc., 919

F. Supp. 662, 679-81 (S.D. N.Y. 1996) (PRP cleaning up site

pursuant to a consent order limited to contribution claim);

Plaskon, 904 F. Supp. at 652 (“Whether it admits 107(a)

Liability is irrelevant; as the current owner, [plaintiff] is a

PRP pursuant to § 107(a)(1)); Darton, 904 F. Supp at 652

(“whether it admits § 107(x) liability is irrelevant”); Ekotek

Site PRP Comm: v Self, 881 F. Supp. 1516, 1521 (D. Utah

1995) (It is “the plaintiff's status as a 13 PR P, and not the

16A

degree of voluntariness with which it initiated cleanup

activity or the settling status of other PRPs, which is

controlling ... .”); United States v. Bay Area Battery, 895 F.

Supp. 1524, 153 (D. Fla. 1995)(cleaning up site pursuant to

consent decree limited plaintiffs to a contribution action);

Kaufman & Broad-South Bay v. Unisys Cam., 868 F. Supp.

1212, 1214-15 (N.D. Cal. 1994)PRP who cannot

demonstrate innocence limited to contribution action);

Ciba-Geigy Corp. v. Sandoz Ltd., No. 92-491, 1993 WL

668325, *5 (D. N.J. 1993)(reasoning that there would have

been no need for CERCLA § 113 if PRPs could already

recover full response costs under CERCLA § 107);

Transtech Indus., Inc. v. A & Z Septic Clean, 798 F. Supp.

1079, 1086 (D. N.J. 1992)(“‘Absent a statutory provision to

the contrary, a claim against one liable party by a party who

voluntary [sic] agreed to perform certain actions pursuant to

a settlement agreement is still a claim for contribution.”),

appeal dismissed, 5 F.3d 51 (3d Cit. 1993), cent, denied, 114

S. Ct. 2692; Avnet, Inc. v. Allied-Signal, Inc., 825 F. Supp

1132, 1138 (D. R.I. 1992)(““Under CERCLA, when one PRP

sues another to recover a share of the response costs incurred

by the first, that suit is a claim for contribution. “).

Il. ONLY INNOCENT INJURED PARTIES MAY

CLAIM THE BENEFITS OF JOINT AND

SEVERAL LIABILITY

A. CERCLA Sections 1¢*7(a) and 113(f) Do Not

Provide Separate Causes of Action for a PRP

Seeking Cost Recovery.

In this action, the other defendants, the plaintiffs and the

district court are of the-view that CERCLA §§ 107(a) and

113(f) provide separate and distinct causes of action, and that

a claim for contribution is based exclusively upon CERCLA

§ 113(f). The United States believes, however, that actions

that sound in contnbution must be brought pursuant to

17A

CERCLA § 107(a) as governed by CERCLA § 113(f).'? The

statute and its legislative history, case law, common law and

public policy support this position that an action in

contribution must also be brought in the context of a

CERCLA § 107 action.

This view, is supported by the plain language of the

Statute:

Any person may seek contribution from any other

person who is liable or potentially liable under

section f 1971(a) of this title.

42 U.S.C. § 9613(f)(1)(emphasis added).'? Only CERCLA §

107 provides the basis and the elements of a claim for

recovery of “necessary costs of response,” and lists the

parties who are liable. 42 U.S.C. § 9607(a). Similarly,

CERCLA § 107(b), 42 U.S.C. § 9607(b), provides the only

defenses to liability.

The view that CERCLA § 113 applies to claims asserted

under CERCLA § 107 is also supported by the legislative

history of SARA, the law that added CERCLA § 113(f) to

'? It is for this reason that the United States has elected to file

its own brief.

'> §.gg g]w other provisions of CERCLA § 113 that apply to

to claims asserted under CERCLA § 107, gX,, the

jurisdiction provisions of CERCLA §§ 113(a) and (b), and

the statute of limitations in CERCLA § 113(g), 42 U.S.C,§§

9613(a), (b) and (g). As the House Judiciary Committee

explained, CERCLA § 113 generally is the repository of “a

number of administrative or judicial procedures applicable to

Superfund decision-making and litigation” and therefore was

considered an appropriate provision in which to “clarify the

availability of judicial review regarding contribution claims.”

H.R. Rep. No. 253, 99°“ Cong., Ist Sess., pt. 3 at 18-19

(1985).

18A

the statute. CERCLA § 113(f) was added by SARA to the

statute for the express purpose of clarifying that liable parties

could seek relief from each other under CERCLA 8 107.

See, H.R. Rep. No. 253, 99” Cong., Ist Sess., pt, 3 at 18-19

(1985), reprinted in 1986 U.S. Code Cong. and Admin.

News 3041-3043 (CERCLA § 113(f) “clarifies the

availability of judicial review regarding contribution claims

and settlements”)(emphasis added); S. Rep. No. 11, gg"

Cong., Ist Sess. 43 (1985xthe bill “clarifies and confirms

existing law” by adding a contribution provision)(emphasis

added); 131 Cong. Rec. 24450 (1985) (statement of Sen.

Stafford, the sponsor of §$.51)'* (amendment of the statute

would “remove any doubt as to the right of contribution ...

despite several recent district court cases correctly

confirming that we intended the law to confer such a

nght”)(emphasis added). Clarification was needed because

judicial decisions prior to SARA reached inconsistent rulings

on whether liable parties could sue each other under

CERCLA § 107.'°

'* §.51 and H.R. 2817 were the Senate and House bills,

respectively, that were reconciled by a Conference

Committee of the House and Senate and ultimately became

SARA. S.51 had originally placed the contribution provisions

within CERCLA § 107. See S.51, 99°“ Cong., Ist Sess.,131

Cong. Rec. 24450 (1985). The provision was ultimately

enacted in CERCLA § 113 because that is where it was in the

House bill that became SARA. See H.R. 2817, 99" Cong.,

Ist Sess., 131 Cong. Rec. 34645 (1985).

'° See, e.g., City of New York v. Exxon, 633 F. Supp. 609, 615

(S.D. N.Y. 1986), United States v. New Castle County, 642

F. Supp. 1258, 1269 (D. Del. 1986), State of Colorado v.

Asarco. Inc., 608 F. Supp. 1484, 1490 (D. Colo. 1985), Jones

v. Inmont, 584 F. Supp. 1425, 1428 (S.D. Ohio 1984), United

State v. Ward, 14 Envtl. L. Rep. 20,804, 20,806 (E.D. N.C.

19A

Thus, Congress was clear that in enacting CERCLA §

113(f) it was only confirming and clarifying an existing

cause of action for contribution under CERCLA § 107.

Congress did not indicate in any way in the statute or in the

legislative history that CERCLA § 113(f) was intended to be

entirely separate and distinct from the CERCLA § 107 cost

recovery, action. County Line Investment Company, 933

F.2d at 1516-17 (“section 107(a) must be the source of any

night to contribution”).

In Dant & Russell, the Ninth Circuit specifically held that

CERCLA § 113(f) applied to a CERCLA § 107(a) cost

recovery action that sounded in contribution. 951 F.2d at

249. In Control Data Corp., the Eighth Circuit explained

this principle in the context of private party actions:

Under CERCLA, if a responsible party, as defined

by subsections (1) through(4), releases hazardous

materials into the environment, and that release

‘causes the incurrence of response costs,’ then the

party is liable. 42 U.S.C. § 9607(a). The question

then becomes, liable: for what? CERCLA’s answer

is that the party is liable .for ‘any other necessary

cost of response incurred by any other person

consistent with the national contingency plan.’ 42

U.S.C. § 9607(a)(4)(B) (emphasis added). Thus a

plain reading of the statute leads us to the

conclusion that once a party is liable, it is liable for

its share, as determined by Section 9613(f), of ‘any’

and all response costs, not just those costs ‘caused’

by its release.

53 F.3d at 936. (footnote omitted). Accord, County Line

Investment Company v. Tinney, 933 F.2d 1508, 1516-17 (10"

1984), City of Philadelphia v. Stephan Chemical Co., 544 F.

Supp. 1135., 1140 (E.D. Pa. 1982).

20A

Cir. 1991) (CERCLA § 113 should not be read in isolation

from CERCLA § 107; contribution claims pleaded under

CERCLA § 113(f)(1) held subject to the requirement of

CERCLA § 107 that costs sought to be recovered be

“consistent with the National Contingency Plan”). See also

Bancamerica, 100 F.3d 792 (where court similarly held that

plaintiffs who sued for contribution under CERCLA § 113(f)

were entitled to prejudgment interest as provided in

CERCLA § X07(a)); Smith Land & Improvement Corp. v.

Celotex Corp., 851 F.2d 86 (3d Cir. 1988), cert. denied, 488

U.S. 1029 (1988) (explaining that defenses under CERCLA §

107 apply to contribution actions).

Many district courts agree that CERCLA §§ 107(a) and

113(f) must be read together. Zown of New Windsor v. Tesa

Tuck, Inc., 919 F. Supp. 662, 681 (S.D. N.Y. 1996) (“Section

107(a)(4)(B) must be read in conjunction with other sections

of CERCLA, namely,§ 113(f) and its legislative history”).

E.g., Reynolds Metals Co. v. Arkansas: Power & Light Co.,

920 F. Supp. 991, 995 (E.D. Ark. 1996) (“[W]hile the PRP’s

liability will initially be predicated upon § 107(a) . . its

ultimate liability . . . will be limited by the equitable share

requirement of § 113(f)”); Bay Area Battery, 895 F. Supp. at

1533; Transtech Indus., Inc., 798 F. Supp. at 1086; Kelley v.

Thomas, 790 F. Supp. 710, 717-19 (W.D. Mi. 1990) (allowing

a liable party to proceed under CERCLA § 107 but requiring

apportionment under CERCLA § 113); PVO Int'l Inc. v Drew

Chemical Corp., No. 87-3921, 19 ELR 20077, 20080 (D.N.J.

1988) (concluding that “[S]ection 107(a) should be read in

conjunction with the contribution provision in section

113(f(1), which does provide for allocation of response costs

[among liable parties]”’).

While some district courts have permitted CERCLA §

107 claims by potentially liable patties for joint and several

liability, those courts misunderstand the statutory basis for

contribution actions. See Adhesives Research Ins, v.

21A

American Inks & Coatings Corp., 931 F., Supp. 1231, 1242

(M.D. Pa. 1996) (although allowing a PRP CERCLA § 107

cost recovery action to proceed, the court recognized that the

majority of courts have permitted PRPs to only bring a

contribution action subject to CERCLA § 113(f)); Pinal

Creek Group v. Newmont Mining Corp., 926 F. Supp. 1400

(D. Az. 1996) (court did not limit PRPs to action in

contribution)'®; Charter Township of Oshtemo v._American

Cyanamid Co., 910 F. Supp. 332 (W.D. Mi. 1995) (a liable patty

can bring a CERCLA § 107 joint and several liability action);

Barmet Aluminum Corp. v. Doug Brantley & Sons, Inc., 914

F. Supp. 159 (W.D. Ky. 1995) (a liable or potentially liable

party can bring a CERCLA § 107 action for joint and several

liability)."”

the Ninth Circuit.

'? Cases rejecting joint and several liability for claims by liable

parties are legion: eg, Stearns & Foster Bedding Co. v.

Franklin Holding Corp., 947 F. Supp. 790, 800 (D. N.J.

1996) (a non-innocent party may not proceed with a joint and

several liability CERCLA § 107(a)’ action); Reynolds Metals

Co. v. Arkansas Power and Light Co., 920 F. Supp. 991,

994-5 (E.D. Ak. 1996) (PRP only may pursue several

liability by a claim for contribution); Plaskon, 904 F. Supp.

at 652 (PRP defendants may only be held liable for their

individual, several and equitable share of responsibility of

recoverable costs); Tesa Tuc, 919 F. Supp. 662, 679-81 (S.D.

N.Y. 1996); Gould Inc. v. A & M Tire Service, 901 F. Supp.

906, 913 (M.D. Pa. 1995)(liability in action by party entering

into consent agreement with EPA is several only); City of

Fresno v. NL Indus. Inc., No. 93-5091, 1995 WL 641983

(E.D. Cal. July 9, 1995)(joint and several liability unavailable

in action between PRPs); 7 H Agric. & Nutrition v. Aceto

Chemical Co., 884 F. Supp. 357, 361-62 (E.D. Cal.

22A

These district courts have all assumed, without

explanation, that claims under CERCLA §§ 107 and 113 are

separate and distinct, the former necessarily giving and

several liability under the case law and the latter giving rise

to equitable apportionment. Pinal Creek, 926 F. Supp. at

1403; Barmet, 914 F. Supp. at 163-4; Oshtemo, 910 F. Supp.

at 335. Because CERCLA § 107 provides for a claim “by

any person,” these courts reason that a CERCLA § 107 cost

recovery action and appendant joint and several liability are

available even to responsible parties.'® E.g., Adhesives

search, 931 F. Supp. at 1238; Pinal Creek, 926 F. Supp. at

1405; Barnet, 914 F. Supp. at 164; , 910 F. Supp. at 337-38.

On this purportedly straightforward plain language statutory

analysis, these courts have misapplied the entire common law

doctrine of joint and several liability - as if it were expressly

wnitten into CERCLA § 107(a). While a CERCLA § 107

action tray be maintained by “any person,” CERCLA §

113(f)(1) mandates unequivocally that all actions that sound

in contribution “shall be brought in accordance with this

section.” (Emphasis added). Accordingly, there is no

separate CERCLA § 107 action available to CERCLA

responsible parties that somehow imports the common law

doctrine of joint and several liability.

1995)(stating that disallowing joint and several liability in

suit between PRPs simplifies litigation); Kaufman and

Broad-South Bay v. Unisys Corp., 868 F. Supp. 1212, 1214

(N.D. Cal. 1994) (liability in suit by non-innocent party is

merely several).

'® This reasoning ignores the Supreme Court’s teaching in

Key Tronic Corp., 114 S. Ct. at 1965, that remedies other

than joint and several liability, are available in CERCLA §

107 actions.

23A

B. Under the Law, a Private Party, must Plead and

Prove Innocence to Maintain an Action for Joint

and Several Liability.

Unlike claims giving rise to joint and several liability, the

very goal of an action for contribution is the equitable

allocation of liability among joint tortfeasors. See generally

Stuart Speiser, et al., THE AMERICAN LAW OF TORTS §

3.15 (1983 & Supp: 1995); William A. Prosser,

HANDBOOK OF THE LAW OF TORTS § 47 (1964). The

Supreme Court has explained:

Typically, a mght to contribution is recognized

where two or more persons are liable to the same

plaintiff for the same injury and one of the joint

tortfeasors has paid more than his fair share of

common liability. Recognition of the nght reflects

the view that when two or more persons share

responsibility for a wrong, it is inequitable to

~ require one to pay the entire cost of reparation, and

it is sound policy to deter all wrongdoers by

reducing the likelihood that any will escape liability.

Northwest Airlines, Inc. v. Transport Worker Union, 451

U.S. 77, 101 S. Ct. 1571, 1578, 67 L.Ed:2d 750, 760, 761

(1981). Joint and several liability, to the contrary, renders

each defendant liable for the entire harm. Restatement

(Second) of Torts § 875 (1979). Because joint and several

liability would render one defendant liable for the share of

response costs attributable to the other defendants, it is

unavailable in contribution actions. Tesa Tuck, 919 F. Supp

at 680-81. The Restatement (Second) of Torts § 886A

specifies, “No tortfeasor can be required to make

contribution beyond his own equitable share of the liability.'°

'? Accordingly, even district courts that have allowed PRPs

to proceed with non-contribution claims under CERCLA §

24A

CERCLA does not specifically provide for joint and

several liability. Rather, Congress left that issue to be

determined by the courts using principles developed under

the common law. United States v. Alcan Aluminum Corp.,

964 F.2d 252, 268-69 (3d Cir. 1992); United States v.

Chem-Dyne Corp., 572 F. Supp. 802 (S.D. Ohio 1983). See

generally Patrick S. Martin, The Legacy of Chem-Dyne:

Searching for Equity in CERCLA Cost-Recovery Actions, 25

Tex. Tech L. Rev. 909, 914-17 (1994)(analyzing the

legislative history). Following guidance in the legislative

history, courts have uniformly relied upon the Restatement

(Second of Torts for guidance in defining the scope of

common law on joint and several liability. United States v.

Rohm & Haas, 2 F.3d 1265 , 1280 (3d Cir. 1993); Jn re Bell

Petroleum Servs., Inc., 3 F.3d 889 (Sth Cir. 1993); United

States v. Monsanto Co., 858 F.2d 160°, 171-72 (4th Cit.

1988), cert. denied, 490 U.S. 1106 (1989).. The Restatement

provides:

Each of two or more persons whose tortious conduct

is a legal cause of a single and indivisible harm to

the injured party is subject to liability to the injured

party for the entire harm.

107 acknowledge that contribution actions do not give nse to

joint and several liability. E.g., The Companies for Fair

Allocation v. Axil Corp., 853 F. Supp. 575, 579 (D. Conn.

1994); Allied Corp. v. Acme Solvents Reclaiming, 691 F.

Supp. 1100, 1118 (N.D. III. 1988). The age old common law

rule against contribution actions amongst joint tortfeasors has

been steadily eroded through time-by statute and the case

law. Speiser, supra, at § 3:15. It would be nonsensical,

however, to take the additional step of allowing joint and

several liability among joint tortfeasors.

25A

Restatement (Second) of Torts § 875 (1979).”°

Relying on the Restatement ule, courts have

systematically held defendants severally liability in

non-contribution CERCLA § 107(a) actions on behalf of the

government (the “injured party”). See O'Neil v. Picillo, 883

F.2d 176, 178 (1st Cir. 1989), cert. denied sub nom American

Cyanamid Co. v. O'Neil, 493 U.S. 1071 (1990); United

States v Monsanto Co., 858 F.2d 160, 171 (4" Cir. 1988);

United States v. Chem-Dyne Corp., 572 F. Supp. 802 (S.D.

Ohio 1983). This rule is critical to enabling the United States

to compel responsible parties to clean up CERCLA sites and

to obtain full cost recovery of EPA’s Superfund expenditures

from the responsible parties.2'

However, when suit is brought by one of the responsible

parties, rather than the government or another innocent,

“injured” patty, the action implicates CERCLA § 113 as well

because it is an action for contribution, to which joint and

several liability is inapplicable. Indeed, the very purpose of

imposing joint and several liability - to promptly make the

innocent, injured victim whole in the face of indivisible harm

the usual lack of sweeping agreement, it may be safely stated

that ‘joint’ tortfeasors are jointly and severally liable in

American law and that the injured or aggrieved party has an

option or election whether to treat the tort as ‘joint’ or

‘several,””’).

*! The court stated that “{tJhe legislative history of the

Superfund Amendments of 1986 (which enacted section 113)

makes clear that the United States may bring either a section

106 or 107 action, regardless of whether the United States

itself was a generator of waste at the site... .” United States

v. Kramer, 757 F. Supp. 397, 415 (D. N.J. 1991) (citing

H.R.Rep. No. 253(I). 99" Cong., 2™ Sess. 1, 79-80 (1985),

reprinted in 1986 U.S.C.C.A.N. 2835, 2861-62).

26A

- disappears. Many courts have recognized these important

principles in the CERCLA context. Most recently, the

Seventh Circuit allowed a non-contnbution claim under

CERCLA § 107 to proceed where a landowner alleged that it

did not contribute to polluting a Superfund site. Rumpke 107

F.3d at 1241. However, the court warned that if the evidence

showed that the plaintiff was not innocent, as alleged, it

would-be restricted to an action in contribution. /d. The

court stated that “when two parties who both injured the

property have a dispute about who pays how much-a

derivative liability, apportionment dispute-the statute directs

them to. § 113(f) and only to § 113(f).” Jd. at 1240 (emphasis

added).*- The Eleventh Circuit recently stated, “to bring a

cost recovery action based solely in § 107(a), [plaintiff]

would have to be an innocent party.” Redwing Carriers, 94

F.3d at 1496.

Similarly, the First Circuit acknowledged that CERCLA

*2 Defenses to liability in Superfund are affirmative, so a PRP

will bear the burden of proving that it fits within one of the

defenses. Velsicol, 9 F.3d at 530 (“By its terms. . . section

107 liability is only barred by a limited number of

enumerated causation-based affirmative defenses . . . . [t]he

plain language of section 107(b) [sets] forth the universe of

[those] defenses. . .”). To the extent Rumpke suggests that

these defenses are broadened for the purposes of bringing

CERCLA § 107 actions, it is inconsistent with CERCLA and

case law. See, Redwing Carriers, 94 F.3d at 1507 (stating

“{pjersons who are responsible under § 107(a) may escape

CERCLA liability if they can prove one of three affirmative

defenses set forth in CERCLA § 107(b)); New York v.

Lashins Arcade Co., 91 F.3d 353, 359 (2d Cir. 1996) (stating

that a responsible party may be held strictly liable for

response costs “unless it can satisfy one of CERCLA’s

affirmative defenses” in CERCLA § 107(b)).

27A

imposes joint and several liability for the reimbursement of

government expenses while limiting “non-innocent” PRPs to

seeking the recoupment of only those expenditures exceeding

their overall liability. Browning-Ferris Indus., 33 F.3d at

100. Additionally, the Seventh Circuit, in rejecting the

plaintiff's argument that it could bring a “direct” action”

under CERCLA § 107(a) stated:

[Plaintiff] has experienced no injury of the kind that

would typically give rise 2yBy “direct action,” the

Court was apparently indicating a non-contribution

action under CERCLA § 107(a) - to a direct claim

under section 107(a) - it is not, for example, a

landowner forced to clean up hazardous materials

that a third, party spilled onto its property or that

migrated there from adjacent lands. Instead,

[plaintiff] itself is a liable party in some measure for

the contamination . . . and the gist of its claim is that

the costs it has incurred should be apportioned

equitably amongst itself and the others responsible.

Akzo Coatings, 30 F.3d at 764. A person that is innocent

under one of the very limited defenses under CERCLA §

107(b) would similarly be entitled to a non-contribution

CERCLA § 107 action. See Kaufman and Broad-South Bay,

868 F. Supp. at 1216. See also, CERC II, 50 F.3d at 1534-

36; United Technologies, 33 F.3d at 101-103; Amoco Oil Co.,

889 F.2d at 672.

Indeed, two district court cases in this Circuit have

recognized this important distinction between innocent and

non-innocent parties in the CERCLA context. For example,

in Dartron Corp., the district court stated: “Actions for full

cost recovery under § 9607(a) may be brought by: (1)

*? By “direct action,” the Court was apparently indicating a

non-contribution action under CERCLA § 107.

28A

federal or state governments; or (2) ‘innocent’ private

parties.” Dartron Corp., 917 F. Supp. at 1182. The court

went on to explain that because the plaintiff did not fit within

one of CERCLA’s affirmative defenses, it “is not an innocent

private party and is limited to an action in contribution.” /d.

See aiso , Plaskon, 904 F. Supp. at 651-52 (explaining that

the linchpin of the analysis is whether a party is innocent).

See also Stearns, 947 F. Supp. at 801 (stating “I conclude

that [the plaintiff} may not proceed with an action under

Section 107(a) unless it can demonstrate that it is an

‘innocent’ party”); Boyce v. Bumb, 944 F. Supp. at 812 (“The

Courts of Appeals have recognized that ‘innocent’ parties

may bring cost recovery actions under § 9607(a)”). Here,

plaintiffs have not, and cannot, plead that they are innocent

parties. Accordingly, they cannot allege joint and several

liability. :

C. This Court Should Reject Plaintiffs’ Novel and

Inconsistent Proposals to Create Judicial

Exceptions to the Contribution Rule for “Working

PRPs” and 106 Order Recipients.

Citing one district court opinion in another Circuit,”

plaintiffs propose that this Court adopt a “working PRP”

exception to the contribution rule. Br. at 15-16. Plaintiffs

argue that CERCLA § 107(a)(4)(B), in allowing private party

actions to recover “costs of response incurred,” differentiates

between responding and non-responding parties and allows

responding parties to bring independent CERCLA § 107

actions regardless of their liability. /d. This Court should

reject this novel proposal.

** United States v. Taylor, 909 F. Supp. 355 (M.D. N.C.

1995). The same misconstruction of the statute was adopted

by the district court in Pinal Creek Group v. Newmont

Mining Corp., 926 F. Supp. 1400 (D. Az. 1996), which is

currently subject to an interlocutory appeal.

29A .

CERCLA recognizes, of course, that a person can incur

response costs (hereinafter “responding costs”) either by

conducting a cleanup” in the first instance or by

compensating the government or other party pursuant to a

settlement or judgment for funds expended in a cleanup

(hereinafter “non-responding costs”). See generally,

Browning-Ferris, 33 F.3d at 101 (denominating these terms

“first instance” and “reimbursement” costs). In Browning-

Ferris, the First Circuit rejected as a “sleight of hand” the

identical argument asserted by plaintiffs here that responding

costs are recoverable in a CERCLA § 107 joint and several

liability action, while non-responding costs are recoverable in

contribution only. Jd. at 101-02. The First Circuit explained

that the language of CERCLA § 107(a)(4)(B) is too broad to

support such an interpretation and that the interpretation

would fail the “commonsense test” for two reasons. /d. at

102. The court explained:

First, 42 U.S.C. § 9613 itself appears to reject any

distinction for the purposes of contribution between

first-instance costs and reimbursed costs. After all

subsection 9613(f)(3)(B) authorizes a party to seek

contribution for “some or all of the response action

or for some or all of the costs of such action... .”

The simple reading of this subsection is that the

initial phrase refers to expenses incurred in the

course of liable party’s direction of a site’s cleanup

while the second phrase refers to reimbursement of

cleanup costs incurred under the government’s

hegemony.

Id.

*° The parameters of “necessary costs” are actually broader

than actual cleanup costs. See generally Key Tronic Corp.,

1148S. Ct. 1960.

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Second, the court explained that such an interpretation

“emasculates the contribution protection component of

CERCLA’s settlement framework.” /d. at 103. See also

Browning-Ferris Indus., 33 F.3d at 103 (the “mechanism for

encouraging settlement would be gutted” by allowing a

separate action under § 107); Akzo Coatings, Inc., 30 F.3d

761. This is because a ruling that CERCLA §§ 107 and

113(f) provide separate and independent claims for relief

would significantly undercut the incentive for responsible

parties to settle with the government provided by the

contnbution protection provision of CERCLA § 113(f)(2), by

potentially allowing non-settling PRPs to “end run” that

provision simply by asserting their claim under CERCLA §

107. See Tesa Tuck, 919 F. Supp. at 681 (“contribution bar

would be rendered meaningless”). The practical effect of this

position would be to eliminate the finality Congress intended

CERCLA § 113(f)(2) to bring to the CERCLA settlement

process and therefore defeat the statutory intent of

encouraging settlement. While courts have generally

disallowed, such a strategy, this Court should use this

opportunity to clarify the law in this area. E.g., Rumpke, 107

F.3d at 1239 (explaining that contribution ban would not

apply if plaintiff could proceed under CERCLA § 107(a));

United States v. Cannons Engineering, 899 F.2d 79, 92 (lst

Cir. 1990) (holding CERCLA § 113(f)(2) applicable to

non-settlers’ claim styled as “indemnification”). Accord,

United States v Pretty Products, Inc., 780 F. Supp. 1488,

1496 (S.D. Ohio 1991) (non-settling liable parties cannot

avoid effect of CERCLA § 113(f)(2) by denominating their

claims as “restitution’’), and United States v. U.T. Alexander,

771 F. Supp. 830, 840-841 (S.D. Tex. 1991), vacated and

remanded (on sanctions issue). No. 92-7038 (5th Cir. Jan.

21, 1993(CERCLA § 113(t)(2) cannot be avoided by

asserting claims for relief under state law).

Plaintiffs also assert that a comparison of the statutes of

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limitations for claims for cost recovery and contribution

actions “reinforces” its conclusion. Br. at 30. Specifically,

they argue that the statute of limitations for contribution

claims, CERCLA § 113(g)(3), provides four tnggering

events, none of which is the issuance of a CERCLA § 106

order.° Accordingly, they assert that Congress must have

intended to allow them a non-contribution CERCLA § 107

claim. This analysis is flawed.

Based upon this limited situation in which one of the four

triggers does not explicitly apply, plaintiffs would read

CERCLA § 113(g)(3) out of the statute entirely (Br. at

29-30). This is because under their analysis, PRP’s could

proceed with a non-contribution CERCLA § 107 action, to

which a different statute of limitations applies. CERCLA §

113(g)(2). This result would be “untenable” in light of a

court’s responsibility “to give effect to each subsection

contained in a statute, indeed, to give effect to each word and

phrase.” Browning-Ferris Indus., 33 F.3d at 101 (citing

United States v. Nordic Village, 112 S. Ct. 1011, 1015

(1992)); Tesa Tuck, 919 F. Supp. at 681 (“the three year

statute of limitations would be eviscerated”); Boyce v. Bumb,

944 F. Supp. at 809 (rejecting a similar statute of limitations

argument).

Plaintiffs also suggest that this Court adopt a very

specific exception to cover cases involving CERCLA § 106

Orders. Br. at 25. Specifically, they argue that CERCLA §

113(f) only permits a contribution action to be brought

2° The four “triggers” are: (1) an administrative settlement

under CERCLA Section 122(g); (2) an administrative

settlement under Section 122(h); (3) a judgment under

CERCLA; or (4) a judicially approved consent decree.

CERCLA § 113(g)(3). It is important to note as well that

some of these four events, such as judicially approved

consent decrees, often implicate “responding costs.”

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“during or following any civil action under section [106] . . .

or under section -[107].” Because a CERCLA § 106 Order is

not a “civil action”, plaintiffs argue, their contribution action

is barred and their only avenue of relief is a CERCLA § 107

cost recovery action alleging joint and several liability.7’ Br.

at 22-26. This Court should reject this novel proposal as

well.

At the outset, it is notable’ that plaintiffs’ argument here

is inconsistent with the “working PRP” argument, for had

Congress intended a “working PRP” exception, under this

analysis the contribution provision should have barred all

claims relating to responding costs. However, CERCLA §

113(f) specifically authorizes contribution claims in cases

involving injunctive relief. Moreover, the argument is

inconsistent with the plain language, the legislative history

and common sense.

The plain language of CERCLA § 113(f)(1) is not

restrictive, 1.e., it does not say that a contribution action may

only be brought during or following a civil action under

CERCLA § 106. More importantly, CERCLA § 113(f)(1)

specifically states that “[n]othing in this subsection shall

diminish the nght of any person to bring an action for

contribution in the absence of a civil action under section

[106] . . . or section 107.” (Emphasis added).”* Thus the

*” Nowhere do plaintiffs explain why they cannot bring a

CERCLA § 107 action that alleges several liability only.

*® The Seventh Circuit has broadly read the term “civil

action” in this context, to include administrative orders,

Stating:

Rumpke pointed out in both its brief and at oral

argument that it is not-subject to an administrative

cleanup order . . . .Thus, Rumpke is not a party that

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contribution action is allowed by the very terms of the

statute.”

Additionally, as plaintiffs correctly point out, the

legislative history makes clear that the intent of this provision

was to clarify and confirm the common law. Br. at 24. As

explained above, the linchpin of the analysis under the

common law is whether a party is liable or innocent.

Plaintiffs’ proposed construction therefore would not only

read out the last sentence of CERCLA § 113(t)(1), but it

would also dramatically alter the common law by requiring

liable parties to bring joint and several liability actions and

barring their actions in contribution. Constructions rendering

absurd results are disfavored.” Saxion v. Titan-C-

Manufacturing, Inc., 86 F.3d 553, 559 (6" Cir. 1996) (noting

that courts “should avoid an interpretation of a statute that

would lead to absurd or unreasonable results”).

Similarly, the plain language in CERCLA § 113(t)(1)

allowing contribution actions to proceed even in the absence

of an underlying civil action squarely contravenes plaintiffs’

is now or ever has been subject to a civil action

under CERCLA § 106.

Rumpke, 107 F.3d at 1239.

2? Moreover, because plaintiffs’ action arises under CERCLA

§ 107 in the first instance, see infra pp.14-20, the

contribution action is itself “during” a CERCLA § 107

action.

*° Plaintiffs’ argument also ignores the Supreme Court

statement that CERCLA “authorizes a cause of action for

contribution in § 113 and impliedly authorizes a similar and

somewhat overlapping remedy in § 107.” Key Tronic, 114 S.

Ct. at, 1966. Thus, assuming arguendo that their claims were

barred by CERCLA § 113(f)(1), it would still be permitted

under the Supreme Court’s reading of the statute.

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argument that a setthement or judgment is a necessary

prerequisite under CERCLA to bringing an action in

contribution. Br. at 26-28. Indeed, this Court has made clear

that an actual judgment or settlement is not required to bring

an action for contribution. Rather, “payment in full by one of

the co-obligors of a valid obligation of both obligors gives

nse to the mght of contribution against the one not

participating in the payment.” Huggins v. Graves, 337 F.2d

486, 489 (6" Cit. 1964) (judgment not required to seek

contribution under the common law). Because a § 106 Order

is a valid obligation,*' plaintiffs’ contribution action has

accrued. Kohr v. Allegheny Airlines, Inc., 586 F.2d 53, 56

(7 Cir. 1978) (citing Huggins and stating that one of the

basic elements of a common law contribution action 1S that

both parties be under a common obligation); Dant & Russell,

951 F.2d at 248-49(requiring equitable allocation even where

cleanup was not pursuant to settlement, or judgment or “EPA

arm-twisting’); Akzo, 30 F.3d at 764 (party cleaning up

pursuant to CERCLA § 106 Order limited to action in

contribution); Amoco Oil Co., 889 F.2d at 672 (court

restricted a site owner voluntarily cleaning up to a

contribution action.); Sun Co., Inc, Browning-Ferris. Inc.,

*' A CERCLA § 106 order is such a legal obligation or

responsibility, as failure to comply without “sufficient cause”

subjects a person to $25,000 per day in fines and treble

damages for the cleanup. CERCLA §§ 106(6), 107(c)(3).

Plaintiffs have never contested their liability under the § 106

Order. A party who believes a § 106 order is invalid may

respond by refusing to comply for “sufficient cause” or by

obeying the order and then suing “for the return of its

expenses on the ground that it was not a responsible party

within the meaning of the statute after all.” Employers

Insurance of Wausau_y. Browner, 52 F.3d 656, 662 (7" Cir.

1995) (citing CERCLA § 106(6)).

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919 F. Supp. 1523, 1530 (N.D. Ok. 1996) (PRPs cleaning up

pursuant to EPA § 106 Order limited to action in

contribution).

Because CERCLA § 106 orders generally do not involve

settlements or judgments. Therefore, a settlement or

judgment requirement as a prerequisite to a CERCLA § 106

Administrative Order recipient’s contribution action would

lead to the absurd result of requiring many liable parties to

proceed on a non-contribution basis.

Ill. POLICY CONSIDERATIONS FAVOR

LIMITING PRPS TO - ACTIONS _ IN

CONTRIBUTION.

As a policy matter, limiting responsible parties to

bringing contribution claims makes sense. First, it would

halt the ancillary litigation and third-, fourth-, and fifth-party

practice that bogs down CERCLA litigation. 7 H

Agriculture & Nutrition Co., 884 F. Supp. 375, 361. (E.D.

Cal. 1995) (allowing responsible parties to bring a

non-contribution CERCLA § 107 action “guarantees

inefficiency, potential duplication, and prolongation of the

litigation process in a CERCLA case”). One court recently

explained that “reducing this sort of sequential, piecemeal

litigation will further the goals underpinning CERCLA by

making cases more manageable, reducing transaction costs

and enabling courts to perform CERCLA allocations of ,

liability more efficiently.” Tesa Tuck, 919 F. Supp. at 681.

E.g., Interstate Power Co, v. Kansas City Power & Light Co.,

992,F.2d 804, 806 (8 Cir. 1993) (fourth-party action); Hatco

Corp. v. W.R. Grace & Co., 801 F. Supp. 1309, 1314 (D.N.J.

1992) (fourth- and fifth-party actions); H.R.Rep. No. 253,

99" Cong., 2nd Sess. part 1, 80 (1985), reprinted in1986 U.S.

Code Cong. & Admin. News 2835, 2862.

Moreover, this added efficiency does not substantially

burden private plaintiffs in CERCLA cases. After incurring

36A

response costs in excess of its allocable share or agreeing

with the federal or state government to pay more than its

allocable share, a responsible party may sue as many other

PRPs for contribution as it deems worth pursuing: The costs

of “work performed in identifying other potentially

responsible parties” is recoverable. Key Tronic, 114 S. Ct. at

1967. The PRPs ultimately joined as defendants will pay

their allocable share of the costs and, facing liability only for

their allocable share, will accordingly have no need to sue

others for contribution.” Nor does the rule limiting

*° Contrary to the district court’s Memorandum at 6, a liable

party does not have to prove divisibility of the harm in order

to be entitled to equitable allocation under CERCLA §

113(f). Redwing Carriers, 94 F.3d at 1513. See also, In re

Hemingway Transport Ins., 993 F.2d 915, 921 n.4 (1™ Cir.

1993). Indeed, if the harm were divisible in the first place,

there would be no joint obligation to allocate among joint

tortfeasors. Rather, the party seeking allocation only has the

burden of showing that allocation is appropriate.

Environmental Transportation Systems. Ins. v. Ensco, Inc. ,

969 F.2d 503, 508 (7" Cir. 1992). In allocating liability,

courts’ generally consider, several equitable factors proposed

as part of an amendment to the original CERCLA bill by then

Representative Albert Gore of Tennessee. See In re Bell

Petroleum Servs., Inc., 3 F.3d 889, 900 (5" Cir. 1993).

These factors are (i) whether a party’s contribution to the

release of hazardous wastes can be distinguished from the

contributions of other parties; (ii) the volume of hazardous

waste involved; (iii) the degree of toxicity; (iv) the extent of

the party’s actual involvement in waste generation, storage,

or disposal; (v) the degree of care exercised by the party; and.

(vi) the degree of cooperation with environmental officials.

126 Cong. Rec. 26,779, 26,781 (1980). See also H.R. Rep.

No. 253 (III), 99” Cong., 1st Sess. 19 (1985). The courts

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responsible parties to contribution claims broaden the

defenses against PRPs. See Environmental Transportation

Systems v. ENSCO, Inc., 969 F.2d 503, 506-07 (7" Cir.

1992).

As discussed above at pp.26-27, this approach

encourages settlement by not allowing parties to “end run”

contribution protection. In some situations, allowing a liable

party to obtain “full, recovery” or joint and several liability

under CFRCLA § 107 could result in a total escape from

liability for some responsible parties. A responsible party

that has resolved its liability with the government is entitled

to contribution protection from other parties. 42 U.S.C. §

9613(f)(2). If the settling party were allowed to obtain “full

have relied heavily on these factors. See e.g., Environmental

Transp. Sys., Inc. v. ENSCO, Inc. , 969 F.2d 503, 508 (7th

Cir. 1992); Amoco Oil Co. v. Borden, Ins., 889 F.2d 664,

672-73 (Sth Cir. 1989); Amoco Oil Co. v. Dingwell, 690 F.

Supp. 78, 86 (D. Me. 1988), aff'd sub nom., Travelers Indem.

Co. v. Dingweill, 884 F.2d 629 (1st Cir. 1989); United States

v. Stringfellow, 20 Env’t Rep. Cas. (BNA) 1905, 1910 (C.D.

Cal. 1984); United States v. A & F Materials Co., 578 F.

Supp. 1249, 1256 (S.D. Ill. 1984). Other factors are often

considered as well. E.g., United States v. R.W. Meyers, Inc.,

932 F.2d 568, 571, 872 (6 Cir. 1991) (stating that the court

may consider “any factor it deems is in the interest of

justice”); In re Dant & Russell, Inc., 951 F.2d at 249

(upholding the allocation of 50% of the response costs to the

lessee of an industrial site based principally on the relative

length of its involvement with the site).

*> The Third Circuit’s discussion of “defenses in a broad

sense” to include the statute of limitations and settlement

protection in Smith Land & Improvement Corp., 851 F.2d 86,

is not inconsistent with the fact that defenses to liability

under CERCLA § 107(b) are strictly limited.

38A

recovery or joint and several liability against the

non-settling parties, the contnbution protection bar would

prevent the non-settling parties from countersuing -- resulting

in a “windfall” for the settling party, who could end up

paying nothing.

Nor would plaintiffs be sadcie¢ with the burden of

“orphan shares.” Br. at 20. In a contribution action, orphan

shares should not be unfairly allocated to one party or

another, but rather equitably apportioned by the district court

pursuant to a number of factors. Tesa Tuck, 919 F. Supp. at

681 (“Courts can use the powers provided by § 113(f)(1) to

allocate any ‘orphan stares’ among viable PRPs, with the

result that each viable PRP’s allocable share may include -a

portion of whatever ‘orphan shares’ there are’’); Stearns, 947

F. Supp. at 801 (stating “the danger that a PRP will be unable

to recover the ‘orphan shares,’ absent Section 107’s

provision for joint and several liability, is a statutory ‘paper

tiger”); 7 H Agriculture and Nutrition, 884 F. Supp. at 32;

City of Fresno, 1995 WL 641983 at 4. Based upon equitable

factors, any liable party could be responsible for all, part, or

none of the orphan shares. E.g., Gould, Jnc., 901 F. Supp. at

913 (holding PRP plaintiff liable for all orphan shares based

on the facts). See generally Prosser, supra, at § 48 (“In some

instances . . . equity may require : . . that the share of a

tortfeasor who is insolvent or absent from the jurisdiction be

borne by others.””); Uniform Comparative Fault Act § 2(d)

(suggesting apportionment of insolvent shares).

Plaintiffs argue that the ability to assert claims for joint

and several liability encourages voluntary cleanups and thus

furthers the goals of CERCLA. Br. at 16.5%* However, it is

unnecessary that private parties have the potent litigation

** It should be noted that plaintiffs did not “voluntarily”

undertake cleanup efforts. They did not act until ordered to

do so.

39A

weapon of joint and several liability to encourage them to

undertake “voluntary” cleanups. See Stearns, 947 F. Supp. at

801 (“The residual power granted to a district court in

Section 113 to apportion liability according to equitable

principles more than adequately protects a PRP who

undertakes a clean-up of another party’s toxic legacy”).

Sufficient incentives already exist within the statutory

scheme. First, a voluntary cleanup satisfies a responsible

person’s legal obligation, often allowing the continuation and

improvement of business activities. Second, cleanups

conducted by private parties are often much less expensive

than those conducted by the government. Third, government

oversight is reduced to a. minimum where parties initiate

cleanups on their own. Fourth, the parties gain a significant

litigation advantage in the allocation phase by presenting

their cleanup efforts to the court as an equitable factor.35

Finally, it is important to note that a private party who

does not initiate a cleanup “voluntarily”

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