Amicus Curiae Brief — Cooper Industries, Inc. v. Aviall Services, Inc.
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No. 02-1192
Jn the Supreme Court of the Gnited States
COOPER INDUSTRIES, INC., PETITIONER
Vv.
AVIALL SERVICES, INC.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER
THEODORE B. OLSON
Solicitor General
Counsel of Record
THOMAS L. SANSONETTI
Assistant Attorney
General
THOMAS G. HUNGAR
Deputy Solicitor General
JEFFREY BOSSERT CLARK
Deputy Assistant Attorney
General
JEFFREY P. MINEAR
Assistant to the Solicitor
General
R. JUSTIN SMITH
PAULS. WEILAND
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether a party that is potentially liable under the
Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA), 42 U.S.C. 9601 et seq., for
cleanup of property contaminated by hazardous substances,
but has not been sued under CERCLA to undertake or to
pay for the cost of the cleanup, may nevertheless seek
contribution under CERCLA from other jointly responsible
parties.
(I)
TABLE OF CONTENTS
Page
Interest of the United States |
Statement 2
A. The CERCLA liability scheme 2
B. The facts and proceedings belOW ............0s0sseenseenees 7
Summary of argument 10
Argument:
ion 113(f)(1) of CERCLA authorizes a jointly
liable party to seek contribution only “during or
following” a civil action under CERCLA that
resolves that liability 12
A. Section 113(f)(1) makes clear that a party
may seek contribution under CERCLA only
“during or following” a civil action under
Section 106 or Section 107(a) .......... 13
B. Section 113(f)(1)’s text is consistent with the
traditional understanding of contribution .................. 17
C. Section 113(f)(1)’s text is consistent with
CERCLA as a whole 19
D. Section 113(f)(1)’s plain language is consistent
with CERCLA’s legislative history . 23
E. The court of appeals’ construction of Section
113(f)(1) rests on unpersuasive extra-textual
considerations 24
Conclusion 30
TABLE OF AUTHORITIES
Cases:
Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761
(7th Cir. 1994) 6,14
Alaska Dep't of Envtl. Conservation v. EPA, 124
S. Ct. 988 (2004) 15
(IIT)
IV
Cases—Continued: Page
Alexander v. Sandoval, 532 U.S. 275 (2001) 28
Atherton v. FDIC, 519 US. 213 (1997) 16
Bedford Affiliates v. Sills, 156 F.3d 416 (2d Cir.
1998) 6
Burlington N. R.R. v. Oklahoma Tax Comm'n,
481 U.S. 454 (1987) . 23
Centerior Serv. Co. v. Acme Scrap Iron & Metal
Corp., 153 F.3d 344 (6th Cir. 1998) 6,14
City of Waukesha v. Viacom, Inc., 221 F. Supp. 2d
975 (E.D. Wis. 2002) 10
Connecticut Nat'l Bank v. Germain, 503 U.S. 249
(1992) 15, 23, 24
Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930
(8th Cir. 1995) 6
Correctional Servs. Corp. v. Malesko, 534 U.S. 61
(2001) 28
Davis v. Michigan Dep't of Treasury, 489 U.S. 803
(1989) 23
Dole Food Co. v. Patrickson, 123 8. Ct. 1655
(2003) 15
EI. DuPont De Nemours & Co. v. United States,
No. 97-497, 2003 WL 23104700 (D.N.J. Dec. 30,
2003) 10
FMC Corp. v. Aero Indus., Inc., 998 F.2d 842
(10th Cir. 1993) 29
Federal Election Comm'n v. NRA Political Victory
Fund, 513 U.S. 88 (1994) 26
Field v. Mans, 516 U.S. 59 (1995) 19
Glover v. United States, 531 U.S. 199 (2001) 21
Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) 28
Great-West Life & Annuity Ins. Co. v. Knudson,
534 U.S. 204 (2002) 29
Hartford Underwriters Ins. Co. v. Union Planters
Bank, N.A., 530 U.S. 1 (2000) 13
Hughes Aircraft Co. v. Jacobson, 525 U.S. 432
(1999) 25
V
Cases—Continued: Page
Key Tronic Corp. v. United States, 511 U.S. 809
(1994) 2, 14, 20, 29
King v. St. Vincent's Hosp., 502 U.S. 215 (1991) .............. 19
Lamie v. United States Trustee, 1248. Ct. 1023
(2004) 13, 17, 23, 25
Lexecon Inc. v. Milberg Weiss Bershad Hynes &
Lerach, 523 U.S. 26 (1998) 26
Metropolitan Stevedore Co. v. Rambo, 515 U.S.
291 (1995) 26
Morissette v. United States, 342 U.S. 246 (1952) ............. 17
New Castle County v. Halliburton NUS Corp.,
111 F.3d 1116 (3d Cir. 1997) 6
Northwest Airlines, Inc. v. Transport Workers
Union, 451 U.S. 77 (1981) 17-18, 29
Pavelic & LeFlore v. Marvel Entm't Group, 493
U.S. 120 (1989) 29
Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) ......... 2
Pfohl Bros. Landfill Site Steering Comm. v. Allied
Waste Sys., Inc., 255 F. Supp. 2d 134 (W.D.N.Y.
2003) 10
Pinal Creek Group v. Newmont Mining Corp., 118
F.3d 1298 (9th Cir. 1997), cert. denied, 524 U.S. 937
(1998) 6, 20
Pneumo Abex Corp. v. High Point, Thomasville &
Denton R.R., 142 F.3d 769 (4th Cir.), cert. denied,
525 U.S. 963 (1998) 6
Reading Co., In re, 115 F.3d 1111 (3d Cir. 1997) ............... 6,14
Redwing Carriers, Inc. v. Saraland Apartments,
94 F.3d 1489 (11th Cir. 1996) 6
Robert C. Herd & Co. v. Krawill Mach. Corp.,
359 U.S. 297 (1959) 19
Rodriguez v. United States, 480 U.S. 522 (1987) .......... 25, 29
Rumpke, Inc. v. Cummins Engine Co., 107 F.3d
1235 (7th Cir. 1997) 6
SEC v. Edwards, 1248S. Ct. 892 (2004) 20
Salinas v. United States, 522 U.S. 52 (1997) 23
VI
Cases—Continued: Page
Shaw v. Railroad Co., 101 U.S. 557 (1879) 19
Texas Indus., Inc. v. Radcliff Materials, Inc., 451
U.S. 630 (1981) 29
1325 “G” Street Assocs. LP v. Rockwood Pigments
NA, Inc., 235 F. Supp. 2d 458 (D. Md. 2002) 10
Transamerica Mortgage Advisors, Inc. v. Lewis,
444 US. 11 (1979) 29
United States v. Aceto Agric. Chems. Corp., 872
F.2d 1373 (8th Cir. 1989) 14
United States v. Alcan Aluminum Corp., 990 F.2d
711 (2d Cir. 1993) 14
United States vy. Alcan Aluminum Corp., 964 F.2d
252 (3d Cir. 1992) 14
United States v. Bestfoods, 524 U.S. 51 (1998) ...... 2,3, 13,17
United States v. Colorado & E. R.R., 50 F.3d 1530
(10th Cir. 1995) 6,14
United States v. Gonzales, 520 US. 1 (1997) 23
United States v. Kayser-Roth Corp., 910 F.2d 24
(1st Cir. 1990), cert. denied, 498 U.S. 1084 (1991) ............ 14
United States v. Locke:
529 U.S. 89 (2000) 16
471 U.S. 84 (1985) 29
United States v. Monsanto Co., 858 F 2d 160 (4th
Cir. 1988), cert. denied, 490 U.S. 1106 (1989) ...........000 14
United States v. R.W. Meyer, Inc., 889 F.2d 1497
(6th Cir. 1989), cert. denied, 494 U.S. 1057 (1990) ........... 14
United Techs. Corp. v. Browning-Ferris Indus.,
33 F.3d 96 (ist Cir. 1994), cert. denied, 513 U.S.
1188 (1995) - 6,14,16
Western Properties Serv. Corp. v. Shell Oil Co.,
No. 01-55676 (9th Cir. Feb. 13, 2004) 10
Statutes, regulations and rule:
Clear Water Act, 33 U.S.C. 1251 et seq.:
§ 311(c), 338 U.S.C. 132K(e) 4
§ 311(d), 33 U.S.C. 1321(d) 4
Statutes, regulations and rule:
Vil
i
Comprehensive Environmental Response, Compen-
sation, and Liability Act, 42 U.S.C. 9601 ef seq. .......0000 4
$ 101(9), 42 U.S.C. 9601(9) 4
§ 101(14), 42 U.S.C. 9601(14) 4
§ 101(20)-(22), 42 U.S.C. 9601(20)-(22) 4
§ 101(23)-(24), 42 U.S.C. 9601(23)-(24) 4
§ 101(26), 42 U.S.C. 9601(26) 4
4
4
4
l
5
4
—_—
-
§ 101(29), 42 U.S.C. 9601(29)
§ 101(31), 42 U.S.C. 9601(31)
§ 104, 42 U.S.C. 9604 ; £&
§ 104(a), 42 U.S.C. SGDE(e) ......cccccccecseseresssresssesosseess
§ 104(k), 42 U.S.C. 9604(k)
§ 105, 42 U.S.C. 9605
§ 106, 42 U.S.C. 9606 - passim
§ 106(a), 42 U.S.C. 9606(a) 3, 5, 22
§ 108(b), 42 U.S.C. SB0G(D) .....n...ccceccccoccscsrssscssceserscscseeee 5
§ 106(b)(2)(B), 42 U.S.C. 9606(b (2B) , 5
§ 107, 42 U.S.C. 9607 w- 2,4,5,6,8,20
§ 107(a), 42 U.S.C. 9607(a) - passim
§ 107(aX(1)-(4), 42 U.S.C. 9607(a\(1)-(4) . 4
§ 107(a(1)-(4)(B), 42 U.S.C. 9607(a)(1)-(4)(B) ............ 5, 11,
20, 21
§ 107(0)-(q), 42 U.S.C. 9607(0)-(q) 5
§ 113, 42 U.S.C. 9613 ” . 20,21
ON ( — passim
§ 11B(£)(1), 42 U.S.C. QUB(LID) .osceescceessoseeeeeeenssnnee passim
§ LIB(£ 2), 42 U.S.C. GGIB(L V2) 2... eeccsereeenees 7, 21, 27, 28
§ LIB(L NS), 42 U.S.C. QGIB(L NB) .........cececvcecscosereserecorseees 27
§ 113(f3)B), 42 U.S.C. 9613(f(3)(B) .............. 7, 11, 19, 21
Oe ll
§ 113(gX3), 42 U.S.C. 9613(gX3) . 21,2
§ 113(gX 3A), 42 U.S.C. 96IB(QHBMA) ..cccecceceeeceneeeees 22
$ 113(gX3\B), 42 U.S.C. 9613(g)3)B) .......... _ 2
a “Oy 3
§ 122, 42 U.S.C. 9622 ... - . 7
(Ol 7
VIII IX
Statutes, regulations and rule—Continued: Page Miscellaneous—Continued: Page
§ 122(d), 42 U.S.C. 9622(d) ‘ 7 United States General Accounting Office, Community
§ 122(g), 42 U.S.C. 9622(g) 7, 22 ; Development: Local Growth Issues Federal Oppor-
§ 122(h), 42 U.S.C. 9622(h) 7, 22 tunities and Challenges (RCED-00-178) (Sept.
§ 122(i), 42 U.S.C. 9622(i) es 7 2000) 27
§ 128(a), 42 U.S.C. 9628(a) _ 5
§ 128(b), 42 U.S.C. 9628(b) 5
Small Business Liability Relief and Brownfields
Revitalization Act, Pub. L. No. 107-118, 115 Stat.
2356 4
Superfund Amendments and Reauthorization Act of
1986, Pub. L. No. 99-499, 100 Stat. 1613 — 2
Tex. Heath & Safety Code Ann. §§ 361.001 et seq.
(West 2001 & 2004 Supp.):
§ 361.181 . a ° 4
§ 361.344 27
Exec. Order No. 12,580, 3 C.F.R. 193 (1988) escnanenesnsnemanensness 1,3
40 C.F.R.:
Pt. 300 .. 4
Section 300.700(g) ....... : 27, 28
OG 23
Miscellaneous:
131 Cong. Rec. (1985):
23
+ 24
QE ye 24
H.R. Rep. No. 253, 99th Cane. Ist Sess. (1985):
Pt. 1 24
24
24
23
Pt. 3 2,
H.R. Rep. No. 962, 99th Cong., 2d Sess. (1986) .........c00000
S. Rep. No. 11, 99th Cong., Ist Sess. (1985) .........cccseeeees
Blacks Law Dictionary (5th ed. 1979) ............... 18
Restatement (Second) of Torts (1979) ...........ccssceseseseseneneneee 18
Restatement (Third) of Torts (2000) .0...........ccccesessvees 18, 27, 28
Uniform Contribution Among Tortfeasors Act, 12
U.L.A. 184 (1996) (1955 Revised Act) .........cccscsereereeeees 18
Jn the Supreme Court of the United States
No. 02-1192
COOPER INDUSTRIES, INC., PETITIONER
Vv.
AVIALL SERVICES, INC.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER
INTEREST OF THE UNITED STATES
The United States has responsibility for implementing
and enforcing the Comprehensive Environmental! Response,
Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601
et seq., which provides mechanisms for responding to the im-
proper disposal of hazardous substances. The United States
Environmental Protection Agency (EPA) has primary re-
sponsibility for administering CERCLA’s cleanup authori-
ties. See 42 U.S.C. 9604(a); Exec. Order No. 12,580, 3 C.F.R.
193 (1988). EPA and other federal agencies, which are sub-
ject to CERCLA requirements and are potentially responsi-
ble parties at a number of sites, have programs that imple-
ment cleanups. CERCLA’s contribution provisions are an
important component of the CERCLA scheme. The United
States, which at the Court’s invitation filed a brief amicus
curiae in response to the petition for a writ of certiorari,
accordingly has a substantial interest in this case.
(1)
to
STATEMENT
Aviall Services, Inc., sued Cooper Industries, Inc., in the
United States District Court for the Northern District of
Texas to recover expenses that Aviall has incurred in clean-
ing up property that Aviall purchased from Cooper. Aviall
asserted that Section 107 of CERCLA, 42 U.S.C. 9607,
subjects Aviall and Cooper to joint and several liability for
the cleanup, and it claimed that Section 113(f)(1) of
CERCLA, 42 U.S.C. 9613(f)(1), therefore renders Cooper
liable to Aviall for contribution. The district court dismissed
that claim, ruling that, unless and until Aviall is itself subject
to suit under CERCLA, it cannot seek contribution from
other potentially liable parties. Pet. App. 90a-100a. A di-
vided panel of the court of appeals affirmed that judgment.
Id. at 47a-89a. The en banc court of appeals, in a divided
decision, vacated the panel’s judgment and reversed. /d. at
Ya-45a.
A. The CERCLA Liability Scheme
Congress enacted CERCLA in 1980 in response to the
serious environmental and health dangers posed by property
contaminated by hazardous substances. United States v.
Bestfoods, 524 U.S. 51, 55 (1998). CERCLA, as amended and
expanded through the Superfund Amendments and Re-
authorization Act of 1986 (SARA), Pub. L. No. 99-499, 100
Stat. 1613, “grants the President broad power to command
government agencies and private parties to clean up hazar-
dous waste sites.” Key Tronic Corp. v. United States, 511
U.S. 809, 814 (1994). It “both provides a mechanism for
cleaning up hazardous waste sites, and imposes the costs of
the cleanup on those responsible for the contamination.”
Pennsylvania v. Union Gas Co., 491 U.S. 1, 7 (1989) (cita-
tions omitted); see also H.R. Rep. No. 253, 99th Cong., Ist
Sess. Pt. 3, at 15 (1985) (“CERCLA has two goals: (1) to pro-
vide for clean-up if a hazardous substance is released into the
environment or if such release is threatened, and (2) to hold
responsible parties liable for the costs of these clean-ups.”).
CERCLA provides the President (acting primarily
through the EPA, see Exec. Order No. 12,580, 3 C.F.R. 193
(1988)), with alternative means for cleaning up contaminated
property. Section 104 of CERCLA authorizes EPA itself to
undertake response actions designed to remove hazardous
substances and provide appropriate cleanup, using the Haz-
ardous Substance Superfund. See 42 U.S.C. 9604; see also
Bestfoods, 524 U.S. at 55. Alternatively, Section 106(a)
authorizes EPA to compel, by means of an administrative
order or a request for judicial relief, the responsible parties
to undertake response actions, which the government then
monitors. See 42 U.S.C. 9606(a). Judicial challenges to the
government’s selection of response actions under Section 104
or the government’s issuance of orders under Section 106(a)
are subject to the limitations with respect to timing of
review set out in Section 113(h) of CERCLA. See 42 U.S.C.
9613(h).
Whether the United States proceeds under Section 104 or
Section 106(a), the United States may recover its response
costs from responsible parties through a cost recovery action
under Section 107(a). See 42 U.S.C. 9607(a). Section 107(a)
authorizes the United States, as well as other entities, to
seek recovery of cleanup costs from four categories of “cov-
ered persons”—typically referred to as “potentially respon-
sible parties” or “PRPs”—associated with the release or
threatened release of hazardous substances. 42 U.S.C.
9607(a). Those entities are:
(1) owners and operators of facilities at which hazar-
dous substances are located;
(2) past owners and operators of such facilities at the
time hazardous substances were disposed of;
(3) persons who arranged for disposal or treatment of
hazardous substances; and
(4) certain transporters of hazardous substances to the
site.
See 42 U.S.C. 9607(a)(1)-(4). Congress has broadly defined
the pertinent statutory terms—including “facility,” “hazar-
dous substance,” “owner or operator,” “person,” “release,”
“transport,” and “disposal”—to reach a wide range of
entities and activities. See CERCLA § 101(9), (14), (20)-(22),
(26) and (29), 42 U.S.C. 9601(9), (14), (20)-(22), (26) and (29).
Section 107(a) of CERCLA specifically provides that the
United States, individual States, and Indian tribes are en-
titled to recover from covered persons “all costs of removal
or remedial action incurred” that are “not inconsistent with
the national contingency plan.” CERCLA § 107(a)(1)-(4)(A),
42 U.S.C. 9607(a)(1)-(4)(A). The national contingency plan
consists of federal regulations that prescribe the procedure
for conducting hazardous substance cleanups under
CERCLA and other federal laws. See CERCLA § 105, 42
U.S.C. 9605; 40 C.F.R. Pt. 300; see also CERCLA § 101(23)-
(24) and (31), 42 U.S.C. 9601(23)-(24) and (31); Clean Water
Act (CWA) § 311(c) and (d), 33 U.S.C. 1321(c) and (d). Ata
substantial number of contaminated sites, States have pri-
mary responsibility for cleanup or associated oversight.
States may seek to recover their costs through Section
107(a), or they may undertake or compel cleanups and seek
to recover their costs under state law. See, e.g., Tex. Health
& Safety Code Ann. §§ 361.181 et seg. (West 2001 & 2004
Supp.).
Congress has provided for coordination of federal cleanup
efforts under Sections 104, 106, and 107, and state cleanup
efforts under Section 107 and state law, through the Small
Business Liability Relief and Brownfields Revitalization Act,
Pub. L. No. 107-118, 115 Stat. 2356 (2002) (Brownfields Act).
The Brownfields Act encourages cleanup and reuse of con-
taminated or potentially contaminated property by expand-
ing protection from CERCLA liability in certain circum-
stances, see, e.g., CERCLA § 107(0)-(q), 42 U.S.C. 9607(0)-
(q), and authorizing EPA to establish and administer grant
programs for site assessment and reuse, CERCLA §§ 104(k),
128(a), 42 U.S.C. 9604(k), 9628(a). The Brownfields Act
places heightened reliance on state response programs by,
for example, restricting the ability of the federal government
to take an enforcement action under Section 106(a) or to file
a cost recovery action under Section 107(a) in prescribed
circumstances. See CERCLA § 128(b), 42 U.S.C. 9628(b).
CERCLA authorizes entities other than the United
States, individual States, and Indian tribes to recover their
costs of cleaning up contaminated property unaer certain cir-
cumstances. For example, a party that complies with a gov-
ernment order under Section 106(a) to respond to an actual
or threatened release of hazardous substances may petition
the government for reimbursement of its expenses on the
ground that it is not liable for the response costs or that the
government’s decision in selecting a response action was
arbitrary and capricious or otherwise not in accordance with
law. See CERCLA § 106(b), 42 U.S.C. 9606(b). If the gov-
ernment denies the petition, the party may file a judicial
action seeking reimbursement. See CERCLA § 106(b)(2)(B),
42 U.S.C. 9606(b)(2)(B).
In addition, Section 107 of CERCLA provides that per-
sons “other” than the United States, an individual State, or
an Indian tribe may recover “any other necessary costs of
response” that are incurred “consistent with the national
contingency plan.” CERCLA § 107(a)(1)-(4)(B), 42 U.S.C.
9607(a)(1)-(4)(B). The courts of appeals have ruled that
persons who are not themselves liable may clean up con-
taminated property and then invoke this provision to seek
reimbursement from the same four categories of potentially
liable parties that are subject to government cleanup
actions.' The courts of appeals have uniformly concluded,
however, that a person who falls within one of those four
categories cannot rely on Section 107(a) to seek full cost
recovery on a theory of joint and several liability from
another jointly liable party; rather, a party that is subject to
CERCLA liability is limited to seeking contribution from
other jointly liable parties in accordance with Section 113(f).°
Section 113(f), which Congress added as part of SARA in
1986, explicitly addresses when a potentially liable party
may seek contribution. See 42 U.S.C. 9613(f). Section
113(f)(1) provides in pertinent part:
Any person may seek contribution from any other
person who is liable or potentially liable under [Section
107(a)], during or following any civil action under [Sec-
tion 106] or under [Section 107(a)]. * * * Nothing in this
‘subsection shall diminish the right of any person to bring
an action for contribution in the absence of a civil action
under [Section 106] or [Section 107].
! See In re Reading Co., 115 F.3d 1111, 1120 (3d Cir. 1997); Rumpke,
Inc. v. Cummins Engine Co., 107 F.3d 1235, 1241-1242 (7th Cir. 1997);
Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th
Cir. 1996); United Techs. Corp. v. Browning-Ferris Indus., 33 F 3d. 96, 100
(1st Cir. 1994), cert. denied, 513 U.S. 1183 (1995); Akzo Coatings, Inc. v.
Aigner Corp., 30 F.3d 761, 764 (7th Cir. 1994).
2 See, e.g., Bedford Affiliates v. Sills, 156 F.3d 416, 423-425 (2d Cir.
1998); Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d
344, 356 (6th Cir. 1998); Pneumo Aber Corp. v. High Point, Thomasville &
Denton R.R., 142 F.3d 769, 776 (4th Cir.), cert. denied, 525 U.S. 963 (1998);
Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1301 (9th
Cir. 1997), cert. denied, 524 U.S. 937 (1998); New Castle County v.
Halliburton NUS Corp., 111 F.3d 1116, 1121-1123 (3d Cir. 1997); Redwing
Carriers, 94 F.3d at 1496; Control! Data Corp. v. S.C.S.C. Corp., 58 F.3d
930, 935 (8th Cir. 1995); United States v. Colorado & E. R.R., 30 F.3d 1530,
1534-1536 (10th Cir. 1995); United Techs. Corp., 33 F.3d at 108; Akzo
Coatings, 30 F.3d at 764.
42 U.S.C. 9613(f)1). Section 113(f)(2) additionally states
that a party that resolves its liability to the United States or
a State through an administrative or judicially approved
settlement shall not be subject to contribution “regarding
matters addressed in the settlement.” 42 U.S.C. 9613(f)(2).
Section 113(f)(3)(B) further provides:
A person who has resolved ‘ts liability to the United
States or a State for some or all of a response action or
for some or all of the costs of such action in an admini-
strative or judicially approved settlement may seek con-
tribution from any person who is not party to a settle-
ment referred to in paragraph (2).
42 U.S.C. 9613(f(3)(B); see CERCLA § 122, 42 U.S.C. 9622.°
The central issue before the Court in this case is whether
Section 113(f) authorizes a party that is potentially subject
to CERCLA liability, but has not been sued under Section
106 or 107(a) of CERCLA and has not resolved its CERCLA
liability through an administrative or judicially approved
settlement, to seek contribution under CERCLA from
another jointly liable party.
B. The Facts and Proceedings Below
Aviall provides aircraft maintenance services. In 1981, it
purchased Cooper's aircraft engine maintenance business
3 Section 122(a) authorizes the President (or his delegate) to enter into
an agreement with persons (including responsible parties) to perform re-
sponse actions if the President determines such action will be done prop-
erly by such person. 42 U.S.C. 9622(a). Section 122(d) provides that
agreements with respect to remedial actions, other than “de minimis
settlements” under Section 122(g), shall generally be entered in the ap-
propriate United States district court as a consent decree. 42 U.S.C.
9622(d); see 42 U.S.C. 9622(g). Section 122(g) “de minimis settlements,” 42
U.S.C. 9622(g), and Section 122(h) settlements, reached by the head of any
department or agency with authority to undertake response action, 42
U.S.C. 9622(h), may be embodied in an administrative order. See
CERCLA § 122(i), 42 U.S.C. 9622(i).
through an asset purchase agreement. Aviall later dis-
covered hazardous substance contamination, allegedly aris-
ing from the activities of both Aviall and Cooper, at Texas
facilities acquired from Cooper. Aviall notified Texas envir-
onmental authorities of the contamination. Those authorities
confirmed that Aviall was in violation of state environmental
laws and directed the company to take corrective action. In
1984, Aviall commenced cleanup activities, and, in 1995, it
contacted Cooper seeking reimbursement for the response
costs. Aviall later sold the facilities, but remained contrac-
tually responsible for the cleanup. Pet. App. 10a, 48a, 91a.
Aviall commenced this action against Cooper in federal
district court to obtain recovery of its cleanup expenditures.
Aviall’s complaint alleged that Cooper had breached its con-
tractual and warranty obligations under the asset purchase
agreement. Pet. App. 91a-92a. In addition, although neither
the United States nor Texas had sued Aviall to compel
cleanup or to recover response costs, Aviall asserted that
Cooper was liable to Aviall for contribution under Section
113(f) of CERCLA and Texas law. Jbid. The CERCLA con-
tribution claim provided the sole basis for federal juris-
diction. Jd. at 98a-99a.
The district court rejected Aviall’s CERCLA contribution
claim. The court concluded that “[t)he plain language of
§ 113(f)(1) provides that contribution claims may only be
brought ‘during or following any civil action under [§ 106] or
under [§ 107(a)].’ (emphasis added).” Pet. App. 94a. The
court additionally concluded that the last sentence of Section
113(f)(1) is merely a savings clause that preserves indepen-
dent contribution remedies so that “parties who cannot fulfill
the prerequisites of § 113(f)(1) are not precluded from bring-
ing contribution claims that are otherwise available, such as
under state law.” Jbid. The district court accordingly dis-
missed Aviall’s CERCLA contribution claim, but without
prejudice in the event that a Section 106 or 107 action were
brought against Aviall in the future. Jd. at 97a-98a & n.4.
The court declined to retain federal jurisdiction over the re-
maining state law claims. /d. at 99a-100a.
A divided panel of the court of appeals affirmed. Pet.
App. 47a-89a. The majority concluded that, “as a matter of
statutory text and structure, CERCLA requires a party
seeking contribution to be, or have been, a defendant in a
§ 106 or § 107(a) action.” Jd. at 57a; see id. at 52a-56a. The
majority, like the district court, construed the final sentence
of Section 113(f1) as merely a “savings clause” that pre-
served independent bases for contribution, such as Aviall’s
contribution claims against Cooper under Texas law. /d. at
56a. The majority also stated that the legislative history of
CERCLA, prior CERCLA decisions, and the policy goals of
CERCLA all supported its construction of the statutory
text. /d. at 57a-66a. In contrast, the dissent reasoned that
the first sentence of Section 113(f)(1) does not categorically
require that a party seek contribution in response to a
Section 106 or 107(a) action and that the final sentence of
Section 113(f) explicitly authorizes a party to seek contri-
bution in the absence of such suits. /d. at 66a-78a The
dissent also stated that the legislative history, case law, and
policy arguments supported its construction. Jd. at 78a-89a.
The court of appeals granted Aviall’s petition for re-
hearing en banc. Pet. App. 46a. The en banc court, by a
divided vote, reversed the judgment of the district court. Jd.
at 9a-45a. The majority adopted the reasoning of the panel
dissent and concluded:
[Slection 113(f)(1) does not constrain a PRP for covered
pollutant discharges from suing other PRPs for contribu-
tion only “during or following” litigation commenced un-
der sections 106 or 107(a) of CERCLA. Instead, a PRP
10
may sue at any time for contribution under federal law to
recover costs it has incurred in remediating a CERCLA
site. Section 113(f)(1) authorizes suits against PRPs in
both its first and last sentence which states without
qualification that “nothing” in the section shall “dimin-
ish” any person's right to bring a contribution action in
the absence of a section 106 or section 107(a) action.
Id. at 13a-14a. Three judges dissented, concluding that “the
plain language and statutory structure of CERC LA's con-
tribution provisions demonstrate that the contribution rem-
edy in § 113(f(1) requires a prior or pending § 106 or § 107
action.” Jd. at 41a-42a.’
SUMMARY OF ARGUMENT
Section 113(f1) of CERCLA provides that a party that is
jointly liable for response costs under CERCLA may seek
contribution from other liable parties, but only “during or
following” a Section 106 or Section 107(a) civil action that
would quantify and resolve that liability. Section 113(f)1)’s
text squarely resolves the issue before the Court. To the
extent that extra-textual authority is relevant, it confirms
the plain meaning of the statutory language.
A. Section 113(f(1) states that a person who is liable or
potentially liable under Section 107(a) of CERCLA may seek
contribution from a jointly liable person “during or follow-
ing” any civil action under Section 106 or Section 107(a). 42
U.S.C. 9613(f(1). That textual limitation on the scope of
4 A number of courts have discussed the scope of Section 113(f)(1) in
the wake of the panel and en banc decisions. Those courts have not
reached consistent results. See, ¢.g., Western Properties Serv. Corp. v.
Shell Oil Co., No. 01-55676 (9th Cir. Feb. 13, 2004); EJ. DuPont De
Nemours & Co. v. United States, No. 97-497, 2008 WL 23104700 (D.NJ.
Dec. 30, 2003); Pfohl Bros. Landfill Site Steering Comm. v. Allied Waste
Sys., Inc., 255 F. Supp. 2d 134 (W.D.N.Y. 2003), 1325 “G” Street Assocs.
LP v. Rockwood Pigments NA, Inc., 235 F. Supp. 2d 458 (D. Md. 2002);
City of Waukesha v. Viacom, Inc., 221 F. Supp. 2d 975 (E.D. Wis. 2002).
1]
contribution under CERCLA reveals, in clear and un-
ambiguous terms, that Section 113(f)(1) does not authorize a
contribution action in the absence of an ongoing or completed
Section 106 or 107(a) civil action. Section 113(f)\(1)'s savings
clause, which states that nothing in Section 113(f) “shall
diminish the right” of any person to seek contribution in the
absence of a Section 106 or 107(a) action, merely preserves
any independent right the person may have, apart from Sec-
tion 113(f), to seek contribution, but does not itself give rise
to any right of contribution.
B. Section 113(f)(1)’s text is consistent with the tradi-
tional understanding of the legal concept of contribution.
The courts have consistently recognized that a person seek-
ing contribution must extinguish—through a pending or
completed lawsuit or through settlement—the joint liability
that provides the basis for the contribution claim. Section
113(f)(1) adopts that traditional limitation by providing that
contribution may be sought “during or following” a Section
106 or 107(a) action that would quantify and resolve the
underlying liability.
C. Section 113(f)(1)’s plain language meshes with
CERCLA’s liability scheme and creates a coherent mecha-
nism for apportioning cleanup costs among jointly liable par-
ties. The courts of appeals have consistently ruled that Sec-
tion 107(a(1)-(4)(B) allows a liable party to obtain a recovery
of response costs from another jointly liable party through a
contribution action brought in accordance with Section
113(f). Section 113(f)(1) allows contribution “during or fol-
lowing” a Section 106 or 107(a) civil action, and Section
113(f)(3)B) allows contribution after an administrative or
judicially approved settlement that resolves liability to the
United States or a State. Section 113(g), in turn, specifies a
limitation period for those two alternative situations. But
neither Section 113(f) nor Section 113(g) provides for a con-
tribution action in the absence of a Section 106 or 107(a)
_—_,...
12
action or a settlement of the underlying liability, thus con-
firming that Congress did not implicity authorize contribu-
tion in those circumstances.
D. Section 113(f)(1)’s text is also consistent with
CERCLA’s legislative history. The legislative history of the
1986 amendments—commonly known as SARA—that pro-
duced Section 113(f) leaves no doubt that Congress's object
was to provide contribution during or following a Section 106
or 107(a) action or after a CERCLA-based settlement. The
Senate and House reports supporting the respective cham-
bers’ proposed bills speak specifically to that objective. By
contrast, they reveal no intent to allow contribution in the
absence of an ongoing or completed CERCLA suit or an ad-
ministratively or judicially approved settlement.
E. Although the en banc court of appeals acknowledged
the primacy of Section 113(f)(1)’s text, it ultimately ne-
glected Section 113(f)(1)’s plain language in favor of unper-
suasive extra-textual considerations. The court of appeals
mistakenly relied on the pre-SARA version of CERCLA, the
unarticulated assumptions of other lower courts, and “policy
considerations.” Congress expressed its intent through
Section 113(f)(1)’s text, and that text authorizes a liable
party to seek contribution only “during or following” a Sec-
tion 106 or 107(a) civil action.
ARGUMENT
SECTION 113(f)(1) OF CERCLA AUTHORIZES A
JOINTLY LIABLE PARTY TO SEEK CONTRIBUTION
ONLY “DURING OR FOLLOWING” A CIVIL ACTION
UNDER CERCLA THAT RESOLVES THAT LIA-
BILITY
Section 113(f)(1) provides a party that is jointly liable for
response costs under CERCLA with a right to contribution,
but only “during or following” a Section 106 or Section 107(a)
civil action that would quantify and resolve that liability.
13
Section 113(f)(1)’s savings clause does not negate that ex-
press limitation, but instead merely preserves whatever
additional rights to contribution a party may have under
other laws. Section 113(f)(1)’s plain language, by itself, is
dispositive, and, in any event, the full spectrum of potentially
relevant supplementary authorities confirms that Section
113(f)(1) means what it says.
A. Section 113(f)(1) Makes Clear That A Party May Seek
Contribution Under CERCLA Only “During Or
Following” A Civil Action Under Section 106 Or
Section 107(a)
This Court has repeatedly emphasized that, “when the
statute’s language is plain, the sole function of the courts—
at least where the disposition required by the text is not
absurd—is to enforce it according to its terms.” Lamie v.
United States Trustee, 124 8. Ct. 1023, 1030 (2004); Hartford
Underwriters Ins. Co. v. Union Planters Bank, N.A., 530
U.S. 1, 6 (2000). Section 113(f) plainly resolves the question
whether a party that is potentially liable under CERCLA,
but has not been sued under CERCLA to undertake or pay
for the cost of the cleanup, may nevertheless seek contri-
bution from another responsible party.
CERCLA subjects parties that have contributed to the
release ov threatened release of hazardous substances to lia-
bility for the resulting response costs. CERCLA §§ 106,
107(a), 42 U.S.C. 9606, 9607(a). Sections 106 and 107(a),
which operate against a “venerable common-law backdrop,”
Bestfoods, 524 U.S. at 62, impose joint and several liability in
accordance with common law principles unless the defendant
can demonstrate that the harm from the release of hazardous
substances is divisible. Section 113(f) provides a correspond-
ing statutory right of contribution from other jointly liable
14
parties. CERCLA § 113(f), 42 U.S.C. 9613(f). See Key
Tronic, 511 U.S. at 816.°
Section 113(f)(1) of CERCLA explicitly identifies the cir-
cumstances in which a jointly liable party may seek con-
tribution:
Any person may seek contribution from any other
person who is liable or potentially liable under [Section
107(a)], during or following any civil action under
[Section 106] or under [Section 107(a)].
42 U.S.C. 9613(f)(1) (emphasis added). Consistent with the
traditional understanding of contribution principles, that
provision expressly allows a jointly responsible party to seek
contribution, but only “during or following” a Section 106 or
Section 107(a) civil action that would quantify and resolve
the joint liability that the party seeks to apportion among
other responsible parties. /bid.*°
The court of appeals concluded that the first sentence of
Section 113(f)(1) allows contribution actions in the absence of
an ongoing or completed Section 106 or 107(a) action on the
5 See, e.g., Centerior Serv., 153 F.3d at 348; United States v. Alcan
Aluminum Corp., 990 F.2d 711, 721-722 (2d Cir. 1993); United States v.
Alcan Aluminum Corp., 964 F.2d 252, 268-269 (3d Cir. 1992); United
States v. Kayser-Roth Corp., 910 F.2d 24, 26-27 (1st Cir. 1990), cert.
denied, 498 U.S. 1084 (1991); United States v. R.W. Meyer, Inc., 889 F.2d
1497, 1507 (6th Cir. 1989), cert. denied, 494 U.S. 1057 (1990); United States
v. Aceto Agric. Chems. Corp., 872 F.2d 1373, 1377 (8th Cir. 1989); United
States v. Monsanto Co., 858 F.2d 160, 167, 172 (4th Cir. 1988), cert. denied,
490 U.S. 1106 (1989).
® See, eg., In re Reading Co., 115 F.3d at 1120 (“Although ‘con-
tribution’ is nowhere defined within CERCLA, it is a term with a familiar
and readily acceptable meaning. * * * As the Court of Appeals for the
Seventh Circuit has described it, contribution denotes a claim ‘by and
between jointly and severally liable parties for an appropriate division of
the payment one of them has been compelled to make.” (quoting Akzo
Coatings, Inc., 30 F.3d at 764)); accord United Techs. Corp., 33 F.3d at 99;
see also Colorado & E. R.R., 50 F.3d at 1535 n.4.
15
mistaken ground that, if Congress had not intended to
authorize such actions, it would have provided that contri-
bution actions shall “only” be brought during or following a
Section 106 or Sectidn 107(a) action. Pet. App. 24a-25a. Con-
gress’s intent, however, is clear from the plain language of
the statutory text. Section 113(f)(1)’s permissive phrasing
—a “person may seek contribution”—indicates that Con-
gress intended to permit contribution claims to be brought
when the stated prerequisites—namely, that contribution be
sought “during or following” a Section 106 or Section 107(a)
action—are satisfied. 42 U.S.C. 9613(f)(1) (emphasis added).
It does not provide authorization for contribution claims
where those prerequisites are not satisfied. The court of
appeals’ contrary interpretation would render the “during or
following” requirement entirely superfluous, in violation of
basic canons of statutory construction. See, e.g., Alaska
Dep’t of Envtl. Conservation v. EPA, 124 S. Ct. 983, 1002
n.13 (2004); Dole Food Co. v. Patrickson, 123 S. Ct. 1655,
1661 (2003); Connecticut Nat’l Bank v. Germain, 503 U.S.
249, 253 (1992).
The court of appeals also mistakenly relied (Pet. App. 25a-
27a) on the last sentence of Section 113(f)(1), which provides:
Nothing in this subsection shall diminish the right of any
person to bring an action for contribution in the absence
of a civil action under [Section 106] or [Section 107].
7 Contrary to the court of appeals’ suggestions, Section 113(f)(1)’s
syntax is not “confused” and its grammar is not “inexact.” Pet. App. 13a.
Rather, Section 113(f)(1) speaks unambiguously through the familiar
syntax and grammar that is routinely employed in granting a permissive,
but limited, license. For example, a sign stating that “Visitors May Enter
Through The Front Door During Normal Business Hours” informs the
visitor that, if he wants to enter through the front door, he must do so
during the prescribed period. It does not grant the visitor the right to use
the front door at any time he wishes. See id. at 34a-35a (Garza, J.,
dissenting).
16
42 U.S.C. 9613(f)(1) (emphasis added). The court errone-
ously construed that sentence, which is clearly written in the
form of a “savings” clause, as affirmatively creating a right
to contribution. The specific terms of the savings provision,
' however, merely preserve any independent right to contri-
bution that exists apart from Section 113(f)(1). See United
States v. Locke, 529 U.S. 89, 105 (2000); see also Atherton v.
FDIC, 519 U.S. 218, 227-228 (1997).
The court of appeals also suggested that Congress added
the last sentence of Section 113(f)(1) to indicate that the fed-
eral courts “had been right,” in CERCLA cases decided
before Congress added Section 113(f)(1) through the 1986
SARA amendments, in engrafting an implied federal
common law right of contribution onto CERCLA. Pet. App.
26a. The court’s reasoning, however, rests on a mistaken
understanding of the pre-SARA caselaw and, in any event. is
unpersuasive. As the First Circuit has explained, the pre-
SARA courts were divided on the question whether there
was an implied right to contribution under CERCLA.
United Techs. Corp. v. Browning-Ferris Indus., 33 F.3d 96,
100 (1994), cert. denied, 513 U.S. 1183 (1995). Those lower
courts that did recognize such a right employed the term
“contribution” in its “traditional sense” to denote “a claim ‘by
and between jointly and severally liable parties for an ap-
propriate division of the payment one of them has been com-
pelled to make.’” Id. at 99, 100-101 (emphasis added). See
note 6, supra.
In order to eliminate any uncertainty regarding the avail-
ability of contribution under CERCLA, Congress squarely
addressed that question in SARA. That 1986 Act expressly
delineated the circumstances in which contribution would
thereafter be available under CERCLA by providing, in the
first sentence of Section 113(f)(1), that contribution may be
sought “during or following” a Section 106 or 107(a) action.
Congress clearly did not codify the much broader version of
17
“contribution” adopted by the court below. Indeed, the
existence of any such broader “contribution” remedy under
CERCLA is necessarily foreclosed by the first sentence of
Section 113(f)(1). It would have been pointless for Congress
to create an explicitly limited right to contribution “during
or following” a Section 106 or 107(a) action if, at the same
time, the “savings” clause was implicitly establishing or
incorporating an all-encompassing “contribution” remedy
that would extend to all persons potentially liable under Sec-
tion 106 or 107(a).
Thus, “the existing statutory text” precisely defines the
contribution remedy, and there is no need or warrant to
draw inferences from “predecessor statutes.” Lamie, 124 S.
Ct. at 1030. If Congress had intended to create an even
broader form of contribution, it would have written the first
sentence of Section 113(f)(1) to a¢complish that result. It
would not have perpetuated the pre-SARA uncertainty by
depending on courts to fashion a novel form of contribution,
foreign to traditional legal understanding, through Section
113(f)(1)’s savings clause. See, e.g., Morissette v. United
States, 342 U.S. 246, 263 (1952) (“absence of contrary direc-
tion may be taken as satisfaction with widely accepted
definitions, not as a departure from them”).
B. Section 113(f)(1)’s Text Is Consistent With The
Traditional Understanding Of Contribution
Because Congress enacted Section 113(f)(1) against a
“venerable common-law backdrop,” Bestfoods, 524 U.S. at
62, Section 113(f)(1)’s plain language embodies the tradi-
tional legal concept of contribution. Section 113(f)(1) reflects
the general understanding, firmly rooted at the time of
SARA’s enactment, that a right of contribution is available
(1) when two or more persons are jointly liable for a debt or
injury and (2) one of those persons has extinguished a dis-
proportionate share of that liability. See, eg., Northwest
18
Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 87-
88 (1981) (“Typically, a right 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 fair share of the common liability.” (emphasis
added)); note 6, supra.”
As the Third Restatement of Torts explains, the right to
contribution depends on the resolution of the underlying
liability:
A person seeking contribution must extinguish the lia-
bility of the person against whom contribution is sought
for that portion of liability, either by settlement with the
plaintiff or by satisfaction of judgment.
Restatement (Third) of Torts § 23 emt. b. (2000). The
Restatement recognizes that the party seeking contribution
may pursue its claim at the same time that the underlying
liability proceedings are underway:
As permitted by procedural rules, a person seeking con-
tribution may assert a claim for contribution and obtain
a contingent judgment in an action in which the person
seeking contribution is sued by the plaintiff, even though
8 See also Restatement (Second) of Torts § 886A(1) and (2) (1979)
(“{W]hen two or more persons become liable in tort to the same person for
the same harm, there is a right of contribution among them * * *. The
right of contribution exists only in favor of a tortfeasor who has dis-
charged the entire claim for the harm by paying more than his equitable
share of the common liability.” (emphasis added)); Uniform Contribution
Among Tortfeasors Act § 1(b), 12 U.L.A. 194 (1996) (1955 Revised Act)
(“The right of contribution exists only in favor of a tortfeasor who has paid
more than his pro rata share of the common liability.” (emphasis added));
Black’s Law Dictionary 297 (5th ed. 1979) (“Under principle of ‘contri-
bution,’ a tortfeasor against whom a judgment is rendered is entitled to
recover proportional shares of judgment from other joint tort-feasors
whose negligence contributed to the injury and who were also liable to the
plaintiff.” (emphasis added)).
19
the liability of the person against whom contribution is
sought has not yet been extinguished.
Ibid. (second emphasis added) See also id. at emt. n.
(“Contribution may normally be recovered in a third-party
claim in the suit in which the person seeking contribution is
sued by the plaintiff or in a separate suit.”). But the tradi-
tional concept of contribution does not envision that a party
may seek contribution when there is no final judgment or
pending action underway that would determine and extin-
guish the joint liability unless the party has entered into a
settlement that discharges that liability. Jd. at comment b.
See, eg., Uniform Contribution Among Tortfeasors Act
§ 3(d), 12 U.L.A. 251 (1996) (1955 Revised Act).
CERCLA explicitly adopts the traditional limitations on
contribution by providing that contribution may be sought
“during or following” a Section 106 or 107(a) action,
CERCLA § 113(f)(1), 42 U.S.C. 9613(f)(1), or following an
administrative or judicially approved settlement, CERCLA
§ 113(f)(8)(B), 42 U.S.C. 9613(f)(8)(B). But Section 113(f)(1)
does not allow contribution in the absence of a CERCLA suit
that would quantify and resolve the liability that the party
bringing the contribution action seeks to apportion among
other jointly liable parties. 42 U.S.C. 9613(f)(1). Section
113(f)(1)’s unambiguous text conforms to the common law; it
should not “be construed as making any innovation upon the
common law which it does not fairly express.” Robert C.
Herd & Co. v. Krawill Mach. Corp., 359 U.S. 297, 304-305
(1959) (quoting Shaw v. Railroad Co., 101 U.S. 557, 565
(1879)); see, e.g., Field v. Mans, 516 U.S. 59, 69 (1995).
C. Section 113(f)(1)’s Text Is Consistent With CERCLA
As A Whole
This Court construes congressional enactments in light of
“the cardinal rule that a statute is to be read as a whole.”
King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991). Section
20
113(f)(1)’s plain language meshes smoothly with CERCLA’s
carefully structured liability scheme. Section 113(f)(1), read
as part of CERCLA’s whole, creates a coherent and work-
able mechanism for ensuring that cleanup costs are properly
apportioned among liable parties.
Section 107 of CERCLA authorizes recovery of response
costs by private persons in specifically defined circum-
stances. Section 107(a)(1)-(4)(B) allows a person who is not
liable for improper disposal of hazardous substances, but
who nevertheless incurs cleanup costs, to recover the result-
ing costs from those persons who fall within CERCLA’s four
categories of liable parties. See 42 U.S.C. 9607(a)(1)-(4)(B).
But the courts of appeals have uniformly concluded that
Section 107(a)(1)-(4)(B) allows a liable party, such as Aviall,
to obtain a recovery from another jointly liable party only
through a contribution action under 113(f). See 42 U.S.C.
9607(a)(1)-(4)(B). See pp. 5-6 & nn. 1-2, swpra.®
The courts of appeals have correctly recognized that,
while Section 107(a)(1)-(4)(B)’s reference to “any person” is
broad enough to allow one jointly liable party to sue another
° As the United States explained in its amicus curiae brief at the
petition stage in this case (at 16-17 n.10), the federal government endorses
the uniform conclusion of the courts of appeals that Section 107(a)(1)-
(4)(B) does not provide an independent basis for a liable person to recover
response costs from another liable person. See Amicus Brief for the
United States at 10, Pinal Creek Group v. Newmont Mining Corp., 118
F.3d 1298 (9th Cir. 1997), cert. denied, 524 U.S. 937 (1998) (No. 97-795). As
the government noted in Pinal Creek, that understanding of the rela-
tionship between Sections 107 and 113 is consistent with this Court’s
observations in Key Tronic that Sections 107 and 113 provide related
remedies. See 511 U.S. at 816 & n.7. To the extent that the Court’s ob-
servations suggest that Section 107 alone could give rise to an inde-
pendent right of contribution, that “passing dictum” (SEC v. Edwards, 124
S. Ct. 892, 898 (2004)) is inconsistent with the Court’s analysis in Lamie,
which recognized that statutes should be interpreted on the basis of the
“existing statutory text.” 124 S. Ct. at 1030. Here, the “existing statutory
text” provides an express and specific contribution remedy, see CERCLA
113(f), 42 U.S.C. 9613(f), so there is no basis for inferring another.
21
for the former’s response costs, that Section does not
prescribe what form that liability should take. When read in
combination, the clear implication of Section 107(a)(1)-(4)(B)
and Section 113 is that the jointly liable party is limited to
seeking contribution in the manner authorized by Section
113(f). That result avoids the anomaly of a jointly liable
party suing another jointly liable party for the full costs of a
CERCLA cleanup. It also ensures that parties who have
settled with the government and received protection from
“claims for contribution regarding matters addressed in the
settlement,” CERCLA § 113(f(2), 42 U.S.C. 9613(f)(2), are
not subject to double liability through a Section 107(a) suit
on the theory that such a suit imposes an independent basis
of liability apart from contribution See cases cited at note 2,
supra.”
Section 113(f) designates the two avenues by which a
liable party may recover its cleanup costs. Section 113(f)(1)
expressly allows a liable party to seek contribution “during
or following” a Section 106 or 107(a) civil action, while Sec-
tion 113(f(3)B) expressly allows contribution after an ad-
ministrative or judicially approved settlement that resolves
liability to the United States or a State. See 42 U.S.C.
9613(f)(1) and (3)(B). Section 113(g)3) provides two corre-
sponding limitations periods:
10 Since the early stages of this litigation, Aviall has predicated its
ion claim on the established understanding that Section 107(a)
alone does not provide a sufficient basis for a liable party to recover
cleanup costs and that a liable party must also satisfy the requirements of
Section 113(f). See Pet. App. 94a (“Aviall has dropped the independent
§ 107(a) claim and instead asserts a so-called ‘combined’ § 107(a) and
§ 113(f)(1) claim.”). Aviall is accordingly precluded from reversing its
position below and arguing, in the face of overwhelming contrary pre-
cedent, that Section 107(a) would provide an independent basis for it to
recover its cleanup costs from Cooper. See, ¢.g., Glover v. United States,
531 U.S. 198, 205 (2001).
|
22
No action for contribution for any response costs or
damages may be commenced more than 3 years after -
(A) the date of judgment in any action under
[CERCLA] for recovery of such costs or damages, or
(B) the date of an administrative order under
[Section 122(g)] (relating to de minimis settlements)
or [Section 122(h)] (relating to cost recovery settle-
ments) or entry of a judicially approve’ settlement
with respect to such costs or damages.
42 U.S.C. 9613(g\3). See note 3, supra (describing Section
122(g) and (h)).
Section 113(g\(3)A) accordingly provides a three-year
limitations period for contribution actions brought “during or
following” a Section 106 or 107(a) action, while Section
113(g3)(B) provides a three-year limitations period for con-
tribution actions brought after the party has resolved its
liability through an administrative or judicially approved
settlement. Section 113(g)(3) does not, however, provide a
limitations period for contribution actions in the absence of a
Section 106 or 107(a) action or a qualifying settlement.
Given the absence of any express textual basis for contri-
bution in those circumstances, the omission of a statute of
limitation that would govern such contribution claims pro-
vides further evidence that Congress did not intend to create
a federal right to contribution in that situation. Rather
Section 113(f)(1) means what it says and authorizes a con-
tribution action only “during or following” a civil action
under Section 106 or Section 107(a).”"
"! Section 106(a) authorizes the federal government to pursue both
judicial actions and administrative orders “necessary to protect public
health and welfare and the environment.” 42 U.S.C. 9606(a). The panel
majority below stated that issuance of a Section 106(a) administrative
order is sufficient to trigger the right of contribution under Section
113(f(1). See Pet. App. 57a n.5. That statement appears incorrect. Sec-
23
D. Section 113(f)(1)’s Plain Language Is Consistent With
CERCLA’s Legislative History
Because Section 113(f)(1)’s language is clear, there is no
need to consult its legislative history. See, e.g., Lamie, 124
S. Ct. at 1033; Salinas v. United States, 522 U.S. 52, 57
(1997); United States v. Gonzales, 520 U.S. 1, 5 (1997);
Connecticut Nat'l Bank, 503 U.S. at 254; Davis v. Michigan
Dep't of Treasury, 489 U.S. 803, 808 n.3 (1989); Burlington
N. R.R. v. Oklahoma Tax Comm’n, 481 U.S. 454, 461 (1987).
Nevertheless, the legislative history confirms the plain
meaning of the statutory text. The pertinent Senate and
House bills that ultimately became SARA contained differ-
ently worded contribution provisions. But each chamber in-
dicated that the object was to provide for contribution dur-
ing or following a Section 106 or 107(a) action or after a
CERCLA-based settlement.
The Senate bill initially provided that a contribution ac-
tion may be brought “[a]fter judgment in any civil action
under section 106 or under [section 107(a)].” See S. Rep. No.
11, 99th Cong., Ist Sess. 103 (1985) (proposed Section
107(/(2)). The Senate report stated that “[t]his amendment
clarifies and confirms the right of a person held jointly and
severally liable under CERCLA to seek contribution from
other potentially liable parties.” Jd. at 44 (emphasis added).
The Senate later revised its proposed language through a
floor amendment to allow contribution “during or following”
a Section 106 or 107(a) action so that contribution claims
could be resolved in one suit. See 131 Cong. Rec. 24,449
(1985). The sponsors explained that the floor amendment
tion 113(f)(1) authorizes contribution only “during or following any civil
action” under Section 106 or Section 107(a), and the phrase “civil action” is
commonly understood to mean a judicial proceeding. See, e.g., Fed. R.
Civ. P. 2. Accordingly, EPA's issuance of a Section 106(a) administrative
order does not generally entitle the recipient to seek contribution under
Section 113(f(1).
24
would allow “any defendant in a Government enforcement
action under CERCLA * * * to file a claim for contribution
against others * * * as soon as the enforcement action has
been brought.” Id. at 24,450 (Sen. Stafford) (emphasis
added); see also id. at 24,452 (Sen. Thurmond); id. at 24,453
(Sen. DeConcini).
The House bill initially provided that “any defendant
alleged or held to be liable in an action under section 106 or
section 107” may bring a contribution action. See H.R. Rep.
No. 253, 99th Cong., Ist Sess. Pt. 1, at 13 (1985) (proposed
Section 113(g)(1)). Like the Senate report, the House report
stated that the proposed language “clarifies and confirms the
right of a person held jointly and severally liable under
CERCLA to seek contribution from other potentially liable
parties.” Jd. at 79 (emphasis added). The House Judiciary
Committee later made minor “technical” changes to the
House bill that “simply clarifly] and emphasize[) that per-
sons who settle with EPA (and who are therefore not sued),
as well as defendants in CERCLA actions, have a right to
seek contribution from other potentially responsible par-
ties.” H.R. Rep. No. 253, supra, Pt. 3, at 18.
The House-Senate conference, which produced the final
language, adopted without further pertinent elaboration the
Senate’s “during or following” formulation and the House
provisions allowing contribution following settlement. See
H.R. Rep. No. 962, 99th Cong., 2d Sess. 37, 222 (1986). Thus,
the legislative history confirms that Section 113(f)(1) states
what Congress meant and means what it says. See Con-
necticut Nat'l Bank, 503 U.S. at 253-254.
E. The Court of Appeals’ Construction Of Section
113(f)(1) Rests On Unpersuasive Extra-Textual
Considerations
The en banc court of appeals acknowledged that “[s)ta-
tutory construction begins with the plain language of a
25
statute.” Pet. App. 12a. The court overlooked, however,
that “where the statutory language provides a clear answer,
it ends there as well.” Hughes Aircraft Co. v. Jacobson, 525
U.S. 432, 438 (1999). The court’s foeus on the pre-SARA
version of CERCLA, Pet. App. 14a-23a, the unarticulated
assumptions of other courts, id. at 27a-30a, and “policy
considerations,” id. at 3la-33a, fails to give proper respect to
the fundamental principle that statutory language provides
the best guide to legislative intent. See Rodriguez v. United
States, 480 U.S. 522, 525-526 (1987) (per curiam).
The court of appeals mistakenly attempted to draw infer-
ences from the fact that the pre-SARA version of CERCLA
contained no explicit provision for contribution, reasoning
that Congress may have implicitly intended to ratify the pre-
SARA case law. Pet. App. 14a-23a. As this Court has
recently made clear:
The starting point in discerning congressional intent is
the existing statutory text, and not the predecessor
statutes. It is well established that “when the statute’s
language is plain, the sole function of the courts—at least
where the disposition required by the text is not absurd
—is to enforce it according to its terms.”
Lamie, 124 8. Ct. at 1030 (citations omitted). Because the
“existing statutory text” of Section 113(f)(1) precisely
answers the question presented here, there is no warrant for
attempting to derive guidance from the pre-SARA “prede-
cessor statute[],” which did not address the question of
contribution at all.
The court of appeals also mistakenly attempted to derive
guidance from unstated assumptions and “isolated dicta” in
other lower court decisions that suggest, without deciding,
that responsible parties may seek contribution in the ab-
sence of a Section 106 or Section 107(a) action. Pet. App.
27a-30a. Responsible parties may have assumed that Section
26
113(f(1) provides a broader contribution remedy than its
language would support, and it is possible that errant lan-
guage in some government briefs may have nurtured that
assumption. But even if that assumption had produced a
substantial body of precedent (which it has not, see id. at
42a-43a (Garza, J., dissenting)), the courts have an obligation,
when squarely faced with the issue, to interpret Section
113(f\(1) in light of its plain terms. See, e.g., Lexecon Inc. v.
Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35
(1998) (“If we do our job of reading the statute whole, we
have to give effect to this plain command, * * * even if
doing that will reverse the longstanding practice under the
statute.”); Metropolitan Stevedore Co. v. Rambo, 515 U.S.
291, 300 (1995) (“Age is no antidote to clear inconsistency
with a statute.” (citations omitted); see also Federal Election
Comm'n v. NRA Political Victory Fund, 513 U.S. 88, 97
(1994).
The en banc court’s policy considerations (Pet. App. 3la-
33a) provide no basis for construing Section 113(f)(1) con-
trary to its plain terms. As a practical matter, the uniform
view of the courts of appeals that a responsible party can
seek reimbursement for response costs under CERCLA only
through a contribution action, when coupled with Congress’s
decision to authorize contribution under CERCLA only
“during or following” a Section 106 or 107(a) action or after
settlement, imposes a coherent structure on the allocation of
CERCLA response costs and a sensible limitation on
CERCLA contribution actions. That construction makes
clear that CERCLA does not create a federal cause of action
under which-responsible parties may sue each other at any
time for costs they have incurred in cleaning up hazardous
substances. Rather, a responsible party that satisfies its
CERCLA liability to the government, through settlement or
judgment, may obtain contribution from other responsible
parties within a statutorily prescribed limitation period.
27
That construction also puts CERCLA in alignment with the
traditional legal rules governing joint liability and contri-
bution. See pp. 17-19, supra.” ;
To be sure, Congress might in the future make a legis-
lative judgment that responsible persons who engage in
cleanups in the absence of a Section 106 or 107(a) action or a
qualifying settlement should also be able to recover their
costs from other responsible persons. Such a remedy could
further Congress’s objective of facilitating “brownfields”
cleanup and redevelopment.” But the court of appeals erred
2 See Restatement (Third) of Torts § 23 emt. b (2000) (“A person
seeking contribution must extinguish the liability of the person against
whom contribution is sought for that portion of liability, either by
settlement with the plaintiff or by satisfaction of judgment.”). Section
113(f) does not prevent a responsible party from cleaning up a CERCLA
site voluntarily and apportioning the costs among other responsible par-
ties by first entering into a settlement to resolve its liability to the United
States or a State. If a party enters into such a settlement, it would then be
immune from contribution claims regarding matters addressed in the
settlement, and it would have the express right to seek contribution from
non-settling responsible parties, based on its discharge of the joint liability
through the settlement. See CERCLA § 113(f(2) and (3), 42 U.S.C.
9613(f)(2) and (3); see also 40 C.F.R. 300.700(g). Alternatively, a respon-
sible party may also pursue the cost recovery mechanisms available under
state law. See, e.g., Tex. Health & Safety Code Ann. § 361.344 (West
2001).
'3 There are many contaminated sites nationwide—by cne estimate, as
many as 450,000. See U.S. General Accounting Office, Community Deve-
lopment: Local Growth Issues—Federal Opportunities and Challenges
(RCED-00-178) 118 (Sept. 2000). Because government resources are
limited, private parties have played, and will continue to play, a prominent
role in cleaning up many of those sites. EPA estimates that state and local
brownfields programs have yielded more than $5.1 billion in largely
private funding for brownfields cleanup and redevelopment. In many
instances, those cleanups have proceeded with minimal government in-
volvement. A future Congress could accordingly conclude that allowing
responsible parties to obtain cost recovery from other responsible parties
in the absence of a CERCLA action or settlement, and subject to appro-
priate limitations, may result in more efficient and cost-effective cleanups
at many of those sites.
28
in arrogating to itself the authority to override the statutory
text on the basis of its own assessment of policy
considerations.
Indeed, piecemeal amendment of CERCLA by the courts
would have undesirable consequences. For example, the en
bane court of appeals’ construction of Section 113(f)(1) poses
the risk that the contributing party may be subject to double
liability. Under CERCLA, a responsible party’s voluntary
cleanup does not discharge the underlying liability to the
United States or a State except as provided in a settlement
or federal court judgment to which the United States or
a State is a party. See 42 U.S.C. 9613(f)(2); 40 C.F.R.
300.700(g). Hence, a party that is ordered to pay “contri-
bution” in the absence of such a resolution with the govern-
ment has no guarantee that its payment will discharge its
liability, and it remains potentially subject to a future federal
or state cost recovery action if any relevant government
agency later investigates and determines that the voluntary
conduct is inadequate or improper. Indeed, the traditional
strictures on contribution are designed to eliminate the
prospect of double liability."
Furthermore, the court of appeals’ decision effectively
creates a new federal cause of action that is not specifically
authorized in CERCLA’s text. This Court has often warned ~
against the judicial recognition of private rights of action not
specifically authorized by Congress. See, e.g., Alexander v.
Sandoval, 532 U.S. 275, 287-288 (2001); Correctional Servs.
Corp. v. Malesko, 534 U.S. 61, 67 & n.& (2001); Gonzaga
Univ. v. Doe, 536 U.S. 273, 283-284 (2002). In particular, the
Court has specifically refused to infer federal rights of
4 See, e.g., Restatement (Third) Torts § 23 (2000), Reporter’s Note,
emt. b (“A person seeking contribution must extinguish the liability of the
person against whom contribution is sought. See Uniform Contribution
Among Tortfeasors Act § 1(d). Otherwise the person against whom
contribution is sought would be subject to double liability.”).
29
contribution. See Texas Indus., Inc. v. Radcliff Materials,
Inc., 451 U.S. 630, 639-640 (1981); Northwest Airlines, 451
U.S. at 91-95. And it has shown great reluctance to extend
existing remedies beyond the limits that Congress has ex-
pressly imposed. See, e.g., Great-West Life & Annuity Ins.
Co. v. Knudson, 534 U.S. 204, 208 (2002); Transamerica
Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19 (1979).
The Court’s reluctance to extend statutory remedies rests
in large part on “deference to the supremacy of the Legis-
lature.” United States v. Locke, 471 U.S. 84, 95 (1985). Ulti-
mately, the task of reconciling the competing policy interests
should be left to Congress. Congress expressed its current
policy through Section 113(f)(1)’s text, which adopts the
traditional practice of allowing a party to seek contribution
only if that party is itself subject to suit. The judiciary’s task
is “to apply the text, not to improve upon it.” Pavelic &
LeFlore v. Marvel Entm’t Group, 493 U.S. 120, 126 (1989).
The congressional judgment set forth in the statutory text
accordingly should control. See, e.g., Rodriguez, 480 U.S. at
525-526; see Pet. App. 44a-45a (Garza, J., dissenting). As this
Court stated in the context of CERCLA’s provisions
respecting recovery of attorney’s fees, expanding the scope
of existing remedies “is a policy decision that must be made
by Congress, not the courts.” See Key Tronic, 511 U.S. at
819 n.13 (quoting FMC Corp. v. Aero Indus., Inc., 998 F.2d
842, 847 (10th Cir. 1993)).
30
CONCLUSION
The judgment of the court of appeals should be reversed.
Respectfully submitted.
THEODORE B. OLSON
Solicitor General
THOMAS L. SANSONETTI
Assistant Attorney
General
THOMAS G. HUNGAR
Deputy Solicitor General
JEFFREY BOSSERT CLARK
Deputy Assistant Attorney
General
JEFFREY P. MINEAR
Assistant to the Solicitor
General
R. JUSTIN SMIFH
PAULS. WEILAND
Attorneys
FEBRUARY 2004
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.