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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0635%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 543 U.S. 157

## Text

Supreme Court, U.S
FILED

APR 8 = 70104

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No. 02-1192 —

Inu the Supreme Court of the United States

COOPER INDUSTRIES, INC., Petitioner,
Vv.

AVIALL SERVICES, INC., Respondent.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR ATLANTIC RICHFIELD COMPANY,
BLUEWATER NETWORK, FEDERAL MOGUL
CORP., CRANE CO., LFR, INC., THE SOURCE

GROUP, INC., AND GEOQMATRIX CONSULTANTS,
INC. AS AMICI CURIAE SUPPORTING RESPONDENT

ALBERT M. COHEN JOEL M. GROSS

SMILAND & KACHIGIAN Counsel of Record

601 South Fifth Street THOMAS H. MILCH

Seventh Floor THOMAS I. ANDERSON

Los Angeles, CA 90071 ARNOLD & PORTER LLP
(213) 891-1010 555 Twelfth Street, N.W.

Washington, D.C. 20004
(202) 942-5000

Attorneys for Amici Curiae
ATLANTIC RICHFIELD
COMPANY, ET AL.

am

TABLE OF CONTENTS

EIU R Eee Ss OF ARGICT CURIA .ncccccccccccsccccssccsscnssecssesessosssocosees |
DURGA Gi ARIIUIGIIING ccccccsccscosesscvsscssscscovsevssssscsssseoseess 2
I. THE POSITION ARGUED FOR BY

PETITIONER WOULD SUBSTANTIALLY
UNDERMINE THREE IMPORTANT POLICY

ee BEG Be Ce SDS cecncsreccsccrsccocscscscsecscencsnccencsees 4
A. The Enforcement Objectives of
IIIT caticisesitdaiiaeninssiceidbiaiescdsiddiguciaieindseepiensieniocnel 4
l. Encouraging Private Party Cleanup........ 5
2. Reducing Litigation and Transaction
- Ett nsicsanissctnnemantetetiidenesciapenbeisinterimninenenes 7
3. Facilitating Fairness.................:cssseeseeees 8

B. Petitioner's Position Undermines These

Se icnncisnesecsdussncitnnntasconeeseuianinastsenscenmmnenes 9
1. Voluntary Cleanup ..............:..s:sceseseee0+ 10
2. Respondents to Section 106 Orders......14
3. Demand Recipients ............cccccccesssssseeses 16

Il. PETITIONER’S INTERPRETATION IS
CONTRARY TO THE PLAN STATUTORY

Os GI Cet crectenieccccnsnnesencctenmenscensencnces 18
A. The Plain Language of CERCLA § 107............. 18
B. The Law Before and After SARA ..............:00004. 19
od The Effect of Section 113(f)...............0cc..s0000000 21

(i)

D. The United States’ Changing Position............... 22

E. Resolution of Sections 107 and 113 .................. 26

F. Distinction from Common Law
Cat... .ccccccoscsecssenctiitsesenniemaaa 28
COI FIG noccccococsccccenscnconsesentssentanssnseaiiaamaanee 30

(11)

TABLE OF AUTHORITIES
Page(s)
CASES
Amcast Indus. Corp. Vv. Detrex Corp.,
SS 18
263 F. 3d 134 (Sth Cir. 2001) .......ccccccccccccsesceseeeeeeeens 15
312 F. 3d 677 (Sth Cir. 2002).........ccccccccceceeeeeeee 15, 20
l _v. ] il Co.,
191 F.3d 409 (4th Cir. 1999)... cccccccccccseeeeeeen 21, 22
156 F. 3d 416 (2d Cir. 1998)... ccccccccccccscsceeeeeeeeeen 22
589 F. Supp. 1437 (S.D. Fla. 1984) ........ccccccccceeeee 19
Corp., 153 F.3d 344 (6th Cir. 1998)............. 21, 24, 25
441 U.S. 600 (1979) ....ccccccccccccccccscscsessesesesesssseseeeees 10
544 F. Supp. 1135 (E.D. Pa. 1982) .......cccccccecceeeseeees 19
608 F.Supp. 1484 (D. Colo. 1985) ..............cccccceeees 9
ST 10
Gniffin v. Ocew ic Contractors, Inc..,

EE 10

3 F.3d 889 (Sth Cir. 1993)... ccccccccccccccscscescereeseneens 17
115 F.3d 1111 (3d Cir. 1997) ...cccccccccccccceeseceeeeeeen 27
TT 3, 5, 18, 27

(iii)

302 F.3d 1127 (10th Cir. 2002)............cccccceceeeees 13, 28
Ni ete ee Ea

—_ US. 77 (1981) os arti 9

118 F.3d 1298 (9th Cir. ESTATES 21, 24
Rodriguez v. United States,

ail age iia See 19
San Francisco v. Assessment Appeals Bd.,

122 F.3d 1274 (9th Cir. 1997) .....c.cccccccceseseeceseseseevees 19

it v. -

572 F. Supp. 802 (S.D. Ohio ES 8

613 F.Supp. 1563 (D.R.L. 1985) ..........cccecccceseseeeeeeees 20
W. Props. Serv. Corp. v. Shell Oil Co.,

358 F. 3d 678 (9th Cir. 2004)..0......cccccccceceseseseeseeeeen 28
Watt v. Alaska,

Se aes 26
Wickland Oil Terminals v. Asarco, Inc.,

792 F. 2d 887 (9th Cir. 1986).............eceseceseceseeeeees 19

STATUTES

Small Business Liability Relief and Brownfields
Revitalization Act, Pub. L. No. 107-118, 115

SD, a cnnisnninicentnnncninenaniiitnaninineniaiieaiinnsl 6
Clean Air Act, 42 U.S.C. § 7604(€) .............cccccceccceseceeseeeenes 27
Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA),

fe passim
ee Be cnenccnnnsnnitaiennintenainiinn 11
ie Fe ricctsnrnsnnmmnteniniiiticitiuniniiidnainitinl 11
Ee 16
GGG Beceem enannsini 16
42 U.S.C. § 9607(a)(4)(A)-(B)....cccccceccescesseecessesseesesseeneeneeees 18

(iv)

42 U.S.C. § 9607(a)4)(B)...cccceccccccsvveessssssveseecsvereceseneeen 13, 26

eT arcrncrcssienininnstinnninccnpdeaamaimnnineninaateceas 16
a is Se rrnnsintscscneneranntesenneneeenmsemmiennn 21, 26
ee I ccrvensirstuntecenienenmpctennienninseempimmememes 28
NS EN 27
Sp pe i rorcenreenennnememnieemmcnmmemnemesenas 12
Uniform Comparative Fault Act ..................cceccecceseeceseeeeeees 15
Uniform Contribution Among Tortfeasors Act........ 15, 29-30
REGULATIONS AND
ADMINISTRATIVE MATERIALS
re Be Fe rerenenscennanentenensnenseianinseamennesnnes 14
50 Fed. Reg. 47,912, 47,934 (Nov. 20, 1985).............ccc00000 19
53 Fed. Reg. 51,394, 51,462 (Dec. 21, 1988) ..................00+. 14
55 Fed. Reg. 8666, 8792-93 (Mar. 8, 1990).............-eceeeee. 13

EPA, Documentation of Reason(s) for Not Issuing
CERCLA Section 106 UAOs to All Identified
PRPs (Aug. 2, 1996),
http://www.epa.gov/compliance/resources/
policies/cleanup/superfund/reason-cer 1 06-

EPA, Interim CERCLA Settlement Policy, 50 Fed.
I OU Oe 29
EPA, Interim Guidance on Orphan Share
Compensation for Settlors of Remedial
Design/Remedial Action and Non-Time-
Critical Removals (June 3, 1996),
http://www.epa.gov/compliance/resources/pol
icies/cleanup/superfund/orphan-share-rpt.pdf............ +
EPA, Model RD/RA Consent Decree (May 2001),
www.epa. gov/compliance/resources/policies/
cleanup/superfund/mod-rdra-cd.pdf.......................-.. 12

Notice of Availability of Final Draft Guidance for
Developing Superfund Memoranda of
Agreement (MOA) Language Concerning
State Voluntary Cleanup Programs, 62 Fed.

Reg. 47,495 (Sept. 9, 1997)....cc.ccccccsssssssseveesseee

LEGISLATIVE MATERIALS

CG GO, GE. BE eee Ce ccnsscccsnensernsnsmnssseesensssesessese

Comm. on Public Works and Transp., 99th Cong.,

|” “ESB eal TP eA
H.R. Doc. No. 99-32, at 73 (1985)...ccccccccccssssssssssseeeseeen
H.R. Rep. No. 99-253, pt. 1, at 80 (1985) ....cccccccssssese-
H.R. Rep. No. 253, 99th Cong., at 18-19 (1985)...........

Reauthorization of Superfund, Hearings Before the
House Subcomm. on Water Res. of the
Comm. on Public Works and Transp., 99th

Se
S. Rep. No. 99-11, af 44 (1985) ...............ccccseccoccesseserees
Se a, Gee G8 BP Ge cercrennenseemmnneen

Oversight Hearings Before the House Subcomm. on
Admin. Law and Governmental Relations,
Comm. on the Judiciary, 99th Cong., 51

Superfund Improvement Act of 1985, Hearing
Before the Senate Comm. on Env't and Public

Works, 99th Cong., at 52-53 (1985)...

Superfund Reauthorization: Judicial and Legal
Issues, Oversight Hearing before the House
Subcom. on Admin. Law and Governmental
Relations, Comm. on the Judiciary, 99th

SG "ER aid ReneS

MISCELLANEOUS

Environmental Law Institute, An Analysis of State

Superfund Programs, 34 (2002)...

Inside EPA Environmental Policy Alert, Aviall May
Divert Superfund Enforcement Fund, EPA

Official Says (February 4, 2004) o.0...0....cccccccccsese.
Prosser, Law of Torts § 50 (4th ed. 1982)..0.00...-ccccccesse.
(vii)

ju the Supreme Court of the United States

COOPER INDUSTRIES, INC., Petitiorer,
Vv.

AVIALL SERVICES, INC., Respondent.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR ATLANTIC RICHFIELD COMPANY, ET
AL. AS AMICI CURIAE SUPPORTING RESPONDENT

INTEREST OF AMICI CURIAE’

Amici have diverse interests in cleanup of contaminated
property under the Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA”), 42 U.S.C.
9601 et seq., but all share the view that CERCLA should be
interpreted to encourage and not penalize responsible parties
who step forward to undertake prompt and environmentally
protective cleanups of contaminated sites. All share an
interest in an interpretation of CERCLA that is consistent
with its language and purpose and the long-standing policy
and practice of the United States Environmental Protection
Agency (“EPA”).

' In accordance with Rule 37.6, amici curiae ify that counsel for a
party did not author this brief in whole or in part that no entity other
than the amici, their members, or their counsel made a monetary
contribution to the preparation or submission of the brief.

Atlantic Richfield Company, Federal Mogul Corporation
and Crane Company are potentially responsible parties at
numerous CERCLA sites, and have frequently expended
funds to clean up contaminated property in reliance on the
right to seek contribution from other responsible parties
under CERCLA. Accordingly, these corporations have a
substantial interest in prompt, efficient and effective
cleanups under CERCLA, without the requirement of
unnecessary litigation, and in the availability of contribution
for responsible parties who have incurred cleanup costs.

Amicus Bluewater Network is an _ environmental
organization with membership throughout the United States
dedicated to championing innovative solutions and inspiring
individuals to protect the earth's finite and vulnerable
ecosystem. It and its members have an interest in ensuring
that responsible private parties will continue to undertake
cleanups of contaminated sites that protect the environment.

Amici LFR, Inc., the Source Group, Inc., and Geomatrix
Consultants, Inc. are engineering and consulting firms that
regularly conduct and oversee cleanup of contaminated
properties under CERCLA. They have a substantial concern
that the position advanced by Petitioner could result in a less
efficient cleanup process under CERCLA.

SUMMARY OF ARGUMENT

The overarching objective of CERCLA is to facilitate the
prompt cleanup of contaminated sites at which there have
been releases of hazardous substances, so as to protect
human health and the environment. CERCLA Sections
107(a) and 113(f) encourage private persons to undertake
prompt cleanup action by allowing persons who incur
cleanup costs to seek contribution from parties who also
have liability for contamination at the site, but who have not
acted in the same timely manner. Petitioner argues that
contribution should only be available to persons who wait for
the government to bring an enforcement action against them,
or who have settled with the government. If this position

were adopted, it would severely undermine CERCLA’s core
objectives by discouraging private parties from undertaking
prompt, high-quality cleanups of contaminated sites. It
would instead encourage those parties to-delay cleanup until
the government files suit, so that they do not lose their ability
to seek cost recovery or contribution from any other parties
who may be liable for cleanup costs at the same site. This
would lead to unnecessary litigation, which would both
divert scarce governmental resources from more pressing
needs and increase the cost of the Superfund process for
parties who have, until now, been willing to undertake
cleanups without litigation. And the result would
compromise the overall fairness of the CERCLA liability
scheme by penalizing those who undertake cleanups
voluntarily and rewarding those who do not.

Not only is Petitioner’s position at odds with the
objectives of CERCLA, it is also at odds with the statute’s
specific terms. When viewed in the context of the entire
statute, this interpretation is premised on a tortured reading
of CERCLA, which ignores the plain language of Section
107 allowing any private party who undertakes cleanup to
recover costs from other liable parties. It is also at odds with
this Court’s decision in Key Tronic Corp. v. United States,
511 U.S. 809, 812 (1994), which makes clear that private
parties undertaking cleanup can rely on Section 107 and that
Sections 107 and 113 must be read together. A review of the
history of the these provisicns demonstrates quite clearly that
Congress was seeking to create a broad cost recovery and
contribution scheme, not the very narrow and wholly
illogical one argued for by Petitioner.

Further, the position taken here by the United States as
amicus is both incorrect as a matter of law, and also directly
contrary to positions it has taken again and again in briefs,
including to this Court, in regulations, and in other public
pronouncements.

Accordingly, the Court should “affirm the en banc
decision of the Fifth Circuit, which is fully consistent with

4

both the words Congress wrote and the objectives it sought
to achieve in enacting and amending CERCLA.

ARGUMENT

I. THE POSITION ARGUED FOR BY
PETITIONER WOULD SUBSTANTIALLY
UNDERMINE THREE IMPORTANT POLICY
OBJECTIVES OF CERCLA

A. The Enforcement Objectives of CERCLA
In 23 years since CERCLA’s enactment, three

fundamental goals have provided the basis for EPA’s
implementation of the statute, and each of these goals is
reinforced repeatedly in the text of the statute, its legislative
history, and judicial decisions. These three goals have been
(1) to promote rapid and effective cleanup of contaminated
property by private parties, (2) to provide greater fairness in
the joint and several liability scheme of CERCLA, and (3) to
reduce litigation and transaction costs. See, e.g., EPA,
Interim Guidance on Orphan Share Compensation for
Settlors of Remedial Design/Remedial Action and Non-
Time-Critical Removals (June 3, 1996), http://www.epa.gov/
compliance/resources/policies/cleanup/superfund/orphan-
share-rpt.pdf (stating that goals of enforcement policy reform
are “to provide greater fairness, reduce litigation and
transaction costs, and promote private party cleanup of
Superfund sites.”). Each of these three goals, long
recognized as integral parts of the statutory purpose, would
be substantially undermined if Petitioner's narrow
interpretation of CERCLA contribution rights were accepted
by this Court.

In this section, we first expand on each of these three
purposes and its fundamental importance to the effective
implementation of CERCLA, and then demonstrate how
each would be severely harmed if Petitioner’s interpretation
of the statute were adopted.

1. Encouraging Private Party Cleanup

Of the three CERCLA enforcement purposes discussed
here, promoting prompt and effective cleanup of sites by
private parties is in many ways the most important, because
cleanup of contaminated sites is why CERCLA exists. And
it is no surprise that this purpose has been reiterated again
and again, because Congress emphasized the importance of
encouraging private party cleanup in the initial 1980
enactment of CERCLA by clearly providing for recovery of
response costs by private parties under Section 107. See Key
Tronic, 511 U.S. at 816.

Congress also emphasized the goal of encouraging
private party cleanup when debating the 1986 SARA
amendments, which amended CERCLA Section 113 to
expressly provide a right of contribution. Legislative
sponsor Representative Lent stated: “I am especially proud
of a key groundbreaking structural reform that will
encourage responsible parties to come forward and take
responsibility for cleaning up the toxic waste sites they
helped create.” 131 Cong. Rec. 16573 (1985). The House
Report states that a goal of the new provisions is to
“encourage private party settlements and cleanups.” H.R.
Rep. No. 99-253, pt. 1, at 80 (1985).

During Congressional hearings on the SARA
amendments, Assistant Attorney General Habicht also
articulated the importance of encouraging private party
cleanups and encouraging persons to undertake cleanup
without an EPA enforcement lawsuit:

As the Government’s goals in this enforcement

process become clear, we’re confident that the

reasonable parties around the country, who’ve already
demonstrated a recognition of what the rules are and
what the goals of the Government are, will come
forward and will become participants in the cleanup
process.
Reauthorization of Superfund, Hearings Before the House
Subcommittee on Water Res. of the Comm. on Public Works

6

and Transp., 99th Cong. 549 (1985) (“Water Resources
Hearings”). :

Congress recently reemphasized the goal of encouraging
private party cleanup when it passed the Small Business
Liability Relief and Brownfields Revitalization Act. See
Pub. L. No. 107-118, 115 Stat. 2356 (2002). These
amendments to CERCLA sought, among other things, to
stimulate voluntary cleanup programs at the state and local
level by providing grants to facilitate private party cleanup of
so called “brownfield” sites, contaminated properties with
the potential for productive reuse and development. Id. at
§ 211. The Senate committee report accompanying this
legislation recognized the significance of voluntary cleanup
to the overall contaminated property problem, observing that
“(t]he vast majority of contaminated sites across the Nation
will not be cleaned up by the Superfund program.” S. Rep.
No. 107-2, at 15 (2001).

That same Senate committee report referred with
approval to existing EPA policy for reaching Memoranda of
Agreement (“MOA”) with states on voluntary cleanup
programs. Id. In 1997 guidance on drafting MOA with
states, EPA clearly indicated its belief that the availability of
contribution under CERCLA was an important component of
voluntary cleanup programs. See Notice of Availability of
Final Draft Guidance for Developing Superfund Memoranda
of Agreement (MOA) Language Concerning State Voluntary
Cleanup Programs, 62 Fed. Reg. 47,495 (September 9,
1997). The guidance demonstrates EPA’s position that a
private party taking action under a state voluntary cleanup
program can bring a contribution claim against other liable
parties under CERCLA Section 113, as long as cleanup
complied with the National Contingency Plan (“NCP”): “The
MOA should make clear to any private party that recovery of
response costs under CERCLA will require that the cleanup
action meet the requirements outlined in the National
Contingency Plan.” Id. at 47,499.

As this EPA guidance indicates, a broad right of
contnbution is essential for encouraging safe and effective
private party cleanup of CERCLA sites. As with the other
policy objectives discussed here, this goal is not new. The
necessity of broad contribution was emphasized when
President Reagan transmitted his administration’s proposed
Superfund amendment bill, a precursor to SARA, to
Congress in 1985. In the explanatory material
accompanying the bill, it was acknowledged that “[p]rivate
parties may be more willing to assume the financial
responsibility for cleanup if they are assured that they can
seek contribution from others.” H.R. Doc. No. 99-32, at 73
(1985).

2. Reducing Litigation and Transaction Costs

Reducing litigation and transaction costs has long been
another important objective of the CERCLA enforcement
scheme. During hearings that led to the SARA amendments
in 1986, members of Congress expressed concern about the
rising legal and transaction costs of the Superfund program.
For example, there was the following exchange between
Senator Simpson and Assistant Attorney General Habicht:

Senator Simpson: On this question of transaction
costs at sites, which is the lovely phrase which I guess
refers to legal and other fees expended during the
process, transaction costs, are we seeing the point that
legal fees are greater than cleanup costs at some of
those sites already? If that is so, is that a good use of
our national resources, and what does it imply about
the success of Superfund if that is happening.

Mr. Habicht: Senator, I don’t have the exact costs of

the litigation. I think it is absolutely fair to say, and |

feel strongly and I know it represents the
administration’s view, that litigation is not the most

desirable way of resolving issues... .

Superfund Improvement Act of 1985, Hearing Before the
Senate Comm. on Env’t and Public Works, 99th Cong., at
52-53 (1985).

This theme is repeated throughout the SARA legislative
history. For example, Mr. Habicht also testified that the
success of the Superfund enforcement program rested in part
on its ability to “discourage unnecessary and costly
litigation.”” Superfund Reauthorization: Judicial and Legal
Issues, Oversight Hearing before the House Subcom. on
Admin. Law and Governmental Relations, Comm. on the
Judiciary, 99th Cong., 38 (1985). Furthermore, the views
expressed by the Administration were shared by
congressional sponsors of the legislation, such as
Representative Lent, who described the House bill as one
“that will take the toxic waste cleanup effort out of the
courtrooms of America and to the abandoned waste sites
where it belongs.” 131 Cong. Rec. 16573 (1985).

3. Facilitating Fairness

The government has long argued that CERCLA can
impose liability that is joint and several, and that the
government can seek to hold a subset of the potentially liable
parties at a site responsible for all of the cleanup costs. See,
United States v. Chem-Dyne Corp., 572 F. Supp. 802 (S.D.
Ohio 1983). While the government has argued that joint and
several liability, while not explicitly set out in the statute, is
necessary to achieve programmatic goals, there has also been
a recognition that a broad night of contribution was necessary
for a fair enforcement process. Assistant Attorney General
Habicht emphasized in his Congressional testimony on
SARA that “an enforcement process has to be fundamentally
fair.” | Water Resources Hearing at 546. In other
Congressional testimony, Mr. Habicht elaborated on the
centrality of contribution nights to the statute’s fairness,

“ While a broad night of contribution could, in theory, also increase
litigation, the expectation is that most contribution claims can be
resolved without protracted litigation. If some litigation is necessary to
fairly allocate cleanup costs between numerous responsible private
parties, such litigation furthers the overall goals of CERCLA with little,
if any, added expense to the government.

[eee ese ee 882 7 €& | eee eee

9

stating very simply: “[t]he fairness of a joint and several
liability scheme depends upon the clear availability of
contribution.” Oversight Hearings Before the House
Subcomm. on Admin. Law and Governmental Relations,
Comm. on the Judiciary, 99th Cong. 51 (1985).

Similarly, judicial decisions have long recognized the
importance of contribution to the fairness of a joint and
several liability scheme. For example, in Oo V.
ASARCO, Inc., 608 F. Supp. 1484 (D. Colo. 1985), a
decision that preceded the 1986 SARA amendments adding
Section 113(f), the district court found that there was a right
to contribution under CERCLA and that such a right was
essential to the fairness of the liability scheme created. The
court cited Dean Prosser’s recognition that, “contribution is
an integral component of joint and several liability.” Id. at
1490 (citing Prosser, Law of Torts § 50 (4th ed. 1982)). The
court in ASARCO also cited this Court’s recognition of the
fairness of allowing contribution among parties who have

joint and several liability. Id. (citing Northwest Airlines, Inc.

v. Transport Workers Union of Am. 451 U.S. 77 (1981)).
B.

The interpretation argued for by Petitioner would result
in a CERCLA enforcement scheme that substantially
diminishes incentives for voluntary cleanups by private
parties, increases litigation costs, and is less fair. The United
States does not dispute these points, but instead contends (at
pp. 26-28) that, given what it perceives as clear statutory
language, these arguments should be made to Congress in
the context of a possible legislative enhancement, not to this
Court in deciding the interpretation of the existing statute.
But in interpreting the statutory language, the overarching
objectives of the statute are of great significance. It is a
black Jetter rule of statutory construction that a statute should
not be interpreted in a manner that would be irrationally at
odds with the very purposes of the statute. See, e.g.,

v. Engle, 464 U.S. 206, 217
(1984) (“Our duty then is ‘to find that interpretation which

10

can most fairly be said to be imbedded in the statute, in the
sense of being most harmonious with its scheme and with the
general purposes that Congress manifested.’”); Gniffin_v.
Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982) (“It is
true that interpretations of a statute which would produce
absurd results are to be avoided if alternative interpretations
consistent with the legislative purpose are available.’’);
Chapman v. Houston Welfare Rights Org., 441 U.S. 600,
608 (1979) (“As in all cases of statutory construction, our
task is to interpret the words of [the statute] in light of the
purposes Congress sought to serve.”). Petitioner’s view of
the statute is exactly such an irrational interpretation.

In examining the effect of Petitioner’s position—that
contribution is only available under CERCLA to parties who
have been sued or who have settled with EPA—it is useful to
consider three very different contexts where this
interpretation would produce absurd results that could not
possibly have been intended by Congress.

1. Voluntary Cleanups

The first category is the type of situation presented by the
facts of this case: a party that cleans up a site without first
being sued by the United States to undertake the cleanup.
Such a cleanup might be undertaken by a private party for
any number of reasons: the party knows it is liable for some
part of the contamination and desires to promptly reduce
risks to human health or the environment; the party desires to
conduct the cleanup before the situation is exacerbated by
contaminant migration or the passage of time; the party
desires to avoid liabilities to third parties who may be
affected by migrating contamination; or the party wants to
take advantage of incentives available for participation in a
State voluntary cleanup program. All of these reasons reflect
goals that were specifically articulated by Congress and
reinforced by EPA policy, and they all support CERCLA’s
ultimate goal of achieving prompt cleanup. Yet in all of
these situations, the party undertaking cleanup would, in

11

Petitioner’s view, have no ability to recover its costs or seek
contnbution from other liable parties under CERCLA.

Such a result is on its face not fair. The party doing the
cleanup may have been only a small contributor to the
environmental conditions at the site, or may have liability as
the present site owner without having contributed to the
contamination at all.’ Yet despite the fact that there may be
other clearly liable and viable parties from whom
contribution for the cleanup costs could be sought, under
Petitioner’s view the party actually doing the cleanup has no
ability to sue those other parties. The entire costs of the
cleanup would fall on the party who voluntarily remediates
the site, and the other parties could escape responsibility
altogether. This may be an example of the expression “no
good deed goes unpunished.” It is certainly not an example
of a fair enforcement scheme.

Petitioner’s interpretation would also inevitably result in
an increase of litigation and transaction costs. A party who
wants to preserve its contribution rights would have a strong
incentive to wait to do the cleanup until it has been sued, at
which point both it and the government would have to incur
legal costs. The government would be forced to use its
scarce resources to develop a case and be prepared to litigate
it, and a party that was willing to do the cleanup without
government compulsion would be forced to wait for
litigation before taking any cleanup action. While it might
seem that the litigation would be simple, and settlement
would quickly follow, experience teaches that such litigation
is rarely simple, and once it commences the interest of the

> Present owners of contaminated sites are often liable for those sites
even if their actions did not contribute to the contamination in any way.
While there are defenses to liability available for some owners of
contaminated property, those defenses are not always viable, even for
owners who have done nothing to contribute to the contamination. See
42 U.S.C. §$§ 9601 (35), (40).

Although a state remedy might be available, that option is limited, as
discussed further in Sectica LB-2, note 7, infra.

12

government and all parties to protect their legal positions can
lead them down a road far away from, not toward, cleanup
and settlement. Petitioner’s interpretation would compel the
government to litigate against defendants who simply want
the ability to seek contribution from other-liable parties.
Litigation would be complicated and more expensive for the
government than a voluntary cleanup, and it would
inevitably delay the cleanup process.

Alternatively, a party wanting to undertake a cleanup
could try to enter into an administrative settlement with the
United States, but that process will also result in an increase,
perhaps significant, in negotiation and other transaction costs
to that party and the United States. Settlements under
CERCLA are not pro forma matters, but are governed by the
detailed requirements of Section 122 of the statute, 42 U.S.C.
§ 9622, which impose limitations and _ procedural
requirements on how EPA enters into such entitlements.
EPA also utilizes complex and lengthy model settlement
documents that cannot be negotiated simply and
inexpensively.”

Senior EPA officials have recognized that there would be
increased transaction costs and adverse effects were
Petitioner’s position adopted. For example, Bill Muno, who
has served for many years as the Superfund Director for
EPA’s largest regional office, has publicly stated that a
ruling from this Court adopting Petitioner’s position could
force EPA to divert limited Superfund enforcement money to
sites that liable parties are already remediating voluntarily,
thus harming Superfund enforcement and the goal of
achieving site cleanups. See Inside EPA Environmental

> For example, EPA’s Model Consent Decree for agreements to
implement remedial action is over 50 pages long with 127 separate
provisions. See EPA, Model RD/RA Consent Decree (May 2001),
www.epa.gov/compliance/resources/policies/cleanup/superfund/mod-
rdra-cd.pdf.

13

Policy Alert, Aviall May Divert Superfund Enforcement
Fund, EPA Official Says (February 4, 2004).

Finally, the most unfortunate effect of the acceptance of
Petitioner’s position would be that fewer voluntary cleanups
would be done. Parties who now have an incentive to do
cleanups without being sued will analyze the costs and
benefits of doing such cleanups differently, and in many
cases will not do them. If Petitioner prevails, the net effect
will be that there will be more contaminated sites in the
United States three, five, and ten years from now than if
Respondent prevails.

Such a result would also have a devastating effect on the
formal voluntary cleanup programs that many states have
adopted with encouragement from EPA, like the Texas
program that was utilized by Respondent in this case.
Moreover, as mentioned above, EPA has long made it clear
that parties participating in such programs should be able to
seek recovery of costs from other liable parties under
CERCLA. See 55 Fed. Reg. 8666, 8792-93 (Mar. 8, 1990)
(“EPA believes that it is important to encourage private
parties to perform voluntary cleanups of sites, and to remove
unnecessary obstacles to their ability to recover their costs
from the parties that are liable for the contamination.””). That
the United States has decided in this case to completely
undermine EPA’s long-standing position will greatly weaken
EPA’s ability to encourage voluntary cleanups under any
program.

Not only is the availability of contribution an important
incentive for private parties to conduct cleanups, but it is also
a powerful incentive for them to conduct good and thorough
cleanups. CERCLA provides that a private party can only
recover response costs that are “consistent with the national
contingency plan.” 42 U.S.C. § 9607(a)(4)(B); see also,
Mormison Enter. v. McShares, Inc., 302 F.3d 1127, 1135-36
(10th Cir. 2002). The NCP is part of CERCLA's
implementing regulations, and it contains detailed
requirements for how cleanups are to be conducted. See 40

14

C.F.R. pt. 300. A party that knows it will have to have to
demonstrate compliance with the NCP to recover its costs
from other liable parties has a strong incentive to conform to
the NCP, which helps ensure that the cleanup is protective of
human health and the environment. A party that knows it
cannot recover its costs under CERCLA will not have the
same incentive to comply with the NCP.

In 1988, EPA recognized this incentive and added
provisions to the NCP that were intended to make it easier
for a private party undertaking cleanup to know how to
comply with the NCP. EPA stated “that providing a list of
requirements to be complied with in order to be consistent
with the NCP will enhance the probability of a successful
cost recovery action, thus providing an incentive to other
persons to undertake response actions.” 53 Fed. Reg.
51,394, 51,462 (Dec. 21, 1988).

2. Respondents to Section 106 Orders

Section 106 of CERCLA allows EPA to issue orders to
liable parties to undertake cleanup. This is a powerful tool,
and one that EPA uses frequently. EPA guidance encourages
the use of such orders so that liable parties and not EPA will
undertake cleanup. EPA guidance also encourages the
issuance of such orders to a subset of all the liable parties at
a site, based on an assertion of joint and several liability, so
that enforcement of the order by EPA will be manageable.
See EPA, Documentation of Reason(s) for Not Issuing
CERCLA Section 106 UAQOs to All Identified PRPs (Aug. 2,
1996), _ http://www.epa.gov/compliance/resources/policies/
cleanup/superfund/reason-cer106-rpt.pdf. © What happens,
then, if there are 60 liable parties at a site, EPA issues such
an order to 30 of those, and only 10 of those agree to comply
with the order and in fact undertake the entire cleanup? Can
those 10 sue the 20 non-compliers and the 30 non-recipients
for contribution?

The Fifth Circuit panel decision recognized the absurdity
of denying contribution in such a case, and held that a
Section 106 administrative order would qualify as a civil

15

action for purposes of Section 113(f), thereby providing a
predicate for contribution. See Aviall Servs., Inc. v. Cooper
Indus., Inc., 263 F. 3d 134, 140 n.5 (Sth Cir. 2001). But the
United States in its amicus brief here (at 22, n. 11) argues
that such an order is not a civil action, meaning the
compliers would have no CERCLA contribution claim. It is
inconceivable how Congress could have intended such a
result.°

Certainly it is grossly unfair. A small group of compliant
parties would be forced to shoulder the entire burden of the
cleanup, and the non-compliers and those whom EPA chose
not to pursue at all would get a free ride. The result would
be even more unfair, and quite strange, if the United States
were to sue the non-compliers in federal court and they were
ordered by the court to comply with the Section 106 order
and participate in the cleanup. Those initial non-compliers—
who only performed the cleanup after being sued and
ordered by a court to do so—would have a contribution
claim for their costs against the non-recipients. And the
original compliers, who did precisely what EPA wanted
them to do, would have no federal contribution claim.

It is true that in such a situation the compliers with the
order might have a contribution claim under state law. But
the availability of such a remedy is limited and varies by
state.’ Even if such a remedy were available, the

° This position also represents an uivocal reversal of arguments the
United States has repeatedly advanced before, as discussed further below.

” As the en banc court of appeals recognized below, the availability of
contribution under state law varies widely. See Aviall Servs., Inc. v.
Cooper Indus., Inc., 312 F. 3d 677, 690 n. 28 (Sth Cir. 2002) (en banc).
Some states allow contribution claims only after judgment has been
entered on the underlying liability in a judicial proceeding. Id. Although
many states have adopted some version of one of two uniform
contribution acts, the Uniform Contribution Among Tortfeasors Act and
the Uniform Comparative Fault Act, the availability of such claims will
vary greatly depending on the particular state law and the facts of each
case. Furthermore, a recent nationwide survey of state Superfund

Footnote continued on next page

16

contribution claims of the compliers would be adjudicated
under state law in the state court, and the contribution claims
of the non-compliers would be decided in federal court under
federal law, a recipe for total confusion.

Again, the result argued for by Petitioner could increase
litigation and transaction costs, as Section 106 order
recipients would have an incentive to disobey the order and
wait for the United States to sue them. In doing so, they
would run the risk of claims for penalties and punitive
damages under provisions which were intended to encourage
compliance. See 42 U.S.C. §§ 9606(b), 9607(c)(3). Surely,
a party should not be put in a position where it is penalized
and subject to punitive damages for failure to comply with
an order, and also penalized, by loss of its contribution
nights, when it fully complies. with the same order.
Compliance should not trigger a penalty.

3. Demand Recipients

A third situation which would be impacted by
Petitioner’s argument is that of potentially liable parties who
receive cost demands from EPA, where EPA undertakes
cleanup itself, and pay the amount demanded. EPA is
encouraged by CERCLA to issue such demands, because
interest on costs EPA has incurred only begins to run once
demands are issued. See 42 U.S.C. § 9607(a) (interest runs
from the later of “the date payment of a specified amount is
demanded in wniting” and the date of the expenditure); see
also, In re Bell Petroleum Services, Inc., 3 F.3d 889, 908 (Sth
Cir. 1993).

Footnote continued from previous page

programs by the Environmental Law Institute found that of the 36 states
employing a joint and several liability scheme for contaminated property
cleanup costs similar to CERCLA, only 11 provide an explicit right to
allocate cleanup costs to other liable parties. See Environmental Law
Institute, An Analysis of State Superfund Programs, 34 (2002). Because
of barriers such as these, contribution under state statutes often will not
provide an adequate remedy.

17

As with Section 106 orders, the party that cooperates
with EPA would be penalized by losing its contribution
rights because it paid before it was sued. Thus, the party that
does what the government has asked it to do loses an
important right of contribution, while the parties who do not
pay the demand and are instead sued retain a contribution
right. Such a result, again, would increase litigation and
transaction costs. And while it will not reduce private party
cleanups, it will delay the return of money to the Superfund
that could be used to clean up other sites.

KEES

The following chart summarizes how, in these three
situations, Petitioner’s interpretation would deny
contribution nghts to those who behave the way the
government wants them to, and allow contribution for those
who do not:

Contribution No Contribution
Available Available
Voluntary Ignore Clean up property
Cleanup contamination
EPA § 106 Order | Disobey until sued | Comply with order
EPA Cost | Refuse until sued | Pay the demand
Demand

Petitioner’s proposed interpretation asks this Court to
hold that Congress intended these illogical results. Surely, if
there were any reading of the statute to avoid such a result,
that would be the preferred reading. As the next section
shows, not only is there such a reading, it is the best reading
of the statute, and one that the United States has previously
endorsed.

18

II. PETITIONER’S INTERPRETATION IS
CONTRARY TO THE PLAIN STATUTORY
LANGUAGE OF CERCLA

A. The Plain Language of CERCLA § 107

The plain meaning of Section 107 permits the
government or “any other person” to bring a cost recovery
claim under CERCLA. See 42 U.S.C. § 9607(a)(4)(A)-(B).
As Judge Posner has put it, “(t]he statute is clear that
whoever...incurs costs in cleaning up a contaminated site
can seek to recover them from any responsible person...”
Amcast Indus. Corp. v. Detrex Corp., 2 F.3d 746, 748 (7th
Cir. 1993). This Court recognized as much in Key Tronic,
when it held that Ҥ 107 unquestionably provides a cause of
action for private parties to seek recovery of cleanup
costs....” Key Tronic, 511 U.S. at 818. In Key Tronic, the
Court allowed a private party not only to seek contribution
for costs it paid the government, but for costs it had itself
incurred in locating other potentially liable parties. Id. at
819-20. Although the opinion of the Court was that this
private right of action was implied, Justice Scalia argued in
dissent, based on “the plain language of these provisions,”
that private litigants clearly have an express cause of action
under Section 107. Id. at 821-22 (J. Scalia dissenting in part,
joined by J. Blackmun and J. Thomas).

This could well be the end of the inquiry. CERCLA
allows private parties who undertake cleanup to sue liable
parties for cost recovery, and the statute does not restrict
those who can assert such claims to parties who are not
themselves liable under Section 107. Section 107 refers to
costs incurred by any other person, and a liable party is
certainly that. Petitioner’s argument depends on the
proposition that Section 107 should be read contrary to its
language to prohibit liable parties from seeking cost
recovery, and Section 113(f)(1) should be read to exclude
contribution claims by parties who haven not been sued.

19

Before addressing this argument, it is useful to review the
state of the law when SARA was enacted.

B. The Law Before and After SARA

It was clear, prior to the enactment of SARA in 1986,
that liable parties who conducted cleanup could successfully
sue other liable parties pursuant to Section 107(a)(4). For
example, in City of Philadelphia v. Stepan Chemical Co.,
544 F. Supp. 1135 (E.D. Pa. 1982), the City of Philadelphia,
itself a liable party, sued other liable parties under- Section
107(a)(4) for the City’s costs in cleaning up a landfill. The
defendants argued that because the City was liable, it was
precluded from relying on Se*tion 107. The district court
rejected that argument, “[bJecause such preclusion is not
compelled by the language of CERCLA, by its legislative
history, or by the environmental objectives which it is
designed to achieve...” Id. at 1142. Other courts that
recognized a pre-SARA right of liable parties to sue other
liable parties under Section 107 include Wickland Oil
Terminals v. Asarco, Inc., 792 F. 2d 887 (9th Cir. 1986); NL
Indus., Inc. v. Kaplan, 792 F. 2d 896 (9th Cir. 1986); and
Bulk Distribution Ctrs., Inc. v. Monsanto Co., 589 F. Supp.
1437 (S.D. Fla. 1984). EPA also recognized such a right in
its pre-SARA promulgation of the NCP. See 50 Fed. Reg.
47,912, 47,934 (Nov. 20, 1985) (discussing NCP
requirements for private party cost recovery).

When Congress amended CERCLA in 1986, it was
concerned, as discussed above, about increasing incentives
for private party cleanup, and there is not the slightest
indication that it intended to take away the existing right of
private party cost recovery under Section 107. To adopt
Petitioner’s view would be to hold that Section 113(f)(1)
implicitly repealed an existing right under 107. However,
repeals by implication are not favored, and the intent of
Congress to repeal must be manifest. See Rodriguez v.

United States, 480 U.S. 522, 524 (1987); San Francisco v.
Assessment Appeals Bd., 122 F.3d 1274, 1276 (9th Cir.

1997).

20

Far from expressing an intent to narrow the nghts of
parties who conducted or financed cleanups, Congress in
enacting SARA was interested in expanding those rights.
One issue that had arisen pre-SARA was whether a party that
was sued for cost recovery or to conduct a cleanup, but had
not itself undertaken a cleanup, had a right to contribution,
and some pre-SARA courts had found such a night to exist.
See, e.g., Violet v. Picillo, 613 F.Supp. 1563, 1573 (D.R.I.
1985). In SARA, Congress added explicit contribution
language simply to clarify and confirm that existing right.
See S. Rep. No. 99-11, at 44 (1985); H.R. Rep. No. 253, 99th
Cong., at 18-19 (1985). See also, Aviall, 312 F. 3d at 684
(citing Congressional reports).

In this process, much attention was given to the question
of when that contribution nght could be asserted. The
United States was initially concerned about having a
contribution action appended to its enforcement action,
which would complicate and delay the resolution of the
government’s claims. Therefore, the initial administration
proposal provided that “[i]n any civil or administrative
action under [Section 107 or 113], any claims for
contribution or indemnification shall be brought only after
entry of judgment or date of settlement in good faith.” H.R.
Doc. No. 99-32, at 23 (1985). As proposed, this change
would have allowed “the government to limit the number of
parties in its actions, so that litigation could be conducted in
a more efficient and expeditious manner.” Id. at 74.
Eventually, the proposed legislation was changed to make it
clear that a defendant sued under CERCLA could seek
contribution even in the same action in which it itself was
sued—in other words, the contribution claim could be
brought “during or following” the government’s action. But
again, there is no indication that this reference to “during or
following” was intended to limit contribution nghts. To the
contrary, Section 113(f)(1) makes clear that it does not

“diminish the nght of any person to bring an action for-

21

contribution in the absence of a civil action under section
[106 or 107].” 42 U.S.C. § 9613 (f)(1).

In other words, Congress initially created an incentive for
private party cleanups by creating a right of private party
cost recovery in 1980, and then it expanded the rights of
cooperating private parties with the 1986 SARA
amendments.

C. The Effect of Section 113(f)

Petitioner asserts that Congress eliminated private party
cost recovery nghts by the promulgation of Section
113(f)(1). This argument, and that of the United States, is
premised on the fact that most courts of appeals have
interpreted the statute to prohibit parties who themselves are
potentially liable under CERCLA from suing other liable
parties solely under Section 107, and have instead required
that they proceed under Section 113(f). See, e.g., Pinal
Creek Grp. v. Newmont Mining Corp., 118 F.3d 1298, 1306
(9th Cir. 1997); Centerior Serv. Co. v. Acme Sc
Metal Corp., 153 F.3d 344, 356 (6th Cir. 1998); Axel
Johnson, Inc. v. Carroll Carolina Oil Co., 191 F.3d 409, 415
(4th Cir. 1999).

This judicial interpretation of Section 107, which finds
no direct support in the statutory language, has been based
almost entirely on the premise that Congress intended such
parties to recover cleanup costs from other liable parties
through a contribution claim under Section 113. But in these
cases, the concern of the courts has been uniformly how such
liable parties could seek cost recovery, not whether they
could at all. Courts have been concerned that calling such a
cost recovery action something other than “contribution”
could allow for assertion of joint and several liability by such
liable parties or could allow circumvention of the protection
from contribution claims given to settlers under section
113(f)(2). See, Axel Johnson, 191 F.3d at 415-16; Centerior
Service, 153 F.3d at 352, n.11. But none of these decisions
suggested that by recasting the claim as a contribution claim,
the claim would be lost altogether. To the contrary, in these

22

cases that precluded direct Section 107 actions by liable
parties, the courts assume that Section 113(f) actions are
available. See, Bedford Affiliates v. Sills, 156 F. 3d 416,
425 (2d Cir. 1998) (“Bedford instead must rely on a claim
for contribution provided for in CERCLA § 113 (f)(1)”);
Pinal Creek, 118 F. 3d at 1301 (“{t]his duality [between
Sections 107 and 113] is best implemented by permitting a
PRP who has incurred cleanup costs to assert only a
contribution claim against other PRPs”); Axel Johnson, 191
F. 3d at 415 (private parties “who are potentially responsible
for cleanup costs under § 107 cannot bring § 107 cost
recovery actions; rather, such parties ‘must seek
contribution’ under § 113”). These courts provide no
indication that they intended to eliminate substantive nghts
under CERCLA for entire categories of private plaintiffs by
characterizing cost recovery claims as contribution claims.

D. The United States’ Changing Position

The United States notes that it has consistently argued in
favor of this prevailing counter-textual interpretation of
Section 107. See Brief of United States at 20, n.9 (citing
Brief of United States as Amicus Curiae in Support of
Defendants-Appellants in Pinal Creek at 10 (9th Cir. 1996)
(“Ninth Circuit Pinal Creek Brief’)). However, the United
States has advanced this argument in the past based on the
express argument that all liable parties who incurred cleanup
costs were entitled to seek contribution under Section 113.

The Ninth Circuit Pinal Creek Brief is very illuminating.
Pinal Creek was a cost recovery action brought by a liable
party that had performed a voluntary cleanup—essentially
the same situation as that presented here. The United States
argued that such a party could seek contribution under
Section 113 of CERCLA. The United States asserted that
the issue before the court was “the nature of action available
to an admittedly liable party that has incurred CERCLA
response costs without any judgment, administrative order or
settlement compelling cleanup.” Ninth Circuit Pinal Creek
Brief at 10. The United States closed the summary of its

23

argument by stating that “[t}he Superfund statute already has
built-in incentives to encourage voluntary cleanups: they are
less expensive, involve less government control and may
result in fair share allocations through Section 113
contribution actions.” Id. at 12.

When opposing the petition for writ of certiorari to this
Court in Pinal Creek, the United States again made its
position clear that a party performing voluntary cleanup
could bring a CERCLA contribution claim. In its brief to
this Court, the United States stated that “(t]he court of
appeals was properly skeptical of the contentions, pressed by
petitioners and their amici, that its holding would discourage
voluntary cleanups.” Brief of United States as Amicus
Curiae Opposing Granting of Certiorari in Pinal Creek at 14
(U.S. 1998). The United States further emphasized this point
by asserting that “[t)he right to contribution provides a strong
additional incentive to engage in a voluntary cleanup,” and
that, “[a]s the court of appeals recognized, the courts are
authorized to take into account a responsible party’s
cooperation with cleanup efforts when equitably allocating
liability among responsible parties under Section 113(f)(1).”
Id. at 15.

In the Centerior Service case, the United States again
asserted that a liable party could not sue under Section 107.
The liable party had received a Section 106 administrative
order from EPA, but it had not been sued in a civil action.
The United States, while asserting that there should be no
Section 107 cost recovery action for such a party,
acknowledged that there would certainly be a contribution
action under Section 113. In its brief, the United States
framed the question before the court of appeals as “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.”
Brief of Defendants-Appellees Secretary of Defense,
Secretary of Veterans Affairs, and Administrator of National
Aeronautics and Space Administration in Centerior Service,

24

at 6 (6th Cir. 1997) (“Centerior Service Brief”). The answer
to this question, as the United States saw it then, was that
“such parties are limited to an action for contribution
governed by CERCLA § 113.” Id. And as in Pinal Creek,
the United States argued that “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.” Id. at 2.

In fact, the plaintiffs in Pinal Creek and Centerior
Service each directly raised the very question at issue here,
whether they might actually be precluded from seeking
contribution under Section 113 because they had undertaken
cleanup voluntarily or pursuant to a unilateral EPA
. administrative order. See Pinal Creek, 118 F.3d at 1305;
Centerior Service, 153 F.3d at 351. The Pinal Creek court
concluded that parties undertaking voluntary cleanup were
permitted to seek contribution under Section 113, as the
United States had argued in its amicus brief and would
repeat again in opposing certiorari. See Pinal Creek, 118
F.3d at 1304-05 (echoing United States’ Ninth Circuit Pinal
Creek Brief at 12, supra). In Centerior Service, the United
States flatly rejected the plaintiff's suggestion that it could
not bring a CERCLA contribution claim except “during or
following a civil action” under Sections 106 or 107. See
Centerior Service Brief at 28. As the United States saw it
then, “{tJhe plain language of CERCLA § 113(f)(1) is not
restrictive, i.e., it does not say that a contribution action may
only be brought during or following a civil action under
CERCLA.” Id. (emphasis in original). The United States
further argued that such a restrictive construction of Section
113 was particularly untenable in light of the provision that
nothing therein “shall diminish the nght of any person to
bring an action for contribution in the absence of a civil
action under” Sections 106 or 107. Id. at 28-29 (emphasis in
original). Accordingly, the court of appeals in Centerior
Service ruled that a Section 106 administrative order was
sufficient to trigger contribution rights under CERCLA,

25

stating that it was “disingenuous at best for the plaintiffs,
who have not challenged their status as PRPs, to claim their
action is not one for contribution simply because the EPA

was not forced to take them to court.” Centerior Serv., 153
F.3d at 352.° ,

| The plaintiff's argument in Centerior Service may have
nghtly seemed disingenuous at the time, when the United
States was clearly and unequivocally arguing that the plain
language of the statute allowed a CERCLA contribution
claim for parties who engaged in cleanup without being
sued. Yet today, the United States takes precisely the
Opposite position, arguing (at p. 22-23, n.11) that a liable
party must wait for EPA to take them to court before
contribution is available under CERCLA.

However, the plaintiffs in Pinal Creek and Centerior
Service prophetically foresaw the nightmare scenario that
might face the willing party who was deemed too culpable to
bring a claim under Section 107, which by its plain language
is available to any person, but not culpable enough, because
it had not forced litigation, to seek contribution under
Section 113. The United States directly argued that this
scenario would not come to pass because voluntary and
administratively compelled cleanup expenditures could be
recovered in CERCLA contribution suits, and°the courts of
appeals accepted this argument when interpreting the statute.
Now the United States has reversed its position, and not only
does that reversal reflect bad policy that contradicts
CERCLA’s express language and widely recognized goals,
but it upsets the expectations of private parties and federal
courts that relied on the previous representations of the

8 :
eee Se Unik Stes’ pusttion on Geo tesue was clear tn tts tniel
Centerior Service court e y reserved j on the
or S' xpressl udgment question
addressed in Pinal Creek, whether a party undertaking cleanup without
any government compulsion whatsoever was entitled to seek contribution
under CERCLA. See Centerior Service, 153 F.3d at 351, n.10.

26

United States when interpreting the statute. Given this
recent change in position, the United States’ latest
interpretation of the statute should not be given any special
deference. See Watt v. Alaska, 451 U.S. 259, 272-73 (1981).
In fact, deference should be given to the initial position of
the United States, which parties and courts relied on for
many years as an authoritative interpretation of the statute.”

E. Resolution of Sections 107 and 113

The counter-textual result that this collective
interpretation of Sections 107 and 113 would compel,
entirely denying recovery under CERCLA to an entire class
of private parties, can be resolved in one of two ways. The
simplest way is to reject Petitioner’s construction of Section
113(f) and conclude, as the United States argued in Centerior
Service and the full court of appeals concluded here, that the
first sentence of Section 113(f) has no limiting effect because
it does not say that a party may only bring a contribution
claim “during or following” another civil action under
CERCLA. This provision simply clarifies that a contribution

* The Pinal Creek and Centerior Service briefs are but two examples of
the long line of cases in which the United States has argued the exact
opposite of what it is arguing here. For example, in the Axel Johnson
case, the United States asserted in its brief to the court of appeals that
“[w)hen PRPs conduct the cleanup of a site, they may seek to recover
some portion of their necessary costs of response form other PRPs. See
42 U.S.C. 9607(a4\(B); 9613(f(1) (providing right of contribution. )”
Brief of United States as Amicus Curiae Urging Partial Reversal in Axel
Johnson at 3 (6th Cir. 1999) (“Axel Johnson Brief’). This stands in
contrast to the statement made by the United States in its brief here
(at p. 26) 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.”
The United States acknowledges in its brief (at p. 26) that it may have
“nurtured” the assumption that it in essence agreed with Respondent with
“erramt language” that is at odds with its position here. But these prior
inconsistencies in briefs filed in multiple courts of appeals and in this
Court are not “errant language.” The reality, as demonstrated here, is
that the United States is reversing its position, but continues to cite to
precedents obtained based in part on its previous use of “errant
language.”

27

claim can be brought during a Section 106 or 107 action, and
need not wait for the conclusion of the government suit.

The final sentence of Section 113(f)(1) further reinforces
this conclusion by providing that nothing in the subsection
should be read to preclude “an action for contribution in the
absence of” a claim under Sections 106 or 107. 42 U.S.C. §
9613(f)(1). This language differs markedly from savings
clauses found in other statutes, that preserve remedies under
other laws, in that it does not refer specifically to any other
laws and it explicitly refers to the availability of “an action
for contribution” without a prior claim under Section 106 or
107.'° See also, In re Reading Co., 115 F.3d 1111, 1120 (3d
Cir. 1997) (“113(f)(1) specifically permits an action for
contribution to be brought ‘in the absence of a civil action
under. ..section [107]”). Again, the United States recognized
this premise in its Centerior Service Brief.

With this provision viewed in its proper context, it is
clear that Congress intended Section 113(f)(1) to preserve
the clear nght to recovery of cleanup costs expended by any
private party, which this Court recognized in Key Tronic.
What are being “saved” are not only state causes of action,
but also the nghts created under Section 107 itself. This
interpretation of the statute is entirely consistent with the
statutory language and purpose, and it is also fully consistent
with this Court’s decision in Key Tronic, which held that
Sections 107 and 113 created overlapping remedies that must
be read together. See Key Tronic, 511 U.S. at 816. This
interpretation would also avoid the numerous adverse policy
implications discussed above, which Congress plainly could
not have intended.

However, if the Court concludes that Petitioner’s
interpretation of the “during or following” language is

° For example, a a a in the citizen suit section of the
Pfr yd “{njothing in Section 304 shall restrict any
right which any person ...may have under any statute or common
law...to seek any other relief...” 42 U.S.C. § 7604(e).

28

correct, it should clarify that a potentially liable private party
who has been subject to a state or federal administrative
cleanup order or undertaken cleanup voluntarily, but has not
been sued under Section 106 or 107 of CERCLA, can
recover costs from other liable parties under the “any other
person” language of Section 107.'' This construction would
preserve the plain intent of Congress to provide a cause of
action for any person that incurs cleanup costs, and it would
also resolve confusion among the courts of appeals as to
which parties are entitled to bring claims under Section 107.
See Morrison Enter. v. McShares, Inc., 302 F.3d at 1134-35
(noting disagreement in courts of appeals).

F. Distinction from Common Law Contribution

The United States contends (at p. 18) that allowing
contribution here would be problematic because Section 113
is premised on the common law night of contribution, and
under common law, to bring a contribution claim, a party
would have to extinguish the liability of the contribution
defendant to the primary plaintiff. The United States is
wrong. That may have been the prevailing common law
rule, but it is certainly not the rule that underlies CERCLA.

Section 113(f)(3) of CERCLA, 42 U.S.C. § 9613(f)(3),
explicitly provides that a liable party can be sued in
contribution even if its liability to the government has not
been extinguished. When a party settles with the
government for some, but not all, of the government’s

m Alternatively, the Court could determine, as the Ninth Circuit recently
did, that the action seeking contribution can itself be viewed as an action
under Section 107, and therefore it falls within the contours of the first
sentence of Section 113(f)(1). See W. Props. Serv. Corp. v. Shell Oil
Co., 358 F. 3d 678, 685 (9th Cir. 2004). Although this seems a less
direct way to reach the same result, it is consistent with the United
States’ argument to the court of appeals in the Axel Johnson case, where
the United States stated that “[{t]echnically, all CERCLA actions for cost
recovery are brought under section 107, which provides the elements of a
claim for cost recovery and lists the liable parties and the defenses to
liability. Section 113(f)(1) supplements section 107....” Axel Johnson
Brief at p. 7, n.6.

29

response costs, the government may seek the remainder of its
costs from non-settlors and the settlors may seek
contribution from the non-settlors. Both claims may proceed
simultaneously, with the sole proviso being that the
government’s claims have priority in payment. In other
words, a party that unequivocally has not discharged another
party’s liability—the other party is still being sued by the
government—continues to have a contribution claim under
CERCLA.

That CERCLA deviates from earlier common law rules
is not surprising. That is precisely what the United States
had argued for prior to SARA’s enactment. This can be seen
by comparing the United States’ position here to its position
in 1985.

Present position: The United States now cites
approvingly (at p. 18) to the Restatement of Torts: “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 liability of the person against whom contribution is
sought for that portion of the liability, either by
settlement with the plaintiff by satisfaction of
judgment.’” The United States also cites approvingly (at
p. 18, n.8) to Section 1(b) of the Uniform Contribution
Among Tortfeasors Act (““UCTA”).

Position in 1985: On February 5, 1985, EPA
published in the Federal Register its l.terim CERCLA
Settlement Policy. See 50 Fed. Reg. 5034 (Feb. 5, 1985).
This policy was issued jointly with the Department of
Justice, and makes clear that a settlement with EPA will
only release the liability of the settling party. Because
that could preclude the settling party from having a
contribution claim under common law rules, the policy
opposed adoption of such rules or application of Section
1 of the UCTA, the very provision the United States now
cites approvingly: “We do not support adopting section 1-
of the Uniform Act as a Federal rule of decision. Section

30

1 would preclude settlors from seeking contribution from
non-settlors unless the settlors financed or performed 100
percent cleanup at a site.” Id. at 5043.

As the language of SARA makes clear, Congress

followed the government’s 1985 position. What this
demonstrates is that CERCLA contribution nghts are not
premised on the narrow rules that existed under common
law, but instead were intended to displace ngid common law
contribution rights. The right of contribution created under
CERCLA is broad and robust, precisely to encourage parties
to undertake cleanup and pay governmental costs, with the
promise that they in tum can sue other liable parties to
recoup some of their expense.

CONCLUSION
The decision of the court of appeals should be affirmed.

Respectfully submitted,

JOEL M. GROSS

Counsel of Record
THOMAS H. MILCH
THOMAS I. ANDERSON
ARNOLD & PORTER LLP
555 Twelfth Street, N.W.
Washington, D.C. 20004
(202) 942-5000

ALBERT M. COHEN
SMILAND & KACHIGIAN
601 South Fifth Street
Seventh Floor

Los Angeles, CA 90071
(213) 891-1010

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0635%3A11. Public record. Not legal advice.