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

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IN 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 OF LOCKHEED MARTIN CORPORATION

AS AMICUS CURIAE IN SUPPORT OF RESPONDENT

Of Counsel: MIGUEL A. ESTRADA

Counsel of Record

JAMES R. BUCKLEY RAYMOND B. LUDWISZEWSKI

LOCKHEED MARTIN ANDREW S. TULUMELLO

CORPORATION AMIR C. TAYRAN!

6801 Rockledge Drive GIBSON, DUNN & CRUTCHER LLP

Bethesda, MD 20817 1050 Connecticut Avenue, N.W.

(301) 897-6954 Washington, D.C. 20036

(202) 955-8500

Counsel for Amicus Curiae

QUESTION PRESENTED

Whether a party that is “potentially responsible” under

the Comprehensive Environmental Response, Compensation,

and Liability Act (“CERCLA”), 42 U.S.C. § 9601 ef seq.,

and that voluntarily remediates a contaminated site, can sue

under CERCLA to recover its response costs from other po-

tentially responsible parties.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .ccccscsessessessersesssersssssessnnnnsal ili

INTEREST OF AMICUS CURIAE ..........cccssssssessssseenseees l

STA TEIN T occccecescesenssseiecessssetsssensiebuennsnnnennnainnanannae 2

SUMMARY OF ARGUMENT ..............::cssscesssesssseeeesesees 5

ABRGUMBINT .ncccevcccessecesssessesessnccesescsenannsanennninnnnnnnnnnn 7

I. AVIALL’S SUIT IS AUTHORIZED

UNDER SECTION’ 107(a) AND

PRESERVED BY SECTION 113(f)(1)’S

Tio Let! | aa 7

A. Aviall’s Cause Of Action Originates

Under Sectian 1G) .ccscosssssssccsecessensecssunsaans 8

B. Aviall’s Claim Is Preserved By

Section 113(f)(1)’s Savings Clause............ 15

C. Aviall’s Suit Is Consistent With

CERCLA’s Purpose And Legislative

FROSOOTY ..:.cccccccososcsessessnsnsubnnnsenensnsinnninnnnnnnl 17

D. Aviall’s Suit Does Not Create

Anomalies In CERCLA’s Liability

ORIGTTID ..ccecssnvscsecenseenmeiesienneee 21

E. A Contrary Rule Would Undermine

CERCLA’s Remedial Scheme And

Effectively Immunize The Federal

Government From Substantial

CERRO TA, LigUIRY .cccccccccessensisvssninnnnninnnnnin 24

00 88)! ) Ee 30

ill

TABLE OF AUTHORITIES

CASES Page(s)

Agency Holding Corp. v. Malley-Duff &

Assocs., Inc., 483 U.S. 143 (1987) .......cccccccceeeeeeeees 23

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

LT 3, 28, 30

Amcast Indus. Corp. v. Detrex Corp., 2 F.3d

ee 13,24

Aragon v. United States, 146 F.3d 819 (10th

SLATE 29

Arcadia v. Ohio Power Co., 498 U.S. 73

are enc rcrerrencsennesenssneeveneceseoese 13

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

a rerrcercctantetennccenssnececocoosceees 29

Bethlehem Iron Works, Inc. v. Lewis Indus.,

Inc., 891 F. Supp. 221 (E.D. Pa. 1995) ...........:.0000 14

California v. FERC, 495 U.S. 490 (1990) ........ccccccceceeees 9

Cannon v. Univ. of Chicago, 441 U.S. 677

LATA 21

Centerior Serv. Co. v. Acme Scrap Iron &

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

eat entertircnsenientesmennescesssecs 14, 26, 27

City of New York v. Exxon Corp., 633

F. Supp. 609 (S.D.N.Y. 1986) ........ccccccccesceeseeeeeeeees 20

City of Philadelphia v. Stepan Chem. Co.,

544 F. Supp. 1135 (E.D. Pa. 1982) .00.......ccccceeeeeees 20

DelCostello v. Int'l Bhd. of Teamsters, 462

EE ee 23

FMC Corp. v. Dep't of Commerce, 29 F.3d

Ce crcneeienininninsacninnssiiciiisiniinisinaibantaiiniiaiia 29

Geraghty & Miller, Inc. v. Conoco Inc., 234

Pa ee Cy GE ee ccscentanetnsnnnnniitomnts 3,11

In re Hemingway Transp., Inc., 993 F.2d

FER CRI Ce ccnresencerscsecsesncenaisannacennasincitasin 14

In re Reading, 115 F.3d 1111

SE Gee encccenennscnseiniiitinnenmienninabititiantanan 28, 29, sv

Jones-Hamilton Co. v. Beazer Materials &

Servs., Inc., 973 F.2d 688 (9th Cir. 1992)...........04+. 15

Kamen v. Kemper Fin. Servs., 500 U.S. 90

CETTE UD exennunnonnncnienniccisneneiienicminidiiinianinemiatiadiibiiinuniiiid 13

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

Fe a cecenereccensniniininiinideitiniainmminnadinaninapiiinial passim

Lorillard v. Pons, 434 U.S. 575 (1978) .......cccceeeseeeeeees 21

Northwest Airlines, Inc. v. County of Kent,

FO Os BO a cenentintaitannnnninininniiatitiiiin 12, 13

Northwest Airlines, Inc. v. Transp. Workers

Union of Am., 451 U.S. 77 (1981) .......cccccceeseeeeeenees 17

OSI, Inc. v. United States, 285 F.3d 947

CRED Ge. Bere ccncssanicssnenssnsnsinsneniniossennnenvesianietiia 29

Pennsylvania v. Union Gas Co., 491 U.S. 1

UIT covnnnnecnncsnenitonnsntimasiiaietianininnsiiniaianasiitghalts 18, 19

Pinal Creek Group v. Newmont Mining

Corp., 118 F.3d 1298 (9th Cir. 1997) ......... 11, 28, 30

Pinole Point Props., Inc. v. Bethlehem Steel

Corp., 596 F. Supp. 283 (N.D. Cal. 1984).............. 20

Sand Springs Home v. Interplastic Corp.,

670 F. Supp. 913 (N.D. Okla. 1987) 20.000... eeeeeeeee 20

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

ero reve SO a OE ETN a 19

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

See CG He echitrtainasintieintiiininentnianncniiins 11,23

United States v. Alvarez-Sanchez, 511 U.S.

a cccsinithininciinndinditiiianiiintincniininesnenbtinnnenintia 8

United States v. Hunter, 70 F. Supp. 2d 1100

Sens GES UNE icceventeiinsinicisbiiiiitiabiaiandiaanbienensstnenesis 14

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

SRI) We ecasiieceisciiinibiaiassiteepiedliaisnttiietanamnaninies 19

United States v. New Castle County, 642

F. Supp. 1258 (D. Del. 1986)..................cccceeeees 20, 26

United States v. Wallace, 961 F. Supp. 969

SOA Tes GaN eel a cicndetndiienictiidnciiniinidinicipbesaspsetinitiiaes 14

United States v. Williams, 504 U.S. 36

SSE: seseusicesnsaibaiceiabeiiiidamaindiiiaabiasienaapainanlienibdatines 11

Velsicol Chem. Corp. v. Reilly Tar & Chem.

Corp., No. CIV-1-81-389, 1984 U.S.

Dist. LEXIS 24317 (E.D. Tenn. Aug. 16,

TIPU scccnichcinitiiiiietinaiatiimdaeniaiinstsaaaasiabdnaanaiinsiaiaitla iil 20

Wickland Oil Terminals v. Asarco, Inc., 792

Fg 8 neem 20

Wilson v. Garcia, 471 U.S. 261 (1985) .0........cceeeceeeees 23

STATUTES

es Se sieriinstinitinitetasinniniinanintimannindsiiiitaiaiiial 25

I I a icstsinisinticeerstinainisiitinaieie passim

4B UB. 6 DEEBI ID. .cccccceccccesccccesceccccscscesscssssccssencen passim

42 UBL. § SEABIRD .2narcccccceesieccccccccccccscssccsssescnssscssossesee 23

42 U.S.C. § SE1BQR) ......2000<cccecccseccrecccscccccccsscccssonsescnseees 12

GB UBC. 8 SEI ccccccccsccvssecsescenscinensssssscsevscsensessesssses 28

OTHER AUTHORITIES

Fe 3

126 CONG. REC. 26338 (Sept. 19, 1980) ............:ccceeeees 18

131 CONG. REC. 24730 (Sept. 24, 1985) ..........ccccceeeeeee 19

H.R. REP. No. 253, 99th Cong., Ist Sess.

IIE ccinsisenncinnscnnesiadtsuasinnnientnpinininiiteunbiiennnnnmuets 17,19

H.R. REP. NO. 1016, 96th Cong., 2d Sess.

TU nieeetsehtenieenecicnteaacintiiiannniniaibintaininmietenimennmeienmbaieinates 17

S. REP. No. 848, 96 Cong., 2d Sess. (1980)................. 17

Gen. Accounting Office, Long-Term Com-

mitments: Improving the Budgetary Fo-

cus on Environmental Liabilities (GAO-

ID sccnitnccinsnictiinietnenhidsninenmmeimnnis 26

Gen. Accounting Office, Superfund Pro-

gram: Current Status and Future Fiscal

Challenges (GAOQ-03-850) (2003) ...........cccceeeeeeeeees 26

—_—_ ———

BRIEF OF LOCKHEED MARTIN CORPORATION

AS AMICUS CURIAE IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE'

The question presented in this case is whether a party

that engages in the voluntary remediation of hazardous waste

may sue under CERCLA to recover cleanup costs from other

responsible parties. Amicus has a significant interest in the

correct resolution of this question because—consistent with

one of CERCLA’s principal objectives—it has initiated vol-

untary remediation activities at several sites throughout the

United States and could be left without an effective mecha-

nism to recover even a portion of its cleanup costs if the deci-

sion below were reversed.

Lockheed Martin Corporation is one of the world’s lead-

ing advanced technology companies. Approximately eighty

percent of Lockheed Martin’s business is with the United

States Department of Defense and various federal agencies

and includes aeronautical research and development, the

manufacture of tactical aircraft and strategic missile systems,

the development of space launch and satellite programs, and

other projects closely related to the Nation’s defense. In

connection with this work, Lockheed Martin owns or oper-

ates a number of facilities that were formerly owned or oper-

ated by the federal government or at which work is per-

formed pursuant to government contracts.

Lockheed Martin has expended millions of dollars im-

plementing voluntary remediation programs at several of

these facilities in reliance upon its right under CERCLA to

recover response costs from other responsible parties—

| Pursuant to this Court’s Rule 37.3(a), letters of consent from all par-

ties to the filing of this brief have been submitted to the Clerk. Pursuant

to this Court’s Rule 37.6, amicus states that this brief was not authored in

whole or in part by counsel for any party, and that no person or entity

other than amicus or its counsel made a monetary contribution to the

preparation or submission of this brief.

———

including the federal government. Lockheed Martin is con-

cerned that if such a recovery right were deemed to be un-

available, the incentive to engage in voluntary cleanups

would be significantly reduced and companies that engage in

voluntary remediation activity unjustly and unjustifiably

would be forced to bear costs that are in large part attribut-

able to_other parties.

STATEMENT

1. In 1981, Aviall Services, Inc. (“Aviall”) purchased

from Cooper Industries, Inc. (“Cooper”) four facilities at

which Cooper had serviced and maintained aircraft engines.

Pet. App. 48a. After the acquisition, Aviall continued to op-

erate this business and discovered that both it and Cooper had

contributed to contamination at the facilities. Jd. Aviall

promptly notified the Texas Natural Resource Conservation

Commission (“TNRCC”), which informed Aviall that it was

in violation of state environmental laws and directed Aviall

to initiate cleanup activity. /d. Although the TNRCC threat-

ened to pursue an enforcement action if Aviall failed to im-

plement a remediation program, neither it nor the United

States Environmental Protection Agency (“EPA”) has taken

judicial or administrative measures under CERCLA to com-

pel cleanup. Pet. App. 48a-49a.

In 1984, Aviall voluntarily began remediation of the fa-

cilities (Pet. App. 48a) and to date has incurred approxi-

mately $5 million in cleanup costs (Jt. App. 36a). Aviall has

since sold the facilities but remains contractually obligated to

complete the cleanup, the eventual cost of which is estimated

to be $21 million. Pet. App. 48a; Jt. App. 36a.

2. In 1997—while the cleanup was underway—Aviall

sued Cooper in the United States District Court for the

Northern District of Texas seeking to recover response costs

under Sections 107(a) and 113(f)(1) of CERCLA and state

law. Section 107(a)(1)-(4) of CERCLA imposes strict liabil-

ity on four categories of parties—owners, operators, dispos-

ers, and transporters—that contribute to the release of haz-

ardous waste. 42 U.S.C. § 9607(a)(1)-(4). Section

107(a)(4)(A)-(D) makes these “covered persons” liable for,

among other things, “any . . . necessary costs of response in-

curred by any ... person.” 42 U.S.C. § 9607(a)(4)(B) (em-

phases added).? Section 113(f)(1) authorizes parties to seek

contribution from other potentially responsible parties “dur-

ing or following” an enforcement action under Section 106 or

107(a) and provides that “[nJjothing ... shall diminish the

right of any person to bring an action for contribution in the

absence of” an action under those sections. 42 U.S.C.

§ 9613(f)(1).

Aviall pleaded its suit in a manner consistent with the

view—expressed by the United States for more than a dec-

ade—that CERCLA “authorizes private persons to bring ac-

tions to recover response costs which they incur at a site,

whether those actions are taken under compulsion by EPA or

voluntarily.” U.S. Amicus Br. at 3-4, Akzo Coatings, Inc. v.

Aigner Corp., 30 F.3d 761 (7th Cir. 1994) (No. 92-3820)

(discussed infra). Its suit also conformed to Fifth Circuit

precedent, which holds that a CERCLA contribution action

arises jointly through the operation of Sections 107(a) and

113(f)(1). See Geraghty & Miller, Inc. v. Conoco Inc., 234

F.3d 917, 924 (Sth Cir. 2000).

2 Covered persons are liable for:

(A) all costs of removal or remedial action incurred by the

United States Government or a State or an Indian tribe not

inconsistent with the national contingency plan;

(B) any other necessary costs of response incurred by any

other person consistent with the national contingency plan;

resources, including the reasonable costs of assessing such

injury, destruction, or loss resulting from such a release; and

(D) the costs of any health assessment or health effects study

carried out under section 104(i).

42 U.S.C. § 9607(a)(4A)-(D). The national contingency plan refer-

enced in subparagraph (B) consists in part of regulations promulgated by

the EPA to implement CERCLA. See 40 C.F.R. pt. 300.

3. Cooper moved for summary judgment on Aviall’s

CERCLA claim on the ground that Aviall could not seek

contribution because it had not first been made the subject of

a civil action under Section 106 or 107(a). The district court |

agreed and entered summary judgment for Cooper, explain-

ing that under its interpretation of Section 113(f)(1) a “plain-

tiff is precluded from seeking contribution” if it “cannot al-

lege any prior or pending CERCLA enforcement action

against it.” Pet. App. 97a.3

A divided panel of the Fifth Circuit Court of Appeals af-

firmed. The majority emphasized the limitations seemingly

embodied in the language of Section 113(f)(1)’s first sen-

tence—its enabling clause—and concluded that this provi-

sion requires a potentially responsible party (“PRP”) “seek-

ing contribution from other PRPs to have filed a § 113(f)

claim ‘during or following’ a federal CERCLA action against

it.” Pet. App. 52a. The panel opined that “Congress wanted

only a limited night of contribution” that did not “go beyond

the traditional common law definition of contribution.” Pet.

App. 65a. The panel also surmised that its interpretation

would not discourage voluntary cleanups because parties

“may” be able to “rely on state environmental laws to recover

costs.” Jd.

Judge Wiener dissented, resting his analysis upon the fi-

nal sentence of Section 113(f)(1)}—its saving clause—which

states that “[nJothing in this subsection shall diminish the

right of any person to bring an action for contribution in the

absence of a civil action under section 106 or section 107.”

42 U.S.C. § 9613(f)(1). Whereas the majority read this

clause as merely preserving state-law contribution claims,

Judge Weiner explained that he “read the savings clause to

mean precisely what it says”—i.e., that Aviall could bring its

contribution claim because “[nJothing” in Section 113(f)(1)

3 Having entered summary judgment for Cooper on Aviall’s CERCLA

claim, the district court declined to exercise supplemental jurisdiction

over Aviall’s state-law claims. Pet. App. 99a.

diminishes the right of a PRP to bring a contribution action at

any time. Pet. App. 75a.

4. On rehearing en banc, the Fifth Circuit reversed the

panel decision. Unlike the panel, the en banc court con-

cluded that Aviall’s suit was not precluded by the “during or

following” language of Section 113(f)(1)’s enabling clause.

Instead, it explained that “Section 113(f)(1) authorizes suits

in both its [enabling clause] and [savings clause].” Pet. App.

14a (emphasis added). The court rejected the view that the

Savings clause preserves only state-law claims, and—citing

this Court’s decision in Key Tronic Corp. v. United States,

511 U.S. 809 (1994)—concluded that the savings clause also

“preserve[s] contribution actions arising by federal common

law under § 107.” Pet. App. 26a. Because the Section

107(a) contribution actions preserved by Section 113(f)(1)’s

savings clause need not be brought “during or following” a

CERCLA enforcement action, the court reasoned, “a PRP

may sue at any time for contribution under federal law.” Pet.

App. 14a.

The en banc court emphasized that its decision comports

with Section 113(f)(1)’s legislative history and that a con-

trary decision would undermine the principal objectives of

CERCLA “by slowing the reallocation of cleanup costs from

less culpable PRPs to more culpable PRPs and by discourag-

ing the voluntary expenditure of PRP funds on cleanup ac-

tivities.” Pet. App. 31a.

SUMMARY OF ARGUMENT

The court of appeals correctly held that CERCLA au-

thorizes Aviall’s suit against Cooper. Section 107(a) of

CERCLA imposes liability on any potentially responsible

party for “the necessary costs of response” incurred by any

other potentially responsible party. As this Court recognized

in Key Tronic, 511 U.S. at 816, and as the United States has

advised the lower courts for more than a decade, that section

creates an implied right of action authorizing PRPs to sue

other PRPs for response costs.

Far from precluding Aviall’s suit, as contended by Coo-

per and the government, Section 113(f)(1) expressly pre-

serves Aviall’s Section 107(a) action in these circumstances.

Although Section 113(f)(1)’s enabling clause contemplates

the availability of contribution claims “during or following”

Section 106 and 107(a) civil actions, Section 113(f)(1)’s sav-

ings clause makes clear that contribution actions need not be

brought exclusively “during or following” such proceedings.

Rather, as the court of appeals correctly observed, the sav-

ings clause preserves the independent rights of action that are

authorized by Section 107(a). Pet. App. 26a. Because Avi-

all’s suit arises under Section 107(a), its claim falls within

Section 113(f)(1)’s savings clause, and the “during or follow-

ing” limitation in the first sentence of Section 113(f)(1) does

not impose a barrier to Aviall’s suit.

Permitting PRPs to recover voluntarily incurred cleanup

costs is consistent with CERCLA’s purpose and legislative

history. At the time Section 113(f)(1) was enacted in the

Superfund Amendments and Reauthorization Act of 1986

(“SARA”), it was well-established that “voluntary” remedia-

tors—that is, parties undertaking cleanup in the absence of an

action under Section 106 or 107(a)}—possessed contribution

rights against other PRPs. Nothing in SARA purported to

alter or abridge those nghts. On the contrary, SARA was

enacted precisely because Congress recognized that en-

forcement action by the EPA alone could not effectively vin-

dicate CERCLA’s goals. Section 113(f)(1) was enacted to

encourage voluntary cleanups in the private sector by con-

firming and preserving the night of PRPs to recover response

costs from other PRPs. Suits like Aviall’s thus accomplish

precisely what Congress intended.

A rule precluding PRPs from recovering voluntarily in-

curred response costs under CERCLA would have conse-

quences that are dramatic and unfair. Voluntary remediation

efforts would be brought to a halt, and at sites at which

cleanup is underway, PRPs would refuse to incur additional

response costs until the federal government initiated an en-

forcement action giving rise to contribution rights. The fed-

eral government (which previously advocated the reading of

Section 107(a) and 113(f)(1) urged by Lockheed Martin here)

also would receive a tremendous windfall from the new posi-

tion it now urges upon this Court, because the United States

is itself a PRP at thousands of sites across the country. Un-

der the rule espoused by Cooper and the United States, no

PRP could sue the federal government for contribution unless

the government first initiated an enforcement action against

that PRP under Section 106 or 107(a). The federal govern-

ment thus would effectively be given the power to immunize

itself against the enormous liabilities it faces in connection

with sites that are currently being remediated on a voluntary

basis. Such a sweeping enforcement gap would fatally un-

dermine the legislative objectives that prompted the enact-

ment of CERCLA and SARA and would upset the settled

expectations of countless companies that have entered into

acquisitions or undertaken cleanup efforts in the expectation

that—consistent with the government’s long-standing repre-

sentations to the lower federal courts—CERCLA affords

them a mechanism to recover their response costs.

ARGUMENT

I. AVIALL’S SUIT IS AUTHORIZED UNDER

SECTION 107(a) AND PRESERVED BY

SECTION 113(f)(1)’S SAVINGS CLAUSE.

Section 107(a) imposes liability on—and confers a pri-

vate cause of action against—parties such as Cooper that

formerly conducted activities that contributed to the release

of hazardous wasie. Aviall’s complaint pleaded a claim

against Cooper under Section 107(a). Because that Section

expressly authorizes contribution suits even in the absence of

a pending government enforcement action under Section 106

or 107(a), Aviall’s suit against Cooper is authorized under

CERCLA.

A. Aviall’s Cause Of Action Originates Under

Section 107(a).

1. As this Court has repeatedly observed, “[w]hen inter-

preting a statute, we look first and foremost to its text.”

United States v. Alvarez-Sanchez, 511 U.S. 350, 356 (1994).

That principle is dispositive here because the plain language

of Section 107(a) authorizes any person who has engaged in

the remediation of hazardous waste—including a PRP such

as Aviall—to recover its cleanup costs from any “covered

person.” 42 U.S.C. § 9607(a)(4)(B). Because Aviall’s suit

falls squarely within the scope of private suits authorized by

Section 107(a), this case can begin—and end—with a

straightforward application of that provision.

This Court has expressly recognized that Section 107(a)

authorizes potentially responsible parties to sue other PRPs

to recover voluntarily incurred response costs. In Key Tronic

Corp. v. United States, 511 U.S. 809, this Court held that

Key Tronic could recover initial response costs from the Air

Force in a suit under Section 107(a). Even though Key

Tronic and the Air Force had both contributed to contamina-

tion (thus making each a PRP), and even though Section

113(f)(1) already had been enacted, no member of this Court

(nor the federal government) so much as questioned the

availability of a Section 107(a) claim to a PRP seeking re-

sponse costs from other PRPs. See id. at 811.

Instead, the focus of the Court’s analysis was directed to

whether Section 107 “impliedly authorizes private parties to

recover cleanup costs from other PRPs,” as the majority held

(id. at 818 (emphasis added)), or whether it expressly did

so—as the dissenters urged. /d. at 822 (Scalia, J., dissenting)

(under the “plain language” of Section 107(a)(4)(B), “a party

who has incurred costs to clean up a hazardous waste site can

recover those costs from any other party liable under

CERCLA”). But every Justice agreed that Section 107(a)

authorizes a PRP to recover response costs “from other

PRPs.” Jd. at 818. The Key Tronic Court fully recognized

that Section 113(f)(1) separately authorizes contribution ac-

tions, but it had little trouble harmonizing Sections 107(a)

and 113(f)(1) through the observation that in light of the

1986 SARA amendments “the statute now expressly author-

izes a cause of action for contribution in § 113 and impliedly

authorizes a similar and somewhat overlapping remedy in

$ 107.” Id. at 816 (emphasis added).4

Key Tronic’s holding is particularly significant because

the “response costs” for which Key Tronic sought recovery

under Section 107(a}—and to which this Court held Key

Tronic was entitled—were incurred voluntarily, in that Key

Tronic expended them independently from the enforcement

actions that the EPA and state regulators initiated against it.

Although Key Tronic and the Air Force later entered into set-

tlements with the EPA to resolve their respective CERCLA

liabilities to the United States, Key Tronic’s claim under Sec-

tion 107(a) sought recovery of legal fees it voluntarily in-

curred in identifying other PRPs—response costs that had

nothing to do with the payment Key Tronic later made in its

federal settlement. Thus, no meaningful distinction can be

drawn between the “voluntariness” of the response costs in-

curred by Key Tronic and the response costs incurred by Avi-

all here.

In light of Section 107(a)’s plain text and this Court’s

decision in Key Tronic, there can be no serious dispute that

Section 107(a) grants a private cause of action against “cov-

4 The government refers to Key Tronic’s conclusion that PRPs can sue

other PRPs under Section 107(a) to recover response costs as “passing

dictum.” U.S. Amicus Br. at 20 n.9. But that is incorrect. The holding in

Key Tronic is that a PRP can pursue a Section 107(a) action against an-

other PRP to recover certain attorneys’ fees incurred in connection with

cleanup activity. The Court’s conclusion that Section 107(a) impliedly

authorizes suits by PRPs against other PRPs obviously was necessary to

this result and thus cannot be described as “dictum” even under the

broadest interpretation of that term. See California v. FERC, 495 U.S.

490, 501 (1990) (an issue of statutory interpretation addressed by this

Court is not dictum where it is “necessary for, and integral to” the Court’s

holding).

ered persons” to any person—including a PRP—who has in-

curred response costs, and that such a cause of action exists

apart from the first sentence of Section 113(f)(1). Indeed,

such an “extrinsic” cause of action is expressly saved by the

last clause of Section 113(f)(1). No one disputes that Cooper

falls within the statutory definition of a “covered person” or

that Aviall has incurred response costs. Section 107(a) there-

fore expressly affords Aviall the nght to recover its cleanup

costs from Cooper, and the decision below can be affirmed

on that basis.

2. Cooper and the government go to great lengths to

Suggest that in the district court Aviall somehow “aban-

doned” its claim under Section 107(a). But this is a demon-

strably incorrect reading of the record. See Br. Opp’n Pet.

Wnt Cert. at 1-2.

To begin with, the Second Amended Complaint (the op-

erative pleading) states on the first page that “[t]his is a civil

action, under Sections 107 and 113 of the Comprehensive

Environmental Response, Compensation, and Liability Act,

42 U.S.C. §§ 9601 et seg. ... seeking . .. reimbursement of

certain investigation and remediation costs.” Jt. App. 48a.

Aviall expressly captioned its fifth cause of action “Liability

under CERCLA” and referenced both Sections 107(a) and

113(f)(1). Jt. App. 62a-63a. The operative pleading on its

face thus makes clear that Aviall has sued “under” Section

107(a) of CERCLA and refutes the strained suggestion that

Aviall “abandoned” that claim.

Cooper and the government premise their waiver argu-

ment on the supposition that in its first and second amended

complaints Aviall “omitted” a freestanding cause of action

under Section 107(a) that had appeared in the original com-

plaint. Cooper Br. at 3 & n.1; U.S. Amicus Br. at 21 n.10.

But as Aviall has consistently maintained, the amended com-

plaints did not abandon—and were not designed to aban-

don—an independent cause of action under Section 107(a).

Instead, the complaint was amended to plead the contribution

cause of action in the manner prescribed by Fifth Circuit law,

which maintains that a cause of action for contribution arises

under Section 107(a) but is governed by Section 113(f)(1)’s

“procedural framework.” See Geraghty & Miller, 234 F.3d

at 924 (“[W]hile section 113(f) is the vehicle for bringing a

contribution action, it does not create a new cause of action

or create any new liabilities. Rather, it is a mechanism for

apportioning costs that are recoverable under section 107.”).

By pleading its claim under CERCLA in this manner,

Aviall did not “abandon” its claim under Section 107(a).

Nothing required Aviall to plead its contribution claim in a

manner inconsistent with controlling Fifth Circuit precedent.

As this Court has observed, it is “unreasonable” to “impose,

as an absolute condition to [this Court’s review of] an issue

decided by a lower court, that a party demand overruling of a

squarely applicable, recent circuit precedent.” United States

v. Williams, 504 U.S. 36, 44 (1992). Indeed, Williams re-

flects this Court’s acceptance of an anti-waiver argument ad-

vanced by the United States to preserve its ability to seek re-

versal of circuit precedents with which it seemingly had

agreed in the courts below. See id. Similarly, Aviall should

not be taxed with “waiver” for conforming its pleadings to

controlling law.

Furthermore, the “waiver” claim advanced by Cooper

and the government cannot be reconciled with how each in-

terprets the interplay of Sections 107(a) and 113(f)(1). It is

well-established that the cause of action available to one PRP

to sue another PRP arises under Section 107(a).> The lan-

guage of CERCLA itself expressly references the fact that

Section 107(a) is the authorizing provision for contribution

5 See Sun Co. v. Browning Ferris, Inc., 124 F.3d 1187, 1191 (10th Cir.

1997) (“It is thus clear that ... a § 113(f) action for contribution is an

action under § 107”) (internal quotation marks and citation omitted) (em-

phasis in original); Pinal Creek Group v. Newmont Mining Corp., 118

F.3d 1298, 1302 (9th Cir. 1997) (“Section 113(f) .. . does not create the

right of contribution—rather the source of a contribution claim is section

107(a).”) (citation omitted).

actions. See 42 U.S.C. § 9613(h)(1) (referring to an “[a]ction

under Section 107 to recover response costs or damages or

for contribution”) (emphases added). Indeed, Cooper and the

government concede that Section 107(a}—not Section

113(f)(1)}—creates all CERCLA contribution rights. See

Cooper Br. at 25; U.S. Amicus Br. at 20-21.° It is difficult to

credit any suggestion that Aviall “abandoned” a claim under

Section 107(a) when that provision is conceded by petitioner

and its amicus to be the source of Aviall’s right to sue in

these circumstances.

Moreover, Aviall expressly argued in the court of ap-

peals that if the court were to conclude that Section

113(f)(1)’s “during or following” limitation barred its claim,

its suit should be permitted to proceed independently under

Section 107(a). See Aviall Resp. Br. at 24 (“[P]arties who

are excluded from seeking contribution under section

113(f)(1) must therefore have available to them the broader

right of cost recovery under section 107(a).”); Aviall Sup-

plemental Br. at 24 (same). Because Aviall asserted its claim

under Section 107(a) below, it may properly rely upon that

ground to defend the lower court’s judgment before this

Court. See Northwest Airlines, Inc. v. County of Kent, 510

U.S. 355, 364 (1994) (“A prevailing party need not cross-

petition to defend a judgment on any ground properly raised

WL 664971, at *23-24 (Mar. 29, 1994) (statement of Deputy Solicitor

General Wallace) (“We do not contest that there is an implied cause of

action under 9607 to recover contribution of costs. And that was con-

firmed by Congress in adding a contribution provision in the 1986

amendments in 9613, but that does not itself provide the cause of action;

it provides guidelines for the cause of action.”) (emphasis added); U.S.

Amicus Br. at 11, Pinal Creek (No. 97-795) (“The court of appeals cor-

rectly recognized that Sections 107 and 113 work together—the first sec-

tion creating the claim for contribution between PRPs, and the second

qualifying the nature of that claim.”) (internal quotation marks omitted)

(emphasis added).

below, so long as that party seeks to preserve, and not to

change, the judgment.”’).’

3. In an equally unavailing attempt to dissuade the Court

from affirming based upon the plain meaning of Section

107(a), Cooper and the government assert that courts have

“uniformly” determined that PRPs are not permitted to seek

response costs from other PRPs under Section 107(a). Coo-

per Br. at 34-35; U.S. Amicus Br. at 6. These arguments ob-

viously ignore this Court’s contrary conclusion in Key Tronic

and in any event are indefensible on their own terms.

Contrary to the claims of Cooper and the government,

there is nothing remotely close to a “uniform” conclusion in

the circuits that a PRP that has voluntarily incurred response

costs is precluded from suing other PRPs under Section

107(a). Indeed, several courts have expressly recognized that

a PRP that has voluntarily undertaken cleanup can pursue a

Section 107(a) cost-recovery action against other responsible

parties. See, e.g., Amcast Indus. Corp. v. Detrex Corp.,

2 F.3d 746, 748 (7th Cir. 1993) (Posner, J.) (PRP could pur-

sue a Section 107(a) claim against another PRP because “the

statute permits one responsible person to recover all or part

7 In any event, this Court has made clear that “[wJhen an issue or

claim is properly before the court, the court is not limited to the particular

theories advanced by the parties, but rather retains the independent power

to identify and apply the proper construction of governing law.” Kamen

v. Kemper Fin. Servs., 500 U.S. 90, 99 (1991) (citing Arcadia v. Ohio

Power Co., 498 U.S. 73, 77 (1990)). As Kamen made clear, in those rare

cases in which it is appropriate to apply a “truncated body of law” as a

“sanction” for a party’s failure to rely on favorable law, a court should

never issue an opinion that might be construed by lower courts and other

parties as “binding precedent” on the waived points. /d. at 100 n.5. Here,

if Cooper were correct that waiver has been established (it is not), this

case would become nothing but a fact-bound inquiry into the effect of

such a purported waiver on the rights of two particular, identified PRPs.

Thus, any construction of the scope of contribution rights under Section

113(f(1) premised on the waiver of Aviall’s claim under Section 107(a)

would render this case unworthy of this Court’s attention, and therefore

should lead to dismissal of the writ.

of its response costs from another”); Jn re Hemingway

Transp., Inc., 993 F.2d 915, 931 (Ist Cir. 1993) (“[I]n the

event the private-action plaintiff itself is potentially ‘liable’

to the EPA for response costs, and thus is akin to a joint ‘tort-

feasor,’ section 9607(a)(4)(B) serves as the pre-enforcement

analog to the ‘impleader’ contribution action permitted under

section 9613(f).”) (emphasis in original); Bethlehem Iron

Works, Inc. v. Lewis Indus., Inc., 891 F. Supp. 221 (E.D. Pa.

1995) (a PRP that voluntarily engages in cleanup may pursue

other PRPs under Section 107(a)).®

Moreover, the government itself has repeatedly brought

suit under Section 107(a) in circumstances in which it is a

PRP, and there is nothing in the text of Section 107(a) or

elsewhere in CERCLA that would afford the federal govern-

ment a broader remedial right than what is available to pn-

vate parties. See United States v. Wallace, 961 F. Supp. 969,

975 (N.D. Tex. 1996) (“potential liability for contribution

does not affect the government's right to full recovery of its

response costs” in a Section 107(a) action); United States v.

Hunter, 70 F. Supp. 2d 1100, 1108 (C.D. Cal. 1999) (same).

To be sure, several courts have held that a PRP cannot

sue other responsible parties under Section 107(a) for joint

and several liability. See U.S. Amicus Br. at 6 n.2. But that

question is fundamentally distinct from the question whether

a PRP can sue under Section 107(a) for contribution. No

court has held that Section 107(a) precludes a contribution

action by a voluntary remediator against other PRPs. Indeed,

only one court—the Ninth Circuit—has squarely held that

Section 107(a) suits are unavailable to voluntary remediators

(see Pinal Creek, 118 F.3d at 1302), but in that case the

8 The question also has been expressly left open by several courts.

See, e.g., Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153

F.3d 344, 352 n.10 (6th Cir. 1998) (“This case does not involve a PRP

who initiated cleanup voluntarily without any governmental prodding,

and we express no opinion with regard to such a party’s right to seek joint

and several cost recovery [under Section 107(a)].”).

plaintiff PRPs sought to impose joint and several liability,

and the Ninth Circuit already had decided that a voluntary

remediator could pursue a contribution action against other

PRPs under Section 113(f)(1). See, e.g., Jones-Hamilton Co.

v. Beazer Materials & Servs., Inc., 973 F.2d 688, 691 (9th

Cir. 1992). Thus, the alarmist suggestion that an unbroken

line of cases in the lower courts precludes a PRP that has

voluntarily incurred response costs fiom suing other PRPs

for contribution under Section 107(a) simply does not with-

stand scrutiny. Aviall’s suit arises under—and is independ-

ently authorized by—Section 107(a).

B. Aviall’s Claim Is Preserved By

Section 113(f)(1)’s Savings Clause.

Nothing in Section 113(f)(1) precludes Aviall’s suit.

Section 113(f)(1)’s “savings clause” provides that “[n]othing

in this subsection shall diminish the right of any person to

bring an action for contribution in the absence of a civil ac-

tion under section 106 or section 107.” 42 US.C.

§ 9613(f)(1). As both Cooper and the government correctly

recognize, this “savings provision ... preserve[s] any inde-

pendent right to contribution that exists apart from Section

113(f)(1).” U.S. Amicus Br. at 16 (emphasis in original):

Cooper Br. at 20 (the savings clause “preserve[s], undimin-

ished, other contribution rights that may exist elsewhere,”

including “federal rights of action for contribution that can be

maintained outside Section 113(f)(1)”) (emphasis in origi-

nal). Aviall’s cause of action arises under Section 107(a)—a

provision that “exists apart from” Section 113(f)(1)}—and

thus falls squarely within the savings clause.

1. Cooper and the government contend that any con-

struction of Section 113(f)(1) that encompasses Aviall’s

claim would improperly convert the “savings” clause into an

enabling clause. Cooper Br. at 20-21; U.S. Amicus Br. at 15-

16. But those arguments reflect a fundamental misunder-

standing of the function of the last sentence of Section

113(f)(1). As the court of appeals correctly recognized, Sec-

tion 113(f)(1)’s savings clause “preserve[s] contribution ac-

tions arising by federal common law under § 107.” Pet. App.

26a (emphasis added). Section 113(f)(1)’s last sentence

plays the traditional role of a savings clause by preserving

claims that arise from sources independent of the enabling

clause.

Cooper and the government also assert that the savings

clause encompasses only state-law claims because to hold

otherwise would allow the savings clause to swallow the

enabling clause. But there is no textual basis for the claim

that Section 113(f)(1)’s savings clause applies only to state-

law claims, and in light of CERCLA’s legislative history (re-

viewed below) there is nothing “anomalous” in according the

savings clause its plain meaning in this context.

2. Petitioner and its amicus expend much effort arguing

that Aviall’s suit is not consistent with the traditional under-

standing of “contribution” and that CERCLA’s “contribu-

tion” provision therefore does not authorize (or save) Aviall’s

claim. Cooper Br. 27-29; U.S. Amicus Br. 17-19. But the

debate about whether Aviall’s claim is—or is not—a claim

for “contribution” misses the point. If Cooper and the gov-

ernment are correct that Aviall’s claim is not an action for

“contribution,” then Aviall’s cost-recovery action under Sec-

tion 107(a) is entirely unaffected by the “during or follow-

ing” limitation imposed on CERCLA “contribution” actions

by the first sentence of Section 113(f)(1). Instead, Aviall’s

“implied” right under Section 107(a)—the remedy “similar

[to] and somewhat overlapping” (Key Tronic, 511 U.S. at

816) with the contribution claim authorized by Section

113(f)(1)}—-would independently authorize Aviall’s suit

against Cooper, just as it authorized Key Tronic’s suit for

response costs against the Air Force. And if Aviall’s claim is

characterized as a claim for “contribution”—as the court of

appeals concluded—it is expressly saved by Section

113(f)(1)’s savings clause. Whatever label may be assigned

to Aviall’s claim, its suit is authorized under CERCLA.?

C. Aviall’s Suit Is Consistent With CERCLA’s

Purpose And Legislative History.

CERCLA’s objectives and legislative history confirm

that a voluntary remediatey such as Aviall can sue under

CERCLA to recover response costs from other PRPs in the

absence of a pending or completed enforcement action.

1. Congress enacted CERCLA to accomplish two goals:

“(1) to provide for clean-up if a hazardous substance is re-

leased into the environment or if such release is threatened,

and (2) to hold responsible parties liable for the costs of these

clean-ups.” H.R. REP. No. 253, 99th Cong., Ist Sess., Pt. 3,

at 15 (1985). Congress intended both goals to be achieved

by promoting voluntary cleanup efforts by the private sec-

tor—efforts Congress sought to encourage through enactment

of the liability and remedial provisions of Section 107(a).

The relevant committee reports associated with CERCLA’s

enactment are replete with statements that Section 107(a)’s

strict liability regime was enacted “to induce persons volun-

tarily to pursue appropriate environmental response actions

with respect to inactive hazardous waste sites.” H.R. REP.

9 The government invokes the principle that Congress should “not be

construed as making any innovation upon the common law which it does

not fairly express.” U.S. Amicus Br. at 19 (citation omitted). But reliance

on that principle is misplaced here because “[a]t common law there was

no right to contribution among joint tortfeasors.” Northwest Airlines, Inc.

v. Transp. Workers Union of Am., 451 U.S. 77, 86 (1981). Over time,

that rule was modified “by statute or judicial decision” (id. at 86-87),

such that, at the time CERCLA and SARA were enacted, the right of con-

tribution among joint tortfeasors was almost uniformly accepted. The

relevant inquiry is not whether a battle of citations establishes that analo-

gous suits “at common law” were deemed to be actions for “contribu-

tion,” but rather whether Congress—in enacting CERCLA and the 1986

SARA amendments—intended parties in Aviall’s circumstances to sue

other PRPs to recover response costs. The statutory text demonstrates

that the answer to that question is clearly yes. See also infra Part C.

No. 1016, 96th Cong., 2d Sess., at 17 (1980) (emphasis

added); see also S. REP. No. 848, 96 Cong., 2d Sess., at 31

(1980) (“This liability standard is intended to induce poten-

tially liable persons to veluntarily mitigate damages rather

than simply rely on the government to abate hazards.”) (em-

phasis added). !°

Indeed, in Pennsylvania v. Union Gas Co., 491 U.S. 1

(1989), the controlling plurality of the Court recognized that

the private cause of action afforded to PRPs by CERCLA

“came about only after Congress had tried to solve the prob-

lem posed by hazardous substances through other means.”

Id. at 21. Those Justices explained:

Prior statutes such as the Resource Conservation

and Recovery Act of 1976 had failed in large part

because they focused on preventive measures to

the exclusion of remedial ones. The remedy that

Congress felt it needed in CERCLA is sweeping:

everyone who is potentially responsible for haz-

ardous-waste contamination may be forced to

contnbute to the costs of cleanup.

Id. (citations omitted) (emphasis in orginal). Union Gas

went on to explain that the entire purpose of CERCLA’s re-

medial scheme was to encourage voluntary remediation by

providing PRPs a cause of action against other PRPs for re-

sponse costs:

Congress did not think it enough, moreover, to

permit only the Federal Government to recoup the

costs of its own cleanups of hazardous waste sites;

the Government's resources being finite, it could

neither pay up front for all necessary cleanups nor

undertake many different projects at the same

10 See also 126 CONG. REC. 26338 (Sept. 19, 1980) (statement of Rep.

Florio) (“[Section 107] accomplishes three objectives. It assures that the

costs of chemical poison releases are borne by those responsible for the

releases. It creates a strong incentive both for prevention of releases and

voluntary cleanup of releases by responsible parties.”’) (emphasis added).

time. Some help was needed, and Congress sought

to encourage that help by allowing private parties

who voluntarily cleaned up hazardous-waste sites

to recover a proportionate amount of the costs of

cleanup from other potentially responsible parties.

Id. at 21-22 (emphasis added). !! «

When Congress took up deliberations on the 1986

SARA amendments, its preoccupation with encouraging vol-

untary remediation had not dissipated. The committee re-

ports again consistently and repeatedly emphasized that

“{vjoluntary cleanups are essential to a successful program

for cleanup of the Nation’s hazardous substance pollution

problem.” H.R. REP. No. 253, 99th Cong., Ist Sess., Pt. 5, at

58 (1985).'2 The unmistakable clarity of the legislative his-

tory on this point prompted one court to observe that “the

recurring theme of facilitating prompt action to remedy envi-

ronmental blight . . . [was] echoed . . . with even greater force

{in SARA] than [in] CERELA’s original enactment in 1980.”

United States v. Monsanto Co., 858 F.2d 160, 170 & n.18

(4th Cir. 1988).

2. Against this backdrop, it cannot plausibly be sug-

gested that Aviall’s suit is inconsistent with congressional

1! No Justice disagreed with this analysis. Justice Scalia concurred

with the plurality that Congress sought in CERCLA to abrogate the

States’ sovereign immunity, but he (along with three other Justices) con-

cluded that Congress lacked the power to do so. See Union Gas, 491

U.S. at 29 (Scalia, J., dissenting in part). That latter view prevailed in

Seminole Tribe v. Florida, 517 U.S. 44, 66 (1996), which reversed Union

Gas on Eleventh Amendment issues but not on the interpretation of

CERCLA set forth above.

12 See also 131 CONG. REC. 24730 (Sept. 24, 1985) (statement of Sen.

Domenici) (“The goal of CERCLA is to achieve effective and expedited

cleanup of as many uncontrolled hazardous waste facilities as possible.

One important component of the realistic strategy must be the encour-

agement of voluntary cleanup actions or funding without having the

President relying on the panoply of administrative and judicial tools

available.”’). .

intent. Before Congress amended CERCLA in 1986 by add-

ing Section 113(f)(1), it was firmly established that Section

107(a) afforded a PRP the right to recover voluntarily in-

curred cleanup costs from other responsible parties. In City

of Philadelphia v. Stepan Chemical Co., 544 F. Supp. 1135

(E.D. Pa. 1982), for example—the case correctly character-

ized by the court of appeals as the “seminal” decision (Pet.

App. 15a)}—the City of Philadelphia sought to recover

cleanup costs from companies that had contributed to con-

tamination at a city landfill. The district court recognized

that the City itself was potentially liable for response costs

but nevertheless held that the City could pursue an action un-

der Section 107(a). /d. at 1143; see also City of New York v.

Exxon Corp., 633 F. Supp. 609, 616-17 (S.D.N.Y. 1986)

(stating. before the enactment of SARA, that the “private re-

covery provisions of [CERCLA] ... assure an incentive for

private parties, including those who may themselves be sub-

ject to liability under the statute, to take a leading role in

cleaning up hazardous waste facilities as rapidly and com-

pletely as possible.”) (emphasis added).

A significant number of pre-SARA decisions followed

Stepan Chemical by expressly holding that PRPs have the

nght to recover voluntarily incurred cleanup costs under

CERCLA. See Wickland Oil Terminals v. Asarco, Inc., 792

F.2d 887, 892 (9th Cir. 1986); Pinole Point Props., Inc. v.

Bethlehem Steel Corp., 596 F. Supp. 283, 290-91 (N.D. Cal.

1984); Sand Springs Home v. Interplastic Corp., 670 F.

Supp. 913, 916 (N.D. Okla. 1987); United States v. New Cas-

tle County, 642 F. Supp. 1258, 1264 (D. Del. 1986); Velsicol

Chem. Corp. v. Reilly Tar & Chem. Corp., No. CIV-1-81-

389, 1984 U.S. Dist. LEXIS 24317, at *11 (E.D. Tenn. Aug.

16, 1984).

Thus, when Congress added Section 113(f)(1) to

CERCLA it was widely understood that PRPs possessed a

nght to pursue actions under Section 107(a) to recover volun-

tarily incurred cleanup costs. “[I]t is not only appropriate but

also realistic to presume that Congress was thoroughly famil-

iar with these unusually important precedents . . . and that it

expected its enactment to be interpreted in conformity with

them.” Cannon v. Univ. of Chicago, 441 U.S. 677, 699

(1979). Nothing suggests that Congress’s decision to enact

SARA was in any way prompted by a desire to curtail these

remedial rights—indeed, nothing in SARA modified Section

107(a). Cf Lorillard v. Pons, 434 U.S. 575, 580 (1978)

(“Congress is presumed to be aware of. . . [a] judicial inter-

pretation of a statute and to adopt that interpretation when it

re-enacts a statute without change.”). It is immaterial

whether Congress believed such cost-recovery claims to be

outside the realm of “contribution” and thus directly and in-

dependently authorized by Section 107(a),!> or whether (as

the court of appeals concluded) Congress deemed these

claims to sound in contribution and affirmatively preserved

them through enactment of Section 113(f)(1)’s savings

clause.'4 No rational observer could contend that through

SARA Congress sought to cut back on the right of PRPs that

voluntarily remediate contaminated sites to recover their re-

sponse costs under CERCLA.

D. Aviall’s Suit Does Not Create Anomalies In

CERCLA’s Liability Scheme.

Cooper and the government suggest that affording Aviall

a right to sue in these circumstances would create anomalies

in CERCLA’s liability framework. These arguments simply

do not withstand scrutiny.

1. Double Liability: The government contends that

permitting PRPs to recover voluntarily incurred cleanup costs

13 It may well be, as Cooper contends, that in enacting Section

113(f)(1) “Congress’ concern was not with ... direct cost recovery ac-

tions {under Section 107(a)] .. . but rather was with the separate line of

cases ... that had specifically found an implied right of contribution un-

der section 107(a).” Cooper Br. at 24 n.18. But if that were so, Aviall’s

suit can and should proceed independently under Section 107(a).

14 The court of appeals stated that Section 113(f)(1) was enacted to

confirm that the lower courts “had been right” to afford voluntary PRPs a

contribution right in these circumstances. Pet. App. 26a.

would expose other potentially responsible parties to the pos-

sibility of double liability. See U.S. Amicus Br. at 28. The

scenario evidently envisioned by the government would in-

volve a suit by the EPA under Section 107(a) against a PRP

that already had been sued by a voluntary remediator. Ac-

cording to the government, such a follow-on suit by the EPA

could subject the target PRP to “double liability.”

This argument is meritless and confuses the two types of

liabilities created by Section 107(a). In the scenario contem-

plated by the government, the first suit by a PRP against an-

other PRP would be for the response costs incurred in the

voluntary remediation. Neither party in that circumstance

could plausibly claim to have litigated or resolved any liabil-

ity to the United States. Were the government to initiate an

enforcement action, it invariably would involve the claim

that the United States incurred response costs in connection

with the site—either because it engaged in cleanup directly

or for some other reason. No “double liability” can exist in

these circumstances because the government would be seek-

ing to resolve liabilities owed to it, rather than the liabilities

owed by the defendant PRP to the voluntary remediator.

Moreover, a follow-on suit by the United States inevitably

would involve the claim that the initial voluntary cleanup ac-

tivities were not sufficient to remedy the hazardous release.

No “double liability” can exist where the government seeks

to recover the costs of completing an inadequate cleanup.

2. Statute of Limitations: Both Cooper and the govern-

ment contend that Congress did not intend for CERCLA to

afford PRPs the nght to recover voluntary cleanup costs be-

cause Section 113(g)(3) does not.provide a statute of limita-

tions to govern such claims. See Cooper Br. at 31-32; US.

Amicus Br. at 22. This argument is misplaced, however, be-

cause the express terms of Section 113(g)(2) provide the

statute of limitations for Aviall’s suit. Section 113(g)(2)

states that “[a]n initial action for recovery of the costs re-

ferred to in section 107 must be commenced, for a removal

action, within 3 years after completion of the removal action

... and for a remedial action, within 6 years after initiation of

physical on-site construction of the remedial action.” 42

U.S.C. § 9613(g)(2). Because there have been no govern-

ment enforcement proceedings in this case, Aviall’s suit is

the “initial action for recovery” of response costs under Sec-

tion 107 and is therefore governed by the statute of limita-

tions in Section 113(g)(2). See Sun Co., 124 F.3d at 1192

(“Nothing in [Section 113(g)(2)’s] language ... excludes a

contribution action, which also seeks to recover an equitable

portion of ‘costs referred to’ in § 107, provided that particu-

lar contribution action is the ‘initial action’ to recover such

costs.”’).

Moreover, the absence of an express statute of limita-

tions is “a void which is commonplace in federal statutory

law.” Wilson v. Garcia, 471 U.S. 261, 266 (1985) (internal

quotation marks and citation omitted). Indeed, many com-

prehensive federal statutes lack an express limitations period.

See, e.g., id. at 266 (42 U.S.C. § 1983); Agency Holding

Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 146

(1987) (RICO); Del/Costello v. Int'l Bhd. of Teamsters, 462

U.S. 151, 158 (1983) (LMRA). Accordingly, even if Section

113(g)(2) were not applicable to Aviall’s claim, the absence

of an express statute of limitations governing contribution

actions by voluntary remediators would say nothing about

whether Congress intended to authorize such suits.

3. The Contribution Protection Scheme: Equally un-

availing is the contention that suits by voluntary remediators

would eviscerate CERCLA’s contribution protection for par-

ties that settle with the government. Section 113(f)(2) pro-

vides that a person who has entered into a settlement with the

United States or a State is not subject to contribution claims

for matters covered in the settlement. 42 US.C.

§ 9613(f)(2). This provision operates to bar contribution ac-

tions otherwise saved by Section 113(f)(1)’s savings clause,

just as it precludes contribution actions independently author-

ized by the first sentence of Section 113(f)(1). Accordingly,

the fact that Aviall’s claim is preserved by the savings clause

does not threaten the protection that CERCLA gives to par-

ties that settle with the government.

4. Equitable Apportionment of Response Costs: Cooper

and the government also intimate that suits by voluntary

remediators would frustrate Congress’s desire to have re-

sponse costs allocated equitably. But a voluntary remediator

could not use a cost-recovery claim as a means of shifting

more than its equitable share of the response costs to other

parties, given that contribution actions (including those saved

by Section 113(f)(1)) are governed by equitable principles.

Lest there be any doubt, a defendant could file a counter-

claim—as Cooper did in this case—or implead additional

parties. See Amcast, 2 F.3d at 748 (a PRP that “has been

sued is entitled to seek, by way of counterclaim, contribution

from the plaintiff for the amount of response costs fairly at-

tributable to the conduct of the plaintiff as distinct from that

of the defendant”). There accordingly is no danger that Coo-

per will be saddled with a greater proportion of the cleanup

_ costs than is equitable under the circumstances.

E. A Contrary Rule Would Undermine

CERCLA’s Remedial Scheme And

Effectively Immunize The Federal

Government From Substantial CERCLA

Liability.

The foregoing discussion demonstrates that it is the po-

sition advanced by Cooper and the government—and not by

Aviall—that would lead to anomalous outcomes and create

untoward incentives under CERCLA. The rule advocated by

Cooper and the government would impede CERCLA’s twin

aims by discouraging voluntary cleanups and hampering ef-

forts to apportion response costs among PRPs in an equitable

fashion. It also would penalize companies that are currently

engaged in the voluntary remediation of hazardous waste by

denying them the opportunity to recover a portion of their

costs from other responsible parties. And it would effec-

tively immunize the federal government from its share of

CERCLA liability at the many sites that are now being reme-

diated on a voluntary basis.

1. The rule proposed by Cooper and the government

would introduce mischief into CERCLA’s remedial scheme.

In particular, the rule would unaccountably reward recalci-

trant parties that refuse to comply with federal abatement or-

ders and punish companies that comply ab initio with such

orders by depriving them of contribution rights. This result

would clearly undermine CERCLA’s objective of encourag-

ing prompt and voluntary cleanup.

The most basic and fundamental weapon available to the

federal government to compel cleanup under CERCLA is an

abatement order under Section 106. See 42 U.S.C. § 9606(a).

Under the position espoused by the government, a party that

voluntarily complied with such an order would have no con-

tribution rights against other PRPs to recover a portion of its

response costs. This is because the enabling clause of Sec-

tion 113(f)(1) refers to a “civil action under section 106,” and

the issuance of an administrative order alone does not consti-

tute such an action. The government itself—and the dissent-

ers below—recognize as much. See U.S. Amicus Br. at 22

n.11 (“EPA’s issuance of a Section 106(a) administrative or-

der does not generally entitle the recipient to seek contribu-

tion under Section 113(f)(1).”); Pet. App. 36a n.34 (Garza, J.,

dissenting) (“§ 113 permits contribution actions following an

administrative remedial order only when the government

files suit in federal court under § 106 to enforce the order.”’).

By contrast, under Cooper’s theory, a party whose re-

fusal to comply with a Section 106 abatement order induced

the federal government to sue to enforce that order would

have contribution nghts available to it. That cannot be cor-

rect. When Congress enacted SARA, it could not possibly

have intended to deprive responsible corporate citizens of

contnibution rights while rewarding recalcitrant parties with

them. But that is precisely the consequence that would flow

from the position advanced by Cooper and the government.

2. The rule espoused by Cooper and the government

also would undermine CERCLA’s key aims by deterring

voluntary cleanups. Pnvate companies that are currently en-

gaging in the voluntary remediation of sites in reliance upon

their presumed right to file suit thereafter to recover a portion

of their expenses would be unable to recoup cleanup costs

unless a Section 106 or Section 107(a) action were initiated

against them or they reached a settlement with either the

United States or a State. Under such a framework, PRPs

would understandably be reluctant to incur further voluntary

response costs because “[w]ithout the benefit of section

107(a)(4)(B), any responsible person who voluntarily comes

forward to cleanup a site would be subjected to liability for

the entire clean-up cost.” New Castle County, 642 F. Supp.

at 1264-65. Indeed, “[i]t is not hard to imagine that such a

system would discourage voluntariness but would instead

invite responsible individuals to adopt a ‘wait and see’ atti-

tude.” Jd. at 1264-65; see also Pet. App. 88a (Wiener, J., dis-

senting) (“[Cooper’s position] encourages PRPs to postpone,

defer, or delay remediation and to ‘lie behind the log’”’).

3. The federal government also stands to gain a tremen-

dous windfall. The federal government is itself a PRP at

numerous sites throughout the country and would effectively

be given a veto over the nght of other PRPs to seek contribu-

tion from it if the decision below were reversed.

The federal government faced $307 billion in environ-

mental liabilities at the end of fiscal year 2001. See Gen. Ac-

counting Office, Long-Term Commitments: Improving the

Budgetary Focus on Environmental Liabilities (GAO-03-

219) (2003). At the end of fiscal year 2002, 158 of the 1,233

sites included on CERCLA’s National Priorities List—a list-

ing of the Nation’s most-contaminated sites—were owned or

operated by the United States. See Gen. Accounting Office,

Superfund Program: Current Status and Future Fiscal Chal-

lenges (GAOQ-03-850) (2003).

In light of these staggering liabilities, the federal gov-

ernment has pursued a litigation strategy in which it has ad-

vocated conflicting legal theories in an apparent effort to

minimize its exposure under CERCLA. For example, in

Centerior Service, the government sought to persuade the

court that actions for joint and several liability cannot be

brought by PRPs against other PRPs because contribution

claims are available to such parties. 153 F.3d 344. As part

of its presentation, the government adopted a number of posi-

tions that are diametrically opposed to the arguments it

makes here:

e The government argued that Section 113(f)(1)

does not limit PRPs to pursuing contribution ac-

tions “during or following” Section 106 or 107(a)

civil actions. U.S. Br. at 28, Centerior (No. 97-

3163). Instead, it contended—as Aviall does

here—that Section 113(f)(1)’s enabling clause is

not restrictive and that the plain language of the

savings clause permits contribution even in the ab-

sence of an underlying civil action. /d. at 28-29.

According to the government, any contrary con-

struction “would not only read out the last sen-

tence of CERCLA Section 113(f)(1), but it would

also dramatically alter the common law by requir-

ing liable parties to bring joint and several liability

actions and barring their actions in contribution.”

Id. at 29.

e The government argued that, under the accepted

definition of the term, a settlement or a judgment

is not a prerequisite to a “contribution” action. Jd.

at 30.

e The government contended that the language of

Section 113(f)(1)’s enabling clause was satisfied

“because plaintiffs’ action arises under CERCLA

section 107 in the first instance, [and thus] the con-

tribution action is itself ‘during’ a CERCLA sec-

tion 107 action.” Jd. at 29 n.29. Under this rea-

soning, Aviall’s contribution claim also has been

brought “during” a Section 107(a) action and thus

comports with the “during or following” limitation

in Section 113(f)(1)’s enabling clause.

Having successfully persuaded the Centerior court to hold

that Section 107(a) actions for joint and several liability are

not available to PRPs, the government now seeks to preclude

PRPs from recovering voluntarily incurred cleanup costs

through the very contribution mechanism it identified and

endorsed in that case—and in many others. !°

The government stands to receive an extraordinary

windfall under this rule. At any site at which the federal

government is a PRP, no private party would be authonzed to

initiate a contribution claim against it in the absence of a

CERCLA enforcement action brought by the federal gov-

ernment or a State. Because it is rare for state regulators to

file suit under CERCLA, rather than relying upon state-law

remedies, such a rule effectively hands the federal govern-

ment the keys to its own CERCLA liability and would afford

the government the power to avoid any liability by declining

to initiate enforcement actions.

This rule is wholly inconsistent with Congress’s clear

intent that the United States be treated under CERCLA just

like any private party. See 42 U.S.C. § 9620(a) (“Each de-

partment, agency, and instrumentality of the United States

... Shall be subject to . . . this Act in the same manner and to

the same extent, both procedurally and substantively, as any

15 See, eg, US. Amicus Br. at 3-4, Akzo Coatings (No. 92-3820)

(CERCLA “authorizes private persons to bring actions to recover re-

sponse costs which they incur at a site, whether those actions are taken

under compulsion by EPA or voluntarily. 42 U.S.C. § 9607(aX4\(B).”)

(emphasis added); U.S. Reply Br. at 20, /n re Reading, 115 F.3d 1111 (3d

Cir. 1997) (No. 95-1987) (“Contrary to Reading's belief, the United

States does not argue that a Section 113 contribution claim arises only

when the government brings an enforcement action,” rather, such a claim

arises upon the PRP’s “payment of response costs”); U.S. Amicus Br. at

18-19, Pinal Creek (No. 96-16334) (“[W)hether a party has cleaned up

voluntarily or pursuant to a judgment . . . or settlement is irrelevant to

whether an action lies in contribution.”).

nongovernmental entity, including liability under section 107

of this Act.”) (emphases added). The lower courts are unani-

mois in the view that the waiver of sovereign immunity in

CERCLA Section 120 was designed to put private parties

and the government on an equal footing. See, e.g.; FMC

Corp. v. Dep't of Commerce, 29 F.3d 833, 840 (3d Cir. 1994)

(“when the government engages in activities that would make

a private party liable if the private party engaged in those

types of activities, then the government is also liable [under

CERCLA]”) (emphasis omitted).

4. This consequence also puts the asserted availability

of state-law contribution claims into appropriate perspective.

Cooper and the government make much of the fact that state-

law contribution actions provide an alternative means for

PRPs to recover voluntary remediation costs. That alterna-

tive is more theoretical than real. As an initial matter, sub-

stantial questions exist with respect to whether such claims

are preempted by CERCLA. See Bedford Affiliates v. Sills,

156 F.3d 416, 426-27 (2d Cir. 1998) (CERCLA preempts

State-law contribution and restitution claims); /n re Reading,

115 F 3d at 1117 (state-law contribution claims preempted).

Even if such state-law claims are not preempted, they are of

little use against the United States, which has asserted—and

will undoubtedly continue to assert—that sovereign immu-

nity bars such claims. See OSI, Inc. v. United States, 285

F.3d 947, 953 (11th Cir. 2002) (holding that waste disposal

decisions constitute discretionary functions that involve an

element of judgment or choice and therefore are subject to

the discretionary function exception to the Federal Tort

Claims Act); Aragon v. United States, 146 F.3d 819, 827

(10th Cir. 1998) (same).

5. Finally, a contrary result would upset a decade’s

worth of settled expectations about how CERCLA operates.

Since CERCLA’s enactment, it has been widely accepted

that the statute affords a contribution nght to voluntary

remediators. The United States has repeatedly and consis-

tently endorsed that view in the lower courts. See, e.g., U.S.

Amicus Br. at 3-4, Akzo Coatings (No. 92-3820); U.S. Reply

Br. at 20, Jn re Reading (No. 95-1987); U.S. Amicus Br. at

18-19, Pinal Creek (No. 96-16334). As the court of appeals

recognized, despite the millions of dollars at stake and the

resources and legal sophistication available to CERCLA’s

repeat players, the prevailing understanding has been so

firmly entrenched that few parties have ever contended that

voluntary remediators lack contribution rights. See Pet. App.

29a (“The absence of direct precedent is like the dog that

didn’t bark.”). In reliance on these background contribution

rules, countless companies have formulated business plans,

entered into acquisitions, accepted government contracts, and

initiated voluntary cleanup activities. To undermine the

foundation on which these arrangements have been built—

when such a result is contrary to the text, purpose, and legis-

lative history of the statute—would be unjustified, unwise,

and unfair.

CONCLUSION

For the foregoing reasons, the judgment of the court of

appeals should be affirmed.

Respectfully submitted.