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

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## Record

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

## Text

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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.

ll
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

iV

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

Vv

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

vl

4B UB. 6 DEEBI ID. .cccccceccccesccccesceccccscscesscssssccssencen passim
42 UBL. § SEABIRD .2narcccccceesieccccccccccccscssccsssescnssscssossesee 23
42 U.S.C. § SE1BQR) ......2000 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).

12

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

© See also Oral Argument Transcript, Key Tronic, No. 93-376, 1994
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).

13

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.

14

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)].”).

15

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-

16

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

17

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.

18

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).

19

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.”’). .

20

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

21

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.

22

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

23

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.

24

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.

25

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) (Ҥ 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-

26

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

27

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

28

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.”).

29

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

30

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.

Of Counsel: MIGUEL A. ESTRADA

Counsel of Record
JAMES R. BUCKLEY RAYMOND B. LUDWISZEWSKI
LOCKHEED MARTIN ANDREW S. TULUMELLO
CORPORATION AMIR C. TAYRANI
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
Apmil 8, 2004

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0635%3A13. Public record. Not legal advice.