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

IN

THI APR ° - 20M

Supreme Court of the United States... |

COOPER INDUSTRIES, INC..

Petitioner,

\

AVIALL SERVICES, INC...

Respondent

Own Writ oF CERTIORARI TO THE

Usirep States Court OF APPEALS FOR THE Fietu Circuit

BRIEF OF THE STATES OF NEW York, ARIZONA, CALIFORNIA,

CoLtorapo, Convecticut, DELAWware, ILLINots, LOUISIANA,

VEASSACHUSETTS, MicuiGas, Missourt, MONTANA,

Nevapa, NortH Dakota, On1o, OKLAHOMA, PENNSYLVANIA,

Ruyope Isuanp, SouTH CAROLINA, TENNESSEE, WASHINGTON,

Wisconsty, AND WyomiInG, AND THE COMMONWEALTH OF

PcerRTO Rico, as Awici CURLAE tN SUPPORT OF RESPONDENT

Peter H. LEHNER Eviot SPITzer

Chief. Environmental Attorney General of the

Protection Bureau State of New York

KAREN R. KAUFMANN Caitun J. HALLIGAN*

Gorbown J. JOHNSON Solicitor General

Assistant Atiornevs General

Ropert H. Easton

Assistant Solicitor General

120 Broadway

New York, NY 10271

* Counsel of Record (212) 416-8016

Attorneys for Amici Curiae

(Additional Counsel Listed On Signature Pages)

l

TABLE OF CONTENTS

Page

Table of Cited Authorities ..................... il

interest of Amici Curiae ............cccecc008: l

Summary Of Argumem ... ww. ccc ccc cc eceees 3

PT cvcwcea ye GaneeCh needs cada eeeneeune +

I. The Absence of a Limitations Period in

CERCLA § 113(g)(3) For a Contribution

Action That Follows a Voluntary Cleanup of

a Contaminated Site Does Not Diminish Any

Right to Contribution Provided By CERCLA

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ll

TABLE OF CITEDAUTHORITIES

Page

Cases:

Advanced Micro Devices, Inc.

v. National Semiconductor Corp.,

38 F. Supp. 2d 802 (N.D. Cal. 1999) .......... 9

Aviall Servs., Inc. v. Cooper Indus., Inc.,

312 F.3d 677 (Sth Cir. 2002) ................ 6

Barmet Alum. Corp. v. Doug Brantley & Sons, Inc.,

914 F. Supp. 159 (W.D. Ky. 1995) ............ 7

Bedford Affiliates v. Sills,

156 F.3d 416 (2d Cir. 1998) ...:............. 2,5,9

City of Wichita v. Aero Holdings, Inc.,

177 F. Supp. 2d 1153 (D. Kan. 2000) ......... 9

General Elec. Co. v. American Ann. Group, Inc.,

137 F. Supp. 2d 1 (D.N.H. 2001) ............. 7

Gould Inc. v. A&M Battery & Tire Serv.,

901 F. Supp. 906 (M.D. Pa. 1995) ............ 7

Kaufman & Broad-South Bay v. Unisys Corp.,

868 F. Supp. 1212 (N.D. Cal. 1994) .......... 9

Lampf, Pleva, Lipkind, Prupis & Petigrow

v. Gilbertson,

$01 US. SOO CHSSE) «<< ckddeeveceueneuesuees 8

ul

Cited Authorities

North Star Steel Co. v. Thomas,

Ce ec ees

Reed v. United Trans. Union,

Dw ccc ccc cccces

Reichhold Chems., Inc. v. Textron, Inc.,

888 F. Supp. 1116 (N.D. Fla. 1995) .....

Sherwin-Williams Co. v. ARTRA Group, Inc.,

125 F. Supp. 2d 739 (D. Md. 2001) .....

Sun Co. v. Browning-Ferris, Inc.,

124 F.3d 1187 (10th Cir. 1997),

cert. denied, 522 U.S. 1113 (1998) .....

Union Station Assocs. LLC

v. Puget Sound Energy, Inc.,

238 F. Supp. 2d 1226 (W.D. Wash. 2002)

United States v. Bestfoods,

Tee ,

United Techs. Corp.

v. Browning-Ferris Indus., Inc.,

33 F.3d 96 (3d Cir. 1994),

cert. denied, 513 U.S. 1185 (1995) ...........

W.R. Grace & Co. v. Zotos Int'l, Inc.,

No. 98-CV-838S(F),

2000 U.S. Dist. LEXIS 18091

(W.D.N.Y. Nov. 2, 2000) ..........5555. eee

Page

8-9

iv

Cited Authorities

Page

Federal Statutes and Regulations:

BP en FP OE ce ov eedsheecseacaccieutadanes 8

CERCLA § 104(c)(2)-(3), 42 U.S.C. § 9604(c)(2)-(3) ,

CERCLA § 106, 42 U.S.C. § 9606 ............ 4,5, 6,7

CERCLA § 107, 42 U.S.C. § 9607 .............. 6

CERCLA § 107(a), 42 U.S.C. § 9607(a) ......... 4,5,7

CERCLA § 107(a)(4)(A), 42 U.S.C. § 9607(a)(4)(A) ;

CERCLA § 113(f)(1), 42 U.S.C. § 9613(f)(1) . . .4, 5, 6, 7

CERCLA § 113(f)(2), 42 U.S.C. § 9613(f(2) ..... 2

CERCLA § 113(f)(3)(B), 42 U.S.C. § 9613(f(3)(B)

CERCLA § 113(g)(3), 42 U.S.C. § 9613(g)(3) ... passim

CERCLA § 121(f), 42 U.S.C. § 9621(f) ......... 2

CERCLA § 122(g)-(h), 42 U.S.C. § 9622(g)-(—h) ..5, 6,7

40 C.F.R. §§ 300.500-300.525 ..............0.. 2

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INTEREST OF AMICI CURIAE

The amici curiae States, through their Attorneys General,

respectfully request that the Court reject the argument,

advanced by Petitioner Cooper Industries, Inc. and the

United States as amicus curiae, that the Comprehensive

Environmental Response, Compensation, and Liability Act

(“CERCLA”), 42 U.S.C. § 9601 et seg., does not provide a

right to contribution except where CERCLA also specifies

a limitations period for a contribution claim. There is

no question that CERCLA § 113(f)(3)(B) [42 U.S.C.

§ 9613(f)(3)(B)] — a provision whose construction is not

directly implicated by the present case — expressly provides

for a right of contribution after a potentially responsible party

(“PRP”) resolves its liability with a State (or the United

States) by way of an administrative settlement. Yet, neither

CERCLA § 113(g)(3) [42 U.S.C. § 9613(g)(3)], nor any other

provision of the statute, establishes a period of limitations

for bringing such a contribution claim. Given the importance

of the right to contribution as an incentive to settle with a

State, the amici States oppose assigning unwarranted

significance to Congress’ failure to identify a specific period

of limitations, particularly where Congress explicitly grants

a right to contribution elsewhere in the statute.

CERCLA, as amended by the Superfund Amendments

and Reauthorization Act of 1986 (“SARA”), Pub. L. No. 99-

499, 100 Stat. 1613 (1986), provides a comprehensive

mechanism for cleaning up hazardous waste sites, and for

imposing the costs of cleanup on those responsible for the

contamination. See, e.g., United States v. Bestfoods, 524 U.S.

51, 55-56 (1998). To this end, the States, in conjunction with

the federal government, play a critical role. For example,

States participate in the planning, selection, and

+

implementation of remedial actions. CERCLA § 121(f),

42 U.S.C. § 9621(f); 40 C.F_R. §$§ 300.500-300.525 (2003).

The President, acting through the United States

Environmental Protection Agency, may take no remedial

action under CERCLA unless the State in which a release

occurs enters into a contract or cooperative agreement with

the federal government. CERCLA § 104(c)(2)-(3), 42 U.S.C.

$§ 9604(c)(2)-(3). Moreover, if a State cleans up a site, it

may sue any PRP to recover response costs “not inconsistent

with the national contingency plan,” the same statutory

standard applicable to cost-recovery actions brought by

the United States. CERCLA § 107(a)(4)(A), 42 U.S.C.

§$ 9607(a)4)(A).

Of particular significance here, CERCLA provides a

considerable incentive for PRPs to enter into administrative

or judicially approved settlements with the States (or the

United States). A party that resolves its liability by way of

such settlement benefits from the ability to seek contribution

from other PRPs under § 113(f)(3)(B). In addition, the

settling party “shall not be liable for claims [by nonsettling

PRPs} for contribution regarding matters addressed in the

settlement.” CERCLA § 113(f)(2), 42 U.S.C. § 9613(f)(2).

Thus, “potentially responsible parties who choose to settle

gain protection from contribution, enjoy potentially favorable

settlement terms, and retain the ability to seek contribution

from other defendants.” Bedford Affiliates v. Sills, 156 F.3d

416, 427 (2d Cir. 1998); see also United Techs. Corp. v.

Browning-Ferris Indus., Inc., 33 F.3d 96, 103 (3d Cir. 1994),

cert. denied, 513 U.S. 1183 (1995) (noting that CERCLA is

“designed to encourage settlements and provide PRPs a

measure of finality in return for their willingness to settle’)

(internal quotations omitted). As a practical matter, these

incentives are critical to the smooth functioning of the

3

administrative process and the cleanup of many sites without

the burdens and expenses of litigation. The amici States,

therefore, have a strong interest in opposing the “limitations

period” argument advanced by Petitioner and the United

States to the extent that it may enable others in the future

to undercut the express right of a PRP who settles

administratively with a State to seek contribution under

§ 113(f)(3)(B) from other PRPs.

SUMMARY OF ARGUMENT

Contrary to the suggestions of both Petitioner and the

United States, the fact that CERCLA § 113(g)(3) expressly

provides a period of limitations for bringing a contribution

claim in certain circumstances should not be interpreted to

mean that in any instance where CERCLA fails to establish

a period of limitations, a right to contribution does not exist.

As with § 113(f)(3)(B), which expressly authorizes a PRP__

that resolves its liability with a State (or the United States)

by way of an administrative settlement to bring a contribution

action against nonsettling PRPs, Congress often has enacted

Statutes that create causes of action without providing

corresponding periods of limitations. The amici States thus

urge the Court to assign no significance to€ ERCLA’s failure

to identify a specific period of limitations, particularly where

Congress has explicitly granted a right to contribution

elsewhere in the statute.

4

ARGUMENT

I. THE ABSENCE OF A LIMITATIONS PERIOD IN

CERCLA § 113(g)(3) FOR A CONTRIBUTION

ACTION THAT FOLLOWS A VOLUNTARY

CLEANUP OF A CONTAMINATED SITE DOES

NOT DIMINISH ANY RIGHT TO CONTRIBUTION

PROVIDED BY CERCLA.

The central issue before the Court is whether CERCLA

$ 113(f)(1) [42 U.S.C. § 9613(f)(1)] authorizes a PRP to seek

contribution under CERCLA from another party where, as

here, it 1s undisputed that the PRP has not: (1) been sued

civilly by the federal government under CERCLA § 106

(42 U.S.C. § 9606] to abate the actual or threatened release

of a hazardous substance from a facility, or by either

the federal government or a State under CERCLA § 107(a)

[42 U.S.C. § 9607(a)] to recover response costs; or

(2) otherwise resolved its liability to the federal government

or a State through an administrative or judicially-approved

settlement. Petitioner and the United States assert that in this

circumstance, a PRP may not seek contribution under

CERCLA. In an effort to bolster that statutory interpretation,

they argue that the absence of any limitations period in

CERCLA § 113(g)(3) to govern Respondent Aviall Services,

Inc.’s contribution claim “provides further evidence that

Congress did not intend to create a federal right to

contribution in [the present] situation.” U.S. Br. 21-22;

see also Pet. Br. 31-33.

The fact that CERCLA expressly provides for a period

of limitations in one instance, however, does not mean that

only those contribution actions for which CERCLA provides

an express period of limitations may be brought pursuant to

5

the statute. Section 113(g)(3) imposes a three-year period of

limitations for contribution actions brought: (1) during or

following a § 106 or § 107(a) action; (2) after a federal

administrative settlement pursuant to CERCLA §§ 122(g)-

(h) [42 U.S.C. §§ 9622(g)-(h)]; and (3) after any judicially

approved settlement. Neither § 113(g)(3), nor any other

provision of CERCLA, establishes a limitations period for

contribution actions brought after a State administrative

settlement. Nonetheless, § 113(f)(3)(B) expressly provides

that a PRP who enters into a settlement with a State may

bring a contribution action against other PR?s: “A person

who has resolved its liability to . . . a State for some or all of

a response action or for some or all of the costs of such action

... in an administrative . . . settlement may seek contribution

from any person who is not party to [the] settlement[.]”

Particularly in view of this clear statutory language, which

provides a significant incentive for PRPs to settle their

liability with State environmental authorities, see Bedford

Affiliates, 156 F.3d at 427; United Techs. Corp., 33 F.3d at

103, the Court should refrain from adopting any argument

that may undermine the contribution right provided by

§ 113(f)(3)(B).

There is no question that this case involves a dispute

over the interpretation of § 113(f)(1), not § 113(f)(3)(B).

In § 113(f)(1), the first and last sentences — the “enabling”

and “savings” provisions — read as follows:

Any person may seek contribution from any other

person who is liable or potentially liable under

section 107(a) [42 U.S.C. § 9607(a)], during or

following any civil action under section 106

[42 U.S.C. § 9606] or under section 107(a)

[42 U.S.C. § 9607(a)].... Nothing in this

6

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 107 [42 U.S.C.

§§ 9606 or 9607].

The Fifth Circuit’s en banc majority reads the savings provision

literally in holding that “‘nothing’ in the section shall ‘diminish’

any person’s right to bring a contribution action in the absence

of a section 106 or section 107(a) action.” Aviall Servs., Inc. v.

Cooper Indus., Inc., 312 F.3d 677, 681 (Sth Cir. 2002).

To support their contrary interpretation of § 113(f)(1)’s

Savings provision, Petitioner and the United States rely in part

on § 113(g)(3), which establishes limitations periods for

contribution actions in a variety of circumstances. That section

reads as follows:

Contribution. No action for contribution for any

response costs or damages may be commenced more

than 3 years after —

(A) the date of judgment in any action

under this Act for recovery of such costs

or damages, or

(B) the date of an administrative order

under section 122(g) [42 U.S.C.

§ 9622(g)] (relating to de minimis

settlements) or 122(h) [42 U.S.C.

§ 9622(h)] (relating to cost recovery

settlements) or entry of a judicially

approved settlement with respect to such

costs or damages.

Petitioner and the United States assert that because

§ 113(g)(3) provides no statute of limitations in the absence

7

of either an action under §§ 106 or 107(a), an administrative

settlement with the federal government under § 122(g)-(h),

or a judicial settlement with the federal government or a State,

Congress could not have intended to imply a right to

contribution under § 113(f)(1) for parties who voluntarily

cleanup a contaminated site in the absence of a triggering

event under § 113(g)(3). Pet. Br. 31-33; U.S. Br. 21-22.

If accepted without qualification, this argument could have

serious ramifications for State environmental enforcement

authorities throughout the Nation.

_ Where CERCLA grants a right to contribution, the

presence or absence of a limitations period in § 113(g)(3)

establishes nothing more than a Congressional omission,

intentional or otherwise. Indeed, although the statute fails to

provide a period of limitations in § 113(g)(3) for contribution

actions brought by a PRP who resolves its liability to the

State by way of an administrative settlement, § 113(f)(3)(B)

expressly establishes a right to such contribution. Unless one

is prepared to ignore the express language of that statute, the

absence of a limitations period alone cannot preclude a PRP

who settles administratively with a State from bringing a

contribution action pursuant to CERCLA.'

1. Numerous federal courts have held that a PRP also may seek

contribution where the federal government has issued an

administrative order pursuant to CERCLA § 106(a), but has not yet

brought a civil action under § 106 to enforce that order. See, e.g.,

Sun Co. v. Browning-Ferris, Inc., 124 F.3d 1187 (10th Cir. 1997),

cert. denied, 522 U.S. 1113 (1998); General Elec. Co. v. American

Ann. Group, Inc., 137 F. Supp. 2d 1 (D.N.H. 2001); Barmet Alum.

Corp. v. Doug Brantley & Sons, Inc., 914 F. Supp. 159 (W.D. Ky.

1995); Gould Inc. v. A&M Battery & Tire Serv., 901 F. Supp. 906

(M.D. Pa. 1995). Although the United States takes a diametrically

opposite position in a footnote in its brief (U.S. Br. 22 n.11), that

issue is not presently before the Court and need not be addressed.

8

To be sure, when CERCLA was enacted in 1980 and

amended in 1986, it was far from unusual for Congress to

create a cause of action but fail to provide a pertinent period

of limitations, thereby leaving it to the courts to “borrow”

an appropriate applicable period from other sources of law.

See North Star Steel Co. v. Thomas, 515 U.S. 29, 33 (1995)

(noting that “[a] look at this Court’s docket in recent years”

demonstrates the frequency of that circumstance); Lampf,

Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S.

350, 355 (1991) (“Congress ordinarily intends” for such

borrowing “by its silence”); Reed v. United Trans. Union,

488 U.S. 319, 323 (1989) (“Congress not infrequently fails

to supply an express statute of limitations when it creates a

federal cause of action.”). Although Congress has since

eliminated the need to borrow periods of limitation from other

sources of law for statutes passed after December 1, 1990,’

CERCLA was enacted and amended prior to that date.

The fact that Congress frequently omits express periods

of limitation, therefore, weighs against any attempt by

Petitioner and the United States to vest § 113(g)(3)’s silence

with undue significance.’ The Court thus should refrain from

2. December 1, 1990 is the effective date of 28 U.S.C. § 1658(a),

“which supplies a general, 4-year limitations period for any federal

statute subsequently enacted without one of its own.” North Star,

515 U.S. at 34 n.*.

3. In fact, the lower federal courts routinely have found that a

PRP who settles its liability administratively with a State may bring

a contribution action pursuant to CERCLA § 113(f)(3)(B) in the

absence of any limitations period, but the courts have differed as to

which period of limitations applies in that circumstance. See, e.g.,

Union Station Assocs. LLC v. Puget Sound Energy, Inc., 238 F. Supp.

(Cont'd)

ee See eae DOU nT ee

9

adopting without limitation any argument that may have the

unintended effect of undermining the States’ significant

interest in preserving the incentive provided by § 113(f)(3)(B)

for PRPs to enter into administrative settlements with State

environmental authorities. See Bedford Affiliates, 156 F.3d

at 427; United Techs., 33 F.3d at 103.

(Cont'd)

2d 1226 (W.D. Wash. 2002) (finding right of contribution and

applying three-year period of limitations from § 113(g)(3)(B));

Sherwin-Williams Co. v. ARTRA Group, Inc., 125 F. Supp. 2d 739

(D. Md. 2001) (applying statutes of limitation provided by

§ 113(g)(2)); WR. Grace & Co. v. Zotos Int'l, Inc., No. 98-CV-

838S(F), 2000 U.S. Dist. LEXIS 18091 (W.D.N.Y. Nov. 2, 2000)

(applying no statute of limitations where none of the “triggering

events” of § 113(g)(3) were present); Reichhold Chems., Inc. v.

Textron, Inc., 888 F. Supp. 1116 (N.D. Fla. 1995) (same). In other

instances, too, federal courts have held that a right to contribution

lies even where CERCLA provides no express period of limitations

to govern the action. See, e.g., City of Wichita v. Aero Holdings,

Inc., 177 F. Supp. 2d 1153 (D. Kan. 2000); Advanced Micro Devices,

Inc. v. National Semiconductor Corp., 38 F. Supp. 2d 802 (N.D. Cal.

1999); Kaufman & Broad-South Bay v. Unisys Corp., 868 F. Supp.

1212 (N.D. Cal. 1994).

CONCLUSION

For the foregoing reasons, the judgment of the court of

appeals should be affirmed.

Peter H. LEHNER

Chief, Environmental

Protection Bureau

KAREN R. KAUFMANN

GorpDON J. JOHNSON

Assistant Attorneys General

* Counsel of Record

Respectfully submitted,

E.ioT SPITZER

Attorney General of the

State of New York

CaITLIN J. HALLIGAN*

Solicitor General

RosBert H. EASTON

Assistant Solicitor General

120 Broadway

New York, NY 10271

(212) 416-8016

TERRY GODDARD

Attorney General

State of Arizona

1275 West Washington

Phoenix, AZ 85007-2926

Bit LOCKYER

Attorney General

State of California

1300 L. Street, Suite 125

P.O. Box 944255

Sacramento, CA 94244-2550

1]

KEN SALAZAR

Attorney General

State of Colorado

1525 Sherman St., 7th Floor

Denver, CO 80203

RICHARD BLUMENTHAL

Attorney General

State of Connecticut

55 Elm Street

Hartford, CT 06106

M. JANE BRADY

Attorney General

State of Delaware

820 N. French Street

Wilmington, DE 19801

LisA MADIGAN

Attorney General

State of Illinois

100 W. Randolph Street

12" Floor

Chicago, IL 60601

Cuar.es C. Foti, Jr.

Aitorney General

State of Louisiana

P.O. Box 94005

Baton Rouge, LA 70804-9005

THOMAS F. REILLY

Attorney General

Commonwealth of Massachusetts

One Ashburton Place

Boston, MA 02108

12

Micuaet A. Cox

Attorney General

State of Michigan

P.O. Box 30212

Lansing, MI 48909

JEREMIAH W. (Jay) NIXON

Attorney General

State of Missouri

Supreme Court Building

207 West High Street

Jefferson City, MO 65101

Mike McGratTH

Attorney General

State of Montana

215 N. Sanders

P.O. Box 201401

Helena, MT 59624-1401

BRIAN SANDOVAL

Attorney General

State of Nevada

100 N. Carson St.

Carson City, NV 89701

WAYNE STENEHJEM

Attorney General

State of North Dakota

600 E. Boulevard Ave., Dept. 125

Bismarck, ND 58505-0040

13

Jm Petro

Attorney General

State of Ohio

30 E. Broad St., 17th Floor

Columbus, OH 43215

W.A. Drew EDMONDSON

Attorney General

State of Oklahoma

2300 N. Lincoln Blvd.

Suite 112

Oklahoma City, OK 73105-4894

GERALD J. PAPPERT

Attorney General

Commonwealth of Pennsylvania

16th Floor, Strawberry Square

Harrisburg, PA 17120

Patrick C. LyNcH

Attorney General

State of Rhode Island

150 South Main Street

Providence, RI 02903

Henry McMaASTER

Attorney General

State of South Carolina

P.O. Box 11549

Columbia, SC 29211

14

Pau G SUMMERS

Attorney General

State of Tennessee

P.O. Box 20207

Nashville, TN 37202-0207

CHRISTINE O. GREGOIRE

Attorney General

State of Washington

1125 Washington Street

P.O. Box 40100

Olympia, WA 98504-0100

Peccy A. LAUTENSCHLAGER

Attorney General

State of Wisconsin

P.O. Box 7857

Madison, WI 53707-7857

Patrick J. CRANK

Attorney General

State of Woming

123 State Capitol

Cheyenne, WY 82002

ANABELLE RODRIGUEZ

Secretary of Justice

Commonwealth of Puerto Rico

P.O. Box 9020192

San Juan, PR 00902-0192

Attorneys for Amici Curiae