# 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

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

SeeeeeeeeveeCcwee@egwe@eGc@ee<eqerseseeaesee@eCcsee@eeseedes2 6 6 6 @

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0635%3A14. Public record. Not legal advice.