Petition for Writ of Certiorari — United States v. Atlantic Research Corp.
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Supreme Court, U.S.
WV) 06-562 0CT 24 2006
No. QFFICE OF THE CLERK
Jn the Supreme Court of the Anited States
UNITED STATES OF AMERICA, PETITIONER
Vv.
ATLANTIC RESEARCH CORPORATION
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
PAUL D. CLEMENT
Solicitor General
Counsel of Record
SUE ELLEN WOOLDRIDGE
Assistant Attorney General
THOMAS G. HUNGAR
Deputy Solicitor General
KANNON K. SHANMUGAM
Assistant to the Solicitor
General
RONALD M. SPRITZER
ELLEN J. DURKEE
Attorneys
Department of Justice
Washington, D.C. 20580-0001
(202) 514-2217
EE
QUESTION PRESENTED
Whether a party that is potentially responsible for
the cost of cleaning up property contaminated by haz-
ardous substances under the Comprehensive Environ-
mental Response, Compensation, and Liability Act
(CERCLA), 42 U.S.C. 9601 et seq., but that does not
satisfy the requirements for bringing an action for con-
tribution under Section 113(f) of CERCLA, 42 U.S.C.
9613(f), may bring an action against another potentially
responsible party under Section 107(a), 42 U.S.C.
9607(a).
(1)
TABLE OF CONTENTS
Page
a veka laches eeseawedeseet 1
Ta A toa ala ele aes bid le lite Bais eae 1
Statutory provisions involved ..............0.eeceeeeeees 2
ee ee ee ee ie te ee oe eu weed 2
Reasons for granting the petition ........................ 8
A. The decision below conflicts with the decisions
of other courts of appeals .......cccccccccccccss 9
B. The decision below is incorrect ................. 15
C. The question presented is important and war-
PUES COVE OE CRB GERD onc ccc cccnccccese 24
RE a SRE Re. Re ere eT 26
ED 55. 6Ubc5Gs ben te4ededbueneseseehbesbaesedes la
EE. be cuaid nn hanstnhcnebaenennsendsteseuseds 20a
PD <ikdedds tence cutausebakeetasennsecenes 29a
TABLE OF AUTHORITIES
Cases:
Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761 (7th
EY hii bbe ded 00s Oke RG be Ceeebebaesdeues 5, 13
Alexander v. Sandoval, 532 U.S. 275 (2001) ........... 16
AT& T Co. v. Central Office Tel., Inc., 524 U.S. 214
DE dc cckdauheueweeeeudieed tates tsnvckeedeasé 20
Atherton v. FDIC, 519 U.S. 213 (1997) ................ 20
Aviall Servs., Inc. v. Cooper Indus., LLC, No. 3:97-
CV-1926-D, 2006 WL 2263305 (N.D. Tex. Aug. 8,
EE ecu eeo et ee awaa suGe dca ween Sen eKd dened cues 25
Bedford Affiliates v. Sills, 156 F.3d 416 (2d Cir.
SE Sadie WE OES OSs SERN aEEPUES Ek 864605444 5, 10
IV
Cases—Continued: Page
Boarhead Farm Agreement v. Advanced Envtl. Tech. :
Corp., 381 F. Supp. 2d 427 (E.D. Pa. 2005) .......... 25
Centerior Serv. Co. v. Acme Scrap Iron & Metal
Corp., 153 F.3d 344 (6th Cir. 1988) ................. 5
City of Bangor v. Citizens Comme'ns Co.,
437 F. Supp. 2d 180 (D. Me. 2006) ................. 24
City of Philadelphia v. Stepan Chem. Co.,
544 F. Supp. 1135 (E.D. Pa. 1982) .................. 4
City of Waukesha v. Viacom Int'l, Inc., 362 F. Supp.
SS REGS. WN END ccc cccccccccccussdeeebens 25
Coeur D’Alene Tribe v. Asarco Inc., 280 F. Supp. 2d
SONG CRUDE once ccnscccessenscencuausees 24
Consolidated Edison Co. of N.Y., Inc. v. UGI Utils.,
Inc., 423 F.3d 90 (2d Cir. 2005), petition for cert.
pending, No. 05-1323 (filed Apr. 14, 2006) ..... passim
Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930 (8th
Ge HUD «onc vc ccecendsstceensecsssciueeeeeae 5
Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157
GEEED vevsccccccecuccvedsesctauanveseesune passim
EI. DuPont de Nemours & Co. v. United States,
460 F.3d 515 (3d Cir. 2006), petition for re-
hearing pending, No. 04-2096 (filed Oct.
PD accatevecdnaeuceenn ue 9, 11, 12, 13, 23
Elementis Chromium L.P. v. Coastal States Petro-
leum Co., 450 F.3d 607 (5th Cir. 2006) ......... oo 21
Ferguson v. Arcata Redwood Co., LLC, No. C 03-
05632 S1, 2005 WL 1869445 (N.D. Cal. Aug. 2,
SED 6-0vc000bekesbeeneeeeie tees 24
Cases—Continued: Page
Jama v. Immigration & Customs Enforcement,
ED adi dondcdcecvccocscucesacecees 15
Key Tronic Corp. vz United States, 511 U.S. 809
See rddba de ie inewadéeeeeddeesssseesececes 15
Kotrous v. Goss-Jewett Co. of N. Cal, Inc., No. Civ.
$02-1520 FCD IFM, 2005 WL 1417152 (E.D. Cal.
eed ee eee eeeeseeeeees 24
Mercury Mall Assocs., Inc. v. Nick’s Mkt., Inc., 368
F. Supp. 2d 513 (E.D. Va. 2005) ...............4..- 25
Montville Twp. v. Woodmont Builders, LLC, No. Civ.
A. 03-280 DRD, 2005 WL 2000204 (D.N.J. Aug. 17,
DCNet ted edeeeebhnuedenesesceseecececsss 3 roc
New Castle County v. Halliburton NUS Corp.,
111 F.3d 1116 (8d Cir. 1997) ................. passim
Northwest Airlines, Inc. vy. Transport Workers
Cameem, GE US. TE CIBER) 2. cc cccvcccccccccces 16, 17
Pinal Creek Group v. Newmont Mining Corp.,
118 F.3d 1298 (9th Cir. 1997), cert. denied, 524 U.S.
i sees each eee egheeeesuceceses 5,13
Pneumo Abex Corp. v. High Point, Thomasville &
Denton R.R., 142 F.3d 769 (4th Cir.), cert. denied,
iS hanced cues ccennenenss sees 5, 14
R.E. Goodson Constr. Co. v. International Paper Co.,
No. C/A 4:02-4184-RBH, 2005 WL 2614927 (D.S.C.
i (the oud ceudacedecénecsescceustéccece 25
Raytheon Aircraft Co. v. United States, 435 F. Supp.
eed nc canseseesvecesees 24
Reading Co., In re, 115 F.3d 1111 (3d Cir. 1997) .... 11,21
Redwing Carriers, Inc. v. Saraland Apartments, 94
PAPE DEED cc ceccceccccccesccccccces 5
Vi
Cases—Continued: _ Page
Rumpke of Ind., Ine. v. Cummins Engine Co.,
107 F.3d 1236 (7th Cir. 1997) 2... ccc cece cc eeceees 14
Sunnyside Dev. Corp., LLC v. Opsys U.S. Corp.,
No. C 05-01447 SI, 2006 WL 1128039 (N.D. Cal.
* PR Te eho ct ecgccekncssucncecesusescesdci 24
Texas Indus., Inc. v. Radcliff Materials, Inc.,
Ge ED xccdcstdicccucsbansdesucdeuses 16
United States v. Bestfoods, 524 U.S. 1(1998) ......... 2,3
United States v. Chrysler Corp., 157 F. Supp. 2d 849
I as cal a re oe 21
United States v. Colorado & E. R.R., 50 F.3d 1530
CD «tac ddcudadubedbiadodudennnt 5, 13, 18
United States v. Fausto, 484 U.S. 439 (1988) .......... 18
United States v. Kramer, 757 F. Supp. 397 (D.N.J.
i <tcdcadakecescusebsubhneenbediensaaees 21
United States v. Monsanto Co., 858 F.2d 160 (4th Cir.
1988), cert. denied, 490 U.S. 1106 (1989) ............ 21
United States v. New Castle County, 642 F. Supp.
ME (x cc tcudduuteasdaeksanesreneaus 4
United States v. Shell Oil Co., 294 F.3d 1045 (9th Cir.
2002), cert. denied, 537 U.S. 1147 (2003) ............ 24
United States v. Vertac Chem. Corp., 46 F 3d 803 (8th
Cir.), cert. denied, 515 U.S. 1158 (1995) ............ 24
United States v. Westinghouse Elec. Corp., No. IP 83-
9-C, 1983 WL 160587 (S.D. Ind. June 29, 1983) ....... 4
Vil
Cases—Continued: Page
United Techs. Corp. v. Browning-Ferris Indus.,
33 F.3d 96 (1st Cir. 1994), cert. denied, 513 U.S.
DED ichocuscucacecduesasionens 5, 13, 16, 17, 18
Viacom, Inc. v. United States, 404 F. Supp. 2d 3
DEED dadecodvedeusensadécaneseveiscaess 24
Vine Street LLC v. Keeling, 362 F. Supp. 2d 754 (E.D.
CEE Kk cd6ecceddeeunescduckendedencendecees 25
Wickland Oil Terminals v. Asarco, Inc., 792 F 2d 887
PLE. dn0edecncuchetsevceveuacecnéesesdi 16
Statutes and regulation:
Comprehensive Environmental Response, Compensa-
tion, and Liability Act, 42 U.S.C. 9601 et seq.:
$ 101(21), 42 U.S.C. 9601(21) ...............44.- 15
ccna te needaedeniueenes 2,3
rd piped cide tiedaudias 4
§ 106, 42 U.S.C. 9606 ........ ne 5, 18, 19, 20, 21
§ 106(a), 42 U.S.C. 9606(a) ................ Sewn 3
PE GE OED eco cccccocccceccacsces 3
Pe ED cectcdccsccvcncne passim, 29a
§ 107(a), 42 U.S.C. 9607(a) ............ passim, 29a
§ 107(a)(1)-(4), 42 U.S.C. 9607(a)(1)-(4) .... 3, 15, 29a
§ 107(a)(1)-(4)(A), 42 U.S.C. 9607(a)(1)-
SEE dia tiniae pag elt aeendol 3, 4, 16, 30a
§ 107(a)(1)-(4)(B), 42 U.S.C. 9607(a)(1)-
“Sika Roary .... 8,4,7, 15, 16, 30a
IE ieitencnkaccnemaderbes 2, 65a
§ 113(f), 42 U.S.C. 9613(f) ............ passim, 66a
Vill
Statutes and regulation—Continued: Page
§ 113(f)(1), 42 U.S.C. 9613(f)1)....... passim, 66a
§ 113(f)(2), 42 U.S.C. 9613(f(2) ...... 4, 5, 18, 22, 67a
§ 113(f)(3), 42 U.S.C. 9613(f)(3) ............. 24, 67a
§ 113(f)(3)(B), 42 U.S.C. 9613(f)(3)(B) 5, 9, 18, 19, 68a
§$ 113(g)(2), 42 U.S.C. 9613(g)(2) ............ 18, 69a
§ 113(g)(3), 42 U.S.C. 9613(g)(3) ............ 18, 70a
Superfund Amendments and Reauthorization Act of
1986, Pub. L. No. 99-499, 100 Stat. 1613 ............. 2
GREED Sn bccccedaccncsancnccensscedsccancs 4
Miscellaneous:
Black’s Law Dictionary (5th ed. 1979)... 6. eee eee ee 17
By PEED 6c cccdcdisseccvccccasicvcces 24
69 Fed. Reg. (2004):
DBR cccccsccdacnsscccesccuscccessoecesecess 24
DEE Sccvcsduiactencdédde ddvedenddctceadenes 24
H.R. Rep. No. 253, 99th Cong., Ist Sess. Pt. 1 (1985) ... 20
In the Supreme Court of the Anited States
No.
UNITED STATES OF AMERICA, PETITIONER
Vv.
ATLANTIC RESEARCH CORPORATION
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General respectfully petitions for a writ
of certiorari to review the judgment of the United States
Court of Appeals for the Eighth Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a-
19a) is reported at 459 F.3d 827. The order and opinion
of the district court (App., infra, 20a-28a) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on
August 11, 2006. The jurisdiction of this Court is in-
voked under 28 U.S.C. 1254(1).
(1)
STATUTORY PROVISIONS INVOLVED
Sections 107 and 113 of CERCLA, 42 U.S.C. 9607,
9613, are reproduced in the appendix to this petition
(App., infra, 29a-76a).
STATEMENT
This case presents the principal question left open by
this Court two Terms ago in Cooper Industries, Inc. v.
Aviall Services, Inc., 543 U.S. 157 (2004): Whether a
party that is potentially responsible for the cleanup of
property contaminated by hazardous substances under
the Comprehensive Environmental Response, Compen-
sation, and Liability Act (CERCLA), 42 U.S.C. 9601 et
seq., but is not eligible to bring an action for contribution
under Section 113(f) of CERCLA, 42 U.S.C. 9613(f), may
nevertheless bring an action against another potentially
responsible party under Section 107(a), 42 U.S.C.
9607(a). In this case, the Eighth Circuit, consistent with
an earlier decision of the Second Circuit but in conflict
with a later decision of the Third Circuit, held that a
potentially responsible party could pursue such an ac-
tion under Section 107(a). The Eighth Circuit’s decision
is incorrect and merits this Court’s review.
1. Congress enacted CERCLA in 1980 in response
to the serious environmental and health dangers posed
by property contaminated by hazardous substances.
United States v. Bestfoods, 524 U.S. 51, 55 (1998). As
amended by the Superfund Amendments and Reauthori-
zation Act of 1986 (SARA), Pub. L. No. 99-499, 100 Stat.
1613, CERCLA provides the President, acting primarily
through the Environmental Protection Agency (EPA),
with several alternative means for cleaning up contami-
nated property. Section 104 of CERCLA authorizes
EPA to undertake response actions designed to remove
3
hazardous substances, using monies from the Hazardous
Substances Superfund. See 42 U.S.C. 9604; Bestfoods,
524 U.S. at 55. Section 106(a) permits EPA to compel,
by means of an administrative order or a request for
judicial relief, other persons to undertake response ac-
tions, which EPA then monitors: See 42 U.S.C. 9606(a).
A person subject to such an order may petition EPA for
reimbursement of its costs and, if the petition is denied,
may bring suit to recover those costs on the ground that
the person is not liable or that the selected response
action was improper. See 42 U.S.C. 9606(b).
Section 107(a) imposes liability for cleanup costs on
four categories of “[c]overed persons”—typically known
as potentially responsible parties (PRPs)— associated
with the release or threatened release of hazardous sub-
stances. See 42 U.S.C. 9607(a). PRPs are defined as (1)
owners and operators of facilities at which hazardous
substances are located; (2) past owners and operators of
such facilities at the time that disposal of hazardous sub-
stances occurred; (3) persons who arranged for disposal
or treatment of hazardous substances; and (4) eertain
transporters of hazardous substances. See 42 U.S.C.
9607(a)(1)-(4). Unless they can invoke a statutory de-
fense or exclusion, persons who qualify as PRPs are lia-
ble for, inter alia, “all costs of removal or remedial ac-
tion incurred by the United States Government or a
State or an Indian tribe not inconsistent with the na-
tional contingency plan,” 42 U.S.C. 9607(a)(1)-(4)(A),
and “any other necessary costs of response incurred by
any other person consistent with the national contin-
gency plan,” 42 U.S.C. 9607(a)(1)-(4)(B).'
' The national contingency plan consists of federal regulations that
prescribe the procedure for conducting hazardous substance cleanups
d
Since the enactment of CERCLA, courts have consis-
tently held that the United States (or a State or an In-
dian tribe) may bring suit against any PRP under Sec-
tion 107(a)(1)-(4)(A) to recover response costs that it has
incurred, and may proceed on a theory of joint and sev-
eral liability (except to the extent that the PRP can show
that the alleged harm is divisible). See, e.g., New Castle
County v. Halliburton NUS Corp., 111 F.3d 1116, 1121
(3d Cir. 1997). Before CERCLA was amended by SARA
in 1986, however, lower courts disagreed on whether one
PRP could bring an action against another PRP for con-
tribution or cost recovery, and, if so, the source of au-
thority for such an action. Compare, e.g., City of Phila-
delphia v. Stepan Chemical Co., 544 F. Supp. 1135, 1140-
1148 (E.D. Pa. 1982) (holding that PRP had right to cost
recovery under Section 107(a)(1)-(4)(B)), and United
States v. New Castle County, 642 F. Supp. 1258, 1261-
1269 (D. Del. 1986) (holding that PRP had right to con-
tribution under federal common !aw), with United States
v. Westinghouse Electric Corp., No. IP 83-9-C, 1983 WL
160587, at *3-*4 (S.D. Ind. June 29, 1983) (holding that
PRP had no right to contribution).
With the enactment of SARA Congress added Sec-
tion 113(f), which expressly supplies PRPs with a cause
of action against other PRPs in certain circumstances.
See 42 U.S.C. 9613(f). First, Section 113(f)(1) provides
that “[a]ny person may seek contribution from any other
person who is liable or potentially liable under [Section
107(a)], during or following any civil action under [Sec-
tion 106] or under [Section 107(a)J.” 42 U.S.C.
9613(f)(1). With regard to such actions, Section 113(f)(2)
under CERCLA and other federal laws. See CERCLA § 105, 42 U.S.C.
9605; 40 C.F.R. Pt. 300. |
5
specifies that “[a] person who has resolved its liability to
the United States or a State in an administrative or judi-
cially approved settlement shall not be liable for claims
for contribution regarding matters addressed in the set-
tlement.” 42 U.S.C. 9613(f)(2). Second, Section
113(f)(3)(B) provides that “[a] person who has resolved
its liability to the United States or a State for some or
all of a response action or for some or all of the costs of
such action in an administrative or judicially approved
settlement may seek contribution from any person who
is not a party to a settlement referred to in [Section
113(f)(2)).”_ 42 U.S.C. 9613(f)(8)(B). After SARA’s en-
actment, courts of appeals consistently held that a PRP
could not bring an action against another PRP for cost
recovery, on a theory of joint and several liability, under
Section 107(a), but was instead limited to an action for
contribution under one of the two provisions of Section
113(f). , |
In Cooper Industries, supra, this Court held that, in
order to pursue an action for contribution against an-
other PRP under Section 113(f)(1), a PRP must itself be
sued under either Section 106 or Section 107(a). See 543
* See Bedford Affiliates v. Sills, 156 F.3d 416, 423-425 (2d Cir. 1998);
Centerrior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d 344,
356 (6th Cir. 1998); Pneuwmo Aber Corp. v. High Point, Thomasville &
Denton R.R., 142 F.3d 769, 776 (4th Cir.), cert. denied, 525 U.S. 963
(1998); Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298,
1301 (9th Cir. 1997), cert. denied, 524 U.S. 937 (1998); New Castle
County, 111 F.3d at 1121-1124; Redwing Carriers, Inc. v. Saraland
Apartments, 94 F.3d 1489, 1496 (11th Cir. 1996); Control Data Corp. v.
S.C_S.C. Corp., 53 F.3d 930, 935 (Sth Cir. 1995); United States v.
Colorado & E. R.R., 50 F.3d 1530, 1534-1536 (10th Cir. 1995); United
Technologies Corp. v. Browning-Ferris Indus. 33 F.3d 96, 100 (st Cir.
1994), cert. denied, 513 U.S. 1188 (1995); Akzo Coatings, Ine. v. Aigner
Corp., 30 F.3d 761, 764 (7th Cir. 1994).
6
U.S. at 165-168. The Court left open the question pre-
sented here—nameiy, whether a PRP could bring an
action against another PRP for cost recovery under Sec-
tion 107(a), see id. at 168-170—but it noted that “nu-
merous decisions of the Courts of Appeals” had held that
an action under Section 107(a) for cost recovery, on a
theory of joint and several liability, was unavailable, 7d.
at 169.
2. As alleged in the complaint, respondent leased
property in an industrial park in Camden, Arkansas,
from 1979 to 2003. From 1981 to 1986, respondent
retrofitted rocket motors under contract with the
United States. In the course of conducting that retrofit-
ting, respondent used a high-pressure washing system
to remove propellant from the motors. Wastewater con-
taining the propellant contaminated soil and groundwa-
ter at the site. Respondent also burned quantities of
propellant, further contaminating the soil and ground-
water. In addressing the contamination, respondent
incurred various cleanup costs. App., infra, 23a-25a.
In 2002, respondent filed suit against the United
States in the United States District Court for the West-
ern District of Arkansas, seeking to recover costs from
the government (as a PRP) under either Section 113(f)
or Section 107(a). After this Court’s decision in Cooper
Industries, respondent dropped its Section 113(f) claim.
The government moved to dismiss the action for failure
to state a claim on the ground that, because respondent
was a PRP, it could not bring suit under Section 107(a).
3. The district court granted the motion to dismiss.
App., ivfra, 2la-28a. Relying on an Eighth Circuit deci-
sion that preceded Cooper Industries, the district court
concluded that “a party that is subject to CERCLA lia-
bility is limited to seeking contribution from other
7
jointly liable parties in accordance with Section 113(f),
unless the PRP qualifies for one of three defenses.” /d.
at 25a. The court rejected respondent’s contention that
Cooper Industries had “undermined the fundamental
support for [the Eighth Circuit’s decision] and other cir-
cuits’ decisions that Section 113(f) limits PRPs’ claims
for contribution and precludes actions between PRPs for
direct recovery under Section 107(a).” /d. at 26a.
4. The court of appeals reversed. App., infra, 1la-
19a. The court noted that, while Cooper Industries had |
left open the question whether a PRP could proceed un-
der Section 107(a), it had indicated that Sections 107(a)
and 113(f) provided “distinct” remedies. /d. at 13a. Ac-
cordingly, the court reasoned, “it is no longer appropri-
ate to view § 107’s remedies exclusively through a § 113
prism.” /d. at 13a-14a. In light of Cooper Industries,
therefore, the court revisited the availability of a cause
of action under Section 107(a). Jd. at 13a-14a.
The court of appeals first held that Section 107(a)(1)-
(4)(B) provided a PRP with an express right of cost re-
covery against another PRP. App., infra, 14a-15a. In so
doing, the court relied heavily on the Second Circuit’s
decision in Consolidated Edison Co. of New York, Inc.
v. UGI Utilities, Inc., 423 F.3d 90 (2005), petition for
cert. pending, No. 05-1323 (filed Apr. 14, 2006). The
court reasoned that Section 107(a)(1)-(4)(B) applied
“[o]jn its face,” because respondent was a “person” under
CERCLA and had incurred “necessary costs of re-
sponse.” App., infra, 14a. The court recognized that
“$ 107 allows 100% cost recovery,” but asserted that,
“lilf a plaintiff attempted to use § 107 to recover more
than its fair share of reimbursement, a defendant would
be free to counterclaim for contribution under § 113(f).”
Id. at 15a. Moreover, the court noted, without elabora-
8
tion, that “[t]his right is available to parties who have
incurred necessary costs of response, but have neither
been sued nor settled their liability under §§ 106 or
107.” Jd. at 14a.
The court of appeals held, in the alternative, that “a
right to contribution may be fairly implied from the text
of [$] 107(a)(4)(B).” App., infra, 15a. The court rejected
the argument that, “in enacting § 113, Congress in-
tended to eliminate the preexisting right to contribution
it had allowed for court development under § 107.” /d.
at 16a. The court reasoned that, “if Congress intended
§ 113 to completely replace § 107 in all circumstances,
even where a plaintiff was not eligible to use § 113, it
would have done so explicitly.” /d. at 16a-17a.
In the court of appeals’ view, a contrary holding
would “result{] in an absurd and unjust outcome,” be-
cause “the government could insulate itself from respon-
sibility for its own pollution by simply declining to bring
a CERCLA cleanup action or refusing a liable party’s
offer to settle.” App., infra, 18a. Congress, the court
concluded, “did not create a loophole by which the Re-
public could escape its own CERCLA liability by per-
versely abandoning its CERCLA enforcement power.”
Id. at 19a.
REASONS FOR GRANTING THE PETITION
In the wake of this Court’s decision in Cooper Indus-
tries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004),
there is a clear conflict among the courts of appeals on
the question left open in that case: 7.e., whether a poten-
tially responsible party can pursue an action against
another PRP under Section 107(a). Moreover, the court
of appeals’ decision in this case, holding that a PRP can
bring suit under Section 107(a), is contrary to the text
~
9
and structure of the statute and would create perverse
incentives for PRPs not to enter into settlements with
the government. Because the question presented is im-
portant, recurring, and ripe for resolution by this Court,
the petition should be granted.
A. The Decision Below Conflicts With The Decisions Of
Other Courts Of Appeals
1. Since this Court’s decision in Cooper Jndustries,
three courts of appeals have addressed the availability
of a cause of action by one PRP against another PRP
under Section 107(a). The decision below is consistent
with the Second Circuit’s decision in Consolidated Edi-
son Co. of New York, Inc. v. UGI Utilities, Inc., 423
F.3d 90 (2005), petition for cert. pending, No. 05-1323
(filed Apr. 14, 2006), but is in direct conflict with the
Third Circuit’s decision in E./J. DuPont de Nemours &
Co. v. United States, 460 F.3d 515 (2006), petition for
rehearing pending, No. 04-2096 (filed Oct. 13, 2006).
a. In Consolidated Edison, one PRP sued another
PRP under Section 113(f)(1) to recover costs that it had
incurred and would incur in cleaning up contamination
at the sites of manufactured gas plants. 423 F.3d at 93-
94. After this Court’s Cooper Industries decision made
clear that Section 113(f)(1) was inapplicable, the plaintiff
PRP argued that it could bring suit under Section
113(f)(3)(B) instead, because it had entered into a “Vol-
untary Cleanup Agreement” with the New York State
Department of Environmental Conservation. /d. at 95.
The Second Circuit held that the PRP was not entitled
to invoke Section 113(f)(3)(B) because the agreement
could not “be construed to have resolved [the PRP’s]
CERCLA liability.” /d. at 97.
10
Although the plaintiff PRP had not asserted that it
could sue under Section 107, and indeed had “appear|ed]
willing to accept * * * that section 107(a) may never
provide a right of action for a [PRP ],” 423 F.3d at 99, the
Second Circuit sua sponte addressed that question and
held that the plaintiff PRP could bring suit under Sec-
tion 107(a). /d. at 97-103. The court acknowledged that
it, like other courts of appeals, had previously held that
a PRP could not bring an action against another PRP for
cost recovery under Section 107(a) but was instead lim-
ited to an action for contribution under Section 113(f).
Id. at 98-99 (citing Bedford Affiliates v. Sills, 156 F.3d
416 (2d Cir. 1998)). But the court concluded that its ear-
lier decision (which “h{e]|ld that a potentially responsible
person * * * cannot maintain a § 107(a) action against
another potentially responsible person,” Bedford Affili-
ates, 156 F.3d at 425) had arisen in a different factual
setting and could have been decided without resolving
that question. 423 F.3d at 99-102.
Having addressed that precedent, the Second Circuit
held that “section 107(a) permits a party that has not
been sued or made to participate in an administrative
proceeding, but that, if sued, would be held liable under
section 107(a), to recover necessary response costs in-
curred voluntarily.” 423 F.3d at 100. According to the
court, “determining whether [such] a party * * * may
sue under section 107(a) is easily resolved based on that
section’s plain language.” /d. at 99. The court reasoned
that, under Section 107(a), “[t]he only questions we must
answer are whether [the PRP] is a ‘person’ and whether
it has incurred ‘costs of response.’” /bid. “Unlike some
other courts,” the court continued, “we find no basis for
reading into [Section 107(a)] a distinction between so-
called ‘innocent’ parties and [PRPs].” /bid. The court
11
stated that “Section 107(a) makes its cost recovery rem-
edy available, in quite simple language, to any person
that has incurred necessary costs of response, and no-
where does the plain language of section 107(a) require
that the party seeking necessary costs of response be
innocent of wrongdoing.” /d. at 100.°
The Second Circuit added that, in its view, a contrary
reading of. Section 107(a) would “impermissibly
discourag|e] voluntary cleanup.” 423 F.3d at 100. Ac-
cording to the court, “[t}his would undercut one of
CERCLA’s main goals.” /bid.
b. By contrast, in DuPont, supra, the Third Circuit
expressly rejected the approaches of the Second Circuit
in Consolidated Edison and of the court of appeals in
this case (which heavily relied on Consolidated Edison)
and held that a PRP cannot bring suit against another
PRP under Section 107(a). In DuPont, various PRPs
sued the United States (as a PRP), seeking to recover
costs for the cleanup of multiple sites nationwide. 460
F.3d at 525. Like the Second Circuit in Consolidated
Edison, the Third Circuit began by recognizing that it
had previously held that a PRP could not bring an action
against another PRP for cost recovery under Section
107(a). 460 F.3d at 528 (citing New Castle County v.
Halliburton NUS Corp., 111 F.3d 1116 (3d Cir. 1997),
and Jn re Reading Co., 115 F.3d 1111 (3d Cir. 1997)).
Unlike the Second Circuit, however, the Third Circuit
did not view its earlier cases as distinguishable. /d. at
’ With regard to the concern that a PRP suing under Section 107(a)
would be entitled to joint and several liability, the court observed that
“there appears to be no bar precluding a person sued under section
107(a) from bringing a counterclaim under section 113(f(1) for
offsetting contribution against the plaintiff volunteer |PRP}.” 423 F.3d
at 100 n.9.
12
530-531. The court also determined that “no intervening
authority provides a basis sufficient to reconsider those
precedents.” /d. at 528. The court reasoned that the
Supreme Court’s decision in Cooper Industries “did not
explicitly or implicitly overrule our precedents” but in-
stead “expressly declined to consider the very questions
at issue here.” /d. at 532.
The Third Circuit rejected the argument that a rule
precluding one PRP from suing another under Section
107(a) would be “in direct opposition to CERCLA’s
broad remedial purpose.” 460 F.3d at 533. The court
observed that, “|whhile it is clear that CERCLA’s draft-
ers intended common law principles to govern liability,
we have not found evidence in the legislative history that
Congress contemplated this would extend a contribution
right to PRPs engaged in entirely voluntary cleanups.”
Id. at 535. Moreover, the court noted, “SARA’s legisla-
tive history * * * reveals an express bent toward en-
couraging settlements.” /d. at 536. The court concluded
that “SARA’s settlement scheme is inconsistent with
* * * aright” to recover costs for a voluntary cleanup.
/d. at 538. Instead, the court reasoned, “Congress in-
tended to allow contribution for settling or sued PRPs as
a way to encourage them to admit their liability, settle
with the Government, and begin expeditious cleanup
operations pursuant to a consent decree or other agree-
ment.” /d. at 541.
The Third Circuit acknowledged that “it .could be
that encouraging sua sponte voluntary cleanups by ca-
pable PRPs is in the public’s interest, and would be a
better way to protect health and the environment than
pressuring them into settlement agreements.” 460 F.3d
at 542. The court reasoned, however, that “[t]his is not
self-evident.” /d. at 542-543. . Instead, the court con-
13
cluded, “the debate over whether our national environ-
mental cleanup laws should favor prompt and effective
cleanups in any manner * * * or should favor settle-
ments and other enforcement actions * * * is a matter
for Congress, not our Court.” Jd. at 543."
2. The court of appeals’ decision in this case also
conflicts with numerous pre-Cooper Industries decisions
from other courts of appeals. See p. 5, note 2, swpra. In
those cases, the courts held that one PRP could not
bring actions against another under Section 107(a) in
various circumstances in which the plaintiff PRP could
not avail itself of Section 113(f), including (1) where (as
here) the PRP had not yet been sued under either Sec-
tion 106 or Section 107(a) (and was therefore seeking to
recover the costs of a voluntary cleanup), see, e.g., Pinal
Creek Group v. Newmont Mining Corp., 118 F.3d 1298,
1301-1306 (9th Cir. 1997), cert. denied, 524 U.S. 937
(1998); (2) where the PRP had failed to bring a Section
113(f) contribution action within the applicable limita-
tions period, see, e.g., United Techs. Corp. v. Browning-
Ferris Indus., 33 F.3d 96, 101 (1st Cir. 1994), cert. de-
nied, 513 U.S. 1183 (1995); and (3) where the PRP could
not sue the defendant PRP under Section 113(f) because
the defendant PRP had reached a settlement with the
government, see, e.g., United States v. Colorado & E.
R.R., 50 F.3d 1530, 1534-1536 (10th Cir. 1995); Akzo
Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 764 (7th Cir.
1994).
* Judge Sloviter dissented. She noted that “(t}wo of our sister
circuits have recently considered the same issue presented here and
both have decided, contrary to the majority, that section 107(a) can be
used by a responsible party to seek contribution from another responsi-
ble party.” 460 F.3d at 547
14
Although those decisions arise in various factual con-
texts, many of them state their holdings in broad terms
that categorically foreclose a PRP from bringing an ac-
tion against another PRP for cost recovery under Sec-
tion 107(a). See, e.g., Puewmo Abex Corp. v. High Point,
Thomasville & Denton R.R., 142 F.3d 769, 776 (4th Cir.)
(noting that “section [113] must be used by parties who
are themselves potentially responsible parties”), cert.
denied, 525 U.S. 963 (1998); New Castle County, 111
F.3d at 1120 (stating that “[a]n action brought by a po-
tentially responsible person is by necessity a Section 113
action for contribution”); Rumpke of Ind., Inc. v. Cum-
mins Engine Co., 107 F.3d 1235, 1240 (7th Cir. 1997)
(reasoning that, “when two parties who both injured the
property have a dispute about who pays how much—a
derivative liability, apportionment dispute—the statute
directs them to § 113(f) and only to § 113(f)”). To be
sure, the recent decisions of the Second and Eighth Cir-
cuits demonstrate the capacity of courts of appeals to
revisit their precedents after Cooper Industries. Never-
theless, other courts may follow the Third Circuit’s lead
and reaffirm their pre-Cooper /ndustries precedents. In
either event, those precedents underscore the need for
this Court to provide clarification on the question pre-
sented.
As matters currently stand, therefore, a PRP may
bring a Section 107(a) action against another PRP for
cost recovery in the Second and Eighth Circuits, but is
foreclosed from doing so in the Third Circuit and ap-
pears to be foreclosed from doing so in as many as seven
other circuits. See p. 5, note 2, supra. The Court’s in-
tervention is warranted to resolve this clear and direct
circuit conflict.
15
B. The Decision Below Is Incorrect
The court of appeals erred by holding that one PRP
could bring an action against another PRP under Sec-
tion 107(a).
1. Section 107(a) does not authorize one PRP to sue
another. The relevant language in that section provides
that PRPs—z.e., the universe of persons who fall into the
four categories enumerated in Section 107(a)(1)-—
(4)—shall be liable for “any other necessary costs of
response incurred by any other person consistent with
the national contingency plan.” CERCLA § 107(a)(1)-
(4)(B), 42 U.S.C. 9607(a)(1)-(4)(B) (emphasis added).
That passively worded provision “impliedly authorizes
suit” by “any other person” against PRPs. Key Tronic
Corp. v. United States, 511 U.S. 809, 818 (1994); but see
id. at 822 (Scalia, J., dissenting in part) (characterizing
provision as creating an express cause of action). The
most natural reading of the phrase “any other person”
is that it excludes the persons who are the subject of the
sentence: 7.e., PRPs. Cf. Jama v. Immigration & Cus-
toms Enforcement, 543 U.S. 335, 342-343 & n.3 (2005)
(holding that statutory phrase “another country” ex-
cluded countries listed in previous clauses, on ground
that “both ‘other’ and ‘another’ are just as likely to be
words of differentiation as they are to be words of con-
nection”).” Such a reading of the statute does not strip
Section 107(a)(1)-(4)(B) of operative effect, because it
* The court of appeals correctly noted (App., infra, 14a) that a PRP
constitutes a “person” for purposes of CERCLA. See CERCLA
§ 101(21), 42 U.S.C. 9601(21). The relevant inquiry, however, is not
simply whether a PRP qualifies as a “person,” but whether it qualifies
as “any other person,” and thus an eligible plaintiff, under Section
107(a\(1)44(B).
16
still provides a cause of action for persons other than
PRPs, namely, “innocent” private parties who have in-
curred the requisite costs. See New Castle County, 111
F.3d at 1120; United Technologies, 33 F.3d at 99-100.
Under that reading, however, Section 107(a)(1)-(4)(B)
does not authorize PRPs to sue each other for cost re-
covery.”
The court of appeals seemingly suggested (App., in-
fra, 15a) that Section 107 more generally contains an
implied right to contribution. As a preliminary matter,
it is “debatable” whether Section 107 contains an im-
plied right of contribution at all. Cooper Industries, 543
U.S. at 162; see, e.g., Texas Industries, Inc. v. Radcliff
Materials, Inc., 451 U.S. 630, 638-647 (1981); Northwest
Airlines, Inc. v. Transport Workers Union, 451 U.S. 77,
90-99 (1981); see generally Alexander v. Sandoval, 532
U.S. 275, 290 (2001) (“The express provision of one
* At-one point, the court of appeals suggested that “‘any other
person’ means any person other than the statutorily enumerated
‘United States Government or a State or an Indian tribe.” App., infra,
14a. That suggestion lacks merit. To be sure, the preceding subpara-
graph of Section 107(a) provides a parallel cause of action for those
enumerated governmental entities against PRPs. See CERCLA
§ 107(a)(1)(4)(A), 42 U.S.C. 9607(a)(1)-(4)(A). It does not follow,
however, that the phrase “any other person” in Section 107(a)(1)-(4)(B)
was intended merely to exclude those entities (as opposed to PRPs
generally) from asserting a claim under that subparagraph, To the
contrary, other operative language in Section 107(a)(1)-(4)(B)—namely,
its reference to “other necessary costs” (7.¢., costs other than the costs
specified in Section 107(a)(1)-(4)(A), see, e.g., Wickland Oil Terminals
v. Asarco, Inc., 792 F.2d 887, 891 (9th Cir. 1986))—ensures that those
governmental entities can recover only under Section 107(a)(1)-(4)(A)
and are precluded from recovering under Section 107(a)(1)-(4)(B).
Thus, far from giving meaning to the phrase “any other person” in
Section 107(a)(1)-(4)(B), the court of appeals’ interpretation in fact
renders it entirely superfluous.
17
method of enforcing a substantive rule suggests that
Congress intended to preclude others.”). Even if an
implied right to contribution did exist, however, it would
not help respondent, because Section 107 would at most
contain an implied right to “contribution” in its “tradi-
tional sense”: i.e., a claim by one party to recover an
amount from a jointly liable party after the first party
has extinguished a disproportionate share of their com-
mon liability to a third party. United Technologies, 33
F.3d at 99; see, e.g., Northwest Airlines, 451 U.S. at 87-
88 (“Typically, a right to contribution is recognized when
two or more persons are liable to the same plaintiff for
the same injury and one of the joint tortfeasors has paid
more than his fair share of the common liability.”);
' Black’s Law Dictionary 297 (5th ed. 1979) (“Under prin-
ciple of ‘contribution,’ a tortfeasor against whom a judg-
ment is rendered is entitled to recover proportional
shares of judgment from other joint tort-feasors whose
negligence contributed to the injury and who were also
liable to the plaintiff.”). In this case, respondent is not
seeking “contribution” as that term is traditionally de-
fined, but is instead seeking to recover costs from a vol-
untary cleanup. Nothing in any provision of Section 107
suggests an implied right to “contribution” in such a
broader and all-encompassing sense.’
2. Even assuming that Section 107(a), standing on
its own, could be construed to confer on a PRP a cause
of action against another PRP for cost recovery, that
provision must be read in light of Section 113(f), which
provides a PRP with an express cause of action against
another in two specific circumstances: (1) where the
* The same would be true with regard to any nght to contribution
that might exist as a matter of federal common law. See App., infra,
17a n.9 (leaving open existence of such a right).
18
PRP is seeking contribution “during or following any
civil action” under Section 106 or Section 107(a), see
CERCLA § 113(f)(1), 42 U.S.C. 9613(f)(1); or (2) where
the PRP is seeking contribution after entering into an
administrative or judicially approved settlement with
the government, see CERCLA § 113(f)(3)(B), 42 U.S.C.
9613(f)(3)(B). The better view is that the subsequently
enacted Section 113(f) specifies the exclusive circum-
stances in which one PRP may bring suit against an-
other under CERCLA. See, e.g., United States v. Fau-
sto, 484 U.S. 439, 453 (1988) (explaining that “the impli-
cations of a statute may be altered by the implications of
a later statute”).
Were that not true, a PRP could readily circumvent
the various limitations on an action under Section 113(f)
simply by pursuing an action under Section 107(a),
thereby rendering Section 113(f) effectively superfluous.
See, e.g., New Castle County, 111 F.3d at 1122-1123;
Colorado & E.R.R., 50 F.3d at 1536; United Technolo-
gies, 33 F.3d at 101. Thus, a PRP that was outside the
three-year limitations period for an action under Section
113(f), see CERCLA § 113(g)(3), 42 U.S.C. 9613(g)(3),
could take advantage of the typically more generous
limitations period for an action under Section 107(a), see
CERCLA § 113(g)(2), 42 U.S.C. 9613(g¢)(2). And a PRP
that wished to sue another PRP that had itself reached
a settlement with the government (and thus could not be
sued under Section 113(f)), see CERCLA § 113(f)(2) and
(f)(3)(B), 42 U.S.C. 9613(f)(2) and (f)(3)(B), could simply.
sue that PRP under Section 107(a), which contains no
analogous limitation on a settling PRP’s liability in an
action for cost recovery. Similarly, there is no justifica-
tion for permitting a PRP to circumvent Section 113(f)’s
express limitation on bringing suit before an action un-
19
der Section 106 or Section 107(a) is commenced (or a
settlement is reached), see CERCLA § 113(f)(1) and
(f)(3)(B), 42 U.S.C. 9613(f)(1) and (f)(3)(B); Cooper In-
dustries, 543 U.S. at 168, simply by pursuing an action
under Section 107(a) itself. Such an interpretation
would “violate the settled rule that [courts] must, if pos-
sible, construe a statute to give every word some opera-
tive effect.” Jd. at 167."
The savings clause in Section 113(f)(1) does not dic-
tate a different result. That clause provides that
“{njothing in this subsection shall diminish the right of
any person to bring an action for contribution in the ab-
sence of a civil action under [Section 106 or Section
107}.” That clause, however, saves only actions for
“contribution”—and there is no reason to think that the
savings clause uses the term “contribution” in anything
other than its common-law sense. See, e.g., Field v.
Mans, 516 U.S. 59, 69 (1995) (noting that, “[w]here Con-
gress uses terms that have accumulated settled meaning
under . . . the common law, a court must infer, unless
the statute otherwise dictates, that Congress means to
* The court of appeals acknowledged that the latter form of circum-
vention was permissible under its reading of the statute. See App.,
infra, 14a (noting that the right to sue under Section 107 “is available
to parties who have incurred necessary costs of response, but have
neither been sued nor settled their liability under §§ 106 or 107”); ef.
Consolidated Edison, 423 F.3d at 100 (holding that “section 107(a)
permits a party that has not been sued or made to participate in an
administrative proceeding, but that, if sued, would be held liable under
section 107(a), to recover necessary response costs incurred volun-
tarily”). The court of appeals stated in dictum (App., infra, 17a) that
PRPs who do have a right to seek contribution under Section 113(f)
would be relegated to that provision as their exclusive remedy, but
offered no justification for that ‘pse dirit—which would in any event
leave all other PRPs free to evade the strictures of Section 113(f).
20
incorporate the established meaning of these terms”)
(citations and internal quotation marks omitted). Ifthe
savings clause were read to apply even to such cost-re-
covery actions (and assuming arguendo that Section
107(a) initially permitted such actions), it would enable
a PRP, notwithstanding the language of Section
113(f)(1), to bring suit even before an action under Sec-
tion 106 or Section 107(a) is commenced—in contraven-
tion of the rule that.a savings clause should not be inter-
preted to nullify operative language in the same statute
in which it is contained. See, e.g., AT&T Co. v. Central
Office Tel., Inc., 524 U.S. 214, 227-228 (1998). Instead,
the savings clause merely preserves the ability of a PRP
to bring an action for contribution (as that term is tradi-
tionally defined) under any other provision of law, in-
cluding state law. See, e.g., Atherton v. FDIC, 519 U.S.
213, 227-228 (1997).
The legislative history of SARA, which added Section
113(f) to CERCLA, further supports the conclusion that
a PRP may not bring an action against another PRP for
cost recovery under Section 107(a). For example, the
House Committee on Energy and Commerce stated that
Section 113(f) “does not affect the right of the United
States to maintain a cause of action for cost recovery
under Section 107 or injunctive relief under Section 106,
whether or not the U.S. was an owner or operator of a
facility or a generator of waste at the site.” H.R. Rep.
No. 253, 99th Cong., lst Sess., Pt. 1, at 79-80 (1985) (em-
phasis added)..The implication of that statement is ei-
ther that the Committee was operating on the assump-
tion that a private PRP was not entitled to “maintain a
cause of aetion for cost recovery under Section 107” in
the first place, or that the Committee did not believe
21
that any such cause of action would survive the enact-
ment of Section 113(f).”
3. Allowing a PRP to pursue an action against an-
other PRP under Section 107(a) would undermine ©
CERCLA’s settlement scheme. Under that scheme, the
government has “obvious and important leverage to en-
courage quick and effective resolution of environmental
disputes.” Reading Co., 115 F.3d at 1119. A PRP has
considerable incentive to enter into a settlement with
the government, because, if it does, it will enjoy protec-
_ tion from contribution while securing the ability to seek
contribution itself from non-settling PRPs. If it does
not, on the other hand, it will be unable to seek contribu-
tion from other PRPs and may face the prospect of po-
tentially disproportionate liability.
If the court of appeals’ rule is upheld, however, a
PRP that has not yet been sued under Section 106 or
Section 107(a) might be well advised to refuse to settle
with the government, in order to preserve its right to
sue other PRPs under Section 107(a) and thereby take
advantage of the substantially more generous provisions
applicable to such an action. For example, whereas a
PRP suing another PRP under Section 113(f) is limited
to recovering that PRP’s equitable share of its costs,
see, e.g., Elementis Chromium L.P. v. Coastal States
* Consistent with that legislative history, courts have recognized
that, notwithstanding Section 113(f), the United States retains the right
to enforce CERCLA through either Section 106 or Section 107(a) even
when it also happens to be a PRP (and therefore may be liable for at
least some cleanup costs). See, e.g., United States v. Monsanto Co. , 858
F.2d 160, 164 & n.2, 173 & n.28 (4th Cir. 1988), cert. denied, 490 U.S.
1106 (1989); United States v. Chrysler Corp., 157 F. Supp. 2d 849, 859-
861 (N.D. Ohio 2001); United States v. Kramer, 757 F. Supp. 397, 414
(D.N.J. 1991).
22
Petroleum Co., 450 F.3d 607, 612-613 (5th Cir. 2006), a
PRP suing another PRP for cost recovery under Section
107(a) would potentially be entitled to proceed on a the-
ory of joint and several liability to recover all of its
costs, see App., infra, 14a-15a; Consolidated Edison, 423
F.3d at 100 n.9, thereby placing the burden on the other
PRP to pursue (1) any defense of divisibility or (2) any ~
counterclaim for contribution (or claims for contribution
against other available, non-settling PRPs) under Sec-
tion 113(f).
A PRP could seemingly also bring an action for cost
recovery under Section 107(a) against another PRP that
had itself reached a settlement with the government,
notwithstanding the protective shield that Congress
adopted to encourage such settlements in Section
113(f)(2) (which, by its terms, applies only to claims for
“contribution”). Conversely, a PRP might have a disin-
centive to settle with the government insofar as it
thought that it might be the object of another PRP’s
action for cost recovery under Section 107(a), because ~
the PRP would seemingly not be able to use any settle-
ment as a defense against such an action. Allowing
PRPs to bring actions for cost recovery under Section
107 would thus weaken the effectiveness of Section
113(f)’s settlement provisions and thereby compromise
the government’s ability to bring closure to CERCLA
cleanups.
4. In Consolidated Edison, the Second Circuit rea-
soned that a reading of Section 107(a) that precluded
one PRP from bringing an action against another for
cost recovery would “impermissibly discourag[e] volun-
tary cleanup,” in contravention of “one of CERCLA’s
main goals.” 423 F.3d at 100; see App., infra, 18a (stat-
ing that the court of appeals’ holding in this case was
23
“consistent with CERCLA’s goal of encouraging prompt
and voluntary cleanup of contaminated sites”). Given
the clear meaning of the text of the statute, however,
“there is no need * * * to consult the purpose of
CERCLA at all.” Cooper Industries, 543 U.S. at 167. In
any event, as the Third Circuit explained at length in
DuPont, there is little evidence that, in enacting
CERCLA and SARA, Congress intended to promote sua
sponte cleanups at the expense of government-super-
vised cleanups pursuant to settlement or suit—and, in
fact, there is ample support for the contrary view. See
460 F.3d at 533-543. ,
Moreover, contrary to the Second Circuit’s assump-
tion, the inability of one PRP to bring an action against
another for cost recovery under Section 107(a) may not
affect a PRP’s incentives to engage in a voluntary
cleanup, at least where a cleanup by the current prop-
erty owner would enhance the value of a property to
such an extent that the absence of an action for cost re-
covery would not be a meaningful deterrent. In sum, it
is not clear that policy considerations support the court
of appeals’ rule in this case, but even if they did, such
considerations could not overcome the text and struc-
ture of the statute, which make clear that Section 113(f)
provides the exclusive mechanisms by which one PRP
can sue another under CERCLA.”
" The court of appeals in this case relied on an additional policy
consideration: namely, that, if one PRP were foreclosed from suing
another under Section 107(a), “the government could insulate itself
from responsibility for its own pollution by simply declining to bring a
CERCLA cleanup action or refusing a liable party’s offer to settle.”
App., infra, 18a. There is no empirical basis for that concern. See
DuPont, 460 F.3d at 541.31. To the contrary, the government has not
previously hesitated to bring suit, or enter into settlements, even when
24
C. The Question Presented Is Important And Warrants Re-
view At This Time
The question whether a PRP can bring an action
against another PRP under Section 107(a) is a recurring
one of great importance to the operation of CERCLA.
In addition to the many courts of appeals that had ad-
dressed various aspects of that question before this
Court decided Cooper Industries, see p. 5, note 2, supra,
three courts of appeals have now passed on the question
since that decision, and at least two other courts of ap-
peals are considering the question in pending cases."
Moreover, numerous district courts have also addressed
the question, with conflicting results.*
it may lead to the imposition of substantial liability on federal PRPs.
See, e.g., United States v. Shelli Oil Co., 294 F.3d 1045 (9th Cir. 2002),
cert. denied, 537 U.S. 1147 (2003); United States v. Vertac Chem. Corp.,
46 F.3d 803 (8th Cir.), cert. denied, 515 U.S. 1158 (1995); Coeur d’Alene
Tribe v. Asarco Inc., 280 F. Supp. 2d 1094 (D. Idaho 2003); 69 Fed. Reg.
67,607 (2004); 69 Fed. Reg. 51,326 (2004); 67 Fed. Reg. 8557 (2002). And
the court of appeals overlooked the fact that enforcement actions by
state or tribal authorities or “innocent” private parties (or settlement
agreements with state authorities) can also trigger a right to seek
contribution under Section 113(f)(1) or (3).
'' See Metropolitan Water Reclamation Dist. v. North, American
Galvanizing & Coatings, Inc., No. 05-3299 (7th Cir. argued Jan. 20,
2006); Goodrich Corp. v. County of San Bernardino, No. 05-56694 (9th
Cir.).
” Compare, e.g., City of Bangor v. Citizens Comme'ns Co., 437 F.
Supp. 2d 180, 222-223 (D. Me. 2006); Raytheon Aircraft Co. v. United
States, 435 F. Supp. 2d 1136, 1145-1150 (D. Kan. 2006); Sunnyside Dev.
Corp., LLC v. Opsys U.S. Corp., No. C 05-01447 SI, 2006 WL 1128039,
at *2(N.D. Cal. Apr. 27, 2006); Ferguson v. Arcata Redwood Co., LLC,
No. C 03-05632 SI, 2005 WL 1869445, at *6 (N.D. Cal. Aug. 2, 2005);
Kotrous v. Goss-Jewett Co. of N. Cal., Inc., No. Civ. 802-1520 FCD
JFM, 2005 WL 1417152, at *3-*4 (E.D. Cal. June 16, 2005); Viacom,
25
This Court need not await further percolation in the
lower courts before deciding the question presented.
That question is cleanly presented in this case; the opin--
ions of the three courts of appeals to have decided the
issue post-Cooper Industries contain extensive discus-
sions of the arguments on both sides; and, in light of the
post-Cooper Industries division of authority in the lower
courts, it is unlikely that those courts will reach consen-
sus on the appropriate resolution of the question. More-
over, the continued uncertainty concerning the availabil-
ity of an action for cost recovery under Section 107(a) is
resulting in the significant expenditure of judicial and
party resources, especially given the complex and time-
consuming nature of CERCLA litigation. In some cases,
it appears that such uncertainty may be deterring PRPs
from entering into settlements with the government.
And in those jurisdictions that have recognized the
availability of Section 107(a) actions, courts and litigants
are devoting substantial resources to the litigation of
claims that may ultimately prove to be unavailable. The
Inc. v. United States, 404 F. Supp. 2d 3, 6-9 (D.D.C. 2005); and Vine
Street LLC v. Keeling, 362 F . Supp. 2d 754, 760-764 (E.D. Tex. 2005) (all
allowing PRPs to sue under Section 107(a)), with Aviall Servs., Inc. v.
Cooper Indus., LLC, No. 3:97-CV-1926-D, 2006 WL 2263305, at *3-*10
(N.D. Tex. Aug. 8, 2006); R.E. Goodson Constr. Co. v. International
Paper Co., No. C/A 4:02-4184-RBH, 2005 WL 2614927, at *5-*6, *8
(D.S.C. Oct. 13,2005); Montville Twp. v. Woodmont Builders, LLC, No.
Civ. A. 03-280 DRD, 2005 WL 2000204, at *3 (D.N.J. Aug. 17, 2005);
Boarhead Farm Agreement vy. Advanced Envtl. Tech. Corp., 381 F.
Supp. 2d 427, 435 (E.D. Pa. 2005); City of Waukesha vy. Viacom Int'l,
Inc., 362 F. Supp. 2d 1025, 1027-1028 (E.D. Wis. 2005); Mercury Mall
Assocs., Inc. v. Nick's Mkt., Inc., 368 F. Supp. 2d 513, 519-520 (E.D. Va.
2005) (all foreclosing PRPs from suing under Section 107(a)).
26
Court’s intervention is warranted now in order to pro-
vide definitive resolution on this important question con-
cerning the remedies available under CERCLA.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
PAUL D. CLEMENT
Solicitor General
SUE ELLEN WOOLDRIDGE
Assistant Attorney General
THOMAS G. HUNGAR
Deputy Solicitor General
KANNON K. SHANMUGAM
Assistant to the Solicitor
General
RONALD M. SPRITZER
ELLEN J. DURKEE
Attorneys
OCTOBER 2006
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 05-3152
ATLANTIC RESEARCH CORP., APPELLANT -
vz.
UNITED STATES OF AMERICA, APPELLEE
Submitted: Mar. 16, 2006
Filed: Aug. 11, 2006
Before WOLLMAN and RILEY, Circuit Judges, and
ROSENBAUM,’ District Judge.
ROSENBAUM, District Judge.
Atlantic Research Corporation (“Atlantic”) seeks
partial reimbursement from the United States for costs
incurred in an environmental cleanup. Atlantic’s claim
is based on the Comprehensive Environmental Re-
sponse, Compensation, and Liability Act (“CERCLA”),
42 U.S.C. §§ 9601-9675 (2005), as amended by the Super-
fund Amendments and Reauthorization Act of 1986
(“SARA”), Pub. L. No. 99-499, 100 Stat. 1613, 1615. The
issue for consideration is whether CERCLA forbids a
' The Honorable James M. Rosenbaum, Chief Judge, United States
District Court for the District of Minnesota, sitting by designation.
(la)
2a
party such as Atlantic, which has voluntarily cleaned up
a site for which it was only partly responsible, to recover
part of its cleanup costs from another liable party.” For
the reasons that follow, we hold that CERCLA § 107
permits such a cause of action.
I. Background
Atlantic retrofitted rocket motors for the United
States from 1981 through 1986. It performed this ser-
vice at its Camden, Arkansas, facility. The work in-
cluded using high-pressure water spray\to remove
rocket propellant. Once removed, the propellant was
burned. Residue from burnt rocket fuel contaminated
the Arkansas site’s soil and groundwater.
Atlantic voluntarily investigated and cleaned up the
contamination, incurring costs in the process. It sought
to recover a portion of these costs from the United
States by invoking CERCLA §§ 107(a) and 113(f).* At-
lantic and the government began to negotiate in an ef-
fort to resolve these financial matters.
The negotiations ended with the United States Su-
preme Court decision in Cooper Industries, Inc. v.
Aviall Services, Inc., 543 U.S. 157, 125 S. Ct. 577, 160
L.Ed.2d 548 (2004) (“Aviall”). In Aviall, the court found
a party could only attempt to obtain § 113(f) contribution
“during or following” a §§ 106 or 107(a) CERCLA civil
* The district court dismissed this matter on the government's Rule
12(b)(6) motion. As such, the court assumed the facts most favorably
to Atlantic, the non-moving party. We do the same; and therefore,
assume, but do not decide, that the United States would be liable under
CERCLA.
* These sections have been codified at 42 U.S.C. §§ 9607(a) and
9613(f. For convenience, this Opinion refers to the statute sections as
designated in CERCLA, rather than as later codified.
3a
action. 7d. at 161, 125 S. Ct. at 580. As no action had
been commenced against Atlantic under either §§ 106 or
107(a), the Aviall decision barred its § 113(f) contribu-
tion claim.
With its § 113(f) claim Aviall-foreclosed, Atlantic
amended its complaint. The amended complaint relied
solely on § 107(a) and federal common law. In lieu of.
answer, the government moved to dismiss under Fed-
eral Rule of Civil Procedure 12(b)(6), arguing this
Court’s pre-Aviall decision in Dico., Inc. v. Amoco Oil
Co., 340 F.3d 525 (8th Cir. 2003) (“Dico”) foreclosed At-
lantic’s § 107 claim. The district court agreed. Atlantic
appeals.
As will be discussed in more detail below, Dico held
that a liable party could not bring an action under § 107.
Dico, 340 F.3d at 531. We recognize the generally pre-
clusive effect of a previous panel’s ruling. United States
v. Blahowski, 324 F.3d 592, 596-97 (8th Cir. 2003). But
this rule is not inflexible. Where the 7 ior decision can
be distinguished, or its rationale has been undermined,
a subsequent decision can depart from the prior path.‘
We are convinced Dico is such a case; it is clearly distin-
guishable from the case at bar, and its analytic is under-
mined by Aviall.
* “{1]t is well settled that a panel may depart from circuit precedent
based on an intervening opinion of the Supreme Court that undermines
the prior precedent.” 7.L. v. United States, 443 F.3d 956, 960 (8th Cir.
2006), \citing Young v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000). As will
be seen, while Avia// has undermined Dico’s reasoning for parties in
Atlanti c’s position, its holding remains viable for those parties which
still have recourse to relief under § 113. Accordingly, Dico can be
reconciled with our present holding and we need not ultimately answer
whether Aviall compels reconsideration of Dico.
4a
II. Analysis
As this case turns on the interpretation of CERCLA,
a federal statute, our review is de novo. Jowa 80 Group,
Inc. v. Internal Revenue Service, 406 F.3d 950, 952 (8th
Cir. 2005). We undertake this review, recognizing our
obligation to effectuate the intent of Congress when in-__—
terpreting federal statutes. Jd. To resolve the question
before us, we must briefly review the intertwined his-
tory of CERCLA §§ 107 and 113, and then analyze this
history in light of Aviall.
A. CERCLA Cost Recovery and Contribution—Pre-
Aviall
CERCLA is Congress’s monumental attempt to “en-
courage the timely cleanup of hazardous waste sites,”
and “place the cost of that response on those responsible
for creating or maintaining the hazardous condition.”
Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930, 935-36
(8th Cir. 1995) (internal quotations and citations omit-
ted). To achieve these ends, CERCLA effectively trans- —
formed centuries of real property and tort liability law
by making those who contaminate a site strictly liable
for the costs of subsequent cleanup by others. See
Alexandra B. Klass, From Reservoirs to Remediation:
The Impact of CERCLA on Common Law Strict Liabil-
ity Environmental Claims, 39 Wake Forest L. Rev. 903
(2004); Ronald G. Aronovsky, Federalism & CERCLA:
Rethinking the Role of Federal Law in Private Cleanup
Cost Disputes, 33 Ecology L.Q. 1, 9 (2006).
When the federal or a state government conducts the
cleanup, CERCLA permits the sovereign to recover its -
costs from whomever is liable for the contamination.
§$ 107(a)(4)(A). CERCLA also provides three methods
5a
by which private parties may recover cleanup costs. The
first is found at § 107(a)(4)(B), a part of the original stat-
ute in 1980. Congress added the others, §§ 113(f)(1) and
113(f)(3)(B), as part of SARA.” :
Sections 107(a) and 113(f)(1) are central to our analy-
sis. The Eighth, and many of its sister Circuits, have
previously held that liable parties seeking reimburse-
ment must use § 113(f)(1), and may not use § 107 for that
purpose. Today, we consider whether this ruling re-
mains viable in the post-Aviall world.
CERCLA’s § 107(a) provides that “covered persons,”
which we will call “liable parties,” are liable for, among
other things: °
(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 con-
tingency plan;
* The last of these, § 113(f(3)(B), concerns the rights of settling
parties. As the parties in this case have obviously not reached a
settlement, § 113(f(3)(B) is not examined here.
" Many prior opinions have called these “potentially responsible
parties” (abbreviated “PRP”). We decline to use this term. The PRP
term has been developed by the courts. It is not found in CERCLA.
The term refers to “a party who may be covered by the statute at the
time the party is sued under the statute.” Pnewmo Abex Corp. v. High
Point, Thomasville & Denton R.R. Co., 142 F.3d 769, 773 n.2 (4th Cir.
1998). After Aviall, the term has been weakened and “may be read to
confer on a party that has not been held liable a legal status that it
should not bear.” Consolidated Edison Co. v. UGI Utils., Ine., 423 F 3d
90, 98 n.8 (2d Cir. 2005).
6a
(B) any other necessary costs of response incurred
by any other person consistent with the national con-
tingency plan[.]
107(a)(4)(A), (B). Courts have found in CERCLA’s ref-
erence to “any other necessary costs of response” and
“any other person,” authority to allow private suits un-
der 107(a)(4)(B). See Walls v. Waste Resource Corp.,
_ 761 F.2d 311, 318 (6th Cir. 1985) (collecting cases).
Section 113 contains a subsection entitled “Contribu-_
tion,” the first part of which states:
Any person may seek contribution from any other
person who is liable or potentially liable under
[§ 107(a)], during or following any civil action under
[$$ 106 or 107(a)]. Such claims shall be brought in
accordance with this section and the Federal Rules
of Civil Procedure, and shall be governed by Federal
law. In resolving contribution claims, the court may
allocate response ,costs among liable parties using
such equitable factors as the court determines are
appropriate. Nothing in this subsection shall dimin-
ish the right of any person to bring an action for con-
tribution in the absence of a civil action under [§§ 106
or 107}.
§ 113(f)(1).
There is some similarity in the remedial responsibili-
ties borne by liable parties under §§ 107(a) and 113(f).
The Supreme Court has termed these sections’ remedies
“similar and somewhat overlapping,” yet “clearly dis-
tinct.” Compare Key Tronic Corp. v. United States, 511
U.S. 809, 816, 114 S. Ct. 1960, 1966, 128 L. Ed. 2d 797
(1994) with Aviall, 543 U.S. at 163 n.3, 1258. Ct. at 582
7a
n.3. Each requires proof of the same elements. Red-
wing Carriers, Inc. v. Saraland Apartments, 94 F.3d
1489, 1496 (11th Cir. 1996). They differ, however, in
procedure and scope.
1. Section 107(a) Remedies
Section 107(a) has a six-year statute of limitations,
and allows a plaintiff to recover 100% of its response
costs from all liable parties, including those which have
settled their CERCLA liability with the government.
§113(g)(2), 107(a). Prior to SARA’s enactment, some
courts implied a right to contribution from § 107, see
Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454, 1457
n.3 (9th Cir. 1986) (collecting cases), or as a matter of
federal common law. United States v. New Castle
County, 642 F. Supp. 1258, 1265-66 (D. Del. 1986). The
right initially was thought to be uncertain in light of the
Supreme Court’s traditional reluctance to imply rights
of action in the context of other statutes. See, e.g.,
Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S.
630, 639-40, 101 S. Ct. 2061, 2066, 68 L. Ed. 2d 500
(1981) (declining to imply an antitrust right of action for
contribution).
2. Section 113 Remedies
Congress resolved the uncertainty when enacting
SARA in 1986 by adding § 113 to “clariffy] and confirm”
aright to CERCLA contribution. United Technologies
Corp. v. Browning-Ferris Indus., Inc., 33 F.3d 96, 100
(Ist Cir. 1994), citing S. Rep. No. 11, 99th Cong., Ist
Sess. 44 (1985). Section 113’s explicit right to contribu-
tion is more restricted than that afforded by 107. Sec-
tion 113’s right is subject to a three-year statute of
limitations; plaintiffs can recover only costs in excess of
Bos eat - 8a
their equitable share, and may not recover from pre-
viously-settling parties. § 113(f)(1), (f)(2), (g)(3).
3. The Section 107(a)/Section 113 Conflict—Pre-A viall
Congress’s addition of § 113 posed a dilemma.
Courts saw that CERCLA, as amended, created a situa-
tion where litigants might “quickly abandon section 113
in favor of the substantially more generous provisions of
section 107,” thus rendering § 113 a nullity. New Castle
County v. Halliburton NUS Corp., 111 F.3d 1116, 1123
(3d Cir. 1997).
To prevent § 107 from swallowing § 113, courts began
directing traffic between the sections. See id.; United
Techns., 33 F.3d at 101; Bedford Affiliates v. Sills, 156
F.3d 416, 424 (2d Cir. 1998). As a result, regardless of
which CERCLA section a plaintiff invoked, courts typi-
~ cally analyzed §§ 107 and 113 together, aiming to distin-
guish one from the other. See Bedford Affiliates, 156
F.3d at 424; Centerior Serv. Co. v. Acme Scrap Iron &
Metal Corp., 153 F.3d 344, 347 (6th Cir. 1998); Prewmo
Abex Corp. v. High Point, Thomasville & Denton R.R.
Co., 142 F.3d 769, 776 (4th Cir. 1998); Pinal Creek
Group v. Newmont Mining Corp., 118 F.3d 1298, 1301-
02 (9th Cir. 1997); New Castle County, 111 F.3d at 1121-
22; Redwing Carriers, 94 F.3d 1489, 1513 (11th Cir.
1996); United States v. Colorado & Eastern R.R. Co., 50
F.3d 1530, 1534-35 (10th Cir. 1995); United Techns., 33
F.3d at 99; Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d
761, 764 (7th Cir. 1994); Amoco Oil Co. v. Borden, Inc.,
889 F.2d 664, 672 (5th Cir. 1989).
Traffic-direcfing dramatically narrowed § 107 by
judicial fiat. On its face, § 107(a)(4)(B) is available to
“any .. .person” other than the sovereigns listed in
§ 107(a)(4)(A). See Control Data Corp., 53 F.3d at 936
9a
n.9. In practice, however, courts gradually steered lia-
ble parties away from § 107 and required them to use
§ 113; § 107 was reserved for “innocent” plaintiffs who
could assert one of the statutory defenses to liability.
See Bedford Affiliates, 156 F.3d at 424; Panal Creek, 118
F.3d at 1301; New Castle County, 111 F.3d at 1124; Red-
wing Carriers, 94 F.3d at 1496; Centerior Service, 153
F.3d at 349; United Techns., 33 F.3d at 100; Akzo Coat-
ings, 30 F.3d at 764-65. This cramped reading of § 107
prevented liable parties from using it to evade § 113’s
Congressionally-mandated constraints, thus preserving
the vitality of § 113. See New Castle County, 111 F.3d at
1121; Colo. & Eastern, 50 F.3d at 1538; United Techns.,
33 F.3d at 98.
In the pre-Aviall analysis, § 113 was presumed to be
available to all liable parties, including those which had
not faced a CERCLA action. See Akzo Coatings, 30
F.3d at 763 n.4 (liable party’s § 113 claim for costs volun-
tarily incurred held barred by settlement); Pinal Creek, -
118 F.3d at 1306 (liable party’s claim for costs volun-
tarily incurred governed by both §§ 107 and 113). Ac-
cordingly, most courts concluded liable parties could not
use § 107. See Pneumo Abex, 142 F.3d at 776 (collecting
cases); but see Pinal Creek, 118 F.3d at 1302 (holding
liable parties could not seek direct recovery under § 107,
but that § 107 implicitly incorporates a claim for contri-
bution” which remains available to liable parties through
combined operation of both sections); United Techns., 33
F.3d at 99 n.8 (suggesting, in dicta, that a liable party
may bring contribution action under § 107).
Our opinion in Dico was the last in this pre-Aviall
line. The Environmental Protection Agency (“EPA”)
had forced Dico, Inc., and another party to clean up an
10a
Iowa site which both had contaminated. Dico sued the
other party, seeking direct recovery of 100% of its costs
under § 107 and for contribution under § 113. The other
party settled with the EPA and moved for summary
judgment in Dico’s lawsuit. The district court granted
the motion. It found Dico’s § 113 claims were barred by
the settlement and, as a liable party, Dico had no right
to recover its full cleanup cost under § 107.
Dico appealed the dismissal of its § 107 claim, argu-
ing the Supreme Court’s opinion in Key Tronic allowed
liable parties a claim in direct recovery. We disagreed,
noting Key Tronic dealt with a pre-SARA implied right
to § 107 contribution. Dico, 340 F.3d at 531. When we
affirmed the dismissal, we joined other Circuits in nar-
rowly construing § 107, and holding a liable party may
only assert a contribution claim under § 113. /d. at 530,
citing among others Bedford Affiliates, 156 F.3d at 424;
Centerior Service, 153 F.3d at 350; Pinal Creek, 118
F.3d at 1306; Redwing Carriers, 94 F.3d at 1496; Colo-
rado & Eastern, 50 F.3d at 1536; United Techns., 33
F.3d at 101; Akzo Coatings, 30 F.3d at 764; and Amoco
Oil, 889 F.2d at 672. We now see that Aviall under-
mines Dico, and the judge-created analytic upon which
it relies.
B. The Effect of Aviall
Aviall’s facts are similar to those at hand. Aviall
Services, Inc., purchased contaminated aircraft mainte-
nance sites from Cooper Industries. The Texas Natural
Resource Conservation Commission directed Aviall’s
efforts at environmental cleanup, but neither the Com-
mission, the EPA, nor any private party brought a
CERCLA action against Aviall.
lla
After the cleanup, Aviall sued Cooper for both cost
- recovery under § 107 and contribution under § 113. It
later amended its complaint, seeking recovery only un-
der § 113, assuming—based on Circuit precedent—that
its § 107 rights would be preserved in the § 113 claim.
The district court granted Cooper’s motion for summary
judgment, holding Aviall had no right to § 113 relief ab-
sent a prior §§ 106 or 107 CERCLA enforcement action,
and that Aviall’s amended complaint abandoned any po-
tential § 107 claim. A Fifth Circuit panel’s affirmance
was reversed, en banc. |
On certiorari, the Supreme Court reversed again.
Justice Thomas, writing for a seven-member majority,
construed § 113’s “during or following” language. He
said, “(t]he natural meaning of this sentence is that con-
tribution may only be sought subject to the specified
conditions, namely, ‘during or following’ a specified civil
action.” Aviall, 543 U.S. at 165-66, 125 S. Ct. at 588. The
Court found the words “during or following” established
a condition precedent to a 113(f) claim. As such, a court
which allowed a § 113 contribution claim, absent the
prior §§ 106 or 107 action, would render § 113’s precon-
dition a nullity.
Having made this determination, the Court turned to
its previous Key Tronic reference to CERCLA’s “simi-
lar and somewhat overlapping” remedies. The Court
explained that § 107’s and 113’s remedies were only
“similar” in that “both allow private parties to recoup
costs from other private parties.” /d. at 163 n.3, 125 S.
Ct. 577, 125 S. Ct. at 582 n.3. The Court carefully noted,
however, that “the two remedies are clearly distinct.”
Id.
12a
Dissenting Justices Ginsburg and Stevens analyzed
Key Tronic differently. They said the Key Tronic court
had not questioned whether § 107 afforded liable parties
a cause of action against other liable parties. It simply
disagreed whether the right was implied or explicit. /d.
at 172, 125 S. Ct. at 586-87. Justices Ginsburg and
Stevens did not agree that Aviall’s amended complaint
abandoned a § 107 claim, which they would have allowed
to proceed. /d. at 174, 1258S. Ct. 577. The majority ex-
plicitly avoided this question, see zd. at 173-74, 125 S. Ct.
at 587-88, reserving it for another day.
C. The Matter At Hand
That day has arrived. We now ask: Can one liable
party recover costs advanced, beyond its equitable
share, from another liable party in direct recovery, or by
§ 107 contribution, or as a matter of federal common
law?
The Second Circuit is the only Court which has con-
sidered this question since Aviall.‘ That Court revisited
its pre-Aviall precedent, much as we have done here,
* Pursuant to Federal Rule of Appellate Procedure 28(j), the United
States has brought to our attention Elementis Chromium L.P. v.
Coastal States Petroleum Co., 450 F.3d 607 (5th Cir. 2006). In that
case, the Fifth Circuit determined that the imposition of joint and
several liability was inappropriate in a contribution claim under § 113.
The Court cited Redwing Carriers for the proposition that “ ‘when one
liable party sues another liable party under CERCLA, the action is not
a cost recovery action under 107(a),’ and the imposition of joint and
several liability is inappropriate.” Elementis Chromium, 450 F.3d at
613. As we have noted, Redwing Carriers is an example of the judicial
traffiec-directing that narrowed the scope of § 107 prior to Aviall.
Because the Fifth Circuit was not asked to construe § 107 in its opinion,
we decline to afford this isolated quotation touching on § 107 the weight
the government believes it deserves.
13a
and concluded that § 107 allowed one liable party to re-
cover voluntarily incurred response costs from another.
Consolidated Edison Co. v. UGI Utilities, Inc., 423 F.3d
90, 100 (2d Cir. 2005). In reaching this conclusion, the
court distinguished its holding in Bedford Affiliates,
which—like Dico—had rejected a liable party’s direct
recovery claim under § 107. /d. at 102.
In light of Aviall’s holding that §§ 107 and 113’s rem-
edies are distinct, the Second Circuit held “it no longer
makes sense” to view section 113(f)(1) as the exclusive
route by which liable parties may recover cleanup costs.
See Consolidated Edison Co., 423 F.3d at 99. The court
looked to Section 107(a)(4)(B)’s “any other person” lan-
guage, and found “no basis for reading into this lan-
guage a distinction between so-called ‘innocent’ parties
and parties which, if sued, would be held liable under
section 107(a).” /d. at 99. So saying, the Second Circuit
reopened § 107 cost recovery to liable parties.
Our Court now stands at the same crossroad. We
agree with our sister Circuit, and hold that it no longer
makes sense to view § 113 as a liable party’s exclusive
remedy. This distinction may have made sense for par-
ties such as Dico, which was allowed to seek contribution
under § 113. But here, Atlantic is foreclosed from using
§ 113. This path is barred because Atlantic—like
Aviall—commenced suit before, rather than “during or
following,” a CERCLA enforcement action. Atlantic has
opted to rely upon § 107 to try to recover its cleanup
costs exceeding its own equitable share. We conclude it
may do so.
The Supreme Court emphasized that §§ 107 and
113 are “distinct.” Accordingly, it is no longer appropri-
ate to view § 107’s remedies exclusively through a § 113
14a
prism, as we did in Dico, and as the government re-
quests. We reject an approach which categorically de-
prives a liable party of a § 107 remedy. Like the Second
Circuit, we return to the text of CERCLA, and find no
such limitation in Congress’s words.
We have held that “any other person” means any
person other than the statutorily enumerated “United
States Government or a State or an Indian tribe.” Con-
trol Data Corporation, 53 F.3d at 936 n.9. Atlantic is
such a “person,” see CERCLA § 101(G)(21); no one dis-
putes its having incurred “necessary costs of response.”
On its face § 107 applies.
As the Second Circuit stated, “[eJach of those sec-
tions, 107(a) and 113(f)(1), embodies a mechanism for
cost recovery available to persons in different proce-
dural circumstances.” Consolidated Edison, 423 F.3d at
99. Thus, a liable party may, under appropriate proce-
dural circumstances, bring a cost recovery action under
§ 107. This right is available to parties who have in-
curred necessary costs of response, but have neither
been sued nor settled their liability under §§ 106 or 107.
We recognize that § 107 allows 100% cost recovery.
Some pre-Aviall cases justified denying liable parties
access to § 107, reasoning Congress would not have in-
tended them to recover 100% of their costs and effec-
tively escape liability. See, e.g., United Techns., 33 F.3d
at 160 (“it is sensible to assume that Congress intended
only innocent parties—not parties who were themselves
hable-to be permitted to recoup the whole of their expen-
ditures.”) We agree, and reaffirm Dico’s holding that a
liable party may not use § 107 to recover its full re-
sponse cost.
15a
But § 107 is not limited to parties seeking to recover
100% of their costs. To the contrary, the text of
§ 107(a)(4)(B) permits recovery of “any other necessary
costs of response . . . consistent with the national con-
tingency plan.” While these words may “suggest full
recovery,” United Techns., 33 F.3d at 100, they do not
compel it.” CERCLA, itself, checks overreaching liable
parties: Ifa plaintiff attempted to use § 107 to recover
more than its fair share of reimbursement, a defendant
would be free to counterclaim for contribution under
§ 113(f). Consolidated Edison, 423 F.3d at 100, n.9;
Redwing Carriers, 94 F.3d at 1495. Accordingly, we
find that allowing Atlantic’s claim for direct recovery
under § 107 is entirely consistent with the text and pur-
pose of CERCLA.
Alternatively, we are satisfied that a right to contri-
bution may be fairly implied from the text of
107(a)(4)(B). Unlike some other statutes, CERCLA re-
flects Congress's unmistakable intent to create a private
right of contribution. See Northwest Airlines, Inc. v.
Transp. Workers Union of Am., 451 U.S. 77, 91, 101 S.
Ct. 1571, 1580, 67 L.Ed.2d 750 (1981) (“the ultimate
question . . . is whether Congress intended to create
the private remedy . . . that the plaintiff seeks to in-
voke”). We discern Congress’s intent by looking to
CERCLA’s language, its legislative history, its underly-
ing purpose and structure, and the likelihood that Con-
gress intended to supersede or to supplement existing
state remedies. /d.
* Compare this text to § 107(a)(4)(A)'s more sweeping recovery of
“all costs of response . . . not inconsistent with the national contin-
gency pian.”
l6a
Contribution is crucial to CERCLA’s regulatory
scheme. As the Supreme Court recognized in Key
Tronic, “CERCLA is designed to encourage private par-
ties to assume the financial responsibility of cleanup by
allowing them to seek recovery from others.” Key
Tronic, 511 U.S. at 819, n.13, 114 S. Ct. 1960. At first,
Congress left some CERCLA liability issues, such as
joint-and-several liability and contribution, to be devel-
oped by the federal courts under “traditional and evolv-
ing principles of common law.” United States v. Chem-
Dyne Corp., 572 F. Supp. 802, 806-07 (S.D. Ohio 1983).
Courts, thereafter, held § 107 and federal common law
supported a right of contribution. Jd.; Mardan Corp.,
804 F.2d at 1457 n.3. But when Congress revisited
CERCLA in 1986, it enacted an explicit right to contri-
bution in § 113. This reflects Congress’s unambiguous
intent to allow private parties to recover in contribution.
We must next ask whether, in enacting § 113, Con-
gress intended to eliminate the preexisting right to con-
tribution it had allowed‘ for court development under
§ 107. We conclude it did not. The plain text of § 113
reflects no intent to eliminate other rights to contribu-
tion; rather, § 113’s saving clause provides that “[n]Joth-
ing in this subsection shall diminish the right of any per-
son to bring an action for contribution in the absence of
a civil action” under § 106 or § 107. § 113(f)(1). This
view is further supported by examining § 113’s legisla-
tive history reflecting Congress’s intention to clarify and
confirm, not to supplant or extinguish, the existing right
to contribution. See United Techns., 33 F.3d at 100, cit-
ing S. Rep. No. 11, 99th Cong., Ist Sess. 44 (1985). We
conclude therefore that if Congress intended § 113 to
completely replace § 107 in all circumstances, even
where a plaintiff was not eligible to use § 113, it would
17a
have done so explicitly. Accordingly, we consider the
plain language of CERCLA to be consistent with an im-
plied right to contribution for parties such as Atlantic.
We conclude that the broad language of § 107 sup-
ports not only a right of cost recovery but also an im-
plied right to contribution.” See Pinal Creek, 118 F.3d
at 1302 (Ҥ 107 implicitly incorporates a claim for contri-
bution”); United Techns., 33 F.3d at 99 n.8 (“It is possi-
ble that, although falling outside the statutory parame-
ters for an express cause of action for contribution [un-
der § 113(f)(1)], a [volunteer remediator]} who spontane-
ously initiates a cleanup without governmental prodding
might be able to pursue an implied right of action for
contribution under § 107(c)”). We discern nothing in
CERCLA’s words, suggesting Congress intended to
establish a comprehensive contribution and cost recov-
ery scheme encouraging private cleanup of contami-
nated sites, while simultaneously excepting—indeed,
penalizing—those who voluntarily assume such duties.
The government argues that if we allow Atlantic a
107 remedy, we will render § 113 meaningless. Appel-.
lee’s Br. at 24-25. This argument fails; liable parties
which have been subject to §§ 106 or 107 enforcement
actions are still required to use § 113, thereby ensuring
its continued vitality. But parties such as Atlantic,
which have not faced a CERCLA action, and are thereby
barred from § 113, retain their access to § 107. See Key
Tronic, 511 U.S. at 818, 114 S. Ct. 1960; United Techns.,
33 F.3d at 99 n.8; Pinal Creek, 118 F.3d at 1301. This
" As we have found a statutory right to direct recovery and contribu-
tion, we need not address Atlantic’s claim of a similar right under
federal common law. Accordingly, we leave that question for another
day. . e
18a
resolution gives life to each of CERCLA’s sections, and
is consistent with CERCLA’s goal of encouraging
prompt and voluntary cleanup of contaminated sites.
Key Tronic, 511 U.S. at 819, n.13, 1148S. Ct. 1960.
A contrary ruling, barring Atlantic from recovering
a portion of its costs, is not only contrary to CERCLA’s
purpose, but results in an absurd and unjust outcome.
Consider: in this, of all cases, the United States is a lia-
ble party (who else has rocket motors to clean?). It is,
simultaneously, CERCLA’s primary enforcer at this,
among other Superfund sites. See Sophia Strong, Note,
Aviall Services v. Cooper Industries: Implications for
the United States’ Liability Under CERCLA, the
“Superfund Law”, 56 Hastings L.J. 193, 198-99 (2004).
If we adopted the Government’s reading of § 107, the
government could insulate itself from responsibility for
its own pollution by simply declining to bring a
CERCLA cleanup action or refusing a liable party’s of-
fer to settle. This bizarre outcome would eviscerate
CERCLA whenever the government, itself, was par-
tially responsible for a site’s contamination.
Congress understood the United States’ dual role.
When it enacted SARA, it explicitly waived sovereign
immunity. CERCLA § 120(a). This waiver is part and
parcel of CERCLA’s regulatory scheme. It shows Con-
gress had no intention of making private parties shoul-
der the government’s share of liability. Strong, 56
Hastings L.J. at 209-10.
Here, Atlantic assisted the United States by helping
modernize its defenses. Atlantic, recognizing the delete-
rious environmental consequences, remediated the envi-
ronment without compulsion. Its choice to do so, espe-
cially where the ultimate compulsory authority lay with
19a
the United States-corporate, will not be held to its detri-
ment. The United States, under CERCLA, is liable for
its share of the burden.
The Court, then, concludes Congress resolved the
question of the United States’ liability 20 years ago. It
did not create a loophole by which the Republic could
escape its own CERCLA liability by perversely aban-
doning its CERCLA enforcement power. Congress put
the public’s right to a clean and safe environment ahead
of the sovereign’s traditional immunities.
We hold that a private party which voluntarily un-
dertakes a cleanup for which it may be held liable, thus
barring it from contribution under CERCLA’s § 113,
may pursue an action for direct recovery or contribution
under § 107, against another liable party.
We reverse the judgment of the district court.
It is so ordered.
20a
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
Case No. 02-CV-1199
ATLANTIC RESEARCH CORPORATION, PLAINTIFF
v.
UNITED STATES OF AMERICA, DEFENDANT
[Filed: June 1, 2005]
ORDER
Before the Court is the United States’ Motion to Dis-
miss. (Doc. 28). ARC has responded. (Doc. 32). Upon
consideration, for the reasons in the Opinion of even
date, the Court finds the motion should be and hereby is
granted.
IT IS SO ORDERED this 31 day of May, 2005.
/s/ HARRY F. BARNES
HON. HARRY F.. BARNES
U.S. District Judge
2la
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
Case No. 02-CV-1199
ATLANTIC RESEARCH CORPORATION, PLAINTIFF
Vv.
UNITED STATES OF AMERICA, DEFENDANT
[ Filed: June 1, 2005]
MEMORANDUM OPINION
Atlantic Research Corporation (“ARC”) brings this
lawsuit pursuant to the Comprehensive Environmental
Response Compensation and Liability Act of 1980
(CERCLA), 42 U.S.C. § 9601, et seg., against the United
States of America, seeking to recover cleanup costs ARC
incurred at an environmentally contaminated facility in
Camden, Arkansas.
Before the Court is the United States’ Motion to Dis-
miss. (Doc. 28). ARC has responded. (Doc. 32). On
May 12, 2005, the Court also conducted a hearing on the
Motion. The Court finds this Motion ripe for consider-
ation.
I. Background
ARC filed this lawsuit on December 12, 2002, pursu-
ant to Sections 113(f) and 107(a) of CERCLA.
This Court stayed the case for several menths
while the parties conducted settlement negotiations.
During the United States Supreme Court’s 2004 Term,
it decided Cooper Industries, Inc. v. Aviall Services,
Inc., U.S. , , 125 S. Ct. 577, 160 L. Ed. 2d 548
(2004). Aviall brought about a sea change in this law-
suit.
Aviall held that Section 113(f) of CERCLA did not
authorize a party that is potentially subject to CERCLA
liability, but has not been sued under Section 106 or
107(a) of CERCLA and has not resolved its liability
through an administrative or judicially approved settle-
ment, to seek contribution under CERCLA from an-
other jointly liable party. Aviall left unanswered the
question of whether a such a party could assert a cost
recovery claim under an implied right to contribution
under Section 107(a), although the majority, in dicta,
suggested that the right did not exist.
After Aviall, ARC moved to amend its Complaint,
dropping its Section 113(f) claims (because it had not
been sued under Section 106 or 107(a) of CERCLA and
had not resolved its liability through an administrative
or judicially approved settlement) and asserting that the
sole basis of its recovery against the United States was
Section 107(a). This Court granted ARC’s Motion to
Amend, and, rather than answering ARC’s Amended
Complaint, the United States filed a Motion to Dismiss,
arguing that ARC cannot rely on Section 107(a) to re-
cover its cleanup costs.
Il. Discussion
In ruling upon a Federal Rule of Civil Procedure
12(b)(6) motion to dismiss, the Court is required to ac-
cept the factual allegations of ARC’s Amended Com-
plaint as true and view the facts in the light most favor-
able to ARC. Miller v. Pilgrim’s Pride Corp., 366 F.2d
672, 673 (8th Cir. 2004). The Court may grant the
United States’ Motion only if, after so viewing the plead-
ings, it is patently clear that there is no set of facts that
ARC could provide thereunder which would entitle it to
the relief sought in the Amended Complaint. /d.
In its Amended Complaint, ARC alleges that it
leased property at the Highland Industrial Park in Cam-
den, Arkansas, from 1979 until October 2003.' Origi-
nally this leased property was part of the Shumaker
Naval Ammunition Depot, which was a facility operated
by the Department of Defense.”
ARC and the United States entered into a contract
by which ARC agreed to retrofit thousands of rocket
motors by removing an amonium percholrate-based pro-
pellant and replacing it with a new double-based propel-
lant.’ ARC used a high pressure washer system to re-
move the amonium percholrate-based propellants from
the rocket motors, and during this process, propellant-
contaminated wastewater entered the soil and ground-
water.’ Periodically, ARC also burned pieces of the pro-
pellant and, during the burning process, portions of solid
' (P1.’s Am. Compl. 9 7).
> (id. $8).
* (qd. € 14).
* (id. T 20, 24).
24a
propellant pieces and propellant-contaminated waste-
water also were released into the environment.”
ARC alleges that the United States is liable under
CERCLA because it owned the rocket motors and oper-
ated the Camden site at the time hazardous substances
were disposed from the motors and because it arranged
for the transport and refurbishment of the rocket mo-
tors knowing that the generation and disposal of wastes
containing hazardous substances was inherent in the
refurbishment process.” ARC seeks an award of its re-
sponse costs incurred to date under CERCLA Section
107(a) and federal common law, or both.’
CERCLA identifies four categories of parties re-
sponsible for cleanup costs at a contaminated facility,
more commonly known as potentially responsible parties
(“PRP”s):
(1) [T]he owner or operator of . . . [the] facility,
(2) [Ajny person who at the time of disposal of any
hazardous substance owned or operated .. . [the]
facility .. .
(3) [A]Jny person who . . . arranged for disposal or
treatment . . . of hazardous substances . . . at the
facility . . .,and
(4) |AJny person who accepts . . . hazardous sub-
stances for transport to [the facility for disposal or
treatment]. See 42 U.S.C. § 9607(a)(1)-(4).
* (Ud. 99 25, 29).
® Ud. 99 67, 71, 75, 76).
‘ (d. Prayer for Relief 2).
25a
Section 107(a)(4)(A) and (B) make PRP’s liable for:
(A) all costs of removal or remedial action incurred
by the United States Government . . . not inconsis-
tent with the national contingency plan;
(B) any other necessary costs of response incurred
by any other person consistent with the national con-
tingency plan. See 42 U.S.C. § 9607(a)(4)(A)-(B).
As stated earlier, Aviall left unanswered the ques-
tion of whether a PRP could assert a cost recovery claim
under an implied right to contribution under Section
107(a). However, it appears the Eighth Circuit has al-
ready answered this question, holding that a PRP can-
not rely on Section 107(a) to seek full cost recovery on a
theory of joint and several liability from another jointly
liable party; rather, a party that is subject to CERCLA
liability is limited to seeking contribution from other
jointly liable parties in accordance with Section 113(f),
unless the PRP qualifies for one of three defenses. Dico
v. Amoco Oil Company, 340 F.3d 525 (8th Cir. 2003).
These three defenses apply if the damage resulting from
contamination was due to: (1) an act of God; (2) an act of
war; or (3) an act or omission of a third party other than
one . . . [which] occurs in connection with a contrac-
tual relationship. . . .” /d. at 531, citing 28 U.S.C.
§ 9607(b). The defenses are available because “when one
of the enumerated CERCLA defenses applies a PRP is
deemed innocent; and an action between an innocent
party and another PRP is not between two liable par-
ties.” Id.
ARC does not dispute that it and the United States
are PRPs or argue that it is eligible for any of these
ee ee
26a
three defenses. Therefore, existing precedent appears
to preclude ARC’s Section 107(a) claims against ARC.
ARC acknowledges this precedent but argues that
Aviall has undermined the fundamental support for
Dico and other circuits’ decisions that Section 113(f)
limits PRP’s claims for contribution and precludes ac-
tions between PRPs for direct recovery under Section
107(a). ARC’s position finds support from some district
courts who have passed on this issue. See Vine Street
LLC v. Keeling, 362 F. Supp. 2d 754 (E.D. Tex. 2005)
(holding despite Aviall and existing circuit precedent,
PRP can bring a claim under Section 107(a) when it can-
not meet the specific requirements of Section 113(f)(1));
Metropolitan Water Reclamation District of Greater
Chicago v. Lake River Corp., 365 F. Supp. 2d 913
(N.D. Ill. 2005) (same). See also Syms v. Olin Corp.,
___F3d___, 2005 WL 1164011, *8 n.8 (2nd Cir. 2005)
(recognizing in dicta that Aviall combined with existing
Second Circuit precedent would leave a PRP with no
mechanism for recovering response costs until proceed-
ings are brought against the PRP; expressing opinion
that such a result “would create a perverse incentive for
PRPs to wait until they are sued before incurring re-
sponse costs”).
In contrast, other district courts confronted with this
issue have found that Aviall, combined with existing
precedent, effectively precludes an implied cause of ac-
tion pursuant to CERCLA Section 107(a). See City of
Waukesha v. Viacom Int'l, Inc., 362 F. Supp. 2d 1025
(E.D. Wis. 2005) (denying plaintiff’s motion to amend as
futile, finding Aviall did not vacate Seventh Circuit pre-
cedent that held landowner who was a party liable in
some measure for the contamination must seek contribu-
27a
tion under § 113(f)); Mercury Mall Assoc. v. Nick’s
Market, Inc., F. Supp. 2d , No. Civ. A.
4:04CV80, 2005 WL 1017855, *5 (E.D. Va. Feb, 28, 2005)
(denying plaintiff's motion to amend, recognizing that
although result was quixotic, the combined result of
Aviall and existing precedent precluded implied right of
contribution under 107(a) and left PRP without a rem-
edy); Elementis Chems., Inc. v. TH Agric. & Nutrition,
LLC, No. 03 Civ. 5150 (LBS), 2005 WL 236488 (S.D.N.Y.
Jan. 31, 2005) (finding a PRP without defense to dam-
ages precluded from bringing 107(a) cost recovery ac-
tion following Aviall).
This Court agrees with the logic that the holdings of
existing Eighth Circuit precedent and Aviall leave a
party in ARC’s position without a remedy. Aviail specif-
ically declined to address the issue of whether as an al-
ternative to an action for contribution under Section
113(f)(1), a PRP could recover costs under Section
107(a). Aviall, 125 S.Ct. at 586. Aviall does not under-
mine the Eighth Circuit precedent in Dico, precedent
that this Court is bound to follow. See Hood v. U.S., 342
F.3d 861, 864 (8th Cir. 2003) (holding district court in
Eighth Circuit is bound to apply to the precedent of the
Eighth Circuit Court of Appeals); Patterson v. Tenet
Healthcare, Inc., 113 F.3d 832, 838 (8th Cir. 2001) (hold-
ing panel of court of appeals cannot overrule another
panel unless the earlier panel decision is cast into doubt
by a decision of the Supreme Court). The Court recog-
nizes that the result reached in this Order is patently
unfair to ARC, because it has voluntarily cleaned up
environmental contamination, yet it is left without a
CERCLA remedy against the United States, another
PRP. Perhaps the Eighth Circuit will give attention to
these consequences if it considers the holding of Dico.
Ill. Conclusion
Based on the foregoing, the Court finds the Motion
to Dismiss should be and hereby is granted. An Order
of even date consistent with this Opinion shall issue.
IT ISSO ORDERED this 31 day of May, 2005.
/s/ HARRY F. BARNES.
HON. HARRY F.. BARNES
U.S. District Judge
29a
APPENDIX C
1. 42 U.S.C. 9607 provides:
Liability
(a) Covered persons; scope: recoverable costs and dam-
ages; interest rate; “comparable maturity” date
Notwithstanding any other provision or rule of law,
and subject only to the defenses set forth in subsection
(b) of this section—
(1) the owner and operator of a vessel or a
facility,
(2) any person who at the time of disposal of any
hazardous substance owned or operated any facility at
which such hazardous substances were disposed of,
(3) any person who by contract, agreement, or
otherwise arranged for disposal or treatment, or
arranged with a transporter for transport for disposal
or treatment, of hazardous substances owned or
possessed by such person, by any other party or
entity, at any facility or incineration vessel owned or
operated by another party or entity and containing
such hazardous substances, and
(4) any person who accepts or accepted any
hazardous substances for transport to disposal or
treatment facilities, incineration vessels or sites
selected by such person, from which there is a release,
or a threatened release which causes the incurrence of
response costs, of a hazardous substance, shall be
liable for—
30a
(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;
(C) damages for injury to, destruction of, or
loss of natural resources, including the rea-
sonable costs of assessing such injury, destruc-
tion, or loss resulting from such a release; and
(D) the costs of any health assessment or
health effects study carried out under section
9604(i) of this title.
The amounts recoverable in an action under this section
shall include interest on the amounts recoverable under
subparagraphs (A) through (D). Such interest shall
accrue from the later of (i) the date payment of a
specified amount is demanded in writing, or (ii) the date
of the expenditure concerned. The rate of interest on
the outstanding unpaid balance of the amounts recover-
able under this section shall be the same rate as is
specified for interest on investments of the Hazardous
Substance Superfund established under subchapter A of
chapter 98 of Title 26. For purposes of applying such
amendments to interest under this subsection, the term
“comparable maturity” shall be determined with re-
ference to the date on which interest accruing under this
subsection commences.
3la
(b) Defenses
There shall be no liability under subsection (a) of this
section for a person otherwise liable who can establish
by a preponderance of the evidence that the release or
threat of release of a hazardous substance and the
damages resulting therefrom were caused solely by—
(1) an act of God;
(2) an act of war;
(3) an act or omission of a third party other than
an employee or agent of the defendant, or than one
whose act or omission occurs in connection with a
contractual relationship, existing directly or indirectly,
with the defendant (except where the sole contractual
arrangement arises from a published tariff and
acceptance for carriage by a common carrier by rail),
if the defendant establishes by a preponderance of the
evidence that (a) he exercised due care with respect to
the hazardous substance concerned, taking into
consideration the characteristics of such hazardous
substance, in light of all relevant facts and cir-
cumstances, and (b) he took precautions against
foreseeable acts or omissions of any such third party
and the consequences that could foreseeably result
from such acts or omissions; or
(4) any combination of the foregoing paragraphs.
(c) Determination of amounts
(1) Exeept as provided in paragraph (2) of this
subsection, the liability under this section of an owner or
operator or other responsible person for each release of
32a
a hazardous substance or incident involving release of a
hazardous substance shall not exceed—
(A) for any vessel, other than an incineration
vessel, which carries any hazardous substance as cargo
or residue, $300 per gross ton, or $5,000,000, which-
ever is greater;
(B) for any other vessel, other than an incinera-
tion vessel, $300 per gross ton, or $500,000, whichever
is greater;
(C) for any motor vehicle, aircraft, hazardous
liquid pipeline facility (as defined in section 60101(a) of
Title 49), or rolling stock, $50,000,000 or such lesser
amount as the President shall establish by regulation,
but in no event less than $5,000,000 (or, for releases of
hazardous substances as defined in section 9601(14)(A)
of this title into the navigable waters, $8,000,000).
Such regulations shall take into account the size, type,
location, storage, and handling capacity and other
matters relating to the likelihood of release in each
such class and to the economic impact of such limits on
each such class; or
(D) for any incineration vessel or any facility
other than those specified in subparagraph (C) of this
paragraph, the total of all costs of response plus
$50,000,000 for any damages under this subchapter.
(2) Notwithstanding the limitations in paragraph (1)
of this subsection, the liability of an owner or operator
or other responsible person under this section shall be
the full and total costs of response and damages, if (A)(i)
the release or threat of release of a hazardous substance
was the result of willful misconduct or willful negligence
33a
within the privity or knowledge of such person, or (ii)
the primary cause of the release was a violation (within
the privity or knowledge of such person) of applicable
safety, construction, or operating standards or regula-
tions; or (B) such person fails or refuses to provide all
reasonable cooperation and assistance requested by a
responsible public official in connection with response
activities under the national contingency plan with
respect to regulated carriers subject to the provisions of
Title 49 or vessels subject to the provisions of Title 33,
46, or 46 Appendix, subparagraph (A)(ii) of this
paragraph shall be deemed to refer to Federal stan-
dards or regulations.
(3) If any person who is liable for a release or threat
of release of a hazardous substance fails without
sufficient cause to properly provide removal or remedial
action upon order of the President pursuant to section
9604 or 9606 of this title, such person may be liable to
the United States for punitive damages in an amount at
least equal to, and not more than three times, the
amount of any costs incurred by the Fund as a result of
such failure to take proper action. The President is
authorized to commence a civil action against any such
person to recover the punitive damages, which shall be
in addition to any costs recovered from such person
pursuant to section 9612(c) of this title. Any moneys
received by the United States pursuant to this
subsection shall be deposited in the Fund.
(d) Rendering care or advice
(1) In general
Except as provided in paragraph (2), no person
shall be liable under this subchapter for costs or
34a
damages as a result of actions taken or omitted in the
course of rendering care, assistance, or advice in
accordance with the National Contingency Plan
(“NCP”) or at the direction of an onscene coordinator
appointed under such plan, with respect to an
incident creating a danger to public health or welfare
or the environment as a result of any releases of a
hazardous substance or the threat thereof. This
paragraph shall not preclude liability for costs or
damages as the result of negligence on the part of
such person.
(2) State and local governments
No State or local government shall be liable under
this subchapter for costs or damages as a result of
actions taken in response to an emergency created
by the release or threatened release of a hazardous
substance generated by or from a facility owned by
another person. This paragraph shall not preclude
liability for costs or damages as a result of gross
negligence or intentional misconduct by the State or
local government. For the purpose of the preceding
sentence, reckless, willful, or wanton misconduct
shall constitute gross negligence.
(3) Savings provision
This subsection shall not alter the liability of any
person covered by the provisions of paragraph (1),
(2), (3), or (4) of subsection (a) of this section with
respect to the release or threatened release con-
cerned.
30a
(e) Indemnification, hold harmless, etc., agreements or
conveyances; subrogation rights
(1) No indemnification, hold harmless, or similar
agreement or conveyance shall be effective to transfer
from the owner or operator of any vessel or facility or
from any person who may be liable for a release or
threat of release under this section, to any other person
the liability imposed under this section. Nothing in this
subsection shall bar any agreement to insure, hold
harmless, or indemnify a party to such agreement for
any. liability under this section.
(2) Nothing in this subchapter, including the pro-
visions of paragraph (1) of this subsection, shall bar a -
cause of action that an owner or operator or any other
person subject to liability under this section, or a
guarantor, has or would have, by reason of subrogation
or otherwise against any person.
(f) Natural resources liability; designation of public
trustees of natural resources
(1) Natural resources liability
In the case of an injury to, destruction of, or loss of
natural resources under subparagraph (C) of
subsection (a) of this section liability shall be to the
United States Government and to any State for
natural resources within the State or belonging to,
managed by, controlled by, or appertaining to such
State and to any Indian tribe for natural resources
belonging to, managed by, controlied by, or
appertaining to such tribe, or held in trust for the
benefit of such tribe, or belonging to a member of
such tribe if such resources are subject to a trust
36a
restriction on alienation: Provided, however, That no
liability to the United States or State or Indian tribe
shall be imposed under subparagraph (C) of sub-
section (a) of this section, where the party sought to
be charged has demonstrated that the damages to
natural resources complained of were specifically
identified as an irreversible and irretrievable com-
mitment of natural resources in an environmental
impact statement, or other comparable environment
analysis, and the decision to grant a permit or license
authorizes such commitment of natural resources,
and the facility or project was otherwise operating
within the terms of its permit or license, so long as,
in the case of damages to an Indian tribe occurring
pursuant to a Federal permit or license, the issuance
of that permit or license was not inconsistent with
the fiduciary duty of the United States with respect
to such Indian tribe. The President, or the
authorized representative of any State, shall act on
behalf of the public as trustee of such natural re-
sources to recover for such damages. Sums re-
covered by the United States Government as trustee
under this subsection shall be retained by the
trustee, without further appropriation, for use only
to restore, replace, or acquire the equivalent of such
natural resources. Sums recovered by a State as
trustee under this subsection shall be available for
use only to restore, replace, or acquire the equivalent
of such natural resources by the State. The measure
of damages in any action under subparagraph (C) of
subsection (a) of this section shall not be limited by
the sums which can be used to restore or replace
‘such resources. There shall be no double recovery
under this chapter for natural resource damages,
37a
including the costs of damage assessment or re-
storation, rehabilitation, or acquisition for the same
release and natural resource. There shall be no
recovery under the authority of subparagraph (C) of
subsection (a) of this section where such damages
and the release of a hazardous substance from which
such damages resulted have occurred wholly before
December 11, 1980.
(2) Designation of Federal and State officials
(A) Federal
The President shall designate in the National
Contingency Plan published under section 9605 of
this title the Federal officials who shall act on behalf
of the public as trustees for natural resources under
this chapter and section 1321 of Title 33. Such
officials shall assess damages for injury to,
destruction of, or loss of natural resources for pur-
poses of this chapter and such section 1321 of Title
33 for those resources under their trusteeship and
may, upon request of and reimbursement from a
State and at the Federal officials’ discretion, assess
damages for those natural resources under the
State’s trusteeship.
(B) State
The Governor of each State shall designate State
officials who may act on behalf of the public as
trustees for natural resources under this chapter and
section 1321 of Title 33 and shall notify the President
of such designauons. Such State officials shall assess
damages to natural resources for the purposes of this
38a
chapter and such section 1321 of Title 33 for those
natural resources under their trusteeship.
(C) Rebuttable presumption
Any determination or assessment of damages to
natural resources for the purposes of this chapter
and section 1321 of Title 33 made by a Federal or
State trustee in accordance with the regulations
promulgated under section 9651(c) of this title shall
have the force and effect of a rebuttable presumption
on behalf of the trustee in any administrative or
judicial proceeding under this chapter or section
1321 of Title 33.
(g) Federal agencies
For provisions relating to Federal agencies, see
section 9620 of this title.
(h) Owner or operator of vessel
The owner or operator of a vessel shall be liable in
accordance with this section, under maritime tort law,
and as provided under section 9614 of this title
notwithstanding any provision of the Act of March 3,
1851 (46 U.S.C. 183ff) [46 App. U.S.C. 182, 183, 184-188]
or the absence of any physical damage to the
proprietary interest of the claimant.
(ij) Application of a registered pesticide product
No person (including the United States or any State
or Indian tribe) may recover under the authority of this
section for any response costs or damages resulting
from the application of a pesticide product registered
under the Federal Insecticide, Fungicide, and
39a
Rodenticide Act [7 U.S.C. 136 et seq.]. Nothing in this
paragraph shall affect or modify in any way the
obligations or liability of any person under any other
provision of State or Federal law, including common law,
for damages, injury, or loss resulting from a release of
any hazardous substance or for removal or remedial
action or the costs of removal or remedial action of such
hazardous substance.
(j) Obligations or liability pursuant to federally per-
mitted release
Recovery by any person (including the United States
or any State or Indian tribe) for response costs or
damages resulting from a federally permitted release
shall be pursuant to existing law in lieu of this section.
Nothing in this paragraph shall affect or modify in any
way the obligations or liability of any person under any
other provision of State or Federal law, including
common law, for damages, injury, or loss resulting from
a release of any hazardous substance or for removal or
remedial action or the costs of removal or remedial
action of such hazardous substance. In addition, costs of
response incurred by the Federal Government in
connection with a discharge specified in section
9601(10)(B) or (C) of this title shall be recoverable in an
action brought under section 1319(b) of Title 33.
(k) Transfer to, and assumption by, Post-Closure
Liability Fund of liability of owner or operator of
hazardous waste disposal facility in receipt of
permit under applicable solid waste disposal law;
time, criteria applicable, procedures, etc.; moni-
toring costs; reports
40a
(1) The liability established by this section or any
other law for the owner or operator of a hazardous waste
disposal facility which has received a permit under
subtitle C of the Solid Waste Disposal Act [42 U.S.C.
6921 et seq.], shall be transferred to and assumed by the
Post-closure Liability Fund established by section 9641
of this title when—
(A) such facility and the owner and operator
thereof has complied with the requirements of
s ~.:itle C of the Solid Waste Disposal Act [42 U.S.C.
6921 et seq.] and regulations issued thereunder,
which may affect the performance of such facility
after closure; and
(B) such facility has been closed in accordance
with such regulations and the conditions of such
permit, and such facility and the surrounding area
have been monitored as required by such regulations
and permit conditions for a period not to exceed five
years after closure to demonstrate that there is no
substantial likelihood that any migration offsite or
release from confinement of any hazardous sub-
stance or other risk to public health or welfare will
occur.
(2) Such transfer of liability shall be effective ninety
days after the owner or operator of such facility notifies
the Administrator of the Environmental Protection
Agency (and the State where it has an authorized
program under section 3006(b) of the Solid Waste
Disposal Act [42 U.S.C. 6926(b)]) that the conditions
imposed by this subsection have been satisfied. If within
such ninety-day period the Administrator of the
Environmental Protection Agency or such State
4la
determines that any such facility has not complied with
all the conditions imposed by this subsection or that
insufficient information has been provided to demon-
strate such compliance, the Administrator or such State
shall so notify the owner and operator of such facility
and the administrator of the Fund established by section
9641 of this title, and the owner and operator of such
facility shall continue to be liable with respect to such
facility under this section and other law until such time
as the Administrator and such State determines that
such facility has complied with all conditions imposed by
this subsection. A determination by the Administrator
or such State that a facility has not complied with all
conditions imposed by this subsection or that insufficient
information has been supplied to demonstrate com-
pliance, shall be a final administrative action for pur-
poses of judicial review. A request for additional infor-
mation shall state in specific terms the data required.
(3) In addition to the assumption of liability of
owners and operators under paragraph (1) of this
subsection, the Post-closure Liability Fund established
by section 9641 of this title may be used to pay costs of
monitoring and care and maintenance of a site incurred
by other persons after the period of monitoring required
by regulations under subtitle C of the Solid Waste
Disposal Act [42 U.S.C. 6921 et seq.] for hazardous
waste disposal facilities meeting the conditions of
paragraph (1) of this subsection.
(4)(A) Not later than one year after December 11,
1980, the Secretary of the Treasury shall conduct a
study and shall submit a report thereon to the Congress
on the feasibility of establishing or qualifying an
optional system of private insurance for postclosure
42a
financial responsibility for hazardous waste disposal
facilities to which this subsection applies. Such study
shall include a specification of adequate and realistic
minimum standards to assure that any such privately
placed insurance will carry out the purposes of this
subsection in a reliable, enforceable, and practical
manner. Such a study shall include an examination of
the public and private incentives, programs, and actions
necessary to make privately placed insurance a practical
and effective option to the financing system for the Post-
closure Liability Fund provided in subchapter II of this
chapter. ;
(B) Not later than eighteen months after December
11, 1980, and after a public hearing, the President shall
by rule determine whether or not it is feasible to
establish or qualify an optional system of private in-
surance for postclosure financial responsibility for
hazardous waste disposal facilities to which this sub-
section applies. If the President determines the
establishment or qualification of such a system would be
infeasible, he shall promptly publish an explanation of
the reasons for such a determination. If the President
determines the establishment or qualification of such a
system would be feasible, he shall promptly publish
notice of such determination. Not later than six months
after an affirmative determination under the preceding
sentence and after a public hearing, the President shall
by rule promulgate adequate and realistic minimum
standards which must be met by any such privately
placed insurance, taking into account the purposes of
this chapter and this subsection. Such rules shall also
specify reasonably expeditious procedures by which
privately placed insurance plans can qualify as meeting
such minimum standards.
43a
(C) In the event any privately placed insurance plan
qualifies under subparagraph (B), any person enrolled
in, and complying with the terms of, such plan shall be
excluded from the provisions of paragraphs (1), (2), and
(3) of this subsection and exempt from the requirements
to pay any tax or fee to the Post-closure Liability Fund
under subchapter II of this chapter.
(D) The President may issue such rules and take
such other actions as are necessary to effectuate the
purposes of this paragraph.
(5) SUSPENSION OF LIABILITY TRANSFER.—Notwith-
standing paragraphs (1), (2), (3), and (4) of this sub-
section and subsection (j) of section 9611 of this title, no
liability shall be transferred to or assumed by the Post-
Closure Liability Trust Fund established by section
9641 of this title prior to completion of the study re-
quired under paragraph (6) of this subsection, trans-
mission of a report of such study to both Houses of
Congress, and authorization of such a transfer or
assumption by Act of Congress following receipt of such
study and report.
(6) STUDY OF OPTIONS FOR POST-CLOSURE
PROGRAM.—
(A) StuDy.—The Comptroller General shall
conduct a study of options for a program for the
management of the liabilities associated with
hazardous waste treatment, storage, and disposal
sites after their closure which complements the
policies set forth in the Hazardous and Solid Waste
Amendments of 1984 and assures the protection of
human health and the environment.
44a
(B) PROGRAM ELEMENTS.—The program referred
to in subparagraph (A) shall be designed to assure
each of the following:
(i) Incentives are created and maintained for
_ the safe management and disposal of hazardous
wastes so as to assure protection of human health
and the environment.
(ii) Members of the public will have
reasonable confidence that hazardous wastes will
be managed and disposed of safely and that
resources will be available to address any problems
that may arise and to cover costs of long-term
monitoring, care, and maintenance of such sites.
(iii) Persons who are or seek to become
owners and operators of hazardous waste disposal
facilities will be able to manage their potential
- future liabilities and to attract the investment
capital necessary to build, operate, and close such
facilities in a manner which assures protection of
human health and the environment.
(C) ASSESSMENTS.—The study under this
paragraph shall include assessments of treatment,
storage, and disposal facilities which have been or
are likely to be issued a permit under section 3005 of
the Solid Waste Disposal Act {42 U.S.C. 6925] and
the likelihood of future insolvency on the part of
owners and operators of such facilities. Separate
assessments shall be made for different classes of
facilities and for different classes of land disposal
facilities and shall include but not be limited to—
45a
(i) the current and future financial capa-
bilities of facility owners and operators;
(ii) the current and future costs associated
with facilities, including the costs of routine moni-
toring and maintenance, compliance monitoring,
corrective action, natural resource damages, and
liability for damages to third parties; and
(iii) the availability of mechanisms by which
owners and operators of such facilities can assure
that current and future costs, including~ post-
closure costs, will be financed.
(D) PROCEDURES.—In carrying out the respon-
sibilities of this paragraph, the Comptroller General
shall consult with the Administrator, the Secretary of
Commerce, the Secretary of the Treasury, and the heads
of other appropriate Federal agencies.
(E) CONSIDERATION OF OPTIONS.—In conducting
the study under this paragraph, the Comptroller
General shall consider various mechanisms and com-
binations of mechanisms to complement the policies set
forth in the Hazardous and Solid Waste Amendments of
1984 to serve the purposes set forth in subparagraph (B)
and to assure that the current and future costs asso-
ciated with hazardous waste facilities, including post-
closure costs, will be adequately financed and, to the
greatest extent possible, borne by the owners and
operators of _such facilities. Mechanisms to be con-
sidered include, but are not limited to—
(i) revisions to closure, post-closure, and
financial responsibility requirements under sub-
46a
titles C and I of the Solid Waste Disposal Act [42
U.S.C. 6921 et seq. and 6991 et seq. ];
(ii) voluntary risk pooling by owners and
operators;
(iii) legislation to require risk pooling by owners
and operators;
(iv) modification of the Post-Closure Liability
Trust Fund previously established by section 9641
of this title, and the conditions for transfer of
liability under this subsection, including limiting
the transfer of some or all liability under this
subsection only in the case of insolvency of owners
and operators; 3
(v) private insurance;
(vi) insurance provided by the Federal Govern-
ment;
(vii) coinsurance, reinsurance, or pooled-risk
insurance, whether provided by the private sector
or provided or assisted by the Federal Govern-
ment; and
(vili) creation of a new program to be admini-
stered by a new or existing Federal agency or by a
federally chartered corporation.
(F) RECOMMENDATIONS.—The Comptroller
General shall consider options for funding any pro-
gram under this section and shall, to the extent
_ necessary, make recommendations to the appro-
47a
priate committees of Congress for additional
authority to implement such program.
(1) Federal lien
(1) In general
All costs and damages for which a person is
liable to the United States under subsection (a) of
this section (other than the owner or operator of a
vessel under paragraph (1) of subsection (a) of this
section) shall constitute a lien in favor of the
United States upon all real property and rights to
such property which—
- (A) belong to such person; and
(B) are subject to or affected by a removal or
remedial action.
(2) Duration
The lien imposéd by this subsection shall arise at
the later of the following:
(A) The time costs are first incurred by the
United States with respect to a response action
under this chapter.
(B) The time that the person referred to in
paragraph (1) is provided (by certified or reg-
istered mail) written notice of potential liability.
Such lien shall continue until the liability for the costs
(or a judgment against the person arising out of such
liability) is satisfied or becomes unenforceable
48a
through operation of the statute of limitations
provided in section 9613 of this title.
(3) Notice and validity
The lien imposed by this subsection shall be
subject to the rights of any purchaser, holder of a
security interest, or judgment lien creditor whose
interest is perfected under applicable State law
before notice of the lien has been filed in the
appropriate office within the State (or county or other
governmental subdivision), as designated by State
law, in which the real property subject to the lien is
located. Any such purchaser, holder of a security
interest, or judgment lien creditor shall be afforded
the same protections against the lien imposed by this
subsection as are afforded under State law against a
judgment lien which arises out of an unsecured
obligation and which arises as of the time of the filing
of the notice of the lien imposed by this subsection. If
the State has not by law designated one office for the
receipt of such notices of liens, the notice shall be
filed in the office of the clerk of the United States
district court for the district in which the real
property is located. For purposes of this subsection,
the terms “purchaser” and “security interest” shall
have the definitions provided under section 6323(h) of
Title 26.
(4) Action in rem
The costs constituting the lien may be recovered
in an action in rem in the United States district court
for the district in which the removal or remedial
action is occurring or has occurred. Nothing in this
49a
subsection shall affect the right of the United States
to bring an action against any person to recover all
costs and damages for which such person is liable
under subsection (a) of this section.
(m) Maritime lien
All costs and damages for which the owner or
operator of a vessel is liable under subsection (a)(1) of
this section with respect to a release or threatened
release from such vessel shall constitute a maritime lien
in favor of the United States on such vessel. Such costs
may be recovered in an action in rem in the district
court of the United States for the district in which the
vessel may be found. Nothing in this subsection shall
affect the right of the United States to bring an action
against the owner or operator of such vessel in any court
of competent jurisdiction to recover such costs.
(n) Liability of fiduciaries
(1) In general
The liability of a fiduciary under any provision of
this chapter for the release or threatened release of
a hazardous substance at, from, or in connection with
a vessel or facility held in a fiduciary capacity shall
not exceed the assets held in the fiduciary capacity.
(2) Exclusion
Paragraph (1) does not apply to the extent that
a person is liable under this chapter independently of
the person’s ownership of a vessel or facility as a
fiduciary or actions taken in a fiduciary capacity.
(3) Limitation
Paragraphs (1) and (4) do not limit the liability
pertaining to-a release or threatened reiease of a
hazardous substance if negligence of a fiduciary
causes or contributes to the release or threatened
release.
(4) Safe harbor
A fiduciary shall not be liable in its personal
capacity under this chapter, for—
(A) undertaking or directing another person to
undertake a response action under subsection
(d)(1) of this section or under the direction of an
on scene coordinator designated under the
National Contingency Plan;
(B) undertaking or directing another person to
undertake any other lawful means of addressing
a hazardous substance in connection with the
vessel or facility;
(C) terminating the fiduciary relationship;
(D) including in the terms of the fiduciary
agreement a covenant, warranty, or other term
or condition that relates to compliance with an
environmental law, or monitoring, modifying or
enforcing the term or condition;
(E) monitoring or undertaking 1 or more
inspections of the vessel or facility;
: 5la
(F) providing financial or other advice or
counseling to other parties to the fiduciary
relationship, including the settlor or beneficiary;
(G) restructuring, renegotiating, or otherwise
altering the terms and conditions of the
fiduciary relationship;
(H) administering, as a fiduciary, a vessel or
facility that was contaminated before the
fiduciary relationship began; or
(1) declining to take any of the actions de-
scribed in subparagraphs (B) through (H).
(5) Definitions
As used in this chapter:
(A) Fiduciary
The term “fiduciary” —
(i) means a person acting for the benefit of
another party as a bona fide—
(1) trustee;
(11) executor;
(111) administrator;
(IV) custodian;
(V) guardian of estates or guardian ad
litem;
(VI) receiver;
(VII) conservator;
(VIII) committee of estates of
incapacitated persons;
(IX) personal representative;
52a
(X) trustee (including a successor to a
trustee) under an indenture agreement,
trust agreement, lease, or similar financing
agreement, for debt securities, certificates
of interest or certificates of participation in
debt securities, or other forms of in-
debtedness as to which the trustee is not, in
the capacity of trustee, the lender; or
(XI) representative in any other capacity
that the Administrator, after providing
public notice, determines to be similar to
the capacities described in subclauses (1)
through (X); and
(ii) does not include—
(1) a person that is acting as a fiduciary
with respect to a trust or other fiduciary
estate that was organized for the primary
purpose of, or is engaged in, actively carry-
ing on a trade or business for profit, unless
the trust or other fiduciary estate was
created as part of, or to facilitate, 1 or more
estate plans or because of the incapacity of
a natural person; or
(II) a person that acquires ownership or
control of a vessel or facility with the ob-
jective purpose of avoiding liability of the
person or of any other person.
(B) Fiduciary capacity
The term “fiduciary capacity” means the
capacity of a person in holding title to a vessel
or facility, or otherwise having control of or an
interest in the vessel or facility, pursuant to the
exercise of the responsibilities of the person as
a fiduciary.
(6) Savings clause
Nothing in this subsection—
(A) affects the rights or immunities or other
defenses that are available under this chapter
or other law that is applicable to a person
subject to this subsection; or
(B) creates any liability for a person or a
private right of action against a fiduciary or any
other person.
(7) No effect on certain persons
Nothing in this subsection applies t a person if
the person—
(A)(i) acts in a capacity other than that of
a fiduciary or in a beneficiary capacity; and _
(ii) in that capacity, directly or indirectly
benefits from a trust or fiduciary relationship; or
(B)(i) is a beneficiary and a fiduciary with
respect to the same fiduciary estate; and
(ii) as a fiduciary, receives benefits that
exceed customary or reasonable compensation, and
incidental benefits, permitted under other
applicable law.
(8) Limitation
This subsection does not preclude a claim under
this chapter against—
(A) the assets of the estate or trust admini
stered by the fiduciary; or
(B) a nonemployee agent or independent
contractor retained by a fiduciary.
(0) De micromis exemption
(1) In general
Except as provided in paragraph (2), a person shall
not be liable, with respect to response costs at a
facility on the National Priorities List, under this
chapter if liability is based solely on paragraph (3) or
(4) of subsection (a), and the person, except as
provided in paragraph (4) of this subsection, can
demonstrate that—
(A) the total amount of the material containing
hazardous substances that the person arranged for
disposal or treatment of, arranged with a trans-
porter for transport for disposal or treatment of, or
accepted for transport for disposal or treatment, at
the facility was less than 110 gallons of liquid
materials or less than 200 pounds of solid materials
(or such greater or lesser amounts as the Admini-
strator may determine by regulation); and
(B) all or part of the disposal, treatment, or
transport concerned occurred before April 1, 2001.
(2) Exceptions
Paragraph (1) shall not apply in a case in
which—
55a
(A) the President determines that—
(i) the materials containing hazardous sub-
stances referred to in paragraph (1) have con-
tributed significantly or could contribute signi-
ficantly, either individually or in the aggregate,
to the cost of the response action or natural re-
source restoration with respect to the facility;
or
(ii) the person has failed to comply with an
information request or administrative subpoena
issued by the President under this chapter or
has impeded or is impeding, through action or
inaction, the performance of a response action
or natural resource restoration with respect to
the facility; or
(B) a person has been convicted of a criminal
violation for the conduct to which the exemption
would apply, and that conviction has not been
vitiated on appeal or otherwise.
(3) No judicial review
A determination by the President under
paragraph (2)(A) shall not be subject to judicial
review.
(4) NonGovernmental third-party contribution
actions
In the case of a contribution action, with
respect to response costs at a facility on the
Nationa! Priorities List, brought by a party,
other than a Federal, State, or local govern-
ment, under this chapter, the burden of proof
56a
shall be on the party bringing the action to
demonstrate that the conditions described in
paragraph (1)(A) and (B) of this subsection
are not met.
(p) Municipal solid waste exemption
(1) In general
Except as provided in paragraph (2) of this sub-
section, a person shall not be liable, with respect to
response costs at a facility on the National
Priorities List, under paragraph (3) of subsection
(a) of this section for municipal solid waste disposed
of at a facility if the person, except as provided in
paragraph (5) of this subsection, can demonstrate
that the person is—
(A) an owner, operator, or lessee of
residential property from which all of the person's
municipal solid waste was generated with respect to
the facility;
(B) a business entity (including a parent,
subsidiary, or affiliate of the entity) that, during its
3 taxable years preceding the date of transmittal of
written notification from the President of its po-
tential liability under this section, employed on
average not more than 100 full-time individuals, or
the equivalent thereof, and that is a small business
concern (within the meaning of the Small Business
Act (15 U.S.C. 631 et seq.)) from which was gen-
erated all of the municipal solid waste attributable
to the entity with respect to the facility; or
(C) an organization described in section
501(c)(3) of Title 26 and exempt from tax under
57a
section 501(a) of Title 26 that, during its taxable
year preceding the date of transmittal of written
notification from the President of its potential
liability under this section, employed not more than
100 paid individuals at the location from which was
generated all of the municipal solid waste attri-
butable to the organization with respect to the
facility.
For purposes of this subsection, the term “affiliate” has
the meaning of that term provided in the definition of
“small business concern” in regulations promulgated by
the Smal! Business Administration in accordance with
the Small Business Act (15 U.S.C. 631 et seq.).
(2) Exception
Paragraph (1) shall not apply in a case in which the
President determines that—
(A) the municipal solid waste referred to in para-
graph (1) has contributed significantly or could contri-
bute significantly, either individually or in the aggre-
gate, to the cost of the response action or natural
resource restoration with respect to the facility;
(B) the person has failed to comply with an
information request or administrative subpoena issued
by the President under this chapter; or
(C) the person has impeded or is impeding,
through action or inaction, the performance of a
response action or natural resource restoration with
respect to the facility.
(3) No judicial review
A determination by the President under paragraph (2)
shall not be subject to judicial review.
58a
(4) Definition of municipal solid waste
(A) In general
For purposes of this subsection, the term “municipal
solid waste” means waste material—
(i) generated by a household (including a single
or multifamily residence); and
(ii) generated by a commercial, industrial, or
institutional entity, to the extent that the waste
material—
(I) is essentially the same as waste normally
generated by a household;
(II) is collected and disposed of with other
municipal solid waste as part of norma! municipal
solid waste collection services; and
(III) contains a relative quantity of hazardous
substances no greater than the relative quantity of
hazardous substances contained in waste material
generated by a typical single-family household.
(B) Examples
Examples of municipal solid waste under sub-
paragraph (A) include food and yard waste, paper,
clothing, appliances, consumer product packaging,
disposable diapers, office supplies, cosmetics, glass
and metal food containers, elementary or secondary
school science laboratory waste, and household
hazardous waste.
(C) Exclusions
The term “municipal solid waste” does not include—
59a
(i) combustion ash generated by resource
recovery facilities or municipal incinerators; or
(ii) waste material from manvfacturing or pro-
cessing operations (including pollution control
operations) that is not essentially the same as
waste normally generated by households.
(5) Burden of proof
In the case of an action, with respect to response
costs at a facility on the National Priorities List,
brought under this section or section 9613 of this title
by—
(A) a party, other than a Federal, State, or local
government, with respect to municipal solid waste
disposed of on or after April 1, 2001; or
(B) any party with respect to municipal solid
waste disposed of before April 1, 2001, the burden of
proof shall be on the party bringing the action to
demonstrate that the conditions described in
paragraphs (1) and (4) for exemption for entities
and organizations described in paragraph (1)(B) and
(C) are not met.
(6) Certain actions not permitted
No contribution action may be brought by a party,
other than a Federal, State, or local government,
under this chapter with respect to circumstances
described in paragraph (1)(A).
(7) Costs and fees
A nongovernmental entity that commences, after
the date of the enactment of this subsection, a
contribution action under this chapter shall be liable to
60a
the defendant for all reasonable costs of defending the
action, including all reasonable attorney's fees and
expert witness fees, if the defendant is not liable for
contribution based on an exemption under this
subsection or subsection (0) of this section.
(q) Contiguous properties
(1) Not considered to be an owner or operator
(A) In general
A person that owns real property that is contiguous
to or otherwise similarly situated with respect to, and
that is or may be contaminated by a release or
threatened release of a hazardous substance from, real
property that is not owned by that person shall not be
considered to be an owner or operator. of a vessel or
facility under paragraph (1) or (2) of subsection (a)
solely by reason of the contamination if—
(i) the person did not cause, contribute, or
consent to the release or threatened release;
(ii) the person is not—
(I) potentially liable, or affiliated with any
other person that is potentially liable, for
response costs at a facility through any direct or
indirect familial relationship or any contractual,
corporate, or financial relationship (other than a
contractual, corporate, or financial relationship
- that is created by a contract for the sale of goods
or services); or
(II) the result of a reorganization of a business
entity that was potentially liable;
(iii) the person takes reasonable steps to—
6la
(1) stop any continuing release;
(Il) prevent any threatened future release;
and
(III) prevent or limit human, environmental,
or natural resource exposure to any hazardous
substance released on or from property owned
by that person;
(iv) the person provides full cooperation, assis-
tance, and access to persons that are authorized to
conduct response actions or natural resource
restoration at the vessel or facility from which
there has been a release or threatened release (in-
cluding the cooperation and access necessary for
the installation, integrity, operation, and main-
tenance of any complete or partial response action
or natural resource restoration at the vessel or
facility);
(v) the person—
(1) is in compliance with any land use restric-
tions established or relied on in connection with
the response action at the facility; and
(II) does not impede the effectiveness or
integrity of any institutional control employed in
connection with a response action;
(vi) the person is in compliance with any request
for information or administrative subpoena issued
by the President under this chapter;
(vii) the person provides all legally required
notices with respect to the discovery or release of
any hazardous substances at the facility; and
62a
(viii) At the time at which the person acquired
the property, the person
(1) conducted all appropriate inquiry within
the meaning of section 9601(35)(B) of this title
with respect to the property; and
(II) did not know or have reason to know that
the property was or could be contaminated by a
release or threatened release of one or more
hazardous substances from other real property
not owned or operated by the person.
(B) Demonstration
To qualify as a person described in subparagraph
(A), a person must establish by a preponderance of
the evidence that the conditions in clauses (i)
through (viii) of subparagraph (A) have been met.
(C) Bona fide prospective purchaser
Any person that does not qualify as a person
described in this paragraph because the person
had, or had reason to have, knowledge specified in
subparagraph (A)(viii) at the time of acquisition of
the real property may qualify as a bona fide
prospective purchaser under section 9601(40) of
this title if the person is otherwise described in
that section.
(D) Ground water
With respect to a hazardous substance from one or
more sources that are not on the property of a
person that is a contiguous property owner that
enters ground water beneath the property of the
person solely as a result of subsurface migration in
2 63a
an aquifer, subparagraph (A)(iii) shall not require
the person to conduct ground water investigations or
to install ground water remediation systems, except
in accordance with the policy of the Environmental
Protection Agency concerning owners of property
containing contaminated aquifers, dated May 24,
1995.
(2) Effect of law
With respect to a person described in this subsection,
nothing in this subsection—
(A) limits any defense to liability that may be
available to the person under any other provision of
law; or
(B) imposes liability on the person that is not
otherwise imposed by subsection (a) of this section.
(3) Assurances
Tne Administrator may—
(A) issue an assurance that no enforcement action
under this chapter will be initiated against a person
described in paragraph (1); and
(B) grant a person described in paragraph (1)
protection against a cost recovery or contribution
action under section 9613(f) of this title.
(r) Prospective purchaser and windfall lien
(1) Limitation on liability
Notwithstanding subsection (a)(1) of this section, a
bona fide prospective purchaser whose potential
liability for a release or threatened release is based
solely on the purchaser's being considered to be an
owner or operator of a facility shall not be liable as
64a
long as the bona fide prospective purchaser does not
impede the performance of a response action or
natural resource restoration.
(2) Lien
If there are unrecovered response costs incurred by
the United States at a facility for which an owner of
the facility is not liable by reason of paragraph (1), and
if each of the conditions described in paragraph (3) is
met, the United States shall have a lien on the facility,
or may by agreement with the owner, obtain from the
owner a lien on any other property or other assurance
of payment satisfactory to the Administrator, for the
unrecovered response costs. —
(3) Conditions
The conditions referred to in paragraph (2) are the
following:
(A) Response action _
A response action for which there are unrecovered
costs of the United States is carried out at the
facility.
(B) Fair market value
The response action increases the fair market value
of the facility above the fair market value of the
facility that existed before the response action was
initiated.
(4) Amount; duration
A lien under paragraph (2)—
(A) shall be in an amount not to exceed the
increase in fair market value of the property
65a
attributable to the response action at the time of a
sale or other disposition of the property;
(B) shall arise at the time at which costs are first
incurred by the United States with respect to a
response action at the facility;
(C) shall be subject to the requirements of
subsection (1)(3); and
(D) shall continue until the earlier of—
(i) satisfaction of the lien by sale or other
means; or
(ii) notwithstanding any statute of limitations
under section 9613 of this tile, recovery of all
response costs incurred at the facility.
2. 42 U.S.C. 9613 provides:
Civil proceedings
(a) Review of regulations in Circuit Court of Appeals of
the United States for the District of Columbia
Review of any regulation promulgated under this
chapter may be had upon application by any interested
person only in the Circuit Court of Appeals of the
United States for the District of Columbia. Any such
application shall be made within ninety days from the
date of promulgation of such regulations. Any matter
with respect to which review could have been obtained
under this subsection shall not be subject to judicial
review in any civil or criminal proceeding for enforce-
ment or to obtain damages or recovery of response
costs.
(b) Jurisdiction; venue
66a
Except as provided in subsections (a) and (h) of this
section, the United States district courts shall have
exclusive original jurisdiction over all controversies
arising under this chapter, without regard to the
citizenship of the parties or the amount in controversy.
Venue shall lie in any district in which the release or
damages occurred, or in which the defendant resides,
may be found, or has his principal office. For the pur-
poses of this section, the Fund shall reside in the
District of Columbia.
(c) Controversies or other matters resulting from tax
collection or tax regulation review
The provisions of subsections (a) and (b) of this section
shall not apply to any controversy or other matter
resulting from the assessment of collection of any tax, as
provided by subchapter II of this chapter, or to the
review of any regulation promulgated under Title 26.
(d) Litigation commenced prior to December 11, 1980
No provision of this chapter shall be deemed or held to
moot any litigation concerning any release of any
hazardous substance, or any damages associated there-
with, commenced prior to December 11, 1980.
(e) Nationwide service of process
In any action by the United States under this chapter,
process may be served in any district where the
defendant is found, resides, transacts business, or has
appointed an agent for the service of process.
(f) Contribution
(1) Contribution
67a
Any person may seek contribution from any other
person who is liable or potentially liable under section
9607(a) of this title, during or following any civil action
under section 9606 of this title or under section 9607(a)
of this title. Such claims shall be brought in accor-
dance with this section and the Federal Rules of Civil
Procedure, and shall be governed by Federal law. In
resolving contribution claims, the court may allocate
response costs among liable parties using such
equitable factors as the court determines are approp-
riate. Nothing 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 9606 of
this title or section 9607 of this title.
(2) Settlement
A person who has resolved its liability to the United
States or a State in an administrative or judicially
approved settlement shall not be liable for claims for
contribution regarding matters addressed in the
settlement. Such settlement does not discharge any of
the other potentially liable persons unless its terms so
provide, but it reduces the potential liability of the
others by the amount of the settlement.
(3) Persons not party to settlement
(A) If the United States or a State has obtained less
than complete relief from a person who has resolved
its liability to the United States or the State in an
administrative or judicially approved settlement, the
United States or the State may bring an action against
any person who has not so resolved its liability.
68a
(B) A person who has resolved its liability to the
United States or a State for some or all of a response
action or for some or all of the costs of such action in
an administrative or judicially approved settlement
may seek contribution from any person who is not
party to a settlement referred to in paragraph (2).
(C) In any action under this paragraph, the rights of
any person who has resolved its liability to the United
States or a State shall be subordinate to the rights of
the United States or the State. Any contribution
action brought under this paragraph shall be governed
by Federal law.
(g) Period in which action may be brought
(1) Actions for natural resource damages
Except as provided in paragraphs (3) and (4), no
action may be commenced for damages (as defined in
section 9601(6) of this title) under this chapter, unless
that action is commenced within 3 years after the later
of the following:
(A) The date of the discovery of the loss and its
connection with the release in question.
(B) The date on which regulations are
promulgated under section 9651(c) of this title.
With respect to any facility listed on the National
Priorities List (NPL), any Federal facility identified
under section 9620 of this title (relating to Federal
facilities), or any vessel or facility at which a remedial
action under this chapter is otherwise scheduled, an
action for damages under this chapter must be com-
menced within 3 years after the completion of the
remedial action (excluding operation and maintenance
69a
activities) in lieu of the dates referred to in subpara-
graph (A) or (B). In no event may an action for
damages under this chapter with respect to such a
vessel or facility be commenced (i) prior to 60 days
after the Federal or State natural resource trustee
provides to the President and the potentially respon-
sible party a notice of intent to file suit, or (ii) before
selection of the remedial action if the President is
diligently proceeding with a remedial investigation
and feasibility study under section 9604(b) of this title
or section 9620 of this title (relating to Federal
facilities). The limitation in the preceding sentence on
commencing an action before giving notice or before
selection of the remedial action does not apply to
actions filed on or before October 17, 1986.
(2) Actions for recovery of costs
An initial action for recovery of the costs referred to
in section 9607 of this title must be commenced—
(A) for a removal action, within 3 years after
completion of the removal action, except that such
cost recovery action must be brought within 6 years
after a determination to grant a waiver under section
9604(c)(1(C) of this title for continued response
action; and
(B) for a remedial action, within 6 years after
initiation of physical on-site construction of the
remedial action, except that, if the remedial action is
initiated within 3 vears after the completion of the
removal action, costs incurred in the removal action
may be recovered in the cost recovery action brought
under this subparagraph.
70a
In any such action described in this subsection, the
court shall enter a declaratory judgment on liability
for response costs or damages that will be binding on
any subsequent action or actions to recover further
response costs or damages. A subsequent action or
actions under section 9607 of this title for further
response costs at the vessel or facility may be main-
tained at any time during the response action, but
must be commenced no later than 3 years after the
date of completion of all response action. Except as
otherwise provided in this paragraph, an action may
be commeneed under section 9607 of this title for
recovery of costs at any time after such costs have
been incurred.
(3) 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 chapter for recovery of such costs or damages,
or
(B) the date of an administrative order under
section 9622(¢) of this title (relating to de minimis
settlements) or 9622(h) of this title (relating to cost
recovery settlements) or entry of a judicially
approved settlement with respect to such costs or
damages.
(4) Subrogation
No action based on rights subrogated pursuant to
this section by reason of payment of a claim may be
Tla
commenced under this subchapter more than 3 years
after the date of payment of such claim.
(5) Actions to recover indemnification payments
Notwithstanding any other provision of this sub-
section, where a payment pursuant to an indemnifi-
cation agreement with a response action contractor is
made under section 9619 of this title, an action under
section 9607 of this title for recovery of such
indemnification payment from a potentiaily respon-
sible party may be brought at any time before the
expiration of 3 years from the date on which such
payment is made.
(6) Minors and incompetents
The time limitations contained herein shall not begin
to run—
(A) against a minor until the earlier of the date
when such minor reaches 18 years of age or the
date on which a legal representative is duly ap-
pointed for such minor, or
(B) against an incompetent person until the
earlier of the date on which such incompetent's in-
competency ends or the date on which a legal
representative is duly appointed for such incom-
petent.
(h) Timing of review
No Federal court shall have jurisdiction under Federal!
law other than under section 1332 of Title 28 (relating
to diversity of citizenship jurisdiction) or under State
law which is applicable or relevant and appropriate
under section 9621 of this title (relating to cleanup
standards) to review any challenges to removal or
72a
remedial action selected under section 9604 of this title,
or to review any order issued under section 9606(a) of
this title, in any action except one of the following:
(1) An action under section 9607 of this title to
recover response costs or damages or for
contribution.
(2) An action to enforce an order issued under
section 9606(a) of this title or to recover a penalty for
violation of such order.
(3) An action for reimbursement under section
9606(b)(2) of this title.
(4) An action under section 9659 of this title
(relating to citizens suits) alleging that the removal
or remedial action taken under section 9604 of this
title or secured under section 9606 of this title was in
violation of any requirement of this chapter. Such an
action may not be brought with regard to a removal
where a remedial action is to be undertaken at the
site.
(5) An action under section 9606 of this title in
which the United States has moved to compel a
remedial action.
(i) Intervention
In any action commenced under this chapter or under
the Solid Waste Disposal Act [42 U.S.C.A. § 6901 et
seq.] in a court of the United States, any person may
intervene as a matter of right when such person claims
an interest relating to the subj
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