Reply Brief — United States v. Atlantic Research Corp.
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267 _ Suprame Court, U.S. bey
lA FILED
au oo
ol 0 | APR 13 2007
Ab.
APY \_OFFICE OF THE cere: |
No. 06-562
Jn the Supreme Court of the Cinited States
UNITED STATES OF AMERICA, PETITIONER
v.
ATLANTIC RESEARCH CORPORATION
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
REPLY BRIEF FOR THE UNITED STATES
PAUL D. CLEMENT
Solicitor General
Connusel of Record
Department ot Justice
Weshingtow, D.C. 20520-0001
(20.2) 314-2217
TABLE OF CONTENTS
A. Section 107(a)(1)-(4)(B) does not permit
responsible parties to sue for cost recovery ........ 2
B. Respondent’s interpretation cannot account
for Section 113(f), which provides the exclusive
mechanisms by which a potentially responsible
party can sue another under CERCLA ............ 8
C. Section 107(a) does not create an implied right to
contribution separate and apart from the explicit
contribution remedy set forth in Section 113(f) .... 12
D. The structure and purpose of CERCLA and
SARA do not permit a potentially responsible
party to sue another potentially responsible
party to recover cleanup costs ................5-. 13
TABLE OF AUTHORITIES
Cases:
Allied Towing Corp. v. Great E. Petroleum Corp.,
642 F. Supp. 1339 (E.D. Va. 1986) .............-..... i)
Artesian Water Co. v. Government of New Castle
County, 605 F. Supp. 1348 (D. Del. 1985) ............ i)
Barnhart v. Thomas, 540 U.S. 20 (2003)... 2.2. ......006. 4
Block v. North Dakota, 461 U.S. 273 (1983) ............- 8
City of Rancho Palos Verdes v. Abrams, 544 U.S. 113
SE kk NAdadbcsdks eben eedenekenbaweseeonnanes 14
Consolidated Edison Co. of N.Y., Ine. v. UGI Utils.,
Ine., 423 F.3d 90 (2d Cir. 2005), petition for cert.
pending, No. 05-1323 (filed Apr. 14, 2006) ........ 13, 14
Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157
GE ovo cos cc cencciusinéccsvececsevesecssecs 2, 5, 16
II
Cases—Continued: Page
D’Imperio v. United States, 575 F. Supp. 248 (D.N_J.
ET Sach eeasdh betas iabkn ash baenewanendde wes 9
E.1. du Pont de Nemours & Co. v. United States,
460 F.3d 515 (3d Cir. 2006), petition for cert.
pending, No. 06-726 (filed Nov. 21, 2006) ............ 19
Harrison v. PPG Indus., Inc., 446 U.S. 578 (1980) ....... 4
Jones v. Inmont, 584 F. Supp. 1425 (S.D. Ohio 1984) ..... )
Key Tronic Corp. v. United States, 511 U.S. 809
Ds iiitunsbenisedeeasmedeienenineennineedees 5
Metropolitan Water Reclamation Dist. v. North Am.
Galvanizing & Coatings, Inc., No. 05-3299, 2006
WL 1354188 (7th Cir. filed May 1, 2006) ............. 5
United States v. BP Amoco Oil PLC, 277 F.3d 1012
(8th Cir.), cert. denied, 537 U.S. 942 (2002) .......... 15
United States v. Davis, 261 F.3d 1 (1st Cir. 2001) ....... 15
United States v. Estate of Romani, 523 U.S. 517
Db sue nhdnniebbatadndeeeeleanedess eeeeeesdes 10
United States v. Fausto, 484 U.S. 439 (1988) ........... 10
United States v. New Castle County, 642 F. Supp.
EE cdc vudcn dean ecareentekeunes 9
United States v. Southeastern Pa. Transp. Auth.,
SOG F Bd GET GG Cie. BOGB) ow wc ccccccccccccsccsece 15
/nited Techs. Corp. v. Browning-Ferris Indus.,
33 F.3d 96 (1st Cir. 1994), cert. denied, 513 U.S.
SEE cna dicn di wbedeaeibedenehhedkhbeee keane 15
Walls v. Waste Res. Corp., 761 F.2d 311 (6th Cir.
SE Suture din kad ekduensen bbs teh adeseendaedienns 9
Wicklavid Oil Terminals v. Asarco, Ine., 792 F.2d 887
eee ss]
Ill
Statutes and regulation: Page
Act of Dee. 11, 1980, Pub. L. No. 96-510, 94 Stat.
roo)» eee pe edeannes 4
Comprehensive Environmental Response,
Compensation, and Liability Act of 1980,
42 U.S.C. 9601 et seq.:
§ 101(35), 42 U.S.C. 9601(35) (Supp. II] 2003) ...... 5
§ 101(40), 42 U.S.C. 9601(40) (Supp. III 2003) ..... 5
Pe ED eb cdccncgecccccenceis 7,14, 18
§ 106(b)(1), 42 U.S.C. 9606(b)(1) . 0... eee eae 18
§ 106(b)(2)(C), 42 U.S.C. 9606(b)(2)(C) .. 2.0.2.2... 7
De eT 45 G6N5s dn stencnecanedesnses 1
§ 107(a), 42 U.S.C. 9607(a) ........... 2 eee passim
§ 107(a)(1)-(4), 42 U.S.C. 9607(a)(1)-(4) «2.0.2... 3,4
§ 107(a)(1)-(4)(A), 42 U.S.C.
9607(a)(1)-(4)(A) ...........0.0.. 2, 3, 4, 7, 16, 18
§ 107(a)(1)-(4)(B), 42 U.S.C. 9607(a)(1)-(4)(B) passim
§ 107(b)(3), 42 U.S.C. 9607(b)(3) ... 2.6.6... eee eee 5
§ 107(r)(1), 42 U.S.C. 9607(r)(1)
EE vdvteccesscudassdabnedvcdnces 5
DERI Ge MERE vv weccccscecccccsesess 6
§ 111(a)(1), 42 U.S.C. 9611(aXl) ... 22... eee 6
§ 111(a)(2), 42 U.S.C. 9611 (a2) .. 2.2... 6
§ 113(f), 42 U.S.C. 9612%(f) ................. passim
§ 113(f)(1), 42 U.S.C. 9613(N0) 2.2... ee. 11, 12,18
§ 113(f)(2), 42 U.S.C. 9613(f)(2) ............... 1,15
§ 113(f)(3)(B), 42 U.S.C. 9613(f)3)(B) .... 6, 14, 17, 18
§$ 113(g)(3), 42 U.S.C. 9613(g (3) 0.2.2.2... 14, 15
§ 120(a)(1), 42 U.S.C. 9620(a)(1) «0.2... 20
IV
Statutes and regulation—Continued: Page
Ark. Code Ann. §§ 8-7-501 et seq. (2000) .............. 19
40 C.F.R.:
Section 300.700(¢)(2) ..........0008. mis heweeened cane 7
ED occvenceandavdisecacccheses 7
ns iced evenusaesieveaceawade 6
Miscellaneous:
131 Cong. Rec. (1985):
LON ENE RNT OT ORE EOD 17
EE SRT aes Cae ne 16
el TERS er PL 17
Envt’'l L. Inst., An Analysis of State Superfund
Programs: 50 State Study (1998) <www.
elistore.org/reports_detail.asp?ID=436> ........... 19
EPA, Memorandum of Agreement (MOAs) on State
Voluntary Cleanup Program (VCPs) (Dee. 22,
2006) <www.epa. gov/brownfields/html-
ED - cnn de cakbndienencenebhiaeewes 19
H.R. Rep. No. 253, 99th Cong., Ist Sess. Pt. 1 (1985) .... 10
Memorandum from Susan E. Bromm, Director, Office
of Site Remediation Enforcement, EPA, and Bruce
S. Gelber, Chief Environmental Enforcement
Section, Environment and Natural Resources
Division, Department of Justice (Aug. 3, 2005)
<http://www.epa.gov/compliance/resources/
policies/cleanup/superfund/interim-rev-aoc-mod-
DE. na cuckessescenwasaedhavenadeseccece 18, 19
Miscellaneous—Continued: Page
S. 1480, 96th Cong., 2d Sess.:
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REPLY BRIEF FOR THE UNITED STATES
According to respondent (Br. 4, 28), “all” potentially re-
sponsible parties (PRPs) can sue other PRPs for cost recov-
ery under Section 107(a)(1)-(4)(B) of CERCLA. As the gov-
ernment has explained, however, that interpretation is incon-
sistent with the text and structure of Section 107(a). It would
also render Section 113(f) essentially superfluous, negating
Congress’s decision to create an express and carefully delim-
ited contribution remedy for PRPs, and frustrating Con-
gress’s clear intent to provide powerful incentives to encour-
age PRPs to settle voluntarily with the government and per-
form government-supervised cleanups.
Apparently recognizing the unacceptable anomalies cre-
ated by its interpretation, respondent urges the Court to elim-
inate some of those difficulties by the simple expedient of
devising an altogether different scheme from the one enacted
by Congress. Thus, notwithstanding the established principle
that Section 107(a) imposes joint and several liability on
PRPs, respondent urges the Court to dispense with that prin-
ciple when PRPs bring suit, and instead to fashion remedies
that would effectively transform such PRP suits into actions
for contribution—albeit ones brought by litigants who do not
qualify as contribution plaintiffs under either the traditional
understanding of contribution or the express terms of Section
113(f). Faced with the unpleasant fact that its interpretation
would demolish the carefully crafted settlement bar that Con-
gress erected in Section 113(f)(2), respondent offers the fur-
ther antidote that the courts should simply conjure up a new,
broader settlement bar that would apply to Section 107 ac-
tions as well. All of this legislative tinkering might be a rea-
sonable proposal to Congress, but it is too much to ask of this
Court. In effect, respondent invites this Court to authorize
the wholesale rewriting of the remedial scheme enacted by
Congress so as to overturn the result in Cooper /ndustries,
(1)
2
Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004), which in-
- voked a straightforward application of the statutory text. The
Court should apply the normal rules of statutory construction
and reject respondent’s invitation.
A. Section 107(a)(1)-(4)(B) Does Not Permit Responsible Par-
ties To Sue For Cost Recovery
1. Section 107(a)(1)-(4)(B) provides that all persons in four
enumerated categories (7.e., PRPs) shall be liable for “any
other necessary costs of response incurred by any other per-
son consistent with the national contingency plan” (NCP). 42
U.S.C. 9607(a)(1)-(4)(B). The better reading of the phrase
“any other person” is that it excludes the “persons” previ-
ously referred to in the same statutory sentence, 7.e., the
PRPs that are the sentence’s subject. The various textual
arguments of respondent and its amici to the contrary are
unavailing.
Respondent primarily contends (Br. 7-8) that Section
107(a)(1)-(4)(B) should be read in parallel with Section
107(a)(1)-(4)(A), and that, under that reading, the phrase “any
other person” in Section 107(a)(1)-(4)(B) necessarily excludes
only the persons who are entitled to bring suit under Section
107(a)(1)-(4)(A): ie., “the United States Government or a
State or an Indian tribe.” Such a reading would be possible
(although not compelled) if Section 107(a)(1)-(4)(A) and (B)
provided alternative causes of action for the recovery of the
same costs, as respondent contends (Br. 11). But in fact Sec-
tion 107(a)(1)-(4)(A) and (B) provide for recovery of mutually
exclusive costs. While Section 107(a)(1)-(4)(A) permits recov-
ery of “all costs of removal or remedial action * * * not in-
consistent with the national contingency plan,” 42 U.S.C.
9607(a)(1)-(4)(A), Section 107(a)(1)-(4)(B) permits recovery
only of “any other necessary costs * * * consistent with the
national contingency plan”: /.e., costs other than the costs of
governmental entities described in Section 107(a)(1)-(4)(A).
3
42 U.S.C. 9607(a)(1)-(4)(B) (emphasis added). Because the
“other necessary costs” language already precludes govern-
mental entities from suing under Section 107(a)(1)-(4)(B), re-
spondent’s reading would render the word “other” in the
phrase “any other person” entirely superfluous—in contra-
vention of the rule that every word in a statute should be
given some operative effect. '
Respondent acknowledges (Br. 10-11) that, while a prior
version of the language that would become Section 107(a)(1)-
(4) authorized “any person” to bring suit for “any other costs”
besides those incurred by a governmental entity, see S. 1480,
96th Cong. § 4(a) (as reported, Nov. 18, 1980), a substitute bill
replaced the phrase “any person” with “any other person.”
See S. 1480, 96th Cong. § 107(a)(1)-(4)(B) (as amended, Nov.
21, 1980) (emphasis added). Respondent and its amici, how-
ever, offer no explanation for that change, other than to char-
acterize it as a “minor stylistic change” or “mere drafting
edit{ |.” Lockheed Br. 17. But words have meaning, and “any
other person” plainly does not mean the same thing as “any
person.” Because the prior version of the bill, by limiting
recovery to “other” costs, already unambiguously prevented
governmental entities from recovering under Section
107(a)(1)-(4)(B), there was no need for Congress to “clarify”
that governmental entities could not recover under that provi-
sion. And while respondent correctly notes (Br. 11) that there
was no discussion of that change in the legislative history,
' Respondent notes (Br. 8) that, by permitting recovery of costs that are
consistent with the NCP. rather than costs that are not inconsistent with the
NCP, Section 107(a)(1)-(4)(B) has been read to place the burden on the plaintiff
on the issue of consistency. That is true, but it does nothing to support
respondent's view that “any other person” excludes only the governmental
entities included in Section 107(a)(1)-(4)(A). Those entities could not have sued
under Section 107(aX 1)-(4)(B) in any event—nor would they have any incentive
to do so even if they could. given that it is more difficult to recover (and fewer
costs are recoverable) under Section 107(a)(1)-(4)(B) than under Section
107(a1)-(4)(A).
4
that fact is neither dispositive, see, e.g., Harrison v. PPG
Indus., Inc., 446 U.S. 578, 592 (1980), nor surprising, in light
of the fact that the Senate passed the substitute bill on the
Monday following the Friday on which it was introduced. See
Pub. L. No. 96-510, 94 Stat. 2811. The history of Section
107(a)(1)-(4)(B) thus underscores that the inclusion of the
word “other” was purposeful and confirms that the phrase
“any other person” was intended to exclude PRPs, rather
than (already excluded) governmental entities.
Contrary to respondent’s contention (Br. 12), the “rule of
the last antecedent” does not compel a different interpreta-
tion. As a preliminary matter, it is questionable whether that
rule even applies here, because it provides only that an adjec-
tival clause or phrase should be read to modify the noun that
it immediately follows. See Barnhart v. Thomas, 540 U.S. 20,
26 (2003). The adjective “other,” by contrast, plainly modifies
the noun that it precedes, “person,” and the relevant question
is thus not what the adjective “other” modifies, but instead to
what it refers (and thereby excludes). Even assuming, how-
ever, that the rule could be relevant here, this Court has ob-
served that the rule “is not an absolute and can assuredly be
overcome by other indicia of meaning.” /bid. Here, in partic-
ular, the rule should not be read to trump the more fundamen-
tal rule against rendering statutory terms superfluous. Be-
cause the word “other” in the phrase “other necessary costs”
already forecloses the possibility that the governmental enti-
ties enumerated i Section 107(a)(1)-(4)(A) could seek relief
under Section 107(a)(1)-(4)(B), the only construction that
gives meaning to the word “other” in the phrase “any other
person” is one in which “other” refers to (and excludes) the
PRPs listed earlier in Section 107(a)(1)-(4).
Respondent’s amici contend that Section 107(a)(1)-(4)(B)
should not be limited to suits by “innocent” private parties
because the number of parties that would fall into that cate-
gory would be “minuscule.” See, e.g., Consolidated Edison Br.
5
13. But even a modest role for a statutory provision is better
than none at all (which is what respondent’s view leaves the
term “other”). Moreover, it is incontrovertible that Section
107(a)(1)-(4)(B) can be invoked by at least two important
classes of private parties that would qualify as PRPs but for
specific statutory exclusions: (1) parties that can show that
the release of a hazardous substance was caused solely by the
act or omission of a third party, see 42 U.S.C. 9601(35),
9607(b)(3); and (2) parties that can satisfy the statutory re-
quirements for a “bona fide prospective purchaser,” see 42
U.S.C. 9601(40), 9607(r)(1) (Supp. II] 2003). Indeed, some of
respondent’s amici concede that they would usually be able to
bring suit under the government’s interpretation of Section
107(a)(1)-(4(B). See ACWA Br. 16. When properly construed
to permit only non-PRP private parties to bring suit, Section
107(a)(1)-(4)(B) thus has substantial operative effect.’
* Respondent (Br. 5-6, 30) and its amici contend that the United States has
taken conflicting positions concerning the availability of a cause of action for
PRPs under Section 107(a)(1)-(4)(B). In reality, the United States has
consistently maintained, in keeping with the unanimous view of the courts of
appeals before this Court’s decision in Cooper Industries, that Section 113(f)
governs the procedures by which one PRP can sue another under CERCLA.
See, ¢.g., U.S. Br. at 21, Cooper Industries, supra (No. 02-1192) (stating that,
“{wJhen read in combination, the clear implication of Section 107(a)(1)-(4)(B)
and Section 113 is that the jointly liable party is limited to seeking contribution
in the manner authorized by Section 113(f)”). In light of seemingly contrary
suggestions in Aey Tronic Corp. v. United States, 511 U.S. 809, 818 & n.11
(1994), the United States did not specifically argue before this Court’s decision
in Cooper Industries that the plain text of Section 107(a)(1)-(4)(B) forecloses
one PRP from bringing suit against another. Once Cooper Industries clarified
that the suggestions in Key Tronic constituted dictum (see 543 U.S. at 170),
however, the United States reexamined the statutory text and concluded that
Section 107(a)(1)-(4)(B) does not confer a cause of action on PRPs. See, ¢.g.,
US. Br. at 9-11, Metropolitan Water Reclamation Dist. v. North Am.
Galvanizing & Coatings, Inc., No. 05-3299, 2006 WL. 1354188 (7th Cir. filed
May 1, 2006).
6
2. All of the other arguments advanced by respondent and
its amici in support of their construction of Section 107(a)(1)-
(4)(B) also lack merit.
Respondent contends (Br. 20-21) that the phrase “any
other person” in Section 107(a)(1)-(4)(B) should be construed
as including PRPs because the same phrase appears, and is so
construed, in Section 111(a). That provision specifies that the
- Hazardous Substances Superfund should be used for, inter
alia, “[pjayment of governmental response costs,” 42 U.S.C.
9611(a)(1), and “[playment of any other claim for necessary
response costs incurred by any other person,” subject to gov-
ernment authorization, 42 U.S.C. 9611(a)(2) (emphasis added).
Section 111(a)(2), however, critically differs from Section
107(a)(1)-(4)(B) because the word “other” in the former provi-
‘sion must refer to the governmental entities that are implic-
itly mentioned in the previous paragraph; there is no other
possible referent. The content of the term “other” obviously
varies depending on the surrounding text and the universe of
potential referents.’
Respondent relies (Br. 21-23) on regulations promulgated
by EPA, but those regulations are consistent with the view
that PRPs that cannot seek contribution under Section 113(f)
have no remedy under Section 107(a)(1)-(4)(B). Indeed, the
most relevant provision states that “[rjesponsible parties shall
be liable for necessary costs of response actions * * * in-
* There is no incongruity in permitting PRPs to recover response costs from
the Superfund while preventing them from bringing suit against other PRPs
absent an untlerlying suit or settlement. Private parues can seek Superfund
reimbursement only with respect to costs that have been ‘approved under [the
NCP] and certified by the responsible Federal official,” 42 U.S.C. 9611(a)(2),
and the relevant regulation provides that the &. PA may authorize a PRP’s claim
“only in accordance with an order issued pursuant to [Slection 106 * * * or
a settlement with the federal government in accordance with [Sjection 122.”
40 C.F.R. 300.700(d)(5). Settling PRPs—inecluding PRPs that enter into
appropriate administrative consent orders with FPA under Section 106-—would
generally have the right to seek contribution under Section 113(13)(B).
7
curred by any other person consistent with the NCP.” 40
C.F.R. 300.700(¢c)(2) (emphasis added). The word “other” in
the phrase “any other person” necessarily refers to (and
thereby excludes) the “(rJesponsible parties” that are the
subject of the sentence. While another provision, 40 C.F.R.
300.700(c)(3)(ii), states that a response action carried out in
compliance with a Section 106 order or a Section 122 consent
decree “will be considered ‘consistent with the NCP’” for
purposes of cost recovery under Section 107(a)(1)-(4)(B), it
does not follow that PRPs that are ineligible for Section 113(f)
relief can bring suit under Section 107(a)(1)-(4)(B). A private
party can be subject to an administrative order under Section
106 even if it is not a PRP, see 42 U.S.C. 9606(b)(2)(C), and, in
any event, to the extent that Section 107(a)(1)-(4)(B) imposes
the underlying liability that is a necessary predicate for a
contribution claim under Section 113(f),* the regulation simply
makes clear that, when a PRP is entitled to obtain contribu-
tion for cost recovery pursuant to Section 113(f), it may re-
cover any costs covered by that regulation without having to
burden itself (and the courts) with the necessity of proving
consistency with the NCP—often a costly, complex, and time-
consuming matter that is best resolved through administra-
tive expertise rather than the unnecessary expenditure of
judicial resources.
Finally, respondent argues (Br. 26) that CERCLA was
intended to “make those responsible for the contamination
py for the cleanups.” It does not follow, however, that Con-
* Absent a discharge of liability by judgment or settlement with the govern-
ment, PRPs always retain shared liability to the government for cleaning up
(or paying for the cleanup) of their contaminated sites, regardless whether any
private party has a cause of action under Section 107(aX1)44)(B). See 42
U.S.C. 9606, 9607(a)11)-(4)(A). Respondent thus errs in contending (Br. 2, 5-6)
that PRPs have no CERCLA liability until another party has incurred re-
sponse costs. Any PRP that has not discharged its liability to the government
qualifies as a “person who is liable or potentially liable” under Section 106 or
107(a), and can therefore be sued under Section 113(f) by qualifying plaintiffs.
8
gress intended to permit any PRP to sue any other PRP for
cost recovery at any time, even when the plaintiff has not yet
resolved its own CERCLA liability. The government’s read-
ing of Section 107(a)(1)-(4)(B) fully effectuates CERCLA’s
purposes, and does so in an orderly fashion, by allowing gov-
ernment enforcement agencies to settle with (or take action
against) PRPs before those PRPs can sue others for contribu-
tion, thereby encouraging settlements and supervised clean-
ups.
B. Respondent’s Interpretation Cannot Account For Section
113(f), Which Provides The Exclusive Mechanisms By
Which A Potentially Responsible Party Can Sue Another
Under CERCLA
That Cooper /udustries reserved the question in this case
while construing Section 113(f) does not mean that Section
113(f) is irrelevant to the question here. To the contrary,
that express statutory contribution provision fatally under-
mines the plausibility of respondent’s proposed construction.
Under respondent’s reading, Section 113(f)’s interlocking
remedial scheme for PRPs would be rendered largely super-
fluous, and Congress’s goal of encouraging settlement with
the government would be frustrated. The better view is that
Section 113(f) provides the exclusive mechanisms by which
one PRP can bring suit against another under CERCLA, and
respondent's contrary arguments lack merit.
1. Respondent fails to come to grips with the established
principle that, in the context of remedial statutes, “a precisely
drawn, detailed statute pre-empts more general remedies.”
Block v. North Dakota, 461 U.S. 273, 285 (1983). It would
have been peculiar if Congress, in enacting SARA, had sup-
plied PRPs with an express cause of action for contribution
(and explicitly addressed and resolved a variety of second-
order issues such as the effect of settlement in those actions),
but not a broader express cause of action for cost recovery, if
9
it intended to permit PRPs to pursue the latter (as well as the
former) type of action.
Respondent repeatedly asserts (Br. 1, 16 n.8, 19, 23, 28, 29,
30, 43, 46) that lower courts have unanimously held that one
PRP can bring suit against another for cost recovery under
Section 107(a)(1)-(4)(B). Respondent thereby seemingly sug-
gests that, because it was allegedly undisputed that one PRP
could bring suit against another for cost recovery under Sec-
tion 107(a)(1)-(4)(B) at the time Congress enacted SARA,
Congress operated on that assumption, and left that right
undisturbed, in providing an express cause of action only for
contribution in Section 113(f). Respondent and its amici,
however, utterly fail to identify the supposed plethora of cases
in which lower courts held, prior to Congress’s enactment of
SARA, that one PRP could bring suit against another for cost
recovery under Section 107(a)(1)-(4)(B). Instead, as previ-
ously noted (U.S. Br. 28), only a few district court cases had
so held.”
On the other hand, at least one district court had concluded
that a PRP did not have a right to cost recovery under Section
107(a)(1)-(4)(B). See D’Imperio v. United States, 575 F. Supp.
* While respondent (Br. 10 nn.4 & 5) and its amici cite numerous cases,
almost all of those cases are distinguishable on the grounds that (1) the case
was decided after Congress enacted SARA in 1986 (and thus could not have
informed Congress's understanding of Section 107(a)); (2) the court simply
assumed, without analysis, that a PRP was entitled to bring suit under Section
107(a)(1)-(4)(B), see Allied Towing Corp. v. Great Eastern Petroleum Corp.,
642 F. Supp. 1339, 1348-1349 (E.D. Va. 1986); (3) it was unclear whether the
plaintiff had first been sued or reached a settlement (and was therefore suing
for contribution), see Wickland Oil Terminals v. Asarco, lnc., 792 F.2d 887,891
(9th Cir. 1986); (4) the plaintiff was or may have been an “innocent” party
rather than a PRP, see Walls v. Waste Res. Corp., 761 F.2d 311, 314 (6th Cir.
1985); Artesian Water Co. v. Government of New Castle County, 605 F. Supp.
1348, 1356-1357 (D. Del. 1985): Jones v. Jnmont, 584 F. Supp. 1425, 1427 (S.D.
Ohio 1984); or (5) the reference to PRP suits for cost recovery under Section
107(a)(1)-(4XB) was mere dictum, see United States v. New Castle County, 642
F. Supp. 1258, 1262-1264 (D. Del. 1986).
10
248, 253 (D.N.J. 1983). Because it was far from settled that
one PRP could sue another for cost recovery under Section
107(a)(1)-(4)(B) at the time Congress enacted SARA, the rele-
vant question is not whether Congress impliedly repealed
Section 107(a)(1)-(4)(B) by enacting Section 113(f). Instead,
it is whether, when Seetion 107(a) and Section 113(f) are read
together, the text of Section 113(f) suggests that a PRP is not
entitled to bring suit under Section 107(a)(1)-(4)(B)—and the
answer to that question is plainly yes. See United States v.
Estate of Romani, 523 U.S. 517, 530 (1998); United States v.
Fausto, 484 U.S. 439, 453 (1988).
The legislative history of SARA, moreover, supports the
conclusion that Congress did not intend to permit a broader
and amorphous implied cause of action for cost recovery to
coexist with (and largely supplant) the narrow and carefully
defined express cause of action for contribution that it sup-
plied in SARA. Respondent does not so much as cite, much
less explain, the report of the House Energy and Commerce’
Committee, which the United States emphasized in its open-
ing brief (at 29). That report states 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,” without men-
tioning any corresponding “right” of private PRPs. H.R. Rep.
No. 253, 99th Cong., Ist Sess. Pt. 1, at 79-80 (1985) (emphasis
added). That legislative history indicates that, in enacting
Section 113(f), Congress was operating on the assumption
that a PRP could not pursue an action against another PRP
for cost recovery under Section 107(a)(1)-(4)(B).
2. Respondent contends (Br. 4, 28) that “all” PRPs can sue
other PRPs for cost recovery under Section 107(a)(1)-(4)(B).
Under that view, of course, Section J13(f) is rendered entirely
superfluous, because any PRP that paid response costs could
sue directly under Section 107(a)(1)-(4)(B), regardless of
whether it would qualify to bring a contribution action under
Section 113(f). Respondent does not even attempt to justify
11
the absurd notion that Congress engaged in an entirely point-
less and futile act in drafting Section 113(f) (and that this
Court engaged in a similarly futile act in Cooper Industries in
holding that the “during or following any civil action” limita-
tion in Section 113(f)(1) means what it says).
At other points (e.g., Br. 19), respondent seems to assume,
as did the court of appeals (Pet. App. 17a), that only “volun-
tary remediators” could sue under Section 107(a)(1)-(4)(B),
and that PRPs that made the mistake of settling with the gov-
ernment would be relegated to the contribution remedy pro-
vided by Section 113(f). Respondent does not, however, at-
tempt to justify that atextual limitation on suits under Section
107(a)(1)-(4)(B), which is patently inconsistent with respon-
dent’s reading of the “any other person” phrase. For their
part, respondent’s amici concede that, in order to adopt that
limitation, this Court would have to “create an implied excep-
tion in [Section 107(a)(1)-(4)(B)].”. NRDC Br. 21 n.26.° Even
if the Court were to engage in such radical statutory surgery,
however, it would not cure the fundamental infirmity with the
court of appeals’ reading: 7.¢., that a PRP could always cir-
cumvent Section 113(f)’s requirement of a pending or com-
pleted Section 106 or 107(a) action simply by bringing suit
under Section 107(a)(1)-(4)(B).
° In an effort to obviate the need to “create an implied exception,” NRDC
suggests that, at the time Congress enacted SARA, it was “at best ambiguous”
whether Section 107(a)(1)-(4\ B) conferred a right to contribution, even though
Section 107(a)(1)-(4B) “unambiguously provided * * * a right |to cost
recovery] to those who engaged in voluntary cleanups.” Br. 20. Because
contribution is merely a form of cost recovery (and, indeed, the form with
firmer common law roots), however, and because the purportedly sweeping
preexisting cause of action for cost recovery would (if it had in fact existed)
have obviated any need to supply the narrower contribution remedy enacted
in Section 113(f), it could not have been clear before SARA’s enactment that
one PRP could bring suit against another under Section 107(a1)-(4\(B) for cost
recovery, vet simultancously unclear whether one PRP could bring suit against
another under Section 107(a)(1)-(4)(B) for contribution.
12
3. Finally, respondent apparently concedes (Br. 48) that,
at least to the extent that it is deemed a “voluntary” rather
than “compelled” remediator, its claim does not qualify as a
claim for “contribution” that could be saved by the savings
clause in Section 113(f)(1). Respondent is correct to make
that apparent concession, because the savings clause merely
preserves the ability of a PRP to bring an action for contribu-
tion (as that concept is traditionally defined) under any other
provision of law, including state law. See 42 U.S.C. 9613(f)(1).
The savings clause does not purport to “save” any supposed
cause of action for PRPs under Section 107(a)(1)-(4)(B), as it
would have done if Congress had intended PRPs to have such
a remedy.
C. Section 107(a) Does Not Create An Implied Right To Con-
tribution Separate And Apart From The Explicit Contri-
bution Remedy Set Forth In Section 113(f)
Respondent makes no serious effort to defend the court of
appeals’ alternative holding that Section 107(a) contains an
implied right to contribution, distinct from the cause of action
for cost recovery contained in Section 107(a)(1)-(4)(B). Pet.
App. 15a. In particular, respondent offers no response to the
argument that Section 107(a) is best read as not giving rise to
an implied right to contribution at all. Nor does respondent
refute the point that any implied right of contribution would,
at most, authorize contribution in its traditiona! sense.
Instead, respondent contends (Br. 45) only that, “{iJn the
event that [it] is somehow deemed a ‘compelled remediator,’”
it should be entitled to avail itself of an implied right to con-
tribution. Even assuming that Section 107(a) contained an
implied right to contribution, however, the relevant question
would not be whether a PRP had incurred cleanup Costs under
some form of “compulsion”—or, as respondent alternatively
suggests (Br. 48), whether the PRP’s actions “result{ed] in a
complete cleanup”—but rather whether the PRP had extin-
13
guished its common liability to a third party through suit or
settlement. Respondent does not explain how it could qualify
to seek contribution notwithstanding the fact that it has indis-
putably not been subject to suit (or reached a settlement) with
regard to the costs it seeks to recover. As a result, respon-
dent cannot avail itself of any implied right to contribution
under Section 107(a).
D. The Structure And Purpose Of CERCLA And SARA Do
Not Permit A Potentially Responsible Party To Sue An-
other Potentially Responsible Party To Recover Cleanup
Costs
Respondent offers no valid response to the argument that
its reading of Section 107(a)(1)-(4)(B) would undermine Con-
gress’s goals, in enacting CERCLA and SARA, of promoting
government-supervised cleanups and encouraging PRPs
promptly to settle with the government.
1. Respondent disputes the proposition (Br. 39) that, under
its reading of Section 107(a)(1)-(4)(B), a PRP that has not yet
been sued under Section 106 or 107(a) may have incentives
-not to settle with the government, in order to preserve its
right to sue other PRPs under the substantially more gener-
ous provisions of Section 107(a)(1)-(4)(B) rather than Section
113(f). Respondent’s arguments lack merit.
“irst, notwithstanding the settled principle that Section
107(a) imposes joint and several liability on PRPs (in keeping
with its plain text, which makes PRPs liable for “any” qualify-
ing response costs), respondent contends (Br. 7) that, when
(but only when) a PRP is the plaintiff, Section 107(a) should
instead “impose several liability only, just as in the contribu-
tion remedy provided by § 113(f).” Respondent offers no tex-
tual basis for that inconsistent treatment, which has seem-
ingly been rejected even by courts that have adopted respon-
dent’s reading of Section 107(a)(1)-(4)(B). See Pet. App. 15a;
Consolidated Edison Co. of New York, Inc. v. UGT Utils.,
14
Inc., 423 F.3d 90, 100 n.9 (2d Cir. 2005), petition for cert.
pending, No. 05-1323 (filed Apr. 14, 2006). Under the ap-
proach favored by those courts, however, a PRP could sue
another PRP for joint and several liability, thereby placing
the burden on the defendant PRP to pursue (and prove) a
counterclaim against the plaintiff PRP simply in order to
avoid paying for the plaintiff PRP’s share of the costs.
In any event, it is uncertain whether even respondent’s
approach would entirely eliminate the burden on defendant
PRPs, because a defendant PRP might still be required to
pursue third-party claims for contribution against other PRPs
in order to avoid paying for their shares. By proposing an
atextual limitation on a PRP suit for cost recovery under Sec-
tion 107(a)(1)-(4)(B) comparable to the textual limitation that
Congress did impose on a PRP suit for contribution under
Section 113(f), respondent makes clear that it seeks nothing
less than to circumvent Section 113(f)’s requirement of a
pending or completed Section 106 or 107(a) action through the
simple expedient of bringing an action under Section
107(a)(1)-(4)(B). Respondent cannot simply borrow the sub-
sidiary aspects of Section 113(f) in order to make its Section
107(a) action workable without also borrowing the major limi-
tation of Section 113(f), which makes clear that respondent |
has no viable action. Cf. City of Rancho Palos Verdes v.
Abrams, 544 U.S. 113, 125 (2005) (rejecting attempt to “bor-
row” only statute of limitations, but not other limitations, of
a specific statutory cause of action).
Second, respondent claims (Br. 31) that PRPs permitted to
sue under Section 107(a)(1)-(4)(B) would not receive a poten-
tially more favorable limitation period, because actions for
“first instance response costs” are never subject to the three-
year limitation period for actions for contribution in Section
113(g)(3), even when asserted by a contribution plaintiff. Re-
spondent is mistaken. Contribution is available for “first in-
stance” response costs, see 42 U.S.C. 9613(f)(3)(B); United
15
Techs. Corp. v. Browning-Ferris Indus., 33 F.3d 96, 101-102
(1st Cir. 1994), cert. denied, 513 U.S. 1183 (1995), and Section
113(g)(3) provides that “[nJjo action for contribution for any
response costs” may be brought outside the three-year limita-
tion period. 42 U.S.C. 9613(g)(3) (emphasis added). Thus, all
contribution claims are subject to the three-year limitation
period, whereas PRPs, if permitted to sue under Section
107(a)(1)-(4)(B), could avail themselves of the potentially more
generous limitation period for cost-recovery claims.
Third, respondent suggests (Br. 38) that, when one PRP
sues another for cost recovery under Section 107(a)(1)-(4)(B),
a court could, “where appropriate,” prohibit the plaintiff PRP
from recovering where the defendant PRP had itself reached
a settlement with the government. It is indisputable, how-
ever, that the settlement bar enacted by Congress in SARA
provides protection only against actions for “contribution,”
not actions for cost recovery. 42 U.S.C. 9613(f)(2).' In pro-
posing (Br. 38) that courts ignore the exrpressio unius princi-
ple and create out of thin air a parallel settlement bar that
would miraculously extend to cost-recovery actions “precisely
the same settlement protection” afforded to contribution ac-
tions by Section 113(f)(2), respondent once again seeks to
borrow complementary parts of Section 113(f) while ignoring
* Amicus Lockheed contends (Br. 25-26) that, because the settlement bar in
Section 113(f2) provides protection only against “claims for contribution
regarding matters addressed in the settlement,” 42 U.S.C. 9613(f)(2) (emphasis
added), it protects only against claims by PRPs that have reimbursed some
portion of the govern ment’s costs and not against claims by PRPs that incurred
response costs of their own. As respondent seemingly recognizes (Br. 37),
however, whether an action for cost recovery implicates “matters addressed in
the settlement” turns on the terms of the settlement agreement itself, and
courts have upheld settlement agreements that protect settling defendants
from contribution claims for response actions being performed by other PRPs.
See, e.g., United States v. BP Amoco Oil PLC, 277 F.3d 1012, 1015, 1020-1021
(Sth Cir.), cert. denied, 537 U.S. 942 (2002); United States v. Davis, 261 F 3d 1,
27-28 (1st Cir. 2001); l/nited States v. Sontheastern Pa. Transp. Auth., 235
F.3d 817, 822-823 (3d Cir. 2000).
16
its major limitation. Statutory construction simply does not
work that way. Respondent’s effort merely confirms that
allowing private PRPs to pursue actions against settling
PRPs would create incentives not only for would-be plaintiff
PRPs not to settle with the government (so as to preserve
their right to sue settling PRPs), but also for would-be defen-
dant PRPs not to settle (because a settling PRP could stiil be
sued by another PRP).*
The Court should see respondent's proposed statutory
rewrites for what they are: viz., an effort to create a shadow
_contribution scheme under Section 107(a)(1)-(4)(B) for PRPs
that cannot satisfy Section 113(f)’s suit-or-settlement require-
ment. “There is no reason why Congress would bother to
specify conditions under which a person may bring a contribu-
tion claim, and at the same time allow [the precise equivalent
of] contribution actions absent those conditions.” Cooper In-
dustries, 543 U.S. at 166.
2. Respondent and its amici suggest that, in enacting
CERCLA and SARA, Congress intended to encourage volun-
tary cleanups of contaminated sites. That is undoubtedly
true, but it does not follow that Congress intended to promote
unsupervised cleanups at the expense of government-super-
vised cleanups pursuant to settlement or suit. Indeed, the
legislative history on which they rely actually confirms that
Congress sought to encourage voluntary cleanups pursuant to
settlements with the government. Thus, respondent cites (Br.
26) Senator Domenici’s statement concerning the importance
of encouraging “voluntary cleanup actions,” 131 Cong. Rec.
24,730 (1985), but omits the very next sentence, which makes
clear that he was referring to voluntary settlement agree-
* As atheoretical matter, of course, settling PRPs remain subject to actions
for cost recovery by “innocent” private parties under Section 107(a)(1)-(4)(B)
and by non-settling sovereigns under Section 107(a)(1)-(4)(A). In practice,
however, the prospect of such actions is likely to be a much smaller deterrent
to settlement than the prospect of actions by other PRPs.
17
ments with the government. See id. at 24,731 (explaining
that, “[u]nder [SARA], the President would be authorized to
enter into agreements with potentiully responsible parties to
conduct remedial actions”). Similarly, amici Browner et al.
cite (Br. 6) Representative Lent’s reference to “a key ground-
breaking structural reform |in SARA] that will encourage
responsible parties to come forward and take responsibility
for cleaning up the toxic waste sites they helped create,” 131
Cong. Rec. 16,573 (1985), but omit the very next sentence,
which makes clear that the “reform” at issue was designed to
encourage settlements with the government. See ibid. (noting
that, “[ijn this bill, we have provided the EPA administrator
with additional authority to expedite settlements * * * so
that responsible parties will no longer ‘hide in the weeds’ and
avoid their responsibility to safeguard the public health and
safety”).
SARA was no doubt motivated by concerns that PRPs were
resisting EPA’s cleanup demands, necessitating costly and
time-consuming litigation. But Congress addressed that con-
cern by creating incentives for PRPs to enter into settlements
with the government. There is no evidence in the legislative
history of either CERCLA or SARA that suggests that Con-
gress intended to allow PRPs to bring suit under Section
107(a) despite the very real danger that such suits would un-
dermine the government-enforcement and settlement regime
established by those statutes.
3. Private PRPs retain-considerable incentives to engage
in cleanups notwithstanding their inability to sue under Sec-
tion 107(a). See U.S. Br. 43. And where a private PRP incurs
substantial response costs and then enters into a settlement
with the federal or state government (and where the PRP can
identify other solvent PRPs with respect to the same facility),
the PRP will generally be able to recover an allocated share
of its costs by bringing an action for contribution under Sec-
tion 113(f)(3)(B).
18
Respondent’s amici suggest that, where EPA compels a
PRP to undertake a response action by means of an adminis-
trative order under Section 106, the PRP would be unable to
seek contribution from other PRPs, because the administra-
tive order would not constitute a “civil action” for purposes of
Section 113(f)(1). But a PRP threatened with issuance of a
Section 106 order has two options, either of which may entitle
it to seek contribution. If the PRP has no objection to the
proposed response action, it can agree with EPA to enter into
a consent order, and EPA has indicated that it will generally
include language in such an order that would render it a “set-
tlement” for purposes of Section 113(f)(3)(B).” On the other
hand, if the PRP objects to the order, it can refuse to comply,
whereupon the United States could bring suit under Section
106(b)(1) or Section 107(a)(1)-(4)(A) (and thereby trigger the
right to seek contribution under Section 113(f)(1)).
Amicus Consolidated Edison also suggests (Br. 4-5) that,
' under the government’s interpretation of © ction 107(a)(1)-
(4)(B), a PRP would have no incentive to settle with a State,
because the State would somehow be disabled from entering
into a qualifying settlement under Section 113(f)(3)(B). It is
hard to see why that is so. While there are various open ques-
tions concerning precisely what a State must do in order to
enter into a qualifying settlement, a State could do so by, at
a minimum, making clear in the settlement that it was releas-
ing its claim for response cost8 under CERCLA. Notably, the
amici States do not embrace Consolidated Edison’s view, but
instead complain only that they would have to divert their
attention from other cleanups upon receiving requests to en-
ter into settlements at other sites. See States Br. 26-28. That
* See Memorandum from Susan EF. Bromm, Director, Office of Site Reme-
diation Enforcement, EPA, and Bruce S. Gelber, Chief, Environmental En-
forcement Section, Environment and Natural Resources Division, Department
of Justice at 2 (Aug. 3, 2005) <http:/Avww.epa.gov/compliance/resources/
policies/cleanup/superfund/interim-rev-aoc-mod-mem.pdf>.
19
concern is overstated, however, given that States can and do
require parties to reimburse the administrative-costs incurred
by States in entering into settlements. Moreover, many
States have established EPA-approved voluntary cleanup
programs in which they commit to ensure that such cleanups
will be conducted in accordance with federal law. See EPA,
Memoranda of Agreement (MOAs) on State Voluntary Clean-
up Programs (VCPs) (Dec. 22, 2006) <www.epa.gov/brown-
fields/html-doc/statemoa.htm>. There is no obvious reason
why States could not enter into settlement agreements with
. private parties that satisfy the terms of those programs.
Wholly apart from any incentives to settle in order to trig-
. ger a federal contribution remedy, PRPs also have powerful
incentives to settle with States because virtually all States can
also pursue PRPs under state law (which often enables PRPs
to obtain contribution from other PRPs as well). See, e.g.,
Environmental Law Institute, An Analysis of State Super-
fund Programs: 50 State Study 7-9, 31-35, 53-57, 139-279
(1998) (listing state statutes) <www.elistore.org/reports_de-
tail.asp?I1D=436>; Ark. Code Ann. §§ 8-7-501 et seq. (2000).
Thus, the government's interpretation of Section 107(a)(1)-
(4)(B) leaves PRPs with considerable incentive and opportu-
nity to enter into settlements with States, and to engage in
cleanups more generally.
4. Finally, respondent renews the contention (Br. 26-27)
that, when federal PRPs are subject to liability, EPA would
forgo enforcement action (and thus insulate those PRPs from
liability for contribution). Respondent, however, does not
dispute the proposition that EPA has repeatedly taken en-
forcement action in those circumstances.’ Respondent’s
’* Respondent's amici contend that the government broke off settlement
negotiations in this case and in FJ. du Pont de Nemours & Co. v. United
States, 460 F.3d 515 (3d Cir. 2006), petition for cert. pending, No. 06-726 (filed
Nov. 21, 2006), in the wake of this Court’s decision in Cooper Industries. But
the plaintiff PRPs were not negotiating with EPA to resolve their own cleanup
liability; rather, they were merely seeking monetary relief from federal PRPs.
20
amici unwittingly confirm that proposition when they cite
statements by EPA officials indicating their commitment to
ensuring that the government abides by its obligations under
CERCLA. See Browner Br. 16-17. Although the United
States does not bring actions against itself in federal court, it
routinely exposes itself to liability by pursuing enforcement
action against private PRPs, and can also be subjected to lia-
bility when state or tribal authorities or “innocent” private
parties take action themselves against PRPs.
The government’s waiver of sovereign immunity in Section
120(a)(1) likewise provides no support for respondent’s posi-
tion. That waiver merely imposes liability on federal PRPs
“to the same extent” as private parties; it does not define the
class of permissible plaintiffs under Section 107(a) (or, for
that matter, any other provision of CERCLA). The argument
that SARA’s waiver of sovereign immunity justifies reading
into Section 107(a) a broad right of cost recovery against gov-
ernmental and private PRPs alike is thus a non sequitur.
Like all of the other policy arguments advanced by respon-
dent and its amici, it should be rejected with !eave to renew it
before Congress, to which it is more properly directed.
* *+ *£+ *&
For the foregoing reasons and those stated in the govern-
ment’s opening brief, the judgment of the court of appeals
should be reversed.
Respectfully submitted.
PAUL D. CLEMENT
Solicitor General
APRIL 2007
Any “refusal” by the government to settle on those terms was understandable
in light of the fact that, in the government’s view, the plaintiff PRPs have no
cause of action absent resolution of their own liability.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.