Amicus Curiae Brief — United States v. Atlantic Research Corp.

ee 6700

No. 06-562

In The

Supreme Court of the Gnited States

UNITED STATES OF AMERICA,

Petitioner.

~ Y,

ATLANTIC RESEARCH CORPORATION.

Respondent.

o

On Writ Of Certiorari To The

United States Court Of Appeals

For The Eighth Circuit

@

AMICUS CURIAE BRIEF OF THE ASSOCIATION

OF CALIFORNIA WATER AGENCIES, NATIONAL

ASSOCIATION OF WATER COMPANIES,

CALIFORNIA WATER ASSOCIATION, CALIFORNIA

STATE ASSOCIATION OF COUNTIES, CASTAIC

LAKE WATER AGENCY, SAN GABRIEL BASIN

WATER QUALITY AUTHORITY, AND MAIN

SAN GABRIEL BASIN WATERMASTER IN

SUPPORT OF RESPONDENT

e

PAUL S. WRILAND

(Counsel of Record)

FREDERIC A. FUDACZ

ALFRED FE. SMITH

NOSSAMAXN, GUTHNER, KNOX

& Evuuiorr LLP

18101 Von Karman Ave..

Suite 1800

Irvine, CA 92612

Phone: (949) 833-7800

Fax: (949) 833-7878

Attorneys for Amici Curiae

(OOCKLE LAW BRIEF PRINTING, CO) star. 225 oid

ORO ALL COMLROCT. tt its

TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE .........cccccccceeeeeeees

SUMMARY OF ARGUMENT. ..............cccssssssessrrsvsseesesees

EIT cntncsnnansersnscinerennmesiasnnieniannnianenaananine

THE LOWER COURT PROPERLY INTERPRETS

SECTION 107(a) OF CERCLA TO PROVIDE A

RIGHT OF ACTION TO SO-CALLED RESPONSI-

SE OO eee tecerncnvecccsosansnssssaveoneniesenenesnentenuneaunnsonees

A. Section 107(a)(1)-(4)B) Creates a Right of

Action that Is Available to Any Person Other

than the United States, a State, or an Indian

B. Section 113(f)(1) Does Not Affect the Scope of

the Right of Action Provided by Section

IIE vicntscniiadinnicgiinidanmienaabapmnamintés

THE BROAD RIGHT OF ACTION IN SECTION

107(a) SERVES THE PUBLIC INTEREST BY AL-

LOWING PUBLIC AND PRIVATE WATER MAN-

AGERS AND PROVIDERS TO CLEAN UP

CONTAMINATED GROUNDWATER RESOURCES

AND THEN RECOVER CLEANUP COSTS FROM

PR Ge ncnecennestmeconessnsinenssnenmmienseenenensmsupmmpersieneete

A. Groundwater Contamination Is a Significant,

NE eID ccncnneinnssscentinstesnennsncomnineinen

B. Public Water Agencies and Publicly Regulated

Water Utilities Play an Important Role in the

Cleanup of Groundwater Contamination ..........

C. EPA’s Ability to Ensure the Cleanup of Con-

taminated Groundwater Is Constrained............

TABLE OF CONTENTS - Continued

Page

D. Specific Cases Are Representative of the

I ee icnctcicccenscinsesisiciieliicitintensiutnnasemanieate 18

1. The Castaic Lake Litigation....................4 18

il

TABLE OF AUTHORITIES

Page

CASES

ABB Industrial Systems, Inc. v. Prime Technology,

we et GL. ; , nee 19

Atlantic Research Corp. v. United States, 459 F.3d

ee NE SEI ciinonidinssitectadensuneciniactntetnnndiciminiinnsinans 7, 8, 10

Branch v. Smith, 538 U.S. 254 (2003) ........... cc eeceeeeee eee ees 10

Castaic Lake Water Agency v. Whittaker Corpora-

tion, 272 F. Supp. 2d 1053 (C.D. Cal. 2003)........... passim

City of Monterey Park v. Aerojet-General Corpora-

tion, et al., Case No. CV 02-5909 (C.D. Cal. Filed

i es i icinieisentenitinnnteisnnenitinsiunieniailbieiinenanusmnessn 26

Consolidated Edison Company of New York, Inc. v.

UGI Utilities, Inc., 423 F.3d 90 (2d Cir. 2005)................ 7

Consumer Product Safety Commission v. GTE

Sylvania, Inc., 447 U.S. 102 (1980) ........s.ssssceseseseseeeneeees 5

Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930

SEP EEEE: TEED iciseendsigiiancinsiniensninepiiemmaimiasdbenaneiuenndneiteins 7

Cooper Industries, Inc. v. Aviall Services, Inc., 543

Se See i ninrncnenccconnincitieantenineninnintcennel 4, 7, 22, 27

Friends of the Santa Clara River v. Castaic Lake

Water Agency, 123 Cal. App. 4th 1 (2004)..................... 14

Lamie v. United States Trustee, 540 U.S. 526 (2004)....5, 11

Lincoln Properties, Ltd. v. Higgins, 823 F. Supp.

SS SEED TIRE etetnnsctestisinnesnceinicnietanemnstiniccninacions 21

Morton v. Mancari, 417 U.S. 535 (1974)... ceeeeeeeeeeeee 10

Pinal Creek Group v. Newmont Mining Corp., 118

Ne EEE 7

iv

TABLE OF AUTHORITIES - Continued

Page

San Gabriel Basin Water Quality Authority v.

Aerojet-General Corp., et al., Case No. CV 02-

4565 (C.D. Cal. Filed Jume 11, 2002) ..0..... eee eeeeee 26

San Gabriel Valley Water Company v. Aerojet-

General Corporation, et al., Case No. CV 02-6346

(C.D. Cal. Filed Aug. 14, 2002) ...........cccccccccsssssssssesseeees 26

Southern California Water Company v. Aerojet-

General Corporation, et al., Case No. CV 02-6340

(C.D. Cal. Filed Aung, 14, 20038) ......cccscoscsssscesssescccscessees 26

United States v. CDMG Realty Co., 96 F.3d 706 (3d

a STII teeta enladaliaitinsiasiniciaiinabciadpaniinteeanisenianiuniienmminialt 20

United States v. Fausto, 484 U.S. 439 (1988).................. 10

Wickland Oil Terminals v. Asarco, Inc., 792 F.2d

ITI TTI sci otis ecinlaindeianacnedihcidnetibentbnisiniaiais 8

STATUTES

Se ee ir TIE TTITTcecicinieniclenpiicatibiatieicinblenniuiindnniunnantinitiest 20

Se er tN iui cccceeiteinsiniinionciteahieitinnittbiiiscithncbneniosinaideainiis 24

SLES Se 26, 27

es ee cteniicnnsitihntintntonnienssatnccineisecinenl 6, 7,9

I Iasi ii neni celeaenileeiaieabdadeiedicialbannaliaindiie 26

ITI adirsspierdainciisentpinsiagisdhanditnlanddinaaapeonngeiieanionts 9,18

I lial dealin 18

Se ee ee ee ciisintetniisinncscnnissndeesseicctonaseiennsersins 15

Cal. Gov’t Code §§ 66493 ef seq............ccccccccseceesessesensseeeeees 14

Cal. Health & Safety Code §§ 116270-116293.................. 15

Cal. Pub. Util. Code § 770.................ccsceeeees srmmesvedineassnens 15

TABLE OF AUTHORITIES — Continued

Page

Cah, Wirt Gore 6 BB iaceecencccoceccssccsenscsnssensecnteneniennenmunnate 15

Cal. Water Code §§ 10610 ef seq. ...........ccsseccercseeesseeeeeeeeees 14

Cal. Waster Gadde § B6GB6 ..ccccsscccccccccesessonssussensccvessenszecnensens 15

Cal. Water Code §§ 10910 et seq. ........ccceccceseeseeeseeerereerenens 14

Pub. L. No. 99-499, 100 Stat. 1616..............cssccssssseerseesees 9

REGULATIONS

Cal. Code Regs. tit. 22, §§ 64400-64483 oe eeeeeeeee 15

GD CIR, BBO TCD ceceresecesetsscssscnsccccscsnpsicnsteniicensnaninuamanin 17

fk 8 ES ETE 14, 16, 17

49 Fed. Reg. 19,480 (May 8, 1984)..........ccscsssesseeeeeeereneeenes 23

58 Fed. Reg. 54,702 (Oct. 22, 1993) .............cccccccccsseesesesees 17

CONSTITUTIONAL PROVISIONS

oo B® | Rene ee 14

LEGISLATIVE HISTORY

131 Cong. Rec. 34,645 (Dec. 5, 1985)............ceseeeeeeseeeenenrees 11

BLR. Rep. No. 9B-BES (1GGG) .....cercrccocececccssssscscssscesessnsoescees 11

SS. Blam. BUG. 2OTB CBG ED ccccccccccscesccsccccssensussonsiesnmencsssstanions 17

SE, Diep, Blo: COOKE (GIBB cesevisocsccestescnneseninicndielininenastaaaa 11

vi

TABLE OF AUTHORITIES - Continued

Page

OTHER AUTHORITIES

Alex N. Helperin et al., California’s Contaminated

Groundwater (Natural Resources Defense Coun-

ES Ee ae a ere 13

Anthony Saracino & Harrison Phipps, Groundwa-

ter Contaminants and Contaminant Sources (Cal.

Dept. of Health Services 2002) ...........cccssccssecesesereeeees 13

California Department of Water Resources, The

California Water Plan Update Bulletin 160-98

Th eT 12

California Department of Water Resources, Cali-

fornia Water Plan Update 2005 (2005) ........ ecndumnenenuines 13

Roderick Frazier Nash, Wilderness and the Ameri-

SL EETSS EE Cre aoe EE EeE 12

State Water Resources Control Board, Report to the

Governor and Legislature: A Comprehensive

Groundwater Quality Monitoring Program for

EEE ELI Tee TOR 12

U.S. Environmental Protection Agency, Interim _

Record of Decision (Sept. 20, 2000)...........::::ccccceeseeeeeees 24

U.S. Environmental Protection Agency, San

Gabriel Valley (All Areas), California, EPA

EE 14

U.S. Environmental Protection Agency, Unilateral

Administrative Order (Aug. 29, 2003) .............cccccceeeeees 24

U.S. Environmental Protection Agency, Water,

Water Everywhere ... Finally a Drop to Drink............ 14

William Strunk, Jr. & E.B. White, The Elements of

ee a eee 8

1

INTEREST OF THE AMICI CURIAE'

The amici curiae are associations of public agencies,

publicly regulated water utilities, and individual public

agencies that — either directly or indirectly —- manage

water supplies and provide water to other water agencies

or end users. The amici or their members are involved, or

may become involved, in efforts to clean up groundwater

resources contaminated by hazardous substances. A

number of the amici or their members are involved in

litigation under the Comprehensive Environmental

Response, Compensation, and Liability Act (CERCLA) in

conjunction with their respective roles in the management

of water supplies and provision of water to other water

agencies or end users.

The amici are as follows:

The Association of California Water Agencies is an

association with a membership of 450 public water agen-

cies. Member agencies are collectively responsible for 90

percent of the water delivered to cities, farms, and busi-

nesses in California.

The National Association of Water Companies

(NAWC) represents all aspects of the private water service

industry. NAWC members own regulated drinking water

and wastewater utilities, are party to public-private

partnerships, and have management contract arrange-

ments.

’ The parties have consented to the filing of this brief. Counsel for

a party did not author this brief in whole or in part. No person or entity,

other than the Amici Curiae, their members, or their counsel made a

monetary contribution to the preparation and submission of this brief.

2

The California Water Association (CWA) represents

the interests of approximately 140 investor-owned water

utilities that are regulated by the California Public Utili-

ties Commission. CWA members provide water utility

services to nearly six million people throughout California.

The California State Association of Counties repre-

sents all 58 county governments in California before the

California Legislature, administrative agencies, and the

federal government.

Castaic Lake Water Agency (CLWA) is a public water

agency that serves an area of 195 square miles in Los

Angeles and Ventura Counties. CLWA supplements local

groundwater supplies with State Water Project water from

northern California and provides water to the Santa

Clarita Valley through four purveyors: Los Angeles County

Water District #36, Newhall County Water District, CLWA

Santa Clarita Water Division, and Valencia Water Com-

pany. As a result of the detection of perchlorate contami-

nation in its groundwater wells, CLWA has incurred

response costs and is engaged in litigation to recover those

response costs.

The San Gabriel Basin Water Quality Authority

(WQA) is a political subdivision of the State of California.

The Legislature created WQA to protect the public health

and safety by planning, financing, constructing and/or

operating groundwater extraction and treatment projects

to be carried out in the San Gabriel basin, to provide

potable water for beneficial uses in the basin, and to

contribute to the basin-wide remedial objectives estab-

lished by state and federal agencies. WQA has incurred

response costs to treat and remediate the contaminated

groundwater in the San Gabriel basin, and has sued

3

parties responsible for the contamination to recover such

costs.

The Main San Gabriel Basin Watermaster is the

agency charged with administering adjudicated water

rights and managing groundwater resources within the

watershed and groundwater basin known as the Main San

Gabriel Basin. The Watermaster was created in 1973 by

the California Superior Court of Los Angeles County to

administer the Basin’s adjudicated water rights and to

provide a basin-wide governing body for management of

water resources.

¢

SUMMARY OF ARGUMENT

Section 107(a) of CERCLA~-creates a right of action

that is available to any person other than the United

States, a State, or an Indian tribe against responsible

parties for necessary costs of response incurred consistent

with the National Contingency Plan (NCP). The text of

section 107(a) resolves the issue before the Court. In any

event, the availability of a broad right of action under

section 107(a) furthers the public interest by allowing

water purveyors to clean up contaminated groundwater

resources and then recover cleanup costs from polluters.

A. Section 107(a)(1)-(4)(B) states that covered

persons that are unable to invoke an affirmative defense

set forth in section 107(b) shall be liable for necessary

costs of response incurred by “any other person” consistent

with the NCP. The phrase “any other person” refers to any

person other than those persons referred to in section

107(a)(1)-(4)(A), that is, the United States, a State, or an

Indian tribe. This interpretation is consistent with lower

4

court precedent, the position advanced by the United

States until the Court’s decision in Cooper Industries, Inc.

v. Aviall Services, Inc., 543 U.S. 157 (2004), and relevant

rules of grammar. Furthermore, Congress did not affect

the scope of the remedy in section 107(a)(1)-(4) when it

amended CERCLA in 1986 and added section 113(f)(1).

B. The right of action contained in section 107(a)

serves the public interest by allowing water purveyors to

clean up contaminated groundwater resources and then

seek to recover their cleanup costs from _ polluters.

Groundwater is a critical resource in California and

elsewhere, and groundwater contamination is a signifi-

cant, widespread problem. Water purveyors play an

important role in the cleanup of groundwater contamina-

tion; they frequently are both the first responders to

groundwater contamination and the parties expected to

establish and oversee cleanup efforts with limited federal

or state involvement. Although water purveyors may be

adjudged innocent parties when they seek to recover

response costs, polluters have argued that water purvey-

ors contribute to contamination because, inter alia, they

own and operate wells. A broad right of action will allow

water purveyors to focus on theirroles as first responders

and their mission of providing water of sufficient quantity

and quality to their customers without fear that cleanup

costs incurred cannot be recouped from polluters.

.

5

ARGUMENT

THE LOWER COURT PROPERLY INTERPRETS

SECTION 107(a) OF CERCLA TO PROVIDE A

RIGHT OF ACTION TO SO-CALLED

RESPONSIBLE PARTIES

A. Section 107(a)(1)-(4)(B) Creates a Right of Action

that Is Available to Any Person Other than the

United States, a State, or an Indian Tribe

This Court has made plain that “the starting point for

interpreting a statute is the language of the statute itself.

Absent a clearly expressed legislative intention to the

contrary, that language must ordinarily be regarded as

conclusive.” Consumer Product Safety Commission v. GTE

Sylvania, Inc., 447 U.S. 102, 108 (1980). Accord Lamie v.

United States Trustee, 540 U.S. 526, 534 (2004) (holding

that “when the statute’s language is plain, the sole func-

tion of the courts — at least where the disposition required

by the text is not absurd — is to enforce it according to its

terms”). The language of section 107(a) of CERCLA is clear

on its face; it creates a right of action that is available to

any person other than the United States, a State, or an

Indian tribe in certain prescribed circumstances.

Section 107(a) of CERCLA provides rights of action to

certain specified parties under certain circumstances.

Section 107(a) states, inter alia, as follows:

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,

6

(2) any person who at the time of disposal of any

(3)

(4)

hazardous substance owned or operated any fa-

cility at which such hazardous substances were

disposed of,

any person who by contract, agreement, or oth-

erwise arranged for disposal or treatment, or ar-

ranged 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 ves-

sel owned or operated by another party or entity

and containing such hazardous substances, and

any person who accepts or accepted any hazard-

ous substances for transport to disposal or

treatment facilities, incineration vessels or sites

selected by such person, from which there is a re-

lease, or a threatened release which causes the

incurrence of response costs, of a hazardous sub-

stance, shall be liable for —

(A) all costs of removal or remedial action in-

curred 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 in-

curred by any other person consistent with

the national contingency plan...

42 U.S.C. § 9607(a)(1)-(4)(A) & (B) (emphasis added).

The phrase “any other person” included in section

107(a)(1)-(4)(B) plainly encompasses so-called responsible

parties.’ In context, there is no question that the modifier

* The terms “potentially responsible party” and “PRP” are not used

herein because they may be misunderstood; whereas in plain English

(Continued on following page)

“other” refers to any person other than those persons

referred to in section 107(a)(1)-(4)(A), that is, the United

States, a State, or an Indian tribe. This interpretation,

which relies on the language of the statute itself, is consis-

tent with Court of Appeal precedent.’ Moreover, prior to

this Court’s decision in Aviall, the United States consis-

tently advanced this same interpretation in this Court.*

The word “other” is used in the same section of CER-

CLA to modify the term “any [] necessary costs of re-

sponse.” 42 U.S.C. § 9607(a)(1)-(4)(B). Just as the phrase

they connote culpability, in the CERCLA context they do not necessarily

do so. E.g., Consolidated Edison Company of New York, Inc. v. UGI

Utilities, Inc., 423 F.3d 90, 97 n.8 (2d Cir. 2005). Instead, the term

responsible party is used to describe persons covered by section

107(a)(1)-(4). .

> See, e.g., Atlantic Research Corp. v. United States, 459 F.3d 827

(8th Cir. 2006), cert. granted, 127 S. Ct. 1144 (Jan. 19, 2007) (“We have

held that ‘any other person’ means any person other than the statuto-

rily enumerated United States Government or a State or an Indian

tribe.’” (citing Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930, 936 n.

9 (8th Cir. 1995))); Consolidated Edison Company of New York, Inc. v.

UGI Utilities, Inc., 423 F.3d 90, 99 (2d Cir. 2905) (“Section 107(a) makes

its cost recovery remedy available, in quite simple language, to any

person that has incurred necessary costs of response, and nowhere does

the plain language of section 107(a) require that the party seeking

necessary costs of response be innocent of wrongdoing.” (emphasis in

original)); Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298,

1301 (9th Cir. 1997), cert. denied, 524 U.S. 937 (1998) (“Under the

literal language of § 107, the Pinal Group, as a PRP, is partly responsi-

ble for its cleanup costs and as ‘any other person’ under § 107, can also

hold other PRPs liable for a portion of those same costs.”).

* See, eg., Amicus Brief for the United States at 20-21, Cooper

Industries, Inc. v. Aviall Services., Inc., 543 U.S. 157 (2004) (“Section

107(a\(1)-(4)(B)’s reference to ‘any person’ is broad enough to allow one

jointly liable party to sue another for the former’s response costs”);

Amicus Brief for the United States at 10, 14, Pinal Creek Group v.

Newmont Mining Corp., 118 F.3d 1298, 1301 (9th Cir. 1997), cert.

denied, 524 U.S. 937 (1998) (same).

8

“any other person” refers to section 107(a)(1)-(4)(A), the

phrase “any other ... costs” refers to section 107(a)(1)-

(4)(A). See, e.g., Wickland Oil Terminals v. Asarco, Inc.,

792 F.2d 887, 891 (9th Cir. 1986) (“The word ‘other’...

reasonably functions to distinguish between government

response costs in part (A) and private response costs in

part\(B).”).° It would be incongruous to interpret the two

phrases differently.

Nonetheless, the United States now contends that the

phrase “any other person” in section 107(a)(1)-(4)(B) does

not refer to any person other than those referred to in

section 107(a)(1)-(4)(A). Instead, the United States ad-

vances the novel argument that the phrase “any other

person” in section 107(a)(1)-(4)(B) refers to any person

other than those referred to in section 107(a)(1)-(4). See

Brief for the United States at 15, Atlantic Research Corp.

vu. United States, 459 F.3d 827 (8th Cir. 2006), cert. granted,

127 S. Ct. 1144 (Jan. 19, 2007). This argument is contrary

to basic rules of grammar. Where, as here, the apposite

phrase may refer either to the immediately preceding

phrase or to a phrase that appears earlier in the sentence,

rules of grammar provide that the apposite phrase refers

to the immediately preceding phrase. See William Strunk,

Jr. & E.B. White, The Elements of Style 28 (4th ed. 2000)

(“The position of words in a sentence is the principal

* The United States agrees with the interpretation of the phrase

“any other necessary costs of response” articulated herein. See Brief for

the United States at 20, Atlantic Research Corp. v. United States, 459

F.3d 827 (8th Cir. 2006), cert. granted, 127 S. Ct. 1144 (Jan. 19, 2007)

(“Section 107(a)(1)-(4)(B) permits recovery only for ‘any other necessary

costs of response ... consistent with the national contingency plan’ -

i.e., costs other than the government’s costs as specified in Section

107(aX1)-(4)(A).”).

9

means of showing their relationship. .. . The writer must,

therefore, bring together the words and groups of words

that are related in thought and keep apart those that are

not so related.”).

B. Section 113(f)(1) Does Not Affect the Scope of the

Right of Action Provided by Section 107(a)(1)-

(4)(B)

When Congress amended CERCLA in 1986 (via the

Superfund Amendments and Reauthorization Act or

SARA, Pub. L. No. 99-499, 100 Stat. 1616) and added

section 113(f(1), 42 U.S.C. § 9613(f(1), it neither reduced

nor expanded the class of persons that have a right

of action under section 107(a)(1)-(4)B), 42 U.S.C.

§ 9607(a)(1)-(4)(B). Section 113(f)(1) states, as follows:

Any person may seek contribution from any

other person who is liable or potentially liable

under section 9607(a) of this title, during or fol-

lowing any civil action under section 9606 of this

title or under section 9607(a) of this title. Such

claims shali be brought in accordance with this

section and the Federal Rules of Civil Procedure,

and shall be governed by Federal law. In resolv-

ing contribution claims, the court may allocate

response costs among liable parties using such

equitable factors as the court determines are ap-

propriate. Nothing in this subsection shall dimin-

ish 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 ti-

tle.

42 U.S.C. § 9613(f(1). Section 113(f(1) does not, by its

express terms, extinguish the availability of a right of action

under section 107(a)(1)-(4)(B) to any person or persons.

10

Furthermore, this Court has established a strong

presumption against implied repeals.’ Nevertheless, the

United States argues that, by implication, section 113(f)(1)

extinguishes the availability of a right of action under

section 107(a)(1)-(4B) to persons who are responsible

parties (i.e., to persons that fall within section 107(a)(1)-(4)

of CERCLA) and who have not been sued under section

106 or 107(a) of CERCLA.” Brief for the United States at

26, Atlantic Research Corp. v. United States, 459 F.3d 827

(8th Cir. 2006), cert. granted, 127 S. Ct. 1144 (Jan. 19,

2007) (stating that section 113(f)(1) “delineates the exclu-

sive circumstances under which one private PRP may

bring a suit against another under CERCLA”). The United

* Morton v. Mancari, 417 U.S. 535, 549-50 (1974) (noting the

cardinal rule that repeals by implication are not favored and stating

that “the only permissible justification for a repeal by implication is

when the earlier and later statutes are irreconcilable” (citation omit-

ted)); see also Branch v. Smith, 538 U.S. 254, 273 (2003) (plurality

opinion) (“We have repeatedly stated ... that absent a clearly estab-

lished congressional intention, repeals by implication are not favored.

An implied repeal will only be found where provisions in two statutes

are in irreconcilable conflict, or where the latter Act covers the whole

subject of the earlier one and is clearly intended as a substitute.”

(internal quotation marks and citations omitted)).

* In support of this argument, the United States cites United

States v. Fausto, 484 U.S. 439 (1988), in which this Court held that the

Civil Service Reform Act (“CSRA”) precludes judicial review of person-

nel actions based on the Back Pay Act. But Fausto is readily distin-

guishable from the present matter on two grounds. First, whereas the

CSRA is a comprehensive statute that overhauls the entire civil service

system including the process for reviewing personnel action taken,

Fausto, 484 U.S. at 443, 455, SARA is a set of specific, tailored amend-

ments to CERCLA. Second, whereas this Court held that the CSRA

does not repeal the Back Pay Act and only affects the judicial interpre-

tation of that Act, the United States is asking this Court to alter the

text of section 107(a)(1)-(4\B) and thereby repeal that provision to the

extent it provides a right of action to responsible parties.

11

States fails to provide sufficient grounds to depart from

the language of the statute and well-established canons of

interpretation.

In light of the plain language of CERCLA, there is no

need to consult the legislative history. See, e.g., Lamie v.

United States Trustee, 540 U.S. at 534, 539. But the

legislative history of section 113(f) of CERCLA clarifies

that Congress did not intend to limit the scope of the right

of action set forth in section 107(a)(1)-(4)(B). Instead,

Congress sought to confirm the availability of a right of

action in the nature of contribution to defendants in

CERCLA actions and persons that settle with the Envi-

ronmental Protection Agency (EPA) or a State. See, e.g., S.

Rep. No. 99-11, at 43 (1985) (indicating that section

113(f(1) “clarifies and confirms existing law governing

liability of potentially responsible parties”); H.R. Rep. No.

99-253, pt. I, at 79 (1985) (indicating that section 113(f)(1)

“clarifies and confirms the right of a person held jointly

and severally liable under CERCLA to seek contribution

from other potentially liable parties.”); 131 Cong. Rec.

34,645 (Dec. 5, 1985) (indicating that section 113(f)(1)

“simply clarifies and emphasizes that persons who settle

with EPA (and who are therefore not sued), as well as

defendants in CERCLA actions, have a right to seek

contribution from other potentially responsible parties.”).

There was consensus in Congress regarding the availability

of a right of action under section 107(a)1)-(4)(B); the

legislative history demonstrates Congressional desire to

confirm that remedy through enactment of section 113(f)(1).

There is no basis for a claim that, by enacting section

113(f)(1), Congress sought to reduce the class of persons

that have a right of action under section 107(a)(1)-(4)(B).

¢

12

THE BROAD RIGHT OF ACTION IN SECTION

107(a) SERVES THE PUBLIC INTEREST

BY ALLOWING PUBLIC AND PRIVATE

WATER MANAGERS AND PROVIDERS TO

CLEAN UP CONTAMINATED GROUNDWATER

RESOURCES AND THEN RECOVER

CLEANUP COSTS FROM POLLUTERS

Water is the natural resource that has had the most

significant influence on the growth of the State of California

for more than a century. The importance of surface water

supplies is widely understood due to well-known political

and economic battles over such supplies, for example, the

controversy stemming from the damming of the Hetch

Hetchy Valley in Yosemite National Park in the early 20th

century to provide water to San Francisco. See Roderick

Frazier Nash, Wilderness and the American Mind 161-181

(4th ed. 2001). Groundwater supplies also are critical to the

vitality of the State and are the source of approximately 30

percent of average annual water deliveries in California.

State Water Resources Control Board, Report to the Gover-

nor and Legislature: A Comprehensive Groundwater Quality

Monitoring Program for California 1 (2003); California

Department of Water Resources, The California Water Plan

Update Bulletin 160-98 at ES3-5 (1998).

Of course, the importance of water is not limited to

California or to the western United States for that matter.

But consciousness of the dependence on water is height-

ened in California and other western states because of the

magnitude of the demand for water coupled with the

disjuncture between the loci of available supplies and the

loci of consumers. When layers of complexity — such as

species recovery efforts, long-term sustenance of ground-

water aquifers, and climate change - are brought to the

13

forefront, it should not be difficult to understand why

Westerners are concerned about their water.

A multitude of public and private entities are involved

in the management of water supplies and provision of

water to other water agencies or end users. Amici are

leading representatives of those entities. Most public and

private water managers and providers in California were

established to secure adequate water supplies and ensure

sufficient water quality to meet the demands of their

constituents or customers. Over the past 25 years, a

cebstantial number of those managers have also been

iurced to address contamination of water supplies, specifi-

cally groundwater contamination, to secure continued

adequate and safe water supplies for their constituents or

customers.

A. Groundwater Contamination Is a Significant,

Widespread Problem

Groundwater contamination is a pervasive problem in

California. E.g., Anthony Saracino & Harrison Phipps,

Groundwater Contaminants and Contaminant Sources 1

(Cal. Dept. of Health Services 2002) (indicating that more

than 4,000 public water wells in California were taken out

of service due to groundwater contamination between 1984

and 2001); Alex N. Helperin et al., California’s Contami-

nated Groundwater viii (Natural Resources Defense

Council 2001). Statewide, between 5 and 42 percent of

existing public water supply wells sampled exceed one or

more drinking water standards. California Department of

Water Resources, California Water Plan Update 2005 at 4-

1537 (2005).

14

In addition to the fact that instances of contamination

are commonplace, a number of groundwater basins that

provide important water sources for populated areas are

plagued by significant contamination. For example, the

San Gabriel groundwater basin, which is located approxi-

mately 10 miles east of Los Angeles and provides water for

more than 1,000,000 residents, is included on the Envi-

ronmental Protection Agency's National Priorities List

(NPL) of high priority contaminated sites." Numerous

chemicals contaminate the San Gabriel basin, and the

area of contamination covers more than 30 square miles.”

B. Public Water Agencies and Publicly Regulated

Water Utilities Play an Important Role in the

Cleanup of Groundwater Contamination

Under the California Constitution and state statutes,

public agencies must maximize the reasonable and benefi-

cial use of available water resources. Cal. Const. art. X,

* 40 C.FR. Pt. 300, App. B, Table 1; U.S. Environmental Protection

Agency, San Gabriel Valley (All Areas), California, EPA ID#

CAD9808 18579, available at http://yosemite.epa.gov/r9/sfund/r9sfdocw.nsf/

vWSOAIphabetic?OpenView.

* U.S. Environmental Protection Agency, Water, Water Everywhere

... Finally a Drop to Drink, available at http://www.epa.gov/superfund/

accom p/success/pdf/sangabriel. pdf.

In addition, California law requires public water agencies to

assess and verify their ability to meet projected water demand over a

20-year period. Cal. Water Code §§ 10910 et seqg.; Cal. Gov't Code

§§ 66493 et seq.; Cal. Water Code §§ 10610 et seg. California caselaw

holds that, in meeting these obligations, public water agencies cannot

rely on contaminated water sources. Friends of the Santa Clara River v.

Castaic Lake Water Agency, 123 Cal. App. 4th 1 (2004) (invalidating an

Urban Water Management Plan for not adequately addressing both the

time needed to implement the available method for treating contami-

nated water and the reliability of the groundwater supply prior to

(Continued on following page)

15

§ 2; Cal. Water Code § 100. In addition, public water

agencies and publicly regulated water utilities must meet

federal and state drinking water requirements. See, e.g.,

Safe Drinking Water Act, 42 U.S.C. §§ 300f-330)-26;

California Safe Drinking Water Act, Cal. Health & Safety

Code, §§ 116270-116293; Cal. Code Regs. tit. 22, §§ 64400-

64483; Cal. Pub. Util. Code § 770. These federal and state

legal requirements and the responsibility to provide safe

and reliable water supplies to the public generally fore-

close public agencies and utilities from waiting for a

determination of liability before acting to protect water

supplies. For this reason, public water agencies (and other

regional or local public agencies) and utilities frequently

assume responsibility to address groundwater contamina-

tion that threatens public water supplies or public health

and safety more generally. Such agencies and utilities

(collectively referred to as “water purveyors”) often are

both the first responders to groundwater contamination

and the parties expected to establish and oversee cleanup

efforts with limited federal or state involvement. This

arrangement is sensible in light of the familiarity of water

purveyors with the context in which they operate and their

“ responsibilities to the public.

By acting to protect groundwater resources as well

as public health and safety, water purveyors assume

considerable risk that they will not be reimbursed for

cleanup activities by those ultimately responsible for

completion of treatment’; see also Cal. Water Code § 10634 (“The plan

shal] include information, to the extent practicable, re’ating to the

quality of existing sources of water available to the supplier . . . and the

manner in which water quality affects water management strategies

and supply reliability.”).

16

contamination. The availability of a broad right of action

under section 107(a)(1)-(4)(B) of CERCLA is an important

tool to address hazardous contamination and thereby limit

the risk that water purveyors must accept when initiating

response actions to clean up contaminated groundwater

supplies.

For the most part, water purveyors, which manage

water supplies and provide water to other water purveyors

and end users, do not cause or contribute to groundwater

contamination. For this reason, such water purveyors may

be adjudged innocent parties that have a right of action

under section 107(a)(1)-(4)(B) under the interpretation of

that provision advanced by either party to this lawsuit.

But parties that do cause or contribute to groundwater

contamination (i.e., polluters) have argued that water

purveyors fall within the broad definition of responsible

parties established by CERCLA. For example, polluters

have argued that water purveyors are responsible parties

because they operate wells that result in the migration of

contamination.

The availability of a right of action under section

107(a)(1)-(4B) of CERCLA to water purveyors, irrespec-

tive of their status as innocent or responsible parties for

the purposes of CERCLA, provides these water purveyors

with a powerful tool to seek reimbursement for response

costs incurred consistent with the National Consistency

Plan (NCP), 40 C.F.R. Pt. 300. The availability of such a

right of action also can function to bring polluters to the

table to seek compromise regarding allocation of ground-

water cleanup costs without resort to litigation.

17

C. EPA’s Ability to Ensure the Cleanup of Contami-

nated Groundwater Is Constrained

Due to EPA’s limited resources and the extent of

hazardous contamination nationwide, EPA can only

exercise oversight and take enforcement action with

respect to an extremely small proportion of instances of

hazardous contamination. There are an estimated 450,000

contaminated sites nationwide. S. Rep. No. 107-2 at 15

(2001). Fewer than 1250 of these 450,000 sites are NPL

sites. 40 C.F.R. Pt. 300, App. B. Even with respect to NPL

sites, such as the San Gabriel Groundwater Basin refer-

enced above, EPA’s role reflects its limited resources.

The role of water purveyors in addressing groundwa-

ter contamination is consistent with an underlying goal of

CERCLA to facilitate cleanups with little or no Federal or

State involvement. Their efforts also are consistent with

the NCP, which includes an entire subpart regarding

cleanup by persons other than governments. 40 C.F.R.

§ 300.700; see also 58 Fed. Reg. 54,702, 54,725 (Oct. 22,

1993) (“The focus of this subpart is on those authorities

that allow persons other than governments to respond to

releases and to recover necessary response costs.”). Where

water purveyors play a prominent role in cleanup of

contaminated groundwater, EPA can husband its resources

and minimize its involvement.

EPA has — at least as a practical matter — typically

taken the position that water purveyors involved in

cleanup of groundwater contamination are not responsible

parties. As a result, EPA neither files administrative or

judicial enforcement actions against water purveyors, nor

enters into settlements with them that would trigger

18

section 113(f)(1) or (f(3)B) of CERCLA, 42 U.S.C.

§ 9613(f)(1), (f)(3)(B).

D. Specific Cases Are Representative of the Lar-

ger Problem

1. The Castaic Lake Litigation

In 1997, four public and private water purveyors to

the north of Los Angeles discovered perchlorate contami-

nation in the groundwater wells used to supply drinking

water to their customers. The water purveyors shut down

those wells due to the contamination, which limited the

ability of those purveyors to provide drinking water to

their customers. At the same time, the water purveyors

took action to address the groundwater contamination.

Though EPA was notified of the contamination, to date

EPA has not overseen the cleanup effort. California,

through the Department of Toxic Substances Control

(DTSC), has exercised oversight. In 2003, the water

purveyors entered into an Environmental Oversight

Agreement with DTSC to ensure that the remediation is

consistent with the NCP.

The water purveyors contended that the source of the

contamination was the former Whittaker Bermite facility

located in Santa Clarita, California. The Whittaker Ber-

mite facility covers approximately 1,000 acres and was

formerly owned by Whittaker Corporation. Whittaker — a

defense-based industrial corporation - manufactured

ammunition, flares, detonators, and related explosive

products from at least 1943 to 1987.

The water purveyors affected by the contamination —

CLWA, Newhall County Water District, Santa Clarita

Water Company and Valencia Water Company - filed a

19

complaint in the United States District Court for the

Central District of California against Whittaker and the

current owners and operators of the Whittaker Bermite

facility, that is, Santa Clarita LLC and Remediation

Financial, Inc. (collectively “Whittaker”)." The water

purveyors assert that hazardous substances released from

the Whittaker Bermite facility contaminated their water

production wells.

Whittaker filed a counter-claim against the water

purveyors. In its counter-claim, Whittaker argued that the

water purveyors are liable for contribution because they

owned groundwater wells that are “facilities” as defined by

CERCLA. Because hazardous substances passively mi-

grated to the water purveyors’ wells, Whittaker argued

that a release occurred at those wells for purposes of

determining CERCLA liability.

In July 2002, the water purveyors moved the court for

partial summary judgment to establish Whittaker’s

liability for response costs under CERCLA. At the same

time, Whittaker moved the Court to establish the water

purveyors’ liability under CERCLA. In July 2003, the

district court granted in part the water purveyors’ motion.

The court ruled that Whittaker is liable for the response

costs incurred by the water purveyors that are necessary

and consistent with the NCP. Castaic Lake Water Agency v.

Whittaker Corporation, 272 F. Supp. 2d 1053, 1069 (C.D.

Cal. 2003). At the same time, the court ruled that the

water purveyors’ groundwater wells are “facilities” as

defined by CERCLA. 7d. at 1077. Citing ABB Industrial

."" Neither EPA nor the State of California has filed an enforcement

action against the defendants in this action.

20

Systems, Inc. v. Prime Technology, Inc., 120 F.3d 351, 358

(2d Cir. 1977) and United States v. CDMG Realty Co., 96

F.3d 706 (3d Cir. 1996), the court further concluded that

the passive migration of contamination into the water

purveyors’ wells constituted a “release” within the mean-

ing of 42 U.S.C. § 9601(22). Id.

This ruling exposes water purveyors to liability under

CERCLA merely for owning groundwater wells used to

supply drinking water to their customers. The ruling

shifts the burden of proof to water purveyors, requiring

them to prove they can invoke one of CERCLA’s limited

affirmative defenses, such as the innocent landowner

defense. To establish this defense, the district court found

that a water purveyor must prove: (1) that the release or

threat of release of hazardous substances was caused

solely by the acts of a third party, (2) that the third party

was not an employee or agent of the water agency, and (3)

that the water agency exercised due care with respect to

the hazardous substances and took precautions against

foreseeable third-party acts or omissions. Castaic Lake

Water Agency, 272 F. Supp. 2d at 1079-80.

In Castaic Lake Water Agency, Whittaker argued that

the water purveyors were not protected by the innocent

landowner defense. In support of this argument,

Whittaker asserted that, by pumping groundwater produc-

tion wells, the water purveyors helped draw the contami-

nation toward the wells. Whittaker further argued that

the water purveyors should have “done more” to mitigate

groundwater resource problems and taken greater care in

the siting of their wells.

21

The district court ultimately concluded that the water

purveyors presented evidence sufficient to create a genu-

ine issue of fact as to whether the purveyors exercised due

care, and whether the releases at their wells were caused

solely by third party acts. Jd. at 1080-83. In support of its

conclusion, the district court found that the water agencies

presented evidence that they had neither used the hazard-

ous substances at issue nor had knowledge of the contami-

nation at the time their wells were sited. These facts

supported an inference that any releases at the wells were

not foreseeable. Jd. at 1082. The court also cited evidence

presented showing that the effect of pumping from the wells

was insignificant compared to the natural migration of

contamination, which supports an inference either that the

water agencies were not a “but for” cause of the releases or

that their acts were “so indirect and insubstantial in the

chain of events leading to the release” that the innocent

landowner defense still should be available to them. Jd.

Citing Lincoln Properties, Ltd. v. Higgins, 823

F. Supp. 1528, 1539 (E.D. Cal. 1992), the court concluded

that, for purposes of CERCLA,

“caused solely by” incorporates the concept of

proximate or legal cause. If the defendant’s re-

lease was not foreseeable, and if its conduct — in-

cluding acts as well as omissions — was “so

indirect and insubstantial” in the chain of events

leading to the release, then the defendant’s con-

duct was not the proximate cause of the release

and the third party defense may be available.

Castaic Lake Water Agency, 272 F. Supp. 2d at 1082.

In addition, the district court noted that its ruling did

not decide whether water purveyors’ CERCLA claims are

actually for cost recovery under section 107(a) or for

22

contribution under sections 107(a) and 113(f). Castaic Lake

Water Agency, 272 F. Supp. 2d at 1069. In light of this

Court’s decision in Aviall, Whittaker filed a motion cur-

rently pending before the district court arguing that the

water purveyors cannot pursue a section 107(a) claim.

The assertions set forth by Whittaker in Castaic Lake

Water Agency illustrate the difficulties and challenges

facing water agencies and utilities seeking to provide a

safe and reliable water supply to their customers. Even

though the water purveyors presented evidence that they

never used the hazardous substances at issue and sited

their production wells before knowledge of the contamina-

tion, they were still subject to counter-claims resulting in a

finding that, for purposes of CERCLA, they owned facili-

ties from which releases took place. This shifted the

burden of proof to the water purveyors to establish the

elements required by the innocent landowner defense.

2. The South El] Monte Operable Unit Litigation

The San Gabriel groundwater basin provides drinking

water to more than 1,000,000 residents of the San Gabriel

Valley and nearby areas. These residents have no ade-

quate alternative water supplies to groundwater from the

basin. Thus, despite the widespread groundwater con-

tamination in the basin, San Gabriel Valley residents

must rely on this basin for their drinking water, including

numerous water supply wells that draw water directly

from contaminated portions of the basin. More than one-

quarter of the mure than 366 water supply wells in the

San Gabriel basin draw contaminated groundwater.

In 1984, EPA added the San Gabriel groundwater

basin to the NPL as four separate sites (collectively, SGV

23

Superfund Sites). 49 Fed. Reg. 19,480 (May 8, 1984).

These sites include multiple areas of contaminated

groundwater in the 170-square-mile San Gabriel Valley.

EPA estimates that more than 30 square miles of ground-

water in the San Gabriel groundwater basin may be

contaminated, including groundwater found under the

Cities of Alhambra, Arcadia, Azusa, Baldwin Park, Indus-

try, El Monte, La Puente, Monrovia, Rosemead, South El

Monte, and West Covina in Los Angeles County, Califor-

nia. EPA has further divided the four SGV Superfund

Sites into various operable units, and each operable unit

has its own remedy. One such unit is the South El] Monte

Operable Unit (SEMOU).

The SEMOU is an area of groundwater contamination

that covers a surface area of approximately eight square

miles in and near the Cities of South E] Monte, Rosemead,

and El Monte. The groundwater in the SEMOU is con-

taminated as a result of improper handling and/or disposal

of various chemicals, including various volatile organic

compounds (V9Cs), chlorinated solvents, perchlorate, and

1,4-dioxane. From the 1940s through the 1980s, many

industrial facilities in the SEMOU used VOCs and chlo-

rinated solvents for degreasing, metal cleaning, and other

purposes.

The groundwater contamination in the SEMOU has

impacted numerous public water supply wells, which

previously had the capacity to produce thousands of

gallons per minute of potable water. The three water

purveyors in the SEMOU - the City of Monterey Park

(CMP), Golden State Water Company (GSWC), and San

Gabriel Valley Water Company (SGVWC) —- have had to

shut down and/or add “wellhead treatment” facilities to

many of their public water supply wells in the SEMOU.

24

These treatment facilities not only treat the groundwater

so that the water purveyors may provide a safe and

adequate water supply to their customers, but they also

have come to serve as EPA’s selected remedy for the

SEMOU.

Between 1984 and 1998 — some 14 years — EPA

conducted — investigations and studies regarding the

sources and extent of groundwater contamination in the

SEMOU. In 1998, EPA released its Remedial Investigation

(RI) Report for the SEMOU. A year later, EPA issued its

Feasibility Study (FS) Report for the SEMOU that consid-

ered potential alternative remedies. In September 2000,

EPA issued its Interim Record of Decision (IROD) for the

SEMOU that selected a remedy. U.S. Environmental

Protection Agency, Interim Record of Decision (Sept. 20,

2000). The IROD envisioned using “wellhead treatment”

facilities at the water purveyors’ existing public water

supply wells to provide the remedy for the SEMOU.

During the next three years, EPA tried to reach

settlements with the various parties responsible for the

contamination in the SEMOU, to no avail. In August 2003

— almost 20 years after adding the SEMOU to the NPL —

EPA issued its Unilateral Administrative Order (UAO)

under section 106(a) of CERCLA, 42 U.S.C. § 9606(a), for

the SEMOU, directing 41 responsible parties to perform

the remedy. U.S. Environmental Protection Agency,

Unilateral Administrative Order (Aug. 29, 2003). EPA did

not name any of the SEMOU water entities in the UAO, as

E.’A does not consider them liable parties. Although EPA

issued this UAO nearly four years ago, EPA has yet to

commence a civil action against any responsible party and

has noi yet consummated any judicially-approved settle-

ment with any responsible party.

25

While EPA was conducting its investigations and

studies, the contamination continued to spread and

necessitated multiple well closures in the SEMOU. The

affected water purveyors had to act. So with the help of

funding from the San Gabriel Basin Water Quality Author-

ity (WQA), each of the water purveyors constructed treat-

ment facilities to ensure that they could continue to supply

safe and adequate water supplies to their customers:

1) CMP constructed VOC treatment facilities for at

least seven of its wells, plus perchlorate treat-

ment facilities for two of its wells.

2) GSWC constructed VOC treatment facilities for

two of its wells, as well as temporary perchlorate

treatment facilities for these wells.

3) SGVWC constructed VOC treatment facilities for

two of its plants, each of which consists of multi-

ple wells.

In addition to helping fund the above treatment

facilities, WQA constructed and operated a temporary

shallow barrier treatment facility to contain and treat

VOCs and 1,4-dioxane in the shallow portion of the SE-

MOU aquifer in an effort to prevent this contamination

from spreading into the Whittier Narrows Operable Unit

of the SGV Superfund Sites. WQA is constructing ancther

‘1,4-dioxane treatment facility for the shallow portion of

the SEMOU aquifer in an effort to keep this contaminant

from spreading into drinking wells in the SEMOU.

To date, the SEMOU water entities have spent nearly

$30,000,000 in response costs to ensure continued safe and

adequate water supplies. But for the contamination of the

groundwater caused by the recipients of EPA’s UAO (and

other industrial parties), the SEMOU water entities would

26

not have had to incur any of these costs. WQA has esti-

mated that the total cost of the SEMOU remedy and

certain additional “wellhead treatment” facilities needed

to provide an adequate and safe drinking water supply

will exceed $180,000,000.

In 2002, because the water entities needed funds to

construct and operate their treatment facilities, they

commenced the following federal actions to recover their

past and future response costs: San Gabriel Basin Water

Quality Authority v. Aerojet-General Corp., et al., Case No.

CV 02-4565 (C.D. Cal. Filed June 11, 2002); City of Mon-

terey Park v. Aerojet-General Corporation, et al., Case No.

CV 02-5909 (C.D. Cal. Filed July 29, 2002); Southern

California Water Company v. Aerojet-General Corporation,

et al., Case No. CV 02-6340 (C.D. Cal. Filed Aug. 14,

2002);* and San Gabriel Valley Water Company v. Aerojet-

General Corporation, et al., Case No. CV 02-6346 (C.D.

Cal. Filed Aug. 14, 2002). In these lawsuits, the water

entities seek, inter alia, to hold the responsible parties

jointly and severally liable under section 107 of CERCLA,

42 U.S.C. § 9607. The defendants moved to dismiss the

water purveyors’ section 107 claims on the ground that the

water purveyors themselves allegedly are responsible

parties, and thus their claims are limited to contribution

under section 113, 42 U.S.C. § 9613." The district court —

much like the district court in the Castaic Lake litigation

discussed above - ruled that the water purveyors’ wells

that had been impacted by contaminated groundwater

" After this lawsuit was filed in 2002, Southern California Water

Company changed its name to Golden State Water Company.

* The SEMOU defendants did not move to dismiss WQA’s com-

plaint and have not argued that WQA is a responsible party.

27

were CERCLA “facilities” and that as owners of these

wells the water purveyors were “presumptive” responsible

— though not necessarily liable — parties under section

107(a)(1). This ruling required the water purveyors to

amend their complaints to affirmatively assert their own

“innocence” and plead CERCLA affirmative defenses just

to maintain their claims under CERCLA section 107(a), 42

U.S.C. § 9607(a).

Since Aviail, the SEMOU defendants have alleged

that the water entities have no remedy at all under

CERCLA because they have neither entered into a settle-

ment with EPA nor been sued by EPA, notwithstanding

the fact that EPA does not consider the water entities to be

responsible parties. The defendants’ reliance on Aviall has

further complicated and prolonged the water entities’

efforts to reach settlements under the auspices of a court-

appointed settlement master (appointed in 2004), which

process remains ongoing.

If this Court recognizes a broad right of action under

section 107(a) it will: (1) continue to encourage water

purveyors to take urgently needed response actions —

particularly given the limited ability of EPA to direct

cleanup efforts — by foreclosing the possibility that the

water purveyors will have no remedy under CERCLA; (2)

encourage settlements (one of the stated goals of CER-

CLA) to provide desperately needed funding to effectuate

groundwater cleanup and provide adequate and safe

potable water to residents; and (3) help ensure that the

polluters — as distinguished from the water purveyors and

their taxpayers and ratepayers — pay their fair share of

the costs of necessary response actions.

SI

28

CONCLUSION

For the foregoing reasons, the judgment of the lower

court should be affirmed.

Respectfully submitted,

PAUL S. WEILAND

(Counsel of Record )

FREDERIC A. FUDACZ

ALFRED E. SMITH

NOSSAMAN, GUTHNER, KNOX

& ELLiott LLP

Attorneys for Amici Curiae

April 2007