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

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20 pep

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No. 06-562

IN THE

Supreme Court of the United States

United States of America.

Petitioner,

v.

Atlantic Research Corporation.

Respondent.

On Writ of Certiorari to the United States Court of Appeals

for the Eighth Circuit

BRIEF OF THE UNITED STATES CONFERENCE OF

MAYORS AS AMICUS CURTAE IN SUPPORT OF

RESPONDENT

Paul E. Gutermann

(Counsel of Record)

Thomas C. Goldstien

Sarah C. Rispin

AKIN. GUMP. STRAUSS,

PAUER, & FELD. LLP.

1333 New Hampshire Ave... NW

Washington, DC 20036

(202) 887-4088

April 5, 2007

WiLSON-EPES PRINTINGCO., INC. — (202) 789-0096 -— WasHinGron, D.C. 20002

i

TABLE OF CONTENTS

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INTEREST OF THE AMICUS CURIAE ..........c.cccccseeseeeseress l

SUREMEARY OF ARRTIUDIEN DT nccccsecccrecipsesesescoscnscsscsessossvscees 2

TE, avsiceessiasiacasiaicineciatiieeiaainiiiiasieicieihicaiaiiiaeiaiialiaaies 2

1. The Eighth Circuit’s Conclusion that § 107(a)

Provides for a Pre-enforcement Right of Action is

. in Accordance with the Needs of United States

Cities and the Purposes of Superfund......................... 2

A. Voluntary Cleanups are Critical to Fulfilling

ey OP nceiicnaniesisinencinnnsiinemnnctndenittnicionies 3

il. The Text of CERCLA § 107(a) Provides for a

Pre-enforcement Right of Action ..............::cccsceeeeeeees 8

A. Section 107(a) expressly provides a nght of

er I eicncetstenneenticiinicninecninnaininscnsin 9

B. Section 107(a) was not vitiated by the 1986

Superfund Amendments. ................:::cceceeeseeeeees 12

C. Section 107(a)’s right of action is not time-

MNO... .2.0n.nncecenverereversecessessrerecensonencerencnseesecenes 14

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TABLE OF AUTHORITIES

Cases

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

ag REE ERIC Cte Re cet are 2

Bedford Affiliates v. Sills, 156 F.3d 416 (2d Cir. 1998)......... 7

Bulk Distribution Ctrs., Inc. v. Monsanto Co., 589 F.

I, CU Cee Es Cr iccceseniesennnatnnetmmanimcsnneienne 13

City of Philadelphia v. Stepan Chemical Co., 544 F.

A, Tee Re UDO icterictcncesnnscansecninstennnminainionion 13

Consolidated Edison Co. of New York v. UGI Utilities,

Inc., 423 F.3d 90, 100 (2d Cir. 2005)..............:ccsccsesceseeee my

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

BD icccictnnesnionininsninnioninineenneiemamnenecniell passim

Exxon Corp. v. Hunt, 475 U.S. 355 (1986) .0......:ccceceeeeeeseeees 3

FMC Corp. v. AERO Indus., 998 F.2d 842 (10" Cir.

ee tasincintmadioneseeitinesiuadaivemnbenednaniiiniuepeigesunietmenatiiaaneiiatinaionniinl 4

In re Hemingway Transp. Inc., 174 B.R. 148 (Bankr. D.

SD Ie iaseienincnesnienciittscecinpstktetnamsnbeinanniininunnamitinniaatine 6

Jones v. Inmont Corp., 584 F. Supp. 1425 (S.D. Ohio

Pe cciensiisenl heseshieiniideitennalieniatiesiniideiniasmapnenmeeinnnpmmet 13

Key Tronic v. United States, 511 U.S. 809 (1994).....9, 10, 12

Metropolitan Water Reclamation District of Greater

Chicago v. North American Galvanizing & Coatings,

Inc., 473 F.3d 824 (7™ Cir. 2007).......sssccsesccessseesseessnseees 11

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989)....0.......... 4

Rector, etc., of Holy Trinity Church v. United States, 143

ee UU ieiiisctuiipsiesiscceicecisecindineiiaiiinhdltniehatisiaiininianaipee 3

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).....4

Syms v. Olin Corp., 408 F.3d 95 (2d Cir. 2005)..............000 7

United States v. Bestfoods, 524 U.S. 51 (1998) ........ceeceeeeee 3

ill

United States v. DiBiase, 45 F.3d 541 (1 Cir. 1995) .0.......... 6

United States v. Md. Bank & Trust Co., 632 F. Supp. 573

SI: Ey Sra scecipnisiccsinsiieniciocnnnnatsnninemsdniintietenansininiinnespepdeenenei 6

United States v. New Castle County, 642 F. Supp. 1258

Ss Mh: STU cilensinibnsinsnetiitdidandeniniainatibiadsisniiiuenteimnibicmmmnaieeee 13

United States v. Ward, 1984 WL 15710 (E.D.N.C. May -

i Uae iscicsehcciineietinunpusbicanesiniinanienanniieiddenaiesmteinionmidevents 13

United States v. Westinghouse Electric Corp., 1983 WL

gg 8 8 ___—_— EET ne TT ETT 13

Walls v. Waste Res. Corp., 761 F.2d 311 (6" Cir. 1985).....13

Wickland Oil Terminals v. Asarco, \nc., 792 F.2d 887

aE IE inviseiinninpesnassasnensinnsgitinnenentinmninimmmnsaginnniennts 13

Statutes

ek passim

PUES LS TOT—1 1S CER. ZBGP) onccccccccscccscccscocsesvcsesesccsnsessss l

Other Authorities

Brief of the United States, Key Tronic v. United States,

511 U.S. 809 (1994) (No. 93-376) ........ ce ccceeceeeesseseeeeeeeees 11

Brief of the United States as Amicus Curiae, Cooper v.

Aviall, 543 U.S. 157 (2004) (No. 02-1192)........ccccceeeeee 11

Communication from the President of the United States

Transmitting a Draft of Proposed Legislation to

Amend the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 (Feb. 26,

eRe eerie eNO eee eR TI Ne TE 15

Daniel C. Esty, Toward Optimal Environmental

Governance, 74 N.Y.U.L. REV. 1495 (1999) 00. 5

FDIC, Resolution Trust Corp. Seek Protection in Senate

Bill Limiting Exposure Under CERCLA, 21 Env't Rep.

Cary PUN setitiisenittcnnssciiiietiinnisiictinaptianeadapetinei 6

iv

Hearing Before the Senate Committee on Environment

and Public Works, H.R. Rep. No. 99-134 at 37 (1985) .....4

Kenneth T. Jackson, Crabgrass Frontier: The

Suburbanization of the United States (1985) .......:.c:c00000+ 5

Northeast Midwest Institute, Preliminary Research:

Impacts of the Aviall Supreme Court Decision on

Brownfields Cleanups (April 5, 2007 Draft)................00+. 8

Report of the Committee on Energy and Commerce, H.

en SN, Sn TTI cnsincersnseinsiicneciiansiinducieameniaasadanenica 13

Report of the Senate Committee on Environment and

Public Works, S. Rep. No. 99-11 (1985) .........c eee 4,13

Robert W. Burchell, The Costs of Sprawl—Revisited

I inietcnesscetipeansantondiindianadebioapedmainndmaninnmundaiesmnicitinnsideiinnsidiaies 6

The United States Conference of Mayors, Recycling

America’s Land, A National Report on Brownfields

Redevelopment Volume VI (May 2006) ..............2:00000 5, 6

U.S. General Accounting Office, Environmental

Cleanup: Transfer of Contaminated Federal Property

and Recovery of Cleanup Costs, GAO-05-1011R, Oct.

ir aras nara icnsnsabsieitaincnstescsntadaigaitaihinanneaininsnipasienvitenniteinitibtadinines 7

U.S. General Accounting Office, Superfund: Extent of

Nation's Potential Hazardous Waste Problem Still

Unknown, GAO/RCED-88-44, Dec. 1987 .o.....cccccceeeeeeeees 3

INTEREST OF THE AMICUS CURIAE'

Amicus curiae The United States Conference of Mayors

(“USCM”) is the official nonpartisan organization of all

United States cities with populations of more than 30,000.

USCM’s member cities are home to hundreds of sites on the

Environmental Protection Agency’s (“EPA’s”) National

Priority List (“NPL”) as well as tens of thousands of

brownfields—abandoned or underutilized properties whose

redevelopment is complicated by either real or perceived

environmental contamination.

The existence of many brownfield sites can be traced to

the strict liability provisions imposed by Comprehensive -

Environmental Response, Compensation and Liability Act

(“CERCLA” or “Superfund”), 42 U.S.C. § 9601 et seq,

which also governs how these sites must be cleaned up

before they can be returned to beneficial use. Congress

recognized the unintended consequences that resulted from

Superfund in 2003, when it passed the Small Business

Liability and Brownfields Redevelopment Act, Public Law

107-118 (H.R. 2869) (“Brownfields Act”). The Brownfields

Act’s purpose was to assist in the cleanup of brownfield sites

by granting liability protection for innocent purchasers

interested in redeveloping these sites, as well as assessment

and cleanup funds for other sites. At the same time, as part

of the Brownfields Act, Congress enhanced the State

Voluntary Cleanup Program which encourages the voluntary

cleanup of environmentally contaminated sites.

Still, the current uncertainty over whether CERCLA

section 107(a) allows property owners to recover for monies

' This brief is filed with the written consent of all parties.

Pursuant to Rule 37.6, no counsel for either party authored this

brief in whole or in part, nor did any party make a monetary

contribution to the preparation or submission of this brief.

9

a

spent in voluntarily cleaning up these sites means that only a

small fraction of brownfields are cleaned up each year.

USCM feels that it is of vital interest to the nations’ cities

that the legal landscape be clarified so that owners of

contaminated sites that wish to voluntarily undertake cleanup

are able to do so with the knowledge that they can recover

other parties’ proportionate share of the liability. USCM

respectfully urges the affirmance of Atlantic Research Corp.

v. United States, 459 F.3d 827 (8" Cir. 2006), in which the

Eighth Circuit held inat CERCLA section 107(a)(4)(B)

enables parties that voluntarily undertake remediation of

Superfund sites to sustain pre-enforcement cost-recovery or

contribution actions against other potentially responsible

parties (“PRPs”).

SUMMARY OF ARGUMENT

The United States Conference of Mayors supports the

Eighth Circuit’s interpretation of CERCLA section 107(a) as

allowing a pre-enforcement contribution right. Allowing

PRPs to recover remediation costs from other PRPs is critical

to accomplishing- Congress’s central goal of encouraging

voluntary cleanups of contaminated sites. Voluntary

cleanups are, in turn, the only way to achieve the goal of

cleaning up the thousands of contaminated sites now sitting

idle and unusable in the country’s cities. The task is simply

too large for the federal government to initiate on its own, as

Congress recognized two decades ago in passing the

Superfund Amendment and Reauthorization Act of 1986

(“SARA”). This also follows from the most natural reading

of the law: As a simple matter of statutory construction,

section 107(a) grants an implied right of action to those PRPs

that voluntarily undertake remediation of contaminated sites.

ARGUMENT

I. The Eighth Circuit’s Conclusion that § 107(a)

Provides for a Pre-enforcement Right of Action is in

3

Accordance with the Needs of United States Cities and

the Purposes of Superfund

The Eighth Circuit’s conclusion that section 107(a) of

Superfund allows property owners to recover the costs of

remediating contaminated land, even when they undertake

that remediation voluntarily before a civil action or

enforcement action is brought against them, furthers the

goals of Superfund. Congress intended CERCLA to promote

the rapid remediation of the nation’s contaminated properties.

If property owners forfeit their rights of cost recovery by

voluntarily cleaning up such properties, it would take literally

centuries to remediate the hundreds of thousands of

contaminated Superfund sites in this country. Such a result

would violate the principle that a statute should not be

interpreted so as to lead to absurd results. Rector, etc., of

Holy Trinity Church v. United States, 143 U.S. 457, 459-60

(1892).

A. Voluntary Cleanups are Critical to Fulfilling

CERCLA’s Goals

Congress enacted CERCLA in 1980 in response to the

serious environmental and health risks posed by industrial

pollution found at toxic waste sites across the United States.

United States v. Bestfoods, 524 U.S. 51, 55 (1998). See also

Exxon Corp. v. Hunt, 475 U.S. 355, 358-359 (1986). Within

five years, however, it was apparent that the federal

government could not by itself accomplish the timely

remediation of the hundreds of thousands of contaminated

sites found in this country. At the time, the federal

government estimated that there were approximately 450,000

such contaminated sites in the United States—far more than

originally anticipated. U.S. General Accounting Office,

Superfund: Extent of Nation's Potential Hazardous Waste

Problem Still Unknown, GAO/RCED-88-44, Dec. 1987.

When Congress considered SARA in 1985, testimony before

Congress highlighted the steep costs to the federal

government of trying to force PRPs to remediate

4

contaminated sites. See, e.g., Hearing Before the Senate

Committee on Environment and Public Works, H.R. Rep.

No. 99-134 at 37 (1985) (statement of John C. Butler III,

Director, Putnam, Hayes, and Bartlett, Inc.) (estimating that

the transaction costs involved in the government's efforts to

have PRPs fund and undertake site response actions at 1,800

sites on the National Priorities List (“NPL”) at or above $8

billion in 1985 dollars). As this Court has explained,

“Congress did not think it enough . . . to permit only the

Federal Government to recoup the costs of its own cleanups

of hazardous-waste sites; the Government's resources being

finite, it could neither pay up front for all necessary cleanups

nor undertake many different projects at the same time.”

Pennsylvania v. Union Gas Co., 491 U.S. 1, 21 (1989),

overruled on other grounds, Seminole Tribe of Florida v.

Florida, 517 U.S. 44 (1996).

For this reason, members of Congress consistently

announced their intent to encourage PRPs to engage in

voluntary cleanups rather than wait until EPA made its way

through its national priority list (“NPL”) to force them to

clean up. See, e.g. Report of the Senate Committee on

Environment and Public Works, S. Rep. No. 99-11 at 76

(1985) (Statement of Senator Syms), see also Pennsylvania

v. Union Gas Co., 491 U.S. 1 at 21 (“Some help was needed,

and Congress sought to encourage that help by allowing

private parties who voluntarily cleaned up hazardous-waste

sites to recover a proportionate amount of the costs of

cleanup from the other potentially responsible parties.”);

FMC Corp. v. AERO Indus., 998 F.2d 842, 847 (10" Cir.

1993) (recognizing that Congress sought to “encourage

private parties to assume the financial responsibility of

cleanup by allowing them to seek recovery from others.”).

Voluntary cleanups remain of critical importance to the

Superfund scheme. The USCM can speak to the frustrating

lack of progress made in its members’ own back yards. The

172 cities surveyed in a 2006 USCM study on brownfields

5

host more than 23,810 brownfield sites, or some 130 per city.

See The United States Conference of Mayors, Recycling

America’s Land, A National Report on Brownfields

Redevelopment Volume VI at 6 (2006). The average size of

these sites ranged from five to 15 acres. /d... The presence

of these unremediated brownfields in United States cities

shifts new economic activity to undeveloped land outside the

cities, for which the legal and environmental risks are

perceived to be much lower. As Professor Daniel Esty of the

Yale School of Forestry explains, former industrial sites are

“shunned by developers, bankers, mortgage lenders, and

insurance companies due to fears of potential liability for

cleanup costs. These so-called ‘brownfields’ have become

dead zones, while new economic activity shifts to

undeveloped land or ‘greenfields’ where toxic risks are

perceived to be much lower.” Daniel C. Esty, Toward

Optimal Environmental Governance, 74 N.Y.U. L. Rev.

1495, 1525 (1999).

_B. The Absence of Voluntary Cleanups Exacts a

Huge Toll on American Cities

These vacant, unused sites exact a huge toll on United

States cities. When the greenfields to which industry and

developers shift their attention are on the outskirts of cities,

the cities are saddled with the cost of buiiding water, sewer,

electricity, gas and roads bridging the distance

infrastructure that must be maintained on an ongoing basis.

When the greenfields are outside city limits, the cities lose

citizens, jobs and tax revenue to surrounding suburbs,

making it harder for them to provide services within their

borders—and cities still have to pay the cost of connecting

the suburbs into the urban infrastructure grid. Kenneth T.

Jackson, Crabgrass Frontier: The Suburbanization of the

United States 150—53 (1985) (noting that because highways,

transport systems, and sewers are interjurisdictional, the

central city bears a portion of the cost of connecting suburbs

to the city). Either way, the tendency of cities to sprawl

6

toward the periphery—exacerbated by the massive amount of

unusable contaminated land lying vacant in city centers—

imposes hefty economic and environmental costs. Robert W.

Burchell, The Costs of Sprawl—Revisited 11 (1998) (“[F]or a

fixed number of households, sprawl is the most expensive

form of residential development in terms of economic costs,

environmental costs, natural resource consumption, and

many types of personal costs.”).

At present, United States cities struggle to remediate

brownfield sites and return them to beneficial use. The 172

cities that responded to the USCM survey have managed to

remediate 1409 contaminated sites ‘total, and are currently

working on 1,189 more. Recycling America’s Land at 6.

This is a mere drop in the ocean compared to the 23,000 sites

in those cities, and the hundreds of thousands of sites that

USCM extrapolates are in its 30,000 member cities. The

primary reason that progress has been so slow is the lack of

cleanup funds, Recycling America’s Land at 6 (noting that

86% of respondents to the survey cited lack of cleanup funds

as an impediment to remediation), as well as the hefty price

of cleanups, which run into the millions of dollars for most

sites. See, e.g., Cooper Industries, Inc. v. Aviall Services

Inc. 543 U.S. 157 (2004) (involving a $5 million

remediation); United States v. DiBiase, 45 F.3d 541, 542 n.1

(1* Cir. 1995) (cost of cleaning up five-acre wetland disposal

area more than $2.25 million); /n re Hemingway Transp.

Inc., 174 B.R. 148, 161-164 (Bankr. D. Mass. 1994) (land

purchased for $1.6 million costs more than $6 million to

clean up); United States v. Md. Bank & Trust Co., 632 F.

Supp. 573, 575 (_. Md. 1986) (land bought for $381,500 cost

more than $5.5 million to clean up); FDIC, Resolution Trust

Corp. Seek Protection in Senate Bill Limiting Exposure

Under CERCLA, 21 Env't Rep. (BNA) 533, 533 (July 27,

1990) (RTC estimate that its 270 contaminated sites would

cost $3.7 million each to clean up, in 1990 dollars). This

high cost prevents most owners of brownfields sites (as well

7

as prospective purchasers) from undertaking the remediation

of brownfields on their own.

The USCM believes firmly that owners of brownfield

sites in their cities will not remediate these sites voluntarily,

as Congress wished in enacting SARA, unless they are able

to shift the portion of the costs for which other PRPs are

responsible onto those PRPs before they are brought into

court by the federal government. Accord U.S. General

Accounting Office, Environmental Cleanup: Transfer of

Contaminated Federal Property and Recovery of Cleanup

Costs, GAO-05-1011R, Oct. 17, 2005 (absence of a clear

statement that pre-enforcement contribution actions are

allowed “may complicate efforts to clean up contaminated

properties by providing a disincentive for parties™ to

voluntarily carry out such cleanups.”); Consolidated Edison

Co. of New York v. UGI Utilities, Inc., 423 F.3d 90, 100 (2d

Cir. 2005) (“Were this economic disincentive in place, such

parties would likely wait until they are sued to commence

cleaning up any site for which they are not exclusively

responsible because of their inability to be reimbursed for

cleanup expenditures in the absence of a suit.”); Syms v. Olin

Corp., 408 F.3d 95, 106 n.8 (2d Cir. 2005) (observing that

“the combination of Cooper Industries and Bedford Affiliates

[v. Sills, 156 F.3d 416 (2d Cir. 1998)]. . . would create a

perverse incentive for PRPs to wait until they are sued before

incurring response costs”).’

Preliminary research by the Northeast Midwest Institute

(“NEMWI”) confirms that the holding in Cooper v. Aviall

that pre-enforcement contribution nights are not available

under CERCLA section 113(f) “appears to have negatively

impacted the cleanup and redevelopment of larger, more

* Even if landowners do sue, should they be denied a cause of action

for cost recovery simply because they undertook remediation voluntarily,

many PRPs responsible for the contamination would escape liability, a

result directly contrary to CERCLA’s “polluters pay” structure.

8

complicated brownfields sites, ... generally slowing cleanup

progress, while increasing transaction costs.” Northeast

Midwest Institute, Preliminary Research: Impacts of the

Aviall Supreme Court Decision on Brownfields Cleanups at

1 (April 5, 2007 Draft). According to NEMWI, the costs are

going up and cleanup slowing down at certain sites as owners

exit State voluntary cleanup programs and seek to have

enforcement actions brought against them so that they can

later recover from other PRPs.’ /d. At other sites, where the

owners had been pursuing contribution actions before

Cooper v. Aviall, cleanup has stopped out of fear that the

Owners cannot recover from other PRPs. /d. Cleanups are

being taken off the table altogether at sites where “cleanup

costs represent a high proportion of total development costs”

because of the “greater risk that unanticipated cleanup costs

will make the project infeasible[.|” /d.

Without a clear statement from the federal courts that

they will be able to recover cleanup costs from other PRPs

before an enforcement action is brought against them, owners

must at present wait for the EPA or a state to bring an

enforcement action against them before undertaking these

cleanups. Should this status quo continue, the nation’s cities

will be saddled with the burden of supporting the

infrastructure required to reach sprawling development, and

suffer the loss of jobs, citizens and their tax base to outlying

suburbs. Hundreds of thousands of contaminated sites will

remain unremediated, decades after Superfund was enacted.

This is clearly not what Congress envisioned. ~

Il. The Text of CERCLA § 107(a) Provides for a Pre-

enforcement Right of Action

As the numerous government, environmental and

industry groups that have filed amicus briefs in this case on

> Representatives of state voluntary cleanup programs have

confirmed to NEMWI that land owners are exiting voluntary cleanup

programs and seeking listing on the NPL. /d.

9

the side of Atlantic Research urge, interpreting CERCLA

§ 107(a) to allow for a contribution right for voluntary

cleanups undertaken prior to EPA action against PRPs is not

only the correct result from a policy standpoint, but is also

provided for in the text of the statute itself. Section 107(a)

provides for an implied right of contribution stemming from

the joint and several liability it imposes on PRPs. The

inclusion of a savings clause in section 113(f) of CERCLA

implies that a section 107(a) action remains available for

those to whom the specific section 113(f)(1) contribution

provision is not available. Further, the implied contribution

right in section 107(a) is not limited to parties against whom

an enforcement action has been brought. Thus, as a simple

matter of statutory construction, section 107(a) grants an

implied contribution right to those PRPs that voluntarily

undertake remediation of contaminated sites. This

interpretation is supported by SARA’s legislative history.

A. Section 107(a) expressly provides a right of action

between PRPs.

An implied right of contribution is found in CERCLA

section 107(a), stemming from the joint and several liability

it imposes on four categories of PRPs.* Key Tronic v. United

States, 511 U.S. 809, 816 (1994) (“[CERCLA] expressly

authorizes a cause of action for contribution in § 113 and

impliedly authorizes a similar and somewhat overlapping

remedy in § 107.”). The way in which it does so makes it

clear that these PRPs are joint and severally liable not just for

costs incurred by government entities, but also for costs

incurred by other PRPs.

* These include present and past owners of contaminated facilities;

operators of contaminated facilities; persons who arranged for disposal of

hazardous substances at the facilities; and transporters of the hazardous

substance to the facilities. 42 U.S.C. § 9607(a)(4)(B).

10

CERCLA section 107(a)(4)(A) imposes liability on PRPs

for “all costs of removal or remedial action incurred by the

United States Government or a State or an Indian tribe[.]” 42

U.S.C. § 9607(a)(4)(A). The next section, CERCLA section

107(a)(4)(B), goes on to impose liability on PRPs for “any

other necessary costs of response incurred by any other

person’ consistent with the national contingency plan.” 42

U.S.C. § 9607(a)(4)(B) (emphasis added). It logically

follows that “any other person” must refer to private parties

and local parties—that is, “persons” who are not the United

States Government, a State, or an Indian tribe. By

implication, this section contemplates that private parties and

local governments will incur costs to remediate Superfund

sites. This is the most natural reading of this section of the

statute.

This Court has said as much. In Key Tronic v. United

States, 511 U.S. 809, 818 n.11 (1994) the Court stated that by

imposing liability on PRPs for costs “incurred by any other

person,” section 107(a) “implies . . . that [PRPs] may have a

claim for contribution against those treated as joint

tortfeasors.” . Despite these statements of the Court, the

United States argues that section 107(a)(4)(B) supplies a ©

cause of action only for “innocent” private parties, which it

defines to include owners of adjacent properties (to whose

land contamination has spread) or bona fide purchasers. Pet.

Br. at 15—16. This is a tortured reading at best.

What the United States is arguing is that, because the

subject of the statutory phrase is PRPs, “any other person”

must refer to non-PRPs, i.e., innocent private parties. /d.

But this is unsound as a matter of both logic and grammar.

° CERCLA defines person to include “an individual, firm,

corporation, association, partnership, consortium, joint venture,

commercial entity, United States Government, State, municipality,

commission, political subdivision of a State, or any interstate body.” 42

U.S.C. § 9601(21).

1]

What the Government argues is akin to saying, for instance,

that if an exam administrator tells students that they may

speak to teachers or proctors in the room, but may not speak

to “any other person” during the exam, the students may still

speak to other students because they, as the subject of that

sentence, must be logically be excluded from the group “any

other person.”

Further, by accepting that “any other person” includes

owners of adjacent properties or bona fide purchasers, the

Government agrees that “any other person” must refer to a

class of parties beyond the federal government, states or

Indian tribes. Having in effect conceded this, it then relies on

the feeblest of logic to imply that that phrase excludes fellow

PRPs. If it accepts the former, it must accept that section

107(aX4)(B) provides a right of action to recover from all

other persons that may incur cleanup costs, including fellow

PRPs.” Accord Metropolitan Water Reclamation District of

Greater Chicago v. North American Galvanizing &

Coatings, Inc., 473 F.3d 824, 835 (7" Cir. 2007) (rejecting

United States argument that “any other person” refers only to

innocent parties, on grounds that “other” as used in section

107(a)(4)(B) was simply meant to distinguish “any other

person” from “the United States, a State or an Indian tribe” as

used in the prior paragraph. )

The Government’s construction is problematic on other

levels, raised by the other amici in this case. First, it would

have been of doubtful utility for Congress to impose liability

on PRPs for a// government response costs, but impose

° In fact, the Government has accepted this latter principle in the

past. See Brief of the United States as Amicus Curiae, 5, 20-21 Cooper

v. Aviall, 543 U.S. 157 (2004) (No. 02-1192) (explaining that “any other

person” refers to section 107(a)(4)(B) plaintiffs); Brief of the United

States 12, Key Tronic v. United States, 511 U.S. 809 (1994) (No. 93-376)

(recognizing that petitioner, a private PRP, was authorized by section

107(a)(4\(B) to recover necessary response costs).

12

liability on them for only that tiny slice of private-party

response costs incurred by so-called innocent PRPs. Why, in

essence, allow for the government and so-called “innocent

parties” to obtain money to clean up, but not those PRPs who

own or operate the lion’s share of Superfund sites? Second,

this begs the point, made by the States in their amicus brief,

- that, when Congress drafted the language in section 107 in

1980, it made no distinction between “innocent” and non-

innocent PRPs.

B. Section 107(a) was not vitiated by the 1986

Superfund Amendments.

As this Court stated in Key Tronic, 511 U.S. at 818 n.11,

by imposing liability on PRPs for costs “incurred by any

other person,” section 107(a) “implies . . . that [PRPs] may

have a claim for contribution against those treated as joint

tortfeasors.” This provision remains in effect, despite the

addition of section 113(f) to Superfund in SARA. See Key

Tronic, 511 U.S. at 816 (noting that section 113(f) provides a

“similar and somewhat overlapping remedy” to that provided

in section 107(a)). Accord Cooper v. Aviall, 543 U.S. 157,

163 n.3 (2004) (reaffirming Key Tronic’s recognition of a

‘cost recovery remedy of § 107(a)(4)(B)” that is “clearly

distinct” from that of section 113(f)(1)).

Section 1!3(f) provides that: “Any person may seek

contribution from any other person who is liable or

potentially liable under section 9607 (a) of this title, during

or following any civil action under section 9606 of this title

or under section 9607 (a) of this title.” 42 U.S.C. § 9613(f).

The legislative history and text of this provision shows that

Congress intended the provision to add to, and not eviscerate,

the right of cost recovery in section 107(a).

During the first years that Superfund was in effect, the

lower courts disagreed on whether section 107(a) provided an

implied right of action between PRPs. See Cooper v. Aviall,

543 U.S. 162-63 (describing disagreement). Most, however,

13

agreed that section 107 did afford PRPs an implied right of

action. Compare Walls v. Waste Res. Corp., 761 F.2d 311,

318 (6" Cir. 1985) (allowing cost recovery under section

107(a) as consistent with the language of the section and

Congress’ purpose in enacting CERCLA); Wickland Oil

Terminals v- Asarco, Inc., 792 F.2d 887, 889-90 (9th Cir.

1986) (same); United States v. Ward, 1984 WL 15710, at *1-

2 (E.D.N.C. May 14, 1984) (same); Bulk Distribution Ctrs.,

Inc. v. Monsanto Co., 589 F. Supp. 1437, 1443 (S.D. Fla.

1984) (same); Jones v. Inmont Corp., 584 F. Supp. 1425,

1428-29 (S.D. Ohio 1984); City of Philadelphia v. Stepan

Chemical Co., 544 F. Supp. 1135, 1140-1143 (E.D. Pa.

1982) (same); and United States v. New Castle County, 642

F. Supp. 1258, 1261-1269 (D. Del. 1986) (same); with

United States v. Westinghouse Electric Corp., 1983 WL

160587 (S.D. Ind. 1983) (disallowing cost recovery under

section 107(a)). In light of this uncertainty, Congress

included section 113(f) in-SARA to clarify and confirm the

right of contribution that courts had been implying under

section 107(a). See, e.g., Report of the Senate Environment

and Public Works Committee, S. Rep. 99-11 at 43 (1985)

(language meant to “clarify[y] and confirm[] existing law to

provide right of contribution).

But Congress did not supersede section 107(a) with the

addition of section 113(f). The drafts of SARA being

circulated in the Senate amended section 107 (to clarify and

confirm the contribution right) but did not add a separate

section. See, eg. Report of Senate Committee on

Environment and Public Works at 43 (proposing an

amendment that “clarifies and confirms existing law

governing liability of potentially responsible parties by

adding a new subsection 107(e)”). This course was later

abandoned, in favor of adding an additional clause in the

form of section 113(f), as proposed in the original House

drafts. See, e.g., Report of the Committee on Energy and

Commerce, H. R. Rep. No. 99-253 at 79 (1985) (explaining

14

that a proposed section 113(f) “confirms a Federal right of

contribution or indemnification for persons alleged or held to

be liable under section 106 or 107 of CERCLA”). The fact

that section 107(a) survives shows that section 113(f) was

meant to supplement, rather than supersede section 107(a).

C. Section 107(a)’s right of action is not time-limited.

If section 107(a)(4)(B) provides a right of action between

fellow PRPs, that right of action is not time-limited. In other

words, section 107(a)(4)(B) liability attaches whether or not

an enforcement action has been brought against the PRPs that

undertake a cleanup. This is implied by the fact that section

113(f), | which operates independently from but

simultaneously with section 107(a), is specifically limited to

persons against whom enforcement actions have been

brought, but section 107(a) does not.

Section 113(f) limits the timing of the contribution action

that may be brought thereunder to “during or following any

civil action... .” 42 U.S.C. § 9613(f)(1). This was the

express holding of this Court in Cooper v. Aviall Industries,

543 U.S. 157 (2004). By contrast, section 107(a) contains no

such language. It merely imposes liability for cleanup costs

incurred by “any other person,” without delimiting it to any

specific time period or conditioning it upon a further trigger

event. 42 U.S.C. § 9607(a)(4)(B).

In fact, Congress considered and rejected a version of

SARA that would have imposed the same delimiting rules on

section 107(a) that governed section 113(f). The Reagan

Administration submitted a proposal that section 107 be

amended to include the specification that “[a]ny contribution

action brought under this paragraph shall be brought in

accordance with section 113.” See Communication from the

President of the United States Transmitting a Draft of

Proposed Legislation to Amend the Comprehensive

Environmental Response, Compensation, and Liability Act

of 1980 at 24 (Feb. 26, 1985). The enacted version of section

15

107 does not contain this language. It follows that the right

of contribution under section 107 is not limited to the parties

against whom a civil action had been brought.

The United States asks that this Court do, in effect,

what the Reagan Administration failed to get Congress to do

twenty years ago, and limit the right of contribution under

both section 1 13(f) and section 107(a) to all but those against

whom a formal civil enforcement action has been brought.

We urge this Court to reject that reading.

CONCLUSION

For the foregoing reasons, and for the reasons stated in

the brief of respondent, the judgment of the United States

Court of Appeals for the Eighth Circuit should be affirmed.

Respectfully submitted,

Paul E. Gutermann

. (Counsel of Record)

Thomas C. Goldstien

Sarah C. Rispin

AKIN, GUMP, STRAUSS,

HAUER, & FELD, L.L.P.

1333 New Hampshire Ave., NW

Washington, DC 20036

(202) 887-4088

April 5, 2007