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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0501%3A14

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 551 U.S. 128

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0501%3A14. Public record. Not legal advice.