Amicus Curiae Brief — United States v. Atlantic Research Corp.
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In the Supreme Court of the Unites States
UNITED STATES OF AMERICA,
Petitiarer,
V.
ATLANTIC RESEARCH CORPORATION,
Respondent.
On Writ of Certiorari to the
United States Court of Appeals
for the kighth Circuit
BRIEF AMICUS CURIAE OF COOPER INDUSTRIES,
LLC, MEADWESTVACO CORPORATION AND UGI
UTILITIES, INC. INSUPPORT OF PETITIONER
JAY N. VARON DALE E. STEPHENSON*
FOLEY & LARDNER LLP ALLEN A. KACENJAR
3000 K Street, N.W. . .
~— IRE, SANDERS &
Suite 500 SQUIRE, SANDERS &
DEMPSEY L.L.P.
4900 Key Tower
127 Public Square
Cleveland, OH 441 14-1304
(216) 479-8500
Washington, D.C. 20007
(202) 672-5300
G. MICHAEL HALFENGER
PAUL BARGREN
FOLEY & LARDNER LLP a ny oe
777 East Wisconsin Avenue OUNSES fe oope USITIES,
Milwaukee. WI 53202-5306 LLC and MeadWestvaco
(414) 271-2400 Corporation
Counsel for UG] Utilities, Inc. .
* COUNSEL OF RECORD
WiILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002
TABLE OF CONTENTS
INTERESTS OF AMICI CURIAE ccccccscsesssssssssssssvssssssssssesseees
SUMMARY OF THE ARGUMENT .c.cccccccccccsescccsecsererveneee 3
ARGUMEND spesosssessssssstnsesisnnntnuirunsnnnene 6
I. CERCLA § 107(a) DOES NOT CREATE ANY
RIGHT FOR LIABLE PARTIES TO
INDEPENDENTLY PURSUE PRIVATE
Ra isiasiciiciseiensnctned cessed sbdianipcedeedepiadinandiiaviaseniiuniundaeens 6
A. PRPs ARE SPECIFICALLY EXCIUDED FROM
PURSUING DIRECT COST-RECOVERY CLAIMS
EERE a ORY NA ee Ee 6
B. THE EVOLUTION OF CERCLA § 107(a)(4)(B)
DIRECTLY SUPPORTS THAT SECTION’S PLAIN
TE ccccmertnsccensesciinnninensinbinnintniainaceietiimaseniiied 6
C. THE PRIMARY ROLE OF CERCLA Is To
FURTHER GOVERNMENT CLEANUP,
ENFORCEMENT, SETTLEMENT AND OVERSIGHT. ......... )
I]. ANEW § 107 RIGHT WOULD RESULT IN
| NEEDLESS UNCERTAINTY AND UNFAIR
EXPOSURE FOR DEFENDANT PRPS ........0.0. eee 12
PN EUITIT ciinicsidtviniseleasiehcioesieiibeiidahpihegidiaidssinaiainmuiiiesiiaanllaaniaécae 17
TABLE OF AUTHORITIES
CASES Page
AMW Materials Testing, Inc. v. Town of Babylon,
No. 05-206-CV, 2006 WL 851772
RP UN INNS ITI ssc cipinhaschecbidlademsbecllanahasanainnieidt 15
Anspec Co. v. Johnson Controls, Inc.,
Be ee SI Ny CE Ricccsccsinecescncsccenincnacticcmmnnnenans 9
Atlanta Gas Light & Gas Co. v. UGI Utils., Inc.,
SD Fee Ce C0 PUG, Ban cctiiscccccsnscnsasenccnenctnennincmien 2
Atl. Research Corp. v. United States,
SSP FBG GET CRC, BOG) cvvicctcncecscessssescnssesessnes passim
Aviall Servs., Inc. v. Cooper Indus., Inc.,
Be a, FER FOR, OD cctersscnncsiticcrsecscinnniscesiics |
Beazer East, Inc. v. Mead Corp.,
Se ce ee I I isiieicinscnsssnicieiicincinsnnpnestiaiiniatensivailed 3
Consol. Edison Co. v. UG] Utils., Inc.,
gw A 2,3, 5, 13, 14
Consol. Edison Co. v. UGI Utils., Inc.,
SO TO FA, FP GG, BOD ccecniticininecnvenisctscnsenosose 2
Cooper Indus., Inc. v. Aviall Servs., Inc.,
RR Ce I silts incisctisclaivieneiiiaiiieginnsnituiinatsiant 1,4, 11
Dedham Water Co. v. Cumberland Farms Dairy, Inc.,
dee Se COE Nk HUNTED eecenacisccdcislinsitnsensentilncnntionns 9
Kaiser Aluminum v. Catellus Dev. Corp.,
eae NA CUED wicitiicstnstninssntivheiasinnneesvsdinies 9
i
TABLE OF AUTHORITIES — Continued
Page
Meghrig v. KFC Western, Inc.,
as SUMED iciesiuhiiciacsinsbiisitiesieipcaitanimniinitemanenpniaeiii 4
Metro. Water Dist. of Greater Chicago v. N. Am. Galvanizing
& Coatings, Inc., 473 F.3d 824 (7th Cir. 2007) ............ 15
Rodriguez v. United States,
ne aE EIT cerscinescciondtetiatnpansiensnedniiiionsancmiantianes 16-17
Sidney S. Anst Co. v. Pipefitters Welfare Educ. Fund,
Be Sry OE sicininienecccicntenctssncitnncinbenenntinenes 9
United States v. Aceto Agric. Chems. Corp.,
ae rr ee a SID wetticantascnctececenscccvcsienicnanioes 9
United States v. Bestfoods,
SRI IEE IIIT: contcisisnenietadencummisadeinnnseentia isinainenis 4,9
United States v. Monsanto Co.,
Ir a OU saath an iaaiaciiabidl 9
United States v. Reilly Tar & Chem. Corp.,
546 F. Supp. 1100 (D. Minn. 1982) .................cesseeeeees 9
Witco Corp. v. Beckhuis,
ee TED casnsnesansetdnisinervingmerinaccinenisnioa 9
STATUTES
Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA), 42 U.S.C. § 9601 ef seq.
i TIT isiesibvsesniasdinnsianiipacecedeilaiiidinnntdeicdiimeneetivsisaiunclansnisitinndalinbi 9
ST seinnbicesiesenincemnianonitninaiaiiniies satpeasscosssenncennoenes passim
I cenicniéscinvintinindiaissanmaiasinsindadandinbimaieusiebteiiontl passim
TABLE OF AUTHORITIES — Continued
iV
Page
SS AaITTITI selelidisiiiisdehesbiianieeticiigaieinietuibeiieiniesaniaaiaileibiaiin 10
UUIIIITIDY sipuihuiieiientlbudgreieenniliacsiibeneibintbunidaiasiaias 10
NN aah dace hntial alae passim
Se UTI cise iicpnenbiiaiaisccieigcanaecsubeilediiaeidaapianiel 12
Sr UII Sckisicetiiesbhataiticicainielegeiahieehitbiunaagiaath 13
SINE shshuisbicsaincanitiesipteichpldieimitosedbiitaaseddechimeiibennaiiiaibiues 16
Superfund Amendments and Reauthorization Act
of 1986, Pub. L. No. 99-499, 100 Stat. 1613..........000 10
OTHER AUTHORITIES
I TIN IN Ti eaierentantictcciilpnciniistonsoesinvininehnnniesensiintiot 1]
126 Cong. Rec. 29,699
(daily ed. Nov. 14, 1980)....... UTA Se a eot Pet i ee en Se 7
126 Cong. Rec. 30,349
I I IR, II ccc sssprsbtlniasaeipliadichenhbanitoeninicis 7
126 Cong. Rec. 30,971
IES UIs TNR: SII sicnincsiscessiciegnasseistniiotiicsinasiansninhansiipnvisa 10
126 Cong.Rec. 31,964
IIE UII, (Uk, SUIT acsncissinsonsipinctanspatuninlenionianagielenie 10
H.R. 7020, 96" Cong.
a I I SIE acca schs ac ddaciomieainsiiouvonssduncnaiietiiel 6
H.R. 7020, 96th Cong.
§ 107(a)(4)(B) (Nov. 24, 1980)................cccccccssserereeees 7,8
S. 1480, 96th Cong.
DE EETT. ily BUMIUD scovncreicensesscccnsnsooencosseonnssions 7-8
INTERESTS OF AMICI CURIAE '
Amici are currently involved in significant CERCLA
litigation. That litigation, in conjunction with decades of
participation in CERCLA’s remedial scheme, has allowed
amici to develop a unique and robust understanding of
CLERCLA’s application and the practical implications of this
Court’s impending decision.
Cooper Industries, LLC (“Cooper”) is a_ leading
manufacturer of electrical products, tools and hardware
headquartered in Houston, Texas. As _ the successful
petitioner in Couper Industries, Inc. v. Aviall Services, Inc.,
543 U.S. 157 (2004) — the remanded case that focused
national attention on the issue presented here — Cooper has
been at the center of the evolving debate regarding private-
party CERCLA claims. In that case, the Court held that
CERCLA § 113(f(1), 42 U.S.C. § 9613(f(1), “authorizes
contribution claims only ‘during or following’ a civil action
under § 106 or § 107(a),” 543 U.S. at 168, and remanded for
consideration of the “question whether Aviall has waived [its
right to a § 107] claim and the underlying § 107 question (if
it is not waived),” id. at 169.
Since that decision, Aviall amended its complaint to
assert § 107 theories that were dismissed in an August 8,
2006 opinion by Judge Fitzwater of the United States District
Court for Northern District of Texas.2 That matter is now
' By letters filed with the Clerk of the Court, Petitioner and Respondent
have consented to the filing of this brief. Pursuant to Supreme Court
Rule 37.6, amici curiae state that the brief was prepared in its entirety by
amici curiae and their counsel. No monetary contribution toward the
preparation or submission of this brief was made by any person other than
amici curiae and their counsel.
' Aviall Servs., Ine. v. Cooper Indus., Inc., 63 E.R-C. 1623 (N.D. Tex.
2006). Because Judge Fitzwater’s decision presents an exceptionally
clear and compelling analysis of the issue before this Court, a copy of that
opinion ts set forth in the attached appendix to this brief. App. la.
2s
pending before the United States Court of Appeals for the
Fifth Circuit and will be directly affected by the decision in
this case.
UGI Utilities, Inc. (““UGI”) is a natural gas and
electric utility headquartered in Reading, Pennsylvania.
UGI's alleged predecessors owned stock in numerous
companies that in turn owned or operated manufactured gas
plants in the late 1800s and early 1900's prior to the passage
of the Public Utility Holding Company Act, under which
virtually all such interests were required to be divested.
Thus, UGI’s interests as amicus arise both as a corporation
that has been sued and which has been largely victorious
under CERCLA (see n.4, infra) and as the petitioner for a
writ of certiorari to the United States Court of Appeals for
the Second Circuit on virtually the same § 107 question as is
presented here.?
In the Second Circuit case, UGI was sued by
Consolidated Edison Company of New York, Inc. (“Con
Ed”) under CERCLA and state law over the cleanup of sites
that allegedly were contaminated by operations at coal gas
plants from 1887 to 1904. Con Ed claimed that UGI and its
predecessors were past owners and operators of the plants
and therefore liable under CERCLA. After suing UGI, Con
Ed entered into a Voluntary Cleanup Agreement with the
State of New York to clean up the sites.
The Second Circuit affirmed dismissal of a number of
Con Ed’s claims against UGI on grounds that the past owners
or operators involved were corporations distinct from UGI.4
"UGI Utils., Inc. v. Consol. Edison Co., petition for cert. filed, No. 05-
1323 (filed Apr. 14, 2006). The government asked the Court to hold
consideration of UGI's petition pending resolution of this case. Brief for
the United States as Amicus Curiae, No. 05-1323, at 2.
* Consol. Edison Co. v. UGI Utils., Inc., 183 Fed. Appx. 749 (2d Cir.
2005), see also Atlanta Gas Light & Gas Co. v. UGI Utils.. Inc., 463 F.3d
1201 (1)th Cir, 2006) (affirming summary judgment tor UGI on operator
lability claims).
. *
The Second Circuit also affirmed dismissal of Con Ed’s
contribution claim against UGI under § | 13(f)(3)(B), because
the Voluntary Cleanup Agreement was not an agreement that
“resolved its liability to the United States or a State,” which
is a prerequisite to such a claim. Consol. Edison Co. v. UGI
Utils., Inc., 423 F.3d 90, 97 (2d Cir. 2005). However, with
respect to one operator liability claim, the Second Circuit
reversed and allowed Con Ed to pursue a § 107 claim for
joint and several liability against UGI, holding that,
especially in the wake of Cooper Industries, a party that has
not yet been sued or made to participate in an administrative
proceeding is allowed to use § 107 to recover cleanup costs
incurred voluntarily. 423 F.3d at 102. UGI’s petition for a
writ of certiorari to review that holding is pending.
Finally, amicus MeadWestvaco Corporation
(“MeadWestvaco”) is a global packaging company with
worldwide operations that is headquartered in Glen Allen,
Virginia. MeadWestvaco has extensive CERCLA experience
at sites nationwide including a_ sixteen-year-old matter
currently pending before the Third Circuit for the third time.
See Beazer East, Inc. v. Mead Corp., 412 F.3d 429 (3d Cir.
2005). MeadWestvaco also is involved in another complex
CERCLA proceeding in which plaintiffs are attempting to
override a federal grant of contribution protection under
CERCLA § 113(f)(2) using the § 107 claim theories at issue
in this case.
SUMMARY OF TH
CERCLA fully serves its intended purpose without
the expanded private-party claim theories advanced below.
CERCLA’s available remedies do not need augmentation
with new § 107 cost recovery or contribution rights for liable
parties. The “intent” and the “policy” advanced by those
who advocate a more expansive reading of CERCLA are
served by the statute as it stands.
Expanding § 107 claims to provide liable parties with
remedies that are not grounded in the text and structure of
wile
CERCLA will bring unintended and _ unnecessary
complications that will undermine CERCLA’s cleanup
incentives and divert parties’ and courts’ resources from
cleanup to litigation. As it stands, CERCLA envisions — and
delivers — government supervised cleanup, while also
ensuring that the considerable power of CERCLA will rarely
be brought to bear on private parties like amici without
underlying government involvement.
At the time this Court issued its decision in Cooper
Industries, all courts of appeals to consider the issue had held
“that a private party that is itsclf a PRP may not pursue a
§ 107(a) action against other PRPs for joint and several
liability.” /d., 543 U.S. at 169 (citations omitted). Yet, even
though “covered parties” listed under CERCLA § 107(a)(1)-
(4) (i.e., “PRPs”) were barred from bringing § 107 claims,
provisions including the contribution mechanisms available
under § 113(f) made CERCLA “a comprehensive statute that
grants the President broad power to command government
agencies and private parties to clean up hazardous waste
sites,” while “those actually responsible for any damage,
environmental harm, or injury from chemical poisons may be
tagged with the cost of their actions.” United States vy.
Bestfoods, 524 U.S. 51, 55 (1998) (citations and bracketing
omitted). See also Meghrig v. KFC Western, Inc., 516 U.S.
479, 483 (1996) (“the two main purposes of CERCLA are
prompt cleanup of hazardous waste sites and imposition of
all cleanup costs on the responsible party”) (citations and
quotation marks omitted).
There is no need, however, to create a new § 107
remedy in order to advance those aims. CERCLA provides .
ample incentives and tools for private parties to carry out
beneficial government-supervised cleanups, without reading
in a new remedy not found in the text. Indeed, the § 107
remedy envisioned by the court of appeals would actually
work as a disincentive to private cleanup in many
circumstances and would certainly discourage cooperation
and settlementwith EPA.
a
Undoubtedly, Cooper Industries surprised some PRPs
when the Court insisted, logically, that the plain language of
§ 113(f) be applied to determine when a contribution remedy
is available. The plaintiff PRP in this action, which had
remediated a site and expected to sue other PRPs for
contribution — but had not carefully observed the
prerequisites for a contribution claim — found that after
Cooper Industries it was “foreclosed from using § 113. This
path is barred because Atlantic |Research} — like Aviall —
commenced suit before, rather than ‘during or following,’ a
CERCLA enforcement action.” Atl. Research Corp. v.
United States, 459 F.3d 827, 835 (8th Cir. 2006) (quoting.
§$ 1134(1)). The plaintiff in the Second Circuit case still
before this Court on a petition for certiorari faced similar
barriers. Consol. Edison, 423 F.3d at 97 (plaintiff PRP had
failed to satisfy prerequisites for a contribution claim under
§ 113(f(3)B)).
But individual PRPs’ difficulties in perfecting their
contribution claims after Cooper Industries do not justify
creating a new remedy — especially given the consequences
of that new remedy. One such consequence is already
apparent: in creating their new cause of action under § 107,
the Second and Eighth Circuits fashioned a new category of
“voluntary” PRPs that is nowhere anticipated in CERCLA’s
text. If endorsed by this Court, that judicial alteration will
bring new layers of factual issues into already complex and
burdensome CERCLA litigation.
By upsetting the carefully crafted contribution
provisions of § 113(f), the court of appeals’ new § 107 PRP
remecy will impair the government's interests and those of
private parties, will result in additional inefficient litigation,
and will increase, not reduce, uncertainty regarding when
cost recovery is available. Properly read, CERCLA does not
provide this remedy, and the remedies i does provide
sufficiently serve the statutory goals of remediation and
responsibility.
ARGUMENT
I. CERCLA §107(a) DOES NOT CREATE ANY
RIGHT FOR LIABLE PARTIES TO
INDEPENDENTLY PURSUE PRIVATE CLAIMS.
A. PRPs ARE SPECIFICALLY EXCLUDED FROM
PURSUING DIRECT COST-RECOVERY CLAIMS
UNDER § 107(a)(4)(B).
Section 107(a) establishes four categories of responsible
parties and then provides that they shall be liable for certain
government costs and “any other necessary costs of response
incurred by any other persoz....” The plain meaning of this
text is apparent through its double use of the word “other.”
The first instance of “other” refers to the type of costs at
issue and distinguishes them from costs incurred by the
government and recoverable under § 107(a)(4)(A).
What then of the second “other”? Under the Eighth
Circuit’s reading — that PRPs may assert § 107 cost recovery
claims — that second “other” would be rendered superfluous
and would merely duplicate the same distinction that the first
already accomplished. In contrast, the United States’ reading
properly gives life to both “others” by confirming that the
sentence refers to those “other” than the covered “persons”
(i.c., PRPs) described in § 107(a)(1) (4) above. Read
properly, § 107(a)(4)(B) establishes liability for costs “other”
than governmental costs by persons “other” than PRPs.
B. THE EVOLUTION OF CERCLA § 107(a)(4)(B)
DIRECTLY SUPPORTS. THAT SECTION’S PLAIN
LANGUAGE,
The evolution of § 107(a)(4)(B) confirms that exact
textual meaning. The House of Representatives and the
Senate initially offered very different solutions to the
environmental concerns that CERCLA addresses. The House
authored H.R. 7020, 96" Cong. (Sept. 23, 1980), which
ofie
would only have permitted suit by “|t]he Administrator, or
any other such governmental entity to which a person is
liable under this section for the recovery of costs....” Jd. at
§ 3071. In contrast, the Senate Environmental and Public
Works and Finance committees reported S. 1480, 96" Cong.
(Nov. 18, 1980). That bill contained dramatically broader
liability provisions including the predecessor to CERCLA
§ 107(a)(4)(B). Among other things, it would have permitted
private parties to recover “all damages for economic loss or
loss due to personal injury or loss of natural resources
resulting from such a discharge, release, or disposal....” Jd. at
§ 4(aXiv)(2). — -
There was substantial controversy over the breadth of the
liability provisions in these conflicting bills. For example,
the “Stafford-Randolph Superfund Substitute,” which was
introduced one month before CERCLA’s enactment, was
intended to “eliminate those features which have proven most
controversial,” such as “a third party cause of action for
damages, including medical expenses and economic loss....”
126 Cong. Rec. 29,699 (daily ed. Nov. 14, 1980) fstatement
of Sen. Stafford). Extensive negotiations regarding the scope
of liability and other measures ensued. See, e.z., 126 Cong.
Rec. 30,349 (daily ed. Nov. 20, 1980).
Ultimately, the Senate responded by adopting far
narrower liability provisions in a revised version of H.R.
7020. That revised version — which was subsequently
adopted by the House of Representatives and enacted into
law - made two key changes. First, in keeping with the
compromise position of a narrower private liability scheme,
tie Senate deleted those provisions that would have
permitted broad private recovery of damages and economic
loss. H.R. 7020, 96" Cong. § 107 (Nov. 24, 1980).
Second, and of critical import here, the Senate rewrote
CERCLA § 107(a)(4)(B) into its final form. In the previous
version of S. 1480, the predecessor to that section would
have created liability for “any other costs or expenses
e
incurred by any person to remove a hazardous substance....”
S. 1480, 96"™ Cong. § 4(a)(4)(B) (Nov. 18, 1980) (emphasis
added). In contrast, the new Senate version of H.R. 7020
provided for liability of “any other necessary costs of
response incurred by any other person....” H.R. 7020, 96"
Cong. § 107(a)(4)(B) (Nov. 24, 1980) (emphasis added).
This evolution directly contradicts the Eighth Circuit’s
premise that the phrase “‘any other person’ means any person
other than the statutorily enumerated ‘United States
Government or a State or an Indian tribe.”” Atl. Research,
459 F.3d at 835. While making various changes to sharply
limit the scope of private rights under CERCLA, the Senate
added the crucial second “other” to § 107(a)(4)(B). That
addition in such a context evidences a plain intent to restrict
the broad preceding version, which would have permitted
recovery “by any person.” Simply put, the change from
“any person” to “any other person” means that some
“persons” were meant to be left out. Where Congress was
acting to otherwise sharply limit private rights, it is clear who
was meant to be excluded - the categories of private parties
described in the preceding § 107(a)(1)-(4). Their rights were
addressed with the contribution provisions of § 113(f), which
were enacted in 1986.
In contrast, the predecessors to § 107(a)(4)(A)-(B) in S.
1480 were wholly adequate to separate private claims from
claims afforded to public entities. They distinguished “costs
of removal” incurred “by the United States Government or a
state” from “any other costs or expenses incurred by any
person.” Jd. If the Senate only meant to establish a category
of claims separate from government claims, the changes in its
adoption of H.R. 7020 would have been unnecessary. By
adding further qualification, Congress accomplished its
broader expressed goal of narrowing private rights by
limiting § 107(a)(4)(B) to persons “other” than those deemed
culpable under § 107(a)(1)-(4).
C. THE PRIMARY ROLE OF CERCLA Is TO
FURTHER GOVERNMENT CLEANUP,
ENFORCEMENT, SETTLEMENT AND OVERSIGHT.
The United States’ plain reading of § 107(a)(4)(B) and
Congress’ changes to that section to limit private rights are
fully consistent with CERCLA’s true role — enhancement of
government authority to address contaminated _ sites.
Congress was faced with the problem that private parties
were undertaking litthe or no remedial action. It responded
not by granting rights to those responsible for the pollution
(as the Eighth Circuit implicitly suggests),° but rather by
‘trengthening federal response and enforcement powers.
Specifically, CERCLA provided the United States with “‘the
tools necessary for a prompt and effective response to
problems of national magnitude resulting from hazardous
waste disposal.”” Dedham Water Co. v. Cumberland Farms
Dairy, Inc., 805 F.2d 1074, 1081 (1st Cir. 1986) (quoting
United States v. Reilly Tar & Chem. Corp., 546 F. Supp.
1100, 1112 (D. Minn. 1982)).®
CERCLA’s text readily illustrates that its various
provisions created badly needed public enforcement authority
to clean up contaminated sites and, as necessary, to compel
private parties to cooperate in such efforts. See, e.g., 42
U.S.C. § 9604(a) (federal removal of hazardous substances);
42 U.S.C. § 9604(c) (federal demand for information relevant
to hazardous substance contamination); 42 U.S.C. § 9606(a)
$ , .
See Atl. Research, 459 F.3d at 837 (suggesting that CERCLA was
enacted to “encourag|¢}” the “voluntary cleanup of contaminated sites”).
; See also Bestfoods, 524 U.S. at 55, United States v. Monsanto Co., 858
F.2d 160, 167 (4th Cir. 1988); Witco Corp. v. Beckhuis, 38 F.3d 682, 688
(3d Cir. 1994): Sidnev S. Anst Co. v. Pipefitters Welfare Educ. Fund, 25
F.3d 417, 420 (7th Cir. 1994); Kaiser Aluminum & Chem. Corp. v.
Catellus Dev. Corp., 976 F.2d 1338, 1340 (9th Cir. 1992), Anspec Co. v.
Jolnson Controls, Iné., 922 F.2d 1240, 1247 (6th Cir. 1991); United
States v. Aceto Agric. Chems. Corp., 872 F.2d 1373, 1380 (1th Cir.
1989).
_9.
(administrative remediation orders); 42 U.S.C. § 9606(b)
($25,000 daily fine for non-compliance with federal order);
42 U.S.C. § 9607(a)(4)(A) (cost recovery actions); 42 U.S.C.
§ 9607(e) (barring agreements to protect PRPs from cost
recovery claims); 42 U.S.C. § 9607(f) (natural resources
liability). In contrast, the Eighth Circuit attempts to draw its
inference of a broad purpose to promote voluntary cleanup
from just one statutory sentence — § 107(a)(4)(B).
CERCLA’s legislative history further affirms that
enforcement — not voluntary private remediation - was
Congress’ principal focus. Congressman Florio, in
describing the legislation, stated: “Both Houses addressed
the key concerns which had to be dealt with in hazardous
substance legislation” by ensuring that “the Government has
been given the necessary authority to respond to hazardous
substance releases.” 126 Cong. Rec. 31,964 (daily ed. Dec.
3, 1980). Similarly, Senator Leahy, remarking on the
legislation, stated that CERCLA was designed to ensure that
“the Federal Government’s ability to respond to incidents
involving hazardous and highly toxic substances will be
greatly strengthened.” Jd. at 30,971 (Nov. 24, 1980); see
also id. (Senator Chafee observing that CERCLA was
intended to provide “a tool for holding liable those who are
responsible for these costs”).
Nor did Congress’ subsequent authorization of
contribution claims under the Superfund Amendments and
Reauthorization Act of 1986 (“SARA”), Pub. L. 99-499, 100
Stat. 1613, alter this equation. Congress did not enact the
focused rights existing under § ) 13(f) to further cleanups of
the sort performed by Atlantic Research here, Con Ed in the
Second Circuit case, or Aviall Services in the Fifth Circuit
proceeding. Rather, it provided a proportionate private party
response to enforcement action where such enforcement
created uneven liability. In other words, SARA limited the
side-effects of CERCLA’s joint and several liability scheme.
As stated by the Senate Committee on Environment and
Public Works upon reporting the bill that became law, “when
- 10-
joint and several liability is imposed under Section 106 or
107 of the Act, a concomitant right of contribution exists
under CERCLA.” See 99 Cong. Sen. Rep. 11 at *44
(emphasis added: That says nothing of voluntary
remediation.
The contribution rights created by Congress directly
enhance federal remedial and enforcement efforts.
Presuming § 107(a) is read properly, § 113(f(3)B) strongly
encourages private entities to enter into “administrative or
judicially approved scttlement{s]” by creating a right to
contribution for those who cooperate. § 113(f(3)(B).
Congress further lured liable parties to acquiesce to
government demands by providing the “carrot” of
contribution protection for settling parties. See § 113(f(2).
Those provisions create limited private rights only in
response to government action.
This Court’s decision in Cooper Industries corrected the
courts that had strayed from § 113(f)(1)’s statutory text by
attempting to broaden .it into a general private cause of
action. That same guidance is now necessary in the context
of § 107(a). The Eighth Circuit’s approach would once again
unbalance CERCLA’s “cause and effect” statutory scheme.
Instead of limiting private cost recovery claims to parties
“other” than PRPs, it would broaden that right to anyone and
everyone. Such an approach would permit parties deemed
legally responsible under CERCLA to bypass Congress’
express restrictions in § 113(f) and instead use CERCLA to
first suppose and then resolve inequities that the statutory
scheme did not create. As aptly described by the United
States, Br. for U.S. at 36-46, permitting covered persons
under § 107(a)(1)-(4) to avoid Congress’ contribution
scheme through the creation of a new cost recovery action
would significantly impair (rather than advance) enforcement
activity.’
—
The effect that enabling almost limitless § 107 claims would have on
state law also supports a limited reading of § 107. The court below
fj.
Il. A NEW §107 RIGHT WOULD RESULT IN
NEEDLESS UNCERTAINTY AND UNFAIR
EXPOSURE FOR DEFENDANT PRPS.
A PRP cost-recovery claim will damage CERCLA’s
statutory structure and burden defendant PRPs_ with
additional, protracted CERCLA litigation over the scope and
application of that claim. The primary structural harm
involves § 113(f), which will no longer provide the
incentives and protections it promises because a PRP cost-
recovery claim under § 107 offers a far more powerful
remedy than a § 113 contribution claim. Section 107(a)
makes each PRP strictly liable for the entire cleanup cost. In
contrast, § 113(f) provides for contribution claims that
allocate costs among PRPs based on “equitable factors,”
§ 113(f)(1), and carry a shorter limitations period. Compare
§§ 113 (g)(2) & (g)(3); 9613(g 2) & (g)(3).
The court of appeals contends that its new § 107 claim
is needed to prevent the government from evading liability.
See Ail. Research, 459 F.3d at 837. But this is factually
unwarranted, see Br. for U.S. at 44-45, and ignores the
effects that creating such a claim will have on CERCLA
cases in which the United States is not potentially liable,
including cases in which amici are involved. In most cases,
the court of appeals’ concern will have no bearing.
opined that “CERCLA effectively transformed centuries of real property
and tort liability law by making those who contaminate a site strictly
liable for the costs of subsequent cleanup by others....” Atl. Research,
459 F.3d at 830 (citations omitted). If Congress had meant to eradicate
fundamental contract, property and tort jurisprudence in al! circumstances
~— rather than in a limited subset involving government enforcement -
there would certainly have been mention of that fact in CERCLA’s
statutory text and legislative history. There is not, and that silence is
telling.
ae.
The first untoward side-effect of manufacturing a new
§ 107 PRP claim would be the creation of a powerful
incentive for PRPs to avoid settling with the government in
order to remain “voluntary” and thus ensure eligibility for the
new right of cost recovery. This runs sharply contrary to
CERCLA’s primary goal of enhancing public enforcement
and oversight. See Section I.C., supra. “Voluntary” PRPs
would attempt to use the new § 107 cost recovery claim to
circumvent the statutory protection afforded persons that
settle with the government. See §§ 113(f(2) & 122(g)5).
PRPs that would otherwise settle to “buy peace” and achieve
finality may not if they would face new demands under the
theory that the protection of § 113(f\(2) extends only to
“claims for contribution” and not those for “cost recovery.”
Amicus MeadWestvaco is involved in just such a
case, Solutia, Inc. v. McWane, No. CV-03-PWG-1345-E,
which is pending before the United States District Court for
the Northern District of Alabama. MeadWestvaco is among
a group of settling companies that agreed to conduct a
removal action at a site in Anniston, Alabama. As a part of
that setthement, MeadWestvaco received contribution
protection from the government under § 113(f)(2). Yet
despite that protection, MeadWestvaco and the other settling
parties have been sued on the precise § 107(a)(4)(B) theory
now before this Court. Such claims will greatly deter
settlement and preclude further cooperative remedial efforts
under proper EPA supervision.
Second, the expected allegation that the new § 107
cost recovery claim would shift the entire remediation cost to
each defendant, jointly and severally, is inconsistent with the
pro rata allocation that § 113 provides. The Second and
Eighth Circuits attempt to resolve this conflict by suggesting
that the liabilities would be allocated equitably through § 113
contribution counterclaims. Conol. Edison, 423 F.3d at 100
n.9: Atl. Research, 459 F.3d at 835. But that tactic does not
solve the core inequalitics created by the proposed new
claim. Section § 107 plaintiffs will argue that the burden of
e §3<
proof for proper allocation has shifted to the defendants
instead of falling on the plaintiff as it would in a § 113
action. Section 107 plaintiffs would also contend that, under
the rule of joint and several liability, the defendant must
assume the “orphan shares” attributed to insolvent or missing
PRPs. Further, if the PRP plaintiff settled with the
government and obtained contribution protection under
§ 113(f)(2), it would no doubt contend it was wholly immune
from the defendant’s § 113(f) contribution counterclaims.
Thus, a PRP § 107 claim would impose substantial
unfair burdens on defendants, especially those whose
involvement with a site was long ago and _ poorly
documented. Amicus UGI Utilities is an exemplar: it was
sued over events that took place more than a century ago. If
this Court allows the PRP § 107 claim created by the court of
appeals, the lower courts will- have to resolve whether
defendants like UGI must bear the burden of proving the
extent of the parties’ involvement, even though the party
suing has admitted its partial responsibility for the cleanup
and even though such defendants will be hobbled by
documentation and witnesses lost as a result of the long
passage of time.
Because the cleanup for which a § 107 claim would
seek recovery is, by definition, completed without
government oversight, the tools available to the § 107
plaintiff could also result in costs being imposed upon
defendants for a cleanup that was inefficient, incomplete or
overbroad. <A_ plaintiff PRP’s incomplete “voluntary”
cleanup could be ordered redone by the government at some
later date, with the defendant PRPs that paid for the first
cleanup unfairly tapped to pay for a second.
It might be tempting as a matter of policy to argue
that a § 107 claim would encourage prompt cleanup by
bestowing cost-recovery rights on PRP plaintiffs that are
denied to PRP defendants. See Consol. Edison, 423 F.3d at
102 (only a party that “has not been sued” may use § 107).
«Ons
But, aside from the inefficiencies that would result from this
sort of race to the courthouse, that policy would necessarily
be inequitable. There is only one PRP — the landowner ~ that
is in a position to conduct voluntary cleanup. Landowners
are not likely to grant access to former owners or waste
disposers to conduct a cleanup, especially if it means the
landowner would then be subject to the type of § 107 claim
the Eighth Circuit envisions. Even if it were consistent with
the text and Congress’ meaning, the Eighth Circuit’s new
§ 107 right would thus create further inequities by
empowering only a limited subset of PRPs, at the expense of
those who are unable to conduct a “voluntary” cleanup.
Those who are left out would find themselves targeted in
lawsuits without the benefits of government-supervised
cleanup, the restriction of a shorter statute of limitations
under § 113(g) and the shelter of contribution protection
under § 113(f}(2).
Wholly apart from these inconsistencies, a PRP cost-
recovery claim would create numerous new factual and legal
quagmires to be litigated, thus consuming parties’ and courts’
limited resources. For example, the “voluntary” limitation
that the courts below have grafted onto their newly-minted
§ 107 right (which has no statutory basis but is created to
prevent the complete displacement of § 113(f)) would raise
another nebulous issue for further litigation: Which plaintiffs
are “voluntary”? As the Second Circuit itself has already
conceded, this “makes relevant ... whether and to what
extent plaintiffs incurred response costs voluntarily
... | which] is of course a question of fact,” AMW Materials
Testing, Inc. v. Town of Babylon, No. 05-206-CV, 2006 WL
851772, at *1 (2d Cir. Mar. 28, 2006) (unpublished summary
order). Whether a putative § 107 PRP plaintiff is only
“partly responsible,” At/. Research, 459 F.3d at 829, or “did
not pollute the site in any way,” Metro. Water Dist. of
Greater Chi. v. N. Am. Galvanizing & Coatings, Inc., 473
F.3d 824, 836 (7th Cir. 2007), are the sorts of factual
questions that would be litigated at length under a new § 107
Structure.
-15-
Additional questions will arise in determining
whether parties that are conducting voluntary cleanups under
the “Brownfields Program” and protected from government
action, see 42 U.S.C. § 9628(b), would qualify for § 107
claims against others and, if so, under what circumstances.
Conversely, will parties who thought themselves entitled to
that protection find themselves facing § 107 claims?
Limiting § 107(a) claims to some but not all PRPs, as the
Second and Eighth Circuits have suggested, would mean that
simply establishing CERCLA liability will no longer suffice
as the threshold finding in a CERCLA lawsuit. Rather,
parties will be required to litigate factual questions over the
circumstances of liability, substantially increasing the
burdens on parties and courts alike.
x*re**
Allowing new § 107 rights would prompt additional
rounds of costly litigation to establish metes and bounds for
the new cause of action, mirroring the two decades of
litigation that already have been devoted to establishing the
limits of Congress’ § 113 remedy. Many of those issues
could not be addressed here, because this case does not
present, for example, the need to reconcile multiple § 107
claims asserted by PRPs or the scope of contribution
protection for a PRP that has settled with the government.
This would impose a substantial additional burden on the
federal judiciary and give rise to repeated requests for this
Court to resolve many new issues in the years to come.
There is no justification for imposing these burdens
on courts and litigants. As the government has aptly
described, CERCLA’s text and structure amply serve
Congress’ goals of remediation and responsibility. Upsetting
the remedies and structure Congress chose is not, contrary to -
the court of appeals* conclusion, justified by the
(mis)perceived goal of maximizing “voluntary” cleanups:
= =
[NJo legislation pursues its purposes at all costs.
Deciding what competing values will or will not be
sacrificed to the achievement of a_ particular
objective is the very essence of legislative choice —
and it frustrates rather than effectuates legislative
intent simplistically to assume that whatever
furthers the statute’s primary objective must be the
law.
Rodriguez v. United States, 480 U.S. 522, 525-26 (1987)
(emphasis in original). Because the new § 107 claim crafted
by the courts below is contrary to the statute’s text,
inconsistent with its structure and purpose, and burdensome
to administer, the creation of that claim is unwarranted and ill
conceived.
CONCLUSION
The judgment of the court of appeals should be
reversed.
Respectfully submitted,
JAY N. VARON DALE E. STEPHENSON*
FOLEY & LARDNER LLP ALLEN A. KACENJAR
3000 K Street, N.W. .
Suite 500 SQUIRE, SANDERS &
DEMPSEY L.L.P.
4900 Key Tower
127 Public Square
Cleveland, OH 44114-1304
G. MICHAEL HALFENGER (216) 479-8500
PAUL BARGREN -
FOLEY & LARDNER LLP
777 East Wisconsin Avenue
Milwaukee, WI! 53202-5306
(414) 271-2400 * COUNSEL OF RECORD
Washington, D.C. 20007
(202) 672-5300
=~
os .
>
n
’
,
=
Sa!
~
APPENDIX |
la
APPENDIX
, UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION
Civil Action No. 3:97-CV-1926-D
TEXAS, DALLAS DIVISION AVIALL SERVICES, INC.,
Plaintiff-counterdefendant,
VS.
COOPER INDUSTRIES, LLC,
Defendant-counterplaintiff.
August 8, 2006, Decided
August 8, 2006, Filed .
MEMORANDUM OPINION AND ORDER
The court must decide whether a private potentially
responsible person (“PRP”) under the Comprehensive En-
vironmental Response, Compensation, and Liability Act
(“CERCLA”), 42 U.S.C. §§ 9601-9675, can bring a cost
recovery or contribution action under CERCLA § 107(a) or
under federal common law against another PRP. The court
holds that it cannot.
I
The court assumes the parties’ familiarity with the back-
ground facts and extensive procedural history of this case. It
therefore briefly summarizes the case and adds pertinent
background facts and procedural history to assist im under-
standing today’s decision. Cooper owned four sites at which
it operated an aircraft engine maintenance business. Cooper
Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 163, 125 S.
Ct. 577, 160 L. Ed. 2d 548 (2004). In 1981 it sold the
2a
business to Aviall, who later discovered that both Aviall
and Cooper has contaminated the soil and groundwater at the
sites with hazardous substances. /d.' Aviall later sold the
properties but retained contractual liability for the cleanup.
During the period when Aviall was the owner, it notified
the Texas Natural Resource Conservation Commission
(“TNRC”) of the pollution. /d. at 164. TNRC advised Aviall
that it was violating state environmental laws, directed it to
clean up the site, and threatened enforcement action if Aviall
failed to undertake remediation. /d. Aviall voluntarily cleaned
up the properties, and neither the Environmental Protection
Agency (“EPA”), TNRC, nor any other governmental entity
has undertaken judicial or administrative measures against
Aviall or Cooper. Jd. No third party has sued Aviall or
Cooper concerning any of the conditions or the facilities.
Aviall sued Cooper in this court secking to recover the
cleanup costs it had expended and those that it anticipated
incurring in the future. /d. It asserted claims for cost recovery
under CERCLA § 107(a), for contribution under CERCLA
§ 113(f)(1), and for a declaratory judgment under the federal
Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, and it
alleged various pendent state-law claims.” /d. Aviall amended
' One of the four sites is contaminated with petroleum hydrocarbons,
and the parties have stipulated that Avial! does not seek to hold Cooper
liable under CERCLA for the cleanup costs incurred at this site.
” Aviall sought relief based on theories of breach of contract; breach of
express warranty; contractual indemnification; declaratory judgment;
contribution under CERCLA § 113(f)(1); contribution under § 361.344(a)
of the Texas Solid Waste Disposal Act, Tex. Health & Safety Code
Ann. § 361.344(a) (Vernon 1992 & Supp. 2000), contribution under
§ 26.3513(j) of the Texas Water Code, Tex. Water Code Ann. § 26.3513(j)
(Vernon 1998 & Supp.2000); quantum meruit; and attorney's fees. See
Aviall Servs., Inc. v. Cooper Indus., Inc., 2000 U.S. Dist. LEXIS 520,
2000 WL 31730, at *1 (N.D.Tex. Jan. 13, 2000) (Fitzwater, J.), rev'd, 312
F.3d 677 (Sth Cir. 2002) (en banc), rev'd, 543 U.S. 157, 125 S. Ct. 577,
160 L. Ed. 2d 548 (2004).
3a
its complaint, dropping the independent § 107(a) claim and
alleging instead under § 113(f)(1) that it was entitled to seek
contribution from Cooper as a PRP under § 107(a) for
response costs and other liability. /d.
Both parties moved for summary judgment, and the court
held that Aviall could not maintain a § 113(f)(1) claim be-
cause it had not alleged any prior or pending CERCLA
enforcement action against it. See Aviall Servs., Inc. v.
Cooper Indus., Inc., 2000 U.S. Dist. LEXIS 520, 2000 WL
31730, at *4 (N.D. Tex. Jan. 13, 2000) (Fitzwater, J.), rev'd,
312 F.3d 677 (Sth Cir. 2002) (en banc), rev'd, 543 U.S. 157,
125 S. Ct. 577, 160 L. Ed. 2d 548 (2004). The court
dismissed the claim without prejudice. /d. The CERCLA
claim was the sole basis for the court to exercise subject
matter jurisdiction (the parties are not diverse). Having dis-
missed that claim on the merits, the court declined in its
discretion to exercise supplemental jurisdiction over Aviall’s
pendent state-iaw causes of action. /d. at *5.
Although a panel of the Fifth Circuit initially affirmed,’
the en banc Fifth Circuit reversed, holding that § 113(f(1)
authorizes a PRP to seek contribution from other PRPs for
- cleanup costs when no civil action has been brought under
§ 106 or § 107(a). Aviall Servs., Inc. v. Cooper Indus., Inc.,
312 F.3d 677, 691 (Sth Cir. 2002) (en banc), rev'd, 543 US.
157, 125 S. Ct. 577, 160 L. Ed. 2d 548 (2004). The Supreme
Court granted certiorari, Cooper Industries, Inc. v. Aviall
Services, Inc., 540 U.S. 1099, 124 S. Ct. 981, 157 L. Ed. 2d
811 (2004), and reversed and remanded, holding that § 1 13(f)
“authorizes contribution claims only ‘during or following’ a
civil action under § 106 or § 107(a), and it is undisputed that
* Aviall Servs... Inc. v. Cooper Indus., Inc., 263 F.3d 134 (Sth Cir.
2001), reh'g granted en bane, 278 F.3d 416 (Sth Cir. 2001), rev'd, 312
F.3d 677 (Sth Cir. 2002) (en banc), rev'd, $43 U.S. 157, 125 S. Ct. $77,
160 L. kd. 2d S48 (2004).
4a
Aviall has never been subject to such an action.” Cooper
Indus., 543 U.S. at 168. .
Aviall and amicus Lockheed Martin Corporation contended
in the Supreme Court that if Aviall could not recover under
§ 113(f), it could do so under § 107(a), despite its PRP status.
Id. The Court noted that neither this court, the Fifth Circuit
panel, nor the en banc Fifth Circuit had considered a
§ 107(a)claim. /d. It concluded that both the § 107(a) claim
and the question whether Aviall had waived the claim
“merit{cd]} full consideration by the courts below.” Id. at 169
(“Both the question whether Aviall has waived this claim and
the underlying § 107 question (if it is not waived) may
depend in part on the relationship between §§ 107 and 113.”).
Accordingly, the Court remanded for further proceedings
consistent with its opinion. Two justices dissented, stating
that the Court “unnecessarily defers decision on Aviall’s
entitlement to recover cleanup costs” under § 107. /d. at 171-
72 (Ginsburg, J., dissenting). The dissenting justices indicated
that they viewed § 107 as providing a cause of action for
PRPs to recover from other PRPs. See id.
On remand to the Fifth Circuit, the en banc court ordered
the case remanded to this court “with instructions to permit
Aviall . . . to amend its complaint, if necessary, to assert, free
of any challenge of waiver or forfeiture, whatever statutory
claims it urges in light of the Supreme Court’s decision,
without prejudice to Ceoper[’s}] . . . other defenses.” Aviall
Servs., Inc. v. Cooper Indus., Inc., No. 00-10197, order at 1-2
(Sth Cir, Feb. 15, 2005) (en banc) (order).*
* In response to the Fifth Circuit’s order, Cooper filed in the Supreme
Court a petition for a writ of mandamus. It maintained that the Fifth
Circuit contravened the Supreme Court’s mandate “when, without the
benefit of any substantive briefing or argument, [the Fifth Circuit] issued
a remand order to ‘permit Aviall . . . to amend its complaint . . . free of
any challenge of waiver or forfeiture’ despite [the Supreme] Court's ex-
press determination that the ‘preliminary waiver question’ should, on re-
Sa
Under the Fifth Circuit’s order, this court permitted Aviall
to file its third amended complaint (“third complaint”).°
Aviall sues Cooper on theories of cost recovery under
CERCLA § 107(a), 42 U.S.C. § 9607(a), for response costs
incurred or to be incurred under CERCLA; in the alternative,
contribution under CERCLA § 107, 42 U.S.C. § 9607;
common law contribution under state and federal law to
recover its response costs attributable to Cooper; contribution
under the Texas Solid Waste Disposal Act, Tex. Health &
Safety Code Ann. § 361.344(a) (Vernon 2001 & Supp. 2005);
contribution under the Texas Water Code, Tex. Water Code
Ann. § 26.3513(j) (Vernon 2000 & Supp. 2005); breach of
contract; breach of warranty; contractual indemnification;
declaratory judgment; quantum meruit; and-attorney’s fees.
Cooper asserts two counterclaims. First, it seeks contribution
under CERCLA § 113(f)(1) to the extent there have been any
releases or threatened releases of hazardous substances within
the meaning of § 107(a). Second, Cooper sues for contrac-
tual indemnification, release, and breach of contract under
Texas law. |
The parties have filed several substantive motions, but the
one logically addressed first is Cooper’s motion for partial
mand from [the Supreme] Court, receive ‘full consideration by the courts
below.” Pet. for Writ of Mandamus, /n re Cooper Indus., Inc., 544 U.S.
1031, 125 S. Ct. 2255, 161 L. Ed. 2d 1081 (2005) (No.04-1182). Pending
disposition of the petition in the Supreme Court, this court stayed the
proceedings until the Supreme Court denied mandamus on May 16, 2005.
See id.
* Cooper “respectfully recognizes that the Fifth Circuit’s instruction
allowing Aviall to assert CERCLA statutory claims ‘free of any challenge
of waiver or forfeiture’ precludes this Court trom further addressing
Cooper's strong waiver defenses to Aviall’s renewed CERLA § 107(a)
claims at this time.” D. Br. 3 n.3. Although Aviall contends it “never
dropped its § 107(a) [claim], . . . this point is moot,” “[g]iven the Fifth
Circuit’s mandate.” P. Br. 2. Pursuant to the Fifth Circuit’s order, the
court will not address the waver Issue.
6a
summary judgment on all federal claims. If as a matter of law
Aviall cannot recover against Cooper under CERCLA or
federal common law, the court will as before dismiss Aviall’s
federal-law claims and decline to exercise supplemental
jurisdiction, and the parties can continue this litigation in state
court based on state law. Cooper maintains that Aviall cannot
bring a cost recovery action under CERCLA § 107(a) because
it is a PRP and that Aviall has no right of contribution under
§ 107(a) or federal common law. It argues that Aviall must
seck contribution under § | 13(f)(1), at the time when such an
action can be maintained.°
Il
The court decides first whether Aviall can bring a cost
recovery action under § 107(a).
A
The parties contend this question has already been decided
in this circuit. Cooper points to three decisions that it argues
foreclose Aviall’s claim. It cites the panel majority’s opinion
in Aviall Services, in which it observed that “[t]he § 107(a)
cost recovery provision permits the government or an
‘innocent’ private party to recoup cleanup costs from PRPs.”
Aviall Servs., 263 F.3d at 137. Cooper relies on the panel's
conclusion that “a PRP cannot file a § 107(a) suit against
another PRP; it must pursue a contribution action instead.” /d.
Under Fifth Cir. R. 41.3, however, “[u]nless otherwise
expressly provided, the granting of a rehearing en banc
vacates the panel opinion and judgment of the court and stays
the mandate.” The en banc court in Aviall Services did not
adopt an exception to this Rule in abrogating the panel
opinion. Accordingly, although perhaps suggestive of the
views Of some members of the Fifth Circuit, the panel
° Of course, under the Supreme Court’s decision in Cooper Industries,
such an action would presently be premature, because Aviall has not yet
been subjected to a civil action under § 106 or § 107(a) of CERCLA.
Ta
decision in Aviall Services is not binding and does not fore-
close Aviall from asserting a right to bring a cost recovery
action under § 107(a).
Cooper also relies on OHM Remediation Services v. Evans
Cooperage Co., 116 F.3d 1574 (Sth Cir. 1997). In OHM
Remediation the Fifth Circuit reversed a summary judgment,
holding, inter alia, that “section 113(f) contribution actions
may only be brought by persons who are liable or potentially
liable under CERCLA.” /d. at 1582. The appellee had as-
serted three independent grounds for affirming the appellant’s
§ 107(a) claim that the district court had not addressed. /d. at
1583. One ground was that, because the appellant was a PRP,
it could not bring an action under § 107(a). /d. The Fifth
Circuit declined to reach all three grounds, noting that they
“involve|d] difficult questions of fact regarding the extent of
cleanup and the nature of [appellant’s] involvement with the
site.” Jd. Cooper argues that the panel “acknowledged that the
determination of [the appellant’s] historic[al] ‘involvement
with the site’—i.e., the factual question of whether [the
appellant] was a PRP or an ‘innocent party’—would be
dispositive of its ability to bring a § 107(a) cost recovery
claim.” D. Br. 6. The court rejects Cooper’s construction of
OHM Remediation. The panel explicitly expressed “no
opinion on the separate question . .. whether a PRP may seek
to hold other parties jointly and severally liable under
§ 107(a) for response costs.” OHM Remediation, 116 F.3d at
1582 n.1. It is that question, which the OHM Remediation
panel did not decide, that this court resolves today.
Finally, at oral argument, Cooper contended the Fifth
Circuit’s recent decision in FElementis Chromium L.P. v.
Coastal States Petroleum Co., 450 F.3d 607 (Sth Cir. 2006),
forecloses a PRP from bringing a cost recovery action under
§ 107(a). It cites language in which the panel explicitly
agreed with the following holding of the Eleventh Circuit:
““(W]hen one liable party sucs another hable party under
CERCLA, the action is not a cost recovery action under
8a
§ 107(a).. . .’” Id. at 613 (quoting Redwing Carriers, Inc. v.
Saraland Apartments, 94 F.3d 1489, 1513 (11th Cir. 1996)).
The court disagrees with Cooper’s reliance on Elementis.
In Elementis the panel cited Redwing Carriers for the
proposition that liability must be allocated under § 113(f)(1),
that is, liability is not joint and several. Id. Indeed, E/ementis
held only that liability under § 113(f) is several, and it did not
squarely decide whether a private PRP can bring a cost
recovery action against another PRP under § 107(a).
B
For its part, Aviall maintains that the Fifth Circuit in
Tanglewood East Homeowners v. Charles-Thomas, Inc., 849
F.2d 1568 (Sth Cir. 1988), expressly allowed a PRP to
recover under § 107(a). It urges that since Tanglewood was
decided, the Fifth Circuit has consistently recognized the
right of PRPs to bring cost recovery actions under § 107(a).
See Aviall Servs., 312 F.3d at 683; Geraghty & Miller, Inc. v.
Conoco Inc., 234 F.3d 917 (Sth Cir. 2000); Amoco Oil Co. v.
Borden, Inc., 889 F.2d 664 (Sth Cir. 1989). The court
disagrees. Although the question whether one PRP can bring
a § 107(a) cost recovery claim against another PRP may have
been “lurk[ing] in the record” in those cases, none squarely
considered or decided it. See Webster v. Fall, 266 U.S. 507,
511, 45 S. Ct. 148, 69 L. Ed. 411 (1925) (“Questions which
merely lurk in the record . . . are not to be considered as
having [*15] been so decided as to constitute precedents.”).
In Tanglewood the court granted an interlocutory appeal
under 28 U.S.C. § 1292(b) for the limited purpose of
determining whether the district court erred in rejecting
defendants’ motion to dismiss. Tanglewood, 849 F.2d at
1571. One aigument that the appellant advanced on appeal
was that some degree of governmental involvement was a
necessary prerequisite for the application of § 107. /d. at
1575. In affirming the district court, the Fifth Circuit held,
inter alia, that the plaintiffs, who were homeowners who had
9a
purchased residential lots in a housing subdivision, had stated
a claim for relief under § 107, because no “prior govern-
mental involvement is a prerequisite to the recouping of
response costs.” /d. The court did not discuss, for instance,
whether the plaintiffs qualified for the “innocent landowner
defense” under § 107(b)(3) and thus were not PRPs. The
possibility that the plaintiffs were PRPs was not mentioned in
the opinion, much less litigated by the parties. Cf. id. at 1572-
74 (deciding whether defendants were PRPs). Accordingly,
Tanglewood did not decide the issue presented here.
Likewise, the other cases that Aviall cites do not support its
contention that this question has been resolved. Even if the
cases contain language that implicitly appears to endorse
Aviall’s view, none of the decisions expressly addressed the
question whether a PRP could bring a cause of action under
§ 107. There is no indication that the issue was brought to the
attention of the court or ruled on. The courts addressed
distinct, even if related, questions regarding CERCLA.
See Aviall Servs., 312 F.3d at 682-83 (addressing whether
PRPs could seek contribution from other PRPs under § 113);
Geraghty & Miller, 234 F.3d at 924-25 (addressing which
CERCLA statute of limitations applied to initial contribution
action); Amoco Oil, 889 F.2d at 668 (addressing whether PRP
was required to show that property’s radioactive emissions
violated quantitative threshold to establish release of haz-
ardous substance within meaning of § 107(a)(4)). :
” Aviall also urges that the Supreme Court's decision in Key Tronic
Corp. v. United States, 511 U.S. 809, 114 S. Ct. 1960, 128 L. Ed. 2d 797
(1994), recognized an independent cause of action for PRPs under § 107.
Key Tronic addressed whether a PRP could claim attorney's fees in a
contribution action brought against another PRP. It did not involve the
question presented to this court: whether a private PRP can bring a
§ 107(a) cost recovery action against another PRP. See also Cooper
Indus., 543 U.S. at 170 (“[We are not prepared—as the dissent would
have it—to resolve the § 107 question solely on the basis of dictum in Kev
Tronic.”’).
10a
In sum, “{t}he Fifth Circuit has not directly addressed the
issue of precisely who may bring a claim under § 107(a).”
Vine Street LLC v. Keeling, 362 F.Supp.2d 754, 763 (E.D.
Tex. 2005).* Cooper’s motion squarely presents that issue
and the question whether Aviall can sue for cost recovery or
~ contribution under CERCLA or federal common law.
Ill
The court now decides whether Aviall, a private PRP, can
bring a cost recovery action against Cooper under § 107(a).
A
“The appropriate starting point when interpreting any
statute is its plain meaning.” United States v. Elrawy, 448
F.3d 309, 315 (Sth Cir. 2006) (citing United States v. Ron
Pair Enters., Inc., 489 U.S. 235, 242, 109 S. Ct. 1026, 103 L.
Ed. 2d 290 (1989)). “The plain meaning of legislation should
be conclusive, except in the ‘rare cases [in which] the literal
application of a statute will produce a result demonstrably at
odds with the intentions of its drafters.”” Ron Pair Enters.,
489 U.S. at 242 (quoting Griffin v. Oceanic Contractors, Inc.,
458 U.S. 564, 571, 102 S. Ct. 3245, 73 L. Ed. 2d 973 (1982)).
Section 107(a) provides, in relevant part:
Notwithstanding any other provision or rule of law, and
subject only to the defenses set forth in subsection (b) of
this section -
(1) the owner and operator of a vessel or a facility,
(2) any person who at the time of disposal of any
hazardous substance owned or operated any facility at
which such hazardous substances were disposed of,
* The court of course respectfully disagrees with the conclusion of the
able district court in Fine Street that a PRP can bring a cost recovery
action under § 107(a), even though the court did so “in the unique cir-
cumstances of th[{at] case.” Vine Street, 362 F Supp.2d at 761. :
lla
(3) any person who 4y contract, agreement, or other-
wise arranged for disposal or treatment, or arranged
with a transporter for transport for disposal or treat-
ment, of hazardous substances owned or possessed by
such person, by any other party or entity, at any
facility or incineration vessel owned or operated by
another party or entity and containing such hazardous
substances, and
(4) any person who acceptsor accepted any hazardous
substances for transport to disposal or treatment
facilities, incineration vessels or sites selected by such
person, from which there is a release, or a threatened
release which causes the incurrence of response costs,
of a hazardgus substance, shall be liable for—
(A) all costs of removal or remedial action incurred
by the United States Government or a State or an
Indian tribe not inconsistent with the national
contingency plan;
(B) any other necessary costs of response incurred
by any other person consistent with the national
contingency plan. . . .
42 U.S.C. § 9607(a).
Cooper contends the second use of the word “other” in
§ 107(a)(4)(B) “any other person”-—serves to distinguish
from the other persons identified in the preceding text of
§ 107(a) those who can bring a cost recovery action under
§ 107(a). It maintains that § 107(a)(4)(B)’s reference to “any
other person” “naturally means anyone not previously
identified in this section of the statute.” D. Br. 8. The effect of
this interpretation is to limit § 107(a) actions to the persons
listed in § 107(a)(4)A) the United States Government, a
State, or an Indian Tribe—and persons who are not PRPs.
Cooper reasons that because Aviall concedes it is a PRP
within the meaning of § 107(a), Aviall docs not qualify as
12a
one of the “other” persons who can bring a § 107(a) cost
recovery action.
Aviall counters that, properly interpreted, the “any other
person” to which § 107(a)(4)(B) refers includes anyone who
is not designated in § 107(a)(4)(A), i.e., anyone other than the
United States Government, a State, or an Indian Tribe,
including PRPs. It contends that because it is not the United
States Government, a State, or an Indian Tribe, it falls within
the class of “any other person” under § 107(a)(4)(B) who can
bring a cost recovery action under § 107(a).
The parties also support their respective interpretations of
§ 107(a)(4)(B) by examining CERCLA as a whole. This ts a
proper approach. It is settled that to determine “the plain
meaning of the statute, the court must look to the particular
statutory language at issue, as well as the language and design
of the statute as a whole.” KMart Corp. v. Cartier, Inc., 486
U.S. 281, 291, 108 S. Ct. 1811, 100 L. Ed. 2d 313 (1988)
(citing Bethesda Hosp. Ass'n. v. Bowen, 485 U.S. 399, 403-
405, 108 S. Ct. 1255, 99 L. Ed. 2d 460 (1988); Offshore
Logistics, Inc. v. Tallentire, 477 U.S. 207, 220-221, 106 S. Ct.
2485, 91 L. Ed. 2d 174 (1986)). “It is ‘a cardinal principle of
Statutory construction’ that ‘a statute ought, upon the whole,
to be so construed that, if it can be prevented, no clause,
sentence, or word shall be superfluous, void, or insig-
nificant."” TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S. Ct.
44], 151 L. Ed. 2d 339 (2001) (quoting Duncan v. Walker,
533 U.S. 167, 174, 121 S. Ct. 2120, 150 L. Ed. 2d 251
(2001)). The court “must, if possible, construe a statute to
give every word some opcrative effect.” Cooper Indus., 543
U.S. at 167 (citing United States v. Nordic Vill., Inc., 503
U.S. 30,35-36,112 S. Ct. 1011, 117L. Ed. 2d 181 (1992)).
B
The court discerns the meaning of “any other person” in
§ 107(a)(4)(B) by examining CERCLA holistically. Here, the
court need only consult provisions of CERCLA—particularly
l3a
those found in § 113(f}—to see that Cooper’s reading of
CERCLA is correct and Aviall’s misplaced.
Under § 113(f)(2), “[a] party who has resolved its liability
to the United States or a State in an administrative or
judicially approved settlement shall not be liable for claims
for contribution regarding matters addressed in the settle-
ment.” See also § 122(g)5) (“A person who has resolved
its liability to the United States under this subsection shall not
be liable for claims for contribution regarding matters ad-
dressed in the settlement.”), § 122(h)(4) (same). Under
§ 113(f(3)(B),
[a] person who has resolved its liability to the United
States or a State for some or all of a response action or
for some or all of the costs of such action in an
administrative or judicially approved scttlement may
seck contribution from any person who is not party to a
settlement. . . .
/d. The effect of these provisions is that
PRPs, who choose to settle, gain protection from con-
tribution, enjoy potentially favorable settlement terms,
and retain the ability to seek contribution from other
defendants. PRPs, who choose not to settle, are barred
from seeking contribution from the settling PRPs and
thus face potentially disproportionate liability. This
system gives the United States obvious and important
leverage to encourage quick and effective resolution of
environmental disputes.
In re Reading Co., 115 F.3d 1113, 1119 (3d Cir. 1997).
Were the court to interpret § 107(a) as Aviall does, a PRP-
could bring a cost recovery action under § 107(a) against a
person who has resolved its liability to the United States or a
State in an administrative or judicially approved settlement
and, under § 113(f)(2), for example, would not be liable for
claims for contribution regarding matters addressed im the
l4a
settlement. But because, unlike § 113(f), a claim under § 107
is not for contribution, the settling person would not be
entitled to the protection of § 113(f)(2). See Centerior Serv.
Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d 344, 352
n.11 (6th Cir. 1998) (“[WJcre we to allow PRPs to seek joint
and several cost recovery under § 107(a), they could do so
against parties who had settled, and against whom they were
precluded from seeking contribution. . . . Obviously such a
result would be absurd. . . .”); Reading, 115 F.3d at 1119
(noting risk that “[c]onsent agreements would no longer
provide protection, and settling parties would have to endure
additional rounds of litigation to apportion their losses’’).
Thus Aviall’s interpretation of § 107(a) would at a minimum
render key provisions of § 113(f) superfluous, insignificant,
or, in some instances, devoid of operative effect, violating a
cardinal principle of statutory construction. See TRW Inc.,
534 U.S. at 31; see also Cooper Indus., 543 U.S. at 167
(admonishing courts to “construe a statute to give every word
some operative effect”) (citing Nordic Vill., 503 U.S. at 35-
36).’ The court therefore concludes that “any other person” in
§ 107(a)(4)(B) does not include persons who are PRPs under
§ 107(a)(1)-(4).
C
This understanding of the plain meaning of § 107(a)(4)(B)
is supported by well-reasoned precedent. Before the Supreme
Court decided Cooper Industries, all the circuits that had
* Cooper maintains, inter alia, that recognizing Aviall’s claim would
provide a § 107(a) claimant a longer period of limitations and a lower
standard of proof. CERCLA contains different statutes of limitations for
section 107{a) cost-recovery actions and for section 113 contribution
actions.” Geraghty & Miller, 234 F.3d at 923-24 (cning § 113(g)(2)(B)
and 113(g)(3)). Cooper is therefore correct that another consequence of
recognizing a direct cost recovery action under § 107(a) by one private
PRP against another PRP is to enlarge the limitations period that Congress
envisioned for filing what are essentially actions for contribution.
lSa
addressed the question had concluded that, except for so-
called “innocent” PRPs,'° § 107(a) does not confer on a PRP
a claim for cost recovery or contribution against another PRP.
These circuits held that § 113(f)(1) explicitly provides PRPs a
right of contribution and § 107(a) does not. See Dico, Inc. v.
Amoco Oil Co., 340 F.3d 525, 530-31 (8th Cir. 2003);
Morrison Enters. v. McShares, Inc., 302 F.3d 1127, 1135
(10th Cir. 2002); |! Axel Johnson, Inc. v. Carroll Carolina Oil
Co., 191 F.3d 409, 415 (4th Cir. 1999): Centerior Serv. Co.,
153 F.3d at 356; Pinal Creek Group v. Newmont Mining
Corp., 118 F.3d 1298, 1301 (9th Cir. 1997); New Castle
County v. Halliburton NUS Corp., 111 F.3d 1116, 1124 (3d
Cir. 1997); !? Redwing Carriers, 94 F.3d at 1496; United
Techs. Corp. v. Browning-Ferris Indus., Inc., 33 F.3d 96, 101
(Ist Cir. 1994); Akzo Coating, Inc. v. Aigner Corp., 30 F.3d
761, 764 (7th Cir. 1994). Admittedly, the cases involved
slightly different factual scenarios than does this one. In all
but one—Pinal Creek Group, 118 F.3d at 1301—the PRPs
seeking relicf under § 107(a) had either been held liable or
° See NutraSweet Co. v. X-L Eng'g Co., 227 F.3d 776, 784 (7th Cir.
2000) (holding “innocent” PRP, who “did not pollute the site in any way,”
was entitled to bring cost recovery action against PRP under § 107);
Rumpke of Ind., Inc. v. Cummins Engine Co., 107 F.3d 1235, 1240 (7th
Cir. 1997) (holding “innocent” PRP who was not subject to government
order or judgment could bring § 107 cost recovery action against PRP);
Akzo Coating, Inc. v. Aigner Corp., 30 F.3d 761, 764 (7th Cir. 1994)
(noting that “innocent” PRPs may bring § 107 claims in certain instances).
"' See Morrison Enters., 302 ¥.3d at 1135 n.2 (“We . . . do not reach
the question of whether our analysis would change if a PRP was unable to
pursue an action for contribution and would therefore be barred from any
recourse under CFRCLA.™); see also United States v. Col. & E. R.R. Co.,
50 F.3d 1530, 1536 (10th Cir. 1995) (holding cross-claim by PRP,
defendant in suit by EPA, against other PRP properly characterized as §
113 rather than § 107 cause of action).
? See also NJ. Tpk. Auth. v. PPG Indus., Inc., 197 F.3d 96, 104 (3d
Cir. 1999) (observing PRP’s suit against other PRPs properiy charac-
terized as one for contribution under § 113).
l6a
had been the subject of an administrative or court order or
judgment. See Consol. Edison Co. of N.Y. v. UGI Utils., Inc.,
423 F.3d 90, 102-03 (2d Cir. 2005) (citing cases). Unlike
Aviall, the PRPs would presumably have had a § 113(f)
contribution action available to them.
Aviall attempts to distinguish these cases on the basis that
they were premised on the undisputed right of PRPs to seek
cost recovery under CERCLA. It fails, however, to identify
the parts of the opinions that relied on the fact that PRPs had
an undisputed right to cost recovery. Moreover, the reasoning
of the opinions cited the text of CERCLA, its statutory
structure, and congressional intent in concluding that PRPs
could not bring claims under § 107(a). See, e.g., Pinal Creek,
118 F.3d at 1301 (“The text of § 107 leads to the conclusion
that only a claim for contribution lies between PRPs.”);
Centerior Serv., 153 F.3d at 350 n.11 (“[Pjarties seeking
contribution under § 113(f) must look to § 107 to establish
the basis and elements of the liability of the defendants, as
well as any defenses to that liability.”); United Techs. Corp.,
33 F.3d at 102 (“|A]Jppellants’ construction emasculates the
contribution protection component of CERCLA’s settlement
framework.”).
As has this court, several decisions focused on the
relationship between §§ 107(a) and 113(f) in concluding that
§ 113(f)}—not § 107(a)—is the statutory mechanism for a
PRP to recover necessary response costs. See Centerior Serv.
Co., 153 F.3d at 352 (“Our reading of the statute limiting the
PRP plaintiffs to contribution, gives meaning to the language
in § 107(a) referring to any person, as well as the explicit
contribution provisions found in § 113(f).”); Pinal Creek, 118
F.3d at 1302 (“[Wy]hile § 107 created the right of contribution,
the ‘machinery’ of § 113 governs and regulates such actions,
providing the details and explicit recognition that were
missing from the text of § 107... .”); New Castle County, 111
F.3d at 1122 (“[SJection 113 does not in itself create any new
17a
liabilities; rather, it confirms the right of a_ potentially
responsible person under section 107 to obtain contribution
from other potentially responsible persons.”). This court
agrees with these decisions to the extent they conclude that,
although § 107 creates the general liability scheme, e.g., by
identifying the relevant parties, §§ 107 and 113 create two
distinct remedies. Nothing in Cooper Industries calls into
question this understanding of the relationship between
§§ 107 and 113, as described in the pre-Cooper Industries
circuit case law.
D
The court recognizes that since Cooper Industries was
decided, the courts that have addressed this question are
divided.'? This court, which undoubtedly will not have the
'’ Compare Consol. Edison Co., 423 F.3d 90 (allowing PRP to bring §
107(a) claim), petition for cert. filed, 74 U.S.L.W. 3600 (U.S. Apr. 14,
2006) (No. 05-1323); City of Bangor v. Citizens Comme'ns Co., 2006
U.S. Dist. LEXIS 44967, 2006 WL 1868332 (D. Me. June 27, 2006)
(same); Raytheon Aircraft Co. v. United States, 435 F. Supp. 2d 1136,
2006 WL 1517762 (D. Kan. May 26, 2006) (same); Sunnyside Dev. Corp.
v. Opsys U.S. Corp., 2006 U.S. Dist. LEXIS 26655, 2006 WL 1128039
(N.D. Cal. Apr. 27, 2006) (same); McDonald v. Sun Oil Co., 423
F.Supp.2d 1114 (D. Or. 2006) (same): Aggio v. Estate of Aggio, 2005 U.S.
Dist. LEXIS 37428, 2005 WL 2277037 (N.D. Cal. Sept. 19, 2005)-(same),
appeal docketed, No ©6-15989 (9th Cir. May 30, 2006); Ferguson v.
Arcata Redwood Co., 2005 U.S. Dist. LEXIS 18015, 2005 WL 1869445
(N.D. Cal. Aug. 5, 2005) (same); Viacom, Inc. v. United States, 404
F.Supp.2d 3 (D.D.C. 2005) (same); Kotrous v. Goss Jewett Co. of N. Cal.,
2005 U.S. Dist. LEXIS 18013, 2005 WL 1417152 (E.D. Cal. June 16,
2005) (same); Adobe Lumber, Inc. v. Taecker, 2005 U.S. Dist. LEXIS
15374, 2005 WL 1367065 (E.D. Cal. May 24, 2005) (same); Metro.
Water Reclamation Dist. of Greater Chi. v. Lake River Corp., 365
F.Supp.2d 913 (N.D. IIL.) (same), appeal docketed, No. 05-3299 (7th Cir.
Aug. 4, 2005), Vine Street, 362 F.Supp.2d 754 (same) with Spectrum Int'l
Holdings, Inc. v. Universal Coops., Inc., 2006 U.S. Dist. LEXIS 49716,
2006 WL 2033377 (D. Minn. July 17, 2006) (holding that PRP has no
cause of action under § 107(a)); Adohe Lumber, Inc. v. Hellman, 2006
U.S. Dist. LEXIS 8564, 2006 WL 349697 (E.D. Cal. Jan. 4) (same),
~
18a
final word on this question, has reached the conclusion that
§ 107(a) does not confer on a private PRP a statutory right to
bring a cost recovery action. Congresscreated a separate
remedy in § 113(f)}—the contribution provision—for private
PRPs to recover response costs from other PRPs. Because
Aviall concedes that it is a PRP, it is relegated to bringing an
action against Cooper under § 113(f), after the conditions for
doing so have been met.'* If this interpretation of CERCLA
leaves a remedial gap that Congress thinks it wise to fill, it
can do so by amending CERCLA.
IV
The court considers next whether Aviall can bring a
contribution claim against Cooper under § 107(a) or federal
common law.
In Cooper Industries the Supreme Court noted that, after
CERLCA was enacted but before it was amended by the
appeal docketed, No. 06-16019 (9th Cir. June 7, 2006); RE. Goodson
- Constr. Co. v. Int'l Paper Co., 2005 U.S. Dist. LEXIS 42909, 2005 WL
2614927 (D.S.C. Oct. 13, 2005) (same); Montville Twp. v. Woodmont
Builders, LLC, 2005 U.S. Dist. LEXIS 18079, 2005 WL 2000204 (D.N.J.
Aug. 17, 2005) (same); City of Rialto v. U.S. Dep't of Def., 2005 U.S.
Dist. LEXIS 26941 (C.D. Cal. Aug. 16) (same), appeal docketed, No. 0S-
56749 (9th Cir. Nov. 22, 2005); Boarhead Farm Agreement Group v.
Advanced Envtl. Tech. Corp., 38\ F.Supp.2d 427 (E.D. Pa. 2005) (same);
Blue Tee Corp. v. ASARCO, Inc., 2005 U.S. Dist. LEXIS 15360, 2008 WL
1532955, at *6 (W.D. Mo. June 27, 2005) (same); Atl. Research Corp. v.
United States, 2005 U.S. Dist. LEXIS 20484 (W.D. Ark. June |) (same),
appeal docketed, No. 05-3152 (8th Cir. Aug. 8, 2005), City of Waukesha
v. Viacom Int'l Inc., 362 F.Supp.2d 1025 (F.D. Wis. 2005) (same);
Mercury Mall Assocs. v. Nick's Mkt., Inc., 368 F.Supp.2d 513 (E.D. Va.
2005) (same). Before the Second Circuit decided Consolidated Edison,
district courts in the circuit had concluded that PRPs were barred from
bringing § 107(a) claims. See, e.g., Elementis Chems., Inc. v. TH Agric. &
Nutrition, LLC, 373 F.Supp.2d 257 (S.D.N.Y. 2005).
'* Tn view of this conclusion, the court need not reach Cooper's al-
ternative summary judgment contention that Aviall has not met the
National Contingency Plan requirements for asserting such a claim.
19a
Superfund Amendments and Reauthorization Act (“SARA”),
“fa] number of District Courts nonetheless held that, although
CERCLA did not mention the word ‘contribution,’ such a
right arose either impliedly from provisions of the statute, or
as a matter of federal common law.” Cooper Indus., 543 U.S.
at 162 (collecting cases). The Court observed that this
“conclusion was debatable in light of two decisions of this
Court that refused to recognize implied or common-law rights
to contribution in other federal statutes.” /d. (citing Tex. -
Indus., Inc. v. Radcliffe Materials, Inc., 451 U.S. 630, 638-47,
101 S. Ct. 2061, 68 L. Ed. 2d 500 (1981) (declining to
recognize implied or common-law contribution right under
Sherman Act or Clayton Act); Nw. Airlines, Inc. v. Transport
Workers Union of Am., 451 U.S. 77, 90-99, 101 S. Ct. 1571,
67 L. Ed. 2d 750 (1981) (declining to recognize implied or
common-law contribution right in Equal Pay Act of 1963 or
Title VII of the Civil Rights Act of 1964); see also Aviall
Servs., 312 F.3d at 683 (citing Texas Industries and
Northwest Airlines and noting that they “had cast doubt on
the ability of federal courts to fashion implied rights of
contribution under federal statutes”). In addressing the pos-
sibility that Aviall would opt “to frame its § 107 claim on
remand as aa implied right of contribution (as opposed to a
right of cost recovery),” the Court explicitly declined to
decide “whether any judicially implied right of contribution
survived the passage of SARA.” Cooper Indus., 543 U.S. at
170-71. Its observations nevertheless suggest disapproval of
such an argument. It noted that it had “visited the subject of
implied rights of contribution before,” and it cited Texas
Industries, in which it had declined to recognize an implied or
common-law contribution right. /d. at 171. And the Court
“also note[d] that, in enacting § 113(f)(1), Congress explicitly
recognized a particular set (claims ‘during or following’ the
specified civil actions) of the contribution rights previously
implied by courts from provisions of CERCLA and the
common law.” /d. (citing Transamerica Mortgage Advisors,
20a
Inc. v. Lewis, 444 U.S. 11, 19, 100 S. Ct. 242, 62 L. Ed. 2d
146 (1979)).
These observations are consistent with settled principles
that the Supreme Court has applied in choosing whether to
recognize implied remedies generally and in CERCLA in
particular. Concerning implying remedies under federal
common law, the Supreme Court has stated that “contribution
does not implicate ‘uniquely federal interests’ of the kind that
oblige courts to formulate federal common law.” Texas
Indus., 451 U.S. at 642. Moreover, it is a “‘frequently stated
principle of statutory construction . . . that when legislation
expressly provides a particular remedy or remedies, courts
should not expand the coverage of the statute to subsume
other remedies.” Nw. Airlines, 451 U.S. at 94 n.30 (quoting
Nat'l R.R. Passenger Corp v. Nat'l Ass'n of R.R. Passengers,
414 U.S. 453, 458, 94 S. Ct. 690, 38 L. Ed. 2d 646 (1974)).
“In ithe absence of strong indicia of contrary congressional
intent, we are compelled to conclude that Congress provided
precisely the remedies it considered appropriate.” Middlesex
County Sewerage Auth. v. Nat'l Sea Claims Ass'n, 453 U.S.
1, 15, 101 S. Ct. 2615, 69 L. Ed. 2d 435 (1981). It is an
“elemental canon of statutory construction that where a
statute expressly provides a particular remedy or remedies, a
court must be chary of reading others into it.” Transamerica
Mortgage, 444 U.S. at 19. “[W]here Congress has provided
‘elaborate enforcement provisions’ for remedying the vio-
lation of a federal statute, as Congress has done with .. .
CERCLA, ‘it cannot be assumed that Congress intended to
authorize by implication additional judicial remedies. . . .””
Meghrig v. KFC W., Inc., 516 U.S. 479, 487-88, 116 S. Ct.
1251, 134 L. Ed. 2d 121 (1996) (quoting Middlesex County,
453 US. at 14).
Section 113(f\(1) provides a PRP the express right to seek
contribution from another PRP; § 107(a) does not. Consid-
ering the Supreme Court’s cautionary statements in Cooper
Industries and other decisions that reject the adoption of
2la
implied remedies—particularly where, as here, the statute
expressly confers a right of contribution—the court holds
there is no implied right of contribution under § 107(a) or
federal common law.
Moreover, in Cooper Industries the Court addressed the
proper interpretation of § 113(f)(1). It reasoned that
if § 113(f(1) were read to authorize contribution actions
at any time, regardless of the existence of a § 106 or
§ 107(a) civil action, then Congress need not have
included the explicit “during or following” condition. In
other words, Aviall’s reading would render part of
the statute entirely superfluous, something we are loath
to do. Likewise, if § 113(f)(1) authorizes contribu-
tion actions at any time, § 1|13(f)(3)(B), which permits
contribution actions after settlement, is equally super-
fluous. There is no reason why Congress would bother to
specify conditions under which a person may bring a
contribution claim, and at the same time allow contri-
bution actions absent those conditions.
Cooper Indus., 543 U.S. at 166 (citation omitted). Applying
this rationale to the proper interpretation of § 107(a), if the
explicit “during or following” condition of § 113()(1) would
be rendered superfluous by reading § 113(f)(1) to authorize a
contribution action at any time, it would be even more so if §
107(a) were construed to authorize a contribution action at
all, since it likewise contains no “during or following”
limitation. As the Court explained in Cooper Industries, there
is no reason why Congress would specify such a condition yet
also allow a contribution action absent the condition.
Moreover, for all the reasons explained supra at § I1(B),
§ 113(f)(1) and (3)(B) would in their entirety be rendered
superfluous, insignificant, or, in some instances, devoid
of operative effect if § 107(a) were construed to confer an
implied right of contribution under CERCLA or federal
common law.
22a
Accordingly, the court holds that a private PRP who seeks
to recover from another PRP under CERCLA is limited to
bringing a contribution action under § 113(f). Section 107(a)
and federal common law do not confer this right.
* * *
The court grants Cooper’s November.14, 2005 motion for
partial summary judgment on federal claims and dismisses
with prejudice Aviall’s CERCLA § 107(a) cost recovery and
§ 107(a) and federal common law contribution claims—.e.,
the first, second, and third claims of its third complaint. As in
Aviall Services, 2000 WL 31730, at *5, having dismissed
Aviall’s federal question claims on the merits,'” the court
declines to exercise supplemental jurisdiction over its remain-
ing state-law claims and dismisses them without prejudice. °
SO ORDERED.
August 8, 2006.
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE
'S Although Aviall seeks relief under the federal Declaratory Judgment
Act, it is not an independent source of jurisdiction. See Aviall Services,
2000 WL 31730, at *5.
'° The court also dismisses without prejudice Cooper's counterclaims.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.