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

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## Record

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

## Text

ad i

No. 06-5062

Jn the Supreme Court of the United States

Unitep 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 FOR AMICI CURIAE
E. 1. DU PONT DE NEMOURS AND COMPANY, ET AL.,
IN SUPPORT OF RESPONDENT

WILLIAM H. Hyarr, Jr. Mark I. Levy

Funy L.. Won Counsel of Record

K & L Gates KILPATRICK STOCKTON LLP
One Newark Center 607 14th Street, N.W.
10th Floor Suite 900
Newark, NJ 07102 Washington, DC 20005
(973) 848-4000 (202) 824-1437

Counsel for Amici Curiae

MUTNTH g
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«8 . 4.3

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES ............
INTEREST OF THE AMICI GENE cocevcccces
SUMMARY OF ARGUMENT .................
ET 6.4 6es cde ded detesenansadbetses

SECTION 107(a)(4)(B) PROVIDES A
CAUSE OF ACTION FOR A PRP, WHICH
UNDERTAKES A-CLEANUP WITHOUT
THE COMPULSION OFASECTION 106 OR
107 CIVIL ACTION, TO RECOVER AN
EQUITABLE SHARE OF ITS CLEANUP
COSTS FROM OTHER PRPS. ..........

1. THE STATUTORY TEXT OF CERCLA
ESTABLISHES A SECTION 107(a)(4)(B)
CAUSE OF ACTION. ..............

A. The Plain Language Of Section
107(a)(4)(B) Provides A Cause Of
PR eit eeennssanesacenunsas

B. The Savings Clause And The
Contribution Right In Section
113(f)(1) Confirm The Section
107(a)(4)(B) Cause Of Action And
Demonstrate That The Section
113(f)(1) Right Under Cooper Is Not
The Exclusive Action For A PRP To
Recover Cleanup Costs. .........

10

il

Contents

Page

Il. THE FUNDAMENTAL PURPOSES
OF CERCLA DEMONSTRATE THE
EXISTENCE OF A SECTION 107(a)(4\(B)
CAUSE OF ACTION. .............. 20

lil. SECTION 107(a)4)(B) PROVIDES AN
EXPRESS CAUSE OF ACTION IN THE
NATURE OF CONTRIBUTION. ..... 26

A. Section 107(a)(4)(B) Provides An
Express Cause Of Action. ....... 26

B. Section 107(a)(4)(B) Provides A
Cause Of Action In The Nature Of
ee 27

SUED bac cccecesetseeceuncucernstes 30

lil
TABLE OF CITED AUTHORITIES
Page

Cases

Allied Towing Corp. v. Great Eastern Petroleum
Corp., 642 F. Supp. 1339 (E.D. Va. 1986) ..... 19

Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 (Sth Cir.
tt) ic eenepeseceuaeeddaed< 3, 21
Things Remembered, Inc. v. Petrarca, 516 U.S. 124
echt ie rose nendéasadeeseeces 5
Tippins Inc. v. USX Corp., 37 F.3d 87 (3d Cir. 1994)
PPP eC ehe bid ebensedesees e0eeeees 8

United States v. Bestfoods, 524 U.S. 51(1998) .... 5, 20

vil

Cited Authorities
Page

United States v. Burlington Northern & Santa Fe Ry.

Co., Nos. 03-17125, 03-17153, 03-17169, 2007 WL

777875 (9th Cir. Mar. 16, 2007) ............. 10
United States v. Chem-Dyne Corp., 572 F. Supp. 802

Sy Ce SD od acdecctuseesvdeisosuwens 10
United States v. Ward, No. 83-63-C1V-5, 1984 WL

15710 (E.D.N.C. May 14, 1984) ............. 10, 18
United States v. Westinghouse Elec. Corp., No. IP 83-

9-C, 1983 WL 160587 (S.D. Ind. June 29, 1983)

seaceunsskeonsdndhenchnwieceeaneeneensee 18
Walls vy. Waste Res. Corp., 761 F.2d 311 (6th Cir. 1985)
pudevenhécseckdedsessouenedeseednesteess 18

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

ST PL 0s ydecuvetenaedeeeweas 6, 19, 26
Statutes, Rules and Regulations
Comprehensive Environmental Response,

Compensation, and Liability Act

(42 U.S.C. §§ 9601-9675 (1980)) (“CERCLA”)

Section 104, 42 U.S.C. § 9604 ............... 5

Section 106, 42 U.S.C. § 9606 ............... passim

Section 107, 42 U.S.C. § S607 2... cece eee. passim

Section 107(a), 42 U.S.C. § 9607(a) .........3, 12, 13

vill

Cited Authorities
Page
Section 107(a)(4)(A), 42 U.S.C. § 9607(a)(4)(A)
phe nesdvwesdleawedws guvecseaneesbiwenees Be
Section 107(a)(4)(B), 42 U.S.C. § 9607(a)(4)(B)
LeDEdsaDEeRUsEOdNeeNeowsEdanenenentares passim

Section 1 11(a)(1), 42 U.S.C. § 9611(ay1) ..... 6

Section 111(a)(2), 42 U.S.C. § 9611(ay(2) ..... 6

Section 113, 42 U.S.C. § 9613 ............... 13, 14

Section 113(f), 42 U.S.C. § 9613(f) ......... 10, 12, 13

Section 113(f)(1), 42 U.S.C. § 9613(f)(1) ...... passim

Section 113(f)(3) 42 U.S.C. § 9613(f(3) ...... 11, 12

Section 113(h)(1), 42 U.S.C. § 9613(h)(1) ..... 28

ee ee 11
Resource Conservation and Recovery Act and the

Hazardous and Solid Waste Amendments of 1984,

42 U.S.C. §§ 6901- 6992k (“RCRA”) ......... 21
40 C.F.R. § 300.700(b)(1) & (c)(2) ....... 606... 3
40 C.F.R. § 300.700 (c)(3)i) «6. ee eee eee eee. 25
48 Fed. Reg. 40,658, 40,661 (Sept. 8, 1983) ...... 25
55 Fed. Reg. 8666, 8792-8793 (Mar. 8, 1990) .... 25

DE DOD wecctgveccvscnedecocsonnceseses ‘ l

ix

Cited Authorities
Page

Other Authorities
H.R. Rep. No. 99-253(I) (1985) as reprinted in

1986 U.S.C.C.A.N. 2835, 2856 ..... 10, 18, 22, 23, 28
H.R. Rep. No. 99-253(V) (1985), as reprinted in

SPee UBEL.ALK, Bees OUGE cccccccccccess 23
H.R. Rep. No. 96-1016(1) (1980), reprinted in

1980 U.S.C.C.A.N. 6119, 6120 ............5. 22
H.R. Doc. No. 99-32 (Feb. 26, 1985) ........... 14, 15
S. Rep. No. 99-11 (19BS) .. 0... cece ce cccess 10, 23, 28
S. Rep. No. 96-848 (1980) ....... cc ccccccccces 22-23
S. 494, 99th Cong. § 202 (1985) ............... 14
House Hearing on the Reauthorization of Superfund

Before the H. Subcomm. On Water Resources of

the Comm. On Public Works & Trans., 99th Cong.

548-49 (Mar. 28, 1985) ............... 15, 16, 23, 24
Senate Hearing on S. 51 & S. 494 Before the S. Comm.

On Env’t & Public Works, 99th Cong. 58 (Feb. 25,

SD anackucenacaceduwstehadeentaceseses 15

Senate Hearings on Superfund Improvement Act of
1985 Before S. Comm. On the Judiciary, 99th Cong.
ee Oe Oe ED occ dussaudeeduueness 16

Cited Authorities
Page
126 Cong. Rec. 26,338 (1980) ................. 23
126 Cong. Rec. 26,761 (1980) ................. 23
126 Cong. Rec. 26,787 (1980) ................. 23
126 Cong. Rec. 30,932 (1980) ................. 10
126 Cong. Rec. 30,933 (1980) ................. 25
126 Cong. Rec. 30,952 (1980) ..............0. 23
126 Cong. Rec. 30,986 (1980) ...0............. 10
126 Cong. Rec. 31,965 (1980) .........cceceees 9
126 Cong. Rec. 31,966 (1980) ................. 9-10 -
131 Cong. Rec. 24,730 (1985) ...... Rodkesndaees 23
131 Cong. Rec. 34,632 (1985) ..............4.. 10
131 Cong. Rec. 34,635-36 (1985) .............. 10
131 Cong. Rec. 34,646 (1965S) ......ccccccceces 10
131 Cong. Rec. 28,416 (1986) ................. 22
131 Cong. Rec. 28,433-34 (1986) .............. 22
E38 Come, Gee. SOTUT CESS) oc cccccccccescces 22
Lee M. Thomas & F. Henry Habicht II, U.S. EPA,
Interim CERCLA Settlement Policy (OSWER
Directive No. 9835.0) (1984) ................ 25

l

INTEREST OF THE AMICI CURIAE

Amici E.I. du Pont de Nemours and Company and its wholly
owned subsidiary Sporting Goods Properties, Inc. (“DuPont”)
respectfully submit this brief. DuPont is among the largest
chemical products manufacturers in the country and has been
and continues to be involved in hundreds of environmental
cleanups. In particular, it has engaged in dozens of cleanups
without the compulsion of a Section 106 or 107 action or a
settlement. DuPont has voluntarily undertaken such cleanups
in the expectation under two decades of settled law that it would
be entitled to recover an equitable share of the costs of cleanup
from other responsible parties including the United States.

Both amici are plaintiffs below, and petitioners in this Court,
in E. 1. du Pont de Nemours and Company v. United States,
petition for cert. pending, No. 06-726. This Court is holding
that petition pending decision in the instant case, and therefore
DuPont’s rights in that case will be governed by the outcome
here. ‘

SUMMARY OF ARGUMENT

The question here is whether, following Cooper Industries,
Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004), a potentially
responsible party (“PRP”) under the Comprehensive
Environmental Response, Compensaticn, and Liability Act
(42 U.S.C. §§ 9601-9675 (1980)) (“CERCLA”) that voluntarily
undertakes a cleanup and incurs costs without the compulsion
of a Section 106 or 107 civil action, and therefore cannot sue
for contribution under Section 113(f)(1) as construed in Cooper,
~ has no cause of action to recover an equitable share of cleanup
costs from other PRPs and thus must bear the entire cost of the

1. The parties’ written consents to the filing of this brief are being
submitted to the Clerk of this Court. Pursuant to S.Ct. R. 37.6, amici
State that this brief was not authored, in whole or in part, by counsel for
a party, and that no monetary contribution to the preparation or
submission of this brief was made by any person or entity other than
amici or their counsel.

2

cleanup. The case law prior to the Superfund Amendments and
Reauthorization Act of 1986 (Pub. L. No. 99-499, 100 Stat.
1613) (“SARA”) enacting Section 113(f)(1) recognized that
existing Section 107(a)(4)(B) provided such a cause of action.
The government’s present position therefore attributes to
Congress in 1986 the intent sub silentio to cut back on
contribution rights by eliminating that recognized claim. That
turns upside down the congressional intent in passing SARA.

Furthermore, the government’s position is inconsistent with
the text, purpose, and background of CERCLA. The plain
language of the liability provision in Section 107(a)(4)(B) and
of the savings clause in Section 113(f)(1) demonstrates the
existence of this right of action. Moreover, this construction is
necessary to effectuate the fundamental objectives of CERCLA.

ARGUMENT

SECTION 107(a)(4)(B) PROVIDES A CAUSE OF ACTION
FOR A PRP, WHICH UNDERTAKES A CLEANUP
WITHOUT THE COMPULSION OF A SECTION 106 OR
107 CIVIL ACTION, TO RECOVER AN EQUITABLE
SHARE OF ITS CLEANUP COSTS FROM OTHER PRPS.

I. THE STATUTORY TEXT OF CERCLA
ESTABLISHES A SECTION 107(a)(4)(B) CAUSE OF
ACTION.

A. The Plain Language Of Section 107(a)(4)(B)
Provides A Cause Of Action.

Cooper holds, in line with general principles of statutory
construction, that CERCLA must be construed in accordance
with its “natural meaning.” 543 U.S. at 166. The plain statutory
text establishes that a PRP can recover an equitable share of its
cleanup costs from other PRPs pursuant to Section 107(a)(4)(B).
Indeed, in Key Tronic Corp. v. United States, 511 U.S. 809
(1994), all members of the Court agreed that a PRP could sue
another PRP under Section 107(a)(4)(B) to recover cleanup
costs. See Cooper, 543 U.S. at 172 (Ginsburg, J., dissenting).

3

In fact, EPA’s National Contingency Plan (“NCP”) itself
recognizes that Section 107 authorizes “any person [to] receive
his or her response costs” from PRPs. 40 C.F.R. § 300.700(b)( 1)
& (c){2).

Section 107 states that any person in the four enumerated
categories of PRPs “shall be liable 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). The language of Section 107(a)(4)(B) is
expansive, referring without limitation to “any other person.”
Accordingly, under Section 107(a)(4)(B), a PRP is liable to “any
other person,” including another PRP, for an equitable share of
cleanup costs. See Key Tronic, 511 U.S. at 818 (Section 107
“unquestionably provides a cause of action for private parties
to seek recovery of cleanup costs” and “authorizes private parties
to recover cleanup costs from other PRP’s”); id. at 821-22 &
n.* (Scalia, J., dissenting) (under Section 107(a), “a party who
has incurred costs to clean up a hazardous waste site can recover
those costs from any other party liable under CERCLA”);
Pennsylvania v. Union Gas Co., 491 U.S. 1, 21-22 (1989)
(plurality opinion) (CERCLA ailows “pvivate parties who
voluntarily cleaned up hazardous-waste sites to recover a
proportionate amount of the costs of cleanup from the other
potentially responsible parties”), overruled on other grounds,
Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996); Cooper,
543 U.S. at 172 (Ginsburg, J., dissenting); Metropolitan Water
Reclamation District v. North American Galvanizing & Coatings
Inc., 473 F.3d 824, 830-36 (7th Cir. 2007) (“MWRD”), Atlantic
Research Corp. v. United States, 459 F.3d 827, 834-35 (8th Cir.
2006), cert. granted, No. 06-562 (Jan. 19, 2007); Schaefer v.
Town of Victor, 457 F.3d 188, 200 (2d Cir. 2006); Consolidated
Edison Co. of N.Y., Inc. v. UGI Util. Inc., 423 F.3d 90, 99-100
(2d Cir. 2005), petition for cert. pending, No. 05-1323; E. 1. du
Pont de Nemours and Co. v. United States, 460 F.3d 515, 548-
49 (3d Cir. 2006) (Sloviter, J., dissenting), petition for cert.
pending, No. 06-726.

4

Focusing on the word “other” in the phrase “any other
person” in Section 107(a)(4)(B), the government argues that
“other” refers to a person “other” than the PRPs that
grammatically are the subject of the sentence, thus excluding
PRPs from the cause of action provided by this subsection. In
this way, the government seeks to limit Section 107(a)(4)(B) to
what it calls “innocent” parties. For several reasons, the
government’s reading is unsound.

To begin with, the government looks to the phrase “any
other person” in isolation. This is inconsistent with settled
principles of statutory construction. See, e.g., Dole v. United
Steelworkers of America, 494 U.S. 26, 35 (1990). Rather, as we
show below, the statute, properly read as an integrated whole,
comfortably includes PRPs within the encompassing “any other
person” language of Section 107(a)(4)(B). See Key Tronic, 511
U.S. at 818; id. at 821 (Scalia, J., dissenting); MWRD, 473 F.3d
at 835, Consol. Edison, 423 F.3d at 99-100; Atl. Research, 459
F.3d at 834-35.

In addition, the government simply invents the critical term
“innocent party.” Section 107 contains no such restrictive
language, and the term “innocent party” appears nowhere in
the statute, as the government itself recently acknowledged. See
U.S. MWRD Am. Br. 21 (“innocent party” is “not grounded in
any of CERCLA’s language’’).’

Moreover, the government’s crabbed interpretation cannot
be reconciled with the text and structure of Section 107.
Subsection (A) provides that PRPs “shall be liable for . . . all
costs of removal or remedial action incurred by the United States
Government or a State or Indian tribe not inconsistent with the

2. Not only did the government criticize the “innocent party” cases
as lacking a statutory foundation, but it also argued that the entire
‘ doctrine “is questionable” and has been “undermine[{d]” by “Congress”
enactment in 2002 of amendments to CERCLA expressly address[ing]
defenses for landowners.” U.S. MWRD Am. Br. 5, 21-22.

5

national contingency plan.” Thus, it authorizes the federal
government to sue PRPs to recover the costs it incurred in
exercising its CERCLA powers under Sections 104 and 106.
Subsection (A) specifies, in order, the recoverable costs (“all
costs of removal or remedial action”); the environmental
condition that must be satisfied to be entitled to recover (the
incurred costs must not be “inconsistent with the national
contingency plan’’); and the entity that is authorized to recover
(e.g., “the United States Government’).

Immediately following subsection (A), subsection (B)
provides that PRPs “shall be liable for . . . any other necessary
costs incurred by any other person consistent with the national
contingency plan.” Subsection (B) follows the same structure
as subsection (A). Where subsection (A) authorizes recovery
of “all costs of removal or remedial action,” subsection (B)
authorizes recovery of “any other necessary costs of response.”
Likewise, where subsection (A) provides for recovery of costs
“not inconsistent with the national contingency plan,” subsection
(B) provides for recovery of costs “consistent with the national
contingency plan.” Finally, of direct relevance here, where
subsection (A) entitles “the United States Government” to bring
suit to recover such costs, subsection (B) entitles “any other
person” to sue. Accordingly, “any other person” in subsection
(B) refers to any person other than those — the federal government
(or states and Indian tribes) — authorized to file a suit to recover
costs under the preceding subsection (A). See Things
Remembered, Inc. v. Petrarca, 516 U.S. 124, 127 (1995)
(adjacent subsections of statute “must be read in pari materia’);
Jama v. Immigration and Customs Enforcement, 543 U.S. 335,
343 n.3 (2005) (“‘other’” is “likely to be [a] word[ } of
differentiation”) (emphasis in original). In this way, “everyone
who is potentially responsible for hazardous-waste
contamination may be forced to contribute to the costs of the
cleanup” (United States v. Bestfoods, 524 U.S. 51,56 n.1 (1998)

6

(emphasis in original)); contrary to the government’s effort here,
no PRP is left out.’

Furthermore, under this analysis, the two uses of the word
“other” in subsection (B) are treated in the same way: “other”
in “any other necessary costs” distinguishes the costs recoverable
under subsection (B) from those recoverable under subsection
(A); and “other” in “any other person” distinguishes those who
can sue under subsection (B) from those who can sue under
subsection (A). The government, by contrast, impermissibly
gives the word “other” two different meanings in the same
clause: “other” in “other necessary costs” refers back to
subsection (A), while “other” in “any other person” refers not
to subsection (A) but to an extra-statutory category of “innocent
party.” See, e.g., Rockwell Int'l Corp. v. United States, No. 05-
1272, 2007 WL 895257 at *8, __S.Ct.__ (Mar. 27, 2007);
Merrill Lynch, Pierce, Fenner & Smith v. Dabit, 547 U.S. 71,
126 S. Ct. 1503, 1513 (2006).

A number of cases — in addition to Consol. Edison, MWRD,
and Atl. Research — have construed “any other person” in
subsection (B) to refer to persons other than the governments
or tribes enumerated in subsection (A). Significantly, many of
those decisions preceded enactment of SARA. The seminal
decision is City of Philadelphia v. Stepan Chemical Co., 544 F.
Supp. 1135, 1142 (E.D. Pa. 1982), cited in Cooper, 543 U.S. at
161-62, which consistently has been followed.‘

3. Section 111(a)(1) and (2) follows the same structure by using,
as this Court already has recognized, “any other person” to “denote any
nongovernmental entity.” Exxon Corp. v. Hunt, 475 U.S. 355, 360 n.4
(1986).

4. See Control Data Corp. v. 8.C.S.C. Corp., 53 F.3d 930, 936 n.9
(8th Cir. 1995) (R. Arnold, J.); Wickland Oil Terminals v. ASARCO,
Inc. , 792 F.2d 887, 891 (9th Cir. 1986), cited in Cooper, 543 U.S. at
161-62; City of New York v. Exxon Corp., 633 F. Supp. 609, 617
(S.D.N.Y. 1986) (Weinfeld, J.); Sand Springs Home v. Interplastic Corp.,
670 F. Supp. 913, 915-16 (N.D. Okla. 1987); Pinole Point Properties,
Inc. v. Bethlehem Steel Corp., 596 F. Supp. 2837291 (N.D. Cal. 1984).

7

The government itself previously acknowledged this
construction of Section 107(a)(4)(B). In its amicus brief in
Cooper, the United States told this Court that “other” in the
phrase “any other person” serves to distinguish Section
107(a)(4)(B) plaintiffs from the governmental or tribal entities
that could sue under subsection (A). See U.S. Cooper Am. Br.
5, 20-21. Likewise, in its brief in Key Tronic, the United States
recognized that “[t]he relevant provisions of CERCLA authorize
petitioner [a private PRP] to recover ‘necessary costs of
response.’” U.S. Key Tronic Br. 12, citing 42 U.S.C.
§ 9607(a)(4)(B). Similarly, in its post-Cooper brief in the Third
Circuit in DuPont, the United States admitted that “Section
107(a)(4)(B)’s reference to ‘any other person’ is broad enough
to render a PRP liable for another PRP’s response costs.” U.S.
DuPont Br. 26. See also U.S. MWRD Am. Br. 10.

The government’s “innocent party” theory also fails to
support its position. The entire objective of the government’s
argument is to demonstrate, on the one hand, that the cause of
action in Section 107(a)(4)(B) does not extend to PRPs, and,
on the other, that the provision is not superfluous because it
does apply to “innocent” parties. However, as the government
itself recently recognized, “PRPs may qualify under some
circumstances as ‘innocent landowners.” U.S. MWRD Am. Br.
21. The defining characteristic of an “innocent party” is not
that it is not a PRP, but rather that it did not cause the
contamination. See MWRD, 473 F.3d at 829. Thus, the
government’s essential analysis simply crumbles.

The government objects that our interpretation of “any other
person” renders that use of “other” superfluous because the
phrase “any other necessary costs” already precludes
governmental and tribal entities from suing under subsection
(B).° However, in the most elementary grammatical sense, the

5. The government’s analytical approach to CERCLA should be
regarded with caution. First, contrary to the premise of the government's

(Cont'd)

8

word “other” in “any other person” is not superfluous. Without
that term, subsection (B) literally would allow a PRP to sue
“any person,” including itself. The government recognizes this
possible explanation but does nothing to dispel it. See U.S. Br.
21 n.10. Furthermore, Section 113(f)(1) reads the same way.
See 42 U.S.C. § 9613(f(1).

Second, nothing prevents Congress from enacting
interrelated provisions to reinforce each other to accomplish
the same statutory end. Indeed, that is common in statutes and
other legal documents. Such a structure does not make any of
the individual terms superfluous. Here, Congress, in each of
the three operative phrases in subsection (B), manifested that
_ this provision creates a non-governmental recovery scheme to

parallel and complement the governmental remedy in subsection
(A). See, e.g., Landgraf v. USI Film Prods., 511 U.S. 244, 259-
60 (1994) (“[t]he drafters of a complicated piece of legislation
. . . may well have inserted . . . language merely to avoid the
risk of an inadvertent conflict in the statute’).

Third, under the government’s analysis, its own
interpretation of “other” in “other necessary costs” would be
superfluous. If the government is correct that “any other person”
limits subsection (B) plaintiffs to “innocent parties,” it would,

(Cont'd)

analysis, the Court has recognized that, “[wJhile it is generally presumed
that statutes do not contain surplusage, instances of surplusage are not
unknown.” Arlington Cent. School Bd. of Educ. v. Murphy, 126 S. Ct.
2455, 2460 n.1 (2006). “[Ojur preference for avoiding surplusage
constructions is not absolute,” and, even if surplusage results, “[wJe
... prefer the plain meaning.” Lamie v. U.S. Trustee, 540 U.S. 526, 536
(2004). Furthermore, the Court has noted that CERCLA “is not a model
of legislative draftsmanship” and “is at best inartful and at worst
redundant” because it “was prepared and passed in considerable haste”.
Exxon Corp. v. Hunt, 475 U.S. at 363, 368. Accordingly, “[bjecause of
the inartful crafting of CERCLA, . . . reliance solely upon general canons
of statutory construction must be more tempered than usual.” Tippins
Inc. v. USX Corp., 37 F.3d 87, 93 (3d Cir. 1994) (Becker, J.).

9

by parity of reasoning, render the “other” in “other necessary
costs” unnecessary; since an “innocent party” cannot seek to
recover under subsection (B) the kinds of costs that the
government can recover under subsection (A), the opening
phrase simply could have eliminated the word “other” and read
solely in terms of “necessary costs.”

Finally, the government relies on the legislative history of
CERCLA in two respects. First, it stresses that the bill was
amended to add the word “other” to the phrase “any other
person.” See U.S. Br. 19. However, our construction of Section
107(a)(4)(B) gives full meaning to that word. Furthermore, -as
the government itself concedes (id.), the legislative history does
not reveal the reason for the amendment and certainly is not
inconsistent with our reading of the statutory text. See Martin
v. Hadix, 527 U.S. 343, 357 (1999) (“inference[ ] . . . [based
on] an ambiguous act of legislative drafting. . . . is speculative
. . . [because iJt rests on [an] assumption [about] the reason [for
the amendment]”) (emphasis in original).

Second, the government notes that an express contribution
provision was deleted from the CERCLA bill. See U.S. Br. 23.
However, the bill was substantially and hurriedly revised in the
final days of the legislative session.° A number of amendments
were made in order to achieve passage, and many of those did
not reflect a substantive rejection of the provision but rather a
decision to leave the issue to the courts to resolve. For example,
an explicit section to establish joint and several liability was
omitted for that reason.’ Nevertheless, the courts consistently

6. See Exxon Corp. v. Hunt, 475 U.S. at 365-66 & n.10, 368-69,
373; id. at 379-80 & n.5, 382 (Stevens, J., dissenting).

7. See 126 Cong. Rec. 31,965 (1980) (remarks of Rep. Florio)
(“Issues of joint and several liability . . . shall be governed by traditional
and evolving principles of common law. The terms joint and several
have been deleted with the intent that the liability of joint tort feasors
be determined under common law’’); id. at 31,966 (Department of Justice

. (Cont'd)

10

have applied that standard, holding that its deletion from the
statute does not preclude its adoption.*

B. The Savings Clause And The Contribution Right
In Section 113(f)(1) Confirm The Section
107(a)(4)(B) Cause Of Action And Demonstrate
That The Section 113(f)(1) Right Under Cooper Is
Not The Exclusive Action For A PRP To Recover
Cleanup Costs.

The government argues that Section 113(f) “constitute[s]
the exclusive remedy for PRPs under CERCLA.” U.S. Br. 35
(emphasis in original). This argument cannot be squared with
either the explicit savings clause in Section 113(f)(1) and this
Court’s construction of that clause in Cooper, or with the

(Cont'd)

letter agreeing that “‘issues of liability not resolved by this act . . . shall
be governed by traditional and evolving principles of common law. . . .
Any reference to [joint and several liability] has been deleted, and the
liability of joint tort feasors will be determined under common .. .
law’’’) (citation omitted); id. at 30,932 (remarks of Sen. Randolph)
(“[W]e have deleted any reference to joint and several liability, relying

on common law principles . . . . It is intended that issues of liability not
resolved by this act . . . shall be governed by traditional and evolving
principles of common law. . . . Any reference to [joint and several

liability} has been deleted, and the liability of joint tort feasors will be
determined under common law’); id. at 30,986 (remarks of Sens.
Stafford and Simpson).

8. See United States v. Chem-Dyne Corp., 572 F. Supp. 802 (S.D.
Ohio 1983) (approvingly discussed by Congress in SARA amendments,
see H.R. Rep. No. 99-253(1), at 74 (1985), as reprinted in 1986
U.S.C.C.A.N. 2835, 2856; 131 Cong. Rec. 34,632 (1985) (remarks of
Rep. Dingell); id. at 34,635-36 (remarks of Rep. Eckart); id. at 34,646
(remarks of Rep. Glickman)); United States v. Ward, No. 83-63-CIV-5,
1984 WL 15710 (E.D.N.C. May 14, 1984) (approvingly discussed by
Congress in SARA amendments, see S. Rep. No. 99-11, at 44 (1985);
H.R. Rep. No. 99-253(1), at 79, 1986 U.S.C.C.A.N. at 2861)); United
States v. Burlington Northern & Santa Fe Ry. Co., Nos. 03-17125, 03-
17153, 03-17169, 2007 WL 777875 at *4-*5 (9th Cir. Mar. 16, 2007).

1]

legislative-origin and development of the Section 113(f(1)
contribution right.

1. The savings clause provides that “(nJjothing in this
subsection shall diminish the right of any person to bring an
action for contribution [where the conditions for a contribution
suit under Section 113(f)(1), as interpreted in Cooper, are not
met}.”” 42 U.S.C. § 9613(f(1). On its face, this clause preserves
any action for “contribution,” thereby directly refuting the
government’s contra-textual claim that Section 113(f)(1) is
exclusive.

The Court in Cooper held that the savings clause ‘rebuts
any presumption that the express right of contribution . . .
[in Section 113(f)(1)] is the exclusive cause of action for
contribution available to a PRP.” 543 U.S. at 166-67 (emphasis
added). This directly forecloses the government’s contention.

Finally, the government’s reading effectively nullifies the
savings Clause. The government’s ultimate position — that the
savings clause preserves only contribution rights under state
law — cannot be reconciled with the unrestricted terms and broad
scope of the savings clause. If Congress had meant that there
were only state claims and no federal claims that would be
preserved, it presumably would have said so, but Section
113(f)(1) contains not a word about state law. See, e.g., Landgraf,
511 U.S. at 259-60. Furthermore, the savings clause as
interpreted by the government would be completely unnecessary
because CERCLA already includes a general savings clause that
preserves state law. 42 U.S.C. § 9652(d). See Jama, 543 U.S. at
342-43.

The Third Circuit in DuPont adopted a different but no
more persuasive interpretation of the savings clause in Section
113(f)(1). The court of appeals read the clause to “merely
clarifly]” that the cause of action provided in Section 113(f)(3)
for contribution suits after settlements is not displaced by the
separate contribution action in Section 113(f)(1). 460 F.3d at
532-33. However, it is impossible to believe that, even absent

12

the savings clause, the separate, distinct, and contemporaneously
enacted provisions in two subsections of Section 113(f) would
have been misread and collapsed in the manner that concerned
the Third Circuit. If Congress had meant the savings clause in
Section 113(f)(1) to apply only to the cause of action in Section
113(f)(3), it surely would have said that.

In arguing for exclusivity, the government also relies on
the pre-Cooper cases in which the courts of appeals held that
PRPs could sue for an equitable allocation of cleanup costs under
Section 113(f)(1) and therefore could not bring such a suit
pursuant to Section 107(a)(4\(B). See U.S. Br. 6 n.5, 30. The
essential predicate for these decisions was the courts’
construction of Section 113(f)(1) to permit a PRP to recoup
cleanup costs even in the absence of a Section 106 or 107 civil
action or a settlement. Given the Section 113(f)(1) action, courts
held that a separate and duplicative cause of action did not arise
under Section 107(a).

Cooper rejected the premise of those decisions, holding
that a PRP in the situation of Atlantic Research or DuPont did
not have a cause of action under Section | 13(f)(1). Following
Cooper, the Second, Seventh, and Eighth Circuits have
unanimously rejected their pre-Cooper “exclusivity” precedents
that a PRP cannot recover costs from other PRPs under Section
107(a)(4)(B). See MWRD, 473 F.3d at 828, 833-35;
Atl. Research, 459 F.3d at 833, 834-835; Consol. Edison, 423
F.3d at 98-99. Only the divided panel of the Third Circuit has
ruled to the contrary. See DuPont, supra. Because the
fundamental legal rationale of the pre-Cooper cases is no longer -
valid, those cases fall of their own weight. a

Furthermore, the practical concerns of the courts in those
cases no longer pertain. For example, courts declined to allow
a PRP to recover 100% of the cleanup costs based on joint-and-
several liability under Section 107(a)(4)(B). However, the
Section 107(a)(4)(B) action asserted here involves several rather
than joint-and-several liability, resulting in an equitable

13

allocation of the costs among PRPs. See pages 27-29, infra.
Similarly, courts rejected a Section 107 action that would
duplicate the Section 113(f) nght that was then thought to be
available and allow a PRP to elect to proceed under the former
rather than the latter, thereby rendering Section 113(f)(1)
superfluous. As the Second, Seventh, and Eighth Circuits have
held, Cooper eliminates any such issue. After Cooper, a PRP
cannot choose to proceed under one or the other of those
provisions; rather, Sections 107(a) and 113(f)(1) “embod[y
different] mechanism|s] for cost recovery available to persons
in different procedural circumstances.” Consol. Edison, 423 F.3d
at 99; see also Atl. Research, 459 F.3d at 835; MWRD, 473 F.3d
at 833. For a PRP that has been subject to a civil action under
Sections 106 or 107, the contribution claim arises under Section
113(f(1) as Cooper held; for a PRP in other circumstances,
Section 107(a)(4)(B) provides the cause of action; but in neither
event is there duplication or circumvention of the statutory
scheme.

2. In support of its position that Section 113(f) is exclusive,
the government repeatedly suggests that it would have made no
“sense for Congress to enact an express night to contribution in
Section 113 in the 1986 SARA amendments but to leave the
Section 107(a)(4)(B) action as an implied right under the pre-
SARA decisions. See U.S. Br. 12, 22, 29, 33 n.14. However,
Section 107(a)(4)(B) provides an express rather than implied
cause of action. In fact, a number of pre-SARA decisions had
recognized that subsection (B) confers an express right.
See page 26 note 20, infra.

Moreover, the government fundamentally misunderstands
Section 113(f)(1). Rather than a major substantive provision
that comipletely occupies the field of the equitable allocation of
cleanup costs between PRPs, Section 113(f)(1) is an important
but entirely procedural provision designed to address a specific
concern raised by the government about the timing of
contribution claims in cases in which the government had filed —

14

suit against a PRP. This narrow focus explains the key timing
language “during or following” in Section 113(f)(1) and is
reflected in the explicit directive of the savings clause that other
rights are not affected by the targeted contribution provision in
Section 113(f)(1).

Section 113(f)(1) began in a biil proposed by the
administration. See Communication from the President to the
Speaker of the House of Representatives, H.R. Doc. No. 99-32,
at 23, § 202 (Feb. 26, 1985); S. 494, 99th Cong. § 202 (1985).
Section 202 of the bill would have added the following new
subsection to Section 107 (emphasis added):

(k)(1) In any civil or administrative action brought
under this section [section 107] or section 106, any
claims for contribution or indemnification shall be
brought only after entry of judgment or date of
settlement in good faith.

Following this subsection, the bill also would have added
subsection 2 (emphasis added):

(2) After judgment in any civil action under section
106 or subsection (a) of this section, any defendant
held liable in the action may bring a separate action
for contribution against any other person liable or
potentially liable under subsection (a). Such action
shall be brought in accordance with section 113 and
shall be governed by Federal law. Except as provided
in paragraph (4) of the subsection, this subsection
shall not impair any right of indemnity under
existing law. ,

The accompanying analysis explained that the amendment
“would clarify and confirm existing law governing liability of
potentially responsible parties” and provide that “Where a civil
or administrative action is underway, contribution actions could
be brought only after a judgment is entered or a settlement in
good faith is reached.” H.R. Doc. No. 99-32 at 73 (emphasis
added).

15

The amendment would clarify that if an
enforcement action is underway, claims for
contribution or indemnification could not be brought
until a judgment or settlement is reached. This
change would allow the government to limit the
number of parties in its actions, so that litigation
could be conducted in a more efficient and
expeditious fashion.

Id. at 73-74 (emphasis added).

Thus, this proposed amendment focused on government
enforcement actions and was designed to expedite that litigation
by requiring that the defendant PRP, instead of raising
contribution claims and bringing in new parties in that action,
bring such claims in a separate lawsuit after the government’s
case had been resolved. In all other respects, other rights were
preserved. :

In congressional hearings, administration witnesses
reiterated this explanation for the provision. See Senate Hearing
on S. 51 & S. 494 Before the §. Comm. On Env’t & Public Works,
99th Cong. 58 (Feb. 25, 1985) (statement of Ass’t Att’y Gen.
Habicht) (“contribution actions, following the government’s
case, may be appropriate,” but “defendants . . . impleading others
as third party defendants . . . delay the resolution of the
government’s suit”); House Hearing on the Reauthorization of
Superfund Before the H. Subcomm. On Water Resources of the
Comm. On Public Works & Trans., 99th Cong. 548-49 (Mar.
28, 1985) (statement of Mr. Habicht) (proposed amendment
concems “the sequence and timing of litigation”); id. at 646-47
(statement of Mr. Habicht) (Contribution “should happen
elsewhere — not in our case against the principal defendants.
Our concern is one of timing. . . . [T]here would be no need for
defense counsel to bring third-party defendants into the
{enforcement] case’’).

After objections were raised to the proposed postponement
of contribution, the administration clarified that it intended “only

16

to postpone the hearing of defendants’ contribution claims
against third-party defendants until after the government suit is
over” but not the “filing” of third-party complaints for ~
contribution. House Hearing (Mar. 28, 1985) at 663 (response
of EPA Administrator Lee M. Thomas). The administration was
“amenable” (id.) to a clarifying change in the proposed language.
Accordingly, Assistant Attorney General Habicht explained that
the government “support(ed] the ability of principal defendants
to sue third party defendants for contribution or indemnification
as soon as the government enforcement action has commenced.”
Id. at 719-20.

In subsequent hearings, the Senate committee returned to
the issue of “the timing of joining parties and for seeking
contribution.” Senate Hearings on Superfund Improvement Act
of 1985 Before S. Comm. On the Judiciary, 99th Cong. 2 (June
7 and 10, 1985) (statement of Chairman Thurmond).
Emphasizing the need “for a logical sequence of litigation,”
Mr. Habicht stated that the administration “support[ed]” and
would propose a “revision” to “make clear that parties can, under
rule 14, bring third-party complaints immediately during the
action in chief, and only the hearing of those claims would be
put off... .” /d. at 38; see also id. at 52-55, 73-74, 77-79, 91-
93, 99-101. To “address[] the Committee’s procedural concerns”
(id. at 53), the administration’s amendment provided — in
language eventually contained in the enacted Section 113(f)(1)
— that a defendant could seek contribution “[dJuring or
following” a government enforcement action but the claim
would not be adjudicated until the enforcement action had been
concluded. Jd. at 65. Likewise, to make clear the narrow scope
of this provedural timing provision, the amendment further stated
that “nothing in this subsection shall impair any right of
indemnity under existing law.” /d.; see also id. at 30, 51-52,
245-46.

This history makes manifest two critical conclusions. First,
the contribution provision in the enabling clause in Section

17

113(f)(1) is narrowly designed to govern the timing of
contribution claims in connection with pending actions brought
by the government (or, under the plain language of the provision,
a private plaintiff). Since, with respect to the Section 107 issue
now before the Court, the government by definition has not
initiated a proceeding, the enabling clause in Section 113(f(1)
is irrelevant. Second, to reinforce the narrowness of the enabling
clause, the savings clause explicitly confirms thai all other
contribution rights in any other circumstances are not impaired
or superseded. Together, these conclusions are the death knell
for the government’s argument?

3. The savings clause explicitly preserves all other “right[s]
of any person to bring an action for contribution in the absence
of a civil action [under Sections 106 or 107]” — that is, in
situations in which a Section 113(f)(1) contribution claim cannot
be brought under Cooper. This statutory provision makes clear
that Congress did not abrogate the Section 107(a)(4)(B) right —
that existed before SARA. In fact, even the Third Circuit, in
rejecting the Section 107(a)(4)(B) cause of action, conceded
that there is nothing in either the statute or the legislative history
that so much as hints at such a retrogressive intent. See DuPont,
460 F.3d at 538. See also, e.g., Midlantic Nat’l Bank y. N.J.
Dep't of Envtl. Prot., 474 U.S. 494, 501 (1985) (if Congress
wants to disapprove prior judicial decisions, it must make its
“intent specific”).

The pre-SARA case law broadly recognized the right of
PRPs to sue each other, and in particular recognized that a PRP
that undertook a cleanup could sue other PRPs for an equitable

9. In a related vein, the government contends that even if Section
107(a4)B) of CERCLA originally provided the asserted cause of
action, that did not survive the subsequent enactment of Section 113(N(1)
in the 1986 SARA amendments. However, not only are implied repeals
strongly disfavored (see, e.g., Rodriguez v. United States, 480 U.S. 522,
524 (1987)), but the language and history of the cnabling and savings
clauses in Section 113(f)(1) plainly demonstrate that SARA did not
revoke such a right under Section 107(a)(4)(B).

18

allocation of cleanup costs notwithstanding that it had not been
sued by the government. See Cooper, 543 U.S. at 161-62 (pre-
SARA cases held that “‘a private party that had incurred response
costs, but that had done so voluntarily and was not itself subject
to suit, had a cause of action for cost recovery against other
PRPs”). Even the Third Circuit acknowledged that pre-SARA
cases “allowed private parties, including PRPs, to seek
contribution for costs incurred in forced or voluntary cleanups.”
DuPont, 460 F.3d at 521. Furthermore, in enacting Section
113(f)(1) in SARA, Congress approved the courts’ recognition
of such a right of contribution. See H.R. Rep. No. 99-253(1), at
79, as reprinted in 1986 U.S.C.C.A.N. at 2861.

The government contends that lower courts “had disagreed”
on the existence and source of the right of one PRP to sue another
to recover cleanup costs. U.S. Br. 27. To be sure, courts variously
characterized the right as eapress (see page 26 note 20, infra),
or implied, or based on federal common law. But in determining
what the savings clause preserves, those differences are
immaterial.

Moreover, the lower courts were “virtually unanimous” that
a PRP had a Section 107(a)(4)(B) cause of action to recover
cleanup costs from other PRPs. Walls v. Waste Res. Corp., 761
F.2d 311, 318 (6th Cir. 1985). See also Key Tronic, 511 U.S. at
816 (“numerous cases”); Cooper, 543 U.S. at 174 (Ginsburg,
J., dissenting). The one case cited by the government to establish
a “disagree[ment]” — United States v. Westinghouse Elec. Corp.,
No. IP 83-9-C, 1983 WL 160587 (S.D. Ind. June 29, 1983) — is
the /one decision to the contrary. See Colorado v. ASARCO,
Inc., 608 F. Supp. 1484, 1492 (D. Colo. 1985); United States v.
Ward, No. 83-63-CIV-5, 1984 WL 15710, at *3, approvingly
discussed by Congress in SARA, see page 10 note 8, supra.
And Westinghouse in fact addressed a different issue because
the Section 107(a)(4)(B) defendant was not a PRP.
Westinghouse, 1983 WL 160587 at *3. See Sand Springs Home,
670 F. Supp. at 916-17.

19

The government candidly concedes that two decisions
precisely on point upheld a Section 107(a)(4)(B) action by a
PRP that had not first been sued. See City of New York v. Exxon
Corp., 633 F. Supp. at 615-18; City of Philadelphia v. Stepan
Chem. Co., 544 F. Supp. at 1140-43, cited in Cooper, 543 U.S.
at 161-62. It also cites a third such case but unpersuasively
attempts to distinguish it on the ground that it was a declaratory-
judgment suit. See Pinole Point Props., Inc., 596 F. Supp. at
290-92.

These decisions — with none to the contrary — are sufficient
to establish the pre-SARA law here. But in fact there are a
number of additional cases.'° These cases convincingly
demonsirate that, prior to SARA, a PRP that undertook a cleanup —
without the compulsion of a governmental enforcement action
had a Section 107(a)(4)(B) nght of action against other PRPs
for an equitable sharing of costs. See Cooper, 543 U.S. at 161
(“[vJarious courts held that § 107(a)(4)(B) . . . authorized... a
cause of action” for “a private party that had incurred response
costs, but had done so voluntarily and was not itself subject to
suit, . . . [to sue] for cost recovery against other PRPs”’).

The pre-SARA case law sheds critical light on the Section
107(a4)(B) cause of action. As Cooper summarized, there were
two lines of cases. The first, described above, arose where the
Section 107(a)(4)(B) PRP-plaintiff had not been sued by the
government. The other entailed “the separate question whether
a private entity that had been sued in a cost recovery action (by
the Government or by another PRP) could obtain contribution

10. See Levin Metals Corp. v. Parr-Richmond Terminal Co., 799
F.2d 1312, 1315 (9th Cir. 1986); NL Indus. , Inc. v. Kaplan, 792 F.2d
896, 898 (9th Cir. 1986); Wickland Oil Terminal v. ASARCO, Inc. , 792
F.2d at 889, cited in Cooper, 543 U.S. at 161-62; Allied Towing Corp. v.
Great Eastern Petroleum Corp., 642 F. Supp. 1339, 1348-49 (E.D. Va.
1986); Bulk Distribution Ctrs., Inc. v. Monsanto Co., 589 F. Supp. 1437,
1438-41, 1452 (S.D. Fla. 1984): Homart Dev. Co. v. Bethlehem Steel
Corp., No. C84-2579 WSS, 1984 U.S. Dist. LEXIS 14962 at * 1 (N.D.
Cal. Aug. 1, 1984). See also Sand Springs Home, 670 F. Supp. at 914
(decided under pre-SARA law but issued after enactment of SARA).

20

from other PRPs. . . . A number of District Courts . . . held that
. . . Such a right arose either impliedly from provisions of the
Statute, or as a matter of federal common law.” Cooper, 543
U.S. at 162. In light of both the structure of the statute and the
contribution right and savings clause in Section 113(f)(1), it is
clear that the savings clause preserves the former cases, and the
Section 113(f)(1) contribution cause of action corresponds to,
and makes express, the latter. The Court recognized the second
proposition in Cooper, and it should now recognize the first in
this case. Because the Section 107(a)(4)(B) cause of action here
falls in the former category of pre-SARA rights, it is preserved
by the savings clause and not superseded by Section 113(f)(1).

Il. THE FUNDAMENTAL PURPOSES OF CERCLA
DEMONSTRATE THE EXISTENCE OF A SECTION
107(a)(4)(B) CAUSE OF ACTION.

For the foregoing reasons, the text of CERCLA is sufficient
to conclude that a PRP can sue another PRP to recover cleanup
costs under Section 107(a)(4)(B). That conclusion is reinforced
by the congressional purposes underlying CERCLA."'

1. As this Court and the courts of appeals consistently have
recognized, CERCLA has two fundamental purposes: (1) to
promote the prompt cleanup of hazardous waste sites, and (2) to
ensure that the parties responsible for the pollution bear the cost of
the cleanup.'? These congressional objectives are indisputable.'*

11. CERCLAis a remedial statute that should be liberally construed
to effectuate its purposes. See, e.g., Carson Harbor Village Ltd. v. Unocal
Corp., 270 F.3d 863, 881 (9th Cir. 2001) (en banc).

12. See Bestfoods, 524 U.S. at 55-56 & n.1; Meghrig v. KFC
Western, Inc., 516 U.S. 479, 483 (1996); MWRD, 473 F.3d at 836;
Consol. Edison, 423 F.3d at 94: Atl. Research, 459 F.3d at 837; Morton
Int'l, Inc. v. A.E. Staley Mfg. Co., 343 F.3d 669, 676 (3d Cir. 2003);
Aviall S-rvices, Inc. v. Cooper Indus. Inc., 312 F.3d 677, 681-82 (Sth
Cir. 2002) (en banc), rev'd on other grounds, Cooper, 543 U.S. 157.

13. We submit that Congress also intended to encourage private
parties to undertake voluntary cleanups. Because the government does
dispute that policy, it is discussed separately. See pages 21-25, infra.

21

The government’s position would impair both policies.
First, by precluding contribution, it would “impermissibly
discourag[e] voluntary cleanup” and “would create a perverse
incentive for PRPs to wait until they are sued before incurring
response costs.” Consol. Edison, 423 F.3d at 100. See also Att.
Research, 459 F. 3d at 837: MWRD, 473 F.3d at 836.

Second, the government’s position violates the “polluter
pays” principle. This case well illustrates that problem. Here,
although the United States is legally responsible for
contamination at the site at issue, Atlantic Research is forced to
bear 100% of the cost of the cleanup.

2. The government asserts that CERCLA is designed to
promote cleanups that occur pursuant to settlements with EPA
but not those that private parties undertake voluntarily.'* While
Congress unquestionably wanted to encourage settlements, that
is a far cry from the government’s submission that it also sought
to discourage or eliminate voluntary cleanups. See DuPont, 460
F.3d at 549 (Sloviter, J., dissenting). In fact, the United Stites
previously has recognized in this Court that “voluntary” cleanups
are covered by Section 107(a)(4)(B). See U.S. Key Tronic Br.
40.

Just as the law generally favors settlement over litigation,
Congress sought to promote settlements in place of long and
complex litigation, thereby facilitating prompt cleanup and

14. “Voluntary” cleanups refer to those that were not compelled
by a Section 106 or 107 civil action or a settlement (the precondition
for a Section 113(f)(1) action under Cooper). See, e.g., MWRD, 473
F.3d at 826; Schaefer, 457 F.3d at 200. In DuPont, the cleanups were
undertaken pursuant to federal and state environmental statutcs and were
subject to regulatory oversight either by EPA or a counterpart state
agency. For example, at the Louisville plant that was the focus of the
proceedings in the district court, the cleanup occurred pursuant to a
permit issued under the corrective action program of the Solid Waste
Disposal Act as amended by the Resource Conservation and Recovery
Act and the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C.
§§ 6901- 6992k (“RCRA”).

22

enabling resources to be devoted to environmental cleanups
rather than lawsuits.'° That Congress preferred settlements to
litigation does not in any way suggest that Congress intended
to preclude voluntary cleanups outside of settlements.

In addition, both this Court and other courts have recognized
that the statute contemplates and encourages voluntary
“eanups.'® Nothing in the statute looks in the opposite direction.

In fact, there is nothing whatever in the statute or legislative
history that excludes voluntary cleanups. While, as the Third
Circuit noted (460 F.3d at 536-42), Congress recognized the
desirability of settlements, it also repeatedly referred to voluntary
cleanups.'’

15. See 131 Cong. Rec. 28,416 (1986) (debate on Conference
Report) (remarks of Sen. Stafford) (“I support fair settlements as an
efficient alternative to litigation”); id. at 28,433-34 (remarks of Sen.
Simpson); 131 Cong. Rec. 29,717 (1986) (debate on Conference Report)
(remarks of Rep. Lent) (settlements avoid “[c]ostly, protracted litigation
[that] threatens the effectivencss of the Superfund Program and
consumes resources better spent on cleanup”); H.R. Rep. No. 99-253(1),
at 58-59 (1985), as reprinted in 1986 U.S.C.C.A.N. at 2840-41 (“Some
have criticized the existing program for spending more on wasteful
litigation than on actual cleanups. . . . The settlement procedures now
set forth are expected to be a significant inducement for the parties to
come forward, to settle, to avoid wastcful litigation, and thus to begin
cleanup. . . . [The contribution provisions] should encourage quicker,
more equitable settlements, decrease litigation and thus facilitate
cleanups”).

16. See Cooper, 543 U.S. at 162; Union Gas, 491 U.S. at 21-22
(plurality opinion); Fisher Dev. Co. v. Boise Cascade Corp., 37 F.3d
104, 112 n.2 (3d Cir. 1994); Consol. Edison, 423 F.3d at 100; Al.
Research, 459 F.3d at 837; MWRD, 473 F.3d at 836.

17. See DuPont, 460 F.3d at 548-49 (Sloviter, J., dissenting); H.R.

Rep. No. 96-1016(1), at 17 (1980), as reprinted in 1980 U.S.C.C.A.N.
6119, 6120 (1980) (emphasis added) (CERCLA “would also establish
a Federal cause of action . . . to induce such persons voluntarily to
(Cont'd)

23

indeed, during the hearings that led to the amendment to
Section 113(f)(1) to allow contribution claims to be brought
“during” as well as “following” an enforcement action (see pages
15-16, supra), the government itself acknowledged the need
for voluntary cleanups by PRPs. Assistant Attorney General
Habicht stated the administration’s position “to strike a valance”
in order “to encourage responsible parties to come forward
and do the cleanup work expeditiously themselves, whether
they are in agreement with EPA or acting under protest.”
House Hearing (Mar. 28, 1985) at 643. Similarly, EPA
Administrator Thomas was asked the following written question:

(Cont'd)

pursue appropriate environmental response actions”); S. Rep. No. 96-
848, at 31 (1980); 126 Cong. Rec. 26,338 (1980) (remarks of Rep. Florio)
(emphasis added) (CERCLA provides “a strong incentive both for
prevention of releases and voluntary cleanup of releases by responsible
parties”); 126 Cong. Rec. 26,787 (1980) (remarks of Rep. Florio) (“EPA
is required not to act if the responsible party or partics will take
appropriate action to cleanup and contain these sites”); 126 Cong. Rec.
26,761 (1980) (remarks of Rep. Florio) (PRPs will have an “incentive
.. . to go forward on a voluntary basis and clean up those sites); 126
Cong. Rec. 30,952 (1980) (remarks of Sen. Culver) (one purpose is “to
create an incentive . . . for a responsible party to clean up its own
releases”); H.R. Rep. No. 99-253(V), at 58 (1985), as reprinted in 1986
U.S.C.C.A.N. at 3181 (“[vJoluntary cleanups are essential to a successful
program for cleanup of the Nation’s hazardous substance pollution
problem”); H.R. Rep. No. 99-253(1), at 80, as reprinted in 1986
U.S.C.C.A.N. at 2862 (The bill “should encourage private party
settlements and cleanups. . . . Private parties may be more willing to
assume the financial responsibility ... if they are assured that they can
seek contribution from others”); S. Rep. No. 99-11, at 44 (1985) (same);
131 Cong. Rec. 24,730 (1985) (remarks of Sen. Domenici) (emphasis
added) (“The goal of CERCLA is to achieve effective and cxpedited
cleanup of as many uncontrolled hazardous waste facilities as possible.
One important component of the realistic strategy must be the
encouragement of voluntary cleanup actions or funding without having
the President rely on the panoply of administrative and judicial tools
available”).

24

“What specific steps will the Agency take to encourage
responsible parties to come forward and initiate site cleanups?
Does the Agency believe such industrial volunteers should be
encouraged?” Mr. Thomas responded:

The Agency recognizes that Fund-financed
cleanups, administrative action and litigation will
not be sufficient to accomplish CERCLA’s goals,
and that voluntary cleanups are essential to a
successful program for cleanup of the nation’s
hazardous waste sites. The Agency has taken a
number of steps to encourage participation by
responsible parties in the CERCLA program, and
will continue to create a climate that is receptive to
private party cleanup proposals.

Id. at 710 (emphasis added).

The government candidly concedes that “[t}he legislative
history of SARA does contain references to the desirability of
‘voluntary cleanups’” and that “the history of the original
CERCLA legislation contains some less qualified [that is,
affirmative and unambiguous] statements about the desirability
of voluntary cleanups.” U.S. Br. 41, 42. This history
demonstrates the congressional intent, beginning in the 1980
CERCLA legislation and continuing in the 1986 SARA
amendments, to encourage voluntary cleanups and thus belies
the government’s attempt to link voluntary cleanups inexorably
with settlements in the SARA amendments — an attempt it does
not even try with respect to the onginal CERCLA statute.

The government further argues that EPA disfavors voluntary
cleanups, but that is simply not the case. EPA has often lauded
voluntary cleanup efforts and even expressed concern that
Cooper might reduce the incentive for voluntary cleanups.
DuPont, 460 F.3d at 549-50 (Sloviter, J., dissenting). In fact, in
1984 — immediately preceding the drafting and consideration
of the 1986 SARA amendments — EPA stated that it was
“preferable for private parties to conduct cleanups themselves”

25

and therefore endeavored to “remove or minimize if possible
the impediments to voluntary cleanup.” Lee M. Thomas &
F. Henry Habicht I, U.S. EPA, Interim CERCLA Settlement
Policy at 2,4 (OSWER Directive No. 9835.0) (1984). See also
48 Fed. Reg. 40,658, 40,661 (Sept. 8, 1983) (referring to
“[vjoluntary or negotiated cleanup” and stating that EPA does
“not intend| | to preclude responsible parties from taking
voluntary response actions outside of a consent agreement’);
55 Fed. Reg. 8666, 8792-8793 (Mar. 8, 1990) (“EPA believes
that it is important to encourage private parties to perform
voluntary cleanups of sites, and to remove unnecessary obstacles
to their ability to recover their costs from the parties that are
liable for the contamination”).

Finally, the government is incorrect that settlements
providing for EPA supervision of private parties are necessary
to ensure the environmental adequacy of the cleanups. Section
107(a)(4)(B) expressly requires that, to recover, the subsection
(B) plaintiff must satisfy the burden of demonstrating that the
response costs are “necessary” and “consistent with the [NCP].”
42 U.S.C. § 9607(a)(4)(B). This ensures that, as Congress
understood, cleanups will be of CERCLA quality in order for a
subsection (B) action to be available. See 40 C.F.R. § 300.700
(c)(3)(i); 126 Cong. Rec. 30,933 (1980) (remarks of Sen.
Randolph) (the NCP will “provide . . . for selection of the most
cost-effective and environmentally sound alternative for
remedying the site’’).'*

18. See Regional Airport Auth. of Louisville v. LFG LLC, 460 F.3d
697, 703-09 (6th Cir. 2006); PMC, Inc. v. Sherwin-Williams Co., 151
F.3d 610, 616 (7th Cir. 1998) (Posner, J., ); Amoco Oil Co. v. Borden,
Inc. , 889 F.2d 664, 672 (Sth Cir. 1989); City of Philadelphia v. Stepan
Chem. Co., 544 F. Supp. at 1144 0.16.

26

Ill. SECTION 107(a)(4)(B) PROVIDES AN EXPRESS
CAUSE OF ACTION IN THE NATURE OF
CONTRIBUTION.

Section 107(a)(4)(B) provides an express right of action
that is in the nature of contribution.

A. Section 107(a)(4)(B) Provides An Express Cause Of
Action.

1. As discussed above, Section 107(a)(4)(B), by its explicit
terms, provides a cause of action.'? By definition, this is an
express cause of action. In Meghrig, 516 U.S. at 485, the Court
unanimously concluded that CERCLA ‘expressly permits the
recovery of any ‘necessary costs of response, incurred by any
. . » person consistent with the national contingency plan,
[42 U.S.C.} § 9607(a)(4)(B)” (omission in Court’s opinion;
emphasis added). Furthermore, pre-SARA cases recognized that
Section 107(a)(4)(B) provides an express cause of action.?°

; We recognize that, prior to Meghrig, the Court in Key Tronic
discussed whether the Section 107(a)(4)(B) action should be
viewed as “express” or “implied.” Justice Scalia’s dissent
concluded that a subsection (B) claim reflects “the express
creation of a right of action. . . . Section 107(a)(4)(B) states that
persons are liable for certain costs ‘incurred by any other person’
(emphasis added), thus providing an express cause of action
for private parties.” 511 U.S. at 822 & n.1 (Scalia, J., dissenting)
(emphasis in original). However, Justice Stevens’s opinion for
the majority reasoned that subsection (B) “impliedly authorizes”
the cause of action. /d. at 816, 818; see also id. at 818 n.11.

19. The government agrees that, whatever the substance of Section
107(a)(4)(B), it provides an express cause of action.

20. See, e.g., NL Indus. Inc. v. Xaplan, 792 F.2d at 898; Wickland
Oil Terminals, 792 F.2d at 887-890, cited in Cooper, 543 U.S. at 161-
62; City of Philadelphia v. Stepan Chem. Co., 544 F. Supp. at 1143,
cited in Cooper, 543 U.S. at 161-62.

27

_ For two reasons, Key Tronic is not controlling on the issue
presented here. Indeed, the Second, Seventh, and Eighth Circuits
have held that subsection (B) creates an express cause of action.

First, the Key Tronic majority was concerned that Section
107(a)(4\(B), which specifies the defendant who would be liable
but not the plaintiff who could sue, was not express because it
did not explicitly identify the class of intended plaintiffs.
See 511 U.S. at 818 n.11. Therefore, because subsection (B)
implicitly rather than explicitly identified the category of
plaintiffs, the majority stated that the cause of action was
implied. However, simply because the scope and meaning of
the statute had to be filled in by implication — that is, by a
process of interpretation — does not mean that the statute does
not expressly create the right of action.

Second, the substantive question in Key Tronic was whether
CERCLA departed from the “American rule” by providing that
the prevailing party could recover its attorneys’ fees from the
loser. The majority relied on the “implied” nature of the
subsection (B) action as one of the factors demonstrating that
the statute did not embody the necessary “‘explicit congressional
authorization.”” 511 U.S. at 814-15 (citations omitted). That
analysis has no application here.

B. Section 107(a)(4)(B) Provides A Cause Of Action
In The Nature Of Contribution.

Because Section 107(a)(4)(B) entitles a PRP to recover
response costs from other PRPs, a subsection (B) claim has
generally been termed a cost-recovery action. That
denomination, however, does not define the characteristics of
the cause of action or indicate its relationship to a contribution
action. Indeed, as the government itself acknowledges,
“{cjontribution is merely a form of cost recovery, not a wholly
independent type of relief.” U.S. Br. 33 n.14. For four reasons,
the subsection (B) action is in the nature of contribution.

28

First, CERCLA on its face recognizes that Section
107(a)(4)(B) embraces contribution claims. In particular, Section
113(h){1) expressly refers to “[a]n action under section 9607 of
this title to recover response costs or damages or for
contribution.” 42 U.S.C. § 9613(h)(1) (emphasis added).

Second, it is well established, as the government recognizes
(U.S. Br. 38 n.17), that a cause of action between PRPs for an
equitable allocation of cleanup costs is a “‘quintessential claim
for contribution.” Thus, the subsection (B) action is intrinsically
one for contribution.

Third, pre-SARA decisions construed Section 107(a)(4)(B)
to give rise to contribution actions between PRPs. See pages
17-20, supra. Accordingly, under CERCLA, and as preserved
in SARA, the subsection (B) action is in the nature of
contribution.

; Fourth, even absent these governing considerations, Section
107(a)(4)(B) should be sensibly construed to provide a
contribution cause of action. See Union Gas, 491 U.S. at 21-22
(plurality opinion) (“proportionate amount’); Cooper 543 U.S.
at 172-74 (Ginsburg, J., dissenting) (referring to “contribution”).
Tiuis would be the appropriate approach to statutory construction
in any event. See Johnson v. United States, 529 U.S. 694, 706
n.9 (2000) (“‘nothing is better settled than that statutes should
. receive a sensible construction”) (guoting In re Chapman, 166
U.S. 661, 667 (1897)). But beyond that, Congress explicitly
contemplated that courts would have broad authority to
implement the statute in light of sound legal principles. See
pages 9-10 & notes 9, 10, supra. Furthermore, Congress
intended that, even after enactment of Section 113(f)(1), the
courts would continue to determine CERCLA contribution
principles. See, e.g.,S. Rep. No.,.99-11 at 45; H.R. Rep. No. 99-
253(1) at 80, as reprinted in 1986 U.S.C.C.A.N. at 2861.

Specifically, liability between PRPs under Section
107(a)(4)(B) is several rather than joint and several. All agree
that such liability must be several so that an equitable allocation

29

of cleanup costs can be achieved; it would be senseless to entitle
the PRP that undertook the cleanup to gain 100% of its costs
and thus have no financial responsibility for the contamination.
See Cooper, 543 U.S. at 174 (Ginsburg, J., dissenting) (recovery
of “proportionate share” of costs). Since subsection (B) does
not contain a liability standard, it falls to the courts, just as
Congress intended, to construe one based on the structure and
purposes of the statute. And the settled standard for cleanups
that are quintessentially in the nature of contribution is several
liability. *'

For-similar reasons, it is not inconsistent that liability is
joint and several under Section 107(a)(4)(A) but several under
Section 107(a)(4)(B). In enacting CERCLA, Congress
deliberately deleted a provision establishing joint and several
liability, leaving it to the courts to adopt the proper standard.
See pages 9-10, supra. Under that authority, courts have held
that subsection (A) imposes joint and several liability by
allowing the government to sue and to recover all of its costs
from any responsible party, this best promotes effective
enforcement of CERCLA and best enables the United States to
recover its own expenditures to replenish the Superfund. As
previously explained, nowever, subsection (B) authorizes suits
by private PRPs and is designed to encourage prompt and
voluntary cleanups and to facilitate the equitable allocation of
cleanup costs. Given these differences in structure and purpose,
subsection (A) and (B) actions should not be subject to an
identical standard of liability.

21. In any event, if Section 107(a)(4)(B) liability is joint and
several, the subsection (B) defendant would have a contribution
counterclaim against the subsection (B) plaintiff under Section 1 13(f)(1).
See Consol. Edison, 423 F.3d at 100 n.9; Atl. Research, 459 F.3d at 835.

30
CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted,

WILLIAM H. Hyatr, Jr. Mark I. Levy

Emity L. Won Counsel of Record

K & LGates KILPATRICK STOCKTON LLP
One Newark Center 607 14th Street, N.W.
10th Floor Suite 900
Newark, NJ 07102 Washington, DC 20005
(973) 848-4000 (202) 824-1437

Counsel for Amici Curiae

April 5, 2007

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0501%3A17. Public record. Not legal advice.