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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0501%3A19

## Record

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

## Text

6592

i

No. 06-562
A

IN THE SUPREME COURT OF THE UNITED STATES

UNITED STATES OF AMERICA, PETITIONER
V.
ATLANTIC RESEARCH CORPORATION, RESPONDENT

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

BRIEF FOR AMICI CURIAE FORMER ADMINISTRATOR
CAROL M. BROWNER, FORMER ASSISTANT
ADMINISTRATORS DON R. CLAY, TIMOTHY FIELDS,
JR., STEVEN A. HERMAN, MARIANNE LAMONT
HORINKO, ELLIOTT P. LAWS, AND DR. J. WINSTON
PORTER, AND FORMER GENERAL COUNSELS
JONATHAN Z. CANNON AND JEAN C. NELSON OF THE
UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY IN SUPPORT OF RESPONDENT

JOEL M. GROSS

Counsel of Record
JOSEPH S. KAKESH*
ARNOLD & PORTER LLP
555 Twelfth Street, N.W.
Washington, D.C. 20004
(202) 942-5000

* Admitted only in Maryland Attorneys for Amici Curiae

TABLE OF CONTENTS

Page
INTEREST OF THE AMICI CURIAE. ...............ccccccccceeeeeeeees l
BUREIGARY GP ABIUIITIIND ceccescescccsscesccssccsssccsescccessosenses 2
I. Interpreting Section 107 Contrary to
its Express Language to Preclude Claims
by Potentially Responsible Parties Would
Discourage and Delay the Cleanup of
IIE HII crsctipticniccsisinccetissininiebinicinisinsnneapnsnanamnctioniens 5
A. The Importance of Encouraging Private
Party Cleanups ...............--s-cesssssesosssssesesesceseeoees 5
B. Affirming the Court of Appeals
Decision will Get More Sites Cleaned
Up, and Cleaned Up Faster ...............ccseeceeeseeees 9
C. The Solicitor General’s Brief is
Inconsistent With EPA’s Policies
I Seciniineiiaiencthianensnritntncnemsicanesiinsnnisit 12
D. Petitioner’s Position Would
Discourage Compliance with
Administrative Cleanup Orders ................05 14
Il. Petitioner’s Position Would Allow Many
Federal PRPS to Escape Liability ...................0.......002. 15
III. Petitioner’s Position Would Result

in Increased litigation and

Transaction Costs

SEETHER EEE EHH HEE

il

IV. Providing for a Broad Right
of Recovery Under Section
107(a)(4)(b) Would Contribute to
The Overall Fairness of the
SENT icesihtincesencseiciisitinniinlaniiiiagubciicandiiaidiiniaa 19

STE TTDIT TT siceecsiissasinseridnisetcniseieiaeitaiiisuieiaeieeabintileiidadtenesaigies 21

TABLE OF AUTHORITIES

CASES

Colorado v. ASARCO, Inc.,

608 F. Supp. 1484 (D. Colo. 1985)... 19, 20
Comm 'r v. Engle,

a aiiicicersieccnntccitniniicianibninatinnniiani 21
Cooper Indus., Inc. v. Aviall Servs., Inc.,

a ee CN cerittitaciicciontitsinidtinieniatnadaeiitineitedninnnds 4
Dickerson v. New Banner Inst., Inc.,

a kites icesdcelscnitiisinniinsdnindennineiniennens 4
Griffin v. Oceanic Contractors, Inc.,

UA, STi dchcslinihdteiniantasdechietipeieivinsnnicaniadaiidbiitaleianendionaii 21
Key Tronic Corp. v. United States, |

ee iiciisteciidinnnintininiepiedinininnscnnvaunees 6
Morrison Enter. v. McShares, Inc.,

GR Fleet lk ee 10

STATUTES

a IED ciscdiincienniipasenncnensnidtmmmmennntiionse 10
Be se te I sa scncctscssecistenitneanianapneinsnncescsinitipandenien 16

Pub. L. No. 107-118, 115 Stat. 2356
TUTE ixsanipsecsietunsnsadendieiiapincentescsidiiniadansiseieinandbienenninanenn 7

iV

RULES

BEI Ss Se incitnitineeciiciicniiaininiadsanenieemmmne

LEGISLATIVE MATERIALS

53 Fed. Reg. 51,394 (Dec. 21, 1988) ............ceeseeees
55 Fed. Reg. 8666 (Mar. 8, 1990) 00.00... ccc eeceeeceeees
4, FES 1 i; ; See eeEENT
131 Cong. Rec. H4652 (1985)... eeeeeeeeeeeeenees
ct alee I entenicticscisinininstanitcimnaeninnsininniiiiiiin
es I, Bes De GR Parcs cccnccccvinicnassnesnncsssnnsens

| eee

MISCELLANEOUS

United States Environmental Protection Agency,
Interim Guidance on Orphan Share
Compensation for Settlers of Remedial

Design/ Remedial Action and Non-Time-Critical

ee I isi csiecseiieninciianednniiinnt

Hearing Before the S. Subcomm. on Finance and
Hazardous Materials, (Feb. 4, 1998) (statement

Fe I PR, FO Dice ccenscecncsesnvsiemnanenintonenseaneones

wep 2

iat 8

Vv

Hearings Before the Subcomm. on Commerce,
Trade and Hazardous Materials of
the S. Comm. on Commerce (July 18, 1995)

(statement of Steven Herman).....................:00ceeeeeeeeees

EPA, Guidance on Settlements with Prospective
Purchasers of Contaminated Property (May 24,
1995), available at
http://www.epa.gov/swerosps/bf/html-

SE INIIIE ccsicssossaconiecaseacisincontntiadibaniianameniinndenienciis )

EPA, Documentation of Reason(s) for
Not Issuing CERCLA § 106 UAOs to

All Identified PRPs (Aug. 2, 1996)...00.0... eee

Hearings Before the H. Subcomm. on
Finance and Hazardous Materials

(May 12, 1999) (statement of Carol Browner) ..........

Letter from Christine Todd Whitman, EPA, to
Sen. Jeffords, Chairman S. Comm on Env’t and

. h,. Lo. 8k aan ee

Hearings Before the Subcomm. on Transp. and
Hazardous Materials of the H. Comm. on Energy
and Commerce (Feb. 10, 1994) (statement of

Elliott P. Laws, Ass’t Administrator).....................008

Hearings Before the Subcomm. on Water
Resources and Environment of the H. Comm. on
Transp. (April 10, 1997) (statement of Steven

Herman, Ass’t Admimistrator)............cccccccceeeecseeeeeeeees

vi

Oversight Hearings Before the Subcomm. on
Administrative Law and Governmental Relations

of the H. Comm. on the Judiciary, 99th Cong. 51

EES ASE a 19-20

Hearings Before the H. Subcomm. on Finance and
Hazardous Materials (Mar. 5, 1998) (statement of
TT en 20

INTEREST OF THE AMICI CURIAE

Amici Curiae are nine former senior officials of the
United States Environmental Protection Agency (“EPA”).
They each had substantial responsibility for administering
the Superfund program established by the Comprehensive
Environmental Response, Compensation and Liability Act
(“CERCLA”).’ Each amicus has a longstanding professional
expertise relevant to the question presented in this case and
to the ramifications to the Superfund program of how the
Court decides that question. -Each has a strong personal
interest in this Court's resolution of the important legal issue
raised in this case, and in the efficient, effective and fair
administration of the Superfund program so as to protect
public health and the environment throughout the United
States.

The amici include a former EPA Administrator who
had overall responsibility for all EPA programs and devoted
substantial attention to the Superfund program; two former
General Counsels who had responsibility for counseling the
Agency and its leadership on legal issues under CERCLA;
and a former Assistant Administrator for Enforcement and
Compliance Assurance who had responsibility for enforcing
CERCLA, which enforcement was a central element of the
Superfund program. The amici also consist of the last five
persons (other than the present office holder) to have served
as the Assistant Administrator for the Office of Solid Waste
and Emergency Response (“OSWER”)—-the office charged
with primary responsibility for implementing the Superfund

' 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

program. Collectively, these five amici led OSWER for
almost twenty years, and through four Administrations.

Amici are concerned that the position advanced by
the Solicitor General on behalf of the United States in this
case will substantially weaken the Superfund program and
will undermine crucial policies which have been lynchpins
of the program throughout its existence—encouraging
expeditious private party cleanups of contaminated sites;
applying CERCLA’s “polluter pays” principle equally to
federal agencies when they are polluters; reducing the
litigation and transaction costs of the Superfund program;
and enforcing CERCLA in a fair and equitable manner.
Amici have devoted large amounts of their time and energy
to achieving these goals, and a ruling in favor of Petitioner
will undermine that which amici have worked so hard to
accomplish.

A further description of the backgrounds of the
individual amici is set forth in an Appendix to this brief.

SUMMARY OF ARGUMENT

In June 1996, EPA issued a guidance document to
implement a series of reforms that then Administrator
Browner (one of the amici) had recently announced. In that
guidance document, EPA summarized three goals underlying
several of these reforms: “to provide greater fairness, reduce
litigation and transaction costs, and promote private party
cleanup of Superfund sites.” United States Environmental
Protection Agency, Interim Guidance on Orphan Share
Compensation for Settlers of Remedial Design/ Remedial
Action and Non-Time-Critical Removals (June 3, 1996), at
1. None of these three objectives were new. They all had
been articulated for years in CERCLA’s legislative history,
in Administration statements on the _ statute’s

3

implementation, and in judicial holdings on its interpretation.
But the formulation in the 1996 guidance document is useful
because each of the three purposes recognized there as
integral elements of CERCLA enforcement policy would be
substantially undermined if Petitioner’s counter-textual
interpretation of Section 107(aX4)(B) of CERCLA were
accepted by this Court: private party cleanups would be
discouraged and delayed, litigation and transaction costs
would increase, and unfairness would result.

The overarching objective of CERCLA is to facilitate
the prompt cleanup of contaminated sites around the United
States at which there have been releases of hazardous
substances, so as to protect human health and the
environment. Because the number of sites in need of
cleanup far exceeds the number of sites EPA has had the
resources to address, private party cleanups undertaken
without EPA involvement are critical to our national effort to
cleanup hazardous sites.

In enacting CERCLA in 1980, Congress recognized
_ that a statute intended to provide (as its name connotes) for
“comprehensive environmental response” could not rely
solely on government to effectuate that response. So from
day one, CERCLA has encouraged private party cleanups
by, among other things, providing for the recovery of
response costs not just by federal, state and tribal
governments, but, as indicated in Section 107(a)(4)(B), by
“any other person.” Private parties were encouraged to
undertake cleanup through the carrot of being able to recover
those costs, in whole or in part, from other parties who are
liable under CERCLA.

Petitioner argues that parties who may themselves be
liable cannot utilize the cost recovery option of Section
107(a)(4)(B). If this position were adopted, it would

4

severely undermine CERCLA’s objectives by discouraging
private parties from undertaking prompt, high-quality
cleanups of contaminated sites. It would instead encourage
those parties to delay cleanup until the government files suit,
so that they do not lose their ability to seek cost sharing from
other parties who may be liable for cleanup costs at the same
site. This would lead to unnecessary litigation, which would
both divert scarce governmental resources from more
pressing needs and increase the cost of the Superfund
process for parties who have, until now, been willing to
undertake cleanups without litigation. And the result would
compromise the overall fairness of the CERCLA liability
scheme by penalizing those who undertake cleanups
voluntarily and rewarding those who do not.

Moreover, the position advanced by Petitioner would
mean, in combination with this Court’s ruling in Cooper
Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004),
that recipients of administrative cleanun orders under Section
106 of CERCLA—orders which are key elements of the
CERCLA enforcement program—could not comply with
those orders and then seek recovery of their costs from other
liable parties. In contrast, those order recipients who refused
to comply, and who provoked a lawsuit from the
government, would have a right to recover from other liable
parties. Such a result would create irrational incentives, and
would again undermine the Agency’s ability to encourage or
obtain private party cleanups.

Finally, just as CERCLA recognizes that government
cannot be the sole solution to the challenges that CERCLA
is intended to address, it also recognizes that private parties
are not the sole source of those problems. The government,
especially the federal government, has been a major source
of the problem, and under CERCLA, it needs to be subject to
the “polluter pays” principle just like private parties. But the

5

position advanced by the United States here will put the
federal government when it is a polluter in a far better
position than private parties would be in_ similar
circumstances. In other words, the position advanced by the
United States would result in allowing some federal agencies
that have contributed to contaminated sites to escape liability
for their conduct, and in so doing improperly places the
interests of those federal agencies ahead of the interests of
EPA in enforcing CERCLA fairly and equitably as to all
responsible parties, including federal agencies.

ARGUMENT

I. INTERPRETING SECTION 107 CONTRARY
TO ITS EXPRESS LANGUAGE TO PRECLUDE
CLAIMS BY POTENTIALLY RESPONSIBLE
PARTIES WOULD DISCOURAGE AND
DELAY THE CLEANUP OF CONTAMINATED
SITES

A. The Importance of Encouraging Private -
Party Cleanups

The leaders of EPA and of its Superfund program
have long recognized the importance of promoting prompt
and effective cleanup of sites by private parties. After all,
cleanup of contaminated sites is why CERCLA exists, and
there are far more contaminated sites in the United States
than EPA will ever have the resources to address. It has
been estimated that there may be over 450,000 contaminated
commercial and industrial sites across the United States.* In
contrast, in fiscal year 2006, EPA was able to conduct or

* EPA, The Facts Speak for Themselves: A Fundamentally Different
Superfund Program (Nov. 1996), available at
http://www.epa.gov/superfund/ whatisst/sf_fact4.pdf.

6

oversee cleanup construction projects (undertaken by EPA or
PRPs) at 414 sites. EPA, Superfund Nat’! Accomplishments
Summary Fiscal Year 2006 as of Dec. 2006, available at
http://www.epa.gov/superfund/action/process/numbers06.ht
m.

These 414 Sites will generally be those most in need
of cleanup. But it is clear that most of the contaminated sites
in the United States will not be cleaned up by EPA or under
EPA’s supervision. Encouraging private party cleanups
without EPA involvement is therefore essential to addressing
the national inventory of contaminated sites.

Congress emphasized the importance of encouraging
private party clean’p in the initial 1980 enactment of
CERCLA by clearly providing for recovery of response costs
by private parties under Section 107(a)(4)(B). The provision
for recovery of private party cleanup costs was recognized
by this Court in Key Tronic Corp. v. United States, 511 U.S.
809, 816 (1994).

Congress also emphasized the goal of encouraging
private party cleanup when debating the 1986 SARA
amendments. For example, Representative Lent stated: “I
am especially proud of a key groundbreaking structural
reform that will encourage responsible parties to come
forward and take responsibility for cleaning up the toxic
waste sites they helped create.” 131 Cong. Rec. H4652
(1985). During Congressional hearings on the SARA
amendments, Assistant Attorney -General Habicht also
articulated the importance of encouraging private party
cleanups and encouraging persons to undertake cleanup
without an EPA enforcement lawsuit: “As the Government's
goals in this enforcement process become clear, we’re
confident that the reasonable parties around the country, who
have already demonstrated a recognition of what the rules

7

are and what the goals of the Government are, will come
forward and will become participants in the cleanup
process.” Reauthorization of Superfund: Hearings Before
the Subcomm. on Water Res. of the H. Comm. on Public
Works and Transp., 99th Cong. 549 (1985).

Congress recently reemphasized the goal of
encouraging private party cleanup when it passed the Small
Business Liability Relief and Brownfields Revitalization
Act. See Pub. L. No. 107-118, 115 Stat. 2356 (2002). These
amendments to CERCLA sought, among other things, to
stimulate voluntary cleanup programs at the state and local
level by providing grants to facilitate private party cleanup of
so called “brownfield” sites, contaminated properties with
the potential for productive reuse and development. /d. §
211. The Senate committee report accompanying this
legislation recognized the significance of voluntary cleanup
to the overall contaminated property problem, observing that
“(t]he vast majority of contaminated sites across the Nation
will not be cleaned up by the Superfund program.” S. Rep.
No. 107-2, at 15 (2001).

That same Senate committee report referred with
approval to existing EPA policy for reaching Memoranda of
Agreement (“MOA”) with states on voluntary cleanup
programs. /d. In 1997 guidance on drafting MOA with
states, EPA clearly indicated its belief that the availability of
contribution under CERCLA was an important component of
voluntary cleanup programs. See Notice of Availability of
Final Draft Guidance for Developing Superfund Memoranda
of Agreement (MOA) Language Concerning State Voluntary
Cleanup Programs, 62 Fed. Reg. 47,495 (Sept. 9, 1997).
That guidance reflected EPA’s position that a private party
taking action under a state voluntary cleanup program can
bring a claim against other liable parties as long as cleanup
complied with the National Contingency Plan (“NCP”): “The

8

MOA should make clear to any private party that recovery of
response costs under CERCLA will require that the cleanup
action meet the requirements outlined in the National
Contingency Plan.” Jd. at 47,499.

As this EPA guidance indicates, a broad right of
recovery from other liable parties is essential for
encouraging safe and effective private party cleanups. This
concept was not new in 1997. The necessity of a broad right
of recovery was emphasized when President Reagan
transmitted his administration’s proposed Superfund
amendment bill, a precursor to SARA, to Congress in 1985.
In the explanatory material accompanying the bill, it was
acknowledged that “[p]rivate parties may be more willing to
assume the financial responsibility for cleanup if they are
assured that they can seek contribution from other”
responsible parties. H.R. Doc. No. 99-32, at 73 (1985).

The encouragement of private party cleanups has
been one of the great successes of the Superfund program.
When reporting on the status of Superfund in 1998, then
Acting Assistant Administrator Timothy Fields, Jr. (one of
the am’ci) stated that “responsible parties are performing or
funding approximately 75% of Superfund long-term
cleanups, saving taxpayers more than $12 billion to date.”
Hearing Before the Subcomm. on Finance and Hazardous
Materials, (Feb. 4, 1998) (statement of Timothy Fields, Jr.),
available at http://www.epa.gov/superfund/action/congress/
test0204.htm. Similarly, then Assistant Administrator
Steven A. Herman (another of the amici) emphasized that
“responsible parties play a vital, and in our view,
irreplaceable role in cleaning up the nation’s Superfund
sites.” Hearings Before the Subcomm. on Commerce, Trade
and Hazardous Materials of the S$. Comm. on Commerce
(July 18, 1995) (statement of Steven A. Herman).

9

B. Affirming the Court of Appeals Decision
will Get More Sites Cleaned Up, and
Cleaned Up Faster

There are many reasons that a private party would
undertake a voluntary cleanup of a contaminated site: the
party knows it is liable for some part of the contamination
and desires to promptly reduce risks to human health or the
environment; the party desires to conduct the cleanup before
the situation is exacerbated by contaminant migration or the
passage of time; the party desires to avoid liabilities to third
parties who may be affected by migrating contamination; or
the party wants to take advantage of incentives available for
participation in a State voluntary cleanup program. All of
these reasons support CERCLA’s ultimate goal of achieving
prompt cleanup. Yet in all of these situations, the party
undertaking cleanup would, in Petitioner’s view, have no
ability to recover its costs from other liable parties under
CERCLA.

—

The inevitable result of adopting Petitioner’s position
would be that fewer parties would undertake voluntary
cleanups. The party considering such a cleanup may have
been only a small contributor to the problems at the site, or
may have had only technical liability as the present site
owner without having contributed to the contamination at
all.’ Yet despite the fact that there may be other clearly
liable and viable parties from whom the cleanup costs could
be sought, under Petitioner’s view the party actually doing
the cleanup has no ability to sue those other parties. The

* Present owners of contaminated sites are often liable for those sites
even if their actions did not contribute to the contamination in any way.
While there are defenses to liability available for some owners of
contaminated property, those defenses are not always viable, even for
owners who have done nothing to contribute to the contamination.

10

entire cost of the cleanup will fall on the party who
voluntarily remediates the site, and the other parties can
escape responsibility altogether. In such a situation,
whatever incentives there may be for a private party to
undertake cleanup will have to be weighed against the
disincentive of losing any ability to get other liable parties to
share in the cleanup costs. And in that balance, the big loser
is likely to be prompt cleanups. In a world where “no good
deed goes unpunished,” there will be fewer good deeds,
which translates here to fewer voluntary cleanups. If
Petitioner prevails, the net effect will be that there will be
more contaminated sites in the United States than if
Respondent prevails.

Such a result would also have a devastating effect on
the formal voluntary cleanup programs that many states have
adopted with encouragement from EPA. EPA has long
made it clear that parties participating in such programs
should be able to seek recovery of costs from other liable
parties under CERCLA. See 55 Fed. Reg. 8666, 8792-93
(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.”). If it tums out that EPA was wrong in
holding out the hope of cost recovery for those who do
voluntary cleanups, the cleanup programs will be sorely
damaged.

Not only is the potential availability of cost sharing
an important incentive for private parties to conduct
cleanups, it is also a powerful incentive for them to conduct
good and thorough cleanups. CERCLA provides that a
private party can only recover response costs that are
“consistent with the national contingency plan.” 42 U.S.C. §
9607(a)(4)(B); see also Morrison Enter. v. McShares, Inc.,

11

302 F.3d 1127, 1135-36 (10th Cir. 2002). The NCP is part
of CERCLA's implementing regulations, and it contains
detailed requirements for how cleanups are to be conducted.
See 40 C.F.R. part 300. A party that knows it will have to
demonstrate compliance with the NCP to recover its costs
from other liable parties has a strong incentive to conform to
the NCP, which helps ensure that the cleanup is fully
protective of human health and the environment. A party
that knows it cannot recover its costs under CERCLA will
not have the same incentive to comply with the NCP.

In 1988, EPA recognized this incentive and proposed
revisions to the NCP that were intended to make it easier for
a private party undertaking cleanup to know how to comply
with the NCP. EPA stated “that providing a list of
requirements to be complied with in order to be consistent
with the NCP will enhance the probability of a successful
cost recovery action, thus providing an incentive to other
persons to undertake response actions.” 53 Fed. Reg.
51,394, 51,462 (Dec. 21, 1988). In 1990, EPA amended the
NCP, adding a new Subpart H to describe how private
parties seeking to undertake cleanups should document their
costs so that they could recover them from other liable
parties. EPA stated 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.” 55
Fed. Reg. 8666, 8792-93 (Mar. 8, 1990) .*

* The provisions added by EPA to the NCP make abundantly clear that
in EPA’s view, Section 107(a)(4)(B) can be utilized by persons who
themselves have CERCLA liability. This can be seen in two ways.
First, 40 C.F.R. § 300.700(c) provides:

12

C. The Solicitor General’s Brief is
Inconsistent With EPA’s Policies and
Judgment

The United States’ brief disparages the importance of
voluntary cleanups not done pursuant to settlements with the

FN 4 continued from previous page

(1) Responsible parties shall be liable for all response costs incurred by
the United States government or a state or an Indian tribe not inconsistent
with the NCP.

2) Responsible parties shall be liable for necessary costs of response
actions to releases of hazardous substances incurred by any other person
consistent with the NCP.

Petitioner argues that the phrase “any other person” in Section
107(a)(4)(B) means any person not listed as liable in that section. But
the phrase “any other person” in Section 300.700(c)(2) must mean any
person other than the United States, a state or a tribe, because the
CERCLA liable parties are not enumerated in the regulation (as they are
in the statute). Even more compelling is that Section 300.700(c)(3)
provides that:

For the purpose of cost recovery under section 107(a)(4)(B) of CERCLA:

(ii) Any response action carried out in compliance with the terms of an
order issued by EPA pursuant to section 106 of CERCLA, or a consent
decree entered into pursuant to section 122 of CERCLA, will be
considered “consistent with the NCP.”

Clearly, a party that receives a Section 106 Order or enters into a consent
decree with EPA would be presumed to be liable under Section 107. But
the NCP makes clear that such parties can still sue under Section
107(a)(4)(B).

13

government. It asserts that “there is little evidence that, in
enacting CERCLA and SARA, Congress intended to
promote unsupervised cleanups at the expense of
government-supervised cleanups pursuant to settlement.”
U.S. Brief at 39. The United States’ brief further asserts that
all a party seeking to do a voluntary cleanup and preserve its
right to cost sharing from other parties needs to do is enter
into a settlement with EPA. It argues: “Moreover, to the
extent that a property owner . . . wishes to recover some of
its costs from other PRPs, the property owner need only
enter into a settlement with the federal or state government.”
Id. at 43.

These statements are at odds with the practical
realities of how CERCLA is administered. Certainly
settlements with PRPs are important tools, and preferable to
contentious litigation. That is beyond dispute. But the
process of negotiating and administering settlements is a
complex and costly one. Each settlement that EPA enters
into requires assembling and analyzing available data and
other information, and determining the nature of the remedial
work that should be implemented. And once it enters into
such a settlement, EPA has an obligation to make sure that
the settlement terms are complied with. All of this requires
resources, and, were settlements the only gateway for parties
wishing to undertake cleanups to be able to obtain cost
recovery from other parties, far more resources than EPA
and the Superfund program have. For example,-parties
considering acquiring contaminated properties have often
sought to enter into settlements with EPA, called Prospective
Purchaser Agreements. But EPA’s guidance for such
agreements has limited their availability to cases where “an
EPA action at the facility has been taken, is ongoing or Is
anticipated to be undertaken by the Agency.” EPA,
Guidance on Settlements with Prospective Purchasers of
Contaminated Property (May 24, 1995), available at

14

http://www.epa.gov/swerosps/bf/html-doc/purchase.htm.
This requirement was intended to preserve EPA’s “limited
resources.” -

And disparaging the value of voluntary cleanups
undertaken without a settlement with the government is not
justified. As discussed above, the potential availability of a
cost recovery remedy and the corresponding requirement to
comply with the National Contingency Plan will incentivize
the quality and promptness of such cleanups. In other words,
the experience and judgment of EPA has been that it is
worthwhile and environmentally beneficial to encourage
voluntary cleanups done without settlements, and that
requiring settlements as a prerequisite to cost recovery in all
cases would be a waste of scarce governmental resources. It
is unfortunate that the Solicitor General would take a
position, in a case in which the United States is a party
because it is a PRP, that is at odds with EPA’s often repeated
judgment on these issues.”

D. Petitioner’s Position Would Discourage
Compliance with Administrative
Cleanup Orders

Section 106 of CERCLA allows EPA to issue orders
to liable parties to undertake cleanup. This is a powerful
tool, and one that EPA uses frequently. EPA guidance
encourages the use of such orders so that liable parties and
not EPA will undertake cleanup. EPA guidance also
encourages the issuance of such orders to a subset of all the
liable parties at a site, based on an assertion of joint and

* We note in this regard that the name of EPA’s General Counsel does
not appear on the Solicitor General's Brief here as it did, for example, on
the Solicitor General’s brief in Environmental Defense v. Duke Energy,
No. 05-848 (U.S. Apr. 2, 2007).

15

several liability, so that enforcement of the order by EPA
will be manageable. See EPA, Documentation of Reason(s)
for Not Issuing CERCLA § 106 UAOs to All Identified
PRPs (Aug. 2, 1996), available at http://www.epa.gov/
compliance/resources/policies/cleanup/superfund/reason-
cer106-rpt.pdf. What happens, then, if there are 60 liable
parties at a site, EPA issues a cleanup order to 30 of those,
and only 10 of those agree to comply with the order and in
fact undertake the entire cleanup? Can those 10 sue the 20
non-compliers and the 30 non-recipients to require them to
share in the costs?

Under the Court’s decision in Cooper Industries, it is
unlikely that the administrative order would be considered a
civil action to give rise to a contribution claim under Section
113(f). Thus, the order recipients’ ability to recover from the
non-compliers or non-recipients will turn on whether they
have a claim under Section 107(a)(4)(B). EPA’s regulations
and guidance have assumed that the compliers would be able
to seek cost sharing from other liable parties. But if that is
incorrect, and the Section 107 remedy is not available, there
will be an incentive to order recipients to not comply with
the order until they are sued. Such a party would run the nisk
of sanctions for its failure to comply, but that threat may be
outweighed by the fear of losing any ability to pursue other
liable parties. Again, the position advocated by the Solicitor
General here would punish PRPs who do the nght thing
(comply with an order) and reward those who do not (and
disobey the order).

Il. PETITIONER’S POSITION WOULD ALLOW
MANY FEDERAL PRPS TO ESCAPE
LIABILITY

Another important objective of CERCLA is to ensure
that federal government PRPs are treated the same as private

16

PRPs, and are responsible for cleaning up the contamination
they created. This concept is explicitly set forth in the
statute itself. Section 120(a) provides:

Each department, agency, and instrumentality of the
United States (including the executive, legislative,
and judicial branches of government) shall be subject
to, and comply with, this chapter in the same manner
and to the same extent, both procedurally and
substantively, as any nongovernmental entity,
including liability under section 9607 of this title.

42 U.S.C. § 9620(a)(1).

EPA officials have often emphasized the importance
of applying CERCLA consistently to federal PRPs. For
example, Administrator Browner emphasized _ that
“Superfund is . . . dedicated to cleaning up our nation’s
hazardous waste sites, including those caused by the
Federal government, and protecting public health and the
environment for citizens no matter where they live in our
country.” Hearings Before the H. Subcomm. on Finance and
Hazardous Materials (May 12, 1999) (statement of Carol
Browner) (emphasis added), available at
http://www.epa.gov/superfund/action/congress/05-|2-

99 htm. Similarly, in 2001 Administrator Whitman
expressed EPA’s continued commitment “to a level playing
ficld between Federal agencies and departments and the
private sector. Americans rightfully expect their government
to abide by the same environmental laws and standards as
private business.” Letter from Christine Todd Whitman,
EPA, to Sen. Jeffords, Chairman S. Comm on Env’t and Pub.
Works (Oct. 4, 2001), available at http://www.epa.gov/
compliance/resources/policies/civil/federal/letterwhitman.pdf

17

But this goal of consistent treatment has been
difficult to obtain, because EPA has not been able to sue
other parts of the Executive Branch in court and has rarely
been able to even issue administrative orders to federal
PRPs. Thus, the ability to bring federal PRPs into the
process is often dependent on the ability of other PRPs to sue
federal PRPs. In light of Cooper Industries, private PRPs
have seized upon Section 107(a)(4)(B) as a possible method
for forcing federal PRPs into the process. If that method is
also foreclosed, the ability to hold federal agency PRPs
accountable will be severely diminished, and such PRPs may
become a special class with a new de facto sovereign
immunity of the type Congress had explicitly precluded in
Section 120.°

Iti. PETITIONER’S POSITION WOULD RESULT
IN INCREASED LITIGATION AND
TRANSACTION COSTS

One of the most prevalent criticisms of the Superfund
program over the years has been that it is perceived to be
“laden with transaction costs, particularly attorneys fees.”
Hearings Before the Subcomm. on Transp. and Hazardous
Materials of the H. Comm. on Energy and Commerce (Feb.
10, 1994) (statement of Elliott P. Laws, Ass’t
Administrator). Mr. Laws (one of the amici) noted that “any
change that increases the transaction costs resulting from

* In making this point, we in no way intenc to disparage the great efforts
that federal agencies have made to clean up properties they have owned
and operated or otherwise are responsible for. Amici worked closely and
cooperatively while at EPA with many federal agencies to address their
CERCLA cleanup obligations. Our point is that were the Court to adopt
the position urged by the Solicitor General. it would inject both an
unfairness and the perception of unfairness in the respective treatment of
federal and private PRPs, and that would adversely effect the overall
CERCLA program.

18

public and private litigation is equally unacceptable.”
Similarly, then Assistant Administrator Steven Herman
noted during testimony before Congress the importance to
EPA of “ensuring that [PRP] dollars are spent on the actual
cleanup costs and not extensive legal costs.” Hearings
Before the Subcomm. on Water Resources and Environment
of the H. Comm. on Transp. (April 10, 1997) (statement of
Steven Herman, Ass’t Administrator), available at
http://www.epa.gov/superfund/action/congress/clrtest.htm.

While some measure of litigation is unavoidable in a
program such as that created by CERCLA, which imposes a
broad and substantial liability scheme, EPA leaders have
long and consistently sought to adopt policies that reduce the
amount of litigation required to implement the Superfund
program, and with the reduction in litigation, the amount of
money being spent on things other than site cleanup. The
position advocated by the United States here would run
directly contrary to this important objective, in a number of
ways.

First, a party contemplating a voluntary cleanup will
be incentivized to wait until it has been sued by the
government before undertaking that cleanup, so it will be
able to seek a cost sharing from other liable parties under
Section 113(f). In contrast, if the Court affirms a broad right
of recovery under Section 107(a)(4)(B), a right that extends
to parties themselves liable, anyone can undertake a
voluntary cleanup and still seek cost sharing from other
parties.

Second, a party that receives a Section 106 cleanup
order would, if the United States prevails here, have an
incentive to delay compliance with that order until it is sued,
sO as to ensure a cost sharing remedy. But a broad Section

19

107(a)(4)(B) nght would encourage prompt compliance with
such orders without the need for litigation.

Third, were the Court to adopt the United States’
position here, it would result in still more litigation over
which types of agreements with the government qualify the
settler as a “person who has resolved its liability to the
United States or a State for some or all of the costs of such
action in an administratively or judicially approved
settlement” and therefore entitled to contribution under
Section 113(f)(3)(B). Following Cooper Industries, there
has already been much litigation over this issue, and that
litigation will continue if Petitioner prevails here. But if
Respondent prevails, and a broad and clear right of recovery
under Section 107(a)(4)(B) is established, the Section
1 13(f)(3)(B) issue will largely be moot, and there will not be
the need for case by case adjudications over whether a
settlement falls within the scope of Section 113(f)(3)(B).

IV. PROVIDING FOR'A BROAD RIGHT OF
RECOVERY UNDER SECTION 107(A)(4)(B)
WOULD CONTRIBUTE TO THE OVERALL
FAIRNESS OF THE SUPERFUND PROGRAM

Recognizing that the strict’ liability scheme
established by CERCLA can impose broad liability on
persons who did nothing that was wrong at the time they did
it, and that application of principles of joint and several
liability has the potential to impose disproportionate liability
on certain PRPs, the leaders of the Superfund program at
EPA have long and consistently sought to maximize the
fairness of the program consistent with the goal of prompt
site cleanups.

In Congressional testimony, Assistant Attorney
General Habicht elaborated on the centrality of contribution

20

rights to CERCLA’s fairness, stating very simply: “(t]he
fairness of a joint and several liability scheme depends upon
the clear availability of contribution.” Oversight Hearings
Before the Subcomm. on Administrative Law and
Governmental Relations of the H. Comm. on the Judiciary,
99th Cong. 51 (1985).

° Similarly, the cases interpreting CERCLA have long
recognized the importance of contribution to the fairness of a
joint and several liability scheme. For example, in Colorado
v. ASARCO, Inc., 608 F. Supp. 1484 (D. Colo. 1985), a case
that preceded the 1986 Amendments to CERCLA that added
Section 113(f), the district court found that there was a nght
to contribution under CERCLA and such a right was
essential to the fairness of the liability scheme created. The
court cited Dean Prosser’s statement that “contribution is an
integral component of joint and several liability.” /d. at 1490
(quoting Prosser, Law of Torts § 50 (4th ed. 1982)). The
court in ASARCO also cited this Court’s recognition of the
fairness of allowing contribution among parties who have
joint and several liability. /d. (citing Northwest Airlines, Inc.
v. Transport Workers Union of Am., AFL-CIO, 451 U.S. 77,
86-87 (1981)).

Insuring that Superfund is implemented in fair
manner has, as discussed above, remained a priority of
EPA’s leadership in implementing the statute. For example,
in March 1998 Congressional testimony Administrator
Browner emphasized how “EPA has addressed concerns
about the fairness of Superfund.” Hearings Before the H.
Subcomm. on Finance and Hazardous Materials (Mar. 5,
1998) (statement of Carol Browner), available at
http://www.epa.gov/ocir/hearings/testimony/105_1997_ 1998
/030598.htm.

21

Confirming a broad right of private party cost
recovery under Section 107(a)(4)(B) will enhance the overall
fairness of the Superfund program. It is fair that parties who
perform cleanups without the need for litigation, the type of
conduct that should be rewarded and not punished, have the
ability to obtain cost sharing from other liable parties who
refused or otherwise did not participate in the cleanup. And
it is fair that those parties who choose to comply with a
Section 106 Order issued by EPA have the ability to obtain
cost sharing from those parties who refuse to comply with
such orders or those parties who are not named in the order
by EPA. Conversely, telling parties who receive Section
106 orders that they must comply, but may not pursue those
who do not, would be manifestly unfair.

We do not mean to suggest that the courts can or
should rewrite clear statutory language to achieve the
programmatic and policy objectives we have discussed. But
where the statutory language is best read, as it is here, as
providing for a right that achieves those objectives, the
courts should hesitate to achieve a result that is at odds with
both the statutory language and the goals that the statute was
enacted to achieve. See, e.g., Comm'r v. Engle, 464 U.S.
206, 217 (1984) (“Our duty then is ‘to find that interpretation
which can most fairly be said to be imbedded in the statute,
in the sense of being most harmonious with its scheme and
with the general purposes that Congress manifested.’’)
(citation omitted); Griffin v. Oceanic Contractors, Inc., 458
U.S. 564, 575 (1982) (“It is true that interpretations of a
statute which would produce absurd results are to be avoided
if alternative interpretations consistent with the legislative
purpose are available.”); Dickerson v. New Banner Institute,
Inc., 460 U.S. 103, 118 (1983) (“As in all cases of statutory
construction, our task is to interpret the words of the statute
in light of the purposes Congress sought to serve.”’) (citation
and quotation marks omitted). z

22
CONCLUSION

For the reasons stated above, and by the other amici
supporting Respondent, the judgment of the court of appeals
should be affirmed.

Respectfully submitted,

Joel M. Gross

Counsel of Record
Joseph S. Kakesh*
ARNOLD & PORTER LLP
555 12" Street N.W.
Washington, DC 20004
(202) 942-5705

Counsel for Amici Curiae

April 5, 2007

*Joseph S. Kakesh is admitted only in Maryland. “He is
currently under the supervision of principals of the firm who
are members in good standing of the D.C. Bar, pending
approval of application for admission to the D.C. Bar.

APPENDIX

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A-1

APPENDIX

Description of Amici Curiae

Carol M. Browner was appointed by President Clinton to
be the Administrator of the United States Environmental
Protection Agency and was confirmed by the United
States Senate in January, 1993. She served in the position
for eight years, longer than any other EPA Administrator.
Prior to her appointment to EPA, Ms. Browner served as
Secretary of the Environment for the State of Florida.

Jonathan Z. Cannon served as the Acting General Counsel
of the United States Environmental Protection Agency
from 1995 to 1998 and as the Assistant Administrator for
Administration and Resource Management for the Agency
from 1993 to 1995. He was appointed to the latter
position by President Clinton and confirmed by the United
States Senate. Mr. Cannon also served as the Acting
Assistant Administrator of the Office of Solid Waste and
Emergency Response from March to November 1989 and
as the Acting Deputy Administrator of EPA from March
to May 1993.

Don R. Clay served as the Assistant Administrator for the
Office of Solid Waste and Emergency Response of the
United States Environmental Protection Agency from
1989 to 1993. Mr. Clay was appointed to that position by
President George H.W. Bush and confirmed by the
United States Senate. Prior to that, Mr. Clay served as
Deputy Assistant Administrator of the Office of Air and
Radiation from 1986 to 1989, as Acting Assistant
Administrator for Pesticides and Toxic Substances from

A-2

1985-86, and Director of the Office of Toxic Substances
from 1981 to 1985.

Timothy Fields, Jr. served as the Assistant Administrator
for the Office of Solid Waste and Emergency Response of
the United States Environmental Protection Agency from
~ 1999 to 2001. Mr. Fields was appointed to that position
by President Clinton and confirmed by the United States
Senate. Prior to that, Mr. Fields served as the Acting
Assistant Administrator for the Office of Solid Waste and
Emergency Response from 1997 to 1999, and the
Principal Deputy Assistant Administrator for the Office of
Solid Waste and Emergency Response from 1994 to 1997.
During his thirty year career at EPA, Mr. Fields also
served as Director of the Superfund Revitalization Office;
as Deputy Director of the Office of Emergency and
Remedial Response; as Director of the Emergency
Response Division; and as and Deputy Director of the
Hazardous Site Control Division.

Steven A. Herman served as the Assistant Administrator
for Enforcement and Compliance Assurance of the United
States Environmental Protection Agency from 1993 to
2001. Mr. Herman was appointed to that position by
President Clinton and confirmed by the United States
Senate.

Marianne Lamont Horinko was named Acting Administrator
of the United States Environmental Protection Agency by
President George W. Bush on July 10, 2003, and served in
this position from July 14, 2003 until November 5, 2003.
She also served as Assistant Administrator for the Office of
Solid Waste and Emergency Response from October 2001 to
June 2004 (except for the time during which she was Acting ©

A-3

Administrator). Ms. Horinko was appointed to that position
by President George W. Bush and confirmed by the United
States Senate.

Elliott P. Laws served as the Assistant Administrator for the
Office of Solid Waste and Emergency Response of the
United States Environmental Protection Agency from 1993
to 1997. Mr. Laws was appointed to that position by
President Clinton and confirmed by the United States Senate.

Jean C. Nelson served as General Counsel of the United
States Environmental Protection Agency from 1993 to 1995.
Ms. Nelson was appointed to that position by President
Clinton and confirmed by the United States Senate.

Dr. J. Winston Porter served as the Assistant Administrator
for Solid Waste and Emergency Response of the United
States Environmental Protection Agency from 1985 to 1989.
Dr. Porter was appointed to that position by President
Reagan and confirmed by the United States Senate.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0501%3A19. Public record. Not legal advice.