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

b

,

PERL” om

656%

l 4

No. 06-562

IN THE

Supreme Court of the United States

UNITED STATES OF AMERICA.

Petitioner.

V.

ATLANTIC RESEARCH CORPORATION,

Respondent.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

BRIEF OF

LOCKHEED MARTIN CORPORATION

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

JANES RL BUCKLES Michi AJ ESTRADA

LOcKHEED MARTIN Corp, Counsel of Record

6X01 Rockledge Drive RAYMOND B. LUDWISZEWSKI

Bethesda. MID 20817 MICHAEL K. MURPHY

(301) 897-6954 AMER COC. TAYRAN

GIBSON, DUNN & CRUTCHER LEP

L050 Connecticut Avenue. NW.

Washington. D.C. 20036

(202) YSS-8S00

Counsel for Amicus Curica

QUESTION PRESENTED

Whether a party that is a “covered person” under Section

107(a) of the Comprehensive Environmental Response,

Compensation, and Liability Act (“CERCLA”), 42 U.S.C.

§ 9607(a), but that does not satisfy the requirements for

bringing an action for contribution under Section 113(f) of

CERCLA, 42 U.S.C. § 9613(f), may bring an action against

another covered person for cost recovery under Section

107(a).

TABLE OF CONTENTS

Page

ee Ie FRR F I ei ccrcccerecsensceccccensensccctenseninemincete ill

INTEREST OF AAGCUS CURIAE ........00...0c0cccrsrscesessrsscecesoeees l

NTT snsensiiovissisepsenteanesimnsmninnannnedingumnicanaimanasinneintaais 2

Fg +

TT tehitienecicentnsecninnnanbaianininscsuntninieccsunusnitnnieatia 8

SECTION 107(A) OF CERCLA CREATES A CAUSE

OF ACTION FOR ANY PERSON WHO INCURS

RET eer ese nV CCR er Sane oe a 8

A. The Plain Language Of Section 107(a)

Authorizes Cost-Recovery Actions By

II sss cnsianiceinissentancidaliecbbldinbininnstiinnanentiiieis 8

B. The Government’s Reading Of Section

107(a) Is Fundamentally Flawed.................cccceeee Ll

C. Allowing Covered Persons To Recover

Response Costs Under Section 107(a) Is

Consistent With The Overall Structure And

Legislative Objectives Of CERCLA...............:0008 17

D. The Decision Below Creates A Loophole

That Enables The United States To Escape

ee SI ctinicisicciiintatnatiiniianieepanneniiisaniniinn 28

EIS cccininiccinnnisiiensensinndcammnesinerentmanesainninmniidintine 30

ill

TABLE OF AUTHORITIES

Page(s)

CASES

Akzo Coatings, Inc. v. Aigner Corp.,

ee Ce Ps Pe ccencececesterisincsniteecttntnenceniainnnin 26

Busic v. United States, .

aS Sra cicsiicecsineinbisssiestinenibsinnsucenteaietanionsadinnsiende 22

Cannon vy. Univ. of Chicago,

i RE ne eee ene ROT 21

Carson Harbor Vill. v. County of L.A..,

Te Fe Be Ge, Bi rcccectcnentsctcnoncveescovesscesstete 24

Centerior Service Co. v. Acme Scrap Iron &

Metal Corp., 153 F.3d 344 (6th Cir. 1998) 22.00.0000... 29, 30

Church of Scientology v. IRS, 484 U.S. 9 (1987) .......c0c0e. 17

City of New York v. Exxon Corp.,

633 F. Supp. 609 (S.D.N.Y. 1986)............ccccceceeseeeeeeees 20

City of Philadelphia v. Stepan Chem. Co.,

544 F. Supp. 1135 (E.D. Pa. 1982)..................ccccssesseeees 20

Consol. Edison Co. of N.Y., Inc. v. UGI Utils.,

Inc., 423 F.3d 90 (2d Cir. 2005), pet. for

cert. pending, No. 05-1323 (Apr. 14, 2006)..........0.000000. 3

Cook County v. United States ex rel. Chandler,

ee eT EEE haieihinicnlinnibiniasaisednncdnictsisneniniidiiidaindes 21

Cooper Indus., Inc. v. Aviall Servs., Inc.,

543 U.S. 157 (2004)... 1, 3,8, 11, 12, 18, 19, 20

Gutierrez v. Ada,

Sr a ished 14, 15

Jama v. Immigration & Customs Enforcement,

UP See PD ieiccicanintunsicninitentiuiansesisisetainivins 9, 13,17

iV

Key Tronic Corp. v. United States,

ee ee EE atelicitesinsctesncninindccvoinnnatecestinnecemeneiens 10

Lockheed Martin Corp. v. United States,

No. 06-01438 (D.D.C. filed Aug. 15, 2006) .............:.0 2

New York v. Shore Realty Corp.,

Fate ae PEE GE, CIID veces cctesisnsoncsenceneccsnccsnnonienes 16

New York v. Shore Realty Corp.,

648 F. Supp. 255 (E.D.N.Y. 1986).........ccsesseseeseeseeesenes 28

Pennsylvania v. Union Gas Co.,

SE ee Oe criinsieciscneninsistetnciniianinnssnnccecnnnnentens 6, 10

Pinole Point Props., Inc. v. Bethlehem Steel

Corp., 596 F. Supp. 283 (N.D. Cal. 1984) ..0.....ceeceeeeee 20

Porto Rico Ry., Light & Power Co. v. Mor,

Be as ee CI ctotsninciiinsessindecinidncsatecesscsncnsipmmnenntic 12

Sand Springs Home v. Interplastic Corp.,

670 F. Supp. 913 (N.D. Okla. 1987) 0.0... eeeeeceeseeeeees 20

Seminole Tribe v. Florida, 5\7 U.S. 44 (1996)............00. 6, 10

Tex. Indus., Inc. v. Radcliff Materials, Inc.,

gt 8 _| SERRE enam ec e ne nenreenre 20

United States v. Alvarez-Sanchez,

I I, cnc slccipilidaathananidndesineisninienniindie 8

United States v. Bestfoods,

| EF SC Samy

United States v. Cooper Corp.,

I nei lininilinssiat 16

United States v. Fausto,

a CITI crsscnoeniiistieceiiahiniienisilbncnadiscnnsibatalivinudinion 21

United States v. Gonzales,

SEE, 0 IITITE sc.ccscsuslesniieiinateadusdaliaensisiielttinpsinihuliansocsoniandiiens )

Vv

United States v. New Castle County,

642 F. Supp. 1258 (D. Del. 1986) oo... eee 19, 21

United States v. Ron Pair Enters., Inc.,

GF We Eee CED innteitnstintitintinsantiteiimeie 8

United States v. Standard Brewery,

Pe ie I CT ccvshiicntnictintatsistiatnciiticiadiiiebeel uaa naan 13

United States v. Wade,

FEF Be UM, SBD GED. BB. BBD acccccseccccccsscocccscensesnsess 27

United States v. Westinghouse Elec. Corp.,

1983 WL 160587 (S.D. Ind. June 29, 1983)... 21

Velsicol Chem. Corp. v. Reilly Tar & Chem.

Corp., 1984 U.S. Dist. LEXIS 24317

GR OUI, Femie, BE, Fe ccciscccecnsccstvviisniniistisestensmenenaiiien 20

Walls v. Waste Res. Corp.,

Fee Fe B88 ee Fe iiensistenstncnintiniinbaiaaane 20

Wehner vy. Syntax Agribusiness, Inc..,

LM Oe EF SE rn 28

Wickland Oil Terminals v. Asarco, Inc.,

Fee © a Se Ge GA. Cai cccrssnsstiniiaasdidenmmamiiainiais 19

Will v. Mich. Dep't of State Police,

491 U.S. 58 (1989)............0000. igtoninitiieniiniiapelaneuniiilala 16

STATUTES

BS Re : , | EE SENN TT Ae TT 9, 14, 16

8 TRE .. B Fae isnicccscinciasenineiataniionadaiiimmaiiaabinieaiiiia aoe Oe

Se Ss Fh FD <cesnientnicniieccanepiaiidagiiiaaibaeiaimeanene 11

Fe A. Br iccnscnsninsninsecntedeseindiceiniigaeee ioe

Se WA... © GES OD ncscsisssinecncnnnihiiaisitinininsesteiuansiamanen 8

42 U.S.C. § 9607(a)(4(A)........0ccccceeeeee nichnincieiniannedinnits 3,5,9

vi

Te TT 11

asin tear centenegennntnemmnemnenemnenann 11

TT eee 27

a 25

icine rnernspenemeenssennauencensnnnmmnatnenen 25

nda ierdenctsapnimemennnannsennienneanenetns 25

eT 8, 29

REGULATIONS

sir cereeeiettenansennnemmnnenanananeneeseananecs 10

sees nresinsnmnnnecmmmnnemnsoennnenaenetenenes 24

LEGISLATIVE MATERIALS

126 CONG. REC. 26338 (Sept. 19, 1980) 00... cccceeeceeeeeees 19.

126 CONG. REC. 30932 (Nov. 24, 1980) ..ecsscseecse 10, 16, 17

126 CONG. REC. 30972 (Nov. 24, 1980).........cccccccceeeseeeeeeees 17

131 CONG. REC. 24728 (Sept. 24, 1985) 0.0... ceceeeeteeee 23

131 CONG. REC. 24730 (Sept. 24, 1985) .........cccecceeseeeeeeeees 23

H.R. Rep. No. 253, 99th Cong., Ist Sess. (1985)...

Salata ciesiemrastitinietininaridtindnecensnnanassnennesanee 21, 22, 23, 24

S. 1480, 96th Cong. (as reported Nov. 18, 1980)................. 15

S. REP. No. 848, 96th Cong., 2d Sess. (1980)... 19

OTHER AUTHORITIES

Gen. Accounting Office, Hazardous Waste,

Adequacy of EPA Attorney Resource Levels

(GAO/RCED-86-8 1 FS) (1986) ............:cccccceecseeeeseeeeeees 23

Vil

U.S. Dep’t of the Treasury, Financial Report of

the United States Government (2006) ..........cc.c00ccec0ee000. 28

Webster's Third New International Dictionary

SUT cessrinsiitinceennncicicnsicieiiitiipniniinaiaialaatiisaiidieiiciatauasaninis 9

BRIEF OF LOCKHEED MARTIN CORPORATION AS

AMICUS CURIAE IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE!

The question presented in this case is whether a party

that is a “covered person” under Section 107(a) of the Com-

prehensive Environmental Response, Compensation, and Li-

ability Act (“CERCLA”), 42 U.S.C. § 9607(a), but is not enti-

tled to bring a contribution action under Section 113(f) of

CERCLA, can recover a portion of its response costs from

other covered persons through a cost-recovery action under

Section 107(a). Amicus has a significant interest in the reso-

lution of this question because—consistent with one of

CERCLA’s principal objectives—it has voluntarily initiated

remediation activities at sites throughout the United States. If

this Court were to conclude that covered persons may not re-

cover costs under Section 107(a), amicus would be forced

unjustly and unjustifiably to bear costs that are in large part

attributable to other parties, including the United States gov-

ernment. For that reason, Lockheed Martin Corporation has

frequently participated as an amicus curiae in litigation con-

cerning the right of voluntary remediators to recover costs

from other responsible parties under CERCLA. See, e.g., Br.

of Lockheed Martin Corporation as Amicus Curiae in Support

of Respondent, Cooper Indus., Inc. v. Aviall Servs., Inc., 543

U.S. 157 (2004) (No. 02-1192).

Lockheed Martin is one of the world’s leading advanced

technology and aerospace companies. Approximately eighty-

! Pursuant to this Court’s Rule 37.3(a), letters of consent from all parties

to the filing of this brief have been submitted to the Clerk. Pursuant to this

Court’s Rule 37.6, amicus states that this brief was not authored in whole

or in part by counsel for any party, and that no person or entity other than

amicus or its counsel made a monetary contribution to the preparation or

submission of this brief.

2

five percent of Lockheed Martin’s business is with the United

States Department of Defense and various federal agencies.

In connection with this work, Lockheed Martin owns or oper-

ates a number of facilities that were formerly owned or oper-

ated by the federal government. A holding that eliminates a

voluntary remediator’s right to cost recovery under Section

107(a) could effectively bar Lockheed Martin from recover-

ing any portion of its voluntary cleanup costs at these sites

and insulate the federal government from its substantial

CERCLA liability. For example, Lockheed Martin has

brought suit against the United States under Section 107(a) to

recover tens of millions of dollars it expended to remedy the

release of hazardous substances from a military production

facility that the United States formerly operated in Hemp-

stead, New York. See Lockheed Martin Corp. v. United

States, No. 06-01438 (D.D.C. filed Aug. 15, 2006). The

United States has moved to dismiss the suit on the ground

that, as a covered person, Lockheed Martin is not permitted to

recover costs under Section 107(a).

If the decision below were reversed, Lockheed Martin

and other industry members would be compelled to postpone

cleanup activities until they are sued under CERCLA in order

to ensure that they could recover a portion of their response

costs from other responsible parties—a result that conflicts

with CERCLA’s goal of promoting the prompt, voluntary

remediation of hazardous waste sites.

STATEMENT

Section 1@7fa) of CERCLA authorizes “the United States

Government or a State or an Indian tribe,” or “any other per-

son,” to recover its hazardous waste cleanup costs from “cov-

ered persons” legally responsible for the contamination.2 42

2 Section 107(a) imposes liability for the payment of response costs on

four categories of “covered persons,” so denominated by the title of the

section. 42 U.S.C. § 9607(a). These categories of covered persons are

3

U.S.C. § 9607(a)(4)(A), (B). If, as the government argues,

covered persons are prohibited from recovering costs under

Section 107(a) and are also prohibited from seeking contribu-

tion under Section 113(f)(1) without first being sued or set-

tling their liability with the United States or a State, then

CERCLA—which Congress intended to be a comprehensive

statutory framework governing hazardous waste remedia-

tion—contains a vast loophole that significantly undermines

its remedial efficacy.

1. At its facility in Camden, Arkansas, respondent retro-

fitted rocket motors under contract with the United States

from 1981 to 1986. During the retrofitting process, -hazard-

ous substances were released into the environment, causing

soil and groundwater contamination at the site. J.A. 23-26.

Respondent voluntarily undertook cleanup operations to ad-

dress these releases, and then filed suit in the Western District

of Arkansas to recover a portion of its cleanup costs from the

United States. J.A. 29-32. Respondent initially sought re-

covery under both Sections 107(a) and 113(f)(1) of

CERCLA. J.A. 18-19. After this Court’s decision in Cooper

Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004),

which held that contribution actions under Section 113(f)(1)

may be brought only “during or following” a Section 106 or

Section 107(a) civil action, respondent dropped its Section

[Footnote continued from previous page]

commonly referred to as “potentially responsible parties” or “PRPs.” Al-

though courts have general'y used the terms “covered person” and “PRP”

interchangeably, “covered person” is more accurate because it is the term

that Congress used in the statute itself. See Consol. Edison Co. of N.Y.,

Inc. v. UGI Utils., Inc., 423 F.3d 90, 97 n.8 (2d Cir. 2005) (expressing

dissatisfaction with the term PRP because “any person is conceivably a

responsible party under CERCLA,” and because “the term may be read to

confer on a party that has not been held liable a legal status that it should

not hear”) (emphases in original), pet. for cert. pending, No. 05-1323

(Apr. 14, 2006).

4

113(f)(1) claim and proceeded solely under Section 107(a).

J.A. 34-37.

The government moved to dismiss on the ground that re-

spondent, as a covered person, could not assert a cause of ac-

tion under Section 107(a). J.A. 38-41. The district court

dismissed the suit, relying on then-controlling circuit prece-

dent to conclude that a covered person “cannot rely on Sec-

tion 107(a) to seek full cost recovery on a theory of joint and

several liability from another jointly liable party.” Pet. App.

25a.

2. The court of appeals unanimously reversed. The

court concluded that Cooper had upset the foundations of its

earlier precedent precluding covered persons from proceeding

under Section !07(a). The court explained that the plain lan-

guage of Section 107(a) clearly granted a right of recovery to

covered persons because the statutory phrase “‘any other per-

sen’ means any person other than the statutorily enumerated

‘United States Government or a State or an Indian tribe.””

Pet. App. 14a. Respondent, the court continued, “is such a

‘person.”” /d. Emphasizing the important role of voluntary

cleanups in CERCLA’s remedial framework, the court further

explained that it could “discern nothing in CERCLA’s words,

suggesting Congress intended to establish a comprehensive

contribution and cost recovery scheme encouraging private

cleanup of contaminated sites, while simultaneously except-

ing— indeed, penalizing—those who voluntarily assume such

duties.” Jd. at 17a.

SUMMARY OF ARGUMENT

This case will determine whether CERCLA will remain a

comprehensive remedial regime for facilitating the prompt,

voluntary cleanup of hazardous waste sites and the equitable

allocation of cleanup costs among responsible parties, or

whether it will effectively collapse under the weight of the

loophole that the government self-servingly urges this Court

to create. Specifically, the Court's decision will determine

5

whether private parties will continue to undertake the volun-

tary remediation of contaminated sites-—or will instead be

compelled by the absence of a cost-allocation mechanism to

postpone cleanup until the initiation of government enforce-

ment actions. The Court’s decision will similarly determine

whether hundreds of millions of dollars that have already

been expended on voluntary cleanups will be allocated

among all liable parties—or will instead be borne entirely by

those responsible corporate citizens that voluntarily initiated

the cleanups.

A. The plain language of Section 107(a) creates a cause

of action for covered persons to recover a portion of their re-

sponse costs from other liable parties. Section 107(a) pro-

vides that covered persons “shall be liable for” costs incurred

by “the United States Government or a State or an Indian

tribe” or “any other person.” 42 U.S.C. § 9607(a)(4)(A), (B).

The statutory language could not be clearer: The phrase “any

other person” in Subsection (a)(4)(B) permits any person

other than the government entities listed in Subsection

(a)(4)(A)—including covered persons that have “incurred”

“costs of response”—to recover their costs from any covered

person. Read naturally, the term “other” distinguishes be-

tween the government entities entitled to sue under Section

107(a)(4)(A)—who are authorized to recover any response

costs “not inconsistem with the national contingency plan”—

and private persons entitled to sue under Section

107(a)(4)(B)}—who are authorized to recover any response

~ costs “consistent with the national contingency plan.” Sec-

tion 107(a) therefore creates a cause of action for “any .. .

person” that has expended response costs, while establishing

different burdens of proof for government entities and private

parties.

This reading of the statutory text is confirmed by the rule

of the last antecedent, which provides that a limiting clause—

i.e., the “any other person” clause in Subsection (a)(4)(B)—

should be read as referring only to the phrase that it immedi-

6

ately follows—i.e., the list of government entities set forth in

Subsection (a)(4)(A)—as well as by this Court’s prior inter-

pretations of Section 107(a). See, e.g., Pennsylvania v. Union

Gas Co., 491 U.S. 1, 21-22 (1989), overruled on other

grounds by Seminole Tribe v. Florida, 5\7 U.S. 44 (1996).

B. The government's strained reading of Section 107(a)

defies the statute’s plain language and several well-

established rules of statutory construction. The government

contends that the phrase “any other person” refers to—and

excludes—covered persons. But the immediate antecedent

for that phrase is the list of government entities that have also

“incurred” costs—not covered persons generally. None of

the cases that the government cites provides support for dis-

regarding the immediate antecedent and instead reading

“other” to relate back to the list of covered persons set forth

earlier in the statute.

The legislative history to which the government points is

equally unavailing. As the government notes, an earlier ver-

sion of Subsection (a)(4)(B) reported out of committee pro-

vided a cause of action to the United States government,

States, and “any person” —a formulation that the government

concedes “unambiguously” and “unquestionably” encom-

passed covered persons. Pet. Br. 19, 23 (emphasis added).

The government is wrong, however, to contend that the addi-

tion of the term “other,” which was not the subject of any

congressional debate, radically changed the scope of the stat-

ute. The addition was obviously stylistic, and may best be

explained by the fact that the statute—contrary to ordinary

canons of construction—expressly provides that the United

States government and States may be considered “persons.”

This minor, unremarkable change cannot carry the heavy

weight the government places on it.

C. The government further contends that authorizing

covered persons to bring suit under Section 107(a) would im-

pair CERCLA’s carefully calibrated remedial regime and ef-

7

fectively render the contribution cause of action created in

Section 113(f)(1) superfluous. But the two sections fit to-

gether perfectly: Section 107(a) provides covered persons, as

well as all other persons, a cause of action to recover “costs

of response” that they themselves have “incurred” remediat-

ing a site; Section 113(f)(1) creates a derivative contribution

claim for persons sued under Section 107(a) to recover a por-

tion of the liability assessed against them.

CERCLA’s legislative history confirms that Sections

107(a) and 113(f)(1) provide distinct causes of action for dif-

ferently situated parties. Indeed, it was firmly established

when Congress enacted Section 113(f)(1) in 1986 that Sec-

tion 107(a) cost-recovery actions were available to covered

persons to recover “costs of response” they had “incurred”

during a voluntary remediation. There was, however, some

dispute concerning whether CERCLA, or federal common

law, authorized any actions for contribution. There is no in-

dication in the statutory text or legislative history that, in

amending CERCLA to add an express cause of action for

contribution—and thus dispelling the existing ambiguity in

favor of the additional remedy—Congress simultaneously

intended to eliminate the then well-established right of cov-

ered persons to bring suit under Section 107(a) to recover

their own response costs.

|

Under this framework, CERCLA’s limitations periods,

settlement protection scheme, and liability standards work in

harmony to create a comprehensive remedial statute. Indeed,

it is the government’s reading of Section 107(a) that would

undermine the effectiveness of CERCLA’s regulatory

framework by denying voluntary remediators a cost-recovery

mechanism.

D. The government’s position would also effectively

immunize the United States from its substantial share of

CERCLA liability at the many sites now being voluntarily

remediated throughout the country. If Section 107(a) were

8

unavailable to voluntary remediators, they would effectively

be unable to recover any of their cleanup costs from the gov-

ernment unless the government first initiated a CERCLA en-

forcement action against them. In addition to discouraging

private parties’ voluntary remediation efforts, such a result

would contravene CERCLA’s explicit directive that the fed-

eral government receive the same treatment as all other par-

ties responsible for the discharge of hazardous waste. See 42

U.S.C. § 9620(a).

ARGUMENT

SECTION 107(a) OF CERCLA CREATES A CAUSE OF

ACTION FOR ANY PERSON WHO INCURS RESPONSE COSTS.

As this Court recognized when construing Section 113(f)

in Cooper, the interpretation of CERCLA depends “first and

foremost” on the statute’s text. United States v. Alvarez-

Sanchez, 511 U.S. 350, 356 (1994); see also Cooper, 543

U.S. at 167. That principle is dispositive here because the

plain language of Section 107(a) authorizes any person who

has incurred response costs—including a covered person such

as respondent—to seek recovery of those costs from another

covered person. Because respondent’s suit falls squarely

within the scope of Section 107(a), this case should begin—

and end---with a straightforward application of the provi-

sion’s text. See United States v. Ron Pair Enters., Inc., 489

U.S. 235, 240 (1989).

A. The Plain Language Of Section 107(a)

Authorizes Cost-Recovery Actions By

Covered Persons.

Subparagraphs (1) through (4) of Section 107(a) describe

four categories of “covered persons.” 42 US.C.

§ 9607(a)(1)-(4). The statute then states that these “covered

persons” “shall be liable for”

(A) all costs of removal or remedial action incurred

by the United States Government or a State or an In-

9

dian tribe not inconsistent with the national contin-

gency plan;

(B) any other necessary costs of response incurred by

any other person consistent with the national contin-

gency plan;....

42 U.S.C. § 9607(a)(4)(A)-(B) (emphases added).

Subsections (a)(4)(A) and (a)(4)(B) use parallel struc-

tures to create a comprehensive liability framework. The

phrase “any other person” in Subsection (a)(4)(B) refers back

to the categories of persons—the United States government,

or a State, or an Indian tribe-—-expressly mentioned in Sub-

section (a)(4)(A) and creates a cause of action for any per-

son—including covered persons—not entitled to sue under

Subsection (a)(4)(A). See United States v. Gonzales, 520

U.S. 1, 5 (1997) (“Read naturally, the word ‘any’ has an ex-

pansive meaning, that is, ‘one or some indiscriminately of

whatever kind.’”) (quoting Webster’s Third New Interna-

tional Dictionary 97 (1976)).

This reading of Section 107(a) is confirmed by the rule

of the last antecedent, which provides that “a limiting clause

or phrase should ordinarily be read as modifying only the

noun or phrase that it immediately follows.” Jama v. Immi-

gration & Customs Enforcement, 543 U.S. 335, 343 (2005)

(internal quotation marks and alteration omitted; emphasis

added). In Section 107(a), the phrase “any other person” dis-

tinguishes those parties entitled to sue under Subsection

(a)(4)(B) from the immediately preceding list of government

entities authorized to sue under Subsection (a)(4)(A). Indeed,

the version of Section 107(a)(4)(B) initially reported out of a

Senate committee in 1980 authorized suits by the United

States, States of the Union, and “any person”—a formulation

that the government concedes reached covered persons. Pet.

Br. 19, 23. Because the United States and the States are ex-

pressly included within CERCLA’s definition of “person” (42

U.S.C. § 9601(21)), the term “other” was most likely added

40

to clarify the distinction between the statutorily defined per-

sons authorized to sue under Subsection (a)(4)(A)—the

United States government or the States-—and the persons au-

thorized to sue under Subsection (a)(4)(B). This stylistic-re-

vision did not substantively alter the scope of Subsection

(a)(4)(B). See 126 CONG. REC. 30932 (Nov. 24, 1980) (state-

ment of Sen. Randolph) (discussing amendments to the initial

version of CERCLA that “warrant[ed] close scrutiny,” and

making no mention of the addition of the word “other” to

Section 107(a)(4)(B)); see also infra 16.

Properly understood, Subsections (a)(4)(A) and (a)(4)(B)

create two different classes of plaintiffs. The government

entities that possess a cause of action under Subsection

(a)(4)(A) can recover any costs “not inconsistent with the na-

tional contingency plan”—a set of regulations promulgated

by the EPA to implement CERCLA (40 C.F.R. pt. 300)—

while “any other person” can bring suit under Subsection

(a)(4)(B) to recover costs “consistent with the national con-

tingency plan.” Thus, although covered persons are entitled

to sue under Subsection (a)(4)(B), they face a higher recovery

threshold than government entities bringing suit under Sub-

section (a)(4)(A) because they bear the burden of establishing

that the costs they expended were “consistent with” the na-

tional contingency plan.

Indeed, the Court has previously endorsed this plain

reading of Section 107(a). In Pennsyfvania v. Union Gas

Co., 491 U.S. 1 (1989), overruled on other grounds by Semi-

nole Tribe v. Florida, 517 U.S. 44 (1996), the Court ex-

plained that CERCLA “allow{s] private parties who voluntar-

ily cleaned up hazardous-waste sites to recover a proportion-

ate amount of the costs of cleanup from the other potentially

responsible parties.” /d. at 21-22 (emphasis added). Simi-

larly, in Key Tronic Corp. v. United States, 511 U.S. 809

(1994), the Court confirmed that Section 107(a) “authorizes

private parties to recover cleanup costs from other PRPs.” /d.

at 818 (emphasis added). Although Key Tronic’s discussion

11

of this issue was termed “dictum” in Cooper (543 U.S. at

170), the fact remains that no Justice in Key Tronic “ex-

pressed the slightest doubt that § 107 indeed did enable a PRP

to sue other covered persons for reimbursement.” Jd. at 172

(Ginsburg, J., dissenting).

Moreover, a contrary reading of Section 107(a) would

significantly unsettle CERCLA’s statutory framework. If

covered persons were not entitled to seek recovery under Sec-

tion 107(a), then even truly innocent landowners, such as

bona fide purchasers, who voluntarily remediated hazardous

waste on their property would be left without a means of re-

covering their costs from those parties responsible for the pol-

lution. In order to avoid this result, the government attempts

to draw a distinction between “innocent” covered persons,

who the government contends are entitled to bring suit under

Section 107(a), and “non-innocent” covered persons, who the

government excludes from the reach of Section 107(a). See

Pet. Br. 15-16. But this distinction is found nowhere in the

statutory language. CERCLA does not exempt “innocent”

parties from the definition of covered persons in Section

107(a)(1)-(4), but rather recognizes certain narrow defenses

from liability. See 42 U.S.C. §§ 9601(35), 9607(b)(3) (inno-

cent landowner defense); id. §§ 9601(40), 9607(r)(1) (bona

fide prospective purchasers). These defenses do not remove

innocent parties from the broadly worded definitions of cov-

ered persons in Section 107(a)(1)-(4).

B. The Government’s Reading Of Section

107(a) Ils Fundamentally Flawed.

Subsections (a)(4)(A) and (a)(4)(B) create two parallel

classes of plaintiffs who have “incurred” response costs: the

government entities listed in Subsection (a)(4)(A) and “any

other person,” as provided in Subsection (a)(4)(B). Given

this parallelism, the most straightforward and natural reading

of the modifier “other” in the phrase “any other person” dis-

tinguishes between the government entities mentioned di-

12

rectly above in Section 107(a)(4)(A) and those persons—any

persons other than those explicitly authorized to sue under

Section 107(a)(4)(A)}—entitled to sue under Section

107(a)(4)(B). The government, however, asserts that the

“other” modifier leapfrogs over the persons referenced in

Section 107(a)(4)(A) and the intervening verb phrase-—“shall

be liable for”—and refers back to the categories of covered

persons set forth in Section 107(a){1)-(4). Pet. Br. 15-16.

This convoluted statutory construction not only defies the

“clear meaning of the text” (Cooper, 543 U.S. at 167), but

also violates several interpretive canons —including the can-

ons on which the government purports to rely.

1. In Porto Rico Railway, Light & Power Co. v. Mor,

253 U.S. 345 (1920), the Court determined that the conclud-

ing statutory phrase “not domiciled in Porto Rico” should ap-

ply to a short integrated list of persons, including “citizens or

subjects of a foreign State or States, or citizens of a State,

Territory, or District of the United States.” /d. at 348. Unlike

the phrase at issue in Mor, which came at the end of “several

words” and was clearly applicable to the first as well as the

last (id.), the phrase “any other person” in Section

107(a)(4)(B) is separated from the covered persons set forth

in Section 107(a)(1)-(4) by a verb phrase (“shall be liable

for”) and by the government entities listed in Section

107(a)(4)(A). Indeed, Section 107(a) is structured in two dis-

tinct parts: The first lists those persons who are responsible

under the section, and the second sets forth to whom and for

what the responsible persons are liable. It is not a simple in-

tegrated list of related examples, and it would do violence to

the language to read “other” in Subsection (a)(4)(B) to leap-

frog back to the four categories of covered persons listed in

Section 107(a)(1)-(4).

Jama is no more helpful than Mor to the government's

position. In Jama, the Court rejected the argument that the

statutory phrase “another country whose government will ac-

cept the alien” applied not only to the “country” immediately

13

preceding the phrase, but also to countries described in sepa-

rate, prior subparagraphs. 543 U.S. at 340. Relying upon the

rule of the last antecedent, the Court explained that the peti-

tioner’s effort to “seize[] upon the word ‘another’ ... as a

means of importing the acceptance requirement into [other]

clauses . . . stretche[d] the modifier too far.” Jd. at 342.

The government is attempting a similar interpretive som-

ersault here by shifting the focus of the phrase “any other per-

son” past its most natural target--the government entities

mentioned in Subsection (a)(4)(A)}—back to the covered per-

sons mentioned in a more remote part of the statute. The

government’s attempt to manufacture a connection between

“other” and the list of covered persons “stretches the modifier

too far” by disregarding the persons listed in Section

107(a)(4)(A).

Moreover, although it is certainly true, as the government

asserts, that the terms “both,” “other,” and “another” are

“*just as likely to be words of differentiation as they are to be

words of connection” (Pet. Br. 15 (quoting Jama, 543 U.S. at

343 n.3)), that point does not support the government’s read-

ing of Section 107(a). The term “other” in Subsection

107(a)(4)(B) differentiates between the persons listed in Sub-

section (a)(4)(A)}—the United States government or a State or

an Indian tribe —and all “other” persons, including covered

persons, entitled to bring a cost-recovery action under Sub-

section (a)(4)(B). The term does not need to reach all the

way back to the list of covered persons to serve a differentiat-

ing function. See, e.g., United States v. Standard Brewery,

251 U.S. 210, 218 (1920) (“we think it clear that the framers

of the statute intentionally used the phrase ‘other intoxicat-

ing’ as relating to and defining the immediately preceding

designation of beer and wine”) (emphasis added).3

3 Congress’s addition of the word “other” to differentiate between the

parties entitled to sue under Subsections (a)(4)(A) and (a)(4)(B) was

14

2. The government also suggests that its reading of Sec-

tion 107(a) is compelled by the interpretive canon that urges

courts to construe statutes “in such fashion that every word

has some operative effect.” Pet. Br. 20 (internal quotation

marks omitted). The government asserts that the word

“other” in the phrase “any other person” becomes superfluous

if it does not differentiate covered persons from persons enti-

tled to sue under Subsection (a)(4)(B) because the phrase

“other necessary costs” already distinguishes parties author-

ized to sue under Subsections (a)(4)(A) and (a)(4)(B).

The phrase “other necessary costs,” standing alone,

would be an exceedingly odd—and unclear—means of ex-

cluding the government entities listed in Subsection (a)(4)(A)

from bringing suit under Subsection (a)(4)(B). It is far more

natural to read the phrase “any other person” as performing

that function, and to recognize that in referring to “other . . .

costs,” Congress most likely merely chose to reinforce the

distinction between “costs” that may be recovered under Sub-

section (a)(4)(A)—i.e., those “consistent with the national

contingency plan”— and those that may be sought under Sub-

section (a)(4)(B)—i.e., those “not inconsistent with the na-

tional contingency plan.”

Indeed, the interpretive canon invoked by the govern-

ment is typically used to avoid interpretations that would ren-

der other statutory sections wholly superfluous, not to prevent

Congress from using several different terms to reinforce a

statute’s meaning. In Gutierrez v. Ada, 528 U.S. 250 (2000),

the Court warned against overreliance on this canon of con-

struction and explained that “as one rule of construction

[Footnote continued from previous page]

necessary because the definition of “person” under 42 U.S.C. § 9601(21)

explicitly includes the United States and the States. The phrase “any

other person” clarifies that, although the United States and the States are

persons within the meaning of CERCLA, they must seek relief under

Subsection (a)(4)(A), rather than Subsection (a)(4)(B).

15

among many, . . . the rule against redundancy does not neces-

sarily have the strength to turn a tide of good cause to come

out the other way.” /d. at 258. The Court concluded that the

phrase “any election” in the statute before it had “some clari-

fying value,” and even though “[t|hat may not be very heavy

work for the phrase to perform, . . . a job is a job, and enough

to bar the rule against redundancy from disqualifying an oth-

erwise sensible reading.” /d.

Here, the phrase “any other person” most naturally dis-

tinguishes the persons entitled to sue under Subsection

(a)(4)(A) and Subsection (a)(4)(B). Even assuming arguendo

that—standing alone—the phrase “other necessary costs”

might conceivably be used to convey the same distinction, it

is not the most obvious candidate for doing so where, as here,

Congress used language that is far more apposite. Moreover,

it would be strange indeed if, as the government contends, the

first “other” in Subsection (a)(4)(B) referred back to the costs

referenced in Subsection (a)(4)(A), while the second “other”

referred not to the government entities set forth in Subsection

(a)(4)(A) but to the covered persons listed back in Section

107(a)(1)-(4). The government can muster no precedent or

interpretive principle to support such an unintuitive reading

of Section 107(a).

3. The government also relies heavily on the fact that the

language that became Section 107(a)(4)B) was modified

while the Senate debated the bill. It notes that the phrase in

question at one time made covered persons liable “for ‘all

costs of ... remedial action incurred by the United States

Government or a State, and ... any other costs incurred by

any person to remove a hazardous substance."” Pet. Br. 18-

19 (quoting S. 1480, 96th Cong. § 4(a) (as reported Nov. 18,

1980)). Although the government concedes that this lan-

guage “unambiguously” includes covered persons, it contends

that “the only plausible explanation” for the subsequent addi-

tion of the word “other” before “person” “was that Congress

intended to exclude PRPs from bringing suit.” /d. at 19.

: 16

Far from being “the only plausible explanation,” the gov-

ernment’s reading is implausible in the extreme. Indeed, it

seems plain that the word “other” was most likely added be-

fore “person” in order to avoid an obvious redundancy:

While traditional rules of construction stipulate that the

United States and States of the Union generally are not “per-

sons” (see United States v. Cooper Corp., 312 U.S. 600, 604

(1941); Will v. Mich. Dep't of State Police, 491 U.S. 58, 64

(1989)), CERCLA expressly reverses that rule and provides

that both sovereigns are “persons.” 42 U.S.C. § 9601(21).

The phrase “any person” would thus include both the United

States and the States, rendering wholly redundant the express

references to both in the preceding clause. A simple stylistic

change—placing “other” before “person” —-neatly solved that

problem without altering the intended, broad meaning.4

Significantly, those revisions to Section 107(a) that were

intended to have substantive effects were the subject of ex-

tensive congressional debate. For example, the legislative

history is replete with references to the deletion of the phrase

“joint and several liability” between the Jnly 11 and Novem-

ber 18 versions. See, e.g., 126 CONG. REC. 30932 (statement

of Sen. Randolph) (“we have deleted any reference to joint

and several liability, relying on common law principles to

determine when parties should be severally liable”); 126

CONG. REC. 30972 (Nov. 24, 1980) (statement of Sen.

Helms). By the government’s own admission, the statutory

language “unambiguously” permitted actions by covered per-

4 Indeed, when the version of Section 107(a) reported on July 11, 1980,

which does not include the “other person” formulation, is compared with

the November 18 version, which does, a host of revisions are evident,

many of which have no apparent substantive import at all. For example,

language specifying that covered persons are liable by virtue of a “release”

was repositioned from a separate line underneath Section 107(a)(4) and

integrated into Section 107(a)(4) itself. Courts have confirmed that this

revision had no substantive implications. See, e.g., New York v. Shore

Realty Corp., 759 F.2d 1032, 1043 n.16 (2d Cir. 1985).

17

sons before “other” was inserted before “person.” Yet there

is not a shred of evidence that a single legislator believed the

reach of the statute had been drastically curtailed—as now

urged by the government—by virtue of that change. In fact,

when Senator Randolph, CERCLA’s cosponsor in the Senate,

reviewed on the Senate floor a list of changes that “war-

rant{ed] close scrutiny” (126 CONG. REC. 30932), he made no

mention of the exclusion of covered persons from the ambit

of the cost-recovery cause of action. That deafening silence

persuasively belies the government’s inventive attempt to

pass off a minor stylistic change as a waters-parting event.

See Church of Scientology v. IRS, 484 U.S. 9, 17-18 (1987).

This Court has made clear that it is incompatible with the

realities of the legislative process to ascribe meaning to every

modification of statutory language, because numerous revi-

sions having no substantive implications are made both dur-

ing the initial drafting process and through subsequent

amendments. In Jama, for example, the Court rejected the

argument that a change from “any country” to “another coun-

try” worked a “momentous limitation upon executive author-

ity” because there were “numerous changes [between the two

versions] that [were] attributable to nothing more than stylis-

tic preference.” 543 U.S. at 343 n.3 (emphasis omitted). In

the absence of some explanation as to why this revision war-

ranted special attention, the Court was unwilling to read it as

anything more than a stylistic change. The holding in Jama

applies a fortiori to mere drafting edits, such as the one on

which the government relies here.

C. Allowing Covered Persons To Recover

Response Costs Under Section 107(a) Is

Consistent With The Overall Structure And

Legislative Objectives Of CERCLA.

The government further contends that a decision author-

izing covered persons to recover response costs under Section

107(a) would render Section 113(f)(1) superfluous and un-

18

dermine the settlement protection scheme and other proce-

dural features of CERCLA. But, in so arguing, the govern-

ment again ignores the plain language of Section 107(a) and

the coherent, comprehensive structure of CERCLA’s regula-

tory framework.

1. Sections 107(a) and 113(f)(1) are “distinct” provi-

sions that work together to create a comprehensive regime for

‘the recovery of hazardous waste cleanup costs. See Cooper,

543 U.S. at 163 n3 (“The cost recovery remedy of

§ 107(a)(4)(B) and the contribution remedy of § 113(f)(1) are

similar at a general level in that they both ‘allow private par-

ties to recoup costs from other private parties. But the two

remedies are clearly distinct.”). Each section addresses pri-

vate plaintiffs in different positions.

Persons eligible to ile suit under Section 107(a) have

“incurred” “costs of response” in remediating a hazardous

waste site and can use the section’s cost-recovery cause of

action to recover a portion of those costs from other responsi-

ble parties. Persons eligible to seek contribution under Sec-

tion 113(f)(1) have not themselves expended response costs

but have instead been sued under Section 107(a) and can use

the contribution cause of action to apportion liability among

other covered persons. See Pet. Br. 23 (defining “contribu-

tion” as “a claim by one party to recover an amount from a

jointly liable party after the first party had extinguished a dis-

proportionate share of their common liability”) (emphasis

omitted). Thus, covered persons cannot simply pick and

choose between Sections 107(a) and 113(f)(1) at their whim;

they are limited to Section 107(a) when seeking “costs of re-

sponse” they have- “incurred” themselves, and Section

113(f)(1) when seeking contnbution for costs for which they

have been held liable in a Section 107(a) action.

2. The legislative history of CERCLA, and the congres-

sional objectives that animate the statute, confirm that Sec-

19

tions 107(a) and 113(f)(1) create causes of action for differ-

ently situated parties.

a. Congress enacted CERCLA in 1980 to respond to the

significant environmental and public-health hazards posed by

industrial pollution. See United States v. Bestfoods, 524 U.S.

51, 55 (1998). “The remedy that Congress felt it needed in

CERCLA is sweeping: everyone who is potentially responsi-

ble for hazardous-waste contamination may be forced to con-

tribute to the costs of cleanup.” /d. at 56 n.1 (internal quota-

tion marks omitted).

Congress designed the remedial provisions of Section

107(a) to promote both government-initiated and voluntary

cleanup efforts by the private sector. See S. REP. No. 848;

96th Cong., 2d Sess., at 31 (1980) (“This liability standard is

intended to induce potentially liable persons to voluntarily

mitigate damages rather than simply rely on the government

to abate hazards.”) (emphasis added).5 As lower courts have

recognized, “[t}his expressed goal of achieving voluntary

cleanup is directly enhanced by Congress’ including in sec-

tion 107(a)(4)(B) the ability of responsible persons to recover

voluntarily incurred response costs from other responsible

persons.” United States v. New Castle County, 642 .. deceit

1258, 1264 (D. Del. 1986).

Indeed, in the years immediately following CERCLA’s

enactment, “[vjarious courts held that § 107(a)(4)(B) ... au-

thorized . . . a cause of action” between a “private party that

had incurred response costs, but that had done so voluntarily

and was not itself subject to suit,” and “other PRPs.” Cooper,

543 U.S. at 161-62 (citing Wickland Oil Terminals v. Asarco,

5 See also 126 CONG. RFC. 26338 (Sept. 19, 1980) (statement of Rep.

Florio) (“[Section 107] accomplishes three objectives. It-assures that the

costs of chemical poison releases are borne by those responsible for the

releases. It creates a strong incentive both for prevention of releases and

voluntary cleanup of releases by responsible parties.”) (emphasis added).

20

Inc., 792 F.2d 887, 890-92 (9th Cir. 1986); Walls v. Waste

Res. Corp., 761 F.2d 311, 317-18 (6th Cir. 1985); City of

Philadelphia v. Stepan Chem. Co., 544 F. Supp. 1135, 1140-

43 (E.D. Pa. 1982)).

The government attempts to sow doubt about the early

interpretation of Section 107(a)(4)(B), but is unable to cite a

single case decided before the enactment of the Superfund

Amendments and Reauthorization Act of 1986 (“SARA”)

that rejected a covered person’s right to recover cleanup costs

under Section 107(a). And although the government claims

to be “aware of only two federal courts that had unambigu-

ously held that a PRP was entitled to sue another PRP for

costs” (Pet. Br. 28), several decisions that the government

does not mention also concluded that covered persons had a

right of recovery under Section 107(a). See Sand Springs

Home v. Interplastic Corp., 670 F. Supp. 913, 916 (N.D.

Okla. 1987); City of New York v. Exxon Corp., 633 F. Supp.

609, 616-17 (S.D.N.Y. 1986); Velsicol Chem. Corp. v. Reilly .

Tar & Chem. Corp., 1984 U.S. Dist. LEXIS 24317, at *11

(E.D. Tenn. Aug. 16, 1984); see also Pinole Point Props.,

Inc. v. Bethlehem Steel Corp., 596 F. Supp. 283, 291 (N.D.

Cal. 1984) (holding that covered persons can assert a cause of

action under Section 107(a) because “any other person” in

Section 107(a)(4)(B) “refers to persons other than the state

and federal government rather than to persons other than

those liable under the Act”).

Although an unambiguous and unbroken line of prece-

dent emerged holding that Section 107(a) authorized covered

persons to bring suit to recover voluntarily “incurred” “costs

of response,” CERCLA, as originally enacted, was silent con-

cerning “whether a private entity that had been sued in a cost

recovery action (by the Government or by another PRP)

could obtain contribution from other PRPs.” Cooper, 543

U.S. at 162 (emphasis added). In light of this Court’s deci-

sions limiting the availability of implied contribution nghts

(see, e.g., Tex. Indus., Inc. v. Radcliff Materials, Inc., 451

21

U.S. 630, 638-47 (1981)), the lower courts were divided as to

whether a right to contribution was available under either

CERCLA itself or the federal common law. Compare New

Castle County, 642 F. Supp. at 1261-69, with United States v.

Westinghouse Elec. Corp., 1983 WL 160587, at *3-*4 (S.D.

Ind. June 29, 1983).

As a result of this uncertainty about the availability of

derivative contribution claims, Congress enacted Section

113(f) in the 1986 SARA amendments to “clariffy] and con-

firm[] the right of a person held jointly and severally liable

under CERCLA” to seek contribution from other covered

persons. H.R. REP. No. 253, 99th Cong., Ist Sess., pt. 1, at

79 (1985). SARA did not modify Section 107(a), and there is

absolutely no indication that Congress intended for it to dis-

turb the right of covered persons to recover their cleanup

costs through a cost-recovery action under Section

107(a)(4)(B), which had been recognized in decisions such as

Wickland Oil and Stepan Chemicals. See Cook County v.

United States ex rel. Chandler, 538 U.S. 119, 132 (2003) (it

is a “cardinal rule ... that repeals by implication are not fa-

vored”’) (internal quotation marks omitted). As this Court has

made clear, “it is not only appropriate but also realistic to

presume that Congress was thoroughly familiar with these

unusually important precedents ... and that it expected its

enactment to be interpreted in conformity with them.” Can-

non v. Univ. of Chicago, 441 U.S. 677, 699 (1979).

b. With this background in mind, it strains credulity to

assert—as the government does—that when codifying the

right of covered persons to pursue a contribution action in

Section 113(f), Congress simultaneously restricted the right

of voluntary remediators to file a cost-recovery action under

Section 107(a). The government’s argument relies on canons

of construction providing that the implications of a statute

may be altered by the implications of a later enactment and

that a more specific statute takes precedence over a more

general one. Pet. Br. 26-27 (citing United States v. Fausto,

22

484 U.S. 439, 453 (1988); Busic v. United States, 446 U.S.

398, 406 (1980)). These interpretive tools simply do not sup-

port the broad result that the government seeks. They con-

firm that the enactment of Section 113(f) resolved the uncer-

tainty about the availability of a contribution action under

CERCLA—and, at most, that claims that sound in contribu-

tion may be pursued solely under Section 113(f) rather than

under Section 107(a). They provide no support, however, for

the government’s reading of Section 107(a), because it was

already well-established at the time of Section 113(f)’s en-

actment that covered persons could seek cost recovery under

Section 107(a) and because nothing in the text of Section

113(f) amended Section 107(a) or otherwise restricted the

availability of cost-recovery actions.®

Moreover, the legislative history indicating that Congress

sought to promote negotiated settlements through SARA does

not even remotely suggest that Congress—without modifying

the language of Section 107(a) in any way—intended to

eliminate the right of voluntary remediators to recover their

response costs under Section 107(a). Indeed, the government

can cite to no explicit statement in SARA’s legislative history

that indicates that Congress sought to preclude covered per-

sons from recovering voluntary cleanup costs under Section

107(a). To be sure, when Congress enacted SARA, it was

attempting to encourage settlements (Pet. Br. 39-40), but it

did so as an alternative to lengthy litigation—not as an alter-

native to voluntary cleanups by private parties. See H.R. Rep.

No. 253, pt. 1, at 58-59 (“These provisions should encourage

6 The government is therefore wrong to take issue with the court of ap-

peals’ conclusion that, notwithstanding the right of covered persons to

seek cost recovery, Section 113(f) provides the exclusive mechanism for a

‘covered person to recover a portion of the liability assessed against it in a

Section 107(a) action. Pet. Br. 22. The interpretive canons on which the

government itself relies substantiate the distinction that the court of ap-

peals identified between suits under Sections 107(a) and 113(f).

23

quicker, more equitable settlements, decrease litigation and

thus facilitate cleanups.”). In the six years between the en-

actment of CERCLA and its amendment through SARA, pro-

tracted CERCLA litigation had become common because

covered persons routinely resisted the EPA’s cleanup de-

mands, which compelled the EPA to resort to costly litigation

against recalcitrant parties. In SARA, Congress “tried . . . to

refocus the intent of the [CERCLA] program back on clean-

ing up the sites and away from the slow and costly litigation.”

131 CONG. REC. 24728 (Sept. 24, 1985) (statement of Sen.

Domenici). Despite the government’s claim to the contrary,

congressional support for voluntary cleanups was unwavering

during the consideration of SARA.’

The government further suggests that Congress’s focus

on negotiated settlements during the SARA debate indicates a

desire on the part of Congress to place all cleanups under the

control and regulation of the EPA. Congress, however, was

well aware in 1986 that the EPA was not in any position to

assume a more comprehensive oversight role. Indeed, the

General Accounting Office had issued numerous reports to

Congress regarding the EPA’s enforcement of CERCLA.

These reports painted a bleak picture of an agency over-

whelmed and understaffed, and unable to meet the require-

ments of CERCLA or the expectations of Congress. See Gen.

Accounting Office, Hazardous Waste, Adequacy of EPA At-

torney Resource Levels (GAO/RCED-86-81FS) (1986). In-

deed, the House Report accompanying SARA neatly summa-

rizes the situation: “Under the initial leadership of Assistant

Administrator Lavelle, the [CERCLA] program was victim-

7 See, e.g., H.R. REP. NO. 253, pt. 5, at 58 (“Voluntary cleanups are es-

sential to a successful program.”); 131 CONG. REC. 24730 (Sept. 24, 1985)

(statement of Sen. Domenici) (“One important component of the realistic

strategy must be the encouragement of voluntary cleanup actions or fund-

ing without having the President relying on the panoply of administrative

and judicial tools available.”’).

24

ized by gross mismanagement.... [O]ver twenty top-level

officials, including the Administrator of the EPA, resigned or

were fired from their jobs. Assistant Administrator Lavelle is

currently serving a jail term [for lying to Congress].” H.R.

REP. No. 253, pt. 1, at 55.

Any concern about the quality of voluntary cleanups was

addressed not by precluding voluntary remediators from re-

covering response costs under Section 107(a) but by limiting

recovery to those costs that are consistent with the cleanup

standards set forth in the national contingency plan. Indeed,

courts routinely review the cleanups underlying Section

107(a) claims to ensure that this requirement is met. See,

e.g., Carson Harbor Vill. v. County of Los Angeles, 433 F.3d

1260 (9th Cir. 2006) (denying a Section 107(a) claim because

the cleanup violated the public comment requirement in the

national contingency plan). Voluntary remediators are dis-

couraged from performing unsafe, unnecessary, or inadequate

cleanups because they will be unable to recover their costs

from other responsible parties if they cannot establish that the

costs were “necessary” and “consistent with the national con-

tingency plan.” 42 U.S.C. § 9607(a)(4)(B).®

3. The plain language and legislative history therefore

establish that Sections 107(a) and 113(f) create distinct, non-

overlapping causes of action. Covered persons can sue under

Section 107(a) to recover “costs of response” that they have

8 The government cites an isolated report in the Federal Register issued

three years before SARA’s enactment as evidence that the EPA “disfa-

vored” private party cleanups and sought to restrict the ability of voluntary

remediators to sue under Section 107(a). See Pet. Br. 40 (citing 48 Fed.

Reg. 40661 (1983)). But the significance of the report is not that the EPA

discouraged voluntary cleanups, but that it could not vouch for the quality

of sites with which it had no involvement. Indeed, the EPA explicitly

stated in the document that it did “not intend[] to preclude responsible

parties from taking voluntary response actions outside of a consent agree-

ment.” 48 Fed. Reg. at 40661.

25

“incurred” themselves; they can seek contribution under Sec-

tion 113(f)(1) for liability to another covered person incurred

during a Section 107(a) action. This distinction alleviates all

of the potential structural concerns raised by the government.

Statute of Limitations: Permitting covered persons to sue

under Section 107(a) does not facilitate evasion of the statute

of limitations for suits under Section 113(f)(1). A person

who has incurréd response costs can seek recovery of those

costs under Section 107(a) in accordance with the six-year

statute of limitations established by Section 113(g)(2). See

42 U.S.C. § 9613(g)(2). The defendant in that action may

maintain a separate Section 113(f)(1) action against other

covered persons named in the initial action, other covered

persons that have not been named, or against the original

plaintiff. Any such derivative contribution action must be

filed within three years of a judgment or settlement in the

original action. See id. § 9613(g)(3). Because the nature of

the underlying claim determines whether Section 107(a) or

Section 113(f)(1) applies, it is impossible for a person that is

outside the three-year statute of limitations for Section

113(f)(1) contribution actions to take advantage of the six-

year limitations period for Section 107(a) actions. If a cov-

ered person has been sued for response costs expended by

another person, the only claim available to it is a derivative

contribution action under Section 113(f)(1), which is subject

to a three-year limitations period. Covered persons thus do

not have a choice between limitations periods.

The Contribution Protection Scheme: The government's

contention that Section 107(a) actions by voluntary remedia-

tors would eviscerate CERCLA’s contribution protection

scheme for parties that settle with the government is equally

unavailing. The contribution protection afforded by Section

113(f)(2) applies to settlements with the United States or a

State, and only covers “matters addressed in the” government

settlement. 42 U.S.C. § 9613(f)(2). The scope of settlement

protection therefore does not, as the government represents,

26

extend to cleanup costs incurred by private persons. See, e.g.,

Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 766 n.7

(7th Cir. 1994) (permitting a nonsettling covered person to

assert a claim against a settling covered person “because the

decree defines ‘covered matters’ only in terms of claims

available to the United States and the State of Indiana, [and]

claims that [the nonsettling covered person] might have based

on its own work would seem by definition excluded”) (em-

phases omitted).

If the United States sues to recover its costs against mul-

tiple defendants, the availability of contribution protection

encourages the defendants in that suit to settle with the Un-

ited States because a settling party will not be subject to con-

tribution actions under Section 113(f)(1) by other defendants

seeking to recover a portion of the government’s costs for

which they have been held liable. Moreover, these nonset-

tling defendants would not be able to sue the settling defen-

dant under Section 107(a) for the matters addressed in the

settlement because they would not themselves have incurred

the response costs in question; those costs would instead have

been incurred by the government during its cleanup efforts.

But a nonsettling covered person could bring a Section 107(a)

action to recover a portion of its own cleanup costs from the

settling defendant because those costs would not be “matters

covered” by the settlement. See Akzo, 30 F.3d at 767.

Because a nonsettling covered person’s suit for costs in-

curred by the government would, by definition, be a deriva-

tive claim under Section 113(f)(1), a covered person could

not simply “choose” to file a Section 107(a) action to circum-

vent the settlement protection scheme.?

9 Take, for example, the situation of Alpha Corp., which incurs $50,000

in response costs investigating groundwater in the vicinity of its facility

and then stops work after determining that the contamination was not re-

leased from its facility. The federal government then spends $1 million to

investigate and initiate a remedial action, and sues Alpha, as well as Bravo

27

Equitable Apportionment of Response Costs: The gov-

ernment also argues that authorizing covered persons to bring

suit under Section 107(a) would result in the inequitable ap-

portionment of costs because of the availability of joint and

several liability in Section 107(a). But the defendants in a

Section 107(a) action are free to assert contribution claims

against the original plaintiff under Section 113(f{1). The

court would then be in a position to “allocate response costs

among liable parties using such equitable factors as the court

determines are appropriate.” 42 U.S.C. § 9613(f)(1). More-

over, there is nothing in the text of Section 107(a) that man-

dates application of joint and several liability. A provision

that would have required joint and several liability was de-

leted from the statute during the drafting process. See United

States v. Wade, 577 F. Supp. 1326, 1337 (E.D. Pa. 1983) (de-

letion of the “reference to joint and several liability was in-

tended to avoid mandatory application of that standard to a

situation where it would produce inequitable results”). In-

[Footnote continued from previous page]

Corp., Charlie Corp., and Delta Corp., under Section 107(a) to recover its

response costs. The government enters into a settlement with Alpha for

$100,000 and with Bravo for $200,000. Alpha then seeks to recover all of

its costs from the other covered persons because it believes that it is not

liable for any of the releases in question. Alpha cannot seek recovery of

the $100,000 from Bravo under Section | 13(f)(1) because Bravo has con-

tribution protection for the government's costs. Alpha also cannot seek

recovery of the $100,000 from Bravo under Section 107(a) because it has

not incurred these response costs itself—the government has. Bravo is

therefore fully protected under the terms of the statute. Alpha can seek

contribution under Section 113(f(1) for the $100,000 that it paid to the

government frum Charlie and Delta because they have not settled with the

government. Moreover, the settlement protection does not prohibit Alpha

from seeking recovery of the $50,000 in response costs against all other

covered persons, including Bravo, pursuant to Section 107(a), because

Bravo's contribution protection extends only to matiers addressed in the

settlement with the government i.e., the government's own cleanup

costs.

28

deed, several courts that addressed the apportionment of li-

ability in Section 107(a) actions prior to adoption of Section

113(f)(1) endorsed an equitable allocation of response costs

among covered persons. See, e.g., New York v. Shore’ Realty

Corp., 648 F. Supp. 255, 259 (E.D.N.Y. 1986); Wehner v.

Syntax Agribusiness, Inc., 616 F. Supp. 27 (E.D. Mo. 1985).

Ultimately, it is ironic that the government is relying on

the specter of the inequitable allocation of response costs to

support depriving voluntary remediators of a right to recovery

under CERCLA. Nothing could be more inequitable than

leaving a responsible corporate citizen that has voluntarily

undertaken remedial action to bear cleanup costs for which

other parties may be at least partially liable. CERCLA’s text

and structure give no indication that Congress intended such

an inequitable—and nonsensical—tesult.

D. The Decision Below Creates A Loophole That

Enables The United States To Escape

CERCLA Liability.

The government’s interpretation of Section 107(a) should

be rejected for the additional reason that it creates a loophole

that could effectively shield the United States from CERCLA

liability and thereby significantly undermine the statute’s

ability to promote prompt hazardous waste cleanups and the

equitable allocation of response costs. :

1. The federal government is itself a covered person at

numerous sites throughout the country. Indeed, 157 of the

1,244 sites on the CERCLA National Priorities List—a list of

the most-contaminated sites in the Nation—are federal facili-

ties currently or formerly owned by the United States.!9 If

covered persons are prohibited from asserting cost-recovery

actions under Section 107(a), the federal government would

10 The United States faced $305 billion in environmental liabilities at

the end of fiscal year 2006. See U.S. Dep't of the Treasury, Financial

Report of the United States Government (2006).

29

effectively be given a veto over the right of other covered

persons to recover cleanup costs from it. At any site at which

the federal government is a covered person, no private party

would be authorized to initiate a contribution claim against it

in the absence of a CERCLA enforcement action brought by

the federal government or a State. Because it is rare for state

regulators to file suit under CERCLA, rather than relying

upon state-law remedies, such a rule would effectively hand

the federal government the keys to its own CERCLA liability

and afford the government the power to avoid liability by de-

clining to initiate enforcement actions. This result is wholly

inconsistent with Congress’s clear intention that the United

States be treated just like a private party under CERCLA.

See 42 U.S.C. § 9620(a) (“Each department, agency, and in-

strumentality of the United States ... shall be subject to ...

this Act in the same manner and to the same extent, both pro-

cedurally and substantively, as any nongovernmental entity,

including liability under section 107 of this Act.”).

2. Indeed, the federal government has consciously pur-

sued a litigation strategy in which it has advocated conflicting

legal theories in an apparent effort to minimize its exposure

under CERCLA. The government has previously represented

to this Court that the “any other person” formulation in Sec-

tion 107(a) encompasses covered persons. See Br. for the

United States as Amicus Curiae Supporting Petitioner at 20-

21, Cooper (No. 02-1192) (“Section 107(a)(1)-(4)(B)’s refer-

ence to ‘any person’ is broad enough to allow one jointly li-

able party to sue another for the former’s response costs”).

Without a word of explanation for its shifting litigation posi-

tion, the government now contends that CERCLA provides

no remedial nghts for voluntary remediators.

The government’s inconsistent arguments regarding the

ability of covered persons to pursue cost-recovery actions

represent only one example of its ever-shifting interpretations

of CERCLA. In Centerior Service Co. v. Acme Scrap Iron &

Metal Corp., 153 F.3d 344 (6th Cir. 1998), for example, the

30

government argued that Section 107(a) cost-recovery actions

cannot be brought by covered persons because contribution

claims are available to such parties under Section 113(f)(1).

See U.S. Br. at 28, Centerior (No. 97-3163). Having success-

fully persuaded several circuits to hold that covered persons

cannot pursue Section 107(a) cost-recovery actions by em-

phasizing the availability of Section 113(f)(1) contribution

claims, the government then turned around in Cooper and

argued that covered persons may not recover voluntarily in-

curred cleanup costs through the very contribution mecha-

nism that it had previously endorsed before the lower courts.

If the Court agrees with the government in this dispute, it

will have effectively immunized the United States from

~ CERCLA liability, at the expense of the environment and

private industry. Any interpretation of CERCLA that creates

a loophole by which the federal government might escape a

portion of its extensive environmental liability seriously un-

dermines CERCLA’s objectives of remediating hazardous

waste and fairly allocating cleanup costs.

CONCLUSION

For the foregoing reasons, the judgment of the court of

appeals should be affirmed.

Respectfully submitted.

JAMES R. BUCKLEY MIGUEL A. ESTRADA

LOCKHEED MARTIN Corp. Counsel of Record

6801 Rockledge Drive RAYMOND B. LUDWISZEWSKI

Bethesda, MD 20817 MICHAEL K. MURPHY

(301) 897-6954 AMIR C. TAYRANI

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

Counsel for Amicus Curiae

April 5, 2007