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

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5S BS)

No 06-562

IN THE SUPREME COURT OF THE ENTER DSEATES

UNTTEDSEATES OF AMERICA, PE ETIIONER

VEE ANTICO RESEARCTE CORPORATION, RESPONDENT

ON TERIT OF CERTIORARI

LOTTE ENTTEDSTATES COURT OF APPEALS

LOR THE EMGTILCTROEU TT

BRIEF FOR AMICEL CURIAE

NATURAL RESOURCES DEFENSE COUNCIL.

PROF. CRAIG N. JOHNSTON,

PROF. WILLIAM F. FUNKY

PROF. MARTHA L. JUDY

PROF. NINA A. MENDELSON,

PROF. JEFFREY G. MILLER,

PROF. PATRICK A. PARENTEAU, AND

PROF. ZYGMUNT J.B. PLATER

IN SUPPORT OF RESPONDENT

lerry S) Phillips

( onussel of Rex ord

Loeb & Loeh LIP

1O100 Santa Monica Boulevard. Suite 2200

los Angeles. CA 90067-4120

(310) 282-2228

BEST AVAILABLE COPY

TABLE OF CONTENTS

ee Fe Gi ctisetenectnencsccrsininisainsvinsimmemi l

Te Ce CII ascecictescesccnsisssencesenscenmnenmensinnenions I

TE sovinhicieeinicvinceplisiteeisdiitiiibintiieaieaietiiabiataiamtinaliamnmiasiaiianeniees 6

1. The Plain Language Of CERCLA Provides Private

Parties With A Cost-Recovery Claim.................00. 6

2. SARA Confirms A Broad Understanding Of Private-

Party Cost Recovery For Those Who Do Not Have |

Express Contribution Claims ..................csssesseseeeeeees 15

A. Neither SARA Nor Its Legislative History Give

Any Indication That Congress Was Narrowing

TITEL -écictnsneshiisisndiiigieinadieniappsiinenintibinenieiunai 15

B. The Lower Court Correctly Determined That

§ 107(A)(4)(B) Complements § 113(F)............. 18

3. CERCLA’s Purposes Argue Strongly In Favor Of

Reading § 107(A)(4)(B) To Allow Those Who

Voluntarily Remediate Sites To Seek Cost Recovery

siciasidailaaesenaaiecanmadidaaaial REE Te TT

eI scinssiininsiccbcctscihdssecaciiaiiteniinseiebeienninananeeibnimneumeaneananniie 30

IIIT cchacieshiciaitanlisdeabiomntaneiheadinasnidabaeipsitanieneniinsiaebeebonauiudibiiaadien 3]

TABLE OF AUTHORITIES

Cases

Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761 (7th Cir.

TTT iatoiliciushdiaiieaiseuiieenisanuiiennaianeeliptendedenimbenaansieliaieneel 5, 14, 22

Atlantic Research Corp. v. United States, 459 F.3d 827, 832.

NG SE citncciignnceicisiatinnedbennnsieseseieniauinapebinhia passim

Babbitt v. Sweet Home Chapter of Communities for a Great

I, FEF Ct re Cr ictrcctrncitnncenssvicnsscsimapguneiene ll

Bedford Affiliates v. Sills, 156 F.3d 416, 423-424 (2d Cir.

SUTTIE insihiseueisieidedeniiaitoaadiedabadbiedanebisiaineimenindannetiiael 4,5, 12, 23

BP America Production Co. v. Burton, 127 S.Ct. 638 (2006)

Branch v. Smith, 538 U.S. 254 (2003) ......ceccceceeeeeeees 20, 21

Browning-Ferris Industries of Illinois v. Ter Maat, 195 F.3d

Se ES iissioentenciionscinninnncescsioneniuananminenas 24

Centerior Service Co. v. Acme Scrap Metal Corp., 153 F.3d

A es Se ccceceertatitininnicninenetsncituumnmnnnndin 5,24

Colorado v. ASARCO, Inc., 608 F.Supp. 1484, 1486-1493...2

Consolidated Edison Co. of New York, Inc. v. UGI Utilities,

Inc., 423 F.3d 90, 97 n.8 (2d Cir. 2005)................2.. passim

Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930, 936, n.9

I eral ceaeiemiilinmanlion 7

Cooper Industries, Inc., v. Aviall Services, Inc., 543 U.S. 157

ae icsituiehdisnniirieendeietinaitecinpsicesipidehienseinsignesisneaibanisiaiitdinnains passim

EJ. DuPont De Demours and Co. v. United States, 460 F.3d

> Re RS fs eee 23, 27, 30

Elementis Chromium L.P. v. Coastal States Petroleum Co.,

450 F.3d 607, 612 (Sth Cir. 2006)................0.........00.00000 25°

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120

ITT Cihccncacieidaeialccoeheeneciadenait eh tabadtenasirelanndaegindenataassanicaaen siete 20, 21

Kerr-McGee Chemical Corp. v. Lefton Iron & Metal Co., 14

fo} eee noe 12

Key Tronic Corp. v. United States, 511 U.S. 809 (1994)..6, 8,

14, 28 ;

ill

~Metropolitan Water Reclamation District of Greater

Chicago v. North American Galvanizing & Coatings, Inc:,

473 F.3d 824 (7th Cir. 2007)... eeeeeeeeeeees 7, 12, 27, 30

Morrison Enterprises v. McShares, Inc., 302 F.3d 1127,

II: TTI ccricniscntecesaimiunnidtidesinisesincnmieciadiasdiias 12, 24

New Castle County v. Halliburton NUS Corp., 111 F.3d

Ie Ce ee: UT iriicsenieceshinccnctpenndensionnicaniniasnidiebsacies 22, 25

New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir.

SE icciisivnbsscadscnenadediannenanienastidaimiaumadnedamamiuiapion 10, 11

Newport v. Fact Concerts, Inc., 453 U.S. 247, 258 (1981) .20

O'Neil v. Picillo, 883 F.2d 176 (1st Cir. 1989), cert. denied,

I ee elennionninagan 26

Ohm Remediation Services v. Evans Cooperage Co., Inc.,

116 F.3d 1574, 1579 (Sth Cir. 1997)... 7, 10, 14

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) 11, 27, 28

Pinal Creek Group v. Newmont Mining Corp., 118 F.3d

Se: IIT Ricccncctinnacsitaiionniimstvnpmensdunanes 3, 5, 7, 24

Pneumo Abex Corp. v. High Point, Thomasville and Denton

Railroad Co., 142 F.3d 769, 776 (4th Cir. 1998)........0...... 5

Rumpke of ind., Inc. v. Cummins Engine Co., Inc., 107 F.3d

ey Ree CTU E, BOWER cncctincinpertesrencsnveisescesions 12

Sand Sprines Home v. Interplastic Corp., 670 F.Supp. 913 _

IIE STIL, SUID cacticenisindinsthcatineijdinissnesensuaaieaniaamiabintinelgananamieds 20

Sun Co., Inc. v. Browning-Ferris, Inc., 124 F.3d 1187, 1190-

Se MRI: SI isiccisncsssbinsisstaninhdshisicibesinsiiatanieicidiaionmianinieiiie 5

United States v. Cannons Eng. Corp., 899 F.2d 79, 92-93

NEAT SITIITcnccicsnstnsindtenheneennnnssisdiaipasaienindaniionenmacsemenaiaanedones 22

United States v. Chrysler Corp., 157 F.Supp.2d 849, 860

Rn ceca celatligtealedstnimieigoatopeniemealsanieieeitid 24

United States v. Estate of ROMAMNI .............ccccccscccccceesseeeeeeeees 21

United States v. Fausto, [484 U.S. 439, 453 (1988) ............ 21

United States v. Hooker Chemicals & Plastics Corp., 680

- Fo. fk een 1]

United States v. Northeastern Pharmaceutical & Chemical

Co., Inc., 810 F.2d 726, 747-748 (8th Cir. 1986) .............. 7

United States v. Novak, 476 F.3d 1041, 1052, n.10 (9th Cir.

SIITITEN visndioscdalieustansiainieennidinientadianiadinienibennianinibimiamebanate 21

United States v. Olin Corp., 107 F.3d 1506, 1514 (11th Cir.

___ SERRERFREL Iara eee ie ew oT RoE nO OTS inieinisenbe 13

United States ». Rogers, 461 U.S. 677, 715 (1983) ............. 20

United States v. Westinghouse Elec. Corp., No. IP 83-9-C,,

1983 WL 160587 (S.D. Ind. 1983) ......... eee eeeeeeeee 2, 16

United Technologies Corp. v. Browning-Ferris Indus., Inc.,

Ey UE iictitininsnsnssisdetsisticienraininansninmntee 3, 22

Wehner v. Syntex Agribusiness, Inc., 616 F.Supp. 27, 31

FEE SEE aE eat ane en EN Ee OO 2

Western Properties Service Corp. v. Shell Oil Co., 358 F.3d

Fi Ie le BUD hcccctecscssnscnscscsescosnessnnensnnssnces 12

Whitman v. American Trucking Ass’ns, 511 U.S. 457, 468

Tn cieiiteniadiileeiciaiitiniledintinssisallsasiiiusiesiabiiiesapmidibiensiiatiiesiininiaties 14

Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 890-

a MUIR cesninsiaiencinssicnlanitiigninsisisinieesniuniionten 2, 15, 16

Statutes

Ce Re OF IEEE sanccssossesndnansinathiossvassncnpisesinen 12

Pe Me Gms FSU A xccsccsssonessnsscnsnosscsecescanssnaventen 8

ey ae ee OF PR ccscccscrcceconcnsintnassnineannesvcnsons 11

D FOES, Ae WA. B Fe ee i ccccccccasescessesessocovossosapecsosoees 11

en SE i Sr I iccicsiinessctsiuiiietnansiinienencisinadainniiiandiad 9

I as sao nisdahasitldcndindeisininsldnadiincneainansaiiol 9

So i etal cccntigtivenibesinninlains 19

§ 106(b)(2)(C), 42 U.S.C. § 9606(b)(2)(C)..... eee eeeeeees 9

§ 106(b)(2)(D), 42 U.S.C. § 9606(b)(2)(D) ....0. 0. eee 9

§ 106(6\(2), 42 U.S.C. § 9G0G(D)(Z) ............csececcerceccsserereses 13

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

§ 107(a)(1), 42 U.S.C. § 9607(a)(1)..ccccseccsecsescsessessesevee. 10, 12

§ 107(a)(4)(A), 42 U.S.C. § 9607(a)(4)(A)....00000. ee. passim

§ 107(a)(4)(B), 42 U.S.C. § 9607(a)(4)(B).................. passim

§ 107(a)(4), 42 U.S.C. § 9607(a)(4)..... ee eee ceesteeeeteeeeeees 9

OF ls Ge Miles OF DPI cccercscseccinscssnsvescsencnocsontons passim

§ 107(b)(3), 42 U.S.C. § 9607(b)(3) ...... ee eee ceeeeeeeeeees 11,12

OO, SE BI incase ccssecnsnsinenovesinssircrisccne i2

S IDMeNS), 42 U.S.C. § SED NSND) .nreccosreesessscecsecesescsscssesess 26

Boi fF D gtk Coe |, | | Sennen II

Bg Se a aes OF IT suvitsiinitnsenennnenntaneinibamninnialiaan passim

S BURA ED, 42 U.S.C. § SG0 Ba D).......crcccereccvessscrcccsseccessesses 9

BD SR RGR, Gee CEA... B Fe Beis cnsccscsccnsctncteniemnnnenennianal )

BD BE DGD, Ge GLIA. B FRG ee cncsencecncsnscomnesencessoicnssiensnnniatiaia 8

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

§ 113(£)(2), 42 U.S.C. § 9613(£)(2).... cee eesseeeeeneeees 22, 23

§ 113(f)(3)(B), 42 U.S.C. § 9613(f)(3)(B).......00. passim

Fee ae Shins SP Dei cccccscceinsesenncscennsnmpeseusnomiatt passim

SB TEDEMIZD, Go UBL. © DOTA ccceccecesscctssssosevosenenssianes 22

§ 122(eK6), 42 U.S.C. § D6ZZ(ENG).......crevcccessevesservorseseeseees 23

Other Authorities

2005 WL 3568541, Brief of the United States as Appellee

SIE Fi, Bie iiiccinsctnvvsssuvinitininvnnnesiadiiaiamemiendianien 12

2006 WL 1354188, Brief of the United States as Amicus

CN GF, Be rvcncensccnemtsictiietideniooeaan 12

Black's Law Dictionary 328 (6th ed. 1990) ................... 20, 23

BOvNOT Foe Gee Usted BI0G......0cccssevcescesnsscccsssesccosesesoneses passim

Comprehensive Environmental Response, Compensation and

RIE FADD siscconennnacceiassesscceicesntiimemnnmaminamemala passim

Rs, Bae EAD GE GI wincencocsinccowscenessncsotasenmmeainn 10

H.R. Rep. No. 1016, 96" Cong. 2d Sess., Pt. 1, at 32 (1980)

sersceieiciereiaaitioipgiibdienisdineiiadmiseienemmeieianiaaan 14

H.R. Rep. No. 253, 99" Cong. 1" Sess., Pt. 3, at 79-80

EDITED + <cincsonsuinisuininitienioniaasonpieeniieeenseainiianemaadmanmannae 17

H.R.Rep. No. 99-253, supra, Pt. 1, at 79 (1985) 18

Hazardous Substance Superfund..............00..cceeeeseeeeeeeeeeeees 9

http://cfpub.epa.gov/supercpad/Cursites ............ccceeeeeeeeeees 29

Miller and Johnston, The Law of Hazardous Waste Disposal

and Remediation, 2d ed., p. 564 (Thompson/West, 2005)

National Contingency Plan ..................ccccee 2, 9, 14, 15, 20

Restatement (Second) Torts § 886(4)................ccccccceeeeeeeeeees 20

S.Rep. N. 848, 96" Cong., 2d Sess., at 13 (1980).......... 13, 14

S.Rep. No. 11, 99" Cong., 1" Sess., at 44 (1985)... 18

Small Business Liability Relief and Brownfields

Revitalization Act of 2002, Pub. L. 107-118, Jan. 11,

csr crrrenestnnnaee 11

Superfund Amendments and Reauthorization Act of 1986

lide dieldatnnadadinipanaddiiieaindnaniantatnabaeiaésenenenessitnesenesees passim

U.S. General Accounting Office, Extent of Nation's

Potential Hazardous Waste Problem Still Unknown 3

ESE Oe 29

William H. Rodgers, the Seven Statutory Wonders of U.S.

Environmental Law: Origins and Morphology, 27 Loy.

es ee NS HE, CIEE CD csccscsccconcccccescesecssscrscosenes 29

Federal Register

ain cereticatcndndacintatennnet 29

Bs Oe I PIII ccccncescsecccecessooscsesnssesesosseneenens 13

55 Fed. Reg. 8666, 8792 (March 8, 1990)... 13

INTEREST OF THE AMICI CURIAE

Amici Curiae are a national environmental organization

and seven law professors. The Natural Resources Defense

Council, which has 1.2 million members and supporters, uses

law and science in an effort ensure a safe and healthy

environment for all living things. The amici law professors

are teachers and students of environmental law, and have a

longstanding interest in the Superfund program established

by the Comprehensive Environmental Response,

Compensation and Liability Act (CERCLA).

The amici believe this case presents an important

opportunity for this Court to affirm the right of private

parties to recover cleanup costs under CERCLA. Amici are

concerned that, if accepted by the Court, the Government’s

interpretation would undermine CERCLA’s goals of

promoting the expeditious cleanup of contaminated sites and

ensuring that those responsible bear their share of any

resulting cleanup costs. Amici believe the Government's

interpretation would result in both fewer cleanups and

inequitable burdens on those who do step forward.

A further description of the amici is set forth in an

Appendix to this brief.’

SUMMARY OF THE ARGUMENT

When Congress first enacted CERCLA in 1980, it

provided two different categories of plaintiffs with causes of

action to recover costs incurred in cleanup efforts. First,

Section 107(a)(4)(A) provided the United States, States, and

Indian tribes with the authority to sue those deemed

' 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

affirm 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 other than amici or their counsel.

responsible under § 107(a) (often referred to as “potentially

responsible parties” or “PRPs”) to recover costs “not

inconsistent with” a document known as the National

Contingency Plan (“NCP”). 42 U.S.C. § 9607(a)(4)(A).“

And second, Section 107(a)(4)(B) gave “other person{s|”

that same authority, with the difference that these persons are

required to demonstrate that their cleanups are “necessary”

and “consistent with” the NCP. 42 U.S.C. § 9607(a)(4)(B).

Congress has amended CERCLA comprehensively only

once, though the Superfund Amendments and

Reauthorization Act of 1986 (“SARA”), Pub. L. 99-499, Oct.

17, 1986, 100 Stat. 1615. Before SARA was passed, the

courts unanimously had recognized that § 107(a)(4)(B)

creates a right of cost recovery in those private parties who

cleaned up sites without having first been sued by the

Government, regardless of any potential liability they

themselves may have borne under the statute. See, e.g.,

Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 890-

892 (9th Cir. 1986) (“Wickland’). There was less

agreement, however, regarding the availability of

contribution rights for those who, in response to a lawsuit,

had either undertaken cleanup measures or reimbursed the

Government for its cleanup costs. Compare, e.g., Colorado

v. ASARCO, Inc., 608 F.Supp. 1484, 1486-1493 (D.Colo.

1985) (finding a federal common law right of contribution),

and Wehner v. Syntex Agribusiness, Inc., 616 F.Supp. 27, 31

(E.D.Mo. 1985) (contribution right implied in § 107(e)(2)),

with United States v. Westinghouse Elec. Corp., No. IP 83-9-

C, 1983 WL 160587 (S.D. Ind. 1983) (no right of

contribution).

* The Government refers to the key statutory subsections in this case as

§ 107(a)(1)-¢4)(A) and 107(a)(1)-(4)(B). While we agree that all of the

liable parties referenced in subsections (1)-(4) are responsible for the

costs specified in subclauses (A) and (B), we refer to these provisions as

(a)(4)(A) and (a)(4)(B) to maintain consistency with this Court's usage

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

Congress acted against this backdrop in 1986. In passing

SARA, Congress left § 107(a)(4)(B) unaltered, preserving

the private right of cost recovery. It did, however, move to

solidify the contribution rights of two groups of parties.

First, in § 113(f)(1) it created an express right of contribution

in those who either had been or were being sued under either

§ 106 or § 107 of CERCLA. 42 U.S.C. § 9613(f)(1).

Additionally, in § 113(f(3)(B), Congress did the same with

respect those who had entered into settlements with either

the United States or a State. 42 U.S.C. § 9613(f)(3)(B).

In the wake of SARA, but before this Court’s decision in

Cooper Industries, Inc., v. Aviall Services, Inc., 543 U.S. 157

(2004) (“Cooper Industries”), the lower courts took a wrong

turn. As the court below noted, the lower courts began

“directing traffic” between §§ 107 and 113(f), generally

steering CERCLA plaintiffs who bore potential liability

away from cost recovery in favor of the contribution-based

remedies available under § 113(f). Atlantic Research Corp.

v. United States, 459 F.3d 827, 832 (8th Cir. 2006) (“Aélantic

Research’). \in some cases, this was justifiable, as parties

who had been given contribution claims under § |13(f) tried

to avoid some of that subsection’s more restrictive dynamics

by availing themselves of the more favorable dynamics of

§ 107(a)(4)(B). See, e.g., United Technologies Corp. v.

Browning-Ferris Indus., Inc., 33 F.3d 96, (Ist Cir. 1994)

(involving a plaintiff who had entered into a consent decree

with EPA, but sought to use § 107(a)(4)(B) due to its more

permissive statute of limitations). In other cases, however,

the courts erred by steering parties to contrbution-based

remedies despite the fact that they had valid claims under

§ 107(a)(4)(B), but invalid claims under § 113(f). See, e.g.,

Pinal Creek Group v. Newmont Mining Corp., 118 F.3d

1298 (9th Cir. 1997) (“Pinal Creek”) (involving plaintiffs

who had cleaned up a site without being subjected to any

lawsuit or administrative edict).°

The courts provided three main rationales for steering

parties toward § 113(f). First, they expressed concern about

the circumvention of § 113(f), often without analyzing

whether that section even applied; second, they were of the

view that any application of § 107(a)(4)(B) would result in

the plaintiff being able to impose all of the relevant cleanup

costs on the defendants under principles of joint and several

liability; and third, many deemed the plaintiffs’ claims to be

“quintessential” claims for contribution, See, e.g., Bedford

Affiliates v. Sills, 156 F.3d 416, 423-424 (2d Cir. 1998)

(“Bedford Affiliates”) (identifying all three concerns). As

demonstrated below, the first and third of these rationales are

misplaced in contexts in which the plaintiff has not been

subjected to a lawsuit. The second is simply incorrect.

Despite the courts’ reluctance to apply § 107(a)(4)(B) on

behalf of those who themselves bore potential liability under

CERCLA, none of the pre-Cooper Industries courts denied

the plaintiffs a claim. Even in the absence of a pror or

> There are six categories of plaintiffs who may seek to rely on CERCLA

to impose some or all of their cleanup costs on others: (1) those who

bear no potential liability under § 107; (2) those who either are being or

have been sued under CERCLA; (3) those who have entered into an

administrative settlement with either EPA or a State; (4) those who

“voluntarily” clean up sites (meaning that they do so without any lawsuit

or legally-binding administrative edict); (5) those who remediate sites

pursuant to EPA-issued unilateral orders under § 106 of CERCLA; and

(6) those who either are being or have been sued under State law, or have

cleaned up a site pursuant to either a State-issued unilateral order or some

other mechanism that does not meet the requirements of § 113(f)(3)(B).

The Government’s view is apparently that only those in the first three of

these categories may use CERCLA to spread some portion of their

cleanup costs onto others who are liable under § 107(a), with those in the

first category having claims under § 107(a)(4)(B) and those in the latter

two having claims under § 113(f)(1) and (f)(3), respectively. According

to this view, those in the latter three categories have no remedy under

CERCLA. This case involves a voluntary cleanup.

pending CERCLA action, every Circuit addressing the issue

held that potentially-liable plaintiffs had either an express

contribution claim under § | !3(f) or an implied contribution

claim either under § [07 itself or some combination of

§§ 107 and 113(f).* Indeed, during this period even the

Government took the position that potentially-liable

plaintiffs had claims absent a prior or pending lawsuit; it

argued that these claims arose through a combined effect of

§§ 107(a) and 113(f). See, e.g., Centerior Service Co. v.

Acme Scrap Metal Corp., 153 F.3d 344, 350 (6th Cir. 1998)

(“Centerior’). Thus, neither the courts nor the Government

questioned whether the plaintiffs were entitled to relief;

rather, they merely considered which provision (or

provisions) of CERCLA provided the best basis for relief.

In Cooper Industries, this Court held that § 113(f)(1)

does not provide a contribution claim if the would-be

plaintiff is not being or has not been sued under CERCLA.

543 U.S. at 168. This leaves the question presented in this

case: whether one who may bear partial responsibility for a

contaminated site, but who cleans it up before being sued or

otherwise compelled to do so, may sue other potentially

liable parties for either cost recovery under § 107(a)(4)(B) or

implied contribution under § 107. The better view is that

such a party may sue for cost recovery under § 107(a)(4)(B).

* See, e.g., Bedford Affiliates v. Sills, 186 F.3d 416, 423-424 (2d Cir.

1998) (plaintiff who had entered into an informal agreement with the

State had a claim under § 113(f)(1)); Pneumo Abex Corp. v. High Point,

Thomasville and Denton Railroad Co., 142 F.3d 769, 776 (4th Cir. 1998)

(plaintiff who received unilateral orders from both the state and EPA

could proceed under § 113); Centerior Service Co. v. Acme Scrap Metal

Corp., 153 F.3d 344, 352 (6th Cir. 1998) (unilateral order recipient had a

claim under the combined effect of §§ 107(a) and 113(f)); Akzo Coatings,

Inc. v. Aigner Corp., 30 F.3d 761 (7th Cir. 1994) (unilateral order

recipient had claim under § 113(f)(1)); Pinal Creek, supra, 118 F.3d at

1301-1302 (one who engages in a voluntary cleanup has a claim under a

combination of §§ 107(a) and 113(f)); Sun Co., Inc. v. Browning-Ferris,

Inc., 124 F.3d 1187, 1190-1191 (10th Cir. 1997) (same as Centerior).

ARGUMENT

1. THE PLAIN LANGUAGE OF CERCLA PROVIDES

PRIVATE PARTIES WITH A COST-RECOVER

CLAIM :

Section 107(a) identifies four categories of liable parties,

including (1) the owner and operator of the relevant facility;

(2) anyone who owned or operated the facility when the

disposal occurred; (3) anyone who “arranged for disposal” of

hazardous substances at the site; and (4) transporters who

chose the site as the destination for the waste. It further

provides that, subject to an exclusive list of defenses, these

parties “shall be liable for-

(A) all costs of removal or remedial action incurred by

the United States Government or a State or an Indian

tribe not inconsistent with the national contingency plan;

[and]

(B) any other necessary costs of response incurred by any

other person consistent with the national contingency

plan... .”

Thus, § 107(a) creates causes of action for cost recovery

in two separate groups of parties. First, § 107(a)(4)(A)

creates a cost-recovery claim in the United States, the States,

and Indian tribes (“the Sovereigns”). Section 107(a)(4)(B)

creates a similar cost-recovery claim, with a slightly different

burden of proof, in “other person{s].” In Key Tronic Corp. v.

United States, 511 U.S. 809 (1994) (“Key Tronic”), this

Court recognized that the purpose of this latter clause is “to

encourage private parties to assume the financial

responsibility of cleanup by allowing them to seck recovery

from others.” Jd. at 819, n.13.

As the Seventh Circuit pointed out in Metropolitan

Water Reclamation District of Greater Chicago v. North

American Galvgnizing & Coatings, Inc., 473 F.3d 824 (7th

Cir. 2007) (“Metropolitan Water’), the phrase “other person”

in §107(a)(4)(B) is used to distinguish between private

parties (and others such as non-profits and municipalities)

and the Sovereigns addressed in the preceding clause:

[W]e read “other” as distinguishing “any other

person” from the [the Sovereigns] listed in the

immediately preceding subsection. These parties, as

subsection (A) states, may recover costs “not inconsistent

with the national contingency plan.” By contrast, “any

other person” is limited to recovery of those costs

“consistent with the national contingency plan.” Thus,

we read the two subsections, and the reference to “any

other person,” simply as the statute’s way of relaxing the

burden of proof for governmental entities, as opposed to

private parties.

473 F.3d at 835 (citations omitted) (emphasis in original).°

Other courts long have recognized that this was Congress’s

purpose in differentiating between the two groups of parties

in § 107(a)(4)(A) and (B). See, e.g., United States v.

Northeastern Pharmaceutical & Chemical Co., Inc., 810

F.2d 726, 747-748 (8th Cir. 1986), cert. denied, 484 U.S.

848 (1987); see also Ohm Remediation Services v. Evans

Cooperage Co., Inc., 116 F.3d 1574, 1579 (Sth Cir. 1997)

(“the combination of these two clauses in section 107

evidences congressional intent that anyone is eligible to

recover response costs”’).

The juxtaposition between the Sovereigns authorized to

sue under § 107(a)(4)(A) and the “other person[{s]” who can

bring suit under § 107(a)(4)(B) is underscored by the

structure of the relevant subsections. Subsection (a)(4)(A)

states that PRPs are liable for “all costs of removal or

remedial action incurred by the [the Sovereigns] not

inconsistent with the [NCP].” 42 U.S.C. § 9607(a)(4)(A)

* See also Control Data Corp. v.\S.C.S.C. Corp., 53 F.3d 930, 936, n.9

(8th Cir. 1995), and Pinal Creek, 118 F.3d at 1301 (concluding that a

PRP can qualify as “any other person” under § 107(a)4)(B)).

(emphasis added). Subsection (a)(4)(B) makes those same

PRPs liable for “any other necessary costs of response

incurred by any other person consistent with the [NCP].” /d.

§ 9607(a)(4)(B) (emphasis added). The first “other” in

§ 107(a)(4)(B) (“other necessary costs”) distinguishes the

costs referred to from those specified in § 107(a)(4)(A) (“all

costs of removal or remedial action incurred by [the

Sovereigns]”). If the first “other” relates back to

subparagraph (A), then as a matter of parallelism, the most

natural reading of the second “other” is that it also relates

back to subparagraph (A), and thus describes any person

“other” than the Sovereigns.

. The symmetry between the two relevant clauses also

exists at a more general level. Both create causes of action,

albeit in different sets of parties, with the potential

defendants being named before the plaintiffs.° Both refer to

the same categories of costs,’ and both use the same passive

verb formulation, “incurred by.” The structural parallelism

of the two clauses is complete, strongly suggesting that they

should be construed by reference to each other.

The natural understanding of the “any other person”

language in § 107(a)(4)(B) is further underscored by the use

of the phrase “other person” in § 111(a) of CERCLA. There,

the statute speaks to the uses to which monies in the

° In Key Tronic, the members of this Court disagreed on how to

characterize the nature of the § 107(a)(4)(B) claim. The majority, while

noting that § 107 “unquestionably provides a cause of action for private

parties to seek recovery of cleanup costs,” deemed the claim to be

implied rather than explicit. 511 U.S. at 818. In dissent, Justices Scalia,

Blackmun and Thomas deemed the cause of action to be express, not

implied. 511 U.S. at 822. The key point is not whether the private-party

cause of action is implied or express, but rather that structurally it is set

out in the exact same fashion as are the claims of the Sovereigns under

§ 107(a)(4)(A).

” As this Court noted in Key Tronic, § 101(25) defines the term

“response” to include both removal and remedial action. Stl U.S. at

813. Thus, there is no difference between “costs of removal or remedial

action” and “costs of response.”

Hazardous Substance Superfund (“Fund”) may be put.

Subsection |11(a)(1) specifies that these monies may be

used for the “[p]ayment of governmental response costs

incurred pursuant to [§ 104].” 42 U.S.C. § 9611(a)(1)." By

contrast, § 111(a)(2) provides that these funds may also be

made available for costs incurred by “any other person,” so

long as the costs are approved the responsibie Federal

official 42 U.S.C. § 9611(a)(2). Here again, as in

§ 107(a)(4), the contrast is between governmental entities

and “other person[s].” Here also, there is zero indication that

the phrase “other person” is meant to exclude anyone other

than the governmental entities covered under the prior

provision.”

The Government’s reading of § 107(a)(4)(B) also errs in

presuming liability where none has been established. In this

case, as would be true in all cases in which private plaintiffs

have no claims under § 113(f), the Respondent had not been

determined to bear liability under § 107 through any judicial

or administrative process prior to the filing of its

complaint.'” Instead, it “voluntarily investigated and cleaned

up the contamination,” before any agency compelled it to do

so. Atlantic Research, 459 F.3d at 829. Nothing in either

CERCLA or any other law required it to self-identify as a

liable party at the time it filed its complaint. Thus, both the

.~ — -

* This reference to “governmental response costs” includes not only costs

incurred by EPA, but also by States and tribes, as they may have access

to Fund dollars under § 104(d)). See 42 U.S.C. § 9604(d).

” Indeed, Congress acted on the assumption that PRPs are “other

person[s]” under this language when it enacted § 106(b)(2)(D), in which

it provided that even those unilateral-order recipients who prove to be

liable under § 107 are sometimes entitled to reimbursement from the

Fund after they comply with those orders. 42 U.S.C. § 9606(b)(2)(D).

'’ The only arguable exception to this statement is in the context of

unilateral orders under § 106. Even in that context, however, EPA's

liability determination is non-binding. See 42 U.S.C. § 9606(b)(2)(C)

(entitling the recipient of such,an order to de novo review of its liability

in the district court after complying with the order).

United States and the district court should have treated the

Respondent as an innocent party until its liability was both

pleaded and established. See Consolidated Edison Co. of

New York, Inc. v. UGI Utilities, Inc., 423 F.3d 90, 97 n.8 (2d

Cir. 2005) (“Consolidated Edison’’) (declining to refer to the

plaintiff as a “PRP” because that might “confer on a party

that has not been held liable a legal status that it should not

bear”). Put another way, the defendant in a cost-recovery

action should bear the burdens of both pleading and proof

with respect to the plaintiff's potential liability."'

The infirmity of the Government’s interpretation of the

“other person” language is further highlighted when one

considers how inconsequential it would have rendered

§ 107(a)(4)(B) when first promulgated. The vast majority of

private party actions under CERCLA are brought by those

who own or do business on the property they are cleaning

up.'? When CERCLA was first passed, however, virtually

all those who owned and operated contaminated sites bore

liability. Starting with the Second Circuit’s seminal decision

in New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir.

1985), the courts universally interpreted § 107(a)(1) as

imposing strict liability on current owners and operators,

'' This, of course, is consistent with how tort law deals with the issue of

the plaintiff's potential role in contributing to its own injuries; that is, the

defendant generally bears the burden of both pleading and proof with

respect to defenses such as contributory and comparative negligence.

Dobbs, The Law of Torts, § 198, p. 493 (West, 2000). CERCLA

contains a ready mechanism by which a defendant can raise the

plaintiff's potential liability and thereby seek to avoid joint and several

liability. See, infra, text accompanying nn. 30-32.

"In preparation for writing this brief, we reviewed all CERCLA

decisions appearing in Westlaw decided between the years 1995 and

2000. In reviewing these decisions, which involved 364 contaminated

sites, we identified 210 cases that would not meet the requirements of

§ 113(f). Of those, all but one appeared to involve a plaintiff that would

qualify as either an owner or an operator under § 107(a). But see Ohm

Remediation Services v. Evans Cooperage Co., Inc., 116 F.3d 1574 (Sth

Cir. 1997) (brought by a cleanup contractor).

without regard to causation.’ Moreover, Congress did not

create the “innocent landowner defense” until it passed

SARA in 1986. See 42 U.S.C. § 9601(35). Until then, it was

impossible for one who acquired property from a

contaminator to assert a defense. '*

The United States references three types of plaintiffs who

might be able to bring claims under its reading of

§ 107(a)(4)(B): those who own land upon which third

parties spill waste, those whose land is contaminated by

wastes migrating from upgradient properties, and “bona fide

prospective purchasers” under §§ 101(40) and 107(r)(1).

Brief for the United States (“U.S. Brief”), at 16. In terms of

trying to understand what Congress was trying to achieve in

1980, this last category can summarily be dismissed; it

simply didn’t exist until Congress passed the Small Business

Liability Relief and Brownfields Revitalization Act of 2002,

Pub. L. 107-118, Jan. 11, 2002, 115 Stat. 2356 (creating

what are now CERCLA §§ 101(40) and 107(r)(1)).

The Government’s argument is also problematic with

regard to the first two categories of landowners it identifies.

Both would be presumptively liable as current owners under

CERCLA, in that, if they were sued, the plaintiff would be

able to make out its prima facie case merely by showing that

"Shore Realty is the single most-cited CERCLA decision. According to

Westlaw (as of a search conducted on March 15, 2007), it has been cited

466 times, including twice by this Court (in Babbitt v. Sweet Home

Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995), and

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989)).

'* This is because § 107(b)(3) requires one asserting the “third party

defense” under the statute to show that the third party’s actions did not

occur “in connection with” a “contractual relationship” with the person

asserting the defense. Although the pre-SARA version of CERCLA did

not define the term “contractual relationship,” compare 42 U.S.C.

§ 9601(35), the very fact that Congress carved out an “innocent

landowner defense” in 1986 suggests that Congress thought that these

landowners would otherwise be responsible for contamination caused by

their predecessors in title. See United States v. Hooker Chemicals &

Plastics Corp., 680 F.Supp. 546 (W.D.N.Y. 1988).

they owned the property upon which hazardous substances

had come to be located; in order to defeat this liability, these

landowners would bear the burden of showing they met the

requirements of the “third-party defense” under § 107(b)(3).

42 U.S.C. § 9607(b)(3).'° The Government never explains

how a plaintiff is to establish that it meets this defense at the

time it files its complaint, thus entitling it to proceed under -

the Government’s cramped view of § 107(a)(4)(B)."°

The Government’s interpretation of § 107(a)(4)(B),

which it apparently arrived at only recently,'’ is also flatly

'S See CERCLA §§ 101(14) (definition of “facility”) and 107(a)(1)

(imposing liability on the current owner), 42 U.S.C. §§ 9601(14) and

9607(a)(1); see also Kerr-McGee Chemical Corp. v. Lefton lron & Metal

Co., 14 F.3d 321, 325 (7th Cir. 1994). Interestingly, the Seventh Circuit

later embraced a hybrid approach to the applicability of § 107(a)(4)(B),

indicating that those who are “blameless” (in the sense that they did not

contribute to the contamination) may bring claims thereunder even if

they are liable under § 107(a) and unable to establish a defense under

§ 107(b). See, e.g., Rumpke of Ind., Inc. v. Cummins Engine Co., Inc.,

107 F.3d 1235, 1239-1241 (7th Cir. 1997) (“Rumpke”). While the

Government does not advocate this position, we note that it has no

textual support. Moreover, three other Circuits have rejected it. Bedford

Affiliates, 156 F.3d at 424-425; Morrison Enterprises v. McShares, Inc.,

302 F.3d 1127, 1134-1135 (10th Cir. 2002); and Western Properties

Service Corp. v. Shell Oil Co., 358 F.3d 678, 689-690 (9th Cir. 2004).

' It may be that the Government expects a landowner plaintiff to file its

claim under § 107(a)(4)(B), and then have it either be dismissed (if the

defendant establishes the plaintiff's liability and the plaintiff does not

establish a defense) or allowed to go forward (if the defendant either fails

to establish the plaintiff's liability or the plaintiff establishes a defense).

Cf, Rumpke, 107 F.3d at 1240-1241. There is nothing in the statute that

appears to contemplate such an odd dynamic. Moreover, it would run

counter to the first clause in § 107(a). See 42 U.S.C. § 9607(a) (liability

is subject “only” to the defenses in § 107(b)).

'” As best we can determine, the Government first made this argument in

the amicus brief it submitted to the Seventh Circuit last May in

Metropolitan Water, supra. See 2006 WL 1354188, Brief of the United

States as Amicus Curiae (May 1, 2006). The United States itself did not

raise this argument in its brief to the Eighth Circuit below. See 2005 WL

3568541, Bnef of the United States as Appellee (December 5, 2005).

inconsistent with the Government’s long-held interpretation

of the “any other person” language and the significance of

the juxtaposition between § 107(a)(4)(A) and (B). See, e.g.,

55 Fed. Reg. 8666, 8792 (March 8, 1990) (preamble to the

NCP) (noting that the proposed rule set out the requirements

for “response action by ‘other persons’ (i.e., persons who are

not the federal government, a state, or an Indian tribe) . . .”

(emphasis added). It also in significant tension with an EPA

regulation providing that cleanup actions taken by those to

whom EPA has issued unilateral orders under § 106(a) shall

be deemed to be consistent with the NCP for purposes of any

cost-recovery actions they may bring against other PRPs. 40

C.F.R. § 300.700(c)(3)(ii). On its face, this regulation

contemplates that order-recipients are eligible to bring cost-

recovery actions under § 107(a)(4)(B). As the Government

may issue these orders only to liable parties, its current

interpretation of the “any other person” language would

render this regulation a virtual nullity."*

Lastly, the Government’s reading flouts the purposes of

both CERCLA in general and § 107(a)(4)(B) in particular.

When it first passed CERCLA, Congress had _ two

interrelated goals: to promote cleanup and to “assur[e] that

those who caused chemical harm bear the cost of that harm. .

..” §.Rep. N. 848, 96" Cong., 2d Sess., at 13 (1980); see

also United States v. Olin Corp., 107 F.3d 1506, 1514 (11th

Cir. 1997) (“Olin”) (citing “Congress’s twin goals of

cleaning up pollution . . . and of assigning responsibility to

culpable parties”).'? With respect to promoting cleanup,

Congress wanted to supplement the government’s efforts by

'" It is possible that EPA could issue a unilateral order to one whom it

believed to be liable, but whom a court ultimately might deem not to be

so. See, e.g.. 42 U.S.C. § 9606(b)(2). There is no indication, however,

that EPA was thinking about such a small subset of unilateral order

recipients when it promulgated 40 C.F.R. § 300.700(c)(3 (ii).

’ The Government concedes these were Congress's goals when it passed

SARA. See U.S. Brief, at 2.

“induc{ing] . . . potentially liable persons to pursue

appropriate environmental response actions voluntarily.”

H.R. Rep. No. 1016, 96" Cong. 2d Sess., Pt. 1, at 32 (1980);

see also S.Rep. No. 848, supra, at 31 (1980) (“This liability

standard is intended to induce potentially responsible persons

to voluntarily mitigate damages rather than simply rely on

the Government to abate hazards”). Moreover, in the context

of private-party cleanups, the purposes of promoting cleanup

and imposing the costs on those responsible were linked. As

this Court recognized in Key Tronic, the purpose of

providing for private cost-recovery was “to encourage

private parties to assume the financial responsibility of

cleanup by allowing them to seek recovery from others.” Key

Tronic, supra, 511 U.S. at 819, n.13.

Given the above, it is unsurprising that no court has ever

embraced the Government's “other person” argument. Even

more tellingly, despite arguing that its interpretation leaves

§ 107(a)(4)(B) with “substantial operative effect,” U.S.

Brief, at 15, the Government fails to cite a single case in

which a landowner (or anyone else) has filed and

successfully prosecuted an action under its reading of that

provision.” This Court has consistently rejected the efforts

of those who have sought to find elephants in statutory

mouseholes. Whitman v. American Trucking Ass'ns, 511

U.S. 457, 468 (2001). Here, the Government seeks to reduce

§ 107(a)(4)(B) to a mousehole, where Congress wanted a

door large enough for all who undertake voluntary cleanups.

The Court should not sanction this evisceration of the statute.

*° For its first two examples the Government quotes dicta from Akzo

Coatings, Inc. v. Aigner Corp., 30 F.3d 861 (7th Cir. 1994) (“Akzo”).

U.S. Brief, at 16 (quoting from Akzo, 30 F.3d at 764). For its third, it

merely cites statutory language. /@. As mentioned in n.12, supra, our

research has identified one case in which an allegedly non-liable cleanup

contractor was allowed to invoke § 107(a)(4)(B) in a fashion that would

conform with the Government's reading thereof. See Ohm Remediation

Services v. Evans Cooperage Co., Inc., 116 F.3d 1574 (5th Cir. 1997).

2. SARA CONFIRMS A BROAD UNDERSTANDING

OF PRIVATE-PARTY COST RECOVERY FOR

THOSE WHO DO NOT HAVE’ EXPRESS

CONTRIBUTION CLAIMS

A. Neither SARA nor its Legislative History Give Any

Indication that Congress Was Narrowing

§ 107(a)(4)(B).

As this Court noted in Cooper Industries, when Congress

passed SARA in 1986 it was legislating against a backdrop

that included a unanimous body of case law upholding the

right of those who themselves bore potential liability to seek

cost recovery under § 107(a)(4)(B) in situations in which

they cleaned up sites without governmental prodding:

After CERCLA’s enactment in 1980, litigation arose

over whether § 107, in addition to allowing the

Government and certain private parties to recover costs

from PRPs, also allowed a PRP that had incurred

response costs to recover costs from other PRPs. More

specifically, the question was whether a private party that

had incurred response costs, but had done so voluntarily

and was not itself subject to suit, had a cause of action

for cost recovery against other PRPs. Various courts

held that § 107(a)(4)(B) and its predecessors authorized

such a cause of action.

543 US. at 162 (citations omitted).”"

*' The Government tries to downplay the significance of Wickland,

supra, 792 F.2d 887, one of the cases this Court cited in Cooper

Industries. See U.S. Brief, at 29. This attempt is unavailing. Wickland

was decided before SARA was passed. Thus, the court focused not on

whether Wickland had been sued, but instead on the defendant's

argument that Wickland could not bring a cost-recovery claim because

the Calif. Dept. of Health Services, which oversaw Wickland’s remedial

activities, was not acting as a “lead agency” under § 104(d) for that site.

The court framed the issue as involving whether § 107(a)(4)(B) is

available only to those who have undertaken cleanup “pursuant to a

As this Court also noted, there was less certainty

regarding “whether a private party that had been sued in a

cost recovery action (by the Government or by another PRP)

could obtain contribution from other PRPs”:

. As originally enacted in 1980, CERCLA contained

no provision expressly providing for a right of

contribution. A number of District Courts nonetheless

held that, although CERCLA did not mention the word

“contribution,” such a right arose either impliedly from

the provisions of the statute, or as a matter of federal

common law. That conclusion was debatable in light of

two decisions of this Court that refused to recognize

implied or common-law rights to contributions in other

federal statutes.

Id. at 162 (citations omitted); see also United States v.

Westinghouse Elec. Corp., No. No. IP 83-9-C, 1983 WL

160587 (S.D. Ind. 1983) (a pre-SARA case finding no right

of contribution).

In passing SARA, Congress made no changes to the

relevant portions of § 107. Instead, it left § 107(a)(4)(B)

intact, preserving the private right of cost recovery in those

who cleaned up sites without formal governmental prodding.

Congress did, however, resolve the uncertainty regarding the

availability of contribution. In § 113(f)(1) and (f)(3)B), it

created explicit contribution claims in those who either had

been or were being sued under CERCLA, or had entered into

settlements with either EPA or the States. See 42 U.S.C.

§ 9613(f)(1) and (f)(3)(B), respectively. Nothing in either of

these subsections suggests that Congress intended them to

operate in lieu of the rights previously conferred in § 107(a).

governmentally authorized [CERCLA] cleanup program.” 792 F.2d at

891. For purposes of the issue in this case, however, the key point is that

the court recognized the validity of Wickland’s claim despite the fact that

Wickland clearly was one who bore potential liability as the current

owner of the property. See id. at 889 (indicating Wickland’s ownership).

Given that SARA made no changes to § 107(a)(4)(B), it

is unsurprising that it has no legislative history bearing

directly on that provision. Significantly, however, SARA

does have legislative history bearing on the ability of those

who bear potential liability under the statute to bring cost-

recovery actions. Specifically, the House Energy and

Conference Committee stated: .

[Section 113(f)] does not affect the right of the United

States to maintain a cause of action for cost recovery

under Section 107 or injunctive relief under Section 106,

whether or not the U.S. was an owner or operator of a

facility or a generator of waste at the site.

H.R. Rep. No. 253, 99" Cong. 1“ Sess., Pt. 3, at 79-80

(1985). Read fairly, this statement supports two important

propositions: first, that the Committee agreed with the case

law that one’s potential liability should not preclude one

from using § 107(a) to seek cost recovery; and second, that

§ 113(f) should not be read as eviscerating this authority.”

The other legislative history addressing § | 13(f) indicates

that it was intended to “clarif[y] and confirm|] the right of a

person held jointly and severally liable under CERCLA to

seek contribution from other potentially liable parties, when

the person believes that it has assumed a share of the cleanup

cr cost that may be greater than its equitable share under the

circumstances.” S.Rep. No. 11, 99" Cong., 1“ Sess., at 44

>? The Government, by contrast, draws two alternative inferences, either

that “the Committee believed that a private PRP was not entitled to

‘maintain a cause of action fo: cost recovery under Section 107’ in the

first place—or, at most, that aay such action would not survive the

enactment of § 113(f).” U.S. Brief, at 29. According to this logic, the

Committee must also have been conveying implied messages about the

absence of claims on the parts of States and tribes, for they similarly go

unmentioned in this statement. This, of course, would flatly contradict

the text of § 107(a)(4)(A), where States and tribes are on equal footing

with the United States. It is much more likely that the Committee simply

was focusing on the most prominent CERCLA plaintiff.

(1985); see also H.R.Rep. No. 99-253, supra, Pt. 1, at 79

(1985) (same). This quote addresses only the right of

contribution under § 113(f), giving no hint that § 113(f) was

intended to undermine § 107(a)(4)(B) in any way. Its narrow

focus is confirmed by the fact that the quote speaks only to

the rights of those who have been “held” jointly and

severally liable under CERCLA, i.e., through a judicial

action under either § 106 or § 107. The Government claims

that, given the extant “uncertainty” regarding private rights

of action, it is “peculiar” that Congress would have provided

an express claim for contribution, but not a broader one for

cost-recovery. U.S. Brief, at 29. The premise, however, is

wrong. There was no uncertainty regarding whether

CERCLA provided a private right of cost-recovery in those

who undertook voluntary cleanup actions: § 107(a)(4)(B)

provided it, and the courts unanimously had affirmed it.

Cooper Industries, 543 U.S. at 163.

The legislative history of SARA thus confirms a simple

narrative. Given the pre-existing cost-recovery right in

§ 107(a)(4)(B) and the judicial recognition thereof, Congress

saw no need to reaffirm that right. In the contribution realm,

by contrast, Congress sought to fill the statutory silence, and

to respond to the uncertainty in the case law, by creating

express rights in § 113(f). What little legislative history

there is regarding the interrelationship between these new

rights and the preexisting cost-recovery authorities confirms

Congress’ understanding that a party’s potential liabiiity

should not preciude it from bringing a cost-recovery claim in

appropriate circumstances. ,

B. The Lower Court Correctly Determined that

§ 107: .)(4)(B) Complements § 113(f)

The Government argues that even if § 107(a)(4)(B) could

have been read to support a right of cost recovery in

potentially liable parties before SARA was passed, it should

now be read more narrowly in light of § 113(f). U.S. Brief,

at 26. This argument is flawed in several respects. First, it

assumes a level of ambiguity that, as noted above, is simply

absent in § 107(a)4)(B). Second, it ignores the fact that

nothing in either the text or the legislative history of SARA

indicates that it was intended to repeal § 107(a)(4)(B) in the

vast majority of its preexisting applications. And third, and

most significantly, it also ignores that §§ 107(a)(4)(B) and

1 13(f) are distinct and complementary.

Put most simply, the lower court correctly deemetnnt

that the best way to harmonize §§ 107(a)(4)(B) and 113(f) is

by reading the former to apply to those “who have incurred

necessary costs of response, but have neither been sued nor

settled their liability under §§ 106 or 107.” Atlantic

Research, 459 F.3d at 835; see also Consolidated Edison,

423 F.3d at 100. Thus, every private party that incurs

response costs has a remedy against other PRPs under

CERCLA; the only question is whether that claim arises

under § 107(a)(4)(B) or, alternatively, under § 113(f). This

reading is consistent with both the relevant text and

legislative history.”

The Government claims that this reading places an

“atextual limit on [the lower court’s] already strained

interpretation of [§ 107].” U.S. Brief, at 32. This argument

misses the mark. While we are unaware of any pre-SARA

cases addressing the claims of those who cleaned up sites

pursuant to EPA consent decrees, we believe that, even then,

the better view would have been that such entities had, if

anything, implied claims for contribution, not claims for cost

*> The correctness of this reading is most apparent in the context of

voluntary cleanups, such as the one involved in this case. It is slightly

more complicated in the context of those who have received unilateral

orders under § 106(a) of CERCLA, given the similarity of the posture in

which those parties find themselves as compared with that of traditional

contribution plaintiffs. As discussed infra at pp. 25-26, the Court need

not resolve this issue.

recovery. See Sand Springs Home v. Interplastic Corp., 670

F.Supp. 913 (N.D. Okla. 1987) (the recipient of a unilateral

order has an implied claim for contribution).”* Put another

way, before SARA, § 107(a)(4)(B) was at best ambiguous

regarding whether it conferred a cost-recovery right on those

who cleaned up sites pursuant to consent decrees;”* however,

it unambiguously provided such a right to those who

engaged in voluntary cleanups. Seen in this light, Congress

simply clarified through SARA that those who acted

pursuant to consent decrees would be treated like their

common law counterparts—their remedy would lie in

contribution.

This harmonization of §§ 107(a)(4)(B) and 113(f) is also

consistent with both Branch v. Smith, 538 U.S. 254 (2003)

(“Branch”), and FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120 (2000) (“Brown & Williamson”).

Branch establishes that courts have a duty to reconcile a

preexisting statute and any amendments thereto to the

** Although this case post-dates SARA, it was decided without reference

to those amendments.

*’ Despite the apparently unqualified language in § 107(a)(4)(B), this

ambiguity could be found in the tension between its apparent breadth and

well-settled notions of the common law. Under the common law, the

claim one who has settled with another may have against third parties 1s

in fact a “quintessential” claim for contribution. See, e.g., Black's Law

Dictionary 328 (6th ed. 1990) (defining contribution as the "{r]ight of one

who has discharged a common liability to recover of another also liable,

the aliquot portion of which he ought to pay or bear"), and Restatement

(Second) Torts § 886(a), cmt. b. (contribution “applies in favor of a

tortfeasor who has paid more than his equitable share of the common

liability in settlement, without any judgment or even suit against him").

This Court has indicated that it is sometimes appropriate for courts to

imply exceptions in statutes based on common law traditions. See, ¢.g.,

Newport v. Fact Concerts, Inc., 453 U.S. 247, 258 (1981) (implying

common law defenses in 28 U.S.C. § 1983, despite its absolute

language), and United States v. Rogers, 461 U.S. 677, 715 (1983)

(Blackmun, J., dissenting) (“when broadly worded statutes . . . are in

derogation of common-law principles, this Court has hesitated to heed

arguments that they should be applied literally”).

greatest extent possible. 538 U.S. at 273. Brown &

Williamson teaches that:

At the time a statute is enacted, it may have a range of

plausible meanings. Over time, however, subsequent acts

can shape or focus those meanings. The "classic judicial

task of reconciling many laws enacted over time, and

getting them to 'make sense’ in combination, necessarily

assumes that the implications of a statute may be altered

by the implications of a later statute." United States v.

Fausto, [484 U.S. 439, 453 (1988)]. This is particularly

so where the scope of the earlier statute is broad but the

subsequent statutes more specifically address the topic at

hand. As we recognized recently in United States v.

Estate of Romani, “a specific policy embodied in a later

federal statute should control our construction of the

[earlier] statute, even though it has not been expressly

amended.” [523 U.S. 517, 530-531 (1998)].

Brown & Williamson, 538 U.S. at 143. The Government

cites many of these principles, U.S. Brief, at 26-27, but

draws from them the wrong conclusion. Instead of reading

§§ 107(a)(4)(B) and 113(f) in harmony, it would rely on

§ 113(f) to override the clear text of § 107(a)(4)(B) and strip

it of virtually all practical effect. This is not the type of

reconciling reauized under Branch.”

The Government makes four additional arguments based

on the perceived structural tension between §§ 107(a)(4)(B)

and 113(f). The Government first argues that allowing those

who may be liable to seek cost recovery under

§ 107(a)(4)(B) would undermine the three-year limitations

period for actions under § 113(f), as plaintiffs would invoke

§ 107(a)(4)(B) in order to take advantage of the more

* Even if this Court were to find that the text of §§ 107(a)(4)(B) and

113(f) cannot be harmonized, the better solution to this dilemma would

be to create an implied exception in § 107(a)(4)(B), not to effectively

repeal it. See United States v. Novak, 476 F.3d 1041, 1052, n.10 (9th Cir.

2007) (and cases cited therein).

generous limitations period applicable thereto. U.S. Brief, at

30; see also 42 U.S.C. § 9613(g)(2) and (3). This is a valid

argument for reading § 113(f) as providing those who have

claims thereunder with their sole remedy under CERC LA.”’

It is not, however, a basis for reading § 113(f) as repealing

§ 107(a)(4)(B) in situations in which § 113(f) does not apply.

The Government next argues that allowing those who

voluntarily clean up sites to pursue cost recovery would

undermine CERCLA’s contribution-protecticn scheme. U.S.

Brief, at 31. There is less here than meets the eye. Section

113(f)(2) gives those who settle with either EPA or a State

protection against “claims for contribution regarding matters

addressed in the settlement,” 42 U.S.C. § 9613(f)(2).

However, the very text of this provision reveals that this

protection was never intended to be all-encompassing. First,

the protection only extends to “matters addressed in the

settlement.” And second, it is unclear whether contribution

protection applies to claims other than those based in

contribution.” Moreover, once EPA gets involved at a site,

*” Both of the cases the Government cites in its brief involved plaintiffs

who had entered into consent decrees with the United States, and thus

came within the literal terms of § 113(f). See United Technologies Corp.

v. Browning-Ferris Indus., Inc., 33 F.3d 96 ([st Cir. 1994), and New

Castle County v. Halliburton NUS Corp., 111 F.3d 1116 (3d Cir. 1997).

**Notably, the Government concedes that in some cases it would be

unfair to characterize cleanup costs incurred by others as “matters

addressed,” and that the courts can review such characterizations as part

of their fairness analysis when the signatories to any such settlements

move to have them entered as consent decrees. EPA, Defining “Matters

Addressed” in CERCLA Settlements, at 4-5 (March 4, 1997); see also

Akzo, 30 F.3d at 767 (deeming work Akzo undertook prior to the entry of

the relevant consent decree not to be a “covered matter” thereunder).

*To date, the courts have extended contribution protection to other

common law claims, such as those based in indemnity. See, e.g., United

States v. Cannons Eng. Corp., 899 F.2d 79, 92-93 (1st Cir. 1990). It is

not clear, however, that the courts would do the same regarding statutory

claims. If, for example, a State and EPA were to consecutively undertake

remedial measures at a given site, there would appear to be nothing in §

113(f)(2) that would prevent EPA from seeking cost recovery from a

it can control what happens there. Section 122(e)(6)

precludes PRPs from undertaking remedial steps without

EPA’s approval once EPA begins a “remedial investigation

and feasibility study.” 42 U.S.C. § 9622(e)(6); see also E./.

DuPont De Demours and Co. v. United States, 460 F.3d 515,

539, n.28 (3d Cir. 2006) (“DuPont”).

The proper scope of contribution protection is not before

this Court. The Government has provided no evidence,

however, that allowing private-party cost recovery would

seriously undermine its ability to settle cases. As a practical

matter, § 122(e)(6) renders fanciful the specter of PRPs

running amok, filing claims that disrupt EPA settlements.

Third, the Government maintains that any application of

§ 107(a)(4)(B) would allow potentially-liable plaintiffs to

impose joint and several liability on other PRPs, in lieu of

the equitable allocation contemplated under § 113(f)." As

the court below correctly observed, however, the defendant

can readily avoid this possibility by filing a counterclaim

under § 113(f); by pleading and proving the plaintiffs

liability, such a defendant can transform the relevant action

into one in which equitable allocation applies. See Atlantic

Research Corp., 459 F.3d at 835; see also Consolidated

Edison, 423 F.3d at 100, n.9. Indeed, the Government has

conceded that this is how the statute works when it invokes

PRP who had entered into an administrative settlement with the State for

the State’s earlier cleanup measures. Because EPA’s claim would not be

for contribution, it would be facially beyond § 113(f)(2)’s protection.

This would be true even if the State settlement purported to cover the

entire cleanup effort (i.e., including EPA’s remedial actions).

those who may themselves bear liability are “quintessential” claims for

contribution. See, e.g., Bedford Affiliates, supra, 156 F.3d at 424. This,

however, is untrue. Again, as would be the case in a tort action, those

who engage in voluntary cleanups should be presumed to be non-liable

until their liability has been pleaded and proved through the mechanism

of a counterclaim. Read;fairly, both Black’s Law Dictionary and the

Restatement (Second) of Cons support this idea. See supra, n. 25.

§ 107(a)(4)(A) despite its own potential liability at a given

site. United States v. Chrysler Corp., 157 F.Supp.2d 849,

860 (N.D. Ohio 2001) (“Chrysler”). There is nothing in the

statute to suggest that the same dynamic could not also apply

to private-party plaintiffs.

Despite the Government’s concession in Chrys/ler that

counterclaims are a viable mechanism for addressing a

plaintiff's potential liability under the Act, it here disparages

that prospect by claiming that such an approach would

require defendant PRPs to bear any so-called “orphan

shares;” that is, the shares of other PRPs who are not before

the court (e.g., because they may be either defunct or

bankrupt). U.S. Brief, at 37-38. This is not the case. Once

the defendant files its counterclaim under § 113(f){1) and

establishes the plaintiff's liability, that provision expressly

instructs the court to equitably allocate the response costs

among the liable parties before it. 42 U.S.C. § 9613(f(1).

As at least four Circuits correctly have recognized, this can

include reallocating any orphan shares. See Centerior,

supra, 153 F.3d at 354 (§ 113(f) allows the district court to

“apportion the amount of the orphan shares among the -

parties”); Browning-Ferris Industries of Illinois v. Ter Maat,

195 F.3d 953, 957 (7th Cir. 1999) (explaining its holding

with a hypothetical indicating the same); Pinal Creek, supra,

118 F.3d at 303 (“Under § 113(f)(i), the cost of orphan

shares is distributed equitably among all PRPs, just as

cleanup costs are”); and Morrison Enterprises v. McShares,

Inc., 302 F.3d 1127, 1135 (10th Cir. 2002) (courts may

*' Surprisingly, despite its embrace of this approach when it is a plaintiff.

in this case the Government quotes a district court opinion for the

proposition that the cost-recovery-buffered-by-a-counterclaim dynamic

would result in “sequential, piecemeal litigation.” U.S. Brief, at 38

(quoting from Town of New Windsor v. Tesa Tuck, Inc., 919 F.Supp. 662.

681 (S.D.N.Y. 1996)). The Government offers no reason why the courts

are less capable of handling counterclaims than they are of handling

contribution claims against third-party defendants (which are explicitly

contemplated under § | 13(f)(1)).

require even non-culpable PRPs to bear some portion of the

orphan shares).**

The Government’s fourth structural argument is that

allowing cost-recovery claims would countermand the

restriction that claims under § 113(f) may be brought only

“during or following [a] civil action” under either §§ 106 or

107. U.S. Brief, at 32. This argument ignores that private

cost-recovery actions arise under a separate statutory section,

§ 107(a)(4)(B). While the Government tries to support its

theory by claiming that these are not wholly independent

types of relief, see id. at 33, n.14, this Court has foreclosed

that argument. Cooper Industries, 543 U.S. at 163, n.3

(deeming §§ 107(a)(4)(B) and 113(f) to be “clearly

distinct”). Further, as the United States appears to concede,

this argument vanishes if, as we argue, § 107(a)(4)(B) is

unavailable to those who have contribution claims under

§ 113(f). U.S. Brief, pp. 32-33.

Finally, it is worth noting the Government’s reading of

§ 107(a)(4)(B) would lead to a far greater structural problem

than any the Government posits in its brief. Although this

Court need not determine the nature of the claim, if any, that

those who receive unilateral orders under § 106 may have

against other PRPs, it seems likely that under the

Government's interpretation they would have none.” This is

so because, in all likelihood, EPA-issued unilateral orders

under § 106 are not “civil action{s] under section 9606 ... or

** The other cases cited by the Government are not to the contrary. In

Elementis Chromium L.P. v. Coastal States Petroleum Co., 450 F.3d 607,

612 (Sth Cir. 2006), the Fifth Circuit acknowledged that equitable

allocation is appropriate under § 113(f)(1). New Castle County v.

Halliburton NUS Corp., 111 F.3d 1116 (3d Cir. 1997), does not speak to

the possibility of equitable allocation in a case in which § 113(f)(1) is in

play; the quoted “strain[] logic” language addresses only the possibility

of a liable plaintiff recovering 100% of its cleatiup costs, id. at 1121.

* In this regard, this case is like Cooper Industries, in which this Court

declined to address this issue. See Cooper Industries, supra, 543 U.S. at

167, n.5.

under section 9607(a).”** If not, this would preclude the

availability of a contribution claim under § 113(f)(1);

additionally, the lack of a settkement would preclude any

application of § 113(f)(3)(B); and finally, according to the

Government, the order-recipient’s likely status as a liable

party would render § 107(a)(4)(B) unavailable. Thus, under

the Government’s reading, one who enters into either a

judicial or administrative settlement with EPA would have a

contribution claim under § 113(f)(3)(B), but one to whom

EPA issues a unilateral order would have no claim at all.*> It

seems highly unlikely that Congress would intend for EPA’s

choice as to how to exercise its enforcement discretion to

have such drastic consequences.”°

* Section § 122(g)(1) suggests as much by establishing a dichotomy

between “administrative or civil action under section 9606 or 9607.” 42

U.S.C. § 9622(g)(1). See also BP America Production Co. v. Burton,

127 S.Ct. 638 (2006) (deeming an administrative order not to be an

“action” under the Mineral Leasing Act).

** While a ruling in the Government's favor would lead to these

consequences, a ruling affirming the lower court’s result (i.e., that those

who voluntarily clean up sites have cost-recovery claims despite their

own potential liability) would not necessarily imply that those who clean

up pursuant to unilateral orders also have cost-recovery claims. Again,

this Court need not reach that issue.

considers that, given the frequent applicability of joint and several

liability under CERCLA, see, ¢e.g., O'Neil v. Picillo, 883 F.2d 176 (lst

Cir. 1989), cert. denied, 493 U.S. 1071 (1990), EPA often would have

the power to issue a unilateral order requiring one out of perhaps dozens

of PRPs to implement an entire remedy, even though these remedies

often involve tens of millions of dollars in response costs. Under EPA’s

reading, the recipient of such an order would have no way to spread the

costs of such a cleanup among the other jointly and severally liable

parties. EPA’s settlement leverage, which has always been great under

the statute, see, e.g., 42 U.S.C. § 9607(c)(3), will be truly breathtaking if

it can threaten at any time to issue any jointly and severally liable PRP a

unilateral order depriving it of any recourse against other PRPs.

3. CERCLA’s Purposes Argue Strongly in Favor of

Reading § 107(a)(4)(B) to Allow Those Who

Voluntarily Remediate Sites to Seek Cost Recovery

As the Government concedes, CERCLA’s central

purposes are to promote cleanup at contaminated sites and to

ensure that those deemed responsible bear the costs of those

cleanups. U.S. Brief, at 2. And as this Court recognized in

Key Tronic, in the private-party context these two purposes

are linked. See S511 U.S. at 819, n.13 (noting that the

purpose of providing for private-party cost recovery was “‘to

encourage private parties to assume the financial

responsibility of cleanup by allowing them to seek recovery

from others”).

_ The Government seems to believe that Congress sought

only to promote “government sponsored cleanup” under

government-sanctioned settlements. U.S. Brief, at 36-37 and

39. This view ignores both the text of § 107(a)(4)(B), which

expressly allows any nongovernmental entity to recover

response costs, and its legislative history. Additionally, it

discounts the pre-SARA case law, the absence of any

indication, textual or otherwise, that SARA intended to

repeal private-party cost recovery, and twenty years of

unanimous, post-SARA case law recognizing the nght of

private parties to bring these claims (albeit under various

legal theories).°’

In Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), a

plurality of this Court recognized the vital role that private-

party cleanups play under CERCLA:

” The first exception to this chain of case law was in DuPont, supra, 460

F.3d at 539, in which the Third Circuit became the only one of the four

Circuits that have reconsidered the cost-recovery issue since Cooper

Industries to adhere to its earlier view denying these plaintiffs a claim.

Compare Atlantic Research, 459 F.3d at 834-835, Consolidated Edison,

423 F.3d at 100, and Metropolitan Water, 473 F.3d 834-837.

Congress did not think it enough . . . to permit only the

Federal Government to recoup the costs of its own

cleanups of hazardous-waste sites; the Government’s

resources being finite, it could neither pay up front for all

necessary cleanups nor undertake many different projects

at the same time. Some help was needed, and Congress

sought to encourage that help by allowing private parties

who voluntarily cleaned up hazardous-waste sites to

recover a proportionate amount of the costs involved

from other potentially responsible parties.

Id. at 21-22.

By any measure, Congress’s plan to promote cleanup by

empowering proactive parties to spread some of the cleanup

costs to other PRPs has been effective. According to our

research, nearly 60 percent of the CERCLA cases litigated in

the federal courts between 1995 and 2000 involved cleanups

that the government would characterize as “unsupervised,”

U.S. Brief, at 39; ie., they were not the result of either

government-generated lawsuits or judicial or administrative

settlements of the type that would trigger either § 113(f)(1)

or (f(3)(B).*® Even this Court has had significant exposure

to such cases: Key Tronic, Cooper Industries and this case

all involved cleanups that would not meet the Government’s

threshold.” The Government’s interpretation would

undermine CERCLA’s cost-sharing goal in such cases.

*® As indicated in n.12, supra, we reviewed all decisions CERCLA

decisions reported in Westlaw that were decided between 1995 and 2000.

We analyzed these decisions, which involved 364 contaminated sites,

specifically to see whether a § 113(f)-triggering action had occurred. In

210 of the cases, one had not. This does not mean that these cleanups

were unsupervised. In the majority of these cases, the party cleaning up

the site had worked under the informal supervision of a State agency.

* See Key Tronic, 511 U.S. at 812 (Key Tronic was seeking, inter alia,

$1.2 million for costs it had incurred without any consent agreement or

lawsuit pending against it); Cooper Industries, 543 U.S. at 164 (Aviall

had spent S5 million despite the absence of any “judicial or

Even this picture, however, does not begin to convey the

full impact that CERCLA has outside of the realm of what

the Government considers “supervised” cleanups. As the

authors of a leading casebook have noted, while EPA and the

States focus on the highest-priority sites, private parties often

deal with smaller-scale contamination problems. Miller and

Johnston, The Law of Hazardous Waste Disposal and

Remediation, 2d ed., p. 564 (Thompson/West, 2005).”°

These private-party actions “have the effect of dramatically

expanding the scope of the CERCLA program.” /d. at 563.

While responsibility for the vast majority of these cleanups

may be resolved without resort to litigation, CERCLA still

drives them; the underlying threat of a CERCLA action is

what typically convinces those responsible to come to the

table. As the author of the leading environmental treatise

wrote 13 years ago,

In thirteen short years, [CERCLA] has thoroughly

revolutionized commercial property management and

exchange in the United States. More than any other

single enactment, section 107 has brought environmental

law into the blue-ribbon law firms of every major city.

In no small way, this statute has transformed the practice

of environmental law from fringe novelty to mainstream

reality.

William H. Rodgers, the Seven Statutory Wonders of U.S.

Environmental Law: Origins and Morphology, 27 Loy. L.A.

L. Rev. 1009, 1012 (1994).

administrative measures to compel cleanup”); and At/antic Research, 459

F.3d at 829 (Atlantic engaged in a voluntary cleanup).

*” EPA can only undertake “remedial action” at sites that are on the

National Priorities List, a list of the most contaminated sites in the

country. See 40 C.F.R. § 300.425(b). There are currently approximately

1,246 sites on the NPL. See http://c gov! “urs

(search conducted on April 2, 2007). By contrast, there are an estimated

130,000 to 425,000 potential sites contaminated with hazardous waste.

See U.S. General Accounting Office, Extent of Nation's Potential

Hazardous Waste Problem Still Unknown 3 (Dec. 1987).

The Government’s reading of § 107(a)(4)(B) would

thwart both of CERCLA’s central purposes. By reducing the

ability of private parties to spread the costs of their potential

cleanup measures among other responsible parties, the

Government’s interpretation would dramatically reduce their

incentive to engage in these cleanup activities, and fewer

cleanups would occur. Where private parties did voluntarily

undertake cleanup measures, the #Government’s

interpretation would preclude them from requiring others to

bear their fair share of these cleanup obligations.

Of the four Courts of Appeal that have reconsidered

private-party cost recovery in the wake of Cooper

Industries, three, including the court below, have reversed

course to find that even potentially-liable parties have such

claims. See Atlantic Research, 459 F.3d at 834-835,

Consolidated Edison, 423 F.3d at 100, and Metropolitan

Water, 473 F.3d 834-837; but see DuPont, 460 F.3d at 539.

The courts have taken this remarkable step because, upon

reconsideration, they have realized that the existence of such

a right is both commanded by the statute’s language and

fully consistent with its purposes. As a matter of first

impression, this Court should reach the same conclusion.

CONCLUSION

The judgment of the Court of Appeals should be

affirmed.

Respectfully submitted,

Jerry S. Phillips

Counsel of Record

Loeb & Loeb LLP

10100 Santa Monica Boulevard,

Suite 2200

Los Angeles, CA 90067-4120

(310) 282-2228

APPENDIX

Description of Amici Curiae

The Natural Resources Defense Council is one of the

nation’s leading environmental organizations, with 1.2

million members and supporters. Its mission is to safeguard

the Earth: its people, its plants and animals and the natural

systems on which all life depends.

Craig N. Johnston is a professor of law at Lewis & Clark

Law School, where he teaches courses in environmental law

and hazardous waste law, among other courses. Prof.

Johnston also has coauthored casebooks in both of these

subject areas. |

William F. Funk is a professor of law at Lewis & Clark Law

School, where he teaches environmental law and other

courses. Prof. Funk has coauthored casebooks in both

environmental law and administrative law.

Martha L. Judy is an associate professor of law at Vermont

Law School, where she teaches courses on CERCLA and

other hazardous waste related_matters. Professor Judy also

directs the law school’s mone. aig

Nina A. Mendelson is a professor of law at the University of

Michigan, where she teaches environmental law, among

other courses. Prof. Mendelson’s other research and

teaching interests include administrative law, statutory

interpretation, and the legislative process.

Jeffrey G. Miller is a professor of law at Pace Law School,

where he teaches numerous environmental courses, including

one on hazardous waste law. He has also coauthored a

casebook on hazardous waste law.

Patrick A. Parenteau is a professor of law at Vermont Law

School, where he directs the school’s Environment and

Natural Resources Law Clinic. Prof. Parenteau also teaches

many courses, including one on environmental litigation.

Zygmunt J.B. Plater is a professor of Law at Boston College

Law School, where he teaches many course on

environmental law. Prof. Plater has also coauthored a

casebook on environmental law. ke

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.