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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0501%3A24

## Record

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

## Text

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]
|

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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

iV

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

Vv
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
© SRDERIESA, Go UBL. © FE eee i ivccccesssccscsscessenscesseteniiiamasel 4
Fee ae Shins SP Dei cccccscceinsesenncscennsnmpeseusnomiatt passim
SB TEDEMIZD, Go UBL. © DOTA ccceccecesscctssssosevosenenssianes 22
© TUDES, So UBL... B TC PERG cccncesccssccsiccssocsonsencnsiiiais 22
§ 122(eK6), 42 U.S.C. § D6ZZ(ENG).......crevcccessevesservorseseeseees 23
© TERMITE), SS U.S. 6 TRIED cccenccsscscescensosecnsnsssntsonsa 26
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 + 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.

5

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

7

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)).

8

(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.”

9

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

e

.~ — -

* 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).

10

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).

1]

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).

12

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).

13

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.

14

“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).

15

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

16

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).

17

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.

18

(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

19

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.

20

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”).

21

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).

22

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

23

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).

© Other courts have raised a concern that cost-recovery claims filed by
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.

24

§ 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)).

25

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.

26

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.

© The jarring nature of this anomaly is brought into focus when one
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.

27

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.

28

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

29

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).

30

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

31
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.

32

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0501%3A24. Public record. Not legal advice.