Amicus Curiae Brief — United States v. Atlantic Research Corp.
Supreme Court brief2007
Ask Donna
What actually matters in this document.
Text
» qsb B -
4 Pp ‘q)
f
NO. 06-562
a
IN THE SUPREME COURT OF
THE UNITED STATES
UNITED STATES.
Petitioner,
Vv
ATLANTIC RESEARCH CORPORATION,
Respondent.
ON WRIT OF CERTIORAR! TO THE UNITED STATES
CouRT OF APPEALS FOR THE EIGHTH CIRCUIT
BRIEF OF AMICI CURIAE OF THE STATES OF
WASHINGTON, ALABAMA, ALASKA, ARKANSAS,
COLORADO, CONNECTICUT, FLORIDA, GEORGIA,
HAWAII, IDAHO, ILLINOIS, INDIANA, LOWA, KENTUCKY,
LOUISIANA, MAINE, MARYLAND, MASSACHUSETTS,
MICHIGAN, MINNESOTA, MISSISSIPPI, MISSOURI,
MONTANA, NEVADA, NEW HAMPSHIRE, NEW JERSEY,
NEW MEXICO, NEW YORK, NORTH CAROLINA, NORTH
DAKOTA, OHIO, OREGON, RHODE ISLAND, TENNESSEE,
TEXAS, UTAH, VERMONT, AND WISCONSIN, AND THE
DISTRICT OF COLUMBIA, AND THE COMMONWEALTH OF
PUERTO RICO IN SUPPORT OF RESPONDENT
ROBERT M. MCKENNA
Attorney General
Michael L. Dunning Maureen Hart
Assistant Attorney General Solicitor General
Jay D. Geck* 1125 Washington Street Sk
Deputy Solicitor General Olympia, WA 98504-0100
* Counsel of Record 360-753-6200
Counsel for Amici Curiae
TROY KING
Attorney General
State of Alabama
TALIS J. COLBERG
Attorney General
State of Alaska
DUSTIN McDANIEL
Attorney General
State of Arkansas
JOHN W. SUTHERS
Attorney General
State of Colorado
RICHARD BLUMENTHAL
Attorney General
State of Connecticut
LINDA SINGER
Acting Attorney General
District of Columbia
BILL MeCOLLUM
Attorney General
State of Florida
THURBERT EF. BAKER
Attorney General ~
State of Georgia
MARK J. BENNETT
Attorney General
State of Hawan
LAWRENCE G. WASDEIN
Attorney General
State of Idaho
LISA MADIGAN
Attorney General
State of IHhinois
STEVE CARTER
Attorney General
State of Indiana
TOM MILLER
Attorney General
State of lowa
GREGORY D. STUMBQ
Attorney General
Commonwealth of Kentucky
CHARLES C. FOTI, JR.
Attorney General
State of Louisiana
STEVEN ROWE
Attorney General
State of Maine
DOUGLAS F. GANSLER
Attorney General
State of Maryland
MARTHA COAKLEY
Attorney General
State of Massachusetts
-
MICHAEL A. COX
Attorney General
State of Michigan
LORI SWANSON
Attorney General
State of Minnesota
JIM HOOD
Attorney General
State of Mississippi
JEREMIAH W. NIXON
Attorney General
State of Missouri
MIKE McGRATH
Attorney General
State of Montana
CATHERINE CORTEZ
MASTO
Attorney General
State of Nevada
KELLY A. AYOTTE
Attorney General
State of New Hampshire
STUART RABNER
Attorney General
- State of New Jersey
GARY K. KING
Attorney General
State of New Mexico
ANDREW M. CUOMO
Attorney General
State of New York
ROY COOPER
Attorney General
State of North Carolina
WAYNE STENEHJEM
Attorney General
State of North Dakota
MARC DANN
Attorney General
State of Ohio
HARDY MYERS
Attorney General
State of Oregon
SALVADOR J.
ANTONETTI STUTTS
Solicitor General
Commonwealth of Puerto Rico
PATRICK LYNCH
Attorney General
State of Rhode Island
ROBERT E. COOPER, JR.
Attorney General
State of Tennessee
GREG ABBOTT
Attorney General
State of Texas
MARK L. SHURTLEFF
Attorney General
State of Utah
WILLIAM H. SORRELL
Attorney General
State of Vermont
J.B. VAN HOLLEN
Attorney General
State of Wisconsin
QUESTION PRESENTED
Section 107(a) of the ‘Yomprehensive
Environmental Response, Compensation, and
Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675,
imposes liability on a number of persons for costs of
cleaning up property contaminated by hazardous
substances. Can a person who is liable under
Section 107(a) bring a cause of action against
another liable person to recover “necessary costs of
response” as provided for in Section 107(a)(4)(B),
42 U.S.C. § 9607(a)(4)(B)?
IIT.
IV.
INTEREST OF AMICI CURIAE
SUMMARY OF ARGUMENT
ARGUMENT
A. Section 107(a)(4)(B) Provides A Right
TABLE OF CONTENTS
Of Cost Recovery For Liable Persons
Who Voluntarily Incur Response Costs
Denying Recovery Of Response Costs
Under Section 107(a)(4)(B) Will
Frustrate Voluntary Cleanups And
Defeat The Core Purposes Of
SR incnsivinisnnnvieeisiniicinigummntiinantiaiia
CERCLA Should Be Interpreted To
Avoid Creating A Serious Tension
Within The Federal Government If
Section 113(f) Is The Only CERCLA
Remedy For Liable Persons ..................
. State Discretion To Direct Limited
Resources Will Be Undermined If Cost
Recovery Requires A Contribution
Right Under Section 113(f) ...................
CONCLUSION
ee eee eee ee ee eee eee eee ee eo
COREE Oe
in
TABLE OF AUTHORITIES
Cases
Atlantic Research Corp. v. United States,
459 F.3d 827 (8th Cir. 2006)............00..0....
Barnhardt v. Thomas,
re
Block v. North Dakota,
nee
Bowen v. Georgetown Univ. Hosp.,
I GE TT iinccnntascesstccdicousredossesoess
Brown v. Gen. Servs. Admin.,
rn eraieiiotatieanassccponsesssene
Chevron, U.S.A., Inc. v. Natural Res.
Def. Coun., Inc.,
I I Ss icnensacpenasesspescosusoonesnees
City of Rancho Palos Verdes v. Abrams,
ey ET cinntecredssccnessrncescsosovevesesss
Connecticut Nat'l Bank v. Germain,
I , SE EE icsaptinecesstadsctevesessusseussees
Consol. Edison Co. of New York, Inc. v.
UGI Utils., Inc.,
423 F.3d 90 (2d Cir. 2005) ...................0000
Consumer Prods. Safety Comm'n v.
GTE Sylvania, Inc.,
Rin i ccesctnestonsseniinunscecsooees
1V
Cooper Indus., Inc. v. Aviall Servs., Inc.,
543 U.S. 157 (2004)....0000000.0.. 6, 11, 12, 23, 24, 27
Crowley Marine Servs., Inc. v. Fednav, Ltd.,
915 F. Supp. 218 (E.D. Wash. 1995) ....0000..000....... 28
EI. DuPont De Nemours & Co. v. United States,
460 F.3d 515 (3d Cir. 2006) «0.20000 ..00.. cece eee 10
Harrison v. PPG Indus., Inc.,
St & 5. REC ee nee ene ennS Darn 10
Key Tronic Corp. v. United States,
511 U.S. 809 (1994)............00.. eee 10, 11, 26
Meghrig v. KFC Western, Inc.,
Se SIR nsisi-cSiscerissapecsicennibeiiniicscimntnsiaaiaabiiia 18
Metro. Water Reclamation Dist. of Greater
Chicago v. North American Galvanizing &
Coatings, Inc.,
473 F.3d 824 (7th Cir. 2007)............... 10, 11, 19, 20
New York v. EPA,
443 F.3d 880 (D.C. Cir. 2006) 200.000.0000... cece eeeeeeeeeee 10
Pennsylvania v. Union Gas Co.,
491 U.S. 1 (1989), overruled on other grounds,
Seminole Tribe of Florida v. Florida,
iii clalibielactillbiaitenila 15, 28
Prieser v. Rodriguez,
ee iii han iicnintindanitinitileieiilimmeninald 13
Regional Airport Auth. of Louisville v.
LFG, L.L.C:,
460 F.3d 697 (6th Cir. 2006).....................-sssecceeees 22
Tenaya Assocs. Ltd. P’ship v. U.S. Forest Serv.,
1995 WL 433290 (E.D. Cal. 1993) ....................... 28
United States v. Bestfoods,
I al elemial 18
Washington State Dep't of Social & Health
Servs. v. Guardianship Estate of Keffeler,
Be ee re i icaiecneitanaiapnenndiomaintiin 16
Statutes
ry ae inceiceineineatcadticebhcinnatclceneeiaileiiteiiteeisiiadiiianion 13, 14
Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA),
(42 U.S.C. §§ 9601-9675) ........ccccccccececeeceecescesceeeeeees 1
CERCLA § 101(21)..0.......0.0000000000-. oR et aS eee 10
eee ene TEES 27
+ OED |, nae 2
+ + YE” "| | aaa TEED 2
I a ciinccasressnccibiininecsinnnmann 6, 13, 23, 24
CERCLA § 107 oo......ecccccceee cesceeeeeeeees 6, 9, 11, 23, 24
CERCLA § 107(a).............. 4—6, 8, 10-15, 20, 23-26
CERCLA § 107(a)(1)-(4).....0..0.c00000. A, 5, 7-9, 11, 20
ae Se een s
CERCLA § 107(a)(4)(A) 0.0... -eeceeeeeeee 4, 7-10, 15, 20
CERCLA § 107(a)(4)(A)-(D) -..0.. 20. ccccccecceeesceseeseeees 7
CERCLA § 107(a)(4)(B) ........ 1, 3-14, 16-18, 21-26
CERCLA § 107(b).0.0.....ccccecceceeeeeeeees 4, 11, 12, 20, 24
vl
|, EINER erie eae Sees ane ree we 13
CERCLA § 113(f)................... 5, 6, 12-14, 20, 22-26
CERCLA § 113(f)(3)(B)................... cee ceeeeeeees 23, 28
NT I iis ccnisseeriiceesdninnisipneniamncndadal 14
i aint 25
SAIN 0 I oiincecircinenscnnsncsesecentncninsenis 6, 14-16
I ii le 28
ES ee eae eae en me 2
Wash. Rev. Code § 70.105D.080...........0...........000...2. 28
Regulations
40 C.F.R. pt. 300, subpt. H. (2006) ..........02- ee. 17
eR EE eee 17
ee I se iiinitttainsnsscennserterinisastagnciiinepeniieds 18
a as Oe I ccttectcccccceenitatininnneimitininians 22
40 C.F.R. §§ 300.500—-300.525 (2005) ........... ee. 2
Wash. Admin. Code 173-340-320 ....0000.0. eee 26
Other Authorities
Federal Register
EPA, Interim CERCLA Settlement Policy,
50 Fed. Reg. 5034 (Feb. 5, 1985) ..............0........... 17
Executive Order No. 12580,
52 Fed. Reg. 2923 (Jan. 23, 1987) ......................005- 2
vu
National Oil and Hazardous Substances
Pollution Contingency Plan,
55 Fed. Reg. 8666 (Mar. 8, 1990)...................
Law Review Articles
ABA, Luis Nido & Jason Hutt, Voluntary
Cleanups-Alive after Aviall?
20 Nat. Resources & Env't (Fall 2005)...........
Calle Campbell, Note, Cooper Industries,
Inc. v. Aviall Services, Inc.: A Superfast
End to Voluntary Cleanups and
Efficient Environmental Management,
13 Southeastern Envtl. L.J. 203
REE a er wee ea ee
Donn L. Calkins, CERCLA Contribution
Actions After Cooper v. Aviall,
34 Colo. Law. 99 (Sept. 2005) ..............00000......
Joseph Ferrucci, No Contribution
Claims for Voluntary Cleanups of
Superfund Sites: The Troubling
Supreme Court Decision in Cooper
Industries v. Aviall Services,
12 Hastings W.-N.W. J. Envtl. L. &
ES RESET a a
Michael P. Vandenbergh, The Private
Life of Public Law,
105 Colum. L. Rev. 2029 (2005).......0.0.0.00.......
Legislative Materials
H.R. Rep. No. 96-1016,
reprinted in 1980 U.S.C.C.A.N. 6119.............
siege 19
owe 18
vill
Senate Journal, 24th Leg., 2nd Sess., at
2189-90 (Alaska 2006), available at
http://www.legis.state.ak.us/basis/get_jr
n_page.asp’session=24&bill=HB269&jr
n=2189&hse=S (visited Apr. 4, 2007) ..0....0......
Websites
Department of Defense’s 2006 Defense
Environmental Restoration Program
Report, available at https://www.denix.osd
-mil/denix/Public/News/OSD/DEP2006/dep
arc2006.html (visited Apr. 4, 2007)..................
EPA, The Facts Speak for Themselves: A
Fundamentally Different Superfund
Program (Nov. 2006), available at
http://www.epa.gov/superfund/whatissf/sf_
fact4.pdf (visited Apr. 4, 2007) ..................000002.
Letter from Christine Todd Whitman, EPA,
to James M. Jeffords, United States
Senate (Oct. 4, 2001) available at
http://www.epa.gov/compliance/
federalfacilities/(visited Apr. 4, 2007) ..............
Model Toxic Control Accounts Fiscal
Year 2005 Annual Report
(Oct. 2006), available at http://www
.ecy.wa.gov/biblio/0509095. html
OU i crmsiatonsiuiies
Wisconsin Dep't of Natural Res., Voluntary Party
Liability Exemption available at
http://www.dnr.state.wi.us/org/aw
/rr/hability/purchasers_ 0.html
ED IN Si, CII ac. . vicsntsnsisndeniuminevectievateeneeniah
I. INTEREST OF AMICI CURIAE
The State of Washington, together with
thirty-seven other Amici Curiae States, the District
of Columbia, and the Commonwealth of Puerto
Rico, respectfully urge affirmance of the Eighth
Circuit Court of Appeals decision in Atlantic
‘Research Corporation v. United States, 459 F.3d 827
(8th Cir. 2006), holding that Section 107(a)(4)(B)
of the Comprehensive Environmental Response,
Compensation, and _ Liability Act (CERCLA),
42 U.S.C. §§ 9601-9675', provides a right of cost
recovery for parties liable under CERCLA who have
voluntarily cleaned up contamination.
There are thousands of sites across the
country contaminated by hazardous’ substances
harmful to human health and the environment. The
Environmental Protection Agency (EPA) estimates
that there are approximately 450,000 commercial
and industrial cleanup sites nationwide.? By
way of example, 3,138 sites are listed on the
State of Washington’s Confirmed and Suspected
Contaminated Sites List and 1,249 confirmed sites
! To provide references consistent with those in the
Brief For The United States, the Amici States’ brief uses
CERCLA citations rather than United States Code citations.
Thus, 42 U.S.C. § 9601 is CERCLA § 101 or Section 101.
2 Information regarding the number of contaminated
sites in the United States is available via EPA’s website. EPA,
The Facts Speak for Themselves: A Fundamentally Different
Superfund Program (Nov. 2006), available at http://www
epa.gov/superfund/whatissf/sf_fact4 pdf (visited Apr. 4, 2007).
have been prioritized by the State.* See also infra
note 21 (discussing the number of sites reported by
the Department of Defense).
Congress passed CERCLA in 1980 to address
the legacy of this contamination. CERCLA gives the
States important roles in addressing contaminated
sites. States participate in the planning, seiection,
and implementation of remedial actions. CERCLA
§121(); 40 C.F.R. §§ 300.500-300.525 (2005).
For example, EPA may not take remedial action
under CERCLA unless the State in which a release
occurs enters into a contract or cooperative
agreement with the federal government. CERCLA
§ 104(c)(2)-(3). EPA may defer listing an eligible site
on the National Priority List if a State is conducting
cleanup or another party is conducting cleanup
under a State’s oversight. CERCLA § 105(h)(1).
This congressional recognition of the role of States in
the cleanup of contaminated sites supports strong
consideration of the views of the Amici States. See
also Brief For The United States (U.S. Br.) 4 n.3
(acknowledging the role of the States in providing
review and oversight at many CERCLA sites).
The Amici States work on the front lines with
regard to cleaning up contaminated property,
+ Information regarding Washington sites is available at
http://www .ecy.wa.gov/programs/tcp/cscs/cscspage.htm. See also
Model Toxic Control Accounts Fiscal Year 2005 Annual Report
(Oct. 2006), available at http://www.ecy.wa.gov/biblio/050
9095. htm] (visited Apr. 4, 2007).
‘ The President delegated most of his CERCLA
authority to the EPA via Executive Order No. 12580, 52 Fed.
Reg. 2923 (Jan. 23, 1987). 2
improving local communities, and protecting the
public health. Amici States are therefore vitally
interested in ensuring that CERCLA is properly
construed to promote its goal of expeditious cleanup
action with respect to as many contaminated sites as
practicable, and to avoid unnecessary and inefficient
use of limited state resources. These state inierests:
would be compromised if, as the United States urges,
CERCLA’s cost recovery remedies are unavailable to
potentially hable persons who take appropriate
voluntary response actions to address contamination.
The State of Washington, for example, oversees
many cleanups using administrative orders and
consent decrees. But the majority of hazardous
waste sites in Washington are cleaned voluntarily by
potentially liable parties using expert contractors
applying state and federal cleanup standards.’ If
CERCLA is not construed to include the incentive of
reasonable recovery of cleanup costs in the common
scenario where a liable party voluntarily incurs costs
of cleanup, then contaminated property will remain
unused and unproductive, and will endanger human
health and the environment for a longer time.
Il. SUMMARY OF ARGUMENT
The United States’ contention that
Section 107(«)(4)(B) allows only “innocent” persons to
5 See also, e.g., Senate Journal, 24th Leg., 2nd Sess., at
2189-90 (Alaska 2006), available at http://www _legis.state.
ak.us/basis/get_jrn_page.asp?session=24&bill=HB269&)jrn=218
9&hse=S (visited Apr. 4, 2007) (“Voluntary cleanups form the
vast majority of cleanups conducted in the state of Alaska.”);
Wisconsin Dep't of Natural Res., Voluntary Party Liablity
Exemption available at http://www.dnr.state.wi.us/org/aw
/rr/liability/purchasers_0. htm] (visited Apr. 4, 2007).
recover response costs voluntarily incurred at a
contaminated site is incompatible with CERCLA’s
plain language and statutory scheme. The United
States argues that “any other person” refers to any
person not listed in Section 107(a)(1) through (4).
The United States’ argument asks this Court to
ignore the far more obvious meaning of the words
’ “any other person” as referring to persons other than
the governmental parties identified by the
immediately preceding subsection.
Section 107(a)(4)(A) provides that the United
States,.a State, or an Indian tribe may recover their
cleanup costs from persons liable under Section
107(a)(1) through (4). Section 107(a)(4)(B) then
provides that “any other person” may similarly
recover cleanup costs from persons hable under
Section 107(a)(1) through (4). In context, “any other
person” in Section 107(a)(4)(B) does not mean only
“innocent” persons, as the federal government
argues; rather, it means any persons other than
those mentioned in the _ preceding Section
107(a)(4)(A). This construction of Section
107(a)(4)(B) is consistent with this Court’s emphasis
in other cases that the most sensible reading of
referential words like “any other person” is that they
refer to the last antecedent. Here, Section
107(a)(4)(B) refers to, and thus differentiates,
response costs incurred by government persons from
response costs incurred by non-government persons.
Moreover, liability under Section 107{a) 1s
“subject only to the defenses” set forth im Section
107(b). Those defenses allow the United States or
other persons to avoid liability by showing that
another person was the “sole cause” of the release.
The United States’ argument essentially creates a
new defense to liability, where it avoids liability by
proving that the plaintiff seeking cost recovery is
partly hable for the site. The United States’
argument that Section 107(a)(4)(B) does not apply
because a contribution action under Section 113(f) is
the exclusive means of cost recovery for liable
parties, also ignores the introduction language of
Section 107(a) providing that it applies
“notwithstanding any other provision or rule or law.”
Finally, the United States’ argument is also contrary
to EPA’s past interpretations, which never limited
the right to seek response costs to “innocent” persons
as now urged by the United States.
In addition to straining the = statutory
language, the United States’ construction frustrates
the purposes of CERCLA previously recognized by
this Court—to promptly clean up contaminated sites
and to ensure that all liable persons pay for the
cleanup. A reading that only “innocent” persons may
recover their response costs decreases the number of
contaminated’ sites that will be addressed
voluntarily. Construing Section 107(a)(4)(B) to
provide a cost recovery claim for all persons who
voluntarily address contamination, including persons
who may be lable under Section 107(a)(1) through
(4), promotes more expeditious cleanup and fulfills
CERCLA’s purpose to impose costs broadly.
The United States’ interpretation of Section
107(a)(4)(B), if accepted, also would create a serious
tension for the United States in its dual role as hable
party and enforcement agency. According to the
United States, a hable person’s CERCLA remedy is
limited to contribution under Section 113(f). But as
this Court ruled in Cooper Industries, Inc. v. Aviall
Services, Inc., 543 U.S. 157 (2004), Section 113(f)
apples only when persons are subject to suits under
Sections 106 and 107, or settle their liability with the
state or federal government. As the court below
recognized, because the United States has control
over such civil suits and settlements, the United
States could exercise its enforcement discretion to
insulate liable federal agencies from CERCLA
contribution claims. This result not only creates an
odd tension, it conflicts with Section 120(a)(1) where
Congress provided that the United States “shall be
subject to, and comply with, [CERCLA] .. . to the
same extent” as any private party.
Finally, the United States cannot support its
argument that cost recovery by a liable party under
Section 107(a) would come at the expense of
government powers or priorities. Limiting cost
recovery to Section 113(f), however, would affect the
ability of Amici States to focus their limited
resources on the most significant contaminated sites.
A voluntary cleanup may be financially feasible only
if the party who incurs costs knows that he or she
can recover costs from other lable parties. If cost
recovery is not available under Section 107(a)(4)(B),
parties ready to conduct voluntary cleanups may
refuse and press for state enforcement actions in
order to have Section 113(f) contribution rights. As a
result, Amici States will be pressured to shift limited
legal and program staff resources to lower priority
sites, or risk losing the benefit of prompt voluntary
cleanups consistent with the national contingency
plan.
Il. ARGUMENT
A. Section 107(a)(4)(B) Provides A Right Of
Cost Recovery For Liable Persons Who
Voluntarily Incur Response Costs
Section 107(a)(4)(A) through (D) identify who
may recover various cleanup related costs and
damages from hable persons. Section 107(a)(4)(A)
provides that persons identified in Section 107(a)(1)
through (4) are hable for “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.”
The immediately following § subsection, Section
107(a)(4)(B), authorizes recovery of “any other
necessary costs of response incurred by any other
person consistent with the national contingency
plan.”
The principal question in this case is whether
the phrase “any other person” in Section 107(a)(4)(B)
refers to persons other than those referenced in the
immediately preceding subsection, i.e., “the United
States Government or a State or an Indian tribe,” as
the Amici States submit; or whether “any other
person” refers to a far narrower class of persons, 1.e.,
only non-liable private parties, as the United States
contends. The United States describes the narrow
class of “other persons” who have a cause of action
under Section 107(a)(4)(B) as “innocent” parties.
U.S. Br. 16.
1. The United States’ argument should be
rejected based on fundamental principles of statutory
construction beginning with the principle “that the
starting point for interpreting a statute is the
language of the statute itself.” Consumer Prods.
Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102,
108 (1980). The language at issue, read naturally,
means that taken together, Section 107(a)(4)(A) and
(B) include all persons who have incurred necessary
response costs.
Section 107(a) begins with subsections (1)
through (4) describing four types of liable persons.
Any and all of these four types of persons “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;
“(B) any other necessary costs of
response incurred by any _ other person
consistent with the national contingency plan;
“(C) [certain damages to _ natural
resources]; and
“(D) [certain health assessments].”
CERCLA § 107(a)(4) (emphasis added).®
The natural reading of the phrase “any other
person” who “incurred” costs is that it refers to
persons other than these mentioned in_ the
immediately preceding subsection (A), 1e., the
United States government or a State or an Indian
6 The codification suggests that clauses (A) through (D)
are subsections of Section 107(a)(4). However, the text unam-
biguously shows that the liabilities in (A) through (D) apply to
each of the persons described in Section 107(a)(1) through (4).
tribe. These governmental actors are each likely to
incur response and remediation costs, but they are
not the only parties who may incur such costs.
Subsection (B) therefore addresses “any other
person” who incurred response costs and similarly
provides a “cause of action” against liable persons
identified in Section 107(a)(1) through (4).
Part of considering plain language is this
Court's recognition that “‘[rjeferential and qualifying
words and phrases, where no contrary intention
appears, refer solely to the last antecedent.”
Barnhardt v. Thomas, 540 U.S. 20, 26 (2003)
(quoting 2A N. Singer, Sutherland on Statutory
Construction § 47.33, p. 369 (6th rev. ed. 2000)). As
recognized in Barnhardt, this rule is not absolute.
But here, no other indicia of meaning in Section 107
overcome this rule. Moreover, Section 107(a)(4)(B)’s
reference to the immediately preceding subsection is
confirmed by the parallel structure of the two
subsections—one imposes liability for “costs”
incurred by government persons and the next
imposes liability for “any other” costs incurred by
“any other persons.”
2. It is difficult to imagine broader words
than used in Section 107(a)(4)(B), which provides a
cause of action for “any other necessary costs of
response incurred by any other person.” (Emphasis
added.) This is a natural and expansive description
of response costs not covered by Section
107(a)(4)(A).’ —s It’: contradicts common sense for
—a
’ A fair reading of “any” also supports the Amici States’
reading that all CERCLA “persons” may seek recovery under
Section 107(a)(4)(B). See New York v. EPA, 443 F.3d 880,
10
Congress to use such expansive words if, as the
United States contends, Congress meant to limit
who could seek response costs from other liable
persons. Use of the expansive words “any other
person” therefore refers to all “persons” within
CERCLA’s definition of person, other than those
persons specifically identified in Section 107(a)(4){A).
See CERCLA § 101(21).
This natural reading of Section 107(a) led the
Seventh Circuit to reach the same conclusion in
Metropolitan Water Reclamation District of Greater
Chicago v. North American Galvanizing & Coatings,
Inc., 473 F.3d 824 (7th Cir. 2007). The Seventh
Circuit opinion thoroughly examines CERCLA and
the Superfund Amendments and Reauthorization
Act (SARA), relying on this Court’s statement in
Key Tronic Corp. v. United States, 511 U.S. 809, 818
(1994), that Ҥ 107 unquestionably provides a cause
of action for private parties to seek recovery of
cleanup costs.” Metro. Water, 473 F.3d at 831
(quoting Key Tronic, 511 U.S. at 818). The opinions
of the Seventh, Second®, and Eighth Circuits each
885-86 (D.C. Cir. 2006) (applying this Court's precedents for
the propositions that each word in a statute must be given
effect and “any,” read naturally, has expansive meaning); see
also Harrison v. PPG Indus., Inc., 446 U.S. 578 (1980) (‘any
other action” language in the Clean Air Act is broad and
encompasses any final action by the EPA Administrator,
similar to those enumerated in preceding provisions).
8 See Consol. Edison Co. of New York, Inc. v. UGI Utils.,
Inc., 423 F.3d 90, 99-100 (2d Cir. 2005) (finding no basis for
reading into Section 107(a)(4)(B) a requirement that the person
seeking cost recovery be an “innocent” party); cf. E.1. DuPont De
Nemours & Co. v. United States, 460 F.3d 515 (3d Cir. 2006)
(split panel decision applied but would not reconsider Third -
provide sound reasons to reject the United States’
argument that “any other person” under Section
107(a)(4)(B) bars a Section 107 cost recovery action
_by hable persons identified in Section 107{a)(1)
through (4).9
3. The United States’ reading of the words
“any other person” in Section 107(a)(4)(B) is also at
odds with the language of Section 107, which strictly
limits the defenses available in a cost recovery
action. Under Section 107(a), a person is liable
“subject only to the defenses set forth in subsection
(b) of this section.” Section 107(b) provides a defense
to “a person otherwise hable” if the person proves it
was not negligent and the sole cause of the release of
contamination was the act of an independent third
party, an act of God, an act of war, or a combination
of such causes.
Despite this language strictly limiting the
defenses available to a “person otherwise liable” the
United States, as an otherwise liable party under
Section 107(a)(1) through (4), contends that Section
107(a)(4)(B) frees it from lability whenever a third
party—the plaintiff in a cost recovery action—has
any liability for the contamination under Section
107(a)(1) through (4). It makes little sense for
Circuit precedent and held that a liable party could not use
Section 107(a)(4)(B) for cost recovery).
% While Cooper Industries noted that the Court’s
discussion of cost recovery in Key Tronic was not a holding, the
Court nonetheless “undertook a comprehensive discussion of
the rights of action available under CERCLA.” Metro. Water,
473 F.3d at 832. Indeed, the party seeking reeovery (Key
Tronic) was itself a liable person under Section 107(a)_
12
Congress to tightly limit defenses to lability by
imposing a demanding burden of proof in Section
107(b), but then allow an otherwise liable party to
escape liability for cost recovery under Section
107(a)(4)(B) by making the far easier showing that
the plaintiff has some joint hability at the site.
The Court should not insert an additional
defense into CERCLA based on the United States’
strained reading of Section 107(a)(4)(B). Given the
clear language of Section 107(a) that the only
defenses to liability are found in Section 107(b), the
Court should reject the United States’ theory that
only “innocent” parties can recover costs of response
under Section 107(a).
4. The United States’ argument that
Section 113(f) is the exclusive means for liable
persons to seek cleanup costs from other lable
persons also is inconsistent with the language of
Section 107(a). In construing Section 113(f), the
Court emphasized that it should be read in context,
considering surrounding sections. See Cooper Indus.,
543 U.S. at 166-67. By its terms, Section 107(a),
applies “notwithstanding any other provision or rule
of law,” which would include Section 113(f). Section
107(a) provides for “an action under this section.”
Under the same rule appled in Cooper Industries,
Section 113(f) should not be read to foreclose a right
of recovery under Section 107(a)(4)(B), as the United
States contends. Rather, Section 113(f provides for
a distinct remedy of contribution among liable
parties. See Cooper Indus., 543 U.S. at 162-63; see
also Cooper Indus., 543 U.S. at 167-68 (savings
language in Section 113(f) “rebuts any presumption
that the express right of contribution provided . . . is
13
the exclusive cause of action for contribution
available to a PRP”).
The United States’ argument that Section 113
is an exclusive remedy is further undercut by its
failure to explain why Congress would decide to
make “innocence” (in the United States’ vernacular)
a necessary qualification to bring a cost recovery
action under Section 107(a)(4)(B), but then turn
around under Section 113 and provide a contribution
right for parties who, by definition, are not
“innocent.” A more logical conclusion is found in
Section 113(f)'s express reference to particular
actions under Section 106 and Section 107(a), which
confirms that contribution is a distinct, supplemental
remedy.
The United States argues that Section 113(f)
is a specific statutory remedy that preempts a
“general” remedy of Section 107(a). U.S. Br. 27.
Section 113(f), however, provides a distinct and
additional remedy that is expressly tied to Section
107(a). In contrast, the cases cited by the United
States are inapposite, rejecting the use of general
remedies such as § 1983!° when Congress provides a
separate statutory scheme to address a_ specific
problem.!! Atlantic Research did not use a general
42 USC. § 1983.
'! See Prieser v. Rodriguez, 411 U.S. 475, 488-89 (1973)
(attack on detention under a judicial order must proceed under
habeas corpus; 42 U.S.C. § 1983 not applicable to deprivation of
good time credits); Block v. North Dakota, 461 U.S. 273, 285
(1983) (the Quiet Title Act of 1972, 28 U.S.C. § 2409a, provides
exclusive remedy for quiet title and precludes mandamus suits
against federal officers); Brown v. Gen. Servs. Admin., 425 US.
820, 835 (1976) (Civil Rights Act of 1964, as amended, provides
14
remedy like § 1983 to bypass CERCLA and the
principle argued by the United States is not
applicable to Section 107(a)(4)(B).
Finally, there is a straigh.forward answer to
the United States’ argument that Section
107(a)(4)(B) would create cost recovery rights free
from a_ statute of limitations applicable to
contribution claims. U.S. Br. 30-31. Section
113(g)(2) provides a_ statute of limitations for
“lajctions for recovery of costs.” Admittedly, that
section is complex, but it unambiguously applies to
Section 107(a) claims. !2
5. The United States’ argument would
lead to another incongruous result, a_ result
inconsistent with Section 120(a)(1). When CERCLA
was amended and reauthorized by SARA, Congress
exclusive judicial remedy for discrimination claims in federal
employment, precluding jurisdiction under’ declaratory
judgment acts or other federal law); City of Rancho Palos
Verdes v. Abrams, 544 U.S. 113, 121 (2005) (Gudicial remedy
expressly authorized by Telecommunications Act, 47 U.S.C.
§ 332(c)(7) precludes inconsistent remedies using § 1983).
'2 The United States also quotes legislative history to
argue that when adopting SARA, Congress assumed that lable
persons could not pursue cost recovery under Section 107{(a).
. See U.S. Br. 29. The statement cited by the United States
carries no such implication. A congressional committee stated
that SARA would not affect the United States’ ability to
maintain a cause of action under Section 107(a). This does not
necessarily imply, as urged by the United States, that cost
recovery by lable persons other than the United States was
unavailable under Section 107(a). Nor does it imply that such
cost recovery actions would “not survive the enactment of
Section 113(f).” U.S. Br. 29.
15
made it clear that the United States was subject to
CERCLA just as any other entity:
“Each department, agency and
instrumentality of the United States .. . shall
be subject to .. . this chapter in the same
manner and to the same extent, both
procedurally and_ substantively, as any
nongovernmental entity. . . .” CERCLA
§ 120(a)(2).
Under Section 107(a)(4)(A), the United States
may recover response and remedial action costs at a
site even if it is a liable party. But the United States
argues that Congress did not apply CERCLA “in the
same manner and to the same extent” to
“nongovernmental entit[ies].". CERCLA § 120(a)(1).
Rather, the United States argues that Congress
made precisely the opposite public policy choice for
nongovernmental liable persons, foreclosing cost
recovery under Section 107(a). The United States
cannot explain how its preferred result squares with
Section 120(a)(1), quoted above.
For many years, this Court has pointed out
that the purpose of CERCLA’s liability scheme and
its remedies is to allow cleanup costs to be shared by
all responsible parties. See, e.g., Pennsylvania v.
Union Gas Co., 491 U.S. 1, 21 (1989), overruled on
other grounds, Seminole Tribe of Florida v. Florida,
517 U.S. 44 (1996) (“The remedy that Congress felt it
needed in CERCLA is sweeping: everyone who is
potentially — responsible for hazardous-waste
contamination may be forced to contribute to the
costs of cleanup.”) (Brennan, J., plurality opinion);
see also U.S. Br. 2 (recognizing the “two goals” of
16
CERCLA as providing for cleanup of hazardous
substances and “to hold responsible parties hable for
the costs of these clean-ups’). Allowing liable
persons to pursue cost recovery claims under Section
107(a)(4)(B) advances CERCLA’s purpose. By
contrast, the United States’ argument frustrates
CERCLA’s fundamental plan of promoting cleanups
by allowing equitable sharing of cleanup costs.
The incongruous results urged by the United
States should be rejected. The United States is
subject to CERCLA “in the same manner and to the
same extent” as any nongovernmental entity.
CERCLA § 120(a)(1).
6. The United States’ argument is also
contrary to the long-held positions of the federal
agency charged with enforcing CERCLA. See Bowen
v. Georgetown Univ. Hosp., 488 U.S. 204, 212-13
(1988) (declining to give weight to federal
government's interpretation where it was
inconsistent with prior interpretation); see. also
Washington State Dep't of Social & Health Servs. v.
Guardianship Estate of Keffeler, 537 U.S. 371, 385
(2003) (“administrative interpretations .. . not [the]
products of formal rulemaking . . . nevertheless
warrant respect’).!%
In 1984, EPA adopted a CERCLA settlement
policy recognizing that administrative and
13 To be clear, in the view of the Amici States, Section
107(a)(4)(B) is unambiguous and it is not necessary to resort to
EPA's view of its meaning. See Chevron, U.S.A., Inc. v. Natural
Res. Def. Coun., Inc., 467 U.S. 837, 865-66 (1984). However, if
the Court disagrees, EPA’s statements and actions mirror the
Amici States’ pesition.
17
enforcement “litigation will net be sufficient to
accomplish CERCLA’s goals, and that voluntary
cleanups are essential to a successful program for
cleanup of the nation’s hazardous waste sites.” EPA
stated that it is “preferable for private parties to
conduct cleanups’ themselves.” EPA, Interim
CERCLA Settlement Policy, 50 Fed. Reg. 5034, 5035
(Feb. 5, 1985).
In 1990, EPA added Subpart H to the
National Contingency Plan (NCP) to address how
voluntary parties can recover costs from other
parties. See 40C.F.R. pt. 300, subpt. H. (2006).
EPA explained first that the “focus of’ Subpart H “is
on those authorities of CERCLA that allow persons
other than governments to respond to releases
and recover response costs.” National Oil and
Hazardous Substances Pollution Contingency Plan,
55 Fed. Reg. 8666, 8792 (Mar. 8, 1990). Section
107(a)(4)(B) “establishes a right of action . . . for cost
recovery in those cases where non-governmental
parties have incurred necessary response costs
consistent with the NCP.” 55 Fed. Reg. at 8796.
EPA construed Section 107(a) to “encourage private
parties to perform voluntary cleanups of sites, and to
remove unnecessary obstacles to their ability to
recover their costs from the parties that are liable for
the contamination.” 55 Fed. Reg. at 8792-93
(emphasis added).
In its regulations, EPA provides a “summary”
of the “mechanisms available to recover the
costs of response actions under CERCLA.” 40 C.F.R.
§ 300.700(b). The regulation provides for cost
recovery by “any other persons,” and subsection (5) of
that section provides detailed directions for “private
18
party response actions’ and does not reference
whether the private party is “innocent.” 40 C.F.R.
§ 300.700(c).
B. Denying Recovery Of Response Costs
Under Section 107(a)(4)(B) Will Frustrate
Voluntary Cleanups And Defeat The Core
Purposes Of CERCLA
1. This Court has_ recognized that
Congress enacted CERCLA to remedy the serious
environmental and health risks posed by pollution.
See United States v. Bestfoods, 524 U.S. 51, 55
(1998). Further, one of the main purposes of
CERCLA is to promptly clean up hazardous waste
sites. See Meghrig v. KFC Western, Inc., 516 U.S.
479, 483 (1996) (citing with approval Gen. Elec. Co.
v. Litton Indus. Automation Sys., Inc., 920 F.2d 1415,
1422 (8th Cir. 1990)). Prompt cleanup of hazardous
waste sites is furthered by construing Section
107(a)(4)(B) reasonably to allow all responding
parties to seek recovery of cleanup costs. If
voluntary actors who remediate hazardous waste
sites cannot—seek recovery of costs, CERCLA’s
purpose of prompt clean up will be frustrated. See
Michael P. Vandenbergh, The Private Life of Public
Law, 105 Colum. L. Rev. 2029, 2089-90 (2005)
(former EPA Chief of Staff explaining that without a
private right of action under CERCLA, “far fewer
Superfund cleanup actions will occur and that the
public fisc will bear the enforcement costs of those
that do”).
Cost recovery is thus a critical incentive for
voluntary cleanup actions. See, e.g., ABA, Luis Nido
& Jason Hutt, Voluntary Cleanups-Alive after Aviall?
19
20 Nat. Resources & Env't (Fall 2005) (‘voluntary
cleanups are likely to be adversely affected by
{Aviall]. . . . [MJany sites that would have been
cleaned up voluntarily . . . now are likely to linger
unattended ... .”); Donn L. Calkins, CERCLA
Contribution Actions After Cooper v. Auvtall, 34 Colo.
Law. 99, 103 (Sept. 2005) (“For the time being, the
voluntary cleanup of hazardous waste sites by PRPs
must be considered ended—at least for PRPs hoping
to recover a portion of their cleanup costs.”).'4
As explained in Metropolitan Water:
“Were a cost recovery action unavailable in
these circumstances, the Second Circuit
reasoned, ‘such parties would likely wait until
they are sued to commence cleaning up any
site for which they are not exclusively
responsible because of their inability to be
reimbursed for cleanup expenditures in the
absence of a suit.” Metro. Water, 473 F.3d at
836 (quoting Consol. Edison Co. of New York v.
UGI Utils., Inc:, 423 F.3d 90, 100 (2d Cir.
2005)).
As illustrated by Metropolitan Water, there are
significantly contaminated sites where the govern-
ment has taken no enforcement action, and where
cost recovery remains a key incentive for voluntary
'4 See also Joseph Ferrucci, No Contribution Claims for
Voluntary Cleanups of Superfund Sites: The Troubling
Supreme Court Decision in Cooper Industries v. Aviall Services,
12 Hastings W.-N.W. J. Envtl. L. & Pol’y 73 (Fall 2006); Callie
Campbell, Note, Cooper Industries, Inc. v. Aviall Services, Inc.:
A Superfast End to Voluntary Cleanups and Efficient
Environmental Management, 13 Southeastern Envtl. L.J. 203
(Spring 2005).
responders.!> See Metro. Water, 473 F.3d at 837 (“In
the present case, the EPA simply is not in the picture
and has no reason to purse [sic] a settlement.”).!®
2. The United States implies that only
voluntary cleanups resulting from a_ negotiated
settlement with the government advance CERCLA’s
purposes. U.S. Br. 41. The United States argues
that by adopting SARA to codify contribution rights
in Section 113(f), Congress intended to discourage
independent cleanups in favor of government
settlements. U.S. Br. 42.!7 The United States wades
through CERCLA and SARA legislative history to
support this contention, but even after this effort, the
United States points to nothing where Congress
expressed that view.'8
'° The plaintiff in Metropolitan Water is a governmental
entity, but is not a “state” under Section 107(a)(4)(A) and does
not take enforcement action.
'6 In addition to removing cost recovery under Section
107(a) as an incentive for voluntary cleanup by liable persons,
the United States’ interpretation of Section 107(a) would
inevitably chill “innocent” parties from incurring response costs.
Even presumptively innocent persons would rationally hesitate
to incur response costs when faced with the _risk of costly
litigation that might later conclude that the person is not
“mnocent” under the broad categories of Section 107(a)(1)
through (4) or the demanding defenses of Section 107(b).
‘7 The United States concedes that the legislative
history of SARA “does contain references to the desirability of
voluntary cleanups.” U.S. Br. 41.
18 The most telling legislative history directly
contradicts the interpretation offered by the United States. See
H.R. Rep. No. 96-1016, reprinted in 1980 U.S.C.C.A.N. 6119,
6136 (“to provide a mechanism for prompt recovery of monies
expended for the costs of [remedial actions] from persons
21
For reasons previously discussed, resort to
legislative history is unnecessary because the
natural reading of Section 107(a)(4)(B) supports a
right of cost recovery for lable and _ non-liable
persons. See Connecticut Na.l Bank v. Germain,
503 U.S. 249, 253-54 (1992) (“courts must presume
that a legislature says in a statute what it means
and means in a statute what it says there’).
Moreover, the United States’ interpretation of
legislative history starts from a false premise. It
argues that independent or voluntary cleanups will
occur “at the expense” of cleanups overseen by the
government. U.S. Br. 41-42. The United States
does not demonstrate how this would be so. The
legislative history explored by the United States,
read fairly, confirms congressional support for
voluntary cleanups. It does not support the United
States’ theory that settlements with the United
States would be impaired simply because a party
who independently cleans up a contaminated site
consistent with the NCP may recover some costs
from other liable persons under Section 107(a)(4)(B).
The United States’ argument cannot overcome
the simple fact that CERCLA allows the federal
government to take enforcement actions or to engage
hable persons in settlement discussions as it chooses.
The potential for a claim under Section 107(a)(4)(B)
does not impair these enforcement powers of the
government.
responsible therefore and to induce such potentially liable
persons to pursue appropriate environmental response actions
voluntarily.”)
22
3. The United States’ argument is also
undercut by the fact that CERCLA contains
safeguards ensuring that voluntary cleanups are
conducted properly before resporse costs can be
recovered. Cost recovery is limited to response costs
“consistent with the national contingency plan.”
CERCLA § 107(a)(4)(B). Response costs also must be
“necessary.” CERCLA § 107(a)(4)(B). Response
costs that are “necessary” and are “consistent with
the” NCP are matters of settled CERCLA law. See
Regional Airport Auth. of Louisville v. LFG, L.L.C.,
460 F.3d 697, 703-04, 706—07 (6th Cir. 2006) (costs
are necessary where there is an actual or real threat
to human health or the environment, and costs are
consistent with the NCP where they are in
substantial compliance with the NCP); see also 40
C.F.R. § 300.700(c)(3) (detailed guidance for private
parties regarding consistency with the NCP for
response actions under Section 107(a)(4)(B) to ensure
“a CERCLA-quality cleanup”). Thus, to be eligible
for cost recovery under Section 107(a)(4)(B), a
voluntary cleanup must comport with the
government's regulatory scheme.
C. CERCLA Should Be Interpreted To Avoid
Creating A Serious Tension Within The
Federal Government If Section 113(f) Is
The Only CERCLA Remedy For Liable
Persons
As noted by the court of appeals below, if
Section 113(f) is the only remedy for a hable party,
then the federal government could “insulate itself
from responsibility for its own pollution by simply
declining to bring a CERCLA cleanup action or
refusing a liable party’s offer to settle.” Atlantic
23
Research, 459 F.3d at 837. As this Court has held,
Section 113(f) provides for contribution “only ‘during
_or following’ a civil action under § 106 or § 107(a).”
Cooper Indus., 543 U.S. at 168. Thus, CERCLA is
structured so that the United States has significant
control over these preconditions for a Section 113(f
contribution claim. To illustrate this control, the
cleanup costs of a responsible party can _ be
memorialized in a consent decree under Section 106,
but only if the United States agrees. If the United
States does not exercise enforcement authority under
Section 106 or Section 107, the responsible party will
be unable to file a Section 113(f) contribution claim.
Such a liable person will have no remedy unless
Section 107(a)(4)(B) allows it to recover those
response costs. Thus, the United States can largely
control whether a lable party has a Section 113(f
remedy to recover costs from other liable parties.'?
1. The United States does not deny that
its reading of CERCLA would create this tension; it
responds by saying “[t}here is no factual basis to
support” the suggestion of the court below that it
would actually implement CERCLA in this fashion.
U.S. Br. 44. The United States’ response, however,
fails to confront the statutory interpretation issue. It
would be odd for Congress to incorporate this
potential conflict into CERCLA, given the law’s
overriding concern with promoting cleanup of
hazardous waste sites. CERCLA need not and
18 An exception would be those instances where a state
uses CERCLA to bring a Section 107(a) action or settle with the
responsible party under Section 113(f)(3)(B). The effect of this
alternative on the states is discussed in Section III.D., below at
page 25.
24
should not be interpreted to create this tension
between the regulatory responsibility of the United
States and the financial interests of federal agencies
who are liable parties at contaminated sites.
2. The facts of Atlantic Research illustrate
why Amici States raise this concern. Before
this Court decided Cooper Industries, the United
States, as a potentially liable party, and Atlantic
Research were negotiating a financial settlement
that would have reimbursed Atlantic Research
for the government's share of the cleanup.
See Atlantic Research, 459 F.3d at 829. However,
when Cooper Industries made it clear that Section
113( was not available if there was no Section
106 or Section 107 civil action, the United States
ceased negotiations and contended that Atlantic
Research had no remedy—it could not pursue
Section 113(f) contribution, and Section 107(a)(4)(B)
was unavailable. Atlantic Research, 459 F.3d at
829-—30.2°
This history of dealings in Atlantic Research is
not offered to suggest the United States’ motive in
ceasing negotiations. It simply illustrates the
tension in CERCLA that results if the federal
government can avoid cost recovery from another
liable party under Section 107(a)(4)(B), and Section
113(f) is the sole remedy for liable parties.
3. It is vital that the right of cost recovery
provided for by Section 107(a)(4)(B) is available at
the thousands of hazardous waste sites where the
20 The record does not indicate that the United States
had any defense to hability under Section 107(a) or (b).
25
United States is potentially responsible under
Section 107(a).2! The federal government's liability
under CERCLA is provided by Section 120(a). A
right of cost recovery to liable parties under Section
107(a)(4)(B) fulfills the United States’ avowed
position that the federal government secks a level
playing field under CERCLA.22 The playing field is
not level if Section 113(f) is the sole CERCLA remedy
when a liable person undertakes a_ voluntary
cleanup.
21 According to EPA, there are 172 federal facilities on
the National Priorities List (NPL), which is 12.7 percent of all
NPL sites. However, these NPL sites represent only a small
fraction of the total number of contaminated sites for which the
United States is liable under CERCLA. For example, according
to the Department of Defense’s 2006 Defense Environmental
Restoration Program Report, available at https://www
denix.osd mil/denix/Public/News/OSD/DEP2006/deparc2006.ht
ml! (visited Apr. 4, 2007), within the Department of Defense
there are 4,875 active installations, 2,173 formerly used defense
sites, and 1,230 base realignment and closure sites that need
investigation or remedial action, a total of 8,278 sites.
22 In an October 4, 2001, letter, former EPA
Administrator Whitman described the United States’ position
as “commit[ted] to a level playing field between Federal
agencies and departments and the private sector. Americans
rightfully expect their government to abide by the same
environmental laws and standards as private business
_...” Letter from Christine Todd Whitman, EPA, to James M.
Jeffords, United States Senate (Oct. 4, 2001) available at
http://www _.epa.gov/compliance/federalfacilities/ (visited Apr. 4,
2007) (click on link to .pdf of letter).
26
D. State Discretion To Direct Limited
Resources Will Be Undermined If Cost
Recovery Requires A Contribution Right
Under Section 113(f)
If there is no cost recovery right for
responsible persons under Section 107(a)(4)(B),
financial limitations will affect how private actors
and local governments address contaminated sites.
As this Court observed in Key Tronic, 511 U.S. at
820, the addition of responsible parties at a site
“increases the probability that a cleanup will be
effective and get paid for.”
Without cost recovery under Section 107(a),
willing parties who would voluntarily clean up
contaminated sites will seek state settlements or
state legal action to satisfy the prerequisites to
seeking contribution under Section 113(f). This
creates a very real concern that the Amici States will
be requested to redirect their limited resources to
sites where they otherwise would not be needed.
And it raises the very real likelihood that, unless the
Amici States agree, the sites at issue will remain
contaminated. Rather than focus on the highest risk
cleanup sites, the Amici States will be pressed to
shift resources to sites where persons are willing to
conduct voluntary cleanups, but now seek state
involvement to ensure access to Section 113(f)
contribution rights.2*
23 States’ hazardous waste programs generally focus on
hazardous waste sites presenting the greatest danger to human
health and the environment. See, e.g., Wash. Admin. Code
173-340-320 (providing a scheme for assessing and ranking
hazardous waste sites).
27
The choice will have real consequences for the
Amici States. If the State does not take enforcement
action or enter into a settlement at the request of a
lable person willing to undertake a _ voluntary
cleanup, that cleanup may be financially impossible.
This will result in fewer cleanups across. the country,
including “brownfield” cleanups.24 On the other
hand, if the State chooses to dedicate its resources to
voluntary cleanups, it will have diminished resources
available to address higher-risk sites.
As an example, following this Court’s Cooper
Industries decision, the state of Washington was
asked to take action at a site where the United
States is a lable person but has not taken any
enforcement actions. The former Atomic Energy
Commission bus lot. site is located in Richland,
Washington, near the Hanford Nuclear Reservation.
The site is contaminated from use by the Atomic
Energy Commission, the predeeessor of the
Department of Energy, in the 1940—50s as a vehicle
maintenance facility. Battelle Memorial Institute
now owns the site and seeks to redevelop it to create
additional research facilities. Prolonged negotiations
with the United States came to an impasse after
Cooper Industries and the United States informed
Battelle that it must seek a settlement under
Washington’s cleanup law to facilitate a contribution
24 CERCLA defines a “brownfield site” to be “real
property, the expansion, redevelopment, or reuse of which may
be complicated by the presence or potential presence of a
hazardous substance, pollutant, or contaminant.” CERCLA
§ 101(39)(A).
28
claim against the United States under Section
113(f)(3)(B).*
The Battelle bus lot example also contradicts
the United States’ speculation that increased
property values stemming from remediation will
create a sufficient incentive to fulfill CERCLA’s
goals. U.S. Br. 43. The costs of remediation depend
on the nature and extent of the contamination. They
are not a function of the market value of the property
and can easily exceed that value. In such scenarios,
the availability of cost recovery from other liable
parties, including the United States, will determine
whether a cleanup is financially feasible. Equally
important, the United States’ speculation is contrary
to CERCLA’s goal that everyone liable should
contribute to the costs of cleanup. Union Gas Co.,
491 U.S. at 21.
25 The United States may suggest that state law can
provide additional recovery of costs between liable parties and
thus address the concerns of Amici States. Many state
hazardous waste cleanup laws provide contribution and cost
recovery rights. See, e.g., Wash. Rev. Code § 70.105D.080.
CERCLA, however, is the only certain remedy for former
federal facilities. That is because the United States has not
agreed that state cleanup laws apply to former federal facilities.
See CERCLA § 120(a)(4) (waiving sovereign immunity of the
United States to state laws “concerning removal and remedial
action .. . at facilities owned or operated by a department,
agency, or instrumentality of the United States” and not on the
NPL). Compare Crowley Marine Servus., Inc. v. Fednav, Ltd.,
915 F. Supp. 218 (E.D. Wash. 1995) (holding that waiver in
Section 120(a)(4) only applies to sites currently owned or
operated by government) with Tenaya Assocs. Ltd. P’ship v.
U.S. Forest Serv., 199h_WL, 433290 (E.D. Cal. 1993) (holding
that Section 120(a)(4) waiver applies to sites previously owned
by the government).
29
IV. CONCLUSION
For the foregoing reasons, the decision of the
Eighth Circuit Court of Appeals should be affirmed.
RESPECTFULLY SUBMITTED.
ROBERT M. MCKENNA
Attorney General
Maureen Hart
Solicitor General
Michael L. Dunning
Assistant Altorney General
Jay D. Geck*
Deputy Solicitor General
*Counsel of Record
1125 Washington Street SE
Olympia, WA 98504-0100
April 5, 2007 360-753-6200
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.