# Opposition Brief — Outboard Marine Corp. v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1986
- **Citation:** 479 U.S. 961

## Text

Supreme Court, US,

@) ~ ELLED

No. 86-2:80 OCT 23 1986

wktdasinde sabes.
Jn the Supreme Court of the Gni

OCTOBER TERM, 1986

OUTBOARD MARINE CORPORATION, PETITIONER
Vv.
UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED
Solicitor General
F. HENRY HABICHT II
Assistant Attorney General
ANNE S. ALMY
JOHN T. STAHR
Altorneys

Department of Justice
Washington, D.C. 20530
(202) 633-2217

FRANCIS S. BLAKE
General Counsel
Environmental Protection Agency
Washington, D.C. 20460

QUESTION PRESENTED

Whether, under the facts of this case, the district court
abused its discretion in granting dismissal without preju-
dice of an injunction action by the United States seeking
cleanup of a hazardous waste site.

(I)

TABLE OF CONTENTS

Page
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TABLE OF AUTHORITIES
Cases:
EE 8 12
w/ Goldlawr, Inc. v. Shubert, 32 F.R.D. 467 .............. 11
Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143 .. 13
a. ¥. Peters € Co. ¥. BPA, 167 F.26 263 .... 2. seen 16, 17
Kern v. TXO Production Corp., 738 F.2G 968 .......... 10, 14
LeCompte v. Mr. Chip, Inc., 528 F.2d 601 ............. 11, 14
Lone Pine Steering Committee v. EPA, 777 F.2d 882,
cert. denied, No. 85-1389 (May 19, 1986) ............ 16
Milwaukee v. Illinois, 451 U.S. 304 ................... 3
Outboard Marine Corp. v. Thomas, 773 F.2d 883, cert.
granted, No. 85-1753 (Oct. 6, 1986) .................. 10
Pace v. Southern Express Co., 409 F.2d 331 ............ 11
Paturzo v. Home Life Insurance Co., 503 F.2d 333...... 12
Puerto Rico Maritime Shipping Authority v. Leith, 668
ee a ead yale oy oes 10, 13, 14
Spencer v. Moore Business Forms, Inc., 87 F.R.D. 118 .. 15
ED wg haces ssececces 10, 11, 14

Tyco Laboratories, Inc. v. Koppers Co., 627 F.2d 54.... 10, 11
United States v. Commonwealth Edison Co., 620 F. Supp.
Ge as da Sa vera a Or K0.4 0.88 15
United States v. Northeastern Pharmaceutical & Chemical
Co., 579 F. Supp. 823, appeal pending, No. 84-1837

EAE TESS 9 ol Se gn a 13
United States v. Seckinger, 397 U.S. 203 ............... 16
Victory Beauty Supply, Inc. v. La Maur, Inc., 98 F.R.D.

ae a iy bys 5 4d Section 106(a) of CERCLA, 42 U.S.C. 9606(a), authorizes EPA,
when it determines that there “may be an imminent and substantial en-
dangerment to the public health or welfare or the environment
because of an actual or threatened release of a hazardous substance
from a facility,” to file an action in federal court “to secure such relief
as may be necessary to abate such danger or threat.”

4 The court subsequently dismissed the Refuse Act and product
liability claims against Monsanto, eliminating all direct claims against
Monsanto (Pet. App. A4).

$ Petitioner states (Pet. 5) that the district court “urged the govern-

ment to settle the case.” The court, in fact, advised all parties to con-
sider settlement, and suggested that they take into account the uncer-

4

2. Inthe meantime, EPA compiled its initial National
Priority List on December 30, 1982, listing those hazard-
Ous waste sites requiring prompt remedial action (Pet.
App. A5; see 47 Fed. Reg. 58476 (1982)). The proposed
List ranked the Waukegan Harbor site as 82d of 540 sites,
and the State of Illinois designated the site as its highest
priority Superfund site. Immediately after issuance of the
List, the United States reassessed its efforts to compel peti-
tioner to clean up the Waukegan site, and concluded that
because of the remaining discovery, a lengthy trial, and
anticipated appeals, continued litigation “ ‘will likely delay
the implementation of remedial work at [petitioner’s] site
and in Waukegan [HJarbor for an additional three to four
years’” (Pet. App. A6 (quoting R.A. 642, at 4)). The
government accordingly concluded that the most ex-
peditious means of addressing the serious PCB contamina-
tion problem at the site would be for EPA to conduct its
own remedial action under Section 104(a)(1) of CERCLA,
42 U.S.C. 9604(a)(1),’ followed by an action against the

tainty of the legal issues (R.A. 713, at 6-7, 12-13). (Citations to
documents in the record on appeal in the court of appeals are cited
herein as “R.A.” followed by the number of the document in the
clerk’s List of Documents.) ~

® The National Priority List promulgated September 8, 1983, also
ranked the Waukegan site as 82d. 48 Fed. Reg. 40658. Following re-
cent revisions to the List, the Waukegan site ranks 86th of 703 sites. 51
Fed. Reg. 21054, 21080 (1986).
’ That Section, which is the principal response section of CERCLA,
provides in relevant part that:
Whenever (A) any hazardous substance is released or there is a
substantial threat of such release into the environment, or (B)
there is a release or substantial threat of release into the environ-
ment of any pollutant or contaminant which may present an im-
minent and substantial danger to the public health or welfare,
[EPA] is authorized to act, consistent with the national con-
tingency plan, to remove * * * and provide for remedial action
relating to such hazardous substance, pollutant, or contaminant

ee ee ae

responsible parties under Section 107, 42 U.S.C. (& Supp.
Il) 9607, to recover cleanup costs (Pet. App. A6).* The
United States advised the court that (R.A. 642, at 1-2):

[T]he public interest will best be served by initiating
immediately a feasibility study to examine potential
alternative remedial programs for the [petitioner’s]
Waukegan site and to recommend a remedial alter-
native consistent with statutory requirements, and
then to undertake an appropriate remedy at the site.

The United States moved on March 22, 1983, to stay the
injunctive action pending EPA administrative proceedings
under CERCLA to determine the appropriate Section 104,
42 U.S.C. 9604, cleanup remedy (R.A. 642). Petitioner
and Monsanto initially opposed the stay (Pet. App. D4);
Monsanto filed a motion to “bifurcate,” requesting trial
prior to any government cleanup under Section 104, but
only on the issues of: (1) whether the PCBs at the site pose
a risk of “imminent harm,” and (2) “[w]hat remedy, if any,
is appropriate under the circumstances” (Pet. App. D4;
R.A. 672, at 2). On July 26, 1983, at the parties’ sugges-
tion and by their agreement, however, the court stayed
consideration of ail motions until after EPA determined
the appropriate cleanup remedy (Pet. App. A6, D4).

* * * or take any other response measure consistent with the na-
tional contingency plan * * * unless [EPA] determines that such
removal and remedial action will be done properly by the owner
or operator * * *.
® Section 107(a)(4)(A), 42 U.S.C. 9607(a)(4)(A), provides that those
parties responsible for the presence of hazardous waste shall be liable
for “all costs of removal or remedial action incurred by the United
States Government or a State not inconsistent with the national con-
tingency plan.” The national contingency plan is described in Section
105, 42 U.S.C. 9605, and requires, inter alia, that EPA remedial ac-
tions be cost-effective.

6

EPA thereafter conducted various studies pursuant to
statutory requirements, held two public hearings and pro-
vided two public comment periods (Pet. App. A6, D4).°
EPA issued its final Record of Decision (ROD) on May
15, 1984. While the ROD included a possible $75 million
remedy, EPA selected a $21.3 million remedial action to
conserve federal cleanup funds (id. at D11).'° That
remedy provides that sediments containing the highest
concentrations of PCBs will be transported off-site to a
licensed chemical waste landfill (id. at A6-A7). Other con-
taminated sediments will be excavated, dried out, and
buried in an on-site containment cell (ibid.).

3. Within a week of the issuance of the ROD, the
United States moved (under Fed. R. Civ. P. 41(a)(2)) for
voluntary dismissal, without prejudice, of the remaining
counts of its injunctive action based on the determination
“that the best interests of the public health would be served
by implementing the [selected] remedy rather than by seek-
ing injunctive relief in this lawsuit” (R.A. 676, at 1; Pet.
App. A7). The United States concluded that, in light of
the protracted trial and appeal proceedings to be expected
in the instant case, the “public health, welfare, and en-
vironment are best protected by proceeding on this ex-
peditious administrative track” (R.A. 676, at 14).

In opposing voluntary dismissal without prejudice, peti-
tioner suggested that the court hold in abeyance its
November 1982 motion to reconsider the court’s denial of

° Petitioner and Monsanto attended the hearings and submitted
comments (Pet. App. A6 n.6).

'© Section 104(c)(4) of CERCLA, 42 U.S.C. 9604(c)(4), requires
EPA to select “appropriate remedial actions * * * which provide for
that cost-effective response which provides a balance between the need
for protection of public health and welfare and the environment at the
facility under consideration, and the availability of amounts from the
[Superfund] * * * to respond to other sites which present or may pres-
ent a threat to public health or welfare or the environment.”

dismissal (see page 3, supra), and instead hold trial as re-
quested in Monsanto’s “bifurcated” trial motion (R.A.
671, at 29). Petitioner contended that this “would permit a
trial on all the troublesome questions raised by the
R.O.D.,” and allow the government to determine now
whether it would be “unable to recover the costs of the
R.O.D. remedy” (ibid.\

The district court on August 30, 1984, tentatively
granted the United States’ motion for a voluntarily
dismissal. It stated, however, that the dismissal would be
“with prejudice generally,” but without prejudice to a later
cost recovery suit (Pet. App. D6-D7). The court found
that the litigation had been costly, and while the court
could not predict how it would rule on petitioner’s motion
to reconsider its refusal to dismiss the action, there was at
least a “serious possibility” that it would grant the motion.
Thus, to protect defendants against “even a slim possibili-
ty that the United States might change its plans again,”!!
the court initially granted dismissal with prejudice (ibid.).
The court noted, however, that it “assume[d] that
dismissal with prejudice will bar reinstatement of [the
dismissed counts] but will not bar a future cost-recovery
suit, and the court does not understand [petitioner] to
argue otherwise” (id. at D7). Nevertheless, “[lJest there be
any misunderstanding,” the court stated specifically that
dismissal was “without prejudice to a future cost-recovery
suit” (ibid.). The court found that petitioner’s opposition
to dismissal was “plainly * * * an attempt to obtain
judicial review of the ROD before cleanup is undertaken,”
which is not authorized by CERCLA (id. at D8). Similar-
ly, petitioner’s suggestion to “hold” its motion to re-

'! The United States had contended that dismissal with prejudice
was unnecessary because the statute of limitations had run on its claim
for civil penalties under the Clean Water Act, and its claims for in-
junctive relief would be mooted by the proposed government cleanup
(Pet. App. D6).

8

consider, pending trial of the “bifurcated” issues of harm
and remedy, constituted “part of [petitioner’s] effort to
joekey jhe present lawsuit into a posture in which it might
serve as a vehicle for premature judicial review of the
ROD” (id. at D11).

The United States accepted the conditions of dismissal
(R.A. 713, at 6), but petitioner argued that dismissal with
prejudice of the injunctive claims raised a res judicata bar
to a future cost recovery action as a matter of law (Pet.
App. A8). To preserve the intent of the district court while
protecting petitioner and Monsanto from repetitive litiga-
tion, the United States on December 21, 1984, suggested
that the court dismiss the case without prejudice, but sub-
ject to a covenant not to sue precluding reinstatement of
the pending claims for injunctive relief and penalties
asserted in the final amended complaint (id. at A9). The
court adopted this suggestion and dismissed the case on
March 6, 1985 (ibid.). The covenant not to sue, executed
by the United States on April 23, 1985, states (U.S. C.A.
App. A, at 2), that, because EPA intends to undertake
cleanup itself, the United States:

covenants not to sue [petitioner] for injunctive relief
or civil penalties pursuant to Section 13 of the Rivers
and Harbors Act of 1899, 33 U.S.C. § 407; Section
309(b) and (d) of the Federal Water Pollution Control
Act, 33 U.S.C. § 1319(b) and (d); and Section 106 of
the CERCLA, 42 U.S.C. § 9606, or any other civil
claims with respect to the abatement of PCB con-
tamination in the Waukegan Harbor area which
plaintiff might have asserted on behalf of USEPA in
this litigation based on the same facts as those alleged
in the Second Amended Coniplaint and now known
to plaintiff.

The covenant reserves the right of the United States “to

initiate and maintain an action to recover from any person

all costs incurred relating to the USEPA-funded response

9

action to clean up PCB contamination in and around
[petitioner’s] Waukegan Harbor facility” (U.S. C.A. App.
A, at 3).

4. The court of appeals held that the district court’s
dismissal without prejudice, conditioned on a convenant
precluding the United States from further asserting the
dismissed claims, was not an abuse of discretion. The
court concluded (Pet. App. All):

From our review of the record we are convinced that
balancing the delay pending the years of anticipated
litigation over injunctive relief against the over-
whelming interest of the government in protecting the
environment from further irreparable damage to the
water and marine life and in protecting citizens from
the potential harmful effects of PCB * * * justifies
the government’s, decision to proceed with the im-
mediate removal of the PCB sediments and possibly
sue at a later date for the removal costs.

The court also evaluated petitioner’s claim that it might
have obtained a favorable ruling on its motion to recon-
sider the denial of its motion to dismiss as “at best highly
speculative and conjectural” (Pet. App. Al4). The cove-
nant not to sue in any case prevented the government from
reasserting the same claims, so that petitioner has “in ef-
fect, achieved [its] purpose in having the injunctive relief
claims dismissed” (id. at A15). Finally, petitioner suffered
no legal prejudice with respect to its litigation expenses
because it “will not again be forced to litigate the claims
seeking injunctive relief,” its work product was of poten-
tial use in any subsequent cost recovery suit, and in any
event, it had been awarded some of its costs (id. at
A18-A19).!2

'2 Following the district court’s August 30, 1986, dismissal deter-
mination, EPA requested access from petitioner to its Waukegan Har-
bor property to obtain information for final design of the remedy.

10

ARGUMENT

Petitioner seeks review of a decision holding that the
district court did not abuse its discretion in granting a
dismissal which, by express covenant, prohibits further
litigation for injunctive relief or civil penalties under the
dismissed claims. The decision turns on the particular
facts of this case, and does not conflict with any decision
of this Court or of any other court of appeals. Further
review by this Court is unwarranted.

1. Petitioner asserts (Pet. 9) that the case “provides an
opportunity for this Court to set guidelines” for Rule
41{a)(2) dismissals, and invites the Court (Pet. 19) to
establish “workable standards” for such dismissals,
without suggesting any such standards. We submit that
there is no need—and certainly no occasion here—to
establish any more rigid standards than those currently ap-
plicable, which recognize the broad discretion of the
district court.'? Although petitioner contends (id. at 11)
that lower courts have reached “widely divergent results

After petitioner refused voluntary access, EPA on February 13, 1985,
obtained a warrant granting access for this limited purpose. Petitioner
refused to honor the warrant, and sued to enjoin EPA from executing
it. The United States District Court for the Northern District of II-
linois denied petitioner’s motion for preliminary injunction on April
30, 1985. The court of appeals reversed, holding that Section 104 of
CERCLA does not authorize entry to private property to design a
remedy. Outboard Marine Corp. v. Thomas, 773 F.2d 883 (7th Cir.
1985), cert. granted, No. 85-1753 (Oct. 6, 1986). The issues in that
case are unrelated to the issue here, and petitioner does not contend
otherwise.

'3 The granting or denial of a Rule 41(a)(2) motion for voluntary
dismissal is “within the sound discretion of the district court,” and will
be reversed only for abuse of discretion. Tyco Laboratories, Inc. v.
Koppers Co., 627 F.2d 54, $6 (7th Cir. 1980); Stern v. Barnett, 452
F.2d 211, 213 (7th Cir. 1971); Puerto Rico Maritime Shipping
Authority v. Leith, 668 F.2d 46, 50 (1st Cir. 1981); Kern v. TXO Pro-
duction Corp., 738 F.2d 968, 971 (8th Cir. 1984); 9 C. Wright & A.

1]

under very similar conditions” in ruling on Rule 41(a)(2)
dismissals, the decisions cited (Pet. 11-13) reflect nothing
more than that the results reached depend on the widely
varying circumstances present in the various cases. The
district court is in the best position to evaluate those cir-
cumstances, as the prevailing standard recognizes. In light
of the particular circumstances of this case, the court of
appeals correctly concluded that the district court acted
well within its discretion in granting this conditional
voluntary dismissal (Pet. App. Al0-A20).'4

a. In contrast to every case relied on by petitioner
(Pet. 11-13 & n.6), the United States here executed a cove-
nant not to sue, which fully protects petitioner’s in-

Miller, Federal Practice and Procedure: Civil § 2364, at 161-163
(1971). Courts should grant dismissal unless the defendant will suffer
some “ ‘plain legal prejudice.’ ” Stern v. Barnett, 452 F.2d at 213;
LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (Sth Cir. 1976); 9 C.
Wright & A. Miller, supra, § 2364 at 165. In deciding whether there is
such prejudice, courts consider such factors as “defendant’s effort and
expense of preparation for trial, excessive delay and lack of diligence
on the part of the plaintiff in prosecuting the action, insufficient ex-
planation for the need to take a dismissal, and the fact that a motion
for summary judgment has been filed.” Pace v. Southern Express Co.,
409 F.2d 331, 334 (7th Cir. 1969). These factors are “not equivalent to
a mandate that each and every such factor be resolved in favor of the
moving party before dismissal is appropriate,” but constitute “a guide
for the trial judge, in whom the discretion ultimately rests.” Tyco
Laboratories, Inc. v. Koppers Co., 627 F.2d at 56.

'4 Voluntary dismissal will be denied only where there is plain prej-
udice which “cannot be ‘avoided by imposing terms and conditions on
the dismissal.’” Victory Beauty Supp!y, Inc. v. La Maur, Inc., 98
F.R.D. 306, 307 (N.D. Ill. 1983) (quoting 9 C. Wright & A. Miller,
supra, § 2364, at 165, 172). The court is not limited to requiring pay-
ment of costs, expenses and fees, but may condition dismissal on other
terms designed to eliminate prejudice, including a covenant not to sue.
LeCompte v. Mr. Chip, Inc., 528 F.2d at 603, relying on Goldlawr,
Inc. v. Shubert, 32 F.R.D. 467, 469-470 (S.D. N.Y. 1962).

12

terests.'5 Ignoring the covenant, petitioner incorrectly
claims (id. at 9) that the dismissal here allows “the very
same matter to be re-filed at a later date.” As the court of
appeals found, the United States “is prevented from again
bringing another action seeking the same injunctive relief
and civil penalties in this fact situation. [Petitioner has], in
effect, achieved [its] ; -rpose in having the injunctive relief
claims dismissed” (Pet. App. A15).

b. Moreover, none of the cases cited by petitioner in-
volves the critical public considerations present here. Peti-
tioner contends that the United States offered insufficient
justification for the dismissal, and that the court of ap-
peals “uncritically accepted” the government’s reasons
(Pet. 14-15). The United States, however, provided a
thorough and explicit justification for dismissal, based
directly on EPA’s responsibility under CERCLA to
remedy hazardous waste contamination.'® After a full
review of this extensive record (Pet. App. Al10-A13), the
court of appeals concluded (id. at A1l4) that “the govern-
ment has offered a legitimate reason” for its decision that
the public interest would be better served by undertaking
its own cleanup action, rather than continuing legal efforts

'S For example, in Ferguson v. Eakle, 492 F.2d 26, 29 (3d Cir.
1974), on which petitioner relies (Pet. 11), defendants would have
been required to defend against the same action in state court, after
completion of pretrial and discovery in the federal action; in Paturzo
v. Home Life Insurance Co., 503 F.2d 333, 335 (4th Cir. 1974) (Pet.
12), plaintiff sought dismissal on the morning of trial of one portion
of its claim, for which it had waived a jury trial, so that it could
litigate that aspect in a separate class action filed that same morning
requesting a jury.

'6 Significantly, although (as the court of appeals noted (Pet. App.
A13)) petitioner has “fought the government every possible inch of the
way for over six years in court,” its only substantive defense has been
to contest the extent of the hazard posed by PCBs. It has not seriously
disputed its responsibility for the contamination involved.

13

to compel petitioner to clean up the site.'’ Rule 41(a)(2)
certainly is no bar to EPA’s determining the most effective
use of the statutory tools at its command for the cleanup
of hazardous sites, and revising its approach where cir-
cumstances warrant. Here, the United States properly
elected to seek injunctive relief in the first instance to
preserve its limited cleanup funds for other sites (see Pet.
App. Al2), and sought to draw on CERCLA funds only
after the Waukegan site was identified on the National
Priority List as among the worst in the country. Rule
41(a)(2) allows voluntary dismissals even where plaintiffs
seek nothing more than a more convenient forum or a tac-
tical advantage, Puerto Rico Maritime Shipping Authority
v. Leith, 668 F.2d at 50; Hamilton v. Firestone Tire &
Rubber Co., 679 F.2d 143, 145 (9th Cir. 1982). A fortiori,
the serious substantive reasons advanced here justify such
a dismissal. As the court of appeals concluded, EPA

'? Petitioner contends (Pet. 14) that the United States did not need
to dismiss because it “could have implemented a cleanup while
Simultaneously proceeding against OMC for its cleanup costs by
amending its complaint to seek those costs under Superfund § 107(a),
42 U.S.C. § 9607(a).” The suggestion that the government should
have pursued both its own cleanup, and injunctive relief requiring
petitioner to clean up at the same time contemplates a legal and ad-
ministrative nightmare that Congress could not have intended. (Of
course, petitioner continues to oppose EPA’s cleanup efforts as well.
See note 12, supra.). Furthermore, while the United States can initiate
a cost recovery action under CERCLA once some recoverable costs
have been incurred, CERCLA does not, as petitioner suggests (Pet.
14), compel EPA io file an immediate cost recovery action as soon as
any recoverable costs have been incurred. It certainly does not require
such a cost recovery effori as part of a Section 106 injunction action.
See United States v. Northeastern Pharmaceutical & Chemical Co.,
579 F. Supp. 823, 826 (W.D. Mo. 1984), appeal pending, No. 84-1837
(8th Cir.)). The timing of cost recovery actions, and the determination
of parties from whom costs are to be sought, is left by CERCLA to
EPA, which has the expertise to make such response and cost recovery
decisions.

14

“possessed the discretion to decide that the gravity of the
problem (as revealed by the NPL and Illinois ranking
given the Waukegan harbor site) necessitated immediate
action and that it would be in the public interest to expend
government resources to remove the PCB sediment rather
than wait for the endless litigation of this case to take its
natural course” (Pet. App. Al3).

2. Petitioner’s claims of prejudice are without founda-
tion. Petitioner contends (Pet. 15-16) that it was deprived
of a ruling on its motion to reconsider the refusal to
dismiss or, alternatively, of a trial. The dismissal motion,
however, involved precisely those claims covered by the
covenant not to sue. Thus, while petitioner did not obtain
the ruling it sought, the covenant, as the court of appeals
found (Pet. App. A15), served the identical purpose, /.e.,
protection from future litigation of the counts involved.
LeCompte v. Mr. Chip, Inc., 528 F.2d at 604.'® In any
event, Rule 41(a)(2) simply does not entitle defendants to a
ruling on a dispositive motion, or to a trial. Puerto Rico
Maritime Shipping Authority v. Leith, 668 F.2d at 48-49;
Kern v. TXO Production Corp., 738 F.2d at 971. Thus, in
order to defeat a Rule 41(a)(2) motion, the defendant must
show some plain legal prejudice “ ‘other than the mere
prospect of a second lawsuit.’ ” Stern v. Barnett, 452 F.2d
at 213. The “ ‘missed opportunity for a legal ruling is not

'8§ Petitioner’s claim of prejudical loss of “expense and effort in trial
preparation” (Pet. 17) similarly ignores the preclusive impact of the
covenant not to sue. As the court of appeals found, petitioner “will
not again be forced to litigate the claims seeking injunctive relief,” and
will bear no duplicative expenses or effort as to those claims (Pet.
App. A18). In any case, the district court awarded petitioner $68,893
in costs (id. at A18 & n.12). Furthermore, as the court of appeals held,
“appellants’ work product might very well be useful if and when the
government brings its action for recovery of removal costs” (id. at
Al9). See Puerto Rico Maritime Shipping Authority v. Leith, 668
F.2d at SO.

15

sufficient to warrant the denial of a motion for voluntary
dismissal.’ ” Spencer v. Moore Business Forms, Inc., 87
F.R.D. 118, 119 (N.D. Ga. 1980).

Petitioner contends (Pet. 16) that the government
sought to avoid a ruling or trial because of the weakness of
its case. While petitioner cites the district court’s statement
that it had a “ ‘sixty percent comfort’ ” in its prior rulings,
that is scarcely a confession of error; moreover, the court
of appeals concluded “from our review of the record, in-
cluding the district cuurt’s comments, we certainly are far
from convinced that the appellants would have obtained a
favorable ruling from the district court” (Pet. App. A15).
Petitioner’s reliance (Pet. 16) on the government’s 1982
responses to requests for adiission is similarly misplaced.
The government stated only that it had no scientific proof
at that time that any specific individual had been harmed.
As the court of appeals noted, the government “did not
admit that the PCB would not present a potential threat to
human beings in the future; nor did the government admit
that the PCB in the harbor would not pose a risk of future
significant environmental damage to the environs of the
harbor, Lake Michigan and the fish and aquatic life in that
area” (Pet. App. A4 (footnote omitted)).!?

Despite petitioner’s claim in this Court of prejudice
from the loss of a timely ruling, petitioner itself suggested
that its motion to reconsider be placed in abeyance so the
district court could hold trial on the “bifurcated” issues of
harm and remedy (Pet. App. D11). See pages 6-7, supra.
Thus, petitioner’s real objection is to the loss of an oppor-
tunity for premature judicial review of EPA’s proposed
cleanup procedures (see Pet. App. D11). As the court of

'9 Indeed, there is ample evidence that PCBs have a variety of toxic
effects on humans and other organisms, and are extremely persistent
in the environment. See 47 Fed. Reg. 37342, 37344 (1982); United
States v. Commonwealth Edison Co., 620 F. Supp. 1404, 1406 (N.D.
Ill. 1985) (summarizing effects). See also note 1, supra.

16

appeals noted (Pet. App. Al6-A17), courts have con-
sistently held that they have no jurisdiction under
CERCLA to review the cleanup remedy prior to its en-
forcement; jurisdiction attaches only when the govern-
ment sues the responsible parties for cleanup costs under
Section 107. See Wheaton Industries v. EPA, 781 F.2d
354, 356 (3d Cir. 1986) (citing Lone Pine Steering Com-
mittee v. EPA, 777 F.2d 882 (3d Cir. 1985), cert. denied,
No. 85-1389 (May 19, 1986)); J.V. Peters & Co. v. EPA,
767 F.2d 263, 265 (6th Cir. 1985); Wagner Seed Co. v.
Daggett, No. 86-6032 (2d Cir. Sept. 10, 1986), slip op.
5673-5675.

Petitioner continues to seek pre-enforcement review,
arguing that because EPA’s remedy is an “unsound dredg-
ing project” that would cause it substantial injury, the
district court should not have granted a voluntary
dismissal (Pet. 17). This argument is premised on the sug-
gestion (id. at 15-16) that the government’s yet-to-be filed
Section 107 cost recovery claim is essentially the same
cause of action as the Section 106 injunctive relief claim,
so that petitioner has been deprived of a ruling or trial on
the cost recovery claim (Pet. 15-16).?° This effort to link
Section 107 to the dismissed complaint misreads the entire

20 Even if a Section 107 cost recovery claim did involve the same
transaction as the dismissed Section 106 injunctive count, Rule
41(a)(2) does not prohibit the district court from dismissing some
claims with prejudice, but other claims without prejudice. United
States v. Seckinger, 397 U.S. 203, 205-206 (1970); Restatement (Sec-
ond) of Judgments § 26(1)(b) (1982) (rules of res judicata are inap-
plicable where the “court in the first action has expressly reserved the
plaintiff’s right to maintain the second action”); see also id. § 26(1)(d).
Thus, even if the district court had followed its initial approach of
granting tentative dismissal with prejudice, but without prejudice to a
subsequent cost recovery action, the court would have acted fully
within its discretion under Rule 41(a)(2).

17

structure and purpose of CERCLA, which establishes
alternative approaches that EPA may invoke to address
hazardous waste contamination. A Section 106 action con-
templates that the responsible parties will remedy the
hazard, while Sections 104 and 107 authorize EPA cleanup
and later cost recovery. Section 106 requires that the
government demonstrate the possibility of an imminent
and substantial endangerment. In contrast, EPA may act
under Section 104 whenever there is a release or substan-
tial threat of release of hazardous substances. Thus, even a
dismissal with prejudice of the Section 106 action would
not have affected the government’s right to bring a subse-
quent Section 107 recovery action, since recovery of the
costs of a Section 104 cleanup action by EPA would con-
stitute an entirely separate claim from the dismissed in-
‘junctive relief claim. See, e.g., J. V. Peters & Co. v. EPA,
767 F.2d at 264.

Petitioner’s opportunity to challenge the remedy
selected arises only if and when EPA determines to file a
cost recovery action naming it as a responsible party. Peti-
tioner “can suffer no deprivation until the adjudication of
the section 107 litigation” (J. VV. Peters & Co. v. EPA, 767
F.2d at 266); as the court of appeals found (Pet. App.
A17-A18), petitioner may assert all defenses at that time,
including any challenge to the cost-effectiveness of the
remedy.

: CONCLUSION

The petition for a writ of certiorari should be denied.
Respectfully submitted.

CHARLES FRIED
Solicitor General
F. HENRY HABICHT II
Assistant Attorney General
ANNE S. ALMY
JOHN T. STAHR
Attorneys

FRANCIS S. BLAKE
General Counsel
Environmental Protection Agency

OCTOBER 1986

US GOVERNMENT PRINTING OFFICE: 1986— 181-483/4004€

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2367%3A2. Public record. Not legal advice.