Petition for Writ of Certiorari — Mayco Oil & Chemical Co. v. Transtech Industries, Inc.

No. 9 FILED

a DEC 16 1963

IN THE

Supreme Court of the United-Strtes —

OCTOBER TERM, 1993

>

MAYCO OIL & CHEMICAL COMPANY; AT&T TECHNOLOGIES INC. BY ITS

SUCCESSOR AMERICAN TELEPHONE AND TELEGRAPH CO.; BIOCRAFT

LABORATORIES, INC.; CHESEBROUGH-POND’S USA CO.; CPC

INTERNATIONAL INC. INCLUDING BEST FOODS DIVISION AND PENICK

CORPORATION SUCCESSOR TO S.B. PENICK COMPANY; FLUID PACKAGING

Co., INC.; FMC CORPORATION; GANES CHEMICALS, INC.; SIEGFRIED

CHEMICAL; GENERAL ELECTRIC COMPANY; HULS AMERICA INC.; IBM

CORPORATION; J.T. BAKER, INC.; LEVER BROTHERS COMPANY; MARISOL,

INC.; MOBIL OIL CORPORATION; PROCTER & GAMBLE MANUFACTURING

CO.; PHELPS DODGE CORPORATION; RUSSELL REID COMPANY; SAFT NIFE

INC.; SMITHKLINE BEECHAM CORPORATION; SYBRON TRANSITION CORP.;

SYBRON CHEMICALS, INC., INCLUDING AS TRADE NAMES GAMLEN

CHEMICAL AND TANATEX; WITCO CORPORATION,

Petitioners,

— |

TRANSTECH INDUSTRIES, INC.; KIN-BUC INC.; FILCREST REALTY, INC.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

GEORGE M. NEWCOMBE*

DAVID B. SMALLMAN

ELIZABETH A. FUERSTMAN

SIMPSON THACHER & BARTLETT

(a partnership which includes

professional corporations)

425 Lexington Avenue

New York, NY 10017-3909

(212) 455-2000

Counsel for Petitioners

*Counsel of Record

QUESTIONS PRESENTED

(1) Did the court below err in concluding, contrary to recent

decisions of the Second, Fifth, Eighth and Eleventh Circuits with

which the court below expressly disagreed, that the denial of a

motion for summary judgment based upon a right not to go to trial

arising as a result of a settlement is not immediately appealable?

(2) Did the court beiow err in concluding, contrary to a

decision of the First Circuit, that Section 113(f)(2) of the

Comprehensive Environmental Response, Compensation, and

Liability Act, 42 U.S.C. § 9613(f)(2), does not grant immunity from

contribution claims to those who resolve their liability to the

Govemment in judicially or administratively approved settlements

as to matters addressed in the settlement and, therefore, an order

denying a motion for summary judgment under Section 113(f)(2)

is not immediately appealable?

PARTIES TO THE PROCEEDING

AND RULE 29.1 STATEMENT

Petitioners Mayco Oil & Chemical Company; AT&T

Technologies, Inc. by its successor American Telephone and

Telegraph Co.; Biocraft Laboratories, Inc., Chesebrough-Pond's

USA Co.; CPC Intemational Inc. including Best Foods Division and

Penick Corporation successor to S.B. Penick Company; Fluid

Packaging Co., Inc.; FMC Corporation; Ganes Chemicals, Inc.;

Siegfried Chemical; General Electric Company; Huls America Inc.;

IBM Corporation; J.T. Baker, Inc.; Lever Brothers Co.; Marisol,

Inc.; Mobil Oil Corporation; Procter & Gamble Manufacturing Co.;

Phelps Dodge Corporation; Russell Reid Company; Saft Nife Inc.;

Sybron Transition Corp.; Sybron Chemicals, Inc., including as trade

names Gamlen Chemical and Tanatex; and Witco Corporation were

defendants-appellants below; respondents Transtech Industries, Inc.;

Kin-Buc Inc.; and Filcrest Realty, Inc. were plaintiffs-appellees.

Additional parties, who were defendants-appellants below, but are

not petitioners, are Astro Pak; Hexcel Corporation; John H. Cooney,

Inc., Occidental! Chemical Corporation; Procedyne Corporation;

Reynolds Metals Company; Safety-Kleen Envirosystems Company;

Sequa Corporation (formerly Sun Chemical Corporation);

Spectraserv, Inc. (formerly Modem Transportation Co.); and Stroh

Brewery Company.

Pursuant to S. Ct. Rule 29.1:

Petitioner Mayco Oil & Chemical Company notes that Mayco Oil

& Chemical Company is a division of Castrol Industrial East Inc.

(a Penn. Corp.). The following are the parents of Castrol Industrial

East Inc.: Castrol Industrial Inc. (Del.), Castrol Inc. (N_J.), Burmah

Castrol USA Inc., Burmah Castrol Inc., Burmah Castrol PLC (the

ultimate UK parent). The following are corporate parents.

subsidiaries, or affiliates of Castrol Inc. which are publicly held:

Burmah Castrol PLC, Burshane (Pakistan) Ltd., Burmah-Shell

(Pakistan) Ltd., Pakistan Petroleum Ltd., Pakistan Refinery Ltd., Sui

Northem Gas Pipelines Ltd., and Castrol India Ltd.

Petitioner AT&T Technologies, Inc. by its successor American

Telephone and Telegraph Co. notes that the following are non-

wholly owned subsidiaries, Joint Ventures, Affiliates and

Partnerships with majority ownership under 100%: AT&T

Automotive Services, Inc.. AT&T Aviation Technologies &

Systems, Lid, AT&T Business Communications Europe, Ltd.,

AT&T Business Communications Systems S.R.O., AT&T EasyLink

Services Australia, Lid.. AT&T Fitel Company, AT&T Japan

Semiconductor Marketing, Lid, AT&T Jens Corporation (Japan),

AT&T Network Systems Intemational, B.V.. AT&T Network

Systems Nederland, B.V.. AT&T Network Systems U.K., Ltd.,

AT&T Network Technologies (Thailand) Ltd... AT&T of Beijing

Fiber Optic Cable Co. Ltd, AT&T Prague S.R.O., AT&T Quingdao

Telcom (PRC), AT&T Software Japan Ltd., AT&T St. Petersburg

(Russian Federation), AT&T Taiwan Telecommunications Co. Ltd.,

AT&T Yazaki Fiber Optic Cable Co. Ltd., AT&T/Stein Phase II

Partnership, Barphone, CAB Computeranwendigan-Baratunga

GmbH, CAB South, CAB Vienna, Claimview Limited, Dataid S.A..,

EO Computers, Inc., Grupo Informatica Y Telecommuniaciones,

S.A., Infoplan Informationstechnick GmbH, Inview, Inc., Litespec

Inc.. Lycom A/S (Denmark), Melcombe Court Management

(Marylebone) Limited, NCR (Nigeria) Ltd., NCR (Thailand) Ltd.,

NCR Bilei Islem Sistemleri A.S., NCR Corporation (Philippines),

NCR Europe, Ltd.. NCR Gabon S.A.R.L., NCR Industrial De

Mexico, S.A. De C.V., NCR Japan, Lid., NCR Nederland N.V.,

Oswego Cogeneration Facility Limited Partnership, P.T. AT&T

Network Systems Indonesia, Regis Court Management

(Marylebone) Limited, Safan Systems, St. John’s Institutional

Investors Lid. (Meridian), Telfa S.A., Wadbss Energy Limited

Partnership,

Petitioner Biocraft Laboratories, Inc. notes that it has no parent

companies and no partially owned subsidiaries. Biocraft

Laboratories, Inc. owns 25% of Delmarva Laboratories, Inc., the

remainder of which is owned by three employees.

Petitioner Chesebrough-Pond’s USA Co. notes that it is an

unincorporated operating division of Conopco, Inc. It has no

subsidiaries.

Petitioner CPC Intemational Inc. including Best Foods Division and

Penick Corporation successor to S.B. Penick Company notes that

it has no non-wholly owned subsidianes or parent companies.

Petitioner Fluid Packaging Co., Inc. notes that it has no non-whclly

owned subsidiaries;

Petitioner FMC Corporation notes that the following are non-wholly

owned subsidiaries: A/O FMC Siberia Petroleum Equipment, Antah

FMC Supplies and Services SDN.BHD., Asia Lithium Corporation

(Ajia Lichimu Kabushiki Kaisha), Asia Pacific Agricultural

Development Corporation, FMC Agroquimica de Mexico, S. de

R.L. de C.V., FMC Gabon S.A.R.L., FMC Gold Canada Ltd., FMC

Gold Company, FMC Gold Intemational Sales Corporation, FMC

Jerritt Canyon Corporation, FMC Minerals Corporation, FMC-Nurol

Savunma Saneyll A.S., FMC Paradise Peak Corporation, FMC

Petroleum Equipment Limited, FMC Services & Supplies

Occidente, S.A., FMC Services & Supplies Oriente, S.A., FMC

United (Private) Limited, FMC Wellhead de Venezuela, S.A., Forel,

S.L., Foret, S.A., Freeport/FMC Foreign Sales Corporation, H Two

O Two Limited, L.H. Company, Ltd. (LH Kabushiki Kaisha),

Meridian Gold Company, Minera FMC Limitada, Minera FMC S.A.

de C.V., Natural Products Sciences, Inc., “Perorsa” - Peroxidos

Organicos, S.A., Philippine Marine Products, Inc., P.T. FMC

Santana Petroleum Equipment Indonesia, Separasystems Inc.,

Sibelco Espanola, S.A., Thai Peroxide Company, Ltd., Tokai

Electro-Chemical Company, Limited (Tokal Denka Kogyo

Kabuskihi Kaisha), Tripoliven, C.A., Turegano, S.A., Valentin

Herralz, S.A., Vallays Corporation.

Petitioner Ganes Chemicals, Inc. notes that it is a wholly owned

subsidiary of its parent company, Siegfried Limited (Zofinger,

Switzerland). There are no non-wholly owned subsidiaries of Ganes

Chemicals, Inc. Petitioner Siegfried Chemical notes that it is a

wholly owned subsidiary of petitioner Ganes Chemicals, Inc.

Petitioner General Electric Company notes that it has no parent

company and no subsidiaries which are not wholly owned.

Petitioner Huls America Inc. notes that its parent corporations are:

Huls Corporation (a Delaware corporation), which is owned by

Veba Corporation (a Delaware Corporation) which is owned by

Veba A.G. (a German corporation) (50.1%), Stinnes A.G. (a

German corporation) (10.4%), Rohm Holding Gmbh (a German

corporation) (10.9%) and Huls A.G. (a German corporation)

(28.6%). Huls America Inc.’s only non-wholly owned subsidiary is

Nuodex Mexicana S.A. de C.V. (a Mexican corporation).

Petitioner IBM Corporation notes that it has no parent company and

notes the following non-wholly owned subsidiaries: IBM de

Mexico, S.A., IBM World Trade Asia-Pacific Corp., IBM

Philippines Incorporated, IBM Thailand Company Ltd.,

International Business Machines of Belgium S.A., Compagnie IBM

France, S.A., IBM Distribution and Support, S.A., IBM Europe,

S.A., IBM Trade Development, S.A., Companhia IBM Portuguesa,

S.A., Intemational Business Machines, S.A.

Petitioner J.T. Baker, Inc. notes that Richardson Vicks Inc. is its

parent corporation.

Petitioner Lever Brothers Company notes that it is an

unincorporated operating division of Conopco, Inc. It has no

subsidiaries.

Petitioner Mansol, Inc. notes that it has no subsidiaries or parent

corporations.

Petitioner Mobil Oil Corporation notes that its parent corporation

is Mobil Corporation.

Petitioner Procter & Gamble Manufacturing Co. notes that

Procter & Gamble Company is its parent corporation.

Petitioner Phelps Dodge Corporation notes that it has no parent

companies and notes that the following are non-wholly owned

subsidiaries: Aislamientos Plasticos C.A., (PLASTICA), Alambres

Y Cables de Panama, S.A. (ALCAP), Alambres y Cables

Venezolanos, C.A. (ALCAVE), ALCAP Commercial, S.A.

(ALCOMER), AOT, Inc., Bisbee Queen Mining Company, C.T.C.

(Conelac Trading Company) S.A. de C.V., Cables Electricos

Ecuatorianos, C.A. (CABLEC), Cahosa, S.A., Celbac, S.A., Cobre

Cerrillos, S.A. (COCESA), Cobre Colada Continuo, C.A., Cocesa

Ingeniena y Construccion, S.A. (COCETAL), Columbian Carbon

Deutschland GmbH, Columbian Carbon Japan Ltd., Columbian

Carbon Philippines, Inc., Columbian Tiszai Carbon Ltd., Comercial!

ECOHSA, S.A. de C.V., CONDUCEN, S.A.. CONDUCOMER,

S.A. (formerly Industria de Electrocoductores, S.A. (INDELEC),

Conductores de Aluminio, C.A. (CONAC), Conductores Electricos

de Centro Amenica, S.A. (CONELCA), Corporation Venezolana de!

Cobre, C.A. (VENCOBRE), Electroconductores de Honduras, S.A.

de C.V. (ECOHSA), Fabrica de Conductores Electricos, S.A.

(FACELEC), Mexicana de Construccion E. Ingenieria de

vi

Telecommunications S.A. de C.V. (MEXITEL), Phelps Dodge Eldra

Gesellshaft m.b.H., Phelps Dodge Outokumpu Copper OY

Intemational, Phelps Dodge Thailand Limited, Pietersburg Iron

Company (Proprietary) Limited, Representaciones de Industrias

Venezolanas, C.A.. SPD Magnet Wire Co.. South Australian

Uranium Corporation PTY. Limited.

Petitioner Russell Reid Company notes that it has no parent

company and no subsidiaries.

Petitioner Saft Nife Inc. notes that it is a wholly owned subsidiary

of Saft America, Inc. which, in turn, is a wholly owned subsidiary

of Alcatel Alsthom (France).

Petitioner Smithkline Beecham Corporation notes that its parent

corporation is SmithKline Beecham plc, and that the following are

non-wholly owned subsidiaries of SmithKline Beecham

Corporation: Beecham Enterprises Inc., Beecham Pakistan (Private)

Limited, Cainta Realty Corporation, Eskayef Limited, Fink

G.m.b.H., FT Management Corporation, Franklin Town

Corporation, P.T. SmithKline Beecham Pharmaceuticals, Sino-

American Tianjin Smith Kline & French Laboratories Ltd., Smith

Kline & French of Pakistan Ltd., SmithKline Beecham Animal

Health (Taiwan) Limited, SmithKline Beecham Consumer Brands,

L.P., SmithKline Beecham Consumer Brands Limited, SmithKline

Beecham Nigeria plc, SmithKline Beecham Nippon Zenyaku K.K.

Petitioner Sybron Transition Corp. and Petitioner Sybron

Chemicals, Inc., including as trade names Gamlen Chemical and

Tanatex note that there are no non-wholly owned subsidianes of

Sybron Transition Corp. and Sybron Chemicals, Inc. However,

Sybron Corporation, a publicly held company is related to Sybron

Transition Corp. and Sybron Chemicals, Inc. is also a publicly held

company.

Petitioner Witco Corporation notes that it has no parent company

and no subsidiaries.

Vill

—

Table of Contents

ee yg 8B ty) rae

PARTIES TO THE PROCEEDING

ANID RULE 29.1 SEATROINE 2 ccc nn

CP SE ys a be ks ep ak oe ee

I 5k oon ecard the oe eee eda es

PERTINENT STATUTORY PROVISIONS ...........

STAT Erte GP Bem CAD ccc ct tcesinenns

A. Settlors’ Consent Decree With the United

RIS ga ae Ea Pee aaa

B. The Suit for Contribution Filed by Nonsettlors .. .

C. Settlors’ Motion for Summary Judgment .....

D. The Third Circuit Dismisses the Appeal

E. The District Court Issues A Stay Pending A

Disposition Of This Petition..............

(i)

Page

= 6

a

9

REASONS FOR GRANTING THE WRIT ............. 12

1. THE DECISION BELOW EXPRESSLY

CONFLICTS WITH RECENT DECISIONS

OF THE SECOND, FIFTH, EIGHTH, AND

Ses VEORND CAINE oe eds deo ss 12

Il. THE DECISION BELOW CONFLICTS

WITH A DECISION OF THE FIRST

CIRCUIT, THE LANGUAGE OF SECTION

113(f)(2) OF CERCLA AND THE

LEGISLATIVE HISTORY OF THAT

PONE ere ey ee eae Ak 4 4s 15

|. The Language of Section 113(f(2)

Provides Petitioners with Immunity

from the Claims Asserted by Plaintiffs... . . 17

tl

The Legislative History of CERCLA

and Section 113(f)(2) Demonstrates

That Congress Intended to Provide

Settling Parties With Immunity .......... 18

3. Courts Have Construed Section | 13(f)(2)

As Providing Immunity ............... 19

Ce, ch eae g oa Ab es wee eg ae pate ge ke ars 21

APPENDICES

Appendix A: Opinion of the Court of Appeals ..... la

Appendix B: District Court Opinion and Order

Denying Settlors’ Motion for

Summary Judgment ..............22a

(ii)

Appendix C:

Appendix D:

Page

District Court Opinion and Order

Denying Settlors’ Motion for

Reargument or, Alternatively,

for Certification of an

Interlocutory Appeal .............52a

Transcript of District Court

Proceedings on Petitioners’

a fe ere rere eee ee 64a

Table of Authorities

Cases

City and County of Denver vy. Adolph

Coors Co., 829 F. Supp. 340

Se Se es aoe ers ei ore ea ae ee

Cohen v. Beneficial Indus. Loan Corp.,

ROE Me NE ss as die ees soa ee eee

Coopers & Lybrand y. Livesay,

ERE Wk: EINE 2c. Xb een ea cee ee

Desktop Direct, Inc. v. Digital

Equip. Corp., 993 F.2d 755 (10th

Cir. 1993), cert. granted, 114 S. Ct.

Te ENON) nos 2 ae ee ee ag be ee ee

Dravo Corp. v. Zuber, 804 F. Supp.

502 0k Pes EY. xo See

Forbus v. Sears, Roebuck & Co..,

958 F.2d 1036 (11th Cir.),

cert. denied, 113 S. Ct.

Me ae ek Wise he a bok ao ee ee

Grillet v. Sears, Roebuck & Co..,

fa pigg o> ae, | } rarer are

Janneh v. GAF Corp., 887 F.2d 432

(2d Cir. 1989), cert. denied,

ig ee | ne are ems ae

(iv)

Page(s)

Page

Midland Asphalt Corp. v. United

EE 11, 13, 16

Mitchell v. Forsyth, 472 U.S. 511 (1985) ............ 16, 20

Nixon v. Fitzgerald, 457 U.S. 731 (1982) .............. 16

Pennsylvania v. Union Gas Co..,

ese ses te sect ee eee 18

Puerto Rico Aqueduct & Sewer Auth.

v. Metcalf & Eddy, Inc..,

re ee 13, 16

Towers Hotel Corp. v. Rimmel,

i 11

United States v. Cannons Engineering Corp..

i 3, 16, 19

United States v. Alcan Aluminum Corp.,

A re 18

United States v. Asarco, Inc.,

SG |) 20

Statutory Provisions

es oe es te cscs eee eens 4

a ee 5

EE EI ee 4

(v)

Page

Pe as Ae OR 6 CASE Ee ee CRA 4

ee Pn a so ite Sea we es a ee 17

ee a. ee I ots oko Sk eR a hee 17

Oe a as 5 eee a Cases eae ee cee ee 7

Re ee hi na oS a ao a ace A a Se 7

Oe ee ee ee ee nr eer 17

ep as ae ERED 4k 40a ec oe a ea ee eae See 5

RT ee ss RS AG aA Nina eee passim

Pe Ee CN on OS en ek ere ee 8

Bae ee ek a eee cee ee ee ae 12

Superfund Amendments and Reauthorization

Act of 1986, Pub. L. No. 99-499, 100 Stat. 1613.......... 18

Other

A Legislative History of the Superfund

Amendments and Reauthorization Act of

1986, Pub. L. No. 99-499, H.R. Rep.

No. 253, 99th Cong., 2d Sess. (1986),

reprinted in 1986 U.S.C.C.A.N. 2835,

8 ree a ee ee ae ee 14, 18, 19

Fe ws Se ee ons ee ee Nees aie bee aces 4

(vi)

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

No. 93-

MAYCO OIL & CHEMICAL COMPANY; AT&T TECHNOLOGIES INC.

BY ITS SUCCESSOR AMERICAN TELEPHONE AND TELEGRAPH CO.,;

BIOCRAFT LABORATORIES, INC.; CHESEBROUGH-POND’S USA CO.;

CPC INTERNATIONAL INC. INCLUDING BEST FOODS DIVISION AND

PENICK CORPORATION SUCCESSOR TO S.B. PENICK COMPANY;

FLUID PACKAGING CO., INC., FMC CORPORATION; GANES

CHEMICALS, INC.; SIEGFRIED CHEMICAL; GENERAL ELECTRIC

COMPANY; HULS AMERICA INC.; IBM CORPORATION; J.T. BAKER,

INC.. LEVER BROTHERS CO.; MARISOL, INC.; PROCTER & GAMBLE

MANUFACTURING CO.; MOBIL OIL CORPORATION; PHELPS DODGE

CORPORATION; RUSSELL REID COMPANY; SAFT NIFE_ INC.,

SMITHKLINE BEECHAM CORPORATION; SYBRON TRANSITION

CORP.: SYBRON CHEMICALS, INC., INCLUDING AS TRADE NAMES

GAMLEN CHEMICAL AND TANATEX; WITCO CORPORATION,

Petitioners,

.

TRANSTECH INDUSTRIES, INC.; KIN-BUC INC.; FILCREST REALTY,

INC.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

This case presents two questions concerning the applicability

of the collateral order doctrine. Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541 (1949). On both questions, there is a conflict

in the circuits.

The first question is closely related to that raised in a petition

for a wnt of certioran recently granted by this Court in Desktop

Direct, Inc. v. Digital Equip. Corp., 993 F.2d 755 (10th Cir. 1993)

(“Desktop”), cert. granted, 114 S. Ct. 379 (Nov. 1, 1993), which

concems the immediate appealability of an order denying summary

judgment based upon a night not to go to tral by virtue of a

settlement agreement between two private parties. The issue in this

case, however, presents a narrower, even more compelling ground

for application of the collateral order doctrine because it concems

a bargained-for right not to go to tral ansing from a settlement

agreement Petitioners entered into with the United States

Government and the operation of 42 U.S.C. § 9613(f)(2) (“Section

113(f)(2)"), of the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980, 42 U.S.C. § 9601 ef seg.

(“CERCLA” or the “Act’’). That section provides in pertinent part

that parties who enter into judicially approved settlements with the

Government “shall not be liable for claims for contribution

regarding matters addressed in the settlement.” Congress enacted

Section 113(f)(2) to encourage private parties to settle claims

brought against them by the Government under CERCLA. Thus,

Petitioners’ settlement with the Government not only implicates all

of the policy considerations raised by Desktop, but also directly

relates to the policy considerations underlying CERCLA’s entire

Statutory scheme, including the prompt clean-up of hazardous waste

sites and the minimization of litigation through early settlement of

alleged environmental liability.

Relying on Desktop, the court below expressly disagreed with

the holdings of Second, Fifth, Eighth and Eleventh Circuits. each

of which has previously held that an order denying enforcement of

4 settlement agreement is immediately appealable under the Cohen

doctrine in light of the well-established public policy supporting

voluntary settlements of litigation by the parties to a dispute. The

Third Circuit held that the collateral order doctrine did not apply to

the appeal in this case, thus widening the conflict in the circuits on

this issue.

The second question raises an entirely separate ground for

finding collateral order jurisdiction in this case, namely, whether

Section 113(f)(2) provides to those who enter into judicially

approved settlements with the Govemment immunity from

contribution claims regarding matters addressed in the settlement.

The essence of the legislative right granted under Section | 13(f)(2)

is the nght not to be tried on claims for contribution by non-settling

parties. Absent vindication by an immediate appeal, this statutory

right will be irretrievably lost and the incentive Congress provided

to encourage settlement of Superfund claims with the Government

will be severely diminished. The Third Circuit's holding that

Section 113(f)(2) does not bestow immunity on Petitioners conflicts

with the First Circuit's decision in United States v. Cannons

Engineering Corp., 899 F. 2d 79, 91 (1st Cir. 1990), where the

court held that Section 113(f)(2) “immunizes settling parties from

liability for contribution,” and also conflicts with the decisions of

numerous district courts. Moreover, the decision eviscerates the

carrot and stick scheme Congress enacted in Section 113(f)(2) to

encourage early settlement of CERCLA claims brought by the

Govemment, and thus raises serious public policy issues that this

Court should address.

Petitioners respectfully pray that a wnt of certiorari issue to

review the judgment and opinion of the United States Coun of

Appeals for the Third Circuit entered in this case on September 17,

1993.

OPINIONS BELOW

The opinion of the United States Coun of Appeals for the

Third Circuit is reported at 5 F.3d 51 (3d Cir. 1993), and is

reprinted in the appendix hereto (“App.”’) at la. The first opinion

of the United States District Court for the District of New Jersey is

reported at 798 F. Supp. 1079 (D.N.J. 1992), and the second

opinion is unreported; both are reprinted, with accompanying

orders, at App. 22a, and 52a, respectively.

JURISDICTION

Respondents Transtech Industries, Inc., Kin-Buc, Inc., and

Filcrest Realty, Inc., initiated this case by filing a complaint against

Petitioners Mayco Oil & Chemical Company, et al. in the United

States District Court for the District of New Jersey on August 24,

1990. Jurisdiction was based on 28 U.S.C. § 1331.

On Apnil I, 1991, Petitioners moved to dismiss the complaint.

The district court treated the motion as one for summary judgment

under Fed. R. Civ. P. 56 and denied it in an order entered on

August 5, 1992. Petitioners moved for reconsideration of the district

court’s order or, in the altemative, for certification of an

interlocutory appeal under 28 U.S.C. § 1292(b). On October 9,

1992, the district court denied the motion.

Petitioners filed a notice of appeal on November 6, 1992. On

September 17, 1993, the court of appeals dismissed the appeal for

want of jurisdiction. Petitioners did not seek a rehearing of the

court of appeals’ decision.

i ceeeesinieaaeitieeeeeneenee eee el

iii

The jurisdiction of this Court to review the judgment below is

based on 28 U.S.C. § 1254(1).

PERTINENT STATUTORY PROVISIONS

Section 1291 of Title 28, United States Code, provides

in pertinent part:

The courts of appeals (other than the United States Court

of Appeals for the Federal Circuit) shall have jurisdiction

Of appeals from all final decisions of the district courts of

the United States, the United States District Court for the

District of the Canal Zone, the District Court of Guam,

and the District Court of the Virgin Islands, except where

a direct review may be had in the Supreme Court.

Section 9613(f) of Title 42, United States Code, provides

in pertinent part:

(1) Any person may seek contribution from any other

person who is liable or potentially liable under section

9607(a) ... during or following any civil action under

section 9606 of this title or under section 9607(a) of this

title.

(2) A person who has resolved its liability to the United

States or a State in an administrative or judicially

approved settlement shall not be liable for claims for

contribution regarding matters addressed in the settlement.

Such settlement does not discharge any of the other

potentially liable persons unless its terms so provide, but

it reduces the potential liability of others by the amount

of the settlement.

STATEMENT OF THE CASE

Respondents Transtech Industries, Inc.; Kin-Buc Inc.; Filcrest

Realty, Inc. (“Respondents” or “Nonsettlors”) are the former owners

and/or operators of a waste disposal site located near Edison, New

Jersey known as the Kin-Buc Landfill (“Kin-Buc”). Respondents

declined in 1988 to participate in a settlement offered by the United

States Government regarding their liability for activities at Kin-Buc.

Petitioners’ are a sub-group of alleged generators and transporters

of waste disposed at Kin-Buc. Petitioners have each resolved their

liability to the United States Govemment for all past and future

response costs and response actions in connection with Kin-Buc,

absent a contingency not applicable here, through a settlement that

was judicially approved on August 3, 1988.

On August 24, 1990, Respondents filed suit against Petitioners

in the United States District Court for the District of New Jersey.

Respondents sought contribution towards response costs incurred

and to be incurred by them at Kin-Buc based on a variety of federal

and state grounds.

1. Mayco Oil & Chemical Company; AT&T Technologies Inc. by its

successor American Telephone and Telegraph Co.; Biocraft Laboratories,

Inc., Chesebrough-Pond’s USA Co.; CPC International Inc. including

Best Foods Division and Penick Corporation successor to S.B. Penick

Company; Fluid Packaging Co., Inc.; FMC Corporation; Ganes

Chemicals, Inc.; Siegfried Chemical; General Electric Company: Huls

America Inc.; IBM Corporation; J.T. Baker, Inc.; Lever Brothers

Company; Marisol, Inc.; Mobil Oil Corporation; Phelps Dodge

Corporation; Procter & Gamble Manufacturing Co.; Russell Reid

Company; Saft Nife Inc.; Smithkline Beecham Corporation; Sybron

Transition Corp.; Sybron Chemicals, Inc., including as trade names

Gamlen Chemical and Tanatex; Witco Corporation (collectively

“Petitioners”).

lniacesennianemaiaasmeneaaiammamamaaiaiimai

A. Settlors’ Consent Decree With the United

States Government

From 1947 until 1968, Kin-Buc functioned as a disposal site.

Thereafter, it became a State-approved landfill for hazardous wastes.

Kin-Buc continued to serve as a hazardous waste landfill until

1976, when the State of New Jersey revoked its Operating pennit

and enjoined further hazardous waste disposal. The EPA later

placed Kin-Buc on the National Priorities List established pursuant

to section 10S of CERCLA and began undertaking response actions.

Subsequently, the United States Government sought from

Respondents reimbursement of the Government's expenditures at

Kin-Buc. When Respondents declined to reimburse the costs

incurred by the Govemment, the United States Department of

Justice and the United States Environmental Protection Agency

initiated negotiations with approximately 226 alleged generators and

transporters of waste disposed at Kin-Buc. These 226 parties

(“Settlors”) ultimately agreed to pay the amount orginally sought

from Respondents. Accordingly, on May 16, 1988, the United

States filed a complaint (“Government's Complaint”) pursuant to

section 107 of CERCLA in the district court against the Settlors for

all of the past and future costs incurred by the United States in

response to the release and threatened release of hazardous

Substances into the environment at Kin-Buc. The Government's

Complaint recited that the Goverment had incurred costs to date

Of approximately $5 million for actions taken in response to the

release and threatened release of hazardous substances from Kin-

Buc, and further recited that the Govemment “continues to incur

response costs, including the cost of enforcement.” The Settlors

entered into a Consent Decree with the Govemment on the same

day that the Govemment filed its complaint.

Under the provisions of the Consent Decree, in retum for the

Settlors’ agreement to pay for all of the Government's past response

costs, the Government released Settlors from liability for past

response costs and entered into a covenant not to sue Settlors for

any future response costs at Kin-Buc, subject only to the

contingency that the Government, having made all reasonable

efforts, was unable to compel nonsettling parties to take future

response actions or to recover from the nonsettling parties future

response costs.

On June 3, 1988, notice of the settlement agreement between

Settlors and the United States was duly published in the Federal

Register permitting any interested party to comment on its terms.

53 Fed. Reg. 20379 (1988). After considering all comments

conceming the settlement, Judge Alfred J. Lechner of the United

States District Court for the District of New Jersey approved the

Consent Decree as fair and reasonable by order entered August 3,

1988, and opinion filed October 18, 1988. Judge Lechner dismissed

with prejudice Paragraph | of the Government's prayer for relief,

regarding costs incurred through April 30, 1987, and dismissed

without prejudice the remainder of Govemment’s Complaint,

including the Govemment’s request for judgment in its favor for all

costs incurred after April 30, 1987.

2. It is undisputed that the contingency referred to in the Consent Decree

has not occurred.

Bb. The Suit for Contribution Filed by Nonsettlors

On August 24, 1990, Respondents filed a complaint

(“Nonsettlors’ Complaint”) against 445 defendants. including the

226 Settlors. The Nonsettlors’ Complaint sought contribution from

the Settlors for response costs incurred and to be incurred by

Respondents at Kin-Buc.

C. Settlors’ Motion for Summary Judgment

On April 1, 1991, Settlors moved to dismiss the Nonsettlors’

Complaint on the ground that they were immune from all claims for

contribution conceming Kin-Buc by virtue of Section 113(f)(2) of

CERCLA and the judicially approved settlement resolving their

liability to the Government for all past and future response costs

and response actions at Kin-Buc. Respondents and those defendants

who had not settled with the Govemment opposed the motion.

On August 5, 1992, the district court entered an order denying

Settlors’ motion, determining that the Consent Decree only resolved

the Government's response costs, not the response costs of third

parties, and therefore did not cover the matters for which Settlors

were being sued. App. 5la. On August 13, 1992, Settlors moved for

reconsideration or, in the altemative, for certification of an

interlocutory appeal. The district court denied the motion and

application by order entered on October 9, 1992. App. 62a.

D. The Third Circuit Dismisses the Appeal

On November 6, 1992, thirty-three of the Settlors filed a

timely notice of appeal to the United States Court of Appeals for

the Third Circuit.’ Settlors argued below that the Third Circuit had

jurisdiction to hear the appeal under the collateral order doctrine set

3. Settlors filed a motion for a Stay of proceedings in the district court on

November 20, 1992. That motion was granted on March 10, 1993,

9

forth in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541

(1949), because the Gistnict court’s order: (1) conclusively

determined the disputed question; (2) resolved an important issue

completely separate from the merits of the action; and (3) would be

effectively unreviewable if the Settlors were required to wait until

after trial to appeal. See also Coopers & Lybrand v. Livesay, 437

U.S. 463, 468 (1978). Specifically the order of the district coun

conclusively determined the disputed question, namely, whether

Settlors were immune from plaintiffs’ claims for contribution by

virtue of their settlement with the Goverment and Section

113(f)(2) of CERCLA. That issue is completely separate from the

merits of the claims for contribution, since it tums solely on the

scope of the matters addressed in the Settlors’ settlement with the

Govemment and the face of the claims asserted in the contnbution

action. It is an issue that can be answered by determining whether,

under the terms of the settlement, the Government could sue the

Settlors for the same matters for which contribution is sought. If the

answer is no, the matters for which contribution is sought are, by

definition, “matters addressed in the settlement” and the settlors are

immune from such claims under Section 113(()/(2). Here, it is

undisputed that as a result of the settkement, the Govemment cannot

sue Settlors for the very claims that plainuifs assert in their

contnbution action. Finally, since the district court order denied to

Settlors their nights under Section 113(f)(2) to avoid tral, that order

would be unreviewable if Settlors had to endure a full tnal before

being able to appeal from it.

Settlors noted that four circuit courts of appeals had previously

held that appellate jurisdiction exists under the collateral order

doctrine over an appeal from a district court order denying a motion

to dismiss based on the right not to go to tral by virtue of a

settlement agreement. See Forbus v. Sears, Roebuck & Co., 958

F.2d 1036 (11th Cir.), cert. denied, 113 S. Ct. 412 (1992); Grillet

10

v. Sears, Roebuck & Co., 927 F.2d 217 (Sth Cir. 1991); Janneh y.

GAF Corp., 887 F.2d 432 (2d Cir. 1989), cert. denied, 498 U.S.

865 (1990); Towers Hotel C orp. v. Rimmel, 871 F.2d 766 (8th Cir.

i989). Settlors also argued that Section | 13(f)(2) provides express

Statutory immunity to those who settle CERCLA claims with the

Govemment, and thus provides an altemative ground for collateral

order jurisdiction under the line of cases that recognize a right of

immediate appeal to vindicate a claim of immunity. See, e.g.,

Midland Asphalt Corp. v. United States, 489 U.S. 794, 799 (1989).

On September 17, 1993, the Third Circuit dismissed the appeal

for want of appellate jurisdiction. App. 21a. In its opinion, the court

of appeals held that “orders denying summary judgments on claims

of immunity from trial based on releases or settlements are not

appealable” as collateral orders under Cohen y. Beneficial Indus.

Loan Corp., 337 U.S. 541 (1949). App. 20a. The court of appeals

expressly disagreed with the above-noted decisions of four other

courts of appeals and expressly relied upon the decision of the

Tenth Circuit in Desktop, now on review by this Court. App. 18a.

The Third Circuit further found. without citation to any

authority and in conflict with the decisions of the United States

Court of Appeals for the First Circuit and several district courts,

including the district coun below, that Section 113(f)(2) of

CERCLA does not provide to Parties who settle with the

Govemment immunity from claims by non-settling third parties.

App. 18a.

1]

E. The District Court Issues A Stay Pending A

Disposition Of This Petition

On December 13, 1993, the district court granted Petitioners’

motion to stay all proceedings below as to Petitioners pending their

petition to this Court for a writ of certiorari and, if granted, pending

a decision from this Court. In so doing, the district court noted the

similarity between the issues raised here and those raised in

Desktop. App. 19a.

This petition followed.

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW EXPRESSLY

CONFLICTS WITH RECENT DECISIONS OF

THE SECOND, FIFTH, EIGHTH, AND

ELEVENTH CIRCUITS

This Court should grant the petition for a writ of certiorari to

resolve the conflict between the ruling below and recent decisions

of the Second, Fifth, Eighth and Eleventh Circuits. See S. Ct. Rule

10.1(a). As in Desktop, this is not a case in which the existence of

a circuit conflict needs to be inferred from an analysis of ailegedly

conflicting cases. Here, the Third Circuit expressly acknowledged

the contrary holdings of the other circuits, and nonetheless adopted

its position in the face of those holdings. In the Court’s words:

More significant, however, is our disagreement with the

decisions in Forbus, Grillet, Janneh and Towers. We

believe that they undermine the final-judgment rule and

expand the immunity concept beyond that which the

Supreme Court has approved. In our view, Desktop

Direct, Inc. v. Digital Equip. Corp. . . . more closely

conforms to the Supreme Court’s teaching.

App. 18a.

12

While expressly disagreeing with the four courts of appeals,

the Third Circuit, without elaboration, differentiated the settlement

agreement here with the settlements at issue in those cases on the

ground that the other settlements were between the plaintiff and

defendant whereas this settlement agreement is between defendants

and a third party, the United States Govemment. However, because

Section 113(f)(2) of CERCLA expressly provides that parties who

resolve their liability to the Government in judicially approved

settlements “shall not be liable for claims for contribution” by non-

settling third parties, such as Respondents, the court’s distinction is

one without any legal significance under the facts of this case.

Indeed, the only difference between Desktop and this case is

that the night to avoid trial here presents a narrower, more

compelling ground for application of the collateral order doctrine.*

In this case, Petitioners’ right is based upon a settlement with the

Govemment which, by operation of Section 113(f)(2), immunizes

Petitioners from claims for contribution by all non-settling parties

for matters address in the Consent Decree. See Midland Asphalt

Corp. v. U. S., 489 U.S. 794, 801 (1989); cf. Puerto Rico Aqueduct

& Sewer Auth. v. Metcalf & Eddy, Inc., 113 S. Ct. 684, 687 (1993).

The fact that Petitioners’ right to avoid trial is based not solely on

a private contractual agreement but also on a federal statute has two

important consequences.

First, the public policy arguments encouraging voluntary

settlements and the minimization of litigation that support the right

to appeal immediately orders denying enforcement of settlement

4. The petitioners in Desktop have cogently presented the disagreement

among the circuits on the question concerning whether collateral order

junsdiction exists from the denial of a motion to dismiss or for summary

judgment based on the right to avoid tal by virtue of settlement

agreement, and Petitioners adopt the arguments set forth therein.

13

agreements, see, e.g., Janneh, 887 F.2d at 435-36, apply even more

strongly to this case. The legislative history of Section 113(f)(2)

makes clear that Congress specifically intended that Section

1 13(f)(2) encourage early settlements of environmental liability and

decrease litigation. See A Legislative History of the Superfund

Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499,

H.R. Rep. No. 253, 99th Cong., 2d Sess., at 59, reprinted in 1986

U.S.C.C.A.N. 2841 (Congress’ purpose in enacting CERCLA

Section 113(f)(2) was to “encourage quicker, more equitable

settlements, decrease litigation and thus facilitate cleanups’’)

(emphasis supplied). See also id. at 2862 (“[iJn addition to

encouraging settlement, [Section 113(f)(2)] will help bring an

increased measure of finality to settlements.”’)

Second, because the settlement agreement here is a product of

a comprehensive statutory scheme designed by Congress to

facilitate the clean-up of hazardous waste sites, this case raises

important public policy issues conceming the remediation of those

sites. The Third Circuit's determination has effectively eviscerated

Petitioners’ rights under Section 113(f)(2), and in doing so, has

significantly diminished the incentive for parties to enier into

settlements with the Government, thereby disrupting the nationwide

operation of the federai environmental regime for hazardous waste

site remediation.

In Forbus v. Sears, Roebuck & Co., 958 F.2d 1036 (1 ith Cir.

1992), Judge Cox, who dissented from the Eleventh Circuit's

determination that collateral order jurisdiction exists from the denial

of a motion to dismiss by virtue of a right to avoid trial stemming

from a private settlement agreement, based his disagreement with

the majority on the ground that “the asserted right not to be sued

based upon private agreements . . . is not sufficiently important to

justify an interlocutory appeal.” /d. at 1044 (emphasis added). The

14

B

Tenth Circuit in Desktop again emphasized that an agreement

between two private parties does not raise issues of sufficient

importance to justify the invocation of collateral order jurisdiction.

See Desktop, 993 F.2d at 758 (noting that the “only situation that

the Supreme Court has found important enough to allow an

interlocutory appeal in the absence of a constitutional or statutory

guarantee involves a district court’s denial of qualified immunity

for a public official defendant’). The settlement agreement here,

unlike the settlement agreement in Desktop, which was between two

private parties, is between the United States Goverment and

hundreds of alleged generators and transporters of hazardous waste

and implicates an entire statutory scheme. The Third Circuit's

determination that parties who settle their CERCLA liability with

the Govemment cannot immediately appeal a decision denying

enforcement of their right not to go to trial arising from a judicially

approved settlement agreement and Section 113(f)(2) will

undermine the incentive to setthe CERCLA claims with the

Goverment and will interfere with the prompt clean-up of

hazardous waste sites.

For the above reasons, this Court should grant this petition for

a wnt of certiorari to the Third Circuit and consolidate this case

with Desktop in order to resolve important questions regarding

application of the collateral order doctrine to settlements with the

Govemment pursuant to Section 1 13(f)(2).

Il. THE DECISION BELOW CONFLICTS

WITH A DECISION OF THE FIRST

CIRCUIT, THE LANGUAGE OF SECTION

113(f}(2) OF CERCLA AND THE

LEGISLATIVE HISTORY OF THAT

PROVISION

This Court should also grant this petition for a writ of

certiorari because the Third Circuit erred in holding that Section

1§

1 13(f)(2) does not provide settling parties with immunity from trial

on claims for contribution brought by nonsettling parties, a decision

that conflicts with the First Circuit's holding in United States y.

Cannons Engineering Corp., 899 F.2d 79, 91 (Ist Cir. 1990), that

Section 113(f)(2) “immunizes settling parties from liability for

contribution.”

This Court has repeatedly held that an order denying a claim

of absolute and qualified immunity is immediately appealable under

Cohen. See Nixon vy. Fitzgerald, 457 U.S. 731 (1982) (absolute

immunity); Mitchell v. Forsyth, 472 U.S. 511 (1985). The Court has

reasoned that, absent immediate appeal, the benefits of immunity.

including “avoiding the costs and general consequences of

subjecting public officials to the risks of discovery and tnal,’’ would

be forfeited. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf

& Eddy, Inc., 113 S. Ct. 684, 687 (1993).

In addition, this Court has held that, where a right not to be

tried rests upon an explicit statutory guarantee, the denial of a

motion to dismiss based on that nght is immediately appealable.

See Midland Asphalt Corp. v. United States, 489 U.S. 794, 801

(1989) (“A night not to be tried in the sense relevant to the Cohen

exception rests upon an explicit statutory or constitutional guarantee

that trial will not occur.’’). Petitioners’ claim of immunity indeed

rests upon an explicit statutory guarantee. The Third Circuit's

contrary determination is at odds with the language of Section

1 13(f)(2), the legislative history of that provision, and the decisions

of several courts, including the First Circuit, interpreting that

provision.

16

1. The Language of Section 113(f)(2) |

Provides Petitioners with Immunity

from the Claims Asserted by Plaintiffs

The express language of Section 113(f)(2) provides that parties

who resolve their liability with the Government “shall not be liable

for claims for contribution regarding matters addressed in the

settlement.” (emphasis added) Thus, the immunity afforded by

Section 113(f)(2) is not confined to immunity from liability for a

money damage award; it extends to immunity from the very claims

brought by non-settling parties.

The terminology of Section 113(f)(2) is significant, for

Congress has used the same language to bestow immunity upon the

United States. In the Federal Tort Claims Act, 28 U.S.C. § 1346(b)

and 28 U.S.C. §§ 2671-2680 (“FTCA”), the United States has

waived immunity for the torts of its employees under certain

circumstances. Section 1346(b) of the FTCA provides that the

United States shall be liable for “injury or loss of property, or

personal injury or death caused by the negligent or wrongful act or

omission of any employee of the govemment . . . under

circumstances where the United States, if a private person, would

be liable to the claimant.” This waiver, however, is limited by

several exceptions set forth in 28 U.S.C. § 2680. Significantly, in

identifying the limitations on the waiver of immunity, Congress has

identified particular claims for which the United States cannot be

sued. See 28 U.S.C. § 2680 (a) - (n).

In addition, Congress did not place Section 113(f)(2) of

CERCLA among the enumerated defenses to liability set forth in

Section 107(b), but instead set forth this immunity in _ separate

Statutory provision enacted for the express purpose of providing

peace and finality to those who resolve their liability to the

17

ee

Govemment in a judicially or administratively approved settlement

as to all matters addressed in that settlement.

2. The Legislative History of CERCLA

and Section 113(f)(2) Demonstrates

That Congress Intended to Provide

Settling Parties With Immunity

The legislative history of CERCLA and Section | 1 3(f)(2) also

demonstrates that Congress intended to provide settling parties with

immunity in order to encourage parties to settle with the

Govemment and facilitate the rapid clean-up of hazardous waste

sites.

Congress enacted CERCLA in 1980 to provide a tool to

combat widespread environmental and public health damage

resulting from the disposal of hazardous waste. See Pennsylvania

v. Union Gas Company, 491 U.S. 1, 7 (1989); see also United

States v. Alcan Aluminum Corp., 964 F.2d 252, 257-58 (3d Cir.

1992). The statute is designed to force polluters to pay for costs

associated with remedying environmental contamination and

provides a wide array of mechanisms through which cleanup can be

effectuated. See Union Gas Company, 491 U.S. at 7.

In 1986, Congress amended CERCLA with the Superfund

Amendments and Reauthonzation Act of 1986, Pub. L. No. 99-499,

100 Stat. 1613 (“SARA”). Significantly, when the Senate Judiciary

Committee debated whether to impose a good faith requirement as

a condition to receiving protection under Section 113(f)(2), the

Committee resolved to delete that requirement ‘‘as an independent

requirement for obtaining immunity from contribution claims.” H.R.

Rep. No. 253, 99th Cong., 2d Sess., at 19 (1986), reprinted in 1986

U.S.C.C.A.N. 3042 (emphasis supplied); see also id. (referring to

a settlement with the govemment “provid{ing] immunity from

contribution claims” under Section 122). As noted above, the

18

legislative history also indicates that Congress enacted Section

113(f)(2) to “encourage quicker, more equitable settlements,

decrease litigation and thus facilitate Cleanups.” H.R. Rep. No. 253,

99th Cong., 2d Sess., at 59 (1986), reprinted in 1986 U.S.C.C.A.N.

2841 (emphasis supplied). See also id. at 2862. Thus. Congress’

express purpose behind Section 113(f)(2) was to grant immunity to

those who settle with the Govemment to encourage early

settlements of CERCLA claims, decrease litigation and promote the

speedy clean-up of hazardous waste sites. These goals are

completely thwarted by the Third Circuit’s decision.

3. Courts Have Construed Section 113(f)(2) As

Providing Immunity

The Third Circuit's holding that Section 113(f)(2) does not

bestow immunity from contribution claims on those who enter into

judicially or administratively approved settlements conflicts with the

decision of the United States Court of Appeals for the First Circuit,

as well as the decisions of several district courts, including the

district court below, all of which have characterized Section

1 13(f)(2) as providing immunity to settling parties. In United States

v. Cannons Engineering Corp., 899 F.2d 79, 9] (Ist Cir. 1990), the

First Circuit held:

In the SARA Amendments, Congress explicitly created a

Statutory framework that left nonsettlors at risk of bearing

a disproportionate amount of liability. The statute

immunizes settling parties from liability for contribution

and provides that only the amount of the settlement—not

the pro rata share attributable to the settling party—shall

be subtracted from the liability of the non-settlors.

(emphasis supplied). Although the Cannons decision did not address

the appealability of an order denying a party immunity under

Section 113(f)(2), it follows directly from that court’s

charactenzation of Section 113(f)(2) as “immunity” that such an

order would be immediately appealable in the First Circuit. See

Mitchell v. Forsyth, 472 U.S. 511 (1985).

The district court below similarly held that “|sjection 113(f)(2)

provides immunity from contribution liability for all parties that

settle with the Goverment, for all the matters covered in Consent

Decree.” App. 53a. Numerous other district courts have made

similar pronouncements. See, e.g., Dravo Corp. v. Zuber, 804

F. Supp. 1182, 1185 (D. Neb. 1992) (“The courts have consistently

enforced CERCLA by providing settling parties with immunity

from any claim regarding matters in the settlement. . . .’); City and

County of Denver v. Adolph Coors Company, 829 F. Supp. 340,

346 (D. Colo. 1993) (charactenzing Section 113(f)(2) as providing

immunity from contnbution claims); United States v. Asarco, Inc..

814 F. Supp. 951, 957 (D. Colo. 1993) (same).

These decisions are true to the language of Section 113(f)(2)

and promote Congress’ goals to encourage the early settlement of

CERCLA claims and reduce the costly litigation of these complex

matters. To give effect to the language of Section 113(f)(2) and to

Congress’ clear intent in enacting it, this Court should grant the

petition, and resolve the conflict between the First and Third

Circuits on this important issue.

20

CONCLUSION

To resolve a direct conflict between the Second, Fifth. Eighth

and Eleventh Circuits on a vital issue conceming the efficient use

of judicial resources to minimize the enormous costs of complex

litigation, and to resolve a conflict between the First and Third

Circuits and vindicate the explicit Statutory entitlement not to be

ined for claims for contribution pursuant to CERCLA Section

113(f)(2), this Court should grant this petiion for a writ of

certioran and reverse the decision below.

Respectfully submitted,

GEORGE M. NEWCOMBE*

DAVID B. SMALLMAN

ELIZABETH A. FUERSTMAN

SIMPSON THACHER & BARTLETT

(a partnership which includes

professional corporations)

425 Lexington Avenue

New York, NY 10017-3909

(212) 455-2000

*Counsel of Record Counsel for Petitioners

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