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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 512 U.S. 1213

## Text

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

ae — —

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0943%3A1. Public record. Not legal advice.