Opposition Brief — PMC, Inc. v. Sherwin-Williams Co.

Supreme Court, U.S

: as Take Bay Oe ©

No. 98-784

IN THE

Supreme Court of the United States

OcTOBER TERM, 1998

PMC, INC.,

Petitioner,

VS.

THE SHERWIN-WILLIAMS COMPANY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

RESPONDENT?’S BRIEF IN OPPOSITION

KIM K. BURKE J. TIMOTHY EATON

J. STEVEN JUSTICE Counsel of Record

TAFT, STETTINIUS WILLIAM L. SIEBERS

& HOLLISTER L.L.P. UNGARETTI & HARRIS

1800 Star Bank Center 3500 Three First National Plaza

425 Walnut Street Chicago, Illinois 60602

Cincinnati, Ohio 45202 (312) 977-4400

(513) 381-2838

Attorneys for Respondent

150135 @J Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 * (800) 359-6859

i

QUESTIONS PRESENTED

I. Whether the Court should deny PMC’s petition for

certiorari because the only Circuit courts to address the

issue whether a CERCLA section 113(f)(1) contribution

claim preempts state law claims, have all consistently held

that a CERCLA section 113(f)(1) contribution claim does

preempt state law claims?

II. Whether the Court should exercise judicial restraint and

deny PMC’s petition for certiorari because, if in the Court’s

view a conflict does exist between the Seventh Circuit’s

decision in PMC and the Ninth Circuit’s decision in

Stanton, the time is not ripe to resolve the conflict?

Il]. Whether this Court should deny PMC’s petition for

certiorari when this appeal is at an interlocutory stage and

the final disposition of the case may grant PMC the relief

it is seeking?

IV. Whether PMC’s past costs claim for less than one million

dollars is sufficient to warrant this Court’s review?

V. Whether this Court should review the CERCLA preemption

issue when Sherwin-Williams raised independent state

grounds that would deny PMC any recovery under the

Illinois Contribution Act?

il

PARTIES TO THE PROCEEDING AND

STATEMENT PURSUANT TO RULE 29.6

The petition accurately lists the parties to the proceeding.

Pursuant to Rule 29(6) of the Rules of the Supreme Court,

Sherwin-Williams has no parent companies. The following are

nonwholly owned subsidiaries of Sherwin-Williams:

Beijing Pratt & Lambert Paints Joint Venture

Limited Liability Company

FSW Coatings Limited

FSW Paints Limited

Hidrax S.A.

John’s Color Wheel and Decorating, Inc.

Kayney Paints, Inc.

Duracoat Powder Manufacturing Inc. (Canada)

29.6

ili

TABLE OF CONTENTS

Se ee ESS Se ae Se Oe ee 2 8 i OOS oe ew Se

Reasons for Denying the Writ ............. ene eas

I.

Il.

IIT.

The Seventh Circuit Court Of Appeals’

Interpretation Of CERCLA In PMC, Inc. vy.

Sherwin-Williams Co. Does Not Conflict With

Prior Decisions Of The Ninth And Tenth Circuits.

ee ee RN eR Se ee eee at ee Oa eae a eee

The Court Still Should Deny PMC’s Petition

Because The Time Is Not Ripe To Resolve The

Conflict If, In The Court’s View, A Conflict Does

Exist Between The Seventh Circuit’s Decision In

PMC And The Ninth Circuit’s Decision In

BESET AS SARE Si ie sed rey eae eee ae

This Court Should Deny PMC’s Petition Because

The Appeal Is Interlocutory And Other Claims

Remain In The District Court That Could Give

PMC A Full Recovery Of Its Past Costs. .....

il

ili

2B

15

iv

Contents

Page

IV. PMC’s Past Costs Claim For Less Than One

Million Dollars Is Not Sufficient To Warrant This

COT CRON: Se 17

V. PMC’s Claim Under The Illinois Contribution Act

Should Also Have Been Denied Because It Failed

To Meet State Law Prerequisites To Bring An

Acton For Comitios. os 5. 18

MINI onc xe a ee ee ene ree 20

TABLE OF CITED AUTHORITIES

Page

Cases:

Alaska v. American Can Company, 358 U.S. 224 (1959)

RA PRE PR ey he bee Ny 17

Bedford Affiliates v. Sills, 156 F.3d 416 (2d Cir. 1998)

4K ROEREN WW ee OED Read aw eo ee aa ee 8, 10, 12

City & County of Denver v. New York Trust Co., 229

i SOO EES ie onde 15

Estelle v. Gamble, 429 U.S. 97 CES Tee: cb csateee 17

Henry v. St. Johns Hospital, 563 N.E. 2d 410 (Ill. 1990)

ea ara ae OK Sb ee Rees eds as ees 18

In re Reading Co., 115 F.3d 1111 (3d Cir. 1997) ....

AP re PE ee or he er NC Tae td eG geeks 6,7, 8, 16,12

Johnson v. Jones, 515 U.S. 304 CR ir 15, 16

Laue v. Leifheit, 473 N.E. 2d 939 (Ill. bo} ae en 18

Manor Care, Inc. v. Yaskin, 950 F.2d 122 (3d Cir. 1991)

LDEERGS TSG AWS WE MOORE EO de 7

People v. Brockman, 574 N.E. 2d 626 (11. 1991) .... 19

Stanton Road Associates v. Lohrey Enterprises, 984 F.2d

rOl> (9 Cie. 1999) oe ee ee. i, 8,9, 10, 12, 13

vi

Cited Authorities

Page

United States v. Colorado, 990 F.2d 1565 (10th Cir.

1993), cert. denied, 510 U.S. 1092 (1994) .... 8, 10, 11, 12

United States v. Mitchell, 463 U.S. 206 a, 7.) Se 17

United States v. Zazov, 334 U.S. 602 CRIED sch See 17

Witco Corp. v. Beekhuis, 38 F.3d 682 (3d Cir. 1994) . 7

Statutes:

46 UBL: § RR) iis ee ke 16

42 U.S.C. § 960Me) (1904) Bee l

42 USC. § 9607 908) 6 ss ae 3, 8,9, 10, 13

42 USL. § S6R Ha) C1998) ooo aoe y Se

42 USL. § S613. (198R) . LAS es ee. 3

42 U.S.C. § 9613(f)(1) (1994) ...i, 2, 4, 5,7, 8, 10, 12, 13, 18

42 USC: § MING oS eS 9

42 U.S.C. § 9613(h) (1994) . .................... 11

2 USC. § SIC SS ee 9

vil

Cited Authorities

Page

TE UGE. SSeS). 9

eae EO iN ee oo ge ce 9

SF do GE PROM ISPO).. os ee 6,9, 11

740 Ill. Comp. Stat. 100/2(a) CWwOe Sete oka: 5

Rule:

Pe Nocatee 16

Other Authorities:

Illinois Environmentai Protection Act, section 4(q) .. 2

Justice John Paul Stevens, Some Thoughts on Judicial

Restraint, 66 Judicature 177 MO wl vccca 14

Justice William J. Brennan, Jr., Some Thoughts on the

Supreme Court's Workload, 66 Judicature 230

CRP hs Ge teeel i eeieiisce ee 14

Stern, Gressman, Shapiro and Geller, Supreme Court

Practice 196 (7th ed. 1993) .................... 15

]

STATEMENT OF THE CASE

PMC bought its Chicago facility in 1985 from Sherwin-

Williams. At the time that PMC bought the property, it knew

toxic wastes were located on the property. Pet. App. at A-11.'

Indeed, in 1981 Sherwin-Williams filed with the United States

Environmental Protection Agency a Notification of Hazardous

Wastes Site under section 103(c) of CERCLA in which it stated

that

there were drums buried at the Historic Sherwin-

Williams Site, releases of waste to the environment

were likely, and that manufacturing residue [was]

dumped in the low-lying areas south of Kensington

Avenue.

Pet. App. at B-5.

PMC has been operating its chemical operations at the site

since 1985. The district court found the following:

During its ownership and operation of the PMC

Facility, PMC (through divisions or subsidiaries) has

at various times manufactured alkali blue, para-

cresol, dinitroparacresol, ononitroparacresol and

isophthalonitrile: In addition, the following

chemicals and/or hazardous substances have been

spilled onto the soil and/or groundwater or have

leaked or spilled into the facility’s sewer system:

cresol sodium hydroxide

toluene meta-xylene

sulfuric acid E-benzene

sodium toluene nitric acid

aniline ethyl benzene

hydrochloric acid TSA

Pet. App. at B-6.

1. All record citations are to Petitioner’s Appendicies A and B.

2

On December 8, 1992, the Illinois Environmental

Protection Agency (“IEPA”) issued a notice to PMC pursuant

to section 4(q) of the Illinois Environmental Protection Act

(the “4(q) Notice”). The Notice stated that

the release of hazardous substances at, from or

attributable to the [PMC Facility] and the continuing

threat of release at the PMC Facility present an

immediate and significant risk of harm to human

health, welfare and the environment

and that “the actions required by this Notice are necessary to

protect human health, welfare, and the environment.” Pursuant

to the 4(q) Notice, the IEPA ordered PMC to investigate whether

a release of hazardous substances occurred at the PMC Facility,

to complete appropriate response actions, and to reimburse the

IEPA for response and oversight costs. Pet. App. at B-11.

Following the issuance of the 4(q) Notice, PMC brought

this action against Sherwin-Williams in 1993 seeking, inter alia,

damages under CERCLA, RCRA, and under various state law

theories. Subsequent to the initiation of this proceeding, the

State of Illinois sued PMC for its contamination of the land at

its facility, and also for air and water violations unrelated to

this proceeding.

In its complaint against Sherwin-Williams, PMC sought

recovery under CERCLA based upon sections 107(a) and

113(f)(1). Under section 107(a), an aggrieved party who is not

among the parties liable for the contamination at the site in

question may obtain joint and several liability against those

parties who are liable for the contamination. In contrast, in

section 113(f)(1), Congress provided the opportunity for a liable

party to seek contribution from other liable or potentially liable

parties. Thus, liability under section 113(f)(1) is several only

wore

Hetero

BR Bi eran ae tetecisirledts. Wan he CARA anc elias ch 2

3

and commonly used dy parties to recover costs subject to the

strict requirements of the national contingency plan.

In its cause of action under section 107(a), PMC did not

invoke an “innocent land owner” defense. Pet. App. at A-10.

In fact, the district court found that PMC’s operations may have

contributed to the organic compound contamination in the soil

and/or groundwater through spills and leaks at the site. Pet.

App. at B-6. Thus, although PMC sought recovery under both

sections 107 and 113 of CERCLA, the Seventh Circuit observed

that “since PMC did spill some toxic waste on the property, it

may not be entitled to any relief uncer [section 107].” Pet. App.

at A-10. In assessing the viability of PMC’s section 113 claim

under CERCLA, the Seventh Circuit concluded that PMC:

[I]s not a victim of toxic waste contamination in

any realistic sense. It bought the property from

Sherwin-Williams knowing there were toxic wastes

there, and by buying it became a responsible party

strictly liable for the consequences of those wastes.

That PMC may have rights against other, more

culpable responsible parties does not change PMC

into the victim of a tort, it is merely the less guilty

of two tortfeasors.

Pet. App. at A-11.

The district court denied PMC’s right to recover response

costs under CERCLA because of PMC’s failure to “provide

for public comment” in violation of the 1990 National

Contingency Plan. Pet. App. at B-19. Although the district court

recognized the importance of adherence to a national

environmental regulatory scheme, the court awarded PMC its

past response costs under the Illinois Contribution Act. Pet.

App. at B-22.

4

The Seventh Circuit reversed the district court’s award of

past costs under the Illinois Contribution Act:

PMC’s invocation of Illinois’ contribution statute

is an attempt to nullify the sanction that Congress

imposed for the kind of CERCLA violation that

PMC committed.

... CERCLA’s savings clause must not be used to

gut provisions of CERCLA.

Pet. App. at A-12.

PMC is petitioning to this Court from the Court of Appeals’

reversal of its recovery under the Illinois Contribution Act.

REASONS FOR DENYING THE WRIT

I.

THE SEVENTH CIRCUIT COURT OF APPEALS’

INTERPRETATION OF CERCLA IN PMC, INC. v. SHERWIN-

WILLIAMS CO. DOES NOT CONFLICT WITH PRIOR

DECISIONS OF THE NINTH AND TENTH CIRCUITS.

Contrary to PMC’s assertion, the Seventh Circuit’s

interpretation of CERCLA in PMC, Inc. v. Sherwin-Williams

Co. does not conflict with prior Ninth and Tenth Circuit

decisions interpreting CERCLA because, in pertinent part, each

of the courts construed different sections of the CERCLA

Statute.

In PMC, the Seventh Circuit addressed the interplay of

CERCLA’s contribution provision in section 113(f)(1), 42

U.S.C. § 9613(f)(1) (1994), and the Illinois Joint Tortfeasor

5

Contribution Act (the “IIlinvis Contribution Act”), 740 III.

Comp. Stat. 100/2(a) (West 1997). Pet. App. at A-8-12. The

Seventh Circuit noted that because PMC failed to incur its past

response costs consistent with the statutory requirements of the

national contingency plan, the district court held that PMC could

not obtain any contribution under CERCLA § 113(f)(1) from

Sherwin-Williams for those cleanup costs. Pet. App. at A-9.

Indeed, PMC accepted this ruling. Jd. at A-9. Nevertheless, the

district court allowed PMC to obtain under the Illinois

Contribution Act the same past response costs that the district

court would not allow under section 113(f)(1) of CERCLA. Jd.

On appeal, Sherwin-Williams argued that the district

court's award of response costs under the Illinois Contribution

Act improperly circumvented CERCLA’s limitation on

contribution, and the Seventh Circuit agreed. Jd. at A-11-12.

The Seventh Circuit emphasized that Congress limited the right

of contribution under section 113(f)(1) of CERCLA by requiring

consistency with the national contingency plan. /d. at A-11. If

that requirement is violated, the sanction is denial of

contribution under CERCLA. /d. Thus, the Seventh Circuit

concluded that in essence,

PMC’s invocation of Illinois’ contribution statute

[wa]s an attempt to nullify the sanction that

Congress imposed for the kind of CERCLA

violation that PMC committed.

Id.

The Seventh Circuit recognized CERCLA’s savings clause,

which states that nothing in CERCLA

shall affect or modify in any way the obligations or

liabilities of any person under other Federal or State

6

law, including common law, with respect to releases

of hazardous substances or other pollutants or

contaminants

42 U.S.C. § 9652(d) (1994); Jd. at A-10. PMC has, however,

attempted to broaden this provision beyond its plain intent, as’

various courts have found. The Seventh Circuit stated that the

purpose of CERCLA’s savings clause was “to preserve to

victims of toxic was*es the other remedies they may have under

federal or state law.” Jd. Significantly, however, the Seventh

Circuit emphasized that PMC was not a victim of environmental

contamination in this case:

PMC ... is not a victim of toxic-wastes

contamination in any realistic sense. It bought the

property from Sherwin-Williams knowing there

were toxic wastes there, and by buying it became a

responsible party strictly liable for the consequences

of those wastes. That PMC may have rights against

other, more culpable responsible parties does not

change PMC into the victim of a tort; it is merely

the less guilty of two tortfeasors.

Id. at A-10-11.

More importantly, the Seventh Circuit noted that a savings

clause is not intended to allow specific provisions of the statute

that it contains to be nullified. Jd. at A-11. Thus, it concluded

that PMC could not use CERCLA’s savings clause “to gut the

provisions of CERCLA,” and thereby recover its past response

costs under the Illinois Contribution Act. Jd.

In PMC, the Seventh Circuit partially relied on the Third

Circuit’s analysis in /n re Reading Co., 115 F.3d 1111 (3d Cir.

1997). In Reading, third-party plaintiff Conrail brought claims

aed he Shean Dera catia esiAl oie

; 7

under CERCLA and state common law contribution and

restitution against Reading for the recovery of past response

costs. /d. at 1117. The Third Circuit concluded with respect to

CERCLA that Conrail, as a potentially responsible party, was

limited to bringing a contribution claim against Reading under

section 113(f)(1). Jd. at 1120-21. Most importantly, the Third

Circuit held that Conrail’s CERCLA claim under section

113(f)(1) preempted its state common law claims for

contribution and restitution because the common law claims

negated the contribution scheme in section 113(f)(1) of

CERCLA. /d. at 1117. Although the Third Circuit had declined

to find an actual inconsistency between CERCLA and state

regulation in other cases, id. (citing Witco Corp. v. Beekhuis,

38 F.3d 682, 688-90 (3d Cir. 1994) (finding no conflict between

CERCLA statute of limitations for contribution and Delaware

state law limiting time period for claims against decedent’s

estate); Manor Care, Inc. v. Yaskin, 950 F.2d 122, 127 (3d Cir.

1991) (finding no conflict between CERCLA and cost recovery

provisions of New Jersey Spill Compensation and Control Act)),

the Third Circuit found in favor of CERCLA preempting state

law in Reading because the state common law remedies

obstructed the intent of Congress. Jd.

[W]hen Congress expressly created a statutory right

of contribution in CERCLA § 113(f)(1), 42 U.S.C.

§ 9613(f), it made that remedy a part of an elaborate

settlement scheme aimed at the efficient resolution

of environmental disputes. Permitting independent

common law remedies would create a path around

the statutory settlement scheme, raising an obstacle

to the intent of Congress. We conclude therefore

that Conrail’s common law claims are preempted

by CERCLA § 113(f)(1).

Id.

8

Recently, the Second Circuit in Bedford Affiliates v. Sills,

156 F.3d 416, 425-27 (2d Cir. 1998), faced the same preemption

arguments raised in Reading, and it followed the reasoning of

the Third Circuit in holding that the contribution scheme

realized in section 113(f)(1) of CERCLA preempted state

common law claims for restitution and indemnification.

Taken together, the Seventh, Third, and Second Circuit

decisions stand for the proposition that if a party brings both a

contribution claim pursuant to section 113(f)(1) of CERCLA

and state law claims for recovery of those same response costs,

and if the state law claims conflict with the express contribution

scheme in section 113(f)(1) of CERCLA by nullifying,

obstructing, or circumventing the intent of Congress, the state

law remedies will be preempted.

PMC contends that the decisions of Seventh, Third, and

Second Circuits analyzed above are in conflict with the Ninth

Circuit’s decision in Stanton Road Associates vy. Lohrey

Enterprises, 984 F.2d 1015 (9th Cir. 1993), and the Tenth

Circuit’s decision in United States v. Colorado, 990 F.2d 1565

(10th Cir. 1993), cert. denied, 510 U.S. 1092 (1994). PMC fails

to recognize a critical distinction that neither decision conflicts

with the decisions of the Seventh, Third, and Second Circuits

because neither the Ninth nor 1 enth Circuit decisions addressed

the issue of preemption of state law claims in the context of a

contribution claim brought pursuant to section 113(f)(1) of

CERCLA.

In Stanton, the Ninth Circuit, in part, faced the issue of

whether CERCLA authorizes an award of future response costs

under section 107. 984 F.2d at 1016. The defendants owned

and operated a dry cleaning facility contiguous to the property

of Stanton Road Associates (“Stanton”). /d. During the

operation of the dry cleaning facility, a hazardous chemical

ek Reet eed eee

9

was reieased, and it ultimately contaminated Stanton’s property.

/d. As an innocent land owner whose property had been

contaminated through no fault of its own, Stanton sued for

response costs under section 107 of CERCLA, 42 U.S.C. § 9607

(1994) (which allows relief to an innocent landowner), for

declaratory relief under section | 13(g) of CERCLA, 42 U.S.C.

§ 9613(g) (1994), and for damages under state law claims for

trespass, negligence, and nuisance. See id. at 1016, 1021. The

district court found the defendants liable and, in part, awarded

Stanton future response costs of $1,100,000 under both

CERCLA and state law. /d. at 1017.

The Ninth Circuit held that the district court erred in

awarding Stanton future cleanup costs under section 107 of

CERCLA because a party must actually incur response costs

before they can be recovered and because those response costs

must be necessary and consistent with the national contingency

plan. /d. at 1021. At the time of the district court’s decision,

Stanton had not cleaned up its property. /d. Thus, Stanton had

not yet incurred its future response costs, and it was impossible

for Stanton to prove that the future response costs were

necessary and consistent with the national contingency plan.

See id.

The district court, however, had awarded the future

response costs to Stanton under CERCLA and the state law

claims. /d. Before the Ninth Circuit, the defendants argued that

the district court could not award Stanton future response costs

under state law because such a ruling would permit Stanton to

circumvent CERCLA’s requirement that response costs be

necessary and consistent with the national contingency plan.

Id. The Ninth Circuit found the defendants’ argument meritless.

Id. In light of CERCLA’s savings provision in section 302,

42 U.S.C. § 9652(d), and other language in section 114 of

CERCLA, 42 U.S.C. § 9614(b) (1994), implying that a party

10

can recover other types of damages under either CERCLA or

state law, the Ninth Circuit held in the context of a section 107

claim (the innocent landowner provision) that CERCLA did

not preempt Stanton’s recovery of future response costs. Jd. at

1021-22.

Significantly, however, unlike the Seventh Circuit in PMC,

the Third Circuit in Reading, and the Second Circuit in Bedford,

the Ninth Circuit did not address whether a contribution claim

brought pursuant to section 113(f)(1) of CERCLA preempts

state law claims. The Ninth Circuit did not address this question

because, as an innocent land owner, Stanton brought a claim

for response costs under section 107 of CERCLA and sought

joint and several liability against the defendants. Indeed, the

Ninth Circuit had no need to discuss whether the elaborate

settlement scheme that Congress instituted in section 1 13(f)(1)

of CERCLA for contribution claims should preempt state law

claims that conflict with the Congressional scheme because

Stanton did not bring a CERCLA contribution claim. Therefore,

the Ninth Circuit has yet to address the specific issue that the

Seventh Circuit addressed in PMC, that the Third Circuit

addressed in Reading, and that the Second Circuit addressed in

Bedford. As such, no conflict exists with the Ninth Circuit and

the other circuits on this issue.

PMC also claims that the Tenth Circuit’s decision in United

States v. Colorado, 990 F.2d 1565 (10th Cir. 1993), conflicts

with the Seventh, Third, and Second Circuit decisions discussed

above. Again, this assertion is inaccurate. In Colorado, the

Tenth Circuit did not address whether a section 113(f)(1)

CERCLA contribution claim preempts state law claims. At issue

in Colorado was whether the Colorado Department of Health

(“CDH”), which the United States Environmental Protection

Agency (“EPA”) had authorized to carry out the state hazardous

waste program in lieu of the federal Resource Conservation

1]

and Recovery Act (“RCRA”), was precluded from doing so at

a hazardous waste treatment, storage, and disposal facility

owned and operated by the United States Army, which the EPA

had placed on the national priority list, and where a CERCLA

response action, initiated by the Army, was underway. Jd. at

1568-69.

Pursuant to the Colorado Hazardous Waste Management

Act (““CHWMA”), the CDH issued a compliance order to the

Army requiring the Army to submit a closure plan for the Rocky

Mountain Arsenal, which was one of the worst hazardous waste

pollution sites in the country. /d. at 1569, 1573. The Army,

which was also engaged ina CERCLA response action at the

site, refused to comply with the CDH’s order. See id. at 1572-

74. Ultimately, the United States brought a declaratory action

in federal court and sought a court order declaring the CDH’s

compliance order null and void and enjoining Colorado and

the CDH from taking any action to enforce it. Jd. at 1573-74.

The district court held, pursuant to section 1 13(h) of CERCLA,

42 U.S.C. § 9613(h) (1994), that it did not have jurisdiction to

review the CDH’s “challenge” to the CERCLA response action

at the Rocky Mountain Arsenal site, and the court granted the

United States the relief it requested. Jd. at 1574.

Relying on CERCLA’s Savings provision, 42 U.S.C.

§ 9652(d), and section 114(a) of CERCLA, which states that

[nJothing in [CERCLA] shall be construed or

interpreted as preempting any State from imposing

any additional liability or requirements with respect

to the release of hazardous substances within such

State,

42 U.S.C. § 9614(a) (1994), the Tenth Circuit concluded that

the district court erred:

12

By holding that § 9613(h) bars Colorado from

enforcing CHWMA, the district court effectively

modified the Army’s obligations and liabilities.

under CHWMA contrary to § 9652(d), and

preempted Colorado from imposing additional

requirements with respect to the release of hazardous

substances contrary to § 9614(a).

*- * * =

... In light of §§ 9652(d) and 9614(a), which

expressly preserve a state's authority to undertake

such action, we cannot say that Colorado’s efforts

to enforce its EPA-delegated RCRA authority is a

challenge to the Army’s undergoing CERCLA

response action.

Colorado, 990 F.2d at 1576. The Tenth Circuit reversed the

district court’s decision and vacated the order prohibiting

Colorado and the CDH from taking any action to enforce its

compliance order. /d. at 1584.

Clearly, this brief survey of the Tenth Circuit’s decision

in Colorado is sufficient to dispel PMC’s assertion that this

case conflicts with the Seventh Circuit’s decision in PMC, the

Third Circuit’s decision in Reading, and the Second Circuit's

decision in Bedford. In Colorado, the Tenth Circuit never

addressed whether a section 113(f)(1) CERCLA contribution

claim preempted state law claims. The Tenth Circuit in

Colorado, like the Ninth Circuit in Stanton, addressed the issue

of preemption with respect to other portions of CERCLA, not

a contribution claim brought pursuant to section 1 13(f)(1). As

such, the Tenth Circuit and Ninth Circuit decisions are like

other Third Circuit decisions cited in Reading wherein the Third

Circuit has held, with respect to other portions of CERCLA,

that state law is not preempted.

13

At present only three federal appellate courts have squarely

addressed the issue of whether a contribution claim brought

pursuant to section 113(f)(1) of CERCLA preempts state law

claims: the Seventh Circuit, the Third Circuit, and the Second

Circuit. All three consistently have held that a section 1 13(f)(1)

CERCLA contribution claim preempts state law claims.

Because no conflict exists among the federal circuits on this

issue, Sherwin-Williams respectfully requests that the Court

deny PMC’s petition for a writ of certiorari.

Il.

THE COURT STILL SHOULD DENY PMC’S PETITION

BECAUSE THE TIME IS NOT RIPE TO RESOLVE THE

CONFLICT IF, IN THE COURT’S VIEW, A CONFLICT

DOES EXIST BETWEEN THE SEVENTH CIRCUIT’S

DECISION IN PMC AND THE NINTH CIRCUIT’S

DECISION IN STANTON.

Among the federal appellate decisions discussed in PMC’s

petition, only the Seventh Circuit’s decision in PMC and the

Ninth Circuit’s decision in Stanton have addressed the issue of

whether allowing a party, who seeks response costs under

CERCLA and state law and who has not complied with the

national contingency plan, to recover under state law improperly

circumvents or nullifies CERCLA’s requirement that response

costs be necessary and consistent with the national contingency

plan. In the context of Stanton’s CERCLA section 107 claim,

the Ninth Circuit said no and held that CERCLA did not preempt

such a state law recovery. Stanton, 984 F.2d at 1021-22. In the

context of PMC’s CERCLA section 113(f)(1) contribution

claim, the Seventh Circuit said yes and held that PMC could

not recover under the Illinois Contribution Statute because to

allow such recovery would nullify the sanction that Congress

had imposed in CERCLA for violation of the national

contingency plan. Pet. App. at A-11.

14

In the event that the Court finds the Seventh Circuit

decision and the Ninth Circuit decision in conflict, the Court

still should exercise its discretion to deny PMC’s petition

because the time is not ripe to resolve the conflict. Given that

only two federal circuits have addressed the issue noted above,

the Court would be prudent to await further litigation that might

produce a consensus or a satisfactory majority view among the

lower courts. Indeed, Justice Brennan once observed that

there is already in place, and has been ever since |

joined the Court [in 1956], a policy of letting

tolerable conflicts go unaddressed until more than

two courts of appeals have considered a question.

Justice William J. Brennan, Jr., Some Thoughts on the Supreme

Court’s Workload, 66 Judicature 230, 233 (1983). In a broader

sense, Justice Stevens has iterated the same conclusion:

[T]he existence of differing rules of law in different

sections of our great country is not always an

intolerable evil. . . . It would be better, of course, if

federal law could be applied uniformly in all federal

courts, but experience with conflicting

interpretations of federal rules [of law] may help to

illuminate an issue before it is finally resolved and

thus may play a constructive role in the lawmaking

process. The doctrine of judicial restraint teaches

us that patience in the judicial resolution of conflicts

may sometimes produce the most desirable result.

Justice John Paul Stevens, Some Thoughts on Judicial Restraint,

66 Judicature 177, 183 (1982).

Therefore, based on the foregoing reasoning, Sherwin-

Williams respectfully requests that the Court exercise judicial

restraint and deny PMC’s petition for a writ of certiorari.

15

Ill.

THIS COURT SHOULD DENY PMC’S PETITION

BECAUSE THE APPEAL IS INTERLOCUTORY AND

OTHER CLAIMS REMAIN IN THE DISTRICT COURT

THAT COULD GIVE PMC A FULL RECOVERY OF ITS

PAST COSTS.

This Court does not ordinarily grant a petition for certiorari

when the appeal is at an interlocutory stage. Stern, Gressman,

Shapiro and Geller, Supreme Court Practice 196 (7th ed. 1993).

The exceptional power to review, upon certiorari, a

decision of a Circuit Court of Appeals rendered to

an appeal from an interlocutory order is intended to

be and is sparingly exercised.

City & County of Denver v. New York Trust Co., 229 U.S. 123,

133 (1912). Justice Breyer arti- ulated the rationale behind this

Court’s long-standing principle of denying review to

interlocutory orders in Johnson v. Jones, 515 U.S. 304, 307

(1995):

Interlocutory appeals .. . are the exception, not the

rule. [An interlocutory appeal] risks additional, and

unnecessary appellate work either when it presents

appellate courts with less developed records or when

it brings them appeals that, had the trial simply

proceeded, would have turned out to be unnecessary.

The facts of this case require. application of the rule denying

interlocutory review — not the exception.

PMC is seeking past response costs not only under

CERCLA and the Illinois Contribution Act but also in separate

16

state law counts based upon breach of contract and fraud. The

district court held a hearing in November, 1996 concerning

PMC’s CERCLA, RCRA, and contribution claims. All other

counts were stayed.

On April 23, 1997, the district court denied PMC’s claim

for past response costs under CERCLA, awarded those same

past costs to PMC under the Illinois Contribution Act, and,

inter alia, entered an injunction in favor of PMC and against

Sherwin-Williams under RCRA. Sherwin-Williams appealed

the RCRA injunction and several related claims pursuant to

28 U.S.C. § 1292(a), which permits interlocutory appeals of

injunctions. Subsequent to that appeal, the district court granted

PMC’s motion pursuant to Rule 54(b) of the Federal Rules of

Civil Procedure to certify the remaining counts decided in the

April 23rd judgment. At the time of the entry of the Rule 54(b)

Order by the district court, both the court and the parties agreed

that there would be no further proceedings on the counts not

tried and remaining in the district court until the conclusion of

the appeal. Two of those remaining counts included PMC’s

counts based upon breach of contract and fraud seeking damages

for its past response costs. Those counts still remain pending

in the district court and await trial.

Although Sherwin-Williams disputes PMC’s entitlement

to any recovery under the remaining counts before the district

court, the disposition of those counts may result in PMC’s

recovery of the same damages it is seeking under its state

Contribution Act claim. If PMC recovered those past response

costs under either its contract claim or fraud claim, the appeal

before this Court would be moot.

If this Court grants PMC’s petition for certiorari before a

final judgment is entered, it would risk the very event Judge

Breyer warned against in Johnson: “[H]ad the trial simply

proceeded, [the appeal] would have turned out to be

17

unnecessary.” Moreover, as Justice Stevens aptly stated in his

dissent in Estelle v. Gamble, 429 U.S. 97, 115 (1976), the

interest of judicial economy is itl-served when this Court

violates its normal practice of denying interlocutory review.

PMC’s petition for certiorari should be denied because it

does not present the type of case that deserves exceptional

treatment from this Court’s normal practice of denying

interlocutory review.

IV.

PMC’S PAST COSTS CLAIM FOR LESS THAN ONE

MILLION DOLLARS IS NOT SUFFICIENT TO

WARRANT THIS COURT’S REVIEW.

The claim PMC is making for past response costs stemming

from clean-up activities at the PMC site is less than one million

dollars.* The issue that PMC raises in its petition does not

involve an especially large amount of money. Indeed, of all of

the issues that the district court addressed in its April 23, 1997

judgment, PMC’s award for past costs, monetarily, was the least

significant claim decided.

Although the Court has granted certiorari where the

damages claimed “may amount to one hundred million dollars,”

see United States v. Mitchell, 463 U.S. 206, 211 n.7 (1983), or

where “billions of dollars were at stake,” sce United States v.

Zazov, 334 U.S. 602, 614 n.7 (1948), or where there is

significant issue of fiscal importance to a state, see Alaska v.

American Can Company, 358 U.S. 224, 225 (1959), the alleged

damages at issue in this case are less than one million dollars.

For this reason alone, PMC’s petition does not merit the Court’s

review.

2. The district court has not made an award of prejudgment interest

on these amounts.

18

V.

PMC’S CLAIM UNDER THE ILLINOIS CONTRIBUTION

ACT SHOULD ALSO HAVE BEEN DENIED BECAUSE IT

FAILED TO MEET STATE LAW PREREQUISITES TO

BRING AN ACTION FOR CONTRIBUTION.

Because the Seventh Circuit found that CERCLA

preempted PMC’s § 113(f)(1) contribution claim, it did not

address the additional grounds that Sherwin-Williams raised

in its brief to deny PMC any recovery under the Illinois

Contribution Act. These grounds would have barred PMC from

any recovery under the state statute independent of the

application of the preemption doctrine.

By pursuing a “stand-alone” contribution claim against

Sherwin-Williams in its federal complaint after the State of

Illinois filed a separate lawsuit against PMC which addressed

the underlying claim, PMC violated one of the basic

preconditions to obtaining recovery under the IIlinois

Contribution Act because PMC was required to bring its

contribution claim in its litigation with the State. The IIlinois

Supreme Court made clear in Laue v. Leifheit, 473 N.E. 2d 939

(Ill. 1984), that there is a strong public policy behind requiring

parties to litigate percentages of liability claims in one

proceeding. The Illinois Supreme Court reaffirmed this

requirement in Henry v. St. Johns Hospital, 563 N.E. 2d 410,

414 (Ill. 1990), where the court held that any time a joint

tortfeasor fails to bring a joint contribution claim in an action

where all parties’ liability can be assessed, the contribution

claim is a nullity: “Where there is a pending action, the

contribution claim must be asserted in that action.” PMC’s

failure to adhere to this precondition of obtaining recovery

under the Illinois Contribution Act would have precluded it

from obtaining any damages independent of the Seventh

Circuit’s ruling on preemption.

19

Moreover, through a mistake in judgment, PMC incurred

unnecessary response costs that constitute a substantial

percentage of the past response costs that PMC seeks in this

case. The district court recognized that PMC made an erroneous

characterization of the soil for disposal (resulting in unnecessary

disposal costs), Pet. App. at B-13, and yet, despite the court’s

finding as to PMC’s mistake, the district court assessed all of

the cost of the mistake to Sherwin-Williams, /d. at B-23.

Sherwin-Williams raised this error in the Seventh Circuit

appeal, and absent the Seventh Circuit’s preemption ruling, the

error would have barred PMC’s recovery under the Illinois

Contribution Act.

Finally, although not raised by the parties in this lawsuit,

it is reasonable to assume that the Illinois Supreme Court, in

light of its past concerns with protecting our environment, (see

People v. Brockman, 574 N.E. 2d 626 (Ill. 1991), would not

permit recovery under the Illinois Contribution Act where a

joint tortfeasor has failed to comply with the dictates of the

national contingency plan. Until Illinois courts decide this issue,

it would be premature for this Court to address the issue of

federal preemption in this context.

PMC’s petition should be denied because PMC is not

entitled to a recovery under the Illinois Contribution Act even

if this Court were to agree with PMC’s arguments on

preemption.

20

CONCLUSION

For the reasons given above, this Court should deny PMC’s

Petition for Writ of Certiorari.

Respectfully submitted,

J. TIMOTHY EATON

Counsel of Record

WILLIAM L. SIEBERS

UNGARETTI & HARRIS

3500 Three First National Plaza

Chicago, Illinois 60602

(312) 977-4400

KIM K. BURKE

J. STEVEN JUSTICE

TAFT, STETTINIUS

& HOLLISTER L.L.P.

1800 Star Bank Center

425 Walnut Street

Cincinnati, Ohio 45202

(513) 381-2838

Attorneys for Respondent