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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 525 U.S. 1104

## Text

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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1172%3A2. Public record. Not legal advice.