Supplemental Brief — UGI Utilities, Inc. v. Consolidated Edison Edison Co. of New York, Inc. (No. 05-1323)
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FILED
4 SEP 112008 3
No. 05-1323 OFFICE OF THE CLEr..
— T, U.S. |
IN THE
Supreme Court of the United States
UGI UTILITIES, INC.,
Petitioner,
¥.
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.,
Respondent.
On Petition for.a Writ of Certiorari to the
United States Court of Appeals for the Second Circuit
SUPPLEMENTAL BRIEF FOR PETITIONER
,
G. MICHAEL HALFENGER JAY N. VARON*
PAUL BARGREN FOLEY & LARDNER LLP
FOLEY & LARDNER LLP 3000 K Street, N.W.,
777 East Wisconsin Avenue Suite 500
Milwaukee, Wisconsin 53202 Washington, D.C. 20007
(414) 271-2400 (202) 672-5300
*Counsel of Record Attorneys for Petitioner
ne ere RE ETAL A A AAA
WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001
RULE 29.6 STATEMENT
The Rule 29.6 Statement in the petition is current.
(i)
TABLE OF CONTENTS
Page
FES Fo ee IE siiceiiesseesnenstoinsevteninasiassta bonnie i
Ee Ge ART Ee Oe ionsissicistcncncressccevansascntanennies iV
SUPPLEMENTAL BRIEF FOR PETITIONER........... |
1. Recent conflicting decisions from the
Third and Eighth Circuits make clear that
there is a square and irreconcilable circuit
split on the important issue presented. ................ l
2. Additional new authorities show that the
Second Circuit’s decision has created
conflicting applications of CERCLA. ................. 3
3. The Court should now settle the § 107
issue in order to eliminate the intolerable
burdens that the new authorities
Ie evincte tandsrclndibksacecantninseinnciettekaappntisais 5
FE NG FR ekatticiitetiedtieiianitdtineinmmonaies la
E.I. DuPont de Nemours & Co. v. United States,
No. 04-2096, 2006 WL 2474339 (3d Cir. Aug.
29, 2006)
FEF a I eased asa ecnitorcsennincdaintciansanielaonaabnedeics 62a
Atlantic Research Corp. v. United States, No. 05-
3152, 2006 WL 2321185 (8th Cir. Aug. 11,
2006)
(iii)
iV
TABLE OF AUTHORITIES
CASES Page
Atlantic Research Corp. v. United States, 2006
WL 2321185 (8th Cir. Aug. 11, 2006)....... passim
Aviall Services, Inc. v. Cooper Industries,
L.L.C., No. 3:97-CV-1926-D, 2006 WL
2263305 (N.D. Tex. Aug. 8, 2006) ...............000+. 4
Bedford Affiliates v. Sills, 156 F.3d 416 (2d Cir.
City of Bangor v. Citizens Communications Co.,
437 F. Supp. 2d 180 (D. Me. June 27,
Columbus McKinnon Corp. v. Gaffey, No. H-
06-1125, 2006 WL 2382463 (S.D. Tex..
PE 19 FE iiencciimncximanacamaaenes 4
Cooper Industries, Inc. v. Aviall Services, Inc.,
SR Rc. BOT SOD ve diveisnasevdsnncicnemaveniavvats passim
Dico, Inc. v. Amoco Oil Co., 340 F.3d 525 (8th
a IN Resins cidcn cea cancasbelictai tiatciniassuitaaunnteualanented 3,4
E.J. DuPont de Nemours & Co. v. United States,
2006 WL 2474339 (3d Cir. Aug. 29,
ND cisinnhsesnsinalicecRicisaesioninaitnnoonanaiiend passim
Elementis Chromium L.P. v. Coastal States Pe-
troleum Co., 450 F.3d 607 (Sth Cir. 2006)....... 3,4
Vv
TABLE OF AUTHORITIES—Continued
ITT Industries, Inc. v. Borgwarner, Inc., No.
1:05-CV-674, 2006 WL 2460793 (W.D.
NN PRN, Shs MEDS nhhcksicticesnvesanbadécnckacqernnchfscnce 4
Niagara Mohawk Power Corp. v. Consolidated
Rail Corp., 436 F. Supp. 2d 398
(N.D.N.Y. June 28, 2006) ......... sialic needs 5
Otay Land Co. v. UE. Lid. L.P., No.
03CV2488, 2006 WL 2042600 (S.D. Cal.
SOROS EEN yc ter eee oo aE 4
Pinal Creek Group v. Newmont Mining Corp.,
Ee FAI CN ls BFE T Pivesicivsssisivncsninonsssices +
Schaefer v. Town of Victor, 457 F.3d 188 (2d
ae MI aL, MINN iss Sanbstisapasacecerctanyanidtecneisbaasioions 3
Spectrum International Holdings, Inc. v. Uni-
versal Cooperatives, Inc., No. 04-99, 2006
WL 2033377 (D. Minn. July 17, 2006)............... +
United Technologies Corp. v. Browning-Ferris
Industries, Inc., 33 F.3d 96 (1st Cir. 1994) ......... 4
STATUTES
Be ee a ROE ascent ic adncusisnonnukncentapsinnaansoniceeinns passim
es We sicher kacahcnnsasanisvedeaiusisnntananiboncutane pe
PUD. L. No. 99-499, 100 Stat. 1613 ..........ccscsesvsvosesses 2
SUPPLEMENTAL BRIEF FOR PETITIONER
Decisions since petitioner filed its reply brief, most notably
a decision of the Third Circuit on August 29, 2006, leave no
doubt that there is a genuine and intolerable circuit split on
the important federal law issue presented. The Third Circuit
has now explicitly rejected the Second Circuit’s decision in
this case, adhering instead to precedents in that Circuit and
others holding that a party potentially responsible for envi-
ronmental cleanup costs cannot recover those costs from
other potentially responsible parties (PRPs) under
§ 107(a)(4)(B) of the Comprehensive Environmental Re-
sponse, Compensation, and Liability Act of 1980 (CER-
CLA), 42 U.S.C. § 9607(a)(4)(B).
The Eighth Circuit, in contrast, has joined the Second Cir-
cuit in holding that PRPs can recover under § 107(a)(4)(B)
and that Cooper Industries, Inc. v. Aviall Services, Inc., 543
U.S. 157 (2004)—a decision in which the Court expressly
declined to reach the issue—nullifics the contrary precedents.
District courts around the country have issued decisions on
both sides of the split.’
1. Recent conflicting decisions from the Third and
Eighth Circuits make clear that there is a square and ir-
reconcilable circuit split on the important issue pre-
sented. The Third Circuit has rejected the decision below
and held that a PRP cannot recover cleanup costs from other
PRPs under CERCLA § 107(a), even if the party incurred
those costs voluntarily. See Supp. Br. App. 2a-3a, 23a, 49a
(E.J. DuPont de Nemours & Co. v. United Stutes, 2006 WL
2474339, at *1, *11, *22 (3d Cir. Aug. 29, 2006)). In so
holding, the Third Circuit stated, “[w]e disagree” with the
Second Circuit’s analysis (id. at 23a (DuPont, 2006 WL
l ' lg P
Pursuant to Rule 15.8 of this Court, petitioner files this supple-
mental brief to call attention to these new cascs not available when pceti-
tioner filed its reply brief.
2
247339, at *11)), and reasoned that a “thorough review of
CERCLA, as amended by SARA,"! does not support [the
Second Circuit’s] conclusion” (id. at 45a (DuPont, 2006 WL
247339, at *21)).
The Third Circuit also disagreed with the Second Circuit’s
conclusion that Cooper Industries undermined previous hold-
ings that PRPs have no § 107(a) claim, stating, “We conclude
that Cooper Industries docs not give us cause to reconsider
our precedents here.” Jd. at 3a (DuPont, 2006 WL 247339,
at *1); see also id. at 26a (DuPont, 2006 WL 247339, at
*11). After reviewing CERCLA’s text, purposes, history,
and policies, the Third Circuit ruled directly contrary to the
Second Circuit in this case, declaring, “we must refuse . . . to
imply a cause of action for contribution under § 107...
available to PRPs engaged in sua sponte voluntary cleanups.”
Id. at 49a (DuPont, 2006 WL 247339, at *22). Compare Pet.
App. 16a-17a. (holding that, after Cooper Industries, “section
107(a) permits a [liable] party that has not been sued . . . to
recover necessary response costs incurred voluntarily”).
Only eighteen days before the Third Circuit’s DuPont de-
cision, the Eighth Circuit embraced the Second Circuit’s de-
cision in this case and reinterpreted CERCLA to allow PRPs
to maintain a § 107(a) claim. Supp. Br. App. 62a (At/. Re-
search Corp. v. United States, 2006 WL 2321185 (8th Cir.
Aug. 11, 2006)). Like the Second Circuit, the Eighth Circuit
concluded that, in light of Cooper Industries’ enforcement of
statutory constraints on the contribution remedy in CERCLA
§ 113,° “it no longer makes sense to view § 113 as a liable
party’s exclusive remedy.” /d. at 73a (Atl. Research, 2006
WL 2321185, at *6); compare Pet. App. 14a.
? The Superfund Amendments and Reauthorization Act of 1986,
Pub. L. No. 99-499, 100 Stat. 1613.
342 U.S.C. § 9613.
3
Abandoning its contrary 2003 holding in Dico, Inc. v.
Amoco Oil Co., 340 F.3d 525 (8th Cir. 2003), the Eighth Cir-
cuit broadened the inter-circuit nft by joining the Second
Circuit in departing from previously uniform courts of ap-
peals’ precedents holding that PRPs have no § 107 rem-
edy*—precedents to which the Third Circuit in DuPont re-
mained faithful (Supp. Br. App. 3a (DuPont, 2006 WL
247339, at *1)). Observing that the Eighth Circuit’s decision
“relies almost entirely on the reasoning of Consolidated Edi-
son” (id. 23a, n.18 (DuPont, 2006 WL 247339, at *10 n.18)),
the Third Circuit rejected it, declaring, “our consideration of
the Second Circuit’s case applies as well to the decision of
the Eighth Circuit” (id.).
These recent decisions thus moot respondent’s misplaced
suggestion (Br. in Opp’n 7) that this Court should await a
post-Cooper Industries circuit conflict. See Supp. Br. App.
23a, n.18 (DuPont, 2006 WL 247339, at *10 n.18); see also
id. at 47a, n.32 (DuPont, 2006 WL 247339, at *21, n.32) (ob-
serving of Elementis Chromium L.P. v. Coastal States Petro-
leum Co., 450 F.3d 607, 613 (Sth Cir. 2006), that “at least
one other Circuit Court has agreed with our interpretation of
§ 107(a) in a case decided after Consolidated Edison’). The
split is squarely presented.
2. Additional new authorities show that the Second Cir-
cuit’s decision has created conflicting applications of
CERCLA. Recent decisions remove any doubt that without
a uniform national rule, inconsistent constructions of CER-
CLA will be the norm.
In addition to the Third and Eighth Circuit decisions, the
Second Circuit recently reaffirmed its commitment to the ap-
proach taken below. See Schaefer v. Town of Victor, 457
F.3d 188, 202 (2d Cir. July 13, 2006). Meanwhile, since pe-
, Supp. Br. App. 70a (Atl. Research, 2006 WL 2321185, at *4)
(“We now see that Avia/l undermines Dico, and the judge-created ana-
lytic upon which it relies.”).
4
titioner filed its reply brief, district courts have continued to
struggle with the issue, yielding inconsistent results. On re-
mand, the Cooper Industries district court denied the plain-
tiff-PRP’s § 107(a) claim. Aviall Servs., Inc. v. Cooper In-
dus., L.L.C., No. 3:97-CV-1926-D, 2006 WL 2263305, at *8
(N.D. Tex. Aug. 8, 2006). Another district court in the Fifth
Circuit, following that Circuit’s recent pronouncement in
Elementis, also held that PRPs have no § 107(a) claim.
Columbus McKinnon Corp. v. Gaffey, No. H-06-1125, 2006
WL 2382463, at *4 (S.D. Tex. Aug. 16, 2006). And, like
DuPont, a district court in the Sixth Circuit rejected a PRP’s
call, based on the Second Circuit’s reading of Cooper Indus-
tries, to abandon circuit precedent and allow it a § 107(a)
contribution remedy. See ITT Indus., Inc. v. Borgwarner,
Inc., No. 1:05-CV-674, 2006 WL 2460793, at *5 (W.D.
Mich. Aug. 23, 2006).°
In contrast, other district courts have disregarded binding
precedent to create § 107(a) contribution claims for PRPs.
See City of Bangor v. Citizens Comms. Co., 437 F. Supp. 2d
180, 221 (D. Me. June 27, 2006) (holding that a responsible
party may pursue a § 107(a) claim notwithstanding the con-
trary holding of United Techs. Corp. v. Browning-Ferris In-
dus., Inc., 33 F.3d 96 (1st Cir. 1994)); Otay Land Co. v. UE.
Lid., L.P., No. 03CV2488, 2006 WL 2042600, at *2 (S.D.
Cal. July 18, 2006) (stating that § 107(a) “provides an im-
plied right to contribution” for PRPs, notwithstanding the
holding in Pinal Creek Group v. Newmont Mining Corp.,
118 F.3d 1298 (9th Cir. 1997), that PRPs are limited to
claims under § 113).
: Underscoring Atlantic Research’s departure from Eighth Circuit
precedent, the United States District Court for the District of Minnesota
only a few weeks earlier had decided that a PRP’s § 107(a) claim was
foreclosed by Dico’s holding that RPs cannot recover contribution under
§ 107(a). Spectrum Int'l Holdings, Inc. v. Universal Coops., Inc., No. 04-
99, 2006 WL 2033377, at *5 (D. Minn. July 17, 2006).
5
Recent developments have also shown that the CERCLA
construction adopted by the Second Circuit in this case and
by the Eighth Circuit in Atlantic Research will result in con-
fusing and differing judicial responses across the Nation as
partics dispute not only whether previously binding authori-
ties continue to govern but also whether a particular PRP’s
allegations fit within a newly-minted § 107(a) contribution
claim. In Niagara Mohawk Power Corp. v. Consolidated
Rail Corp., 436 F. Supp. 2d 398, 402 (N.D.N.Y. June 28,
2006), a district court in the Second Circuit denied a PRP’s
§ 107(a) claim after concluding that, based on its facts, the
action was controlled not by the decision in this case but by
Bedford Affiliates v. Sills, 156 F.3d 416 (2d Cir. 1998),
which held that PRPs lack § 107(a) contribution claims.
3. The Court should now settle the § 107 issue in order
to eliminate the intolerable burdens that the new authori-
ties demonstrate. Until the Court definitively resolves the
question presented, PRPs deprived of § 113 contribution
remedies by Cooper Industries will continue to attempt con-
tribution claims under § 107(a), relying on the decision be-
low, Atlantic Research, and the recent favorable district court
decisions. Given the inconsistencies among lower court
holdings thus far, PRPs will also look to these decisions for
guidance in selecting favorable venue. DuPont’s facts illus-
trate the problem: at issue there were fifteen facilities located
in the Second, Third, Fourth, Sixth, Seventh, and Tenth Cir-
cuits. Supp. Br. App. 15a n.13 (DuPont, 2006 WL 247339,
at *7, n.13). DuPont presumably could have brought its
§ 107(a) contribution claims against the United States in dis-
tricts located within nine states, including New York.° Ab-
sent a uniform § 107 construction, PRPs will undoubtedly
race to file future cases in favorable jurisdictions, a tactic cer-
tain to create collateral litigation over proper venue, in addi-
6 ) a | a 1 as
Venue for CERCLA claims lies in the districts where the site is lo-
cated and where the defendant resides, may be found, or has its principal
office. 42 U.S.C. § 9613(b).
6
tion to the difficult disputes over the availability of § 107(a)
contribution claims.
The discordant holdings of the Second and Eighth Circuits
also heavily burden the United States. A frequent potential
PRP-defendant, the United States now faces uncertain contri-
bution exposure: in the Third Circuit, DuPont’s § 107(a)
contribution claim against the United States was dismissed,
but, in the Eighth Circuit, Atlantic Research’s lidentical con-
tribution claim was allowed to proceed.
More important is the burden that falls upon the United
States as the principal CERCLA enforcer. As the Third Cir-
cuit recognized in DuPont, by authorizing contribution
claims under § 107, the rulings of the Second and Eighth
Circuits eliminate the incentives Congress, through § 113,
imposed on PRPs to obtain EPA supervision of:cleanups. /d.
at 45a (DuPont, 2006 WL 247339, at *21). See also Pet. 15-
16. Section 113, as Cooper Industries holds| authorizes a
contribution claim only after a PRP is sued by, or resolves its
liability to, the government. 42 U.S.C. § 9613(f(1), (3)(B).
By also affording contribution claims under § 107, the Sec-
ond and Eighth Circuits allow PRPs to pursue “sua sponte
cleanups” and avoid the admission of liability, settkement and
government-approved response. provided through § 113—
“Congress” carefully chosen remedy” (Supp. 'Br. App. 45a
(DuPont, 2006 WL 247339, at * 21)).
As the recent cases further reveal, no additional i!lumina-
tion of the issue presented will be gained by postponing its
resolution. Whether § 107(a) affords PRPs a contribution
claim is a pure question of statutory construction, and the in-
terpretive considerations have been well studi¢d: ten courts
of appeals had resolved the question before Cooper Indus-
tries, and four have addressed it since. As the Third Circuit
remarked, “the statute itself has not changed.” Supp. Br.
App. 26a (DuPont, 2006 WL 247339, at *12).
BEST AVAILABLE COPY
7
The only change in the landscape is Cooper Industries,
which altered some parties’ perceptions about the scope of
§ 113’s contribution right and suggested that § 107 and § 113
provide “clearly distinct” remedies, 543 U.S. at 163 n.3. The
Second and Eighth Circuits and several district courts have
found this an adequate warrant to depart from consistent
prior courts of appeals’ holdings that § 107 does not provide
PRPs a contribution claim. The Third Circuit, several other
lower federal courts, and the United States have all con-
cluded otherwise.
The cases decided since petitioner filed its reply brief thus
further highlight that there is a genuine circuit conflict on the
issue presented and that the issue has broad practical conse- .
quences. It should be definitively resolved in this case.
* * * *
For the foregoing reasons and those stated in the petition
and the reply brief, the petition for a writ of certiorari should
be granted.
Respectfully submitted,
G. MICHAEL. HALFENGER JAY N. VARON
PAUL BARGREN Counsel of Record
FOLEY & LARDNER LLP FOLEY & LARDNER LLP
777 East Wisconsin Avenue 3000 K Street, N.W.,
Milwaukee, Wisconsin 53202 Suite 500
(414) 271-2400 Washington, D.C. 20007
(202) 672-5300
September 2006 Attorneys for Petitioner
APPENDIX
la
‘APPENDIX A
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2096
E.I. DUPONT DE NEMOURS AND COMPANY; CONOCO, INC.:
SPORTING GOODS PROPERTIES, INC.,
Appellants,
¥.
UNITED STATES OF AMERICA; UNITED STATES DEPART-
MENT OF COMMERCE; UNITED STATES DEPARTMENT OF
DEFENSE; UNITED STATES DEPARTMENT OF THE ARMY;
UNITED STATES DEPARTMENT OF ENERGY; UNITED STATES
DEPARTMENT OF THE INTERIOR; UNITED STATES DEPART-
MENT OF THE NAVY.
Appeal from the United States District Court
for the District of New Jersey
D.C. Civil Action No. 97-cv-00497
District Judge: Honorable William J. Martini
Argued: April 17, 2006
Filed: August 29, 2006
Before: SLOVITER, AMBRO and MICHEL,” Circuit
Judges.
"Honorable Paul R. Michel, Chief Judge, United States Court of Ap-
peals for the Federal Circuit, sitting by designation.
2a
OPINION OF THE COURT
AMBRO, Circuit Judge
Appellants in this case are owners and operators of indus-
trial facilities located throughout the United States that are
contaminated with hazardous waste. They admit they are
responsible for some of the contamination at these sites
(which they cleaned up voluntarily), but allege the United
States Government is also responsible for some part. They
thus seek a ruling that the Government must contribute to
them a share of the cleanup costs under the Comprehen-
sive Environmental Response, Compensation, and Liability
Act (“CERCLA”), 42 U.S-C. § 9601 et seg. Two of our
precedents—New Castle County v. Halliburton NUS Corp.,
111 F.3d 1116 (3d Cir. 1997), and Matter of Reading Co.,
115 F.3d 1111 (3d Cir. 1997)—limit their claim. New Castle
County limits potentially responsible parties to an express
cause of action for contribution under CERCLA § 113, 42
U.S.C. § 9613 (thus barring them from another type of claim
called “cost recovery” under CERCLA § 107(a), 42 U.S.C.
§ 9607(a)).’ Reading held that § 113 also replaced any
implied or common law causes of action for contribution
by potentially responsible parties with an exclusive statu-
tory remedy.
In Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S.
157 (2004), the Supreme Court held that § 113 by its express
terms is not available to parties that clean up sites voluntarily.
Appellants now ask that we decide whether, in light of
Cooper !idustries, our decisions in New Castle County and
Reading limiting contribution to § 113 should be reconsidered
to allow them to clean up their sites voluntarily and still share
' Because almost all relevant cases refer to the sections of CERCLA
rather than the codification of those sections in the United States Code, we
generally follow suit, except for the initial reference to a new section of
the statute.
3a
the costs with others. We conclude that Cooper Industries
does not give us cause to reconsider our precedents here.
Hence, because appellants are themselves partly responsible
for the contamination at the subject sites, and their cleanups
were voluntary, they may not seek contribution from other
potentially responsible parties (including the Government).
I. Legal Framework
Before considering the factual background and procedural
history of this case, it is necessary first to understand the
applicable legal framework. In 1980, Congress enacted
CERCLA to remedy the “serious environmental and health
risks posed by pollution.” United States v. Bestfoods, 524 U.S.
51, 55 (1998). CERCLA is a broad remedial statute that
“grants the President . . . power to command government
agencies and private parties to clean up hazardous waste sites,”
Key Tronic Corp. v. United States, 511 U.S. 809, 814 (1994),
and provides that “everyone who is potentially responsible for
hazardous-waste contamination may be forced to contribute to
the costs of cleanup,” Bestfoods, 524 U.S. at 56 n.1 (emphasis
and internal quotation marks omitted); see Morton Int’l, Inc. v.
A.E. Staley Mfg. Co., 343 F.3d 669, 676 (3d Cir. 2003) (noting
that “[t]wo of the main purposes of CERCLA are prompt
cleanup of hazardous waste sites and imposition of all cleanup
costs on the responsible party” (internal quotation marks
omitted)). Unfortunately, “CERCLA is not a paradigm of
clarity or precision [due to] inartiul drafting and numerous
ambiguities attributable to its precipitous passage.” Artesian
Water Co. v. Gov’t of New Castle County, 851 F.2d 643, 648
(3d Cir. 1988); see also Exxon Corp. v. Hunt, 475 U.S. 355,
363 (1986) (noting that many CERCLA provisions are “not . . .
model[s] of legislative draftsmanship,” and are “at best inartful
and at worst redundant’). As one court has noted, “wading
through CERCLA’s morass of statutory provisions can often
seem as daunting as cleaning up one of the sites the statute is
designed to cover.” CadleRock Props. Joint Venture, L.P. v.
4a
Schilberg, No. 3:01CV896, 2005 WL 1683494, at *5 (D.
Conn. July 19, 2005).
This case requires us to dive head-first into a particularly
convoluted area of the law: apportionment of cleanup costs
among potentially responsible parties (“PRPs”).’ See Artesian
Water, 851 F.2d at 648 (noting that CERCLA’s “difficult[ies]
[are] particularly apparent in the response costs area”).
Several sections of CERCLA are relevant to this issue.
A. Sections 106 and 107
Under CERCLA § 106(a), 42 U.S.C. § 9606(a) the United
States may take action to “secure such relief as may be
necessary to abate” a “substantial endangerment to the public
health or welfare or the environment because of an actual or
threatened release of a hazardous substance from a facility.”
CERCLA § 107(a), 42 U.S.C. § 9607(a), defines “covered
persons” who are liable for these and other costs as:
(1) the owner and operator of a vessel or a facility,
(2) any person who at the time of disposal of any
hazardous substance owned or operated any facility at
which such hazardous substances were disposed of,
(3) any person who by contract, agreement, or otherwise
arranged for disposal or treatment, or arranged with a
? “Potentially responsible party” and “PRP” are not used in CERCLA,
but rather are terms of art used by courts and the federal Environmental
Protection Agency (“EPA”) to refer to parties thai potentially bear some
liability for the contamination of a site. See, e.g., New Castle County, 111
F.3d at 1120 n.2; see also United States v. E.]. DuPont de Nemours & Co.,
Inc., 432 F.3d 161, 182-83 (3d Cir. 2005) (en banc) (Rendell, J.,
dissenting) (citing EPA policy manuals). But see Consol. Edison Co. of
N.Y. v. UGI Utils., Inc., 423 F.3d 90, 97 n.8 (2d Cir. 2005) (criticizing the
use of “‘potentially responsible person’ and ‘PRP’ because they “do not
appear anywhere in the text of . . . CERCLA” and are “vague and
imprecise,” and relying instead on an “alternative designation—a party
that, if sued, would be held liable . . .”).
Sa
transporter for transport for disposal or treatment, of
hazardous substances owned or possessed by such per-
son, by any other party or entity, at any facility or
incineration vessel owned or operated by another party
or entity and containing such hazardous substances, and
(4) any person who accepts or accepted any hazardous
substances for transport to disposal or treatment facili-
ties, incineration vessels or sites selected by such person,
from which there is a release, or a threatened release
which causes the incurrence of response costs, of a
hazardous substance...
CERCLA § 107(a)(1)-(4). These covered persons “shall be
liable for”:
(A) all costs of removal or remedial action incurred by
the United States Government or a State or an Indian
tribe, not inconsistent with the [N]ational [C]ontingency
(P}lan;°
(B) any other necessary costs of response incurred by
any other person consistent with the national conting-
ency plan;
(C) damages for injury to, destruction of, or loss of
natural resources, including the reasonable costs of as-
sessing such injury, destruction, or loss resulting from
such a release; and
(D) the costs of any health assessment or health effects
study carried out under section 9604(1) of this title.
Id. § 107(a)(4)(A)-(D).
* The National Contingency Plan is “a set of regulations promulgated
by the EPA that establishes procedures and standards for responding to
releases of hazardous substances, pollutants and contaminants.” New
Castle County, 111 F.3d at 1120 n.2 (citing 42 U.S.C. § 9605 and 40
C.F.R. pt. 300).
6a
B. Section 113
In 1986, Congress passed the Superfund Amendments and
Reauthorization Act (“SARA”), Pub. L. No. 99-499, 100 Stat.
1613. SARA amended CERCLA to add CERCLA § 113, 42
U.S.C. § 9613, which provides, in subsection (f)(1):
Any person may seek contribution from any other
person who is liable or potentially liable under section
9607(a) [CERCLA § 107(a)] of this title, during or
following any civil action under section 9606 [CERCLA
§ 106] of this title or under section 9607(a) [CERCLA
§ 107(a)] of this title. . . . In resolving contribution
claims, the court may allocate response costs among
liable parties using such equitable factors as the court
determines are appropriate. Nothing in this subsection
shall diminish the right of any person to bring an action
for contribution in the absence of a civil action under
section 9606 [CERCLA § 106] of this title or section
9607 [CERCLA § 107] of this title.
CERCLA § 113(f)(1). The section also provides that: (1) a
PRP that “has resolved its liability to the United States or
a State in an administrative or judicially approved settle-
ment” is immune from claims for contribution from other
PRPs “regarding matters addressed in the settlement,” id.
§ 113(f)(2); (2) a settling PRP can seek contribution from
other non-settling PRPs, id. § 113(f)(3)(B); and (3) the statute
of limitations for an action under § 107(a) is six years, while
the statute of limitations for an action under § 113(f)(1) is
only three years, id. § 113(g).
C. Section 120
CERCLA § 120(a)(1), 42 U.S.C. § 9620(a)(1), also enacted
as part of the 1986 SARA amendments, contains a broad
waiver of the United States’ sovereign immunity, providing
that “[e]ach department, agency, and instrumentality of the
United States” is subject to CERCLA’s provisions “in the
7a
same manner and to the same extent, both procedurally
and substantively, as any nongovernmental entity, including
liability under section 9607 [CERCLA § 107] of this title.”
See FMC Corp. v. U.S. Dep’t of Commerce, 29 F.3d 833, 840
(3d Cir. 1994) (en banc) (“[W]hen the government engages in
activities that would make a private party liable [under
CERCLA] if the private party engaged in those types of
activities, then the government is also liable. This is true even
if no private party could in fact engage in those specific
activities.” (emphases omitted)).
D. Evolution of Liability Under CERCLA and SARA
1. Pre-SARA Liability: Implied Contribution Rights
Prior to the enactment of the SARA amendments in 1986,
several courts held that CERCLA exposed PRPs to joint and
several liability, and that this implied a right of contribution
among joint tortfeasors. See, e.g., United States v. S.C.
Recycling & Disposal, Inc., 653 F. Supp. 984, 994 (D.S.C.
1986), vacated in part on other grounds sub nom. United
States v. Monsanto Co., 858 F.2d 160 (4th Cir. 1988); United
States v. Chem-Dyne Corp., 572 F. Supp. 802, 807-08, 810
(S.D. Ohio 1983). Innocent parties were allowed to recover
their full response costs from any PRP under § 107(a)(4){B),
see Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887,
889, 891-92 (9th Cir. 1986); Walls v. Waste Res. Corp., 761
F.2d 311, 317-18 (6th Cir. 1985), and PRPs were allowed
contribution pursuant to either an implied cause of action
under § 107, see City of Phila. v. Stepan Chem. Co., 544 F.
Supp. 1135, 1142-43 (E.D. Pa. 1982), or the common law,
see United States v. New Castle County, 642 F. Supp. 1258,
1267-69 (D. Del. 1986) (hereafter “NCC”); Colorado v.
ASARCO, Inc., 608 F. Supp. 1484, 1489-90, 1491 (D. Colo.
1985). As the Supreme Court has explained, these cases
allowed private parties, including PRPs, to seek contribution
for costs incurred in forced or voluntary cleanups. See, e.g.,
Cooper Indus., 543 U.S. at 161-62 (citing cases); Reading,
8a
115 F.3d at 1118-19 (same, and noting that, “(until the
passage of SARA in 1986, the judicially[] created expansion
of § 107(a)(4)(B) served as the sole means by which parties
could obtain contribution’).
2. Post-SARA Liability: Cost Recovery and Contribution
Actions
Following the passage of SARA and the inclusion of § 113
in CERCLA (which specifically provides contribution rights),
courts retreated from implied causes of action for PRPs to
seek contribution under § 107(a). Instead, they interpreted
§§ 107 and 113 as establishing two “clearly distinct” reme-
dies: “cost recovery” under § 107(a), and “contribution”
under § 113(f). See, e.g., Cooper Indus., 543 U.S. at 163 &
n.3; Morton Int'l, 343 F.3d at 675 (“Accordingly, CERCLA
and SARA together create two legal actions by which parties
that have incurred costs associated with cleanups can recover
some or all of those costs: (1) Section 107 cost recovery
actiens; and (2) Section 113 contribution actions.”).
In New Castle County, we determined that a cost recovery
action under § 107 is not available to a PRP.* Rather, “a
section 107 action brought for recovery of costs may be
brought only by innocent parties that have undertaken clean-
ups. An action brought by a potentially responsible person is
by necessity a section 113 action for contribution.” New
Castle County, 111 F.3d at 1120 (second emphasis added).
We based our conclusion on the understanding that, although
§ 107 is not limited by its terms to innocent parties, the
section “was designed to enable innocent persons who incur
expenses cleaning up a site to recover their costs from po-
tentially responsible persons,” and thus “a potentially re-
sponsible person does not experience section 107 injury and
* The plaintiffs in New Castle County incurred response costs pursuant
to an EPA consent decree that “requir[ed] them to finance and implement
remedial action at the landfill.” 111 F.3d at 1119.
9a
cannot obtain section 107 relief.” Jd. at 1122.° Indeed,
because § 107 imposes strict, joint, and several liability on all
PRPs for the costs of cleanup, a PRP allowed to bring a cost
recovery action under § 107 against another PRP “could
recoup ail of its expenditures regardless of fault”’—which, we
noted, “strains logic.” /d. at 1120-21 (emphasis in original).
Moreover, we concluded that it made little sense to allow a
PRP the choice of proceeding under either § 107 or § 113,
because parties would always choose § 107 (which allows
recovery based on joint and several liability with a six-year
statute of limitations) over § 113 (which allows recovery
based on equitable apportionment of costs with a three-year
statute of limitations), thus “render[ing] section 113 a null-
ity.” Id. at 1123.°
In Reading, decided a few weeks after New Castle County,
we held that a PRP also may not invoke the pre-SARA
implied cause of action for contribution under § 107.’
° Of course, § 107 also renders PRPs liable to federal and state govern-
ments and Indian tribes, and thus those parties (acting in their enforcement
capacity, and not as PRPs) may bring § 107 cost recovery actions as well.
See CERCLA § 107(a)(4)A); New Castle County, 111 F.3d at 1123
(noting that “section 107 historically has been used by governments to
recover costs incurred tn the clean-up of hazardous sites”).
° Numerous other Courts of Appeals considering this issue have reached
the same result. See, e.g., Bedford Affiliates v. Sills, 156 F.3d 416, 423-
424 (2d Cir. 1998); Centerior Serv. Co. v. Acme Scrap Iron & Metal
Corp., 153 F.3d 344, 349-356 (6th Cir. 1998); Pneumo Abex Corp. v.
High Point, Thomasville & Denton R.R. Co., 142 F.3d 769, 776 (4th Cir.
1998); Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298,
1301-06 (9th Cir. 1997); Redwing Carriers, Inc. v. Saraland Apartments,
94 F.3d 1489, 1496 & n. 7 (11th Cir. 1996); United States v. Colo. & E.
R.R. Co., 50 F.3d 1530, 1534-1536 (10th Cir. 1995); United Techs. Corp.
v. Browning-Ferris Indus., 33 F.3d 96, 98-103 (1st Cir. 1994); Akzo
Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 764 (7th Cir. 1994).
’ The plaintiff in Reading incurred response costs pursuant to an EPA
cleanup order under § 106 and a corresponding suit under § 107. 115 F.3d
at 1116.
10a
Examining the legislative history of § 113, we noted that the
section was intended to “‘clarif[y] and confirm[] the right of a
person held jointly and severally liable under CERCLA to
seek contribution from other potentially liable parties, when
the person believes that it has assumed a share of the cleanup
or cost that may be greater than its equitable share under the
circumstances.’” Reading, 115 F.3d at 1119 (quoting S. Rep.
No. 99-11, at 44 (1985)) (alterations in original); see also
New Castle County, 111 F.3d at 1122 (same, quoting H.R.
Rep. No. 99-253(1), at 79 (1985)). Based on the statute’s
language, the legislative history, relevant case law, and “the
fact that § 113(f)(1) specifically permits an action for con-
tribution to be brought ‘in the absence of a civil action under
... section [107],’” Reading, 115 F.3d at 1120 (alterations in
original),* we held that, “[i]n passing § 113(f), Congress acted
to codify existing federal common law and to replace the
judicially crafted measure with an express statutory remedy.”
Id. at 1119.
Thus we concluded that “Congress intended § 113 to be the
sole means for seeking contribution.” Jd. at 1120 (emphasis
added). It “replaced the judicially created right to contribu-
tion under § 107(a)(4)(B)” with an express (and exclusive)
statutory remedy, id. at 1119, and also superseded common
law remedies:
[W]hen Congress expressly created a statutory right of
contribution in CERCLA § 113(f), 42 U.S.C. § 9613(f),
it made that remedy a part of an elaborate settlement
scheme aimed at the efficient resolution of environ-
mental disputes. Permitting independent common law
remedies would create a path around the statutory scttle-
ment scheme, raising an obstacle to the intent of Con-
* As noted below, insofar as this quoted passage from Reading implies
that § 113(f)(1) contribution is available without a preexisting suit, the
Supreme Court ruled otherwise in Cooper Industries.
lla
gress. We conclude therefore that [the plaintiff's] com-
mon law claims are preempted by CERCLA § 113(f).
Id. at 1117.
In so holding, we acknowledged dicta in the Supreme
Court’s decision in Key Tronic that “§ 107 unquestionably
provides a cause of action for private parties to seek recovery
of cleanup costs,” 511 U.S. at 818, and that CERCLA
“expressly authorizes a cause of action for contribution in
~ § 113 and impliedly authorizes a similar and somewhat
overlapping remedy in § 107,” id. at 816. See Reading, 115
F.3d at 1120. We determined, however, that the “overlap”
consisted of the fact that (as New Castle County held) an
innocent private party (most likely a landowner who pur-
chased land that had been contaminated by others) may bring
a cost recovery action under § 107 holding a PRP jointly and
severally liable for the full cost of the cleanup. Reading, 115
F.3d at 1120. “The fact, however, that a direct action might
be brought under § 107(a) [by an innocent landowner against
a PRP] does not open the door for [the] PRP to bring an
action for contribution [against other PRPs] under that same
section.” Jd.
In sum, after SARA introduced the § 113 contribution pro-
vision, our Court and other courts concluded that §§ 107 and
113 were complementary (but not really “overlapping,” as the
Supreme Court had suggested in Key Tronic) remedies.
Section 107 allowed the Government or an innocent land-
owner to recover the full cost of cleanup from a PRP on the
basis of strict, joint, and several liability. The PRP could then
seek contribution from other PRPs under § 113(f)(1). More-
over, according to the understanding at that time (as intimated
in Reading), § 113(f)(1) allowed a PRP to seek contribution
even in the absence of an action under § 106 or § 107; in
other words, a PRP that voluntarily cleaned up a contam-
inated site swa sponte could seek contribution from other
PRPs without waiting for an enforcement action, a Govern-
12a
-ment or innocent-landowner cost recovery suit, or a settle-
ment of liability.
3. Cooper Industries
In Cooper Industries, the Supreme Court significantly
_altered this understanding. The Court held that the plain
language of § 113(f)(1) (i.e., “Any person may seek con-
tribution from any other person who is liable or potentially
liable under section [107] of this title, during or following any
civil action under section [106] of this title or under section
——{107] of this title.”) required a pre-existing civil action (either
pending or completed) against the PRP under § 106 or § 107
before the PRP could seek contribution from other PRPs. The
Court concluded that, “if § 113(f)(1) were read to authorize
contribution actions at any time, regardless of the existence of
a § 106 or § 107(a) civil action, then Congress need not have
included the explicit ‘during or following’ condition” in
§ 113(f)(1). Cooper Indus., 543 U.S. at 166. Thus, a PRP may
only seek contribution under § 113(f)(1) if it is the subject of
a § 106 or § 107 civil action or has been adjudged liable as a
result of such an action. /d.”
The Court also considered the so-called “saving clause” of
§ 113(f)(1) (“Nothing in this subsection shall diminish the
right of any person to bring an action for contribution in the
absence of a civil action under section [106] of this title or
section [107] of this title.”). We relied on this sentence in
Reading when we said that § 113(f)(1) “specifically permits”
a PRP to seek contribution from other PRPs without a pre-
existing action under § 106 or § 107. 115 F.3d at 1120.
Insofar as this statement implied that § //3(f)(/) permitted
such an action, the Supreme Court disagreed, noting that
° The Court also noted that, under § 113(f)(3)(B), a PRP that has sct-
tled its liability to the federal or a state government also has a right to seek
contribution. That right, the Court noted, is “a separate express right of
contribution” independent of § 113(f)(1). Cooper Indus., 543 U.S. at 163.
13a
“(t]he sole function of the [saving clause} is to clarify that
§ 113(f)(1) does nothing to ‘diminish’ any cause(s) of action
for contribution that may exist independently of § 113(f(1).”
Cooper Indus., 543 U.S. at 166 (emphasis added). As the
Court explained,
the sentence [i.e., the saving clause] rebuts any pre-
sumption that the express right of contribution provided
by the enabling clause [in § 113(f)(1)] is the exclusive
cause of action for contribution available to a PRP. The
sentence, however, does not itself establish a cause of
action; nor does it expand § 113(f)(1) to authorize con-
tribution actions not brought “during or following” a
§ 106 or § 107(a) civil action; nor does it specify what
causes of action for contribution, if any, exist outside
§ 113(f)(1). Reading the saving clause to authorize
§ 113(f)(1) contribution actions not just “during or fol-
lowing” a civil action, but also before such an action,
would again violaie the settled rule that we must, if
possible, construe a statute to give every word some
operative effect.
Id. at 166-67.
The Court left open the questions of whether a PRP may
seek cost recovery under § 107, and whether that section
includes an implied cause of action for contribution on which
a PRP may rely independently of § 113. With respect to the
former question, the Court noted that numerous decisions
from the Courts of Appeals, including this Court’s decision in
New Castle County, had held that a § 107(a) cost recovery
action is only available to an innocent party, and concluded
that the question had not been briefed to the Supreme Court
and thus it was “more prudent to withhold judgment on these
matters.” Cooper Indus., 543 U.S. at 169-70. While the Court
did not reach the latter issue as well, it drew the litigants’
attention to those cases in which “this Court has visited the
subject of implied rights of contribution before,” id. at 170-71
l4a
(citing Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S.
630, 638-47 (1981), and Northwest Airlines, Inc. v. Transp.
Workers Union of Am., 451 U.S. 77, 90-99 (1981)). It noted
further that, “in enacting § 113(f)(1), Congress explicitly
recognized a particular set (claims ‘during or following’ the
specified civil actions) of the contribution rights previously
implied by courts from provisions of CERCLA and the
common law.” /d. at 171."°
II. Facts and Procedural History
With this context, we turn to the facts of this case.
Appellants E.1. DuPont de Nemours & Co., Conoco Phil-
'° In dissent, Justice Ginsburg relied heavily on the Court’s dicta in
Key Tronic that § 107 “unquestionably provides a cause of action for
private parties to seek recovery of cleanup costs,” see Kev Tronic, 511
U.S. at 818, a proposition she believed applied to PRPs. Cooper Indus.,
543 U.S. at 172 (Ginsburg, J., dissenting). She argued that “all Members
of this Court agreed” that § 107 provided such a cause of action. /d.
Indeed, Justice Scalia’s dissent in Key Tronic focused merely on whether
the cause of action was express (as he believed it was) or implied (as the
majority stated). See Key Tronic, 511 U.S. at 822 (Scalia, J., dissenting in
part}. Justice Ginsburg thus concluded that “no Justice [in Key Tronic]
expressed the slightest doubt that § 107 indeed did enable a PRP to sue
other covered persons for reimbursement, in whole or part, of cleanup
costs the PRP legitimately incurred,” and thus would have recognized a
cause of action for PRPs to seek contribution under § 107. Cooper Indus.,
543 U.S. at 172, 174 (Ginsburg, J., dissenting).
Justice Ginsburg’s conclusion presumes, however, that the “private
parties” the Court agreed in Key Tronic had a cause of action under § 107
included PRPs seeking contribution from other PRPs, and not merely (as
we held in Reading and New Castle County) innocent private parties
seeking cost recovery from PRPs on a joint and several basis. The Cooper
Industries majority appears to agree with our view, retreating significantly
from its earlier dicta and noting that, although the Key Tronic majority
spoke of “‘similar and overlapping’ remedies[,] . . . [t]he cost recovery
remedy of § 107(a)(4)(B) and the contribution remedy of § 113(f)(1) are
similar at a general level in that they both allow private parties to recoup
costs from other private parties[, b]ut the two remedies are clearly dis-
tinct.” Cooper Indus., $43 U.S. at 163 n.3.
lSa
lips Co., and Sporting Goods Properties, Inc. (collectively
“DuPont” or “appellants”)'’ appeal from a March 1, 2004
order of the United States District Court for the’ District of
New Jersey granting the United States judgment on the
pleadings and denying DuPont’s motion for judgment under
Federal Rule of Civil Procedure 54(b) and its request for
certification of an interlocutory appeal pursuant to 28 U.S.C.
§ 1292(b). This order rested on an earlier opinion and order,
entered on December 30, 2003, granting the Government
summary judgment in a “test case” brought to determine
whether DuPont had a cause of action against the Govern-
ment for contribution under CERCLA.’* DuPont asserts the
District Court erred in its statutory analysis, that an implied
cause of action exists under federal common law, and that the
District Court mistakenly dismissed all claims (and not just
the test case) on the pleadings.
A. Background
This case concerns fifteen facilities owned by appellants in
several states, including New Jersey.'® Each of the sites is
contaminated with hazardous waste, and was owned or
operated by the United States at various times during World
War I, World War II, and/or the Korean War, during which
'' Because DuPont was the only plaintiff at issue in the “test case”
litigated before the District Court, we refer to the parties in most instances
as “DuPont.” Insofar as the identity of parties other than DuPont is rele-
vant, we refer to the parties as “appellants.”
'* The District Court’s December 30, 2003 order was superseded by
an amended order on January 8, 2004. For purposes of this appeal, the
orders are substantively identical.
'5 The facilities include DuPont sites in Pompton Lakes, New Jersey;
Newark, New Jersey; Parlin, New Jersey; Carneys Point, New Jersey;
Gibbstown, New Jersey; Buffalo, New York; Niagara, New York;
Niagara Falls, New York; East Chicago, Indiana; Louisville, Kentucky;
Nashville, Tennessee; Spruance, Virginia; and Belle, West Virginia; a
ConocoPhillips site in Ponca City, Oklahoma; and a Sporting Goods
Properties site in Bridgeport, Connecticut.
l6a
time the United States was responsible for some contamina-
tion.
Appellants brought an action against the United States in
January 1997 (before the Supreme Court’s decision in Cooper
Industries) seeking contribution from the Government toward
the costs of cleanup at the sites. Initially, the complaint
alleged causes of action under CERCLA § 107(a) (cost re-
covery) and § 113(f)(1) (contribution).'* We decided New
Castle County and Reading in May and June 1997, respec-
tively; in keeping with those holdings, appellants’ § 107(a)
claim was voluntarily dismissed without prejudice. See E./.
DuPont de Nemours & Co. v. United States, 297 F. Supp. 2d
740, 742-43 (D.N.J. 2003). The District Court thereafter
designated one of the facilities named in the complaint—the
DuPont facility in Louisville, Kentucky—as a “test case” to
determine whether DuPont (which had voluntarily undertaken
to clean up the site without a preexisting § 106 or § 107
action or a § 113(f)(3) settlement) could seek contribution
from other PRPs under § 113(f)(1). Full discovery was had
regarding the claims related to the Louisville facility, and the
Government moved for summary judgment under Federal
Rule of Civil Procedure 56 on the ground that, as a PRP that
had voluntarily incurred its cleanup costs without having been
sued or settled its liability, DuPont had no cause of action for
contribution under § 113.
B. First District Court Decision
On December 30, 2003, the District Court issued a lengthy
opinion and order granting the Government’s motion for
summary judgment with respect to the Louisville facility. See
E.J. DuPont, 297 F. Supp. 2d 740. The Court concluded that a
'* The complaint also included a separate count seeking “recoupment”
of costs, but did not provide any statutory basis for this claim. This count
was voluntarily dismissed in December 1997. See E.J. DuPont de
Nemours & Co. v. United States, 297 F. Supp. 2d 740, 743 (D.N.J. 2003).
17a
PRP, like DuPont, could only bring a contribution action
in three circumstances: (1) during or following a civil ac-
tion against the PRP under § 106 or § 107 (as set forth in
§ 113(f(1)); (2) after the PRP entered into a judicially or
administratively approved settlement of its liability (as set
forth in § 113(f)(3)(B)); or (3) as suggested by the “saving -
clause,” in some other undefined contribution action. /d. at
747. Since DuPont had not been sued under § 106 or § 107,
and had not settled its liability with respect to the Louisville
facility, the Court considered whether it could pursue some
other contribution action.
It noted that the saving clause should not be read to allow a
contribution action, regardless of its source (such as “some
other (federal or state) statute,” id. at 750), unless the plaintiff
satisfied the “requirements of a traditional, common law
contribution action.” /d. at 751; see also Reading, 115 F.3d at
1124 (noting that the term “contribution” in CERCLA is used
“in its traditional, commonlaw sense”). Such an action
“exists only in favor of a tortfeasor who has discharged the
entire claim for the harm by paying more than his equitable
share of the common liability.”” E.. DuPont, 297 F. Supp. 2d
at 746 (quoting Restatement (Second) of Torts § 886A(2))
(emphases in original). Moreover, the District Court con-
cluded that “a contribution action requires (at least) a prior or
ongoing /awsuit,’ id. at 749 (emphasis in original), and
DuPont’s claim regarding the Louisville facility did not meet
these criteria.
The Court concluded that “the purpose of the so-called
saving clause [in § 113(f)(1)] was to clarify that a contri-
bution action brought following a settlement under the aegis
of Section 113(f)(3) should not be held to be procedurally
insufficient because of an absence of a prior primary action
brought pursuant to CERCLA Sections 106 or 107.” /d. at
18a
754 (emphasis omitted).'° It granted the Government’s mo-
tion for summary judgment on this basis.'°
C. Second District Court Decision
On March 1, 2004, the District Court issued another
opinion and order granting the Government judgment on the
pleadings under Federal Rule of Civil Procedure 12(c) with
respect to the other fourteen sites mentioned in appellants’
complaint, and denying appellants’ request for judgment
under Federal Rule of Civil Procedure 54(b) or certification
of an interlocutory appeal from the Court’s prior order. The
Court noted that, although appellants’ lawyers represented
they “‘could amend the Complaint to potentially comply’”
with the Court’s earlier opinion—by, for example, showing
that they incurred cleanup costs at some of the sites pursuant
to EPA orders or consent decrees—“[a] party’s lawyer’s
representation is not evidence{, and] this representation [does
not] appear in the pleadings.” E./. DuPont de Nemours & Co.
'° The Court noted the possibility that the saving clause was intended
to preserve causes of action for contribution arising from non- § 113
CERCLA provisions without a prior settlement or suit, but concluded that,
_ under this Court’s decision in Reading that § 113 displaced all pre-SARA
common law or implied rights of action for contribution under sections
other than § 113, such an interpretation was not persuasive. F./. DuPont,
297 F. Supp. 2d at 750.
'° The Court admitted that its holding would “limit the ability of some
PRPs to recoup cleanup costs from other PRPs,” and that this “might very
well hamper some PRP efforts at removal and remediation of hazard[ous]
waste sites.” E.J. DuPont, 297 F. Supp. 2d at 754. Indeed, the Court noted
that if “the statute were ambiguous or if the Court believed that the
meaning of the term ‘contribution’ were unsettled when Congress wrote
the SARA amendments, then [it] would of necessity turn to the general
purposes of the statute to determine the reach of the provision.” /d. at 754-
55. But the Court concluded that “the statute’s terms appear reasonably
clear,” and thus any effort to allow contribution in the absence of a prior
suit or settlement “would be rewriting the statute, [which] is not the
Court’s role.” Jd. at 755.
19a
v. United States, No. 97-497, slip op. at 5 n.4 (D.N.J. March
1, 2004). Indeed, the Court noted,
[the] Complaint and the competent evidence before this
Court do not establish or tend to establish that the
fourteen remaining sites (unaffected by this Court’s prior
amended order) are in any material sense distinguishable
from the Louisville site. Prior to and during briefing of
the Government’s current motion, Plaintiffs failed to
produce any (record) evidence, in the form of affidavits,
certifications, copies of agreements settling CERCLA
claims, or records of prior judicial or administrative
CERCLA § 106 orders or CERCLA § 107 proceedings.
Even at oral argument, Plaintiffs did not seek leave to
amend their Complaint or permission to make a late
filing. Simply put, at this juncture, there ts nothing in the
record before this Court establishing or tending to estab-
lish with regard to any of the remaining sites that any
Plaintiff (in the instant action) either has settled a
CERCLA § 113(f)(3) claim or has been named a de-
fendant in a (prior or on-going) CERCLA § 106 or
CERCLA § 107 action.
Id. at 4-5 (emphasis in original) (footnote omitted).
The District Court thus concluded that the pleadings did
not suggest any basis on which it could reach a conclusion
with respect to the fourteen other sites different from its
conclusion with respect to the Louisville site, and therefore
granted the Government judgment on the pleadings for all
sites.
D. Appeal
DuPont and the other plaintiffs appealed, and we stayed
briefing pending the Supreme Court’s decision in Cooper
Industries. As noted, the Supreme Court’s decision confirmed
the District Court’s conclusion that contribution under § 113
20a
is available to a PRP only if it settles its liability or is subject
to a civil action under § 106 or § 107.
In light of Cooper Industries, DuPont raises four issues on
appeal and makes the following arguments. First, it contends
that § 107 expressly provides PRPs a cause of action to seek
contribution from other PRPs independent of the remedy
provided by § 113. Second, it asserts alternatively that such a
cause of action is implied in § 107 or arises from federal
common law. Third, it argues that the District Court erred in
applying a multi-part test for contribution claims that is
inconsistent with our Court’s precedent. Fourth, it contends
the District Court erred in granting the Government judgment
on the pleadings with respect to the non-Louisville sites. For
the reasons stated below, the District Court’s December 30,
2003 order (as amended on January 8, 2004) is affirmed, and
its March 1, 2004 order is also affirmed, with one exception
that will be explained below.
III. Jurisdiction and Standard of Review
The District Court had subject matter jurisdiction over this
case under 28 U.S.C. § 1331, and we have jurisdiction on
appeal under 28 U.S.C. § 1291. We exercise plenary review
of a district court’s grant of summary judgment and judgment
on the pleadings. See Sikirica v. Nationwide Ins. Co., 416
F.3d 214, 219-20 (3d Cir. 2005). In conducting this review,
all facts and inferences are construed in the light most
favorable to the non-moving party, and “[jJudgment will not
be granted unless the movant clearly establishes there are no
material issues of fact, and he is entitled to judgment as
a matter of law.” Jd. at 220. Our review of questions of
statutory interpretation is also plenary. United States v. E_I.
DuPont de Nemours & Co., Inc., 432 F.3d 161, 164 (3d Cir.
2005) (en banc).
2la
IV. Availability of Contribution
Although DuPont would undoubtedly prefer that we write
our decision on a blank slate in deciding whether it may seek
contribution under § 107(a), we cannot do so. Rather, we
must decide if our prior decisions in New Castle County and
Reading control this case or are distinguishable. If they
control, we must then decide whether our panel may decline
to follow those precedents “in light of intervening authority
even without en banc consideration.” George Harms Constr.
Co. v. Chao, 371 F.3d 156, 161 (3d Cir. 2004). As we explain
below, we hold that New Castle County and Reading control
the outcome of this case, and no intervening authority
provides a basis sufficient to reconsider those precedents.'’
A. Applicability of New Castle County and Reading
To repeat, New Castle County and Reading stand jointly
for the proposition that a PRP seeking to offset its cleanup
costs must invoke contribution under § 113; the express cause
of action under § 107 (cost recovery) is limited to gov-
'? The Government contends that, because none of the appellants pur-
sued express or implied causes of action for contribution under § 107(a)
or federal common law in the District Court, these claims are waived on
appeal. Appellants did, however, seck the relief they belicved available to
them undcr this Court’s precedents. Since Cooper Industries had not been
decided at the time final judgment was rendered by the District Court,
there was no reason appellants should have thought it potentially useful to
pursue a remedy under § 107(a)—that remedy was foreclosed by Reading,
and the view at the time was that they had a cause of action under § 113.
Regardless of whether their arguments regarding a cause of action under
§ 107(a) are ultimately persuasive, it is clear to us that Cooper Industries
raised legal questions DuPont had no reason to ask before that decision.
We will therefore exercise our discretion to consider DuPont’s arguments
on the merits. See Salvation Army v. Dep't of Cmty. Affairs of N.J., 919
F.2d 183, 196 (3d Cir. 1990) (“Where, as here, a previously ignored legal
theory takes on new importance due to an intervening development in the
law, it is appropriate for us to exercise our discretion to allow a party to
revive that theory.”).
22a
ernments and Indian tribes (acting in their enforcement
capacity) and innocent landowners, and no implied cause of
action for contribution for PRPs—under either § 107 or the
common law—survived the passage of § 113. This rule,
unless factually distinguishable, controls the case before us.
Recently, the United States Court of Appeals for the
Second Circuit decided Consolidated Edison Co. of New York
v. UGI Utilities, Inc., 423 F.3d 90 (2d Cir. 2005), which held
that, despite a prior Second Circuit decision suggesting the
contrary, a PRP has an implied cause of action for contribu-
tion under § 107. See id. at 100 & n.11 (concluding that
“section 107(a) permits a [PRP] that has not been sued or
made to participate in an administrative proceeding . . . to
recover necessary response costs incurred voluntarily,” which
the Court deemed “consistent with the view that courts took
of section 107(a) before section 113(f)(1) was enacted”). The
Second Circuit admitted that its earlier holding in Bedford
Affiliates v. Sills, 156 F.3d 416 (2d Cir. 1998)—which is
substantively similar to our holdings in New Castle County
and Reading—was inconsistent with this approach. None-
theless, the panel “decline[d] to answer the question whether
a three-judge panel of this court may depart from Bedford
Affiliates’s . . . holding.” Consol. Edison, 423 F.3d at 101
n.12. It noted that, as in New Castle County and Reading (but
unlike in Consolidated Edison or this case), the plaintiff in
Bedford Affiliates cleaned up its site pursuant to a consent
order and sought relief under both § 107 and § 113.
Thus, the Court limited Bedford Affiliates “to hold that a
party that has incurred or is incurring expenditures under a
consent order with a government agency and has been found
partially liable [for contribution} under § 113(f)(1) may not
seek to recoup those expenditures under section 107(a).” /d.
at 102. The Court concluded that its holding in Consolidated
Edison—‘“that a party that has not been sued or made to
participate in an administrative proceeding, but, jf sued, would
23a
... be liable under section 107(a), may still recover necessary
response costs incurred voluntarily”—did not conflict with its
understanding of Bedford Affiliates. Id. (emphases added).'*
DuPont would have us adopt this reasoning to distinguish
New Castle County and Reading. It argues that, as in Bedford
Affiliates, both of our prior cases involved PRPs that cleaned
up sites pursuant to some form of EPA oversight.'” Tracking
the analysis in Consolidated Edison, DuPont asserts that New
Castle County and Reading are fundamentally different from
this case (where appellants cleaned up their sites voluntarily),
because the rule in our prior cases may be limited factually
to those circumstances where a PRP has already satisfied
the prerequisites for § 113 contribution set forth in Cooper
Industries.
We disagree. Although we will not dispute the Second
Circuit’s interpretation of its precedent, we do not read our
'® Shortly before we filed this opinion, the United States Court of
Appeals for the Eighth Circuit decided Atlantic Research Corp. v. United
States, __ F.3d ___, 2006 WL 2321185 (8th Cir. Aug. 11, 2006), in
which it reached the same result as the Second Circuit in Consolidated
Edison. We note that Atlantic Research relies almost entirely on the
reasoning of Consolidated Edison, and thus our consideration of the
Second Circuit’s case applies as well to the decision of the Eighth Circuit.
One important difference between the two cases is that in Aflantic
Research (as here) the United States was a party. The Eighth Circuit based
its decision, in part, on its conclusion that denying a PRP that voluntarily
cleans up a site contribution from the Government would allow the
Government to “insulate itself from responsibility for its own pollution by
simply declining to bring a CERCLA cleanup action or refusing a liable
party’s offer to settle.” Atlantic Research, 2006 WL 2321185, at *8.
As we explain in footnote 31 below, however, we are underwhelmed by
this argument.
" As noted, the New Castle County plaintiffs incurred response costs
pursuant to an EPA consent decree, see 111 F.3d at 1119, and the Reading
plaintiff cleaned up its site pursuant to a § 106 order and § 107 suit, see
115 F.3d at 1116. .
24a
precedents to be so limited. Nothing in New Castle County
and Reading suggests that our holdings in those cases
depended on the motivations for the cleanups. Indeed, we
reached the § 107 and common law claims in those cases
precisely because § 113 was not sufficient to dispose of the
appeals. In New Castle County, for example, we noted that
the circumstances of that case forced us to decide whether a
PRP may seek cost recovery under § 107 (even if it would
ordinarily qualify for contribution under § 113) because the
respective statutes of limitations for the different types of
claims meant that, on the facts of the case, a § 107 cost
recovery action would have been timely but a § 113 contri-
bution action would not. 111 F.3d at 1120. And in Reading,
we necessarily considered whether any contribution claim
(common law, implied in § 107, or express in § 113) could
survive the discharge of a PRP’s liability to the United States
in a bankruptcy proceeding. We concluded that an express
§ 113 contribution claim was precluded by the fact that the
Government’s claim against the PRP was discharged by the
PRP’s bankruptcy, meaning there was no underlying action
and thus other PRPs could not seek contribution from the
debtor. Reading, 115 F.3d at 1126. We rejected the common
law and implied cause of action claims because they were
categorically precluded by the statute. /d. at 1117, 1120-21.
It is familiar law that when the rule in a prior case by its
terms controls the outcome of a current case, we will not
reach out to distinguish the prior case on the basis of factual
differences that were not “material” to the earlier holding. As
Judge Kozinski explained in Hart v. Massanari, 266 F.3d
1155 (9th Cir. 2001), common law precepts require that “a
court confronted with apparently controlling authority must
parse the precedent in light of the facts presented and the rule
announced. Insofar as there maybe factual differences be-
tween the current case and the earlier one, the court must
determine whether those differences are material to the
application of the rule or allow the precedent to be distin-
25a
guished on a principled basis.” /d. at 1172; see also United
States v. Rosero, 42 F.3d 166, 174 n.16 (3d Cir. 1994)
(refusing the defendants’ invitation to distinguish an earlier
case because the precedent was not “materially. distin-
guishable” from the facts at hand); Black’s Law Dictionary
629 (8th ed. 2004) (defining a “material fact” as one “that is
significant or essential to the issue or matter at hand”). Our
holdings in New Castle County and Reading—based on our
interpretation of the statute—are broad, and nothing in those
cases suggests that the results would have been different if the
plaintiffs had undertaken voluntary cleanups.*” We do not,
*° At least one commentator has suggested that courts “do not concede
to their predecessors the power of laying down very widerules; they
reserve to themselves the power to narrow such rules by introducing into
them particular facts of the precedent case that were treated by the earlier
courts as irrelevant.” John Salmond, Jurisprudence 192 (10th ed. 1947),
reprinted in Black’s Law Dictionary 507 (8th ed. 2004). While this may
be true as a general proposition, it cannot serve as a rule of decision in a
case such as this. First, even if a panel treated certain facts as “irrelevant”
in a prior opinion, they must still be material to the earlier holding to serve
as a basis for distinguishing the case, as our discussion above demon-
strates. Second, and perhaps more importantly, our interpretation of
CERCLA’s requirements in New Castle County and Reading estabiished
that the plaintiffs in those cases lost not because they had been compelled
to clean up their sites and hence qualified for contribution under § 113
(indeed, as explained, neither plaintiff could in fact seck § 113 contribu-
tion on the facts of those cases), but because their complaints alleged
causes of action under § 107 or the common law that were not authorized
by the statute for any PRP. Of course, our Court might still have ruled
against the plaintiffs by interpreting CERCLA differently, but that is not
the interpretation we deemed appropriate based on the terms of the statute.
Particularly in the statutory interpretation realm, where courts must
faithfully apply Congress’ words and determine their settled meaning, the
breadth of a court’s holding is often compelled by the scope of Congress’
prescription. We therefore reject the argument that our holdings in New
Castle County and Reading (that CERCLA precludes PRPs from seeking
cost recovery or contribution under § 107, and establishes § 113 as the
sole basis on which a PRP may equitably apportion its costs through
contribution) are broader than they needed to be on the facts of those
26a
therefore, believe our precedents may be distinguished from
this case as the Second Circuit distinguished Bedford Affil-
iates from the circumstances of Consolidated Edison.
B. Continued Viability of New Castle County and Reading
After Cooper Industries
We turn, then, to the question of whether we may nonethe-
less reconsider our precedents in light of intervening author-
—— —4ty. In doing so, we are mindful of the Supreme Court’s
admonition that when “dealing with an issue of statutory
interpretation, . . . the claim to adhcre to case law is generally
powerful once a decision has settled statutory meaning.”
Shepard v. United States, 544 U.S. 13, 23 (2005); see also
Patterson v. McLean Credit Union, 491 U.S. 164, 172-73
(1989) (“[T]he burden borne by the party advocating the
abandonment of an established precedent is greater where the
Court is asked to overrule a point of statutory construction.
Considerations of stare decisis have special force in the area
of statutory interpretation, for here, unlike in the context of
constitutional interpretation, the legislative power is impli-
cated, and Congress remains free to alter what we have
done.”).
Because the statute itself has not changed, DuPont focuses
its attention on Cooper Industries. Its arguments may be
distilled to two intersecting theories. First, it argues that
Cooper Industries undercut a supposed major premise of our
holding in Reading—namely, that a PRP could seek con-
tribution from another PRP without having been sued or
settled its liability. Thus, DuPont contends that the analytical
foundation of Reading was overruled by the Supreme Court
and we may, therefore, disregard our prior decision. Second,
it contends that Cooper Industries changed settled expecta-
cases. To the contrary, those rules apply directly to this case, and may not
be distinguished based on facts that were not material to the earlier
decision, especially since the terms of the statute have not changed.
27a
tions in the cost apportionment field to such a dramatic extent
that the rules set out in New Castle County and Reading no
longer serve the purposes of CERCLA. As such, DuPont
argues, the intervening authority of Cooper Industries, when
viewed in the light of CERCLA’s legislative history, provides
a basis for us to find an express or implied cause of action for
contribution under § 107 or the common law notwithstanding
our precedent.
1. Alleged Inconsistency Between Cooper /ndustries and
Reading
a. Facial Inconsistency
Cooper Industries did not explicitly or implicitly overrule
our precedents; indeed, the Supreme Court expressly declined
to consider the very questions at issue here. See Cooper
Indus., 543 U.S. at 168-71. Though it is true that our
observation in Reading that Ҥ 113(f)(1) specifically permits
an action for contribution to be brought ‘in the absence of a
civil action under . . . section [107],’” 115 F.3d at 1120,
cannot support a cause of action for PRPs engaged in vol-
untary cleanups after Cooper Industries, we reject DuPont’s
view that this fatally undermines Reading’s holding. For one
thing (as explained in Part [V.B.1.b below), our statement in
Reading did not necessarily endorse a § //3(f(/) contri-
bution action in the absence of a preexisting civil action (and
is not, therefore, clearly at odds with the Supreme Court’s
later instructions). But insofar as our statement can be read to
recognize implicitly that possibility, it merely “reenforce[{d]
our conclusion that Congress intended § 113 to be the sole
means for seeking contribution.” /d. (emphasis added). We
also relied on our precedent in New Castle County, the hold-
ings of other Courts of Appeals, rules of statutory construc-
tion, and CERCLA’s purpose following the SARA amend-
ments, in deciding that § 113 provides the only contribution
remedy under CERCLA. We conclude that, even disregarding
the possibie implicit reference in Reading to a § 113(f)(1)
28a
contribution action in the absence of a § 107 suit, our holding
in that case was amply supported on other grounds and
therefore survives Cooper Industries.
b. Saving Clause
It is true that Reading’s statement—which quotes from
§ 113(H(1)’s saving clause—could be read to endorse a con-
tribution action under § 113(f)(1) without a preexisting civil
action, and as such would be wrong. See Cooper Indus., 543
U.S. at 167 (explaining that the saving clause “does [not] . . .
expand § 113(f)(1) to authorize contribution actions not
brought ‘during or following’ a § 106 or § 107(a) civil
action”’). But the Supreme Court also observed that while the
saving clause “rebuts any presumption that the express right
of contribution provided by the enabling clause [in § 113(f)(1)j
is the exclusive cause of action available to a PRP,” it does
not “specify what causes of action for contribution, if any,
exist outside § 113(f)(1),” and the Court did not itself address
the question further. /d. at 166-67.
We do know, however, there is one express cause of action
available to a PRP for contribution under CERCLA outside
the strictures of § 113(f)(1): contribution under § 113(f)(3)(B)
for PRPs that settle their liability “in an administrative or
judicially approved settlement.” Our statement in Reading is
not, therefore, necessarily incorrect: it is true that § 113(f)(1)
does not foreclose contribution actions when the PRP has not
been sued, because § 113(f)(3)(B) remains available if the
party chooses to settle. As we explain below, SARA’s leg-
islative history makes clear that the § 113(f)(3)(B) settle-
ment provision is one of two incentives that are crucial to a
carefully considered scheme to encourage PRPs to settle their
liability, enter into consent decrees, and perform supervised
cleanups.”! The District Court concluded that the § 113(f(1)
*' The other incentive is the contribution protection for settling PRPs
provided under § 113(f)(2).
29a
saving clause merely clarifies that “a contribution action
brought following a settlement under the aegis of Section
113(f)(3) should not be held to be procedurally insufficient
because of an absence of a prior primary action pursuant to
CERCLA Sections 106 or 107.” EJ. DuPont, 297 F. Supp. 2d
at 754 (emphasis omitted). As the discussion below demon-
strates, this interpretation is consistent with the settlement
provisions-in SARA, and though there is no legislative history
regarding the meaning of the saving clause, we are confident
that the District Court’s interpretation is in accord with
CERCLA’s purpose (as amended by SARA), as 1s our deci-
sion in Reading. We therefore decline DuPont’s invitation to
revisit Reading solely because its possible interpretation of
the saving clause is incorrect, especially since our statement
in Reading is not necessarily inconsistent with Cooper
Industries in the first place.
2. Statutory Purpose
DuPont’s argument regarding the purpose of CERCLA
merits more discussion. To repeat, DuPont contends that, in
the wake of Cooper Industries, our decisions in New Castle
County and Reading are in direct opposition to CERCLA’s
broad remedial purpose as expressed in its legislative history.
This, it urges, makes necessary an implied cause of action for
contribution, available to PRPs that voluntarily clean up
contaminated sites, to fill the gaps Cooper Industries recog-
nized in Congress’ remedial scheme. Indeed, as one Court has
noted, the “combined result” of Cooper Industries and cases
like New Castle County and Reading is “quixotic”: “the
present statutory arrangement resulting from the combined
authority of [Cooper Industries and earlier Courts of Appeals
cases] compels a responsible party engaged in voluntary
remediation to foot the bill for other parties, which will have
the effect of encouraging responsible parties to rest on their
heels and wait for the instigation of adverse proceedings,
rather than implement a cost-effective environmental con-
30a
tamination response strategy.” Mercury Mall Assocs., Inc. v.
Nick's Market, Inc., 368 F. Supp. 2d 513, 519 (E.D. Va.
2005) (internal quotation marks and alterations omitted).
As amici American Chemistry Council and Superfund Set-
tlements Project assert, allowing only sued or settling PRPs to
seek contribution “would discourage and delay the very
cleanups that Congress sought to encourage and accelerate”
by enacting CERCLA. Amici Br. at 9. Indeed, amici assert
that the EPA has long encouraged PRPs to clean up contami-
nated sites voluntarily, and for those who do (amici estimate
around 70% of all cleanups), the EPA has stated that it is
“important to . . . remove unnecessary obstacles to their
ability to recover their costs from the parties that are liable for
the contamination.” /d. at 7-8 (quoting National Oil and
Hazardous Substance Contingency Plan, 55 Fed. Reg. 8666,
8792-93 (March 8, 1990)).”* If PRPs engaged in voluntary
cleanups may not seek contribution, DuPont and amici argue,
“companies would resist undertaking new cleanup obliga-
tions, and would rarely do so voluntarily,” thus frustrating
core purposes of CERCLA. /d. at 9.
a. CERCLA’s Legislative History
We begin, then, with the legislative history of CERCLA.”
22 As we explain in footnote 30 below, however, this statement is taken
out of context. In context, it is clear the EPA refers to cost recovery
actions—which, as we noted in New Castle County, are available only to
innocent parties, not PRPs.
** We are mindful, of course, that legislative history can sometimes be
“murky, ambiguous, and contradictory,” and that recourse to it as an inter-
pretive aid may, if we are not careful, devolve to “an exercise in looking
over a crowd and picking out your friends.” Exxon Mobil Corp. v. Alla-
pattah Servs., Inc., 545 U.S. __, 125 S. Ct. 2611, 2626 (2005) (internal
quotation marks omitted). We are confident that these concerns are not
implicated here. Though (as explained below) the legislative history of
CERCLA is rather unclear, particularly with respect to voluntary cleanups
by PRPs, the legislative history of SARA uniformly indicates the intent of
Congress to encourage settlement by, inter alia, authorizing an express
3la
Although the statute is supposed to be “comprehensive,” the
legislative history is not, as many of the pre-SARA cases that
allowed an implied right of action under § 107 observed. See,
e.g., Walls, 761 F.2d at 318 (“[T]he legislative history of
CERCLA is vague, reflecting the compromise nature of the
legislation eventually enacted.”); NCC, 642 F. Supp. at 1263
(noting “the absence of significant legislative history” of
CERCLA); see also Frank P. Grad, A Legislative History of
the Comprehensive Environmental Response, Compensation
and Liability (“Superfund”) Act of 1980, 8 Colum. J. Envtl.
L. 1, 2 (1982) (“In the instance of the ‘Superfund’ legislation,
a hastily assembled bill and a fragmented legislative history
add to the usual difficulty of discerning the full meaning of
the law.”).
Though without doubt CERCLA’s drafters intended that
the statute encourage responsible parties to clean up hazard-
ous waste sites and bear the costs of doing so, see Morton
Int’l, 343 F.3d at 676, Congress’ position on voluntary
cleanups is less clear. Reporting on the proposed Hazardous
- Waste Containment Act (the House of Representatives’ ver-
sion of CERCLA, see Grad, supra, at 4-5),”* the House Com-
mittee on Interstate and Foreign Commerce noted that the bill
would “establish a Federal cause of action in strict liability to
enable the [EPA] administrator to pursue rapid recovery of
the costs incurred for the costs of such [cleanup] actions
undertaken by him from persons liable therefor and to induce
and limited contribution right. We also observe that, although we would
of course have no need to look to the legislative history to discern the
meaning of an unambiguous statutory provision, see Cooper Indus., 543
U.S. at 167, we need to consult the legislative history where, as here, a
party urges us to disregard precedent and imp/y a cause of action to effect
the intent of Congress.
** For a thorough review of the legislative debates on the House and
Senate versions of CERCLA, and the compromises that allowed the legis-
lation to become law, see Grad, supra.
32a
such persons voluntarily to pursue appropriate environmental
response actions with respect to inactive hazardous waste
sites.” H.R. Rep. No. 96-1016(I), at 17 (1980), reprinted in
1980 U.S.C.C.A.N. 6119, 6120. Representative Florio, the
floor manager of the legislation in the House, noted that
“(t]he strong liability provisions that are in our bill . . . are
very important, because we want to induce those who know
where these sites are to remedy the sites themselves. If there
is no liability provision, they will not have any incentive
whatsoever to go forward on a voluntary basis and clean up
those sites.” 126 Cong. Rec. H9441 (daily ed. Sept. 23, 1980);
see also id. at H9467 (statement of Rep. Florio) (“EPA is
required not to act if the responsible party or parties will take
appropriate action to clean{]up and contain these sites.”’).
These statements do not, however, establish that Congress
necessarily intended that PRPs engaged in voluntary cleanups
be able to seek contribution; they could just as easily reflect
congressional recognition that a strong enforcement scheme
hoiding wrongdoers liable would encourage PRPs to head off
potentially ruinous litigation or punitive settlements and clean
up their own mess.” Indeed, Congress provided no express
right of contribution for any PRP that incurred response costs,
whether voluntarily or not. Language providing an express
cause of action for contribution among PRPs was rejected by
Congress, see NCC, 642 F. Supp. at 1263, as was language
providing for joint and several liability, see, e.g., 126 Cong.
Rec. $14,964 (daily ed. Nov. 24, 1980) (statement of Sen.
Randolph) (“It is intended that issues of liability not resolved
*> Indeed, the companion legislation in the Senate focused more on
deterrence than on encouraging voluntary cleanups. See S. Rep. No. 96-
848, at 13, 15 (1980) (noting that the bill’s intent was that “those re-
sponsible for any damage, environmental harm, or injury from chemical
poisons bear the costs of their actions” on the basis of “strict, joint, and
several liability” to create an “incentive for greater care focus[ed] on the
initial generators of hazardous wastes”’).
33a
by this act, if any, shall be governed by traditional and
evolving principles of common law. An example is joint and
several liability. Any reference to these terms has been
deleted, and the liability of joint tort feasors will be deter-
mined under common or previous statutory law.”’); 126 Cong.
Rec. H11, 787 (daily ed. Dec. 3, 1980) (statement of Rep.
Florio) fanme).
While it is clear that CERCLA’s drafters intended common
law principles to govern liability, we have not found evidence
in the legislative history that Congress contemplated this
would extend a contribution right to PRPs engaged in entirely
voluntary cleanups. In fact, the House and Senate floor
managers’ statements that liability would be governed by
common law principles appear inconsistent with this pos-
sibility, since contribution among jointly and severally liable
tortfeasors ordinarily follows a determination of liability to a
common plaintiff who suffered an injury. See, e.g., Restate-
ment (Second) of Torts §$ 875, 886A (1979); 2 Michael Dore,
Law of Toxic Torts § 16.04 (1999) (“In general, contribution
is available whenever a party is held liable to a plaintiff for
injuries [for] which other parties were at least partially
responsible.”); see also Northwest Airlines, 451 U.S. at 86-88
(noting that, in “most American jurisdictions, . . . a right to
contribution is recognized when two or more persons are
liable to the same plaintiff for the same injury and one of the
joint tortfeasors has paid more than his fair share of the ©
common liability”). As then-Representative Gore explained
to the House of Representatives in offering an amendment to
the Hazardous Waste Containment Act,
Joint and several liability ordinarily would mean that
whenever a single, indivisible harm is sustained as a
result of independent, separate, but concurring tortious
acts by two or more actors, each can be held liable for
the entire amount of damages incurred. . . . The plaintiff
could collect the total sum of damages awarded from a
34a
single defendant and could avoid the agony of multiple
suits against the defendants that would otherwise be
necessary to achieve full compensation.
Under the theory of contribution, the defendant from
whom the plaintiff receives payment may then collect
from the other defendants for that part of the damages
for which each is responsible. . . . [C]Jourts [have]
concluded that because the defendants were the ones at
fault, it would be unfair to place the burden of demon- ,
strating the apportionability of the damage on the plain-
tiff. The burden was thus placed on the defendants to
work out for themselves who was responsible for what
part of the injury under the process of contribution [after
the plaintiff recovered his damages].
126 Cong. Rec. H9463 (daily ed. Sept. 23, 1980).
b. SARA’s Legislative History
The legislative history of the SARA amendments, while
labyrinthine, is less clouded than the legislative history of
CERCLA as initially enacted, particularly with respect to
contribution and voluntary cleanups. Cooper Jndustries puts
beyond question that § 113 establishes a contribution remedy
only for PRPs that have settled their liability or have been
sued, and the legislative history supports this reading. See,
e.g., S. Rep. No. 99-11, at 44 (1985) (stating that § 113
“clarifies and confirms the right of a person held jointly and
severally liable under CERCLA to seek contribution from
other potentially liable parties”); H.R. Rep. No. 99-253(I), at
79 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2861
(same); H.R. Rep. No. 99-253(IID, at 18 (1986), reprinted in
1986 U.S.C.C.A.N. 3038, 3041 (stating that § 113 “clarifies
and emphasizes that persons who settle with EPA (and who
are therefore not sued), as well as defendants in CERCLA
actions, have a right to seek contribution from other po-
tentially responsible parties”).
~
35a
SARA’s legislative history also reveals an express bent
toward encouraging settlement. See, e.g., H.R. Rep. No. 99-
253(IIN), at 29, reprinted in 1986 U.S.C.C.A.N., at 3052
(“The Judiciary Committee strongly agrees with the Energy
and Commerce Committee that encouraging . . . negotiated
clean-ups will accelerate the rate of clean-ups and reduce
their expense by making maximum use of private sector
resources. The Committee also agrees that this emphasis on
negotiated clean-ups should not replace or diminish a strong
and aggressive enforcement policy, but rather should
complement such a policy.”); H.R. Rep. No. 99-253(I), at
100-01, reprinted in 1986 U.S.C.C.A.N., at 2882-83 (same).
As the Senate Environment and Public Works Committee
reported, voluntary cleanups, though desirable, should be
undertaken pursuant to a settlement with the EPA:
Congress, the EPA, responsible parties, and other critics
have suggested several means of speeding up and econ-
omizing on site cleanups. These include enlarging the
Superfund, setting program deadlines, expanding the
EPA program offices, empowering citizens to sue, and
encouraging voluntary cleanup by industry. Although
enlarging the Fund, providing more staff, and setting
program deadlines would tend to accelerate the
CERCLA effort, the Administrative Conference believes
that a properly designed site cleanup negotiation process,
through which responsible parties or third parties would
agree to act directly to clean up sites, would also hasten
cleanup while reducing its expense by tapping the tech-
nical and financial resources of the private sector.
Involvement of the federal government and affected
citizens in this process would ensure adequate protection
of public health and the environment.
36a
The final agreement should take the form of an
administrative consent order under section 106 of
CERCLA or a judicial consent decree.
S. Rep. No. 99-11, at 65, 67; see also H.R. Rep. No. 99-
253(V), at 58 (1986), reprinted in 1986 U.S.C.C.A.N. 3124,
3181 (“The Committee recognizes that Fund-financed
cleanups, administrative action and litigation—even under a
strong and vigorous enforcement program—-will not be suf-
ficient to accomplish CERCLA’s goals. Voluntary cleanups
are essential to a successful program for cleanup of the
Nation's hazardous substance pollution problem. SARA’s
settlement provisions are] intended to encourage and estab-
lish procedures and protections pertaining to negotiated pri-
vate party cleanup of hazardous substances where such
cleanup is in the public interest.” (emphasis added)); 132
Cong. Rec. H9609 (statement of Rep. Slattery) (“This legis-
lation . . . encourages potentially responsible parties to come
out of the woodwork and the courts, and settle on an
environmentally acceptable cleanup plan.”).
It is also apparent from the legislative history that Congress
intended the contribution allowed by § 113 to be a crucial
part of its scheme to encourage settlement and (by extension)
private cleanups by PRPs within the bounds of the settlement
agreements. The House Energy and Commerce Committee,
for example, reported that limiting contribution to parties who
were sued or settled
should encourage private party settlements and cleanups.
Parties who settle for all or part of a cleanup or its costs,
or who pay judgments as a result of litigation, can
attempt to recover some portion of their expenses and
obligations in contribution litigation from parties who
were not sued in the enforcement action or who were not
partics to the settlement. [Such] parties may be more
willing to assume the financial responsibility for some or
37a
all of the cleanup [i.e., through settlement] if they are
assured that they can seek contribution from others.
H.R. Rep. No. 99-253(1), at 80, reprinted in 1986
U.S.C.C.A.N., at 2862; S. Rep. No. 99-11, at 44 (same).
The settlement procedures now set forth are expected
to be a significant inducement for parties to come forth,
to settle, to avoid wasteful litigation and thus to begin
cleanup.
The bill would give potentially responsible parties the
explicit right to sue other liable or potentially liable
parties who also may be responsible for the hazardous
waste site. [Also,] [i]f a party has resolved its liability to
the U.S. or a state in a judicially[] approved, good-faith
settlement, the party would not be liable for claims for
contribution or indemnity on matters addressed in the
settlement. These provisions should encourage quicker,
more equitable settlements, decrease litigation and thus
facilitate cleanups.
H.R. Rep. No. 99-253(1), at 58-59, reprinted in 1986
U.S.C.C.A.N., at 2840-41 (emphasis added); see also H.R.
Rep. No. 99-253(III), at 20, reprinted in 1986 U.S.C.C.A.N.,
at 3043 (explaining that “[the] amendments to the contri-
bution section [i.e., § 113] will improve its effectiveness,
ensure its fair operation, and encourage settlements by
responsible parties”). As Senator Stafford, the floor manager
of SARA in the Senate, explained, the legislation recognized
that settlements are a crucial part of the EPA’s enforcement
regime, and “[t]he theory underlying Superfund’s liability
scheme was, and is, that the Government should obtain the
full costs of cleanup from those it targets for enforcement,
and leave remaining costs to be recovered in private
contribution actions between settling and nonsettling parties.”
132 Cong. Rec. $14, 903 (daily ed. Oct. 3, 1986).
38a
* * KK *
Congress no doubt intended by the SARA amendments to
encourage settlements, and further intended that the promise
of contribution for settling wrongdoers would encourage
them to come forward, negotiate a settlement with the Gov-
ernment, and begin work on supervised cleanups. Indeed, the
“voluntary” nature of the cleanups Congress had in mind was
a voluntary agreement to settle and enter into a consent
decree, rather than a wholly voluntary, unsupervised, sua
sponte cleanup operation. CERCLA’s initial legislative
history—which is sparse, vague with respect to voluntary
cleanups, and leaves issues of joint and several liability
(including contribution) to the common law—must, of neces-
sity, be read in tandem with SARA, and SARA establishes
a specific and intricate legislative scheme for encouraging
settlement through, among other things, a limited contribu-
tion right.
c. Contribution for Voluntary Cleanups without Set-
tlement or Suit
To be sure, the legislative history of SARA contains no
express statement that parties that clean up their own sites
voluntarily, without having settled their liability or having
been sued, cannot seek contribution.”2°> We conclude, how-
ever, that SARA’s settlement scheme is inconsistent with
such a right.
First, we are mindful of the Supreme Court’s caution that
“once Congress addresses a subject, even a subject previously
governed by federal common law, the justification for law-
making by the federal courts is greatly diminished. There-
afier, the task of the federal courts is to interpret and apply
© Of course, as noted, there is no express statement in CERCLA or
SARA, or in their respective legislative histories, that PRPs engaged in
voluntary cleanups can seek contribution.
39a
statutory law, not to create common law.” Northwest Airlines,
451 U.S. at 95 n.34. The Court continued:
In almost any statutory scheme, there may be a need for
judicial interpretation of ambiguous or incomplete pro-
visions. But the authority to construe a statute is fun-
damentally different from the authority to fashion a new
rule or to provide a new remedy which Congress has
decided not to adopt. The presumption that a remedy
was deliberately omitted from a statute is strongest when
Congress has enacted a comprehensive legislative scheme
inciuding an integrated system of procedures for en-
forcement. ... The judiciary may not, in the face of such
comprehensive legislative schemes, fashion new reme-
dies that might upset carefully considered legislative
programs.
Id. at 97 (citation and footnote omitted) (emphasis added).
We echoed this understanding in Reading. See 115 F.3d at
1117 (‘[W]hen Congress expressly created a statutory right of
contribution in CERCLA § 113(f), 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.”).”’ Indeed, it would be
>? DuPont counters with another rule of statutory construction: “that if
Congress intends for legislation to change the interpretation of a judicially
created concept, it makes that intent specific.” Midlantic Nat'l Bank v.
N.J. Dep't of Envil. Prot., 474 U.S. 494, 501 (1986). It argues that
Congress should not be deemed to have rejected a common law implied
right of contribution without expressly saying so. In Reading, however,
we concluded that Congress did specifically replace all common law
remedies with an express and exclusive statutory remedy, and with good
reason: allowing PRPs to seek contribution only within the confines of
§ 113 provides a powerful incentive for them to settle their liability, a
prime goal of SARA.
40a
odd to suppose that Congress would have expressly provided
a contribution right for PRPs that settled or were sued as part
of an elaborate statutory scheme to encourage settlement if it
intended that all other PRPs would be able to obtain con-
tribution under some implied or common law right.
It might be argued, however, that CERCLA’s general pur-
pose (i.e., prompt and effective cleanup) is accomplished by
any sort of cleanup (whether pursuant to a settlement, in
response to a suit, or voluntarily). Under this view, SARA’s
preference for settlhement and its express provision of
contribution as an incentive to seek settlement should not be
deemed to preclude reconsideration of precedents that, in
light of Cooper Industries, now serve as a barrier to certain
cleanups that would otherwise satisfy the desire for prompt
and effective action.
We disagree with this argument. Of particular concern to
the Congress that enacted SARA was setting standards likely
to effect the safe and effective cleanup of contaminated sites
Indeed, the legislative history of SARA reveals that Congress approved
expressly of certain prior cases, and none of them involved a PRP that
voluntarily cleaned up its site without having scttled or been sued. The
House Energy and Commerce Committee reported that it agreed with
United States v. South Carolina Recycling & Disposal, Inc., 653 F. Supp.
984 (D.S.C. 1986) (which held PRPs jointly and severally liable to the
United States and suggested, in keeping with ordinary contribution rules,
that upon being held liable a PRP could seek contribution from other
PRPs), and United States v. Ward, 1984 U.S. Dist. LEXIS 16774, No. 83-
63-CIV-5, 1984 WL 15710 (E.D.N.C. May 14, 1984) (which held that a
PRP deemed jointly and severally liable can seek contribution from other
PRPs under the common law), and explained that § 113 “clarifies and
confirms the right of a person held jointly and severally liable under
CERCLA to seck contribution from other potentially liable parties.” H.R.
Rep. No. 99-253(1), at 79, reprinted in 1986 U.S.C.C.A.N., at 2861 (em-
phasis added); see also id. at 74, reprinted in 1986 U.S.C.C.A.N., at 2856
(noting that the Committee “fully subscribes to the reasoning” in United
States v. Chem-Dyne Corp., 572 F. Supp. 802 (S.D. Ohio 1983), that
PRPs are jointly and severally liable to third parties).
4la
in a manner beneficial to the public interest. See, e.g.,
CERCLA § 121, 42 U.S.C. § 9621 (requiring “[t]he President
[to] select a remedial action that is protective of human health
and the environment, that is cost effective, and that utilizes
permanent solutions and alternative treatment technologies or
resource recovery technologies to the maximum extent prac-
ticable,” and setting standards for meeting this requirement);
‘Ohio v. EPA, 997 F.2d 1520, 1526 (D.C. Cir. 1993) (noting
that “the statute . . . require[s] that remedial actions at Super-
fund sites result in a level of cleanup or standard of control
that at least meets the legally applicable or otherwise relevant
and appropriate federal (or stricter state) requirements,”
particularly the “legally ‘applicable’ or ‘relevant and appro-
priate’ environmental standards” in the National Contingency
Plan (“NCP”)). The House Committee on Public Works and
Transportation explained that the EPA must consider, inter
alia, “the availability of technology, the installation period,
the uncertainties related to the level of performance or the
solution or remedial action, the level of public support for the
solution or remedial action, and whether or not the solution or
remedial action has been achieved in practice at any other
facility or site which has characteristics similar to the facility
or site concerned.” H.R. Rep. No. 99-253(V), at 50, reprinted
in 1986 U.S.C.C.A.N., at 3173.”*
Indeed, before SARA was enacted, the EPA expressed
serious doubts about swa sponte voluntary cleanups by PRPs.
In the 1983 amendment to the NCP that added the National
Priorities List for site cleanup, the EPA explained that, by
*8 In fact, under CERCLA § 122(e)(6), 42 U.S.C. § 9622(e)(6), Con-
gress expressly forbade, without the EPA’s approval, remedial actions by
PRPs once an administrative order or consent decree was in place. As
Senator Mitchell explained, “[t]his [provision] is to avoid situations in
which the PRP begins work at a site that prejudges or may be inconsistent
with what the final remedy should be or exacerbates the problem.” 132
Cong. Rec. $14919 (daily ed. Oct. 3, 1986).
42a
designating certain sites as subject to “Voluntary or Nego-
tiated Response,” its strong preference was for negotiated
cleanups with Government oversight.”’
Sites are included in this category if private parties are
taking response actions pursuant to a consent order or
agreement to which EPA is a party. Voluntary or negoti-
ated cleanup may include actions taken pursuant to con-
sent orders reached after EPA has commenced an en-
forcement action. This category of response may include
remedial investigations, feasibility studies, and other
preliminary work, as well as actual cleanup.
Several commenters were concerned that this category
did not adequately reflect voluntary response efforts
undertaken without formal agreements with EPA. How-
ever, EPA studies have shown that many of the response
actions undertaken by private parties outside the sanc-
tion of EPA consent agreements have not been success-
ful. Furthermore, some private parties have represented
routine maintenance or waste management activities as
response actions, thereby leading to the conclusion that
only after a thorough technical review can the Agency
describe actions by private parties as “responses”’. Thus,
EPA believes that to describe actions taken outside
consent orders as “response” would in many instances
be misleading to the public{,] as EPA cannot assure the
public that the actions are appropriate, adequate, con-
sistent with the NCP, and are being fully implemented.
° This docs not, of course, mean that only federal Government over-
sight is allowed. See United States v. Akzo Coatings of Am., Inc., 949
F.2d 14099, 1418 (6th Cir. 1991) (“The federal legislative scheme and its
history are persuasive that Congress did not intend to leave the cleanup
under CERCLA solely in the hands of the federal government. CERCLA,
as amended by SARA, provides a substantial and meaningful role for the
individual states in the selection and development of remedial actions to
be taken within their jurisdictions.”).
43a
Therefore, the Agency encourages any responsible par-
ties who are undertaking voluntary response actions at
NPL sites to contact the Agency to negotiate consent
agreements.
This is not intended to preclude responsible parties
from taking voluntary response actions outside of a con-
sent agreement. However, in order for the site to be
deleted or to be noted in the voluntary or negotiated
response category, EPA must still sanction the com-
pleted cleanup. If the remedial action is not ‘ully
implemented or is not consistent with the NCP, the
responsible party may be subject to an enforcement
action. Therefore, most responsible parties may find it in
their best interest to negotiate a consent agreement.
Amendment to National Oil and Hazardous Substance Con-
tingency Plan, 48 Fed. Reg. 40,661 (Sept. 8, 1983) (emphasis
added).*°
*° Although the EPA treats innocent parties more generously than
wrong doing PRPs, it expressed a similar concern with respect to cost re-
covery by innocent partics in the substantive amendment to the NCP
implementing SARA:
EPA believes that it is important to encourage private parties to
perform voluntary cleanups of sites, and to remove unnecessary
obstacles to their ability to recover their costs from the parties that
are liable for the contamination. At the same time, EPA believes it
is important to establish a standard against which to measure clean-
ups that qualify for cost recovery under CERCLA, so that only
CERCLA-quality cleanups are encouraged. . . . [Thus,] in evalu-
ating whether or not a private party should be entitled to cost
recovery under CERCLA section 107(a)(4)(B), EPA believes that
“consistency with the NCP” should be measured by whether the
private party cleanup has, when evaluated as a whole, achieved
“substantial compliance” with potentially applicable requirements,
and resulted in a CERCLA-quality cleanup.
44a
There is, of course, no explicit indication in SARA or the
legislative history that Congress was motivated by these
concems in amending CERCLA to encourage settlement. But
the import of Congress’ scheme (an express desire to oversee
cleanups via settlements and other enforcement actions, the
explicit promise of contribution as an incentive for PRPs
to enter negotiated cleanup agreements, and the desire for
quality-control standards for safe, effective, and reliable
cleanups) is consistent with the EPA’s wariness of wholly
voluntary and unregulated cleanups. As the attorneys who
prevailed in Cooper Industries argue in a recent article,
[a]ny suggestion that section 107(a) offers some other
federal recourse to PRPs seeking a contribution remedy
under CERCLA is . . . undermined by the settlement
scheme that Congress devised with its enactment of
section 113’s contribution provision. Specifically, under
the SARA amendments, those who settle their cleanup
claims with federal or state authorities receive an explicit
right of contribution against other PRPs undersection
113(f)(3)(B), as well as statutory protection under sec-
tion 113(f)(2) from possible future contribution actions
by other responsible parties.
Protecting the integrity of this legislative scheme to
incentivize settlements was a key factor for the federal
circuit courts in universally determining that parties
responsible for the site contamination may not assert
section 107(a) actions seeking to recover their cleanup
[T]he government has a strong interest in ensuring that cleanup
actions that derive a benefit from CERCLA section 107({a)(4)(B)—a
statute under the charge of EPA—are performed in an environ-
mentally sound manner; thus, it is appropriate to provide a standard
or measure of consistency with the NCP.
National Oil and Hazardous Substance Contingency Plan, 55 Fed. Reg.
8666, 8792-93, 8794 (March 8, 1990).
45a
costs from other responsible parties, but must instead . . .
seek contribution under section 113(f)(1).
William Bradford Reynolds & Lisa K. Hsiao, The Right of
Contribution Under CERCLA After Cooper Industries v.
Aviall Services, 18 Tul. Envtl. L.J. 339, 349-50 (2005)
(footnotes omitted) (citing, inter alia, Reading, 115 F.3d at
1119); see also id. at 353 (contending that CERCLA’s pur-
pose was never to “encourag[e] wholly unsupervised private
remediation activities,” but rather to “facilitat[e] government-
sponsored cleanups’).
To be sure, other courts have concluded that because
CERCLA’s general goal was to assure prompt and effective
cleanups, and sua sponte cleanups by PRPs may be prompt
and effective, those PRPs must be able to seek contribution.
See, e.g., Atlantic Research Corp. v. United States, _ F.3d
__, 2006 WL 2321185, at *7-9 (8th Cir. Aug. 10, 2006);
Consol. Edison, 423 F.3d at 99-100; City of Bangor v. Citi-
zens Communs. Co.,__ F. Supp. 2d __, 2006 WL 1868332, at
*41 (D. Me. June 27, 2006) (citing Consol. Edison, 423 F.3d
at 100); Viacom, Inc. v. United States, 404 F. Supp. 2d 3, 8
(D.D.C. 2005). We believe, however, that a thorough review
of CERCLA, as amended by SARA, does not support this
conclusion. Congress intended to allow contribution for
settling or sued PRPs as a way to encourage them to admit
their liability, settle with the Government, and begin ex-
peditious cleanup operations pursuant to a consent decree or
other agreement. Our precedents recognize this “elaborate
settlement scheme,” see Reading, 115 F.3d at 1117, and if we
were to revisit them now, we would risk upsetting Congress’
carefully chosen remedy.*' In any event, the legislative
*' DuPont makes the interesting argument that Congress’ scheme
effectively allows the federal Government to avoid liability in contri-
bution for its actions as a PRP. It contends that the EPA is generally
prohibited from pursuing CERCLA actions against other federal agencies,
and thus “the government's liability under CERCLA will almost invari-
46a
history of CERCLA, when read in conjunction with that of
SARA, simply does not show that our precedents are at odds
with Congress’ intent.*”
ably be in contribution.” Appellants’ Br. at 41-42 (citing Exec. Order No.
12,580, 52 Fed. Reg. 2923 (Jan. 23, 1987)). If private PRPs may only seek
contribution from the United States (as a PRP) if there is a preexisting
action under § 106 or § 107 or settlement under § 113(f)(3)(B), DuPont
argues, the Government could use its “many options for exercising its
enforcement discretion to avoid governmental liability under CERCLA.”
Id. at 42. As noted in footnote 18 above, the Eighth Circuit accepted this
argument recently in Atlantic Research, 2006 WL 2321185, at *8.
DuPont does not, however, provide evidence that the EPA actually
uses its enforcement discretion to avoid subjecting other federal agencies
to potential liability in a later contribution suit (nor did the Eighth Circuit
cite such evidence in its decision). Indeed, it would in many cases be
difficult for the EPA to do so because, under principles of joint and
several liability, the initial suit or settlement does not involve other
tortfeasors, who are identified and deemed liable in later proceedings.
Also, the federal Government has little or no control over suits by
innocent landowners or state enforcement actions, both of which would
serve as a predicate for § 113(f){1) contribution.
** Nor do we have cause to reconsider New Castle County’s holding
that cost recovery under § 107 is only available to innocent parties. In
Consolidated Edison, the Second Circuit found “no basis for reading into
[§ 107] a distinction between so-called ‘innocent’ parties and [PRPs],”
and suggested in a footnote that the concern expressed in New Castle
County (that it would be illogical to allow a PRP to recover all of its costs
on the same basis as an entirely blameless party) was “misplaced,”
because “there appears to be no bar precluding a person sucd under
section 107(a) from bringing a counterclaim under section 113(f)(1) for
offsetting contribution against the plaintiff volunteer who, if sued, would
be liable under section 107(a).” 423 F.3d at 99-100 & n.9. We make three
observations.
First, the Second Circuit declined explicitly to consider “whether a
three-judge panel of this court may depart from Bedford Affiliates’s
section 107(a) holding” because it deemed Bedford Affiliates factually
distinguishable. Consol. Edison, 423 F.3d at 100-01 & n.12. But it is hard
to see how the later panel could simply assert there is “no basis” for
limiting § 107 cost recovery suits to innocent parties when Bedford
47a
d. Public Policy Arguments
Of course, it could be that encouraging sua sponte vol-
untary cleanups by capable PRPs is in the public’s interest,
and would be a better way to protect health and the envi-
ronment than pressuring them into settlement agreements.
This is not self-evident, however. As Judge Sand recently
observed, limiting contribution rights to settling or sued PRPs
would pressure PRPs to settle with some government
regarding their own liability for polluting a site, if they
wanted to obtain contribution from others also re-
sponsible for polluting that site. There is nothing neces-
sarily irrational about requiring a PRP that voluntarily
goes to court to obtain cost reimbursement [through
Affiliates (like our decision in New Castle County) plainly held the
opposite. See Bedford Affiliates, 156 F.3d at 424 (“[O]ne potentially
responsible person can never recover 100 percent of the response costs
from others similarly situated since it is a joint tortfeasor—and not an
innocent party—that ultimately must bear its pro rata share of cleanup
_ costs under § 107(a). . . . Congress planned that an innocent party be able
to sue for full recovery of its costs [under § 107] while a party that is itself
liable may recover only those costs exceeding its pro rata share of the
entire cleanup expenditure, i.e., contribution under § 113(f)(1).”).
Second, the Second Circuit’s proposed procedure—allowing a PRP
“volunteer” to obtain full cost recovery, but then subjecting it to a
counterclaim by other PRPs for “offsetting contribution” to avoid unjust
enrichment—seems quite unwieldy and is, in any event, not contemplated
by CERCLA or SARA.
Third, and perhaps most importantly, although another Circuit’s views
are entitled to due weight by our Court, they are not “intervening
authority” that would justify our reconsideration of our precedents without
en banc review. Indeed, we note that at least one other Circuit Court has
agreed with our interpretation of § 107(a) in a case decided after
Consolidated Edison. See Elementis Chromium L.P. v. Coastal States
Petrol. Co., 450 F.3d 607, 613 (Sth Cir. 2006) (“[W]hen one liable party
sues another liable party under CERCLA, the action is not a cost recovery
action under § 107(a), and the imposition of joint and several liability is
inappropriate.” (internal quotation marks omitted) (alteration in original)).
48a
contribution], as opposed to being dragged into court by
another party, to either prove its ‘innocence’... or
officially admit its ‘guilt’ (via a settlement); such a
forced choice would be entirely consistent with Con-
gress’s intent.
Elementis Chems., Inc. v. TH Agric. & Nutrition, L.L.C., 373
F. Supp. 2d 257, 272 (S.D.N.Y. 2005).
But we need not linger on this particular issue. The fact
that DuPont and the other appellants, if they are allowed
contribution for response costs voluntarily incurred, may be
capable of reaching a good result without the Government
oversight provided for in SARA, is not a reason to reconsider
our prior holdings that the statute precludes such causes of
action. And, in any event, the debate over whether our
national environmental cleanup laws should favor prompt and
effective cleanups in any manner (including sua sponte vol-
untary cleanups by PRPs), or should favor settlements and
other enforcement actions to ensure that wrongdoers admit
their fault and fix the problem under the aegis of Government
oversight, is a matter for Congress, not our Court. See Texas
Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 646
(1981) (“The policy questions presented by petitioner’s
claimed right to contribution are far-reaching. In declining to
provide a right to contribution, we neither reject the validity
of those arguments nor adopt the views of those opposing
contribution. Rather, we recognize that, regardless of the
merits of the conflicting arguments, this is a matter for
Congress, not the courts, to resolve.””). Congress sets policy.
We steer clear of such matters, as our function is to interpret
the statutes Congress enacts to reflect its policy choices.
* * * Kk *
Having determined that New Castle County and Reading
control this case, and that neither the Supreme Court’s
decision in Cooper Industries nor the purpose of CERCLA
(as amended by SARA) provide cause to reexamine those
49a
precedents, we must refuse DuPont’s invitation to imply a
cause of action for contribution under § 107 or the common
law available to PRPs engaged in sua sponte voluntary
cleanups. We are aware, of course, that other courts have held
differently, but we do not believe those decisions can be
reconciled with SARA.
V. Judgment on the Pleadings
Because appellants cannot seek contribution for their vol-
untary cleanup efforts (and, hence, the District Court’s
December 30, 2003 order, as amended on January 8, 2004,
must be affirmed), we proceed to consider whether the
District Court erred in granting the Government judgment on
the pleadings with respect to the remaining fourteen sites at
issue in this litigation. Our review of judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c) is
“confined to the allegations in the pleadings,” and we “must
accept [the non-movant’s] version of events as true.” Consol.
Rail Corp. v. Portlight, Inc., 188 F.3d 93, 98 (3d Cir. 1999).
The motion should be granted if “there is no material issue of
fact to resolve,” Mele v. Fed. Res. Bank of N.Y., 359 F.3d
251, 253 (3d Cir. 2004) (internal quotation marks omitted),
and neither we nor the District Court may “consider matters
extraneous to the pleadings” in deciding whether there are
material facts in dispute. /d. at 256 n.5 (internal quotation
marks omitted).
The District Court concluded that, although appellants
asserted they could introduce evidence that some of the other
sites were being cleaned up pursuaiit to EPA consent decrees
(and thus might qualify for § 113(f)(1) contribution), they
never did introduce that evidence, nor did they seek to amend
their complaint. Thus, based solely on the pleadings, the
District Court granted judgment to the Government because
appellants’ complaint did not allege any facts that would
suggest the circumstances of the cleanups at other sites were
different from those at DuPont’s Louisville facility. DuPont
50a
argues that, since discovery had not yet proceeded with
respect to any of the other sites, it was premature to conclude
that the circumstances at those sites were the same as in
Louisville. This is not, however, what the District Court con-
cluded. Rather, it rightly noted that appellants bore the burden
of pleading facts sufficient to show they could obtain § 113
contribution. Surely they did not need discovery to determine
whether cleanups at some of their sites were pursuant to a
suit, settlement, or consent decree.
A straightforward reading of appellants’ complaint reveals
no allegation that any site was cleaned up pursuant to some
kind of suit or settlement. The complaint merely describes the
Government’s alleged actions that contributed to contami-
nation at each site, without any reference to the current clean-
up operations. The only discussion of the cleanup operations
reveals that appellants “have undertaken, and are undertaking,
response actions with respect to the Facilities in response to
releases or threatened releases of hazardous substances, and
have incurred and are incurring necessary costs of response
consistent with the NCP.” Thus, based solely on the plead-
ings, appellants have not set out facts sufficient to demon-
strate, even by inference, that they could possibly prevail on
their claim for contribution under § 113.7?
*? After this appeal was filed, the Government learned that in 2001 the
EPA sued DuPont under § 107(a) regarding contamination at the Necco
Park facility in Niagara, New York. See Gov’t Br. at 57 n.25. Thus, the
Government recommends that any dismissal of DuPont’s claim with
respect to that site be without prejudice. Since the EPA brought suit in
2001 (two-and-a-half years before the District Court issued its final
judgment in this case), we are reluctant to allow DuPont a second bite at
this apple for the same reasons we believe its claims with respect to the
other facilities were properly dismissed. The Government nonetheless 1s
willing to subject itself to a suit for contribution regarding the Necco Park
facility. In this context, and even though DuPont (surprisingly) did not
bring the suit to the District Court’s attention, we abide the Government’s
Sla
VI. Conclusion
We are not, of course, unsympathetic to the policy argu-
ments made by appellants. Nothing in our decision, however,
forces them to sit on contaminated sites and wait to be sued,
endangering public health all the while. They can, consistent
with SARA, approach the EPA or a state environmental
agency and settle their liability, and then seek contribution
from others. If indeed they desire to be good corporate
citizens (which their sua sponte voluntary cleanups suggest is
the case), we have little doubt they will seek settlement rather
than wait to be sued. They are not, of course, guaranteed
terms in a settlement as favorable as those they would enjoy
if they cleaned up a contaminated site entirely on their own,
but this is an inescapable consequence of Congress’ plan.
That plan, recognized and protected in our precedents, was
left untouched (and arguably strengthened) by Cooper Indus-
tries, and we therefore have no cause to reconsider our
precedents here.
For these reasons, the District Court’s December 30, 2003
order (as amended on January 8, 2004) is affirmed. Its March
1, 2004 order is also affirmed, with the caveat that the Dis-
trict Court’s dismissal of the contribution claim regarding
DuPont’s Necco Park facility in Niagara, New York is con-
verted to a dismissal without prejudice.
request. Insofar as the Necco Park facility is concerned, the District
Court’s March 1, 2004 order is converted to a dismissal without prejudice.
52a
SLOVITER, Circuit Judge, dissenting.
Judge Ambro has written a fine opinion in support of the
majority’s position that plaintiff DuPont does not have a right
to contribution from the United States for its voluntary
cleanup of a site that was polluted by the United States as
well as by DuPont. I reach a conclusion different from that
reached by the majority and write so that this view can be
considered along with that of the majority. Because Judge
Ambro’s opinion fully sets forth the legal background, | make
every effort to avoid repetition.
The majority concludes that DuPont cannot maintain this
action against the United States for contribution for cleanup
costs under CERCLA § 107 because of our decisions in New
Castle County v. Halliburton NUS Corp., 111 F.3d 1116 (3d
Cir. 1997), and /n re Reading Co., 115 F.3d 1111 (3d Cir.
1997). Although this court adheres strictly to our precedents,
we have made clear that those precedents may be reevaluated
when there has been intervening authority. See George
Harms Constr. Co. v. Chao, 371 F.3d 156, 161 (3d Cir. 2004)
(“We recognize that we may reevaluate a precedent in light of
intervening authority even without en banc consideration.”);
Reich v. D. M. Sabia Co., 90 F.3d 854, 858 (3d Cir. 1996)
(“Although a panel of this court is bound by, and lacks
authority to overrule, a published decision of a prior pancl
. , a panel may reevaluate a precedent in light of inter-
vening authority[.]”).
Such reevaluation of precedent is appropriate here even
though, as the majority correctly notes, we must be par-
ticularly cautious in revisiting cases involving questions of
statutory interpretation. Indeed, the Supreme Court has noted
that in certain circumstances courts may appropriately
overrule statutory precedents. It has explained that in “cases
where statutory precedents have been overruled, the primary
reason for the Court’s shift in position has been the inter-
vening development of the law, through either the growth of
53a
judicial doctrine or further action taken by Congress. Where
such changes have removed or weakened the conceptual
underpinnings from the prior decision, or where the later law
has rendered the decision irreconcilable with competing legal
doctrines or policies, the Court has not hesitated to overrule
an earlier decision.” Patterson v. McLean Credit Union, 491
U.S. 164, 173 (1989) (citations omitted).
The Supreme Court’s decision in Cooper Industries, Inc. v.
Aviall Services, Inc., 543 U.S. 157 (2004), is such intervening
authority. It should impel us to reevaluate our precedent
because Cooper Industries weakens the conceptual under-
pinnings of our decisions in Reading and New Castle County.
For that reason, and because our holdings in Reading and
New Castle County cannot be reconciled with the policies
Congress sought to encourage when it enacted CERCLA, I
believe this court can and should reconsider those opinions.
There is nothing in the relevant language of § 107 that
compels the result the majority reaches. Section 107 states
that various parties, including the owner or operator of a
facility, may be responsible for “any . . . necessary costs of
response incurred by any other person consistent with the
national contingency plan,” § 107(a)(4)(B), and provides a
cause of action to parties that incur cleanup costs but have not
themselves been sued under § 106 or § 107." For years after
** In New Castle County, we stated only that innocent parties may bring
suit under § 107. Our imposition of the “innocent” standard on partics
secking to bring suit under § 107 is not based on the statutory text.
Arguably, the “innocent” standard imposed by this and other circuits
violates fundamental rules of statutory construction by imposing a
requirement not evident on the statute’s face. This court-created standard
ignores the fact that § 107(a)(4)(B) plainly allows a private party plaintiff
to be “any other person” besides the government, state, and Indian tribes
and does not expressly exclude parties that may be responsible for a spill.
Moreover, courts that adopt this standard narrowly interpret § 107 and
ignore that CERCLA is a remedial statute, which courts are to construe
54a
the 1980 enactment of CERCLA, district courts almost unani-
mously found that § 107 contained an implied cause of action -
for contribution. See, e.g., United States v. New Castle
County, 642 F. Supp. 1258, 1265-69 (D. Del. 1986) (holding
that contribution right arises under federal common law);
Colorado v. ASARCO, Inc., 608 F. Supp. 1484 at 1489 (D.
Colo. 1985) (same); Wehner v. Syntex Agribusiness, Inc., 616
F. Supp. 27, 31 (E.D. Mo. 1985) (holding that contribution
right is implied from language of § 107(e)(2)). With the
enactment of § 113, the courts turned to that section rather
than to § 107 to provide the cause of action.
In New Castle County, this court stated that § 113 provided
a “potentially responsible person[{] with the appropriate vehi-
cle” to “recoup that portion of its expenditures which exceeds
its fair share of the overall liability.” 111 F.3d at 1122. We
further held that ‘ta section 107 action brought for recovery of
costs may be brought only by innocent parties that have
undertaken clean-ups.” /d. at 1120. Similarly, in Reading,
we held that a potentially responsible party may not
seek contribution under § 107(a)(4)(B). In fact, we stated
Ҥ 113(D(1) specifically permits an action for contribution to
be brought in the absence of civil action under section 107.”
115 F.3d at 1120 (internal punctuation and quotation marks
omitted).
The trend toward application of § 113 was halted by the
Supreme Court’s decision in Cooper Industries, where the
Court held that the plain language of § 113(f)(1) does not
allow liable parties to bring contribution actions unless and
until a related civil action is brought against them under either
§ 106 or § 107. The Court reserved judgment on the question
whether liable parties who are not subject to an action under
§ 106 or § 107 may instead seek relief under § 107(a)(4)(B).
liberally in order to achieve its intended purposes—namely the prompt
cleanup of hazardous sites.
5Sa
Cooper Industries clearly undermined our opinions in
Reading and New Castle County. In those cases, we assumed
that all potentially responsible parties---those whose respons-
ibility had been adjudicated and those who voluntarily
admitted their responsibility—fell into the same category of
“potentially responsible parties” who could recoup losses by
bringing suit pursuant to § 113(f). The Supreme Court’s deci-
sion in Cooper Industries established that our understanding
of the category “potentially responsible parties” was incor-
rect. Cooper Industries holds that a party who has in fact been
held responsible (via adjudication or settlement with the
EPA) may bring an action under § 113(f), while a party who
admits responsibility but whose responsibility has not been
established may not. Cooper Industries highlights the fact
that the term “potentially responsible party” is “vague and
imprecise because, when no action has been filed nor fact-
finding conducted, any person is conceivably a responsible
party under. CERCLA.” Consolidated Edison Co. of New
York v. UGI Utilities, Inc., 423 F.3d 90, 97 n.8 (2d Cir. 2005),
petition for cert. filed, 74 U.S.L.W. 3600 (U.S. Apr. 14, 2006)
(No. 05-1323).*°
In addition, Reading and New Castle County are clearly
factually distinguishable from the situation before us. In New
Castle County, plaintiffs already had been sued by the Gov-
ernment and then brought an action against other poten-
** The majority holds that our erroneous observation in Reading that
Ҥ 113(f)(1) specifically permits an action for contribution to be brought
‘in the absence of a civil action under. . . section [107],’” 115 F.3d at
1120, does not fatally undermine Reading’s holding. I respectfully
disagree. Cooper Industries clearly establishes that § 113(f) did not, as
we stated, “replace[| the judicially created cause of action under
§ 107(a)(4)(B) to the extent that a party seeks contribution.” Reading, 115
F.3d at 1120. That judicially created cause of action was available to
parties that had not been sued under § 106 or § 107. Our broad reading of
§ 113(f) in Reading is fundamentally at odds with the Supreme Court's
understanding of § 113(f) in Cooper Industries.
56a
tially responsible parties to recover response costs under
§ 107(a)(4)(B). This court held that plaintiffs could not assert
a cause of action under § 107 and restricted them to making a
claim for contribution under § 113(f). See 111 F.3d at 1116.
Similarly, in Reading, the plaintiff had already been sued
under § 107. See 115 F.3d at 1116. In the instant case,
DuPont has not been ordered to undertake remedial action.
Rather, it voluntarily cleaned up numerous hazardous sights.
Any statements this court made regarding the ability of
parties against whom § 106 or § 107 actions had not been
brought to sue under § 107 or § 113 were not necessary to
answer the questions presented by those cases and need not
govern our analysis in this case.
Two of our sister circuits have recently considered the
same issue presented here and both have decided, contrary to
the majority, that section 107(a) can be used by a responsible
party to seek contribution from another responsible party. In
Consolidated Edison, the Court of Appeals for the Second
Circuit unanimously held,
We believe . . . that Con Ed may pursue its suit under
section 107(a) because, in light of Cooper Industries,
Con Ed’s costs to clean up the sites of the Westchester
Plants are “costs of response” within the meaning of that
section.
423 F.3d at 97.
The Second Circuit, like this court, had held, before the
Cooper Industries decision, that CERCLA section 113(f)
governs contribution actions and that the plaintiff could not
pursue a section 107(a) cost recovery claim against the
defendants. Bedford Affiliates v. Sills, 156 F.3d 416 (2d Cir.
1998). The Supreme Court’s decision in Cooper Industries
convinced the Second Circuit to change its view. As the court
explained in Consolidated Edison:
57a
[The Cooper Industries] decision impels us to conclude
that it no longer makes sense to view section 1 13(f)(1) as
the means by which section 107(a) cost recovery remedy
is effected by parties that would themselves be liable if
sued under section 107(a).
423 F.3d at 99. The court further stated that it “would be
impermissibly discouraging voluntary cleanup were we to
read section 107(a) to preclude parties that, if sued, would be
held liable under section 107(a) from recovering necessary
response costs.” /d. at 100.
The court thus concluded, “that section 107 permits a party
that has not been sued or made to participate in an admin-
istrative proceeding, but that if sued, would be held liable
under section 107(a), to recover necessary response costs
incurred voluntarily, not under a court or administrative order
or judgment.” /d.
Just this month, the Court of Appeals for the Eighth
Circuit, again unanimously, reached a similar conclusion. In
Atlantic Research Corp. v. United States, the court held that:
“{A] private party which voluntarily undertakes a cleanup for
which it may be held liable, thus barring it from contribution
under CERCLA’s § 113, may pursue an action for direct
recovery or contribution under § 107, against another liable
party.” No. 05-3152, 2006 WL 2321185, at *9 (8th Cir.
2006).
Atlantic Research, the plaintiff in the Eighth Circuit deci-
sion, was in a position almost identical to that of DuPont here
in that it sought to recover contribution for cleanup from the
United States for cleanup services it performed at a facility
where it retrofitted rocket monitors for the United States. The
court, like the Second Circuit in Bedford Affiliates, had held
in Dico, Inc. v. Chemical Co., 340 F.3d 525, 531 (8th Cir.
2003), that a liable party could not bring an action under
section 107. The Eighth Circuit, like the Second Circuit, re-
58a
considered that earlier holding in light of the decision in
Cooper Industries and did an about face. I believe that this
court’s earlier decisions in New Castle County and In re
Reading Co. are similarly superseded by the decision in
Cooper Industries.
Both the Second and the Eighth Circuits’s decisions cited
the Supreme Court’s decision in Key Tronic Corp. v. United
States, 511 U.S. 809 (1994). In that case, which concerned
attorney’s fees under CERCLA, the Supreme Court recog-
nized that a potentially responsible party could seek recovery
of response costs under § 107, but the Justices differed as to
whether there was an express or -implied cause of action.
Justice Ginsburg, in her dissent in Cooper Industries, stated
that every Member of the Court in Key Tronic agreed that a
potentially responsible party which incurred necessary costs
could recover those costs from another liable party in an
action under § 107(a). Cooper Industries, 543 U.S. at 172.
Significantly, the plaintiff in Key Tronic was a _ party
responsible for polluting and was still permitted to bring suit
under § 107. As the Court of Appeals for the Second Circuit
recently stated, Cooper Industries and the text of § 107
clearly “impel[] us to conclude that it no longer makes sense
to view section 113(f)(1) as the means by which the sec-
tion 107(a) cost recovery remedy is effected by parties that
would themselves be liable if sued under section 107(a).”
Consolidated Edison, 423 F.3d at 99. Rather, § 107(a) and
§ 113(f)(1) embody mechanisms for cost recovery available
to persons in different procedural postures. /d.
Contrary to the majority, I believe that permitting parties
who voluntarily incur cleanup costs to bring suit under § 107
comports with the fundamental purposes of CERCLA. As this
court noted in Horsehead Industries, Inc. vy. Paramount
Communications, Inc., 258 F.3d 132 (3d Cir. 2001):
The purpose of CERCLA is “to assure that the current
and future costs associated with hazardous waste facil-
59a
ities, including post-closure costs, will be adequately
financed and, to the greatest extent possible, borne by
the owners and operators of such facilities.”
Id. at 135 (quoting 42 U.S.C. § 9607(k)(6)(E)); see OHM
Remediation Services v. Evans Cooperage Co., 116 F.3d
1574 (Sth Cir. 1997) (noting CERCLA’s broad, remedial
purpose to facilitate prompt cleanup of hazardous waste sites
and to shift costs of environmental response from taxpayers
to parties who benefitted from wastes that caused harm); see
also In re Tutu Water Wells CERCLA Litig., 326 F.3d 201,
206 (3d Cir. 2003) (stating that CERCLA’s purpose is “mak-
ing those responsible for problems caused by the disposal of
chemical poisons bear the costs and responsibility for reme-
dying the harmful conditions they created”) (citation and
quotation marks omitted).
Voluntary cleanups are vital to fulfilling CERCLA’s pur-
pose. During deliberations on the SARA Amendments, Con-
gress emphasized the importance of voluntary action, stating
that “[vjoluntary cleanups are essential to a successful pro-
gram for clean up of the Nation’s hazardous substance
pollution problem.” H.R. Rep. No. 99-253, pt. 5, at 58 (1985);
see also 131 Cong. Rec. 24725, 24730 (1985) (statement of
Sen. Domenici) (“The goal of CERCLA is to achieve effec-
tive and expedited cleanup of as many uncontrolled hazard-
ous waste facilities as possible. One important component of
the realistic strategy must be the encouragement of voluntary
cleanup actions or funding without having the President rely-
ing on the panoply of administrative and judicial tools
available.”).
The majority reads the legislative history of SARA as
strongly indicating that Congress did not mean to encourage
unsupervised voluntary cleanups, but rather cleanups with-
in the bounds of settlement agreements. See Maj. Op. at
IV.B.2(b). The majority notes that the EPA expressed serious
60a
doubts about the efficacy of voluntary cleanups by parties.*°
See Maj. Op. at IV.B.2(c). These assertions, part of a long
and fractious legislative history, are not dispositive. Though
supervised cleanups are to be encouraged wherever possible,
they need not be encouraged _at the expense of unsupervised
cleanups. Section 107(a)(4)(B) holds a party liable for costs
incurred in a cleanup (voluntary or otherwise) only insofar as
those costs are “costs of response incurred by any other
person consistent with the national contingency plan.” 42
U.S.C. 9607(a)(4)(B). A party that seeks contribution for
costs incurred in a cleanup that does not comport with the
national contingency plan is without recourse.”
The position urged by DuPont here is an alternative and
equally effective, albeit voluntary, method of assuring clean-
up in compliance with CERCLA. See Kotrous v. Goss-Jewett
Co. of N. Cal., No. Civ. $02-1520, 2005 WL 1417152, at *3
(E.D. Cal. June 16, 2005) (holding that a potentially respon-
sible party may maintain a claim for contribution under
§ 107(a)); Metro. Water Reclamation Dist. v. Lake River
Corp., 365 F. Supp. 2d 913, 918 (N.D. Ill. 2005) (explaining
that “although PRP’s are not explicitly named in § 107(a),
there seems to be no reason why they would be excluded
from the provision that allows recovery for any person’’);
Vine St. LLC v. Keeling, 362 F. Supp. 2d 754, 761-64
°° The EPA’s approach to voluntary cleanups has varied. The majority
argues that the EPA was wary of such cleanups prior to the enactment of
SARA. However, the EPA has also expressed concern that the position
advocated by the United States and adopted by the Supreme Court in
Cooper Industries could undermine EPA’s voluntary cleanup program by
removing an incentive for liable partics to voluntarily clean up con-
taminated sites because it would make it more difficult to seck reimburse-
ments. See Ruling on Superfund Costs May Boost Push for Supreme Court
Review, INSIDE THE EPA, Jan. 9, 2004, sec. 2, available at 2004 WLNR
70249.
*” By the plain text of the statute, parties that fail to meet the national
contingency plan standards cannot be reimbursed for such activities.
6la
(D. Tex. 2005) (holding that potentially responsible party
could bring claim under § 107(a)); cf. Atl. Research Corp. v.
United States, No. 02-CV-1199, 2005 U.S. Dist. LEXIS
20484, at *10 (W.D. Ark. June 1, 2005) (suggesting the
Eighth Circuit revisit its precedents after noting “that the
result .. . is patently unfair to ARC, because it has voluntarily
cleaned up environmental contamination, yet it is left without
a CERCLA remedy against the United States, another PRP”).
As the majority itself notes, SARA was “not intended to
preclude responsible parties from taking voluntary response
actions outside a consent agreement.” Maj. Op. at [V.B.2(c). I
am concerned that the effect of the majority’s opinion will be
that parties will be reluctant to engage in voluntary cleanups
for fear that they may not be able to obtain contribution.
Spills that could be most efficaciously dealt with if cleaned
up immediately will remain untouched while parties attempt
to settle with the Government. This result is contrary to the
purpose of CERCLA. Therefore, I respectfully dissent.
62a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 05-3152
ATLANTIC RESEARCH CORP.,
Appellant,
Vs
UNITED STATES OF AMERICA,
Appellee.
Appeal from the United States District Court
for the Western District of Arkansas
Submitted: March 16, 2006
Filed: Aug. 11, 2006
Before WOLLMAN and RILEY, Circuit Judges, and
ROSENBAUM,’ District Judge.
ROSENBAUM, District Judge.
Atlantic Research Corporation (“Atlantic”) seeks partial
reimbursement from the United States for costs incurred in an
environmental cleanup. Atlantic’s claim is based on the
Comprehensive Environmental Response, Compensation, and
Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-9675 (2005),
as amended by the Superfund Amendments and Reauthor-
ization Act of 1986 (“SARA”), Pub.L. No. 99-499, 100 Stat.
1613, 1615. The issue for consideration is whether CERCLA
forbids a party such as Atlantic, which has voluntarily
' The Honorable James M. Rosenbaum, Chief Judge, United States
District Court for the District of Minnesota, sitting by designation.
63a
cleaned up a site for which it was only partly responsible,
to recover part of its cleanup costs from another liable
party.” For the reasons that follow, we hold that CERCLA
§ 107 permits such a cause of action.
J. Background
Atlantic retrofitted rocket motors for the United States
from 1981 through 1986. It performed this service at its
Camden, Arkansas, facility. The work included using high-
pressure water spray to remove rocket propellant. Once re-
moved, the propellant was burned. Residue from burnt rocket
fuel contaminated the Arkansas site’s soil and groundwater.
Atlantic voluntarily investigated and cleaned up the con-
tamination, incurring costs in the process. It sought to recover
a portion of these costs from the United States by invoking
CERCLA §§ 107(a) and 113(f).° Atlantic and the government
began to negotiate in an effort to resolve these financial
matters.
The negotiations ended with the United States Supreme
Court decision in Cooper Industries, Inc. v. Aviall Services,
Inc., 543 U.S. 157, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004)
(“Aviall’). In Aviall, the court found a party could only
attempt to obtain § 113(f) contribution “during or following”
a §§ 106 or 107(a) CERCLA civil action. /d. at 161, 125 S.Ct.
at 580. As no action had been commenced against Atlantic
under either §§ 106 or 107(a), the Avial/ decision barred its
§ 113(f) contribution claim.
* The district court dismissed this matter on the government’s Rule
12(b)(6) motion. As such, the court assumed the facts most favorably to
Atlantic, the non-moving party. We do the same; and therefore, assume,
but do not decide, that the United States would be liable under CERCLA.
> These sections have been codified at 42 U.S.C. §§ 9607(a) and 961 3(f).
For convenience, this Opinion refers to the statute sections as designated
in CERCLA, rather than as later codified.
64a
With its § 113(f) claim Aviall-foreclosed, Atlantic amended
its complaint. The amended complaint relied solely on
§ 107(a) and federal common law. In lieu of answer, the
government moved to dismiss under Federal Rule of Civil
Procedure 12(b)(6), arguing this Court’s pre-Aviall decision
in Dico, Inc. v. Amoco Oil Co., 340 F.3d 525 (8th Cir. 2003)
(“Dico”) foreclosed Atlantic’s § 107 claim. The district court
agreed. Atlantic appeals.
As will be discussed in more detail below, Dico held that a
liable party could not bring an action under § 107. Dico, 340
F.3d at 531. We recognize the generally preclusive effect of a
previous panel’s ruling. United States v. Blahowski, 324 F.3d
592, 596-97 (8th Cir. 2003). But this rule is not inflexible.
Where the prior decision can be distinguished, or its rationale
has been undermined, a subsequent decision can depart from
the prior path.* We are convinced Dico is such a case; it is
clearly distinguishable from the case at bar, and its analytic is
undermined by Aviail.
II. Analysis
As this case turns on the interpretation of CERCLA, a
federal statute, our review is de novo. /owa 80 Group, Inc. v.
Internal Revenue Service, 406 F.3d 950, 952 (8th Cir. 2005).
We undertake this review, recognizing our obligation to
effectuate the intent of Congress when interpreting fedcral
statutes. /d. To resolve.the question before us, we must
* “(T]t is well settled that a panel may depart from circuit precedent
based on an intervening opinion of the Supreme Court that undermines the
‘ prior precedent.” 7.L. v. United States, 443 F.3d 956, 960 (8th Cir. 2006),
citing Young v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000). As will be seen,
while Aviall has undermined Dico’s reasoning for parties in Atlantic’s
position, its holding remains viable for those parties which still have
recourse to relief under § 113. Accordingly, Dico can be reconciled with
our present holding and we need not ultimately answer whether Aviall
compels reconsideration of Dico.
65a
briefly review the intertwined history of CERCLA §§ 107
and 113, and then analyze this history in light of Aviall.
A. CERCLA Cost Recovery and Contribution—Pre-A viall
CERCLA is Congress’s monumental attempt to “encourage
the timely cleanup of hazardous waste sites,” and “place the
cost of that response on those responsible for creating or
maintaining the hazardous condition.” Control Data Corp. y.
S.C.S.C. Corp., 53 F.3d 930, 935-36 (8th Cir. 1995) (internal
quotations and citations omitted). To achieve these ends,
CERCLA effectively transformed centuries of real property
and tort liability law by making those who contaminate a site
strictly liable for the costs of subsequent cleanup by others.
See Alexandra B. Klass, From Reservoirs to Remediation:
The Impact of CERCLA on Common Law Strict Liability
Environmental Claims, 39 Wake Forest L.Rev. 903 (2004);
Ronald G. Aronovsky, Federalism & CERCLA: Rethinking
the Role of Federal Law in Private Cleanup Cost Disputes,
33 Ecology L.Q. 1, 9 (2006).
When the federal or a state government conducts the clean-
up, CERCLA permits the sovereign to recover its costs from
whomever is liable for the contamination. § 107(a)(4)(A).
CERCLA also provides three methods by which private
parties may recover cleanup costs. The first is found at
§ 107(a)(4)(B), a part of the orginal statute in 1980. Congress
added the others, §§ 113(f)(1) and 113(f)(3)(B), as part of
SARA.” :
Sections 107(a) and 113(f)(1) are central to our analysis.
The Eighth, and many of its sister Circuits, have previously
held that liable parties seeking reimbursement must use
§ 113(f)(1), and may not use § 107 for that purpose. Today,
> The last of these, § 113(f)(3)(B), concerns the nghts of settling par-
ties. As the parties in this case have obviously not reached a settlement,
§ 113(f)(3)(B) is not examined here.
66a
we consider whether this ruling remains viable in the post-
Aviall world.
CERCLA’s § 107(a) provides that “covered persons,”
which we will call “liable parties,” are liable for, among
other things:
(A) all costs of removal or remedial action incurred by
the United States Government or a State or an Indian
tribe not inconsistent with the national contingency plan;
(B) any other necessary costs of response incurred by
any other person consistent with the national conting-
ency plan{.]
§ 107(a)(4)(A),(B). Courts have found in CERCLA’s ref-
erence to “any other necessary costs of response” and
“any other person,” authority to allow private suits under
§ 107(a)(4)(B). See Walls v. Waste Resource Corp., 761 F.2d
311, 318 (6th Cir. 1985) (collecting cases).
Section 113 contains a subsection entitled “Contribution,”
the first part of which states:
Any person may seek contribution from any other person
who is liable or potentially liable under {§ 107(a)], dur-
ing or following any civil action under [§§ 106 or
107(a)]. Such claims shall be brought in accordance with
this section and the Federal Rules of Civil Procedure,
and shall be governed by Federal law. In resolving
° Many prior opinions have called these “potentially responsible par-
ties” (abbreviated “PRP”). We decline to use this term. The PRP term has
»een developed by the courts. It is not found in CERCLA. The term refers
to “a party who may be covered by the statute at the time the party is sued
under the statute.” Pneumo Abex Cerp. v. High Point, Thomasville &
Denton R.R. Co., 142 F.3d 769, 773 n .2 (4th Cir. 1998). After Aviall, the
term has been weakened and “may be read to confer on a party that has
not been held liable a legal status that it should not bear.” Consolidated
Edison Co. c. UGT Utils., Inc., 423 F.3d 90, 98 n. 8 (2d Cir.2005).
67a
contribution claims, the court may allocate response
costs among liable parties using such equitable factors as
the court determines are appropriate. Nothing in this
subsection shall diminish the right of any person to bring
an action for contribution in the absence of a civil action
under [§§ 106 or 107].
§ 113(f(1).
There is some similarity in the remedial responsibilities
borne by liable parties under §§ 107(a) and 113(f). The
Supreme Court has termed these sections’ remedies “similar
and somewhat overlapping,” yet “clearly distinct.” Compare
Key Tronic Corp. v. United States, 511 U.S. 809, 816, 114
S.Ct. 1960, 1966, 128 L.Ed.2d 797 (1994) with Aviall, 543
U.S. at 163 n. 3, 125 S.Ct. at 582 n. 3. Each requires proof
of the same elements. Redwing Carriers, Inc. v. Saraland
Apartments, 94 F.3d 1489, 1496 (Ith Cir. 1996). They
differ, however, in procedure and scope.
1. Section 107(a) Remedies
Section 107({a) has a six-year statute of limitations, and
allows a plaintiff to recover 100% of its response costs from
all liable parties, including those which have settled their
CERCLA liability with the government. §§ 113(g)(2), 107(a).
Prior to SARA’s enactment, some courts implied a right to
contribution from § 107, see Mardan Corp. v. C.G.C. Music,
Lid., 804 F.2d 1454, 1457 n. 3 (9th Cir. 1986) (collecting
cases), or as a matter of federal common law. United States v.
New Castle County, 642 F.Supp. 1258, 1265-66 (D.Del.
1986). The right initially was thought to be uncertain in light
of the Supreme Court’s traditional reluctance to imply rights
of action in the context of other statutes. See, e.g., Texas
Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639-40,
101 S.Ct. 2061, 2066, 68 L.Ed.2d 500 (1981) (declining to
imply an antitrust right of action for contribution).
2. Section 113 Remedies
Congress resolved the uncertainty when enacting SARA
in 1986 by adding § 113 to “clarif[y] and confirm” a right
to CERCLA contribution. United Technologies Corp. v.
Browning-Ferris Indus., Inc., 33 F.3d 96, 100 (1st Cir. 1994),
citing S.Rep. No. 11, 99th Cong., Ist Sess. 44 (1985). Section
113’s explicit right to contribution is more restricted than that
afforded by § 107. Section 113’s right is subject to a three-
year statute of limitations; plaintiffs can recover only costs in
excess of their equitable share, and may not recover from
previously-settling parties. § 113(f)(1), (f)(2), (g)(3).
3. The Section 107(a)/Section 113 Conflict—Pre-Aviall
Congress’s addition of § 113 posed a dilemma. Courts saw
that CERCLA, as amended, created a situation where litigants
might “quickly abandon section 113 in favor of the sub-
stantially more generous provisions of section 107,” thus
rendering § 113 a nullity. New Castle County v. Halliburton
NUS Corp., 111 F.3d 1116, 1123 (3d Cir. 1997).
To prevent § 107 from swallowing § 113, courts began
directing traffic between the sections. See id.; United Techns.,
33 F.3d at 101; Bedford Affiliates v. Sills, 156 F.3d 416, 424
(2d Cir. 1998). As a result, regardless of which CERCLA
section a plaintiff invoked, courts typically analyzed §§ 107
and 113 together, aiming to distinguish one from the other.
See Bedford Affiliates, 156 F.3d at 424; Centerior Serv. Co. v.
Acme Scrap Iron & Metal Corp., 153 F.3d 344, 347 (6th Cir.
1998); Pneumo Abex Corp. v. High Point, Thomasville &
Denton R.R. Co., 142 F.3d 769, 776 (4th Cir. 1998); Pinal
Creek Group v. Newmont Mining Corp., 118 F.3d 1298,
1301-02 (9th Cir. 1997); New Castle County, 111 F.3d at
1121-22; Redwing Carriers, 94 F.3d 1489, 1513 (11th Cir.
1996); United States v. Colorado & Eastern R.R. Co., 50 F.3d
1530, 1534-35 (10th Cir. 1995); United Techns., 33 F.3d
at 99; Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 764
69a
(7th Cir. 1994); Amoco Oil Co. v. Borden, Inc., 889 F.2d 664,
672 (Sth Cir. 1989).
Traffic-directing dramatically narrowed § 107 by judicial
fiat. On its face, § 107(a)(4)(B) is available to “any .. .
person” other than the sovereigns listed in § 107(a)(4)(A). See
Control Data Corp., 53 F.3d at 936 n. 9. In practice, however,
courts gradually steered liable parties away from § 107 and
required them to use § 113; § 107 was reserved for “inno-
cent” plaintiffs who could assert one of the statutory defenses
to liability. See Bedford Affiliates, 156 F.3d at 424; Pinal
Creek, 118 F.3d at 1301; New Castle County, 111 F.3d at
1124; Redwing Carriers, 94 F.3d at 1496; Centerior Service,
153 F.3d at 349; United Techns., 33 F.3d at 100; Akzo
Coatings, 30 F.3d at 764-65. This cramped reading of § 107
prevented liable parties from using it to evade § 113’s
Congressionally-mandated constraints, thus preserving the
vitality of § 113. See New Castle County, 111 F.3d at 1121;
Colo. & Eastern, 50 F.3d at 1538; United Techns., 33 F.3d
at 98.
In the pre-Aviall analysis, § 113 was presumed to be
available to all liable parties, including those which had not
faced a CERCLA action. See Akzo Coatings, 30 F.3d at 763
n. 4 (liable party’s § 113 claim for costs voluntarily incurred
held barred by settlement); Pinal Creek, 118 F.3d at 1306
(liable party’s claim for costs voluntarily incurred governed
by both §§ 107 and 113). Accordingly, most courts concluded
liable parties could not ise § 107. See Pnuemo Abex, 142
F.3d at 776 (collecting cases); but see Pinal Creek, 118 F.3d
at 1302 (holding liable parties could not seek direct recovery
under § 107, but that “§ 107 implicitly incorporates a claim
for contribution” which remains available to liable parties
through combined operation of both sections); United Techns.,
33 F.3d at 99 n. 8 (suggesting, in dicta, that a liable party may
bring contribution action under § 107).
70a
Our opinion in Dico was the last in this pre-Avial/ line. The
Environmental Protection Agency (“EPA”) had forced Dico,
Inc., and another party to clean up an Iowa site which both
had contaminated. Dico sued the other party, seeking direct
recovery of 100% of its costs under § 107 and for con-
tribution under § 113. The other party settled with the EPA
and moved for summary judgment in Dico’s lawsuit. The
district court granted the motion. It found Dico’s § 113 claims
were barred by the settlement and, as a liable party, Dico had
no right to recover its full cleanup cost under § 107.
Dico appealed the dismissal of its § 107 claim, arguing the
Supreme Court’s opinion in Key Tronic allowed liable parties
a claim in direct recovery. We disagreed, noting Key Tronic
dealt with a pre-SARA implied right to § 107 contribution.
Dico, 340 F.3d at 531. When we affirmed the dismissal,
we joined other Circuits in narrowly construing § 107, and
holding a liable party may only assert a contribution claim
under § 113. /d. at 530, citing among others Bedford Affil-
iates, 156 F.3d at 424; Centerior Service, 153 F.3d at 350;
_ Pinal Creek, 118 F.3d at 1306; Redwing Carriers, 94 F.3d at
1496; Colorado & Eastern, 50 F.3d at 1536; United Techns.,
33 F.3d at 101; Akzo Coatings, 30 F.3d at 764; and Amoco
Oil, 889 F.2d at 672. We now see that Avial/ undermines
Dico, and the judge-created analytic upon which it relies.
B. The Effect of Aviall
Aviall’s facts are similar to those at hand. Aviall Services,
Inc., purchased contaminated aircraft maintenance sites from
Cooper Industries. The Texas Natural Resource Conserva-
tion Commission directed Aviall’s efforts at environmental
cleanup, but neither the Commission, the EPA, nor any pri-
vate party brought a CERCLA action against Aviall.
After the cleanup, Aviall sued Cooper for both cost re-
covery under § 107 and contribution under § 113. It later
amended its complaint, seeking recovery only under § 113,
assuming—based on Circuit precedent—that its § 107 rights
Tla
would be preserved in the § 113 claim. The district court
granted Cooper’s motion for summary judgment, holding
Aviall had no right to § 113 relief absent a prior §§ 106 or
107 CERCLA enforcement action, and that Aviall’s amended
complaint abandoned any potential § 107 claim. A Fifth
Circuit panel’s affirmance was reversed, en banc.
On certiorari, the Supreme Court reversed again. Justice
Thomas, writing for a seven-member majority, construed
§ 113’s “during or following” language. He said, “([t]he
natural meaning of this sentence is that contribution may only
be sought subject to the specified conditions, namely, ‘during
or following’ a specified civil action.” Aviall, 543 U.S. at
165-66, 125 S.Ct. at 583. The Court found the words “during
or following” established a condition precedent to a § 113(f)
claim. As such, a court which allowed a § 113 contribution
claim, absent the prior §§ 106 or 107 action, would render
§ 113’s precondition a nullity.
Having made this determination, the Court turned to its
previous Key Tronic reference to CERCLA’s “similar and
somewhat overlapping” remedies. The Court explained that
§§ 107’s and 113’s remedies were only “similar” in that “both
allow private parties to recoup costs from other private par-
ties.” Jd. at 163 n. 3, 125 S.Ct. at 582 n. 3. The Court care-
fully noted, however, that “the two remedies are clearly
distinct.” /d.
Dissenting Justices Ginsburg and Stevens analyzed Key
Tronic differently. They said the Key Tronic court had not
questioned whether § 107 afforded liable parties a cause of
action against other liable parties. It simply disagreed whether
the right was implied or explicit. Jd. at 172, 125 S.Ct. at
586-87. Justices Ginsburg and Stevens did not agree that
Aviall’s amended complaint abandoned a § 107 claim, which
they would have allowed to proceed. /d. at 174. The majority
explicitly avoided this question, see id. at 173-74, 125 S.Ct. at
587-88, reserving it for another day.
72a
C. The Matter At Hand
That day has arrived. We now ask: Can one liable party
recover costs advanced, beyond its equitable share, from
another liable party in direct recovery, or by § 107 con-
tribution,
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