# Supplemental Brief — UGI Utilities, Inc. v. Consolidated Edison Edison Co. of New York, Inc. (No. 05-1323) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0671%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Supplemental Brief - **Published:** January 1, 2006 ## Text 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 “§ 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0671%3A4. Public record. Not legal advice.