Petition for Writ of Certiorari — ARCADIS Geraghty & Miller, Inc. v. Conoco Inc.

"i Supreme Court, U.S.

(") FILED

00158 2 APR 0 2001

No. 01-

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

ARCADIS GERAGHTY AND MILLER, INC.,

— Petitioner,

V.

CONOCO INC.; CONDEA VISTA COMPANY,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

John Alan Doran

Troy B. Froderman

(Counsel of Record)

John D. Burnside

Gerald S. DaRosa

BRYAN CAVE LLP

Two North Central Avenue, Suite 2200

Phoenix, Arizona 85004-4406

(602) 364-7000

Attorneys for Petitioner

QUESTIONS PRESENTED FOR REVIEW

‘ Did the Fifth Circuit err by construing

CERCLA’s statute of limitations so as to exempt from

limitations a cause of action against a contractor that

participated in environmental investigation of a

contaminated site, such that the site-owners’s lawsuit is

never time-barred as a matter of law?

2. Did the Fifth Circuit err by extending

CERCLA liability for “operators” of hazardous substance

facilities to an environmental contractor whose contractual

duties were limited to mere design and placement of

groundwater monitoring wells at the direction of the

facility’s owner?

3. Did the Fifth Circuit err by extending

CERCLA liability for parties who “arranged for disposal”

of hazardous substances to an environmental contractor that

made no arrangement with intent to dispose of hazardous

substances that allegedly caused damage?

PARTIES TO THE PROCEEDING

All the parties in the United States Court of Appeals for the

Fifth Circuit are identified in the caption, except that

ARCADIS Geraghty & Miller, Inc. was formerly named

Geraghty & Miller, Inc.

STATEMENT PURSUANT TO

SUPREME COURT RULE 29.6

_ ARCADIS Geraghty & Miller, Inc., is wholly owned by its

parent company, ARCADIS, N.V.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW..uw0.....cccccccccscsees i

PARTIES TO THE PROCEEDING ....0.......cccescececsesecsececseeees ii

STATEMENT PURSUANT TO SUPREME

Sg REE a RELIC RO li

pe Enna 2 Ue ili

Ee vi

PETITION FOR A WRIT OF CERTIORARI .........eccecececeee. 1

EE aN REE aD 1

a 1

aa 1

Rr i ne 2

REASONS FOR GRANTING THE PETITION................. 11

I. In Contrast to the Holdings of the Other

Circuits, the Fifth Circuit Incorrectly Focused

Only on Activities Conducted During G&M’s

Response Action Involvement Rather Than

Looking at the Totality of On-Site Response

Activity When Determining the Response

Action That Triggered the CERCLA Section

113(g)(2) Statute of Limitations .....0...........ccceceseseees 14

iv

This Court Should Make Clear that

“Operator” Liability Does Not Extend to

Environmental Contractors that, Like G&M,

Participated in Response Activities at an

Already-Contaminated Site at the Direction

OT iinet i

This Court Should Decide Whether Intent Is

an Element of Arranger Liability Because the

Fifth Circuit Failed to Resolve the Issue

Despite Its Dispositive Importance on

Remand and the Clear Conflict of Circuit

Court Decisions on the Issue ...................sccsse00e

A. The Courts of Appeals Have Issued

Conflicting Rulings on Whether

CERCLA Requires Intent to Dispose

as an Element of Arranger Liability.....

B. The Fifth Circuit’s Failure to

Address the Issue of Whether Intent

Is an Element of Arranger Liability,

in Light of the Fact That the District

Court Based Its Holding on Lack of

Intent Leaves the District Court With

i

TABLE OF AUTHORITIES

CASES

ABB Indus. Sys., Inc. v. Prime Tech., Inc., —

120 F.3d 351 (2d Cir. 1997)......cccccscssssssssseesssessssees 11

Amcast Indus. Corp. v. Detrex Corp.,

2 F.3d 746 (7th Car. 1993) ......:..ccccccccosecsees 14, 25-26

Bancamerica Commercial Corp. v. Mosher

Steel of Kansas, Inc., 100 F.3d 792

CRT Sa Fe ctesccicenclcieninscntepeensnninieaininetaig 8

Blasland, Bouck & Lee, Inc. v. City of North Miami,

96 F. Supp.2d 1375 (S.D. Fla. 2000)............... 22-23

Burlington Northern Railroad Co. v.

Woods Industries, Inc., 815 F. Supp.

rane .28

Carter-Jones Lumber Co. v. Dixie

Distrib. Co., 166 F.3d 840

Sais Cer inte cinittishnseeninnctnisannbenaielistinaaaananieieipniiieds 25

Chatham Steel Corp. v. Brown,

858 F. Supp. 1130 (N.D. Fla. 1994)..............ccs000 .26—

Ekotech Site PRP Comm. v. Self,

932 F. Supp. 1328 (D. Utah 1996) .....ccc..sscsssessesee 25

Exxon Corp. v. Hunt,

SiS CB. Fa0 Ce irnineninimmmniianel 8, 11

Vii

Page

Ganton Technologies, Inc. v. Quadion Corp.,

834 F. Supp. 1018 ( NLD. Ill. 1993)...................... .23

Greene v. Product Mfg. Corp.,

842 F. Supp. 1321 (D. Kan. 1993)... occccccccsooss-... 8

In re Jensen, 995 F.2d 925 (9th Cir. ee castittidntntesdeiani .23

K.C. 1986 Lid. Partnership v. Reade Mfg.,

33 F. Supp.2d 1143 (W_D. Mo. | EE 23

Kelly v. EI. DuPont De Nemours and Co.,

17 F.3d 836 (6th Cir. 1994) ooo cccccccecesee. 17-19

Key Tronic Corp. v. United States,

|, EES TO TE. 11

Pinal Creek Group v. Newmont Mining Corp.,

118 F.3d 1298 (9th Cir. 1997) ooo cccccccceceees--s. 11

RSR Corp. v. Avanti Dev., Inc.,

68 F. Supp. 2d 1037 (S.D. Ind. ES 25

Redwing Carriers, Inc. v. Saraland Apartments,

94 F.3d 1489 (11th Cir. 1996) ooo eccccccccces.. 13, 25

Struhar v. City of Cleveland,

7 F. Supp. 2d 948 (N.D. Ohio A .25

United States v. A&N Cleaners and Launderers, Inc.,

854 F. Supp. 229 (S.D.N.Y. 1994)...000.0........... 11-12

United States v. Bestfoods,

i ST. 10-11, 13, 21-22

Vili

Page

United States v. Cello-Foil Prod., Inc.,

100 F.3d 1227 (6th Cir. 1996) .............:ccssccsceseeseeee 25

United States v. Navistar Int'l Transp. Corp.,

152 F.3d 702 (7th Cir. 1998) .........0.-sesese0e: 16-17, 19

United States v. TIC Inv. Corp.,

68 F.3d 1082 (8th Cir. 1995) 0... eeeeeeeee 13, 25

United States v. Vertac Chem. Corp.,

966 F. Supp. 1491 (E.D. Ark. 1997).......0........ 25-26

STATUTES AND RULES

TIE Scien acticin a ctitasinntseesctiatcacanieinsicininiail 1

Comprehensive Environmental Response

Compensation and Liability Act

(“CERCLA”), 42 U.S.C. §§ 9601 to 9675..... passim

42 U.S.C. § 9601

(CERCLA Section 101)................0.0+0+ sheen

42 U.S.C. § 9607

(CERCLA Section 107) ..........cccccccccscccceese passim

42 U.S.C. § 9613(g)(2)

(CERCLA Section 113(g)(2))..............-00+. passim

LEGISLATIVE MATERIALS

H.R. Rep. No. 104-861, at 70 (1996).......... Sisaatbaealbaasntenti 12

OTHER MATERIALS

Evan Bogart Westerfield,

When Less is More: A Significant

Threat Threshold for CERCLA

Liability, 60 U. CHI. L. REV.

697 (1993)

John T. Ronan III, A Clean Sweep on

Cleanup, THE RECORDER, Sept. 30, 1992,

at 10

OFFICE OF TECHNOLOGY ASSESSMENT,

ASSESSING CONTRACTOR USE IN SUPERFUND,

reprinted in 1 CHEMICAL WASTE LITIG.

ersorisihce eats esi, Ee EE EAN OTR 12

PETITION FOR A WRIT OF CERTIORARI

Petitioner ARCADIS Geraghty & Miller, Inc.

(“G&M”), respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals

for the Fifth Circuit (“Fifth Circuit”) in this case.

OPINIONS BELOW

The opinion of the Fifth Circuit (App., infra, 1a-

29a) is reported at 234 F.3d 917. The order of the Fifth

Circuit denying the petition for rehearing (App., infra, 30a-

31a) is not reported. The opinion of the District Court for

the Southern District of Texas (“District Court”) (App.,

infra, 32a - 47a) is reported at 27 F. Supp. 2d 918. The

order of the District Court denying rehearing/new trial

(App., infra, 48a-49a) is not reported.

JURISDICTION

The judgment of the Fifth Circuit was entered on

December 14, 2000. The timely petition for rehearing was

denied on January 11, 2001. This petition was filed within

90 days of January 11,2001. The jurisdiction of this Court

is invoked pursuant to 28 U.S.C. § 1254(1).

STATUTES INVOLVED

The pertinent provisions of the Comprehensive

Environmental Response Compensation and Liability Act

(“CERCLA”), 42 U.S.C. §§ 9601 to 9675, are 42 U.S.C.

§§ 9607(a) and 9613(g)(2). App., infra, 50a-52a.

STATEMENT F

This case derives from environmental investigation

and remediation activities conducted at the Lake Charles

Chemical Complex (“LCCC”) located in Lake Charles,

Louisiana. The LCCC’s owners, respondents Conoco Inc.

and Condea Vista Company, brought the claim under the

CERCLA, 42 U.S.C. §§ 9601 to 9675, in an attempt to

recover remedial costs from petitioner G&M, an

environmental and engineering consultant hired by

respondents to provide investigative services at the LCCC.

Respondent Condea Vista Company currently owns

the LCCC and respondent Conoco Inc. is the site’s former

owner. Collectively, Conoco Inc. and Condea Vista

Company have owned and operated the LCCC from 1961

to the present.’ App., infra, at 2a.

Beginning in 1968, Conoco began managing,

among other chemicals, ethylene dichloride (“EDC”) at the

LCCC. App., infra, at 34a. Over the course of Conoco’s

operations at the LCCC, EDC was released into the

environment. Jd. Consequently, EDC migrated into soil

and groundwater, id., causing severe environmental

contamination.

In the early 1980s, the Louisiana Department of

Environmental Quality (““LDEQ”) issued an order requiring

Conoco to investigate and address contamination at the

LCCC. In connection with this process, Conoco and G&M

executed a document entitled “Engineering Services _

: For clarity, respondents Conoco and Condea Vista are

hereinafter referred to collectively as “Conoco.”

ee

oe ee ee

Contract” (“Engineering Contract”) on March 12, 1985.

Under the terms of the Engineering Contract, G&M agreed

to furnish to Conoco certain services required for a

“Ground-Water Quality Assessment, Phase 2” at the

LCCC. Id. at 2a-3a.

The Phase 2 assessment was aimed at assessing the

extent and nature of groundwater contamination below a

portion of the LCCC. G&M’s contractual tasks included

engineering design plans for installation of 50 groundwater

wells used for monitoring possible contamination,

installing the monitoring wells, and sampling the

monitoring wells following installation. Jd. at 3a. G&M

completed installation of the monitoring wells on July 23,

1985. Id.

‘In 1985, Conoco began to suspect that the

monitoring wells had technical and physical problems.

Based on a consultant’s recommendations, Conoco plugged

and abandoned four of the wells in 1988 and 1989. Jd. at

36a. According to Conoco, their experience plugging and

abandoning the wells gave them reason to be concerned

about the remaining wells that G&M had installed under

the Engineering Contract. Jd. In 1993, Conoco sued G&M

in Texas state court alleging breach of contract and other

state-law causes of action as a result of the allegedly

defective wells. Jd. at Sa.

On April 4, 1997, G&M sued Conoco in the District

Court. G&M alleged claims under CERCLA for recovery

of investigation costs related to Conoco’s allegations that

G&M exacerbated contamination at the LCCC. On June

24, 1997, Conoco filed a counterclaim which is the subject

of this appeal. Jd. at 37a. Among other claims, Conoco

alleged that G&M was liable under CERCLA Section

4

107(a) (codified at 42 U.S.C. § 9607(a)) as an “operator” of

a facility and an “arranger” of hazardous substances

disposed at the LCCC. On December 2, 1997, Conoco

sought leave to file an amended answer, through which

Conoco attempted to combine the state and federal lawsuits

by filing its state law causes of action as counterclaims.

The District Court granted Conoco leave to file the

amended answer on December 23, 1997. Jd. at 3a. G&M

subsequently dismissed its CERCLA claims pursuant to

stipulation, leaving only Conoco’s counterclaim for

adjudication by the court. /d. at Sa.

On February 9, 1998 G&M filed a motion for

partial summary judgment arguing that it was not liable

under CERCLA as a matter of law. The District Court

denied G&M’s motion on June 2, 1998.

On September 14, 1998, G&M sought leave to file |

an additional motion for partial summary judgment. Jd. at |

5a. The proposed motion argued that Conoco’s CERCLA

counterclaims were barred by CERCLA’s statute of

limitations because Conoco filed them more than six years

after the initiation of “physical on-site construction” of the

remedial action at the LCCC. See CERCLA § 113(g)(2)(B)

(codified at 42 U.S.C. § 9613(g)(2)(B)). On September 23,

1998, the District Court denied G&M leave to file the |

proposed motion.

ee ee,

When the parties appeared for trial on the scheduled

date, the District Court discussed the case with counsel and

suspended the start of the trial. App., infra, 5a. In October

1998, after reconsidering the arguments for summary

judgment, the District Court granted summary judgment for

G&M on all of Conoco’s claims. Jd. at 32a. In

determining whether G&M was a liable “covered person”

(including an “arranger” or “operator”) under CERCLA

Section 107(a), the District Court analyzed the role that

G&M played with regard to the LCCC. Jd. at 45a-47a. In

particular, the District Court noted that “G&M was merely

an environmental contractor employed to investigate and

assist in constructing a facility for remedying

contamination already in the soils.” Jd. at 45a. The District

Court also recognized that-G&M was under Conoco’s

supervision and therefore, the type and location of the wells

at issue were directed by Conoco and the state of Louisiana.

Id. at 47a. The District Court further determined that G&M

never intended to arrange for, manage or transport

Conoco’s hazardous waste. Jd. As a result, the District

Court concluded that G&M was not an “alranger” or

“operator” (or for that matter “owner” or “transporter”) for

purposes of CERCLA Section 107(a). Id. at 45a, 47a.

With regard to the CERCLA statute of limitations,

the District Court determined that Conoco initiated a

“remedial action” in 1987 when Conoco hired LT.

Corporation to begin construction of a system for

remediating groundwater. Jd. at 46a. The District Court

applied CERCLA Section 113(g)(2)(B), id., which provides

that an action must be brought “within 6 years after

initiation of physical on-site construction of the remedial

eee. . 3” 42- USC. § 9613(g)(2)(B). The District

Court determined that since the “remedial action” was

initiated in 1987, Conoco had until 1993 to bring its

CERCLA suit. App., infra, 46a. Because Conoco first

asserted its CERCLA counterclaim in 1997, Conoco’s

counterclaim was time barred. Conoco filed a motion for

rehearing which was denied on December 3, 1998. Jd. at

48a-49a.

Conoco appealed to the Fifth Circuit. Conoco

raised several issues on appeal, including the District

Court’s finding that G&M was not an “operator” or

“arranger” and that Conoco’s counterclaim was barred by

limitations. In G&M’s Answering Brief, G&M argued that

the statute of limitations had run because undisputed facts

showed that remedial action began at the site more than six

years before Conoco filed its counterclaim. In addition,

G&M argued that it could not be an “operator” because

undisputed facts showed it lacked control over activities

relating to alleged disposal of hazardous waste. G&M

further argued that it could not be an “arranger” because

among other reasons, undisputed facts showed that G&M

had no intent to dispose of hazardous substances.

The Fifth Circuit reversed with respect to the

CERCLA issues and remanded to the District Court. Jd. at

29a. With regard to the CERCLA statute of limitations, the

Fifth Circuit agreed with G&M that CERCLA Section

113(g)(2) contained the applicable limitations period. Jd. at

lla. The Fifth Circuit was then faced with determining

whether CERCLA Section 113(g)(2)(A) or 113(g\2)(B)

applied. Jd. at 12a. Section 113(g)(2)(A) includes a three-

year limitations period triggered by completion of a

“removal action.” Section 113(g)(2)(B) includes a six-year

limitations period triggered by on-site construction of a

“Temedial action.” Accordingly, the Fifth Circuit needed to

decide which type of response activity, “removal action” or

“remedial action,” occurred at the LCCC.

CERCLA Section 101 includes definitions for

“removal” and “remedial action.”* Although the definitions

. 42 U.S.C. section 9601(23) defines “remove” or “removal” as

follows:

(23) The terms “remove” or “removal”

means the cleanup or removal of released hazardous

substances from the environment, such actions as

may be necessary taken in the event of the threat of

release of hazardous substances into the environment,

such actions as may be necessary to monitor, assess,

and evaluate the release or threat of release of

hazardous substances, the disposal of removed

material, or the taking of such other actions as may

be necessary to prevent, minimize, or mitigate

damage to the public health or welfare or to the

environment, which may otherwise result from a

release or threat of release. The term includes, in

addition, without being limited to, security fencing or

other measures to limit access, provision of

alternative water supplies, temporary evacuation and

housing of threatened individuals not otherwise

provided for, action taken under section 9604(b) of

this title, and any emergency assistance which may

be provided under the Disaster Relief and Emergency

Assistance Act [42 U.S.C.A. § 5121 et seq.].

42 U.S.C. section 9601(24) defines “remedy” or “remedial

action” as follows:

(24) The terms “remedy” or “remedial

action” means those actions consistent with

permanent remedy taken instead of or in addition to

removal actions in the event of a release or

threatened release of a hazardous substance into the

environment, to prevent or minimize the release of

hazardous substances so that they do not migrate to

cause substantial danger to present or future public

health or welfare or the environment. The term

includes, but is not limited to, such actions at the

location of the release as storage, confinement,

are stated in general terms and overlap, courts have

generally found that a “removal action” is a short-term

cleanup measure. See, e.g., Exxon Corp. v. Hunt, 475 U.S.

355, 360 (1986); Bancamerica Commercial Corp. v.

Mosher Steel of Kansas, Inc., 100 F.3d 792, 797 (10th Cir.

1996). On the other hand, a “remedial action” is typically a

long-term measure aimed at achieving a permanent remedy.

See, e.g., Exxon, 175 U.S. at 360. While the lines have

often been blurred between the two types of actions, courts

have uniformly determined that site investigation activities

constitute removal actions. See Greene v. Product Mfg.

Corp., 842 F. Supp. 1321, 1325 n. 6 (D. Kan. 1993) (stating

that courts agree that investigation and testing of

groundwater constitute “removal” actions).

perimeter protection using dikes, trenches, or ditches,

clay cover, neutralization, cleanup of released

hazardous substances and associated contaminated

materials, recycling or reuse, diversion, destruction,

segregation of reactive wastes, dredging or

excavations, repair or replacement of leaking

containers, collection of leachate and runoff, onsite

treatment or incineration, provision of alternative

water supplies, and any monitoring reasonably

required to assure that such actions protect the public

health and welfare and the environment. The term

includes the costs of permanent relocation of

residents and businesses and community facilities

where the President determines that, alone or in

combination with other measures, such relocation is

ynore cost-effective than and environmentally

preferable to the transportation, storage, treatment,

destruction, or secure disposition offsite of hazardous

substances, or may otherwise be necessary to protect

the public health or welfare; the term includes offsite

transport and offsite storage, treatment, destruction,

or secure disposition of hazardous substances and

In order to determine whether actions at the LCCC

were “removal” or “remedial,” the Fifth Circuit had to

determine which actions were relevant to the statute of

limitations. Although the District Court considered

response activities conducted by Conoco consultants after

G&M completed its work, App., infra, 46a, the Fifth

Circuit considered only those response activities that

occurred during the time G&M was working at the site. As

a result, the Fifth Circuit did not consider activities after

1985, when G&M completed installation of the monitoring

wells.’ Instead, the Fifth Circuit focused on G&M’s

installation of the monitoring wells and concluded that

those activities were “removal” because they related to site

investigation. Jd. at 15a-17a. Consequently, the Fifth

Circuit applied Section 113(g)(2)(A) and further

determined that the statute of limitations had not run,

thereby reversing the District Court’s judgment and order.‘

Id. at 17a.

, Although G&M continued to sample the monitoring wells for

approximately a year after installation, the Fifth Circuit apparently did

not find that 1985-1986 time period relevant. In any event, G&M

asserts that the “remedial” action began in 1987, so that the 1985-1986

time period is of no consequence.

. The Fifth Circuit’s focus on groundwater monitoring and

investigation activities (i.e. monitoring well construction) and its

disregard of later response activities allowed it to make an easy

determination with respect to the type of response activity involved.

As indicated earlier, courts uniformly hold that groundwater

investigation and monitoring activities constitute “Temoval” action.

See supra p. 8. Unfortunately, the court avoided the more difficult

question of whether later response action activities constituted

“removal” or “remedial” action.

10

In determining that summary judgment was not

appropriate with regard to G&M’s “operator” liability, the

Fifth Circuit started its analysis with the definition of

“operator.” App., infra, 19a. Noting that the definition was

of little use, the Fifth Circuit turned to the case law. Id.

After citing the language in United States v. Bestfoods, 524

U.S. 51, 66 (1998), the Fifth Circuit stated that operator

liability attaches only if there is a nexus between the

alleged operator’s control and the hazardous waste in the

facility. Jd. at 19a-20a. The court went on to state that the

“totality of the circumstances” concerning a contractor’s

involvement must be considered in determining “operator”

liability, id. at 20a, rather than focusing on the most

relevant facts (e.g. the Engineering Contract, which sets

forth that G&M was hired to assist clean up of the LCCC

rather than operate the facility). Nonetheless, in the Fifth

Circuit’s view, disputed issues of material facts precluded

summary judgment. /d. at 20a-21la.

With regard to “arranger” liability, the Fifth Circuit

stated that “liability attaches when one has ‘arranged for

disposal’ of hazardous substances.” Jd. at 2la As

mentioned earlier, G&M argued in its Answering Brief that

intent is required to “arrange” and the District Court found

that G&M could not be held responsible because G&M

never intended to arrange for, manage or transport

Conoco’s hazardous waste. See supra pp. 5-6.

Nonetheless, the Fifth Circuit did not address the intent

issue. Rather, the court determined that there were material

facts in dispute regarding whether, and how, the hazardous

waste was moved by G&M. App., infra, 21a

Consequently, the court reversed and remanded without

providing any guidance as to whether Conoco would be

required to prove that G&M intended to dispose of

hazardous substances.

1]

G&M petitioned the Fifth Circuit for panel

rehearing. The court denied G&M’s petition on January

11, 2001. Jd. at 48a-49a.

REASONS FOR GRANTING THE PETITION

CERCLA is an important statute creating a broad

and pervasive strict liability scheme. Incorrect and

inconsistent judicial interpretation affecting the scope of

liability and limitations may have profound consequences

to litigants nationwide.

In 1980, Congress enacted CERCLA in response to

the serious environmental and health risks posed by

industrial pollution. See United States v. Bestfoods, 524

355, 358-59 (1986)). “As its name implies, CERCLA is a

comprehensive statute that grants the President broad

power to command government agencies and private

parties to clean up hazardous waste sites.” Jd (quoting Key

Tronic Corp. v. United States, 511 U.S. 809, 814 (1994)).

CERCLA also authorizes suits by private parties to obtain

contribution or recover costs expended in cleaning up

hazardous waste sites. See. e.g., ABB Indus. Sys., Inc. v.

Prime Tech., Inc., 120 F.3d 351, 355 (2d Cir. 1997); Pinal

Creek Group v. Newmont Mining Corp., 118 F.3d 1298,

1300 (9th Cir. 1997).

While CERCLA’s social and economic impact may

have been significant even at its inception, it is apparent

that CERCLA’s effect has become tantamount over the

years. At one time it was estimated that between 130,000

and 380,000 sites were potential candidates for CERCLA

government-initiated response action. See United States v.

12

A&N Cleaners and Launderers, Inc., 854 F. Supp. 229, 236

(S.D.N.Y. 1994) (citing Evan Bogart Westerfield, When

Less is More: A Significant Threat Threshold for CERCLA

Liability, 60 U. CHI. L. REv. 697, 697 n. 4 (1993)). Along

with the large number of sites comes a large number of

litigants. A 1996 House Report cites EPA statistics that

demonstrate that there are between 80,000 and 100,000

parties involved in the CERCLA liability system. H.R.

Rep. No. 104-861, at 70 (1996). Moreover, estimates of

costs are staggering. Estimates of CERCLA cleanup costs

range in the several hundreds of billions of dollars with an

estimate as high as $750 billion. See A & N Cleaners, 854

F. Supp. at 236 (citing John T. Ronan III, A Clean Sweep

on Cleanup, THE RECORDER, Sept. 30, 1992, at 10; OFFICE

OF TECHNOLOGY ASSESSMENT, ASSESSING CONTRACTOR

USE IN SUPERFUND, reprinted in 1 CHEMICAL WASTE LITIG.

REP. 715 (1989)).

Thus, CERCLA carries significant weight from an

economic perspective and it affects a broad base of the

American public. To ensure that CERCLA does not

overreach (or fail to reach) its intended bounds, courts

should give thoughtful consideration to issues relating to

liability. This case offers the Supreme Court an

opportunity to give guidance and resolve divergent

decisions of the United States Courts of Appeals with

regard to three such issues.

In particular, the Supreme Court should resolve the

proper application of the CERCLA Section 113(g){2)

statute of limitations. See 42 U.S.C. § 9613(g)(2). By

creating a rule of law that erroneously takes a narrow view

of what activities trigger the statute of limitations, the Fifth

Circuit severely limited the statute’s intended effect.

Prompt review by this Court would ensure that the

13

uncertainty engendered by the Fifth Circuit’s ruling does

not lead lower courts astray. Moreover, this Court’s review

would provide notice to potential CERCLA litigants that

might otherwise delay filing claims in reliance upon the

Fifth Circuit’s narrow interpretation of the statute of

limitations.

In addition, this case provides the Court with an

opportunity to properly delimit the scope of the “operator”

provision of CERCLA Section 107(a)(1) and (2) to ensure

that environmental contractors, like G&M, are not

discouraged from participating in response activities

because of the threat of strict liability under CERCLA for

the consequences of pre-existing contamination. See 42

U.S.C. §9607(a\(1) & (2). While the environmental!

contractor’s role does not fit within the ordinary meaning of

“operator” as interpreted by this Court in United States v.

Bestfoods, 524 U.S. 51 (1998), the Fifth Circuit’s broad

view of that term threatens to undermine the remedial goals

of Congress by holding environmental contractors strictly

liable for the results of contaminating activities that

occurred years before the contractor’s involvement at the

Site.

Likewise, this Court may put an end to the

misapplication of the “arranger” liability provision of

CERCLA Section 107(a)(3). See 42 U.S.C. § 9607(a)(3).

Over the years, some courts have twisted the phrase

“arranged for disposal” to include unintentional disposal.

See, e.g., United States v. TIC Inv, Corp., 68 F.3d 1082,

1089 (8th Cir. 1995) (stating that “arranger” liability does

not require specific intent); Redwing Carriers, Inc. v.

Saraland Apartments, 94 F.3d 1489, 1512 (lith Cir. 1996).

This faulty interpretation invites CERCLA plaintiffs to

name defendants that are beyond the scope of the CERCLA

14

liability scheme as intended by Congress. See, e.g., Amcast

Indus. Corp. v. Detrex Corp., 2 F.3d 746, 751 (7th Cir.

1993) (CERCLA plaintiff argued that the supplier of useful

product that hired a transporter to deliver that product had

“arranged for disposal” when the useful product

accidentally spilled on the ground during unloading from

the transporter’s truck). This Court may now properly limit

“arranger” liability to those who had an intent to dispose.

Such a ruling would help ensure that CERCLA liability is

not extended beyond Congress’s original intent.

I. In Contrast to the Holdings of the Other

Circuits, the Fifth Circuit Incorrectly Focused

Only on Activities Conducted During G&M’s

Response Action Involvement Rather Than

Looking at the Totality of On-Site Response

Activity When Determining the Response Action

That Triggered the CERCLA Section 113(g)(2)

Statute of Limitations.

The statute of limitations set forth at Section

113(g)(2) of CERCLA begins to run upon the triggering of

one of two events. Section 113(g)(2) of CERCLA states:

An initial action for recovery of the costs

referred to in section 9607 of this title must

be commenced -

(A) for a removal action, within 3 years after

completion of the removal action . . . and;

(B) for a remedial action, within 6 years

after initiation of physical on-site

construction of the remedial action ....

42 U.S.C. § 9613(g)(2). Faced with the issue of whether to

apply the three-year statute of limitations of Section

15

113(g)(2)(A) or the six-year statute of limitations of

Section 113(g)(2)(B), the Fifth Circuit correctly turned to

the issue of whether the response activities at the site were

“removal” or “remedial.” App., infra, 12a. However, in

making its determination, the court did not consider all the

relevant response activities. Instead, the court only

considered response activities that were contemporaneous

with G&M’s involvement with the site.’ Jd. at 16a.

As a result, the Fifth Circuit ignored all response

activities except those that were conducted when G&M

performed well installation work, which ended in July

1985. The court stated that “the crucial response activity is

that which occurred during G&M’s involvement” and that

“no permanent remedy was in place . . . when G&M

constructed and installed the wells.” Jd. Given the Fifth ©

Circuit’s temporal limitation, the court focused on G&M’s

installation of monitoring wells as the relevant response

activity and concluded that “[e]ven if the replacements for

these wells are integral to the long-term remediation of the

site, that does not mean that their initial placement cannot

be categorized as removal.” Jd. at- 17a: Recognizing that

“removal” actions are “short-term” response activities and

that the installation of monitoring wells for the purpose of

initial site investigation falls within that category, the Fifth

Circuit incorrectly concluded that the activities relevant to

triggering the statute of limitations were “removal” in

nature. Jd. at 15a-17a. The Fifth Circuit’s failure to

consider response activities conducted after July 1985

erroneously resulted in the court ignoring Conoco’s

remedial “tank farm program” which began in

, As indicated earlier, the Fifth Circuit appeared to disregard

G&M’s limited involvement after the installation of the wells.

16

approximately 1988, id. at 38a and 46a, and lasted for over

ten years.

The Fifth Circuit’s application of the statute of

limitations is illogical and is inconsistent with decisions

from other federal circuits and district courts. The court of

appeals failed to explain why the time period during

G&M’s involvement is the only time period that could

include response activities relevant to determining when the

statute of limitations is triggered. The language of the

CERCLA Section 113(g)(2) statute of limitations provides

no basis for the Fifth Circuit’s interpretation. The statute

does not specify who must perform the response action; nor

does the statute specify when the response action must be

performed in relation to the defendant’s cn-site activities.

Nonetheless, the Fifth Circuit concluded that the only

activities that could trigger the statute of limitations are

those actions that occurred during G&M’s involvement.

G&M is aware of no other federal court decision

holding that the only response activities that trigger the

statute of limitations must take place during the time-frame

for which the defendant was involved with the site. In fact,

other courts have reached the opposite conclusion. For

example, the Seventh Circuit determined that a CERCLA

action was barred by the statute of limitations without

giving any consideration to whether the triggering response

activity occurred when the defendant was or was not

involved with the site. See United States v. Navistar Int'l

Transp. Corp., 152 F.3d 702 (7th Cir. 1998). In Navistar,

the Seventh Circuit decided whether the government’s

CERCLA action against Navistar, a party associated with

contamination at the site, was timely. Jd. at 706-07.

According to the court, Navistar demonstrated that the site

owner began construction of a clay cap at the site more than

-

17

six years before the government filed its CERCLA action.

Id. at 713. Because the site owner’s response activity

constituted “on site construction of the remedial action,”

the court held that Section 113(g)(2) barred the action. Jd.

However, unlike the Fifth Circuit in the present case, the

Navistar court did wot even consider when Navistar’s

involvement with the site took place. Rather than focusing

on the defendant’s involvement, the Seventh Circuit looked

at the totality of response activity at the site as a whole and

determined that the site owner’s activity constituted the

remedial action that triggered the statute of limitations.

The Fifth Circuit’s overly narrow view of response

activities that may trigger the statute of limitations also

conflicts with the Sixth Circuit’s analysis in Kelly v. E_I.

DuPont De Nemours and Co., 17 F.3d 836 (6th Cir. 1994).

In Kelly, the state of Michigan sued E.I. DuPont De

Nemours and Co. (“DuPont”) for response costs necessary

to clean up a landfill site owned by a third party. DuPont

had disposed of industrial waste in the landfill over a ten-

year period beginning in 1955. It was not until the 1980s

that the Michigan Department of Natural Resources

(“MDNR”) hired contractors to perform a removal action.

In 1986, one phase of the removal action was complete (the

“1986 Phase”). Additional removal activities were

performed at least through 1988.

In 1990, MDNR sued DuPont under CERCLA to

recover the cost of the clean up efforts. Based on the three-

year statute of limitations of Section 113(g)(2)(A), DuPont

asserted that MDNR’s claim for recovery of costs

associated with the 1986 Phase was time barred. The Sixth

Circuit disagreed, reasoning that the 1986 Phase removal

activities were part of the same removal action that

encompassed later removal activities. See id. at 843-44.

18

Implicitly, the Sixth Circuit rejected any notion that

the time period during DuPont’s involvement was the only

time period that could include response activities relevant

to determining when the statute of limitations was

triggered. In determining that MDNR’s CERCLA action

was not time barred, the Sixth Circuit looked at response

activities that occurred after the defendant’s (DuPont’s)

involvement. See id. To apply the Fifth Circuit’s

requirement — that the only response actions relevant in

determining when the statute of limitations triggers are

response actions that occurred during the defendant’s

involvement with the site — would lead to an absurd result

in Kelly because no response activities at all occurred

during the defendant’s involvement. Thus, the statute of

limitations would never run because there would never be a

triggering response action.

By limiting its focus to activities that occurred

during G&M’s involvement, the Fifth Circuit’s analysis

results in the anomalous conclusion that the statute of

limitations is never triggered on Conoco’s claim. If the

only events that are relevant occurred during G&M’s

involvement, and that time-frame included neither the

commencement of remedial action nor the conclusion of

removal action, then the triggers of Section 113(g)(2) and

(3) are each eliminated -- leaving no possible trigger at all.

Accordingly, under the Fifth Circuit’s holding, nothing is to

prevent Conoco from filing a lawsuit now or at anytime in

the future against G&M for the claims alleged in the

underlying suit. The fact that Congress provided a statute

of limitations in Section 113 indicates that Congress did not

intend to create a cause of action without temporal

limitation.

19

It is apparent that the Fifth Circuit struggled to

apply the statute of limitations in this unusual case

involving an environmental contractor hired to work on a

site that was already contaminated. However, it does not

follow that because G&M was involved in the response

activities, that the only response activities relevant in

determining when the statute of limitations is triggered are

those that occurred during G&M’s involvement. Certainly,

response activities after G&M’s involvement could be

relevant in triggering the statute of limitations, just as

activities occurring after the defendant’s involvement were

relevant in Navistar and Kelly.

In particular, undisputed evidence shows that the

tank farm program, which was initiated in approximately

1988, about three years after G&M finished its work, was

aimed at permanently remediating the site. App., infra, 38a

and 46a. The program lasted over ten years and recovered

nine million gallons of water containing 16 thousand

pounds of contaminants, yet the Fifth Circuit failed even to

consider the program as a relevant response activity for

purposes of determining the triggering of the statute of

limitations. A proper analysis of the tank farm program

would have revealed that it was a long-term action that was

intended to permanently clean up the groundwater.

Consequently, the tank farm program was “remedial” in

nature and, therefore, the six-year statute of limitations of

Section 113(g)(2)(B) was triggered in approximately 1988.

Conoco’s CERCLA counterclaim was filed in 1997, at least

three years after the 1994 deadline.

The Fifth Circuit’s newly found temporal limitation

concerning the removal or remedial action in Section

113(g)(2) introduces new uncertainty into the issue of

timelines under CERCLA. Now, lower courts looking to

20

the Fifth Circuit for precedent must apply an additional

court-imposed rule, not expressed in the Section 113(g)(2),

when determining when the statute of limitations is

triggered. Such a requirement undermines the very purpose

of a statute of limitations — to provide certainty regarding

when a claim becomes stale.

II. This Court Should Make Clear that “Operator”

Liability Does Not Extend to Environmental

Contractors that, Like G&M, Participated in

Response Activities at an Already-Contaminated

Site at the Direction of the Site Owner.

In its motion for summary judgment, G&M argued

that it was not an operator because, as a contractor engaged

to provide environmental services, it did not have the

authority to implement any of its recommendations without

approval from Conoco. The District Court agreed with

G&M because it found that G&M’s contractual role was

limited to investigation and assistance in Conoco’s clean up

activities. App., infra, 45a. However, the Fifth Circuit

found the District Court’s conclusion premature, on the

grounds that material issues of fact existed with regard to

the nature and extent G&M’s control over its activities at

the LCCC. Jd. at 20a-2la. By remanding for factual

findings regarding control, the Fifth Circuit failed to

recognize that extending “operator” liability to

environmental contractors does violence to the meaning of

“operator” as interpreted by this Court and distorts the

liability scheme envisioned by Congress.

CERCLA Section 107 lists four classes of persons

that can be held liable for clean-up costs associated with a

CERCLA site: site “owners,” “operators,” “arrangers,” and

re Te re

21

“transporters.” CERCLA Section 107(a)(1) and (2)

establish liability for:

(1) the . . . operator of a vessel or a facility,

(2) any person who at the time of disposal

of any hazardous substance . . . operated any

facility at which such hazardous substances

were disposed of. . . .

42 U.S.C. § 9607(a). CERCLA Section 101(20)(A) defines

“operator” in a circular manner, as “any person...

operating . . . a facility.” See 42 U.S.C. § 9601(20)(A); see

also United States v. Bestfoods, 524 U.S. 51, 55 (1998)

(recognizing that the definition is a tautology).

In Bestfoods, this Court recently provided guidance

to flesh out the “ordinary and natural meaning” of

“operator:”

[A]n operator is simply someone who

directs the workings of, manages, or

conducts the affairs of a facility. To sharpen

the definition for purposes of CERCLA’s

concer with environmental contamination,

an operator must manage, direct, or conduct

operations specifically related to pollution,

that is, operations having to do with the

leakage or disposal of hazardous waste, or

decisions about compliance with

environmental regulations.

Id. at 66.

oe

In the present case, it is clear that the Engineering

Contract did not cause G&M to become an “operator” of

the LCCC within the “ordinary and natural meaning” of the

term as interpreted by this Court in Bestfoods. G&M

merely acted as a contractor engaged by Conoco to

participate in remedial investigation. G&M’s

contractually-prescribed role was limited to mere design

and placement of wells; the contract did not allow G&M to

“manage, direct, or conduct operations” of the facility. In

short, G&M was hired to help remediate the facility rather

than operate it.

The District Court recognized the limitations of

G&M’s contractual role, concluding that “G&M was

merely an environmental contractor employed to

investigate and assist in constructing a facility for

remedying contamination already in the soils.” App., infra,

45a. Because the purpose and extent of G&M’s

participation is discernable from the Engineering Contract,

no additional facts were necessary for the District Court to

conclude that G&M was not an operator as a matter of law.

The District Court is not alone in its rationale. In

Blasland, Bouck & Lee, Inc. v. City of North Miami, 96

F.Supp.2d 1375 (S.D. Fla. 2000), the owner of a

contaminated site sued an environmental engineering firm

that had provided services in connection with remediating

the site. Bringing claims similar to Conoco’s allegations

against G&M, the owner claimed that the engineering firm

was an operator as a result of its remediation work. After

analyzing the contractor’s liability in terms of this Court’s

“operator” discussion in Bestfoods, the court concluded that

“engaging in clean-up activities at a facility does not

qualify as the type of ‘operation’ CERCLA contemplates.”

23

Id. at 1379. Consequently, the court held that the

engineering firm was not a CERCLA operator.

In contrast to the sound reasoning of Blasland and

the District Court in this case, other courts have adopted an

analysis mirroring the Fifth Circuit’s approach. See, e.g.,

K.C. 1986 Lid. Partnership v. Reade Mfg., 33 F. Supp.2d

1143, 1148 (W.D. Mo. 1998); Ganton Technologies, Inc. v.

Quadion Corp. 834 F. Supp. 1018, 1022 (N.D. Ill. 1993).

These courts have erroneously stretched the concept of

“operator” to include contractors engaged in clean up of

contaminated sites.

Intervention by this Court is critical to restore the

scope of “operator” liability to effectuate the intent of

Congress while protecting CERCLA’s central objective:

the prompt remediation of contaminated sites. See In re

Jensen, 995 F.2d 925, 927 (9th Cir. 1993). Pinning the

liability for contamination upon environmental contractors

as “operators” only defeats CERCLA’s mandate. Such an

interpretation would have a chilling effect on the

environmental remediation industry causing further delay

in the remediation process.

Ill. This Court Should Decide Whether Intent Is an

Element of “Arranger” Liability Because the

Fifth Circuit Failed to Resolve the Issue Despite

Its Dispositive Importance on Remand and the

Clear Conflict of Cirente Court Decisions on the

Issue.

The third of the four classes of persons that can be

held liable under CERCLA Section 107(a) consist of those

who “arranged for disposal” of. hazardous substances,

24

commonly known as “arrangers.” CERCLA Section

107(a)(3) establishes “arranger” liability for:

[A]ny person who by contract, agreement, or

otherwise arranged for disposal or

treatment, or arranged with a transporter for

transport for disposal or treatment, of

hazardous substances owned or possessed by

such person, 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 ... .

42 U.S.C. § 9607(a) (emphasis added).

In the present case, Conoco alleged that G&M was

an “arranger” because the Engineering Contract was an

“arrangement” and that G&M7’s performance under the

contract allegedly resulted in “disposal” of hazardous

substances. According to Conoco, “disposal” occurred

when contaminants already in the groundwater leaked

deeper into the ground through the monitoring wells that

G&M designed pursuant to the Engineering Contract. It is

beyond dispute that the Engineering Contract does not

contemplate any intent to cause contaminants to migrate

deeper into the ground. Accordingly, whether Section

107(a)(3) requires “intent to dispose” is a dispositive issue

with respect to Conoco’s “arranger” claim.

25

A. The Courts of Appeals Have Issued

Conflicting Rulings on Whether

CERCLA Requires “Intent to Dispose” as

an Element of “Arranger” Liability.

The issue of whether intent to enter into an

arrangement for disposal is a requisite element of

“arranger” liability is an exceptionally controversial issue

among the Courts of Appeals. The Sixth and Seventh

Circuits have held that there is an intent or “state of mind”

requirement implicit in the “arranged for di

language of CERCLA Section 107(a)(3). See United States

v. Cello-Foil Prods., Inc., 100 F.3d 1227, 1231-32 (6th Cir.

1996); Amcast Indus. Corp. v. Detrex Corp., 2 F.3d 746,

751 (7th Cir. 1993); see also Carter-Jones Lumber Co. v.

Dixie Distrib. Co., 166 F.3d 840, 845 (6th Cir. 1999); RSR

Corp. v. Avanti Dev., Inc., 68 F. Supp.2d 1037, 1043-44

(S.D. Ind. 1999); Struhar v. City of Cieveland, 7 F. Supp.2d

948, 952 (N.D. Ohio 1998). Likewise, the District of Utah

has interpreted Section 107(a)(3) to require intent. See

Ekotech Site PRP Comm. v. Self, 932 F. Supp. 1328, 1336

(D. Utah 1996). On the other hand, the Eighth and

Eleventh Circuits have expressly stated that specific intent

to dispose is not a requirement for “arranger” liability. See

United States v. TIC Inv. Corp., 68 F.3d 1082, 1089 (8th

Cir. 1995); Redwing Carriers, Inc. v. Saraland Apartments,

94 F.3d 1489, 1512 (11th Cir. 1996).° Several district

courts have also stated that specific intent to dispose is not

required. See United States v. Vertac Chem. Corp., 966 F.

: Although Redwing does not condition arranger liability on

intent to dispose, it includes intent among the factors bearing on

whether there is a “nexus” between the defendant and the disposal

sufficient to result in arranger liability. See Redwing, 94 F.3d at 1512.

26

Supp. 1491, 1501 (E.D. Ark. 1997); Chatham Steel Corp. v.

Brown, 858 F. Supp. 1130, 1138-40 (N.D. Fla. 1994).

Because several circuits have addressed the issue of

whether intent is a prerequisite to “arranger” liability, the

key points for both positions are fully developed and

sharpened fcr resolution for this Court. Now that the issue

has matured, this case offers this Court the opportunity to

put an end to the troubling inconsistency in this area of

CERCLA. A clear ruling by the Court requiring intent as a

necessary element of “arranger” liability would correctly

delimit the scope of “arranger” liability, leading to a more

manageable and fair liability scheme that coincides with

Congressional intent.

Such a ruling would eliminate arguments such as

the one in Amcast, where a CERCLA plaintiff claimed that

the supplier of a useful chemical that hired a transporter to

deliver the product had “arranged for disposal” when the

chemical accidentally spilled on the ground during the

unloading from the transporter’s truck. See Amcast, 2 F.2d

at 751. Clearly, labeling the chemical supplier as an

“arranger” in that context is a stretch of Section 107(a)(3).

For these reasons, it is imperative that this Court end the

irreconcilable split among the circuits with regard to

“arranger” liability.

27

B. The Fifth Circuit’s Failure to Address the

Issue of Whether Intent Is an Element of

“Arranger” Liability, in Light of the Fact

That the District Court Based Its Holding

on Lack of Intent Leaves the District

Court, and Other Courts, With

Insufficient Direction.

The District Court concluded that “(t]he evidence

clearly establishes that G&M did not operate, arrange for,

or transport hazardous substances.” App., infra, 45a

(emphasis added). The District Court reasoned that “the

problem of migration of [Conoco’s] hazardous waste

cannot be laid at the feet of G&M, because it was never the

intent of G&M or [Conoco] that G&M arrange for, manage

or transport [Conoco’s] hazardous waste.” Jd. at 47a

(emphasis added). Accordingly, the District Court granted

summary judgment based, in part, on Conoco’s failure to

show that G&M intended to dispose of hazardous

substances. Jd.

Despite the fact that the District Court expressly

grounded its arranger liability ruling on Conoco’s failure to

show any “intent to dispose,” the Fifth Circuit seemed to

avoid the issue even as it reversed and remanded. The

court first focused on disposal and stated that the movement

of hazardous substances around an already-contaminated

site could constitute disposal. Jd. at 21a. The court then

identified a factual dispute regarding if and how the

hazardous substances were moved and whether installation

of the wells caused contaminant migration. Jd. Based on

these factual disputes, the Fifth Circuit rejected the District

Court’s grant of summary judgment, id., even though the

disputed issues had no bearing on whether G&M had the

intent to dispose.

As a result, the Fifth Circuit’s analysis of “arranger”

liability fails to provide the District Court with the

necessary guidance on whether Conoco must prove that

G&M intended to dispose of hazardous substances. The

Fifth Circuit’s “arranger” analysis continued by citing

Burlington Northern Railroad Co. v. Woods Industries,

Inc., 815 F. Supp. 1384, 1392 (E.D. Wash. 1993), for the

proposition that if facts revealed that the defendant gave

instructions to a third party which caused the dispersal of

waste, the defendant would be subject to “arranger”

liability. Jd. at 21a-22a. The court instructed the District

Court that there must be a nexus, presumably between the

purported “arranger” and the disposal, before liability can

attach. Jd. at 22a. The court concluded that on remand,

“the totality of the circumstances must take into

consideration each of these factors.” Jd. It is unclear to

what factors the Fifth Circuit was referring.

The Fifth Circuit’s failure to give guidance to the

District Court regarding intent provides this Court with the

opportunity to resolve the inter-circuit split while

encouraging a decisive result in this case which avoids

relitigation of the “intent” issue and possible future appeals.

The District Court specifically heid that G&M could not be

liable for Conoco’s contaminant migration problem

because it lacked the intent to “arrange for, manage or

transport Conoco/Condea’s hazardous waste.” Jd. at 47a.

The Engineering Services Contract clearly does not

contemplate an “intent to dispose” of hazardous substances

down the well. Disputed facts identified by the Fifth

Circuit, regarding if and how hazardous waste was moved,

do not bear on whether G&M had the intent to dispose.

Accordingly, the Fifth Circuit should have ruled in favor of

G&M as a matter of law or at least given the District Court

29

guidance on whether intent was an element of “arranger”

liability.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

April 11, 2001

John Alan Doran

Troy B. Froderman

(Counsel of Record)

John D. Burnside

Gerald S. DaRosa

BRYAN CAVE LLP

Two North Central Avenue, Suite 2200

Phoenix, Arizona 85004-4406

(602) 364-7000

Attorneys for Petitioner

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