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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 533 U.S. 950

## Text

"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

Sera Sa Set tener neh sme ene smemapmemanseamenene

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1080%3A1. Public record. Not legal advice.