# Opposition Brief — Dico, Inc. v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 1095

## Text

—

No. 01-1223

Jn the Supreme Court of the Gnited States

APR Lea Alby

Dico, INC., PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

THEODORE B. OLSON
Solicitor General
Counsel of Record
THOMAS L. SANSONETTI
Assistant Attorney General
GREER S. GOLDMAN
KATHERINE J. BARTON
JOHN T. STAHR
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

Section 107(a) of the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA)
provides that persons responsible for hazardous sub-
stance contamination are liable for “all costs of removal
or remedial action incurred by the United States
Government * * * not inconsistent with the national
contingency plan.” 42 U.S.C. 9607(a). The questions
presented are:

1. Whether the court of appeals correctly concluded
that the district court did not abuse its discretion in
denying petitioner’s motion to exclude the testimony of
an expert witness under Federal Rule of Evidence 702.

2. Whether the court of appeals correctly ruled that
the United States was entitled to recover: (a) the costs
it incurred in overseeing remedial activities conducted
by private parties; (b) its indirect costs of the remedial
action; and (c) litigation expenses associated with the
remedial action.

(I)

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TABLE OF CONTENTS

Opinions below ..........-ssssssssseeeeeeessssnsnnnnsnsseecsenensnnennnnnnnss ee eee
Nar PROCICLION ...t broad power
to command government agencies and private parties
to clean up hazardous waste sites.” Key Tronic Corp. v.
United States, 511 U.S. 809, 814 (1994). CERCLA
“both provides a mechanism for cleaning-up hazardous
waste sites, and imposes the costs of the cleanup on
those responsible for the contamination.” Pennsylva-
nia v. Union Gas Co., 491 U.S. 1, 7 (1989) (citations
omitted); see Bestfoods, 524 U.S. at 55-56 & n.1.

CERCLA provides the President (acting primarily
through the Environmental Protection Agency (EPA),
see Exec. Order No. 12,580, 3 C.F.R. 193 (1987)) with
several alternatives for cleaning up hazardous sub-
stance sites. Under Section 104, EPA can itself under-
take response actions, using the Hazardous Substances

ee ©

Superfund. See 42 U.S.C. 9604; see also 26 U.S.C. 9507;
Bestfoods, 524 U.S. at 55. In such cases, EPA can
recover its response costs from responsible parties
under Section 107(a) through a cost recovery action.
42 U.S.C. 9607(a). Alternatively, under Section 106(a),
EPA can seek, through an administrative order or a
request for judicial relief, to compel the responsible
parties to undertake response actions, which the gov-
ernment then monitors. See 42 U.S.C. 9606(a).

Section 107 of CERCLA, 42 U.S.C. 9607, “sets forth
the scope of the liabilities that may be imposed on
private parties and the defenses that they may assert.”
Key Tronic, 511 U.S. at 814. Under Section
107(a)(4)(A), responsible parties are liable for “all costs
of removal or remedial action incurred by the United
States Government * * * not inconsistent with the
national contingency plan.” 42 U.S.C. 9607(a)(4)(A).
The national contingency plan (NCP), which EPA
promuigated as a regulation pursuant to Section 105 of
CERCLA, 42 U.S.C. 9605, prescribes methods for
investigating the nature and extent of releases or
threatened releases, and for planning and selecting
response actions. See 40 C.F.R. Pt. 300.

Section 101(23) of CERCLA defines the terms “re-
move” and “removal” to include, among other things:

the cleanup or removal of released hazardous sub-
stances from the environment, * * * such actions
as may be necessary to monitor, assess, and evalu-
ate the release or threat of release of hazardous
substances, * * * 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.

42 U.S.C. 9601(23). Section 101(24) defines the terms
“remedy” and “remedial action” to include, among other
things:

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 * * *.
The term includes, but is not limited to, such actions
at the location of the release as storage, confine-
ment, * * * cleanup of released hazardous sub-
stances * * *, and any monitoring reasonably
required to assure that such actions protect the
public health and welfare and the environment.

42 U.S.C. 9601(24). The terms “remove,” “removal,”
“remedy,” and “remedial action” describe “response”
actions, and all such terms “include enforcement activi-
ties related thereto.” CERCLA § 101(25), 42 U.S.C.
9601(25). eee

In establishing that a responsible party is liable for
response costs, the United States need not prove that
the party is the only source of the contamination or that
the releases occurred in any particular amount. See,

e.g., Stewman v. Mid-South Wood Preds. of Mena, Inc., -

993 F.2d 646, 649 (8th Cir. 1993). The responsible
party’s liability to the government is joint and several,
except to the extent that a defendant can establish, by a
preponderance of the evidence, that there is a “rea-
sonable basis” on which to apportion liability or to es-
tablish distinct harms. See, e.g., Jn re Bell Petroleum
Servs., Inc., 3 F.3d 889, 902-903 (5th Cir. 1993); United
States v. R.W. Meyer, Inc., 889 F.2d 1497, 1507 (6th Cir.
1989), cert. denied, 494 U.S. 1057 (1990); United States
v. Northeastern Pharm. & Chem. Co. (NEPACCO), 810

5

F.2d 726, 732 n.3 (8th Cir. 1986), cert. denied, 484 U.S.
848 (1987).

2. The United States brought this action against
petitioner to recover the government’s response costs
associated with the remediation of groundwater con-
taminated by trichloroethylene (TCE) that was re-
leased from petitioner’s manufacturing facility. Pet.
App. 3a. The government specifically sought recovery
of costs associated with “Operable Unit 1” (OU-1) of the
Des Moines TCE Site. Jd. at 3a, 5la-58a. Following a
bench trial, the district court entered findings of fact
and conclusions of law holding petitioner liable for the
government’s response costs. Jd. at 45a- 75a. The court
thereafter concluded that the government was entitled
to the full amount of costs that it had requested. /d. at
32a-44a,

The district court based its liability ruling on exten-
sive scientific evidence submitted at trial respecting the
migration of TCE from petitioner’s facility into the
groundwater supply. That ruling sets out findings of
facts describing petitioner’s use and release of TCE,
Pet. App. 46a-51la, EPA’s discovery and investigation of
the contamination, id. at 5la-53a, and the scientific evi-
dence linking petitioner’s activities with the ground-
water contamination, id. at 54a-58a. Based on those
findings, the district court concluded that petitioner’s
spillage and disposal of TCE caused the groundwater
contamination that led to the government’s incurrence
of response costs. /d. at 58a-75a. The district court
specifically rejected petitioner’s contention that scien-
tific testimony from the government’s expert witness,
John Robertson, should have been excluded as insuffi-
ciently reliable under Daubert v. Merrell Dow Pharma-
ceuticals, Inc., 509 U.S. 579 (1993). See Pet. App. 64a-
70a. To the contrary, the court “f[ound] his testimony

6

to be both accurate and persuasive.” Jd. at 70a. See
also id. at 58a (finding that the government’s expert
witness “presented logical, well-supported theories of
liability” while petitioner’s expert witness was “far less
credible”).

The district court ruled that the government was
entitled to $4,129,426.67 in response costs based on the
government’s submission of affidavits and other docu-
ments setting out its expenditures for the response
activities associated with the OU-1 portion of the Des
Moines TCE Site. See Pet. App. 33a-38a. Relying ona
prior ruling that constituted law of the case, the district
court rejected petitioner’s contention that oversight
costs, indirect costs, and costsof attorneys’ time are not
recoverable under Section 107 of CERCLA as a matter
of law. Jd. at 39a. The district court further concluded
that petitioner had failed to produce admissible evi-
dence to counter the government’s cost submissions or
otherwise show that they were inaccurate. /d. at 39a-
43a.

3. The court of appeals affirmed the district court’s
rulings on liability and response costs in their entirety.
Pet. App. 2a-29a. The unanimous court rejected all of
petitioner’s numerous challenges to the district court’s
decisions. Jbid. Only two of the court of appeals’
rulings are relevant to the petition for writ of certiorari.

First, the court of appeals held that the district court
had properly denied petitioner’s motion, under Dau-
bert, to exclude the testimony of the United States’
expert witness. Pet. App. 6a-12a. The court of appeals
found that petitioner “has not pointed to any deficiency
in the reliability of Robertson’s testimony that would
lead us to conclude the District Court abused its discre-
tion.” Jd. at 12a. Rather, petitioner’s objections merely
“amount to an argument that the District Court should

-
(

have given more weight to [its] expert’s interpretation
- of the data at issue.” /d. at lla-12a.

Second, the court of appeals rejected petitioner’s
contentions that Section 107(a) of CERCLA does not
authorize the government to recover certain categories
of response costs that were included within the district
court’s award. The court specifically concluded that
Section 107(a) entitled the government to recovery of:
(a) $730,060.74 in government oversight costs for reme-
dial actions conducted by responsible persons at the
government’s direction; (b) $508,284.76 in indirect costs,
such as overhead expenses of the Superfund program,
attributable to the remedial actions at the site; and (c)
$370,453.57 in costs of attorneys’ time and other litiga-
tion expenses associated with recovering response costs
at the site. Pet. App. 20a-27a.

ARGUMENT

The court of appeals correctly rejected petitioner's
challenges to the district court’s exercise of discretion
in admitting expert testimony and to its determination
of recoverable categories of CERCLA response costs.
The challenged rulings are consistent with established
law, do not conflict with any decision of this Court or
another court of appeals, and do not present issues
otherwise warranting this Court’s review.

1. Petitioner claims (Pet. 12-21) that the court of
appeals erred in finding that the district court acted
within its discretion in admitting the testimony of the
United States’ expert witness. Petitioner does not
contend that the court of appeals’ decision conflicts with
any decision of this Court of any other court of appeals.
Instead, petitioner seeks review based on a fact-specific
challenge to the district court’s exercise of discretion in
this particular case. That challenge plainly does not

\

8

present an issue of general importance warranting
review by this Court. In any event, the court of appeals
properly affirmed the district court’s decision.

In determining the admissibility of expert witness
testimony under Fed. R. Evid. 702, the district court
must ensure that scientific or other technical testimony
is relevant and reliable. Daubert, 509 U.S. at 589. The
district court must specifically determine whether the
expert “is proposing to testify to (1) scientific knowl-
edge that (2) will assist the trier of fact to understand
or determine a fact in issue.” /d. at 592. “This entails a
preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically
valid and of whether that reasoning or methodology
properly can be applied to the facts in issue.” Jd. at 592-
593. The district court has “considerable leeway” in
deciding how to determine the reliability of expert
testimony, and its ruling on whether to permit expert
testimony is reviewed for an abuse of discretion. See
Kumho Tire Co. v. Carmichael, 526 U.S. 1387, 152
(1999).

In this case, the district court correctly concluded
that the expert testimony clearly exceeded the Daubert
threshold. See Pet. App. 66a. The government’s ex-
pert applied established and accepted scientific con-
cepts and methodologies to the issues in dispute. /bid.
Petitioner challenges the reliability of the government
expert’s conclusions, but the district court expressly
found the government’s expert “presented logical, well-
supported theories of liability,” while petitioner’s
expert was “far less credible.” Jd. at 58a. Indeed, the
arguments that petitioner sets out in its request for
review demonstrate that petitioner’s supposed Daubert
challenge simply “amount{s] to an argument that the
District Court should have given more weight to

9

[petitioner’s] expert’s interpretation of the data at
issue.” 7d. at lla-12a.

a. Petitioner contends that Robertson programmed
his computer model to exclude the possibility of con-
tamination from properties north of petitioner’s manu-
facturing facility and that the court of appeals improp-
erly failed to address that error by wrongly concluding
that Robertson’s computer model did not form the basis
for his conclusion that TCE contamination originated
from petitioner’s property. Pet. 138-14. Petitioner
is mistaken. As the district court correctly found,
Robertson properly accounted for flowage from the
north by programming it into the model as recharge or
rainfall. Pet. App. 66a. Furthermore, the court of
appeals correctly recognized that Robertson did not use
that model to support his opinion that petitioner caused
at least some of the contamination. /d. at 8a. Rather,
he used that model to support his opinion on the per-
centage of contamination for which petitioner was
liable, in order to determine whether liability could be
apportioned between petitioner and other parties. /d.
at 62a n.1. Petitioner did not appeal the district court’s
ruling that liability was not divisible, and the court of
appeals correctly concluded that Robertson’s use of the
computer model was immaterial to petitioner’s appeal.
Indeed, the court of appeals properly rejected in its
entirety petitioner’s claim that Robertson had failed to
consider whether the contamination came wholly from
north of petitioner’s property, finding that Robertson’s
testimony “shows that he considered each piece of data
that [petitioner] alleges he ignored.” Jd. at 8a.

b. Petitioner wrongly contends that Robertson’s
opinion—that “dense non-aqueous phase liquid”
(DNAPL) beneath petitioner’s property provided the
source of continuing high concentrations of TCE—was

10

not credible. Pet. 15-16; see Pet. App. 54a, 68a
(describing the significance of DNAPL). The district
court correctly found that, in one test sample, DNAPL
was found in concentration levels of about one percent
which, under then-current professional standards,
indicated that DNAPL was present. /d. at 64a. The
court of appeals properly refused to disturb the district
court’s determination, additionally noting that Robert-
son’s conclusions regarding the presence of DNAPL in
the soil were supported by tests run by petitioner’s own
consultant and were consistent with that consultant’s
conclusion that DNAPL was probably present. /d. at
10a-11a.

c. Petitioner also asserts that data from deep-soil
boring samples were insufficient to support Robert-
son’s conclusion that there was continuous contamina-
tion from the soil surface to the groundwater. Pet. 18-
19. That assertion, even if true, does not support peti-
tioner’s claim that Robertson’s testimony should have
been excluded. Both the district court and the court of
appeals found that Robertson did not rely on those
borings to support his opinion that releases from peti-
tioner’s operations contributed to the groundwater
contamination. Pet. App. 10a, 69a. -The district court
concluded that the government established causation
even in the absence of the testimony on the deep soil
borings. /d. at 69a. Furthermore, the court of appeals
correctly held that petitioner’s challenges to Robert-
son’s conclusions went to credibility and not to admissi-
bility and therefore were matters for the trier of fact to
decide. Jd. at 10a. See, e.g., Hose v. Chicago N.W.
Transp. Co., 70 F.3d 968, 974 (8th Cir. 1995); United
States v. L.E. Cooke Co., 991 F.2d 336, 342 (6th Cir.
1993); Jones v. Otis Elevator Co., 861 F.2d 655, 663

ple Salat bs ‘“

11

(11th Cir. 1988); Breidor v. Sears, Roebuck & Co., 722
F.2d 1134, 1138-1139 (3d Cir. 1983).

d. Petitioner improperly seeks to challenge the
admissibility of Robertson’s expert opinion regarding
the penetration of TCE from sludge spread on the
ground. Pet. 16-18. Petitioner argues that Robertson’s
opinion was contradicted by petitioner’s expert and
that Robertson offered no data for his conclusion that
TCE penetrated the degreasing vat and concrete con-
tainment pit to contaminate the soil below. See ibid.
Petitioner did not raise those issues in its Daubert
challenge in the court of appeals. Instead, petitioner
simply contended that the United States failed to meet
its burden of proving that TCE from petitioner's
operations contaminated the soil, a question it does not
ask this Court to consider. See Pet. App. 15a-18a. In
any event, the court of appeals correctly concluded that
record evidence contradicted the testimony of peti-
tioner’s expert regarding the penetration of TCE into
the soil and that petitioner did not demonstrate that the
district court clearly erred in crediting Robertson’s
testimony over the conflicting testimony of petitioner’s
expert. Jd. at 17a-19a.

9 Petitioner contends (Pet. 22-29) that the court of
appeals’ “imposition of indirect and oversight costs” in
this case conflicts with the Third Circuit’s decision in
United States v. Rohm & Haas Co., 2 F.3d 1265 (1993).
Petitioner is mistaken. The court of appeals disagreed
with the Third Circuit’s analytical approach to over-
sight costs, but it determined that this case presented a
distinguishable issue and that the same result would
obtain in this case, in any event, under the Third Cir-
cuit’s analysis. Pet. App. 21a-24a. The court of appeals
also correctly rejected petitioner’s arguments respect-
ing recovery of indirect costs and litigation expenses,

12

id. at 24a-26a, and those rulings do not present any
basis for alleging a conflict among the courts of appeals.
a. CERCLA entitles the government to collect
“all costs of removal or remedial action incurred by
the United States Government * * * not inconsistent
with the national contingency plan.” CERCLA §
07(a)(4)(A), 42 U.S.C. 9607(a)(4)(A) (emphasis added).
he Third Circuit nevertheless ruled in Rohm & Haas
that CERCLA’s definition of a “removal” action, see
CERCLA § 101(23), 42 U.S.C. 9601(23) (set out at p. 3,
supra), does not include government oversight of a
private party’s removal activities. That court conclud-
ed that the courts should interpret the term “removal”
in light of the so-called “clear statement” doctrine
arising from National Cable Television Association v.
United States, 415 U.S. 336 (1974). The Third Circuit
held, based on its reading of National Cable, that
Congress was required to clearly state that oversight
costs are recoverable, and that “ary ambiguity must be
resolved in favor of the defendants.” 2 F.3d at 1275.
Applying that standard, Rohm & Haas held that
CERCLA’s definition of “removal” does not include
EPA oversight of a private party’s removal actions. /d.
at 1278."

1 The Third Circuit’s decision reflects an-expansive view of
National Cable that this Court has not embraced. In National
Cable, this Court addressed the Independent Offices Appropria-
tion Act, 1952, ch. 376, Tit. 5, 65 Stat. 290, which authorized the
heads of federal agencies to prescribe fees for “any work, service
. . . benefit, . . . license, . . . or similar thing of value”; and pro-
vided that the fee was “to be fair and equitable taking into consid-
eration direct and indirect cost to the Government, value to the
recipient, public policy or interest served, and other pertinent facts

. .” 415 U.S. at 337 (quoting statute). The Court held that, “to
avoid constitutional problems” of improper delegation of taxing

13

The court of appeals in this case “disagree[d] with the
Third Circuit’s analysis.” Pet. App. 23a. It noted that
the National Cable case involved the FCC’s attempt,
without specific congressional authorization, to impose
user fees on parties regulated by the agency that were
in the nature of tax assessments. See ibid. The court
correctly recognized that the principle articulated in
National Cable does not apply to a liability statute,
such as CERCLA, that is expressly “designed to make
parties responsible for introducing hazardous waste
into the environment pay for cleaning up the messes
they have created.” Ibid. The court of appeals noted

authority, it was necessary to construe the Act narrowly, to permit
fees based solely on “value to the recipient.” Jd. at 342-344. Since
then, this Court has limited the application of National Cable to
the specific context of potentially unconstitutional grants of reve-
nue generating authority. See Skinner v. Mid-America Pipeline
Co., 490 U.S. 212, 224 (1989) (National Cable “stand[s] only for the
proposition that Congress must indicate clearly its intention to
delegate to the Executive the discretionary authority to recover
administrative costs not inuring directly to the benefit of regulated
parties by imposing additional financial burdens, whether charac-
terized as ‘fees’ or ‘taxes,’ on those parties.”); Mistretta v. United
States, 488 U.S. 361, 373 h.7 (1989) (citing National Cable in
stating that “{iJn recent years, our application of the nondelegation
doctrine principally has been limited to the interpretation of
statutory texts, and, more particularly, to giving narrow construc-
tions to statutory delegations that might otherwise be thought to
be unconstitutional”); FEA v. Algonquin SNG, Inc., 426 U.S. 548,
560 n.10 (1976) (National Cable does not limit the Secretary’s
authority to impose fees as one method of “adjust{ing]” imports,
because the import statute did not pose any conceivable threat to
the non-delegation principle.); see also Weiss v. United States, 510
U.S. 163, 189 n.5 (1994) (Souter, J., concurring) (citing National
Cable in stating that the Court has read certain statutes “narrowly
to avoid annulling them as excessive abdications of constitutional
responsibility”).

14

that other courts had declined to follow the Third Cir-

cuit’s Rohm & Haas analysis in analogous cases. /d. at

23a-24a (citing United States v. Lowe, 118 F.3d 399, 401-

403 (5th Cir. 1997), and Ailantic Richfield Co. v. Ameri-

can Airlines, Inc., 98 F.3d 564, 568 (10th Cir. 1996)).
Nevertheless, the court of appeals correctly dis- |

cerned that, whatever the merits of the Third Circuit’s

analysis, this case is clearly distinguishable from Rohm

& Haas because it involves “remedial” actions, rather

than “removal” actions. Pet. App. 24a. Echoing the

view of the Tenth Circuit in Atlantic Richfield Co. v.

American Airlines, Inc., 98 F.3d 564, 568 (1996), the

court explained:

(T)he Third Circuit only addressed CERCLA’s lan-
guage defining removal actions under [Section
101(23), 42 U.S.C. 9601(23)]|. CERCLA defines re-
medial actions more breadly to include “any moni-
toring reasonably required to assure that such
actions protect the public health and welfare and the
environment.” [Section 101(24), 42 U.S.C. 9601(24)
(emphasis added by the court)]. This language
provides the specific congressional delegation of
authority to the EPA that the clear statement
doctrine of National Cable, as interpreted in Rohm |
& Haas, seems to require. Thus, even under the |
more restrictive approach advocated by [petitioner],
we would conclude that oversight and indirect costs

are recoverable in remedial actions under
CERCLA.

Pet. App. 24a. Thus, the court of appeals reconciled its
decision with that of the Third Circuit, and there is no
conflict on the issue presented here. The court of -
appeals’ mere criticism of the Rohm & Haas decision
does not give rise to a conflict. See, e.g., Black v. Cutter

tO

er

Labs., 351 U.S. 292, 297 (1956) (“This Court * * *
reviews judgments, not statements in opinions.”). And
to the extent that the Third Circuit’s Rohm & Haas
decision might give rise to a conflict with other cases
not before the Court, that conflict is not ripe for this
Court’s review. The Third Circuit should be allowed an
opportunity to reconsider its decision in light of the
criticism it has generated.”

b. Petitioner contends (Pet. 22) that the court of
appeals’ decision affirming an award of indirect costs is
“in conflict” with Rohm & Haas, but that contention is
baseless. The Third Circuit expressly stated in Rohm
& Haas that “this case does not involve the issue of
whether indirect, overhead costs associated- with

2 The Tenth Circuit, like the court of appeals in this case,
addressed Rohm & Haas in an action involving only “remedial”
costs and similarly held that it need not reach the National Cable
issue because oversight falls within that term under any standard.
Atlantic Richfield, 98 F.3d at 568. That court nevertheless noted
that Rohm & Haas’s application of National Cable “is question-
able.” Jbid. The Fifth Circuit has rejected Rohm & Haas in an
action involving both removal and remedial costs. See Lowe, 118
F.3d at 401 (1997) (“[w]e agree with the government and find the
interjection of the National Cable doctrine inappropriate to our
consideration of this issue of reimbursement of oversight costs”).
See also New York v. Shore Realty Corp., 759 F.2d 1032, 1042-1043
(2d Cir. 1985) (stating, in a decision prior to Rohm & Haas, and
without discussion of National Cable, that the State of New York’s
monitoring costs “in assessing the conditions of the site and super-
vising the removal of the drums of hazardous waste squarely fall
within CERCLA’s definition of response costs, even though the
State is not undertaking to do the removal”); cf. United States v.
Hyundai Merchant Marine, 172 F.3d 1187, 1190-1191 (9th Cir.),
cert. denied, 528 U.S. 963 (1999) (holding, under a provision of the
Oil Pollution Act that allows the Coast Guard to recover.its costs of
monitoring an oil spill cleanup conducted by responsible parties,
that National Cable “do[es] not apply here”).

16

government removal or remedial activity at a particular
facility are recoverable under § 107(a).” 2 F.3d at 1273
and n.10. While Rohm & Haas notes that a number of
courts have held that indirect costs are recoverable, it
did not reach the issue, and there accordingly is no
conflict among the court of appeals. To the contrary,
the courts of appeals that have addressed the issue
have uniformly held that indirect costs are recoverable.
See United States v. R.W. Meyer, Inc., 889 F.2d 1497,
1502-1503 (6th Cir. 1989), cert. denied, 494 U.S. 1057
(1990); United States v. Chromalloy Am. Corp., 158
F.3d 345, 352 (5th Cir. 1998); United States,v. Ottati &
Goss, 900 F.2d 429, 445 (1st Cir. 1990); B.F’. Goodrich v.
Betkoski, 99 F.3d 505, 528 (2d Cir. 1996), cert. denied,
524 U.S. 926 (1998); see also United States v. Hardage,
750 F. Supp. 1460, 1502 (W.D. Okla. 1990), aff’d in part
and rev’d in part on other grounds, 982 F.2d 1436 (10th
Cir. 1992), cert. denied, 510 U.S. 913 (1993).

As the Sixth Circuit explained in R.W. Meyer, “the
challenged indirect costs are attributable to its cleanup
site in that they represent the portion of EPA’s over-
head expenses that supported the government’s re-
sponse action on Meyer’s property.” 889 F.2d at 1503.
That court added that “the statute contemplates that
those responsible for hazardous waste at each site must
bear the full cost of cleanup actions and that those costs
necessarily include both direct costs and a proportion-
ate share of indirect costs attributable to each site.” Jd.
at 1504. The court of appeals’ affirmance of the district
court’s award of indirect costs in this case is consistent
with the uniform case law, is correct, and provides no
issue warranting further review.

c. Petitioner relegates to a footnote (Pet. 24 n.7) its
argument that the United States should not be allowed
to recover attorney expenses associated with collecting

17

its response costs. Petitioner merely asserts that
Rohm & Haas should apply with “equal force” to that
question. The courts of appeals, however, have uni-
formly held that the United States may recover costs of
attorneys’ time and other litigation expenses. Pet. App.
24a-25a; United States v. Chapman, 146 F.3d 1166, 1175
(9th Cir. 1998); B.F. Goodrich v. Betkoski, 99 F.3d at
528." ;

The court of appeals’ decision is correct. As the Ninth
Cireuit stated in Chapman, Section 107(a)(4)(A) of
CERCLA “evinces an intent to provide for attorney
fees because it allows the government to recover ‘all
costs of removal or remedial action’ including ‘enforce-
ment activities’ [under Section 101(25)].” 146 F.8d at
1175; see B.F. Goodrich, 99 F.3d at 528 (under Section
101(25), “the government’s recoverable response costs
properly include not only the obvious costs of remedia-
tion, but also include, inter alia, attorneys’ fees”). The

3 This Court ruled in Key Tronic Corp. v. United States, 511
U.S. 809 (1994), that private parties may not recover litigation-
related fees under CERCLA Section 107(a)(4)(B), which allows
those parties to recover only “necessary costs of response” (42
U.S.C. 9607(a)(4)(B)). See 511 U.S. at 819. The Court left open,
however, the question whether the United States may recover
such fees pursuant to Section 107(a)(4)(A), which entitles the gov-
ernment to “all costs of removal or remedial action” (42 U.S.C.
9607(a)(4)(A)). The Court reasoned that “it would stretch the plain
terms of the phrase ‘enforcement activities’ too far to construe it as
encompassing the kind of private cost recovery action at issue in
this case,” but the Court withheld comment “on the extent to
which that phrase forms the basis for the Government’s recovery
of attorney’s fees through § 107.” Key Tronic, 511 U.S. at 819. Cf.
id. at 824 (Scalia, J., dissenting) (“I would read ‘enforcement activi-
ties’ in [Section 101(25)] to cover the attorney’s fees incurred by
both the government and private plaintiffs successfully seeking
cost recovery under [Section 107] of CERCLA.”).

18

4
court of appeals’ decision does not conflict ‘vith any
decision of this Court or another court of appeals and
does not warrant review.
CONCLUSION
The petition for a writ of certiorari should be denied.

Respectfuliy submitted.

THEODORE B. OLSON
Solicitor General
THOMAS L. SANSONETTI
Assistant Attorney General
GREER S. GOLDMAN
KATHERINE J. BARTON
JOHN T. STAHR
Attorneys

APRIL 2002

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1442%3A2. Public record. Not legal advice.