Opposition Brief — Shell Oil Co. v. United States

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Nos. 02-500 and 02-506 ——

In the Supreme Court of the Anited States

ATLANTIC RICHFIELD COMPANY AND TEXACO, INC.,

PETITIONERS

Vv.

UNITED STATES OF AMERICA, ET AL.

SHELL OIL COMPANY AND UNION OIL COMPANY,

PETITIONERS

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

THOMAS L. SANSONETTI

Assistant Attorney General

DAVID C. SHILTON

TODDS. KIM

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED |

Whether the United States “arranged for disposal” of

waste within the meaning of Section 107(a)(8) of the

Comprehensive Environmental Response, Compensa-

tion, and Liability Act of 1980, 42 U.S.C. 9607(a)(3), by

virtue of its World War II regulation of the manufac-

ture and purchase of a petroleum product when it did

not direct or control the actual disposal of waste from

that manufacture.

(I)

TABLE OF CONTENTS

Page

Opinions below ............ccccsscssssossssossscssnenseeeseensensseenssnsesssenesseceesesenss 1

I saiicnissiiieniiinialiisichinvcitainiiccanevenneiianninitsinnmnnneninrerevmes 2

TRING ve ccsesetsnrsicviiscrsescivuvinetouvvesveevasvsensnivenssentcesesenensocareeenenaceeeese 2

ATEUMENEL .....c.cscorssserescccscoreresesserosnonescsvensevevcsrnesnesssnessersssssesesessoseoess 15

III icisincsinnavitescicessasinstenhacanoséienetsevnonnineuseynnbyveneccesesvenveczcenees 27

TABLE OF AUTHORITIES

Cases:

Amcast Indus. Corp. v. Detrex Corp., 2 F.3d

746 (7th Cir. 1998), cert. denied, 510 U.S. 1044

IE wiccecetesacnniaenianiichisetntsverctibveesotimmnasnmmeninetennrnsteecncssesvsenes 19

Cadillac Fairview/Cal., Inc. v. United States,

41 F.3d 562 (Oth Cir. 1994) ......scsssessessssecsssneesssneessneessnneessns 16

Concrete Sales & Servs., Inc. v. Blue Bird Body

Co., 211 F.3d 1333 (11th Cir. 2000) .......cseseseseseerenenees 23

East Bay Mun. Util. Dist. v. United States Dep't

of Commerce, 142 F.3d 479 (D.C. Cir. 1998) .......-ssses00e- 27

FMC Corp. v. United States Dep’t of Commerce,

29 F.3d 833 (3d Cir. 1994) .......secssereessereseseesseessenees ne 24, 25

Florida Power & Light Co. v. Allis Chalmers

Corp., 893 F.2d 1313 (11th Cir. 1990) ........sseeseessssesseees 16

General Elec. Co. v. AAMCO Transmissions, Inc.,

962 F.2d 281 (2d Cir. 1992) ........scesssssereerssenserereeseees 20, 22, 23

Geraghty & Miller, Inc. v. Conoco, Inc., 234 F.3d 917

IG METI cocnnscsscescrenicsnonseemnapniipnanovetoennratipeniapetesininneneoseces 23

Masxus Energy Corp. v. United States, 898 F. Supp.

399 (N.D. Tex. 1995), aff'd, 95 F.3d 1148 (5th Cir.

RIED io: aciicsaniciigenpeentnansssenicieesitenaniionenipanapinensinaipiaoemestaveneveenenets 27

Pennsylvania v. Union Gas Co., 491 US. 1

IIE oss sc saneanaeniopiptnnbnncieonennaioancienbeheneaennvensosrinveneeves 3

Redwing Carriers, Inc. v. Saraland Apartments,

94 F.3d 1489 (11th Cir. 1996) ..........csccssssesesscesseserseesseneens 19

(III)

IV

Cases—Continued: Page

South Fla. Water Mgmt. Dist. v. Montalvo, 84 F.3d

Be Ee Cr Fe Messctiiecinneeinniniaaanannainbimninini 23

United States v. Aceto Agric. Chems. Corp., 872

Fe Be ee By neniceesninttiornintensersnitennnnienin 16, 21

United States v. Bestfoods, 524 U.S. 51 (1998) ............ 25, 26

United States v. Cello-Foil Prods., Inc., 100 F.3d

SET a Cy. TID: shiesseienintrteninnitnscienetccneantencornenniesniane 18-19

United States v. Iron Mountain Mines, Inc., 881

F. Supp. 1432 (E.D. Cal. 1995) ........secsessesseseeseeneenes 14, 20, 27

United States v. Northeastern Pharm. & Chem. Co.,

810 F.2d 726 (8th Cir. 1986), cert. denied, 484 U.S.

848 (1987) sntininssiesietipmacteaniaineinmmanbinnninianusie’ 14

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

(8th Cir. 1995), cert. denied, 519 U.S. 808 (1996) .......... 22, 24

United States v. Vertac Chem. Corp., 46 F.3d

803 (8th Cir.), cert. denied, 515 U.S. 1158 (1995) ....... 20, 27

Washington v. United States, 930 F. Supp. 474

(W.D. Wash. 1996) . 27

Statutes and rule:

Comprehensive Environmental Response, Compensa-

tion, and Liability Act of 1980, 42 U.S.C. 9601 et seq.:

§ 106, 42 U.S.C. 9606 12

§ 107, 42 U.S.C. 9607 ie 2

a, SR, PO sincere 2,3

§ 107(a)-(b), 42 U.S.C. 9607(a)-(b) 4

SS BU, Ce UC, BID wrticsstiesccsssectiiccwssnsgnsrpninsese 14

§ 107(a)(2), 42 U.S.C. 9607(a)(2) ..essssesesessssecees 24, 25, 26

§ 107(a)(3), 42 U.S.C. 9607(a)(B) ....csssseseesee 12, 13, 18, 24

§ 107(a)(4)(B), 42 U.S.C. 9607(a)(4)(B) ..........ceeeceeeees 3

ER Ge as Se tasiinettesersccice 3

§ 120(a)(1), 42 U.S.C. 9620(a)(1) sad 3

FOR, Fe Cs Bs RED: occicreseensiinscsetetipnimeypnaiinitinsinaniananenineaiaionnaiees 13

Miscellaneous: Page

Jerry Clifford, Director, Office of Site Remediation

Enforcement, Documentation of Reason(s) for

Not Issuing CERCLA § 106 UAOs to All Identi-

fied PRPs (Aug. 2, 1996) <http://www.epa.gov/

Compliance/resources/policies/cleanup/superfund/

PEIN CO RII avnctcnisritstcinssicsintnccssiorsiniianiinotiniediniacties 16

Nx the Supreme Court of the Anited States

No. 02-500

ATLANTIC RICHFIELD COMPANY AND TEXACO, INC.,

PETITIONERS

Vv.

UNITED STATES OF AMERICA, ET AL.

No. 02-506

SHELL OIL COMPANY AND UNION OIL COMPANY,

PETITIONERS ~

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-30a)

is reported at 294 F.3d 1045.’ The orders of the district

court issued on September 28, 1993 (Pet. App. 84a-

107a), and August 11, 1998 (Pet. App. 57a-83a), are re-

ported at 841 F. Supp. 962 and 13 F. Supp. 2d 1018. The

1 References to “Pet. App.” are to the appendix to the petition

in No. 02-500.

(1)

2

orders of September 18, 1995 (Pet. App. 3la-47a),

November 2, 1998 (Pet. App. 55a-56a), and October 12,

1999 (Pet. App. 48a-54a), are unreported.

JURISDICTION

The judgment of the court of appeals was initially

entered on February 11, 2002. Petitions for rehearing

were denied and a revised opinion was entered on June

28, 2002. Pet. App. 2a-3a. The petitions for a writ of

certiorari were filed on September 26, 2002. The juris-

diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

This litigation concerns payment for the cleanup of

the McColl Superfund Site in Fullerton, California. Pe-

titioners Shell Oil Co., Union Oil Co., Atlantic Richfield

Co., and Texaco, Inc. used the McColl site to dispose of

acid waste they generated in manufacturing various

petroleum products for sale to government and private

purchasers during and after World War II. The district .

court held both petitioners and the United States liable

as “arrangers” for the disposal of the waste but allo-

cated the United States the responsibility to pay all of

the cleanup costs. The court of appeals reversed in part

and affirmed in part, holding as relevant here that the

United States arranged for the disposal of only a

portion of the waste and is responsible for only the

costs relating to that portion.

1. Section 107 of the Comprehensive Environmental

Response, Compensation, and Liability Act of 1980

(CERCLA), 42 U.S.C. 9607, allows those who respond

to releases or threatened releases of hazardous sub-

stances to sue certain persons for cost recovery. 42

U.S.C. 9607. Section 107(a) specifies the categories of

potentially responsible parties:

EEE

3

(1) the owner and operator ofa * * * facility,

(2) any person who at the time of disposal of any

hazardous substance owned or operated any facility

at which such hazardous substances were disposed

of,

(3) any person who by contract, agreement, or

otherwise arranged for disposal or treatment, or

arranged with a transporter for transport for dis- |

posal or treatment, of hazardous substances owned

or possessed by such person, by any other party or

entity, at any facility * * * owned or operated by

another party or entity and containing such hazard-

ous substances, and

(4) any person who accepts or accepted any hazard-

ous substances for transport to disposal or treat- -

ment facilities.

42 U.S.C. 9607(a). Liability under Section 107 is strict,

with only certain limited defenses. 42 U.S.C. 9607(a)-

(b).

Each responsible party is liable in contribution for

costs incurred by other responsible parties. 42 U.S.C.

9607(a)(4)(B), 9613(f). Section 120(a)(1) of CERCLA

provides in relevant part:

Each department, agency, and instrumentality of

the United States * * * shall be subject to, and

comply with, [CERCLA] in the same manner and to

the same extent, both procedurally and substan-

tively, as any nongovernmental entity, including

liability under [Section 107].

42 U.S.C. 9620(a)(1); see Pennsylvania v. Union Gas

Co., 491 U.S. 1, 10 (1989). Accordingly, the United

States is sometimes subject to CERCLA claims.

4

2. a. By the early 1930s, petitioners began develop-

ing a specialized high-octane petroleum product for use

in military and private aviation. Pet. App. 5a; Stip. 18-

41 (L9-L13).? By the mid-1930s, they had negotiated

contracts to sell this aviation gasoline, or “avgas,” to

the military and had begun discussing high-octane

technology with the private aviation industry.’ Stip. 19-

28, 36, 39 (L9-L13). Through the onset of World War

II, petitioners continued refining the technology and

establishing the plants necessary for large-scale avgas

production based on anticipated demand. Stip. 25-41,

123-136 (L10-L13, L30-L32).

Because avgas was critical to the war effort, the

United States closely regulated its production during

World War II. Pet. App. 6a; Stip. 4-6, 44 (L6, L14). In

1942, President Roosevelt established several agencies

to oversee wartime production, including the War Pro-

duction Board (WPB) and the Petroleum Administra-

tion for War (PAW). Pet. App. 6a; Stip. 42-91 (L13-

L22). Under the nationwide priority rankings system,

WPB regulated the flow of certain scarce goods. Pet.

App. 6a; Stip. 52-55 (L15). PAW set national goals for

the production of high-octane gasoline and set priorities

on materials directly affecting the petroleum industry,

such as avgas components and avgas itself. Stip. 17, 87-

91 (L8-L9, L21-L22). Acting through such agencies, the

United States had statutory authority to compel refin-

2 The parties agreed to 624 stipulated facts before the district

court. Following the lead of petitioners Shell and Union in No. 02-

506, references to a stipulation in this brief identify the number of

the stipulation and the appropriate page of the material they

lodged with this Court.

8 Petitioners Shell and Union err in stating that avgas “was a

wartime product produced solely for the United States.” 02-506

Pet. 4.

ers to produce priority products, including avgas, to

their existing capacity or even to seize refineries if nec-

essary.‘ The government, however, very rarely used

that authority, choosing instead to promote avgas pro-

duction almost exclusively through non-coercive mea-

sures such as recommendations and contracts.’ Pet.

App. 6a; Stip. 43-44, 57, 59, 146-158, 200-201 (L13-L16,

L36-L38, L46).

The United States also employed programs such as

the Planned Blending Program to gather and use inven-

tory information to maximize avgas production. Pet.

App. 6a-7a. Before the war, petitioners had shared

their avgas technology with each other and had com-

monly exchanged products to balance out their pro-

duct requirements. Stip. 125-127, 135-137, 210 (L30-

L33, L48). The Planned Blending Program built on that

practice: industry representatives would report on

their anticipated supplies and use of avgas components,

and the United States would occasionally instruct them

on how to shift the supplies among themselves so that

they could be used to maximum advantage. Pet. App.

6a-7a; Stip. 221-241 (L51-L59). The Planned Blending

Program directly affected only how companies blended

avgas components after their manufacture and thus did

4 Petitioners ARCO and Texaco err in stating (02-500 Pet. 5)

that WPB and PAW could “compel refiners to increase their exist-

ing capacity to produce certain fuels.” See Stip. 57, 59 (L15-L16)

(government could “require a company to produce a good needed

for the war effort where it was within the company’s physical and

technical capacity to do so”) (emphasis added); see also Stip. 200-

201 (L46).

5 The few seizures in the record occurred at the end of or after

the war and were “paper seizures” intended to aid the petroleum

industry in the face of labor problems. Stip. 289-295 (L67-L68);

L226-L228.

6

not directly affect waste generation, which occurred

during the production of avgas components, not their

blending. Pet. App. 7a; Stip. 14-16, 221, 225 (L8, L51-

L52).

Within the regulatory structure described above,

petitioners were active and eager participants in the

avgas industry. Before, during, and after the war, each

of petitioners owned and operated one or more refiner-

ies that manufactured avgas and other products and

that produced acid waste. Stip. 144, 174, 495-496, 499

(L35, L41, L129-L130). Petitioners actively initiated

proposals before and during the war for priority rank-

ings to obtain construction materials to expand their

refineries for avgas production and, when they received

the necessary approvals, invested tens of millions of

dollars to do so. Stip. 147, 162, 268-278 (L36, L39, L64-

L66). The United States solicited such proposals from

refiners and made construction loans and tax benefits

available to owners of refineries that produced avgas,

but imposed no requirement that refiners submit any

such proposals. Stip. 152, 155-156, 162-163, 532-542

(L37-L39, L140-L142).

Much as they made independent decisions to build

and expand refineries to produce avgas, petitioners

actively and independently pursued contracts to sell

avgas to the United States. Pet. App. 7a; Stip. 19-26,

154-158, 166 (L9-L10, L838, L40). The contracts were

negotiated individually with each refiner and contained

individualized terms suiting particular refiners’ inter-

ests. Stip. 159-161, 164-168, 181-183 (L39-L40, L42-

L43). The United States generally agreed to purchase

petitioners’ entire output of avgas at a fixed price for

three years. Stip. 148-158 (L36-L38). That price was

negotiated individually with each company and gener-

7

ally included an estimated profit of six to seven percent.

Stip. 164-170 (L39-L40).

Although the United States built and owned some

refineries during the war, the plants relevant here ex-

isted in some form prior to the war and were designed,

built, and owned in full by petitioners. Pet. App. 7a;

Stip. 74, 174, 267, 281 (L19-L20, L41, L64, L66). Peti-

tioners were responsible for the daily operation and

maintenance of the physical equipment. Stip. 279, 287-

288 (L66-L67). Petitioners handled their own personnel

matters at the plants and selected their own officers

and management. Stip. 280, 282 (L66).

Petitioners received significant benefits from the

avgas program. In addition to their direct profit under

the wartime contracts, petitioners made plans from the

very beginning of the war to market and expand their

production of high-octane gasoline at war’s end. Stip.

29-41, 298-300 (L11-L13, L68-L69). After the war, peti-

tioners retained ownership of the facilities they had

built with the help of government loans. Pet. App. 7a;

Stip. 152 (L37-L38). Although it was expected that

military demand for avgas would drop, the oil industry

anticipated that higher octane fuels would have signifi-

cant application in the private automobile and aviation

industries, and petitioners held a tremendous competi-

tive advantage after the war because of their participa-

tion in the avgas program. Stip. 297-317 (L68-L72).

b. To produce avgas, refiners used sulfuric acid,

which served as a catalyst in the “alkylation” process.

Stip. 14, 493-494 (L8, L128-L129). That process pro-

duced an avgas component known as “alkylate” as well

as “spent alkylation acid” (about 87%-90% acid by

weight), which remained relatively high in acid content

and thus was a valuable commodity. [bid. Spent alky-

lation acid could be used for other purposes, reproc-

8

essed into fresh sulfuric acid, or sold to other users.

Pet. App. 5a, 7a; Stip. 325, 329, 348, 346 (L73-L75, L77).

The production of avgas was, however, not peti-

tioners’ ‘sole reason to use acid and produce acid waste.

One important use for acid was the acid treatment

process, used by refiners for decades before the war, in

which refiners removed impurities from petroleum

fractions for use in avgas or other products. Pet. App.

7a-8a; Stip. 15-16, 325, 344, 431, 484, 496, 499, 514-515

(L8, L73-L74, L77, L103-L104, L124, L129, L130,

L133). Acid treatment converted fresh acid or spent

alkylation acid into acid sludge, which had lower acid

content (about 45%-65% acid by weight). Pet. App. 8a;

Stip. 324, 496 (L738, L129). Refiners generally did not

reuse acid sludge, and reprocessing it was technically

feasible but relatively difficult and expensive. Pet.

App. 8a; Stip. 329, 376, 382 (L74-L75, L84, L87). Thus,

when the war began, acid sludge dumping and burning

were common practices in California and nationwide.

Pet. App. 8a; Stip. 326-328, 409-410, 443-448 (L74, L94,

L114-L115).

During the war, petitioners contracted with Eli

McColl, a former Shell employee, for the disposal of

some of their acid waste. Pet. App. 9a; Stip. 1, 485-442

(L6, L111-L113). He was paid a fee per barrel of waste

removed and guaranteed a minimum number of barrels.

Stip. 475-478 (L122-L123). He dumped the waste at a

site in Fullerton, California, from June 1942 until Sep-

tember 1946, more than a year after war’s end. Pet.

App. 9a; Stip. 2 (L6). Although the waste at the McColl

site included some spent alkylation acid, the vast major-

ity was acid sludge, the same refinery by-product that

petitioners had produced and dumped or burned long

before the development of avgas and the associated

alkylation process. Pet. App. 9a, 70a. Although all the

9

spent alkylation acid at the McColl site was directly

connected to the avgas program, most of the acid sludge

was not.® Id. at 9a. Instead, it was the direct result of

acid treatment in the production of various items for

military and civilian sale.’ [bid.; Stip. 325, 427, 431, 493-

496 (L73-L74, L98, L103-L104, L128-L129). A small

portion of the waste at the McColl site was acid sludge

resulting from Shell’s treatment of a government-

owned supply of a chemical called benzol. Pet. App. 9a,

69a; Stip. 432- 434, 498 (L110-L111, L130).

The United States was not directly involved with

dumping operations at the McColl site. It issued no

orders requiring or approving the dumping of acid

waste. Pet. App. 9a; Stip. 400 (L92). It was not party

to or aware of Eli McColl’s disposal contracts with peti-

tioners. Pet. App. 9a; Stip. 480 (L123). Indeed, the

wartime avgas contracts between the United States

and petitioners contained no provisions regarding

waste ownership, handling, or disposal, which remained

petitioners’ responsibility. Stip. 184-185 (L43).

Although the WPB priorities system was concerned

with the efficient use of goods and facilities for the war

6 Although the avgas program led to an increase in spent alky-

lation acid, which was the direct result of the alkylation process,

petitioners ARCO and Texaco err in stating that the program also

increased the amount of acid sludge produced at their refineries.

02-500 Pet. 8. Acid sludge production remained relatively constant

even as avgas production increased greatly. Stip. 319 (L72); Gov’t

C.A. E.R. 475, 521, 532-533, 537, 544-546.

7 An expert testified at trial that the avgas program resulted in

at most 13% of the acid sludge. Pet. App. 70a. Petitioners ARCO

and Texaco state that all the waste resulted from the manufacture

of “wartime products” for which the United States was the “exclu-

sive ultimate purchaser” (02-500 Pet. 3), but the stipulated facts

indicate otherwise. Stip. 431 (L103-L104).

10

effort, not with waste disposal, that system did have

the potential to affect the amount of acid waste eventu-

ally dumped. Pet. App. 8a. Those wishing to use scarce

materials during the war to construct acid waste

reprocessing facilities needed WPB approval, and the

United States thus had the power to limit the reproc-

essing industry’s capacity. Stip. 52-53, 338-342 (L15,

L76). During the war, however, the WPB approved

many applications to build reprocessing plants in South-

ern California and declined only one, on the basis that

then-existing facilities appeared sufficient. Stip. 351-

353, 379-383 (L78, L85-L87). Indeed, from before the

war through late 1944, spent alkylation acid reprocess-

ing capacity in Southern California appeared to meet

refiners’ needs. Petitioners contracted with companies

such as Stauffer Chemical Company (Stauffer) to re-

process spent alkylation acid they did not use within

their refineries. Stip. 343-353 (L77-L78). They dumped

spent alkylation acid at the McColl site only because

technical problems at a Stauffer plant led to a tempo-

rary shortfall of reprocessing capacity in Southern Cali-

fornia. Stip. 357-365, 493 (L78-L81, L128). The dump-

ing ended after petitioners reached agreement with

another company for temporary use of a storage tank.

Stip. 366-371 (L81-L83). ;

Government regulation similarly had little effect on

petitioners’ disposal choices regarding acid sludge.

Petitioners generally continued their pre-war practice

of dumping or burning acid sludge. Stip. 409-412, 489,

506-509 (L94-L95, L125-L126, L131). Among peti-

tioners, only Texaco requested a priority rating to

construct an additional plant to reprocess acid waste.

Stip. 379-381 (L85-L87). Although WPB denied Tex-

aco’s request, it approved Stauffer’s request to build a

much larger plant designed to reprocess both spent

11

alkylation acid and acid sludge. Stip. 357, 379-381 (L78-

L79, L85-L87). If not for unexpected technical prob-

lems (which were not caused by the United States),

that plant would have been available to handle acid

sludge when Texaco began dumping late in the war.

‘Stip. 357, 508-511 (L78-L79, L131-L132).

Another alternative to dumping or burning acid

sludge, occasionally used by petitioners, was to ship

acid sludge using railroad tank cars to Shell’s fertilizer

plant near San Francisco. Stip. 411, 513 (L94, L132-

L133). Tank car shortages were an issue during the

war, but dumping rarely resulted from tank car

shortages.” Stip. 404-405 (L93). Furthermore, although

WPB took steps to try to alleviate such shortages,

companies were ultimately responsible for making their

own arrangements for tank cars. Stip. 403 (L93). Peti-

tioners introduced no evidence that they ever re-

quested WPB to use its authority to provide them with

tank cars.’ In any case, whatever the effect of wartime

controls, petitioners continued dumping acid sludge

after the war, both at the McColl site and elsewhere.”

Pet. App. 29a; Stip. 2, 428 (L6, L98-L99).

8 The periods of dumping did not correlate well with the peri-

ods of tank car shortages. Stip. 414-420 (L95-L97); Gov’t C.A. E.R.

506-518. Indeed, during the war, Shell’s fertilizer plant had virtu-

ally all the acid sludge it needed from local sources. Gov't C.A.

E.R. 4-5, 529-530.

® Eli McColl testified before a county commission in 1942 that

“the government [would] not allow [him or the companies he repre-

sented] to use tank cars,” but he did not indicate whether he had

ever requested tank cars or was merely making a prediction. Stip.

487 (L125).

1 Petitioners ARCO and Texaco err in stating that dumping

“ceased when wartime production controls ceased and reprocess-

ing alternatives again became available.” 02-500 Pet. 8 n.4.

12

3. On February 1, 1991, the United States and the

State of California sued petitioners and other com-

panies no longer involved to recover costs incurred at

the McColl site. In response, petitioners filed counter-

claims alleging that, through its wartime regulation of

the petroleum industry, the United States “arranged

for disposal” of the waste at the McColl site and was

thus liable under Section 107(a)(8) of CERCLA. While

litigation continued, petitioners implemented a cleanup

remedy at the site pursuant to an administrative order

issued by the United States Environmental Protection

Agency under Section 106, 42 U.S.C. 9606. Cleanup at

the McColl site ultimately cost close to $100 million.

Pet. App. 9a. In 1998, the site was converted into a

wildlife sanctuary and community recreation facility.

Ibid.

On September 28, 19938, the district court entered

partial summary judgment for the plaintiffs regarding

petitioners’ liability. Pet. App. 106a. The United

States and petitioners thereafter submitted 431 stipu-

lated facts (L1-L106) and filed cross-motions for partial

summary judgment on the counterclaims. On Septem-

ber 18, 1995, the district court entered partial summary

judgment for petitioners regarding the liability of the

United States. Pet. App. 46a.

In February 1998, after the submission of another

193 stipulated facts (L107-L168), the district court

conducted a trial to allocate the response costs between

petitioners and the United States. Pet. App. 58a. On

August 11, 1998, based on its conclusions that all the

waste in question was attributable to the avgas and

benzol programs and that the United States should

bear total responsibility for such waste, the district

court issued a memorandum and order assigning the

United States responsibility for all the cleanup costs at

4 13

the McColl site. Jd. at 83a. The district court later

entered a final judgment under Federal Rule of Civil

Procedure 54(b). Pet. App. 51a.

4. The court of appeals reversed in relevant part.

Pet. App. la-30a. The United States had earlier con-

ceded that it had arranged for disposal of the portion of

waste at the McColl site related to Shell’s processing of

government-owned benzol. Jd. at 4a. About 5.5% of

the waste at the site was related to benzol. Jd. at 9a,

69a. Thus, the court of appeals considered whether the

United States arranged for disposal of the “non-benzol

waste” comprising the other 94.5% of the waste. Id. at

14a-24a,

The court of appeals first rejected the possibility of

“direct arranger liability.” Pet. App. 15a-17a. The dis-

trict court had found that the United States had af-

firmatively “undertak[en] the responsibility for dis-

posing” of the waste at the McColl site. Jd. at 45a-46a.

Referring to the stipulated facts, the court of appeals ~

stated: “There are simply insufficient facts in the

record to support a conclusion that the United States

directly entered into arrangements to dispose of acid

waste at the McColl site.” Jd. at 16a-17a.

The court of appeals next concluded that the facts

also would not support arranger liability for non-benzol

waste on a broader theory based on the United States’

supposed control over avgas manufacture. Pet. App.

17a-24a. The court of appeals agreed with petitioners

that “control is a crucial element of the determination of

whether a party is an arranger” under Section

107(a)(3). Id. at 17a. Furthermore, it recognized that

“(tJhere is no bright-line test, either in the statute or in

the case law, for a broad theory of arranger liability.”

Ibid. Thus, it recognized that its task required com-

paring the facts here with those of other decisions—in

14

particular, decisions considering what kind of control a

party must exercise over a process that produced

hazardous waste in order to impute arranger liability to

that party for the eventual disposal of that waste. Jd.

at 17a-24a. Based on a detailed comparison of the facts

here with those in other cases, the court of appeals

concluded that the United States did not exercise the

kind of control over the avgas process necessary to find

that the United States indirectly arranged for the dis-

posal of non-benzol waste. Ibid.

The court of appeals disagreed with petitioners’

contention based on United States v. Northeastern

Pharmaceutical & Chemical Co. (NEPACCO), 810

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

(1987), that “mere ‘authority to control’ is sufficient.”

Pet. App. 20a. Unlike a party found responsible as an

arranger in that decision because he held direct author-

ity to control through a corporate chain of command,

“the United States neither exercised actual control, nor

had the direct ability to control, in the sense intended in

NEPACCO.” Id. at 21a. The court of appeals agreed

with a district court decision that arranger liability

should not apply to “a party who never owned or

possessed, and never had any authority to control or

duty to dispose of, the hazardous materials at issue.”

Id. at 22a (quoting United States v. Iron Mountain

Mines, Inc., 881 F. Supp. 1482, 1451 (E.D. Cal. 1995)).

The court of appeals also rejected the contention that

“the government’s activities * * * constituted an ‘act

of war’” that absolved petitioners of liability under

Section 107(b). Pet. App. 27a-29a. Even if petitioners

had shown that the government’s activities constituted

such an “act of war,” those activities were not the sole

cause of petitioners’ disposal actions, as required to

defeat liability under that provision:

15

The undisputed facts indicate that [petitioners] had

other disposal options for their acid waste, that they

dumped acid waste from operations other than

avgas production at the McColl site, and that they

were not compelled by the government to dump

waste in any particular manner.

Id. at 29a."

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or any

other court of appeals. It is also highly fact-specific,

involving the legal consequences under CERCLA of a

unique World War II-era system of regulation, as

applied to the production and disposal of particular

products. Further review is not warranted.

1. The decision of the court of appeals is correct.

This case does not involve the ordinary scenario for

arranger liability, in which a party generates hazardous

waste and directly contracts with another party for

disposal or treatment of that waste, for the United

States neither generated nor made any arrangements

regarding the waste at the McColl site. Stip. 184-185,

400 (L438, L92). Petitioners claim that the United

States is liable under a broader theory of arranger

liability, both because of the government’s purchase of

avgas and regulation of avgas manufacture and because

11 The court of appeals affirmed the district court’s conclusions

that the United States had waived its sovereign immunity to

petitioners’ counterclaims and that the United States should bear

full responsibility for cleanup of benzol-related costs. Pet. App.

10a-14a, 24a-27a.

16

of its actions affecting petitioners’ disposal options

other than dumping.”

a. Under CERCLA, one who effectively controls

another party may be found liable for that party’s

arrangements for disposal of waste. In such a case, the

question is “whether in light of all the circumstances

the transaction involved an arrangement for disposal or

treatment of a hazardous waste.” Cadillac Fairview/

Cal., Inc. v. United States, 41 F.3d 562, 566 (9th Cir.

1994) (per curiam); see Florida Power & Light Co. v.

Allis Chalmers Corp., 893 F.2d 1313, 1317-1318 (11th

Cir. 1990); United States v. Aceto Agric. Chems. Corp.,

872 F.2d 1373, 1380-1381 (8th Cir. 1989). As the court of

appeals concluded, the facts of this case do not support

a finding of arranger liability under that principle.

Petitioners argue (02-500 Pet. i, 3; 02-506 Pet. 13-16 )

that the United States is liable because it coerced them

into producing avgas. Petitioners, however, were will-

ing and eager participants in the avgas market. They

began developing avgas technology well before the war.

Stip. 18-41 (L9-L13). They actively sought avgas con-

2 The United States denies petitioners’ contention (02-500 Pet.

19-20) that it would seek to impose arranger liability upon a pri-

vate party in its position. The Environmental Protection Agency

enforces CERCLA against federal agencies and has issued guid-

ance requiring that it treat federal entities as it would treat

private parties. See Jerry Clifford, Director, Office of Site Reme-

diation Enforcement, Documentation of Reason(s) for Not Issuing

CERCLA §106 UAOs to All Identified PRPs 3 & n.2 (Aug. 2,

1996), <http://www.epa.gov/Compliance/resources/policies/cleanup

/superfund/reason-cer106-rpt.pdf>. On a related note, petitioners’

contention (02-500 Pet. 25-26; 02-506 Pet. 20, 27-28) that the court

of appeals improperly treated the United States differently from

private parties is also mistaken. The court of appeals applied

general principles under CERCLA to the unique facts presented

in this case.

17

tracts and initiated proposals before and during the war

to expand their refineries to meet demand. Stip. 147,

154-158, 268-278 (L36, L38, L64-L66). There is no

evidence that petitioners ever desired to stop produc-

ing as much avgas as the United States would buy.”

The United States did not coerce petitioners to produce

avgas.

Petitioners also err (02-500 Pet. 7 n.3 (quoting Pet.

App. 45a)) when they state that it was “undisputed”

that the United States “controlled the specifications,

quantities, delivery, and price of avgas”. The United

States controlled those terms only in the sense that

every party controls the terms on which it chooses to

contract; petitioners exercised similar control. The

avgas contracts were based on petitioners’ own propos-

als and included unique terms tailored to each com-

pany’s particular interests. Stip. 159-161, 166, 181-183

(L39-L40, L42-L43). Contrary to petitioners’ conten-

tions (02-500 Pet. 7 & n.3; 02-506 Pet. 6-13), the Planned

Blending Program did not provide the United States

with substantial control over avgas production. That

program did not involve the production of avgas com-

ponents, which was responsible for the waste at issue

here, see Stip. 9, 14-16 (L7-L8), but rather the blending

of those components after production. Stip. 212, 221-

225 (L49, L51-L52). Moreover, although the United

States could require a transfer when one refinery’s sur-

plus of an avgas component could offset a deficit of

another (in a fashion similar to refiners’ pre-war pro-

13 Former PAW official J. Howard Marshall, one of the wit-

nesses whose testimony petitioners emphasize, testified that the

United States “never really had to” invoke its wartime powers to

force refiners to produce avgas. L174. Indeed, the President of

Union Oil urged the United States to assume greater regulatory

authority over avgas production. Stip. 101 (L24).

18

duct exchanges), the government usually accepted

refiners’ blending recommendations without alteration.

Stip. 210, 225 (L48, L52). Accordingly, the parties

stipulated that “[t]here is no direct evidence linking the

Planned Blending Program to waste dumping at the

McColl Site.” Stip. 610 (L163).

b. Petitioners also contend (02-500 Pet. 3, 7; 02-506

Pet. 16-18, 23) that the United States “arranged for dis-

posal” of the waste at the McColl site because it alleg-

edly denied them resources for waste disposal. Peti-

tioners, however, had alternatives to dumping at the

McColl Site. See pp. 10-11, supra. Petitioners contend,

for instance, that burning was an unpleasant option

(02- 500 Pet. 8-9 n.4; 02-506 Pet. 17), but it was one they

had used before the war and continued using during the

war despite their professions of distaste today. Stip.

327, 372, 489, 500, 507-509, 518, 519, 521 (L74, L83,

L125-L126, L130-L138). Contrary to petitioners’ con-

tention (02-500 Pet. 7; see id. at 8 n.4, 9), “[t]he undis-

puted facts indicate that [petitioners] had other dis-

posal options for their acid waste * * * and that they

were not compelled by the government to dump waste

in any particular manner.” Pet. App. 29a. Moreover,

dumping was an option that petitioners had used before

the war and continued using after the war, both at the

McColl site and elsewhere. Stip. 2, 327-328, 409-410,

428, 443-448 (L6, L74, L94, L98-L99, L114-L115).

In addition, petitioners’ theory that the government

is liable as an “arranger” under CERCLA because it

limited their disposal options is legally unsound.

CERCLA requires proof of an “arrange[ment] for dis-

posal or treatment” of a hazardous substance. 42

U.S.C. 9607(a)(3). That language predicates arranger

liability on a party’s affirmative acts regarding disposal.

See United States v. Cello-Foil Prods., Inc., 100 F.3d

19

1227, 1232 (6th Cir. 1996); Redwing Carriers, Inc. v.

Saraland Apartments, 94 F.3d 1489, 1506 (11th Cir.

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

751 (7th Cir. 1993), cert. denied, 510 U.S. 1044 (1994). It

is inconsistent with petitioner’s theory that the United

States arranged for disposal of the waste simply by

taking unrelated actions that made it harder for peti-

tioners to dispose of that waste.

In sum, while petitioners independently decided to

manufacture avgas, controlled the day-to-day opera-

tions that produced waste, and arranged for that

waste’s disposal, ‘the United States was two steps re-

moved from dumping: it had no significant presence at

or operational control over petitioners’ refineries, and it

had nothing to do with the site where Eli McColl even-

tually dumped petitioners’ waste from those refineries.

At root, petitioners’ argument is that the United States

is liable for the disposal of all waste produced by a

closely-regulated industry. There is no indication that

Congress meant to ascribe such a broad scope to

arranger liability and so drastically burden government

regulation of industrial practices.

2. Petitioners argue (02-500 Pet. 16-27; 02-506 Pet.

23-26) that the decision of the court of appeals conflicts

with decisions of other courts addressing arranger li-

ability under CERCLA. Petitioners contend that what

they term “the Ninth Circuit’s narrow focus on actual

ownership or direct control over the disposal arrange-

ments” conflicts with the decisions of several other

courts of appeals, which in petitioners’ view hold “that a

causal nexus between a party’s conduct and the waste

disposal is sufficient to establish arranger liability.”

02-500 Pet. 24 (emphasis added). The decision of the

Ninth Circuit is consistent with the decisions of the

other courts petitioners cite (id. at 20-24), many of

20

which the Ninth Circuit itself cited approvingly in its

opinion.”

_ a. Initially, petitioners misread the Ninth Circuit’s

decision when they state (02-500 Pet. 16) that it “held

that arranger liability requires either: (1) ownership of

raw materials or intermediate products at another’s

facility or (2) direct control of the disposal of hazardous

waste at a particular location.” The Ninth Circuit did

discuss the concepts of “ownership” and “direct control”

in the process of distinguishing this case from the

Eighth Circuit’s decision in NEPACCO. But, contrary

to petitioners’ contention, the court of appeals did not

hold that those are the exclusive factors on which

arranger liability may be based. See Pet. App. 20a-21a.

Instead, it explicitly and properly recognized that a

party might be liable if it bore a “duty to dispose” of the

hazardous materials, even if it did not directly arrange

for disposal. Jd. at 22a (quoting United States v. Iron

Mountain Mines, Inc., 881 F. Supp. 1432, 1451 (E.D.

Cal. 1995)). Based on an analysis of the facts of this

case, the court simply disagreed with petitioners’ con-

tention that the government’s actions resulted in such a

“duty to dispose” here.

Petitioners also misread the decisions of the other

courts they cite to hold that a “causal nexus” between a

party’s conduct and the disposal of waste is “sufficient”

to result in arranger liability under CERCLA. AIl-

though a “causal nexus” is no doubt necessary for ar-

ranger liability, no court has held that it is sufficient. A

14 Compare, e.g., 02-500 Pet. 21-22 and 02-506 Pet. 23-24 (relying

on General Elec. Co. v. AAMCO Transmissions, Inc., 962 F.2d

281, 286 (2d Cir. 1992) (per curiam)), with Pet. App. 22a (citing and

quoting the same case); 02-500 Pet. 21 (relying on United States v.

Vertac Chem. Corp., 46 F.3d 803, 811 (8th Cir.), cert. denied, 515

U.S. 1158 (1995)), with Pet. App. 23a-24a (relying on the same case).

21

manufacturer would not produce hazardous waste if not

for its customers, for instance, but Congress-ebviously

did not mean to impose arranger liability on every pur-

chaser of a product whose manufacture generated haz-

ardous waste. The question in cases like this one is not

whether the putative arranger shares any causal rela-

tionship with waste disposal, but whether the putative

arranger exercised sufficient control over the process of

waste generation and disposal.

b. There is no conflict between the decision of the

Ninth Circuit that the United States is not liable as an

arranger on the facts of this case and the decisions of

the other courts that petitioners cite holding that ar-

ranger liability under CERCLA was appropriate on the

facts of those cases.

The decision in this case does not conflict with the

Eighth Circuit’s decision in Aceto Agricultural Chemi-

cals Corp., supra (cited at 02-500 Pet. 16-17). As the

Ninth Circuit explained (Pet. App. 18a), Aceto involved

a far closer relationship between the arranger and the

waste, in which the arranger owned the raw materials,

contracted out a crucial waste-producing intermediate

step in the production process to another firm, and then

received back the resulting product. See Aceto, 872

F.2d at 1381. Although ownership of thé raw materials

and finished products is not dispositive of arranger

liability in all cases, it is a relevant factor that, together

with the other differences between the cases, distin-

guishes this case from Aceto.

Similarly, the decision in this case does not conflict

with the Eighth Circuit’s decision in NEPACCO (cited

at 02-500 Pet. 17-20). In that case, the court held that

the president of a corporation could be held liable as an

arranger for the disposal of waste, where a subordinate

official exercised actual control over the disposal of the

22

waste at issue. As the court of appeals explained in

distinguishing NEPACCO, the United States would be

liable as an arranger in this case if “authority to control

* * * were sufficient without more” to establish

liability. Pet. App. 20a. The decision in NEPACCO

was based, however, not on an abstract “authority to

control,” but on the fact that “responsible officiais in the

chain of command of a corporation may be held respon-

sible as arrangers when one of those officers has exer-

cised actual control over the disposition of waste on

behalf of the corporation, and the other officer has the

authority to control the first officer.” Jd. at 20a-21a.

See United States v. TIC Inv. Corp., 68 F.3d 1082, 1089

(8th Cir. 1995) (test is whether purported arranger

“exercise[d] actual or substantial control, directly or

indirectly, over the arrangement for disposal”) (em-

phasis added), cert. denied, 519 U.S. 808 (1996). The

mere fact that the United States had the (largely

unexercised) regulatory authority to order petitioners

to take various actions during World War II does not

put the United States in the same position with respect

to the disposal of petitioners’ waste that a president of

a corporation occupies with respect to other corporate

officers who directly arrange for the disposal of waste.

Petitioners’ other claims of conflict are similarly mis-

taken. In General Electric Co. v. AAMCO Transmis-

sions, Inc., 962 F.2d 281 (2d Cir. 1992) (per curiam)

(cited at 02-500 Pet. 22), the court held that certain oil

companies were not liable under CERCLA as “arrang-

ers” for the disposal of motor oil that was stored by

dealers at service stations leased from the companies.

That holding is entirely consistent with the court of

appeals’ decision that the government is not liable as an

arranger in this case. Indeed, the court of appeals here

relied in part on General Electric’s statement, cited by

23

petitioners (02-500 Pet. 22), that arranger liability turns

in part on whether there is “the obligation to exercise

control over hazardous waste disposal.” 962 F.2d at 286

(cited at Pet. App. 22a). The court of appeals’ decision

is also entirely consistent with petitioners’ position that

“whether such [an] obligation exists is based on the

party’s conduct as it relates to the disposal of hazardous

waste.” 02-500 Pet. 22 (citing General Electric). The

court of appeals simply concluded that, on the facts of

this case, as in General Electric, the government’s con-

duct did not lead to such an “obligation to exercise

control.””

Petitioners contend (02-500 Pet. 22-23) that the

decision in this case conflicts with decisions of the Fifth

and Eleventh Circuits that a determination of arranger

liability must “focus on all of the facts in a particular

case.” South Fla. Water Mgmt. Dist. v. Montalvo, 84

F.3d 402, 407 (11th Cir. 1996); see Geraghty & Miller,

Inc. v. Conoco, Inc., 234 F.3d 917, 929 (5th Cir. 2000)

(“totality of the circumstances”). The court of appeals

in this case similarly concluded that “[t]here is no

bright-line test, either in the statute or in the case law,

for a broad theory of arranger liability under

[CERCLA].” Pet. App. 17a. Indeed, the court in this

case undertook an exhaustive review of all of the rele-

vant facts in this case before concluding that arranger

liability should not be imposed. See zbid. (“[W]Je are

required to sort through the fact patterns of the de-

cided cases in order to find similarities and dissimilari-

15 For the same reason, the decision of the court of appeals is

entirely consistent with the Eleventh Circuit’s recognition of “the

possibility that a party could so control and benefit from another

company’s production of hazardous waste that arranger liability

would arise.” 02-500 Pet. 23 (quoting Concrete Sales & Servs., Inc.

v. Blue Bird Body Co., 211 F.3d 1333, 1339 (11th Cir. 2000)).

24

ties to the fact pattern of [this] case.”). The reasoning

and result of the court of appeals in this case are con-

sistent with the Fifth and Eleventh Circuit cases cited.

3. a. Petitioners also assert (e.g., 02-506 Pet. 3) that

the court of appeals’ decision conflicts with the Third

Circuit’s en bane decision in FMC Corp. v. United

States Dep’t of Commerce, 29 F.3d 833 (1994). FMC

involved “operator” liability under Section 107(a)(2),

not, as in this case, “arranger” liability under Section

107(a)(8). Under Section 107(a)(2) of CERCLA, liabil-

ity attaches to any party who “operated” a facility at a

time when hazardous waste was disposed there. 42

U.S.C. 9607(a)(2). Petitioners contend (02-506 Pet. 26)

that the statutory distinction between “operator” liabil-

ity and “arranger” liability “has no bearing,” and that

the Ninth Circuit’s decision conflicts with FMC.

Petitioners are mistaken (02-506 Pet. 26-28) that the

distinction between “operator” liability and “arranger”

liability is of no significance. The two species of liability

are based on different statutory provisions and require

different elements of proof. Under Section 107(a)(2), a

party who “owned or operated” a facility at which “haz-

ardous substances were disposed of” is liable. 42

U.S.C. 9607(a)(2). By contrast, Section 107(a)(3)

imposes liability on a party that “arranged for disposal

or treatment * * * of hazardous substances.” 42

U.S.C. 9607(a)(3). Whereas the former inquiry focuses

on the question of ownership or operation of the facility,

the latter inquiry focuses on the question of arranging

for the disposal of the substances. See TIC Inv. Corp.,

68 F.3d at 1090 n.7 (“The language related to operator

liability * * * does not require any involvement in the

disposal activities themselves.”). Petitioners cannot

simply import analyses relating to “operator” liability

25

without accounting for the differences in the statutory

formulae.

In any event, even if the two types of liability had

identical prerequisites, petitioners’ claim of conflict

would be mistaken. As the court of appeals in this case

explained, the court in FMC found the United States

liable as an operator of a wartime plant where the

United States required the owner of that plant to con-

vert it to manufacture rayon; owned much of the manu-

facturing equipment; required the use of government-

supplied raw materials; participated in managing and

supervising the workers; and directly controlled the

manufacturing process. Pet. App. 22a-23a; see FMC, 29

F.3d at 836-837. In this case, the government did not

require petitioners to manufacture any product that

they sought to avoid; did not own any of the manu-

facturing equipment; did not supply the raw materials;

did not participate in managing and supervising the

workers at petitioners’ facilities; and did not directly

control the manufacturing process. The degree of

control in FMC was substantially greater than that

here. There is thus no conflict.”

b. Petitioners invoke (02-506 Pet. 3, 22, 26) this

Court’s decision régarding “operator” liability under

Section 107(a)(2) in United States v. Bestfoods, 524 U.S.

51 (1998), although they do not expressly assert that

the decision of the court of appeals conflicts with it. In

16 Moreover, as the court of appeals found, the FMC court

divided evenly on the question whether the United States bore ar-

ranger liability. Pet. App. 28a; FMC, 29 F.3d at 845-846. The

court of appeals thus recognized: “If it was a close question on the

facts of FMC * * * , it cannot possibly be a close question on the

facts in the case before us.” Pet. App. 23a. The result in FMC also

shows the error in petitioners’ attempt to eliminate the distinction

between operator liability and arranger liability.

26

Bestfoods, this Court considered whether and when a

parent corporation would share its subsidiary’s “opera-

tor” liability under Section 107(a)(2). 524 U.S. at 61-64.

Petitioners contend that their wartime relationship

with the United States was comparable to a parent-

subsidiary relationship. 02-506 Pet. 15-16, 21-23. That

comparison is weak. Unlike a parent corporation, the

United States held no interest in petitioners’ refineries,

made no profits from petitioners’ business, and did not

manage petitioners’ operations. Its relationship with

petitioners’ plants was based on contract and regula-

tion, not ownership and management. Accordingly,

there is no basis in this case to apply to the United

States the “veil piercing” theory of “operator” liability

that the Court discussed in Bestfoods.

Absent piercing, the pertinent question under

Bestfoods is whether the parent’s actual actions regard-

ing hazardous waste (as opposed to the parent’s general

control over the subsidiary) make the parent directly

(as opposed to derivatively) liable. 524 U.S. at 64-67.

This Court explained:

[U]Jnder CERCLA, an 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 concern 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 66-67. The United States did not “operate” peti-

tioners’ refineries within the meaning of CERCLA and

thus should not be held responsible for the arrange-

ments for disposal of the waste generated there. In-

27

deed, numerous courts have declined to impose “opera-

tor” liability on the United States on similar facts

dealing with wartime industrial regulation. See East

Bay Mun. Util. Dist. v. United States Dep’t of Com-

merce, 142 F.3d 479, 484-487 (D.C. Cir. 1998); United

States v. Vertac, 46 F.3d 803, 808 (8th Cir.), cert. denied,

515 U.S. 1158 (1995); Washington v. United States, 930

F. Supp. 474, 483-485 (W.D. Wash. 1996); Maxus En-

ergy Corp. v. United States, 898 F. Supp. 399, 408 (N.D.

Tex. 1995), aff’d, 95 F.3d 1148 (5th Cir. 1996) (Table);

Iron Mountain Mines, Inc., 881 F. Supp. at 1450-1451.

The decision of the court of appeals comports fully with

those decisions and with Bestfoods.

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

THOMAS L. SANSONETTI

Assistant Attorney General

DAVID C. SHILTON

Topp S. Kim

Attorneys

DECEMBER 2002