Petition for Writ of Certiorari — E. I. du Pont de Nemours and Co. v. United States (No. 06-726)

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Suprame Co

p re pur. U.S.

O6-726NOV 27 2008

| REECE OR ter

In the Supreme Court of the United States

No. 06-

E. ]. pu Pont pe Nemours AND COMPANY, ET AL., PETITIONERS

UNITED STATES OF AMERICA, £7 AL., RESPONDENTS

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Joun MCGatir—N

Parron Boccs LLP

One Riverfront Plaza

6th Floor

Newark, NJ 07102

(973) 848-5610

Counsel for Petitioners

E. 1 du Pont de Neniours

and Company, Sporting Goods

Properties, Inc., and Conoco

Phillips Company, successor in

interest to Conoco, Inc.

Mark I. Levy

Counsel of Record

KILPATRICK STOCKTON LLP

607 14th Street, N.W.

Suite 900

Washington, DC 20005

(202) 824-1437

WIiiiiaM 23. Hyatt, Jr.

Emity L. Won

KIRKPATRICK & LOCKHART

NiCHOLSON GRAHM LLP

One Newark Center

10th Floor

Newark, NJ 07102

(973) 848-4000

Counsel for Petitioners

E. lL du Pont de Nemours

and Company and Sporting

Goods Properties. Inc.

DOARSS g

QUESTION PRESENTED

Whether, as two circuits have held following this Court’s

decision in Cooper Industries, Inc. v. Aviall Services, Inc.,

543 U.S. 157 (2004), but the court below rejected, a party-

that is potentially responsible (a “PRP”’) for cleanup costs

under the Comprehensive Environmental Response,

Compensation, and Liability Act (“CERCLA”), 42 U.S.C.

§§ 9601 et seq., and that undertakes such a cleanup and incurs

those costs without the compulsion of a Section 106 or 107

civil action and therefore cannot sue for contribution under

Section 113(f)(1) as construed in Cooper, has a cause of

action under Section 107(a) or federal common law against

another PRP to recover an equitable share of the cost of the

cleanup.

PARTIES TO THE PROCEEDING

Petitioners, E. |. du Pont de Nemours and Company,

ConocoPhillips Company, and Sporting Goods Properties,

Inc., were the plaintiffs and the appellants in the courts below.

Respondents, the United States of America, United States

Department of Commerce, United States Department of

Defense, United States Department of the Army, United States

Department of Energy, United States Department of the

Interior, and United States Department of the Navy, were the

defendants and appellees.

CORPORATE DISCLOSURE STATEMENT

PURSUANT TO RULE 29.6

Petitioner E. 1. du Pont de Nemours and Company is a

publicly held corporation. it has no parent corporation, and

no publicly held corporation owns 10% or more of its stock.

Petitioner ConocoPhillips Company, the successor in

interest to Conoco Inc., is wholly owned by ConocoPhillips

Holding Company, which in turn is wholly owned by

ConocoPhillips, a publicly held company.

Petitioner Sporting Goods Properties, Inc., is wholly

owned by petitioner E. J. du Pont de Nemours and Company.

iii

TABLE OF CONTENTS

QUESTION PRESENTED .......------------>

PARTIES TO THE PROCEEDING ........-.----

CORPORATE DISCLOSURE STATEMENT

PURSUANT TO RULE 29.6 ........-- nea es

TABLE OF CONTENTS .......-----s sees 0 0:

TABLE OF AUTHORITIES ......-.-------+-+-

TABLE OF APPENDICES ........-.---+++++5:

OPINIONS BELOW .........------ eee etree:

Po. | eres Sore se ee

STATUTORY PROVISIONS INVOLVED ........

2 an ener ree ts ee

A. The CERCLA Regulatory Scheme .......-

B. The History Of This Case .....--.-------

REASONS FOR GRANTING THE PETITION

1. THERE IS A SQUARE AND EXPLICIT

CIRCUIT CONFLICT ON THE IMPORTANT

AND RECURRING CERCLA ISSUE

PRESENTEDINTHISCASE ........---

Contents

Page

Il. THE THIRD CIRCUIT ERRED IN

REJECTING A PRP’S CAUSE OF ACTION

TO RECOVER AN EQUITABLE SHAREOF ~

CLEANUP COSTS FROM OTHER

RESPONSIBLE PARTIES ...........__. 13

A. Section 107(a)(4)(B) Provides An

Express Cause Of Action.........__. 15

1. The plain Statutory language

establishes the Section 107(a) cause

CORM s.66 15

2. The background, history, and purpose

of CERCLA demonstrate the

existence of the Section 107(a) cause

ME 6 odes ac 18

3. The Third Circuit's rejection of a

Section 107(a) cause of action puts

the United States in a preferred

Position over other PRPs and

therefore is inconsistent with

congressional intent .........._. 24

B. Alternatively, An Implied Cause Of

Action Exists Under Section 107(a) ... 25

C. In The Alternative, A Cause Of Action

Arises Under Federal Common Law ... 27

CONCLUMION oi 30

TABLE OF AUTHORITIES

Page

Cases: .

Atl. Research Corp. v. United States, 459 F.3d 827

CE Se Goer vevsacvicereccecess passim

Boyle v. United Techs. Corp., 487 U.S. 500 (1988)

CCPC U MENG Cb esas ese ¥ ee ev eecvocces 27, 28

Conn. Nat'l Bank v. Germaine, 503 U.S. 249 (1992)

EE 15

Consol. Edison Co. of N.Y. v. UGI Util. Inc.,

i a” fe” Lo Ay) passim

Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S.

eC aw haves wessewsvercesces passim

Engine Mfrs. Ass'n v. S. Coast Air Mgmt. Dist.,

Ee ee eee eee 15

Fisher Dev. Co. v. Boise Cascade Corp., 37 F.3d 104

GUN dea vassvevecreseeseers 22

FMC Corp. v. U.S. Dep t of Commerce, 29 F.3d 833

(3d Cir. 1994) (en banc) ...........--------- 24, 25

Harrison v. PPG Indus., Inc., 446 U.S. 578 (1980)

ES ES eee eo 22

Illinois v. City of Milwaukee, 406 U.S. 91 (1972) .... 27

Key Tronic Corp. v. United States, 511 U.S. 809

eau Scwaieeees ese esccceeees passim

Authorities

Page

Morales v. Trans World Airlines, Inc., 504 U.S. 374

sich ee ay 22

Musick, Peeler & Garrett v Employees Ins. of Wausau,

508 U.S. 286 co ee. fee ttechoceonwe., 25

New Castle County vy. Halliburton NUS Corp.,

111 F.3d 1116 (3d Cir. a ee a a 5

Northwest Airlines, Inc. v. T, ransp. Workers Union of

. Am., 451 U.S. PPGPEED fae cs 4, 14, 26, 27, 29

Pennsylvania v. Union Gas Co., 491 U.S. ] (1989)

SENG 2 Aaa ed hee ewe eed ao ee. 3, 20, 21, 24

PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610

shchsrpticc prude er TE i 5

Reading Co., In re, 1ISF3d 111] (3d Cir. 1997) |. 5

Schaefer v. Town of Victor, 457 F.3d 188 (2d Cir.

vitae ROC Ee Re EO aT th 2, 7, 20

Seminole Tribe of Fla. v. Florida, 517 U.S. 44

RVR Hs rid esa rivseabgcuucar le Gack 3,22

Texas Indus., Inc. v. Radcliff Materials, inc.,451 U.S.

WIMP 2 Viddedie girs oe 4, 27, 28

United States vy. Bestfoods, 524 U.S. §| (1998) .... 3,20

vil

Authorities

United States v. USX Corp., 68 F.3d 811 (3d Cir.

SE aca sa aE COUN Leeda sae sees eames 28

Whitfield v. United States, 543 U.S. 209 (2005) ... 22

Federal Statutes, Rules, and Miscellaneous:

SPCR. PA FIG Ge «ccc sede td eaedecesies 3

pg Nome Ee eee yr rr rey 1

Ek cote Ug freer er res ee ree ee passim

SEB BN ha Ors owes ecuescunereens 3,15

Oe We co dacs s dew heeds seek rane 3

Ss PE. Sawer ex nucvawerteneerasiwe passim

SEATS BE hv hb a beds Mase ehiees passim

SEUSS Pe so vcs ccccestavwaiiees 3

42 U.S.C. § 9607(a)(4)(B) .......... ; dice tave passim

SEU Bee sinc babar era cigs sd eeeeres 28

Rs Tem yk Cl re per rrr eer re passim

a ee LS eee ey ee ee 5

aS Wha © EES hp obo cd nes eaencowwnns 3, 24

viii

Authorities

Amendment to National Oil and Hazardous

Substance Contingency Plan,

48 Fed. Reg. 40,658 (Sept. 8, 1983) .........

National Oil and Hazardous Substance Poilution

Contingency Plan,

55 Fed. Reg. 8666 (Mar. 8, 1990) ..........

Superfund Amendments and Reauthorization

Act of 1986,

Pub.L. No. 99-499, 100 Stat. 1613 ..........

H.R. Rep. No. 96-1016(1) (1980),

reprinted in 1980 U.S.C.C.A.N. 6119 .......

H.R. Rep. No. 99-253(1) (1985),

reprinted in 1986 U.S.C.C.A.N. 2835 .......

H.R. Rep. No. 99-253(i1) (1985),

reprinted in 1986 U.S.C.C.A.N. 3038 .......

S. Rep. No. 99-11 (1985)

126 Conc. Rec. 26,388 (1980)

(remarks of Rep. Florio) ..................

126 Conc. Rec. 31,965 (1980)

(statement of Kep. Florio) ................

126 Conc. Rec. Hi1,787 (1980)

(statement of Rep. Florio)

131 Cone. Rec. 24,725 (1985)

(statement of Sen. Domenici)

TE aey eevee 6 6 8

Page

neniecnn

Authorities

Page

Exec. Order No. 12,580, 52 Fed. Reg. 2923

(Jam. 23, 1987) ..... cece eee cece eee reece 24

Oversight Hearings Before the House Subcomm. On

Admin. Law and Governmental Relations, Comm.

On Judiciary, 99th Cong. Sess. 51 (1985) ....-- 19

Lee M. Thomas & F. Henry Habicht Il, U.S. EPA,

Interim CERCLA Settlement Policy (OSWER

Directive No. 9835.0) (1984) .......--.--+5-: 23

TABLE OF APPENDICES

Appendix A — Opinion Of The United States Court

Of Appeals For The Third Circuit (Filed August

sk ntuiag Be OEE EEO PTE Pa IR NE

Appendix B — Memorandum Opinion Of The United

States District Court For The District Of New

Jersey Filed December 30, 2003 And Amended

Order (Dated January 8, BR ae

Appendix C — Opinion And Order Of The United

States District Court For The District Of New

Jersey (Filed March 1, BE otk Seve den eet

Appendix D — Order Of The United States Court Of

Appeals For The Third Circuit Denying Petition

For Rehearing (Dated October CS ee

Appendix E — Statutory Provisions Involved

‘Page

76a

115a

Petitioners, E. 1. du Pont de Nemours and Company, ef al.

(“DuPont”), respectfully petition for a writ of certiorari to review

the judgment of the United States Court of Appeals for the Third

Circuit in this case. -

OPINIONS BELOW

The opinion of the court of appeals (App., infra, \a-75a) is

reported at 460 F.3d 515. One opinion and order of the district

court (App., infra, 76a-114a) are reported at 297 F. Supp. 2d

740. The other opinion and order of the district court (App.,

infra, 115a-123a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on August

17, 2006. By order entered on November 1, 2006, the court of

appeals denied DuPont's timely petition for rehearing (App.,

infra, \24a-125a). The jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant provisions of the Comprehensive

Environmental Response, Compensation, and Liability Act

(“CERCLA”), 42 U.S.C. §§ 9601 ef seq., are reproduced in the

appendix to this petition (App., infra, \26a-133a).

STATEMENT

In Cooper Indus., Inc. v. Aviall Services, Inc., 543 U.S. 157

(2004) (“Cooper”), this Court held that a party that is potentially

responsible (a “PRP”) for the cleanup of a contaminated site

under the Comprehensive Environmental Response,

Compensation, and Liability Act (“CERCLA”), 42 U.S.C.

§§ 9601 ef seq., does not have a cause of action for contribution

against another PRP under Section | 13(f)(1) of the Act if it has

not been sued under Sections 106 or 107. In so ruling, the Court

expressly left open the question whether a PRP that had

voluntarily undertaken a cleanup and incurred cleanup costs

without the compulsion of a Section 106 or Section 107 civil

action could bring suit against another PRP to recover an

equitable share of the cost of the cleanup pursuant to Section

107(a) of CERCLA. See 543 U.S. at 168-71. In a separate

opinion, two Justices addressed the question left open by the

majority and concluded that such a cause of action does lie under

Section 107(a). See 543 U.S. at 172-74 (Ginsburg, J., joined by

Stevens, J., dissenting).

Following Cooper, three} circuits have now decided this

question. Unanimous panels of the Second and Eighth Circuits

have held that a PRP does have such a cause of action. See

Consol. Edison Co. of N.Y. v. UGI Util Inc., 423 F.3d 90 (2d

Cir. 2005), pet. for cert. filed, No. 05-1323 (Apr. 14, 2006),

order calling for the views of the Solicitor General (Oct. 2,

2006); Schaefer v. Town of Victor, 457 F.3d 188 (2d Cir. 2006);

Atl. Research Corp. v. United States, 459 F.3d 827 (8th Cir.

2006), pet. for cert. filed, No. 06-562 (Oct. 24, 2006). By

contrast, in direct and express conflict with those decisions, a

divided panel of the Third Circuit in this case held that there is

no such cause of action. App., infra, 60a.'

In light of this square circuit conflict on the important and

recurring CERCLA issue left open in Cooper, this Court’s

review is warranted. Furthermore, because the conflict is created

by the decision below, and because this case provides the most

suitable vehicle for resolving the issue, it would be appropriate

for the Court to grant this petition for certiorari. If the Court

believes it would be beneficial also to have before it a decision

reaching the contrary conclusion, the granted cases could be

consolidated for briefing and oral argument.

A. The CERCLA Regulatory Scheme.

1. CERCLA was enacted in 1980 in response to serious

environmental and health risks posed by property contaminated

1. The Section 107(a) issue also is pending in the Seventh and

Ninth Circuits. See Metro. Water Reclamation District of Greater

Chicago v. N. Am. Galvanizing & Coatings, Inc., No. 05-3299 (7th Cir.

argued Jan. 20, 2006); City of Rialto v. DOD, No. 0S-56749 (9th Cir.

oral argument not yet scheduled).

with hazardous substances. United States v. Bestfoods, 524 U.S.

51, 55 (1998). Congress empowered the President (acting

through the Environmental Protection Agency (“EPA”)) either

directly to clean up a contaminated property pursuant to Section

104 or to compel PRPs to conduct the clean up pursuant to

Section 106. 42 U.S.C. §§ 9604, 9606. In either case, EPA may

recover its response costs pursuant to Section 107(a)(4).

42 U.S.C. § 9607(a)(4).

“The remedy that Congress felt it needed in CERCLA is

sweeping: everyone who is potentially respottsible for

hazardous-waste contamination may be forced to contribute to

the cost of cleanup.” Pennsylvania v. Union Gas Co., 491 US.

1, 7 (1989) (plurality opinion of Brennan, J.), overruled on other

grounds, Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996).

Congress identified four broad classes of PRPs in Section

107(a)(1}{4). 42 U.S.C. § 9607(a). In particular, Congress both

expressly provided that the United States is itself a “person”

potentially liable under CERCLA and explicitly waived the

sovereign immunity of the United States so that it could be sued

for the costs of cleaning up contamination for which it is

responsible. 42 U.S.C. §§ 9601(21), 9620(a)(1).

Section 107(a)(4) provides that PRPs “shall be liable for

_. . (A) all costs of removal or remedial action incurred by the

United States Government or a State or an Indian tribe not

inconsistent with the national contingency plan.” Of particular

relevance here, it also provides that PRPs are liable for “(B)

any other-necessary costs of response incurred by any other

person consistent with the national contingency plan.” 42 U.S.C.

§§ 9607(a)(4)(A), (B) (emphasis added). The “national

contingency plan” is an EPA regulation specifying procedures

for responding to hazardous substance contamination.

See 40 C:F.R. Part 300 (2004).

2. As this Court explained in Cooper, after the enactment

of CERCLA in 1980, various lower courts held that (1) PRPs

that had incurred response costs voluntanily, without having first

been sued in a Section 106 or 107 civil action, were expressly

authorized by Section 107(a)(4)(B) to recover their costs from

other PRPs, and (2) PRPs that had been sued in a Section 106

or 107 civil action had a right to contribution from other PRPs,

either impliedly from the Provisions of the statute or as a matter

of federal common law, even though CERCLA as originally

enacted “did not mention the word ‘contribution’. . . .”

543 US. at 162. See also Key Tronic Corp. v. United States,

S11 U.S. 809, 816 (1994) (“numerous cases” interpreted

CERCLA — “particularly .. . § 9607... .” — to authorize a

cause of action for “‘a private party that had incurred cleanup

costs to seek contribution from other PRPs”). Thus, after the

enactment of CERCLA, PRPs were permitted to recover a

Proportionate share of their response costs from other PRPs in

two different and distinct procedural circumstances: when they

had incurred those costs in the absence of a Section 106 or 107

civil action, under the express provision of Section 107(a)(4)(B);

or when they had been sued in a Section 106 or 107 civil action,

by implication of such a right under the Act or as a matter of

common law.

To allay any concem that the latter line of cases implying a

right to contribution under the Statute might be “debatable”

(Cooper, 543 U.S. at 162) in light of Northwest Airlines, Inc. y.

Transportation Workers Union of America, 451 U.S. 77, 90-99

(1981), and Texas Industries, Inc. v, Radcliff Materials, Inc.,

451 U.S. 630, 638-647 (1981) (refusing to recognize implied

or common-law rights to contribution under Statutes Other than

CERCLA), Congress included an express contribution right in

the Superfund Amendments and Reauthorization Act of 1986

(“SARA”), Pub.L. No. 99-44, 100 Stat. 1613. It amended

CERCLA to include Section | 13(f), which provides, inter alia,

that “[a] person may seek contribution from any other person

who is liable or potentially liable under [Section 107], during

or following any civil-action under [Section 106] or under

{Section 107].” 42 U.S.C. § 9613(f)(1). Section | 13(f)(1) also

contains a savings clause: “Nothing in this subsection shall

diminish the right of any person to bring an action for

contribution in the absence of a civil action under [Section 106]

or under [Section 107].” Id.

Thus, as this Court explained in Cooper, “fijn short, after

SARA, CERCLA provided for a right to cost recovery in certain

circumstances, § 107(a), and separate rights to contribution in

other circumstances, §§ 113(f)(1), 113(f)(3)(B).” 543 U.S. at

163. In Key Tronic, this Court described those remedies as

“similar and somewhat overlapping.” 511 U.S. at 816. In

Cooper, the Court observed that “[t]he cost recovery remedy of

§ 107(a)(4)(B) and the contribution remedy of § 113(f)(1) are

similar at a general level in that they both allow private parties

to recoup costs from other private parties . . . [bJut the two

remedies are clearly distinct.” 543 U.S. at 163 n3.

3. In the 18 years between the passage of SARA and this

Court’s decision in Cooper, the lower courts broadly construed

Section 113(f)(1) to permit a PRP to recoup cleanup costs from

other PRPs in both of the circumstances covered by pre-SARA

law, regardless of whether there had been a prior Section 106 or

107 civil action. See, e.g., /nre Reading Co., 115 F.3d 1111 (3d

Cir. 1997); New Castle County v. Halliburton NUS Corp., \\1

F.3d 1116 (3d Cir. 1997); PMC, Inc. v. Sherwin-Williams Co.,

151 F.3d 610 (7th Cir. 1998). Based on this understanding, the

courts treated Section 1 13(f)(1) as the exclusive means by which

one PRP could recover contribution from other PRPs, whether

or not there had been a Section 106 or 107 civil action.

See, e.g., Reading, New Castle, PMC. Because at the time

Section | 13(f)(1) provided a cause of action to a PRP to recover

an equitable share of its response costs from other PRPs even

in the absence of a Section 106 or 107 civil action, courts held

that a separate cause of action did not arise under Section 107(a)

on the ground that a Section 107(a) right would be duplicative

of Section 113(f)(1) and would allow circumvention of the

express and inclusive right in Section 113(f)(1).

in Cooper, this Court, relying upon the “natural meaning”

of the enabling clause in the first sentence of Section 1 13(f)(1),

upset this long-held understanding and limited the applicability

of Section 1 13(f)(1) to contribution claims asserted “during or

following” a Section 106 or 107 civil action. At the same time,

the Court noted that the specific purpose of the savings clause

in last sentence of Section 113(f)(1) “is to clarify that § 113(f)(1)

does nothing to ‘diminish’ any cause(s) of action for contribution

that may exist independently of § 113(f)(1). In other words, the

sentence rebuts any presumption that the express right of

contribution provided by the enabling clause is the exclusive

cause of action for contribution available to a PRP.” 543 U.S. at

166-67. Two Justices, writing separately in Cooper, would have

held that Section 107(a)(4)(B) provides such a right where a

Section 113(f)(1) cause of action would be unavailable under

Cooper. See 543 U.S. at 172-74 (Ginsburg, J., joined by Stevens,

J., dissenting).

4. Following the Court's decision in Cooper, a unanimous

panel of the Second Circuit held in Consolidated Edison that a

PRP that voluntarily incurs response costs, in the absence of a

prior Section 106 or 107 civil action, may seek cost recovery

from other PRPs under Section 107(a)(4)(B). Based on Cooper’s

explanation that the Section 107(a) and the Section 113(f)(1)

nghts, although “similar at a general level in that they both allow

private parties to recoup costs from other private parties,” are

“clearly distinct,” and in light of the holding of Cooper “that a

section 113(f)(1) action is only available during or following a

specified civil action,” the court of appeals concluded “‘that it

no longer makes sense to view section 113(f)(1) as the

[exclusive] means by which the section 107(a) cost recovery

remedy is effectuated by [PRPs]. Each of those sections, 107(a)

and 1 | 3(f)(1), embodies a mechanism for cost recovery available

to persons in different procedural circumstances.” Consol.

Edison, 423 F.3d at 99. The court reasoned that “[g]iven that

section 107(a) is distinct and independent from section 1 13(f)(1),

and that section | 1 3(f)(1)’s remedies are not available to a person

in the absence of a civil action as specified in that section,

determining whether a party in [the plaintiff's} circumstances

may sue under section 107(a) is easily resolved based on that

section’s plain language. Section 107(a) makes parties liable

for the government’s remedial and removal costs and for ‘any

other necessary costs of response incurred by any other person

consistent with the national contingency plan.”” /d. Furthermore,

“{uJnlike some other courts, we find no basis for reading into

this language a distinction between so-called ‘innocent’ parties

and [PRPs]. Section 107(a) makes its cost recovery remedy

available, in quite simple language, to any person that has

incurred necessary costs of response, and nowhere docs the plain

language of section 107(a) require that the party seeking

necessary costs of response be innocent of wrongdoing.” Jd. at

99-100 (citation omitted). Subsequent to Consolidated Edison,

another unanimous panel of the Second Circuit reached the same

conclusion. See Schaefer, 457 F.3d 188. ay

Following the Second Circuit's decision in Consolidated

Edison, a unanimous panel of the Eighth Circuit also reached

the same conclusion. In Atlantic Research Corporation v. United

States, the court held “that a private party which voluntarily

undertakes a cleanup for which it may be held liable, thus barring

it from contribution under CERCLA’s § 113, may pursue an

action for direct recovery or contribution under § 107, against

another liable party.” 459 F.3d 827, 837 (8th Cir. 2006). In that

case, Atlantic Research and the United States were both PRPs,

and the company undertook a cleanup without the compulsion

of a Section 106 or 107 civil action. The Eighth Circuit, after

holding that Cooper was sufficient intervening authority for it

to reconsider the prior law of the circuit that Section 113(f)(1)

provided the exclusive cause of action, reviewed the pre-Cooper

judicial} interpretations of the relationship between Sections

107(a) and 113(f)(1) in which the courts “direct[ed] traffic”

between the two by narrowly construing Section 107(a) to be

unavailable where Section 113(f)(1) authorized a PRP to sue

other PRPs for contribution. /d. at 832. Relying on the

conclusion of Cooper that the two remedies are “distinct,” the

court determined that “it is no longer appropriate to view § 107’s

remedies exclusively through a § 113 prism.” /d. at 835. As the

court explained: “We reject an approach which categorically

deprives a liable party of a § 107 remedy. Like the Second

Circuit, we return to the text of CERCLA, and find no such

limitation in Congress’s words.” Id. In line with the Second

Circuit, the Eighth Circuit held that each section “embodies a

mechanism for cost recovery available to persons in different

procedural circumstances.” /d. The court concluded that the

“plain text” of the Savings clause in Section 113(f(1) reflects

an express congressional intent to Preserve other rights to

contribution and “discern[ed] nothing in CERCLA’s words

Suggesting Congress intended to establish a comprehensive

contribution and cost recovery scheme encouraging private

cleanup of contaminated sites, while simultaneously excepting

— indeed, penalizing — those who voluntarily assume such

duties.” /d. at 836. The court pointed out that a ruling barring

recovery under Section 107(a)(4) would not only be contrary to

CERCLA’s purpose of making those responsible for

contamination pay for their share of the cleanup but, in the case

of the United States as a PRP, it would produce “‘an absurd and

unjust outcome” because “the government could insulate itself

trom responsibility for its own pollution by simply declining to

bring aCERCLA Cleanup action or refusing a liable party’s offer

to settle. This bizarre outcome would eviscerate CERCLA

whenever the government, itself, was partially responsible for

a site’s contamination.” /d.

B. The History Of This Case.

!. DuPont filed this case against the United States in

December 1997. It asserted claims to recover an equitable share

of response costs it had incurred and would incur in the future

in cleaning up 15 industrial facilities that were involved in

wartime production. Both DuPont and the United States are

responsible for some of the contamination and thus are PRPs

—

under CERCLA. DuPont had not been subject to a civil action

under Section 106 or 107.’

In July 1999, the district court ordered that DuPont's claim

with respect to its plant at Louisville, Kentucky be prepared as

a test case, and discovery was stayed as to the remaining 14

facilities. The United States admitted, and the district court held,

that the government was liable with respect to the Louisville

plant under CERCLA. Through July 2000, DuPont had spent

approximately $24 million investigating and cleaning up

hazardous substance contamination at the Louisville plant. The

United States, even though liable along with DuPont for that

contamination, has contributed nothing to those costs.

2. Insofar as relevant here, the district court granted

summary judgment to the United States on DuPont's Section

113(f)(1) claim with respect to the Louisville plant on the ground

that Section 113(f)(1) of CERCLA did not authorize DuPont's

claim for contribution in the absence of a Section 106 or 107

civil action. Following further proceedings, the district court

dismissed with prejudice DuPont’s complaint as to all sites.

On DuPont's appeal, a divided panel of the Third Circuit

affirmed the orders of the district court in all relevant respects.

The panel held that under Third Circuit precedent (which it

2. The DuPont cleanups involved in this case were

“voluntary” in the sense that they were not compelled by a

Section 106 of 107 civil action. Rather, they were undertaken pursuant

to federal and state environmental statutes and subject to regulatory

oversight either by EPA or a counterpart state agency. For example, at

the Louisville plant that was the focus of the proceedings in the district

court, the cleanup occurred pursuant to a permit issued under the

corrective action program of the Solid Waste Disposal Act as amended

by the Resource Conservation and Recovery Act and the Hazardous

and Solid Waste Amendments of 1984, 42 U.S.C. §§ 6901 ef seq.

(“RCRA”). (During the course of the appeal, it was learned that, in

2001, the Necco Park site had been the subject of a Section 107 action.

Accordingly, the court of appeals altered the district court's dismissal

to be without prejudice. See App., infra, 62a n.33.)

ee I A Ae Sem ee eee = eee

- ~ —

concluded it could not reconsider after Cooper), Section 107(a)

authorizes suit only by an “innocent party” against PRPs and

therefore could not be invoked by a plaintiff PRP like DuPont.

In adhering to this interpretation, the Panel expressly disagreed

with the Post-Cooper decisions of the Second and Eighth

Circuits. See App., infra, 27a-31a, 60a.

Furthermore, while those Third Circuit precedents had

entitled a PRP to bring a Section | 13(f)(1) suit against other

PRPs even if it had not been subject to a Section 106 or 107

civil action, such a remedy now was foreclosed by Cooper. As

a result of Cooper and the panel’s adherence to its “innocent

party” decisions under Section 107, a PRP like DuPont that had

not been sued under Section 106 or 107 but voluntarily

undertook a cleanup has no right to sue other PRPs to recover

encourage voluntary cleanups that might not be supervised bya

governmental agency but rather meant to promote only

supervised cleanups in accordance with litigation, a consent

decree, or an administrative settlement. Id. at 46a-47a.

Section 106 of 107 action could sue other PRPs under Section

107(a) for an equitable share of its Cleanup costs. As Judge

Sloviter explained, this interpretation was required by the plain

language of Section 107(a), the text and history of the savings

clause to preserve existing rights to contribution, and the

fundamental congressional objectives of achieving prompt

cleanups of contaminated Sites and requiring each PRP to bear

the cost of its pollution.

REASONS FOR GRANTING THE PETITION

I. THERE IS A SQUARE AND EXPLICIT CIRCUIT

CONFLICT ON THE IMPORTANT AND

RECURRING CERCLA ISSUE PRESENTED IN

THIS CASE.

As explained above (see pages 1-2, supra), there is a square

and explicit conflict among the circuits on the CERCLA issue

that this Court left open in Cooper. The Second and Eighth

Circuits, in line with the views expressed by Justice Ginsburg

and Justice Stevens in Cooper, have held that a PRP that

voluntarily undertakes a cleanup without the compulsion of a

Section 106 or Section 107 civil action, and therefore that cannot

bring a contribution action under Section 1 13(f)(1) as construed

in Cooper, is entitled to sue other PRPs to recover an equitable

portion of the cleanup costs under Section 107. In contrast, the

Third Circuit in this case rejected such a cause of action. Both

the panel majority and Judge Sloviter in dissent expressly

recognized that the panel’s ruling conflicted with the decisions

of the Second and Eighth Circuits. See App., infra, 27a-31a,

60a; id. at 69a (Sloviter, J., dissenting). Furthermore, the

Solicitor General, in the government's petition for certiorari in

Atlantic Research, acknowledges this “clear” and “direct”

conflict. Atl. Research Pet. 8, 9.

In addition, the CERCLA question in this case presents an

important and recurring issue that calls for this Court’s review.

Indeed, review is warranted here for precisely the same reasons

that certiorari was granted in Cooper. Moreover, with specific

respect to the issue that Cooper left open and that is presented

here, the Court in Cooper noted “the importance of the § 107

issue” (543 U.S. at 170) and explained that “the relationship

between §§ 107 and 113. . . is a significant issue in its own

right.” /d. at 169;. see also id. at 172-74 (Ginsburg, J., dissenting)

(noting need for resolution of the issue).

Furthermore, this circuit conflict is now ripe for resolution.

Following Cooper, three circuits have addressed the issue and

rendered lengthy opinions. Absent the Court’s intervention, this

conflict will persist and cause needless uncertainty in the

regulated and environmental communities and unnecessary

litigation in the courts. See also Cooper, 543 U.S. at 174

(Ginsburg, J., dissenting) (expressing a desire to avoid

protracting litigation).

The need for this Court’s immediate guidance is reinforced

by the unsettled state of CERCLA law after Cooper. Prior to

Cooper, every circuit to consider the issue allowed a PRP in the

circumstances of this case to sue other PRPs for contribution.

Most of those decisions grounded the cause of action in Section

1 13(t)(1) and, concomitantly, reasoned that Section 107(a) could

not be utilized to duplicate the remedy, or evade the restrictions,

in Section 113(f)(1). Now that Cooper has rejected the Section

113(f)(1) claim, the prevailing law in each of those circuits,

unless and until revisited by the court of appeals, is that Section

107(a) does not provide a cause of action. This ongoing

uncertainty and circuit-by-circuit litigation are both detrimental

to CERCLA implementation and burdensome to the judicial

system and litigants alike.

Worse yet, under the decision below, the prevailing law of

CERCLA has been tured upside down. While prior to Cooper

PRPs like petitioners could have brought cases like this one

against other PRPs, the Third Circuit has held (contrary to the

Second and Eighth Circuits) that Cooper does not justify

reconsideration of its Section 107(a) precedents. Under the Third

Circuit’s decision, the right of action that existed before Cooper

now has simply evaporated. Although Cooper of course rejected

the Section 113(f)(1) claim, that is all that it rejected. If the

consequence of Cuoper is that there is no such right of action at

all — not only under Section 113(f)(1) but under Section 107(a)

and federal common law as well — it is this Court that should

say so. And if that is to be the law going forward, it is critical

that companies, the executive branch, and Congress know it as

soon as possible.

Finally, this case provides the appropriate vehicle for

the Court’s resolution of the issue. Because the Third Circuit's

decision is the latest in the post-Cooper line of rulings and gives

rise to the conflict, it represents the most suitable case for the

Court to review and will serve to sharpen the Court’s

consideration of the question presented. Furthermore, because

only this case presents the question whether a cause of action

exists under federal common law as well as under Section

107(a), it provides the full range of issues for decision by this

Court; disposition of the question presented in Consolidated

Edison and in Atlantic Research would leave the federal-

common-law issue unresolved.

Accordingly, this petition for a writ of certiorari should be

granted and the judgment of the Third Circuit reversed.

il. THE THIRD CIRCUIT ERRED IN REJECTING A

PRP’S CAUSE OF ACTION TO RECOVER AN

EQUITABLE SHARE OF CLEANUP COSTS FROM

OTHER RESPONSIBLE PARTIES.

The question in this case is whether, following Cooper, a

PRP that voluntarily undertakes a cleanup and incurs costs

without the compulsion of a Section 106 or Section 107 civil

action has no cause of action to recover an equitable share of

cleanup costs from other potentially responsible parties and

therefore must itself bear the entire cost of the cleanup. The

Third Circuit’s rejection of that cause of action is supported

neither by legal principles governing CERCLA and federal

common law nor by considerations of fairness and common

sense. The plain language of the liability provision in Section

107(a)(4)(B) and of the savings clause in Section 113(f)(1)

demonstrates the existence of this right of action. Furthermore,

this reading is confirmed by the background of the statute and

the evolution of the case law under it. Likewise, such a cause of

action is necessary to effectuate the fundamental objectives of

CERCLA. Finally, beyond the statutory right itself, federal

common law establishes a cause of action for contribution.

- 14

In Key Tronic, this Court recognized that “§ 107

unquestionably provides a cause of action for [PRPs] to seek

recovery of cleanup costs” and “authorizes [PRPs] to recover

cleanup costs from other PRPs.” 511 US. at 818; id. at 821

(Scalia, J. dissenting) (“[under] §§ 107(a)(4)(A) and (B), a [PRP]

who has incurred costs to clean up a hazardous waste site can

recover those costs from any other party liable under

CERCLA”). To be sure, the Court divided over whether this

Section 107 cause of action was explicit or implicit in CERCLA;

the majority opinion written by Justice Stevens concluded that

it was implied, while Justice Scalia’s dissent indicated that it

was express. See id. at 818 at n.11; id. at 822 (Scalia, J.,

dissenting). Notwithstanding that division in the context of the

issue of attorneys’ fees in Key Tronic, petitioners submit, for

the reasons discussed infra, that the better analysis is that Section

107(a) expressly rather than implicitly establishes the night of a

PRP to recover an equitable share of cleanup costs from other

PRPs. Indeed, the Second and Eighth Circuits have so held.?

In the end, however, whatever the correct analytical

framework, the overarching and controlling point is that a// the

Justices agreed in Key Tronic that Section 107 does provide

such a cause of action. As Justice Ginsburg recently explained,

Key Tronic rested “squarely and solely on § 107(a)(4)(B),” and

“no Justice [in Key Tronic] expressed the slightest doubt that §

107 indeed did enable a PRP to sue other covered persons [PRPs}

for reimbursement, in whole or in part, of cleanup costs the

PRP legitimately incurred,” Cooper, 543 U.S. at 172 (Ginsburg,

J., dissenting).

3. Petitioners believe that the best reading of Key Tronic is that

the majority referred to the cause of action as “implied” in the sense

that its scope and meaning had to be filled in by implication rather than

in the sense that the Court has used that term in cases such as Northwest

Airlines and Texas Industries. See pages 25-27, infra.

A. Section 107(a)(4)(B) Provides An Express Cause Of

Action. ~

1. The plain statutory language establishes the

Section 107(a) cause of action.

Cooper holds that CERCLA must be construed in

accordance with its “natural meaning.” 543 U.S. at 166; see

also Engine Mfrs. Ass'n v. S. Coast Air Quality Megmi. Dist.,

541 U.S. 246, 257 (2004); Conn. Nat'l Bank v. Germaine, 503

U.S. 249, 253-54 (1992). The plain statutory text establishes

that a PRP can recover an equitable share of cleanup costs from

other PRPs pursuant to Section 107. Indeed, as Key Tronic

- explained, Section 107(a) creates “a similar and somewhat

overlapping remedy” to the cause of action for contribution in

Section 113(f(1). 511 U.S. at 816. By its own admission, the

Third Circuit’s decision is at odds with Key Tronic: by holding

that only innocent parties can proceed under Section 107 and

that PRPs cannot sue under Section 107 even if the requirements

for a Section 113(f)(1) suit under Cooper are not met, the court

of appeals has left a gaping hole that renders Sections 107 and

113 “complementary .. . but not really ‘overlapping,’ as the

Supreme Court had suggested in Key Tronic...” App., infra,

14a.

Entitled “{I]iability,” Section 107 states that any person in

the four enumerated categories of PRPs “shall be liable for . . .

any other necessary costs of response incurred by any other

person consistent with the national contingency plan.” 42 U.S.C.

§ 9607(a)(4)(B) (emphasis added). The language of Section

107(a)(4)(B) is expansive. It refers, without limitation, to “any

other person.” Under Section 101 (21), “person” is broadly

defined: “[t]he term ‘person’ means an individual, firm,

corporation, association, partnership, consortium, joint venture,

commercial entity, United States Government, State,

municipality, commission, political subdivision of a State, or

any interstate body.” 42 U.S.C. § 9601 (21). Accordingly, under

Section 107(a)(4)(B), a PRP is liable to “any other person,”

including another PRP, for an equitable share of cleanup costs.

See Key Tronic, 511 U.S. at 818 (Section 107 “authorizes private

parties to recover cleanup costs from other PRPs”); id. at 821-

22 & n.* (Scalia, J., dissenting) (under Section 107(a), “a party

who has incurred costs to cleanup a hazardous waste site can

recover those costs from any other party liable under

CERCLA”); Cooper, 543 U.S. at 172 (Ginsburg, J., dissenting);

Consol. Edison, 423 F.3d at 99-100; Atl. Research, 459 F.3d at

834-35; App., infra, 72a (Sloviter, J., dissenting).

The Third Circuit and other courts have construed Section

107(a)(4)(B) to be limited to “innocent parties”; under this

reading, a Section 107(a) cause of action is available only to

entities that have no responsibility for the contamination or

cleanup, thus excluding PRPs. See App., infra, 26a. However,

Section 107(a) contains no such restrictive language and the

term “innocent party” appears nowhere in the statute. Rather,

as explained above, PRPs fit comfortably within Section

107(a)(4)(B)’s broad sweep. See Key Tronic, 511 U.S. at 818

(emphasis added) (Section 107 “authorizes private parties to

recover cleanup costs from other PRPs’’); see also id. at 821

(Scalia, J., dissenting) (under Section 107(a), “a party who has

incurred costs to cleanup a hazardous waste site can recover

those costs from any other party liable under CERCLA”)

(emphasis added); Consol. Edison, 423 F.3d at 99-100; Az/.

Research, 459 F.3d at 834-35.

In addition to the text of Section 107(a)(4)(B), the Third

Circuit's interpretation of the savings clause in Section 1 13(f)( 1)

is irreconcilable with Cooper. The savings clause provides:

“Nothing in this subsection shal] diminish the right of any person

to bring an action for contribution in the absence of a civil action

under section [106] of this title or section [107] of this title.”

42 U.S.C. § 9613 (f)(1). The gravamen of the decision below is

that Section 113(f) provides the sole and exclusive means for a

PRP to recover an equitable share of cleanup costs from other

PRPs. That reading is diametrically opposed to the text of the

savings clause. As this Court held with unmistakable clarity in

Cooper, the savings clause in Section 113(f)(1) “rebuis any

presumption that the express right of contribution . . . [in Section

113(f)(1)] is the exclusive cause of action for contribution

available to a PRP.” 543 U.S. at 166-67 (emphasis added); see

also Key Tronic, 511 U.S. at 816 (Sections 1 13(f)(1) and 107(a)

provide “similar and somewhat overlapping remed[ies]”).

Furthermore, the Third Circuit's interpretation renders the

savings clause a nullity. Under its decision, the savings clause

does nothing more than “merely clarif[y]” that the cause of action

provided in Section 113(f)(3) for contribution suits after

settlements is not displaced by, or subject to the same

preconditions found in, the separate contribution, action in

Section 113(f)(1). App., infra, 35a. With all due respect, it is

impossible to believe that, even absent the savings clause, the

separate, distinct, and contemporaneously enacted provisions

in two subsections of Section 1 13(f) would have been misread

and collapsed in the manner that concerned the Third Circuit. If

Congress had meant the savings clause in Section | 13(f)(1) to

apply only to the cause of action in Section 113(f})(3) — two

subsections of the same section that were enacted at the same

time — it surely would have said so. The court’s construction

improperly trivializes the important office of the savings clause.

Finally, prior to Cooper, courts in rejecting a Section 107(a)

suit by a PRP against other PRPs expressed concern that such a

cause of action would duplicate the contribution action in

Section | 13(f)(1) and allow a PRP to elect to sue under Section

107(a) rather than under Section 113(f)({1), thereby

circumventing the statutory preconditions on the Section

113(f)(1) right. See Atl. Research, 459 F.3d at 832-33. Cooper,

however, eliminates any such concern. After Cooper, a PRP

has no ability to choose to proceed under one or the other of

those provisions; rather, Sections 107(a) and 113(f)(1) “embodly

different] mechanism{s] for cost recovery available to persons

in different procedural circumstances.” Consol. Edison, 423 F.3d

at 99: see also Atl. Research, 459 F.3d at 833-34. Thus, for a

PRP that has been subject to a civil action under Sections 106

or 107, the appropriate contribution claim arises under Section

113(f)(1) as Cooper held; for a PRP in other Circumstances,

Section 107(a)(4)(B) provides the cause of action; but in neither

event is there duplication or circumvention of the Statutory

scheme as construed in Cooper.

2. The background, history, and purpose of

CERCLA demonstrate the existence of the

Section 107(a) cause of action.

The Third Circuit’s decision, in rejecting a Section 107(a)

cause of action, frustrates the congressional understanding in

CERCLA. The background, history, and purpose of CERCLA

confirm what the plain statutory language shows: that Section

107(a) provides a cause of action for a PRP to recover an

equitable share of cleanup costs from other PRPs.

a. The Third Circuit’s ruling turns upside down the

congressional intent in amending CERCLA in 1986 by enacting

SARA. As explained above (see pages 4-5, supra), SARA

included both the express contribution provision and the savings

clause in Section 113(f)(1). Congress made explicit in the

savings Clause that, by adopting the express provision for

contribution in specified circumstances in Section 113(f)(1), it

did not intend to “diminish the right of any person to bring an

action for contribution in the absence of a civil action under

[Sections 106 or 107].” 42 U.S.C. § 9613(f)(1). Accordingly, in

enacting Section | 13(f)(1), Congress did not abrogate any right

of contribution that existed before SARA in circumstances where

Section 113(f)({1) would be inapplicable because, under Cooper,

of the absence of a Section 106 or 107 civil action. In this way,

it expressly preserved the two causes of action — and in

particular the cause of action under Section 107(a)(4)(B) —

that predated SARA.

As previously discussed (see pages 3-4, supra), and as the

Third Circuit recognized, the case law prior to the 1986 SARA

amendments “allowed private parties, including PRPs, to seek

contribution for costs incurred in forced or voluntary cleanups.”

App., infra, 9a; see also Cooper, 543 U.S. at 161-62 (pre-SARA

cases held that “a private party that had incurred response costs,

but that had done so voluntarily and was not itself subject to

suit, had a cause of action for cost recovery against other PRPs”).

Thus, pre-SARA law would have allowed petitioners to bring

this action against the United States as a PRP.

The effect of the Third Circuit’s decision, therefore, is to

attribute to Congress in 1986 the intent to cut back on

contribution rights by eliminating the existing cause of action

between PRPs in cases of voluntary cleanups. As thc court of

appeals was forced to concede, however, there is nothing in the

legislative history that so much as hints at such a retrogressive

intent. App., infra, 47a. In fact, the savings clause is expressly

to the contrary. Furthermore, the tegislative history underscores

that Congress in enacting Section 113(f)(1) did not contemplate

the restriction or elimination of contribution rights under pre-

SAP.A law. See, ¢.g., H.-R. Rep. No. 99-253 (I) at 79 (1985),

reprinied in 1986 US.C.C.A.N. 2835, 2861 (one of the principal

goals was to “clarif[y] and confirm } the right of a person held

jointly and severely liable . - - under CERCLA to seek

contribution from other potentially liable parties, when the

person believes that it has assumed a share of the clean-up or

cost that may be greater than its equitable share”); Oversight

Hearings Before the House Subcomm. on Admin. Law and

Governmental Relations, Comm. on Judiciary, 99th Cong. 51

(1985) (“[t]he fairness of a joint and several scheme depends

upon the availability of contribution”). Thus, in enacting Section

113(f)(1), Congress did not intend “to eliminate the preexisting

right to contribution.” Aé/. Research, 459 F.3d at 836.

b. The Third Circuit’s decision also would defeat rather

than advance the fundamental congressional purposes in

CERCLA. As this Court and the lower courts consistently have

recognized, the statute has two principal objectives: (1) to

promote the prompt and voluntary cleanup of hazardous waste

sites; and (2) to ensure that the parties responsible for the

pollution bear the cost of the cleanup. United States v. Bestfoods,

524 U.S. 51, 56 (1998) (“/eJveryone who is potentially

responsible for hazardous-waste contamination may be forced

to contribute to the costs of cleanup”) (quoting Pennsylvania v,

Union Gas Co., 491 U.S. at 21 (1989) (emphasis in original));

Consol. Edison, 423 F.3d at 94 ([“t]wo of [CERCLA’s] primary

goals include ‘encourag[ing] the timely cleanup of hazardous

waste sites,” and ‘plac[ing] the cost of that [cleanup] on those

responsible”); Ail. Research, 459 F.3d at 837 (“CERCLA’s goal

of encouraging prompt and voluntary cleanup of contaminated

sites”).

The Third Circuit’s decision impairs both policies. First,

by precluding contribution, it will discourage PRPs from

undertaking prompt cleanups on a voluntary basis. See Consol.

Edison, 423 F.3d at 100 (elimination of Section 107(a) action

would “impermissibly discourag{e] voluntary cleanup” and

“would create a perverse incentive for PRPs to wait until they

are sued before incurring response costs”); Au/. Research, 459

F.3d at 837. Indeed, the district court below (whose judgment

the Third Circuit affirmed) explicitly recognized that the

rejection of a Section 107(a) action “might very well hamper

some PRP efforts at removal and remediation of hazard[ous]

waste sites.” App., infra, 103a.

Second, the Third Circuit’s decision violates the “polluter

pays” principle. This case well illustrates that problem. Here,

although the United States has contributed to the contamination

at the sites at issue, petitioners bear 100% of the cost of the

cleanup and the government avoids liability altogether.

Both the Second and Eighth Circuits recognized these

inherent defects in the approach adopted by the Third Circuit.

They therefore upheld a Section 107(a) action to promote rather

than defeat the purposes of Congress. See Consol. Edison, 423

F.3d at 100; Schaefer, 457 F.3d at 201; Atl. Research, 459 F.3d

at 837.

To justify its result, the Third Circuit sought to draw a bright

line between voluntary cleanups and those pursuant to 4

settlement between the PRP and EPA. See App., infra, 46a-57a.

The court emphasized the advantages of cleanups that were

supervised by the EPA and pointed to two CERCLA provisions

designed to encourage PRPs to enter into settlements. See id. at

35a. It isa far cry, however from concluding that, by encouraging

settlements for cleanups, Congress meant to discourage or

eliminate voluntary cleanups. See id. at 73a (Sloviter, J.,

dissenting).

There is nothing in the statute or legislative history that

excludes voluntary cleanups from contribution actions between

PRPs. On the contrary, while, as the Third Circuit pointed out,

Congress recognized the desirability- of settlements, it also

referred to voluntary cleanups. See App., infra, 72a-73a (Sloviter,

J., dissenting); H. R. Rer. No. 96-1016(1), 96 Cong., 2nd Sess.

at 16-17 (1980), reprinted in 1980 U.S.C.C.A.N. 6119, 6120

(1980) (emphasis added) (CERCLA “would also establish a

federal cause of action . . . to induce such persons voluntarily to

pursue appropriate environmental response actions”), 131 Conc.

Rec. 24,725, 24,730 (1985) (statement of Sen. Domenic)

(emphasis added) (“The goal of CERCLA is to achieve effective

and expedited cleanup of as many uncontrolled hazardous waste

facilities as possible. One important component of the realistic

strategy must be the encouragement of voluntary cleanup actions

or funding without having the President rely on the panoply of

administrative and judicial tools available”); 126 Conc. REC.

26,388 (1980) (remarks of Rep. Florio) (emphasis added)

(CERCLA provides “a strong incentive both for prevention of

releases and voluntary cleanup of releases by responsible

parties’’).

Both this Court and other courts previously have recognized

that the statute contemplates and encourages voluntary cleanups.

See Union Gas, 491 US. at 21-22 (plurality opinion of Brennan,

J.) (emphasis added) (Congress “allow{ed] private parties who

voluntarily cleaned up hazardous-waste sites to recover a

proportionate amount of the costs of cleanup from other

{[PRPs]”), overruled on other grounds, Seminole Tribe of Fla.

v. Florida, 517 U.S. 44 (1 996); Fisher Dev. Co. v. Boise Cascade

Corp., 37 F.3d 104, 112 n2 (3d Cir. 1994) (referring to

Congress’s “goal of encouraging voluntary cleanup efforts” and

citing to both Section 107(a) and Section 113(f)(1)); Add.

Research, 459 F.3d at 837.

The Third Circuit thought it significant that it had “not found

evidence in the legislative history that Congress contemplated

th[{e statute} would extend a contribution right to PRPs engaged

in entirely voluntary cleanups.” App., infra, 40a. The issue,

however, is not whether Congress intended to “extend” this

cause of action but rather whether it sought to eliminate this

existing right. Moreover, given the other indications of

congressional intent in the text, background, and purposes of

CERCLA, it was unnecessary for Congress to state this principle

in haec verba in the legislative history. See Harrison v. PPG

Indus., Inc., 446 U.S. 578, 592 (1980) (Congress is not required

to state in legislative history that which is otherwise clear);

Morales yv. Trans World Airlines, Inc., 504 US. 374, 386 n.2

(1992) (same); Whitfield v. United States, 543 U.S. 209, 215-

16 (2005) (rejecting interpretation based on argument that “the

history contains no indication .. . [of what] Congress meant”).

What is more, the Third Circuit overlooked the limitations

On settlements. For example, settlements are not cost-free. They

take time, which could delay investigatory or remedial activities

and impede cleanup actions that would be more effective if

implemented immediately. Likewise, they take resources to

negotiate, including the time of both company representatives

and government officials. Indeed, federal and state governments

often devote their personnel to Pursuing investigations,

enforcement, and cleanups rather than to negotiating settlements;

if voluntary cleanups are discouraged in favor of settlements,

the result would be that far fewer sites would-be cleaned up. In

short, these transaction costs can discourage negotiations, hinder

the clean-up process, and consume resources that are better spent

on the cleanups themselves.

In addition, even if cleanups pursuant to negotiated

settlements are desirable, such settlements are not always

obtainable for a variety of reasons. It is impossible to believe

__ and the Third Circuit cited no support in the text, history, or

purposes of CERCLA — that Congress would have intended to

require PRPs in that situation to forgo voluntary cleanups, do

nothing, and await administrative enforcement or judicial

litigation. Indeed, for Congress to prefer that course would verge

on the absurd.

The Third Circuit also stated that EPA disfavors voluntary

cleanups, but that is simply not the case. EPA has often lauded

voluntary cleanup efforts and even expressed concern that

Cooper might reduce the incentive for voluntary cleanups.

App., infra, 73a-74a (Sloviter, J., dissenting). In fact, in 1984

— immediately preceding the drafting and consideration of the

1986 SARA amendments — EPA stated that it was “preferable

for private parties to conduct cleanups themselves” and therefore

endeavored to “remove or minimize if possible the impediments

to voluntary cleanup.” Lee M. Thomas & F. Henry Habicht II,

U.S. EPA, Interim CERCLA Settlement Policy (OSWER

Directive No. 9835.0) (1984); see also 48 Fed. Reg. 40,658,

40,661 (Sept. 8, 1983) (referring to “[vJoluntary or negotiated

cleanup” and stating that EPA does “not intend{ }] to preclude

responsible parties from taking voluntary response actions

outside of a consent agreement”); 55 Fed. Reg. 8666, 8792-

8793 (Mar. 8, 1990) (“EPA believes it is important to encourage

private parties to perform voluntary cleanups of sites and to

remove unnecessary obstacles to their ability to recover their

costs from the parties that are liable for the contamination”).

Moreover, even if EPA held the views ascribed to it by the Third

Circuit, there is no indication that those views were known to,

let alone accepted by, Congress — as the Third Circuit

acknowledged. See App., infra, 54a.

24 :

The Third Circuit estimated that approximately 70% of all

Cleanups are undertaken voluntarily. App., infra, 36a-37a.

Furthermore, as stated by the Superfund Settlements Project

and the American Chemistry Council as amici curiae below,

the Third Circuit’s decision would “discourage and delay the

cleanup of contaminated sites around the country” — cleanups

that are “heavily dependent on voluntary and cooperative action

by the private sector.” Am. Br. 3-4. These deleterious

consequences, affecting critically important Cleanup efforts at

innumerable sites, should not be borne based on the Third

Circuit’s decision. -

3. The Third Circuit’s rejection of a Section

107(a) cause of action puts the United States

in a preferred position over other PRPs and

therefore is inconsistent with congressional

intent.

The Third Circuit’s decision favors the United States over

other PRPs. App., infra, 28a n.18, 56a-57a n.31. In this way, it

departs from a central purpose of CERCLA to treat all PRPs,

including the government, in the same way. The Eighth Circuit

squarely rejected that outcome. See Ai/. Research, 459 F.3d at

837.

Section 120(a)(1) of CERCLA expressly provides that the

United States is to be liable “in the same manner and to the

same extent. . . as any nongovernmental entity, including liability

under [Section 107].” 42 U.S.C. § 9620(a)(1). See also Union

Gas, 491 U.S. at 10; FMC Corp. v. U.S. Dep t of Commerce, 29

F.3d 833, 840-41 (3d Cir. 1994) (en banc). However, the United

States occupies a unique Position: it is both an enforcer of

environmental laws (usually through EPA) and a PRP (usually

one of the military services) liable under the environmental laws.

In fact, EPA has long been prohibited from proceeding under

CERCLA against other federal agencies (see Exec. Order No.

12,580, § 4(a), 52 Fed. Reg. 2923 (Jan. 23, 1987)), and in

practice the Department of Justice does not permit EPA to sue

or issue cleanup orders to other federal agencies. The Third

Circuit’s decision, by precluding a PRP’s Section 107 action

against the United States in the circumstances presented here,

means that the government can avoid cleanup liability for

CERCLA violations simply by choosing not to enforce the law

against itself — exactly contrary to the congressional purpose in

Section 120(a) to put the United States on an equal ‘liability

footing with private PRPs. This result is particularly problematic

in light of the policy of Section 120(a) because the United States,

unlike private PRPs, cannot be sued under state law in state

courts; the result of the decision below, therefore, is to remove

the only available forum in which to hold the government

accountable, thereby enabling it to escape liability altogether.

In sum, the Third Circuit’s decision allows the United States

to avoid its fair share of cleanup costs under CERCLA — a

liability that the government itself has described as “massive.”

FMC, 29 F.3d at 846. Such a result is contrary to Congress’s

intent in Section 120(a) and, as the Eighth Circuit observed, is

an “absurd and unjust outcome” that “would eviscerate

CERCLA whenever the government, itself, was partially

responsible for a site’s contamination.” Ai]. Research, 459 F.3d

at 837.

B. Alternatively, An Implied Cause Of Action Exists

Under Section 107(a).

For the foregoing reasons, petitioners submit that Section

107(a) provides an express cause of action. In the event,

however, the Court concludes otherwise, an implied cause of

action should, in the alternative, be held to exist under Section

107(a). As the Court recognized in Cooper, such a right is not

lightly to be implied. See 543 U.S. at 162, 170-71; but see

Musick, Peeler & Garrett v. Employees Ins. of Wausau, 508

U.S. 286 (1993) (implying federal right to contribution under

securities law). But, as demonstrated infra, the standard for an

implied cause of action is satisfied here. See Key Tronic, 511

U.S. at 816, 818 n.11; Cooper, 543 U.S. at 172-74 (Ginsburg,

J., dissenting); Ail. Research, 459 F.3d at 835-36 (upholding, in

the alternative, an implied cause of action under Section 107).

In determining whether a federal statute impliedly creates

a cause of action, the “ultimate question” is “whether Congress

intended to create the private remedy . . . that the plaintiff seeks

to invoke.” Northwest Airlines, Inc. v. Transp. Workers Union

of Am., 451 U.S. at 91 (1981). This issue “is one of statutory

construction,” and “[f]actors relevant to this inquiry are the

language of the statute itself, its legislative history, the underlying

purpose and structure of the statutory scheme, and the likelihood

that Congress intended to supersede or to supplement existing

state remedies.” /d.

Here, all of these factors support an implied cause of action.

As previously explained, the language of Section 107(a)(4)(B)

and the savings clause in Section 1 13(f)(1) clearly indicate that

a PRP, even though not subject to a civil action under Sections

106 or 107 and therefore not entitled to sue under Section

1 13(f)(1) as construed in Cooper, should be entitled to recover

an equitable share of cleanup costs from other PRPs. See pages

15-18, supra. Likewise, the legislative history recognizes the

existence of such a nght of action. See page 19, supra. Similarly,

this right is essential to promote CERCLA’s two fundamental

objectives of encouraging the prompt and voluntary cleanup of

contaminated sites and imposing the costs of the cleanup on all

parties responsible for the contamination. See pages 19-20,

supra. Finally, CERCLA unquestionably constitutes (as its title

indicates) a comprehensive federal scheme that is independent

of state law. See Key Tronic, 511 U.S. at 814.

For these reasons, this case is entirely different from

Northwest Airlines and other decisions where the Court rejected

an implied cause of action. See Cooper, 543 U.S. at 174 n.2

(Ginsburg, J., dissenting) (“[a] determination suitable in one

statutory context does not necessarily carry over to a different

statutory setting”). Indeed, prior to the passage of SARA in 1986,

“numerous cases . . . interpreted . . . § 9607 . . . to impliedly

authorize such a cause of action.” Key Tronic, 511 U.S. at 816;

see also Cooper, 543 U.S. at 162; Atl. Research, 459 F.3d at

831-32; pages 3-4, supra. Furthermore, because CERCLA

plainly embodies a scheme to reallocate cleanup costs among

responsible parties, Section 107 was “enacted for the special

benefit of a class [PRPs] of which [the plaintiff] is a member.”

Northwest Airlines, 451 U.S. at 92.

C. InThe Alternative, A Cause Of Action Arises Under

Federal Common Law.

In the alternative to Section 107(a), a cause of action exists

under federal common law. Federal common law arises in

“essentially two categories: those in which a federal rule of

decision is ‘necessary to protect uniquely federal interests,” . . .

and those in which Congress has given the courts the power to

develop substantive law.” Texas Indus., Inc. v. Radcliff

Materials, 451 U.S. at 640 (1981) (citations omitted). Both

circumstances are present here. See Atl. Research, 459 F.3d at

836 n.9 (reserving the issue).

First, the cause of action at issue here involves uniquely

federal interests. CERCLA constitutes a comprehensive and

uniform federal scheme entirely separate from state law. See

Key Tronic, 511 US. at 814; Atl. Research, 459 F.3d at 830

(“CERCLA effectively transformed centuries of real property

and tort liability law”); 126 Conc. Rec. H11,787 (statement of

Rep. Florio) (Dec. 3, 1980) (referring to “the development ofa

uniform rule of [federal] law”). The paramount federal interest

in a comprehensive and uniform system for cleaning up

contaminated sites, including the critical question of contribution

that directly affects the achievement of Congress’s objectives

(see pages 19-20, supra), supports application of federal

common law. See, e.g., Boyle v. United Techs. Corp., 487 U.S.

500, 504, 508 (1988); Jilinois v. City of Milwaukee, 406 U:S.

91, 105 0.6 (1972). In fact, prior to SARA, federal courts upheld

a PRP’s right to contribution against other PRPs as a matter of

federal common law. See Cooper, 543 U.S. at 161-62; All.

Research, 459 F.3d at 831; pages 3-4, 26, supra.

Furthermore, this case directly affects the rights and

obligations of the United States as a PRP. In particular, the

government is a PRP that could be sued, as in fact it was here,

to bear its fair share of the costs of cleanup. See also pages 3, 24-

25, supra (discussing Section 120(a)’s waiver of the sovereign

immunity of the United States). This, too, is a well-recognized

circumstance for federal common law. See, e.g., Boyle, 487 U.S.

at 504-06; Texas Indus., 451 U.S. at 640-41 n.12.

Second, Congress intended that CERCLA issues be

governed by federal law and that the courts would develop

- federal common law in order to implement CERCLA. See, é.g.,

Texas Indus., 451 U.S. at 642-46. To begin with, Congress vested

exclusive jurisdiction in the federal courts to adjudicate all

disputes arising under CERCLA. See 42 U'S.C. § 9613(b).

Congress also directed that contribution claims under Section

113()(1) “shall be brought in accordance with .. . the Federal

Rules of Civil Procedure and shall be governed by Federal law.”

42 U.S.C. § 9613(f)(1) (emphasis added). Since Section

113(f)(1) does not address many of the legal rules applicable to

such claims, Congress Clearly contemplated a significant role

for the courts in developing the substantive law of contribution,

and the same role is appropriate in the analogous circumstances

of this case.

CERCLA’ legislative history evidences Congress’s intent

that the governing legal rules will be shaped by “traditional and

evolving principles of common law.” 126 Conc. Rec. 31,965

(1980) (statement of Rep. Florio); see also 126 Conc. Rec.

H11,787 (Dec. 3, 1980) (statement of Rep. Florio) (“[t]o

encourage the development of a uniform rule of law, .. . the bill

will encourage the further development of federal common law

in this area”). For example, in omitting explicit provisions from

the early versions of CERCLA that would have mandated both

joint and several liability and contribution, Congress specifically

left the development of these areas to the courts under

“traditional and evolving principles of common law.” See United

States v. USX Corp., 68 F.3d 811,824 (3d Cir. 1995). Responding

to the congressional invitation to create federal common law,

the courts imposed joint and several liability in actions under

Section 107. In later enacting Section 113 in SARA, Congress

acknowledged that the courts had counterbalanced the harshness

of that joint and several liability that had been judicially created

by recognizing a “concomitant right of contribution” that sprang

from the very same common-law roots. H.R. Rep. No. 99-253(1)

at 79, reprinted in 1986 U.S.C.C.A.N. at 2861. And,

significantly, the legislative history of SARA makes clear that,

even after the first sentence of Section 113(f)(1) provided an

express statutory right to contribution, Congress intended for

the courts to continue to develop common-law principles to

govern CERCLA contribution. See, e.g., S. Rep. No. 99-11, at

45 (1985) (after SARA, “{a]s with joint and several liability,

contribution claims will be resolved pursuant to Federal

common law”); H.R. Rep. No. 99-253(I), at 80 (1985), reprinted

in 1986 U.S.C.C.AN. at 2862 (same); H.R. Rep. No. 99-253(II1),

These circumstances readily distinguish cases such as

Northwest Airlines and Texas Industries in which the Court

declined to apply federal common law. In neither of those cases,

unlike in the present case, was there any uniquely federal interest

in a common-law right of contribution, or any indication that

Congress intended the courts to develop federal common law,

or any basis to conclude that such a cause of action was necessary

to further the congressional purposes underlying the statute or

protect a group intended to be benefited by the provision at

issue. By contrast, CERCLA amply justifies a federal common-

law cause of action for a PRP that cannot sue under Section

113(f)(1) to recover an equitable share of the cleanup costs from

other responsible parties.

<n ee 8 ee ee ee ee ee een

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Joun McGanren Mark I. Levy

Parton Boccs LLP Counsel of Record

One Riverfront Plaza Kivpatrick Stockton LLP

6th Floor 607 14th Street, N. W.

Newark, NJ 07102 Suite 900

(973) 848-5610 Washington, DC 20005

Counsel for Petitioners (202) 824-1437

E. 1. du Pont de Nemours Wititam H. Hyarr, Jr.

and Company, Sporting Goods Emuy L. Won

Properties, Inc.,and Conoco —_ Kirkpatrick & LOCKHART

Phillips Company, successor in Nicuotson Gram LLP

interest to Conoco, Inc. One Newark Center

10th Floor

Newark, NJ 07102

(973) 848-4000

Counsel for Petitioners

E. I. du Pont de Nemours

and Company and Sporting

Goods Properties, Inc.

November 21, 2006

APPENDIX

APPENDIX A

OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT FILED

AUGUST 29, 2006

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-2096

E.1. DUPONT DE NEMOURS AND COMPANY;

CONOCO, INC.; SPORTING GOODS PROPERTIES, INC.,

Appellants

UNITED STATES OF AMERICA; UNITED STATES

DEPARTMENT OF COMMERCE; UNITED STATES

DEPARTMENT OF DEFENSE; UNITED STATES

DEPARTMENT OF THE ARMY; UNITED STATES

DEPARTMENT OF ENERGY; UNITED STATES

DEPARTMENT OF THE INTERIOR; UNITED STATES

DEPARTMENT OF THE NAVY.

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 97-cv-00497

District Judge: Honorable William J. Martini

Argued April 17, 2006

Appendix A

Before SLOVITER, AMBRO and MICHEL,” Circuit Judges.

(filed: August 29, 2006)

OPINION OF THE COURT

AMBRO, Circuit Judge.

Appellants in this case are owners and operators of

industrial facilities located throughout the United States that

are contaminated with hazardous waste. They admit they are

responsible for some of the contamination at these sites

(which they cleaned up voluntarily), but allege the United

States Government is also responsible for some part. They

thus seek a ruling that the Government must contribute to

them a share of the cleanup costs under the Comprehensive

Environmental Response, Compensation, and Liability Act

(“CERCLA”), 42 U.S.C. § 9601 et seg. Two of our

precedents- New Castle County v. Halliburton NUS Corp.,

[11 F.3d 1116 (3d Cir.1997), and Matter of Reading Co..,

115 F.3d 1111 (3d Cir.1997)—timit their claim. New Castle

County limits potentially responsible Parties to an express

cause of action for contribution under CERCLA § 113, _

42 U.S.C. § 9613 (thus barring them from another type of

claim called “cost recovery” under CERCLA § 107(a),

42 U.S.C. § 9607(a)).' Reading held that § 113 also replaced

* Honorable Paul R. Michel, Chief Judge, United States Court

of Appeals for the Federal Circuit, sitting by designation.

1. Because almost ail relevant cases refer to the sections of

CERCLA rather than the codification of those sections in the United

States Code, we generally follow suit, except for the initial reference

to a new section of the statute.

Appendix A

any implied or common law causes of action for contribution

by potentially responsible parties with an exclusive statutory

remedy. ,

In Cooper Industries, Inc. v. Aviall Services, Inc., 543

US. 157, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004), the

Supreme Court held that § 113 by its express terms is not

available to parties that clean up sites voluntarily. Appellants

now ask that we decide whether, in light of Cooper Industries,

our decisions in New Castle County and Reading limiting

contribution to § 113 should be reconsidered to allow them

to clean up their sites voluntarily and still share the costs

with others. We conclude that Cooper Industries does not

give us cause to reconsider our precedents here. Hence,

because appellants are themselves partly responsible for the

contamination at the subject sites, and their cleanups were

voluntary, they may not seek contribution from other

potentially responsible parties (including the Government).

I. Legal Framework

Before considering the factual background and procedural

history of this case, it is necessary first to understand the

applicable legal framework. In 1980, Congress enacted

CERCLA to remedy the “serious environmental and health

risks posed by pollution.” United States v. Bestfoods, 524

U.S. 51, 55, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998).

CERCLA is a broad remedial statute that “grants the President

_.. power to command government agencies and private

parties to clean up hazardous waste sites,” Key Tronic Corp.

v. United States, 511 U.S. 809, 814, 114 S.Ct. 1960, 128

Appendix A

L.Ed.2d 797 (1994), and provides that “everyone who is

potentially responsible for hazardous-waste contamination

may be forced to contribute to the costs of cleanup,”

Bestfoods, 524 U.S. at 56 n. 1, 118 S.Ct. 1876 (emphasis

and internal quotation marks omitted); see Morton Int ‘1, Inc.

v. A.E. Staley Mfg. Co., 343 F.3d 669, 676 (3d Cir.2003)

(noting that “[t]wo of the main purposes of CERCLA are

prompt cleanup of hazardous waste sites and impusition of

all cleanup costs on the responsible party” (internal quotation

marks omitted)). Unfortunately, “CERCLA is not a paradigm

of clarity or precision [due to] inartful drafting and numerous

ambiguities attributable to its precipitous passage.” Artesian

Water Co. v. Gov't of New Castle County, 851 F.2d 643, 648

(3d Cir.1988); see also Exxon Corp. v. Hunt, 475 U.S. 355,

363, 106 S.Ct. 1103, 89 L.Ed.2d 364 (1986) (noting that many

CERCLA provisions are “not ... model[s] of legislative

draftsmanship,” and are “at best inartful and at worst

redundant”). As one court has noted, “wading through

CERCLA’s morass of statutory provisions can often seem as

daunting as cleaning up one of the sites the statute is designed

to cover.” CadleRock Props. Joint Venture, L.P. v. Schilberg,

No. 3:01CV896, 2005 WL 1683494, at *5 (D.Conn. July 19,

2005).

This case requires us to dive head-first into a particularly

convoluted area of the law: apportionment of cleanup costs

among potentially responsible parties (“PRPs”).? See Artesian

2. “Potentially responsible party” and “PRP” are not used in

CERCLA, but rather are terms of art used by courts and the federal

Environmental Protection Agency (“EPA”) to refer to parties that

potentially bear some liability for the contamination of a site.

(Cont'd)

Appendix A

Water, 851 F.2d at 648 (noting that CERCLA’s

“difficult[ies][are] particularly apparent in the response costs

area”). Several sections of CERCLA are relevant to this issue.

A. Sections 106 and 107

Under CERCLA § 106(a), 42 U.S.C. § 9606(a) the

United States may take action to “secure such relief as may

be necessary to abate” a “substantial endangerment to the

public health or welfare or the environment because of an

actual or threatened release of a hazardous substance from a

facility.” CERCLA § 107(a), 42 U.S.C. § 9607(a), defines

“covered persons” who are liable for these and other costs

as:

(1) the owner and operator of a vessel or a facility,

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

hazardous substance owned or operated any

facility at which such hazardous substances were

disposed of,

(Cont'd)

See, e.g., New Castle County, 111 F.3d at 1120 n. 2; see also United

States v. El. DuPont de Nemours & Co., Inc., 432 F.3d 161, 182-83

(3d Cir.2005) ( en banc ) (Rendell, J., dissenting) (citing EPA policy

manuals). But see Consol. Edison Co. of N.Y. v. UGI Utils., Inc.,

423 F.3d 90, 97 n. 8 (2d Cir.2005) (criticizing the use of “ ‘potentially

responsible person’ and ‘PRP’ ” because they “do not appear

anywhere in the text of . . . CERCLA” and are “vague and imprecise,”

and relying instead on an “alternative designation-a party that, if

sued, would be held liable . . .”).

Appendix A

(3) any 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, and

(4) any person who accepts or accepted any

hazardous substances for transport to disposal or

treatment facilities, incineration vessels or sites

selected by such person, from which there is a

release, or a threatened release which causes the

incurrence of response costs, of a hazardous

substance. . . .

CERCLA § 107(a)(1)-(4). These covered persons “shall be

liable for’:

(A) all costs of removal or remedial action

incurred by the United States Government or a

State or an Indian tribe, not inconsistent with the

[N]ational [CJontingency [P}lan;?

(B) any other necessary costs of response incurred

by any other person consistent with the national

contingency plan;

3. The National Contingency Plan is “a set of regulations

promulgated by the EPA that establishes procedures and standards

for responding to releases of hazardous substances, pollutants and

contaminants.” New Castle County, 111 F.3d at 1120 n. 2 (citing

42 U.S.C. § 9605 and 40 C.F.R. pt. 300).

Appendix A

of natural resources, including the reasonable

costs of assessing such injury, destruction, or loss

resulting from such a release; and

(D) the costs of any health assessment or health

effects study carried out under section 9604(i) of

this title.

Id. § 107(a)(4){(A)-(D).

B. Section 113

In 1986, Congress passed the Superfund Amendments

and Reauthorization Act (“SARA”), Pub.L. No. 99-499, 100

Stat. 1613. SARA amended CERCLA to add CERCLA § 113,

42 U.S.C. § 9613, which provides, in subsection (f)(1):

Any person may seek contribution from any

other person who is liable or potentially liable

under section 9607(a) [CERCLA § 107(a) ] of this

title, during or following any civil action under

section 9606 [CERCLA § 106] of this title or

under section 9607(a) [CERCLA § 107(a) } of this

title... . In resolving contribution claims, the

court may allocate response costs among liable

parties using such equitable factors as the court

determines are appropriate. Nothing in this

subsection shall diminish the right of any person

to bring an action for contribution in the absence

of a civil action under section 9606 [CERCLA

§ 106] of this title or section 9607 [CERCLA

§ 107] of this title.

Appendix A

CERCLA § 113(f)(1). The section also provides that: (l)a

PRP that “has resolved its liability to the United States or a

State in an administrative or judicially approved settlement”

is immune from claims for contribution from other PRPs

“regarding matters addressed in the settlement,” id. §

113(f)(2); (2) a settling PRP can seek contribution from other

non-settling PRPs, id. § 113(f)(3)(B); and (3) the statute of

limitations for an action under § 107(a) is six years, while

the statute of limitations for an action under § 113(f)(1) is

only three years, id. § 113(g).

C. Section 120

CERCLA § 120(a)(1), 42 U.S.C. § 9620(a)(1), also

enacted as part of the 1986 SARA amendments, contains a

broad waiver of the United States’ sovereign immunity,

providing that “[eJach department, agency, and

instrumentality of the United States” is subject to CERCLA’s

provisions “in the same manner and to the same extent, both

procedurally and substantively, as any nongovernmental

entity, including liability under section 9607 [CERCLA

§ 107] of this title.” See FMC~Corp. v. U.S. Dep't of

Commerce, 29 F.3d 833, 840 (3d Cir.1994) ( en banc )

(“[W]hen the government engages in a.tivities that would

make a private party liable [under CEF‘CLA] if the private

party engaged in those types of activities, then the

government is also liable. This is true even if no private party

could in fact engage in those specific activities.” (emphases

omitted)).

Appendix A

D. Evolution of Liability Under CERCLA and

SARA

1. Pre-SARA Liability: Implied Contribution

Rights

Prior to the enactment of the SARA amendments in 1986,

several courts held that CERCLA exposed PRPs to joint and

several liability, and that this implied a right of contribution

among joint tortfeasors. See, e.g., United States v. S.C.

Recycling & Disposal, Inc., 653 F.Supp. 984, 994

(D.S.C.1986), vacated in part on other grounds sub nom.

United States v. Monsanto Co., 858 F.2d 160 (4th Cir. 1988);

United States v. Chem-Dyne Corp., 572 F.Supp. 802, 807-

08, 810 (S.D.Ohio 1983). Innocent parties were allowed to

recover their full response costs from any PRP under

§ 107(a)(4)(B), see Wickland Oil Terminals v. Asarco, Inc.,

792 F.2d 887, 889, 891-92 (9th Cir.1986); Walls v. Waste

Res. Corp., 761 F.2d 311, 317-18 (6th Cir.1985), and PRPs

were allowed contribution pursuant to either an implied cause

of action under § 107, see City of Phila. v. Stepan Chem.

Co., 544 F.Supp. 1135, 1142-43 (E.D.Pa.1982), or the

common-law, see United States v. New Castle County, 642

F.Supp. 1258, 1267-69 (D.Del.1986) (hereafter “ NCC”);

Colorado v. ASARCO, Inc., 608 F.Supp. 1484, 1489-90, 1491

(D.Colo.1985). As the Supreme Court has explained, these

cases allowed private parties, including PRPs, to seek

contribution for costs incurred in forced or voluntary

cleanups. See, e.g., Cooper Indus., 543 U.S. at 161-62, 125

S.Ct. 577 (citing cases); Reading, 115 F.3d at !1 18-19 (same,

and noting that, “{u)ntil the passage of SARA in 1986, the

judicially[ ] created expansion of § 107(a)(4)(B) served as

the sole means by which parties could obtain contribution”).

10a

Appendix A

2. Post-SARA Liability: Cost Recovery and

Contribution Actions

Following the passage of SARA and the inclusion of

§ 113 in CERCLA (which specifically provides contribution

rights), courts retreated from implied causes of action for

PRPs to seek contribution under § 107(a). Instead, they

interpreted §§ 107 and 113 as establishing two “clearly

distinct” remedies: “cost recovery” under § 107(a), and

“contribution” under § 113(f). See, e.g., Cooper Indus., 543

U.S. at 163 & n. 3, 125 S.Ct. 577; Morton Int'l, 343 F.3d at

675 (“Accordingly, CERCLA and SARA together create two

legal actions by which parties that have incurred costs

associated with cleanups can recover some or all of those

costs: (1) Section 107 cost recovery actions; and (2) Section

113 contribution actions.”).

In New Castle County, we determined that a cost recovery

action under § 107 is not available to a PRP.* Rather,

“a section 107 action brought for recovery of costs may be

brought only by innocent parties that have undertaken clean-

ups. An action brought by a potentially responsible person

is by necessity a section 113 action for contribution.”

New Castle County, 111 F.3d at 1120 (second emphasis

added). We based our conclusion on the understanding that,

although § 107 is not limited by its terms to innocent parties,

the section “was designed to enable innocent persons who

incur expenses cleaning up a site to recover their costs from

potentially responsible persons,” and thus “a potentially

4. The plaintiffs in New Castle County incurred response costs

pursuant to an EPA consent decree that “requir{ed] them to finance

and implement remedial action at the landfill.” 111 F.3d at 1119.

lla

Appendix A

responsible person does not experience section 107 injury

and cannot obtain section 107 relief.” Jd. at 1122.° Indeed,

because § 107 imposes strict, joint, and several liability on

all PRPs for the costs of cleanup, a PRP allowed to bring a

cost recovery action under § 107 against another PRP “could

recoup all of its expenditures regardless of fault”—which,

we noted, “strains logic.” Jd. at 1120-21 (emphasis in

original). Moreover, we concluded that it made little sense

to allow a PRP the choice of proceeding under either § 107

or § 113, because parties would always choose § 107 (which

allows recovery based on joint and several liability with a

six-year statute of limitations) over § 113 (which allows

recovery based on equitable apportionment of costs with a

three-year statute of limitations), thus “render [ing] section

113 a nullity.” /d. at 1123.°

5. Of course, § 107 also renders PRPs liable to federal and

state governments and Indian tribes, and thus those parties (acting

in their enforcement capacity, and not as PRPs) may bring § 107

cost recovery actions as well. See CERCLA § 107(a)(4)(A); New

Castle County, 111 F.3d at 1123 (noting that “section 107 historically

has been used by governments to recover costs incurred in the clean-

up of hazardous sites”).

6. Numerous other Courts of Appeals considering this issuc

have reached the same result. See, e.g., Bedford Affiliates v. Sills,

156 F.3d 416, 423-424 (2d Cir.1998); Centerior Serv. Co. v. Acme

Scrap Iron & Metal Corp., 153 F.3d 344, 349-356 (6th Cir.1998);

Pneumo Abex Corp. v. High Point, Thomasville & Denton R.R. Co.,

142 F.3d 769, 776 (4th Cir.1998); Pinal Creek Group v. Newmont

Mining Corp., 118 F.3d 1298, 1301-06 (9th Cir.1997); Redwing

Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 & n. 7

(11th Cir.1996); United States v. Colo. & E. R.R. Co., 50 F.3d 1530,

1534-1536 (10th Cir.1995); United Techs. Corp. v. Browning-Ferris

Indus., 33 F.2d 96, 98-103 (1st Cir.1994); Akzo Coatings, Inc. v.

Aigner Corp., 30 F.3d 761, 764 (7th Cir. 1994).

12a

Appendix A

In Reading. decided a few weeks after New Castle

County, we held that a PRP also may not invoke the

pre-SARA implied cause of action for contribution under

§ 107.’ Examining the legislative history of § 113, we noted

that the section was intended to “ ‘clarif[y] and confirm[ }

the right of a person held jointly and severally liable under

CERCLA to seek contribution from other potentially liable

parties, when the person believes that it has assumed a share

of the cleanup or cost that may be greater than its equitable

share under the circumstances.’ ” Reading, 115 F.3d at 1119

(quoting S.Rep. No. 99-11, at 44 (1985)) (alterations in

original); see also New Castle County, 111 F.3d at 1122

(same, quoting H.R.Rep. No. 99-253(1), at 79 (1985),

U.S.Code Cong. & Admin.News 1986 pp. 2835, 2861). Based

on the statute’s language, the legislative history, relevant case

law, and “the fact that § 113(f)(1) specifically permits an

action for contribution to be brought ‘in the absence of a

civil action under . . . section [107],’” Reading, 115 F.3d at

1120 (alterations in original),* we held that, “[i]n passing

§ 113(f), Congress acted to codify existing federal common

law and to replace the judicially crafted measure with an

express statutory remedy.” /d. at 1119.

Thus we concluded that “Congress intended § 113 to be

the sole means for seeking contribution.” /d. at 1120

7. The plaintiff in Reading incurred response costs pursuant to

an EPA cleanup order under § 106 and a corresponding suit under

§ 107. 115 F.3d at 1116. -

8. As noted below, insofar as this quoted passage from Reading

implies that § 113(f)(1) contribution is available without a preexisting

suit, the Supreme Court ruled otherwise in Cooper Industries.

13a

Appendix A

(emphasis added). It “replaced the judicially created right to

contribution under § 107(a)(4)(B)” with an express (and

exclusive) statutory remedy, id. at ///9, and also superseded

common law remedies:

[W]hen Congress expressly created a statutory

right of contribution in CERCLA § 113(f),

42 U.S.C. § 9613(f), it made that remedy a part

of an elaborate settlement scheme aimed at the

efficient resolution of environmental disputes.

Permitting independent common law remedies

would create a path around the statutory settlement

scheme, raising an obstacle to the intent of

Congress. We conclude therefore that [the

plaintiff's] common law claims are preempted by

CERCLA § 113(f).

Hd. at 1117.

In so holding, we acknowledged dicta in the Supreme

Court’s decision in Key Tronic that “ § 107 unquestionably

provides a cause of action for private parties to seek recovery

of cleanup costs,” 511 U.S. at 818, 114 S.Ct. 1960, and that

CERCLA “expressly authorizes a cause of action for

contribution in § 113 and impliedly authorizes a similar and

somewhat overlapping remedy in § 107,” id. at 816, 114 S.Ct.

1960. See Reading, 115 F.3d at 1120. We determined,

however, that the “overlap” consisted of the fact that (as New

Castle County held) an innocent private party (most likely a

landowner who purchased land that had been contaminated

by others) may bring a cost recovery action under § 107

holding a PRP jointly and severally liable for the full cost of

14a

Appendix A _

the cleanup. Reading, 115 F.3d at 1120. “The fact, however,

that a direct action might be brought under § 107(a) [by an

innocent landowner against a PRP] does not open the door

for [the] PRP to bring an action for contribution [against

other PRPs] under that same section.” /d.

In sum, after SARA introduced the § 113 contribution

provision, our Court and other courts concluded that §§ 107

and 113 were complementary (but not really “overlapping,”

as the Supreme Court had suggested in Key Tronic ) remedies.

Section 107 allowed the Government or an innocent

landowner to recover the full cost of cleanup from a PRP on

the basis of strict, joint, and several liability. The PRP could

then seek contribution from other PRPs under § 113(f)(1).

Moreover, according to the understanding at that time (as

intimated in Reading), § 113(f)(1) allowed a PRP to seek

contribution even in the absence of an action under § 106 or

§ 107; in other words, a PRP that voluntarily cleaned up a

contaminated site sua sponte could seek contribution from

other PRPs without waiting for an enforcement action, a

Government or innocent-landowner cost recovery suit, or a

settlement of liability.

3. Cooper Industries

In Cooper \ nchustries, the Supreme Court significantly

altered this understanding. The Court held that the plain

language of § 113(f)(1) ( ie., “Any person may seek

contribution from any other person who is liable or potentially

liable under section [107] of this title, during or following

any civil action under section [106] of this title or under

section [107] of this title.”) required a pre-existing civil action

15a

Appendix A

(either pending or completed) against the PRP under § 106

or § 107 before the PRP could seek contribution from other

PRPs. The Court concluded that, “if § 113(f)(1) were read to

authorize contribution actions at any time, regardless of the

existence of a § 106 or § 107(a) civil action, then Congress

need not have included the explicit ‘during or following’

condition” in § 113(f)(1). Cooper Indus., 543 U.S. at 166,

125 S.Ct. 577. Thus, a PRP may only seek contribution under

§ 113(f)(1) if it is the subject of a § 106 or § 107 civil action

or has been adjudged liable as a result of such an action.

Id.°

The Court also considered the so-called “saving clause”

of § 113(f)(1) (“Nothing in this subsection shall diminish

the right of any person to bring an action for contribution in

the absence of a civil action under section [106] of this title

or section [107] of this title.”). We relied on this sentence in

Reading when we said that § 113(f)(1) “specifically permits”

a PRP to seek contribution from other PRPs without a

pre-existing action under § 106 or § 107. 115 F.3d at 1120.

Insofar as this statement implied that § 113(f)(1) permitted

such an action, the Supreme Court disagreed, noting that

“(t]he sole function of the [saving clause] is to clarify that §

113(f)(1) does nothing to ‘diminish’ any cause(s) of action

for contribution that may exist independently of § 113(f)(1 | ig

Cooper Indus., 543 US. at 166, 125 S.Ct. 577 (emphasis

added). As the Court explained,

9. The Court also noted that, under § 113(f)(3)(B), a PRP that

has settled its liability to the federal or a state government also has a

right to seek contribution. That right, the Court noted, is “a separate

express right of contribution” independent of § 113(f)(1). Cooper

Indus., 543 U.S. at 163, 125 S.Ct. 577.

16a

Appendix A

the sentence [ i.e., the saving clause] rebuts any

presumption that the express right of contribution

provided by the enabling clause [in § 113(f)(1) ]

is the exclusive cause of action for contribution

available to a PRP. The sentence, however, does

not itself establish a cause of action; nor does it

expand § 113(f)(1) to authorize contribution

actions not brought “during or following” a § 106

or § 107(a) civil action; nor does it specify what

causes of action for contribution, if any, exist

outside § 113(f)(1). Reading the saving clause to

authorize § 113(f)(1) contribution actions not just

“during or following” a civil action, but also

before such an action, would again violate the

settled rule that we must, if possible, construe a

statute to give every word some operative effect.

Id. at 166-67, 125 S.Ct. 577.

The Court left open the questions of whether a PRP may

seek cost recovery under § 107, and whether that section

includes an implied cause of action for contribution on which

a PRP may rely independently of § 113. With respect to the

former question, the Court noted that numerous decisions

from the Courts of Appeals, including this Court’s decision

in New Castle County, had held that a § 107(a) cost recovery

action is only available to an innocent party, and concluded

that the question had not been briefed to the Supreme Court

and thus it was “more prudent to withhold judgment on these

matters.” Cooper Indus., 543 U.S. at 169-70, 125 S.Ct. 577.

While the Court did not reach the latter issue as well, it drew

the litigants’ attention to those cases in which “this Court

17a

Appendix A

has visited the subject of implied rights of contribution

before,” id. at 170-71, 125 S.Ct. 577 (citing Texas Indus.,

Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 638-47, 101

S.Ct. 2061, 68 L.Ed.2d 500 (1981), and Northwest Airlines,

Inc. v. Transp. Workers Union of Am., 451 U.S. 77, 90-99,

101 S.Ct. 1571, 67 L.Ed.2d 750 (1981)). It noted further that,

“in enacting § 113(f)(1), Congress explicitly recognized a

particular set (claims ‘during or following’ the specified civil

actions) of the contribution rights previously implied by

courts from provisions of CERCLA and the common law.”

Id. at 171, 125 S.Ct. $77."

10. In dissent, Justice Ginsburg relied heavily on the Court’s

dicta in Key Tronic that § 107 “unquestionably provides a cause of

action for private parties to seek recovery of cleanup costs,”

see Key Tronic, 511 U.S. at 818, 114 S.Ct. 1960, a proposition she

believed applied to PRPs. Cooper Indus., 543 U.S. at 172, 125 S.Ct.

577 (Ginsburg, J., dissenting). She argued that “all Members of this

Court agreed” that § 107 provided such a cause of action. /d. Indeed,

Justice Scalia’s dissent in Key Tronic focused merely on whether

the cause of action was express (as he believed it was) or implied

(as the majority stated). See Key Tronic, 511 U.S. at 822, 114 S.Ct.

1960 (Scalia, J., dissenting in part). Justice Ginsburg thus concluded

that “no Justice [in Key Tronic ] expressed the slightest doubt that

§ 107 indeed did enable a PRP to sue other covered persons for

reimbursement, in whole or part, of cleanup costs the PRP

legitimately incurred,” and thus would have recognized a cause of

action for PRPs to seek contribution under § 107. Cooper Indus.,

543 U.S. at 172, 174, 125 S.Ct. 577 (Ginsburg, J., dissenting).

Justice Ginsburg’s conclusion presumes, however, that the

“private parties” the Court agrecd in Key Tronic had a cause of action

under § 107 included PRPs seeking contribution from other PRPs,

and not merely (as we held in Reading and New Castle County)

(Cont'd)

ee ee ee a ee ee

18a

Appendix A

Il. Facts and Procedural History

With this context, we turn to the facts of this case.

Appellants E.1. DuPont de Nemours & Co., ConocoPhillips

Co., and Sporting Goods Properties, Inc. (collectively

“DuPont” or “appellants”)"' appeal from a March 1, 2004

order of the United States District Court for the District of

New Jersey granting the United States judgment on the

pleadings and denying DuPont’s motion for judgment under

Federal Rule of Civil Procedure 54(b) and its request for

certification of an interlocutory appeal pursuant to 28 U.S.C.

§ 1292(b). This order rested on an earlier opinion and order,

entered on December 30, 2003, granting the Government

summary judgment in a “test case” brought to determine

whether DuPont had a cause of action against the Government

for contribution under CERCLA." DuPont asserts the District

(Cont'd)

innocent private parties seeking cost recovery from PRPs on a joint

and several basis. The Cooper Industries majority appears to agree

with our view, retreating significantly from its earlier dicta and noting

that, although the Key Tronic majority spoke of “ ‘similar and

overlapping’ remedies[,) ... [t]he cost recovery remedy of

§ 107(a)(4)(B) and the contribution remedy of § 113(f)(1) are similar

at a gencral level in that they both allow private parties to recoup

costs from other private partics[, but the two remedies are clearly

distinct.” Cooper Indus., 543 U.S. at 163 n. 3, 125 S.Ct. 577.

11. Because DuPont was the only plaintiff at issue in the “test

case” litigated before the District Court, we refer to the parties in

most instances as “DuPont.” Insofar as the identity of parties other

than DuPont is relevant, we refer to the parties as “appellants.”

12. The District Court’s December 30, 2003 order was

superseded by an amended order on January 8, 2004. For purposes

of this appeal, the orders are substantively identical.

19a

Appendix A

Court erred in its Statutory analysis, that an implied cause of

action exists under federal common law, and that the District

Court mistakenly dismissed all claims (and not just the test

case) on the pleadings.

A. Background

This case concerns fifteen facilities owned by appellants

in several states, including New Jersey." Each of the sites is

contaminated with hazardous waste, and was owned or

operated by the United States at various times during World

War I, World War II, and/or the Korean War, during which

time the United States was responsible for some

contamination.

Appellants brought an action against the United States

in January 1997 (before the Supreme Court’s decision in

Cooper Industries) seeking contribution from the

Government toward the costs of cleanup at the sites. I nitially,

the complaint alleged causes of action under CERCLA

§ 107(a) (cost recovery) and § 113(f)(1) (contribution).'* We

13. The facilities include DuPont sites in Pompton Lakes, New

Jersey; Newark, New Jersey; Parlin, New Jersey; Carneys Point, New

Jersey; Gibbstown, New Jersey; Buffalo, New York; Niagara, New

York; Niagara Falls, New York; East Chicago, Indiana; Louisville,

Kentucky; Nashville, Tennessee; Spruance, Virginia; and Belle, West

Virginia; a ConocoPhillips site in Ponca City, Oklahoma; and a

Sporting Goods Properties site in Bridgeport, Connecticut.

14. The complaint also included a separate count seeking

“recoupment” of costs, but did not provide any statutory basis for

this claim. This count was voluntarily dismissed in December 1997.

See E.1. DuPont de Nemours & Co. v. United States, 297 F.Supp.2d

740, 743 (D.N.J.2003).

20a

Appendix A

decided New Castle County and Reading in May and June

1997, respectively; in keeping with those holdings,

appellants’ § 107(a) claim was voluntarily dismissed without

prejudice. See E.J. DuPont de Nemours & Co. v. United

States, 297 F.Supp.2d 740, 742-43 (D.N.J.2003). The District

Court thereafter designated one of the facilities named in

the complaint-the DuPont facility in Louisville, Kentucky-

as a “test case” to determine whether DuPont (which had

voluntarily undertaken to clean up the site without a

preexisting § 106 or § 107 action or a § 113(f)(3) settlement)

could seek contribution from other PRPs under § 113(f)(1).

Full discovery was had regarding the claims related to the

Louisville facility, and the Government moved for summary

judgment under Federal Rule of Civil Procedure 56 on the

ground that, as a PRP that had voluntarily incurred its cleanup

costs without having been sued or settled its liability, DuPont

had no cause of action for contribution under § | 13.

B. First District Court Decision

On December 30, 2003, the District Court issued a

lengthy opinion and order granting the Government’s motion

for summary judgment with respect to the Louisville facility.

See El. DuPont, 297 F.Supp.2d 740. The Court concluded

that a PRP, like DuPont, could only bring a contribution

action in three circumstances: (1) during or following a civil

action against the PRP under § 106 or § 107 (as set forth in

§ 113(f)(1)); (2) after the PRP entered into a judicially or

administratively approved settlement of its liability (as set

forth in § 113(f)(3)(B)); or (3) as suggested by the “saving

clause,” in some other undefined contribution action. /d. at

747. Since DuPont had not been sued under § 106 or § 107,

2la

Appendix A

and had not settled its liability with respect to the Louisville

facility, the Court considered whether it could pursue some

other contribution action.

It noted that the saving clause should not be read to allow

a contribution action, regardless of its source (such as “some

other (federal or state) statute,” id. at 750), unless the plaintiff

satisfied the “requirements of a traditional, common law

contribution action.” Jd. at 751; see also Reading, 115 F.3d

at 1124 (noting that the term “contribution” in CERCLA is

used “‘in its traditional, common law sense’”’). Such an action

“ ‘exists only in favor of a tortfeasor who has discharged the

entire claim for the harm by paying more than his equitable

share of the common liability.’” £./. DuPont, 297 F.Supp.2d

at 746 (quoting Restatement (Second) of Torts § 886A(2))

(emphases in original). Moreover, the District Court

concluded that “‘a contribution action requires (at least) a

prior or ongoing /awsuit,” id. at 749 (emphasis in original),

and DuPont’s claim regarding the Louisville facility did not

meet these criteria.

The Court concluded that “the purpose of the so-called

saving clause [in § 1 13(f)(1)] was to clarify that a contribution

action brought following a settlement under the aegis of

Section 113(f)(3) should not be held to be procedurally

insufficient because of an absence of a prior primary action

brought pursuant to CERCLA Sections 106 or 107.” /d. at

754 (emphasis omitted).'° It granted the Government's

motion for summary judgment on this basis.'°

15. The Court noted the possibility that the saving clause was

intended to preserve causes of action for contribution arising from

non § 113 CERCLA provisions without a prior settlement or suit,

(Cont'd)

OE REE FRR tt | hme tet tere»

| er

22a

Appendix A

C. Second District Court Decision

On March 1, 2004, the District Court issued another

opinion and order granting the Government judgment on the

pleadings under Federal Rule of Civil Procedure 12(c) with

respect to the other fourteen sites mentioned in appellants’

complaint, and denying appellants’ request for judgment

under Federal Rule of Civil Proccdure 54(b) or certification

of an interlocutory appeal from the Court's prior order. The~

Court noted that, although appellants’ lawyers represented

they “ ‘could amend the Complaint to potentially comply’ ”

with the Court’s earlier opinion—by, for example, showing

that they incurred cleanup costs at some of the sites pursuant

to EPA orders or conseni decrees—“[a] party’s lawyer's

(Cont'd) =

but concluded that, under this Court's decision in Reading that

§ 113 displaced all pre-SARA common law or implied rights of action

tor contribution under sections other than § 113, such an

interpretation was not persuasive. £./. DuPont, 297 F.Supp.2d at 750.

16. The Court admitted that its holding would “limit the ability

of some PRPs to recoup cleanup costs from other PRPs,” and that

this “might very well hamper some PRP efforts at removal and

remediation of hazard{ous] waste sites.” E./. DuPont, 297 F Supp.2d

at 754. Indeed, the Court noted that if “the statute were ambiguous

or if the Court believed that the meaning of the term ‘contribution’

were unsettled when Congress wrote the SARA amendments, then

[it) would of necessity turn to the general purposes of the statute to

determine the reach of the provision.” /d. at 754-55. But the Court

concluded that “the statute's terms appear reasonably clear,” and

thus any effort to allow contribution in the absence of a prior suit or

settlement “would be rewriting the statute, [which] is not the Court's

role.” Jd. at 755.

23a

Appendix A

representation is not evidence [, and] this representation [does

not] appear in the pleadings.” E./. DuPont de Nemours &

Co. v. United States, No. 97-497, slip op. at 5 n. 4 (D.N_J.

March 1, 2004). Indeed, the Court noted,

[the] Complaint and the competent evidence

before this Court do not establish or tend to

establish that the fourteen remaining sitcs

(unaffected by this Court’s prior amended order)

are in any material sense distinguishable from the

Louisville site. Prior to and during briefing of the

Government’s current motion, Plaintiffs failed to

produce any (record) evidence, in the form of

affidavits, certifications, copies of agreements

settling CERCLA claims, or records of prior

judicial or administrative CERCLA § 106 orders

or CERCLA § 107 proceedings. Even at oral

argument, Plaintiffs did not seek leave to amend

their Complaint or permission to make a late

filing. Simply put, at this juncture, there is nothing

in the record before this Court establishing or

tending to establish with regard to any of the

remaining sites that any Plaintiff (in the instant

action) either has settled a CERCLA § 113(f)(3)

claim or has been named a defendant in a (prior

or on-going) CERCLA § 106 or CERCLA § 107

action.

Id. at 4-5 (emphasis in original) (footnote omitted).

The District Court thus concluded that the pleadings did

not suggest any basis on which it could reach a conclusion

24a

Appendix A

with respect to the fourteen other sites different from its

conclusion with respect to the Louisville site, and therefore

granted the Government judgment on the pleadings for all

sites.

D. Appeal

DuPont and the other plaintiffs appealed, and we staycd

briefing pending the Supreme Court’s decision in Cooper

Industries. As noted, the Supreme Court’s decision confirmed

the District Court’s conclusion that contribution under § 113

is available to a PRP only if it settles its lability or is subject

to a civil action under § 106 or § 107.

in light of Cooper Industries, DuPont raises four issues

on appeal and makes the following arguments. First, it

contends that § 107 expressly provides PRPs a cause of action

to seek contribution from other PRPs independent of the

remedy provided by § 113. Second, it asserts alternatively

that such a cause of action is implied in § 107 or arises from

federal common law. Third, it argues that the District Court

erred in applying a multi-part test for contribution claims

that is inconsistent with our Court’s precedent. Fourth, it

contends the District Court erred in granting the Government

judgment on the pleadings with respect to the non-Louisville

sites. For the reasons stated below, the District Court’s

December 30, 2003 order (as amended on January 8, 2004)

is affirmed, and its March 1, 2004 order is also affirmed,

with one exception that will be explained below.

25a

Appendix A

Ill. Jurisdiction and Standard of Review

The District Court had subject matter jurisdiction over

this case under 28 U.S.C. § 1331, and we have jurisdiction

on appeal under 28 U.S.C. § 1291. We exercise plenary

review of a district court’s grant of summary judgment and

judgment on the pleadings. See Sikirica v. Nationwide Ins.

Co., 416 F.3d 214, 219-20 (3d Cir.2005). In conducting this

review, all facts and inferences are construed in the light most

favorable to the non-moving party, and “[{j]udgment will not

be granted unless the movant clearly establishes there are no

material issues of fact, and he is entitled to judgment as a

matter of law.” Jd. at 220. Our review of questions of statutory

interpretation is also plenary. United States v. E.I. DuPont

de Nemours & Co., Inc., 432 F.3d 161, 164 (3d Cir.2005)

(en banc).

IV. Availability of Contribution

Although DuPont would undoubtedly prefer that we

write our decision on a blank slate in deciding whether it

may seek contribution under § 107(a), we cannot do so.

Rather, we must decide if our prior decisions in New Castle

County and Reading control this case or are distinguishable.

If they control, we must then decide whether our panel may

decline to follow those precedents “in light of intervening

authority even without en banc consideration.” George

Harms Constr. Co. v. Chao, 371 F.3d 156, 161 (3d Cir.2004).

As we explain below, we hold that New Castle County and

~ Reading control the outcome of this case, and no intervening

26a

Appendix A

authority provides a basis sufficient to reconsider those

precedents."

A. Applicability of New Castle County and Reading

To repeat, New Castile County and Reading stand jointly

for the proposition that a PRP seeking to offset its cleanup

costs must invoke contribution under § | 13; the express cause

of action under § 107 (cost recovery) is limited to

governments and Indian tribes (acting in their enforcement

capacity) and innocent landowners, and no implied cause of

action for contribution for PRPs-under either § 107 or the

common law-survived the passage of § 113. This rule, unless

factually distinguishable, controls the case before us.

17. The Government contends that, because none of the

appellants pursued express or implied causes of action for

contribution under § 107(a) or federal common law in the District

Court, these claims are waived on appeal. Appellants did, however,

seck the relief they believed available to them under this Court's

precedents. Since Cooper Industries had not been decided at the

time final judgment was rendered by the District Court, there was

no reason appellants should have thought it potentially useful to

pursue a remedy under § 107(a)-that remedy was foreclosed by

Reading, and the view at the time was that they had a cause of action

under § 113. Regardless of whether their arguments regarding a cause

of action under § 107(a) are ultimately persuasive, it is clear to us

that Cooper Industries raised legal questions DuPont had no reason

to ask before that decision. We will therefore exercise our discretion

to consider DuPont's arguments on the merits. See Salvation Army

v. Dept af Cmty. Affairs of N.J., 919 F.2d 183, 196 (3d Cir.1990)

(*Where, as here, a previously ignored legal theory takes on new

importance due to an intervening development in the law, it is

appropriate for us to exercise our discretion to allow a party to revive

that theory.”).

27a

Appendix A

Recently, the United States Court of Appeals for the

Second Circuit decided Consolidated Edison Co. of New York

v. UGI Utilities, Inc., 423 F.3d 90 (2d Cir.2005), which held

that, despite a prior Second Circuit decision suggesting the

contrary, a PRP has an implied cause of action for

contribution under § 107. See id. at 100 & n. 11 (concluding

that “section 107(a) permits a [PRP] that has not been sued

or made to participate in an administrative proceeding . . . to

recover necessary response costs incurred voluntarily,” which

the Court deemed “consistent with the view that courts took

of section 107(a) before section 1 13(f){1) was enacted”). The

Second Circuit admitted that its earlier holding in Bedford

Affiliates v. Sills, 156 F.3d 416 (2d Cir.1998)}—which is

substantively similar to our holdings in New Castle County

and Reading—was inconsistent with this approach.

Nonetheless, the panel “decline[d] to answer the question

whether a three-judge panel of this court may depart from

Bedford Affiliates 's . . . holding.” Consol. Edison, 423 F.3d

at 101 n. 12. It noted that, as in New Castle County and

Reading (but unlike in Consolidated Edison or this case),

the plaintiff in Bedford Affiliates cleaned up its site pursuant

to a consent order and sought relief under both § 107 and

§ 113.

Thus, the Court limited Bedford Affiliates “to hold that

a party that has incurred or is incurring expenditures under a

consent order with a government agency and has been found

partially liable (for contribution] under § 113(f)(1) may not

seek to recoup those expenditures under section 107(a).”

Id. at 102. The Court concluded that its holding in

Consolidated Edison-——“that a party that has not been sued

or made to participate in an administrative proceeding, but,

28a

Appendix A

if sued, would .. . be liable under section 107(a), may still

recover necessary response costs incurred voluntarily” —did

not conflict with its understanding of Bedford Affiliates. Id.

(emphases added).'*

DuPont would have us adopt this reasoning to distinguish

New Castle County and Reading. It argues that, as in Bedford

Affiliates, both of our prior cases involved PRPs that cleaned

up sites pursuant to some form of EPA oversight.'? Tracking

the analysis in Consolidated Edison, DuPont asserts that New

Castle County and Reading are fundamentally different from

this case (where appellants cleaned up their sites voluntarily),

18. Shortly before we filed this opinion, the United States Court

of Appeals for the Eighth Circuit decided Atlantic Research Corp. v.

United States, 459 F.3d 827 (8th Cir.2006), in which it reached the

same result as the Second Circuit in Consolidated Edison. We note

that Atlantic Research relies almost entirely on the reasoning of

Consolidated Edison, and thus our consideration of the Second

Circuit's case applies as well to the decision of the Eighth Circuit.

One important difference between the two cases is that in

Atlantic Research (as here) the United States was a party. The Eighth

Circuit based its decision, in part, on its conclusion that denying a

PRP that voluntarily cleans up a site contribution from the

Government would allow the Government to “insulate itself from

responsibility for its own pollution by simply declining to bring a

CERCLA cleanup action or refusing a liable party's offer to settle.”

Atlantic Research, 459 F.3d at 836-37. As we explain in footnote

31 below, however, we are underwhelmed by this argument.

19. As noted, the New Castle County plaintifis incurred

response costs pursuant to an EPA consent decree, see 111 F.3d at

1119, and the Reading plaintiff cleaned up its site pursuant to a §

106 order and § 107 suit, see 115 F.3d at 1116.

29a

Appendix A

because the rule in our prior cases may be limited factually

to those circumstances where a PRP has already satisfied

the prerequisites for § 113 contribution set forth in Cooper

Industries.

We disagree. Although we will not dispute the Second

Circuit’s interpretation of its precedent, we do not read our

precedents to be so limited. Nothing in New Castle County

and Reading suggests that our holdings in those cases

depended on the motivations for the cleanups. Indeed, we

reached the § 107 and common law claims in those cases

precisely because § 113 was not sufficient to dispose of the

appeals. In New Castle County, for example, we noted that

the circumstances of that case forced us to decide whether a

PRP may seek cost recovery under § 107 (even if it would

ordinarily qualify for contribution under § | 13) because the

respective statutes of limitations for the different types of

claims meant that, on the facts of the case, a § 107 cost

recovery action would have been timely but a § 113

contribution action would not. 111 F.3d at 1120. And in

Reading, we necessarily considered whether any contribution

claim (common law, implied in § 107, or express in § 113)

could survive the discharge of a PRP’s liability to the United

States in a bankruptcy proceeding. We concluded that an

express § 113 contribution claim was precluded by the fact

that the Government’s claim against the PRP was discharged

by the PRP’s bankruptcy, meaning there was no underlying

action and thus other PRPs could not seek contribution from

the debtor. Reading, 115 F.3d at 1126. We rejected the

common law and implied cause of action claims because they

were categorically precluded by the statute. /d. at 1117, 1120-

21.

30a

Appendix A

It is familiar law that when the rule in a prior case by its

terms controls the outcome of a current case, we will not

reach out to distinguish the prior case on the basis of factual

differences that were not “material” to the earlier holding.

As Judge Kozinski explained in Hart v. Massanari, 266 F.3d

1155 (9th Cir.2001), common law precepts require that “a

court confronted with apparently controlling authority must

parse the precedent in light of the facts presented and the

rule announced. Insofar as there may be factual differences

between the current case and the earlier one, the court must

determine whether those differences are material to the

application of the rule or allow the precedent to be

distinguished on a principled basis.” /d. at 1172; see also

United States v. Rosero, 42 F.3d 166, 174 n. 16 (3d Cir. 1994)

(refusing the defendants’ invitation to distinguish an earlier

case because the precedent was not “materially

distinguishable” from the facts at hand); Black's Law

Dictionary 629 (8th ed. 2004) (defining a “material fact” as

one “that is significant ee essemtial to the issue or matter at

hand”). Our holdings in New Castle County and Reading-

based on our interpretation of the statute-are broad, and

nothing in those cases suggests that the results would have

been different if the p'aintiffs had undertaken voluntary

cleanups.”° We do not, therefore, believe our precedents may

20. At least one commentator has suggested that courts “do

not concede to their predecessors the power of laying down very

wide rules; they reserve to themselves the power to narrow such

rules by introducing into them particular facts of the precedent case

that were treated by the earlier courts as irrelevant.” John Salmond,

Jurisprudence 192 (10th ed.1947), reprinted in Black's Law

Dictionary 507 (8th ed.2004). While this may be true as a general

proposition, it cannot serve as a rule of decision in a case such as

(Cont'd)

3la

Appendix A

be distinguished from this case as the Second Circuit

distinguished Bedford Affiliates from the circumstances of

Consolidated Edison.

(Cont'd)

this. First, even if a panel treated certain facts as “irrelevant” in a

prior opinion, they must still be material to the earlier holding to

serve as a basis for distinguishing the case, as our discussion above

demonstrates. Second, and perhaps more importantly, our

interpretation of CERCLA’s requirements in New Castle County and

Reading established that the plaintiffs in those cases lost not because

they had been compelled to clean up their sites and hence qualified

for contribution under § 113 (indeed, as explained, neither plaintiff

could in fact seek § 113 contribution on the facts of those cases),

but because their complaints alleged causes of action under § 107 or

the common law that were not authorized by the statute for any PRP.

Of course, our Court might still have ruled against the plaintiffs by

interpreting CERCLA differently, but that is not the interpretation

we deemed appropriate based on the terms of the statute.

Particularly in the statutory interpretation realm, where courts

must faithfully apply Congress’ words and determine their settled

meaning, the breadth of a court’s holding is often compelled by the

scope of Congress’ prescription. We therefore reject the argument

that our holdings in New Castle County and Reading (that CERCLA

precludes PRPs from seeking cost recovery or contribution under §

107, and establishes § 113 as the sole basis on which a PRP may

equitably apportion its costs through contribution) are broader than

they needed to be on the facts of those cases. To the contrary, those

rules apply directly to this case, and may not be distinguished based

on facts that were not material to the earlier decision, especially

since the terms of the statute have not changed.

32a

Appendix A

B. Continued Viability of New Castle County and

Reading After Cooper Industries

We turn, then, to the question of whether we may

nonetheless reconsider our precedents in light of intervening

authority. In doing so, we are mindful of the Supreme Court’s

admonition that when “dealing with an issue of statutory

interpretation, . . . the claim to adhere to case law is generally

powerful once a decision has settled statutory meaning.”

Shepard v. United States, 544 U.S. 13, 23, 125 S.Ct. 1254,

161 L.Ed.2d 205 (2005); see also Patterson v. McLean Credit

Union, 491 U.S. 164, 172-73, 109 S.Ct. 2363, 105 L.Ed.2d

132 (1989) (“[T]he burden borne by the party advocating

the abandonment of an established precedent is greater where

the Court is asked to overrule a point of statutory

construction. Considerations of stare decisis have special

force in the area of statutory interpretation, for here, unlike

in the context of constitutional interpretation, the legislative

power is implicated, and Congress remains free to alter what

we have done.”’). i

Because the statute itself has not changed, DuPont

focuses its attention on Cooper Industries. \ts arguments may

be distilled to two intersecting theories. First, it argues that

Cooper Industries undercut a supposed major premise of our

holding in Reading—namely, that a PRP could seck

contribution from another PRP without having been sued or

settled its liability. Thus, DuPont contends that the analytical

foundation of Reading was overruled by the Supreme Court

and we may, therefore, disregard our prior decision. Second,

it contends that Cooper Industries changed settled

expectations in the cost apportionment field to such a

33a

Appendi: A

dramatic extent that the rules set out in New Castle County

and Reading no longer serve the purposes of CERCLA. As

such, DuPont argues, the intervening authority of Cooper

Industries, when viewed in the light of CERCLA's legislative

history, provides a basis for us to find an express or implied

cause of action for contribution under § 107 or the common

law notwithstanding our precedent.

1. Alleged Inconsistency Between Cooper

Industries and Reading

a. Facial Inconsistency

Cooper Industries did not explicitly or implicitly

overrule our precedents; indeed, the Supreme Court expressly

declined to consider the very questions at issue here.

See Cooper Indus., 543 U.S. at 168-71, 125 S.Ct. 577.

Though it is true that our observation in Reading that

“§ 113(f(1) specifically permits an action for contribution

to be brought ‘in the absence of a civil action under .

section {107],’” 115 F.3d at 1120, cannot support a cause of

action for PRPs engaged in voluntary cleanups after Cooper

Industries, we reject DuPont's view that this fatally

undermines Reading's holding. For one thing (as explained

in Part [V.B. 1.b below), our statement in Reading did not

necessarily endorse a § 113(f)(1) contribution action in the

absence of a preexisting civil action (and is not, therefore,

clearly at odds with the Supreme Court's later instructions).

But insofar as our statement can be read to recognize

implicitly that possibility, it merely * ‘reenforce[d] our

conclusion that Congress intended § | 13 to be the sole means

for seeking contribution.” /d. (emphasis added). We also

34a

Appendix A

relied on our precedent in New Castle County, the holdings

of other Courts of Appeals, rules of statutory construction,

and CERCLA’s purpose following the SARA amendments,

in deciding that § 113 provides the only contribution remedy

under CERCLA. We conclude that, even disregarding the

possibie implicit reference in Reading to a § 113(f)(1)

contribution action in the absence of a § 107 suit, our holding

in that case was amply supported on other grounds and

therefore survives Cooper Industries.

b. Saving Clause

It is true that Reading's statement-which quotes from

§$ 113(f)(1)’s saving clause- could be read to endorse a

contribution action under § 113(f)(1) without a preexisting

civil action, and as such would be wrong. See Cooper Indus.,

543 U.S. at 167, 125 S.Ct. 577 (explaining that the saving

clause “does [not] ... expand § 113(f)(1) to authorize

contribution actions not brought ‘during or following’ a

§ 106 or § 107(a) civil action”). But the Supreme Court also

observed that while the saving clause “rebuts any

presumption that the express right of contribution prewided

by the enabling clause [in § 113(f)(1) ] is the exclusive cause

of action available to a PRP,” it does not “specify what causes

of action for contribution, if any, exist outside § 113(f)(1),”

and the Court did not itself address the question further.

Id. at 166-67, 125 S.Ct. $77.

We do know, however, there is one express cause of

action available to a PRP for contribution under CERCLA

outside the strictures of § 113(f)(1): contribution under |

§ 113(f)(3)(B) for PRPs that settle their liability “in an

35a

Appendix A

administrative or judicially approved settlement.”

Our statement in Reading is not, therefore, necessarily

incorrect: it is true that § 113(f)(1) does not foreclose

contribution actions when the PRP has not been sued, because

§ 113(f)(3)(B) remains available if the party chooses to settle.

As we explain below, SARA’s legislative history makes clear

that the § 113(f)(3)(B) settlement provision is one of two

incentives that are crucial to a carefully considered scheme

to encourage PRPs to settle their liability, enter into consent

decrees, and perform supervised cleanups.’ The District

Court concluded that the § 113(f)(1) saving clause merely

clarifies that “a contribution action brought following a

settlement under the aegis of Section 113(f)(3) should not

be held to be procedurally insufficient because of an absence

of a prior primary action pursuant to CERCLA Sections 106

or 107.” E.J. DuPont, 297 F.Supp.2d at 754 (emphasis

omitted). As the discussion below demonstrates, this

interpretation is consistent with the settlement provisions in

SARA, and though there is no legislative history regarding

the meaning of the saving clause, we are confident that the

District Court’s interpretation is in accord with CERCLA’s

purpose (as amended by SARA), as is our decision in

Reading. We therefore decline DuPont's invitation to revisit

Reading solely because its possible interpretation of the

saving clause is incorrect, especially since our statement in

Reading is not necessarily inconsistent with Cooper

Industries in the first place.

21. The other incentive is the contribution protection for settling

PRPs provided under § 1 13(f)(2).

36a

Appendix A

2. Statutory Purpose

DuPont’s argument regarding the purpose of CERCLA

merits more discussion. To repeat, DuPont contends that, in

the wake of Cooper Industries, our decisions in New Castle

County and Reading are in direct opposition to CERCLA’s

broad remedial purpose as expressed in its legislative history.

This, it urges, makes necessary an implicd causc of action

for contribution, available to PRPs that voluntarily clean up

contaminated sites, to fill the gaps Cooper Industries

recognized in Congress’ remedial scheme. Indeed, as one

Court has noted, the “combined result” of Cooper Industries

and cases like New Castle County and Reading is “quixotic”:

“the present statutory arrangement resulting from the

combined authority of [| Cooper Industries and earlier Courts

of Appeals cases] compels a responsible party engaged in

voluntary remediation to foot the bill for other parties, which

will have the effect of encouraging responsible parties to rest

on their heels and wait for the instigation of adverse

proceedings, rather than implement a cost-effective

environmental contamination response strategy.” Mercury

Mall Assocs., Inc. v. Nick's Market, Inc., 368 F.Supp.2d 513,

519 (E.D.Va.2005) (internal quotation marks and alterations

omitted).

As amici American Chemistry Council and Superfund

Settlements Project assert, allowing only sued or settling

PRPs to seek contribution “would discourage and delay the

very cleanups that Congress sought to encourage and

accelerate” by enacting CERCLA. Amici Br. at 9. Indeed,

amici assert that the EPA has long encouraged PRPs to clean

up contaminated sites voluntarily, and for those who do

37a

Appendix A

(amici estimate around 70% of all cleanups), the EPA has

stated that it is “ ‘important to ... remove unnecessary

obstacles to their ability to recover their costs from the parties

that are liable for the contamination.’ " /d. at 7-8 (quoting

Nationa! Oil and Hazardous Substance Contingency Plan,

55 Fed.Reg. 8666, 8792-93 (March 8, 1990)).” If PRPs

engaged in voluntary cleanups may not seek contribution,

DuPont and amici argue, “companies would resist

undertaking new cleanup obligations, and would rarely do

so voluntarily,” thus frustrating core purposes of CERCLA.

Id. at 9.

a. CERCLA’s Legislative History

We begin, then, with the legislative history of

CERCLA.” Although the statute is supposed to be

22. As we explain in footnote 30 below, however, this statement

is taken out of context. In context, it is clear the EPA refers to cost

recovery actions-which, as we noted in New Castle County, are

available only to innocent parties, not PRPs.

23. We are mindful, of course, that Icgislative history can

sometimes be “murky, ambiguous, and contradictory,” and that

recourse to it as an interpretive aid may, if we are not careful, devolve

to “an exercise in looking over a crowd and picking out your friends.”

Exxon Mobil Corp. v. Allapattah Servs., inc., 545 U.S. $46, 125 S.Ct

2611, 2626, 162 L.Ed.2d 502 (2005) (internal quotation marks

omitted). We are confident that these concerns are not implicated

here. Though (as explained below) the legislative history of CERCLA

is rather unclear, particularly with respect to voluntary cleanups by

PRPs, the legislative history of SARA uniformly indicates the intent

of Congress to encourage settlement by, inter alia, authorizing an

(Cont'd)

38a

Appendix A

“comprehensive,” the legislative history is not, as many of

the pre-SARA cases that allowed an implied right of action

under § 107 observed. See, e.g., Walls, 761 F.2d at 318

(“{T)he legislative history of CERCLA is vague, reflecting

the compromise nature of the legislation eventually

enacted.”); NCC, 642 F.Supp. at 1263 (noting “the absence

of significant legislative history” of CERCLA), see also

Frank P. Grad, A Legislative History of the Comprehensive

Environmental Response, Compensation and Liability

(“Superfund”) Act of 1980, 8 Colum. J. Envtl. L. 1, 2 (1982)

(“In the instance of the ‘Superfund’ legislation, a hastily

assembled bill and a fragmented legislative history add to

the usual difficulty of discerning the full meaning of the

law.”).

Though without doubt CERCLA's drafters intended that

the statute encourage responsible parties to clean up

hazardous waste sites and bear the costs of doing so, see

Morton Int'l, 343 F.3d at 676, Congress’ position on

voluntary cleanups is less clear. Reporting on the proposed

Hazardous Waste Containment Act (the House of

Representatives’ version of CERCLA, see Grad, supra, at 4-

5),°* the House Committee on Interstate and Foreign

(Cont'd)

express and limited contribution right. We also observe that, although

we would of course have no need to look to the legislative history to

discern the meaning of an unambiguous statutory provision, see

Cooper Indus., 543 U.S. at 167, 125 S.Ct. 577, we need to consult

the legislative history where, as here, a party urges us to disregard

precedent and imp/y a cause of action to effect the intent of Congress.

24. For a thorough review of the legislative debates on the

House and Senate versions of CERCLA, and the compromises that

allowed the Icyislation to become law, see Grad, supra.

= ——— ———— s

39a

Appendix A

Commerce noted that the bill would “establish a Federal

cause of action in strict liability to enable the [EPA]

administrator to pursue rapid recovery of the costs incurred

for the costs of such [cleanup] actions undertaken by him

from persons liable therefor and to induce such persons

voluntarily to pursue appropriate environmental response

actions with respect to inactive hazardous waste sites.”

H.R. Rep. No. 96-1016(1), at 17 (1980), reprinted in 1980

U.S.C.C.A.N. 6119, 6120. Representative Florio, the floor

manager of the legislation in the House, noted that “(t)he

strong liability provisions that are in our bill ... are very

important, because we want to induce those who know where

these sites are to remedy the sites themselves. If there is no

liability provision, they will not have any incentive

whatsoever to go forward on a voluntary basis and clean up

those sites.” 126 Cong. Rec. H9441 (daily ed. Sept. 23, 1980);

see also id. at H9467 (statement of Rep. Florio) (“EPA is

required not to act if the responsible party or parties will

take appropriate action to clean[ Jup and contain these

sites.”).

These statements do not, however, establish that

Congress necessarily intended that PRPs engaged in

voluntary cleanups be able to seek contribution; they could

just as easily reflect congressional recognition that a strong

enforcement scheme holding wrongdoers liable would

encourage PRPs to head off potentially ruinous litigation or

punitive settlements and clean up their own mess.” Indeed,

25. Indeed, the companion legislation in the Senate focused

more on deterrence than on encouraging voluntary cleanups. See

S.Rep. No. 96-848, at 13, 15 (1980) (noting that the bill’s intent was

(Cont'd)

40a

Appendix A

Congress provided no express nght of contribution for any

PRP that incurred response costs, whether voluntarily or not.

Language providing an express cause of action for

contribution among PRPs was rejected by Congress, see

NCC, 642 F.Supp. at 1263, as was language providing for

joint and several liability, see, e.g., 126 Cong. Rec. $14, 964

(daily ed. Nov. 24, 1980) (statement of Sen. Randolph)

(“It is intended that issues of liability not resolved by this

act, if any, shall be governed by traditional and evolving

principles of common law. An example is joint and several

liability. Any reference to these terms has been deleted, and

the liability of joint tort feasors will be determined under

common or previous statutory law.”); 126 Cong. Rec.

H1 1,787 (daily ed. Dec. 3, 1980) (statement of Rep. Florio)

(same).

While it is clear that CERCLA’s drafters intended

common law principles to govern liability, we have not found

evidence in the legislative history that Congress contemplated

this would extend a contribution right to PRPs engaged in

entirely voluntary cleanups. In fact, the House and Senate

floor managers’ statements that liability would be governed

by common law principles appear inconsistent with this

possibility, since contribution among jointly and severally

liable tortfeasors ordinarily follows a determination of

liability to a common plaintiff who suffered an injury.

(Cont'd)

that “those responsible for any damage, environmental harm, or

injury from chemical poisons bear the costs of their actions” on the

basis of “strict, joint, and several liability” to create an “incentive

for greater care focus{ed] on the initial generators of hazardous

wastes”). .

4la

Appendix A

See, e.g., Restatement (Second) of Torts §§ 875, 886A (1979);

2 Michael Dore, Law of Toxic Torts § 16.04 (1999)

(“In general, contribution is available whenever a party is

held liable to a plaintiff for injuries [for] which other parties

were at least partially responsible.”); see also Northwest

Airlines, 451 U.S. at 86-88, 101 S.Ct. 1571 (noting that, in

“most American jurisdictions, . . . a right to contribution is

recognized when two or more persons are liable to the same

plaintiff for the same injury and one of the joint tortfeasors

has paid more than his fair share of the common iiability”).

As then-Representative Gore explained to the House of

Representatives in offering an amendment to the “iazardous

Waste Containment Act,

Joint and several liability ordinarily would mean

that whenever a single, indivisible harm is

sustained as a result of independent, separate, but

concurring tortious acts by two er more actors,

each can be held liable for she entire amount of

damages incurred. . . . The plaintiff could collect

the total sum of damages awarded from a single

defendant and could avoid the agony of multiple

suits against the defendants that would otherwise

be necessary to achieve full compensation.

Under the theory of contribution, the

defendant from whom the plaintiff receives

payment may then collect from the other

defendants for that part of the damages for which

each is responsible. . . . [CJourts [have] concluded

that because the defendants were the ones at fault,

it would be unfair to place the burden of

42a

Appendix A

demonstrating the apportionability of the damage -

on the plaintiff. The burden was thus placed on

the defendants to work out for themselves who

was responsible for what part of the injury under

the process of contribution [after the plaintiff

recovered his damages].

126 Cong. Rec. H9463 (daily ed. Sept. 23, 1980).

b. SARA’s Legislative History

The legislative history of the SARA amendments, while

labyrinthine, is less clouded than the legislative history_of

CERCLA as initially enacted, particularly with respect to

contribution and voluntary cleanups. Cooper Industries puts

beyond question that § 113 establishes a contribution remedy

only for PRPs that have settled their liability or have been

sued, and the legislative history supports this reading.

See, e.g., S.Rep. No. 99-11, at 44 (1985) (stating that § 113

“clarifies and confirms the right of a person held jointly and

severally liable under CERCLA to seek contribution from

other potentially liable parties”); H.R.Rep. No. 99-253(1), at

79 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2861

(same); H.R.Rep. No. 99-253(III), at 18 (1986), reprinted in

1986 U.S.C.C.A.N. 3038, 3041 (stating that § 113 “clarifies

and emphasizes that persons who settle with EPA (and who

are therefore not sued), as well as defendants in CERCLA

actions, have a right to seek contribution from other

potentially responsible parties”).

SARA's legislative history also reveals an express bent

toward encouraging settlement. See, e.g., H.R.Rep. No. 99-

43a

Appendix A

253(III), at 29, reprinted in 1986 U.S.C.C.A.N., at 3052 (“The

Judiciary Committee strongly agrees with the Energy and

Commerce Committee that encouraging ... negotiated

cleanups will accelerate the rate of clean-ups and reduce their

expense by making maximum use of private sector resources.

The Committee also agrees that this emphasis on negotiated

clean-ups should not replace or diminish a strong and

aggressive enforcement policy, but rather should complement

such a policy.”); H.R.Rep. No. 99-253(I), at 100-01, reprinted

in 1986 U.S.C.C.A.N., at 2882-83 (same). As the Senate

Environment and Public Works Committee reported,

voluntary cleanups, though desirable, should be undertaken

pursuant to a settlement with the EPA:

Congress, the EPA, responsible parties, and

other critics have suggested several means of

speeding up and economizing on site cleanups.

These include enlarging the Superfund, setting

program deadlines, expanding the EPA program

offices, empowering citizens to sue, and

encouraging voluntary cleanup by industry.

Although enlarging the Fund, providing more

staff, and setting program deadlines would tend

to accelerate the CERCLA effort, the

Administrative Conference believes that a

properly designed site cleanup negotiation

process, through which responsible parties or third

parties would agree to act directly to clean up sites,

would also hasten cleanup while reducing its

expense by tapping the technical and financial

resources of the private sector. Involvement of the

federal government and affected citizens in this

44a

Appendix A

process would ensure adequate protection of

public health and the environment.

The final agreement should take the form of

an administrative consent order under section 106

of CERCLA or a judicial consent decree.

S.Rep. No. 99-11, at 65, 67; see also H.R.Rep. No. 99-

253(V), at 58 (1986), reprinted in 1986 U.S.C.C.A.N. 3124,

3181 (“The Committee recognizes that Fund-financed

cleanups, administrative action and litigation-even under a

strong and vigorous enforcement program-will not be

sufficient to accomplish CERCLA’s goals. Voluntary

cleanups are essential to a successful program for cleanup

of the Nation's hazardous substance pollution problem.

[SARA 's settlement provisions are] intended to encourage

and establish procedures and protections pertaining to

negotiated private party cleanup of hazardous substances

where such cleanup is in the public irterest.” (emphasis

added)); 132 Cong. Rec. H9609 (statement of Kep. Slattery)

(“This legislation ... encourages potentially responsible

parties to come out of the woodwork and the courts, and

settle on an environmentally acceptable cleanup plan.”).

It is also apparent from the legislative history that

Congress intended the contribution allowed by § i:3 to bea

crucial part of its scheme to encourage settlement and (by

extension) private cleanups by PRPs within the bounds of

the settlement agreements. The House Energy and Commerce

4Sa

Appendix A

Committee, for example, reported that limiting contribution

to parties who were sued or settled

should encourage private party settlements and

cleanups. Parties who settle for all or part of a

cleanup or its costs, or who pay judgments as a

result of litigation, can attempt to recover some

portion of their expenses and obligations in

contribution litigation from parties who were not

sued in the enforcement action or who were not

parties to the settlement. [Such] parties may be

more willing to assume the financial responsibility

for some or all of the cleanup [ i.e., through

settlement] if they are assured that they can seek

contribution from others.

H.R.Rep. No. 99-253(1), at 80, reprinted in 1986

U.S.C.C.AN., at 2862; S.Rep. No. 99-11, at 44 (same).

The settlement procedures now set forth are

expected to be a significant inducement for parties

to come forth, to settle, to avoid wasteful litigat:on

and thus to begin cleanup.

The bill would give potentially responsible

parties the explicit right to sue other liable or

potentially liable parties who also may be

responsible for the hazardous waste site. [Also,]

[i]f a party has resolved its liability to the U.S. or

a state in a judicially{ ] approved, good-faith

46a

Appendix A

settlement, the party would not be liable for claims

for contribution or indemnity on matters addressed

in the settlement. These provisions should

encourage quicker, more equitable settlements,

decrease litigation and thus facilitate cleanups.

H.R.Rep. No. 99-253(1), at 58-59, reprinted in 1986

U.S.C.C.A.N., at 2840-41 (emphasis added); see also

H.R.Rep. No. 99-253(II1), at 20, reprinted in 1986

U.S.C.C.A.N., at 3043 (explaining that “[the] amendments

to the contribution section [i.e., § 113] will improve its

effectiveness, ensure its fair operation, and encourage

settlements by responsible parties”). As Senator Stafford, the

floor manager of SARA in the Senate, explained, the

legislation recognized that settlements are a crucial part of

the EPA’s enforcement regime, and “[t]he theory underlying

Superfund’s liability scheme was, and is, that the Government

should obtain the full costs of cleanup from those it targets

for enforcement, and leave remaining costs to be recovered

in private contribution actions between settling and

nonsettling parties.” 132 Cong. Rec. $14,903 (daily ed. Oct.

3, 1986).

Congress no doubt intended by the SARA amendments

to encourage settlements, and further intended that the

promise of contribution for settling wrongdoers would

encourage them to come forward, negotiate a settlement with

the Government, and begin work on supervised cleanups.

indeed, the “voluntary” nature of the cleanups Congress had

in mind was a voluntary agreement to settle and enter into a

47a

Appendix A

consent decree, rather than a wholly voluntary, unsupervised,

sua sponte cleanup operation. CERCLA’s initial legislative

history-which is sparse, vague with respect to voluntary

cleanups, and leaves issues of joint and several liability

(including contribution) to the common law—must, of

necessity, be read in tandem with SARA, and SARA

establishes a specific and intricate legislative scheme for

encouraging settlement through, among other things, a

limited contribution right.

c. Contribution for Voluntary Cleanups

without Settlement or Suit

To be sure, the legislative history of SARA contains no

express statement that parties that clean up their own sites

voluntarily, without having settled their liability or having

been sued, cannot seek contribution.” We conclude, however,

that SARA’s settlement scheme is inconsistent with such a

right.

First, we are mindful of the Supreme Court’s- caution

that “once Congress addresses a subject, even a subject

previously governed by federal common law, the justification

for lawmaking by the federal courts is greatly diminished.

Thereafter, the task of the federal courts is to interpret and

apply statutory law, not to create common law.” Northwest

Airlines, 451 U.S. at 95 n. 34, 101 S.Ct. 1571. The Court

continued:

26. Of course, as noted, there is no express statement in

CERCLA or SARA, or in their respective legislative histories, that

PRPs engaged in voluntary cleanups can seek contribution.

48a

Appendix A

In almost any statutory scheme, there may be a

need for judicial interpretation of ambiguous or

incomplete provisions. But the authority to

construe a statute is fundamentally different from

the authority to fashion a new rule or to provide a

new remedy which Congress has decided not to

adopt. The presumption that a remedy was

deliberately omitted from a statute is strongest

when Congress has enacted a comprehensive

legislative scheme including an integrated system

of procedures for enforcement. . . . The judiciary

may not, in the face of such comprehensive

legislative schemes, fashion new remedies that

might upset carefully considered legislative

programs.

Id. at 97, 101 S.Ct. 1571 (citation and footnote omitted)

(emphasis added). We echoed this understanding in Reading.

See 115 F.3d at 1117 (“{W]hen Congress expressly created a

statutory right of contribution in CERCLA § 113(f), 42 U.S.C.

§ 9613(f), it made that remedy a part of an elaborate

settlement scheme aimed at the efficient resolution of

environmental disputes. Permitting independent common law

remedies would create a path around the statutory settlement

scheme, raising an obstacle to the intent of Congress.”).”’

27. DuPont counters with another rule of Statutory construction:

“that if Congress intends for legislation to change the interpretation

of a judicially created concept, it makes that intent specific.”

Midlantic Nat'l Bank v. N.J. Dep't of Envil. Prot., 474 U.S. 494,

501, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986). It argues that Congress

should not be deemed to have rejected a common law implied right

(Cont'd)

49a

Appendix A

Indeed, it would be odd to suppose that Congress would have

expressly provided a contribution right for PRPs that settled

or were sued as part of an elaborate statutory scheme to

encourage settlement if it intended that all other PRPs would

be able to obtain contribution under some implied or common

law right.

(Cont'd)

of contribution without expressly saying SO. In Reading, however,

we concluded that Congress did specifically replace all common law

remedies with an express and exclusive statutory remedy, and with

good reason: allowing PRPs to seek contribution only within the

confines of § 115 srovides a powerful incentive for them to settle

their liability, a prime goal of SARA.

Indeed, the legislative history of SARA reveals that Congress

approved expressly of certain prior cases, and none of them involved

a PRP that voluntarily cleaned up its site without having settled or

been sued. The House Energy and Commerce Committee reported

that it agreed with United States v. S.C. Recycling & Disposal, Inc.,

653 F.Supp. 984 (D.S.C. 1986) (which held PRPs jointly and severally

liable to the United States and suggested, in keeping with ordinary

contribution rules, that upon being held liable a PRP could seek

contribution from other PRPs), and United States v. Ward, No. 83-

63-CIV-5, 1984 WL 15710 (E.D.N.C. May 14, 1984) (which held

that a PRP deemed jointly and severally liable can seek contribution

from other PRPs under the common law), and explained that § 113

“clarifies and confirms the right of a person held jointly and severally

liable parties.” H.R.Rep. No. 99-253(I), at 79, reprinted in 1986

U.S.C.C.A.N., at 2861 (emphasis added); see also id. at 74, reprinted

in 1986 U.S.C.C.A.N., at 2856 (noting that the Committee “fully

$72 F.Supp. 802 (S.D.Ohio 1983), that PRPs are jointly and severally

liable to third parties).

50a

Appendix A

It might be argued, however, that CERCLA's general

purpose (i.¢., prompt and effective cleanup) is accomplished

by any sort of cleanup (whether pursuant to a settlement, in

response to 4 suit, or voluntarily). Under this view, SARA’s

preference for settlement and its express provision of

contribution as an incentive to seek settlement should not be

deemed to preclude reconsideration of precedents that, in

light of Cooper Industries, now serve as a barrier to certain

cleanups that would otherwise satisfy the desire for prompt

and effective action.

We disagree with this argument. Of particular concern

to the Congress that enacted SARA was setting standards

likely to effect the safe and effective cleanup of contaminated

sites in a manner beneficial to the public interest. See, e.g.

CERCLA § 121, 42 U.S.C. § 9621 (requiring “[t}he President

[to] select a remedial action that is protective of human health

and the environment, that is cost effective, and that utilizes

permanent solutions and alternative treatment technologies

or resource recovery technologies to the maximum extent

practicable,” and setting standards for meeting this

requirement), Ohio v. EPA, 997 F.2d 1520, 1526

(D.C.Cir.1993) (noting that “the statute ... require[s} that

remedial actions at Superfund sites result in a level of cleanup

or standard of control that at least meets the legally applicable

or otherwise relevant and appropriate federal (or stricter state)

requirements,” particularly the “legally ‘applicable’ or

‘relevant and appropriate’ environmental standards” in the

National Contingency Plan (“NCP")). The House Committee

on Public Works and Transportation explained that the EPA

must consider, infer alia, “the availability of technology, the

installation period, the uncertainties related to the level of

Sla

Appendix A

performance or the solution or remedial action, the level of

public support for the solution or remedial action, and

whether or not the solution or remedial action has been

achieved in practice at any other facility or site which has

characteristics similar to the facility or site concerned.”

H.R.Rep. No. 99-253(V), at 50, reprinted in 1986

U.S.C.C.A.N., at 3173.”

Indeed, before SARA was enacted, the EPA expressed

serious doubts about sua sponie voluntary cleanups by PRPs.

In the 1983 amendment to the NCP that added the National

Priorities List for site cleanup, the EPA explained that, by

designating certain sites as subject to “Voluntary or

Negotiated Response,” its strong preference was for

negotiated cleanups with Government oversight.”

28. In fact, under CERCLA § 122(e€)(6), 42 U.S.C. § 9622(e)(6),

Congress expressly forbade, without the EPA's approval, remedial

actions by PRPs once an administrative order or consent decree was

in place. As Senator Mitchell explained, “[t}his [provision] is to avoid

situations in which the PRP begins work at a site that prejudges or

may be inconsistent with what the final remedy should be or

exacerbates the problem.” 132 Cong. Rec. $14919 (daily ed. Oct. 3,

1986).

29. This does not, of course, mean that only federal Government

oversight is allowed. See United States v. Akzo Coatings of Am.,

Inc., 949 F.2d 1409, 1418 (6th Cir.1991) (“The federal legislative

scheme and its history are persuasive that Congress did not intend

to leave the cleanup under CERCLA solely in the hands of the federal

government. CERCLA, as amended by SARA, provides a substantial

and meaningful role for the individual states in the selection and

development of remedial actions to be taken within their

jurisdictions.”).

52a

Appendix A

Sites are included in this category if private

parties are taking response actions pursuant to a

consent order or agreement to which EPA is a

party. Voluntary or negotiated cleanup may include

actions taken pursuant to consent orders reached

after EPA has commenced an enforcement action.

This category of response may include remedial

investigations, feasibility studies, and other

preliminary work, as well as actual cleanup.

Several commenters were concerned that this

category did not adequately reflect voluntary

response efforts undertaken without formal

agreements with EPA. However, EPA studies have

shown that many of the response actions

undertaken by private parties outside the sanction

of EPA consent agreements have not been

successful. Furthermore, some private parties

have represented routine maintenance or waste

management activities as response actions,

thereby leading to the conclusion that only after

a thorough technical review can the Agency

describe actions by private parties as

“responses”. Thus, EPA believes that to describe

actions taken outside consent orders as

“response” would in many instances be

misleading to the public{,] as EPA cannot assure

the public that the actions are appropriate,

adequate, consistent with the NCP, and are being

fuily implemented. Therefore, the Agency

encourages any responsible parties who are

undertaking voluntary response actions at NPL

53a

Appendix A

sites to contact the Agency to negotiate consent

agreements.

This is not intended to preclude responsible

parties from taking voluntary response actions

outside of a consent agreement. However, in order

for the site to be deleted or to be noted in the

voluntary or negotiated response category, EPA

must still sanction the completed cleanup. If the

remedial action is not fully implemented or is not

consistent with the NCP, the responsible party may

be subject to an enforcement action. Therefore,

most responsible parties may find it in their best

interest to negotiate a consent agreement.

Amendment to National Oil and Hazardous Substance

Contingency Plan, 48 Fed.Reg. 40,661 (Sept. 8, 1983)

(emphasis added).”°

30. Although the EPA treats innocent parties more generously

than wrongdoing PRPs, it expressed a similar concern with respect

to cost recovery by innocent parties in the substantive amendment

to the NCP implementing SARA:

EPA believes that i is important to encourage private

parties to perform voluntary cleanups of sites, and to

remove unnecessary obstacies to their ability to recover

their costs from the parties that are liable for the

contamination. At the same time, EPA believes it is

important to establish a standard against which to

measure cleanups that qualify for cost recovery under

CERCLA, so that only CERCLA-quality cleanups are

encouraged. .. . [Thus,} in evaluating whether or not a

(Cont'd)

——-

54a

Appendix A

There is, of course, no explicit indication in SARA or

the legislative history that Congress was motivated by these

concerns in amending CERCLA to encourage settlement. But

the import of Congress’ scheme (an express desire to oversee

cleanups via settlements and other enforcement actions, the

explicit promise of contribution as an incentive for PRPs to

enter negotiated cleanup agreements, and the desire for

quality—control standards for safe, effective, and reliable

cleanups) is consistent with the EPA’s wariness of wholly

voluntary and unregulated cleanups. As the attorneys who

prevailed in Cooper Industries argue in a recent article,

[a]ny suggestion that section 107(a) offers some

other federal recourse to PRPs seeking a

(Cont'd)

private party should be entitled to cost recovery under

CERCLA section 107(a)(4)(B), EPA believes that

“consistency with the NCP” should be measured by

whether the private party cleanup has, when evaluated

as a whole, achieved “substantial compliance” with

potentially applicable requirements, and resulted in a

CERCLA-quality cleanup.

[T]he government has a strong interest in ensuring that

cleanup a

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