Respondents Brief — E. I. du Pont de Nemours and Co. v. United States (No. 06-726)

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No. 06-726 (_SU2°E. = COURT US. |

Jn the Supreme Court of the Giited States

E.I. DU PONT DE NEMOURS AND COMPANY, EFT AL.,

PETITIONERS

v.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENTS

PAUL D. CLEMENT

Solicitor General

Counsel of Record

SUF ELLEN WOOLDRIDGE

Assistant Attorney General

THOMAS G. HUNGAR

Deputy Solicitor General

KANNON K. SHANMUGAM

Assistant to the Solicitor

General

RONALD M. SPRITZER

ELLEN J. DURKEE

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 314-2217

QUESTION PRESENTED

Whether a party that is potentially responsible for

the cost of cleaning up property contaminated by hazar-

dous substances under the Comprehensive Environ-

mental Response, Compensation, and Liability Act

(CERCLA), 42 U.S.C. 9601 et seq., but that does not

satisfy the requirements for bringing an action for con-

tribution under Section 113(f) of CERCLA, 42 U.S.C.

9613(f), may bring an action against another potentially

responsible party under Section 107(a) of CERCLA, 42

U.S.C. 9607(a), or under federal common law.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Atlantic Research Corp. v. United States, 459 F.3d

827 (2006), petition for cert. pending, No. 06-562

Sem pernerpiay ner guns Are 7,9, 10

Consolidated Edison Co. of N.Y., Inc. v. UGI Utils.,

Inc., 423 F.3d 90 (2005), petition for cert. pending,

No. 05-1323 (filed Apr. 14,2006) .............. 7,9, 10

Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157

CED. wk vd ads eh eRak ees eae e eae 2,4, 9

Mardan Corp. v. C.G.C. Music, Ltd., 600 F. Supp.

1049 (D. Ariz. 1984), aff’d, 804 F.2d 1454 (9th Cir.

SEE vnnwidaeoy coavesteeneeinoess Givenausod 5

New Castle County v. Halliburton NUS Corp.,

ibe poh dot oe: | re

Reading Co., In re, 115 F.3d 1111 (8d Cir. 1997) ...... 5,7

United States v. Bestfoods, 524 U.S. 51 (1998) .......... 2

United States v. Rohm & Haas Co., 2 F.3d-1265

PE BONED os £a.05 aw boa beh eee ee 5

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IV

Statutes and regulations: Page

Comprehensive Environmental Response,

Compensation, and Liability Act of 1980,

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SIG), SE UBL. SET). o6 ccccvccevecsee passim

§ 107(a)(1)-(4)(A), 42 U.S.C. 9607(a)(1)-(4)(A) ...... 3

§ 107(a)(1)-(4)(B), 42 U.S.C. 9607(a)(1)-(4)(B) ...3, 10

$119) 4S UBS. SOD oi dc ccccecvecac passim

§ 113¢f)(1), 42 U.S.C. 96138(N(1) ... 2.2... 3, 4, 6, 11

§ 113(f)(3)(B), 42 U.S.C. 9613(f)(3)(B) ... . 3, 4, 5, 6, 11

Resource Conservation and Recovery Act of 1976,

gS er ree tee ear ere rr one en 5

er ROE io kw Ree dO N a eee eaeseeviaes 5

Superfund Amendments and Reauthorization Act of

1986, Pub. L. No. 99-499, 100 Stat. 1613 ............. 2

Miscellaneous:

Robert L. Stern et al., Supreme Court Practice

ES oa ied eurck heehee a See cow ew nena 14

In the Supreme Court of the Anited States

No. 06-726

E..I. DU PONT DE NEMOURS AND COMPANY, ET AL.,

PETITIONERS

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENTS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-75a)

is reported at 460 F.3d 515. The district court’s memo-

randum opinion concerning respondents’ motion for

judgment on the pleadings (Pet. App. 115a-121a) is unre-

ported. The district court’s earlier memorandum opin-

ion concerning respondents’ motion for summary judg-

ment (Pet. App. 76a-112a) is reported at 297 F. Supp. 2d

~ 740.

JURISDICTION

The judgment of the court of appeals was entered on

August 29, 2006. A petition for rehearing was denied on

October 30, 2006 (Pet. App. 124a-125a). The petition for

a writ of certiorari was filed on November 21, 2006. The

(1)

2

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

Like the government’s petition for a writ of certiorari

in United States v. Atlantic Research Corp., No. 06-562

(filed Oct. 24, 2006), the petition in this case presents the

principal question left open by the Court two Terms ago

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

U.S. 157 (2004): Whether a party that is potentially re-

sponsible for the cleanup of property contaminated by

~ hazardous substances under the Comprehensive Envi-

ronmental Response, Compensation, and Liability Act

(CERCLA), 42 U.S.C. 9601 et seq., but is not eligible to

bring an action for contribution under Section 113(f) of

CERCLA, 42 U.S.C. 9613(f), may nevertheless bring an

action against another potentially responsible party un-

der Section 107(a), 42 U.S.C. 9607(a). In this case, the

court of appeals correctly held that a potentially respon-

sible party cannot pursue such an action under Section

107(a). That decision, however, conflicts with the deci-

sions of two other courts of appeals, including the deci-

sion of the court of appeals in Atlantic Research. For

the reasons stated below, the petition for a writ of cer-

tiorari should be granted.

1. The relevant statutory provisions are discussed in

greater detail in the government’s petition in Atlantic

Research. Congress enacted CERCLA in 1980 in re-

sponse to the serious environmental and health dangers

posed by property contaminated by hazardous sub-

stances. United States v. Bestfoods, 524 U.S. 51, 55

(1998). As amended by the Superfund Amendments and

Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499,

100 Stat. 1613, CERCLA provides the President, acting

3

primarily through the Environmental Protection Agency

(EPA), with several alternative means for cleaning up

contaminated property. Most important for present

purposes, Section 106(a) permits EPA to compel, by

means of an administrative order or a request for judi-

cial relief, other persons to undertake response actions,

which EPA then monitors. See 42 U.S.C. 9606(a). Sec-

tion 107(a) imposes liability for cleanup costs on four

categories of “[cJovered persons”—typically known as

potentially responsible parties (PRPs)—associated with

the release or threatened release of hazardous sub-

stances. See 42 U.S.C. 9607(a). Unless they can invoke

a statutory defense or exclusion, persons who qualify as

PRPs are liable for, inter alia, “all costs of removal or

remedial action incurred by the United States Govern-

ment or a State or an Indian tribe not inconsistent with

the national contingency plan,” 42 U.S.C. 9607(a)(1)-

(4)(A), and “any other necessary costs of response in-

curred by any other person consistent with the national

contingency plan,” 42 U.S.C. 9607(a)(1)-(4)(B).

Before CERCLA was amended by SARA in 1986,

lower courts disagreed as to whether one PRP could

bring an action against another PRP for contribution or

cost recovery, and, if so, the source of authority for such

an action. See 06-562 Pet. at 4 (citing cases). With the

enactment of SARA, however, Congress added Section

113(f), which provides PRPs with an express cause of

action against other PRPs in two specific circumstances.

First, Section 113(f)(1) provides that “[a]ny person may

seek contribution from any other person who is liable or

potentially liable under {Section 107(a)], during or fol-

lowing any civil action under [Section 106] or under

{Section 107(a)]}.” 42 U.S.C. 9613(f)(1). Second, Section

113(f)(3)(B) provides that “[a] person who has resolved

4

its liability to the United States or a State for some or

all of a response action or for some or all of the costs of

such action in an administrative or judicially approved

settlement may seek contribution from any person who

is not a party to a settlement.” 42 U.S.C. 9613(f)(3)(B).

In Cooper Industries, supra, this Court held that, in

order to pursue an action for contribution against an-

other PRP under Section 113(f)(1), a PRP must itself

have been sued under either Section 106 or Sec-

tion 107(a). See 543 U.S. at 165-168. The Court ex-

pressly left open the principal question presented here

—namely, whether a PRP could bring an action against

another PRP for cost recovery under Section 107(a), see

id. at 168-170—but it noted that “numerous decisions of

the Courts of Appeals” had held that an action for cost

recovery under Section 107(a), on a theory of joint and

several liability, was unavailable, zd. at 169.

2. In 1997, petitioners, two major corporations and

a subsidiary, filed suit against respondents, the federal

government and various departments and agencies, in

the United States District Court for the District of New

Jersey, seeking to recover costs that petitioners in-

curred in cleaning up environmental eontamination at 15

industrial facilities they owned in nine different States.

Petitioners contended that, because the federal govern-

ment had previously owned (or exercised substantial

control over) each of those facilities, the United States

was a PRP for purposes of Section 107(a) of CERCLA.

Although petitioners initially brought suit under both

Section 107(a) and Section 113(f), they subsequently

dropped their Section 107(a) claim, on the ground that

the Third Circuit had held, in two intervening cases, that

a PRP could not bring an action against another PRP for

cost recovery under Section 107(a). Pet. App. 19a-20a &

-5

n.13, 77a; see In re Reading Co., 115 F.3d 1111 (1997);

New Castle County v. Halliburton NUS Corp., 111 F.3d

1116 (1997).

The district court subsequently designated the claim

by petitioner E.I. du Pont de Nemours and Company

(DuPont) concerning a facility it owned in Louisville,

Kentucky, as a “test case” for purposes of pretrial pro-

ceedings. Pet. App. 20a, 77-78a. DuPont manufactures

neoprene, a synthetic rubber product, at the Louisville

facility. Jd. at 79a. Respondents conceded that the fed-

eral government was a PRP with regard to that facility

because a government agency owned the facility from

1942 to 1948. [bid. Because the Louisville facility pro-

duces and disposes of hazardous waste on an ongoing

basis, DuPont was required to obtain a permit for the

facility under the Resource Conservation and Recovery

Act (RCRA), 42 U.S.C. 6901 et seqg.; DuPont incurred the

cleanup costs for which recovery was being sought to

comply with specific provisions of its permit. Pet. 9 n.2;

see 42 U.S.C. 6925(a). Although RCRA contains no pro-

vision allowing a permit holder to recover costs or seek

contribution from other parties, costs incurred in com-

plying with RCRA may qualify as response costs recov-

erable under CERCLA. See, e.g., United States v.

- Rohm & Haas Co., 2 F.3d 1265, 1274-1275 (3d Cir. 1993);

Mardan Corp. v. C.G.C. Music, Ltd., 600 F. Supp. 1049,

1053-1054 (D. Ariz. 1984), aff’d, 804 F.2d 1454 (9th Cir.

1986). With regard to the Louisville facility, it was un-

disputed, first, that DuPont had not been sued under

either Section 106 or Section 107(a), and second, that

DuPont had not entered into a relevant administrative

or judicially approved settlement for purposes of Section

113(f)(3)(B). Pet. App. 20a.

6

3. Respondents moved for summary judgment as to

DuPont’s claim concerning the Louisville facility, con-

tending that, based on the undisputed facts, DuPont had

not satisfied the prerequisites for bringing an action for

contribution with regard to that facility under Section

113(f). The district court granted respondents’ motion.

Pet. App. 76a-112a. In reasoning consistent with that

later adopted by this Court in-Cooper Industries, the

district court held that DuPont could not bring suit un-

der Section 113(f)(1) because “[t]here is no Section 106

or Section 107 action,” id. at 88a; that DuPont could not

bring suit under Section 113(f)(3)(B) because “there is

no prior settlement,” id. at 90a; and that DuPont was

not aided by the savings clause in Section 113¢f)(1),

which provides that “[nJothing in this subsection shall

diminish the right of any person to bring an action for

contribution in the absence of a civil action under [Sec-

tion 106 or Section 107],” because DuPont could not

“meet the requirements of a traditional, common law

contribution action,” zd. at 96a.

4. Respondents then moved for judgment on the

pleadings with regard to the remaining facilities. The

district court granted respondents’ motion and dis-

missed the remainder of petitioners’ claims with preju-

dice. Pet. App. 115a-121a. The court reasoned that

“there is nothing in the record before this Court estab-

lishing or tending to establish with regard to any of the

remaining sites that any Plaintiff * * * either has set-

tleda * * * claim [for purposes of Section 113(f)(3)(B)]

or has been named a defendant in a (prior or on-going)

CERCLA § 106 or CERCLA § 107 action.” /d. at 119a.

5. While the case was pending on appeal, this Court

held in Cooper Industries that, in order to pursue an

action for contribution against another PRP under Sec-

7

tion 113(f)(1), a PRP must itself be sued under Section

106 or Section 107(a). Because Cooper Industries fore-

closed petitioners from arguing that they could bring

suit for contribution under Section 113(f), petitioners

instead argued on appeal that, in the wake of Cooper

Industries, they should be permitted to bring suit in-

stead under Section 107(a) (or under federal common

law). The court of appeals affirmed. Pet. App. 1la-75a.

a. The court of appeals began by recognizing that it

had previously held that a PRP could not bring an action

against another PRP for cost recovery under Section

107(a) (or under federal common law). Pet. App. 10a-14a

(citing Reading, supra, and New Castle County, supra).

In reaffirming its rule that a PRP could not bring an

action against another PRP under Section 107(a), the

_court of appeals expressly rejected the approaches of

the Second Circuit in Consolidated Edison Co. of New

York, Inc. v. UGI Utilities, Inc., 423 F.3d 90 (2005), pe-

tition for cert. pending, No. 05-1323 (filed Apr. 14, 2006),

and the Fighth Circuit in Atlantic Research Corp. v.

United States, 459 F.3d 827 (2006), petition for cert.

pending, No. 06-562 (filed Oct. 24, 2006). Pet. App. 27a-

3la & n.18. The court of appeals reasoned that this

Court’s decision in Cooper Industries “did not explicitly

or implicitly overrule our precedents” but instead “ex-

pressly declined to consider the very questions at issue

here.” /d. at 33a.

The court of appeals then rejected the argument

that a rule precluding one PRP from suing another un-

der Section 107(a) would be “in direct opposition

to CERCLA’s broad remedial purpose.” Pet. App.

36a. The court observed that, “[wJhile it is clear that

CERCLA’s drafters intended common law principles to

govern liability, we have not found evidence in the legis-

8

lative history that Congress contemplated this would

extend a contribution right to PRPs engaged in entirely

voluntary cleanups.” Jd. at 40a. Moreover, the court

noted, “SARA’s legislative history * * * reveals an

express bent toward encouraging settlements.” /d. at

42a. The court concluded that “SARA’s settlement

scheme is inconsistent with * * * aright” to recover

costs for a PRP’s voluntary cleanup. /d. at 47a. Instead,

the court reasoned, “Congress intended to allow contri-

bution for settling or sued PRPs as a way to encourage

them to admit their liability, settle with the Government,

and begin expeditious cleanup operations pursuant to a

consent decree or other agreement.” /d. at 56a.

The court of appeals acknowledged that “it could be

that encouraging sua sponte voluntary cleanups by ca- ~

pable PRPs is in the public’s interest, and would be a

better way to protect health and the environment than

pressuring them into settlement agreements.” Pet. App.

58a-59a. The court reasoned, however, that “[t]his is not

self-evident.” Jd. at 59a. Instead, the court concluded,

“the debate over whether our national environmental

cleanup laws should favor prompt and effective cleanups

in any manner * * * or should favor settlements and

other enforcement actions * * * is a matter for Con-

gress, not our Court.” Jd. at 59a-60a.

b. Judge Sloviter dissented. She noted that “[t}]wo

of our sister circuits have recently considered the same

issue presented here and both have decided, contrary to

the majority, that section 107(a) can be used by a re-

sponsible party to-seek contribution from another re-

sponsible party.” Pet. App. 69a.

6. The court of appeals denied a petition for rehear-

ing en banc, with Judge Sloviter indicating that she

would have granted the petition. Pet. App. 124a-125a.

DISCUSSION

In the wake of this Court’s decision in Cooper Indus-

tries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004),

there is a clear conflict among the courts of appeals on

the principal question left open in that case: i.e.,

whether a potentially responsible party can pursue an

action against ancther PRP under Section 107(a). The

government has filed a petition for a writ of certiorari in

United States v. Atlantic Research Corp., No. 06-562

(filed Oct. 24, 2006), in which it has asked this Court to

grant review to resolve that circuit conflict. Although

the court of appeals here, unlike the court of appeals in

Atlantic Research, correctly held that a PRP cannot

bring suit under Section 107(a), this case would also con-

stitute a suitable vehicle for resolution of the circuit con-

flict. Because the petition in this case will likely be ripe

for consideration before the petition in Atlantic Re-

search, and in light of the need for expeditious resolu-

tion of the recurring question presented by these cases

concerning the remedies available under CERCLA, the

petition for a writ of certiorari should be granted.

1. As the government explained in its petition in

Atlantic Research (at 9-14), and as petitioners correctly

note (Pet. 11-13), the decision of the court of appeals in

this case conflicts with the earlier decisions of the Sec-

ond Circuit in Consolidated Edison Co. of New York,

Inc. v. UGT Utilities, Inc., 423 F.3d 90 (2005), and the

Eighth Circuit in Atlantic Research, 459 F.3d 827

(2006). In Consolidated Edison, the Second Circuit held

that “section 107(a) permits a party that has not been

sued or made to participate in an administrative pro-

ceeding, but that, if sued, would be held liable under

section 107(a), to recover necessary response costs in-

10

curred voluntarily.” 423 F.3d at 100. And in Atlantic

Research, the Eighth Circuit held that Section 107(a)

provides a PRP with an express right of cost recovery

against another PRP, 459 F.3d et 834-835, and, in the

alternative, that “a right of contribution may be fairly

implied from the text of [Section 107(a)],” id. at 835. In

reaffirming its pre-Cooper Industries decisions holding

to the contrary, the court of appeals in this case ex-

pressly rejected the approaches of the Second and

Eighth Circuits. See Pet. App. 27a-3la & n.18. On the

other hand, the decision of the court of appeals is consis-

tent with numerous pre-Cooper Industries decisions

from other courts of appeals, which held that one PRP

could not bring an action against another under Section

107(a) in various circumstances in which the plaintiff

PRP could not avail itself of Section 113(f). See 06-562

Pet. at 5 n.2 (citing cases).

2. For the reasons discussed in greater detail in the

Atlantic Research petition (at 15-23), and contrary

to the arguments advanced by petitioners here, the

court of appeals in this case correctly held that one PRP

cannot bring an action against another under Section

107(a). The relevant language in that section provides

that PRPs shall be liable for “any other necessary

costs of response incurred by any other person consis-

tent with the national contingency plan.” CERCLA

§ 107(a)(1)-(4)(B), 42 U.S.C. 9607(a)(1)-(4)(B) (emphasis

added). The most natural reading of the phrase “any

other person” is that it excludes the persons who are the

subject of the sentence: 7.e., PRPs. And even if Section

107(a) could be construed to contain an implied right to

contribution, as petitioners suggest (Pet. 25-27), it would

at most contain a right to “contribution” in its tradi-

tional sense: that is, a right by one party to recover an

11

amount from a jointly liable party after the first party

has extinguished a disproportionate share of their com-

mon liability to a third party. Such an implied right to

contribution would not help petitioners, which have not

extinguished any liability to a third party and are thus

not seeking “contribution” as that term is traditionally

defined.

Even assuming, moreover, that Section 107(a), stand-

ing on its own, could be construed to confer on a PRP a

cause of action against another PRP for cost recovery,

that provision must be read in light of Section 113(f),

which provides a PRP with an express cause of action

against another PRP in two enumerated circumstances.

See CERCLA § 113(f)(1) and (8)(B), 42 U.S.C. 9613(f)(1)

and (3)(B). The better view is that the subsequently

enacted Section 113(f) specifies the exclusive circum-

stances in which one PRP may bring suit against an-

other under CERCLA. Allowing a PRP to bring suit

under Section 107(a) would render Section 113(f) effec-

tively superfluous and undermine CERCLA’s settle-

ment scheme, because a PRP that has not yet been sued

under Section 106 or Section 107(a) might refuse to set-

tle with the government in order to preserve its right to

sue under Section 107(a) (and thereby take advantage of

the substantially more generous provisions applicable to

such an action).

3. Although the court of appeals here (unlike the

court of appeals in Atlantic Research) correctly held

that one PRP cannot bring an action against another

under Section 107(a), this case would provide a suitable

vehicle for resolution of the circuit conflict on that ques-

tion. As this case comes to the Court, it is clear that

petitioners would not be entitled to proceed with their

claims under Section 113(f). See Pet. App. 61a-62a (af-

12

firming the district court’s decision to grant judgment

on the pleadings on the ground that, “based solely on the

pleadings, appellants have not set out facts sufficient to

demonstrate, even by inference, that they could possibly

prevail on their claim for contribution under § 113”).'

Like Atlantic Research, therefore, this case squarely

presents the question whether a PRP that is not eligible

to bring an action for contribution under Section 113(f)

may nevertheless bring an action against another PRP

under Section 107(a).

Petitioners suggest in passing (Pet. 2, 13) that this

case would constitute a better vehicle for the Court’s

review than Atlantic Research because the court of ap-

peals here held that one PRP could not bring suit

against another either under Section 107(a) or under

federal common law. That suggestion is erroneous.

Once a PRP moves beyond arguing that Section 107(a)

provides an express cause of action under these circum-

stances, it makes no material difference whether the

non-textual contribution right is claimed to be implicit in

Section 107(a) or instead to emanate from federal com-

mon law. Petitioners’ claim that federal common law

provides a right to contribution would fail for the same

reason as their claim (also advanced by the respondent

in Atlantic Research) that Section 107(a) contains an

implied right to contribution. Even assuming that Sec-

tion 107(a) or Section 113(f) did not displace such a

common-law right to contribution, it would at most con-

' While the case was on appeal, counsel for the government learned

that EPA had previously brought suit against DuPont under Section

107(a) with regard to one of the other facilities at issue. Upon the gov-

ernment’s recommendation, the court of appeals converted the district

court’s dismissal of DuPont’s claim with regard to that facility into a

dismissal without prejudice. See Pet. App. 62a n.33, 63a.

13

stitute a right to “contribution” in its traditional sense:

that is, a right by one party to recover an amount from

a jointly liable party after the first party has extin-

guished a disproportionate share of their common liabil-

ity to athird party. Thus, if the Court were to hold (ei-

ther in this case or in Atlantic Research) that a PRP

could not bring suit against another PRP based on an

implied right to contribution in Section 107(a), it would

necessarily mean that a PRP could not bring suit based _

on any analogous right under federal common law. This

ease and Atlantic Research therefore would constitute

equally suitable vehicles for this Court’s review.”

4. The petition for a writ of certiorari in this case

was filed after the petition in Atlantic Research. It ap-

pears, however, that the petition in this case will be ripe

for consideration before the petition in Atlantic Re-

search.® Although the government believes that there

* Athird case presenting the same question as this case and Atlantic

Research is currently pending, in which the Court invited the Solicitor

General to file a brief expressing the views of the United States. See

UGI Utilities, Inc. v. Consolidated Edison Co. of New York, Inc., peti-

tion for cert. pending, No. 05-1323 (filed Apr. 14, 2006). For the reasons

stated in that brief, which is being filed contemporaneously with this

one, the United States believes that UG/ Utilities would constitute a

less suitable vehicle for resolution of the common question presented

than either this case or Atlantic Research. In particular, that case,

unlike this case or Atlantic Research, does not present the question of

whether one PRP could bring an action against another on a non-

textual basis.

* The government filed its petition in Atlantic Research on October

24, 2006; the petition in this case was filed on November 21. Counsel for

the government informed counsel for the respondent in Atlantic Re-

search that the government would object to any extension of time that

would foreclose the Court’s ability to grant certiorari and hear that case

this Term, and counsel for the respondent indicated that he did not

anticipate needing to seek such an extension. On November 22, how-

14

are no material differences between the two cases in

terms of their appropriateness for review, the Court

may wish to grant review both in this case and in Atlan-

tic Research.’ In the event that the Court does so, it

should consolidate the cases for oral argument. If the

Court determines, however, that it cannot grant review

in Atlantic Research in time to allow both cases to be

heard and decided this Term, it should grant review in

this case and then hold the petition in Atlantic Re-

search. As the government explained in the Atlantic

Research petition (at 24-26), prompt review is desirable

in order to end the ongoing uncertainty in the lower

courts and provide definitive resolution of the question

presented by these cases concerning the remedies avail-

able under CERCLA.® ‘

ever—two days before the response to the petition would have been

due—counsel for the respondent informed counsel for the government

that the respondent would be waiving its response. The respondent did

not file either a response or a waiver form before the due date. The

Court subsequently requested a response, which is due on January 8.

* Inthis case, DuPont incurred the cleanup costs for which recovery

is being sought in order to comply with the specific terms of its permit

under RCRA, whereas, in Atlantic Research, there appears to be

no evidence concerning the respondent’s motivation in incurring its

cleanup costs. In the government’s view, however, a PRP is unable to

sue another PRP under Section 107(a) regardless of the plaintiff PRP’s

motivation in incurring the cleanup costs at issue. In any event,

petitioners in this case treat DuPont’s cleanup as a “voluntary” one (see

Pet. 9 n.2, 10, 13) and then argue that a PRP can sue another PRP

under Section 107(a) for the costs of any voluntary cleanup. See Pet.

17-18.

° The practical effect of the respondent’s failure to file a response or

a prompt waiver in Atlantic Research, see note 3, supra, would

ordinarily be to disable the Court from hearing that case in the current

Term, because the Court’s “{uJsual{]” practice is to call for and await a

response before granting review. See Robert L. Stern et al., Supreme

15

CONCLUSION

The petition for a writ of certiorari should be

granted. In the event that the Court also grants the

petition in United States v. Atlantic Research Corp., No.

06-562, the cases should be consolidated for oral argu-

ment.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

SUE ELLEN WOOLDRIDGE

Assistant Attorney General

THOMAS G. HUNGAR-

Deputy Solicitor General

KANNON K. SHANMUGAM

Assistant to the Solicitor

General

RONALD M. SPRITZER

ELLEN J. DURKEE

Attorneys

DECEMBER 2006

Court Practice 461 (8th ed. 2002); ef. id. at 462 (additionally noting that

“waivers should be filed promptly, in order to speed up the distribution

of the petition and the disposition of the case”). In light of the respon-

dent’s conduct and the obvious circuit conflict on (and importance of)

the question presented by these cases, however, it would be appropriate

for the Court to grant review in Atlantic Research, should it wish to do

so, without awaiting a response or, at a minimum, without waiting for

the case to be conferenced in the ordinary course. A copy of this brief

is being furnished to counsel for the respondent in Atlantic Research.