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

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No. 06-726

: IN THE

Supreme Court of the United States

E.1. DU PONT DE NEMOURS & CoO., ET AL..

Petitioners,

Vv.

UNITED STATES OF AMERICA, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

BRIEF OF

LOCKHEED MARTIN CORPORATION

AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

JAMES R. BUCKLEY MIGUEL A. ESTRADA

LOCKHEED MARTIN CORP. Counsel of Record

6801 Rockledge Drive RAYMOND B. LUDWISZEWSKI

Bethesda, MD 20817 MICHAEL K. MURPHY

(301) 897-6954 AMIR C. TAYRANI

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

Counsel for Amicus Curiae

QUESTION PRESENTED

Whether a party that is potentially responsible for

cleanup costs under Section 107(a) of the Comprehensive

Environmental Response, Compensation, and Liability Act

(“CERCLA”), 42 U.S.C. § 9607(a), and that 1s ineligible to

bring a contribution action under Section 113(f) of CERCLA,

id. § 9613(f), and this Court’s decision in Cooper Industries,

Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004), has a cause

of action under Section 107(a) to recover a portion of its re-

sponse costs from other potentially responsible parties.

TABLE OF CONTENTS

Page

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I. THIS CASE IS AN IDEAL VEHICLE For THIS

COURT TO RESOLVE THE CIRCUIT SPLIT

REGARDING THE RIGHT OF PRPs To BRING

BET GIMER SECTION 107(A) ...cccoccoecceccscsccsscceccscccssess 7

II. THE DECISION BELOW DISREGARDS THE PLAIN

LANGUAGE, LEGISLATIVE HISTORY, AND

STATUTORY OBJECTIVES OF SECTION 107(A).......... 10

III. THE DECISION BELOW CREATES A LOOPHOLE

THAT ENABLES THE UNITED STATES To

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TABLE OF AUTHORITIES

Page(s)

CASES

Atl. Research Corp. v. United States,

SOP FFG Gt Ce ls a iitistitiinihisinnteninintignale 5, 8,9

Carson Harbor Vill. v. County of Los Angeles,

GSS FF FI Ce Gk: BN ceketiictccttbinpectcbsieniteitnaatintes 15

Centerior Serv. Co. v. Acme Scrap Iron & Metal

Corp., 153 F.3d 344 (Git Civ. 1996)......ccccscoveceerovesesssveves 17

City of Philadelphia v. Stepan Chem. Co.,

SOS FE . SU. FESS GED. FO. 1G En rccsevececsevereensccentonions 12

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

BC. SEF FF Fe GE Ge Be ierctisteverncaieiarininsncnires 5,8

Cooper Indus., Inc. v. Aviall Servs., Inc.,

PE a BF Ca cieennishttnirepenciaiiontinnmnaten 4,9, 10, 13

Glidden Co. v. FV Steel & Wire Co.,

2006 U.S. Dist. LEXIS 70242

CERF ey MIN. de ig AIT sicitchossncccsesietedasgnciiiedadatickendeinien 14

In re Reading Co.,

EES eee ae Ge Gs CT Reicaritccitksesintisigiiaprmccmiiaa 4

Key Tronic Corp. v. United States,

BE RA a UE iiesesikaindeecscesiccibisathnicicbuleastascaaianenal 11

Lockheed Martin Corp. v. United States,

No. 06-01438 (D.D.C. filed Aug. 15, 2006) ...........0.00... 2

Pennsylvania v. Union Gas Co.,

as 8 ee ais tininiionciniasnccenieeintnebonieaenneionemnetias il

United States v. Bestfoods,

A le FC UE bite iceiecninscnsiiciandlincilcaabiohabedistaeiatadaaane 3

United States v. New Castle County,

CGE FB. SI. Te CE EAE, SI sctesectortctcraxevinntnrnensecnniin 9

Wickland Oil Terminals v. Asarco, Inc.,

792 F.2d 887 (9th Cir. 1986) ....ccsccsssscsccsssseccssssseeeceee 3, 12

STATUTES

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re CO 3,11

42 U.S.C. § 9607(a)(4)(B) ..ssecccsssvecescscsssssvecesseee 3,7, 8, 11, 15

I akc is i,1,11

Ce BN a 4,11

FOES S ate yan sae See mTIE tT 4

SURE CURIE oe cee pe ao 16

Superfund Amendments and Reauthorization

Act of 1986, Pub. L. No. 99-499,

RP MR Oe casidiibicinssdcasibcbebschetadlaeibiniistondechedipeiedeanilelomeipibcaseiasiia 4

REGULATIONS

PO ae GINA GPUTE cs vnchisecteis neh uctdinicliniicipsinsiontblesdencachedauahosiiunceteeamtd 3

OTHER AUTHORITIES

EBSA. RC, DEAF CLARO ceeincecrccrscsinnckorensemsvunniniapeinies 3

Eee ers BG Te CED D ovccccinacovsonsenniavciensnnsmvneoes 13, 14

H.R. REP. No. 253, 99th Cong., 1st Sess. (1985)........... 14, 15

H.R. Rep. No. 1016, 96th Cong., 2d Sess. (1980)................ 12

S. REP. No. 11, 99th Cong., Ist Sess. (1985)................ eens 12

S. REP. No. 848, 96th Cong., 2d Sess. (1980) ........... cee eee 3

Gen. Accounting Office, Hazardous Waste,

Adequacy of EPA Attorney Resource Levels

(GAO/RCED-86-81 FS) (1986) ...........cccsccssccssreeeeseeeeseees 14

U.S. Dep’t of the Treasury, Financial Report of the

United States Government (2006), at http://

www.fins.treas.gov/fr/06frusg/O6frusg.pdf............. ee 16

Wm. Bradford Reynolds & Lisa K. Hsiao, The

Right of Contribution Under CERCLA After

Cooper Industries v. Aviall Services,

Fe Biss TA Rade OTe I sed vecshtissvireindshoeccnmsianmnein 13

BRIEF OF LOCKHEED MARTIN CORPORATION AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE!

The question presented in this case is whether a party

that is potentially responsible for cleanup costs under Section

107(a) of the Comprehensive Environmental Response,

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

§ 9607(a), and that is ineligible to bring a contribution action

under Section 113(f) of CERCLA, id. § 9613(f), has a cause

of action under Section 107(a) to recover a portion of its re-

sponse costs from other potentially responsible parties

(“PRPs”). Amicus has a significant interest in the correct

resolution of this question because—consistent with one of

CERCLA’s principal objectives—it has initiated voluntary

remediation activities at sites throughout the United States

and could be left without an effective mechanism to recover

even a portion of its cleanup costs if the decision below is not

reversed.

Lockheed Martin Corporation is one of the world’s lead-

ing advanced technology and aerospace companies. Ap-

proximately eighty-five percent of Lockheed Martin’s busi-

ness is with the United States Department of Defense and

various federal agencies. In connection with this work,

Lockheed Martin owns or operates a number of facilities that

were formerly owned or operated by the federal government

or at which work is performed exclusively pursuant to gov-

ernment contracts.

! Pursuant to this Court’s Rule 37.3(a), letters of consent from all parties

to the filing of this brief have been submitted to the Clerk. Pursuant to this

Court’s Rule 37.6, amicus states that this brief was not authored in whole

or in part by counsel for any party, and that no person or entity other than

amicus or its counsel made a monetary contribution to the preparation or

submission of this brief.

If left undisturbed, the Third Circuit’s holding that PRPs

may not bring Section 107(a) cost-recovery actions, even if

they are ineligible to pursue a contribution claim under Sec-

tion 113(f), will have significant financial ramifications for

Lockheed Martin and other members of the defense industry.

For example, Lockheed Martin has brought suit against the

United States under Section 107(a) to recover tens of millions

of dollars it expended to remedy the release of hazardous sub-

stances from a wartime production facility that the United

States operated in Hempstead, New York. See Lockheed

Martin Corp. v. United States, No. 06-01438 (D.D.C. filed

Aug. 15, 2006). Relying on the same arguments endorsed by

the court of appeals in the decision below, the United States

has moved to dismiss the suit on the ground that, as a PRP,

Lockheed Martin is not permitted to recover costs under Sec-

tion 107(a).

Lockheed Martin has frequently participated as an

amicus curiae in litigation concerning the right of voluntary

remediators to recover costs from other responsible parties

under CERCLA. See, e.g., Br. of Lockheed Martin Corpora-

tion as Amicus Curiae in Supp. of Resp’t, Cooper Indus., Inc.

v. Aviall Servs., Inc., 543 U.S. 157 (2004) (No. 02-1192).

Lockheed Martin is concerned that if recovery rights under

Section 107(a) were deemed to be unavailable to PRPs, the

incentive to undertake voluntary cleanups would be signifi-

cantly diminished and companies that engage in voluntary

remediation would be forced unjustly and unjustifiably to

bear costs that are in large part attributable to other parties.

Moreover, until this Court authoritatively resolves the circuit

split on this issue, Lockheed Martin and similarly situated

companies will be forced to develop hazardous waste cleanup

programs without the benefit of clear legal rules.

STATEMENT

1. Congress enacted CERCLA in 1980 to respond to the

significant environmental and public health hazards posed by

industrial pollution. See United States v. Bestfoods, 524 U.S.

51, 55 (1998). Congress’s primary objectives in adopting this

comprehensive remedial scheme were to “induce potentially

liable persons to voluntarily mitigate damages rather than

simply rely on the government to abate hazards,” S. REP. No.

848, 96th Cong., 2d Sess., at 31 (1980), and to facilitate the

apportionment of cleanup costs among responsible parties.

126 CONG. REC. 26,338 (1980) (statement of Rep. Florio).

“The remedy that Congress felt it needed in CERCLA is

sweeping: everyone who is potentially responsible for haz-

ardous-waste contamination may be forced to contribute to

the costs of cleanup.” Bestfoods, 524 U.S. at 56 n.1 (empha-

sis in original; internal quotation marks omitted).

CERCLA’s principal liability provision is Section

107(a), which lists four classes of potentially responsible par-

ties, including the current owner of a facility and the owner or

operator of a facility at the time the hazardous substances

were released. 42 U.S.C. § 9607(a)(1)-(4). The section pro-

vides that these PRPs “shall be liable” for “all costs of re-

moval or remedial action incurred by the United States Gov-

ernment ... not inconsistent with the national contingency

plan.” Jd. § 9607(a)(4)(A).2 PRPs are also liable for “any

other necessary costs of response incurred by any other per-

son consistent with the national contingency plan.” /d.

§ 9607(a)(4)(B) (emphasis added).

2. In the years immediately following CERCLA’s en-

actment, courts concluded that PRPs could bring an original

action to recover remedial costs from other responsible par-

ties pursuant to-the plain language of Section 107(a). See,

e.g., Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887,

890-92 (9th Cir. 1986). There was less certainty, however,

about whether the statute authorized a derivative contribution

2 The national contingency plan consists in part of regulations promul-

gated by the EPA to implement CERCLA. See 40 C.F.R. pt. 300.

action by “a private entity that had been sued in a cost recov-

ery action (by the Government or by another PRP).” Cooper

Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 162 (2004).

Congress resolved this ambiguity by enacting the Superfund

Amendments and Reauthorization Act of 1986 (“SARA”),

Pub. L. No. 99-499, 100 Stat. 1613. SARA added an explicit

contribution cause of action in Section 113(f)(1), which clari-

fied that, “during or following any civil action under [Section

106] or under [Section 107(a)],” a PRP can equitably allocate

responsibility for response costs among other PRPs. 42

U.S.C. § 9613(f)(1); see also id. § 9613(f)(3)(B) (authorizing

parties that have entered into a settlement agreement with the

United States or a State to seek contribution from other

PRPs).

After SARA’s enactment, the lower courts broadly con-

strued Section 113(f)(1) based on the assumption that PRPs

could bring contribution actions against other PRPs regard-

less of whether a preexisting civil action had been filed

against them. See, e.g., In re Reading Co., 115 F.3d 1111,

1120 (3d Cir. 1997). In Aviall, however, this Court clarified

that contribution actions under Section 113(f)(1) may only be

brought “during or following” a Section 106 or Section

107(a) civil action. 543 U.S. at 165. The Court also ex-

pressly identified, but left open, the present question—

whether PRPs ineligible to file a contribution claim may in-

stead pursue cost-recovery actions under Section 107(a). Jd.

at 169; see also id. at 172 (Ginsburg, J., dissenting) (urging

the Court to reach the Section 107(a) issue and to hold that

PRPs may bring suit under that section). In declining to re-

solve the question, the Avia// Court noted that prior lower-

court decisions holding that PRPs cannot pursue Section

107(a) claims might have to be revisited in light of its hold-

ing. Jd. at 169-70.

In the wake of Aviall, the circuits have reached inconsis-

tent conclusions regarding the right of voluntary remediators

and other PRPs ineligible to seek contribution under Section

113(f) to bring Section 107(a) cost-recovery actions. In addi-

tion to the petition for certiorari in this case, there are two

other petitions presenting this question that are currently

pending before this Court. See Consol. Edison Co. of N.Y.,

Inc. v. UGI Utils., Inc., 423 F.3d 90 (2d Cir. 2005), petition

for cert. filed, No. 05-1323 (Apr. 14, 2006); Atl. Research

Corp. v. United States, 459 F.3d 827 (8th Cir. 2006), petition

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

3. In the decision below, a divided panel of the Third

Circuit—explicitly rejecting the reasoning of contrary deci-

sions from the Second and Eighth Circuits—held that a PRP

ineligible to bring a contribution claim under Section 113(f)

is not entitled to pursue a cost-recovery action under Section

107(a). The panel majority opined that “a PRP seeking to

offset its cleanup costs must invoke contribution under § 113”

and that “the express cause of action under § 107 (cost recov-

ery) is limited to governments and Indian tribes (acting in

their enforcement capacity) and innocent landowners.” Pet.

App. 26a. The panel majority reasoned that the distinction

between innocent parties and non-innocent PRPs is based “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.” Jd.

at 10a (internal quotation marks omitted). Accordingly, the

majority continued, “a potentially responsible person does not

experience section 107 injury and cannot obtain section 107

relief.” Jd. at 10a-11a (internal quotation marks omitted).

The majority also premised its holding in part on its de-

termination that, when enacting SARA, Congress sought to

discourage voluntary cleanups not supervised by a govern-

ment agency. Pet. App. 5la-54a. While acknowledging that

“{t]here is, of course, no explicit indication in SARA or the

legislative history that Congress was motivated by these con-

cerns,” the majority nevertheless contended that the “import

of Congress’ scheme ... is consistent with the EPA’s wari-

ness of wholly voluntary and unregulated cleanups.” /d. at

54a.

In dissent, Judge Sloviter endorsed the Second and

Eighth Circuits’ holdings that a PRP may bring suit under

Section 107(a) to recover voluntary remediation costs. She

cautioned that “the effect of the majority’s opinion will be

that parties will be reluctant to engage in voluntary cleanups

for fear that they may not be able to obtain contribution.”

Pet. App. 75a.

SUMMARY OF ARGUMENT

This case is an ideal vehicle for this Court to settle con-

clusively the question—left unresolved in Aviall—whether

voluntary remediators and other PRPs ineligible to seek con-

tribution under Section 113(f) of CERCLA may pursue a

cost-recovery action against other responsible parties under

Section 107(a). Certiorari is warranted because this excep-

tionally important question has sharply divided the lower

courts and directly implicates the twin aims of CERCLA: the

promotion of prompt, voluntary cleanups and the equitable

apportionment of cleanup costs among responsible parties.

The resolution of this question will determine whether private

parties will continue to undertake the voluntary remediation

of contaminated sites—or will instead wait for the initiation

of government enforcement actions before commencing

cleanup efforts—and whether hundreds of millions of dollars

that have already been expended on voluntary cleanups will

be allocated among all liable parties or will instead be borne

entirely by those responsible corporate citizens that voluntar-

ily initiated the cleanups. ed

The Third Circuit’s conclusion that PRPs may not bring

suit under Section 107(a) directly conflicts with decisions

from the Second and Eighth Circuits, and flatly contradicts

CERCLA’s plain language, legislative history, and statutory

objectives. In derogation of this Court’s holding in Aviall

that the plain language of CERCLA must be given controlling

weight, the Third Circuit disregarded Section 107(a)’s unam-

biguous authorization that “any ... persen” who has engaged

in the remediation of hazardous waste—including a PRP—

may bring an action to recover cleanup costs. 42 U.S.C.

§ 9607(a)(4)(B) (emphasis added).

CERCLA’s legislative history confirms that Congress in-

tended to authorize cost-recovery actions by voluntary reme-

diators in order to facilitate the prompt cleanup of contami-

nated sites. Indeed, it was well-established when Congress

enacted SARA that Section 107(a) cost-recovery actions were

available to PRPs that engaged in voluntary remediation.

There is no indication in the statutory text or legislative his-

tory that, when it amended CERCLA to add the contribution

cause of action in Section 113(f), Congress simultaneously

intended to curtail the availability of existing cost-recovery

actions to parties ineligible to seek contribution. Moreover,

the Third Circuit’s holding effectively immunizes the federal

government from its substantial share of CERCLA liability at

the many sites now being remediated on a voluntary basis, in

contravention of CERCLA’s explicit directive that the federal

government receive the same treatment as all other parties

responsible for the discharge of hazardous waste.

Because the Third Circuit’s legally untenable holding

will significantly impede the important objectives that under-

pin CERCLA and foster substantial regulatory uncertainty,

the petition for a writ of certiorari should be granted.

ARGUMENT

I. THis CASE Is AN IDEAL VEHICLE FOR THIS COURT

To RESOLVE THE CIRCUIT SPLIT REGARDING THE

RIGHT OF PRPs TO BRING Suir UNDER SECTION

107(A).

1. In the aftermath of this Court’s holding in Aviaill that

PRPs may only assert a contribution claim under Section

113(f)(1) during or following a CERCLA civil action, a clear

and significant circuit split has emerged regarding the nght of

PRPs to bring cost-recovery actions under Section 107(a) of

CERCLA. In direct conflict with the Third Circuit’s holding

in the decision below, both the Second and Eighth Circuits

have held that PRPs that are ineligible to pursue a contribu-

tion claim under Section 113(f) may seek to recover cleanup

costs in a Section 107(a) action.

In Consolidated Edison Co. of New York, Inc. v. UGI

Utilities, Inc., the Second Circuit held that this issue “is easily

resolved based on [Section 107(a)’s] plain language.” 423

F.3d at 99. The court explained that “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.” Jd. (quoting 42 U.S.C. § 9607(a)(4)(B)) (emphasis

added). The court concluded that, in light of Aviall, “it no

longer makes sense to view section 1 13(f)(1) as the means by

which the section 107(a) cost recovery remedy is effected by

[PRPs]. Each of those sections ... embodies a mechanism

for cost recovery available to persons in different procedural

circumstances.” Jd. PRPs that cannot bring suit under Sec- —

tion 113(f), the court explained, may instead obtain cost re- ‘

covery in a Section 107(a) action. /d. at 100.

In Atlantic Research Corp. v. United States, the Eighth

Circuit agreed with the Second Circuit, concluding that “A vi-

all undermines [its prior circuit precedent holding that PRPs

may not bring Section 107(a) actions], and the judge-created

analytic upon which it relies.” 459 F.3d at 833. Following

this Court’s instruction in Avial/ to heed CERCLA’s plain

language, the court “reject{ed] an approach which categori-

cally deprives a liable party of a § 107 remedy” because the

court could “find no such limitation in Congress’s words.”

Id. at 835. The court also found a right of contribution im-

plied in the language and structure of Section 107(a), recog-

nizing that “nothing in CERCLA’s words[] suggest[s] Con-

gress intended to establish a comprehensive contribution and

cost recovery scheme encouraging private cleanup of con-

taminated sites, while simultaneously excepting—indeed, pe-

nalizing—those who voluntarily assume such duties.” Jd. at

836.

This circuit split warrants the Court’s immediate atten-

tion. In the absence of a clear rule authorizing voluntary

remediators to recover a portion of their cleanup costs from

other responsible parties, PRPs will understandably be reluc-

tant to incur further voluntary response costs because,

“(without the benefit of section 107(a)(4)(B), any responsi-

ble person who voluntarily comes forward to cleanup a site

would be subjected to liability for the entire clean-up cost.”

United States v. New Castle County, 642 F. Supp. 1258,

1264-65 (D. Del. 1986). In order to assure themselves of the

ability to recover a portion of their response costs from other

responsible parties, PRPs will likely postpone remediation

efforts until they either have been sued or have entered into a

settlement agreement, which would entitle them to bring a

contribution claim under Section 113(f). Moreover, without

this Court’s guidance, the current judicial confusion regard-

ing the contours of CERCLA’s remedial scheme will foster

uncertainty in the business community and impede property

transactions and corporate acquisitions. It is therefore essen-

tial both to the well-being of the Nation’s environment and to

the vitality of the United States economy that this Court clar-

ify the proper interpretation of Section 107(a) and settle “the

significant issue” of its relationship with Section 113(f) left

unresolved in Avial/. 543 U.S. at 169.

2. Each of the post-Aviall circuit court decisions that has

addressed the right of voluntary remediators to recover re-

sponse costs is currently pending before this Court on a peti-

tion for a writ of certiorari. This case presents an ideal vehi-

cle for definitively resolving the question left open in Aviall

because the Third Circuit considered each of the possible re-

medial avenues potentially available to PRPs ineligible to

bring suit under Section 113(f): The court reaffirmed a prior

Third Circuit decision holding that Section 107(a) does not

create an express cause of action for PRPs and also explicitly

“refuse[d] DuPont’s invitation to imply a cause of action for

contribution under § 107 or the common law available to

PRPs engaged in sua sponte voluntary cleanups.” Pet. App.

60a. By reviewing the Third Circuit’s decision, this Court

will thus be able to resolve conclusively whether PRPs ineli-

gible to seek contribution under Section 113(f) have any

means of recovering response costs from other parties, in-

cluding through an express or implied cause of action under

Section 107(a) or a right to contribution under the federal

common law.

Although neither Consolidated Edison nor Atlantic Re-

search considers the availability of a remedy under the fed-

eral common law and thus does not afford the Court the same

opportunity to resolve definitively the availability of a cause

of action for voluntary PRPs, the Court may also wish to

grant the petitions in one or both of those cases and consoli-

date them along with the decision below for consideration.

Il. THE DECISION BELOW DISREGARDS THE PLAIN

LANGUAGE, LEGISLATIVE HISTORY, AND

STATUTORY OBJECTIVES OF SECTION 107(A).

This Court’s review is also warranted because the Third

Circuit’s holding that PRPs are categorically foreclosed from

bringing suit under Section 107(a) cannot be reconciled with

the plain language, legislative history, or statutory objectives

of CERCLA.

1. Any analysis of whether PRPs ineligible to file a con-

tribution claim under Section | 13(f) can instead seek cost re-

covery under Section 107(a) should begin, and end, with the

unambiguous language of Section 107(a). Cf Aviall, 543

U.S. at 167 (“Given the clear meaning of the text, there is no

need to resolve this dispute or to consult the purpose of CER-

CLA at all.”).

Section 107(a) describes four categories of persons who

are liable under the statute in subparagraphs (1) through (4),

and therrstates that a party so described “shall be liable” to

(A) the United States, States, and Indian Tribes for response

costs not inconsistent with the national contingency plan

(“NCP”), and (B) “any other person” for response costs con-

sistent with the NCP. 42 U.S.C. § 9607(a)(4)(A)-(B).

Clauses (A) and (B) complement each other, creating a

structure that permits government agencies and Indian Tribes

to recover costs with a presumption of compliance with the

NCP. 42 U.S.C. § 9607(a)(4)(A). Private parties—including

PRPs—may also seek recovery under Section 107(a), but

bear the burden of proving that any costs incurred are “con-

sistent with the [NCP].” Jd. § 9607(a)(4)(B). Indeed, on sev-

eral occasions, this Court has explicitly recognized that Sec-

tion 107(a) creates a cause of action available to PRPs, ex-

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

(1994), for example, that the provision “impliedly authorizes

private parties to recover cleanup costs from other PRP’s.”

Id. at 818; see also Pennsylvania v. Union Gas Co., 491 U.S.

1, 21-22 (1989) (CERCLA “allow[s] private parties who vol-

untarily cleaned up hazardous-waste sites to recover a propor-

tionate amount of the costs of cleanup from the other poten-

tially responsible parties”) (emphasis added), overruled on

other grounds by Seminole Tribe v. Florida, 517 U.S. 44

(1996).

Together, Sections 107(a) and 113(f) create a compre-

hensive regime that enables all parties who have incurred re-

sponse costs to recover a portion of those costs from other

responsible parties. A PRP who has expended cleanup costs

voluntarily or is otherwise ineligible to seek contribution un-

der Section 113(f) because it has not been sued in a CERCLA

“civil action” or entered into a CERCLA settlement may seek

recovery of its response costs under Section 107(a). A PRP

who has been sued in a “civil action under [Section 106] or

under [Section 107(a)]” (42 U.S.C. §9613(f)(1)) or who has

settled its liability with the federal government or a State may

bring a contribution claim under Section 113(f) to recover a

portion of its cleanup costs from other responsible parties.

Notwithstanding the unambiguous language of Section

107(a)—and this Court’s repeated affirmations of the statu-

tory text’s plain meaning—the Third Circuit devoted almost

no attention to the statutory language. See Pet. App. 57a n.32

(rejecting in a footnote Consolidated Edison’s reading of the

plain language of Section 107(a)). The court instead relied

upon a novel interpretation of SARA’s legislative history to

support its conclusion that voluntary remediators lack a rem-

edy under CERCLA. As discussed below, the Third Circuit’s

analysis cannot withstand even mild scrutiny.

2. The legislative history of CERCLA and the congres-

sional objectives that animated its enactment confirm that

PRPs ineligible to seek contribution under Section 113(f)

may bring a cost-recovery action under Section 107(a).

a. Consistent with Congress’s intention of “induc[ing]

persons voluntarily to pursue appropriate environmental re-

sponse actions with respect to inactive hazardous waste

sites,” H.R. Rep. No. 1016, 96th Cong., 2d Sess., at 17

(1980), courts interpreting Section 107(a)-before the enact-

ment of SARA recognized the right of PRPs to file cost-

recovery actions based upon the statute’s plain language.

See, e.g., Wickland Oil Terminals, 792 F.2d 887; City of

Philadelphia v. Stepan Chem. Co., 544 F. Supp. 1135, 1143

(E.D. Pa. 1982). Nothing in SARA—which was enacted to

“clarify and confirm” the existence of a contribution cause of

action under CERCLA (S. Rep. No. 11, 99th Cong., Ist Sess.,

at 44 (1985)}—modified the language of Section 107(a) or

otherwise evidenced an intention on the part of Congress to

abrogate those decisions holding that PRPs may bring suit

under Section !07(a).

Congress in fact expressed an opposite desire when en-

acting SARA by including in Section 113(f)(1) a savings

clause, which “rebuts any presumption that the express right

of contribution provided by the enabling clause [of Section

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

available to a PR?.” Aviall, 543 U.S. at 166-67. Indeed,

congressional support for voluntary cleanups was unwavering

during the consideration of SARA. See, e.g., 131 CONG. REC.

24,730 (1985) (statement of Sen. Domenici) (“One important

component of the realistic strategy must be the encourage-

ment of voluntary cleanup actions or funding without having

the President relying on the panoply of administrative and

judicial tools available.”).

b. With this background in mind, it strains credulity to

assert—as did the Third Circuit—that, by codifying the right

of a PRP to pursue a contribution action after a CERCLA

civil action has been filed, Congress intended to restrict the

right of those PRPs ineligible to seek contribution under Sec-

tion 113(f) to file an action to recover a portion of their re-

sponse costs under Section 107(a). The Third Circuit never-

theless concluded that SARA limited remedial suits to those

PRPs who have been found liable in a CERCLA civil action

and or who have secured negotiated cleanups under govern-

ment supervision. The Third Circuit did not claim that this

limitation on the availability of Section 107(a) actions ap-

pears in the text of CERCLA, did not point to any statements

in either CERCLA or SARA’s legislative history that explic-

itly endorse it, and did not cite any court that has agreed with

its conclusions. The Third Circuit instead relied on a single

law review article written by the prevailing counsel in the

Aviail case to support the notion that SARA was intended to

promote settlements between PRPs and the federal govern-

ment, to the exclusion of voluntarily initiated cleanup efforts.

See Wm. Bradford Reynolds & Lisa K. Hsiao, The Right of

Contribution Under CERCLA After Cooper Industries v. Avi-

all Services, 18 TUL. ENVTL. L.J. 339 (2005). No other court

has adopted the Third Circuit’s dubiously supported reason-

ing. Cf Glidden Co. v. FV Steel & Wire Co., 2006 U.S. Dist.

LEXIS 70242, at *10 (E.D. Wis. Sept. 21, 2006) (rejecting

the Third Circuit’s interpretation of SARA).

To be sure, when Congress enacted SARA, it was at-

tempting to encourage settlements. It did so, however, as an

alternative to lengthy litigation with the EPA—not as an al-

ternative to voluntary cleanups. In the six years between the

initial enactment of CERCLA and its amendment through

SARA, protracted CERCLA litigation had been common.

PRPs routinely resisted the EPA’s cleanup demands, and the

EPA was often forced to resort to costly litigation against re-

calcitrant PRPs. In SARA, Congress “tried . . . to refocus the

intent of the [CERCLA] program back on cleaning up the

sites and away from the slow and costly litigation.” 131

CONG. REC. 24,730 (1985) (statement of Senator Domenici).

In so doing, however, Congress did not mandate that all

cleanups nationwide be placed under the control and regula-

tion of the EPA. Indeed, Congress was well aware in 1986

that the EPA was not in any position to assume a more com-

prehensive oversight role.> The General Accounting Office

had issued numerous reports to Congress regarding the EPA’s

enforcement of CERCLA. These reports painted a bleak pic-

ture of an agency overwhelmed and understaffed, and unable

to meet the requirements of CERCLA or the expectations of

Congress. See Gen. Accounting Office, Hazardous Waste,

Adequacy of EPA Attorney Resource Levels (GAO/RCED-

86-81 FS) (1986).

3 The House Report accompanying SARA neatly summarizes the situa-

tion. See H.R. Rep. No. 253, 99th Cong., Ist Sess., pt. 1, at 55 (1985)

(“Under the initial leadership of Assistant Administrator Lavelle, the

[CERCLA] program was victimized by gross mismanagement. ... [After

a Congressional investigation,] over twenty top-level officials, including

the Administrator of the EPA, resigned or were fired from their jobs. As-

sistant Administrator Lavelle is currently serving a jail term [for lying to

Congress].”).

Moreover, the Third Circuit’s contention that negotiated

cleanups are somehow more protective of the environment

than voluntary cleanups is simply mistaken. Voluntary, inde-

pendent cleanups have always been an integral part of the

CERCLA scheme. See H.R. REP. No. 253, 99th Cong., Ist

Sess., pt. 5, at 58 (1985) (“[vjoluntary cleanups are essential

to a successful program for cleanup of the Nation’s hazardous

substance pollution problem”). Instead of imposing a cum-

bersome bureaucratic review process on every cleanup,

CERCLA relies on financial incentives to ensure that volun-

tary cleanups are thorough and effective. Parties are discour-

aged from performing unsafe or inadequate cleanups because

they will be unable to recover their costs from other parties if

they cannot prove that their costs were “necessary” and “con-

sistent with the [NCP].” 42 U.S.C. § 9607(a)(4)(B).4 Thus,

by excluding voluntary PRPs from the ambit of Section

107(a), the Third Circuit’s decision neutralizes one of

CERCLA’s principal tools for promoting environmental

remediation.

lI. THE DECISION BELOW CREATES A LOOPHOLE

THAT ENABLES THE UNITED STATES TO ESCAPE

CERCLA LIABILITY.

Certiorari is also necessary for the additional reason that

the Third Circuit’s holding effectively immunizes the United

States from CERCLA liability and therefore significantly un-

dermines CERCLA’s ability to bring about prompt hazardous

waste cleanups and the equitable allocation of response costs.

The federal government is itself a PRP at numerous sites

throughout the country. Indeed, at the end of fiscal year

4 Courts routinely review the cleanups underlying Section 107(a) claims

to ensure they are necessary and consistent with the NCP. See, e.g., Car-

son Harbor Vill. v. County of Los Angeles, 433 F.3d 1260 (9th Cir. 2006)

(Section 107(a) claim denied on the ground that the cleanup violated the

public comment requirement).

2002, 158 of the 1,233 sites on CERCLA’s National Priori-

ties List—a list of the most-contaminated sites in the Na-

tion—were owned or operated by the United States.° Under

the Third Circuit’s holding, the federal government would

effectively be given a veto over the right of other PRPs to re-

cover cleanup costs from it. At any site at which the federal

government is a PRP, no private party would be authorized to

initiate a contribution claim against it in the absence of a

CERCLA enforcement action brought by the federal govern-

ment or a State. Because it is rare for state regulators to file

suit under CERCLA, rather than relying upon state-law

remedies, such a rule effectively hands the federal govern-

ment the keys to its own CERCLA liability and affords the

government the power to avoid any liability by declining to

initiate enforcement actions. This result is wholly inconsis-

tent with Congress’s clear intent that the United States be

treated just like a private party under CERCLA. See 42

U.S.C. § 9620(a) (“Each department, agency, and instrumen-

tality of the United States . . . shall be subject to . . . this chap-

ter in the same manner and to the same extent, both proce-

durally and substantively, as any nongovernmental entity, in-

cluding liability under section [107]”).

Indeed, the federal government has consciously pursued

a litigation strategy in which it has advocated conflicting le-

gal theories in an apparent effort to minimize its exposure

under CERCLA. The United States has previously repre-

sented to this Court that the “any other person” formulation in

Section 107(a) encompasses PRPs. See Br. for the United

States as Amicus Curiae Supporting Pet’r at 20-21, Aviall

(No. 02-1192) (“Section 107(a)(1)-(4)(B)’s reference to ‘any

person’ is broad enough to allow one jointly liable party to

5 The United States faced $259 billion in environmental liabilities at the

end of fiscal year 2004. See U.S. Dep’t of the Treasury, Financial Report

of the United States Government 69 (2006), at http://

www. fms.treas.gov/fr/06frusg/06frusg. pdf.

sue another for the former’s response costs”). Without a

word of explanation for its shifting litigation position, the

United States now contends that CERCLA provides no reme-

dial rights for voluntary PRPs. See United States Pet. for

Writ of Cert., Atl. Research (No. 06-562).

The United States’ inconsistent arguments regarding the

ability of PRPs to pursue cost-recovery actions represent only

one example of its ever-shifting interpretations of CERCLA.

In Centerior Service Co. v. Acme Scrap Iron & Metal Corp.,

153 F.3d 344 (6th Cir. 1998), for example, the federal gov-

ernment argued that Section 107(a) cost-recovery actions

cannot be brought by PRPs because contribution claims are

available to such parties under Section 113(f)(1). See U.S.

Br. at 28, Centerior (No. 97-3163). Having successfully per-

suaded several circuits to hold that PRPs cannot pursue Sec-

tion 107(a) cost-recovery actions by emphasizing the avail-

ability of Section 113(f)(1) contribution claims, the govern-

ment then turned around in Aviall and argued that PRPs may

not recover voluntarily incurred cleanup costs through the

very contribution mechanism that it had previously endorsed

before the lower courts.

The government’s shifting litigation positions cannot ob-

scure the fact that any interpretation of CERCLA that creates

a loophole through which the United States might escape a

portion of its extensive environmental liability seriously un-

dermines CERCLA’s objectives of remediating hazardous

waste and fairly allocating cleanup costs.

CONCLUSION

For the foregoing reasons, the petition for a writ of cer-

tiorari should be granted.

Respectfully submitted.