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

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No. 06-726 Supsen i COURT. U.S._|

A A

In the Supreme Court of the United States

E.1. 00 PONT DE NEMOURS AND COMPANY, FT. AL...

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF OF AMICI CURIAE

SUPERFUND SETTLEMENTS PROJECT,

AMERICAN CHEMISTRY COUNCIL,

AMERICAN PETROLEUM INSTITUTE, NATIONAL

ASSOCIATION OF MANUFACTURERS, AND

UNITED STATES CONFERENCE OF MAYORS

IN SUPPORT OF PETITIONERS

MICHAEL W. STEINBERG

Counsel of Record

KEVIN P. MCCULLOCH

MORGAN, LEWIS & BOCKIUS LLP

1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

(202) 739-5141

Counsel for Amici Curiae

eR Maleate ir PNR ROR ARR AL aN iat

WiILSON-EPES PRINTING CO .INC. = (202) 789-0096 -— WASHINGTON,D C 20001

TABLE OF CONTENTS

Page

EA GF PE Tee Se ivsssnsincciendstectsnncanosammennrecies il

INTEREST OF THE AMICI CURIAE ................cccc00000 2

SUMMARY OF ARGUMENT ................ccccccceceseseeeeeees 5

PFE AE abtivinacuthisingiablcutstenucnittcien deieindadamaiaa 7

THE THIRD CIRCUIT’S DECISION DENY-

ING THE RIGHT OF CONTRIBUTION WILL

DISCOURAGE AND DELAY THE CLEANUP

OF CONTAMINATED SITES, FRUSTRATING

THE CENTRAL PURPOSE OF CERCLA........... 7

A. Sites Polluied by the Federal Government .. 12

B. RCRA Corrective Action Sites ................0 15

Ge FE Se ccicnstssvictictacisnd-chasnaccanceonn 16

EP, PR CG ccictisdeicciitcdstysvnsenientcnonnaiin 17

Ra NI EE scesontesssnuctsorstes sincablaaieccaunaleimaioksuaaiiedins 19

(1)

TABLE OF AUTHORITIES

FEDERAL CASES Page

Atlantic Research Corp. v. United States, 459

awe ET COM GAN. LUGO) cccccccccorecocovesevevncescerseses 4,14

Aviall Servs., Inc. v. Cooper Indus., Inc., 263

i CGA, QPS ) vreeserresccsevesecorsosevesesvevece 11

Bedford Affiliates v. Sills, 156 F.3d 416 (2d Cir.

asc cia chieenceupsiginrnevindipenedeseionens 1]

City of Phila. v. Stepan Chem. Co., 544 F. Supp.

I Oe scesoimsvecsoimenscee 9

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

Utils., Inc., 423 F.3d 90 (2d Cir. 2005) ............. 4,10

FMC Corp v. Aero Industries, Inc., 998 F.2d 842

Ce wiseabiashinceie 7

Hicks Family v. Ist Nat'l Bank of Howell, 2006

Mich. App. LEXIS 2932 (Mich. App. Ct.

ao cadcehasibanbivs 12

In re Bell Petroleum Servs., Inc., 3 F.3d 889 (Sth

ce ce 8

In re Reading, 115 F.3d 1111 (3d Cir. 1997)........ 11

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

os sla satslveioherpits 7

New York v. Shore Realty Corp., 759 F.2d 1032

(2d Cir. 1985) ........ * EE RT eet Oe DOPE PT 8

Pennsylvania vy. Union Gas Co., 491 U.S. |

i scernbesiiopers 7

Pinal Creek Group v. Newmont Mining Corp.,

ee Pe BoP CP CH. 1997) 20 cccceveccccccesccvrsccess 10

Seminole Tribe v. Florida, 517 U.S. 44 (1996)... 7

Syms v. Olin Corp., 408 F.3d 95 (2d Cir. 2005)... 10

United States v. Bestfoods, 524 U.S. 51 (1998)..... 7

United States v. Monsanto Co., 858 F.2d 160 (4th

a renuuebiokie 8

United States v. Rohm &4laas, Inc., 2 F.3d 1265

Ea REE Re eo ce 16

iil

TABLE OF AUTHORITIES—Continued

Page

Westfarm Assoc. Lim. Part. v. Washington

Suburban Sanitary Comm., 66 F.3d 699 (4th

oes Foret lchnictniseshsteciieisnteenpinendpesianeunchansaisitinaleddetitinestes 10

Westinghouse Electric Co. v. United States, No.

4:03CV00861 SNL (E.D. Mo., filed June 26,

TTT ictinitiintshietiligatieitiaiiiiinteaedhainbupnisce:biliasiaitiieiimadis 13

STATUTES

Comprehensive Environmental Response, Com-

pensation, and Liability Act of 1980

(CERCLA), as amended, 42 U.S.C. §§ 9601-

SAUTE eeretictrindsheninsnecibesdachccaecosdbbiitephiiiieaaiadianininhaiacdatanadia passim

Section 104, 42 U.S.C. § 9604 .............. aebeis l6

Section 120(a4), 42 U.S.C. § 9620(a)(4)..... 11, 14

Brownficlds Revitalization and Environmental

Restoration Act of 2001, Pub. L. No. 107-118,

115 Stat. 2356 (2002) ...... pirailisnaiiuieidinaiosnadialilatsac 17

Resource Conservation and Recovery Act of

1976 (RCRA), as amended, 42 U.S.C. §§ 6901-

ee ri ccihete inter seacicactctathmesaia Bidhinmamrenicdies 15

ms Section 3004¢u), 42 U.S.C. § 6924(u)........... 15

Section 3013, 42 U.S.C. § 6934 0... eas 15

CODE OF FEDERAL ®&GsULATIONS

Gs FE Fee i ninticccvicishitoricnetitceiotintns )

40 C.F.R. § 300.436 (2006) .................0ccccceeescseerees 16

FEDERAL REGISTER ,

55 Fed. Reg. 8666 (1/990) spdiehaiieiinallhsnbikevintenacandanpaion 9

6 .

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS Page

Deep Pockets: Taxpayer Liability for Environ-

mental Contamination, Cotmmittee Print No. 2,

Subcommittee on Oversight & Investigations,

Committee on Natural Resources, House of

Representatives, 103d Cong., ist Sess. (1993).. 12

Improving Federal Facilities Cleanup, Federal

Facilities Policy Group (October 1995)............. 13

John M. Hyson, Contribution Claims Under

Section 113(f(1) of CERCLA, 32 Envtl. L.

Rep. (Envtl. L. Inst.) 10151 (2002) .....0.... 1]

John Pendergrass, An Analysis of State Superfund

Programs: 50-State Study, 2001 Update (ELI),

OF IN siissinseinsctsnstaibuslacibiheadaainaacandiiplasdnanambiindiien 9

John Quarles & Michael W. Steinberg, Zhe

Superfund Program at Its 25th Anniversary,

36 Envtl. L. Rep. (Envtl. L. Inst.) 10364

pee assnsshtinkabadaisasuccepastionicenbariemoniunlniecimeiie 7

Lee M. Thomas and F. Henry Habicht II, U.S.

EPA, Interim CERCLA Settlement Policy

(OSWER Directive No. 9835.0) (1984)............ 8

U.S. EPA, Corrective Action: Basic Information,

http://www.epa.gov/epaoswer/hazwaste/ca/bac

kgnd.htm#4 (last updated Feb. 22, 2006).......... 15

U.S. EPA, Superfund Accomplishment Figures,

Summary Fiscal Year (FY) 2003) (last visited

December 18, 2006) <http://www.epa.gov/

super fund/action/process/numbers.htm>.......... 10

Jn the Suprenie Court of the Anited States

No. 06-726

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

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF OF AMICI CURIAE

SUPERFUND SETTLEMENTS PROJECT,

AMERICAN CHEMISTRY COUNCIL,

AMERICAN PETROLEUM INSTITUTE, NATIONAL

ASSOCIATION OF MANUFACTURERS, AND

UNITED STATES CONFERENCE OF MAYORS

IN SUPPORT OF PETITIONERS

The Superfund Settlements Prejcct, American Chemistry

Council, American Petroleum Institute, National Association

of Manufacturers, and United States Conference of Mayors

submit this amici curiae brief in support of petitioners. |

‘In accordance with Rule 37.6, this brief is not authored in whole or in

part by counsel for any party. No person or entity other than amici curiae

and their counsel made any monetary contribution to the preparation or

submission of this bricf. The partics have consented to the filing of this

brief,

INTEREST OF THE AMICI CURIAE

Amici curiae all share a vital interest in the Superfund

cleanup program and its effective implementation. The trade

association amici curiae—Superfund Settlements Project,

American Chemistry Council, American Petroleum Institute,

and National Association of -Manufacturers—tepresent di-

verse sectors of American industry. For more than twenty-

five years, their member companies have been actively

involved in performing cleanups at hundreds of contaminated

sites throughout the United States where other parties are

responsible for a substantial share of the contamination. The

cumulative cost of those cleanups is well in excess of $10

billion. The right to collect from those other parties their

equitable shares of the cleanup costs is critical to amici’s

member companies performing such cleanups. (This right ts

referred to throughout this brief as “the right of contribution,”

a term that encompasses contribution and cost recovery

claims under CERCLA.) For amicus United States Confer-

ence of Mayors, on the other hand, the prompt and effective

cleanup of contaminated sites is critical to the economic well-

being of many of our nation’s cities. As such, disposition of

the issue raised in this case will have a direct effect on each

of the amici curiae and on their member companies and

constituents.

The Superfund Settlements Project (“SSP”) is a non-profit

association of major corporations with substantial experience

in the Superfund program. The SSP is dedicated to improv-

ing the implementation of CERCLA by reducing barriers to

settlement, minimizing transaction costs, and using existing

legal authorities to make the program faster, fairer, and more

efficient. To date, SSP’s member companies have spent more

than $6 billion on site cleanups.

The American Chemistry Council (“ACC”) represents the

leading companics engaged in the business of chemistry.

ACC ts committed to improving environmental, health, and

safety performance through its Responsible Care” industry

initiative, common sense advocacy designed to address major

public policy issues, health and environmental research, and

product testing. To date, ACC member companies also have

spent billions of dollars on Superfund cleanups.

The American Petroleum Institute (“API”) is a nationwide,

not-for-profit trade association representing nearly 400 mem-

ber companies engaged in all aspects of the oil and natural

gas industry, including exploration, production, transpor-

tation, refining, distribution, and marketing. API frequently

represents its members on important legal and policy matters

before the courts, agencies, and legislative bodies. API's

members are or have been directly involved in the remedia-

tion—-including voluntary remediations—of numerous sites

under CERCLA, often at great economic cost. As such,

API's member companies have a strong interest in maintain-

ing the right of contribution provided for in CERCLA.

The National Association of Manufacturers (“NAM”) is

the nation’s largest industrial trade association, representing

small and large manufacturers in every industrial sector and

in all 50 states. NAM?’s mission is to enhance the com-

petitiveness of manufacturers by shaping a legislative and

regulatory environment conducive to U.S. economic growth

and to increase understanding among policymakers, the media,

and the general public about the vital role of manufacturing to

America’s economic future and living standards. Like the

other trade association amici, NAM’s member companies

have a strong interest in the disposition of this matter as its

member companies have incurred enormo#s costs conducting

Superfund cleanups.

Absent this Court's intervention, many member companies

of the trade association amici will find themselves in an

untenable position. For those companies already in the

process of performing costly cleanups for which they should

be only partially responsible, the decision of the United States

Court of Appeals for the Third Circuit will deny them the

only effective means of obtaining equitable contribution from

other parties who are potentially responsible for the con-

tamination. Additionally, the Third Circuit’s decision will

create a disincentive to perform future cleanups. Ultimately,

the member companies of the trade association amici curiae

will face increased and unnecessary litigation and other trans-

action costs.

By discouraging or delaying the cleanup of thousands of

contaminated sites, the Third Circuit’s decision also will di-

rectly impede the redevelopment of many of our nation’s

cities. For this reason, amicus curiae United States Confer-

ence of Mayors joins in this brief. The Conference of Mayors

is the official nonpartisan organization of cities with popula-

tions of 30,000 or more. The Conference of Mayors has been

on the forefront on the issue of brownfields redevelopment

for over 15 years, seeking public and private sector solutions

to this nationwide problem. The United States Conference of

Mayors Metro Economics Report verified that cities and the

metropolitan areas play a dynamic role in our nation’s econ-

omy, representing more than 80% of employment, income

and the production of goods and services in the United States.

Brownfields redevelopment plays an integral role in these

numbers with an increase in jobs, property value, taxes, and

tourtsm. The Conference of Mayors thus has a significant

interest in the disposition of this matter as the right of contri-

bution provided for in CERCLA is critical to brownfields

redevelopment.

In addition to these practical considerations, the Third Cir-

cuit’s decision also is in direct conflict with decisions by

unanimous panels of the Second and Eighth Circuits. See

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

Cir. 2005), petition for cert. pending, No. 05-1323 (filed Apr.

14, 2006); Atl. Research Corp. v. United States, 459 F.3d 827

(8th Cir. 2006), petition for cert. pending, No. 06-562 (filed

Oct. 24, 2006). Without review by this Court, this conflict

will persist, causing needless uncertainty and resulting in

unnecessary litigation. Ultimately, this ongoing conflict will

discourage future cleanups and thus is detrimental to the

fundamental objectives of CERCLA. Indeed, in its petition

for a writ of certiorari in Af/antic Research, the United States

acknowledges that this continued uncertainty is detrimental

to the effective implementation of CERCLA and thus this

Court’s intervention “is warranted now in order to provide

definitive resolution on this important question... .” Petition

of United States for Writ of Certiorari at 26, United States v.

Atl. Research Corp., No. 06-562 (filed Oct. 24, 2006). For

that same reason, respondents support review 1n this case as

well. Brief for Respondents 2,9, 15. |

Rather than presenting additional argument on the legal

issues or further discussing the conflict among the circuits

that the Third Circuit’s decision has caused, both of which are

adequately addressed by petitioners, amici curiae instead will

describe some of the intensely practical considerations that

should inform the Court’s decision to grant certiorari. In

particular, amici curiae demonstrate that because the Third

Circuit’s decision significantly narrows the right of

contribution, it will discourage and delay the cleanup of the

many thousands of contaminated sites across the country.

Given the serious environmental and health risks posed by

many of these sites, this Court’s review of the Third Circuit’s

decision ts critical.

SUMMARY OF ARGUMENT

As this Court previously recognized, CERCLA was en-

acted to achieve an overriding objective: to facilitate the

prompt and effective clean up of contaminated sites. The

success Of this effort continues to be a national priority given

the many thousands of contaminated sites around the country

and the enormous cost of cleaning them up.

To encourage the expeditious and equitable cleanup of these

sites, Congress provided parties facing potential liability with

a right of contribution in CERCLA. This right of contribu-

tion 1s integral to achieving CERCLA’s goal because it gives

a private party undertaking a cleanup the right to recover its

response costs beyond its equitable share from other responsi-

ble parties—a critical incentive to initiate the cleanup proc-

ess. The Third Circuit’s decision is directly contrary to this

objective and inevitably will discourage and delay cleanups.

The Third Circuit’s decision also will increase litigation, bur-

dening courts and regulatory agencies with needless claims,

and inflicting higher transaction costs on all concerned.

Absent the Court’s intervention, the uncertainty regarding the

right of contribution caused by the Third Circuit’s decision

will undermine CERCLA’s fundamental objective to facili-

tate the expeditious remediation of contaminated sites.

Inevitably, the Third Circuit’s decision will impede the na-

tional effort to clean up contaminated sites. Cleanup of the

thousands of sites contaminated by departments and agencies

of the United States government will be forestalled or fall

inequitably and unfairly on the shoulders of a few private

parties. Cleanup of the thousands of corrective action sites

contaminated by decades of industrial activity will be dis-

couraged and delayed. And the cleanup of many thousands

of brownfields sites found throughout our inner cities and

working-class communities will be needlessly postponed.

ARGUMENT

THE THIRD CIRCUIT’S DECISION DENYING

THE RIGHT OF CONTRIBUTION WILL DIS-

COURAGE AND DELAY THE CLEAN-UP OF

CONTAMINATED SITES, FRUSTRATING THE

CENTRAL PURPOSE OF CERCLA.

In 1980, in response to the new and frightening problem of

abandoned toxic waste sites,” Congress enacted the Compre-

hensive Environmental Response, Compensation, and Liabil-

ity Act of 1980 (“CERCLA”).’ See United States v. Best-

foods, 524 U.S. 51, 55 (1998). An overriding objective of

CERCLA was to achieve the swift and effective cleanup of

contaminated sites, with the attendant goal to make those

responsible pay for the cleanups. See, e.g., Key Tronic Corp.

v. United States, 51\ U.S. 809, 819 n.13 (1994) (stating that

one of CERCLA’s main goals was to “encourage private

parties to assume the financial responsibility of cleanup by

allowing them to seck recovery from others’’’) (quoting FMC

Corp v. Aero Industries, Inc., 998 F.2d 842, 847 (10th Cir.

1993)). Indeed, as this Court has recognized, “(t]he remedy

that Congress felt it needed in CERCLA Its sweeping: every-

one who is potentially responsible for hazardous-waste con-

tamination may be forced to contribute to the cost of

cleanup.” Pennsylvania v. Union Gas Co., 491 U.S. 1, 21

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

grounds, Seminole Tribe v. Florida, 5\7 U.S. 44 (1996).

To help achieve this ambitious goal, CERCLA combined

the individually harsh elements of retroactive liability, strict

liability, and joint and several liability into an unprecedented

* See generally John Quarles & Michael W. Steinberg, The Superfund

Program at lts 25th Anniversary, 36 Envtl. L. Rep. (Envtl. L. Inst.) 10364

(2006).

‘42 US.C. § 9601 et seq

legal framework that is aptly described as Draconian.* With-

in CERCLA’s web of often disproportionate and potentially

unjust liability, there is but one feature that holds out a prom-

ise of fairness and provides an incentive for private parties to

move forward swiftly to clean up sites: the right to seek

equitable contribution from other responsible parties. This

right of contribution is integral to achieving CERCLA’s goal,

for it gives a private party a critical incentive to initiate the

cleanun process.

From the inception of the Superfund program, EPA viewed

this mght of contribution as critical to encouraging private

parties to perform cleanups. EPA’s vision of CERCLA was

highly pragmatic. Government simply does not have the re-

sources to address all of the contaminated sites, nor is it always

able to address those sites quickly or efficiently. Accord-

ingly, as early as 1984, EPA was implementing CERCLA

based on an essential principle: It is “preferable for private

partics to conduct cleanups themselves.” Lee M. Thomas and

F. Henry Habicht Il, U.S. EPA, /nterim CERCLA Settlement

Policy (OSWER Directive No. 9835.0) (1984).

Building on this rationale, EPA committed itself to “remove

or minimize if possible the impediments to voluntary clean-

up.” Jd. EPA also pledged to support in court the equitable

claims of those who performed cleanups against those who

declined to participate. To this end, in 1990, EPA amended

the National Contingency Plan (“NCP”) that governs Super-

fund cleanups, adding a new Subpart H for the express

purpose of clarifying how private parties should go about

performing cleanups with the goal of recovering their costs

* Although CERCLA does not expressly state the standard of liability,

the courts generally have construed CERCLA § 107 liability to be retro-

active, strict, and joint and several. See, e.g., /n re Bell Petroleum Servs.,

Inc., 3 F.3d 889, 901-02 (Sth Cir. 1993); United States v. Monsanto Co.,

85% Fe 160, 168 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989);

New Fert ». Shore Realty Corp., 759 F.2d 1032, 1042 (2d Cir. 1985).

from other parties through contribution litigation. See 40

C.F.R. pt. 300, subpt. H. (2006).

EPA explained its new Subpart H rules with reference to

these core policies:

EPA belicves that 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 con-

tamination.”

National Oil and Hazardous Substances Pollution Contin-

gency Plan (“NCP”), 55 Fed. Reg. 8666, 8792-93 (1990)

(codified at 40 C.F.R. pt. 300, subpt. H (2006)). EPA also

took pains to state that PRPs who clean up sites may scek to

recover their costs before completing their cleanups because

“requiring a party to incur a// costs before bringing a cost

recovery action may discourage and delay cleanups, contrary

to the intent of Congress that sites be cleaned up expe-

ditiously.” 55 Fed. Reg. 8666, 8798 (1990) (emphasis

supplied).

EPA’s reliance on the right of contribution as a powerful

incentive has proven to be highly successful, resulting in

cleanup settlements with a cumulative value in excess of $20

billion. Today, it is common for companies to agree to

perform the entire cleanup at a contaminated site, even though

their fair share of the problem may be relatively modest.°

Over 70% of the new Superfund cleanups cach year are

* At the time the EPA made this statement, contribution actions under

CERCLA were frequently referred to as “cost recovery actions.” See,

e.g., Citv of Phila. v. Stepan Chem. Co., 544 F. Supp. 1135, 1142-43 (E.D.

Pa7 1982).

* A recent study by the Environmental Law Institute reported that clean-

ups were also underway at over 15,000 non-NPL sites under the auspices

of state cleanup programs. See John Pendergrass, An Analvsis of State

Superfund Programs: 50-State Study, 2001 Update (ELD) 16-17 (2002).

launched through agreements such as these.’ These agree-

ments are possible precisely because companies know that

they can seek equitable contribution from those who do not

consent to participate.* Moreover, companies that refuse to

participate know that they can be held liable for their

equitable shares. But for this right of contribution, companies

would resist undertaking new cleanup obligations.

By denying this right of contribution, the Third Circuit’s

decision thus discourages and delays the very cleanups that

Congress sought to encourage. See, e.g., Syms v. Olin Corp.,

408 F.3d 95, 106 n.8 (2d Cir. 2005) (observing that denying

contribution rights “create[s] a perverse incentive for PRPs to

wait until they are sued before incurring response costs’);

Consol. Edison, 423 F.3d at 100 (stating that “discouraging

voluntary cleanup . . . undercut[s] one of CERCLA’s main

goals”). As a result, EPA and its state agency counterparts

will be required to rely primarily on litigation to achieve

progress at contaminated sites. Yet the federal and state

governments lack the resources necessary to initiate litigation

for every site, and thus far fewer cleanups will take place.

Even where litigation is pursued, far greater judicial and

administrative resources would be consumed, and higher

transaction costs will be inflicted on all concerned. Inevita-

bly, the pace of progress will be slowed.

It has been suggested that cleanups might not be discour-

aged because some companies might be able to seek contribu-

tion under state law. See, e.g., Aviall Servs., Inc. v. Cooper

7 U.S. EPA, Superfund Accomplishment Figures, Summary Fiscal Year

(FY) 2003, http://www.epa.gov/superfund/action/process/numbers.htm (last

visited December 18, 2006).

* See, e.g., Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298

(9th Cir. 1997), cert. denied, 524 U.S. 937 (1998) (implicitly allowing con-

tribution action to proceed without state or federal precursor action of

any kind); Westfarm Assoc. Lim. Part. v. Washington Suburban Sanitary

Comm., 66 F.3d 669, 677 (4th Cir. 1995) (same).

Indus., Inc., 263 F.3d 134, 145 (Sth Cir. 2001), rev'd, 312

F.3d 677 (Sth Cir. 2002) (en banc), rev'd, 543 U.S. 157

(2004). But this suggestion is extremely optimistic for sev-

eral reasons.” First, CERCLA may preempt state-law con-

tribution claims in situations where no recovery would be

available under CERCLA itself. See, e.g., In re Reading, \15

F.3d L111, 1117 (3d Cir. 1997) (state common law claims for

contribution and restitution preempted by CERCLA’s statu-

tory right of contribution); Bedford Affiliates v. Sills, 156 F.3d

416, 427 (2d Cir. 1998) (state common law restitution and

indemnification actions preempted by CERCLA’s carefully

crafted settlement system). Second, many suits seeking con-

tribution from the United States under state law would be

barred by sovereign immunity because CERCLA waives

that immunity for,state-law claims only at facilities “owned

or operated by” federal agencies. 42 U.S.C. § 9620(a)(4).

Many privately-owned sites—including the sites at issue in

this case—are heavily contaminated with wastes contributed

by the United States, yet the parties cleaning up those sites

would have no recourse under state law because the sites are

not “owned or operated by” federal agencies. Third, vexing

choice-of-law questions would bog down many state-law

contribution claims, as state law varies widely from one juris-

diction to the next on such key issues as what hazardous

substances are covered, which partics may be held liable,

when contribution may be sought, and what costs may be

recovered. In sum, the patchwork of state-law contribution

* See, e.g., John M. Hyson, Contribestéon Claims Under Section 113()(1)

of CERCLA, 32 Envtl. L. Rep. (Envtl. L. Inst.) 10151, 10155 (2002) (not-

ing that the Fifth Circuit panel opinion in Aviall Services, Inc.v. Cooper

Industries, Inc. “fails to explain why a Congress, bent on encouraging

voluntary cleanups, would relegate cost recovery actions by volunteers to

state courts”) (emphasis in original, footnote omitted).

rights cannot plausibly be viewed as a substitute for the right

of contribution that Congress conferred in CERCLA. iy

In order to demonstrate the severe negative effects of deny-

ing the right of contribution, amici describe below four im-

portant categories of cleanups that will be discouraged and/or

delayed by the Third Circuit’s decision. These are: (1) sites

polluted by the federal government, (2) RCRA corrective

action sites, (3) Superfund site investigations, and (4) brown-

fields sites.

A. Sites Polluted by the Federal Government.

The Third Circuit’s decision will produce uniquely unjust

results at the many thousands of sites—including the sites at

issue in this case—that have been contaminated by the de-

partments and agencies of the United States itself. These

include not just the sites actually owned and operated by the

United States, but also the many private sites to which the

United States contributed waste.

The docket of contaminated sites owned and operated by

the federal government is staggering.'' The United States

owns and manages half a billion acres of land containing

more than 60,000 potentially contaminated sites. Among

these sites are former nuclear weapons production facilities,

'° Moreover, many state law statutes are modeled on CERCLA and

thus contain nearly identical contribution provisions. Accordingly, they

do not provide an independent or supplemental basis for seeking contri-

bution. See, e.g., Hicks Family v. lst Nat'l Bank of Howell, 2006 Mich.

App. LEXIS 2933, at *17-23 (Mich. App. Ct. Oct. 3, 2006) (finding that

the contribution provisions of Michigan’s Natural Resources and Environ-

mental Protection Act were subject to the same requirements imposed by

the nearly identical language of CERCLA’s contribution pro-visions).

'' See Deep Pockets: Taxpaver Liability for Environmental Contami-

nation, Committee Print No. 2, Subcommittee on Oversight & Investi-

gations, Committee on Natural Resources, House of Representatives, 103d

Cong., Ist Sess. (1993).

military bases, abandoned mines, landfills, and underground

storage tanks.'? According to the Government itself, the total

cleanup cost for these sites is estimated to be at least $230

billion, and might be nearly twice that amount.”

Also of enormous significance is the docket of privately-

owned sites—such as those at issue in this case—with con-

tamination resulting in whole or in part from the activities of

the federal government. These sites include waste oil recy-

cling facilities that primarily served military bases,'* nuclear

fuel processing plants that helped support the Cold War

weapons production programs,'” and disposal sites that ac-

cepted large volumes of waste from the government.'°

EPA and state regulatory agencies seek to expedite the

cleanups at these sites, but they are often unable to sue the

federal department or agency that helped to create the

problem.'’ Instead, they approach private companies that

'? According to a government estimate, a total of 60,425 potentially

contaminated sites are present on land owned by the Departments of Agri-

culture, Defense, Energy, and Interior. Federal Facilities Policy Group,

Improving Federal Facilities Cleanup \7 (Oct. 1995).

'* Government estimates range from $234 billion to $388 billion in

cleanup costs. /d.

'* The Bridgeport Rental and Oil Services Superfund site in Logan

Township, New Jersey is a good example. The site included a 13-acre oil

lagoon containing high levels of PCBs. Most of the oil originated at the

Philadelphia Naval Shipyard.

'’ See, e.g. Westinghouse Electric Co. v. United States, No.

4:03CV00861 SNL (E.D. Mo., filed June 26, 2003) (CERCLA complaint

sceking contribution for cleanup of radioactive and hazardous contamina-

tion at former Hematite nuclear fuel processing plant in Festus, Missouri).

'* For example, the Stringfellow Acid Pits site near Los Angeles, Cali-

fornia counted nearby military installations among its major customers.

“EPA is often prevented from suing other tederal agencies under

CERCLA because the Department of Justice views such cases as conflicts

within the Executive Branch that present no justiciable case or contro-

versy under Article III of the Constitution. States seeking to compel

also share the liability at these sites, hoping the companies

will agree to undertake the cleanups themselves. Companies,

however, cannot reasonably be expected to undertake these

massive cleanups unless they are confident that they can

swiftly obtain equitable contribution from the United States.

Thus, absent this Court’s intervention, the Third Circuit’s

decision will discourage companies from performing such

cleanups. This will present EPA and its state agency

counterparts with a Hobson’s choice. Because EPA and the

states typically cannot sue the federal agencies to compel

them to clean up these sites, they either will have to sue

private companies to clean up these sites, thereby burdening

the courts with needless claims, or else these cleanups will

have to wait. Neither result can be squared with the central

purpose of CERCLA.

Perhaps even more troubling, if the Third Circuit’s deci-

sion were permitted to stand, then the government could, as

the Eighth Circuit recognized, “insulate itself from respon-

sibility for its own pollution by simply declining to bring a

CERCLA cleanup action or refusing a liable party’s offer to

settle.” Atl Research, 459 F.3d at 837. Moreover, “[t]his

bizarre outcome would eviscerate CERCLA whenever the

government, itself, was partially responsible for a site’s

contamination.” /d.

Given the staggering number of contaminated sites owned

and operated by the federal government and the many private

sites at which the government is responsible for at least some

of the contamination, it is vitally important that this Court

grant review in order to provide definitive resolution that

CERCLA provides a predictable right of contribution.

cleanup are often prevented trom suing the same federal agencies under

state law, due to the doctrine of sovercign immunity. CERCLA waives

that immunity only at facilities “owned or operated by” federal agencies

42 U.S.C. § 9620(a)(4).

TR a ETS |

B. RCRA Corrective Action Sites.

Thousands of contaminated sites, including most of the

sites at issue in this case, are being addressed through the

corrective action program under Subtitle C of the Resource

Conservation and Recovery Act (“RCRA”). This program

includes more than 6,500 industrial facilities that handle, or

formerly handled, hazardous wastes and are often heavily

contaminated after decades of industrial operations.

[n 1984, Congress mandated that these facilities undergo

“corrective action.”'” Corrective action—another term for

cleanup of past contamination—is typically implemented

either through RCRA permits or through RCRA administra-

tive orders on consent. These RCRA permits and orders are

generally issued to the current site owners by state environ-

mental regulatory agencies. The site owners may elect to

challenge the cleanup plans selected by the agencies, or they

may instead choose to perform the work without a contest.

Site owners performing corrective action often seek con-

tribution from other parties. In the typical case, an industrial

facility has been operated successively by two or more com-

panies over many decades. RCRA, however, generally looks

only to the current owner to perform the cleanup, see, e.g.,

RCRA § 3013, 42 U.S.C. § 6934, even though it may be a

previous owner who contributed most of the contamination at

the site. Thus, the right of contribution thus is a critical

'* See United States EPA, Corrective Action: Basic Information, http://

www.epa.gov/epaoswer/hazwaste/ca/backgnd.htm4#4 (last updated Feb.

id 2006).

* Section 3004(u) of RCRA provides that permits issued after enact-

ment of the 1984 Amendments “shall require corrective action for all

releases of hazardous waste or constituents from any solid waste manage-

ment unit at a treatment, storage, or disposal facility seeking a permit

under this subchapter, regardless of the time at which waste was placed in

such unit.” 42 U.S.C. § 6924(u).

consideration for a company about to undertake a costly

RCRA corrective action project. Although RCRA itself

contains no express provision for contribution, courts have

approved the use of CERCLA to recover costs incurred in

cleaning up RCRA corrective action sites. See, e.g., United

States v. Rohm & Haas, Inc., 2 F.3d 1265, 1272-75 (3d Cir.

1993), overruled on other grounds, United States v. E. I. Du

Pont de Nemours and Co., 432 F.3d 161 (3d Cir. 2005) (en

banc). But the Third Circuit’s decision denying the right of

contribution eliminates a critical incentive for sites owners to

implement RCRA corrective actions.

C. Superfund Sites.

The Third Circuit’s decision also will prevent a responsible

company from seeking cquitable contribution toward the

often considerable costs of investigating the nature and extent

of contamination at a Superfund site and determining the

most appropriate method of cleanup. These site studies, col-

lectively referred to as a Remedial Investigation and Feasibil-

ity Study (“RI/FS”), see 40 C.F.R. § 300.430 (2006), are

typicaHy performed pursuant to an administrative order on

consent issued under section 104 of CERCLA. See 42 U.S.C.

§ 9604. These studies are essential to the development and

selection of an appropriate cleanup plan, regardless of who

will perform the actual cleanup.

In many cases, RI/FS studies take years to perform and

cost several million dollars. Without the right of equitable

contribution, many companies will be much less willing to

enter into administrative orders on consent to perform these

critical studies. Either EPA will have to resort to litigation in

order to coerce the work, or else the work will, again, have to

wait. Neither result comports with CERCLA’s overriding

objective.

D. Brownfields Sites.

Finally, the Third Circuit’s decision will delay cleanup of

the many thousands of so-called “brownfields” sites around

the country. These former industrial sites are heavily concen-

trated in our cities, and are smaller, and less contaminated

than, the roughly 1,240 Superfund sites that EPA is address-

ing though its National Priorities List. Because most of these

sites are not so contaminated as to present major threats to

human health or the environment, federal and state regulators

simply will never get around to ordering or performing clean-

ups. The only realistic potential for cleaning up these sites is

voluntary action by responsible parties. Yet the disincentives

to voluntary cleanups remain daunting.

Because these sites are contaminated, and because cleanup

standards are uncertain and constantly changing, potential

reuse or redevelopment of the land is unattractive. Fear of

future liability also chills the desire to perform cleanups for

reuse or redevelopment. Consequently, the cities in which

they are located forfeit vital property taxes and other eco-

nomic benefits that go hand in hand with redevelopment.

In order to reverse these conditions,the federal and state

governments have enacted a host of programs over the past

few decades. The most recent of these programs is the

Brownfields Revitalization and Environmental Restoration

Act of 2001, which provides new incentives to help spur

redevelopment. See Pub. L. No. 107-118, Tit. If, 115 Stat.

2356 (2002). Among these new incentives is partial immu-

nity from CERCLA liability for prospective purchasers ef

contaminated property, for property owners whose land is

contaminated by pollutants migrating from contiguous prop-

ertics, and for landowners who clean up property under

a state cleanup program. With the Brownfields Act, the

government seeks to encourage private industry to undertake

cleanups and thereby trigger redevelopment. CERCLA’s

right of contribution plays a significant complementary role

in this effort as it encourages companies to perform the

cleanups and postpones disputes over response costs. Deny-

ing the right of contribution, as the Third Circuit’s decision

does, is contrary to this larger public policy and undermines

the very cleanups that Congress seeks to encourage.

To summarize, the Third Circuit’s decision will have ex-

tremely detrimental consequences. At sites polluted by the

federal government, the options for EPA and its state counter-

parts boil down to more litigation or slower cleanups—or

both. The owners of sites in the RCRA corrective action

program will be reluctant to perform cleanups under permits

or administrative orders. Companies involved at Superfund

sites may decline to perform RI/FS studies, ultimately delay-

ing cleanup of these sites. Finally, companies will not

voluntarily clean up brownfields sites, for fear that they

will have no right to recoup their costs from others.

The Third Circuit’s decision denying the right of con-

tribution thus undermines the fundamental congressional

objectives of achieving the prompt and efficient cleanup of

contaminated sites and forcing responsible parties to bear

their equitable share of the cost of their pollution. As such,

this case presents an important and recurring question that

demands this Court’s review. Indeed, the sheer magnitude of

these issues underscores the nced for this Court’s immediate

intervention. Accordingly, amici curiae urge this Court’s

review of the Third Circuit’s decision. Respondents support

the granting of the petition and agree that “prompt review is

desirable.” Brief for Respondents 14.

CONCLUSION

For the foregoing reasons, and for the reasons stated in the

petition, the petition for a writ of certiorari should be granted.

Respectfully submitted,