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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006

## Text

FILED

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‘ aie . HE oe ERK

' OFFIC F Tritk CL
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)

il
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 .
IV

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) .......... 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,

2
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

3

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

4

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

5

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.

6

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.

7
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

8

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).

9

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).

10

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).

11

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).

12

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).

13

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

14

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 |

15
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).

16

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.

17
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

18

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.

19
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,

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

December 27, 2006

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1790%3A5. Public record. Not legal advice.