# Amicus Curiae Brief — Advance Chemical Co. v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1017%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 913

## Text

Supreme Court, U.S.
oe oe

No. 92-1995 SEP 20 1993

OFFICE OF THE CLERK

IN THE
Supreme Court of the United States

OCTOBER TERM, 1993

ADVANCE CHEMICAL COMPANY, et al.,
Petitioners,

UNITED STATES OF AMERICA,
Respondent.

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Tenth Circuit

BRIEF AMICI CURIAE OF
NATIONAL ASSOCIATION OF MANUFACTURERS,
CHEMICAL MANUFACTURERS ASSOCIATION,
ELECTRONIC INDUSTRIES ASSOCIATION, AND
THE CHAMBER OF COMMERCE
OF THE UNITED STATES
IN SUPPORT OF PETITIONERS

PAUL G. WALLACH
Counsel of Record
JEFFREY J. DAVIDSON
ITALE AND DORR
1455 Pennsylvania Ave., N.W.
Washington, D.C. 20004
(202) 942-8400
September 20, 1993 Counsel for Amici Curiae

WILSON - EPES PRINTING Co., INC. - 789-0096 - WasHINGTON. D.C. 20001

TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES ..0o.u.o.n.u..u.0.-c-cccecccceceseeeeeeses il
INTEREST OF AMICI CURIAE .0000.......-..-c2cccceeceoeoeneee 1
SUMMARY OF ARGUMENT uo cece 3
AUT csoicccosncccnronicacccsmedcaaancincedenet eee 3
ERIE stlsinsnatides etnias easier eee 5

I. THE SUPERFUND PROGRAM SUFFERS
FROM SUBSTANTIAL WASTE AND MIS-
MANAGEMENT. THE DECISION BELOW
WILL EXACERBATE THOSE PROBLEMS
BY INSULATING ABUSES FROM JUDICIAL
dee EEL RN Erne SO He 5

Il. THE SUPERFUND PROGRAM IS ENOR-
MOUSLY EXPENSIVE, AND ITS COSTS
WILL BE SUBSTANTIALLY AND UNNEC-
ESSARILY INCREASED BY THE DECISION
TE nsnennileciedciaidasanascesn ae selstunbaiainiinihapideas 13

CAFS oE PIII .bscoscnnrscnsdarsconsuibinpadsenleiaieadanemuauanaouaaasdadeaie: 20

il

TABLE OF AUTHORITIES
Cases

Mathews v. Eldridge, 424 U.S. 319 (1976) _...........
Lone Pine Steering Committee v. U.S. Environ-
mental Protection Agency, 777 F.2d 882 (3d Cir.
1985), cert. denied, 476 U.S. 1115 (1986) __........

Statutes and Regulations

Comprehensive Environmental Response, Compen-
sation and Liability Act of 1980, 42 U.S.C.
1k Ey ts SERRE en tMannnemet genre Semen ns La a RAAT AR

42 U.S.C. §$ 9607 ...... baciaoe aria ae RUE PS 1 Pact!

a Aas Ae SAR RUED iid asiaccecn dentecnenioaeeraioeeaamns

SO EAT Eee FUEGO CROCS oi oseccitereecicsioscseecmcse, Jet egats

Legislative Materials

~EPA: Contract Mismanagement, Hearings before
the Subcommittee of Oversight and Investiga-
tions, Committee on Energy and Commerce, U.S.
House of Representatives, 102d Cong., 2d Sess.
(|: } ee RD a ARI MA
General Accounting Office, Superfund: Actions
Needed to Correct Long-standing Contract Man-
agement Problems, Testimony of J. Dexter
Peach, Assistant Comptroller General, before
the Subcommittee on Oversight and Investiga-
tions, Committee on Energy and Commerce, U.S.
House of Representatives, GAO/T-RCED-92-78

6

CORN: DB, TURD Sew denacccnses saksstianeeracheeeumaed 6, 7, 8, 10, 11

General Accounting Office, Unallowable and Ques-
tionable Indirect Costs Claimed by CH2M Hill,
Statement of J. Dexter Peach, Assistant Comp-
troller General, before the Subcommittee on
Oversight and Investigations, Committee on En-
ergy and Commerce, U.S. House of Representa-
tives, GAO/T-RCED-92-37 (March 19, 1992).

6,7

iii
TABLE OF AUTHORITIES—Continued

Generali Accounting Office, Superfund: Issues that
Need to be Addressed Before the Program’s Next
Reauthorization, Testimony of Peter Guerrero,
Associate Director, before the Subcommittee on
Investigations and Oversight, Committee on
Public Works and Transportation, U.S. House
of Representatives, GAO/T-RCED-92-15 (Octo-

Page

I ails bt csasonntoctbesnssnnsananantaen'as 7,15, 16

General Accounting Office, Superfund: EPA Has
Not Corrected Long-standing Contract Manage-
ment Problems, Report to Congress, GAO/
RCED-92-45 (October 1991) .....0..0...00000.0eee

General Accounting Office, Making Superfund
Work Better: A Challenge for the New Admin-
istration, Testimony of Richard Hembra, Direc-
tor, before the Subcommittee on Superfund,
Ocean and Water Protection, Committee on En-
vironment and Public Works, U.S. Senate, GAO/

7,9

T-RCED-89-48 (June 15, 1989) 00022. 7, 8,17

General Accounting Office, Sound Contract Man-
agement Needed at the Environmental Protec-
tion Agency, Statement of Richard L. Hembra,
Associaté Director, before the Subcommittee on
Civil Service, Committee on Post Office and Civil
Service, U.S. House of Represenatives, GAO/T-
RCED-89-8 (February 23, 1989) ..........0000 0...

General Accounting Office, Superfund Contracts:
EPA Needs to Control Contractor Costs, Report
to the Chairman, Subcommittee on Oversight
and Investigations, Committee on Energy and
Commerce, U.S. House of Representatives, GAO/
RCED-88-182 (July 1988) 2.00000.

General Accounting Office, Superfund: Improve-
ments Needed in Work Force Management, Re-
port to Congress, GAO/RCED-88-1 (October
dk binabueasaeeenanovens

iv
TABLE OF AUTHORITIES—Continued

Page
U.S. Congress, Office of Technology Assessment,
Assessing Contractor Use in Superfund—A
Background Paper, OTA-BP-ITE-51 (January
ee AR eee URE ee a hk Denar ree oe NON 8,10, 14, 16

U.S. Congress, Office of Technology Assessment,
Coming Clean: Superfund’s Problems Can Be

Solved, OTA-ITE-433 (October 1989) 8, 15, 16,17

Statement of Jan Acton, Assistant Director, Con-
gressional Budget Office, before the Subcommit-
tee on Investigations and Oversight, Committee
on Public Works and Transportation, U.S. House
of Representatives (October 29,1991) ss.

Statement of Jan Acton, Assistant Director, Con-
gressional Budget Office, before the Subcommit-
tee on Oversight, Committee on Ways and Means,
U.S. House of Representatives (June 11, 1992).

Statement of Carol Browner, Administrator, EPA,
before the Subcommittee on Oversight and In-
vestigations, Committee on Energy and Com-
merce, U.S. House of Representatives (March
RE | gaat Ra RAR pA Pad tien Baca ede ds NRO GLE Reto MCR

Statement of William Reilly, Administrator, EPA,
before the Committee on Environment and Pub-

14

lic Works, U.S. Senate (June 15, 1989) 14, 15, 16

Regulatory Materials

Recovery of Costs for CERCLA Response Actions,
57 Fed. Reg. 34742 (August 6, 1992)

Agency Publications

Environmental Protection Agency, Cleaning Up
the Nation’s Waste Sites: Markets and Technol-

ogy Trends, EPA 542-R-92-012 (April 1993) 14, 15, 16

Environmental Protection Agency, Implementation
of the Superfund Alternative Remedial Con-
tracting Strategy, OSWER dir. 9201.0-01
PRINTLAT -chstcucbisickcoieebdaghiatenieencidiausamameaaenaaier:

Environmental Protection Agency, Office of In-
spector General, Annual Superfund Report to
the Congress for Fiscal 1987 (September 1988) _.

10

v

TABLE OF AUTHORITIES—Continued
Articles

R. Abramson, The Superfund Cleanup: Mired in
Its Own Mess, Los Angeles Times (May 10,
Ser GG BS coche eee

D. Blum, 91 Colleges May Be "equired to Help
Pay fer Cleanup of 2 Hazardous-Waste Sites,
The Chronicle of Higher Education (June 10,
ps | ean an re errr SR TL

B. Feder, In the Clutches of the Superfund Mess,
The New York Times (June 16, 1991), section 3
OI © i cinn'cecnsinisintizvnnnscicemenacebeapesbegsedinaaaataa ne

R. Fuhrman and D. Hird, EPA Proposed Rule on
Superfund Cost Recovery: Streamlining or
Steamrolling ?, 7 Toxics L. Rep. 450 (September
| Rj SRE erceanen NE remren ten Actes enr vir SG PPD

P. Hong, The Toxic Mess Called Superfund, Busi-

ness Week (May 11, 1992) at 32 .............0000.0... 6,

E. Koningsberg, Waste Watchers, The New Re-
public (April 6, IGBB) OF 1S .....c.cccccccccccsscccrscssteene
C. Roush, The Hurricane Called Superfund, Busi-
ness Week (August 2, 1993) at 74 0.000.
M. Russell, Wasteful Waste Disposal, The Wash-
ington Post (March 20, 1992) at A25 _...00...
D. Stipp, Super Waste’, The Wall Street Journal
CO BE RS, BG visti ee eee
F. Viviano, How Superfund Became a Mess, The
San Francisco Chronicle, (May 30, 1991) at
DOD occnicctensicejassueihcecinnisniad oe atleeeeau camel ae an a eta
F. Viviano, Superfund Costs May Top S&L Bail-
out, The San Francisco Chronicle (May 29,

LE fF | re ee ee oes 14, 15, 16,

Congress Cuts Superfund Budget Request, Sets
Spending at $1.57-Billion, Inside EPA’s Super-
fund Report (October 7, 1992) at 3 _.......-.00.....

Dingell Says Superfund is “Defective,” Calls for
Change, Inside EPA’s Superfund Report (April
TF ee hess a ecitlentoekiaie Leena

Lawmaker Says Program Will Go Unfunded Un-
less Changes Are Made, Inside EPA’s Superfund
Report (tury GE, FOGB) Bb FT. ieee

Page

13, 15

18

13, 18

14, 18

13

13

17, 18

vi
TABLE OF AUTHORITIES—Continued

Page
Senate Appropriations Committee Targets Super-
fund During Hearing, Inside EPA’s Superfund
BROOTS CRERT 5D, TGGS) BE D oncccccncccccnncncncoscceveccrsceses 8
Superfund gets Wallop’s Red Tape award, Super-
fund Week (March 12, 1993) at 6 _.....0000000000000... 9
EPA is a mess, its chief says, The Boston Globe
(March 11, 1998) at 17 202oofeeeeccececceeeeeeee 10
Firm’s EPA Bills “Outrageous”, USA Today
(March 19, 1992) at Lo ooo 6
Other Authorities
O. Kramer and R. Briffault, Cleaning Up Hazard-
ous Waste: Is There A Better Way? (January
OD nae nnncnnnennncnncsnnscnncesocescsensnnnansecscsnce 14, 15, 16, 17, 18, 19
A. Light, CERCLA Law and Procedure (1991)... 6
K. Probst and P. Portney, Assessing Liability for
Superfund Cleanups: An Analysis of Policy Op-
tions (Resources for the Future 1992)... 16
M. Russell, E. Colglazier, and M. English, Hazard-
ous Waste Remediation: The Task Ahead
(Knoxville, Tenn.: Waste Management Research
and Education Institute, University of Tennes-
MM, TI TE aii oon vi ccceccecccccecamcccennes 13, 15, 16, 17
S. Sarason, Comment, in U.S. Waste Management
Policies (American Council for Capital Forma-
ks EE eRe LACE So Melt DAD 17
Hazardous Waste Cleanup Project (July 1992)... 16
Hazardous Waste Cleanup Project, Superfund
NE ie ase crete ee eee 14, 16,17
National Environmental Trust Fund, Superfund—
An Environmental Failure (January 1991)... 18
Superfund Improvement Project, Superfund Re-
form: Achieving Faster Cleanup at a Fairer
on S| RNR RR ERE en REALE ESP ERTE Ie 18
Superfund Issues Forum, The National Environ-
mental Trust Fund (June 1991) ......................... 18
Superfund Issues Forum, Superfund Liability:
Myths and Factz About PRPs (June 1991)... 19
18

Superfund Issues Forum, What is Superfund........

IN THE
Supreme-Court of the United States

OCTOBER TERM, 1993

No. 92-1995

ADVANCE CHEMICAL COMPANY, et al.,

. Petitioners,

UNITED STATES OF AMERICA,
Respondent.

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Tenth Circuit

BRIEF AMICI CURIAE OF
NATIONAL ASSOCIATION OF MANUFACTURERS,
CHEMICAL MANUFACTURERS ASSOCIATION,
ELECTRONIC INDUSTRIES ASSOCIATION, AND
THE CHAMBER OF COMMERCE
OF THE UNITED STATES
IN SUPPORT OF PETITIONERS

INTEREST OF AMICI CURIAE

The National Association of Manufacturers (NAM),
the Chemical Manufacturers Association (CMA), the
Electronic Industries Association (EIA), and The Cham-
ber of Commerce of the United States (Chamber) file
this brief as amici curiae in support of petitioners, by
written consent of all of the parties, pursuant to Rule
37.2 of the Rules of this Court. Amici are business
groups whose members will be directly and adversely af-

aneiecineetiaeaiaeteestiaiaie

2

fected by the decision below. That decision precludes
judicial review of a wide range of the EPA’s cleanup
costs at Superfund sites—including unreasonable, inap-
propriate, and even illegal costs. In addition to depriv-
ing amici’s members (and thousands of others) of their
statutory right to judicial review, the decision below de-
stroys incentives for the EPA to manage effectively the
enormously costly Superfund program and to reduce the
mismanagement, waste and abuse that have characterized
that program since its inception.

NAM, a nonprofit trade association, is the largest na-
tional trade association for the manufacturing sector.
NAM’s membership consists of approximately 12,000
companies and subsidiaries, covering the full spectrum of
manufacturing industries, and ranging in size from very
large companies to numerous small businesses. NAM’s
members employ approximately 85% of all manufactur-
ing workers and produce over 80% of the manufactured
goods in the United States.

CMA, a nonprofit trade association, is the largest na-
tional trade association for the chemical industry. CMA’s
approximately 180 members are responsible for more
than 90% of the productive capacity for basic industrial
chemicals in the United States.

EIA, a nonprofit trade association, is the oldest and
largest trade association for the electronics industry, with
more than 1.000 member companies that design, manu-
facture, distribute and sell electronic parts, components,
equipment and systems for consumer, commercial, indus-
trial, military and space use.

The Chamber is the nation’s largest federation of busi-
ness, trade and professional organizations. The Chamber
represents more than 215,000 companies, as well as sev-
eral thousand state and local chambers of commerce. Its
membership, which includes companies of all types and
sizes, reflects a diverse cross-section of American industry.
The Chamber regularly advocates the interests of its mem-

———————————————

3

bers in court on environmental issues of national con-
cern to the business community.

Many of amici’s members are potentially responsible
parties at one or more Superfund sites.

SUMMARY OF ARGUMENT!

The decision below precludes judicial review of unrea-
sonable and improper EPA Superfund cleanup costs if
they were incurred pursuant to a general cleanup plan
that is consistent with the National Contingency Plan.
The decision is contrary to statutory language and com-
mon sense. It destroys any incentive for EPA to manage
effectively the Superfund program and will make a pro-
gram that is already badly managed even more subject
to abuse (Point I). It will also substantially—and un-
necessarily—add to the already staggering costs of the
Superfund program (Point II).

Amici’s members are potentially responsible parties at
numerous Superfund sites around the country. Amici are
concerned that the Tenth Circuit’s decision will have a
severe negative impact on EPA’s management of the
Superfund program. Accordingly, amici respectfully urge
the Court to grant the Petition.

BACKGROUND

The Superfund program’ provides for government
cleanup of those contaminated sites determined by EPA
to pose sufficient risk to human heaith and the environ-

1 Amici adopt the legal arguments advanced by petitioners in
their Petition for a Writ of Certiorari (the Petition), and re-
spectfully submit this brief to bring to the Court’s attention cer-
tain factual matters that highlight the importance of this case
—-both to amici’s members and to the nation as a whole—and jus-
tify this Court’s exercise of its discretionary jurisdiction.

2 See Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. §§ 9601-9675, generally referred
to as CERCLA or Superfund.

4

ment to be placed on the National Priorities List (NPL).
Sites on the NPL are eligible for direct federal cleanup,
with the government recovering its costs from “potentially
responsible parties” (PRPs).°

For NPL sites where EPA conducts the cleanup, EPA
develops a proposed cleanup or “response” plan, which
must be consistent with the National Contingency Plan
(NCP )—EPA’s regulations governing the cleanup of Su-
perfund sites." The typical response plan is necessarily
conceptual in nature, describing in general terms the type
of cleanup that will be undertaken. The government then
directs contractors to implement an operational cleanup
plan, and seeks reimbursement of the cleanup costs in-
curred from the PRPs through a cost recovery action.
EPA views PRPs as strictly, jointly and severally liable
for such cleanup costs, even though their actions giving
rise to liability may have been legal and prudent when
taken.

PRPs—including amici’s members—consider the pros-
pect of judicial review of EPA’s cleanup costs to be an
extremely important incentive for keeping EPA’s actions
reasonable and consistent with the NCP. Unfortunately,
the opportunity for judicial review has been limited to
date because of the rule against pre-enforcement review-—
i.e., a PRP cannot challenge either the selection of the
overall response plan, or the actual cleanup actions taken
pursuant to it, before EPA seeks to recover costs from the
PRP in the cost recovery action.® Coupied with this ban

3’ PRPs are those persons described in 42 U.S.C. § 9607.
4 See 40 C.F.R. Part 300 (1992).

5 At EPA’s request, Congress explicitly added a ban on pre-
enforcement review to CERCLA in 1986. See 42 U.S.C. § 9613(h).
As noted in the Petition, in urging the adoption of these amend-
ments to CERCLA, the Justice Department represented that cleanup
costs would be reviewable during the judicial review that was still
permitted by the statute. See Petition at 9-10. Similarly, in ruling
that there was no pre-enforcement review even before CERCLA

5

on pre-enforcement review, the decision below immunizes
many of EPA’s cleanup actions from judicial review and
destroys an important incentive for EPA to correct the
problems that have plagued the Superfund program.

ARGUMENT

I. THE SUPERFUND PROGRAM SUFFERS FROM
SUBSTANTIAL WASTE AND MISMANAGEMENT.
THE DECISION BELOW WILL EXACERBATE
THOSE PROBLEMS BY INSULATING ABUSES
FROM JUDICIAL REVIEW.

The Superfund program has been riddled with waste
and mismanagement (Point A). To date, the ban on pre-
enforcement review has shielded these abuses from ju-
dicial scrutiny. Now that more Superfund sites have
progressed through enforcement and are ripe for judicial
review, PRPs had hoped that such review would lead
EPA to improve its performance in the future. The de-
cision below will prevent this beneficial result of judicial
review and will exacerbate the mismanagement that has
plagued the Superfund program (Point B).

A.
Superfund is an enormously troubled program. It has
suffered from pervasive mismanagement: inappropriate and
excessive costs; exorbitant markups of as much as 300%

was amended, the Third Circuit explicitly “recognize[d] the im-
portance of judicial review of agency action,” but concluded that
such review should occur in the cost recovery proceeding:
The reimbursement trial will not be a pro forma proceeding
but will permit presentation of adequate evidence for careful
and exacting scrutiny by the court. The statute requires the
EPA to observe cost effectiveness, and that mandate is a limi-
tation, not a license to squander.
Lone Pine Steering Committee v. U.S. Environmental Protection
Agency, 777 F.2d 882, 887-88 (3d Cir. 1985), cert. denied, 476 U.S.
1115 (1986). The decision below precludes the judicial review that
both the Justice Department and the Third Circuit pointed to as
justifying the ban on pre-enforcement review.

6

to 400% or more; overcharges and cost overruns; un-
necessary, inefficient, duplicative and low quality work;
double billing; and outright fraud. As a result, “Super-
fund contractors have spent at twice the anticipated rate,
and have accomplished less than one-half the anticipated
progress at Superfund cleanup sites.” °

There has been widespread publicity of improper uses
of Superfund money—expenditures on parties, beach
house rentals, tickets for sporting events, fishing licenses,
dancing lessons, costume rentals, potted plants, phone
calls to sex-lines, and the like.’ While these abuses have
received much of the attention, they are only symptomatic
of much greater problems in the program, problems that
have been documented by Congress, the General Account-
ing Office (GAO), the Office of Technology Assessment
(OTA), numerous nongovernmental! organizations, and
EPA itself.

GAO has been a frequent critic of Superfund,” decrying
“EPA’s chronic Superfund contract management prob-

8 EPA: Contract Mismanagement, Hearings before the Sub-
committee on Oversight and Investigations, Committee on Energy
and Commerce, U.S. House of Representatives, 102d Cong., 2d Sess.
(1992) [hereinafter, “EPA Contract Mismanagement’’| at 326
(statement of Congressman Dingell).

7 See, e.g., GAO, Actions Needed, infra note 8, at 4; GAO, Un-
allowable and Questionable Costs, infra note 8, at 7; R. Fuhrman
and D. Hird, EPA Proposed Rule on Superfund Cost Recovery:
Streamlining or Streamrolling?, 7 Toxics Law Reporter (BNA)
450, 451 (Sept. 9, 1992); P. Hong, The Toxic Mess Called Super-
fund, Business Week (May 11, 1992) at 32; Firm’s EPA Bills
“Outrageous”, USA Today (March 19, 1992) at 1; A. Light,
CERCLA Law and Procedure 57 (1991).

8“TT|he GAO has issued twenty-eight reports calling for im-
provement of the Superfund’s contract management.” E. Konings-
berg, Waste Watchers, The New Republic (April 5, 1993) at 12.
See, e.g., GAO, Superfund: Actions Needed to Correct Longstanding
Contract Management Problems, Testimony of J. Dexter Peach,
Assistant Comptroller General, before the Subcommittee on Over-

7

lems,” * and concluding that “EPA has not sufficiently
monitored, controlled, and challenged contractor expendi-
tures.” '’ Among the problems found by GAO are: un-
allowable and questionable contractor costs; inadequate

sight and Investigations, Committee on Energy and Commerce,
U.S. House of Representatives, GAO/T-RCED-92-78 (July 8, 1992)
[hereinafter, “GAO, Actions Needed’’]}; GAO, Unallowable and
Questionable Indirect Costs Claimed by CH2M Hill [one of Super-
fund’s largest contractors], Statement of J. Dexter Peach, Assistant
Comptroller General, before the Subcommittee on Oversight and
Investigations, Committee on Energy and Commerce, U.S. House
of Representatives, GAO/T-RCED-92-37 (March 19, 1992) [here-
inafter, “GAO, Unallowable and Questionable Costs’’]; GAO, Super-
fund: Issues that Need to be Addressed Before the Program’s
Next Reauthorization, Testimony of Peter Guerrero, Associate Di-
rector, before the Subcommittee on Investigations and Oversight,
Committee on Public Works and Transportation, U.S. House of
Representatives, GAO/T-RCED-92-15 (Oct. 29, 1991) [hereinafter,
“GAO, Issues that Need to be Addressed’”|; GAO, Superfund:
EPA Has Not Corrected Long-standing Contract Management Prob-
lems, Report to Congress, GAO/RCED-92-45 (Oct. 1991) [here-
inafter, “GAO, Long-standing Management Problems’|; GAO,
Making Superfund Work Better: A Challenge for the New Admin-
istration, Testimony of Richard Hembra, Director, before the Sub-
committee on Superfund, Ocean and Water Protection, Committee
on Environment and Public Works, U.S. Senate, GAO/T-RCED-89-
48 (June 15, 1989) [hereinafter, “GAO, Making Superfund Work
Better” |; GAO, Sound Contract Management Needed at the Envir-
onmental Protection Agency, Statement of Richard L. Hembra,
Associate Director, before the Subcommittee on Civil Service, Com-
mittee on Post Office and Civil Service, U.S. House of Representa-
tives, GAO/T-RCED-89-8 (Feb. 28, 1989) [hereinafter, “GAO,
Sound Contract Management Needed”|; GAO, Superfund Contracts:
EPA Needs to Control Contractor Costs, Report to the Chairman,
Subcommittee on Oversight and Investigations, Committee on En-
ergy and Commerce, U.S. House of Representatives, GAO/RCED-
88-182 (July 1988) [hereinafter, “GAO, Contractor Costs]; GAO,
Superfund: Improvements Needed in Work Force Management,
Report to Congress, GAO/RCED-88-1 (Oct. 1987) [hereinafter,
“GAO, Improvements Needed’.

® GAO, Actions Needed, supra note 8, at 6.
10 GAO, Contractor Costs, supra note 8, at 2.

8

contractor cost controls; inadequate audit coverage and
audit follow-up; excessive program management costs;
and contractor conflicts of interest.”*

As a result, GAO has identified Superfund as one of
the federal programs most vulnerable to fraud, waste and
abuse,’* and has concluded that “the nation has not been

getting a fair return on its large investment in Super-
fund.”’*

OTA has also been critical of Superfund, concluding
that “it is not uncommon for the government to spend
from 100 to 500 percent more than a private client
would” for the same work.'* OTA has estimated that
as much as “50 [to] 70 percent of current Superfund pro-
gram spending is inefficient,” *° and has warned against
“[s]imply pouring more money into Superfund” without
improving EPA’s management.”

11 See GAO reports cited supra in note 8.

12 GAO, Actions Needed, supra note 8, at 1. GAO noted that the
program is vulnerable “in part because of its extensive use of cost-
reimbursable contracts . .. and its history of contract management
problems.” Jd.

18 GAO, Making Superfund Work Better, supra note 8, at 1.

14 OTA, Assessing Contractor Use in Superfund-—A Background
Paper, OTA-BP-ITE-51 (Jan. 1989) [hereinafter, “OTA, Assessing
Contractor Use”| at 7. The Congressional Budget Office has also
concluded that “[t]he Superfund program has ... presented un-
expected administrative difficulties.” Statement of Jan Acton, As-
sistant Director, Congressional Budget Office, before the Subcom-
mittee on Investigations and Oversight, Committee on Public Works
and Transportation, U.S. House of Representatives (Oct. 29, 1991)
[hereinafter, “Acton Statement’’] at 25.

15 OTA, Coming Clean: Superfund Problems Can Be Solved, OTA-
ITE-433 (Oct. 1989) [hereinafter, “OTA, Coming Clean’’] at 28.

16 OTA, Assessing Contractor Use, supra note 14, at 7.

Congress, too, has joined in the criticism. See, e.g., Senate Ap-
propriations Committee Targets Superfund During Hearing, Inside
EPA’s Superfund Report (May 5, 1993) at 9; Dingell Says Super-

9

And EPA itself has admitted serious problems with the
Superfund program. For example, EPA’s Inspector Gen-
eral recently testified to Congress that:

In each of our annual reports over the last ten
years we have reported pervasive problems with
fundamental aspects of sound financial manage-
ment in the Superfund program.”

The Inspector General concluded that “sound financial
management was a secondary, or lower, priority during
the decade.” '* And an EPA task force concluded that
“EPA is not conducting effective contract administration
and oversight.” *

EPA’s current Administrator, Carol Browner, was more
blunt: .

fund is “Defective,” Calls for Change, Inside EPA’s Superfund
Report (April 7, 1993) at 12; Superfund gets Wallop’s Red Tape
Award, Superfund Week (March 12, 1993) at 6; Congress Cuts
Superfund Budget Request, Sets Spending at $1.57-Billion, Inside
EPA’s Superfund Report (Oct. 7, 1992) at 3; R. Fuhrman and D.
Hird, EPA Proposed Rule on Superfund Cost Recovery: Stream-
lining or Steamrolling?, 7 Toxics L. Rep. (BNA) 450, 451 (Sept. 9,
1992) (“In light of these abuses, Congress repeatedly has stressed
the need for EPA to put its house in order... .”).

17 Testimony reported in Lawmaker Says Program Will Go Un-
funded Unless Changes Are Made, Inside EPA’s Superfund Report
(July 28, 1993) at 7. The Inspector General referred to problems
with accounting involving preliminary site costs; recording costs
for equipment and property; and a lack of effective controls in the
accounting system which led to errors in Superfund financial records
amounting to $500 million. /d.

18 Jd.

19 EPA, Implementation of the Superfund Alternative Remedial
Contracting Strategy, OSWER dir. 9201.0-01 (1991) at 3. This is
hardly surprising given that many Superfund project managers
told GAO they do not consistently review invoices because they have
difficulty understanding them due to lack of training. GAO, Long-
standing Management Problems, supra note 8, at 26-27.

10

I am appalled by what I have learned about EPA’s
toial lack of management, accountability and disci-
pline.~”

Administrator Browner testified that EPA’s “serious vio-
lations of proper management practices” have resulted
in an “intolerable waste of taxpayers’ money.” “

xk # * *

The effectiveness and efficiency of the Superfund pro-
gram depend on EPA’s management and oversight of
the contractors who actually do the cleanups.” As GAO
has stated, “EPA’s extensive use of cost-reimbursable
contracts in the Superfund program imposes on it a
special responsibility for effective cost control.” ** Un-
fortunately, as the authorities cited above establish, all
too often proper EPA management and oversight has been
lacking.

And, while EPA has repeatedly committed to improv-
ing its management of the Superfund program, it has

20 Quoted in EPA is a mess, its chief says, The Boston Globe
(March 11, 1993) at 17. See also remarks of EPA’s Deputy Ad-
ministrator that the Superfund program “is very much flawed,”
quoted in Lawmaker Says Program Will Go Unfunded Unless
Changes Are Made, Inside EPA’s Superfund Report (July 28, 1993)
at 7.

21 Statement of Carol Browner, Administrator, EPA, before the
Subcommittee on Oversight and Investigations, Committee on En-
ergy and Commerce, U.S. House of Representatives (March 10,
1993) at 1.

22 See, e.g., GAO, Actions Needed, supra note 8, at 2 (“efficient
use of Superfund resources, including contracting resources, is criti-
cal to the program’s ultimate success’’) ; OTA, Assessing Contractor
Use, supra note 14, at 1-2.

23 GAO, Actions Needed, supra note 8, at 8. This is especially true
given the warning from EPA’s Inspector General that “Superfund
is particularly sensitive to fraud, waste and abuse.” EPA, Office of
Inspector General, Annual Superfund Report to the Congress for
Fiscal 1987 (Sept. 1988), foreword.

11

consistently failed to do so.%4 Moreover, EPA’s actions
speak louder than its words—instead of improving man-
agement and oversight of Superfund, what EPA has in
fact done in response to this overwhelming evidence of
mismanagement is to Propose a rule that will make it
harder to uncover such abuses by reducing the amount
of documentation EPA must provide to support its cost
recovery claims.”
B.

The prospect of judicial review js an important in-
centive for the proper management of any government
program. Unfortunately, judicial review of EPA’s Super-
fund cleanup actions has thus far been largely precluded
by the ban on pre-enforcement review—with the result-
ing waste and mismanagement detailed above.

Now, the Tenth Circuit has gone one step further,
and held that even after enforcement PRPs cannot chal-
lenge the actual cleanup costs; rather they can only chal-
lenge the consistency of the overall conceptual response
plan with the NCP. The effect of this ruling is that if
the overall response plan is consistent with the NCP,
PRPs cannot challenge the actual cleanup costs incurred

*4 See, e.g., GAO, Actions Needed, supra note 8, at 1 (“EPA ha[s]
not fully addressed numerous GAO recommendations to reduce the
Superfund program’s vulnerability to fraud, waste and abuse—
despite several years of our reporting on these deficiencies’) ; id.
at 6 (“A pattern is apparent in EPA’s response to reported contract
management deficiencies: extended study of the problems, some-
times leading to revised plans or procedures, but with insufficient
follow-through to actually correct the nroblems.’’),

*5 See Recovery of Costs for CERCLA Response Actions, 57 Fed.
Reg. 34742, 34749-51 (Aug. 6, 1992). See generally R. Fuhrman
and D. Bird, EPA Proposed Rule on Superfund Cost Recovery:
Streamlining or Steamrolling?, 7 Toxics L. Rep. (BNA) 450, 452
(Sept. 9, 1992). In that Same proposal, EPA also proposes a rule
identical to the decision below, which would insulate from judicial
review even those excessive and unreasonable costs which could still
be discovered under the reduced documentation requirements. See
57 Fed. Reg. at 34744.

14

4

pursuant to that plan—no matter how unreasonable or
inappropriate those costs may be.

Such a result is bad policy and bad government (and
grossly unfair to the PRPs who, in addition to being held
strictly liable for actions that may have been perfectly
legal when taken, will now have the added burden of
paying for inappropriate and unnecessary costs). Such a
rule should not be adopted by the courts absent the
clearest evidence of Congress’ intent to insulate such
government actions from judicial review—evidence that
simply does not exist. Indeed, given Congress’ extensive
criticism of EPA’s management of the Superfund pro-
gram, discussed above, it is difficult to believe Congress
could have intended any such result.”

The Superfund program has matured to the point
where EPA’s cleanup actions were finally going to be
subject to judicial scrutiny. Consequently, there could
hardly be a worse time for the courts to abdicate their
responsibility to ensure that EPA’s management of the
Superfund program complies with the law. Yet that is
precisely what the decision below does. Coupled with the
ban on pre-enforcement review, the decision below im-
munizes a wide range of EPA’s cleanup actions—includ-
ing improper, excessive. and even illegal expenditures—
from any judicial! review whatsoever. If allowed to stand,
the Tenth Circuit’s decision can only serve to magnify
the problems that have plagued Superfund to date. It is
for this reason that amici find that decision so troubling.

*6 As noted above (supra note 5), when Congress wants to limit
judicial review it knows how to do so explicitly, as it did in prohibit-
ing pre-enforcement review. See 42 U.S.C. §9613(h). There is no
such indication of congressional intent to prevent review of EPA’s
cleanup costs in cost recovery actions.

Moreover, a rule holding private parties responsible for costs they
cannot challenge the appropriateness or legality of would raise seri-
ous constitutional issues. See, e.g., Mathews v. Eldridge, 424 US.

319, 333 (1976).

|

13

II. THE SUPERFUND PROGRAM IS ENORMOUSLY
EXPENSIVE, AND ITS COSTS WILL BE SUBSTAN-
TIALLY AND UNNECESSARILY INCREASED BY
THE DECISION BELOW.

It is not just the evidence of mismanagement in the
Superfund program—-waste that may be forever shielded
from judicial review by the decision below—that makes
that decision so troubling. The other factor that makes
this case sufficiently important to merit this Court’s re-
view is the magnitude of the resources at stake.

By any measure, the cost of cleaning up contaminated
sites in this country will be staggering. Some current pro-
jections of the overall cleanup costs exceed $1 trillion,”
or more than double the entire amount of the recently

27 See, e.g., C. Roush, The Hurricane Called Superfund, Business
Week (Aug. 2, 1993) at 74 ($1 trillion over next 50 years); F.
Viviano, How Superfund Became a Mess, The San Francisco Chron-
icle (May 30, 1991) at Al ($1 trillion over next 30 years); M.
Russell, Wasteful Waste Disposal, The Washington Post (March 20,
1992) at A25 ($750 billion to over $1 trillion). Certain other projec-
tions are not quite as high, see, e.g., B. Feder, In the Clutches of
the Superfund Mess, The New York Times (June 16, 1991), section
3 at 6 ($750 billion), while others are even higher. See, e.g., R.
Abramson, The Superfund Cleanup: Mired in Its Own Mess, Los
Angeles Times (May 10, 1993) at Al (above $1 trillion).

In a study published in December 1991, the Waste Management
Research and Education Institute of the University of Tennessee
provides the following estimates of cleanup costs: under current
policy, the “best guess” is $752 billion, with a “plausible lower
bound” of $478 billion and a “plausible upper bound” of $1.046 b
trillion; under potentially less stringent cleanup criteria, the num-
bers drop to $484 billion, $378 billion, and $691 billion, respectively ;
and under potentially more stringent cleanup criteria, the best guess
jumps to $1.177 trillion, with plausible lower and upper bounds of
$966 billion and $1.694 trillion. See M. Russell. E. Colglazier, and
M. English, Hazardous Waste Remediation: The Task Ahead
(Knoxville, Tenn.: Waste Management Research and Education In-
stitute, University of Tennessee, Dec. 1991) [hereinafter, “Russell,
The Task Ahead’’| Table I at 16, Table II at 19, Table III at 22.

14

enacted deficit reduction plan. And, the projections have
been increasing steadily—indeed, dramatically.**

Estimates of the overall cost of the Superfund pro-
gram have also been rising rapidly. When Superfund was
established in 1980, it was expected to clean up about
400 sites over a five year period at a projected cost in the
low billions of dollars.’ Cleanup of the average site
was expected to cost under $10 million.* Each of these
estimates has grown explosively.

The number of sites identified for potential inclusion
on the NPL has increased from thousands to tens of
thousands,*" and is projected to increase considerably
more.”

28 For example, OTA’s estimate increased from $300 billion in
1985 to over $500 billion in 1989. See OTA, Assessing Contractor
Use, supra, note 14, at 1.

29 See, e.g., O. Kramer and R. Briffault, Cleaning Up Hazardous
Waste: Is There A Better Way? (Jan. 1993) [hereinafter, “Kramer,
Is There A Better Way?’ at 23 (Congress anticipated about 400
sites when it enacted Superfund); Statement of William Reilly,
Administrator, EPA, before the Committee on Environment and
Public Works, U.S. Senate (June 15, 1989) [hereinafter, “Reilly
Statement”] at 3 (expected a few hundred sites); F. Viviano,
Superfund Costs May Top S&L Bailout, The San Francisco Chron-
icle (May 29, 1991) at Al (expected cost of less than $5 billion).

30 See, e.g., Hazardous Waste Cleanup Project, Superfund Over-
view at 3.

31 See, e.g., EPA, Cleaning Up the Nation’s Waste Sites: Markets
ana Technology Trends, EPA 542-R-92-012 (April 1993) [herein-
after, “EPA, Cleaning Up’’] at 3 ‘as of September 1992, 36,814
sites in EPA’s database of potential Superfund sites) ; Acton State-
ment, supra note 14, at 14-15 (as of June 1991, 34,652 sites in data-
base—up from 31,932 in June 1989); D. Stipp, Super Waste?, The
Wall Street Journal (May 15, 1991) at 1; P. Hong, The Toxic Mess
Called Superfund, Business Week (May 11, 1992) at 32.

32 See, e.g., Statement of Jan Acton, Assistant Director, Con-
gressional Budget Office, before the Subcommittee on Oversight,
Committee on Ways and Means, U.S. House of Representatives

ee

15

The NPL has grown from about 115 sites initially,
to over 1,200 today,** and will increase by 50 to 100
sites per year for at least the next several years.** The
NPL wiil grow to at least 2,000 sites.** Some expect it
to reach 3,000, 4,000, or even 6,000 sites,*7 and others
expect it to go even higher.** GAO has warned that
Superfund “may be overwhelmed by the number of sites
that EPA projects may be added to the program in the
future.” *°

The increase in the estimated average cleanup cost per
site has been equally dramatic. Early estimates were

(June 11, 1992) at 30 (EPA estimates its database will increase
to 90,000 potential sites) ; Russell, The Task Ahead, supra note 27,
at A-3.13 (estimates database will increase to 75,000 sites); OTA,
Coming Clean, supra note 15, at 98 (database growing by 2,000 sites
per year; “[aln active site discovery program .. . could at least
double the rate of growth’). Moreover, there are hundreds of
thousands of additional potential sites. See infra note 50.

33 See, e.g., GAO, Improvements Needed, supra note 8, at 11.
34 See, e.g., EPA, Cleaning Up, supra note 31, at 3.

35 See, e.g., EPA, Cleaning Up, supra note 31, at 30; Reilly State-
ment, supra note 29, at 4 (75-100 sites/year).

36 See, e.g., EPA, Cleaning Up, supra note 31, at 30; Reilly State-
ment, supra note 29, at 4 (2,100 sites by year 2000).

37 See, e.g., Russell, The Task Ahead, supra note 27, at A-3.13 <—
(describing 3,000 as “best guess” and 6,000 as “plausible upper
bound”) ; R. Abramson, The Superfund Cleanup: Mired in Its Own
Mess, Los Angeles Times (May 10, 1993) at Al (4,000). -

38 See, e.g., OTA, Coming Clean, supra note 15, at 11 (estimates
NPL will grow to 10,000 sites or more) ; Kramer, Js There A Better
Way?, supra note 29, at 32 (NPL may grow to 6,500 to 21,950
sites—or even 13,000 to 43,900 sites—based on GAO, OTA, and
EPA data) ; Russell, The Task Ahead, supra note 27, at A-3.6 (rea-
sonable projections for the NPL range from 2,000 to 10,000 sites) ;
F. Viviano, Superfund Costs May Top S&L Bailout, The San Fran-
cisco Chronicle (May 29, 1991) at Al (congressional and independ-
ent researchers believe NPL will exceed 10,000 sites).

39 GAO, Issues that Need to be Addressed, supra note 8, at 1.

| cette

16

under $10 million,“ and quickly grew to $20 mill-
lion.** Current projections are at least $25-$30 mil-
lion,** although estimates of $40-$60 million or more “
are more likely accurate.

The estimate for the total Superfund cleanup cost has
increased from several billion dollars,** to $40 billion,**

40 See, e.g., OTA, Coming Clean, supra note 15, at 179 ($7 million).

41 See, e.g., Hazardous Waste Cleanup Project, Superfund Over-
view at 3 ($21 million).

42 See, e.g., Reilly Statement, supra note 29, at 4 (approaching
$25 million, “and there is every reason to believe that this figure
will increase”) ; Kramer, Js There A Better Way?, supra note 29,
at 31 ($30 million a “very conservative” estimate); GAO, Issues
that Need to be Addressed, supra note 8, at 4 ($25 million, “good
reason to believe that these costs will rise’); EPA, Cleaning Up,
supra note 31, at 3 ($27 million).

43 “Private estimates place the likely cost at $45-$60 million per
site.” Hazardous Waste Cleanup Project, Superfund Overview at
3. See also Russell, The Task Ahead, supra note 27, Table I at 16,
Table II at 19, Table III at 22 (average cost per site $50 million
under current cleanup criteria; but range for average cost could be
from $30 million under potentially less stringent cleanup criteria to
$117 million under potentially more stringent cleanup criteria); F.
Viviano, Superfund Costs May Top S&L Bailout, The San Francisco
Chronicle (May 29, 1991) at Al ($50 million); K. Probst and P.
Portney, Assessing Liability for Superfund Cleanups: An Analysis
of Policy Options (Resources for the Future 1992) [hereinafter,
“Probst, Policy Options’’| at 17 ($40 million).

The estimated time to complete the cleanup of these sites has
also increased dramatically, from less than 10 years to more than
50. See, e.g., OTA, Assessing Contractor Use, supra note 14, at
25 (“using the most conservative number of sites to be cleaned up
of 2,000 and an optimistic pace of 30 cleanups per year, the Super-
fund program will be around for the next 60 years”).

44 See, e.g., Hazardous Waste Cleanup Project (July 1992) at 6.

45 See, e.g., GAO, Issues that Need to be Addressed, supra note 8,
at 4 ($40 billion); Probst, Policy Options, supra note 43, at 30
($44.6 billion, not including sites to be added in the future),

a

17

to $60-75 billion,*’ to $100 billion,*? to much higher
figures.** It is now expected that “the final Superfund
bill could be double that of the savings and loan de-
bacle.” ® And, hovering in the background are several
hundred thousand more potential sites.

The mismanagement described above has contributed
substantially to these astronomical costs, and “threaten[s]
to make the [Superfund] program the most expensive pub-

#6 See, e.g., Kramer, Is There A Better Way?, supra note 29, at
31 ($76 billion based on EPA’s figures, but describes those figures
as “extremely conservative’); Hazardous Waste Cleanup Project,
Superfund Overview at 3 ($60 billion).

47 See, e.g., Russell, The Task Ahead, supra note 27, Table I at 16
(calculates $106 billion as the plausible lower bound for NPL clean-
ups); S. Sarason, Comment, in U.S. Waste Management Policies
(American Council for Capital Formation 1992) at 93 (more than
$100 billion).

48 See, e.g., Russell, The Task Ahead, supra note 27, Table I at 16
($151 billion as the “best guess” for NPL cleanups, and $302 billion
as the “plausible upper bound’). In that same study, estimates for
NPL cleanup costs under potentially more stringent criteria in-
crease to a best guess of $352 billion, with a plausible lower bound
of $246 billion and a plausible upper bound of $704 billion. Id.
Table III at 22. See also F. Viviano, Superfund Costs May Top
S&L Bailout, The San Francisco Chronicle (May 29, 1991) at Al
(up to $1 trillion, citing separate studies by Salomon Brothers and
Hirschhorn and Associates).

9 F. Viviano, Superfund Costs May Top S&L Bailout, The San
Francisco Chronicle (May 29, 1991) at Al.

50 These figures [on costs and time to clean up] are even more
startling when you consider that the seriousness of contamina-
tion at up to several hundred thousand additional potential
hazardous waste sites may need to be eventually addressed.

GAO, Making Superfund Work Better, supra note 8, at 1. See also
id. at 9-10 (“In December 1987 we estimated that up to 425,000
sites nationwide may need to be evaluated for Superfund action.”) ;
OTA, Coming Clean, supra note 15, at 129 (“upper bound of at
least 439,000 potential sites”).

ne

i8

2” 51

lic policy fiasco in U.S. history. By destroying in-
centives for proper management, the Tenth Circuit’s de-
cision will only increase such costs.

The impact of these staggering cleanup costs—and,
therefore, of the decision below that will substantially
and unnecessarily increase those costs—will be wide-
spread. Over 25,000 individuals and entities have al-
ready been identified as PRPs at one or more Superfund
sites,” and the number is sure to go much _ higher.”
PRPs include not just large companies, but numerous
small businesses; federal, state and local government en-
tities; universities and public school systems: hospitals;
religious institutions and charitable organizations; and
private individuals.** “Collectively, PRPs cut across the

51 F, Viviano, Superfund Costs May Top S&L Bailout, The San
Francisco Chronicle (May 29, 1991) at Al.

52 See, e.g., Kramer, Is There a Better Way?, supra note 29, at
xiii (26,000 PRPs by end of 1992). As with virtually all aspects
of the Superfund program (with the notable exception of the num-
ber of sites actually cleaned up), the number of PRPs has been
increasing rapidly. By the end of 1989, EPA had identified 14,000
PRPs, see, e.g., Superfund Issues Forum, What is Superfund?
(1991) at 2, and a June 1991 article refers to 17,000 PRPs. See
B. Feder, In the Clutches of the Superfund Mess, The New York
Times (June 16, 1991), section 3 at 6.

53 “(The| 26,000 PRPs ... designated by EPA represent a small
slice of the total pie.” Kramer, Js There A Better Way?, supra note
29, at 150.

54 See, e.g., B. Feder, In the Clutches of the Superfund Mess,
New York Times (June 16, 1991), section 3 at 1, 6; D. Blum, 91
Colleges May Be Required to Help Pay for Cleanup of 2 Hazardous-
Waste Sites, The Chronicle of Higher Education (June 10, 1992)
at A25; P. Hong, The Toxic Mess Called Superfund, Business Week
(May 11, 1992) at 32 (local Girl Scout troop), 34; National Environ-
mental Trust Fund, Superfund-—An Environmental Failure (Jan.
1993) at 2; Superfund Improvement Project, Superfund Reform:
Achieving Faster Cleanup at a Fairer Price (1993) at 1; Superfund
Issues Forum, The National Environmental Trust Fund (June
1991) at 3.

19

entire breadth of American organizations and enter-
prises.” °°

As one Member of Congress has said: “Superfund
will ultimately make PRPs of us all.” °°
* *

Amici’s members are committed to protecting the pub-
lic from environmental harm, including from contami-
nated waste sites. They understand that environmental
cleanup will be costly, and are fully prepared to pay their
fair share. However, this country cannot afford to in-
crease the substantial costs of environmental cleanup by
mismanagement, waste and abuse. It is critical that gov-
ernment plans for the cleanup of Superfund sites be prop-
erly selected, and that the costs incurred not be unreason-
able. excessive or inappropriate.

The ban on pre-enforcement review has shielded abuses
in the Superfund program from judicial scrutiny to date.
The program is now reaching the stage where EPA’s
cleanup actions would finally be subject to the “careful
and exacting study” promised in return for the ban on
pre-enforcement review.’ Amici’s members know first-
hand that the prospect of such judicial review will be
extremely important in reducing inappropriate and waste-
ful expenditures. By eliminating such review, the Tenth
Circuit’s decision destroys the incentive for responsible
government ac¢tion and can only increase the waste that
has all too often characterized Superfund cleanups. Based
on their daily involvement in the Superfund program,
amici's members know that, if allowed to stand. the

55 Kramer, Js There A Better Way?, supra note 29, at 150. |

56 Quoted in Superfund Issues Forum, Superfund Liability:
Myths and Facts About PRPs (June 1991) at 1.

57 Lone Pine Steering Committee v. U.S. Environmental Protec-
tion Agency, 777 F.2d 882, 887 (3d Cir. 1985), cert. denied, 476
U.S. 1115 (1986).

20

decision below will prove to be an extremely costly
mistake.
CONCLUSION

Superfund will continue to demand enormous national
resources. Its success will depend on effective manage-
ment and oversight. Given the overwhelming evidence
of mismanagement, waste and abuse in the Superfund
program to date, one would hope to see steps taken to
increase effective oversight of that program. Unfortu-
nately, the decision below moves in exactly the opposite
direction. Far too much is at stake in the Superfund
program to deprive the nation of the benefits of judicial
review of EPA’s actions.

For the foregoing reasons, amici respectfully urge the
Court to grant the Petition for a Writ of Certiorari.

Respectfully submitted,

JAN S. AMUNDSON PAUL G. WALLACH
General Counsel Counsel of Record
NATIONAL ASSOCIATION OF JEFFREY J. DAVIDSON
MANUFACTURERS HALE AND DORR
1331 Pennsylvania Ave., N.W. 1455 Pennsylvania Ave., N.W.
Washington, D.C. 20004 Washington, D.C. 20004
DAVID F. ZOLL (202) 942-8400
General Counsel Counsei for Amici Curiae
JACQUELINE A. SINCORE
Counsel
CHEMICAL MANUFACTURERS
ASSOCIATION

2501 M Street, N.W.
Washington, D.C. 20037

21

PATRICIA A. FRANCO, Esq.

Staff Director, Environmental
Affairs

ELECTRONIC INDUSTRIES
ASSOCIATION

2001 Pennsylvania Ave., N.W.

Washington, D.C. 20006

XOBIN S. CONRAD, Esq.
NATIONAL CHAMBER
LITIGATION CENTER, INC.
1615 H Street, N.W.
Washington, D.C. 20062
Counsel for
The Chamber of Commerce
of the United States

September 20, 1993

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1017%3A3. Public record. Not legal advice.