# Opposition Brief — Advance Chemical Co. v. United States

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## Record

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

## Text

No. 92-1995

Jn the Supreme Court of the United States

OCTOBER TERM, 1993

ADVANCE CHEMICAL COMPANY, ET AL., PETITIONERS
v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREw S. Days, III
Solicitor General

MYLES E. FLINT

Acting Assistant Attorney
General

DAVID C. SHILTON
GERALD H. YAMADA STEVEN NOVICK
Acting General Counsel JOHN T. STAHR

CHARLES DE SAILLAN Attorneys
Attorney Department of Justice
Environmental Protection Washington, D.C. 20530
Agency (202) 514-2217
Wushington, D.C. 20460

pe)

QUESTIONS PRESENTED

Section 107(a)(4)(A) of the Comprehensive Environ-
mental Response, Compensation, and Liability Act of
1980 (CERCLA) subjects parties that are responsible for
the threatened or actual release of hazardous substances
to liability for “all costs of removal or remedial action
incurred by the United States Government or a State or
an Indian tribe not inconsistent with the national
contingency plan.” 42 U.S.C. 9607(a)(4)(A). The ques-
tions presented are:

1. Whether a responsible party may avoid liability for
the costs of remedial or removal actions that are not
inconsistent with the national contingency plan on the
ground that the costs are unreasonable.

2. Whether the court of appeals erred in declining to
reopen the district court’s prior grant of partial sum-
mary judgment awarding the United States certain
response costs for the hazardous waste site.

(I)

TABLE OF CONTENTS

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a ETE A RE
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TABLE OF AUTHORITIES
Cases:
Glaros v. H.H. Robertson Co., 797 F.2d 1564 (Fed. Cir.
1986), cert. dismissed, 479 U.S. 1072 (1987) ...........ccc0000.
Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) ...........
Holley v. Northrop Worldwide Aircraft Services, Inc.,
GE |__|
Interstate Power Co. v. Kansas City Power & Light Co.,
ee | aa
J.V. Peters & Co. v. Administrator, EPA, 767 F.2d 263
No sods cdoumiessivns
Lone Pine Steering Committee v. United States Environ-
mental Protection Agency, 777 F.2d 882 (3d Cir. 1985),
cert. denied, 476 U.S. 1115 (1986) .................ccccccccssseeees
Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300 (5th
I ate dn dled sencndctencacaickdbkesuncbrksseSesesussnesnenavesess
O'Neil v. Picillo, 682 F. Supp. 706 (D.R.1. 1988), aff’d,
883 F.2d 176 (1st Cir. 1989), cert. denied, 493 U.S. 1071
SN Tail cuh cel uctudabhbbadhnahestatisbinessttuncenanahvincesvencaes
Peterson v. Lindner, 765 F.2d 698 (7th Cir. 1985) ..000.......
Roper v. Edwards, 815 F.2d 1474 (11th Cir. 1987) ..........
Stuckey v. Northern Propane Gas Co., 874 F.2d 1563
a acai ies diwedesnsskuanbeknaonss
Trustees of Indiana University v. Aetna Casualty &
Surety Co., 920 F.2d 429 (7th Cir. 1990) ........ ee
United States v. Deseri Gold Mining Co., 433 F.2d 713
TR GRIESE SASTRY SSDS A oo nC

16
12

16, 17

16

13

13

IV

Cases—Continued: Page

United States v. Northeastern Pharmaceutical & Chem-
ical Co., 810 F.2d 726 (8th Cir. 1986), cert. denied, 484

Ce Oe rE isi sc eee nena 12, 13, 14
United States v. R.W. Meyer, Inc., 889 F.2d 1497 (6th

Cir. 1989), cert. denied, 494 U.S. 1057 (1990) .......000.000.. 3, 13
United States v. Reilly Tar & Chemical Corp., 546 F.

SP: DU CED. Ti. ROI scence pssinseereeccccinusecsertcssveiins 2
Voutour v. Vitale, 761 F.2d 812 (1st Cir. 1985), cert.

NO, SHO. TER. BID GED sav eccarsctvccssenccscevaversetsssccseias 16
Walls v. Waste Resource Corp., 823 F.2d 977 (6th Cir.

PTT ve ceuchtnsuocsiundcgcaastaae vuisiatehdvetadesmdbacidiedihs eset tiuaticdkes 2
Wenzel v. Boyles Galvanizing Co., 920 F.2d 778 (11th Cir.

STERE Sonpunnctetincablasbndateiildedatuersnbdcaapsnerainasieed cae taaada deeds 16

Statutes, regulations and rule:

Comprehensive Environmental Response, Compensation,

and Liability Act of 1980, 42 U.S.C. 9601 et seq. ............ 2
© RRA, Se Sie DRO vcce cnc essccskccsuscareccacesevennnes 3
5 ROLES), GE UBC, FOGG) oo cccsisiscccescccicosescccessccseanes 3
Fs Re res SEI nseinkccninandivathacsevvencusenseneRinweuness 3
FP Se Sa, MID aah ia ccccsbxesenceoboninessnccnmadsvhenccecenasees 4
ny Se WI, WD ea cepa nhctssicenencsstaenudeseseduncinentseces 5
© Ry Se Ess POD sacacsecescnenasiecensiisescnssoesniosss 3, 4
ry, See ERA NE tarde cisnncrankcaxcccsessceavnveseens 3, 5
© AGIOS), SE CUBA. SRG TONG) vssrevssscscsvsinnrsccosseconss 3, 15
§ 107(a)(4)(A), 42 U.S.C. 9607(a)(4)(A) ...... eee eee ee passim
§ 107(a)(4)(B), 42 U.S.C. 9607(a)(4)(B) ............ 4,-5, 8, 11, 15
Superfund Amendments and Reauthorization Act of
1986, Pub. L. No. 99-499, 100 Stat. 1618 ................cc00e0 3
Exec. Order No. 12,580, 3 C.F.R. 193 (1988) ..............0.00 3
40 C.F.R. (1989):
RN - NEE aiiseivsensessnneseventushsensnieeksssaucesinnase 4
SRN III. cir ciputdiecnicencnebsaceadacnanshisnoh scususavcussbunseanis
PIE IN 0 ousio see sarc uacabagix tose oualassametdonesdieisenaians
40 C.F.R. 300.400-300.435 (1990) .......... cc ecccceeeeeceeeeeeeeeeee

ee Re ae 6 Be Ae wacatiadendartnsencnspiatianiclasemenstoaiaaigaiebinavieus 4

V
Rule—Continued:
PU, Se MO, Oo MMIII ccc dccvasionsvuussccesutauabeansbunteduicenctacwweieene
Miscellaneous:
H.R. Rep. No. 1016, 96th Cong., 2d Sess. Pt. I (1980) ......

Jn the Supreme Court of the United States

OCTOBER TERM, 1993

No. 92-1995
ADVANCE CHEMICAL COMPANY, ET AL., PETITIONERS
Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-
25a) is reported at 982 F.2d 1436. The opinions of the
district court (Pet. App. 28a-25la, 252a-285a) are
reported at 750 F. Supp. 1460 and 733 F. Supp. 1424.

JURISDICTION

The judgment of the court of appeals was entered on
December 21, 1992. A petition for rehearing was
denied on February 17, 1993. Pet. App. 26a-27a. On
May 4, 1993, Justice White extended the time for
filing a petition for a writ of certiorari to and includ-
ing June 17, 1993, and the petition was filed on that
date. The jurisdiction of this Court is invoked under
28 U.S.C. 1254(1).

(1)

STATEMENT

The Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA),
42 U.S.C. 9601 et seq., subjects parties that are
responsible for the threatened or actual release of
hazardous substances to liability for “all costs of
removal or remedial action incurred by the United
States Government or a State or an Indian tribe not
inconsistent with the national contingency plan.” 42
U.S.C. 9607(a)(4)(A). Petitioners, who are responsible
parties at the Hardage waste disposal site, present an
interlocutory challenge to the court of appeals’
determination that the United States is entitled to
recover response costs that the government has
incurred to remedy conditions at that site.

1. Congress enacted CERCLA in 1980 to “estab-
lish a comprehensive response and financing mech-
anism to abate and control the vast problems
associated with abandoned and inactive hazardous
waste disposal sites.” H.R. Rep. No. 1016, 96th Cong.,
2d Sess. Pt. I, at 22 (1980). Congress intended that
the government be given “the tools necessary for a
prompt and effective response to problems of national
magnitude resulting from hazardous waste disposal,”
and that “those responsible for problems caused by
the disposal of chemical poisons bear the costs and
responsibility for remedying the harmful conditions
they created.” Walls v. Waste Resource Corp., 823
F.2d 977, 980 (6th Cir. 1987), quoting United States v.
Reilly Tar & Chemical Corp., 546 F. Supp. 1100, 1112
(D. Minn. 1982).'

' Congress conferred the powers granted under CERCLA
to the President, who has delegated authority to the Adminis-

3

CERCLA provides EPA with two principal meth-
ods for achieving cleanup of hazardous waste sites.
First, Section 104 of CERCLA authorizes EPA to
perform removal or remedial actions, known as
response actions, using the Hazardous Substance
Superfund. 42 U.S.C. 9604; see 42 U.S.C. 9601(23)
(defining a removal action); 42 U.S.C. 9601(24) (defin-
ing a remedial action). See also United States v. R.W.
Meyer, Inc., 889 F.2d 1497, 1500 (6th Cir. 1989), cert.
denied, 494 U.S. 1057 (1990). Second, Section 106(a) of
CERCLA empowers EPA to issue an administrative
order or to obtain a judicial injunction requiring the
responsible parties to undertake response actions. 42
U.S.C. 9606(a).

If EPA performs the response action, then the
United States may the government’s re-
sponse costs by bringing a cost recovery action
against responsible parties pursuant to Section 107(a)
of CERCLA. 42 U.S.C. 9607(a). Private parties that
undertake response actiohs may also recover costs
from responsible parties tp the extent that they can
show that the costs were “necessary.” 42 U.S.C.
9607(a). Specifically, Sedtion 107(a)(4) states that
responsible parties are lialle for

(A) all costs of removal or remedial action
incurred by the United: States Government or a
State or an Indian tribe not inconsistent with the
national contingency plan;

trator of the Environmental Protection Agency (EPA). See
Exec. Order No. 12,580, 3 C.F.R. 193 (1988). Congress has re-
vised CERCLA through the Superfund Amendments and
Reauthorization Act of 1986 (SARA). Pub. L. No. 99-499, 100
Stat. 1613.

4

(B) any ether necessary costs of response
incurred by any other person consistent with the
national contingency plan|.|

42 U.S.C. 9607(a)(4)(A) and (B) (emphasis added). The
national contingency plan (NCP), which EPA has
promulgated as a regulation pursuant to Section 105
of CERCLA, 42 U.S.C. 9605, prescribes methods for
investigating, planning, and undertaking response
actions. See 40 C.F.R. Pt. 800. The NCP sets out a
framework for selecting response actions and pro-
vides guidance as to what types of response actions
are appropriate. See 40 C.F.R. 300.64-800.71 (1989); 40
C.F.R. 300.400-300.435 (1990). See generally Pet. App.
8a-10a.

2. In September 1972, Royal Hardage began accept-
ing hazardous substances for disposal at a site near
Criner, Oklahoma. The Hardage site operated from
September 1972 until November 1980, during which
time more than 20 million gallons of waste were
transported to the site and treated, stored, or disposed
of at that location. Pet. App. 6a, 40a. Since 1980, EPA
has conducted extensive investigations and admin-
istrative review to determine the extent of con-
tamination at the Hardage site, the liable parties, and
possible remedial actions to clean up the site. Jd. at
40a-4 la.

On June 25, 1986, the United States filed this
action, on behalf of the EPA, against 32 generators
and three transporters, each of whom purpertedly
shipped between 100,000 and 1.7 million gallons of
hazardous wastes to the site. Pet. App. 48a. The
complaint requested injunctive relief under Section
106(a) of CERCLA to require defendants to clean up
the site. The complaint also sought recovery under

5

Section 107(a)(4)(A) of response costs incurred by the
United States. Pet. App. 48a. -

Most defendants named in the complaint organized
themselves as the Hardage Steering Committee
(HSC), and on September 8, 1986, the HSC defendants
filed an answer and a counterclaim against the United
States contending that several federal agencies, as
entities also responsible for contamination at the site,
were liable for response costs incurred by HSC,
pursuant to Section 107(a)(4)(B) of CERCLA. Pet.
App. 20a. HSC ultimately stipulated as to liability
under Sections 106 and 107(a), and the proceedings
then continued as to response cost claims and remedy.
Pet. App. 48a.

3. On September 11, 1989, the United States moved
for partial summary judgment pursuant to Section
107(a)(4)(A) for past response costs—specifically, for
Department of Justice expenses incurred through the
end of the second fiscal quarter of 1989 (March 31,
1989) and for EPA expenses incurred through the end
of the first fiscal quarter of 1989 (December 31, 1988).
See Pet. App. 2538a. The United States requested
direct costs totalling $5,441,201, including, among
other things, payroll and travel costs, the costs of
studies and investigations for the Hardage site,
installation of monitoring wells, the collection of
samples and laboratory analysis, and other response
activities. /d. at_259a-262a, 267a, 275a. The United
States requested indirect costs totalling $850,864,
attributable to the Department of Justice’s enforce-
ment program, but not allocated to specific cases. Jd.
at 275a-276a. The United States also requested a
declaratory judgment that defendants are liable for
future response costs. Jd. at 279a.

6

In response, HSC made no assertion that the
United States’ response costs were inconsistent with
requirements of the NCP, and its brief opposing
summary judgment contained no citation to any
provision of the NCP. See Pet. App. 267a-285a.
Rather, HSC asserted that the United States’ costs
were “unnecessary” or “improperly performed,” that
data were “unacceptable or unusable,” or that the
results were “not useful to remediation of Hardage.”
Id. at 269a. HSC also contended that certain costs
were incurred in violation of federal procurement
regulations, and that the United States failed to
document that some costs were incurred at the
Hardage site. /d. at 271a.

The district court granted partial summary judg-
ment to the United States for all direct response
costs, denied summary judgment as to indirect costs,
and granted a declaratory judgment for future costs.
Pet. App. 254a-255a. As to direct costs, the court
found that the United States had “submitted exten-
sive documentation” demonstrating a prima facie
ease, including affidavits and summaries of cost data,
and that the burden shifted to HSC to demonstrate
inconsistency with the NCP. /d. at 267a-268a. The
court held that HSC “totally failed to meet this
burden.” Jd. at 275a. As to claims that costs were
unreasonable or unnecessary, the court found that,
under the plain statutory language, the United States
“is entitled to recover all response costs at the
Hardage site not inconsistent with the N.C.P.” and
HSC “failed to produce any evidence” demonstrating
inconsistency with any provision of the NCP. 7d. at
269a-270a (emphasis in original). As to federal
procurement regulations, the court found neither

7

authority as to their relevance to the NCP nor “any
evidence” that there was a violation of such regula-
tions. /d. at 271a. The court also held that assertions
that costs were not incurred at the Hardage site were
“conclusionary” and “without merit.” Jd. at 272a.

The court ruled that indirect costs may be recov-
ered under Section 107(a)(4)(A) and that the United
States had established a prima facie case, but that the
record at that time was insufficient to warrant
summary judgment. Pet. App. 279a. The court also
granted the United States a declaratory judgment
“for liability for future response costs associated
with the Hardage site except the DOJ indirect costs.”
Id. at 280a.

4. The district court conducted a trial from
November through December 1989. It issued an opin-
ion on August 9, 1990, addressing additional response
cost claims and the selection of a cleanup remedy.
With respect to costs, the court granted the United
States’ request for supplemental direct costs of
$925,684, covering claims within the same categories
of direct cost awarded on summary judgment, but
generally updated through the end of the second fiscal
quarter of 1989 (March 31, 1989). Pet. App. 113a-114a.
The court aiso awarded the United States indirect
costs through that period, totalling $1,516,245, finding
that HSC failed to prove that such costs were
inconsistent with the NCP. /d. at 112a, 117a, 122a.
See id. at 127a.

At trial, HSC and the United States presented the
court with alternative remedies. The HSC and the
United States alternatives contained common ele-
ments, but the United States alternative contained
two additional components. Pet. App. 76a-77a & n.30.

8

The HSC remedy consisted of a series of on-site

trenches and recovery wells, a water treatment

system, and groundwater and surface monitoring, id.

at 76a-77a, all of which the United States accepted, id.

at 59a. In addition, the United States proposed partial

excavation and removal offsite of materials in ceriain

areas of the site and soil vapor extraction to remove |
highly toxic and mobile compounds from the subsur-

face. Ibid.”

The court adopted the HSC remedy with modifica-
tions providing for additional liquid recovery wells.
Pet. App. 76a. The court found that HSC had demon-
strated that this remedy “satisfies the section 106(a)
standards for health and welfare and the environ-
ment,” and is “most consistent” with the NCP. /d. at
90a. The court recognized that EPA’s additional
measures—excavation and soil vapor extraction—are
effective methods for remediating hazardous waste
sites, but the court concluded that the government
had failed to demonstrate that they were appropriate
remedies at the Hardage site. /d. at 59a, 7la-76a.

The court also ruled on HSC’s counterclaim for
response costs. The court concluded that $3.7 million
of HSC’s claimed $9.5 million in costs were “nec-
essary costs of response” under Section 107(a)(4)(B).
Pet. App. 129a. The court found that the remaining

* The government began development of its excava-
tion/vapor extraction remedies in the spring and summer of
1989, in conjunction with so-called “clean slate” remedy negoti-
ations with HSC. EPA issued the Record of Decision for that
remedy in November 1989. See Pet. App. 57a. Thus, the
United States’ pretrial response cost claims, which extended
only through March 1989, did not include costs associated with
those remedies.

a!

9

costs were not “necessary” because they were
duplicative and vague, id. at 15la, lacked adequate
documentation, id. at 15la-152a, were litigation
oriented, id. at 150a-154a, and included “extravagant”
charges such as a $1000 dinner for HSC’s expert
panel, id. at 154a-155a.

The court entered a judgment pursuant to Fed. R.
Civ. P. 54(b), directing HSC to implement the remedy
determined at trial and awarding the United States
its response costs. Appellants’ C.A. Br. App. A 2-3, 9-
10, 14. The court also declared that the defendants
would be liable for future response costs, defined as
costs incurred from April 1, 1989, for Department of
Justice expenses, and from January 1, 1989, for EPA
expenses. /d. at 10.

5. HSC appealed the district court’s determination
that the United States was entitled to response costs,
and the court of appeals rejected that challenge. The
court explained that Section 107(a)(4)(A) of CERCLA
allows the United States to recover “all costs” for
response actions not inconsistent with the NCP. Pet.
App. 18a (emphasis added by the court). Notwith-
standing the plain language of the statute, “HSC
failed to identify any response actions by the
government that were inconsistent with the NCP”
and instead asserted only that individual costs were
unreasonable or excessive. /bid.

The court of appeals specifically declined to reopen
the district court’s order of partial summary judg-
ment on the pretrial response cost issues. Pet. App.
15a-17a. The court held that the “time at which HSC
was required to establish the existence of a genuine
issue of inconsistency with the NCP, as to the
particular response costs submitted by the govern-

10

ment at summary judgment, was long past when the
remedy phase of the trial began.” Jd. at 17a. Thus,
“{tlo defeat the government’s claim for those response
costs, HSC was required to establish a genuine issue
of inconsistency with the NCP at the summary judg-
ment phase, when recoverability of those particular
government response costs was at issue.” Jbid.

Finally, the court clarified that the declaratory
judgment, holding HSC liable for future response
costs, does not bar HSC from opposing the recover-
ability of those costs as inconsistent with the NCP.
Pet. App. 18a. The court held that “a defendant who is
declared liable for future response costs may still
challenge those costs as unrecoverable because the
underlying response actions giving rise to the costs
are inconsistent with the NCP.” Jbid.

ARGUMENT

Petitioners challenge the court of appeals’ affir-
mance of a district court judgment awarding the
United States costs it has incurred in responding to
threatened and actual releases of hazardous sub-
stances at the Hrdage site. Contrary to petitioners’
arguments, the court of appeals’ decision is correct, it
does not conflict with any decision of this Court or of
another court of appeals, and it raises no issue
warranting review by this Court.

1. The United States is entitled to response costs
under CERCLA pursuant to Section 107(a)(4)(A),
which states that the parties responsible for site
contamination are liable for

all costs of removal or remedial action incurred by
the United States Government or a State or an

1]

Indian tribe not inconsistent with the national
contingency plan.

42 U.S.C. 9607(a)(4)(A). As the court of appeals
explained, this language authorizes the United States
“to recover ‘all costs’” for response actions, provided
that those actions are not inconsistent with the NCP.
Pet. App. 13a (emphasis added by the court). By
contrast, private parties may recover only “necessary
costs” (42 U.S.C. 9607(a)(4)(B)) for response actions
that are “consistent” with the NCP. Pet. App.
10a-1la.

Petitioners attack the court of appeals’ interpreta-
tion of CERCLA’s cost recovery provisions, charging
that the court “rewrote” Section 107(a)(4)(A) by pre-
cluding defendants from challenging the govern-
ment’s costs per se and by requiring them to
challenge the government’s response actions. Pet. 8.3
Petitioners’ argument reveals their continuing
misunderstanding of the role of the NCP. The NCP
does not contain standards for evaluating costs per se.
Rather, the NCP prescribes the standards for inves-
tigating, planning, choosing and undertaking “re-
moval or remedial action.” As the court of appeals
explained:

The NCP regulates choice of response actions,
not costs. See 40 C.F.R. §§ 300.65, 300.68 (1989).
Costs, by themselves, cannot be inconsistent with
the NCP. Only response actions—i.e., removal or

* Significantly, petitioners quote Section 107(a)(4)(A), but
they submerge beneath ellipses the words “removal or remedial
action.” See Pet. 8 (stating that the United States may recover
“all costs ... incurred ... not inconsistent with” the NCP);
compare 42 U.S.C. 9607(a)(4)(A) (quoted in the text above).

12

remedial actions—can be inconsistent with the
NCP, which can be demonstrated by a showing
that the government’s choice of response action
was arbitrary and capricious. As long as the gov-
ernment’s choice of response action is not incon-
sistent with the NCP, its costs are presumed to
be reasonable and therefore recoverable.

Pet. App. 18a-14a, citing United States v. Northeast-
ern Pharmaceutical & Chemical Co. (NEPACCO),
810 F.2d 726, 747-748 (8th Cir. 1986), cert. denied, 484
U.S. 848 (1987).

Like the current NCP, the NCP in effect during
the time period relevant to this case contained
criteria and procedures for determining whether a
short-term removal action is appropriate at a particu-
lar site, see 40-C.F.R. 300.65 (1989), and for assessing
and selecting a permanent remedy, see 40 C.F.R.
300.68 (1989), but it contained no criteria for evaluat-
ing how much a selected remedy should cost to
implement. Thus, as the court of appeals correctly
explained, the government’s costs in implementing a
remedy could be inconsistent with the NCP only if
the underlying “removal or remedial action” was
inconsistent with the NCP. Pet. App. 13a-14a. The
court of appeals affirmed the district court’s con-
clusion that petitioners failed to make that showing
here, 7d. at 14a-15a, and that factbound question dves
not warrant review by this Court. Cf. Goodman vy.
Lukens Steel Co., 482 U.S. 656, 665 (1987).

Petitioners’ contention (Pet. 8-12) that the court of
appeals’ decision conflicts with the decisions of other
courts of appeals is without merit. The courts have
uniformly held that Section 107(a)(4)(A) of CERCLA
authorizes the United States “to recover all costs”

13

not inconsistent with the NCP and that responsible
parties have the burden of demonstrating inconsis-
tency. See United States v. R.W. Meyer, Inc., 889
F.2d at 1504; NEPACCO, 810 F.2d at 747-748; O'Neil
v. Picillo, 682 F. Supp. 706, 728-729 (D.R.I. 1988), aff’d,
883 F.2d 176 (1st Cir. 1989), cert. denied, 493 U.S. 1071
(1990). The cases that petitioners cite as conflicting
authority present no conflict whatsoever.

Petitioners first cite (Pet. 8-9) the decisions in
Lone Pine Steering Committee v. United States
Environmental Protection Agency, 777 F.2d 882, 887-
888 (3d Cir. 1985), cert. denied, 476 U.S. 1115 (1986),
and J.V. Peters & Co. vy. Administrator, EPA, 767
F.2d 263, 266 (6th Cir. 1985). Those cases, however, do
not even involve Section 107(a)(4)(A) cost recovery
actions. Instead, they address only whether respon-
sible parties may obtain judicial review of an EPA
response action prior to its enforcement. See Lone
Pine, 777 F.2d at 883; J.V. Peters, 767 F.2d at 264.
While those decisions contain dicta properly noting
that responsible parties may challenge the govern-
ment’s costs once a cost recovery action is brought,
they neither address nor contradict the court of
appeals’ interpretation of Section 107(a)(4)(A).

Petitioners next rely (Pet. 10-11) on the Kighth
Circuit’s decision in NEPACCO, supra. NEPACCO
did involve a cost recovery action, but the court of
appeals explicitly followed that decision in this case.
Pet. App. 10a-lla. The Eighth Circuit, like the court
of appeals here, held that responsible parties cannot
contest the “reasonableness” of the government’s
costs, but instead must show that the costs are
inconsistent with specific provisions of the NCP. See
NEPACCO, 810 F.2d at 747-748 (“‘all costs’ incurred

14

by the government that are not inconsistent with the
NCP are conclusively presumed to be reasonable”).
The Eighth Circuit’s application of that principle in
NEPACCO is cutirely consistent with the court of
appeals’ decision here. The Eighth Circuit consid-
ered the defendants’ challenge to the government’s
“choice of a particular cleanup method” and held that
the choice was consistent with the NCP, stating that
the defendants had “failed to show that the EPA acted
arbitrarily and capriciously in choosing the par-
ticular method it used to clean up the * * * site.” 7d.
at 748. Compare Pet. App. 11a.‘

2. Petitioners also raise (Pet. 12-15) policy objec-
tions to the court of appeals’ decision, contending that
the court of appeals’ construction of Section
107(a)(4)(A) will result in government “waste and
abuse.” Pet. 13. Petitioners suggest that the gov-
ernment may employ “gold plated bulldozers” and
“throw lavish parties at the close of each day’s work”
and then “send the bills for these excessive charges
to liable parties.” Pet. 14. Petitioners’ rhetoric
overlooks the fact that it was the petitioners—who
are responsible for creating the hazardous conditions
at the Hardage site—that attempted to bill the
government for a $1000 dinner and other “extra-
vagant” charges as “necessary” response costs. See
Pet. App. 154a-155a.

In any event, Congress has considered the possibil-
ity of “unnecessary” expenditures, but has concluded

4 Accord O'Neil, 682 F. Supp. at 729 (“defendants have the
burden of demonstrating that the clean-up, because of some
variance from the [NCP], resulted in demonstrable excess costs
for which they should not be responsible”).

15

that the courts should not be pressed into service as
inspectors general for government cost recovery
actions. Section 107(a)(4) instructs the courts to
examine site clean-ups for consistency with the NCP.
but it directs that the courts shall not otherwise
engage in second-guessing the government’s judg-
ment as to what constitute “necessary” costs for
cleaning up a hazardous waste site. Compare 42
U.S.C. 9607(a)(4)(A) (stating that the responsible
parties are liable for “all costs” that the government
incurs for response actions that are “not inconsistent
with” the NCP) with 42 U.S.C. 9607(a)(4)(B) (allowing
private parties to recover “necessary costs” that are
“consistent with” the NCP). Instead, Congress itself
has carefully policed the CERCLA program for waste
and abuse. See Pet. 13 n.6 (citing various GAO
reports). There is no need for already overburdened
courts, which have limited technical and accounting
resources and expertise, to carry out that task.

3. Petitioners contend (Pet. 15-21) that the court
of appeals incorrectly declined to reopen the pretrial
award of partial summary judgment for response
costs incurred prior to trial. Petitioners assert that
the court of appeals should have reviewed the district
court’s pretrial award in light of the evidentiary
record developed at trial concerning the government’s
proposed remedy. They assert that had the court of
appeals done so, that court would have disallowed the
award of pretrial response costs, and that failure to do
so raises a conflict with the Seventh, Ninth and
Eleventh Circuits concérning the “scope of appellate
review of an interlocutory order shown to be
erroneous.” Pet. 15.

16

Petitioners are wrong in asserting that the court
of appeals’ decision gives rise to a conflict among the
courts of appeals. As petitioners acknowledge (Pet.
16), the court of appeals’ statement that review of a
grant of partial summary judgment “is confined to an
examination of the materials before the court at the
time the ruling was made,” Pet. App. 16a, is consis-
tent with the First Circuit’s decision in Voutour v.
Vitale, 761 F.2d 812, 817 (1985), cert. denied, 474 U.S.
1100 (1986); and the Federal Circuit’s decision in
Glaros v. H.H. Robertson Co., 797 F.2d 1564, 1569
(1986), cert. dismissed, 479 U.S. 1072 (1987). See also
Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300,
1307 (5th Cir. 1988).

The cases that petitioners cite (Pet. 17-18) as
conflicting authority, moreover, are not to the
contrary. Two of those cases do not involve summary
judgment at all.” The remaining Eleventh Circuit
cases, which represent petitioners’ primary line of
authority (Pet. 18), all involve the denial of a motion
for summary judgment. Wenzel v. Boyles Galvaniz-
ing Co., 920 F.2d 778, 782 (11th Cir. 1991); Stuckey v.
Northern Propane Gas Co., 874 F.2d 1563, 1567 (11th
Cir. 1989); Holley v. Northrop Worldwide Aircraft
Services, Inc., 835 F.2d 1375, 1378 (11th Cir. 1988).

® In Peterson v. Lindner, 765 F.2d 698 (7th Cir. 1985), the
court addressed only whether the declaratory judgment that
issued in that case was an interlocutory order, allowing a
transferee judge to reconsider it prior to final judgment. /d. at
704. Similarly, in Interstate Power Co. v. Kansas City Power &
Light Co., 992 F.2d 804 (8th Cir. 1993), the court addressed
only whether the district court had abused its discretion in
certifying final judgment under Fed. R. Civ. P. 54(b). 992
F.2d at 805, 806-807.

17

See also Trustees of Indiana University v. Aetna
Casualty & Surety Co., 920 F.2d 429, 433 (7th Cir.
1990). Those cases apply the unexceptional principle
that if the district court has denied summary
judgment, concluding that material issues of fact are
in dispute, a party cannot appeal that ruling and
ignore the facts later found at trial. The Eleventh
Circuit has expressly limited that principle to cases
involving the denial of motions for summary judg-
ment, stating:

We hold only that a party may not rely on the
undeveloped state of the facts at the time he moves
for summary judgment to undermine a fully-
developed set of trial facts which militate against
his case.
Holley, 835 F.2d at 1378. That principle does not apply
to a grant of summary judgment, which rests on a
judicial finding that no material fact is in dispute.
Indeed, the Eleventh Circuit's decision in Holley
explicitly distinguished a case that “involved an
appeal from a grant rather than a denial of summary
judgment.” bid. (citing Roper v. Edwards, 815 F.2d
1474 (11th Cir. 1987)). Accord Stuckey, 874 F.2d at
1567. Thus, the Eleventh Circuit decisions pose no
conflict with the decision in this case.®

® The sole case that petitioners cite (Pet. 17) involving a
grant of summary judgment, United States v. Desert Gold
Mining Co., 433 F.2d 713 (9th Cir. 1970), is not on point. That
case held only that a district court judge did not abuse his
discretion in reconsidering a grant of partial summary judg-
ment by a previous judge in the same case and on the same
summary judgment record, where no final judgment had been

18

Even if the purported conflict existed, there would
be no occasion to resolve it in this case, because
petitioners have made no showing that the district
court’s post-trial remedy ruling undermined the prior
grant of summary judgment. Petitioners simply
assume—without explanation or citation—that the
United States’ pretrial response costs were associ-
ated with the portion of the government remedy that
was rejected at trial. See Pet. 18. In fact, the pretrial
response costs that the United States requested in
its summary judgment motion were for expenditures
that would have been incurred regardless of the
remedy chosen.’ Petitioners made no attempt below
to show that the pretrial response costs were
associated with the proposed-but-rejected excavation
or soil vapor extraction remedies. Indeed, the United
States’ motion sought only costs incurred through
the second fiscal quarter of 1989 (ending March 31,

entered pursuant to Fed. R. Civ. P. 54(b). 483 F.2d at 714-715.
In the absence of a Rule 54(b) determination or direction, the
district court may revisit its prior grant of partial summary
judgment “at any time before the entry of judgment adjudicat-
ing all the claims and the rights and liabilities of all the
parties.” Fed. R. Civ. P. 54(b). But as we explain in the text
that follows, petitioners provided the district court in this case
with no reason to reconsider its pretrial summary judgment
ruling, and that factbound question would not in any event
warrant review by this Court.

7 Those costs included expenditures for collecting samples
of contaminated soil and groundwater, for laboratory analysis,
for other studies and investigations for the Hardage site, and
for payroll and travel costs. See Pet. App. 259a-262a, 267a.
Such general expenditures would be recoverable from respon-
sible parties irrespective of what remedy was ultimately
selected.

19

1989) for Department of Justice expenses, and
through the first fiscal quarter of 1989 (ending
December 31, 1988) for EPA expenses. See pp. 5-7,
supra; Appellants’ C.A. Br. App. A 10. The United
States did not begin development of its trial remedy
until the spring and summer of 1989, and it did not
issue a Record of Decision for that remedy until
November 1989. See Pet. App. 57a. And even if
petitioners now contest the character of the pretrial
expenses, that factbound matter would not warrant
review by this Court.’

* Pursuant to the district court judgment entered on
August 9, 1990, all costs incurred by the Department of Justice
after April 1, 1989, and by EPA after January 1, 1989, are
defined as “future response costs.” Appellants’ C.A. Br. App.
A 10. As the court of appeals has made clear, petitioners may
contest claims for such future costs, if and when presented, on
the ground that the underlying response actions are inconsist-
ent with the NCP. Pet. App. 17a-20a.

20

CONCLUSION
The petition for a writ of certiorari should be

denied.

Respectfully submitted.

GERALD H. YAMADA
Acting General Counsel
CHARLES DE SAILUAN

Attorney
Environmental Protection
Agency

SEPTEMBER 1993

DREW S. DAys, III
Solicitor General
MYLES E. FLINT
Acting Assistant Attorney
General
DAVID C. SHILTON
STEVEN NOVICK
JOHN T. STAHR
Attorneys

ee ne eT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1017%3A4. Public record. Not legal advice.