Brief for natural resources defense council as amici curiae supporting respondent, United States V. Atlantic Research Corp., No. 06-562 (U.S. Apr. 5, 2007).

• Author: Johnston, Craig
• Position: AMICUS BRIEF

No. 06-562

IN THE SUPREME COURT OF THE UNITED STATES UNITED STATES OF AMERICA, PETITIONER v. ATLANTIC RESEARCH CORPORATION, RESPONDENT

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHT CIRCUIT

BRIEF FOR AMICI CURIAE NATURAL RESOURCES DEFENSE COUNCIL, PROF. CRAIG N. JOHNSTON, PROF. WILLIAM F. FUNK, PROF. MARTHA L. JUDY PROF. NINA A. MENDELSON, PROF. JEFFREY G. MILLER, PROF. PATRICK A. PARENTEAU, AND PROF. ZYGMUNT J.B. PLATER IN SUPPORT OF RESPONDENT

Jerry S. Phillips Counsel of Record Loeb & Loeb LLP 10100 Santa Monica Boulevard, Suite 2200 Los Angeles, CA 90067-4120 (310) 282-2228

TABLE OF CONTENTS INTEREST OF THE AMICI CURIAE SUMMARY OF THE ARGUMENT ARGUMENT 1. The Plain Language of CERCLA Provides Private Parties with a Cost-Recovery Claim 2. SARA Confirms a Broad Understanding of Private-Party Cost Recovery for Those Who do Not Have Express Contribution Claims A. Neither SARA nor its Legislative History Give Any Indication that Congress Was Narrowing [section] 107(a)(4)(B) B. The Lower Court Correctly Determined that [section] 107(a)(4)(B) Complements [section] 113(f) 3. CERCLA's Purposes Argue Strongly in Favor of Reading [section] 107(a)(4)(B) to Allow Those Who Voluntarily Remediate Sites to Seek Cost Recovery CONCLUSION TABLE OF AUTHORITIES APPENDIX INTEREST OF THE AMICI CURIAE

Amici Curiae are a national environmental organization and seven law professors. The Natural Resources Defense Council, which has 1.2 million members and supporters, uses law and science in an effort ensure a safe and healthy environment for all living things. The amici law professors are teachers and students of environmental law, and have a longstanding interest in the Superfund program established by the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

The amici believe this case presents an important opportunity for this Court to affirm the right of private parties to recover cleanup costs under CERCLA. Amici are concerned that, if accepted by the Court, the Government's interpretation would undermine CERCLA's goals of promoting the expeditions cleanup of contaminated sites and ensuring that those responsible bear their share of any resulting cleanup costs. Amici believe the Government's interpretation would result in both fewer cleanups and inequitable burdens on those who do step forward.

A further description of the amici is set forth in an Appendix to this brief. (1)

SUMMARY OF THE ARGUMENT

When Congress first enacted CERCLA in 1980, it provided two different categories of plaintiffs with causes of action to recover costs incurred in cleanup efforts. First, Section 107(a)(4)(A) provided the United States, States, and Indian tribes with the authority to sue those deemed responsible under [section] 107(a) (often referred to as "potentially responsible parties" or "PRPs") to recover costs "not inconsistent with" a document known as the National Contingency Plan ("NCP"). 42 U.S.C. [section] 9607(a)(4)(A). (2) And second, Section 107(a)(4)(B) gave "other person[s]" that same authority, with the difference that these persons are required to demonstrate that their cleanups are "necessary" and "consistent with" the NCP. 42 U.S.C. [section] 9607(a)(4)(B).

Congress has amended CERCLA comprehensively only once, though the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Pub. L. 99-499, Oct. 17, 1986, 100 Stat. 1615. Before SARA was passed, the courts unanimously had recognized that [section] 107(a)(4)(B) creates a right of cost recovery in those private parties who cleaned up sites without having first been sued by the Government, regardless of any potential liability they themselves may have borne under the statute. See, e.g., Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 890-892 (9th Cir. 1986) ("Wickland"). There was less agreement, however, regarding the availability of contribution rights for those who, in response to a lawsuit, had either undertaken cleanup measures or reimbursed the Government for its cleanup costs. Compare, e.g., Colorado v. ASARCO, Inc., 608 F.Supp. 1484, 1486-1493 (D.Colo. 1985) (finding a federal common law right of contribution), and Wehner v. Syntex Agribusiness, Inc., 616 F.Supp. 27, 31 (E.D.Mo. 1985) (contribution right implied in [section] 107(e)(2)), with United States v. Westinghouse Elec. Corp., No. IP 83-9-C, 1983 WL 160587 (S.D. Ind. 1983) (no right of contribution).

Congress acted against this backdrop in 1986. In passing SARA, Congress left [section] 107(a)(4)(B) unaltered, preserving the private right of cost recovery. It did, however, move to solidify the contribution rights of two groups of parties. First, in [section] 113(f)(1) it created an express right of contribution in those who either had been or were being sued under either [section] 106 or [section] 107 of CERCLA. 42 U.S.C. [section] 9613(f)(1). Additionally, in [section] 113(f)(3)(B), Congress did the same with respect those who had entered into settlements with either the United States or a State. 42 U.S.C. [section] 9613(f)(3)(B).

In the wake of SARA, but before this Court's decision in Cooper Industries, Inc., v. Aviall Services, Inc., 543 U.S. 157 (2004) ("Cooper Industries"), the lower courts took a wrong turn. As the court below noted, the lower courts began "directing traffic" between [section][section] 107 and 113(f), generally steering CERCLA plaintiffs who bore potential liability away from cost recovery in favor of the contribution-based remedies available under [section] 113(f). Atlantic Research Corp. y. United States, 459 F.3d 827, 832 (8th Cir. 2006) ("Atlantic Research"). In some cases, this was justifiable, as parties who had been given contribution claims under [section] 113(f) tried to avoid some of that subsection's more restrictive dynamics by availing themselves of the more favorable dynamics of [section] 107(a)(4)(B). See, e.g., United Technologies Corp. v. Browning-Ferris Indus., Inc., 33 F.3d 96, (1st Cir. 1994) (involving a plaintiff who had entered into a consent decree with EPA, but sought to use [section] 107(a)(4)(B) due to its more permissive statute of limitations). In other cases, however, the courts erred by steering parties to contribution-based remedies despite the fact that they had valid claims under [section] 107(a)(4)(B), but invalid claims under [section] 113(f). See, e.g., Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298 (9th Cir. 1997) ("Pinal Creek") (involving plaintiffs who had cleaned up a site without being subjected to any lawsuit or administrative edict). (3)

The courts provided three main rationales for steering parties toward [section] 113(f). First, they expressed concern about the circumvention of [section] 113(f), often without analyzing whether that section even applied; second, they were of the view that any application of [section] 107(a)(4)(B) would result in the plaintiff being able to impose all of the relevant cleanup costs on the defendants under principles of joint and several liability; and third, many deemed the plaintiffs' claims to be "quintessential" claims for contribution, See, e.g., Bedford Affiliates v. Sills, 156 F.3d 416, 423-424 (2d Cir. 1998) ("Bedford Affiliates") (identifying all three concerns). As demonstrated below, the first and third of these rationales are misplaced in contexts in which the plaintiff has not been subjected to a lawsuit. The second is simply incorrect.

Despite the courts' reluctance to apply [section] 107(a)(4)(B) on behalf of those who themselves bore potential liability under CERCLA, none of the pre-Cooper Industries courts denied the plaintiffs a claim. Even in the absence of a prior or pending CERCLA action, every Circuit addressing the issue held that potentially-liable plaintiffs had either an express contribution claim under [section] 113(f) or an implied contribution claim either under [section] 107 itself or some combination of [section][section] 107 and 113(f). (4) Indeed, during this period even the Government took the position that potentially-liable plaintiffs had claims absent a prior or pending lawsuit; it argued that these claims arose through a combined effect of [section][section] 107(a) and 113(f). See, e.g., Centerior Service Co. y. Acme Scrap Metal Corp., 153 F.3d 344, 350 (6th Cir. 1998) ("Centerior"). Thus, neither the courts nor the Government questioned whether the plaintiffs were entitled to relief; rather, they merely considered which provision (or provisions) of CERCLA provided the best basis for relief.

In Cooper Industries, this Court held that [section] 113(f)(1) does not provide a contribution claim if the would-be plaintiff is not being or has not been sued under CERCLA. 543 U.S. at 168. This leaves the question presented in this case: whether one who may bear partial responsibility for a contaminated site, but who cleans it up before being sued or otherwise compelled to do so, may sue other potentially liable parties for either cost recovery under [section] 107(a)(4)(B) or implied contribution under [section] 107. The better view is that such a party may sue for cost recovery under [section] 107(a)(4)(B).

ARGUMENT

1. The Plain Language of CERCLA Provides Private Parties with a Cost-Recovery Claim

   Section 107(a) identifies four categories of liable parties, including (1) the owner and operator of the relevant facility; (2) anyone who owned or operated the facility when the disposal occurred; (3) anyone who "arranged for disposal" of hazardous substances at the site; and (4) transporters who chose the site as the destination for the waste. It further provides that, subject to an exclusive list of defenses, these parties "shall be liable 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;

   [and]

   (B) any other necessary costs of response incurred by any other person consistent with the...