E.I. Dupont De Nemours and Co. v. U.S.

• Citation: 508 F.3d 126
• Decision Date: 29 August 2006
• Docket Number: No. 04-2096.,04-2096.
• Parties: E.I. DuPONT DE NEMOURS AND COMPANY; Conoco, Inc.; Sporting Goods Properties, Inc., Appellants v. UNITED STATES of America; United States Department of Commerce; United States Department of Defense; United States Department of the Army; United States Department of Energy; United States Department of the Interior; United States Department of the Navy.
• Court: U.S. Court of Appeals — Third Circuit

508 F.3d 126

E.I. DuPONT DE NEMOURS AND COMPANY; Conoco, Inc.; Sporting Goods Properties, Inc., Appellants v. UNITED STATES of America; United States Department of Commerce; United States Department of Defense; United States Department of the Army; United States Department of Energy; United States Department of the Interior; United States Department of the Navy.

No. 04-2096.

United States Court of Appeals, Third Circuit.

Argued April 17, 2006.

Opinion Filed August 29, 2006.

On Remand from the Supreme Court of the United States June 18, 2007.

Filed: November 20, 2007.

[508 F.3d 127]

William H. Hyatt, Jr. (Argued), Kirkpatrick & Lockhart Preston Gates Ellis, John McGahren, Patton Boggs, Newark, NJ, for Appellants.

John T. Stahr, Ellen J. Durkee (Argued), United States Department of Justice, Environment & Natural Resources Division, Washington, DC, for Appellees.

Michael W. Steinberg, Morgan, Lewis & Bockius LLP, Washington, DC, for Amicus-Appellants Superfund Settlements Project and American Chemistry Council.

Before SLOVITER, AMBRO, and MICHEL,^* Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

This matter is before us on the order of the Supreme Court of the United States dated June 18, 2007, which granted the petition for a writ of certiorari filed by DuPont, vacated the judgment of this court, and remanded for further consideration in light of its opinion in United States v. Atlantic Research Corp., 551 U.S. ___, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007). In our earlier opinion, a majority of this court held that DuPont could not pursue an action under CERCLA to recover from the United States a portion of its cleanup costs. The dissent would have held that DuPont could maintain an action for cost recovery under § 107 of CERCLA. In light of the Supreme Court's order, we return to the issue presented.

I. Introduction

Appellants E.I. DuPont de Nemours & Co., ConocoPhillips Co., and Sporting Goods Properties, Inc. (collectively "DuPont" or "appellants") own and operate industrial facilities throughout the United States that are contaminated with hazardous waste. DuPont admits that it contaminated those sites, but alleges that the United States also contaminated parts of the sites. After DuPont voluntarily cleaned up a site jointly polluted by both DuPont and the government, DuPont filed this suit under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., seeking an order requiring the government to reimburse it for a share of the cleanup costs. The District Court granted the motion of the United States for summary judgment. E.I. DuPont de Nemours & Co. v. United States, 297 F.Supp.2d 740 (D.N.J.2003). The District Court thereafter entered judgment on the pleadings for the United States with respect to the remaining sites. E.I. DuPont de Nemours & Co., No. 97-497, 2004 U.S. Dist. LEXIS 30498, at *2 (D.N.J. Mar. 1, 2004). This court affirmed.

In the opinion accompanying the now-vacated judgment, we held that two of our precedents — New Castle County v. Halliburton NUS Corp., 111 F.3d 1116 (3d Cir. 1997), and Matter of Reading Co., 115 F.3d 1111 (3d Cir.1997) — precluded DuPont's claims. See E.I. DuPont de Nemours & Co. v. United States, 460 F.3d 515, 518 (3d Cir.2006). We read our opinion in New Castle County as barring potentially responsible parties from pursuing a cost recovery action under CERCLA § 107(a), 42 U.S.C. § 9607(a), thereby limiting potentially responsible parties to an express cause of action for contribution under CERCLA § 113, 42 U.S.C. § 9613.¹ Id. In our opinion in Reading, which was decided a few weeks after New Castle County, we held that the statutory remedy in § 113 was the exclusive remedy for potentially responsible parties seeking contribution, thereby replacing any judicially created implied cause of action for contribution under § 107. Id. We held that because the Supreme Court's decision in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004), limited use of § 113 to parties that cleaned up contaminated sites pursuant to an order adjudging them liable or who settled such an action, DuPont, which had cleaned up voluntarily, had no viable claim. Id.

Subsequently, the Supreme Court decided United States v. Atlantic Research Corp., 551 U.S. ___, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007), holding that a private party may recover under § 107 voluntarily incurred cleanup costs from another party, including the government, without any establishment of liability to a third party. It is apparent that Atlantic Research Corp. impels us to reconsider our precedents.

II. Statutory Framework

The apportionment of cleanup costs among the entities generally referred to as potentially responsible parties ("PRPs")² is set forth in the applicable provisions of CERCLA. Congress enacted CERCLA in 1980 to address the "serious environmental and health risks posed by pollution." United States v. Bestfoods, 524 U.S. 51, 55, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998). CERCLA has two principal purposes. See Morton Int'l, Inc. v. A.E. Staley Mfg. Co., 343 F.3d 669, 676 (3d Cir.2003). First, CERCLA is a remedial statute that "grants the President broad power to command government agencies and private parties to clean up hazardous waste sites." Key Tronic Corp. v. United States, 511 U.S. 809, 814, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994). Second, the statute requires "everyone who is potentially responsible for hazardous-waste contamination ... to contribute to the costs of cleanup." Bestfoods, 524 U.S. at 56 n. 1, 118 S.Ct. 1876 (emphasis and internal quotation marks omitted).

Several sections of CERCLA are relevant to our discussion.

A. Sections 106 and 107

CERCLA § 106(a) provides that the United States may act to "secure such relief as may be necessary to abate" a "substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility." 42 U.S.C. § 9606(a). CERCLA § 107(a)(1)-(4) defines "covered persons," that is, the class of persons responsible for the costs incurred pursuant to § 106 or other sections, as follows:

(1) the owner and operator of a vessel or a facility,

(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and

(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance....

42 U.S.C. § 9607(a).

Section 107(a)(4)(A)-(D) provides that those covered persons "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;

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

(C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release; and

(D) the costs of any health assessment or health effects study carried out under section 9604(i) of this title.

42 U.S.C. § 9607(a)(4)(A)-(D).

B. Section 113

In 1986, Congress enacted the Superfund Amendments and Reauthorization Act ("SARA"), Pub.L. No. 99-499, 100 Stat. 1613, which added § 113 to CERCLA. Section 113(f)(1) provides:

Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) [CERCLA § 107(a)] of this title, during or following any civil action under section 9606 [CERCLA § 106] of this title or under section 9607(a) [CERCLA § 107(a)] of this title.... In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 [CERCLA § 106] of this title or section 9607 [CERCLA § 107] of this title.

42 U.S.C. § 9613(f)(1).

There are three subsections of § 113 that are of particular relevance. They provide that: (1) a PRP that "has resolved its liability to the United States or a State in an administrative or judicially approved settlement" will not be liable for claims for contribution from other PRPs with respect to "matters addressed in the settlement," id. § 113(f)(2); (2) a settling PRP may seek contribution from non-settling PRPs, id. § 113(f)(3)(B); and (3) the statute of limitation for an action under § 107(a) is six years, whereas the statute of limitation for an action under § 113(f)(1) is three years, id. § 113(g).

C. Section 120

CERCLA § 120(a)(1) contains a waiver of the United States' sovereign immunity. 42 U.S.C. § 9620(a)(1). Section 120(a)(1) provides that "[e]ach department, agency, and instrumentality of the United States ... shall be subject to, and comply with, this chapter in the same manner and to the same extent ... as any nongovernmental entity, including liability under section 9607 [CERCLA § 107] of this title." See FMC Corp. v. U.S. Dep't of Commerce, 29 F.3d 833, 840 (3d Cir.1994) (en banc) ("[W]hen the government engages in activities that would make a private party liable [under CERCLA] if the...