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

• 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

460 F.3d 515

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.

Filed August 29, 2006.

COPYRIGHT MATERIAL OMITTED

John McGahren, Esquire, Patton Boggs, William H. Hyatt, Jr., (Argued), Kirkpatrick & Lockhart, Nicholson Graham, Newark, NJ, for Appellants.

Kelly A. Johnson, Acting Assistant Attorney General, Michael D. Rowe, Esquire, Scott Jordan, Esquire, David M. Thompson, Esquire, Eric G. Hostetler, Esquire, Michele L. Walter, Esquire, David C. Shilton Esquire, Ellen J. Durkee, Esquire, (Argued), John T. Stahr, Esquire, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Appellees.

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

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

OPINION OF THE COURT

AMBRO, Circuit Judge.

Appellants in this case are owners and operators of industrial facilities located throughout the United States that are contaminated with hazardous waste. They admit they are responsible for some of the contamination at these sites (which they cleaned up voluntarily), but allege the United States Government is also responsible for some part. They thus seek a ruling that the Government must contribute to them a share of the cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq. 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) — limit their claim. New Castle County limits potentially responsible parties to an express cause of action for contribution under CERCLA § 113, 42 U.S.C. § 9613 (thus barring them from another type of claim called "cost recovery" under CERCLA § 107(a), 42 U.S.C. § 9607(a)).¹ Reading held that § 113 also replaced any implied or common law causes of action for contribution by potentially responsible parties with an exclusive statutory remedy.

In Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004), the Supreme Court held that § 113 by its express terms is not available to parties that clean up sites voluntarily. Appellants now ask that we decide whether, in light of Cooper Industries, our decisions in New Castle County and Reading limiting contribution to § 113 should be reconsidered to allow them to clean up their sites voluntarily and still share the costs with others. We conclude that Cooper Industries does not give us cause to reconsider our precedents here. Hence, because appellants are themselves partly responsible for the contamination at the subject sites, and their cleanups were voluntary, they may not seek contribution from other potentially responsible parties (including the Government).

I. Legal Framework

Before considering the factual background and procedural history of this case, it is necessary first to understand the applicable legal framework. In 1980, Congress enacted CERCLA to remedy 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 is a broad remedial statute that "grants the President ... 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), and provides that "everyone who is potentially responsible for hazardous-waste contamination may be forced 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); see Morton Int'l, Inc. v. A.E. Staley Mfg. Co., 343 F.3d 669, 676 (3d Cir.2003) (noting that "[t]wo of the main purposes of CERCLA are prompt cleanup of hazardous waste sites and imposition of all cleanup costs on the responsible party" (internal quotation marks omitted)). Unfortunately, "CERCLA is not a paradigm of clarity or precision [due to] inartful drafting and numerous ambiguities attributable to its precipitous passage." Artesian Water Co. v. Gov't of New Castle County, 851 F.2d 643, 648 (3d Cir.1988); see also Exxon Corp. v. Hunt, 475 U.S. 355, 363, 106 S.Ct. 1103, 89 L.Ed.2d 364 (1986) (noting that many CERCLA provisions are "not ... model[s] of legislative draftsmanship," and are "at best inartful and at worst redundant"). As one court has noted, "wading through CERCLA's morass of statutory provisions can often seem as daunting as cleaning up one of the sites the statute is designed to cover." CadleRock Props. Joint Venture, L.P. v. Schilberg, No. 3:01CV896, 2005 WL 1683494, at *5 (D.Conn. July 19, 2005).

This case requires us to dive head-first into a particularly convoluted area of the law: apportionment of cleanup costs among potentially responsible parties ("PRPs").² See Artesian Water, 851 F.2d at 648 (noting that CERCLA's "difficult[ies][are] particularly apparent in the response costs area"). Several sections of CERCLA are relevant to this issue.

A. Sections 106 and 107

Under CERCLA § 106(a), 42 U.S.C. § 9606(a) the United States may take action 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." CERCLA § 107(a), 42 U.S.C. § 9607(a), defines "covered persons" who are liable for these and other costs as:

(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 ....

CERCLA § 107(a)(1)-(4). These 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 [N]ational [C]ontingency [P]lan;[³]

(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.

Id. § 107(a)(4)(A)-(D).

B. Section 113

In 1986, Congress passed the Superfund Amendments and Reauthorization Act ("SARA"), Pub.L. No. 99-499, 100 Stat. 1613. SARA amended CERCLA to add CERCLA § 113, 42 U.S.C. § 9613, which provides, in subsection (f)(1):

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.

CERCLA § 113(f)(1). The section also provides that: (1) a PRP that "has resolved its liability to the United States or a State in an administrative or judicially approved settlement" is immune from claims for contribution from other PRPs "regarding matters addressed in the settlement," id. § 113(f)(2); (2) a settling PRP can seek contribution from other non-settling PRPs, id. § 113(f)(3)(B); and (3) the statute of limitations for an action under § 107(a) is six years, while the statute of limitations for an action under § 113(f)(1) is only three years, id. § 113(g).

C. Section 120

CERCLA § 120(a)(1), 42 U.S.C. § 9620(a)(1), also enacted as part of the 1986 SARA amendments, contains a broad waiver of the United States' sovereign immunity, providing that "[e]ach department, agency, and instrumentality of the United States" is subject to CERCLA's provisions "in the same manner and to the same extent, both procedurally and substantively, 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 private party engaged in those types of activities, then the government is also liable. This is true even if no private party could in fact engage in those specific activities." (emphases omitted)).

D. Evolution of Liability Under CERCLA and SARA

1. Pre-SARA Liability: Implied Contribution Rights

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