Ashland Inc. v. GAR Electroforming, et al

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Ashland Inc. v. GAR Electroforming, et al Powered By Docstoc
					                  IN THE UNITED STATES DISTRICT COURT FOR

                       THE DISTRICT OF RHODE ISLAND



Ashland Inc.,               )
                            )      Docket No. 1:08-CV-227T
     Plaintiff,             )
                            )
     v.                     )
                            )
GAR Electroforming, et al., )

                            )

     Defendants.            )

                            )




       MEMORANDUM OF THE UNITED STATES AS AMICUS CURIAE

 CONCERNING EFFECT OF SETTLEMENT BETWEEN UNITED STATES AND UTC

      ON ASHLAND’S ACTION AND CONCERNING APPLICATION OF

        PRIOR EQUITABLE ALLOCATION TO ASHLAND’S ACTION

                                                 TABLE OF CONTENTS
                                                                                                                    PAGE(S)

I.      ASHLAND’S CLAIM AGAINST UTC UNDER SECTION 107 IS 

        IN THE NATURE OF CONTRIBUTION AND IS BARRED BY 

        SECTION 113(f)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 


        A.	       Joint and Several Liability Applies in Actions by the 

                  Government; Actions Among PRPs Sound in Contribution. . . . . . . . . . . . . . . . . . 3 


        B.	       That Ashland’s Claim Remains One in the Nature of Contribution 

                  Comports with the Court’s Concepts of Contribution in ARC. . . . . . . . . . . . . . . . 8 


        C.	       Contribution Protection in § 113(f)(2) Bars this Suit Against UTC. . . . . . . . . . . 16 


II.	    TO THE EXTENT THIS COURT FINDS A GAP IN SECTION 

        113(f)(2)’S STATUTORY PROTECTION, IT SHOULD FILL THAT 

        GAP TO PROTECT SETTLORS SUCH AS UTC AND EFFECTUATE

        CONGRESS’ PURPOSES IN CERCLA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 


        A.	       Common-Law Principles Limiting Claims Against Settling Parties 

                  Are Properly Applied Here . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 


        B.	       The Sovereign Has Distinctive Authority to Define and Resolve 

                  Broad Claims, Such as Environmental Liabilities. . . . . . . . . . . . . . . . . . . . . . . . 24 


        C.	       Precedent Exists for Barring Ashland’s Section 107(a) Claim Here. . . . . . . . . . 26 


III.	   THE ALLOCATION IN UNITED STATES v. DAVIS . . . . . . . . . . . . . . . . . . . . . . 27 

       This Court has permitted the United States to file as amicus curiae on two questions

regarding Ashland, Inc.’s (Ashland) complaint to recover costs it has incurred and may incur in

performing groundwater remediation at the Davis Superfund Site (Site) :

       "(1) Whether the settlement agreement between the United States and United
       Technologies Corp. ("UTC") in the related case of United States v. Davis, C.A.
       No. 90-484, bars an action against UTC; and

       (2) Whether the liability allocations for response costs made by this Court in
       United States v. Davis, 31 F. Supp. 45 (D.R.I. 1998), apply in this case."

       As to the first question, as set forth in Section I below, Ashland’s claims are a “matter

addressed” in UTC’s consent decree and are barred by section 113(f)(2), 42 U.S.C. § 9613(f)(2),

of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),

42 U.S.C. §§9601-9675. Alternatively, if this Court does not find that section 113(f)(2) bars

Ashland’s claims, as set forth in Section II, it should find that federal common law fills any gap

in the claim preclusion scheme Congress enacted to encourage settlements for site cleanups. As

to the second question, as discussed in Section III, the recent Supreme Court case of United

States v. Atlantic Research Corp. (“ARC”), 127 S. Ct. 2331 (2007) and the fact that Ashland is

bringing its claim under section 107, 42 U.S.C. § 9607, do not provide a reason to change the

relative shares determined in the allocation proceeding or particular facts found during the

proceeding.

I. 	   ASHLAND’S CLAIM AGAINST UTC UNDER SECTION 107 IS IN THE
       NATURE OF CONTRIBUTION AND IS BARRED BY SECTION 113(f)(2).

       Until a pair of recent Supreme Court cases, Cooper Industries, Inc. v. Aviall Services,

Inc. (“Cooper”), 543 U.S. 157, 160 (2004), and ARC, the courts uniformly held that all actions

between PRPs were actions for contribution and governed by section 113(f)’s contribution


                                               - 1 ­

provisions. See, e.g., United Technologies Corp. v. Browning-Ferris Industries, Inc., 33 F.3d 96,

103 (1st Cir. 1994). Cooper and ARC altered this well established landscape. In 2004, in

Cooper, relying on the “plain language” of paragraph 113(f)(1), which states that any person

may seek contribution “during or following any civil action under Section [106 or 107] of this

title,” the Supreme Court held that private parties could bring section 113(f) claims only “during

or following” civil actions under section 106 or 107(a), or following settlements in accordance

with section 113(f)(3)(B). 543 U.S. at 160-63. Two years later, in ARC, the Supreme Court

explained that sections 107 and 113 provide complementary remedies “to persons in different

procedural circumstances,” 127 S. Ct. at 2338, holding that a PRP that cleans up its property in

the absence of a section 106 or 107 action or settlement, and that thus does not meet the

requirements for an action under section 113(f)(1) or (f)(3)(B), may bring an action to recover

costs under section 107(a)(4)(B).1/ In short, after Cooper and ARC, PRPs such as Ashland, who

lack a claim under section 113(f), may bring an action to recover cleanup costs under section

107(a)(4)(B).2/ Nothing in the Supreme Court's opinion in ARC, however, spells out the nature


1/
   The Supreme Court did not hold, however, that all PRPs may bring a stand-alone action under
section 107(a)(4)(B). PRPs that have (or had) a cause of action under section 113(f) must use it.
See, e.g., ARC, 127 S. Ct. at 2335, quoting Atlantic Research Corp. v. United States (“ARC I”),
459 F.3d 827, 836-37 (8th Cir. 2006), and cases cited infra note 12.
2/
  No party appears to question whether, after ARC, Ashland, which has not itself been sued
under section 106 or 107, may bring a claim under section 107. The United States notes
(although it took an opposite position in Port of Tacoma,), that two cases have found that an
action under section 106 or 107 by the United States against one PRP, which then sues another
PRP for contribution under section 113(f)(1), may provide the contribution defendant with a
cause of action under section 113(f)(1) as its suit would have been brought “following” a civil
action under section 106 or 107 concerning the site. See Boarhead Farm v. Advanced Envtl.
Tech., 381 F. Supp. 2d 427 (E.D. Pa. 2005); Port of Tacoma v. United States, 2008 U.S. Dist.
LEXIS 83580 (W.D. Wash. 2008). If the Court were to find that Ashland has a right to recover
under section 113, Ashland would be required to use that explicit contribution claim rather than

                                               - 2 ­

of this claim.

        In its complaint, Ashland alleges that it has “voluntarily” incurred costs in groundwater-

related efforts at the Site and that it will continue to incur costs in the future. Although unclear,

Ashland appears to seek a ruling that, under section 107(a)(4)(B), the generator defendants are

jointly and severally liable to it, and that it is entitled to recover all costs (less 1.03% of these

costs, apparently on the notion that this is the share assigned to Ashland in the Court’s prior

equitable allocation). As discussed below, however, Ashland is not entitled to recover under a

theory of joint and several liability. Decades of CERCLA law establish that joint and several

liability applies to actions brought by the government (or innocent parties) under section 107(a),

but that PRPs are limited to an equitable allocation in the nature of contribution. See ¶ I.A.

Nothing in ARC changes this scheme. To the extent Ashland will argue that a different liability

theory may apply to “volunteers” seeking to recover costs under section 107(a)(4)(B), nothing in

ARC suggests this, and in any event, Ashland, which has been adjudged liable, is in no sense

acting voluntarily at the Site. See ¶¶ I.B. Ashland is limited to a claim that sounds in

contribution, and as to UTC, that claim is barred by section 113(f)(2). See ¶ I.C.

        A.	      Joint and Several Liability Applies in Actions by the Government;
                 Actions Among PRPs Sound in Contribution.

        Drawing on the purposes of CERCLA and the common law, the courts have consistently

held, since the early days of CERCLA litigation, that governmental parties suing under section

107(a)(4)(A) can rely on the presumption that defendants are jointly and severally liable. The

first court to address the issue was United States v. Chem-Dyne Corp., 572 F. Supp. 802 (S.D.



section 107, see notes 1, 12, and its claim against UTC would clearly be barred by contribution
protection.

                                                  -3­
Ohio 1983). In Chem-Dyne, the court examined the statutory language, the purposes of the

statute, the legislative history, and finally the common law, including the Restatement (Second)

of Torts, and held that the most appropriate standard to apply in governmental enforcement

actions under section 107(a)(4)(A) was the Restatement formulation, under which parties are

jointly and severally liable unless they can show that the harm is divisible. Restatement

(Second) of Torts (Restatement) §§ 433A, 433B, at 875, 881 (1965); Chem-Dyne, 572 F. Supp.

at 810-11. The court found that this approach was "most likely to advance the legislative

policies and objectives of the Act," including the government's rapid response to the threat of

hazardous wastes and the "rapid recovery of the costs incurred from persons liable to reimburse

the superfund money expended." Id. at 810, 805. Following Chem-Dyne, numerous courts

recognized the importance of joint and several liability to the government's ability to achieve

expeditious cleanup and cost recovery. If the government were required to sue each and every

liable party, "delays inherent in such massive lawsuits would surely delay cleanup of the site."

Colorado v. ASARCO, Inc., 608 F. Supp. 1484, 1491 (D. Colo. 1985). Further, placing the

burden of proof as to apportionment upon the defendant(s) was consistent with common law

notions that as between the United States (funded by taxpayers and tasked by Congress rapidly

to clean up sites and recover its costs to apply those funds to other sites) and liable parties

(whose waste is responsible for the problems in the first place), the liable parties should bear the

risk of any shortfall or difficulty of proof. See, e.g., United States v. Conservation Chem. Co.,

619 F. Supp. 162, 223-24 (W.D. Mo. 1985); Restatement § 433B, cmt. d, at 444.

       As originally enacted, CERCLA did not include explicit provisions for contribution, and

in the early years, there was some uncertainty whether a PRP could sue to recover amounts


                                                 - 4 ­

beyond its equitable share from other PRPs. However, because of the potential inequities

inherent in finding PRPs jointly and severally liable to the government for site cleanup, most

courts ultimately ruled that section 107(a)(4)(B) contained a right of contribution, either by its

express terms, by implication, or through federal common law.3/ Further, cases found the right

arose under varied fact patterns, including where PRPs performed cleanup and sought recovery

in the absence of a pre-existing governmental lawsuit or settlement.4/

       In holding that the cause of action by one PRP against another was an action for

contribution or an equitable allocation, and not an action for joint and several liability that would

allow shifting the entirety of the costs to other PRPs (or 98.97%, as Ashland seems to seek here),

courts were informed by the "venerable common law backdrop" against which CERCLA

operates. United States v. Bestfoods, 524 U.S. 51, 62 (1998). At the time of CERCLA's

enactment in 1980, the common law, as reflected in the Restatement, either barred any action



3/
   See, e.g., Wickland Oil Terminals v. Asarco,792 F.2d 887, 890 (9th Cir. 1986) (express cause

of action); Browning-Ferris, 33 F.3d 96, 100 (1st Cir. 1994) (noting cases that found an implied

right of contribution); Wehner v. Syntex Agribusiness Inc., 616 F. Supp 27, 31 (E.D. Mo. 1985)

(“implicitly recognizes a right to contribution”); United States v. New Castle County, 642 F.

Supp. 1258, 1262-69 (D. Del. 1986) (right to contribution not express or implied, but by

operation of federal common law); United States v. Conservation Chemical Co., 619 F. Supp.

162, 222-31 (W.D. Mo. 1985) (federal common law right to contribution under CERCLA); State

of Colo. v. ASARCO, Inc.,

608 F. Supp. 1484, 1486 (D. Colo. 1985) (same). 


4/
   City of Philadelphia v. Stepan Chem. Co., 544 F. Supp. 1135 (E.D. Pa.1982) (no federal or
state suit or order against the city under CERCLA); NL Indus., Inc. v. Kaplan, 792 F.2d 896 (9th
Cir.1986)(what amounted to a CERCLA action for contribution allowed to proceed in absence of
suit or order under section 106 or 107); Pinole Point Prop., Inc. v. Bethlehem Steel Corp., 596 F.
Supp. 283 (N.D.Cal.1984) (same); Sand Springs Home v. Interplastic Corp., 670 F. Supp. 913,
916 (N.D. Okla.1987) (PRP who cleans up “voluntarily” may seek contribution against other
PRPs).

                                                -5­
between joint tortfeasors or, in some states that had abrogated that rule by statute, provided that

the damages to be recovered by a negligent plaintiff were reduced in proportion to her fault. See

Restatement § 467, special note, at 516. It was recognized that:

       The principle of “contribution” is that a tortfeasor against whom a judgment is
       rendered is entitled to recover proportional shares of the judgment from other
       joint tortfeasors whose conduct contributed to the injury and who were also liable
       to the plaintiff. When two or more persons share responsibility for a common
       injury, "it is inequitable to require one to pay the entire cost of reparation, and it is
       sound policy to deter all wrongdoers by reducing the likelihood that any will
       entirely escape liability."

Conservation Chem. Co., 619 F. Supp. at 224 (citation omitted).

       In the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), Congress

added section 113(f) to resolve any uncertainty as to the right to contribution under CERCLA.

E.g., Browning-Ferris, 33 F.3d at 100. Section 113(f) expressly authorizes suits for contribution

“during or following any civil action under section [106] . . . or [107], or following ”an

administrative or judicially approved settlement” with the United States or a state. 42 U.S.C. §

9613(f)(1) and (f)(3)(B). In resolving contribution claims, CERCLA instructs that the “court

may allocate response costs among liable parties using such equitable factors as the court

determines are appropriate.” 42 U.S.C. § 9613(f)(1).5/


5/
  In amending CERCLA, Congress declined to add specific provisions concerning joint and
several liability, but noted with approval the Chem-Dyne approach to governmental cases under
section 107(a)(4)(A). See, e.g., H. R. Rep. No. 99-253, pt. 1, at 74 (1985), reprinted in 3 A
Legislative History of the Superfund Amendments and Reauthorization Act of 1986, at 1837
(Comm. Print 1990) ("The Committee fully subscribes to the reasoning of the court in the
seminal case of United States v. Chem-Dyne Corp., 572 F. Supp. 802 (S.D. Ohio 1983), which
established a uniform federal rule allowing for joint and several liability in appropriate CERCLA
cases. . . . The Committee believes that this uniform federal rule on joint and several liability is
correct and should be followed. It is unnecessary and would be undesirable for Congress to
modify this uniform rule. Thus, nothing in this bill is intended to change the application of the
uniform federal rule of joint and several liability enunciated by the Chem-Dyne court.").

                                                 -6­
          After SARA’s passage, because “the statute now expressly authorize[d] a cause of action

for contribution in § 113 and impliedly authorize[d] a similar and somewhat overlapping remedy

in § 107,” Key Tronic Corp. v. United States, 511 U.S. 809, 816 (1994), PRPs tried to assert

their claims for contribution under section 107, in an effort to evade certain constraints on

section 113 claims, such as contribution protection under section 113(f)(2) and a shorter statute

of limitations under section 113(g)(3). See ARC I, 459 F.3d at 832. Ultimately, the circuit

courts, including the First Circuit, uniformly concluded that actions between PRPs were actions

for contribution and must be brought in accordance with the provisions of section 113.6/ Further,

most courts held that while section 113 confirmed and clarified contribution rights under section

107, it did not necessarily supplant them. Rather, section 107 created the right of contribution,

but “the ‘machinery’ of §113 governs and regulates such actions, providing the details and

explicit recognition that were missing from the text of §107.” Pinal Creek Group, 118 F.3d at

1302.7/



6/
  See, e.g., See e.g., Browning-Ferris, 33 F.3d at 103; Centerior Serv. Co. v. Acme Scrap Iron &
Metal Corp., 153 F.3d 344, 353, 356 (6th Cir. 1998); Redwing Carriers v. Saraland Apartments,
94 F.3d 1489, 1496 (11th Cir. 1996); Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930, 935
(8th Cir. 1995); Bedford Affiliates v. Sills, 156 F.3d 416, 423-425 (2d Cir. 1998); Pneumo Abex
Corp. v. High Point, Thomasville & Denton R.R., 142 F.3d 769, 776 (4th Cir. 1998); Pinal Creek
Group v. Newmont Mining Corp., 118 F.3d 1298, 1301 (9th Cir. 1997); New Castle County v.
Halliburton NUS Corp., 111 F.3d 1116, 1121-1123 (3d Cir. 1997); United States v. Colorado &
E. R.R., 50 F.3d 1530, 1534-1536 (10th Cir. 1995); Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d
761, 764 (7th Cir. 1994); Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 (5th 1989); Dico, Inc. v.
Amoco Oil Co., 340 F.3d 525 (8th Cir. 2003). Further, all suits between PRPs were deemed suits
for contribution pursuant to section 113(f) even where plaintiffs were not subject to a federal or
state lawsuit or settlement. See, e.g., Pinal Creek Group (voluntary cleanup); Amoco Oil Co.
(voluntary cleanup); Centerior Service Co., (unilateral administrative order) (citations supra).
7/
  See also, e.g., County Line Investment Company v. Tinney, 933 F.2d 1508, 515-17 (10th Cir.
1991); but see, e.g., Browning-Ferris, 33 F.3d at 98, 100 (discussed infra note 10).

                                                -7­
         The text of section 107(a)(4)(A) further supports a finding that a private PRP suing

under section 107(a)(4)(B) is entitled to recover from another PRP only an equitable share of

response costs. Section 107(a)(4)(A) authorizes the United States, States, and Indian Tribes to

recover "all costs . . . not inconsistent with the [NCP]” whereas section 107(a)(4)(B) permits

“other persons” to recover “any costs . . . consistent with the [NCP]. Compare 42 U.S.C. §

9607(a)(4)(A) with (B) (emphasis added).8/

       Other provisions of SARA reinforce the conclusion that Congress recognized and

endorsed the concept that a cause of action for contribution could remain within section

107(a)(4)(B), even with the addition of the contribution provisions in section 113(f). Section

113(h) of SARA’s new “pre-enforcement review” provisions prevent review of EPA response

action decisions except in limited circumstances, one of which is “[a]n action under section 107

to recover response costs or [natural resource] damages or for contribution.” 42 U.S.C. §

9613(h)(1) (emphasis added). Finally, Congress codified its intention in the text of section

113(f)(1), that "nothing in [section 113] shall diminish the right of any person to bring an action

for contribution in the absence of a civil action [pursuant to section 106 or 107]." 42 U.S.C. §

9613(f)(1); see Cooper, 543 U.S. at 166-67 (describing "savings clause" to 113(f)(1), which

"rebuts any presumption that the express right of contribution provided by the enabling clause is

the exclusive cause of action for contribution available to a PRP").


8/
  The definition of "any" most relevant to this context can mean "one, some, or all
indiscriminately of whatever quantity." Webster's Collegiate Dictionary (10th ed. 1995) at 53.
The use of the word "any" as opposed to "all" supports a separate standard of recovery for
private parties under section 107(a)(4)(B) that can encompass more possibilities (including an
equitable allocation of "some costs" by a liable party such as Ashland or full recovery by an
innocent party) than the more specific usage in section 107(a)(4)(A) of "all costs" for
government entities. See ARC I, 459 F.3d at 835.

                                                -8­
        In short, whether Ashland’s claim is asserted under section 113 or 107, the rationale that

limits Ashland to an equitable allocation remains viable because the dynamic between liable

parties is the same.9/

        B.	     That Ashland’s Claim Remains One in the Nature of Contribution
                Comports with the Supreme Court’s Concepts of Contribution in ARC.

        Although ARC established that liable parties, in certain procedural circumstances, may

sue under section 107(a)(4)(B), the Supreme Court explicitly did not hold that such PRP actions

are for joint and several liability. 127 S. Ct. at 2339 n.7. Moreover, ARC did not overrule the

significant body of case law both before and after the passage of SARA, that treated PRP

remedies under section 107(a)(4)(B), in a variety of fact patterns, as sounding in contribution.10/

        Regardless of how Ashland styles its claim, or under which section of CERCLA it is

asserted, Ashland’s claim, as the claim of a party previously adjudged liable in a court

proceeding, fundamentally remains a claim in contribution because Ashland shares liability to

the government with other PRPs for this Site, which is being cleaned up at the behest of and

under strict oversight of, the government. To the extent Ashland’s actions at the Site reduce the



9/
  See, e.g., Pinal Creek Group, 118 F.3d at 1301 ("CERCLA simply does not provide PRPs who
incur cleanup costs with a claim for the joint and several recovery of those costs from other
PRPs"); Akzo Coatings, 30 F.3d at 764 ("[w]hatever label Akzo may wish to use, its claim
remains one by and between jointly and severally liable parties for an appropriate division of the
payment one of them has been compelled to make").
10/
   Even the First Circuit, which had held prior to ARC that sections 107 and 113 provide distinct
remedies – one for governments and innocent parties and one for PRPs – recognized that section
107 could contain a cause of action for contribution for parties, such as Ashland, that do not
meet the specific requirements of section 113(f). Browning-Ferris, 33 F.3d at 99 n.8; see also In
re Hemmingway Transp., Inc., 993 F.2d 915, 931 (1st Cir. 1993) (“section 107(a)(4)(B) serves as
the pre-enforcement analog to the ‘impleader’ contribution action permitted under section
9613(f).”)(emphasis in original). See also, supra notes 3, 4, 6, 7, and accompanying text.

                                                -9­
cleanup obligations of other liable parties, Ashland’s claim can only be for other PRPs to share

in the costs of those actions.

        Describing Ashland’s claim as fundamentally in the nature of contribution is consistent

with the Supreme Court’s definition in ARC. In ARC the Supreme Court defined “contribution”

in its “traditional sense” as the “tortfeasor’s right to collect from others responsible for the same

tort after the tortfeasor has paid more than his or her proportionate share, the shares being

determined as a percentage of fault.” 127 S. Ct. at 2337-38, citing Black’s Law Dictionary 353

(8th ed. 1999). The Court explained further that a PRP’s right to contribution is “contingent upon

an inequitable distribution of common liability among liable parties.” 127 S. Ct. at 2338. This is

fundamentally Ashland’s claim. Ashland, which has been found liable for the cleanup of the

Site, seeks to share its cleanup burden with other PRPs who are also liable to EPA for the

cleanup of the Site.

        Recognizing that Ashland’s suit is in the nature of contribution is consistent with ARC

more generally. The Court did not define the contours of the section 107 claim available to a

PRP. While the Court did say that Ҥ 107 (a) permits recovery of cleanup costs but does not

create a right to contribution,” 127 S. Ct. at 2338, the Court was distinguishing the procedural

posture of a section 107 versus section 113 plaintiff, not the nature of the claim. Id. (“A private

party may recover under § 107(a) without any establishment of liability to a third party.”).

Further, the Court made clear that it was not deciding whether the claim was for joint and several

liability. Id. at 2339 n.7. Just because an action is for recovery of response costs does not mean

it is for full cost recovery, or conversely, that it is not in the nature of an action for contribution

in which a party is entitled only to recover an equitable share. In contrast to the well-settled rule


                                                 - 10 ­

that governmental claims to recover “all” costs under section 107(a)(4)(A) are claims for joint

and several liability, no consensus among the courts has yet emerged regarding the nature of a

liable party’s claim under section 107(a)(4)(B) after ARC. An action for an equitable allocation

of the costs a PRP has incurred is in the nature of contribution, but it is also undeniably a “cost

recovery” action – that is, an action for recovery of costs.11/

       Ashland asserts in its complaint that is has “voluntarily incurred” costs for groundwater

work at the Site, perhaps to somehow bolster an argument that its cost recovery claim is not one

for contribution, but rather for full cost recovery, akin to the joint and several liability claim

available to the government. But, as noted above, nothing in ARC speaks to the nature of the

section 107(a)(4)(B) claim for liable parties – including for volunteers. Thus, it does not follow


11/
   While section 107 does not use the word “contribution,” as discussed, the language of Section
107(a)(4)(B) can encompass both private party claims for joint and several liability for innocent
parties, and claims that sound in contribution among liable parties, which courts have also found
arise under Section 107(a)(4)(B) both before and after SARA’s addition of section 113(f)’s
explicit contribution rights. That the ARC Court said that said section 107 itself does not
“create” a right of contribution is not dispositive that such a right does not otherwise exist, e.g.,
as developed by courts through federal common law principles.

        Further, it does not rule out the possibility that section 107 claims sound in contribution
for certain purposes or in some contexts. Thus, to the extent this Court finds that Ashland’s
action is not strictly one for contribution, it should nevertheless find that it shares sufficient
attributes of common law contribution claims to fall within the prohibition of section 113(f)(2),
discussed infra ¶ I.C. For example, although the contribution provisions in section 113(f) are
largely based on common law principles, CERCLA modified the common law in some respects.
For example, under the Restatement § 886A(2), a joint tortfeasor had a right of contribution only
if he discharged the entire claim for the harm by paying more than his equitable share of the
common liability. By contrast, section 113(f)(3)(B) clearly changed this rule by allowing a right
of contribution to a person who has resolved its liability for “some or all” of a response action or
response costs at a site. In addition, section 113(f)(1) allows a contribution claim to be brought
before the discharge of the common liability. Accordingly, the term "contribution" appearing in
section 113(f)(2) need not be interpreted exclusively in light of the traditional common law
principles in effect at the time of CERCLA’s enactment, but should also be read in order to
effectuate the structure and purpose of the statute.

                                                 - 11 ­
from anything the Court said in ARC, that Ashland’s claim, even though under section 107, is

not still in the nature of contribution.12/ In any event, to the extent Ashland is arguing that the

nature of a volunteer PRP’s claim operates differently from a contribution claim, that distinction

is irrelevant here because Ashland is not acting voluntarily.

       Unlike Atlantic Research, Ashland has already been adjudged liable. In 1998, this court

issued a declaratory judgment holding Ashland liable for disposal of its wastes at the Site and

allocating to it a percentage share of responsibility for cleanup costs. Davis, 31 F. Supp. 2d at

56, 67. The First Circuit Court of Appeals upheld this ruling, United States v. Davis, 261 F.3d 1,

31-33 (1st Cir. 2001), and noted that, because Ashland refused to enter into a consent decree with

UTC and other PRPs to perform EPA’s selected soil remedy, it risked the possibility of bearing a


12/
     The ARC Court used the label “voluntary” (i.e., not compelled by suit or settlement and thus
without a remedy under section 113(f)) only to help illustrate which statutory section differently
situated PRPs would use and not to indicate anything about the nature of the claim a person
would have under section 107(a)(4)(B). Thus, it explained that “costs incurred voluntarily are
recoverable only by way of § 107(a)(4)(B), and costs of reimbursement to another person
pursuant to a legal judgment or settlement are recoverable only under § 113(f).” 127 S. Ct. at
2338, n.6. To the extent the Court drew a further distinction between the nature of the action
available under section 107 versus section 113, that is also irrelevant to the nature of Ashland’s
action here. Again to illustrate which section a PRP would use, the Court discussed the
difference between “incurred” versus “reimbursed” costs. The Court pointed out that reimbursed
costs, which will always be in the context of a judgment or settlement, can only be recovered in a
contribution action under section 113(f), Id. at 2338. But it did not conclude the opposite, i.e.,
that a PRP’s directly incurred cleanup costs can only be recovered in an action under section
107. Id. at 2338 n.6. CERCLA itself describes a suit to recover directly incurred cleanup costs
as a suit for contribution. See 42 U.S.C. § 9613(f)(3)(B); Browning-Ferris, 33 F.3d at 102.
Notably, since ARC, a number of courts have confirmed that directly incurred costs can -- and
indeed must -- be sought under section 113, if the PRP meets the preconditions for suit set out in
section 113. E.g., Appleton Papers Inc. v. George A. Whiting Paper Co., 572 F. Supp. 2d 1034,
1041 (E.D. Wis. 2008); New York v. Next Millennium Realty, LLC, No. 03-5985, 2008 WL
1958002, *6 (E.D.N.Y. May 2, 2008). Thus, as the Supreme Court itself recognized, cost
recovery and contribution, while distinct, are not without some overlap, 127 S. Ct. at 2338 n.6,
and nothing in the statute or ARC suggests that a claim for directly incurred costs, like Ashland’s
here, cannot be a claim for contribution.

                                                - 12 ­
disproportionate share of cleanup costs in the future if the government moved forward with the

cleanup of the Site’s groundwater. Id. at 27-28, 48.

       In 2000, EPA approached Ashland to commence groundwater work at the Site.13/

Although Ashland offered to perform certain components of the ongoing groundwater

investigation studies without EPA issuing an administrative order, Ashland is in no way

performing the work “on its own” or “voluntarily.” For each phase of work it has performed,

Ashland has submitted workplans, other submittals, and a final report after the work has been

finished, to EPA for approval; EPA has found fault with some of the work, reached agreement

with Ashland for corrections and additional work, and ultimately, so far, has generally approved

Ashland’s submittals and work. Further, EPA sent demand letters to Ashland for reimbursement

of response costs EPA incurred in overseeing the work, all but one of which Ashland routinely

paid. This course of conduct indicates that EPA is closely monitoring and overseeing the work

so that it can take additional technical or enforcement actions if necessary. With a finding of

liability against it and EPA’s panoply of enforcement options to compel performance hanging

over it like a “sword of Damocles,” Ashland cannot plausibly argue that it is performing work

“voluntarily” such that it should be accorded a different cost-sharing scheme than the equitable

allocation that UTC had for the work it performed under its settlement.

       A recent district court case is instructive. Appleton Papers Inc. v. George A. Whiting

Paper Co., 572 F. Supp. 2d 1034 (E.D. Wis. 2008) concerns a Superfund Site in Wisconsin. As



13/
  The statements in this paragraph are supported by Exhibit 1, the Declaration of Neil Handler
(Handler Dec.).

                                              - 13 ­
at the Davis Site, the federal and State governments have had a long history of involvement and

enforcement activities to achieve the cleanup of the site, including a settlement with certain

PRPs for partial site cleanup. Appleton Papers, Inc. and NCR Corp. (plaintiffs) performed

certain other work at the site before entering into a decree with the United States. In seeking to

recover some of their costs from other PRPs, plaintiffs conceded that costs incurred pursuant to

the decree must be sought in a contribution action pursuant to section 113(f). 572 F. Supp. 2d at

1041 However, they argued that they had a “cost recovery” claim under section 107(a)(4)(B)

for costs incurred before the decree. They argued that although these costs “were incurred in

response to the Government’s involvement,” they were not required by the decree, were thus

“voluntarily incurred,” and were not “part-and-parcel of the collective tort liability for which a

contribution action would be appropriate.” 572 F. Supp. 2d at 1041 (emphasis in original).

       The court held that once the United States sued Appleton, Appleton had a cause of action

for contribution under section 113(f)(1), and any costs that had been incurred, whether pursuant

to the decree or before or after the filing of the complaint nevertheless were part of Appleton’s

claim for contribution because they were “incurred . . . in an effort to discharge the liability they

claim to hold in common with the Defendants.” Id. at 1044. The court reasoned as follows:

       . . . Atlantic Research held that contribution, as used in § 113(f), is to be
       understood in the traditional sense of a “tortfeasor's right to collect from others
       responsible for the same tort after the tortfeasor has paid more than his or her
       proportionate share, the shares being determined as a percentage of fault.” To
       recover on a claim for contribution, a plaintiff must prove that he shares a
       common liability with the defendant and that he paid more than his appropriate
       share of the loss or damages. Although § 113(f) requires that a PRP first be sued
       in an enforcement action under § 106 or § 107 before it can assert a claim for
       contribution, there is no such prerequisite to a claim for contribution in its
       traditional sense. As it exists at common law, a claim for contribution arises as
       soon as one party pays more than his fair share to discharge a common liability.
       While it is the plaintiff's burden to prove common liability, there is no

                                                - 14 ­

       requirement that such proof take the form of a prior judicial determination of
       liability. Nor is there any rule limiting the amount that can be recovered in
       contribution to payments expressly mandated by a previous action. Any
       payments made to discharge a common liability in excess of the plaintiff's own
       fair share are recoverable.

Id. (citations omitted). Thus, the court ruled that the costs incurred before the complaint (and not

included in the consent decree) were part of Appleton’s contribution claim because they were

part of the common liability to the government for site cleanup.

       As in Appleton, the government has had a long history of working to remediate the Davis

Site. The United States selected a remedy for site cleanup; sued a number of PRPs, including

UTC, under section 107 for response costs incurred and to be incurred at the site; entered into a

consent decree with UTC and others for the soil cleanup; in 2000, began to pursue non-settling

PRPs to achieve the groundwater cleanup; entered into negotiations with Ashland for the

performance of certain studies and investigations as precursors to the performance of the

groundwater cleanup; and has actively monitored and overseen this work. See, generally,

Handler Dec. ¶¶ 3-7. Ashland has been adjudged a liable party for the Site and is performing the

work under active government supervision with the threat of future enforcement looming. All of

Ashland’s activities “were incurred in response to the Government’s involvement,” and to the

extent they were adequately performed, go toward discharging the common liability to the

government, shared by the other PRPs, for the cleanup at the Site. 572 F. Supp. 2d at 1041

(emphasis in original).14/ Accordingly, this Court should find that to the extent Ashland incurs


14/
    EPA could enter a consent decree with, or file suit against, Ashland (or others) after the
groundwater investigatory work is completed and after any necessary changes (if any) are made
to the remedy. At that point Ashland would have a claim for contribution under section
113(f)(1) or (f)(3)(B), or both, for work performed before and after the consent decree or
complaint. Appleton, 572 F. Supp. 2d at 1043. It makes no sense that the nature of Ashland’s

                                               - 15 ­

costs in excess of its own fair share, its claim is for an equitable allocation, sounds in

contribution, and hence, as discussed below, is barred by contribution protection.15/

       C.      Contribution Protection in § 113(f)(2) Bars this Suit Against UTC.

       As this Court is aware, when Congress confirmed the right to contribution in section

113(f), it also added a provision that explicitly protects parties that have settled with the

government from claims for contribution regarding “matters addressed” in the settlement.

Section 113(f)(2) provides:

       A person who has resolved its liability to the United States or a State in an
       administrative or judicially approved settlement shall not be liable for claims for
       contribution regarding matters addressed in the settlement. . . .

42 U.S.C. § 9613(f)(2). This "contribution protection" provision was intended to encourage

PRPs to settle with the government by bringing an increased measure of finality to such

settlements. See, e.g., Senate Report No. 99-11 (Mar. 18, 1985), Arnold & Porter LLP

Legislative History: P.L. 99-499, at *45; United States v. Cannons Engineering Corp., 899 F.2d

79, 92 (1st Cir.1990).

       As this Court is also aware, Paragraph 95 of UTC’s consent decree with the United States



claim should change depending on which statutory section it files under. Either way, Ashland
would be doing the same work and seeking to spread the costs among the same parties. Under
either statutory section, the costs should be shared equitably among the parties as courts have
done for years in CERCLA contribution actions.
15/
     Moreover, there is an additional and independent reason to recognize that Ashland’s claim
fundamentally sounds in contribution. Even if this Court finds that Ashland’s initial claim is not
for contribution, but rather that is for joint and several liability under section 107(a)(4)(B), as
discussed below in Section III, the generator defendants will file counterclaims for contribution
under section 113(f)(1), thus converting Ashland’s initial action into a proceeding to determine
the equitable share of each PRP for site cleanup costs, ARC, 127 S. Ct. at 2338-39 – a
proceeding that is in the nature of contribution.


                                                - 16 ­
includes the following paragraph:

        The Parties agree that the Settling Defendants are entitled as of the effective date
        of this Consent Decree, to protection from contribution action or claims as
        provided by CERCLA section 113(f)(2), for matters addressed in this Consent
        Decree. The matters addressed in this Consent Decree are all Past Response
        Costs and all Future Response Costs . . . incurred and to be incurred by the United
        States . . . . Matters addressed in this Consent Decree also are response costs
        incurred and to be incurred by any person or entity other than the United States
        for response actions related to the Site or identified in the remedy selected in the
        ROD as modified by the ESD.

        The First Circuit specifically found that UTC’s settlement provided it with “complete”

contribution protection and that Ashland would be precluded from seeking to recover from the

settlors any costs of the future groundwater cleanup. Davis, 261 F.3d at 18, 27-28, 48-49. The

court noted that UTC, which was allocated responsibility for 1.54% of the liability, agreed to

perform the soil remediation (at an open ended cost, but which was estimated to amount to one-

fourth of the total site cleanup costs), and took the lead in coordinating settlements and

beginning the cleanup effort. In these circumstances, the court held, “the benefit of contribution

protection is appropriate.” Id. at 27-28. Following a long line of First Circuit precedent

upholding contribution protection concepts, the court concluded

        The point we made in an earlier decision remains apt: “As to the extinguished
        contribution claims of non-settlors or later round settlors, protection against those
        claims was a reasonable benefit [the settlor] acquired in exchange for settling
        before those others.” The result of non-settlors possibly bearing disproportionate
        liability for the open-ended cost of remediation is therefore consistent with the
        statute's paradigm, which encourages the finality of early settlement.

Id. at 28 (citations omitted).16/



16/
   See also id. at 48-49; Browning-Ferris, 33 F.3d at 102-103; United States v. Charles George
Trucking, 34 F.3d 1081, 1086 (1st Cir.1994); United States v. Charter Int'l Oil Co., 83 F.3d 510,
522 (1st Cir. 1996).

                                                - 17 ­
       Thus, after the First Circuit’s decision, Ashland was precluded from recovering from

UTC any of the groundwater remediation costs that it might bear in the future. ARC does not

change this result. As discussed, Cooper and ARC changed the line previous courts had drawn

that all PRP actions were for contribution and were governed by the provisions of section 113(f).

In particular, ARC instructs that PRPs that have cleaned up a site “voluntarily,” so that they do

not have a claim for contribution pursuant to section 113(f)(1) or (f)(3)(B), may bring a “cost

recovery” claim under section 107(a)(4)(B). Because section 113(f)(2) bars “claims for

contribution,” the Supreme Court, in dicta, noted that “[t]he settlement bar does not by its terms

protect against cost recovery liability under § 107(a).” 127 S. Ct. at 2339. The Court’s

statement, however, does not govern this situation, because, as shown above, Ashland’s efforts at

the site have not been “voluntary” (to the extent this could be argued to provide it a different

remedy), and, while not brought pursuant to section 113(f), Ashland’s action remains one that

sounds in contribution.

       By its terms, section 113(f)(2) applies to all "claims for contribution" whether they are

brought under section 107, section 113, or otherwise. In particular, section 113(f)(2) does not

say "claims for contribution under section 113(f)," it says only "claims for contribution." If

Congress had wanted to provide contribution protection against only section 113(f) claims, it

could have used that wording, as it did in the neighboring provision that governs the United

States's priority in a contribution action, which contains just such a limitation. Section

113(f)(3)(C) provides that "[i]n any action under this paragraph, the rights of any person who

has resolved its liability to the United States or a State shall be subordinate to the rights of the

United States or the State." 42 U.S.C. § 113(f)(3)(C) (emphasis added). The express limitation


                                                 - 18 ­

of section 113(f)(3)(C) underscores the fact that section 113(f)(2) protects those that settle with

the government from all suits that are in the nature of contribution, not just those specifically

brought under section 113(f). Cf. Sosa v. Alvarez-Machain, 542 U.S. 692, 712 n.9 (2004).

       Courts have consistently interpreted section 113(f)(2) broadly to effectuate Congress’

goals, as this Court should here. After SARA was enacted, parties began to try various

approaches to avoid contribution protection. For example, numerous PRPs attempted to avoid

contribution protection by arguing instead that their actions were for “cost recovery” under

section 107 and were not governed by section 113(f). As the First Circuit explained, in rejecting

this approach, allowing such PRP claims would:

       emasculate[] the contribution protection component of CERCLA's settlement
       framework. . . . [Section 113(f)(2)] provides that a party who settles with the
       government “shall not be liable for claims for contribution regarding matters
       addressed in the settlement.” . . . [S]ection 9613(f)(2) envisions that nonsettling
       parties may bear disproportionate liability. This paradigm is not a scrivener's
       accident. It “was designed to encourage settlements and provide PRPs a measure
       of finality in return for their willingness to settle.”

               This mechanism for encouraging settlement would be gutted were courts
       to share appellants' view of the contribution universe, for subsection 9613(f)(2)
       then would afford very little protection [and would] . . . greatly diminish the
       incentive for parties to reach early settlements with the government, thereby
       thwarting Congress's discernible intent.

Browning-Ferris, 33 F.3d at 102-03.

        Similarly, courts have dismissed claims for “equitable indemnity” asserted by PRPs, as

Ashland has here, in an effort to avoid the preclusive effect of a prior settlement. As the First

Circuit has found, to allow PRPs to make such claims would “eviscerate § 9613(f)(2) and allow

non-settlors to make an end run around the statutory scheme.” United States v. Cannons

Engineering Corp., 899 F.2d 79, 92 (1st Cir. 1990). See also, e.g., U.S. v. Pretty Products, Inc.,


                                               - 19 ­

780 F. Supp. 1488, 1495 (S.D. Ohio 1991) (finding claims for indemnity, quasi-contract,

quantum meruit, restitution and unjust enrichment barred by contribution protection).17/

       In short, courts, including the First Circuit, have consistently found that contribution

protection is a critical element of the scheme that Congress enacted in SARA to encourage

settlements and have made every effort to ensure that PRPs are not allowed to avoid its

restrictions. A narrow interpretation of section 113(f)(2) may undercut the functioning of the

statutory scheme and, here, would be specifically contrary to the First Circuit’s decision in this

case. Accordingly, this Court should find that: 1) the costs Ashland seeks fall within the

“matters addressed” in UTC’s decree; 2) Ashland’s action under section 107(a)(4)(B) is in the

nature of contribution; and 3) it is thus barred against UTC by section 113(f)(2).

II.	   TO THE EXTENT THIS COURT FINDS A GAP IN SECTION 113(f)(2)’S
       STATUTORY PROTECTION, IT SHOULD FILL THAT GAP TO PROTECT
       SETTLORS SUCH AS UTC AND EFFECTUATE CONGRESS’ PURPOSES IN
       CERCLA.

       As set forth above, Congress intended that parties that settle be protected from future

PRP CERCLA claims for “matters addressed” in the settlement, and the First Circuit specifically

confirmed this intent for UTC here. Thus, to the extent this Court finds that Ashland’s section

107 claim does not sound in contribution, or that for some other reason the protections in section

113(f)(2) do not by their terms apply to protect UTC here, this Court should rely on federal

common law in construing the terms of CERCLA, and find that section 107 claims against a

party who has settled with EPA are prohibited in a manner analogous to section 113(f)(2)’s



17/
   Accordingly, this Court should grant Defendant UTC’s motion for summary judgment on
Count 3 of Ashland’s complaint, which seeks equitable indemnification from defendants in
contravention of First Circuit law on this issue.

                                               - 20 ­
“contribution bar.”18/ When Congress enacts a statute, it does so against the background of the

common law, so that it is appropriate to have recourse to common-law principles in interpreting

any gaps or ambiguities in CERCLA.19/

       Here there are two distinct grounds, each founded on common-law principles, for

prohibiting this section 107 claim by a PRP against a settling party. First, common law

principles disfavor such claims in general, and instead favor the finality of settlements. Second,

a separate body of authority recognizes the distinctive power of the sovereign to resolve claims.

Each of these distinct lines of authority suffices to demonstrate that this section 107 action

should not be permitted to proceed. Because both lines of argument apply to the present case,


18/
   Frequently, the courts draw on state law to fill gaps in a federal statutory scheme. Here,
however, it is appropriate to apply a federal common-law rule. In United States v. Kimbell
Foods, Inc., 440 U.S. 715 (1979), the Court set forth a three-factor test for determining whether
to apply federal common law or state law: (1) whether the case involves “federal programs that
by their nature are and must be uniform in character throughout the Nation,” (2) whether “the
application of state law would frustrate specific objectives of the federal programs,” and (3)
whether a federal rule “would disrupt commercial relationships predicated on state law.” Id. at
728-29 (citation omitted). As to the first prong, the issue of the legal effect of a settlement
entered into by the federal government is properly governed by federal law. Cf. Boyle v. United
Techs. Corp., 487 U.S. 500 (1988) (“[O]bligations to and rights of the United States under its
contracts are governed exclusively by federal law.”); Taylor v. Sturgell, 128 S. Ct. 2161, 2171
(2008) (“The preclusive effect of a federal-court judgment is determined by federal common
law”); U.S. v. Northrop Corp., 59 F.3d 953 (9th Cir. 1995) (“[F]ederal common law properly is
invoked to determine the validity of a release of a statutorily-conferred federal right.”). As to the
second, the function of contribution protection is to provide settling parties with an assurance
that no further claims will be forthcoming; a rule that depends on varying State law would not
serve that objective. Finally, there is no indication here of a potential interference with
preexisting commercial relationships. Cf. 42 U.S.C. 9607(e) (preserving certain private
indemnification and subrogation arrangements).



19/
   See, e.g.,126 Cong. Rec. 30,932 (1980) (“It is intended that issues of liability not resolved by
this act, if any, shall be governed by traditional and evolving principles of common law.”);
Bestfoods, 524 U.S. at 62.

                                               - 21 ­
the case for barring this suit is especially strong.

        A.	     Common-Law Principles Limiting Claims Against Settling Parties Are Properly
                Applied Here.

        In McDermott v. AmClyde, 511 U.S. 202 (1984), and its companion case, Boca Grande

Club, Inc. v. Florida Power & Light Co., Inc., 511 U.S. 222 (1994), a pair of admiralty actions,

the Supreme Court considered the effects of partial settlements on nonsettling defendants (such

as Ashland). The Supreme Court began its analysis by noting that no statute provided "policy

guidance" to inform or limit the Court's authority to fashion a rule as to the settlement credit

rules. McDermott, 511 U.S. at 207. The Court noted, however, that it was in “familiar waters”

because “the Judiciary has traditionally taken the lead in formulating flexible and fair remedies

in the law of maritime.” Id. (internal quotations and citation omitted). The Court considered at

length the legal rules that might be applied, reviewing three options appearing in section 886A of

the Restatement, and chose an option that allowed some credit for non-settling parties but that

restricted contribution claims against the settlor. In choosing this option, the Court considered

three factors: a desire for an approach that harmonized with other elements of the admiralty

scheme; “promotion of settlement”; and “judicial economy.” 511 U.S. at 211.20/

        A similar analysis has been applied to CERCLA itself. Just as CERCLA does not

expressly address whether section 107 claims can be used to circumvent the contribution



20/
   The narrow holding of AmClyde addressed only the issue of how settling parties should be
given credit for settlements by joint tortfeasors. The decision that applied the bar on successive
claims against settlors was a companion case, Boca Grande Club, Inc. v. Florida Power & Light
Co., Inc., 511 U.S. 222 (1994), which did so in a very brief opinion that relied entirely on the
reasoning of AmClyde. (The present brief addresses only the issue of the claim bar, not of
crediting. The crediting analysis of AmClyde is inapplicable in EPA cost recovery claims,
because Congress adopted a different rule in section 113(f)(1).)

                                                 - 22 ­
protection resulting from a governmental settlement, the statute does not expressly speak to

whether private settlements can give rise to contribution protection. (The text of section

113(f)(2) addresses only governmental settlements. 42 U.S.C. § 9613(f)(2).) Courts have

nonetheless found that it is not appropriate to allow successive claims against those who have

entered into private CERCLA settlements. In coming to that conclusion, courts have relied on

common-law principles, as well as on the same considerations that the Court cited in AmClyde –

consistency with the statutory scheme, promoting settlement, and judicial economy. They have

uniformly concluded that barring claims against private settlors harmonizes the statutory scheme

with section 113(f)(2), and that it is consistent with Congressional intent to apply a rule that

reduces the “burdensome satellite litigation” often associated with CERCLA cleanups.21/

       This reasoning is directly applicable to the present case. CERCLA does not specifically

address whether the contribution protection arising from a settlement encompasses protection

against section 107 claims filed by PRPs. However, that conclusion is consistent with the

remainder of the statutory scheme, and appropriately furthers the goals of promoting settlement

and judicial economy.




21/
    United States v. SCA Services of Indiana, 827 F. Supp. 526, 531 (N.D. Ind. 1993); see also
United States v. Mallinckrodt, 2006 WL 3331220 (E.D. Mo. 2006); Stearns & Foster Bedding
Co. v. Franklin Holding Corp., 947 F. Supp. 790, 813 (D.N.J. 1996); Hillsborough County v. A
& E Road Oiling Service, Inc.,, 853 F.Supp. 1402, 1409-10 (M.D. Fla. 1994); Allied Corp. v.
ACME Solvent Reclaiming, Inc., 771 F. Supp. 219, 223 (N.D. Ill. 1990); Barton Solvent Inc. v.
Southwest Petro-Chem, Inc., 834 F. Supp. 342, 346 (D. Kan. 1993).

       As we discuss below in ¶ III.B, the sovereign has a distinctive role in the CERCLA
scheme. It follows that any federal common law restriction on claims like that applied in these
cases would not apply to actions brought by the United States.

                                                - 23 ­
       B.      The Sovereign Has Distinctive Authority to Define and Resolve Broad Claims,
               Such as Environmental Liabilities.

       Even apart from these general principles restricting successive claims, there are reasons

to accord particular weight to the settlement at issue here, which was entered into by the United

States. Under the common law, the sovereign has distinctive authority to define public rights

and to resolve claims on behalf of the public as a whole. In doing so, the sovereign may cut off

associated private claims.

       These concepts have been applied to private claims arising under other environmental

statutes, in which courts have repeatedly found that a governmental settlement can bar

subsequent private claims.22/ These cases are based on a general common-law rule that the

sovereign, acting as parens patriae, is in privity with individual citizens invoking similar

remedies, and thus can extinguish their claims.23/

       In view of the federal government’s central role in administering the CERCLA scheme

and broad authorities under that scheme, the same principle properly applies here. For example,

CERCLA provides the federal government with broad power to define hazardous substances (42

U.S.C. § 9602), set cleanup priorities (42 U.S.C. § 9605), issue cleanup orders (42 U.S.C. §



22/
  See, e.g., Ellis v. Gallatin Steel Co., 390 F.3d 461, 473 (6th Cir. 2004); Alaska Sport Fishing
Ass’n v. Exxon Corp, 34 F.3d 769, 774 (9th Cir. 1994); U.S.E.P.A. v. City of Green Forest, Ark.,
921 F.2d 1394, 1404 (8th Cir. 1990).
23/
   Green Forest, 921 F.2d at 1404; see also Washington v. Washington State Commercial
Passenger Fishing Vessel Ass’n, 443 U.S. 658, 692 n. 32 (1979); City of New York v. Beretta
U.S.A. Corp., 315 F. Supp. 2d. 256, 266 (E.D.N.Y. 2004). (collecting cases).

       Note that the privity is one-way; the citizens cannot bind the sovereign. Hathorn v.
Lovorn, 457 U.S. 255, 268 n.23 (1982); Sierra Club Inc. v. Electronic Controls Design, Inc. 909
F.2d 1350, 1356 (9th Cir. 1990).

                                               - 24 ­
9606), and authorize payments from the Superfund (42 U.S.C. § 9611). See United States v. E.I.

Dupont De Nemours and Co., Inc., 432 F.3d 161, 174 (3d Cir 2005) (discussing breadth of

EPA’s authority under CERCLA). CERCLA also provides distinctive treatment to

governmental settlements, specifically providing that they give rise to protection from further

suits. 42 U.S.C. § 9113(f)(2).24/

       Moreover, the issue here is not only whether the United States’ previous consent decree

should be given effect in barring the present claim, but whether a party may invoke a section 107

remedy in a way that undermines the functioning of the statutory scheme as a whole. As we

have explained, Congress specifically provided for governmental settlements to give rise to

contribution protection as a way of strengthening the government’s ability to achieve an

amicable resolution to complex CERLCA litigation. Allowing section 107 claims by liable

parties against parties who have contribution protection would weaken this incentive, thereby

undercutting one of the important tools that Congress provided the government in facilitating

prompt resolutions of CERCLA actions. A private remedy should not be permitted to undermine

the government’s authorities in this manner. Cf. Gwaltney of Smithfield, Ltd. v. Chesapeake

Bay Found., Inc., 484 U.S. 49, 60 (1987) (citizen remedies should not “undermine the

supplementary role envisioned for the citizen suit” and encroach on governmental authorities).



24/
   The present CERCLA action is somewhat different from those typically brought under other
environmental laws. Citizen suits under the Clean Air Act and Clean Water Act ordinarily seek
injunctive relief and civil penalties payable to the Treasury, while the private claims at issue here
seek to recoup cleanup costs. But that distinction is immaterial. As the above-cited cases
prohibiting successive claims against those entering into private settlements demonstrate, the
overriding purpose of the CERCLA scheme is to protect the public by promptly remedying
contamination. Private cost recovery remedies are an auxiliary remedy, defeasible by other
elements of the statutory scheme.

                                               - 25 ­
       C.      Precedent Exists for Barring Ashland’s Section 107(a) Claim Here.

       The United States is aware of only one court that has directly faced the issue presented

here – that is, whether a prior CERCLA settlement bars later claims asserted under section

107(a)(4)(B). In San Gabriel Basin Water Quality Authority v. Aerojet-General Corp., Civ. No.

02-6345, slip op. (C.D. Cal. June 23, 2008) (attached hereto as Exhibit 2), the court entered a

settlement between ten defendants and a California state water quality authority. Applying

“traditional rules of equity,” the court found that the defendants had paid their equitable share of

cleanup costs at the site, as their contribution to date exceeded their allocated share, as

determined by EPA. Slip op., Findings of Fact and Law ¶ 20. Noting, inter alia, CERCLA’s

contribution protection provisions, the broad “site-wide” definition of “matters addressed, the

fact that early and complete settlements further CERCLA’s remedial purposes, and legions of

prior cases that had entered contribution protection “bar orders,” see id. ¶¶ 11, 14, 16-18, the

court held:

       Pursuant to 42 U.S.C. § 9613(f)(2), federal common law, and [California law], the
       Court finds that any and all past, present or future claims by [PRPs] . . . against
       any or all of the [settling defendants] for contribution, equitable comparative
       contribution, cost recovery, or full, partial, or comparative indemnity, arising out
       of or relating to, or in connection with, the matters addressed in the settlement . . .
       regardless of when such claims are asserted, are barred. Such claims are barred
       regardless of whether they are brought pursuant to CERCLA or pursuant to any
       other federal or state statute or common law.

Slip op., Order ¶ 5. The court also specifically found that claims under section 107(a)(4)(B)

against the settlors for “matters addressed” were barred. Id. ¶ 8.

       In short, this Court should be guided by the same policies that prompted Congress to

select the broad language of section 113(f)(2), and make clear that the bar on successive claims

by PRPs against settlors extends to section 107 actions, and encompasses any claims for “matters

                                                - 26 ­

addressed” in the settlement with EPA, whether asserted under section 107 or 113. If the Court

adopts this approach, as the Aero-Jet court did, UTC’s settlement with the United States would

protect it, as Congress intended, from any further claims concerning the Site.

III.   THE ALLOCATION IN UNITED STATES v. DAVIS

       This Court has asked whether the equitable allocations for response costs it derived

previously apply in this case. The United States did not participate in the allocation proceeding

and is not in a position to opine on how or whether the allocation should be applied in this

matter. However, we have three points relevant to this issue.

       First, to the extent that Ashland is arguing that ARC is a “material change” that renders

the allocation “palpably inequitable” or somehow irrelevant, it is wrong. Davis, 31 F. Supp. 2d

at 69-70. In holding that Atlantic Research could bring its claim under section 107(a), the

Supreme Court made clear that under any scenario, a PRP versus PRP action would result in an

equitable allocation of site costs:

       [A] PRP could not avoid § 113(f)'s equitable distribution of reimbursement costs
       among PRPs by instead choosing to impose joint and several liability on another
       PRP in an action under § 107(a). The choice of remedies simply does not exist.
       In any event, a defendant PRP in such a § 107(a) suit could blunt any inequitable
       distribution of costs by filing a § 113(f) counterclaim. Resolution of a § 113(f)
       counter-claim would necessitate the equitable apportionment of costs among the
       liable parties, including the PRP that filed the § 107(a) action. 42 U.S.C. §
       9613(f)(a) (“In resolving contribution claims, the court may allocate response
       costs among liable parties using such equitable factors as the court determines are
       appropriate”).


127 S. Ct. at 2338-39 (citations and footnote omitted).

       Accordingly, even if Ashland were able to assert a joint and several claim against the

parties, after the inevitable filing of counterclaims by the other parties, the Court’s job would be


                                               - 27 ­

to determine an equitable allocation of costs among the non-settlors. Accordingly, the facts that

were found previously by this Court concerning the parties before it, and that gave rise to its

equitable allocation among those parties, would seem applicable to these proceedings (unless

there are other new facts that render them inaccurate).25/

       Second, if the United States pursues enforcement options for the groundwater

remediation, it can pursue any of the Site’s PRPs (except those who have settled with the United

States, such as UTC), jointly and severally, and of course is unaffected by the prior allocation or

any new allocation or apportionment. Thus, some of the allocation parties likely would end up

paying to the United States (if the United States does the work) or bearing greater responsibility

for performance of the work than the share previously applied to them in the allocation (e.g., in

Ashland’s case, 1.03%).

       Ashland seems to be trying to ensure that it does not end up paying more than its prior

allocated share by forcing the other allocation parties to pay more than the shares allocated to

them. Ashland's only basis for asserting that this is proper appears to be that it is performing

some groundwater work, in the absence of a suit or settlement against it by the United States,

and is bringing its claim under section 107. But Ashland is fundamentally no different from the

other liable parties at this Site, and should not be entitled to shift the groundwater remediation



25/
   The United States does not take a position on whether the percentages that the Court found
should apply in Ashland’s action. However, we note that in the prior allocation, a considerable
percentage of responsibility was allocated to the Davises and other PRPs that UTC considered to
be insolvent or otherwise unable to pay the full shares allocated to them. Because UTC did not
prove this, the Court did not re-allocate these shares. It may be that if Ashland produced
evidence that these parties are insolvent, defunct, or otherwise unable to pay their share, the
Court might choose to equitably reallocate such shares. Similarly, the percentages allocated
could be adjusted if Ashland or the parties it has sued bring other PRPs into this proceeding.

                                               - 28 ­

onto the other parties and limit its liability to the 1% share previously assigned to it. And,

Ashland should not be able to shift any of these costs to UTC, which has already resolved its

liability to the United States for the Site and has contribution protection.

       Third, we disagree with the suggestion made by GAR Electroforming (GAR) and

Applera that the Court can perform an apportionment of liability. Apportionment, or divisibility

of harm is distinct from, and has a significantly higher legal burden than, an allocation of

responsibility for costs under equitable principles, as is performed in a contribution analysis or

other equitable allocation. In analyzing divisibility of harm in section 107(a) actions, courts

have followed the Restatement § 433A, which provides that damages may be apportioned where

there are distinct harms or where there is a “reasonable basis for determining the contribution of

each cause to a single harm.” See, e.g., U.S. v. Monsanto Co., 858 F.2d 160, 171-73 (4th Cir.

1988); United States v. Hercules, Inc., 247 F.3d 706, 717 (8th Cir. 2001). A liable party has the

burden of demonstrating divisibility or harm, and evidence supporting divisibility “must be

concrete and specific,” focusing on the amount of harm caused by each liable party. Hercules,

247 F.3d at 717-18. Once actual evidence of divisibility is presented, the issue becomes whether

that evidence provides a reasonable basis for establishing the amount of harm caused by the

liable party. Id. Where a liable party cannot meet its burden, it is jointly and severally liable

“for the full amount of the harm.” Chem-Nuclear Sys., Inc. v. Bush, 292 F.3d 254, 260 (D.C.

Cir. 2002).

       This Court’s opinion makes clear that the evidence did not support divisibility of the

harm at the Site, and that the Court was performing an equitable allocation to determine the

percentage of costs that the parties should be responsible for in connection with the single


                                                - 29 ­

indivisible harm. As GAR quotes at p. 6 from this Court’s opinion, “this Court found that

‘hazardous waste deposited at the Davis Site has been commingled into an essentially

homogenous ‘witches brew’ [and that, therefore] it is impossible to allocate discrete portions of

the cleanup cost to any particular type of waste or any particular party.’” Davis, 31 F. Supp. 2d at

64. See also Davis, 261 F.3d at 43 (“[e]vidence about commingling of these substances in the

water and soil at the site supports the finding that the harm caused by each individual substance

could not be remediated separately.”). As such, the ex post facto apportionment of harm that

GAR and Applera suggest this Court perform is inappropriate.

                                                         Respectfully submitted,

                                                         RONALD J. TENPAS
                                                         Assistant Attorney General
                                                         Environment and Natural Resources Div.
                                                         U.S. Department of Justice


                                                         LESLIE ALLEN
                                                         Senior Attorney

                                                         s/Leslie Allen
                                                         U.S. Department of Justice
                                                         Environment and Natural Resources Div.
                                                         Environmental Enforcement Section
                                                         P.O. Box 7611
                                                         Washington, D.C. 20044-7611
                                                         Phone: (202) 514-4114
                                                         leslie.allen@usdoj.gov




                                               - 30 ­

          ROBERT CLARK CORRENTE
          United States Attorney

          DULCE DONOVAN
          Executive Assistant U.S. Attorney/
          Civil Chief
          U.S. Attorney's Office
          District of Rhode Island
          50 Kennedy Plaza
          Providence, RI 02903
          401-709-5058
          401-709-5001 (fax)
          dulce.donovan@usdoj.gov




- 31 ­

                            CERTIFICATE OF SERVICE

       On this 18th day of December 2008, I caused the Memorandum of the United
States as Amicus Curiae Concerning Effect of Settlement Between United States and
UTC on Ashland's Action and Concerning Application of Prior Equitable Allocation to
Ashland's Action to be filed electronically, and they are available for viewing and
downloading from the ECF system. The following have entered appearances in this
matter and will receive electronic notification via the ECF system:

Gregory L. Benik     gbenik@jreri.com, mbiagetti@jreri.com

Alexandra K. Callam      acallam@haslaw.com, jmansolf@haslaw.com

Dean M. Cordiano      dmcordiano@daypitney.com, dlweeks@daypitney.com

David B. Graham      dbgraham@kaufcan.com

Anthony F. Muri      amuri@murilaw.com

W. Hunter Old      whold@kaufcan.com

Rene A. Ortega     raortega@daypitney.com

Joseph P. Quinn     jquinn@quinnlawllc.com

James P. Ray      jray@rc.com

S. Paul Ryan     Spryan@eplaw.necoxmail.com

Joseph K. Scully    JKScully@DayPitney.com, DCharles@DayPitney.com

Winthrop A. Short , Jr   washort@kaufcan.com, kntyree@kaufcan.com

1:08-cv-227 Notice has been delivered by other means to:


       I also caused paper copies of the aforementioned documents to be sent by U.S.
Mail to:

Thomas G. Allen
Pillsbury Winthrop Shaw Pittman, LLP

                                          - 1 ­

2300 N Street, NW

Washington, DC 20037


Jennifer A. Giblin 

Pillsbury Winthrop Shaw Pittman, LLP

2300 N Street, NW

Washington, DC 20037


Russell V. Randle 

Patton Boggs, L.L.P.

2550 M Street N.W.

Washington, DC 20037-1350



                                  s/Leslie Allen
                                Leslie Allen




                                        - 2 ­