E.I. Dupont De Nemours & Co. v. United States

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit

8-29-2006

EI DuPont de Nemours v. USA
Precedential or Non-Precedential: Precedential

Docket No. 04-2096

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 04-2096

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

Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 97-cv-00497
District Judge: Honorable William J. Martini

Argued April 17, 2006
Before: SLOVITER, AMBRO and MICHEL,* Circuit Judges

(filed: August 29, 2006)

John McGahren, Esquire
Patton Boggs
One Riverfront Plaza, 6 th Floor
Newark, NJ 07102

William H. Hyatt, Jr. (Argued)
Kirkpatrick & Lockhart
Nicholson Graham
One Newark Center, 10th Floor
Newark, NJ 07102

Counsel 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)

*
Honorable Paul R. Michel, Chief Judge, United States
Court of Appeals for the Federal Circuit, sitting by designation.

2
John T. Stahr, Esquire
United States Department of Justice
Environment & Natural Resources Division
P.O. Box 23795
L’Enfant Plaza Station
Washington, D.C. 20026

Counsel for Appellees

Michael W. Steinberg, Esquire
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004

Counsel for Amicus-Appellants
Superfund Settlements Project and
American Chemistry Council

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

3
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 (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

1
Because almost all relevant cases refer to the sections of
CERCLA rather than the codification of those sections in the
United States Code, we generally follow suit, except for the
initial reference to a new section of the statute.

4
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 (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 (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 (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

5
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 (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

2
“Potentially responsible party” and “PRP” are not used in
CERCLA, but rather are terms of art used by courts and the
federal Environmental Protection Agency (“EPA”) to refer to
parties that potentially bear some liability for the contamination
of a site. See, e.g., New Castle County, 111 F.3d at 1120 n.2;
see also United States v. E.I. DuPont de Nemours & Co., Inc.,
432 F.3d 161, 182-83 (3d Cir. 2005) (en banc) (Rendell, J.,
dissenting) (citing EPA policy manuals). But see Consol.
Edison Co. of N.Y. v. UGI Utils., Inc., 423 F.3d 90, 97 n.8 (2d
Cir. 2005) (criticizing the use of “‘potentially responsible
person’ and ‘PRP’” because they “do not appear anywhere in the
text of . . . CERCLA” and are “vague and imprecise,” and
relying instead on an “alternative designation — a party that, if

6
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 a ny ha z ardous
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

sued, would be held liable . . .”).

7
 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

8
 [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).

3
The National Contingency Plan is “a set of regulations
promulgated by the EPA that establishes procedures and
standards for responding to releases of hazardous substances,
pollutants and contaminants.” New Castle County, 111 F.3d at
1120 n.2 (citing 42 U.S.C. § 9605 and 40 C.F.R. pt. 300).

9
 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.

10
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)).

11
 D. Evolution of Liability Under CERCLA and
SARA

1. Pre-SARA Liability: Implied Contribution
Rights

Prior to the enactment of the SARA amendments in 1986,
several courts held that CERCLA exposed PRPs to joint and
several liability, and that this implied a right of contribution
among joint tortfeasors. See, e.g., United States v. S.C.
Recycling & Disposal, Inc., 653 F. Supp. 984, 994 (D.S.C.
1986), vacated in part on other grounds sub nom. United States
v. Monsanto Co., 858 F.2d 160 (4th Cir. 1988); United States v.
Chem-Dyne Corp., 572 F. Supp. 802, 807-08, 810 (S.D. Ohio
1983). Innocent parties were allowed to recover their full
response costs from any PRP under § 107(a)(4)(B), see
Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 889, 891-
92 (9th Cir. 1986); Walls v. Waste Res. Corp., 761 F.2d 311,
317-18 (6th Cir. 1985), and PRPs were allowed contribution
pursuant to either an implied cause of action under § 107, see
City of Phila. v. Stepan Chem. Co., 544 F. Supp. 1135, 1142-43
(E.D. Pa. 1982), or the common law, see United States v. New
Castle County, 642 F. Supp. 1258, 1267-69 (D. Del. 1986)
(hereafter “NCC”); Colorado v. ASARCO, Inc., 608 F. Supp.
1484, 1489-90, 1491 (D. Colo. 1985). As the Supreme Court
has explained, these cases allowed private parties, including
PRPs, to seek contribution for costs incurred in forced or
voluntary cleanups. See, e.g., Cooper Indus., 543 U.S. at 161-62

12
(citing cases); Reading, 115 F.3d at 1118-19 (same, and noting
that, “[u]ntil the passage of SARA in 1986, the judicially[ ]
created expansion of § 107(a)(4)(B) served as the sole means by
which parties could obtain contribution”).

2. Post-SARA Liability: Cost Recovery and
Contribution Actions

Following the passage of SARA and the inclusion of
§ 113 in CERCLA (which specifically provides contribution
rights), courts retreated from implied causes of action for PRPs
to seek contribution under § 107(a). Instead, they interpreted
§§ 107 and 113 as establishing two “clearly distinct” remedies:
“cost recovery” under § 107(a), and “contribution” under
§ 113(f). See, e.g., Cooper Indus., 543 U.S. at 163 & n.3;
Morton Int’l, 343 F.3d at 675 (“Accordingly, CERCLA and
SARA together create two legal actions by which parties that
have incurred costs associated with cleanups can recover some
or all of those costs: (1) Section 107 cost recovery actions; and
(2) Section 113 contribution actions.”).

In New Castle County, we determined that a cost
recovery action under § 107 is not available to a PRP.4 Rather,

4
The plaintiffs in New Castle County incurred response costs
pursuant to an EPA consent decree that “requir[ed] them to
finance and implement remedial action at the landfill.” 111 F.3d
at 1119.

13
“a section 107 action brought for recovery of costs may be
brought only by innocent parties that have undertaken clean-ups.
An action brought by a potentially responsible person is by
necessity a section 113 action for contribution.” New Castle
County, 111 F.3d at 1120 (second emphasis added). We based
our conclusion on the understanding that, although § 107 is not
limited by its terms to innocent parties, the section “was
designed to enable innocent persons who incur expenses
cleaning up a site to recover their costs from potentially
responsible persons,” and thus “a potentially responsible person
does not experience section 107 injury and cannot obtain section
107 relief.” Id. at 1122.5 Indeed, because § 107 imposes strict,
joint, and several liability on all PRPs for the costs of cleanup,
a PRP allowed to bring a cost recovery action under § 107
against another PRP “could recoup all of its expenditures
regardless of fault” — which, we noted, “strains logic.” Id. at
1120-21 (emphasis in original). Moreover, we concluded that
it made little sense to allow a PRP the choice of proceeding
under either § 107 or § 113, because parties would always
choose § 107 (which allows recovery based on joint and several

5
Of course, § 107 also renders PRPs liable to federal and
state governments and Indian tribes, and thus those parties
(acting in their enforcement capacity, and not as PRPs) may
bring § 107 cost recovery actions as well. See CERCLA §
107(a)(4)(A); New Castle County, 111 F.3d at 1123 (noting that
“section 107 historically has been used by governments to
recover costs incurred in the clean-up of hazardous sites”).

14
liability with a six-year statute of limitations) over § 113 (which
allows recovery based on equitable apportionment of costs with
a three-year statute of limitations), thus “render[ing] section 113
a nullity.” Id. at 1123.6

In Reading, decided a few weeks after New Castle
County, we held that a PRP also may not invoke the pre-SARA
implied cause of action for contribution under § 107.7
Examining the legislative history of § 113, we noted that the
section was intended to “‘clarif[y] and confirm[] the right of a
person held jointly and severally liable under CERCLA to seek

6
Numerous other Courts of Appeals considering this issue
have reached the same result. See, e.g., Bedford Affiliates v.
Sills, 156 F.3d 416, 423-424 (2d Cir. 1998); Centerior Serv. Co.
v. Acme Scrap Iron & Metal Corp., 153 F.3d 344, 349-356 (6th
Cir. 1998); Pneumo Abex Corp. v. High Point, Thomasville &
Denton R.R. Co., 142 F.3d 769, 776 (4th Cir. 1998); Pinal Creek
Group v. Newmont Mining Corp., 118 F.3d 1298, 1301-06 (9th
Cir. 1997); Redwing Carriers, Inc. v. Saraland Apartments, 94
F.3d 1489, 1496 & n. 7 (11th Cir. 1996); United States v. Colo.
& E. R.R. Co., 50 F.3d 1530, 1534-1536 (10th Cir. 1995);
United Techs. Corp. v. Browning-Ferris Indus., 33 F.3d 96,
98-103 (1st Cir. 1994); Akzo Coatings, Inc. v. Aigner Corp., 30
F.3d 761, 764 (7th Cir. 1994).
7
The plaintiff in Reading incurred response costs pursuant to
an EPA cleanup order under § 106 and a corresponding suit
under § 107. 115 F.3d at 1116.

15
contribution from other potentially liable parties, when the
person believes that it has assumed a share of the cleanup or cost
that may be greater than its equitable share under the
circumstances.’” Reading, 115 F.3d at 1119 (quoting S. Rep.
No. 99-11, at 44 (1985)) (alterations in original); see also New
Castle County, 111 F.3d at 1122 (same, quoting H.R. Rep. No.
99-253(I), at 79 (1985)). Based on the statute’s language, the
legislative history, relevant case law, and “the fact that
§ 113(f)(1) specifically permits an action for contribution to be
brought ‘in the absence of a civil action under . . . section
[107],’” Reading, 115 F.3d at 1120 (alterations in original),8 we
held that, “[i]n passing § 113(f), Congress acted to codify
existing federal common law and to replace the judicially
crafted measure with an express statutory remedy.” Id. at 1119.

Thus we concluded that “Congress intended § 113 to be
the sole means for seeking contribution.” Id. at 1120 (emphasis
added). It “replaced the judicially created right to contribution
under § 107(a)(4)(B)” with an express (and exclusive) statutory
remedy, id. at 1119, and also superseded common law remedies:

[W]hen Congress expressly created
a statutory right of contribution in

8
As noted below, insofar as this quoted passage from
Reading implies that § 113(f)(1) contribution is available
without a preexisting suit, the Supreme Court ruled otherwise in
Cooper Industries.

16
 CERCLA § 113(f), 42 U.S.C. §
9613(f), it made that remedy a part
of an elaborate settlement scheme
aimed at the efficient resolution of
environmental disputes. Permitting
independent common law remedies
would create a path around the
statutory settlement scheme, raising
an obstacle to the intent of
Congress. We conclude therefore
that [the plaintiff’s] common law
claims are preempted by CERCLA
§ 113(f).

Id. at 1117.

In so holding, we acknowledged dicta in the Supreme
Court’s decision in Key Tronic that “§ 107 unquestionably
provides a cause of action for private parties to seek recovery of
cleanup costs,” 511 U.S. at 818, and that CERCLA “expressly
authorizes a cause of action for contribution in § 113 and
impliedly authorizes a similar and somewhat overlapping
remedy in § 107,” id. at 816. See Reading, 115 F.3d at 1120.
We determined, however, that the “overlap” consisted of the fact
that (as New Castle County held) an innocent private party
(most likely a landowner who purchased land that had been
contaminated by others) may bring a cost recovery action under
§ 107 holding a PRP jointly and severally liable for the full cost

17
of the cleanup. Reading, 115 F.3d at 1120. “The fact, however,
that a direct action might be brought under § 107(a) [by an
innocent landowner against a PRP] does not open the door for
[the] PRP to bring an action for contribution [against other
PRPs] under that same section.” Id.

In sum, after SARA introduced the § 113 contribution
provision, our Court and other courts concluded that §§ 107 and
113 were complementary (but not really “overlapping,” as the
Supreme Court had suggested in Key Tronic) remedies. Section
107 allowed the Government or an innocent landowner to
recover the full cost of cleanup from a PRP on the basis of strict,
joint, and several liability. The PRP could then seek
contribution from other PRPs under § 113(f)(1). Moreover,
according to the understanding at that time (as intimated in
Reading), § 113(f)(1) allowed a PRP to seek contribution even
in the absence of an action under § 106 or § 107; in other words,
a PRP that voluntarily cleaned up a contaminated site sua sponte
could seek contribution from other PRPs without waiting for an
enforcement action, a Government or innocent-landowner cost
recovery suit, or a settlement of liability.

3. Cooper Industries

In Cooper Industries, the Supreme Court significantly
altered this understanding. The Court held that the plain
language of § 113(f)(1) (i.e., “Any person may seek contribution
from any other person who is liable or potentially liable under

18
section [107] of this title, during or following any civil action
under section [106] of this title or under section [107] of this
title.”) required a pre-existing civil action (either pending or
completed) against the PRP under § 106 or § 107 before the
PRP could seek contribution from other PRPs. The Court
concluded that, “if § 113(f)(1) were read to authorize
contribution actions at any time, regardless of the existence of
a § 106 or § 107(a) civil action, then Congress need not have
included the explicit ‘during or following’ condition” in
§ 113(f)(1). Cooper Indus., 543 U.S. at 166. Thus, a PRP may
only seek contribution under § 113(f)(1) if it is the subject of a
§ 106 or § 107 civil action or has been adjudged liable as a
result of such an action. Id.9

The Court also considered the so-called “saving clause”
of § 113(f)(1) (“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 [106] of this title or
section [107] of this title.”). We relied on this sentence in
Reading when we said that § 113(f)(1) “specifically permits” a
PRP to seek contribution from other PRPs without a pre-existing
action under § 106 or § 107. 115 F.3d at 1120. Insofar as this

9
The Court also noted that, under § 113(f)(3)(B), a PRP that
has settled its liability to the federal or a state government also
has a right to seek contribution. That right, the Court noted, is
“a separate express right of contribution” independent of
§ 113(f)(1). Cooper Indus., 543 U.S. at 163.

19
statement implied that § 113(f)(1) permitted such an action, the
Supreme Court disagreed, noting that “[t]he sole function of the
[saving clause] is to clarify that § 113(f)(1) does nothing to
‘diminish’ any cause(s) of action for contribution that may exist
independently of § 113(f)(1).” Cooper Indus., 543 U.S. at 166
(emphasis added). As the Court explained,

the sentence [i.e., the saving clause]
rebuts any presumption that the
express right of contribution
provided by the enabling clause [in
§ 113(f)(1)] is the exclusive cause
of action for contribution available
to a PRP. The sentence, however,
does not itself establish a cause of
action; nor does it expand
§ 113(f)(1) to authorize
contribution actions not brought
“during or following” a § 106 or
§ 107(a) civil action; nor does it
specify what causes of action for
contribution, if any, exist outside
§ 113(f)(1). Reading the saving
clause to authorize § 113(f)(1)
contribution actions not just
“during or following” a civil action,
but also before such an action,
would again violate the settled rule

20
 that we must, if possible, construe a
statute to give every word some
operative effect.

Id. at 166-67.

The Court left open the questions of whether a PRP may
seek cost recovery under § 107, and whether that section
includes an implied cause of action for contribution on which a
PRP may rely independently of § 113. With respect to the
former question, the Court noted that numerous decisions from
the Courts of Appeals, including this Court’s decision in New
Castle County, had held that a § 107(a) cost recovery action is
only available to an innocent party, and concluded that the
question had not been briefed to the Supreme Court and thus it
was “more prudent to withhold judgment on these matters.”
Cooper Indus., 543 U.S. at 169-70. While the Court did not
reach the latter issue as well, it drew the litigants’ attention to
those cases in which “this Court has visited the subject of
implied rights of contribution before,” id. at 170-71 (citing
Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 638-
47 (1981), and Northwest Airlines, Inc. v. Transp. Workers
Union of Am., 451 U.S. 77, 90-99 (1981)). It noted further that,
“in enacting § 113(f)(1), Congress explicitly recognized a
particular set (claims ‘during or following’ the specified civil
actions) of the contribution rights previously implied by courts
from provisions of CERCLA and the common law.” Id. at

21
171.10

10
In dissent, Justice Ginsburg relied heavily on the Court’s
dicta in Key Tronic that § 107 “unquestionably provides a cause
of action for private parties to seek recovery of cleanup costs,”
see Key Tronic, 511 U.S. at 118, a proposition she believed
applied to PRPs. Cooper Indus., 543 U.S. at 172 (Ginsburg, J.,
dissenting). She argued that “all Members of this Court agreed”
that § 107 provided such a cause of action. Id. Indeed, Justice
Scalia’s dissent in Key Tronic focused merely on whether the
cause of action was express (as he believed it was) or implied
(as the majority stated). See Key Tronic, 511 U.S. at 822
(Scalia, J., dissenting in part). Justice Ginsburg thus concluded
that “no Justice [in Key Tronic] expressed the slightest doubt
that § 107 indeed did enable a PRP to sue other covered persons
for reimbursement, in whole or part, of cleanup costs the PRP
legitimately incurred,” and thus would have recognized a cause
of action for PRPs to seek contribution under § 107. Cooper
Indus., 543 U.S. at 172, 174 (Ginsburg, J., dissenting).
Justice Ginsburg’s conclusion presumes, however, that
the “private parties” the Court agreed in Key Tronic had a cause
of action under § 107 included PRPs seeking contribution from
other PRPs, and not merely (as we held in Reading and New
Castle County) innocent private parties seeking cost recovery
from PRPs on a joint and several basis. The Cooper Industries
majority appears to agree with our view, retreating significantly
from its earlier dicta and noting that, although the Key Tronic
majority spoke of “‘similar and overlapping’ remedies[,] . . .
[t]he cost recovery remedy of § 107(a)(4)(B) and the
contribution remedy of § 113(f)(1) are similar at a general level

22
 II. Facts and Procedural History

With this context, we turn to the facts of this case.
Appellants E.I. DuPont de Nemours & Co., ConocoPhillips Co.,
and Sporting Goods Properties, Inc. (collectively “DuPont” or
“appellants”)11 appeal from a March 1, 2004 order of the United
States District Court for the District of New Jersey granting the
United States judgment on the pleadings and denying DuPont’s
motion for judgment under Federal Rule of Civil Procedure
54(b) and its request for certification of an interlocutory appeal
pursuant to 28 U.S.C. § 1292(b). This order rested on an earlier
opinion and order, entered on December 30, 2003, granting the
Government summary judgment in a “test case” brought to
determine whether DuPont had a cause of action against the
Government for contribution under CERCLA.12 DuPont asserts

in that they both allow private parties to recoup costs from other
private parties[, b]ut the two remedies are clearly distinct.”
Cooper Indus., 543 U.S. at 163 n.3.
11
Because DuPont was the only plaintiff at issue in the “test
case” litigated before the District Court, we refer to the parties
in most instances as “DuPont.” Insofar as the identity of parties
other than DuPont is relevant, we refer to the parties as
“appellants.”
12
The District Court’s December 30, 2003 order was
superseded by an amended order on January 8, 2004. For
purposes of this appeal, the orders are substantively identical.

23
the District Court erred in its statutory analysis, that an implied
cause of action exists under federal common law, and that the
District Court mistakenly dismissed all claims (and not just the
test case) on the pleadings.

A. Background

This case concerns fifteen facilities owned by appellants
in several states, including New Jersey.13 Each of the sites is
contaminated with hazardous waste, and was owned or operated
by the United States at various times during World War I, World
War II, and/or the Korean War, during which time the United
States was responsible for some contamination.

Appellants brought an action against the United States in
January 1997 (before the Supreme Court’s decision in Cooper
Industries) seeking contribution from the Government toward
the costs of cleanup at the sites. Initially, the complaint alleged
causes of action under CERCLA § 107(a) (cost recovery) and

13
The facilities include DuPont sites in Pompton Lakes, New
Jersey; Newark, New Jersey; Parlin, New Jersey; Carneys Point,
New Jersey; Gibbstown, New Jersey; Buffalo, New York;
Niagara, New York; Niagara Falls, New York; East Chicago,
Indiana; Louisville, Kentucky; Nashville, Tennessee; Spruance,
Virginia; and Belle, West Virginia; a ConocoPhillips site in
Ponca City, Oklahoma; and a Sporting Goods Properties site in
Bridgeport, Connecticut.

24
§ 113(f)(1) (contribution).14 We decided New Castle County
and Reading in May and June 1997, respectively; in keeping
with those holdings, appellants’ § 107(a) claim was voluntarily
dismissed without prejudice. See E.I. DuPont de Nemours &
Co. v. United States, 297 F. Supp. 2d 740, 742-43 (D.N.J. 2003).
The District Court thereafter designated one of the facilities
named in the complaint — the DuPont facility in Louisville,
Kentucky — as a “test case” to determine whether DuPont
(which had voluntarily undertaken to clean up the site without
a preexisting § 106 or § 107 action or a § 113(f)(3) settlement)
could seek contribution from other PRPs under § 113(f)(1). Full
discovery was had regarding the claims related to the Louisville
facility, and the Government moved for summary judgment
under Federal Rule of Civil Procedure 56 on the ground that, as
a PRP that had voluntarily incurred its cleanup costs without
having been sued or settled its liability, DuPont had no cause of
action for contribution under § 113.

B. First District Court Decision

On December 30, 2003, the District Court issued a
lengthy opinion and order granting the Government’s motion for

14
The complaint also included a separate count seeking
“recoupment” of costs, but did not provide any statutory basis
for this claim. This count was voluntarily dismissed in
December 1997. See E.I. DuPont de Nemours & Co. v. United
States, 297 F. Supp. 2d 740, 743 (D.N.J. 2003).

25
summary judgment with respect to the Louisville facility. See
E.I. DuPont, 297 F. Supp. 2d 740. The Court concluded that a
PRP, like DuPont, could only bring a contribution action in three
circumstances: (1) during or following a civil action against the
PRP under §106 or § 107 (as set forth in § 113(f)(1)); (2) after
the PRP entered into a judicially or administratively approved
settlement of its liability (as set forth in § 113(f)(3)(B)); or (3)
as suggested by the “saving clause,” in some other undefined
contribution action. Id. at 747. Since DuPont had not been sued
under § 106 or § 107, and had not settled its liability with
respect to the Louisville facility, the Court considered whether
it could pursue some other contribution action.

It noted that the saving clause should not be read to allow
a contribution action, regardless of its source (such as “some
other (federal or state) statute,” id. at 750), unless the plaintiff
satisfied the “requirements of a traditional, common law
contribution action.” Id. at 751; see also Reading, 115 F.3d at
1124 (noting that the term “contribution” in CERCLA is used
“in its traditional, common law sense”). Such an action “‘exists
only in favor of a tortfeasor who has discharged the entire claim
for the harm by paying more than his equitable share of the
common liability.’” E.I. DuPont, 297 F. Supp. 2d at 746
(quoting Restatement (Second) of Torts § 886A(2)) (emphases
in original). Moreover, the District Court concluded that “a
contribution action requires (at least) a prior or ongoing
lawsuit,” id. at 749 (emphasis in original), and DuPont’s claim
regarding the Louisville facility did not meet these criteria.

26
 The Court concluded that “the purpose of the so-called
saving clause [in § 113(f)(1)] was to clarify that a contribution
action brought following a settlement under the aegis of Section
113(f)(3) should not be held to be procedurally insufficient
because of an absence of a prior primary action brought
pursuant to CERCLA Sections 106 or 107.” Id. at 754
(emphasis omitted).15 It granted the Government’s motion for
summary judgment on this basis.16

15
The Court noted the possibility that the saving clause was
intended to preserve causes of action for contribution arising
from non-§ 113 CERCLA provisions without a prior settlement
or suit, but concluded that, under this Court’s decision in
Reading that § 113 displaced all pre-SARA common law or
implied rights of action for contribution under sections other
than § 113, such an interpretation was not persuasive. E.I.
DuPont, 297 F. Supp. 2d at 750.
16
The Court admitted that its holding would “limit the ability
of some PRPs to recoup cleanup costs from other PRPs,” and
that this “might very well hamper some PRP efforts at removal
and remediation of hazard[ous] waste sites.” E.I. DuPont, 297
F. Supp. 2d at 754. Indeed, the Court noted that if “the statute
were ambiguous or if the Court believed that the meaning of the
term ‘contribution’ were unsettled when Congress wrote the
SARA amendments, then [it] would of necessity turn to the
general purposes of the statute to determine the reach of the
provision.” Id. at 754-55. But the Court concluded that “the
statute’s terms appear reasonably clear,” and thus any effort to
allow contribution in the absence of a prior suit or settlement

27
 C. Second District Court Decision

On March 1, 2004, the District Court issued another
opinion and order granting the Government judgment on the
pleadings under Federal Rule of Civil Procedure 12(c) with
respect to the other fourteen sites mentioned in appellants’
complaint, and denying appellants’ request for judgment under
Federal Rule of Civil Procedure 54(b) or certification of an
interlocutory appeal from the Court’s prior order. The Court
noted that, although appellants’ lawyers represented they
“‘could amend the Complaint to potentially comply’” with the
Court’s earlier opinion — by, for example, showing that they
incurred cleanup costs at some of the sites pursuant to EPA
orders or consent decrees — “[a] party’s lawyer’s representation
is not evidence[, and] this representation [does not] appear in the
pleadings.” E.I. DuPont de Nemours & Co. v. United States,
No. 97-497, slip op. at 5 n.4 (D.N.J. March 1, 2004). Indeed,
the Court noted,

[the] Complaint and the competent
evidence before this Court do not
establish or tend to establish that
the fourteen remaining sites
(unaffected by this Court’s prior
amended order) are in any material

“would be rewriting the statute, [which] is not the Court’s role.”
Id. at 755.

28
 sense distinguishable from the
Louisville site. Prior to and during
briefing of the Government’s
current motion, Plaintiffs failed to
produce any (record) evidence, in
the form of affidavits,
certifications, copies of agreements
settling CERCLA claims, or
records of prior judicial or
administrative CERCLA § 106
orders or CERCLA § 107
proceedings. Even at oral
argument, Plaintiffs did not seek
leave to amend their Complaint or
permission to make a late filing.
Simply put, at this juncture, there is
nothing in the record before this
Court establishing or tending to
establish with regard to any of the
remaining sites that any Plaintiff (in
the instant action) either has settled
a CERCLA § 113(f)(3) claim or
has been named a defendant in a
(prior or on-going) CERCLA §106
or CERCLA § 107 action.

Id. at 4-5 (emphasis in original) (footnote omitted).

29
 The District Court thus concluded that the pleadings did
not suggest any basis on which it could reach a conclusion with
respect to the fourteen other sites different from its conclusion
with respect to the Louisville site, and therefore granted the
Government judgment on the pleadings for all sites.

D. Appeal

DuPont and the other plaintiffs appealed, and we stayed
briefing pending the Supreme Court’s decision in Cooper
Industries. As noted, the Supreme Court’s decision confirmed
the District Court’s conclusion that contribution under § 113 is
available to a PRP only if it settles its liability or is subject to a
civil action under § 106 or § 107.

In light of Cooper Industries, DuPont raises four issues
on appeal and makes the following arguments. First, it contends
that § 107 expressly provides PRPs a cause of action to seek
contribution from other PRPs independent of the remedy
provided by § 113. Second, it asserts alternatively that such a
cause of action is implied in § 107 or arises from federal
common law. Third, it argues that the District Court erred in
applying a multi-part test for contribution claims that is
inconsistent with our Court’s precedent. Fourth, it contends the
District Court erred in granting the Government judgment on the
pleadings with respect to the non-Louisville sites. For the

30
reasons stated below, the District Court’s December 30, 2003
order (as amended on January 8, 2004) is affirmed, and its
March 1, 2004 order is also affirmed, with one exception that
will be explained below.

III. Jurisdiction and Standard of Review

The District Court had subject matter jurisdiction over
this case under 28 U.S.C. § 1331, and we have jurisdiction on
appeal under 28 U.S.C. § 1291. We exercise plenary review of
a district court’s grant of summary judgment and judgment on
the pleadings. See Sikirica v. Nationwide Ins. Co., 416 F.3d
214, 219-20 (3d Cir. 2005). In conducting this review, all facts
and inferences are construed in the light most favorable to the
non-moving party, and “[j]udgment will not be granted unless
the movant clearly establishes there are no material issues of
fact, and he is entitled to judgment as a matter of law.” Id. at
220. Our review of questions of statutory interpretation is also
plenary. United States v. E.I. DuPont de Nemours & Co., Inc.,
432 F.3d 161, 164 (3d Cir. 2005) (en banc).

IV. Availability of Contribution

Although DuPont would undoubtedly prefer that we write
our decision on a blank slate in deciding whether it may seek
contribution under § 107(a), we cannot do so. Rather, we must
decide if our prior decisions in New Castle County and Reading
control this case or are distinguishable. If they control, we must

31
then decide whether our panel may decline to follow those
precedents “in light of intervening authority even without en
banc consideration.” George Harms Constr. Co. v. Chao, 371
F.3d 156, 161 (3d Cir. 2004). As we explain below, we hold
that New Castle County and Reading control the outcome of this
case, and no intervening authority provides a basis sufficient to
reconsider those precedents.17

17
The Government contends that, because none of the
appellants pursued express or implied causes of action for
contribution under § 107(a) or federal common law in the
District Court, these claims are waived on appeal. Appellants
did, however, seek the relief they believed available to them
under this Court’s precedents. Since Cooper Industries had not
been decided at the time final judgment was rendered by the
District Court, there was no reason appellants should have
thought it potentially useful to pursue a remedy under § 107(a)
— that remedy was foreclosed by Reading, and the view at the
time was that they had a cause of action under § 113.
Regardless of whether their arguments regarding a cause of
action under § 107(a) are ultimately persuasive, it is clear to us
that Cooper Industries raised legal questions DuPont had no
reason to ask before that decision. We will therefore exercise
our discretion to consider DuPont’s arguments on the merits.
See Salvation Army v. Dep’t of Cmty. Affairs of N.J., 919 F.2d
183, 196 (3d Cir. 1990) (“Where, as here, a previously ignored
legal theory takes on new importance due to an intervening
development in the law, it is appropriate for us to exercise our
discretion to allow a party to revive that theory.”).

32
 A. Applicability of New Castle County and
Reading

To repeat, New Castle County and Reading stand jointly
for the proposition that a PRP seeking to offset its cleanup costs
must invoke contribution under § 113; the express cause of
action under § 107 (cost recovery) is limited to governments and
Indian tribes (acting in their enforcement capacity) and innocent
landowners, and no implied cause of action for contribution for
PRPs — under either § 107 or the common law — survived the
passage of § 113. This rule, unless factually distinguishable,
controls the case before us.

Recently, the United States Court of Appeals for the
Second Circuit decided Consolidated Edison Co. of New York
v. UGI Utilities, Inc., 423 F.3d 90 (2d Cir. 2005), which held
that, despite a prior Second Circuit decision suggesting the
contrary, a PRP has an implied cause of action for contribution
under § 107. See id. at 100 & n.11 (concluding that “section
107(a) permits a [PRP] that has not been sued or made to
participate in an administrative proceeding . . . to recover
necessary response costs incurred voluntarily,” which the Court
deemed “consistent with the view that courts took of section
107(a) before section 113(f)(1) was enacted”). The Second
Circuit admitted that its earlier holding in Bedford Affiliates v.
Sills, 156 F.3d 416 (2d Cir. 1998) — which is substantively
similar to our holdings in New Castle County and Reading —
was inconsistent with this approach. Nonetheless, the panel

33
“decline[d] to answer the question whether a three-judge panel
of this court may depart from Bedford Affiliates’s . . . holding.”
Consol. Edison, 423 F.3d at 101 n.12. It noted that, as in New
Castle County and Reading (but unlike in Consolidated Edison
or this case), the plaintiff in Bedford Affiliates cleaned up its
site pursuant to a consent order and sought relief under both
§ 107 and § 113.

Thus, the Court limited Bedford Affiliates “to hold that
a party that has incurred or is incurring expenditures under a
consent order with a government agency and has been found
partially liable [for contribution] under § 113(f)(1) may not seek
to recoup those expenditures under section 107(a).” Id. at 102.
The Court concluded that its holding in Consolidated Edison —
“that a party that has not been sued or made to participate in an
administrative proceeding, but, if sued, would . . . be liable
under section 107(a), may still recover necessary response costs
incurred voluntarily” — did not conflict with its understanding
of Bedford Affiliates. Id. (emphases added).18

18
Shortly before we filed this opinion, the United States
Court of Appeals for the Eighth Circuit decided Atlantic
Research Corp. v. United States, __ F.3d __, 2006 WL 2321185
(8th Cir. Aug. 11, 2006), in which it reached the same result as
the Second Circuit in Consolidated Edison. We note that
Atlantic Research relies almost entirely on the reasoning of
Consolidated Edison, and thus our consideration of the Second
Circuit’s case applies as well to the decision of the Eighth

34
 DuPont would have us adopt this reasoning to distinguish
New Castle County and Reading. It argues that, as in Bedford
Affiliates, both of our prior cases involved PRPs that cleaned up
sites pursuant to some form of EPA oversight.19 Tracking the
analysis in Consolidated Edison, DuPont asserts that New Castle
County and Reading are fundamentally different from this case
(where appellants cleaned up their sites voluntarily), because the
rule in our prior cases may be limited factually to those
circumstances where a PRP has already satisfied the
prerequisites for § 113 contribution set forth in Cooper
Industries.

Circuit.
One important difference between the two cases is that in
Atlantic Research (as here) the United States was a party. The
Eighth Circuit based its decision, in part, on its conclusion that
denying a PRP that voluntarily cleans up a site contribution from
the Government would allow the Government to “insulate itself
from responsibility for its own pollution by simply declining to
bring a CERCLA cleanup action or refusing a liable party’s
offer to settle.” Atlantic Research, 2006 WL 2321185, at *8.
As we explain in footnote 31 below, however, we are
underwhelmed by this argument.
19
As noted, the New Castle County plaintiffs incurred
response costs pursuant to an EPA consent decree, see 111 F.3d
at 1119, and the Reading plaintiff cleaned up its site pursuant to
a § 106 order and § 107 suit, see 115 F.3d at 1116.

35
 We disagree. Although we will not dispute the Second
Circuit’s interpretation of its precedent, we do not read our
precedents to be so limited. Nothing in New Castle County and
Reading suggests that our holdings in those cases depended on
the motivations for the cleanups. Indeed, we reached the § 107
and common law claims in those cases precisely because § 113
was not sufficient to dispose of the appeals. In New Castle
County, for example, we noted that the circumstances of that
case forced us to decide whether a PRP may seek cost recovery
under § 107 (even if it would ordinarily qualify for contribution
under § 113) because the respective statutes of limitations for
the different types of claims meant that, on the facts of the case,
a § 107 cost recovery action would have been timely but a § 113
contribution action would not. 111 F.3d at 1120. And in
Reading, we necessarily considered whether any contribution
claim (common law, implied in § 107, or express in § 113) could
survive the discharge of a PRP’s liability to the United States in
a bankruptcy proceeding. We concluded that an express § 113
contribution claim was precluded by the fact that the
Government’s claim against the PRP was discharged by the
PRP’s bankruptcy, meaning there was no underlying action and
thus other PRPs could not seek contribution from the debtor.
Reading, 115 F.3d at 1126. We rejected the common law and
implied cause of action claims because they were categorically
precluded by the statute. Id. at 1117, 1120-21.

It is familiar law that when the rule in a prior case by its
terms controls the outcome of a current case, we will not reach

36
out to distinguish the prior case on the basis of factual
differences that were not “material” to the earlier holding. As
Judge Kozinski explained in Hart v. Massanari, 266 F.3d 1155
(9th Cir. 2001), common law precepts require that “a court
confronted with apparently controlling authority must parse the
precedent in light of the facts presented and the rule announced.
Insofar as there may be factual differences between the current
case and the earlier one, the court must determine whether those
differences are material to the application of the rule or allow
the precedent to be distinguished on a principled basis.” Id. at
1172; see also United States v. Rosero, 42 F.3d 166, 174 n.16
(3d Cir. 1994) (refusing the defendants’ invitation to distinguish
an earlier case because the precedent was not “materially
distinguishable” from the facts at hand); Black’s Law Dictionary
629 (8th ed. 2004) (defining a “material fact” as one “that is
significant or essential to the issue or matter at hand”). Our
holdings in New Castle County and Reading — based on our
interpretation of the statute — are broad, and nothing in those
cases suggests that the results would have been different if the
plaintiffs had undertaken voluntary cleanups.20 We do not,

20
At least one commentator has suggested that courts “do not
concede to their predecessors the power of laying down very
wide rules; they reserve to themselves the power to narrow such
rules by introducing into them particular facts of the precedent
case that were treated by the earlier courts as irrelevant.” John
Salmond, Jurisprudence 192 (10th ed. 1947), reprinted in
Black’s Law Dictionary 507 (8th ed. 2004). While this may be

37
true as a general proposition, it cannot serve as a rule of decision
in a case such as this. First, even if a panel treated certain facts
as “irrelevant” in a prior opinion, they must still be material to
the earlier holding to serve as a basis for distinguishing the case,
as our discussion above demonstrates. Second, and perhaps
more importantly, our interpretation of CERCLA’s requirements
in New Castle County and Reading established that the plaintiffs
in those cases lost not because they had been compelled to clean
up their sites and hence qualified for contribution under § 113
(indeed, as explained, neither plaintiff could in fact seek § 113
contribution on the facts of those cases), but because their
complaints alleged causes of action under § 107 or the common
law that were not authorized by the statute for any PRP. Of
course, our Court might still have ruled against the plaintiffs by
interpreting CERCLA differently, but that is not the
interpretation we deemed appropriate based on the terms of the
statute.
Particularly in the statutory interpretation realm, where
courts must faithfully apply Congress’ words and determine
their settled meaning, the breadth of a court’s holding is often
compelled by the scope of Congress’ prescription. We therefore
reject the argument that our holdings in New Castle County and
Reading (that CERCLA precludes PRPs from seeking cost
recovery or contribution under § 107, and establishes § 113 as
the sole basis on which a PRP may equitably apportion its costs
through contribution) are broader than they needed to be on the
facts of those cases. To the contrary, those rules apply directly
to this case, and may not be distinguished based on facts that
were not material to the earlier decision, especially since the

38
therefore, believe our precedents may be distinguished from this
case as the Second Circuit distinguished Bedford Affiliates from
the circumstances of Consolidated Edison.

B. Continued Viability of New Castle County and
Reading After Cooper Industries

We turn, then, to the question of whether we may
nonetheless reconsider our precedents in light of intervening
authority. In doing so, we are mindful of the Supreme Court’s
admonition that when “dealing with an issue of statutory
interpretation, . . . the claim to adhere to case law is generally
powerful once a decision has settled statutory meaning.”
Shepard v. United States, 544 U.S. 13, 23 (2005); see also
Patterson v. McLean Credit Union, 491 U.S. 164, 172-73 (1989)
(“[T]he burden borne by the party advocating the abandonment
of an established precedent is greater where the Court is asked
to overrule a point of statutory construction. Considerations of
stare decisis have special force in the area of statutory
interpretation, for here, unlike in the context of constitutional
interpretation, the legislative power is implicated, and Congress
remains free to alter what we have done.”).

Because the statute itself has not changed, DuPont
focuses its attention on Cooper Industries. Its arguments may be
distilled to two intersecting theories. First, it argues that Cooper

terms of the statute have not changed.

39
Industries undercut a supposed major premise of our holding in
Reading — namely, that a PRP could seek contribution from
another PRP without having been sued or settled its liability.
Thus, DuPont contends that the analytical foundation of Reading
was overruled by the Supreme Court and we may, therefore,
disregard our prior decision. Second, it contends that Cooper
Industries changed settled expectations in the cost
apportionment field to such a dramatic extent that the rules set
out in New Castle County and Reading no longer serve the
purposes of CERCLA. As such, DuPont argues, the intervening
authority of Cooper Industries, when viewed in the light of
CERCLA’s legislative history, provides a basis for us to find an
express or implied cause of action for contribution under § 107
or the common law notwithstanding our precedent.

1. Alleged Inconsistency Between Cooper
Industries and Reading

a. Facial Inconsistency

Cooper Industries did not explicitly or implicitly overrule
our precedents; indeed, the Supreme Court expressly declined to
consider the very questions at issue here. See Cooper Indus.,
543 U.S. at 168-71. Though it is true that our observation in
Reading that Ҥ 113(f)(1) specifically permits an action for
contribution to be brought ‘in the absence of a civil action under
. . . section [107],’” 115 F.3d at 1120, cannot support a cause of
action for PRPs engaged in voluntary cleanups after Cooper

40
Industries, we reject DuPont’s view that this fatally undermines
Reading’s holding. For one thing (as explained in Part IV.B.1.b
below), our statement in Reading did not necessarily endorse a
§ 113(f)(1) contribution action in the absence of a preexisting
civil action (and is not, therefore, clearly at odds with the
Supreme Court’s later instructions). But insofar as our
statement can be read to recognize implicitly that possibility, it
merely “reenforce[d] our conclusion that Congress intended
§ 113 to be the sole means for seeking contribution.” Id.
(emphasis added). We also relied on our precedent in New
Castle County, the holdings of other Courts of Appeals, rules of
statutory construction, and CERCLA’s purpose following the
SARA amendments, in deciding that § 113 provides the only
contribution remedy under CERCLA. We conclude that, even
disregarding the possible implicit reference in Reading to a
§ 113(f)(1) contribution action in the absence of a § 107 suit,
our holding in that case was amply supported on other grounds
and therefore survives Cooper Industries.

b. Saving Clause

It is true that Reading’s statement — which quotes from
§ 113(f)(1)’s saving clause — could be read to endorse a
contribution action under § 113(f)(1) without a preexisting civil
action, and as such would be wrong. See Cooper Indus., 543
U.S. at 167 (explaining that the saving clause “does [not] . . .
expand § 113(f)(1) to authorize contribution actions not brought
‘during or following’ a § 106 or § 107(a) civil action”). But the

41
Supreme Court also observed that while the saving clause
“rebuts any presumption that the express right of contribution
provided by the enabling clause [in §113(f)(1)] is the exclusive
cause of action available to a PRP,” it does not “specify what
causes of action for contribution, if any, exist outside §
113(f)(1),” and the Court did not itself address the question
further. Id. at 166-67.

We do know, however, there is one express cause of
action available to a PRP for contribution under CERCLA
outside the strictures of § 113(f)(1): contribution under
§ 113(f)(3)(B) for PRPs that settle their liability “in an
administrative or judicially approved settlement.” Our statement
in Reading is not, therefore, necessarily incorrect: it is true that
§ 113(f)(1) does not foreclose contribution actions when the
PRP has not been sued, because § 113(f)(3)(B) remains
available if the party chooses to settle. As we explain below,
SARA’s legislative history makes clear that the § 113(f)(3)(B)
settlement provision is one of two incentives that are crucial to
a carefully considered scheme to encourage PRPs to settle their
liability, enter into consent decrees, and perform supervised
cleanups.21 The District Court concluded that the § 113(f)(1)
saving clause merely clarifies that “a contribution action brought
following a settlement under the aegis of Section 113(f)(3)
should not be held to be procedurally insufficient because of an

21
The other incentive is the contribution protection for
settling PRPs provided under § 113(f)(2).

42
absence of a prior primary action pursuant to CERCLA Sections
106 or 107.” E.I. DuPont, 297 F. Supp. 2d at 754 (emphasis
omitted). As the discussion below demonstrates, this
interpretation is consistent with the settlement provisions in
SARA, and though there is no legislative history regarding the
meaning of the saving clause, we are confident that the District
Court’s interpretation is in accord with CERCLA’s purpose (as
amended by SARA), as is our decision in Reading. We
therefore decline DuPont’s invitation to revisit Reading solely
because its possible interpretation of the saving clause is
incorrect, especially since our statement in Reading is not
necessarily inconsistent with Cooper Industries in the first place.

2. Statutory Purpose

DuPont’s argument regarding the purpose of CERCLA
merits more discussion. To repeat, DuPont contends that, in the
wake of Cooper Industries, our decisions in New Castle County
and Reading are in direct opposition to CERCLA’s broad
remedial purpose as expressed in its legislative history. This, it
urges, makes necessary an implied cause of action for
contribution, available to PRPs that voluntarily clean up
contaminated sites, to fill the gaps Cooper Industries recognized
in Congress’ remedial scheme. Indeed, as one Court has noted,
the “combined result” of Cooper Industries and cases like New
Castle County and Reading is “quixotic”: “the present statutory
arrangement resulting from the combined authority of [Cooper
Industries and earlier Courts of Appeals cases] compels a

43
responsible party engaged in voluntary remediation to foot the
bill for other parties, which will have the effect of encouraging
responsible parties to rest on their heels and wait for the
instigation of adverse proceedings, rather than implement a
cost-effective environmental contamination response strategy.”
Mercury Mall Assocs., Inc. v. Nick’s Market, Inc., 368 F. Supp.
2d 513, 519 (E.D. Va. 2005) (internal quotation marks and
alterations omitted).

As amici American Chemistry Council and Superfund
Settlements Project assert, allowing only sued or settling PRPs
to seek contribution “would discourage and delay the very
cleanups that Congress sought to encourage and accelerate” by
enacting CERCLA. Amici Br. at 9. Indeed, amici assert that
the EPA has long encouraged PRPs to clean up contaminated
sites voluntarily, and for those who do (amici estimate around
70% of all cleanups), the EPA has stated that it is “‘important to
. . . remove unnecessary obstacles to their ability to recover their
costs from the parties that are liable for the contamination.’” Id.
at 7-8 (quoting National Oil and Hazardous Substance
Contingency Plan, 55 Fed. Reg. 8666, 8792-93 (March 8,
1990)).22 If PRPs engaged in voluntary cleanups may not seek
contribution, DuPont and amici argue, “companies would resist

22
As we explain in footnote 30 below, however, this
statement is taken out of context. In context, it is clear the EPA
refers to cost recovery actions — which, as we noted in New
Castle County, are available only to innocent parties, not PRPs.

44
undertaking new cleanup obligations, and would rarely do so
voluntarily,” thus frustrating core purposes of CERCLA. Id. at
9.

a. CERCLA’s Legislative History

We begin, then, with the legislative history of
CERCLA. 23 Although the statute is supposed to be
“comprehensive,” the legislative history is not, as many of the
pre-SARA cases that allowed an implied right of action under

23
We are mindful, of course, that legislative history can
sometimes be “murky, ambiguous, and contradictory,” and that
recourse to it as an interpretive aid may, if we are not careful,
devolve to “an exercise in looking over a crowd and picking out
your friends.” Exxon Mobil Corp. v. Allapattah Servs., Inc.,
545 U.S. __, 125 S. Ct. 2611, 2626 (2005) (internal quotation
marks omitted). We are confident that these concerns are not
implicated here. Though (as explained below) the legislative
history of CERCLA is rather unclear, particularly with respect
to voluntary cleanups by PRPs, the legislative history of SARA
uniformly indicates the intent of Congress to encourage
settlement by, inter alia, authorizing an express and limited
contribution right. We also observe that, although we would of
course have no need to look to the legislative history to discern
the meaning of an unambiguous statutory provision, see Cooper
Indus., 543 U.S. at 167, we need to consult the legislative
history where, as here, a party urges us to disregard precedent
and imply a cause of action to effect the intent of Congress.

45
§ 107 observed. See, e.g., Walls, 761 F.2d at 318 (“[T]he
legislative history of CERCLA is vague, reflecting the
compromise nature of the legislation eventually enacted.”);
NCC, 642 F. Supp. at 1263 (noting “the absence of significant
legislative history” of CERCLA); see also Frank P. Grad, A
Legislative History of the Comprehensive Environmental
Response, Compensation and Liability (“Superfund”) Act of
1980, 8 Colum. J. Envtl. L. 1, 2 (1982) (“In the instance of the
‘Superfund’ legislation, a hastily assembled bill and a
fragmented legislative history add to the usual difficulty of
discerning the full meaning of the law.”).

Though without doubt CERCLA’s drafters intended that
the statute encourage responsible parties to clean up hazardous
waste sites and bear the costs of doing so, see Morton Int’l, 343
F.3d at 676, Congress’ position on voluntary cleanups is less
clear. Reporting on the proposed Hazardous Waste
Containment Act (the House of Representatives’ version of
CERCLA, see Grad, supra, at 4-5),24 the House Committee on
Interstate and Foreign Commerce noted that the bill would
“establish a Federal cause of action in strict liability to enable
the [EPA] administrator to pursue rapid recovery of the costs
incurred for the costs of such [cleanup] actions undertaken by
him from persons liable therefor and to induce such persons

24
For a thorough review of the legislative debates on the
House and Senate versions of CERCLA, and the compromises
that allowed the legislation to become law, see Grad, supra.

46
voluntarily to pursue appropriate environmental response actions
with respect to inactive hazardous waste sites.” H.R. Rep. No.
96-1016(I), at 17 (1980), reprinted in 1980 U.S.C.C.A.N. 6119,
6120. Representative Florio, the floor manager of the
legislation in the House, noted that “[t]he strong liability
provisions that are in our bill . . . are very important, because we
want to induce those who know where these sites are to remedy
the sites themselves. If there is no liability provision, they will
not have any incentive whatsoever to go forward on a voluntary
basis and clean up those sites.” 126 Cong. Rec. H9441 (daily
ed. Sept. 23, 1980); see also id. at H9467 (statement of Rep.
Florio) (“EPA is required not to act if the responsible party or
parties will take appropriate action to clean[ ]up and contain
these sites.”).

These statements do not, however, establish that
Congress necessarily intended that PRPs engaged in voluntary
cleanups be able to seek contribution; they could just as easily
reflect congressional recognition that a strong enforcement
scheme holding wrongdoers liable would encourage PRPs to
head off potentially ruinous litigation or punitive settlements
and clean up their own mess.25 Indeed, Congress provided no

25
Indeed, the companion legislation in the Senate focused
more on deterrence than on encouraging voluntary cleanups.
See S. Rep. No. 96-848, at 13, 15 (1980) (noting that the bill’s
intent was that “those responsible for any damage,
environmental harm, or injury from chemical poisons bear the

47
express right of contribution for any PRP that incurred response
costs, whether voluntarily or not. Language providing an
express cause of action for contribution among PRPs was
rejected by Congress, see NCC, 642 F. Supp. at 1263, as was
language providing for joint and several liability, see, e.g., 126
Cong. Rec. S14,964 (daily ed. Nov. 24, 1980) (statement of Sen.
Randolph) (“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. An example is joint and several
liability. Any reference to these terms has been deleted, and the
liability of joint tort feasors will be determined under common
or previous statutory law.”); 126 Cong. Rec. H11,787 (daily ed.
Dec. 3, 1980) (statement of Rep. Florio) (same).

While it is clear that CERCLA’s drafters intended
common law principles to govern liability, we have not found
evidence in the legislative history that Congress contemplated
this would extend a contribution right to PRPs engaged in
entirely voluntary cleanups. In fact, the House and Senate floor
managers’ statements that liability would be governed by
common law principles appear inconsistent with this possibility,
since contribution among jointly and severally liable tortfeasors
ordinarily follows a determination of liability to a common
plaintiff who suffered an injury. See, e.g., Restatement

costs of their actions” on the basis of “strict, joint, and several
liability” to create an “incentive for greater care focus[ed] on the
initial generators of hazardous wastes”).

48
(Second) of Torts §§ 875, 886A (1979); 2 Michael Dore, Law
of Toxic Torts § 16.04 (1999) (“In general, contribution is
available whenever a party is held liable to a plaintiff for injuries
[for] which other parties were at least partially responsible.”);
see also Northwest Airlines, 451 U.S. at 86-88 (noting that, in
“most American jurisdictions, . . . a right to contribution is
recognized when two or more persons are liable to the same
plaintiff for the same injury and one of the joint tortfeasors has
paid more than his fair share of the common liability”). As
then-Representative Gore explained to the House of
Representatives in offering an amendment to the Hazardous
Waste Containment Act,

Joint and several liability ordinarily
would mean that whenever a single,
indivisible harm is sustained as a
result of independent, separate, but
concurring tortious acts by two or
more actors, each can be held liable
for the entire amount of damages
incurred. . . . The plaintiff could
collect the total sum of damages
awarded from a single defendant
and could avoid the agony of
m u l ti p le su its a g a in s t th e
defendants that would otherwise be
necessary to achieve full
compensation.

49
 Under the theory of
contribution, the defendant from
whom the plaintiff receives
payment may then collect from the
other defendants for that part of the
damages for which each is
responsible. . . . [C]ourts [have]
concluded that because the
defendants were the ones at fault, it
would be unfair to place the burden
of demonstrating the
apportionability of the damage on
the plaintiff. The burden was thus
placed on the defendants to work
out for themselves who was
responsible for what part of the
injury under the process of
contribution [after the plaintiff
recovered his damages].

126 Cong. Rec. H9463 (daily ed. Sept. 23, 1980).

b. SARA’s Legislative History

The legislative history of the SARA amendments, while
labyrinthine, is less clouded than the legislative history of
CERCLA as initially enacted, particularly with respect to
contribution and voluntary cleanups. Cooper Industries puts

50
beyond question that § 113 establishes a contribution remedy
only for PRPs that have settled their liability or have been sued,
and the legislative history supports this reading. See, e.g., S.
Rep. No. 99-11, at 44 (1985) (stating that § 113 “clarifies and
confirms the right of a person held jointly and severally liable
under CERCLA to seek contribution from other potentially
liable parties”); H.R. Rep. No. 99-253(I), at 79 (1985), reprinted
in 1986 U.S.C.C.A.N. 2835, 2861 (same); H.R. Rep. No. 99-
253(III), at 18 (1986), reprinted in 1986 U.S.C.C.A.N. 3038,
3041 (stating that § 113 “clarifies and emphasizes that persons
who settle with EPA (and who are therefore not sued), as well
as defendants in CERCLA actions, have a right to seek
contribution from other potentially responsible parties”).

SARA’s legislative history also reveals an express bent
toward encouraging settlement. See, e.g., H.R. Rep. No. 99-
253(III), at 29, reprinted in 1986 U.S.C.C.A.N., at 3052 (“The
Judiciary Committee strongly agrees with the Energy and
Commerce Committee that encouraging . . . negotiated clean-
ups will accelerate the rate of clean-ups and reduce their
expense by making maximum use of private sector resources.
The Committee also agrees that this emphasis on negotiated
clean-ups should not replace or diminish a strong and aggressive
enforcement policy, but rather should complement such a
policy.”); H.R. Rep. No. 99-253(I), at 100-01, reprinted in 1986
U.S.C.C.A.N., at 2882-83 (same). As the Senate Environment
and Public Works Committee reported, voluntary cleanups,
though desirable, should be undertaken pursuant to a settlement

51
with the EPA:

C ongress, the EPA,
responsible parties, and other critics
have suggested several means of
speeding up and economizing on
site cleanups. These include
enlarging the Superfund, setting
program deadlines, expanding the
EPA program offices, empowering
citizens to sue, and encouraging
voluntary cleanup by industry.
Although enlarging the Fund,
providing more staff, and setting
program deadlines would tend to
accelerate the CERCLA effort, the
Administrative Conference believes
that a properly designed site
cleanup negotiation process,
through which responsible parties
or third parties would agree to act
directly to clean up sites, would
also hasten cleanup while reducing
its expense by tapping the technical
and financial resources of the
private sector. Involvement of the
federal government and affected
citizens in this process would

52
 ensure adequate protection of
public health and the environment.

...

The final agreement should
take the form of an administrative
consent order under section 106 of
CERCLA or a judicial consent
decree.

S. Rep. No. 99-11, at 65, 67; see also H.R. Rep. No. 99-253(V),
at 58 (1986), reprinted in 1986 U.S.C.C.A.N. 3124, 3181 (“The
Committee recognizes that Fund-financed cleanups,
administrative action and litigation — even under a strong and
vigorous enforcement program — will not be sufficient to
accomplish CERCLA’s goals. Voluntary cleanups are essential
to a successful program for cleanup of the Nation’s hazardous
substance pollution problem. [SARA’s settlement provisions
are] intended to encourage and establish procedures and
protections pertaining to negotiated private party cleanup of
hazardous substances where such cleanup is in the public
interest.” (emphasis added)); 132 Cong. Rec. H9609 (statement
of Rep. Slattery) (“This legislation . . . encourages potentially
responsible parties to come out of the woodwork and the courts,
and settle on an environmentally acceptable cleanup plan.”).

53
 It is also apparent from the legislative history that
Congress intended the contribution allowed by § 113 to be a
crucial part of its scheme to encourage settlement and (by
extension) private cleanups by PRPs within the bounds of the
settlement agreements. The House Energy and Commerce
Committee, for example, reported that limiting contribution to
parties who were sued or settled

should encourage private party
settlements and cleanups. Parties
who settle for all or part of a
cleanup or its costs, or who pay
judgments as a result of litigation,
can attempt to recover some portion
of their expenses and obligations in
contribution litigation from parties
who were not sued in the
enforcement action or who were
not parties to the settlement.
[Such] parties may be more willing
to assum e the financial
responsibility for some or all of the
cleanup [i.e., through settlement] if
they are assured that they can seek
contribution from others.

H.R. Rep. No. 99-253(I), at 80, reprinted in 1986 U.S.C.C.A.N.,
at 2862; S. Rep. No. 99-11, at 44 (same).

54
 The settlement procedures now set
forth are expected to be a
significant inducement for parties
to come forth, to settle, to avoid
wasteful litigation and thus to begin
cleanup.

...

The bill would give
potentially responsible parties the
explicit right to sue other liable or
potentially liable parties who also
may be responsible for the
hazardous waste site. [Also,] [i]f a
party has resolved its liability to the
U.S. or a state in a judicially[ ]
approved, good-faith settlement,
the party would not be liable for
claim s f or c ontribution or
indemnity on matters addressed in
the settlement. These provisions
should encourage quicker, more
equitable settlements, decrease
litigation and thus facilitate
cleanups.

H.R. Rep. No. 99-253(I), at 58-59, reprinted in 1986

55
U.S.C.C.A.N., at 2840-41 (emphasis added); see also H.R. Rep.
No. 99-253(III), at 20, reprinted in 1986 U.S.C.C.A.N., at 3043
(explaining that “[the] amendments to the contribution section
[i.e., § 113] will improve its effectiveness, ensure its fair
operation, and encourage settlements by responsible parties”).
As Senator Stafford, the floor manager of SARA in the Senate,
explained, the legislation recognized that settlements are a
crucial part of the EPA’s enforcement regime, and “[t]he theory
underlying Superfund’s liability scheme was, and is, that the
Government should obtain the full costs of cleanup from those
it targets for enforcement, and leave remaining costs to be
recovered in private contribution actions between settling and
nonsettling parties.” 132 Cong. Rec. S14,903 (daily ed. Oct. 3,
1986).

* * * * *

Congress no doubt intended by the SARA amendments
to encourage settlements, and further intended that the promise
of contribution for settling wrongdoers would encourage them
to come forward, negotiate a settlement with the Government,
and begin work on supervised cleanups. Indeed, the “voluntary”
nature of the cleanups Congress had in mind was a voluntary
agreement to settle and enter into a consent decree, rather than
a wholly voluntary, unsupervised, sua sponte cleanup operation.
CERCLA’s initial legislative history — which is sparse, vague
with respect to voluntary cleanups, and leaves issues of joint and
several liability (including contribution) to the common law —

56
must, of necessity, be read in tandem with SARA, and SARA
establishes a specific and intricate legislative scheme for
encouraging settlement through, among other things, a limited
contribution right.

c. Contribution for V oluntary
Cleanups without Settlement or
Suit

To be sure, the legislative history of SARA contains no
express statement that parties that clean up their own sites
voluntarily, without having settled their liability or having been
sued, cannot seek contribution.26 We conclude, however, that
SARA’s settlement scheme is inconsistent with such a right.

First, we are mindful of the Supreme Court’s caution that
“once Congress addresses a subject, even a subject previously
governed by federal common law, the justification for
lawmaking by the federal courts is greatly diminished.
Thereafter, the task of the federal courts is to interpret and apply
statutory law, not to create common law.” Northwest Airlines,
451 U.S. at 95 n.34. The Court continued:

26
Of course, as noted, there is no express statement in
CERCLA or SARA, or in their respective legislative histories,
that PRPs engaged in voluntary cleanups can seek contribution.

57
 In almost any statutory scheme,
there may be a need for judicial
interpretation of ambiguous or
incomplete provisions. But the
authority to construe a statute is
fundamentally different from the
authority to fashion a new rule or to
provide a new remedy which
Congress has decided not to adopt.
The presumption that a remedy was
deliberately omitted from a statute
is strongest when Congress has
enacted a comprehensive legislative
scheme including an integrated
s ys t e m o f p r o c e d u r e s f o r
enforcement. . . . The judiciary may
not, in the face of such
comprehensive legislative schemes,
fashion new remedies that might
u p s e t c a r e f u ll y c o n s i d e r e d
legislative programs.

Id. at 97 (citation and footnote omitted) (emphasis added). We
echoed this understanding in Reading. See 115 F.3d at 1117
(“[W]hen Congress expressly created a statutory right of
contribution in CERCLA § 113(f), 42 U.S.C. § 9613(f), it made
that remedy a part of an elaborate settlement scheme aimed at
the efficient resolution of environmental disputes. Permitting

58
independent common law remedies would create a path around
the statutory settlement scheme, raising an obstacle to the intent
of Congress.”).27 Indeed, it would be odd to suppose that

27
DuPont counters with another rule of statutory
construction: “that if Congress intends for legislation to change
the interpretation of a judicially created concept, it makes that
intent specific.” Midlantic Nat’l Bank v. N.J. Dep’t of Envtl.
Prot., 474 U.S. 494, 501 (1986). It argues that Congress should
not be deemed to have rejected a common law implied right of
contribution without expressly saying so. In Reading, however,
we concluded that Congress did specifically replace all common
law remedies with an express and exclusive statutory remedy,
and with good reason: allowing PRPs to seek contribution only
within the confines of § 113 provides a powerful incentive for
them to settle their liability, a prime goal of SARA.
Indeed, the legislative history of SARA reveals that
Congress approved expressly of certain prior cases, and none of
them involved a PRP that voluntarily cleaned up its site without
having settled or been sued. The House Energy and Commerce
Committee reported that it agreed with United States v. S.C.
Recycling & Disposal, Inc., 653 F. Supp. 984 (D.S.C. 1986)
(which held PRPs jointly and severally liable to the United
States and suggested, in keeping with ordinary contribution
rules, that upon being held liable a PRP could seek contribution
from other PRPs), and United States v. Ward, No. 83-63-CIV-5,
1984 WL 15710 (E.D.N.C. May 14, 1984) (which held that a
PRP deemed jointly and severally liable can seek contribution
from other PRPs under the common law), and explained that §
113 “clarifies and confirms the right of a person held jointly and

59
Congress would have expressly provided a contribution right for
PRPs that settled or were sued as part of an elaborate statutory
scheme to encourage settlement if it intended that all other PRPs
would be able to obtain contribution under some implied or
common law right.

It might be argued, however, that CERCLA’s general
purpose (i.e., prompt and effective cleanup) is accomplished by
any sort of cleanup (whether pursuant to a settlement, in
response to a suit, or voluntarily). Under this view, SARA’s
preference for settlement and its express provision of
contribution as an incentive to seek settlement should not be
deemed to preclude reconsideration of precedents that, in light
of Cooper Industries, now serve as a barrier to certain cleanups
that would otherwise satisfy the desire for prompt and effective
action.

We disagree with this argument. Of particular concern
to the Congress that enacted SARA was setting standards likely
to effect the safe and effective cleanup of contaminated sites in

severally liable under CERCLA to seek contribution from other
potentially liable parties.” H.R. Rep. No. 99-253(I), at 79,
reprinted in 1986 U.S.C.C.A.N., at 2861 (emphasis added); see
also id. at 74, reprinted in 1986 U.S.C.C.A.N., at 2856 (noting
that the Committee “fully subscribes to the reasoning” in United
States v. Chem-Dyne Corp., 572 F. Supp. 802 (S.D. Ohio 1983),
that PRPs are jointly and severally liable to third parties).

60
a manner beneficial to the public interest. See, e.g., CERCLA
§ 121, 42 U.S.C. § 9621 (requiring “[t]he President [to] select a
remedial action that is protective of human health and the
environment, that is cost effective, and that utilizes permanent
solutions and alternative treatment technologies or resource
recovery technologies to the maximum extent practicable,” and
setting standards for meeting this requirement); Ohio v. EPA,
997 F.2d 1520, 1526 (D.C. Cir. 1993) (noting that “the statute
. . . require[s] that remedial actions at Superfund sites result in
a level of cleanup or standard of control that at least meets the
legally applicable or otherwise relevant and appropriate federal
(or stricter state) requirements,” particularly the “legally
‘applicable’ or ‘relevant and appropriate’ environmental
standards” in the National Contingency Plan (“NCP”)). The
House Committee on Public Works and Transportation
explained that the EPA must consider, inter alia, “the
availability of technology, the installation period, the
uncertainties related to the level of performance or the solution
or remedial action, the level of public support for the solution or
remedial action, and whether or not the solution or remedial
action has been achieved in practice at any other facility or site
which has characteristics similar to the facility or site
concerned.” H.R. Rep. No. 99-253(V), at 50, reprinted in 1986
U.S.C.C.A.N., at 3173.28

28
In fact, under CERCLA § 122(e)(6), 42 U.S.C.
§ 9622(e)(6), Congress expressly forbade, without the EPA’s
approval, remedial actions by PRPs once an administrative order

61
 Indeed, before SARA was enacted, the EPA expressed
serious doubts about sua sponte voluntary cleanups by PRPs. In
the 1983 amendment to the NCP that added the National
Priorities List for site cleanup, the EPA explained that, by
designating certain sites as subject to “Voluntary or Negotiated
Response,” its strong preference was for negotiated cleanups
with Government oversight.29

Sites are included in this
category if private parties are
taking response actions pursuant to
a consent order or agreement to

or consent decree was in place. As Senator Mitchell explained,
“[t]his [provision] is to avoid situations in which the PRP begins
work at a site that prejudges or may be inconsistent with what
the final remedy should be or exacerbates the problem.” 132
Cong. Rec. S14919 (daily ed. Oct. 3, 1986).
29
This does not, of course, mean that only federal
Government oversight is allowed. See United States v. Akzo
Coatings of Am., Inc., 949 F.2d 1409, 1418 (6th Cir. 1991)
(“The federal legislative scheme and its history are persuasive
that Congress did not intend to leave the cleanup under
CERCLA solely in the hands of the federal government.
CERCLA, as amended by SARA, provides a substantial and
meaningful role for the individual states in the selection and
development of remedial actions to be taken within their
jurisdictions.”).

62
which EPA is a party. Voluntary or
negotiated cleanup may include
actions taken pursuant to consent
orders reached after EPA has
commenced an enforcement action.
This category of response may
include remedial investigations,
feasibility studies, and other
preliminary work, as well as actual
cleanup.

Several commenters were
concerned that this category did not
adequately reflect voluntary
response efforts undertaken without
formal agreements with EPA.
However, EPA studies have shown
that many of the response actions
undertaken by private parties
outside the sanction of EPA
consent agreements have not been
successful. Furthermore, some
private parties have represented
routine maintenance or waste
management activities as response
actions, thereby leading to the
conclusion that only after a
thorough technical review can the

63
Agency describe actions by private
parties as “responses”. Thus, EPA
believes that to describe actions
taken outside consent orders as
“response” would in m any
instances be misleading to the
public[,] as EPA cannot assure the
public that the actions are
appropriate, adequate, consistent
with the NCP, and are being fully
implemented. Therefore, the
Agency encourages any responsible
parties who are undertaking
voluntary response actions at NPL
sites to contact the Agency to
negotiate consent agreements.

This is not intended to
preclude responsible parties from
taking voluntary response actions
outside of a consent agreement.
However, in order for the site to be
deleted or to be noted in the
voluntary or negotiated response
category, EPA must still sanction
the completed cleanup. If the
remedial action is not fully
implemented or is not consistent

64
 with the NCP, the responsible party
may be subject to an enforcement
action. Therefore, most responsible
parties may find it in their best
interest to negotiate a consent
agreement.

Amendment to National Oil and Hazardous Substance
Contingency Plan, 48 Fed. Reg. 40,661 (Sept. 8, 1983)
(emphasis added).30

30
Although the EPA treats innocent parties more generously
than wrongdoing PRPs, it expressed a similar concern with
respect to cost recovery by innocent parties in the substantive
amendment to the NCP implementing SARA:

EPA believes that it is important to
encourage private parties to
perform voluntary cleanups of sites,
and to remove unnecessary
obstacles to their ability to recover
their costs from the parties that are
liable for the contamination. At the
same time, EPA believes it is
important to establish a standard
against which to measure cleanups
that qualify for cost recovery under
CERCLA, so that only
CERCLA-quality cleanups are

65
 There is, of course, no explicit indication in SARA or the
legislative history that Congress was motivated by these

encouraged. . . . [Thus,] in
evaluating whether or not a private
party should be entitled to cost
recovery under CERCLA section
107(a)(4)(B), EPA believes that
“consistency with the NCP” should
be measured by whether the private
party cleanup has, when evaluated
as a whole, achieved “substantial
compliance” with potentially
applicable requirements, and
resulted in a CERCLA-quality
cleanup.
...
[T]he government has a strong
interest in ensuring that cleanup
actions that derive a benefit from
CERCLA section 107(a)(4)(B) — a
statute under the charge of EPA —
are performed in an
environmentally sound manner;
thus, it is appropriate to provide a
standard or measure of consistency
with the NCP.

National Oil and Hazardous Substance Contingency Plan, 55
Fed. Reg. 8666, 8792-93, 8794 (March 8, 1990).

66
concerns in amending CERCLA to encourage settlement. But
the import of Congress’ scheme (an express desire to oversee
cleanups via settlements and other enforcement actions, the
explicit promise of contribution as an incentive for PRPs to
enter negotiated cleanup agreements, and the desire for quality-
control standards for safe, effective, and reliable cleanups) is
consistent with the EPA’s wariness of wholly voluntary and
unregulated cleanups. As the attorneys who prevailed in Cooper
Industries argue in a recent article,

[a]ny suggestion that section 107(a)
offers some other federal recourse
to PRPs seeking a contribution
remedy under CERCLA is . . .
undermined by the settlement
scheme that Congress devised with
its enactment of section 113’s
contribution provision.
Specifically, under the SARA
amendments, those who settle their
cleanup claims with federal or state
authorities receive an explicit right
of contribution against other PRPs
under section 113(f)(3)(B), as well
as statutory protection under
section 113(f)(2) from possible
future contribution actions by other
responsible parties.

67
 Protecting the integrity of
th is le g isla tive sch e m e to
incentivize settlements was a key
factor for the federal circuit courts
in universally determining that
parties responsible for the site
contamination may not assert
section 107(a) actions seeking to
recover their cleanup costs from
other responsible parties, but must
instead . . . seek contribution under
section 113(f)(1).

William Bradford Reynolds & Lisa K. Hsiao, The Right of
Contribution Under CERCLA After Cooper Industries v. Aviall
Services, 18 Tul. Envtl. L.J. 339, 349-50 (2005) (footnotes
omitted) (citing, inter alia, Reading, 115 F.3d at 1119); see also
id. at 353 (contending that CERCLA’s purpose was never to
“encourag[e] wholly unsupervised private remediation
activities,” but rather to “facilitat[e] government-sponsored
cleanups”).

To be sure, other courts have concluded that because
CERCLA’s general goal was to assure prompt and effective
cleanups, and sua sponte cleanups by PRPs may be prompt and
effective, those PRPs must be able to seek contribution. See,
e.g., Atlantic Research Corp. v. United States, __ F.3d __, 2006
WL 2321185, at *7-9 (8th Cir. Aug. 10, 2006); Consol. Edison,

68
423 F.3d at 99-100; City of Bangor v. Citizens Commc’ns Co.,
__ F. Supp. 2d __, 2006 WL 1868332, at *41 (D. Me. June 27,
2006) (citing Consol. Edison, 423 F.3d at 100); Viacom, Inc. v.
United States, 404 F. Supp. 2d 3, 8 (D.D.C. 2005). We believe,
however, that a thorough review of CERCLA, as amended by
SARA, does not support this conclusion. Congress intended to
allow contribution for settling or sued PRPs as a way to
encourage them to admit their liability, settle with the
Government, and begin expeditious cleanup operations pursuant
to a consent decree or other agreement. Our precedents
recognize this “elaborate settlement scheme,” see Reading, 115
F.3d at 1117, and if we were to revisit them now, we would risk
upsetting Congress’ carefully chosen remedy.31 In any event,

31
DuPont makes the interesting argument that Congress’
scheme effectively allows the federal Government to avoid
liability in contribution for its actions as a PRP. It contends that
the EPA is generally prohibited from pursuing CERCLA actions
against other federal agencies, and thus “the government’s
liability under CERCLA will almost invariably be in
contribution.” Appellants’ Br. at 41-42 (citing Exec. Order No.
12,580, 52 Fed. Reg. 2923 (Jan. 23, 1987)). If private PRPs
may only seek contribution from the United States (as a PRP) if
there is a preexisting action under § 106 or § 107 or settlement
under § 113(f)(3)(B), DuPont argues, the Government could use
its “many options for exercising its enforcement discretion to
avoid governmental liability under CERCLA.” Id. at 42. As
noted in footnote 18 above, the Eighth Circuit accepted this
argument recently in Atlantic Research, 2006 WL 2321185, at

69
the legislative history of CERCLA, when read in conjunction
with that of SARA, simply does not show that our precedents
are at odds with Congress’ intent.32

*8.
DuPont does not, however, provide evidence that the
EPA actually uses its enforcement discretion to avoid subjecting
other federal agencies to potential liability in a later contribution
suit (nor did the Eighth Circuit cite such evidence in its
decision). Indeed, it would in many cases be difficult for the
EPA to do so because, under principles of joint and several
liability, the initial suit or settlement does not involve other
tortfeasors, who are identified and deemed liable in later
proceedings. Also, the federal Government has little or no
control over suits by innocent landowners or state enforcement
actions, both of which would serve as a predicate for § 113(f)(1)
contribution.
32
Nor do we have cause to reconsider New Castle County’s
holding that cost recovery under § 107 is only available to
innocent parties. In Consolidated Edison, the Second Circuit
found “no basis for reading into [§ 107] a distinction between
so-called ‘innocent’ parties and [PRPs],” and suggested in a
footnote that the concern expressed in New Castle County (that
it would be illogical to allow a PRP to recover all of its costs on
the same basis as an entirely blameless party) was “misplaced,”
because “there appears to be no bar precluding a person sued
under section 107(a) from bringing a counterclaim under section
113(f)(1) for offsetting contribution against the plaintiff
volunteer who, if sued, would be liable under section 107(a).”

70
423 F.3d at 99-100 & n.9. We make three observations.
First, the Second Circuit declined explicitly to consider
“whether a three-judge panel of this court may depart from
Bedford Affiliates’s section 107(a) holding” because it deemed
Bedford Affiliates factually distinguishable. Consol. Edison,
423 F.3d at 100-01 & n.12. But it is hard to see how the later
panel could simply assert there is “no basis” for limiting § 107
cost recovery suits to innocent parties when Bedford Affiliates
(like our decision in New Castle County) plainly held the
opposite. See Bedford Affiliates, 156 F.3d at 424 (“[O]ne
potentially responsible person can never recover 100 percent of
the response costs from others similarly situated since it is a
joint tortfeasor — and not an innocent party — that ultimately
must bear its pro rata share of cleanup costs under § 107(a).
. . . Congress planned that an innocent party be able to sue for
full recovery of its costs [under § 107] while a party that is itself
liable may recover only those costs exceeding its pro rata share
of the entire cleanup expenditure, i.e., contribution under
§ 113(f)(1).”).
Second, the Second Circuit’s proposed procedure —
allowing a PRP “volunteer” to obtain full cost recovery, but then
subjecting it to a counterclaim by other PRPs for “offsetting
contribution” to avoid unjust enrichment — seems quite
unwieldy and is, in any event, not contemplated by CERCLA or
SARA.
Third, and perhaps most importantly, although another
Circuit’s views are entitled to due weight by our Court, they are
not “intervening authority” that would justify our
reconsideration of our precedents without en banc review.

71
 d. Public Policy Arguments

Of course, it could be that encouraging sua sponte
voluntary cleanups by capable PRPs is in the public’s interest,
and would be a better way to protect health and the environment
than pressuring them into settlement agreements. This is not
self-evident, however. As Judge Sand recently observed,
limiting contribution rights to settling or sued PRPs

would pressure PRPs to settle with
some government regarding their
own liability for polluting a site, if
they wanted to obtain contribution
from others also responsible for
polluting that site. There is nothing
nec essa r ily irra tiona l a bout
requiring a PRP that voluntarily
goes to court to obtain cost

Indeed, we note that at least one other Circuit Court has agreed
with our interpretation of § 107(a) in a case decided after
Consolidated Edison. See Elementis Chromium L.P. v. Coastal
States Petrol. Co., 450 F.3d 607, 613 (5th Cir. 2006) (“[W]hen
one liable party sues another liable party under CERCLA, the
action is not a cost recovery action under § 107(a), and the
imposition of joint and several liability is inappropriate.”
(internal quotation marks omitted) (alteration in original)).

72
 reimbursement [through
contribution], as opposed to being
dragged into court by another party,
to either prove its ‘innocence’ . . .
or officially admit its ‘guilt’ (via a
settlement); such a forced choice
would be entirely consistent with
Congress’s intent.

Elementis Chems., Inc. v. TH Agric. & Nutrition, L.L.C., 373 F.
Supp. 2d 257, 272 (S.D.N.Y. 2005).

But we need not linger on this particular issue. The fact
that DuPont and the other appellants, if they are allowed
contribution for response costs voluntarily incurred, may be
capable of reaching a good result without the Government
oversight provided for in SARA, is not a reason to reconsider
our prior holdings that the statute precludes such causes of
action. And, in any event, the debate over whether our national
environmental cleanup laws should favor prompt and effective
cleanups in any manner (including sua sponte voluntary
cleanups by PRPs), or should favor settlements and other
enforcement actions to ensure that wrongdoers admit their fault
and fix the problem under the aegis of Government oversight, is
a matter for Congress, not our Court. See Texas Indus., Inc. v.
Radcliff Materials, Inc., 451 U.S. 630, 646 (1981) (“The policy
questions presented by petitioner’s claimed right to contribution
are far-reaching. In declining to provide a right to contribution,

73
we neither reject the validity of those arguments nor adopt the
views of those opposing contribution. Rather, we recognize
that, regardless of the merits of the conflicting arguments, this
is a matter for Congress, not the courts, to resolve.”). Congress
sets policy. We steer clear of such matters, as our function is to
interpret the statutes Congress enacts to reflect its policy
choices.

* * * * *

Having determined that New Castle County and Reading
control this case, and that neither the Supreme Court’s decision
in Cooper Industries nor the purpose of CERCLA (as amended
by SARA) provide cause to reexamine those precedents, we
must refuse DuPont’s invitation to imply a cause of action for
contribution under § 107 or the common law available to PRPs
engaged in sua sponte voluntary cleanups. We are aware, of
course, that other courts have held differently, but we do not
believe those decisions can be reconciled with SARA.

V. Judgment on the Pleadings

Because appellants cannot seek contribution for their
voluntary cleanup efforts (and, hence, the District Court’s
December 30, 2003 order, as amended on January 8, 2004, must
be affirmed), we proceed to consider whether the District Court
erred in granting the Government judgment on the pleadings
with respect to the remaining fourteen sites at issue in this

74
litigation. Our review of judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c) is “confined to the
allegations in the pleadings,” and we “must accept [the non-
movant’s] version of events as true.” Consol. Rail Corp. v.
Portlight, Inc., 188 F.3d 93, 98 (3d Cir. 1999). The motion
should be granted if “there is no material issue of fact to
resolve,” Mele v. Fed. Res. Bank of N.Y., 359 F.3d 251, 253 (3d
Cir. 2004) (internal quotation marks omitted), and neither we
nor the District Court may “consider matters extraneous to the
pleadings” in deciding whether there are material facts in
dispute. Id. at 256 n.5 (internal quotation marks omitted).

The District Court concluded that, although appellants
asserted they could introduce evidence that some of the other
sites were being cleaned up pursuant to EPA consent decrees
(and thus might qualify for § 113(f)(1) contribution), they never
did introduce that evidence, nor did they seek to amend their
complaint. Thus, based solely on the pleadings, the District
Court granted judgment to the Government because appellants’
complaint did not allege any facts that would suggest the
circumstances of the cleanups at other sites were different from
those at DuPont’s Louisville facility. DuPont argues that, since
discovery had not yet proceeded with respect to any of the other
sites, it was premature to conclude that the circumstances at
those sites were the same as in Louisville. This is not, however,
what the District Court concluded. Rather, it rightly noted that
appellants bore the burden of pleading facts sufficient to show
they could obtain § 113 contribution. Surely they did not need

75
discovery to determine whether cleanups at some of their sites
were pursuant to a suit, settlement, or consent decree.

A straightforward reading of appellants’ complaint
reveals no allegation that any site was cleaned up pursuant to
some kind of suit or settlement. The complaint merely describes
the Government’s alleged actions that contributed to
contamination at each site, without any reference to the current
cleanup operations. The only discussion of the cleanup
operations reveals that appellants “have undertaken, and are
undertaking, response actions with respect to the Facilities in
response to releases or threatened releases of hazardous
substances, and have incurred and are incurring necessary costs
of response consistent with the NCP.” Thus, based solely on the
pleadings, appellants have not set out facts sufficient to
demonstrate, even by inference, that they could possibly prevail
on their claim for contribution under § 113.33

33
After this appeal was filed, the Government learned that
in 2001 the EPA sued DuPont under § 107(a) regarding
contamination at the Necco Park facility in Niagara, New York.
See Gov’t Br. at 57 n.25. Thus, the Government recommends
that any dismissal of DuPont’s claim with respect to that site be
without prejudice. Since the EPA brought suit in 2001 (two-
and-a-half years before the District Court issued its final
judgment in this case), we are reluctant to allow DuPont a
second bite at this apple for the same reasons we believe its
claims with respect to the other facilities were properly

76
 VI. Conclusion

We are not, of course, unsympathetic to the policy
arguments made by appellants. Nothing in our decision,
however, forces them to sit on contaminated sites and wait to be
sued, endangering public health all the while. They can,
consistent with SARA, approach the EPA or a state
environmental agency and settle their liability, and then seek
contribution from others. If indeed they desire to be good
corporate citizens (which their sua sponte voluntary cleanups
suggest is the case), we have little doubt they will seek
settlement rather than wait to be sued. They are not, of course,
guaranteed terms in a settlement as favorable as those they
would enjoy if they cleaned up a contaminated site entirely on
their own, but this is an inescapable consequence of Congress’
plan. That plan, recognized and protected in our precedents,
was left untouched (and arguably strengthened) by Cooper
Industries, and we therefore have no cause to reconsider our
precedents here.

dismissed. The Government nonetheless is willing to subject
itself to a suit for contribution regarding the Necco Park facility.
In this context, and even though DuPont (surprisingly) did not
bring the suit to the District Court’s attention, we abide the
Government’s request. Insofar as the Necco Park facility is
concerned, the District Court’s March 1, 2004 order is converted
to a dismissal without prejudice.

77
 For these reasons, the District Court’s December 30,
2003 order (as amended on January 8, 2004) is affirmed. Its
March 1, 2004 order is also affirmed, with the caveat that the
District Court’s dismissal of the contribution claim regarding
DuPont’s Necco Park facility in Niagara, New York is
converted to a dismissal without prejudice.

78
SLOVITER, Circuit Judge, dissenting.

Judge Ambro has written a fine opinion in support of the
majority’s position that plaintiff DuPont does not have a right to
contribution from the United States for its voluntary cleanup of
a site that was polluted by the United States as well as by
DuPont. I reach a conclusion different from that reached by the
majority and write so that this view can be considered along
with that of the majority. Because Judge Ambro’s opinion fully
sets forth the legal background, I make every effort to avoid
repetition.

The majority concludes that DuPont cannot maintain this
action against the United States for contribution for cleanup
costs under CERCLA § 107 because of our decisions in New
Castle County v. Halliburton NUS Corp., 111 F.3d 1116 (3d Cir.
1997), and In re Reading Co., 115 F.3d 1111 (3d Cir. 1997).
Although this court adheres strictly to our precedents, we have
made clear that those precedents may be reevaluated when there
has been intervening authority. See George Harms Constr. Co.
v. Chao, 371 F.3d 156, 161 (3d Cir. 2004) (“We recognize that
we may reevaluate a precedent in light of intervening authority
even without en banc consideration.”); Reich v. D. M. Sabia
Co., 90 F.3d 854, 858 (3d Cir. 1996) (“Although a panel of this
court is bound by, and lacks authority to overrule, a published
decision of a prior panel . . . , a panel may reevaluate a precedent

79
in light of intervening authority[.]”).

Such reevaluation of precedent is appropriate here even
though, as the majority correctly notes, we must be particularly
cautious in revisiting cases involving questions of statutory
interpretation. Indeed, the Supreme Court has noted that in
certain circumstances courts may appropriately overrule
statutory precedents. It has explained that in “cases where
statutory precedents have been overruled, the primary reason for
the Court’s shift in position has been the intervening
development of the law, through either the growth of judicial
doctrine or further action taken by Congress. Where such
changes have removed or weakened the conceptual
underpinnings from the prior decision, or where the later law has
rendered the decision irreconcilable with competing legal
doctrines or policies, the Court has not hesitated to overrule an
earlier decision.” Patterson v. McLean Credit Union, 491 U.S.
164, 173 (1989) (citations omitted).

The Supreme Court’s decision in Cooper Industries, Inc.
v. Aviall Services, Inc., 543 U.S. 157 (2004), is such intervening
authority. It should impel us to reevaluate our precedent
because Cooper Industries weakens the conceptual
underpinnings of our decisions in Reading and New Castle

80
County. For that reason, and because our holdings in Reading
and New Castle County cannot be reconciled with the policies
Congress sought to encourage when it enacted CERCLA, I
believe this court can and should reconsider those opinions.

There is nothing in the relevant language of § 107 that
compels the result the majority reaches. Section 107 states that
various parties, including the owner or operator of a facility,
may be responsible for “any . . . necessary costs of response
incurred by any other person consistent with the national
contingency plan,” § 107(a)(4)(B), and provides a cause of
action to parties that incur cleanup costs but have not themselves
been sued under § 106 or § 107.34 For years after the 1980

34
In New Castle County, we stated only that innocent parties
may bring suit under § 107. Our imposition of the “innocent”
standard on parties seeking to bring suit under § 107 is not based
on the statutory text. Arguably, the “innocent” standard
imposed by this and other circuits violates fundamental rules of
statutory construction by imposing a requirement not evident on
the statute’s face. This court-created standard ignores the fact
that § 107(a)(4)(B) plainly allows a private party plaintiff to be
“any other person” besides the government, state, and Indian
tribes and does not expressly exclude parties that may be
responsible for a spill. Moreover, courts that adopt this standard
narrowly interpret § 107 and ignore that CERCLA is a remedial
statute, which courts are to construe liberally in order to achieve

81
enactment of CERCLA, district courts almost unanimously
found that § 107 contained an implied cause of action for
contribution. See, e.g., United States v. New Castle County, 642
F. Supp. 1258, 1265-69 (D. Del. 1986) (holding that
contribution right arises under federal common law); Colorado
v. ASARCO, Inc., 608 F. Supp. 1489-91 (D. Colo. 1985)
(same); Wehner v. Syntex Agribusiness, Inc., 616 F. Supp. 27,
31 (E.D. Mo. 1985) (holding that contribution right is implied
from language of § 107(e)(2)). With the enactment of § 113, the
courts turned to that section rather than to § 107 to provide the
cause of action.

In New Castle County, this court stated that § 113
provided a “potentially responsible person[] with the appropriate
vehicle” to “recoup that portion of its expenditures which
exceeds its fair share of the overall liability.” 111 F.3d at 1122.
We further held that “a section 107 action brought for recovery
of costs may be brought only by innocent parties that have
undertaken clean-ups.” Id. at 1120. Similarly, in Reading, we
held that a potentially responsible party may not seek
contribution under § 107(a)(4)(B). In fact, we stated “§
113(f)(1) specifically permits an action for contribution to be
brought in the absence of civil action under section 107.” 115

its intended purposes – namely the prompt cleanup of hazardous
sites.

82
F.3d at 1120 (internal punctuation and quotation marks omitted).

The trend toward application of § 113 was halted by the
Supreme Court’s decision in Cooper Industries, where the Court
held that the plain language of § 113(f)(1) does not allow liable
parties to bring contribution actions unless and until a related
civil action is brought against them under either § 106 or § 107.
The Court reserved judgment on the question whether liable
parties who are not subject to an action under § 106 or § 107
may instead seek relief under § 107(a)(4)(B).

Cooper Industries clearly undermined our opinions in
Reading and New Castle County. In those cases, we assumed
that all potentially responsible parties — those whose
responsibility had been adjudicated and those who voluntarily
admitted their responsibility — fell into the same category of
“potentially responsible parties” who could recoup losses by
bringing suit pursuant to § 113(f). The Supreme Court’s
decision in Cooper Industries established that our understanding
of the category “potentially responsible parties” was incorrect.
Cooper Industries holds that a party who has in fact been held
responsible (via adjudication or settlement with the EPA) may
bring an action under § 113(f), while a party who admits
responsibility but whose responsibility has not been established

83
may not. Cooper Industries highlights the fact that the term
“potentially responsible party” is “vague and imprecise because,
when no action has been filed nor fact-finding conducted, any
person is conceivably a responsible party under CERCLA.”
Consolidated Edison Co. of New York v. UGI Utilities, Inc.,
423 F.3d 90, 97 n.8 (2d Cir. 2005), petition for cert. filed, 74
U.S.L.W. 3600 (U.S. Apr. 14, 2006) (No. 05-1323).35

In addition, Reading and New Castle County are clearly
factually distinguishable from the situation before us. In New
Castle County, plaintiffs already had been sued by the
Government and then brought an action against other potentially
responsible parties to recover response costs under §

35
The majority holds that our erroneous observation in
Reading that Ҥ 113(f)(1) specifically permits an action for
contribution to be brought ‘in the absence of a civil action under
. . . section [107],’” 115 F.3d at 1120, does not fatally
undermine Reading’s holding. I respectfully disagree. Cooper
Industries clearly establishes that § 113(f) did not, as we stated,
“replace[] the judicially created cause of action under §
107(a)(4)(B) to the extent that a party seeks contribution.”
Reading, 115 F.3d at 1120. That judicially created cause of
action was available to parties that had not been sued under §
106 or § 107. Our broad reading of § 113(f) in Reading is
fundamentally at odds with the Supreme Court’s understanding
of § 113(f) in Cooper Industries.

84
107(a)(4)(B). This court held that plaintiffs could not assert a
cause of action under § 107 and restricted them to making a
claim for contribution under § 113(f). See 111 F.3d at 1116.
Similarly, in Reading, the plaintiff had already been sued under
§ 107. See 115 F.3d at 1116. In the instant case, DuPont has
not been ordered to undertake remedial action. Rather, it
voluntarily cleaned up numerous hazardous sights. Any
statements this court made regarding the ability of parties
against whom § 106 or § 107 actions had not been brought to
sue under § 107 or § 113 were not necessary to answer the
questions presented by those cases and need not govern our
analysis in this case.

Two of our sister circuits have recently considered the
same issue presented here and both have decided, contrary to the
majority, that section 107(a) can be used by a responsible party
to seek contribution from another responsible party. In
Consolidated Edison, the Court of Appeals for the Second
Circuit unanimously held,

We believe . . . that Con Ed may pursue its
suit under section 107(a) because, in light of
Cooper Industries, Con Ed’s costs to clean up the
sites of the Westchester Plants are “costs of

85
 response” within the meaning of that section.

423 F.3d at 97.

The Second Circuit, like this court, had held, before the
Cooper Industries decision, that CERCLA section 113(f)
governs contribution actions and that the plaintiff could not
pursue a section 107(a) cost recovery claim against the
defendants. Bedford Affiliates v. Sills, 156 F.3d 416 (2d Cir.
1998). The Supreme Court’s decision in Cooper Industries
convinced the Second Circuit to change its view. As the court
explained in Consolidated Edison:

[The Cooper Industries] decision impels us to
conclude that it no longer makes sense to view
section 113(f)(1) as the means by which section
107(a) cost recovery remedy is effected by parties
that would themselves be liable if sued under
section 107(a).

86
423 F.3d at 99. The court further stated that it “would be
impermissibly discouraging voluntary cleanup were we to read
section 107(a) to preclude parties that, if sued, would be held
liable under section 107(a) from recovering necessary response
costs.” Id. at 100.

The court thus concluded, “that section 107 permits a
party that has not been sued or made to participate in an
administrative proceeding, but that if sued, would be held liable
under section 107(a), to recover necessary response costs
incurred voluntarily, not under a court or administrative order or
judgment.” Id.

Just this month, the Court of Appeals for the Eighth
Circuit, again unanimously, reached a similar conclusion. In
Atlantic Research Corp. v. United States, the court held that:
“[A] private party which voluntarily undertakes a cleanup for
which it may be held liable, thus barring it from contribution
under CERCLA’s § 113, may pursue an action for direct
recovery or contribution under § 107, against another liable
party.” No. 05-3152, 2006 WL 2321185, at *9 (8th Cir. 2006).

87
 Atlantic Research, the plaintiff in the Eighth Circuit
decision, was in a position almost identical to that of DuPont
here in that it sought to recover contribution for cleanup from
the United States for cleanup services it performed at a facility
where it retrofitted rocket monitors for the United States. The
court, like the Second Circuit in Bedford Affiliates, had held in
Dico Inc. v. Amoco Oil Co., 340 F.3d 525, 531 (8th Cir. 2003),
that a liable party could not bring an action under section 107.
The Eighth Circuit, like the Second Circuit, reconsidered that
earlier holding in light of the decision in Cooper Industries and
did an about face. I believe that this court’s earlier decisions in
New Castle County and In re Reading Co. are similarly
superseded by the decision in Cooper Industries.

Both the Second and the Eighth Circuits’s decisions cited
the Supreme Court’s decision in Key Tronic Corp. v. United
States, 511 U.S. 809 (1994). In that case, which concerned
attorney’s fees under CERCLA, the Supreme Court recognized
that a potentially responsible party could seek recovery of
response costs under § 107, but the Justices differed as to
whether there was an express or implied cause of action. Justice
Ginsburg, in her dissent in Cooper Industries, stated that every
Member of the Court in Key Tronic agreed that a potentially
responsible party which incurred necessary costs could recover
those costs from another liable party in an action under § 107(a).
Cooper Industries, 543 U.S. at 172. Significantly, the plaintiff

88
in Key Tronic was a party responsible for polluting and was still
permitted to bring suit under § 107. As the Court of Appeals for
the Second Circuit recently stated, Cooper Industries and the
text of § 107 clearly “impel[] us to conclude that it no longer
makes sense to view section 113(f)(1) as the means by which the
section 107(a) cost recovery remedy is effected by parties that
would themselves be liable if sued under section 107(a).”
Consolidated Edison, 423 F.3d at 99. Rather, § 107(a) and §
113(f)(1) embody mechanisms for cost recovery available to
persons in different procedural postures. Id.

Contrary to the majority, I believe that permitting parties
who voluntarily incur cleanup costs to bring suit under § 107
comports with the fundamental purposes of CERCLA. As this
court noted in Horsehead Industries, Inc. v. Paramount
Communications, Inc., 258 F.3d 132 (3d Cir. 2001):

The purpose of CERCLA is “to assure that the
current and future costs associated with hazardous
waste facilities, including post-closure costs, will
be adequately financed and, to the greatest extent
possible, borne by the owners and operators of
such facilities.”

89
Id. at 135 (quoting 42 U.S.C. § 9607(k)(6)(E)); see OHM
Remediation Services v. Evans Cooperage Co., 116 F.3d 1574
(5th Cir.1997) (noting CERCLA’s broad, remedial purpose to
facilitate prompt cleanup of hazardous waste sites and to shift
costs of environmental response from taxpayers to parties who
benefitted from wastes that caused harm); see also In re Tutu
Water Wells CERCLA Litig., 326 F.3d 201, 206 (3d Cir. 2003)
(stating that CERCLA’s purpose is “making those responsible
for problems caused by the disposal of chemical poisons bear
the costs and responsibility for remedying the harmful
conditions they created”) (citation and quotation marks omitted).

Voluntary cleanups are vital to fulfilling CERCLA’s
purpose. During deliberations on the SARA Amendments,
Congress emphasized the importance of voluntary action, stating
that “[v]oluntary cleanups are essential to a successful program
for clean up of the Nation’s hazardous substance pollution
problem.” H.R. Rep. No. 99-253, pt. 5, at 58 (1985); see also
131 Cong. Rec. 24725, 24730 (1985) (statement of Sen.
Domenici) (“The goal of CERCLA is to achieve effective and
expedited cleanup of as many uncontrolled hazardous waste
facilities as possible. One important component of the realistic
strategy must be the encouragement of voluntary cleanup actions
or funding without having the President relying on the panoply
of administrative and judicial tools available.”).

90
 The majority reads the legislative history of SARA as
strongly indicating that Congress did not mean to encourage
unsupervised voluntary cleanups, but rather cleanups within the
bounds of settlement agreements. See Maj. Op. at IV.B.2(b).
The majority notes that the EPA expressed serious doubts about
the efficacy of voluntary cleanups by parties.36 See Maj. Op. at
IV.B.2(c). These assertions, part of a long and fractious
legislative history, are not dispositive. Though supervised
cleanups are to be encouraged wherever possible, they need not
be encouraged at the expense of unsupervised cleanups. Section
107(a)(4)(B) holds a party liable for costs incurred in a cleanup
(voluntary or otherwise) only insofar as those costs are “costs of
response incurred by any other person consistent with the
national contingency plan.” 42 U.S.C. 9607(a)(4)(B). A party
that seeks contribution for costs incurred in a cleanup that does
not comport with the national contingency plan is without

36
The EPA’s approach to voluntary cleanups has varied. The
majority argues that the EPA was wary of such cleanups prior to
the enactment of SARA. However, the EPA has also expressed
concern that the position advocated by the United States and
adopted by the Supreme Court in Cooper Industries could
undermine EPA’s voluntary cleanup program by removing an
incentive for liable parties to voluntarily clean up contaminated
sites because it would make it more difficult to seek
reimbursements. See Ruling on Superfund Costs May Boost
Push for Supreme Court Review, INSIDE THE EPA, Jan. 9, 2004,
sec. 2, available at 2004 WLNR 70249.

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recourse.37

The position urged by DuPont here is an alternative and
equally effective, albeit voluntary, method of assuring cleanup
in compliance with CERCLA. See Kotrous v. Goss-Jewett Co.
of N. Cal., No. Civ. S02-1520, 2005 WL 1417152, at *3 (E.D.
Cal. June 16, 2005) (holding that a potentially responsible party
may maintain a claim for contribution under § 107(a)); Metro.
Water Reclamation Dist. v. Lake River Corp., 365 F. Supp. 2d
913, 918 (N.D. Ill. 2005) (explaining that “although PRP’s are
not explicitly named in § 107(a), there seems to be no reason
why they would be excluded from the provision that allows
recovery for any person”); Vine St. LLC v. Keeling, 362 F.
Supp. 2d 754, 761-64 (D. Tex. 2005) (holding that potentially
responsible party could bring claim under § 107(a)); cf. Atl.
Research Corp. v. United States, No. 02-CV-1199, 2005 U.S.
Dist. LEXIS 20484, at *10 (W.D. Ark. June 1, 2005)
(suggesting the Eighth Circuit revisit its precedents after noting
“that the result . . . is patently unfair to ARC, because it has
voluntarily cleaned up environmental contamination, yet it is left
without a CERCLA remedy against the United States, another
PRP”).

37
By the plain text of the statute, parties that fail to meet the
national contingency plan standards cannot be reimbursed for
such activities.

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 As the majority itself notes, SARA was “not intended to
preclude responsible parties from taking voluntary response
actions outside a consent agreement.” Maj. Op. at IV.B.2(c). I
am concerned that the effect of the majority’s opinion will be
that parties will be reluctant to engage in voluntary cleanups for
fear that they may not be able to obtain contribution. Spills that
could be most efficaciously dealt with if cleaned up immediately
will remain untouched while parties attempt to settle with the
Government. This result is contrary to the purpose of CERCLA.
Therefore, I respectfully dissent.

93