The Supreme Court/The Supreme Court.iso/mac/ascii/1993/93_376/93_376.zo

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NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
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SUPREME COURT OF THE UNITED STATES
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No. 93-376
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KEY TRONIC CORPORATION, PETITIONER v.
UNITED STATES et al.
on writ of certiorari to the united states court
of appeals for the ninth circuit
[June 6, 1994]

  Justice Stevens delivered the opinion of the Court.
  Petitioner Key Tronic Corporation, one of several par-
ties responsible for contaminating a landfill, brought this
action to recover a share of its cleanup costs from other
responsible parties.  The question presented is whether
attorney's fees are -necessary costs of response- within
the meaning of 107(a)(4)(B) of the Comprehensive Envi-
ronmental Response, Compensation, and Liability Act of
1980 (CERCLA), as amended by the Superfund Amend-
ments and Reauthorization Act of 1986 (SARA), 100
Stat. 1613, and therefore recoverable in such an action.

                            I
  During the 1970's Key Tronic and other parties, in-
cluding the United States Air Force, disposed of liquid
chemicals at the Colbert Landfill in eastern Washington
State.  In 1980 the Washington Department of Ecology
(WDOE) determined that the water supply in the sur-
rounding area had been contaminated by these chemi-
cals.  Various lawsuits ensued, including formal proceed-
ings against Key Tronic, the Air Force, and other
parties.
  Two of those proceedings were settled.  In one settle-
ment with WDOE and the Environmental Protection
Agency (EPA), Key Tronic agreed to contribute $4.2 mil-
lion to an EPA cleanup fund.  In the other, the Air
Force agreed to pay the EPA $1.45 million.  The EPA
subsequently released the Air Force from further lia-
bility pursuant to CERCLA 122(g)(5), 42 U. S. C.
9622(g)(5), which provides that a party that has re-
solved its liability to the United States shall not be lia-
ble for contribution claims regarding matters addressed
in the settlement.
  Key Tronic thereafter brought this action against the
United States and other parties seeking to recover part
of its $4.2 million commitment to the EPA in a contribu-
tion claim under CERCLA 113(f), 42 U. S. C. 9613(f),
and seeking an additional $1.2 million for response costs
that it incurred before the settlements in a cost recovery
claim under CERCLA 107(a)(4)(B), 42 U. S. C.
9607(a)(4)(B).  The $1.2 million included attorney's fees
for three types of legal services: (1) the identification of
other potentially responsible parties (PRP's), including
the Air Force, that were liable for the cleanup; (2) prep-
aration and negotiation of its agreement with the EPA;
and (3) the prosecution of this litigation.
  The District Court dismissed Key Tronic's $4.2 million
contribution claim against the Air Force when Key
Tronic conceded that 122(g)(5) precluded it from recov-
ering any part of the consent decree obligation.  Key
Tronic's claim for $1.2 million of additional response
costs could be pursued under CERCLA 107(a)(4)(B), 42
U. S. C. 9607, the court held, because it related to mat-
ters not covered by the Air Force's settlement with the
EPA.  766 F. Supp. 865, 868 (ED Wash. 1991).  Section
107(a) provides that responsible parties are liable for
-any . . . necessary costs of response incurred by any
other person consistent with the national contingency
plan.-  42 U. S. C. 9607(a)(4)(B).  CERCLA's defini-
tional section 101(25), as amended by SARA, provides
that -response- or -respond- -means remove, removal,
remedy, and remedial action- and that -all such terms
(including the terms `removal' and `remedial action')
include enforcement activities related thereto.-  42
U. S. C. 9601(25).  Construing 107 and 101(25) -lib-
erally to achieve the overall objectives of the statute,-
766 F. 2d, at 872, the District Court concluded that a
private party may incur enforcement costs and that such
costs include attorney's fees for bringing a cost recovery
action under 107.  Id., at 871.  The court went on to
decide that attorney's fees encompassed within Key
Tronic's PRP search costs also were recoverable as an
enforcement activity under CERCLA, id., at 872, and
that the costs Key Tronic's attorneys incurred in nego-
tiating the agreement with the EPA were recoverable as
necessary response costs under 107.
  The Court of Appeals reversed.  984 F. 2d 1025, 1028
(CA9 1993).  Relying on its decision in Stanton Road
Associates v. Lohrey Enterprises, 984 F. 2d 1015 (CA9
1993), which prohibited a litigant in a private response
cost recovery action from obtaining attorney's fees from
a party responsible for the pollution, the court held that
the District Court lacked authority to award attorney's
fees in this case.  984 F. 2d, at 1027.  The court con-
cluded that Stanton Road likewise precluded an award
of attorney's fees for Key Tronic's search for other re-
sponsible parties and for negotiating the consent decree.
-Because Congress has not explicitly authorized private
litigants to recover their legal expenses incurred in a
private cost recovery action,- the District Court's award
of attorney's fees could not stand.  984 F. 2d, at 1028.
Judge Canby dissented, reasoning that Congress' 1986
amendment of the definition of -response- meant to au-
thorize the recovery of attorney's fees even in private
litigants' cost recovery actions.  Ibid.
  Other courts addressing this question have differed
over the extent to which attorney's fees are a necessary
cost of response under CERCLA.  See General Electric
Co. v. Litton Industrial Automation Systems, Inc., 920
F. 2d 1415 (CA8 1990) (fees recoverable); Donahey v.
Bogle, 987 F. 2d 1250, 1256 (CA6 1993) (same); Juniper
Development Group v. Kahn, 993 F. 2d 915, 933 (CA1
1993) (litigation fees not recoverable); FMC Corp. v. Aero
Industries, Inc., 998 F. 2d 842 (CA10 1993) (only non-
litigation fees may be recoverable).  We granted certio-
rari to resolve the conflict.  510 U. S. ___ (1993).

                           II
  As its name implies, CERCLA is a comprehensive stat-
ute that grants the President broad power to command
government agencies and private parties to clean up
hazardous waste sites.  Sections 104 and 106 provide
the framework for federal abatement and enforcement
actions that the President, the EPA as his delegated
agent, or the Attorney General initiates.  42 U. S. C.
9604, 9606.  These actions typically require private
parties to incur substantial costs in removing hazardous
wastes and responding to hazardous conditions.  Section
107 sets forth the scope of the liabilities that may be
imposed on private parties and the defenses that they
may assert.  42 U. S. C. 9607.
  Our cases establish that attorney's fees generally are
not a recoverable cost of litigation -absent explicit con-
gressional authorization.-  Runyon v. McCrary, 427 U. S.
160, 185 (1976) (citing Alyeska Pipeline Service Co. v.
Wilderness Society, 421 U. S. 240, 247 (1975)).  Recogni-
tion of the availability of attorney's fees therefore re-
quires a determination that -Congress intended to set
aside this longstanding American rule of law.-  Runyon,
427 U. S., at 185-186.  Neither CERCLA 107, the lia-
bilities and defenses provision, nor 113, which author-
izes contribution claims, expressly mentions the recovery
of attorney's fees.  The absence of specific reference to
attorney's fees is not dispositive if the statute otherwise
evinces an intent to provide for such fees.  The Eighth
Circuit, for example, found -a sufficient degree of ex-
plicitness- in CERCLA's references to -necessary costs of
response- and -enforcement activities- to warrant the
award of attorney's fees and expenses.  Mere -general-
ized commands,- however, will not suffice to authorize
such fees.  Id., at 186.
  The three components of Key Tronic's claim for attor-
ney's fees raise somewhat different issues.  We first con-
sider whether the fees for prosecuting this action against
the Air Force are recoverable under CERCLA.  That de-
pends, again, upon whether the -enforcement activities-
included in 101(25)'s definition of -response- encompass
a private party's action to recover cleanup costs from
other potentially responsible parties such that the at-
torney's fees associated with that action are then -nec-
essary costs of response- within 107(a)(4)(B).

                           III
  The 1986 SARA amendments to CERCLA are the gen-
esis of the term -enforcement activities-; we begin,
therefore, by considering the statutory basis for the
claim in the original CERCLA enactment and the SARA
amendments' effect on it.  In its original form CERCLA
contained no express provision authorizing a private
party that had incurred cleanup costs to seek contribu-
tion from other potentially responsible parties.  In nu-
merous cases, however, district courts interpreted the
statute-particularly the 107 provisions outlining the li-
abilities and defenses of persons against whom the Gov-
ernment may assert claims-to impliedly authorize such
a cause of action.
  The 1986 SARA amendments included a provision-
CERCLA 113(f)-that expressly created a cause of ac-
tion for contribution.  See 42 U. S. C. 9613(f).  Other
SARA provisions, moreover, appeared to endorse the ju-
dicial decisions recognizing a cause of action under 107
by presupposing that such an action existed.  An amend-
ment to 107 itself, for example, refers to -amounts re-
coverable in an action under this section.-  42 U. S. C.
9607(a)(4)(D).  The new contribution section also con-
tains a reference to a -civil action . . . under section
107(a).-  42 U. S. C. 9613(f)(1).  Thus the statute now
expressly authorizes a cause of action for contribution in
113 and impliedly authorizes a similar and somewhat
overlapping remedy in 107.
  As we have said, neither 107 nor 113 expressly calls
for the recovery of attorney's fees by the prevailing
party.  In contrast, two SARA amendments contain ex-
plicit authority for the award of attorney's fees.  A new
provision authorizing private citizens to bring suit to en-
force the statute, see 100 Stat. 1704-1705, expressly au-
thorizes the award of -reasonable attorney and expert
witness fees- to the prevailing party.  42 U. S. C.
9659(f).  And an amendment to the section authorizing
the Attorney General to bring abatement actions pro-
vides that a person erroneously ordered to pay response
costs may in some circumstances recover counsel fees
from the Government.  See 42 U. S. C. 9606(b)(2)(E).
Since its enactment CERCLA also has expressly author-
ized the recovery of fees in actions brought by employees
claiming discriminatory treatment based on their dis-
closure of statutory violations.  See 42 U. S. C. 9610(c)
(-aggregate amount of all costs and expenses (including
the attorney's fees)- is recoverable).
  Judicial decisions, rather than explicit statutory text,
also resolved an issue that arose frequently under the
original version of CERCLA-that is, whether the award
in a government enforcement action seeking to recover
cleanup costs could encompass its litigation expenses, in-
cluding attorney's fees.  Here, too, District Courts gen-
erally agreed that such fees were recoverable.  Con-
gress arguably endorsed these holdings, as well, in the
SARA amendment redefining the term -response- to in-
clude related -enforcement activities,- 100 Stat. 1615.
Key Tronic contends that a private action under 107 is
one of the enforcement activities covered by that defini-
tion and that fees should therefore be available in pri-
vate litigation as well as in government actions.
  For three reasons, we are unpersuaded.  First, al-
though 107 unquestionably provides a cause of action
for private parties to seek recovery of cleanup costs, that
cause of action is not explicitly set out in the text of the
statute.  To conclude that a provision that only im-
pliedly authorizes suit nonetheless provides for attorney's
fees with the clarity required by Alyeska would be un-
usual if not unprecedented.  Indeed, none of our cases
has authorized fee awards to prevailing parties in such
circumstances.
  Second, Congress included two express provisions for
fee awards in the SARA amendments without including
a similar provision in either 113, which expressly au-
thorizes contribution claims, or in 107, which impliedly
authorizes private parties to recover cleanup costs from
other PRP's.  These omissions strongly suggest a delib-
erate decision not to authorize such awards.
  Third, we believe it would stretch the plain terms of
the phrase -enforcement activities- too far to construe it
as encompassing the kind of private cost recovery action
at issue in this case.  Though we offer no comment on
the extent to which that phrase forms the basis for the
Government's recovery of attorney's fees through 107,
the term -enforcement activity- is not sufficiently explicit
to embody a private action under 107 to recover clean-
up costs.  Given our adherence to a general practice
of not awarding fees to a prevailing party absent explicit
statutory authority, Alyeska Pipeline Service Co. v. Wil-
derness Society, 421 U. S., at 262, we conclude that
CERCLA 107 does not provide for the award of private
litigants' attorney's fees associated with bringing a cost
recovery action.

                           IV
  The conclusion we reach with respect to litigation-
related fees does not signify that all payments that
happen to be made to a lawyer are unrecoverable ex-
penses under CERCLA.  On the contrary, some lawyers'
work that is closely tied to the actual cleanup may con-
stitute a necessary cost of response in and of itself
under the terms of 107(a)(4)(B).  The component of Key
Tronic's claim that covers the work performed in identi-
fying other potentially responsible parties falls in this
category.  Unlike the litigation services at issue in
Alyeska, these efforts might well be performed by en-
gineers, chemists, private investigators or other profes-
sionals who are not lawyers.  As the Tenth Circuit ob-
served, the American rule set out in Alyeska does not
govern such fees -because they are not incurred in pur-
suing litigation.-  FMC Corp. v. Aero Industries, Inc.,
998 F. 2d 842, 847 (1993).
  The District Court in this case recognized the role Key
Tronic's search for other responsible parties played in
uncovering the Air Force's disposal of wastes at the site
and in prompting the EPA to initiate its enforcement ac-
tion against the Air Force.  766 F. Supp., at 872, n. 4.
Tracking down other responsible solvent polluters in-
creases the probability that a cleanup will be effective
and get paid for.  Key Tronic is therefore quite right to
claim that such efforts significantly benefited the entire
cleanup effort and served a statutory purpose apart from
the reallocation of costs.  These kinds of activities are
recoverable costs of response clearly distinguishable from
litigation expenses.
  This reasoning does not extend, however, to the legal
services performed in connection with the negotiations
between Key Tronic and the EPA that culminated in the
consent decree.  Studies that Key Tronic's counsel pre-
pared or supervised during those negotiations may in-
deed have aided the EPA and may also have affected
the ultimate scope and form of the cleanup.  We never-
theless view such work as primarily protecting Key
Tronic's interests as a defendant in the proceedings that
established the extent of its liability.  As such, these
services do not constitute -necessary costs of response-
and are not recoverable under CERCLA.
  The judgment of the Court of Appeals is affirmed in
part and reversed in part, and the case is remanded for
further proceedings consistent with this opinion.

                                      It is so ordered.