When analyzing whether an entity is a facility 'operator' under CERCLA, should courts consider pollution-producing activities that the entity managed, directed, or conducted—or should courts instead limit this analysis to waste-disposal and related activities

QUESTION PRESENTED Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), an “owner” or “operator” of a “facility” at the time hazardous substances were disposed must pay to remediate environmental concerns. 42 U.S.C. § 9607(a)(1)-(2). The existence and apportionment of CERCLA liability often depends on whether a party is a facility “operator.” Id. In 1998, this Court held that to be a facility “operator,” an entity “must manage, direct, or conduct operations specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations.” United States v. Bestfoods, 524 U.S. 51, 6667 (1998). Despite that explanation, lower courts remain divided as to what types of activities can confer “operator” liability. The Third, Fifth, and Eighth Circuits consider both pollution-producing activities as well as wastedisposal and activities. In contrast, the Sixth Circuit and district courts across the nation consider only waste-disposal and activities—but not pollution-producing activities. The federal government has taken full advantage of this confusion—advancing conflicting positions as expedient. The question presented is, when analyzing whether an entity is a facility “operator” under CERCLA, should courts consider pollution-producing activities that the entity managed, directed, or conducted—or should courts instead limit this analysis to waste-disposal and activities. (i) ii RULE 29.6 DISCLOSURE STATEMENT Pursuant to Rule 29.6, Petitioners state as follows: Petitioner MRP Properties Company, LLC, is a wholly owned subsidiary of Valero Energy Corporation. Petitioner Valero Refining Company — Oklahoma is a wholly owned subsidiary of Valero Energy Corporation. Petitioner Valero Refining Company — Tennessee, LLC, is a wholly owned subsidiary of Valero Energy Corporation. Petitioner Premcor Refining Group Ine. is a wholly owned subsidiary of Valero Energy Corporation. Petitioner Valero Refining — Texas, L.P. is a wholly owned subsidiary of Valero Energy Corporation. Petitioner Ultramar Inc. is a wholly owned subsidiary of Valero Energy Corporation. Valero Energy Corporation is a publicly traded company (NYSE: VLO). It has no parent corporation, and The Vanguard Group, Inc. owns more than 10% of its stock.