As the undisputed facts found by the district court show, in order to secure the supply of petroleum products needed to fight and win World War II, the U.S. Government exercised dictatorial control over the country’s oil refineries.

A review of this unique historical context of World War II generally and the respective roles of the U.S. Government and the petroleum industry during that period specifically will make plain the egregious consequences of decision below’s artificial restriction of CERCLA liability.

As the decision below recognized, the “rationing of steel and other construction materials delayed repairs meant to address corrosion and prevent unintended leaks, spills, and breaks.” Pet. App. 3a (internal quotation marks omitted).

It arrived at that incorrect conclusion by making three legal missteps: misapplying the Bestfoods standard, declining to assess the totality of the circumstances, and failing to analyze the facts through the lens of CERCLA’s primary directive to “make polluters pay.” Agere Sys., 602 F.3d at 228.

After all, as this Court has made clear, CERCLA operator liability means “something more than mere mechanical activation of pumps and valves, and must be read to contemplate ‘operation’ as including the exercise of direction over the facility’s activities.” Bestfoods, 524 U.S. at 71.

] HEREBY CERTIFY that on January 26, 2024, three (3) copies of the BRIEF OF AMICI CURIAE AMERICAN

1115 H Street, N.E.

fe 4 we ZF gian & @ 7s Bull, Woe ck:

District of Columbia aa eo 283 Eon oS ya, Mes we My commission expires September30, 2027.

Supreme Court of the Anited States

On Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit

As required by Supreme Court Rule 33.1(h), I certify that the document contains 5,678 words, excluding the parts of the document that are exempted by Supreme Court Rule 33.1(d).

I declare underpenalty of perjury that the foregoing is true and correct.

Sworn to and subscribed before me this 26th day of January 2024.

Honorable Scott S. Harris Clerk Supreme Court of the United States Washington, D.C. 20543 Re: MRP Properties Company, LLC, et al. v. United States S.Ct.

No. 23-687 Dear Mr. Harris: The petition for a writ of certiorari in the above-captioned case was filed on December 22, 2023, and placed on the docket on December 27, 2023.

The government’s response is due on January 26, 2024.

We respectfully request, under Rule 30.4 of the rules of this Court, an extension of time to and including February 26, 2024, within which to file the government’s response.

This extension is requested to complete preparation of the government’s response, which was delayed because of the heavy press of earlier assigned cases to the attorneys handling this matter.

required by Supreme Court Rule 33.1(h), As I certify that the document contains 8,371 words, excluding the parts of the document that are exempted by Supreme Court Rule 33.1(d).

I declare under penalty of perjury that the foregoing is true and correct.

Executed on this 22nd day of December, 2023.

Loree Chow Sworn to and subscribed before me this 22nd day of December, 2023.

Mariana Braylovskiy Notary Public State of New York No. 01BR6004935 Qualified in Richmond County Commission Expires March 30, 2026 #326291

CERCLA also provides a narrow set of defenses to § 107(a), none of which the parties have raised yet.

I, Loree Chow, being duly sworn according to law and being over the age of 18, upon my oath depose and say that:

by sending three copies of same, addressed to each individual respectively, and enclosed in a properly addressed wrapper, through the United States Postal Service, by Express Mail, postage prepaid.

That on the same date as above, I sent to this Court forty copies of the within Petition for a Writ of Certiorari and a three hundred dollar filing fee check through the United States Postal Service by Express Mail, postage prepaid.

Loree Chow Sworn to and subscribed before me this 22nd day of December, 2023.

Notary Public State of New York No. 01BR6004935 Qualified in Richmond County Commission Expires March 30, 2026 #326291

To ensure adequate supply of petro- leum products during World War II, the United States government controlled every aspect of Applicants’ operations at these refineries through coercive and mandatory commands.

Under CERCLA, Ap- plicants may recover a fair share of clean-up costs from another “operator” of the re- fineries, including the United States.

Com- pare FMC Corp. v. U.S. Dep’t of Com., 29 F.3d 833, 843 (3d Cir. 1994) (holding that the federal government was an operator because it “determined what product the facility would manufacture, controlled the supply and price of the facility’s raw ma- terials, … supplied equipment,” had authority over employees, and controlled “the price of the facility’s product” and “who could purchase the product”), with MRP Prop- erties Co., LLC v. United States, 72 F.4th 166, 173 (6th Cir. 2023) (rejecting the argu- ment that the government was an operator even though it “told refineries what to produce and ... , to produce those items, refineries altered their operations in ways that increased waste production”).

A 59-day extension would give counsel sufficient opportunity to review the record, analyze the issues presented, and prepare the petition for filing.

Applicants respectfully request that an order be entered extending the time to file a petition for a writ of certiorari up to and including Friday, December 22, 2023.

No. _____ In the Supreme Court of the United States

Jennifer C. Barks, KELLEY DRYE & WARREN LLP, Houston, Texas, Jill M. Wheaton, DYKEMA GOSSETT PLLC, Ann Arbor, Michigan, for Appellees.

Compounding this last problem, government rationing of steel and other construction materials delayed repairs meant to address corrosion and prevent “unintended leaks, spills, and breaks.” Id. at 50.

“Although the government had regulatory authority over the [petroleum] industry,” it did not thereby “‘manage, direct, or conduct ... operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations.’” Id. (quoting Bestfoods, 524 U.S. at 61).

That reality does not turn end-users into “operators.” PPG, 957 F.3d at 405 (holding that “a [g]overment directive to increase output during a time of war” did not make the government an operator, even when manufacturer responded by altering production processes).

In a similar vein, Valero observes that the wartime government rationed steel and other necessary capital goods, leading to deferred maintenance and increases in leakage.