United States v. Occidental Chem Corp. ( 1999 )


Menu:
  •                                                                                                                            Opinions of the United
    1999 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    12-28-1999
    United States v. Occidental Chem Corp.
    Precedential or Non-Precedential:
    Docket 99-3084
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999
    Recommended Citation
    "United States v. Occidental Chem Corp." (1999). 1999 Decisions. Paper 329.
    http://digitalcommons.law.villanova.edu/thirdcircuit_1999/329
    This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
    University School of Law Digital Repository. It has been accepted for inclusion in 1999 Decisions by an authorized administrator of Villanova
    University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
    Filed December 28, 1999
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    NO. 99-3084
    UNITED STATES OF AMERICA
    Appellant
    v.
    OCCIDENTAL CHEMICAL CORPORATION
    On Appeal From the United States District Court
    For the Middle District of Pennsylvania
    (D.C. Civil Action No. 98-cv-00686)
    District Judge: Honorable Malcolm Muir
    Argued July 27, 1999
    BEFORE: SCIRICA and STAPLETON, Circuit Judges,
    and SHAPIRO, District Judge*
    (Opinion Filed: December 28, 1999)
    David C. Shilton
    John T. Stahr (Argued)
    United States Department of Justice
    P.O. Box 23795
    L'Enfant Plaza Station
    Washington, D.C. 20026
    _________________________________________________________________
    * Honorable Norma L. Shapiro, United States District Judge for the
    Eastern District of Pennsylvania, sitting by designation.
    Ira M. Gottlieb
    United States Environmental
    Protection Agency
    1650 Arch Street
    Philadelphia, PA 19103
    Attorneys for Appellant
    Larry D. Silver (Argued)
    Duane, Morris & Heckscher
    4200 One Liberty Place
    Philadelphia, PA 19103-7396
    and
    Michael A. James
    Associate General Counsel
    Occidental Chemical Corporation
    5005 LBJ Freeway
    Dallas, TX 75244
    Attorneys for Appellee
    OPINION OF THE COURT
    STAPLETON, Circuit Judge:
    After settling with Ruetgers-Nease Chemical Company
    ("Ruetgers"), the EPA issued a "unilateral administrative
    order," pursuant to S 106 of the Comprehensive
    Environmental Response, Compensation, and Liability Act
    ("CERCLA"), 42 U.S.C. S 9606, requiring Occidental
    Chemical Corporation ("Occidental") to assist in the
    financing and implementation of remedial response actions
    at the Centre County Kepone Superfund site. The District
    Court granted Occidental's motion to dismiss, concluding
    that Ruetgers' commitment to clean up the site and
    reimburse the Superfund for past response costs precluded
    the EPA from obtaining any relief from Occidental. We will
    reverse the judgment of the District Court and remand the
    case for further proceedings.
    I.
    This case arises from the EPA's efforts to compel
    potentially responsible parties ("PRPs") under CERCLA to
    2
    conduct a cleanup at the Centre County Kepone Superfund
    Site in State College, Pennsylvania. Two PRPs are relevant
    to this appeal: Ruetgers, the site owner, whom EPA alleges
    is liable under S 107(a)(1) of CERCLA, and Occidental,
    whom EPA alleges is liable under S 107(a)(3) for "arranging
    for the disposal" of hazardous substances at the site. 42
    U.S.C. S 9607(a)(1) and (3).1 Since 1958, Ruetgers and its
    predecessor, Nease Chemical Company ("Nease"), have
    owned the Centre County Kepone site and have
    manufactured a variety of chemicals there. During a period
    in 1973 and 1974, Occidental's predecessor, Hooker
    Chemical Company ("Hooker"), contracted with Nease for
    the manufacture of a pesticide. Under their agreement,
    Hooker provided Nease with the raw materials and the
    formula for manufacturing the pesticide and paid Nease to
    manufacture the product, which involved the generation
    and disposal of hazardous substances on the site.
    In 1983, the Centre County Kepone site was listed on the
    National Priorities List, and in 1988, EPA entered into an
    administrative order with Ruetgers, who agreed to perform
    a remedial investigation/feasibility study, which was
    completed in 1992. In 1995, after dividing the remediation
    into two "operable units," EPA signed a "record of decision,"
    announcing the selected remedial action for thefirst
    operable unit ("OU-1").2
    _________________________________________________________________
    1. The "arranger" theory of liability wasfirst recognized in United States
    v. Aceto Agricultural Chemicals Corp., 
    872 F.2d 1373
     (8th Cir. 1989)
    (where A accepts a hazardous substance that is owned by B, and
    incorporates it into a commercial product for B's benefit and at B's
    direction, and hazardous substances are disposed of in the process, B
    has "arranged for the disposal of hazardous substances" under
    S 107(a)(3)). We considered the viability of the Aceto theory in FMC Corp.
    v. United States Dept. of Commerce, 
    29 F.3d 833
     (3d Cir. 1994) (en banc),
    but we neither accepted nor rejected it as a basis for liability. See id.
    at
    846 ("[t]he court is equally divided on this point"). The validity of the
    Aceto theory is not currently before us.
    2. "OU-1 consists of contaminated ground water, surface water, soils,
    and sediments on the Site, as well as soil/sediment sampling of the 15-
    acre former spray field area and riparian areas of nearby Spring Creek.
    OU-2 will address soils and sediments from the sprayfield, Spring
    Creek, and a second nearby creek." App. 12-13 (Complaint P 24).
    3
    Pursuant to S 122(e), 42 U.S.C. S 9622(e), EPA served
    both Ruetgers and Occidental with "special notice letters,"
    which set forth EPA's basis for their liability and invited a
    good faith offer of settlement. Following receipt of the letter,
    Ruetgers began negotiating with EPA regarding the
    remedial work for OU-1. In 1996, EPA entered into a
    Consent Decree with Ruetgers in which Ruetgers agreed to
    perform the remedial work for OU-1 and to pay $293,895 in
    past response costs in settlement of its liability with respect
    to OU-1.
    EPA's efforts to negotiate with Occidental, however, were
    unsuccessful. When negotiations with Occidental failed,
    EPA, finding that the Centre County Kepone Site presented
    an imminent and substantial endangerment, issued a
    unilateral administrative order ("UAO"), pursuant to S 106
    of CERCLA, 42 U.S.C. S 9606, requiring that Occidental
    jointly implement the OU-1 remedy with Ruetgers.
    Specifically, the Order stated that Occidental is subject "to
    the same terms and conditions set forth in the Ruetgers
    Consent Decree with respect to financing and implementing
    the response actions" at the Centre County Kepone site.
    App. 136. It further provided:
    [Occidental's] obligations under this Order may be
    fulfilled by jointly fulfilling with [Ruetgers] the
    obligations under the . . . proposed Consent Decree,
    Civil Action No. 4: CV-96-2128. To the extent that any
    portion of the Work is undertaken by [Ruetgers],
    [Occidental] is not excused from performing under the
    present Order and is severally liable for all obligations
    set forth herein and for ensuring that the Work be
    completed in a manner consistent with the NCP,
    CERCLA and all applicable federal, state and local
    laws.
    App. 151.
    Under S 106(a), if EPA finds an "imminent and
    substantial endangerment to the public health or welfare or
    the environment," it is authorized to "issue such orders as
    may be necessary to protect public health and welfare and
    the environment." 42 U.S.C. S 9606(a). If the ordered party
    fails to comply with the order "without sufficient cause,"
    4
    CERCLA provides for severe penalties -- i.e., up to $25,000
    per day of noncompliance, see id. S 106(b)(1), plus treble
    damages, see id. S 9607(c)(3). CERCLA provides, however,
    that, if the ordered party is not liable, or demonstrates that
    the ordered action was arbitrary and capricious, it may
    obtain reimbursement of costs expended in compliance with
    the order, plus interest. See id. SS 9606(b)(2)(A)-(E). In
    addition, under S 106(b)(1), an ordered party may avoid the
    imposition of fines or penalties if it has "sufficient cause"
    for its refusal to comply with the order.3
    In this case, Occidental informed EPA it would not
    comply with the S 106 order, and EPA filed this action in
    District Court to enforce its order. EPA's Complaint seeks
    (1) an injunction ordering Occidental to comply with the
    order; (2) certain past costs not recovered from Ruetgers; (3)
    civil penalties; (4) punitive damages; and (5) a declaratory
    judgment of liability for future costs incurred at the site.
    Occidental moved to dismiss the Complaint under
    Federal Rules of Civil Procedure 12(b)(6). Occidental argued
    that EPA has already obtained "complete relief" from the
    Ruetgers Consent Decree and, therefore, is precluded from
    pursuing Occidental for the same relief. To find otherwise,
    Occidental argues, would permit EPA to obtain a double
    recovery, which is impermissible both under CERCLA and
    common law. The District Court agreed and dismissed
    EPA's Complaint. The District Court then denied a
    subsequent motion for partial reconsideration. EPA now
    appeals. We exercise plenary review of a grant of a motion
    to dismiss, accepting all allegations in the Complaint as
    true and drawing all reasonable inferences in the light most
    favorable to the plaintiff. See Weiner v. Quaker Oats Co.,
    
    129 F.3d 310
    , 315 (3d Cir. 1997).
    II.
    CERCLA provides a complex statutory scheme for the
    cleanup of the nation's hazardous waste sites. Although
    EPA has several alternative strategies for achieving the
    _________________________________________________________________
    3. The issue of whether Occidental has sufficient cause not to comply
    with EPA's UAO is not currently before us.
    5
    statute's objective, each ultimately involves "forc[ing]
    polluters to pay for costs associated with remedying their
    pollution." United States v. Alcan Aluminum Corp., 
    964 F.2d 252
    , 257-58 (3d Cir. 1992). In FMC Corp. v. Dept. of
    Commerce, 
    29 F.3d 833
    , 843 (3d Cir. 1994), this Court
    noted "CERCLA's broad remedial purposes" and cited as
    "most important[ ]" CERCLA's "essential purpose of making
    those responsible for problems caused by the disposal of
    chemical poisons bear the costs and responsibility for
    remedying the harmful conditions they created."
    To this end, CERCLA provides EPA with a variety of tools
    for achieving the efficient and cost-effective cleanup of the
    nation's hazardous waste sites. First, under S 104(a) EPA
    itself can conduct the remedial work at a site, using the
    Superfund, and then sue the potentially responsible parties
    under S 107 to recover its costs. EPA may sue one or all of
    the PRPs involved at a given site, as each PRP is jointly and
    severally liable for all response costs that are"not
    inconsistent with the national contingency plan." 42 U.S.C.
    S 9607(a)(4)(A). Second, under S 106(a), if EPA determines
    there is an "imminent and substantial endangerment to the
    public health or welfare," it may order PRPs to undertake
    the remedial work in the first instance, either by obtaining
    injunctive relief in a District Court or by issuing such
    administrative orders "as may be necessary to protect
    public health and welfare and the environment." 42 U.S.C.
    S 9606(a).
    Finally, S 122 of CERCLA expressly provides that
    "whenever practicable and in the public interest . . . [EPA]
    shall act to facilitate agreements . . . in order to expedite
    effective remedial actions and minimize litigation." 42
    U.S.C. S 9622(a). It is through S 122 that PRPs may agree,
    as opposed to being ordered under S 106(a), to do the
    remedial work at a site in the first instance. While EPA has
    the discretion to decide which PRPs to pursue for
    performance of the remedy or recovery of its past costs, and
    thus is authorized to pursue fewer than all PRPs at a given
    site, the statute expressly permits PRPs to sue other liable
    parties for contribution. See 42 U.S.C.S 9613(f)(1).
    Some settlements between PRPs and EPA, like the
    Ruetgers Consent Decree, involve agreements to do work,
    6
    while others are "cash out" settlements in which a party
    pays a portion of the past, or future, response costs in
    exchange for a release from liability. See id. SS 9622(g), (h).
    In either case, settlements with the United States under
    CERCLA typically include a covenant not to sue and
    contribution protection for matters addressed in the
    settlement. See id. SS 9622(f), (h)(4); 9613(f)(2). In exchange,
    the government typically retains "settlement re-openers" for
    remedy failure, unforeseen conditions, and other
    contingencies.
    III.
    Section 122 of CERCLA authorizes the EPA to enter into
    a settlement agreement requiring one or more PRPs to
    conduct a cleanup and goes on to provide that the
    agreement "shall be entered in the appropriate district
    court as a consent decree." 42 U.S.C. SS 9622(a), (d)(1)(A).
    Subsection (c)(2) of S 122 expressly provides that entering
    into such a settlement shall not preclude the EPA from
    taking action under S 106 against any PRP who is not a
    party to the settlement or from suing such a PRP under any
    provision of the Act:
    If an agreement has been entered into under this
    section, [EPA] may take any action under section 106
    of this title against any person who is not a party to
    the agreement, once the period for submitting a
    proposal under subsection (e)(2)(B) of this section[i.e.,
    a 60-day negotiation period following the issuance
    "special notice" letters which call for the PRPs'
    submission of "good faith offers"] has expired. Nothing
    in this section shall be construed to affect . . .
    (B) The authority of [EPA] to maintain an ac tion
    under this chapter against any person who is not a
    party to the agreement.
    42 U.S.C. S 9622(c)(2).4 As we have noted, S 106 authorizes
    _________________________________________________________________
    4. Subsection (c)(2)(A) provides that nothing inS 122 shall affect "the
    liability of any person under sections 106 and 107 .. . with respect to
    any costs or damages which are not included in the agreement." This
    7
    the EPA to enter administrative orders and to bring suits,
    like the instant one, to enforce such orders. Section
    122(c)(2)(B) would, thus, appear to provide express
    authority for the EPA's suit against Occidental. Occidental,
    however, would have us seize on a provision from
    CERCLA's contribution section as limiting the EPA's
    authority to sue non-settling PRPs under S 122(c)(2)(B).
    Section 113(f)(3)(A) provides:
    If the United States or a State has obtained less than
    complete relief from a person who has resolved its
    liability to the United States or a State in an
    administrative or judicially approved settlement, the
    United States or the State may bring an action against
    any person who has not so resolved its liability.
    42 U.S.C. S 9613(f)(3)(A) (emphasis added).
    Occidental argues that the Consent Decree affords EPA
    complete relief and, therefore, that EPA is barred from
    ordering Occidental to assist in the OU-1 remedy with
    respect to both past response costs and remedial work. The
    District Court agreed and held that allowing EPA to order
    Occidental to assist in paying for and performing the
    cleanup of OU-1 would give the EPA a double recovery in
    contravention of both CERCLA and the common law.
    The Government does not dispute that S 113(f)(3) permits
    it to pursue non-settlors only where the relief it has
    obtained in settlements with others is "less than complete."
    Indeed, the Government agrees that it is permitted"but one
    satisfaction" of a claim and that, once a claim is "satisfied,"
    all other joint tortfeasors are released. The Government
    insists, however, that merely signing the Ruetgers Consent
    Decree, in which Ruetgers agreed to perform work in the
    future, does not constitute "satisfaction" of its claim and,
    thus, does not mean the Government has "obtained"
    _________________________________________________________________
    provision is not addressed specifically to the rights of non-settling
    parties. It is intended to "make clear" that S 122 does not affect the
    liability of settling or non-settling parties "for matters not covered by
    the
    agreement." H.R. Rep. No. 99-253(V), at 61 (1985), reprinted in 1986
    U.S.C.C.A.N. 3124, 3184.
    8
    complete relief. Quite the contrary, the Government argues
    that it has obtained complete relief only when "the
    endangerment providing the basis for EPA's S 106(a)
    authority has been abated." Brief for Appellant at 16.
    As a matter of textual analysis, it is possible to read
    S 113(f)(3)(A) in isolation as terminating the government's
    right to sue when it has secured a legally enforceable right
    to complete relief against one PRP. Nevertheless, we believe
    that the government's reading of that section is not only
    permissible from the standpoint of textual analysis,5 but
    also fits more comfortably in the statutory scheme and its
    common law background. Moreover, to the extent there is
    an ambiguity, we conclude that we are bound to defer to
    the EPA's reasonable understanding of the statute.
    IV.
    It seems to us not only that S 122 provides express
    authority for the actions the EPA has taken with respect to
    Occidental, but also that its principal purpose is to make
    sure the authority to issue administrative orders and
    enforce them is preserved in situations like this where a
    settlement agreement has been entered with another PRP.6
    Subsection 113(f)(3)(A) has a different purpose, one not
    directly related to the issue before us. Section 113(f) is
    _________________________________________________________________
    5. Contrary to Occidental's suggestion, the clause "in an administrative
    or judicially approved settlement" does not modify "complete relief."
    Rather, it modifies "a person who has resolved its liability."
    Accordingly,
    the text of S 113(f)(3)(A) does not expressly answer whether "complete
    relief " refers to a legally enforceable right to such relief or to a
    satisfaction of that right.
    6. We reject Occidental's suggestion that S 122(c)(2) authorizes only the
    issuance of administrative orders following a settlement with one PRP
    and not suits to enforce such orders. First, S 122(c)(2) incorporates
    without reservation "any action under section 106," and S 106(a)
    authorizes suits to enforce administrative orders. Second, S 122(c)(2)(B)
    expressly preserves the right of the government to sue other PRPs.
    Finally, we feel confident that Congress did not intend to authorize
    administrative orders against a person who was not a party to a
    settlement and, at the same time, deny the EPA the authority to enforce
    those orders in court.
    9
    entitled "Contribution." Subsection (1) of that section
    recognizes the right of PRPs who have settled or been found
    liable to seek contribution from other PRPs. Subsection (2)
    next stipulates the effect that a settlement between the EPA
    and a PRP will have on rights of contribution. It is in this
    context that one finds subsection (3), entitled "Persons not
    a party to settlement." The purpose of subsection (3)(A),
    which we have quoted above, is to make clear that the right
    of contribution possessed by a PRP, who has settled with
    the EPA, against other PRPs does not preclude the EPA
    from suing other PRPs.
    In this context, we think it highly unlikely that the initial
    clause of S 113(f)(3)(A), so heavily relied upon by Occidental
    -- "[i]f the United States or a State has obtained complete
    relief " -- was intended to limit the otherwise unqualified,
    express authority to sue non-settling PRPs conferred by
    SS 106 and 122(c)(2). It seems far more reasonable to read
    that clause as recognition of the obvious fact that if the
    cleanup has been fully accomplished and paid for, the
    government is entitled to no further relief.7
    This latter reading of the disputed clause is consistent
    with the prohibition against double recovery found in the
    common law. The Restatement of Judgments provides that
    a "judgment against one person liable for a loss does not
    terminate a claim that the injured party may have against
    another person who may be liable therefor." Restatement
    (Second) of Judgments S 49 (1982). The Commentary then
    explains that "[d]ouble recovery is foreclosed by the rule
    that only one satisfaction may be obtained for a loss that is
    the subject of two or more judgments." Id. S 49 cmt. a.
    Indeed, we recently affirmed that under Pennsylvania law,
    which follows the common law rule, "[t]he ``one satisfaction'
    rule bars a subsequent suit against another tortfeasor only
    where the prior proceedings can reasonably be construed to
    have resulted in full satisfaction of the plaintiff's claim."
    Greenleaf v. Garlock, Inc., 
    174 F.3d 352
    , 357 (3d Cir. 1999)
    _________________________________________________________________
    7. The legislative history identified by Occidental suggests to us no more
    than that Congress intended there to be no double recovery by the
    government, an intention that is satisfactorily accommodated by the
    EPA's reading of S 113(f)(3).
    10
    (quoting Frank v. Volkswagenwerk, A.G., 
    522 F.2d 321
    , 326
    (3d Cir. 1975)). EPA's argument that it has not obtained
    "complete relief " until the endangerment has been abated
    -- i.e., its claim has been fully "satisfied" -- is, thus,
    consistent not only with CERCLA's language and objectives
    but also with the common law.
    Support for the EPA's reading of S 113(f)(3)(A) can be
    found in other CERCLA provisions as well. Section 122(f)(3)
    provides that a covenant not to sue for liability as to future
    costs at a site shall not even take effect until EPA certifies
    "that the remedial action has been completed." 42 U.S.C.
    S 9622(f)(3). Similarly, S 122(f)(5) states that any covenant
    not to sue "shall be subject to satisfactory performance" by
    the settlor. If, as Occidental insists, S 113(f)(3)(A) terminated
    the EPA's authority to sue a PRP whenever it entered a
    settlement agreement with another PRP, the statute would
    favor non-settling parties by shielding them fromS 106
    actions prior to completion of the work and abatement of
    the endangerment while denying such protection to the
    settling party.
    Moreover, we believe the EPA's understanding makes
    sense as a practical matter. The existence of a settlement
    (often imposing on the settlor a multi-year, multi-million
    dollar obligation) does not guarantee that the settlor will
    successfully complete all the promised work. It would
    overlook this simple fact to suggest, as Occidental does
    here, that although all PRPs are jointly and severally liable
    for the cleanup, once a single PRP settles, EPA is foreclosed
    from pursuing any other PRP under S 106, despite its
    finding that a imminent and substantial endangerment
    exists. Occidental's proposed reading of S 113(f)(3)(A) would
    reward recalcitrant parties, thereby discouraging
    settlements. Cf. B.F. Goodrich v. Betkoski, 
    99 F.3d 505
    , 527
    (2d Cir. 1996) (the "usual federal policy encouraging
    settlements is even stronger in the CERCLA context"); 42
    U.S.C. S 9622(a) ("whenever practicable and in the public
    interest . . . [EPA] shall act to facilitate agreements . . . in
    order to expedite effective remedial actions and minimize
    litigation"). By bringing more parties into the cleanup effort,
    EPA protects itself against the risk that any one party may
    become unable or unwilling to perform the remedy as EPA
    11
    instructs. Thus, by issuing administrative orders to non-
    settling PRPs under S 106, EPA fulfills CERCLA's objectives
    of promoting fairness at multi-party sites, increasing the
    likelihood of settlements, and accelerating the statute's
    ultimate goal -- site cleanup.
    Finally, we note that Occidental does not contest that
    EPA may enter separate consent decrees with multiple
    parties requiring joint implementation. Nor does it argue
    that the EPA may not issue separate Section 106 orders to
    multiple parties requiring joint implementation. Yet,
    Occidental has suggested no persuasive reason why
    Congress might have wished to authorize these strategies
    and, at the same time, deny the EPA authority to do what
    it did here -- propose to two PRPs that they jointly
    implement a cleanup, settle with the one that is willing to
    settle, and order the non-settling PRP to assist.8
    V.
    In the final paragraph of its opinion, the District Court
    adopted a related alternative ground for its ultimate
    conclusion, one based on S 106(a) rather thanS 113(f)(3)(A).
    Because the EPA, in its view, had received "complete relief "
    by entering the Ruetgers settlement, the District Court held
    that the S 106 order directed to Occidental was not
    "necessary to protect public health and welfare and the
    environment" as required by S 106(a). Reading S 106(a) as a
    whole,9 it seems clear that the question of whether an order
    _________________________________________________________________
    8. Occidental does point out that it is in a different position than it
    would have been had two S 106 orders been entered. Under S 113(f)(2),
    a PRP that has settled is not "liable for claims for contribution
    regarding
    matters addressed in the settlement" and the amount paid by the
    settling party only "reduces the potential liability of the other[ ]"
    PRPs. As
    a result, Occidental posits that if it should wind up paying for "more
    than its fair share" of the costs of the cleanup, it would not be able to
    obtain contribution from Ruetgers. While this is true, it is the result of
    a deliberate policy choice made by Congress in order to encourage
    settlements. As explained in B.F. Goodrich v. Betkoski, 
    99 F.3d 505
    , 527
    (2d Cir. 1996), the intended effect of S 113(f)(2) is that "non-settling
    defendants may bear disproportionate liability for their acts."
    9. Section 106(a) provides in its entirety:
    12
    may be necessary to protect public health, welfare, and the
    environment goes to the status of the contamination at the
    site, not to who is, or who is not, obligated to address it.
    See 42 U.S.C. S 9606(a) ("[the President] may require the
    Attorney General of the United States to secure such relief
    as may be necessary to abate such danger or threat").
    Accordingly, we do not find a limitation on the unqualified,
    express authority conferred by S 122 latent in the
    "necessary" requirement of S 106(a). Here, the EPA's Order
    appropriately documented the presence of hazardous
    substances at the site and their likelihood of endangering
    public health, thereby satisfying the "necessity"
    requirement of S 106(a).
    VI.
    Even if we were not fully persuaded that this suit is
    authorized by S 122(c)(2), however, we would not be at
    liberty to reject the EPA's position. Section 113(f)(3)(A), at
    most, creates an ambiguity and, where ambiguity exists, we
    are constrained to defer to the interpretation of the agency
    that has been charged with administering the statute. We
    recently summarized the standard of review as follows:
    When reviewing an agency's construction of a statute,
    if the intent of Congress is clear, then we must give
    effect to that intent. If the statute is silent or
    _________________________________________________________________
    In addition to any other action taken by a State or local
    government,
    when the President determines that there may be an imminent and
    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, he may require the Attorney
    General of the United States to secure such relief as may be
    necessary to abate such danger or threat, and the district court of
    the United States in the district in which the threat occurs shall
    have jurisdiction to grant such relief as the public interest and
    the
    equities of the case may require. The President may also, after
    notice to the affected State, take other action under this section
    including, but not limited to, issuing such orders as may be
    necessary to protect public health and welfare and the environment.
    42 U.S.C. S 9606(a).
    13
    ambiguous with respect to a specific issue, then a
    deference standard applies, and the question for the
    court becomes whether the agency's answer is based
    on a reasonable construction of the statute.
    Connecticut Gen. Life Ins. Co. v. Comm'r, 
    177 F.3d 136
    , 143
    (3d Cir. 1999) (quoting Sekula v. FDIC, 
    39 F.3d 448
    , 451-52
    (3d Cir.1994)).
    The Supreme Court caselaw teaches that we must defer
    to agency interpretations that are supported by
    "regulations, rulings, or administrative practice." Bowen v.
    Georgetown Univ. Hosp., 
    488 U.S. 204
    , 212 (1988); see also
    Bragdon v. Abbott, 
    524 U.S. 624
    , 642 (1998) ("the well-
    reasoned views of the agencies implementing a statute
    ``constitute a body of expertise and informed judgment to
    which courts . . . may properly resort for guidance")
    (quoting Skidmore v. Swift & Co., 
    323 U.S. 134
    , 139-40
    (1944)); Auer v. Robbins, 
    519 U.S. 452
    , 462 (1997)
    (deferring to agency interpretation where there was"no
    reason to suspect that the interpretation does not reflect
    the agency's fair and considered judgment on the matter in
    question"). We, thus, must defer not only to those
    interpretations supported by notice-and-comment
    rulemaking but also to interpretations that find support in
    informal agency practice. In Cleary v. Waldman, 
    167 F.3d 801
    , 808 (3d Cir. 1999), we articulated the rule governing
    deference to informal interpretations as follows: "[I]f an
    agency has been granted administrative authority by
    Congress for a statute, its interpretation -- despite arising
    in an informal context -- will be given deference as long as
    it is consistent with other agency pronouncements and
    furthers the purposes of the Act."
    As evidenced by the EPA's policy documents, it has long
    been its practice under S 106 to issue administrative orders
    to non-settling parties, even after a consent decree has
    been reached with another PRP for the performance of the
    remedial work at a site. In a 1996 Policy Memorandum, the
    EPA spoke as follows on the issue:
    Regional staff are required to prepare appropriate
    documentation for decisions not to issue UAOs to late-
    identified PRPs -- i.e., PRPs who are identified after
    14
    other PRPs assume the obligation to conduct the
    response action. (Headquarters recently distributed
    model UAO language requiring late-identified PRPs to
    "participate and cooperate" with PRPs already
    conducting the cleanup pursuant to either a settlement
    agreement or an earlier UAO. It is similar to the
    "coordinate and cooperate" language contained in
    "parallel UAOs," . . . although those orders are for
    already-identified PRPs who are recalcitrant and refuse
    to joint other PRPs who are signing a consent decree.)
    EPA Memorandum, Documentation of Reason(s) for Not
    Issuing CERCLA S 106 UAOs to All Identified PRPs at 5
    (Aug. 2, 1996) (emphasis added); see also Walter E.
    Mugdan (EPA Deputy Regional Counsel), The Use of
    CERCLA Section 106 Administrative Orders to Secure
    Remedial Action, American Law Institute, C948 ALI-ABA
    113 (1994) ("settlements, . . . coupled with subsequent
    unilateral orders . . . against non-settlors, are ways for the
    government to create an environment in which
    volunteerism is promoted and a sense of fairness among
    the volunteers is enhanced").10
    EPA is clearly charged with administering CERCLA, and
    the policy memoranda quoted above indicate that its
    administrative practice is consistent with the interpretation
    it has proffered here. Therefore, following the rule
    announced in Cleary, we must defer to the EPA's
    interpretation of S 113(f)(3)(A), provided it is based on a
    reasonable construction of that provision and is consistent
    with the purposes of CERCLA. See Cleary, 167 F.3d at 806
    (deferring to agency's statutory construction as stated in
    policy memoranda). For the reasons set forth in the
    preceding section, we cannot characterize the EPA's
    _________________________________________________________________
    10. The policy discussed in this policy statement goes back at least to
    1990. See, e.g., EPA Memorandum, Guidance on CERCLA Section 106(a)
    Unilateral Administrative Orders (Mar. 7, 1990) (described in EPA
    Memorandum of August, 1996) ("When a complete settlement agreement
    is reached for conduct of the remedial action with fewer than all PRPs,
    the Agency may agree to issue ``parallel' unilateral orders to the liable
    non-settlors. Parallel unilateral orders direct the non-settlors to
    coordinate and cooperate with the settlors' cleanup activities, as
    described in the consent decree.").
    15
    interpretation as unreasonable. It follows that the District
    Court's reading of the statute must be rejected.11
    VII.
    Applying the aforementioned legal precepts to the facts of
    this case, we conclude that the District Court erred in
    dismissing the EPA's Complaint. As far as the remedial
    work is concerned, Occidental concedes that, although
    Ruetgers has agreed to perform all of the work, it has not
    yet done so. Therefore, EPA has "obtained less than
    complete relief " and is expressly authorized by SS 106 and
    122 to issue an administrative order to Occidental,
    requiring that it jointly perform the necessary work.
    With respect to the past response costs, the result is the
    same. The District Court interpreted the Ruetgers Consent
    Decree as reimbursing the United States for all past
    response costs. Since the Ruetgers' commitment included
    reimbursement of all of the EPA's past response cost, the
    Court reasoned that it had obtained "complete relief" and
    that any recovery of past response cost in this action would
    constitute an impermissible double recovery. If the EPA in
    fact incurred more past response costs than the
    $293,985.10 mentioned in the Decree, its remedy was to
    sue Ruetgers.
    Although we have reservations about the District Court's
    _________________________________________________________________
    11. Contrary to Occidental's suggestion, we are not deferring to the EPA's
    litigation position, but to policy memoranda consistent with that
    position. The EPA's "position is in no sense a``post hoc rationalizatio[n]'
    advanced by an agency seeking to defend past agency action against
    attack." Auer, 519 U.S. at 912 (quoting Bowen, 488 U.S. at 212)
    (deferring to agency's construction of a regulation even though that
    "interpretation comes to us in the form of a legal brief "); see also
    Molinary v. Powell Mountain Coal Co., 
    125 F.3d 231
    , 235 n.4 (4th Cir.
    1997) ("the fact that the Secretary's interpretation of the statutory
    language at issue comes to us in the form of a legal brief ``does not, in
    the circumstances of this case, make it unworthy of deference' ") (quoting
    Auer). Because we see "no reason to suspect that the [EPA's]
    interpretation does not reflect the agency's fair and considered judgment
    on the matter in question," we will defer to its interpretation. Auer, 519
    U.S. at 462.
    16
    construction of the Consent Decree, we see no need to
    construe it here. Whether or not the Consent Decree was
    negotiated, as Occidental maintains, with the
    understanding that the EPA's past response cost totaled
    $293,985.10, any agreement on that score between the EPA
    and Ruetgers clearly does not operate to the benefit of
    Occidental. The complaint in this suit alleges that the EPA
    has incurred past response costs of $491,637, and we are
    required at this stage to credit that allegation. See Weiner
    v. Quaker Oats Co., 
    129 F.3d 310
    , 315 (3d Cir. 1997). If
    Occidental is shown to be a responsible party, it will be
    jointly and severally liable for those costs. Even assuming
    that it is entitled to a $293,985.10 credit for the past
    response costs previously paid by Ruetgers, Occidental will
    owe the balance.12
    VIII.
    In Count V of its Complaint, the EPA sought a
    declaratory judgment, "holding Occidental liable in future
    actions to recover further costs incurred at or in connection
    with the site." The District Court dismissed the entire
    Complaint without separately addressing this Count. The
    EPA argues here that the District Court "erred in
    dismissing Count V insofar as it requested a declaratory
    judgment for future costs not just as to the first operable
    unit, but as to the second operable unit." Brief for Appellant
    at 30 (emphasis added.)
    The District Court read the Complaint narrowly, explicitly
    noting that "the present action against Occidental only
    deals with Operable Unit One." Dist. Ct. op. at 4. The EPA
    did not seek to clarify this alleged error in its motion for
    reconsideration. Moreover, as Occidental argues, in Count
    V of the Complaint, the EPA cites to S 122(g)(2), which sets
    forth the statute of limitations for cost recovery actions
    under S 107 and explicitly requires a trial court to enter a
    _________________________________________________________________
    12. While both sides agree that the EPA cannot receive a double
    recovery, the parties have not briefed whether this principle should be
    applied on the basis of discrete categories of response costs, the total
    cleanup costs, or in some other manner. We accordingly express no
    opinion on those issues.
    17
    declaratory judgment on liability for future response costs
    if liability is found for past response costs. Thus, it is
    understandable that the District Court, having erroneously
    concluded that Occidental had no liability for EPA's
    outstanding past costs associated with OU-1, dismissed the
    S 122(g)(2) claim for a declaratory judgment as to future
    costs associated with OU-1.
    The case will be remanded for a determination of
    Occidental's liability for future costs as to OU-1. With
    respect to the future costs associated with OU-2, we agree
    that the Complaint, read as a whole, did not give fair notice
    of a claim for future response costs associated with OU-2.
    The EPA points our attention to two statements made in its
    brief in opposition to Occidental's motion to dismiss, but
    those statements refer only to the scope of the Ruetgers
    Consent Decree, not the scope of the declaratory judgment
    claim against Occidental. There was simply nothing in the
    pleadings or the record in the District Court that served to
    alert the District Court to the claimed broader scope of
    Count V. We hold, therefore, that any claim with respect to
    OU-2 was not before the District Court and is not before us
    now.13
    IX.
    The judgment of the District Court will be reversed, and
    the case will be remanded to the District Court for further
    proceedings consistent with this opinion.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    _________________________________________________________________
    13. To the extent the EPA wishes to include a count seeking future costs
    associated with OU-2, it is free to seek leave to amend its Complaint in
    the District Court. See Fed. R. Civ. P. 15(a).
    18