Asarco LLC v. Atlantic Richfield Co. ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ASARCO LLC, a Delaware No. 14-35723
corporation,
Plaintiff-Appellant, D.C. No.
6:12-cv-00053-
v. DLC
ATLANTIC RICHFIELD COMPANY, a
Delaware corporation, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief Judge, Presiding
Argued and Submitted February 8, 2017
Seattle, Washington
Filed August 10, 2017
Before: Raymond C. Fisher, Richard A. Paez,
and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
2 ASARCO V. ATLANTIC RICHFIELD
SUMMARY *
Environmental Law
The panel vacated the district court’s summary judgment
in favor of the defendant in a contribution action under
§ 113(f) of the Comprehensive Environmental Response,
Compensation, and Liability Act.
CERCLA § 113(f) provides that after a party has,
pursuant to a settlement agreement, resolved its liability for
a “response” action or the costs of such an action, that party
may seek contribution from any person who is not a party to
the settlement.
The panel held that a 1998 settlement agreement under
the Resource Conservation and Recovery Act between the
plaintiff and the United States did not trigger the three-year
statute of limitations for the plaintiff to bring a CERCLA
contribution action concerning the East Helena Superfund
Site. Agreeing with the Third Circuit, and disagreeing with
the Second Circuit, the panel held that a settlement
agreement entered into under an authority other than
CERCLA may give rise to a CERCLA contribution action.
In addition, a “corrective measure” under RCRA qualifies as
a “response” action under CERCLA. The plaintiff did not,
however, “resolve its liability” under the 1998 RCRA
settlement agreement.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ASARCO V. ATLANTIC RICHFIELD 3
Nonetheless, a later, 2009 agreement, on which the
plaintiff based its present CERCLA contribution action, did
resolve the plaintiff’s liability. Because the plaintiff filed the
present action within the three-year limitations period
measured against entry of the 2009 agreement, it was timely.
The panel remanded the case for further proceedings to
determine whether the plaintiff was entitled to contribution
for the response costs it incurred under the 2009 agreement.
COUNSEL
Gregory Evans (argued), Laura G. Brys, and Daphne Hsu,
McGuire Woods LLP, Los Angeles, California; Linda R.
Larson, Nossaman LLP, Seattle, Washington; for Plaintiff-
Appellant.
Shannon Wells Stevenson (argued), William J. Duffy, and
Mave A. Gasaway, Davis Graham & Stubbs LLP, Denver,
Colorado; Elizabeth H. Temkin, Temkin Wielga & Hardt
LLP, Denver, Colorado; Randy J. Cox and Randy J. Tanner,
Boone Karlberg P.C., Missoula, Montana; for Defendant-
Appellee.
OPINION
CALLAHAN, Circuit Judge:
Section 113(f)(3)(B) of the Comprehensive
Environmental Response, Compensation, and Liability Act
of 1980 (“CERCLA”) allows persons who have taken
actions to clean up hazardous waste sites to seek monetary
contribution from other parties who are also responsible for
the contamination. 42 U.S.C. § 9613(f)(3)(B). The
4 ASARCO V. ATLANTIC RICHFIELD
provision provides that a person that has “resolved its
liability” for “some or all of a response action or for some or
all of the costs of such action” pursuant to a settlement
agreement with the government “may seek contribution
from any person who is not party to a settlement.” Id. In
other words, “a [potentially responsible party] that pays
money to satisfy a settlement agreement . . . may pursue
§ 113(f) contribution.” United States v. Atl. Research Corp.,
551 U.S. 128, 139 (2007). CERCLA imposes a three-year
statute of limitations after entry of a judicially approved
settlement, during which a party may bring a contribution
action. 42 U.S.C. § 9613(g)(3).
This case presents three issues of first impression in our
circuit. First, we must decide whether a settlement
agreement entered into under an authority other than
CERCLA may give rise to a CERCLA contribution action.
Second, we must decide whether a “corrective measure”
under a different environmental statute, the Resource
Conservation and Recovery Act (“RCRA”), qualifies as a
“response” action under CERCLA. And third, we must
decide what it means for a party to “resolve[] its liability” in
a settlement agreement—a prerequisite to bringing a
§ 113(f)(3)(B) contribution action. Our answers to these
legal questions guide our inquiry into whether a 1998
settlement agreement under RCRA (the “1998 RCRA
Decree”) between Appellant Asarco LLC (“Asarco”) and the
United States, which was approved and entered by a federal
district court, triggered the three-year statute of limitations
for Asarco to bring a § 113(f)(3)(B) contribution action.
In this contribution action against Appellee Atlantic
Richfield Company (“Atlantic Richfield”), the district court
answered the first two questions in the affirmative but did
not address the third. On Atlantic Richfield’s motion for
ASARCO V. ATLANTIC RICHFIELD 5
summary judgment, the district court concluded that
Asarco’s action accrued with entry of the 1998 RCRA
Decree. Because Asarco brought its action in 2012—well
beyond the three-year statute of limitations under
CERCLA—the district court determined that its claim was
time-barred.
We agree with the district court on the first two issues
but, as to the third, conclude that Asarco did not “resolve[]
its liability” under the 1998 RCRA Decree. Asarco therefore
could not have brought its contribution action in 1998, and
the statute of limitations did not begin to run with entry of
the 1998 RCRA Decree. By contrast, a later, 2009
agreement, on which Asarco bases its present contribution
action, did resolve Asarco’s liability. And because Asarco
filed that action within the three-year limitations period
measured against entry of the 2009 agreement, it is also
timely. The district court therefore erred in dismissing
Asarco’s action on statute of limitations grounds.
Accordingly, we vacate the district court’s judgment and
remand for further proceedings to determine whether Asarco
is entitled to contribution for the response costs it incurred
under the 2009 agreement.
I. Factual Background
The East Helena Superfund Site (the “Site”) is located in
and around an industrial area in Lewis and Clark County,
Montana. The Site includes the City of East Helena,
Asarco’s former lead smelter, and a nearby zinc fuming plant
that was operated by Atlantic Richfield’s predecessor,
Anaconda Mining Company (“Anaconda”), and later by
Asarco.
The Site has been a locus of industrial production for
more than a century, resulting in decades of hazardous waste
6 ASARCO V. ATLANTIC RICHFIELD
releases. The lead smelter, which Asarco operated from
1888 until 2001, discharged toxic compounds into the air,
soil, and water, such as lead, arsenic, and other heavy metals.
Asarco alleges that the zinc fuming plant, which Anaconda
operated from 1927 to 1972, also contributed to the
contamination. Asarco purchased the zinc fuming plant in
1972 and apparently ceased operations in 1982. 1 In 1984,
the United States Environmental Protection Agency
(“EPA”) added the Site to the National Priorities List under
CERCLA.
In the late 1980s, EPA identified Asarco and Anaconda
as potentially responsible parties (“PRPs”) under CERCLA,
meaning—in CERCLA vernacular—that they bore at least
some responsibility for the contamination. See 42 U.S.C.
§ 9607(a). EPA sought remedial action only from Asarco,
which resulted in three CERCLA settlements between
Asarco and the United States in the late 1980s and early
1990s. Those early settlements are not at issue in this
litigation.
In 1998, the United States brought claims against Asarco
for civil penalties and injunctive relief under RCRA and the
Clean Water Act (“CWA”). The complaint alleged that
Asarco had illegally disposed of hazardous waste at the Site,
and sought an order requiring Asarco to, inter alia, “conduct
corrective action pursuant to Section 3008(h) of RCRA,
42 U.S.C. § 6928(h) . . . .” A “corrective action” under
RCRA is a type of “response measure” necessary to protect
human health or the environment, see 42 U.S.C. § 6928(h),
1
It is unclear whether the plant remains active. Asarco and Atlantic
Richfield both contend that the plant ceased operations in 1982, but the
parties rely on authority from 1997, which states that “Asarco continues
to operate the zinc fuming plant.”
ASARCO V. ATLANTIC RICHFIELD 7
and is “designed to clean up contamination,” J. Stanton
Curry, James J. Hamula, Todd W. Rallison, The Tug-of-War
Between RCRA and CERCLA at Contaminated Hazardous
Waste Facilities, 23 Ariz. St. L.J. 359, 369 (1991).
Asarco settled the case with the United States. The
settlement agreement was approved by the federal district
court in Montana, and entered on the court’s docket as a
consent decree. The 1998 RCRA Decree assessed civil
penalties against Asarco and also required Asarco to take
certain remedial actions to address past violations. Those
actions included “[c]orrective [m]easures” to, inter alia,
“remediate, control, prevent, or mitigate the release,
potential release or movement of hazardous waste or
hazardous constituents into the environment or within or
from one media to another.”
Despite the 1998 RCRA Decree’s lofty goals, Asarco
failed to meet its cleanup obligations. Further complicating
matters, in 2005 Asarco filed for Chapter 11 bankruptcy
protection. The United States and Montana filed proofs of
claim in the bankruptcy proceeding asserting joint and
several liability claims under CERCLA. On June 5, 2009,
the bankruptcy court entered a consent decree under
CERCLA (the “CERCLA Decree”) between Asarco, the
United States, and Montana. The CERCLA Decree
established a custodial trust for the Site, and turned over
cleanup responsibility to a trustee. As part of the agreement,
Asarco paid $99.294 million (plus other expenses), which,
inter alia, “fully resolved and satisfied” its obligations under
the 1998 RCRA Decree. 2
2
Asarco also paid $5 million to Montana to settle a claim for natural
resource damages.
8 ASARCO V. ATLANTIC RICHFIELD
II. Procedural Background
On June 5, 2012, Asarco brought an action against
Atlantic Richfield under CERCLA § 113(f)(3)(B), seeking
contribution for its financial liability under the CERCLA
Decree. Atlantic Richfield filed a motion for summary
judgment, arguing that Asarco’s action was untimely
because the three-year statute of limitations under § 113
began running with the 1998 RCRA Decree. Asarco
countered that “RCRA, a statute that does not authorize
contribution claims, [cannot] trigger the limitations period
under another law, CERCLA.” Asarco also argued that the
CERCLA Decree created “new” and “different” work
obligations from the 1998 RCRA Decree, thereby triggering
a new statute of limitations period for at least the costs
associated with those new obligations.
The district court granted summary judgment for
Atlantic Richfield and dismissed the case. It concluded that
the plain language of CERCLA § 113(f)(3)(B) requires only
that a settlement agreement address a “response action,” not
that it be entered into under CERCLA. The court also
determined that Asarco had incurred response costs under
the 1998 RCRA Decree, and therefore held that the 1998
RCRA Decree provided the necessary predicate for a
CERCLA contribution action. Finally, the court rejected
Asarco’s argument that the CERCLA Decree contained
matters not addressed by the 1998 RCRA Decree.
Accordingly, it held that the CERCLA Decree did not reset
the statute of limitations for any response costs incurred
under that agreement, and deemed Asarco’s claim for
contribution untimely. Asarco appealed.
ASARCO V. ATLANTIC RICHFIELD 9
III. Statutory Context
Congress enacted CERCLA in 1980 with two goals in
mind: (i) to encourage the “‘expeditious and efficient
cleanup of hazardous waste sites,’” and (ii) to ensure that
those responsible for hazardous waste contamination pay for
the cleanup. Carson Harbor Vill., Ltd. v. Unocal Corp.,
270 F.3d 863, 880 (9th Cir. 2001) (en banc) (quoting Pritkin
v. Dep’t of Energy, 254 F.3d 791, 795 (9th Cir. 2001)); see
S. Rep. No. 96–848, at 13 (1980). Hazardous waste sites—
also known as Superfund sites—contain toxic substances
often deposited by multiple entities. See 42 U.S.C.
§ 9607(a)(1)–(4). In order to spread responsibility among
those entities, Congress included a provision in CERCLA
providing for reimbursement of costs incurred by the
government or a liable PRP. Section 107(a) provides a cause
of action for a “cost recovery” claim against PRPs for a wide
range of expenses, including “‘any . . . necessary costs of
response incurred’” that result from a release of a hazardous
substance. Whittaker Corp. v. United States, 825 F.3d 1002,
1006 (9th Cir. 2016) (quoting 42 U.S.C. § 9607(a)).
“Response” is a term of art under CERCLA and means
“remove, removal, remedy, and remedial action.” 42 U.S.C.
§ 9601(25). Congress even gave those defining terms their
own definitions. A “removal” means, inter alia, “the
cleanup or removal of released 3 hazardous substances from
the environment” and any actions that may be necessary “in
the event of the threat of release of hazardous substances into
3
With exceptions, a “release” under CERCLA means “any spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, or disposing into the environment
(including the abandonment or discarding of barrels, containers, and
other closed receptacles containing any hazardous substance or pollutant
or contaminant) . . . .” 42 U.S.C. § 9601(22).
10 ASARCO V. ATLANTIC RICHFIELD
the environment.” Id. § 9601(23). A “remedial action”
means, inter alia, “actions consistent with permanent
remedy taken instead of or in addition to removal actions . . .
to prevent or minimize the release of hazardous substances
so that they do not migrate to cause substantial danger to
present or future public health or welfare or the
environment.” Id. § 9601(24). Put simply, a “response
action” covers a broad array of cleanup activities.
Section 107(a) is limited to recovery of response costs
the suing PRP itself directly incurred. See Atl. Research,
551 U.S. at 139 (“[Section] 107(a) permits recovery of
cleanup costs but does not create a right to contribution.”).
At the time of enactment, CERCLA included no express
right to contribution for a PRP that did not itself incur
response costs, but that reimbursed another party that did
incur response costs. See Cooper Indus., Inc. v. Aviall
Servs., Inc., 543 U.S. 157, 162 (2004). Such a situation
arises under two circumstances: (i) where the PRP is the
defendant in a CERCLA § 106 or § 107(a) action and a
money judgment issues against it; or, as with the CERCLA
Decree in the matter before us, (ii) where the PRP pays the
United States’ or a State’s response costs pursuant to a
settlement agreement. See id. at 160–61; Atl. Research,
551 U.S. at 138–39; Whittaker, 825 F.3d at 1006–07.
Congress added an express right to contribution with the
Superfund Amendments and Reauthorization Act of 1986
(“1986 CERCLA Amendments”), Pub. L. No. 99–499, to
address these two circumstances. See Atl. Research,
551 U.S. at 132. Section 113(f)(1) captures the first, and
provides that “[a]ny person may seek contribution from any
other person who is liable or potentially liable under
[§ 107(a)] of this title, during or following any civil action .
. . under [§ 106 or § 107(a)] of this title.” 42 U.S.C.
ASARCO V. ATLANTIC RICHFIELD 11
§ 9613(f)(1). Section 113(f)(1) is not at issue in the instant
matter, but, as discussed infra in Part IV.A, it is relevant to
resolving the first issue we must decide: whether the 1998
RCRA Decree may give rise to a CERCLA contribution
action. Section 113(f)(3)(B), which is directly at issue,
captures the second scenario, and provides that
[a] person who has resolved its liability to the
United States or a State for some or all of a
response action or for some or all of the costs
of such action in an administrative or
judicially approved settlement may seek
contribution from any person who is not party
to a settlement [that immunizes such person
from a contribution action].
Id. § 9613(f)(3)(B). In other words, “a PRP that pays money
to satisfy a settlement agreement or a court judgment may
pursue § 113(f) contribution.” Atl. Research, 551 U.S. at
139; see Cooper, 543 U.S. at 163, 167 (recognizing that
§ 113(f)(1) and § 113(f)(3)(B) set forth separate rights of
contribution).
While § 107(a) cost recovery actions and § 113(f)
contribution actions offer “complementary yet distinct”
remedies, there is overlap between them. Atl. Research,
551 U.S. at 138, 139 n.6. For example, a PRP may undertake
its own response actions pursuant to a settlement agreement
with the government. See id. That PRP will have incurred
its own response costs, meaning it is eligible for cost
recovery under § 107(a), but it has also settled with the
government, giving rise to a contribution action under
§ 113(f)(3)(B). The question is whether both or only one of
these avenues of relief is available. Our circuit, and “every
federal court of appeals to have considered the question
12 ASARCO V. ATLANTIC RICHFIELD
since Atlantic Research,” has concluded that “a party who
may bring a contribution action for certain expenses must use
the contribution action [under § 113(f)(3)(B)], even if a cost
recovery action [under § 107(a)] would otherwise be
available.” Whittaker, 825 F.3d at 1007 (emphasis in
original); see, e.g., Bernstein v. Bankert, 733 F.3d 190, 206
(7th Cir. 2013) (party may not pursue cost recovery claim
where a contribution claim is available); Solutia, Inc. v.
McWane, Inc., 672 F.3d 1230, 1236–37 (11th Cir. 2012)
(same); Morrison Enters., LLC v. Dravo Corp., 638 F.3d
594, 603–04 (8th Cir. 2011) (same); Agere Sys., Inc. v.
Advanced Envtl. Tech. Corp., 602 F.3d 204, 229 (3d Cir.
2010) (same); Niagara Mohawk Power Corp. v. Chevron
U.S.A., Inc., 596 F.3d 112, 128 (2d Cir. 2010) (same); ITT
Indus., Inc. v. BorgWarner, Inc., 506 F.3d 452, 458 (6th Cir.
2007) (same). Thus, a PRP that incurs its own response costs
pursuant to a settlement agreement may only bring a claim
for contribution.
Sections 107(a) and 113(f) have different statutes of
limitations periods. An action for “recovery of . . . costs”
under § 107(a) “must be commenced . . . within 6 years after
initiation of physical on-site construction of the remedial
action” or “within 3 years after the completion of the
removal action.” 42 U.S.C. § 9613(g)(2)(A), (B). An action
for contribution of “response costs or damages” under
§ 113(f), by contrast, “may be commenced” no more than
“3 years after . . . the date of . . . entry of a judicially approved
settlement with respect to such costs or damages.” Id.
§ 9613(g)(3)(B). 4 The shorter three-year limitations period
4
When comparing the limitations periods for §§ 107(a) and 113(f),
courts generally interpret the limitations period for § 107(a) recovery
actions to be a uniform six years, not six years or three years. See, e.g.,
ASARCO V. ATLANTIC RICHFIELD 13
for contribution actions is intended “to ensure that the
responsible parties get to the bargaining—and clean-up—
table sooner rather than later.” RSR Corp. v. Commercial
Metals Co., 496 F.3d 552, 559 (6th Cir. 2007); see
Whittaker, 825 F.3d at 1013 (Owens, J., concurring in part)
(observing that § 113(f) was intended to “‘bring[] all such
responsible parties to the bargaining table at an early date’”
(quoting H.R. Rep. (Energy and Commerce Committee) No.
99–253, pt. 1, at 80 (1985), 5 reprinted in 1986 U.S.C.C.A.N.
2835, 2862)).
IV. Discussion
Asarco’s action is untimely if it could have brought a
contribution action after judicial approval and entry of the
1998 RCRA Decree. Such would be the case if three
Florida Power Corp. v. FirstEnergy Corp., 810 F.3d 996, 1006 (6th Cir.
2015); Consol. Edison Co. v. UGI Utils., 423 F.3d 90, 98 (2d Cir. 2005).
5
With a wary eye trained on the potential pitfalls of gleaning
congressional intent from legislative history, we note that the version of
the bill to which H.R. Rep. No. 99–253 refers, H.R. 2817, included a
contribution provision substantially similar to the final version included
in the enacted statute. That bill, which was introduced in the House of
Representatives on June 20, 1985, and which remained the same in
relevant part when reported out of the House Committee on Energy and
Commerce, contained a contribution provision stating in part:
Nothing in this subsection shall affect or modify in any
way the rights of . . . any person that has resolved its
liability to the United States or a State in a good-faith
settlement, to seek contribution or indemnification
against any persons who are not party to a settlement
[with the United States or a State in a judicially
approved good-faith settlement].
H.R. 2817, 99th Cong. § 113 (June 20, 1985).
14 ASARCO V. ATLANTIC RICHFIELD
conditions are met: (i) a non-CERCLA authority may give
rise to a CERCLA contribution action, (ii) Asarco took a
response action or incurred response costs under the 1998
RCRA Decree, and (iii) the 1998 RCRA Decree resolved
Asarco’s liability for at least some of those response actions
or costs. The district court analyzed the first two conditions
but not the third. We evaluate all three issues.
Our review of the district court’s grant of summary
judgment is de novo, as is our review of the court’s
determination that Asarco’s contribution claim under the
CERCLA Decree is barred by the statute of limitations.
Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th
Cir. 2003). Our review of the district court’s interpretation
of the RCRA and CERCLA Decrees is also de novo, except
that we defer to any factual findings unless they are clearly
erroneous. City of Emeryville v. Robinson, 621 F.3d 1251,
1261 (9th Cir. 2010).
A Non-CERLCA Settlement Agreement May Form
the Basis for a CERCLA Contribution Action
1.
We begin by considering whether § 113(f)(3)(B) applies
to non-CERCLA settlement agreements. “As in any case of
statutory construction our analysis begins with the language
of the statute.” Hughes Aircraft Co. v. Jacobson, 525 U.S.
432, 438 (1999) (internal quotation marks omitted). But it
does not end there. We must heed the “fundamental canon
of statutory construction that the words of a statute must be
read in their context and with a view to their place in the
overall statutory scheme.” FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 133 (2000) (internal quotation
marks omitted). “A statutory provision that may seem
ambiguous in isolation is often clarified by the remainder of
ASARCO V. ATLANTIC RICHFIELD 15
the statutory scheme . . . because only one of the permissible
meanings produces a substantive effect that is compatible
with the rest of the law.” Util. Air Regulatory Grp. v. EPA,
134 S. Ct. 2427, 2442 (2014) (alteration in original and
internal quotation marks omitted).
The plain text of § 113(f)(3)(B) is unilluminating. A
“response” action is a defined term under CERCLA, but it is
unclear from the text of § 113(f)(3)(B) whether it is a
CERCLA-exclusive term. See 42 U.S.C. § 9601(25). In the
same vein, § 113(f)(3)(B) requires a PRP to enter into a
settlement agreement that is “administrative[ly] or judicially
approved,” but the text says nothing about whether the
agreement must settle CERCLA claims in particular. See id.
§ 9613(f)(3)(B).
Expanding our analysis to the broader context of the
statute, we consider § 113(f)(3)(B)’s companion provision,
§ 113(f)(1). That section expressly requires a CERCLA
predicate by providing that “[a]ny person may seek
contribution from any other person who is liable or
potentially liable under [§ 107(a)] of this title, during or
following any civil action under [§ 106] of this title or under
[§ 107(a)] of this title.” Id. § 9613(f)(1) (emphasis added).
“Where Congress includes particular language in one section
of a statute but omits it in another section of the same Act, it
is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” Russello
v. United States, 464 U.S. 16, 23 (1983) (internal quotation
marks omitted). Applying this principle here, Congress’
express requirement of a CERCLA predicate in § 113(f)(1)
and its absence in § 113(f)(3)(B) is strong evidence that
Congress intended no such predicate in the latter provision.
Our understanding of § 113(f)(3)(B) is consistent with
CERCLA’s broad remedial purpose. “In ascertaining the
16 ASARCO V. ATLANTIC RICHFIELD
meaning of an ambiguous [statutory] term, we may use
canons of statutory construction, legislative history, and the
statute’s overall purpose to illuminate Congress’s intent.”
Probert v. Family Centered Servs. of Alaska, Inc., 651 F.3d
1007, 1011 (9th Cir. 2011) (internal quotation marks
omitted). With the 1986 CERCLA Amendments, Congress
sought to get parties to the negotiating table early to allocate
responsibility for cleaning up contaminated sites. H.R. Rep.
No. 99–253, pt. 1, at 80. Granting a settling party a right to
contribution from non-settling PRPs provides a strong
incentive to settle and initiate cleanup. Congress gave no
indication that it matters whether the authority governing the
settlement is CERCLA or something else. Its focus was,
instead, on cleaning up hazardous waste sites. An
interpretation that limits the contribution right under
§ 113(f)(3)(B) to CERCLA settlements would undercut
private parties’ incentive to settle (except, of course, where
the agreement was entered into under CERCLA), thereby
thwarting Congress’ objective and doing so without reaping
any perceptible benefit.
Our interpretation also aligns with EPA’s own view. In
Niagara Mohawk Power Corp. v. Chevron, U.S.A., Inc.,
596 F.3d 112 (2d Cir. 2010), EPA argued that “‘settlement
of federal and state law claims other than those provided by
CERCLA fits within § 113(f)(3)(B) as long as the settlement
involves a cleanup activity that qualifies as a “response
action” within the meaning of CERCLA § 101(25),
42 U.S.C. § 9601(25).’” Id. at 126 n.15 (quoting Brief for
the United States as Amicus Curiae Supporting Appellant at
15). “[EPA’s] views, as expressed in [its amicus] brief, are
persuasive because [its] reasoning is consistent with the
statutory language,” statutory context, and CERCLA’s
overall structure and purpose. See Van Asdale v. Int’l Game
Tech., 763 F.3d 1089, 1093 (9th Cir. 2014) (deferring to the
ASARCO V. ATLANTIC RICHFIELD 17
Secretary of Labor’s amicus brief). Its interpretation
therefore merits some deference. See Skidmore v. Swift &
Co., 323 U.S. 134, 140 (1944) (deference to an agency’s
interpretation depends on “the thoroughness evident in its
consideration, the validity of its reasoning, its consistency
with earlier and later pronouncements, and all [other] factors
which give it power to persuade”); see also Fed. Exp. Corp.
v. Holowecki, 552 U.S. 389, 401–02 (2008) (according an
agency’s non-binding interpretation Skidmore deference
where the interpretation was “consistent with the statutory
framework” and the statute was susceptible to “[n]o clearer
alternatives”).
2.
Whether a non-CERLCA settlement agreement may
give rise to a contribution action has split the circuits. In
Trinity Industries, Inc. v. Chicago Bridge & Iron Co.,
735 F.3d 131 (3d Cir. 2013), the Third Circuit arrived at the
conclusion we adopt here in evaluating a settlement
agreement entered into under state law, reasoning that
“Section 113(f)(3)(B) does not state that the ‘response
action’ in question must have been initiated pursuant to
CERCLA.” Id. at 136. Trinity relied on that court’s prior
holding in United States v. Rohm & Haas Co., 2 F.3d 1265(3d Cir. 1993), overruled on other grounds by United States
v. E.I. Dupont De Nemours & Co., 432 F.3d 161 (3d Cir.
2005) (en banc), where it held that CERCLA § 107(a)—
which provides a cause of action for recovery of response
costs—was available “even when the waste removal [wa]s
not undertaken pursuant to CERCLA.” Trinity, 735 F.3d at
136. In Rohm & Haas, as in the matter before us, the
remedial action was taken under RCRA. 2 F.3d at 1267. The
court in Rohm & Haas noted that § 107(a) lacks any
“CERCLA-specific requirement,” and concluded that
18 ASARCO V. ATLANTIC RICHFIELD
given the similarity of the provisions of
RCRA and CERCLA authorizing EPA to
order private parties to conduct corrective
activity, we fail to perceive any reason why
Congress might have wished to make
government oversight expenses recoverable
if the government invoked CERCLA
statutory authority, but not if it invoked
RCRA.
Id. at 1275.
The Second Circuit has gone the other way. In
Consolidated Edison Co. of N.Y., Inc. v. UGI Utilities, Inc.,
423 F.3d 90, 95 (2d Cir. 2005), the court held that
§ 113(f)(3)(B) creates a “contribution right only when
liability for CERCLA claims . . . is resolved.” That case,
like Trinity, involved a party’s § 113(f)(3)(B) contribution
action to recoup costs spent pursuant to a settlement
agreement under state law. Id. at 96. But unlike Trinity, the
Second Circuit read the term “response action” to be a
“CERCLA-specific term,” and relied on a House of
Representatives Committee report for the 1986 CERCLA
Amendments creating § 113. Id. at 95–96. That report states
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.’” Id.
(quoting H.R. Rep. No. 99–253, pt. 1, at 79) (emphasis in
opinion). 6
6
Several district courts—including one in the Ninth Circuit—have
agreed with the Second Circuit’s approach. See, e.g., Differential Dev.-
1994, Ltd. v. Harkrider Distrib. Co., 470 F. Supp. 2d 727, 739–43 (S.D.
Tex. 2007); ASARCO, Inc. v. Union Pac. R.R. Co., No. CV 04-2144-
ASARCO V. ATLANTIC RICHFIELD 19
The Second Circuit’s approach is not persuasive and may
be shifting. First, the court misreads the pertinent legislative
history. Consolidated Edison relied on a portion of the
House report that is specific to § 113(f)(1) for the
proposition that Congress intended to require a CERCLA
predicate under § 113(f)(3)(B). See 423 F.3d at 96; H.R.
Rep. No. 99–253, pt. 1, at 79. But, as previously noted, those
two provisions diverge in a crucial way: § 113(f)(1)
expressly requires that a party first be sued under CERCLA
before bringing a contribution action, whereas
§ 113(f)(3)(B) makes no reference to CERCLA at all.
Second, in a subsequent case, Niagara Mohawk, the Second
Circuit indicated agreement with EPA’s position that a
CERCLA-specific settlement agreement is not necessary to
maintain a § 113(f)(3)(B) contribution action. 596 F.3d at126 n.15. While the court addressed a distinct issue, and so
did not have an opportunity to revisit its holding in
Consolidated Edison, it commented that EPA
“understandably takes issue with our holding in
Consolidated Edison.” Id.We agree with the Third Circuit. Consideration of
CERCLA’s statutory context, structure, and broad remedial
purpose, combined with EPA’s reasonable interpretation,
lead us to the inexorable conclusion that Congress did not
intend to limit § 113(f)(3)(B) to response actions and costs
incurred under CERCLA settlements. We therefore hold
that a non-CERLCA settlement agreement may form the
necessary predicate for a § 113(f)(3)(B) contribution action.
PHX-SRB, 2006 WL 173662, at *7–9 (D. Ariz. Jan. 24, 2006); City of
Waukesha v. Viacom Int’l Inc., 404 F. Supp. 2d 1112, 1115 (E.D. Wis.
2005).
20 ASARCO V. ATLANTIC RICHFIELD
We turn next to considering whether the 1998 RCRA Decree
is such an agreement.
The 1998 RCRA Decree Required Asarco to Take
“Response” Actions
The second condition necessary for the 1998 RCRA
Decree to have triggered Asarco’s ability to bring a
§ 113(f)(3)(B) contribution action is that the agreement
required Asarco to take response actions or incur response
costs. Asarco suggests that the 1998 RCRA Decree did not
actually require any response actions, but was instead
focused on assessing penalties for RCRA violations, such as
noncompliance with RCRA’s land disposal restrictions.
Asarco argues that the agreement “at best” only resolved
“Asarco’s liability for civil penalties stemming from alleged
operating violations.” The district court barely
acknowledged this issue.
Asarco dramatically understates the scope of its
obligations under the Decree. The agreement clearly
required Asarco to take response actions to clean up
hazardous waste at the Site. Specifically, the 1998 RCRA
Decree obligated Asarco to:
• Implement interim measures to “control or
abate[] . . . imminent threats to human health
and/or the environment”;
• Prevent or minimize the spread of hazardous
waste “while long-term corrective measure
alternatives are being evaluated”;
• Remove and dispose of contaminated soil and
sediment at the Site; and, more generally, to
ASARCO V. ATLANTIC RICHFIELD 21
• Fulfill the Decree’s “remedial objectives” and
“remedial activities”—specifically by
(i) implementing “corrective measures” to
“reduce levels of hazardous waste or hazardous
constituents to applicable standards”;
(ii) remediating “any contamination in
groundwater, surface water and soils, and the ore
storage areas”; (iii) taking actions that “will
result in the remediation of contaminated
media”; and (iv) “provid[ing] the minimum level
of exposure to contaminants and the maximum
reduction in exposure.”
The agreement’s requirement that Asarco take various
“corrective measures” is particularly noteworthy because
RCRA expressly defines “corrective action” as a type of
“response” action: Under RCRA, EPA “may issue an order
requiring corrective action or such other response measure
as [it] deems necessary to protect human health or the
environment.” 7 42 U.S.C. § 6928(h) (emphasis added). In
short, we hold that the 1998 RCRA Decree included
response actions for purposes of bringing a CERCLA
§ 113(f)(3)(B) action.
Asarco Did Not “Resolve Its Liability” Under the
1998 RCRA Decree
The third condition necessary for the 1998 RCRA
Decree to have triggered Asarco’s ability to bring a
§ 113(f)(3)(B) contribution action is that the agreement
“resolved its liability to the United States or [Montana] for
some or all of” its response action or the “costs of such
7
We do not suggest that other authorities that lack the term
“response” could not support a § 113(f)(3)(B) contribution action.
22 ASARCO V. ATLANTIC RICHFIELD
action” in the 1998 RCRA Decree. See 42 U.S.C.
§ 9613(f)(3)(B). Asarco argues that it did not, and therefore
the statute of limitations to bring the instant action did not
expire three years later, in 2001.
1.
Atlantic Richfield contends that Asarco waived this
argument by not raising it in the district court, and that we
should therefore not consider it. Atlantic Richfield is correct
that Asarco failed to raise this precise issue below. Waiver,
however, is not an absolute bar to our consideration of
arguments on appeal. See In re Mercury Interactive Corp.
Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010). We may reach
an otherwise waived issue in three circumstances: (i) to
prevent a miscarriage of justice or preserve the integrity of
the judicial process, (ii) when a new issue arises on appeal
because of a change in the law, and (iii) “‘when the issue
presented is purely one of law and either does not depend on
the factual record developed below, or the pertinent record
has been fully developed.’” Id. (quoting Bolker v. Comm’r,
760 F.2d 1039, 1042 (9th Cir. 1985)).
Determining whether Asarco “resolved its liability”
under the 1998 RCRA Decree falls into the first and third
categories. If Asarco did not, as it contends, resolve its
liability under the 1998 RCRA Decree, then justice would
not be served by upholding the district court’s decision. The
correct interpretation of the phrase “resolved its liability” is
also a pure question of law. While deciding whether Asarco
“resolved its liability” requires application of the law to the
particular terms of the 1998 RCRA Decree, those terms are
not in dispute and the record requires no further
development. Moreover, deciding this issue will bring
certainty to the state of the law in the Ninth Circuit and
ASARCO V. ATLANTIC RICHFIELD 23
thereby “‘preserve the integrity of the judicial process.’” Id.We therefore proceed to the merits.
2.
As we did in Part IV.A, supra, we begin our analysis
with the plain text of the statute. Hughes, 525 U.S. at 438.
Where Congress has not defined specific statutory terms, we
look to their ordinary meanings. Carcieri v. Salazar,
555 U.S. 379, 388 (2009). The commonly understood
meaning of “resolve” is “to deal with successfully,” “reach
a firm decision about,” or to “work out the resolution of”
something. Resolve, Merriam-Webster Online Dictionary,
https://www.merriam-webster.com/dictionary/resolve (last
accessed July 13, 2017). Black’s Law Dictionary similarly
defines the term to mean “to find an acceptable or even
satisfactory way of dealing with (a problem or difficulty).”
Resolve, Black’s Law Dictionary 1504 (10th ed. 2014).
Implicit in these definitions is an element of finality. If the
parties reach a “firm decision about” liability, then the
question of liability is not susceptible to further dispute or
negotiation. As the Seventh Circuit explained in interpreting
the same statutory provision, “[a]n issue which is ‘resolved’
is an issue which is decided, determined, or settled—
finished, with no need to revisit.” Bernstein, 733 F.3d at
211. “To meet the statutory trigger for a contribution action
under § 9613(f)(3)(B), the nature, extent, or amount of a
PRP’s liability must be decided, determined, or settled, at
least in part, by way of agreement with the EPA.” Id. at 212
(emphasis in original).
But even if an agreement decides with finality the scope
of a PRP’s legal exposure and obligations, is its liability
“resolved” where the government reserves certain rights, or
where the party refuses to concede liability? For example,
the statutory provision setting forth EPA’s settlement
24 ASARCO V. ATLANTIC RICHFIELD
authority allows EPA to include a covenant not to sue in a
settlement agreement. 42 U.S.C. § 9622(f). But such
covenant must be conditioned on a PRP’s completed
performance. Section 122(f)(3) provides that
[a] covenant not to sue concerning future
liability to the United States shall not take
effect until the President certifies that
remedial action has been completed in
accordance with the requirements of this
chapter at the facility that is the subject of
such covenant.
Id. § 9622(f)(3). EPA must therefore preserve its ability to
bring an enforcement action even after the settlement
agreement is executed. This requirement is reflected in
EPA’s model CERCLA consent decree, which provides that
“covenants not to sue are conditioned upon the satisfactory
performance by Settling Defendants of their obligations
under this Consent Decree.” Superfund Program; Revised
Model CERCLA RD/RA Consent Decree, 60 Fed. Reg.
38,817, 38,833 (July 28, 1995). Similarly, EPA has, in the
past, included in settlement agreements releases from
liability that are conditioned on a PRP’s completed
performance. See, e.g., Bernstein, 733 F.3d at 212–13;
Florida Power Corp. v. FirstEnergy Corp., 810 F.3d 996,
1004 (6th Cir. 2015); RSR, 496 F.3d at 558. Furthermore,
parties often expressly refuse to concede liability under a
settlement agreement, even while assuming obligations
consistent with a finding of liability.
The Sixth and Seventh Circuits have decided that these
reservations of rights tip the scales against a finding that a
party has resolved its liability. In Bernstein, the Seventh
Circuit held that settling PRPs had not resolved their liability
ASARCO V. ATLANTIC RICHFIELD 25
where (i) the agreement expressly stated that the PRPs had
not conceded liability; (ii) EPA reserved its right to “seek
legal [] or equitable relief to enforce the terms of the
[agreement]”; and (iii) EPA only “conditionally promised to
release the [PRPs] from liability” upon the PRPs’ “complete
performance, as well as certification thereof.” 733 F.3d at
212–13 (emphasis in original). In rejecting the PRPs’
argument that the agreement’s covenant not to sue amounted
to the requisite resolution, the court reasoned that because
the release from liability was conditioned on completed
performance, the covenant could only take effect when
“performance was complete.” Id. at 212.
The Sixth Circuit conducted a similar analysis in ITT
Industries. 506 F.3d 452. The court found no resolution of
liability where (i) EPA reserved its right to bring legal action
for failure to comply with the agreement or for past, present,
or future response costs; and (ii) the agreement expressly
stated that the PRP did not concede liability. Id. at 459–60.
And more recently, in Florida Power, the Sixth Circuit
found no resolution where (i) EPA reserved its right to bring
a CERCLA enforcement action for violations of the
agreement; (ii) the agreement expressly stated that the PRP
“shall have resolved [its] liability to EPA” only “[f]ollowing
satisfaction of the requirements of this Consent Order”; (iii)
the agreement provided that “participation of [the PRP] in
this Order shall not be considered an admission of liability”;
and (iv) the agreement was not titled an “administrative
settlement.” 810 F.3d at 1004.
By comparison, in Hobart Corp. v. Waste Management
of Ohio, Inc., 758 F.3d 757 (6th Cir. 2014), the Sixth Circuit
held that a PRP had resolved its liability where the
agreement (i) stated that, “for purposes of
Section 113(f)(3)(B) . . . [the PRPs] have, as of the Effective
26 ASARCO V. ATLANTIC RICHFIELD
Date, resolved their liability to the United States”; (ii)
immunized the settling parties from contribution actions as
of the Effective Date; (iii) included the title, “Administrative
Settlement Agreement”; and (iv) contained a covenant
prohibiting EPA from suing under CERCLA “[i]n
consideration of the actions that will be performed and the
payments that will be made by [the PRPs] under the terms of
th[e] Settlement Agreement.” Id. at 768–69 (emphasis
added and omitted). Yet, as pointed out by the dissent in
Florida Power, the agreement in Hobart also included a
broad reservation of rights, specifying that “nothing herein
shall prevent U.S. EPA . . . from taking other legal or
equitable action as it deems appropriate or necessary.”
Florida Power, 810 F.3d at 1016 (Suhrheinrich, J.,
dissenting) (internal quotation marks omitted). Similar
provisions precluded a finding that the parties had resolved
their liability in ITT and Florida Power, thus creating what
appears to be an inconsistent approach within the Sixth
Circuit.
Further complicating the law in the Sixth Circuit is an
earlier case, RSR, in which the court held that the PRP’s
promise of future performance “resolved [its] liability to the
United States” because RSR “agree[d] to assume all liability
(vis-à-vis the United States) for future remedial actions.”
496 F.3d at 558 (emphasis in original). But, as noted again
by the dissent in Florida Power, the agreement at issue in
RSR also included a covenant not to sue conditioned on a
Certification of Completion of Remediation Action issued
by EPA. Florida Power, 810 F.3d at 1012 (Suhrheinrich, J.,
dissenting); see id. (contemplating that the covenant might
“not take effect until the remedial action was complete”).
The RSR court indicated that a promise of future
performance in an agreement suffices to constitute
resolution of liability. See 496 F.3d at 558.
ASARCO V. ATLANTIC RICHFIELD 27
We adopt a meaning of the phrase “resolved its liability”
that falls somewhere in the middle of these various cases.
We conclude that a settlement agreement must determine a
PRP’s compliance obligations with certainty and finality.
See Bernstein, 733 F.3d at 211–12 (“An issue which is
‘resolved’ is an issue which is decided, determined, or
settled—finished, with no need to revisit.”); see also Florida
Power, 810 F.3d at 1002–03. However, we disagree with
the Sixth and Seventh Circuits’ holdings in Florida Power
and Bernstein that the government must divest itself of its
ability to enforce an agreement’s terms. If a covenant not to
sue conditioned on completed performance negated
resolution of liability, then it is unlikely that a settlement
agreement could ever resolve a party’s liability. That is
because CERCLA prevents a covenant not to sue from
“tak[ing] effect until the President certifies that remedial
action has been completed . . . .” 42 U.S.C. § 9622(f)(3); see
60 Fed. Reg. at 38,833 (model consent decree, conditioning
a covenant not to sue on completed performance).
Nor do we agree—as the court held in Bernstein—that a
release from liability conditioned on completed performance
defeats “resolution.” An agreement may “resolve[]” a PRP’s
liability once and for all without hobbling the government’s
ability to enforce its terms if the PRP reneges. This
reasoning applies equally to a covenant not to sue
conditioned on completed performance. 8 It is also consistent
8
Bernstein held that an agreement containing a covenant not to sue
conditioned on completed performance could give rise to a
§ 113(f)(3)(B) contribution action after performance was completed.
733 F.3d at 204. The court reasoned that once the condition was
satisfied, the PRP had resolved its liability. Id. But such an
interpretation renders another part of § 113—the statute of limitations
provision—anomalous. The statute of limitations provision requires a
PRP to bring a contribution action “no more than 3 years after . . . entry
28 ASARCO V. ATLANTIC RICHFIELD
with the 1986 CERCLA Amendments. A House of
Representatives Committee report expresses Congress’
intent to encourage settlements by creating a right to
contribution. H.R. Rep. 99–253, pt. 1, at 80. That same
report criticizes EPA’s inclusion of releases from liability in
settlement agreements. Id. at 102–03 (“[T]he Committee
specifically notes its disapproval of the releases granted in
the settlements entered into in the Seymore Recy[c]ling case
and the Inmont case and expects and intends that any
compara[b]le releases that might be presented for court
approval would be rejected as not in the public interest.”).
Indeed, the report goes one step further, expressing an intent
to “authorize[]” EPA “to include in an agreement . . . any
provisions allowing future enforcement action . . . that
[EPA] determines are necessary and appropriate to assure
protection of public health, welfare, and the environment.”
Id. at 102 (emphasis added). Having sung the praises of
settlements providing for a right of contribution in one part
of the report, it would make little sense for Congress to
encourage EPA to craft settlements in a way that nullifies
that right in another.
of a judicially approved settlement . . . .” 42 U.S.C. § 9613(g)(3)(B)
(emphasis added). Thus, under the Seventh Circuit’s approach, a party’s
contribution action could accrue after the statute of limitations had
already expired. For example, if a settlement agreement included a
covenant not to sue conditioned on completed performance, and the
cleanup took four years, then—in the Seventh Circuit’s view—the PRP
would be precluded from ever bringing a contribution action, even
though it (eventually) satisfied the requirements for doing so. And this
would necessarily be the case because, as discussed, CERLCA requires
that a covenant not to sue be conditioned on completed performance. See
42 U.S.C. § 9622(f)(3). Where possible, we avoid construing statutes in
a way that results in such internal inconsistencies. Boise Cascade Corp.
v. EPA, 942 F.2d 1427, 1432 (9th Cir. 1991).
ASARCO V. ATLANTIC RICHFIELD 29
Moreover, unlike the court in Florida Power, we
conclude that it matters not that a PRP refuses to concede
liability in a settlement agreement. Congress’ intent in
enacting § 113(f)(3)(B) was to encourage prompt
settlements that establish PRPs’ cleanup obligations with
certainty and finality. A PRP’s refusal to concede liability
does not frustrate this objective so long as the PRP commits
to taking action. Indeed, requiring a PRP to concede liability
may discourage PRPs from entering into settlements because
doing so could open the PRP to additional legal exposure.
See 42 U.S.C. § 9607(a) (setting forth obligations of liable
PRPs).
In sum, an examination of § 113(f)(3)(B)’s plain
language, with due consideration for CERCLA’s structure
and purpose, leads us to the conclusion that a PRP
“resolve[s] its liability” to the government where a
settlement agreement decides with certainty and finality a
PRP’s obligations for at least some of its response actions or
costs as set forth in the agreement. A covenant not to sue or
release from liability conditioned on completed performance
does not undermine such a resolution, nor does a settling
party’s refusal to concede liability. Whether this test is met
depends on a case-by-case analysis of a particular
agreement’s terms.
3.
Turning to the 1998 RCRA Decree, we conclude that it
fails to resolve Asarco’s liability for any of its response
actions or costs. First, the Decree’s release from liability
covers none of the “corrective measures”—i.e., response
actions—mandated by the agreement. Paragraph 209, under
“Effect of Decree,” states that
30 ASARCO V. ATLANTIC RICHFIELD
ASARCO’s payment of all civil penalties
due, and ASARCO’s commitments to pay all
stipulated penalties due and owing under this
Decree, and ASARCO’s commitment to fully
and successfully complete the requirements
of this Decree, shall constitute full
satisfaction of the claims for civil penalties
for civil violations alleged in the complaint of
the United States that occurred prior to the
date of lodging of this Decree, except as
provided in this Paragraph . . . . This release
is conditioned upon the complete and
satisfactory performance by ASARCO of its
obligations under this Decree.
1998 RCRA Decree ¶ 209 (emphasis added). The release is
expressly limited to liability with regards to the United
States’ claims for civil penalties. Yet the complaint that
prompted the parties to reach the agreement specifically
sought both civil penalties and injunctive relief—only the
latter of which could “require ASARCO to conduct
corrective action.”
Second, the 1998 RCRA Decree is replete with
references to Asarco’s continued legal exposure. For
example, in paragraph 122, under the header “Off-Site
Access,” the agreement states unequivocally that “[n]othing
in this section shall be construed to limit or otherwise affect
ASARCO’s liability and obligation to perform corrective
measures . . . .” Similarly, in setting forth a limited covenant
not to sue, paragraph 214 states that the
Decree shall not be construed as a covenant
not to sue, release, waiver or limitation of any
rights, remedies, powers and/or authorities,
ASARCO V. ATLANTIC RICHFIELD 31
civil or criminal, which EPA has under
RCRA, CERCLA, or any other statutory,
regulatory, or common law authority, except
as provided in Paragraph 209 above . . . .
Because paragraph 209 does not address—let alone
resolve—the United States’ claims for injunctive relief, the
covenant not to sue does not restrict the United States’
authority to bring an action under CERCLA §§ 106 or 107,
which could result in additional response obligations.
42 U.S.C. §§ 9606, 9607.
Lest there be any doubt, the Decree makes the point at
least three more times. Paragraph 216 states that “except as
specifically provided in Paragraph 209,” compliance with
the Decree “shall be no defense to any action commenced”
under federal or state law. 1998 RCRA Decree ¶ 216. And
the next paragraph provides that
[e]xcept as expressly provided herein,
nothing in this Decree shall constitute or be
construed as a release from any claim, cause
of action or demand in law or equity, against
any person, firm, partnership, or corporation
for any liability it may have arising out of, or
relating in any way to, the generation,
storage, treatment, handling, transportation,
release, management or disposal of any
hazardous wastes . . . found at, on, or under,
taken to or from, or migrating to, from or
through the [lead smelter and contiguous
areas].
Id. ¶ 217 (emphasis added). Finally, paragraph 137 states
that Asarco’s CERCLA liability for response costs would
32 ASARCO V. ATLANTIC RICHFIELD
not be released even if Asarco fully complied with the
Decree:
Notwithstanding compliance with the terms
of this Decree, ASARCO is not released from
liability, if any, for the costs of any response
actions taken or authorized by EPA under any
applicable statute, including CERCLA.
Simply put, the 1998 RCRA Decree did not just leave open
some of the United States’ enforcement options, it preserved
all of them. Because the Decree did not settle definitively
any of Asarco’s response obligations, it did not “resolve[]
[Asarco’s] liability.” See 42 U.S.C. § 9613(f)(3)(B).
Accordingly, Asarco could not have brought a contribution
action pursuant to the 1998 RCRA Decree and the
corresponding limitations period did not run with that
agreement. 9
9
Asarco was not without recourse to seek reimbursement for costs
incurred under the RCRA Decree. As discussed in Part III, supra, where
a § 113(f) contribution action is unavailable, a PRP may be able to bring
a § 107 “cost recovery” action against other PRPs to recoup “any . . .
necessary costs of response incurred” that result from a release of a
hazardous substance. 42 U.S.C. § 9607(a); see Bernstein, 733 F.3d at
214. Put another way, a PRP that has taken a response action but has not
entered into a settlement agreement that resolves its liability has satisfied
the criteria for bringing a § 107 action. A § 107 action has at least three
advantages and one disadvantage compared to a § 113(f)(3)(B) action:
(i) § 107(a) comes with a longer statute of limitations period than
§ 113(f)(3)(B) (six years versus three), (ii) it provides the possibility of
joint and several liability, and (iii) it comes with limited defenses—e.g.,
acts of God, acts of war, and third-party omissions. See Burlington N. &
Santa Fe Ry. Co. v. United States, 556 U.S. 599, 614 (2009) (joint and
several liability is available under § 107 unless the harms caused by
multiple entities “are capable of apportionment”); NCR Corp. v. George
ASARCO V. ATLANTIC RICHFIELD 33
Asarco “Resolved Its Liability” Under the 2009
CERCLA Decree
The district court held that Asarco’s contribution claim
for response costs incurred under the 2009 CERCLA Decree
was time-barred based on the erroneous conclusion that
Asarco could have brought its action under the 1998 RCRA
Decree. Asarco argues the district court erred because it
brought its action no more than three years after entry of the
June 2009 CERCLA Decree, which it argues “resolved its
liability” for the first time, and therefore its action is timely.
We agree with Asarco.
Asarco has a timely contribution claim under the
CERCLA Decree if three conditions are met. First, Asarco
must have brought its action within three years after the date
the settlement was judicially approved. 42 U.S.C.
§ 9613(g)(3)(B). Second, the CERCLA Decree must cover
response actions or costs of response. Id. § 9613(f)(3)(B).
And third, the CERCLA Decree must “resolve[]” Asarco’s
liability for at least some response actions or costs. Id.
Statute of limitations. Section 113(g)(3) requires a party
seeking contribution to bring its action no more than “3 years
after . . . the date of . . . entry of a judicially approved
settlement.” Id. § 9613(g)(3). The bankruptcy court
approved and entered the CERCLA Decree on June 5, 2009.
Asarco brought its contribution action on June 5, 2012. In
its denial of Atlantic Richfield’s motion to dismiss, the
A. Whiting Paper Co., 768 F.3d 682, 690 (7th Cir. 2014) (discussing
limited defenses under § 107); 42 U.S.C. § 9607(a)(4)(B) (listing
defenses). On the other hand, a party that is ineligible to bring a § 113(f)
contribution action—and therefore must resort to § 107(a)—does not
enjoy protection from other PRPs’ contribution actions. See 42 U.S.C.
§ 9613(f)(2).
34 ASARCO V. ATLANTIC RICHFIELD
district court held that Asarco’s claim was timely. Dist. Ct.
Dkt. 49, at 6–7. On appeal, Asarco reiterates that its action
“was filed within three years of a settlement that did in fact
resolve Asarco’s liability at the Site.” Conspicuously absent
from Atlantic Richfield’s brief is any contention that the
district court erred on this issue. We therefore deem
abandoned Atlantic Richfield’s argument that Asarco’s
claim is time-barred as measured against the CERCLA
Decree. See Collins v. City of San Diego, 841 F.2d 337, 339
(9th Cir. 1988) (issue abandoned where not raised on
appeal).
Even if Atlantic Richfield did not abandon this claim, we
would conclude Asarco’s claim is timely. Under
§ 113(g)(3), the day of the event that triggers the period is
excluded for purposes of computing the period’s end date.
See Asarco, LLC v. Union Pac. R.R. Co., 765 F.3d 999,
1007–08 (9th Cir. 2014). Therefore, the first day of the
period would be June 6, 2009, and the last day for filing
would be June 5, 2012. See id. at 1007. Asarco met this
deadline.
Response actions or costs. The CERCLA Decree
required Asarco to pay $99.294 million (plus other
expenses) into a custodial trust account to clean up the East
Helena Site. The account covers expenses for past and
future response actions, including, inter alia, “remedial
actions, removal actions, [and] corrective action” at the Site.
The CERCLA Decree also settled all obligations under the
1998 RCRA Decree, which, as described in Part IV.B, supra,
itself addressed response actions. It is therefore beyond cavil
that the CERCLA Decree covers “response” actions or costs
of response.
Resolution of liability. Asarco argues that the CERCLA
Decree “unequivocally” resolved its liability for all of its
ASARCO V. ATLANTIC RICHFIELD 35
response costs at the Site. Atlantic Richfield does not
directly address this issue, but instead asserts that the
CERCLA Decree did not “trigger a new limitations period
for costs incurred under the 1998 [RCRA] Consent Decree”
because the CERCLA Decree served only as a “funding
mechanism” for Asarco’s “preexisting commitments.”
Atlantic Richfield asserts that deeming Asarco’s
contribution claim timely would work an injustice by
allowing Asarco to incur cleanup obligations, sit on its rights
and do nothing for years, and then pursue a stale claim
through bankruptcy by virtue of its own indolence.
We agree with Asarco and hold that the CERCLA
Decree “resolved” its liability for all of its response costs at
the Site. 10 For example, the Decree sets forth a covenant not
to sue that is immediately effective and covers all of
Asarco’s response obligations. The covenant provides, in
relevant part, that
10
While the district court did not address whether the CERCLA
Decree resolved Asarco’s liability, we need not remand to the district
court for consideration of this issue in the first instance. Whether the
CERCLA Decree resolved Asarco’s liability is an “issue fairly included
within the question presented,” namely, whether the district court erred
in holding that Asarco could not maintain a contribution action under the
CERCLA Decree. See Lewis v. Clarke, 137 S. Ct. 1285, 1293 n.3 (2017).
It was also raised before the district court, see Asarco Opp. to Mot. for
Summary Judgment, Dist. Ct. Dkt. 161, at 11 (“The CERCLA Decree
resolved Asarco’s CERCLA liability at East Helena for the first time.”),
requires no supplementation of the record, and is pressed by Asarco on
appeal. We therefore proceed to the merits and decide whether the
CERCLA Decree resolved Asarco’s liability. See Lewis, 137 S. Ct. at1293 n.3.
36 ASARCO V. ATLANTIC RICHFIELD
upon the Effective Date and Debtors’ 11 full
funding of all Custodial Trust Accounts . . .
the United States [and Montana] covenant[]
not to sue or assert any civil claims or civil
causes of action against [Asarco] . . . pursuant
to Sections 106 and 107(a) of CERCLA,
42 U.S.C. §§ 9606, 9607(a), and RCRA,
42 U.S.C. § 6901, et seq., Sections 301(a),
309(b), and 311 of CWA, 33 U.S.C.
§§ 1311(a), 1319(b), and 1321, or any similar
state law, including any liabilities or
obligations asserted in the United States’
[and Montana’s] Proofs of Claim with
respect to the East Helena Site.
CERCLA Decree ¶¶ 28–29. Thus, so long as Asarco funds
the Custodial Trust Accounts, 12 it is released from liability
for all response obligations under prior settlements,
including “corrective measures” under the RCRA Decree.
Other parts of the Decree are similarly all-encompassing.
For example, the section setting forth reservations of rights
by the government is, in pertinent part, limited to Asarco’s
“future acts.” Under that provision, the United States and
Montana “specifically reserve . . . liability for[, inter alia,]
response costs [and] response actions . . . under CERCLA,
RCRA, CWA, [the Montana Comprehensive Environmental
Cleanup and Responsibility Act] or any other law for
11
Asarco is a “debtor” under the agreement.
12
Asarco asserts that it has funded the custodial trust account, and
Atlantic Richfield’s brief concedes the point. We assume that Asarco
has complied with the CERCLA Decree’s payment obligations with
respect to the East Helena Site.
ASARCO V. ATLANTIC RICHFIELD 37
Debtors’ . . . future acts creating liability” under those
statutes “that occur after the Closing Date.” CERCLA
Decree ¶ 39 (emphasis added). The section expressly does
not reserve any rights to hold Asarco liable under any legal
authority with respect to then-existing contamination
beyond its payment obligations under the agreement. See id.The agreement also caps Asarco’s “total financial
obligations” for past contamination at the amount specified
in the agreement. CERCLA Decree ¶ 8.h. While it leaves
open the possibility that Asarco may owe certain additional
costs, those costs do not include response costs. Id. In other
words, Asarco’s financial liability was “resolved”—i.e.,
determined with finality—under the agreement itself; the
agreement did not expose Asarco to future liability for past
hazardous waste releases.
The agreement also provides Asarco with protection
against contribution actions by non-settling parties, as
provided under CERCLA § 113(f)(2), 42 U.S.C.
§ 9613(f)(2). CERCLA Decree ¶ 43. Contribution
protection applies only to “[a] person who has resolved its
liability . . . in an administrative or judicially approved
settlement.” 42 U.S.C. § 9613(f)(2) (emphasis added). The
agreement’s incorporation of that provision is further
evidence that Asarco “resolved its liability” under the
agreement. See Hobart, 758 F.3d at 768–69 (incorporation
of provision immunizing a settling PRP from contribution
weighed in favor of finding that the agreement resolved its
liability).
Finally, we consider Atlantic Richfield’s concern that
deeming Asarco’s contribution claim timely would allow
Asarco to benefit from its own alleged neglect under the
RCRA Decree. We sympathize with Atlantic Richfield’s
position but cannot agree with its conclusion. Whether a
38 ASARCO V. ATLANTIC RICHFIELD
right of contribution is available does not depend on whose
ox gets gored: the fact that Asarco and not some other party
was liable under the RCRA Decree does not change the fact
that that agreement did not give rise to a right of
contribution, whereas the CERCLA Decree did.
In sum, the CERCLA Decree constitutes a “firm decision
about” Asarco’s liability that lends it the requisite degree of
finality. See Bernstein, 733 F.3d at 211 n.12. We therefore
hold that Asarco has a cognizable claim for contribution
under CERCLA § 113(f)(3)(B) because it brought a timely
action under an agreement that resolved its liability. 13
V. Conclusion
We hold that the 1998 RCRA Decree did not resolve
Asarco’s liability for at least some of its response obligations
under that agreement. It therefore did not give rise to a right
to contribution under CERCLA § 113(f)(3)(B). By contrast,
the 2009 CERCLA Decree did resolve Asarco’s liability,
and Asarco has brought a timely action for contribution
under that agreement. We therefore vacate the district
court’s grant of summary judgment and remand for further
proceedings consistent with this opinion. On remand, the
district court should determine whether Asarco is entitled to
any financial contribution from Atlantic Richfield and, if so,
how much.
13
We express no opinion on the scope of contribution and protection
rights where a settlement agreement, unlike this CERCLA Decree,
resolves a PRP’s liability only for some of its response obligations. Cf.
Whittaker, 825 F.3d at 1008 (a party may not seek contribution for
expenses that are not “at issue in the triggering . . . settlement”).
ASARCO V. ATLANTIC RICHFIELD 39
Costs are awarded to the Appellant.
VACATED and REMANDED.