Arconic, Inc. v. Apc Investment Co.
969 F.3d 945
| 9th Cir. | 2020Background
- Omega Chemical’s Whittier facility heavily contaminated soil and groundwater; EPA designated OU‑1 (plant vicinity) and later OU‑2 (downgradient plume).
- OPOG (group of Omega customers) negotiated and entered a judicial consent decree resolving OU‑1 liability in 2001; OPOG sued potential contributors in 2004.
- Many defendants in that suit were EPA‑designated de minimis parties; OPOG settled with them in 2007 for cash and by assuming their "responsibilities," receiving judicial approval.
- EPA later selected a remedy for OU‑2; the United States and OPOG entered a 2017 consent decree obligating OPOG to implement and fund OU‑2 remediation.
- OPOG sued APC defendants for contribution to OU‑2 costs; the district court held OPOG’s claims time‑barred (statute ran from 2007 settlement) and estopped OPOG. Ninth Circuit reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a judicially approved settlement "with respect to such costs" under 42 U.S.C. § 9613(g)(3)(B) begins the § 113(f) limitations period when the settlement does not impose costs on the party seeking contribution | "Such costs" means the costs imposed on the contributor; a settlement only triggers the clock if it imposed the liability/costs on the claimant | Any settlement relating in some way to the category of costs qualifies to start the limitations period; statute references "costs" not "liabilities" | A § 113(f) triggering settlement must impose liability or costs on the party seeking contribution; a mere transfer of de minimis parties’ responsibilities that did not create liability for OPOG did not start the clock. |
| Whether the 2007 de minimis settlement with certain parties barred OPOG’s contribution claims for OU‑2 | 2007 settlement did not resolve or impose OU‑2 liabilities on OPOG; the triggering settlement for OU‑2 was the 2017 consent decree | 2007 settlement covered site‑wide responsibilities and thus started the three‑year limitations period for OU‑2 claims | The 2007 settlement did not resolve OU‑2 liability and did not trigger the § 113(g)(3)(B) limitations period; the 2017 OU‑2 consent decree did, and OPOG sued within three years of it. |
| Whether OPOG is judicially estopped from pursuing OU‑2 contribution because of earlier pleadings/settlement | Earlier filings asserted both § 113(f) and § 107(a) theories and did not establish the precise OU‑2 liabilities at issue now; OPOG’s present position is consistent with the substance of earlier pleadings | OPOG previously pursued contribution (and approved the 2007 settlement) so it cannot now say the claim arose only after 2017 | No judicial estoppel: prior pleadings included § 107 claims and the 2007 settlement did not impose the APC defendants’ OU‑2 liability; district court abused discretion in finding estoppel. |
Key Cases Cited
- United States v. Atlantic Research Corp., 551 U.S. 128 (2007) (distinguishes §107 cost‑recovery from §113(f) contribution; contribution arises after a party faces or incurs liability)
- Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599 (2009) (CERCLA’s remedial purpose and cost‑allocation principles)
- Asarco LLC v. Celanese Chem. Co., 792 F.3d 1203 (9th Cir. 2015) (statutory context for when settlements trigger §113(g)(3) limitations; look to the settlement that actually defines who pays)
- Whittaker Corp. v. United States, 825 F.3d 1002 (9th Cir. 2016) (§113(f)(1) recovery limited to expenses for which a party is found liable)
- Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157 (2004) (interpretation of contribution and timing under CERCLA)
- Key Tronic Corp. v. United States, 511 U.S. 809 (1994) (CERCLA encourages private parties to undertake cleanup and seek cost recovery)