950 F.3d 104
D.C. Cir.2020Background
- The U.S. Navy operated the Ordot Dump on Guam for decades; the unlined landfill released leachate and contaminants into local waterways.
- EPA sued Guam in 2002 under the Clean Water Act; Guam and EPA entered a 2004 judicially‑approved Consent Decree requiring Guam to close the dump, pay penalties, and design/install a landfill cover.
- Guam closed the dump in 2011 but in 2017 sued the United States under CERCLA § 107 for cost recovery of remediation/closure expenses and alternatively sought contribution under § 113(f).
- The United States moved to dismiss, arguing the 2004 Consent Decree triggered § 113(f)(3)(B), so Guam’s proper remedy was a § 113 contribution claim and that any such claim is time‑barred by the three‑year limit.
- The district court denied dismissal, but the D.C. Circuit certified and took interlocutory review; the D.C. Circuit reversed, holding the Consent Decree resolved Guam’s liability under § 113(f)(3)(B) and precluded a § 107 action, and remanded with instructions to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 107 and § 113(f)(3)(B) remedies can be pursued concurrently | Guam: § 107 cost‑recovery remains available even if settlement compelled costs; § 113 is not exclusive | United States: A party who settled and thus may bring § 113 contribution must use § 113; allowing § 107 would nullify § 113(f)(3)(B) | Held: Mutually exclusive in this context; settling PRPs must proceed under § 113 rather than § 107 |
| Whether § 113(f)(3)(B) bars suits against a party that is a "party to a settlement" generally | Guam: § 113(f)(3)(B)’s “not party to a settlement” language could bar contribution against U.S.; Consent Decree was between Guam and EPA, not the Navy | United States: Phrase means a contribution claimant cannot sue parties protected by a § 113(f)(2) settlement; does not categorically bar suits against a settling government agency | Held: Read harmoniously with § 113(f)(2); phrase excludes only parties protected by a § 113(f)(2) settlement, so Guam’s suit against the Navy is not precluded by that phrase alone |
| Whether a non‑CERCLA settlement (e.g., a CWA consent decree) can trigger § 113(f)(3)(B) | Guam: § 113(f)(3)(B) requires resolving CERCLA liability specifically | United States: § 113(f)(3)(B) contains no CERCLA‑specific limitation; non‑CERCLA settlements can trigger § 113(f)(3)(B) | Held: A non‑CERCLA judicially‑approved settlement can trigger § 113(f)(3)(B) |
| Whether the 2004 Consent Decree “resolved” Guam’s liability for “some or all of a response action” | Guam: Decree disclaims liability, reserves rights, conditions release on performance, and addresses CWA violations, so it didn’t resolve CERCLA liability | United States: Decree required remedial measures (cover system) that qualify as CERCLA "response" actions and thus resolved liability for some response actions | Held: The Decree required construction of a cover (a CERCLA remedial/response action), thereby resolving Guam’s liability for some response action and triggering § 113(f)(3)(B); Guam’s § 107 claim is precluded and its contribution claim is time‑barred |
Key Cases Cited
- United States v. Atlantic Research Corp., 551 U.S. 128 (2007) (addresses potential overlap between § 107 cost‑recovery and § 113 contribution remedies)
- Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157 (2004) (discusses development of contribution remedy in CERCLA)
- Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599 (2009) (explains practical effect of joint and several liability under CERCLA)
- Asarco LLC v. Atl. Richfield Co., 866 F.3d 1108 (9th Cir. 2017) (holds non‑CERCLA settlements can trigger § 113(f)(3)(B))
- Refined Metals Corp. v. NL Indus. Inc., 937 F.3d 928 (7th Cir. 2019) (concludes § 113(f)(3)(B) does not require settlements to mention CERCLA)
- Bernstein v. Bankert, 733 F.3d 190 (7th Cir. 2013) (interprets "resolved" to mean liability has been decided or settled by agreement)
- United States v. Alcan Aluminum, Inc., 25 F.3d 1174 (3d Cir. 1994) (explains how government settlement can immunize settlors from later contribution suits)
- United States v. Bestfoods, 524 U.S. 51 (1998) (describes CERCLA’s purposes and context)