Whittaker Corporation v. United States, 2016 U.S. App. LEXIS 10660

Whittaker Corporation owned and operated a former munitions facility (Bermite Site) where contamination occurred; most operations were military contracts.
In 2000 Whittaker was sued by Castaic Lake Water Agency under CERCLA §107 and state tort law for perchlorate contamination of groundwater; the district court granted summary judgment for plaintiffs on the CERCLA claim.
Whittaker settled the Castaic Lake claims in 2007, reimbursing plaintiffs for costs tied to removing perchlorate and purchasing replacement water; the settlement did not require Whittaker to clean the Bermite Site itself.
In 2013 Whittaker sued the United States under CERCLA §107 seeking recovery of its own decades-long investigation and cleanup costs at the Bermite Site (soil, groundwater, sampling, remedial work), expressly excluding costs for which it had already been held liable or settled in Castaic Lake.
The United States moved to dismiss, arguing Whittaker was limited to a §113 contribution action (and that contribution claims were time-barred) because the Castaic Lake litigation triggered Whittaker’s right to contribution; the district court granted dismissal.
The Ninth Circuit reversed, holding Whittaker may pursue a §107 cost-recovery action for expenses not covered by the prior judgment or settlement, and was not required to seek contribution for those separate costs.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Whittaker must bring all site-related reimbursement claims as §113 contribution once it was sued in a §107 action	Whittaker: §107 cost recovery is available for its own costs that were not the subject of the prior suit or settlement	United States: once a §107 suit triggers §113, contribution covers all site costs and Whittaker is limited to §113 for everything	Court: Whittaker may bring §107 cost-recovery for expenses separate from those for which liability was established in Castaic Lake (reversed dismissal)
Whether the §113 contribution trigger in prior litigation starts contribution rights/statutes for unrelated site costs	Whittaker: contribution is limited to costs for which liability was established or resolved; other costs remain recoverable under §107	United States: procedural trigger (being sued) converts all site costs into contribution claims subject to §113	Court: contribution rights/statute are tied to the specific costs resolved or covered by the triggering judgment/settlement; separate costs may proceed under §107

United States v. Atlantic Research Corp., 551 U.S. 128 (distinguishing §107 cost recovery from §113 contribution; defining contribution in traditional tort terms)
Kotrous v. Goss-Jewett Co. of N. Cal., 523 F.3d 924 (9th Cir.) (PRPs must proceed under §113(f) when statutory triggers apply for those costs)
Bernstein v. Bankert, 733 F.3d 190 (7th Cir.) (permitting §107 recovery for costs not resolved by the triggering settlement; separate-cost analysis)
NCR Corp. v. George A. Whiting Paper Co., 768 F.3d 682 (7th Cir.) (analyzing separate orders and when each triggers contribution)
Agere Systems, Inc. v. Advanced Envtl. Tech. Corp., 602 F.3d 204 (3d Cir.) (allowing §107 recovery for costs not covered by prior §107 suit or settlement)
Am. Cyanamid Co. v. Capuano, 381 F.3d 6 (1st Cir.) (statute-of-limitations and trigger analysis tied to costs in the specific judgment)
ASARCO, LLC v. Celanese Chem. Co., 792 F.3d 1203 (9th Cir.) (separate obligations in settlements do not bar later contribution for different obligations)