In this action under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), Con Edison (“Con Ed”) seeks to be reimbursed by UGI Utilities, Inc. (“UGI”) for costs it has incurred cleaning up certain contaminated sites in Westchester County, New York. The district court (Chin, J.) granted summary judgment to UGI on all claims.
Consol. Edison Co. of N.Y., Inc. v. UGI Utils., Inc.,
BACKGROUND
This litigation concerns the cleanup of sites in Westchester County that allegedly were contaminated by operations at Manufactured Gas Plants, industrial facilities at which gas was produced from coal, oil, or *93 other energy sources. 2 In October 1999, the New York State Department of Environmental Conservation (the “Department”) asked Con Ed for information about locations at which the company or its predecessors formerly operated Manufactured Gas Plants. Con Ed owns or operates many such plants, including ten in Westchester County, New York (the “Westchester Plants”). 3 On August 15, 2002, Con Ed entered into a “Voluntary Cleanup Agreement” to clean up more than 100 sites at which Con Edison or its predecessors might have formerly owned or operated Manufactured Gas Plants. These sites apparently included the sites of seven of the ten Wеstchester Plants. 4
Prior to entering into this Voluntary Cleanup Agreement, Con Ed sued UGI seeking to recoup costs Con Ed had incurred and would incur in cleaning up sites allegedly contaminated by the ten West-chester Plants. Con Ed represents that it has already expended in excess of $4 million to investigate and clean up the sites of the Westchester Plants, and that the total amount to complete investigation and cleanup may exceed $100 million. Con Ed alleges that UGI or its predecessors operated the Westchester Plants, and that UGI is thus liable for remedial costs under CERCLA, as well as under New York State Navigation Law and negligence law.
On July 2, 2003, UGI moved for summary judgment on Con Ed’s claims against it. On November 25, 2003, the district court heard oral argument, at the conclusion of which the court dismissed Con Ed’s veil-piercing claims and state law claims, as well as all claims relating to the three Westchester Plants located in Yonkers, based on a release granted to UGI. After initially reserving judgment on the operator claims concerning the remaining West-chester Plants, the district court, on March 29, 2004, granted UGI’s motion for summary judgment in its entirety, finding that no reasonable juror could conclude that UGI is subject to operator liability under CERCLA with respect to the Westchester Plants not located in Yonkers.
Con Ed appealed on May 4, 2004, arguing that the district court erred in granting UGI summary judgment on 1) Con Ed’s CERCLA operator liability claims as to the Westchester Plants not located in Yonkers, and 2) UGI’s claim that it was rеleased from liability as to the Westches-ter Plants located in Yonkers.
After the parties had completed briefing these issues, but before oral argument, the
*94
Supreme Court issued its decision in
Cooper Industries, Inc. v. Aviall Services, Inc.,
— U.S. —,
DISCUSSION
A. The CERCLA Cost Recovery and Contribution Framework
CERCLA is a comprehensive federal law governing the remediation of sites contaminated with pollutants. Two of its primary goаls include “encourag[ing] the timely cleanup of hazardous waste sites,” and “placing] the cost of that [cleanup] on those responsible for creating or maintaining the hazardous condition.”
Control Data Corp. v. S.C.S.C. Corp.,
In order to achieve these goals, CERC-LA, in three separate аnd different provisions, authorizes parties to recoup money spent to clean up and prevent future pollution at contaminated sites or to reimburse others for cleanup and prevention at contaminated sites: (1) section 107(a), which permits the general recovery of cleanup and prevention costs; (2) section 113(f)(1), which creates a contribution right for parties liable or potentially liable under CERCLA; and (3) section 113(f)(3)(B), which creates a contribution right for parties that have resolved their liability by settlement.
Section 107(a) states that various persons, including the owner or operator of a facility, may be held liable for, among other things, “all costs of removal or remedial action inсurred by the United States Government or a State ... not inconsistent with the national contingency plan.” 42 U.S.C. § 9607(a)(4)(A). Pursuant to this provision, the government routinely brings suits to obtain reimbursement for the costs- — also known as response costs — of cleaning up and preventing future contamination at a site.
See, e.g., United States v. LTV Corp.,
Section 113(f)(1) expressly creates a contribution right for parties liable or potentially liable under CERCLA. It states that “[a]ny person may seek contribution from any other person who is liable or potentially liable under [section 107(a) ], during or following any civil action under [section 106] or under [section 107(a) ].”
5
42 U.S.C. § 9613(f)(1). In
Cooper Industries,
the Supreme Court considered whether a private party who has not been sued under section 106 or section 107(a) may nevertheless obtain contribution under section 113(f)(1) from other liable parties.
See Cooper Industries, Inc. v. Aviall Services, Inc.,
— U.S. —, —,
Finally, section 113(f)(3)(B) creates contribution rights for settling parties. It 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” that has not itself settled with the United States. 42 U.S.C. § 9613(f)(3)(B).
For subject matter jurisdiction to exist in this case, Con Ed’s claims must have arisen under one of the above provisions.
See
28 U.S.C. § 1331 (granting the federal district courts jurisdiction of “civil actions arising under thé ... laws ... of the United States”);
see also Barbara v. New York Stock Exch.,
B. Subject Matter Jurisdiction Does Not Exist Under Section 113(f)(3)(B)
Con Ed argues that its Voluntary Cleanup Agreement with the Department constitutes a section 113(f)(3)(B) administrativе settlement, that it has, as a result, “resolved its liability to ... a State ... in an administrative or judicially approved settlement,” 42 U.S.C. § 9613(f)(3)(B), and that it should be permitted to pursue a cause'of action under this provision.
We read section 113(f)(3)(B) to create a contribution right only when liability for CERCLA claims, rather than some broader category of legal claims, is resolved. This seems clear because resolution of liability for “response action[s]” is a prerequisite to a section 113(f)(3)(B) suit — and a “response action” is a
CERC
LA-specific term describing an action to
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clean up a site or minimize the release of contaminants in the future.
6
Moreover, the legislative history of the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), which enacted section 113, confirms this reading. The repоrt of the House Committee on Energy and Commerce accompanying SARA states that section 113 “clarifies and confirms the right of a person held jointly and severally liable
under CERCLA
to seek contribution from other potentially liable parties.” H.R.Rep. No. 99-253(1), at 79 (1985) (emphasis added). The report of the Senate Environment and Public Works Committee contains similar language.
See
S. Rep. 99-11, at 44 (1985). This history makes no mention of any intent to meddle with the contribution rules governing settlement of non-CERCLA claims. Accordingly, we believe section 113(f)(3)(B) does not permit contribution actions based on the resolution of liability for state law — but not CERCLA — claims.
See W.R. Grace & Co. v. Zotos Int'l Inc.,
The operative question in deciding whether Con Ed’s claims arise under section 113(f)(3)(B), then, is whether Con Ed resolved its CERCLA liability before bringing suit against UGI.
In the Voluntary Cleanup Agreement, the Department promised that if Con Ed cleaned up the properties specified in the agreement according to the agreement’s terms, the Department would furnish Con Ed with a Release and Covenant Not to Sue. The Release and Covenant Not to Sue states that the Department “releases, covenants not to sue, and shall forebear from bringing any action, proceeding, or suit pursuant to the [New York] Environmental Conservation Law, the Navigation Law or the State Finance Law, and from referring to the Attorney General any claim for recovery of costs incurred by the Department ... for the further investigation and remediation of the Site, based upon the release or threatened release of Covered Contamination.” This language makes clear, contrary to Con Ed’s contentions, that the only liability that might some day be resolved under the Voluntary Cleanup Agreement is liability for state law — not CERCLA — claims. 7
To be sure, the Voluntary Cleanup Agreement does refer to CERCLA in its “Reservation of Rights” section. There, the agreement states:
Except for the Department’s right to take any investigatory or remedial ac *97 tion deemed necessary as a result of a significant threat resulting from the Existing Contamination or to exercise summаry abatement powers, the Department shall not take any enforcement action under [Environmental Conservation Law] Article 27, Title 13, under CERCLA, under the [Navigation Law], or under comparable statutory or common law theories of remedial liability with respect to the Existing Contamination, to the extent that such contamination is being addressed under the Agreement, against Volunteer or Volunteer’s grantees, successors or assigns during the implementation of this Agreement, provided such party is in compliance with the terms and provisions of this Agreement, including without limitation the requirements of all Work Plans and amendments thereto.
However, this language cannot be construed to have resolved Con Ed’s CERC-LA liability. In fact, the exceptiоn enunciated at the beginning of this section of the agreement- — which reserves the Department’s right to take action under CERC-LA “deemed necessary as a result of a significant threat resulting from the Existing Contamination or to exercise summary abatement powers” — leaves open the possibility that the Department might still seek to hold Con Ed liable under CERC-LA. Moreover, to the extent that this language affords Con Ed any protection at all, that protection only lasts “during the implementation of this Agreement,” i.e., while Con Ed is cleaning up the designated sites. Once the cleanup is completed, the Department will apparently regain the rights relinquished in this section of the agreement, and grant Con Ed only the releases specifiеd in the Release and Covenant Not to Sue. This language, therefore, does not in any way suggest that Con Ed resolved its liability to the Department under CERCLA.
For these reasons, we conclude that Con Ed may not pursue its action under section 113(f)(3)(B).
C. Subject Matter Jurisdiction Does Exist Under Section 107(a)
We believe, however, that Con Ed may pursue its suit under section 107(a) because, in light of Cooper Industries, Con Ed’s costs to clean up the sites of the Westchester Plants are “costs of response” within the meaning of that section.
After CERCLA’s enactment in 1980 but before section 113(f)(1) was enacted, certain courts held that section 107(a) permitted certain private parties that, if sued, would be held liable under section 107(a)— often called “potentially responsiblе persons,” or “PRPs” — -to sue other parties to recover response costs incurred voluntarily.
8
See Wickland Oil Terminals v. Asarco, Inc.,
Congress amended CERCLA when it passed SARA in 1986. See generally Pub.L. No. 99 — 499, 100 Stat. 1613. That legislation enacted section 113(f)(1), which, as described supra, creates an express cause of action for contribution. 42 U.S.C. § 9613(f)(1).
After section 113(f)(l)’s enactment, this circuit considered the relationship between section 107(a) and section 113(f)(1) in
Bedford Affiliates v. Sills,
This court observed that “[t]o bring a derivative action to recoup the portion of costs exceeding a potentially responsible person’s equitable share of the overall liability ... is a quintessential claim for contribution, where a party seeks to apportion liability for an injury for which it is also directly liable.” Id. at 424. Concluding that CERCLA § 113(f) “plainly governs such contribution actions,” this court reasoned that the plaintiff “could not pursue a § 107(a) cost recovery claim against [the defendants] due to its status as a potentially responsible person.” Id. at 423-24. The court observed that section 113(f)(1) has a three-year statute of limitations, whereas section 107(a) has a six-year statute of limitations, and added that “[w]ere we to permit a potentially responsible person to elect recovery under either § 107(a) or § 113(0(1), § 113(f)(1) would be rendered meaningless,” because “[a] recovering liable party would readily abandon a § 113(f)(1) suit in favor of the substantially more generous provisions of § 107(a).” Id. at 424. Thus, in Bedford Affiliates, the court proceeded to analyze the plaintiffs *99 claim only as one for contribution under section 113(f)(1). Id. at 425, 427-30.
Con Ed appears willing to accept that Bedford Affiliates stands for the proposition that section 107(a) may never provide a right of action for a party that, if sued, would be held liable under that section. We disagree, concluding that the facts of Bedford Affiliates differ from the case before us in a significant way. Before we explain that difference — and the reason why we need not revisit Bedford Affiliates’s section 107(a) holding — we lay out our own understanding of how, in light of Cooper Industries, section 107(a) applies to the facts of this case.
Following the enactment of section 113(f), some courts concluded that even though any party could seek reimbursement for costs under section 107(a), actions by parties that might themselves be liable under section 107(a) were “necessarily actions for contribution, and [were] therefore governed by the mechanisms set forth in § 113(f).”
Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp.,
In Cooper Industries, however, the Supreme Court expressly stated that the section 107(a) cost recovery remedy and the section 113(f)(1) contribution remedy, though “similar at a general level in that they both allow private parties to recoup costs from other private parties,” are “clearly distinct.” Id. at 582 n. 3. Moreover, the Court held in Cooper Industries that a section 113(f)(1) action is only available during or following a specified civil action. Cooper Industries, 125 S.Ct. at 583. This holding impels us to conclude that it no longer makes sense to view section 113(f)(1) as the means by which the section 107(a) cost recovery remedy is effected by parties that would themselves be liable if sued under section 107(a). Each of those sections, 107(a) and 113(f)(1), embodies a mechanism for cost recovery available to persons in different procedural circumstances.
Given that section 107(a) is distinct and independent from section 113(f)(1), and that section 113(f)(l)’s remedies are not available to a person in the absence of a civil action as specified in that section, determining whether a party in Con Ed’s circumstances may sue under section 107(a) is easily resolved based on that section’s plain language. Section 107(a) makes parties liable for the government’s remedial and removal costs and for “any other necessary costs of response incurred by any other person consistent with the national contingency plan.” 42 U.S.C. § 9607(a)(4)(B). The only questions we must answer are whether Con Ed is a “person” and whether it has incurred “costs of response.” We have no doubt that Con Ed is a “person” under CEB.CLA because it is a “firm” or “corporation” within the meaning of the act. 42 U.S.C. § 9601(21). Moreover, Con Ed has incurred and is incurring “costs of response,” in that it is incurring costs of “removal” and “remedial action,” § 9601(25), at the sites of the Westchester Plants, and those costs were not imposed on Con Ed as the result of an administrative or court order or judgment.
Unlike some other courts, we find no basis for reading into this language a distinction between so-called “innocent” parties and parties that, if sued, would be held liable under section 107(a).
See, e.g., United Techs. Corp.,
Moreover, we believe we would be im-permissibly discouraging voluntаry cleanup were we to read section 107(a) to preclude parties that, if sued, would be held liable under section 107(a) from recovering necessary response costs. Were this economic disincentive in place, such parties would likely wait until they are sued to commence cleaning up any site for which they are not exclusively responsible because of their inability to be reimbursed for cleanup expenditures in the absence of a suit.
See Syms v. Olin Corp.,
For these reasons, we hold that section 107(a) permits a party that has not been sued or made to participate in an administrative proceeding, but that, if sued, would be held liable under section 107(a), to recover necessary response costs incurred voluntarily, not under a court or administrative order or judgment. 11
This holding does not require us to revisit Bedford Affiliates because of critical distinctions between that case and this *101 one. 12
First, unlike in this case where there has been no adjudication of Con Ed’s liability for response costs and no administrative or judicially approved settlement requiring Con Ed to incur those expenses, in
Bedford Affiliates,
the plaintiff had entered into two consent orders with the Department, pursuant to which the plaintiff began cleanup and remedial action.
Bedford Affiliates,
It may be that when a party expends funds for cleanup solely due to the imposition of liability through a final administrative order, it has not, in fact, incurred “necessary costs of response” within the meaning of section 107(a). As the District Court for the Middle District of North Carolina stated in
United States v. Taylor,
*102 Second, the Bedford Affiliates plaintiff, having agreed to the consent order, put the extent of its liability at issue by proceeding to seek recovery under both sections 107(a) and 113(f)(1). As noted, under section 113(f), the district court found that the plaintiff was partially liable for the costs of response. To rule that in those circumstances Bedford could have proceeded under section 107(a) to seek recovery of one hundred percent of thе costs, this court would have had to hold in substance that a party already adjudicated liable for a portion of the costs of response under section 113(f)(1) could circumvent that section by recovering under section 107(a) that portion of the costs attributed to it by the adjudication. That is, having found that the district court did not abuse its discretion in attributing to Bedford responsibility for five percent of the necessary response costs, the court did not have to reach the question of whether Bedford could proceed under section 107(a) to recoup those costs.
Here, there have been no consent orders and no proceeding apportioning necessary costs of response to Con Ed, and these differences distinguish this case from Bed-ford Affiliates. In sum, we read Bedford Affiliates to hold that a party that has incurred or is incurring expenditures under a consent order with a government agency and has been found partially liable under section 113(f)(1) may not seek to recoup those expenditures under section 107(a). Our holding here — that a party that has not been sued or made to participate in an administrative proceeding, but, if sued, would itself be liable under section 107(a), may still recover necessary response costs incurred voluntarily, not under a court or administrative order or judgment — does not conflict with Bedford Affiliates.
We are, of course, cognizant that the Supreme Court in
Cooper Industries
declined to resolve whether a party that would itself be liable under section 107(a) may bring a section 107(a) cost recovery action.
See Cooper Industries,
Consequently, we conclude that a party in Con Ed’s circumstances may pursue a cost recovery action under section 107(a).
D. Con Ed’s Waiver and Failure-to-Plead Arguments
UGI argues that Con Ed cannot pursue any claim other than one under section 113(f)(1) because 1) Con Ed has waived any argument that an alternative provision might support its suit, and 2) Con Ed failed to assert any basis other than section 113(f)(1) in its First Amended Complaint.
As to the first assertion, we have discretion to consider an argument not passed on below where, as here, “ ‘the issue is purely legal and there is no need for additional fact-finding.’ ”
Baker v. Dorfman,
UGI’s second argument also lacks merit. As this court observed in
Albert v. Carovano,
CONCLUSION
For these reasons, we conclude that this action arises under CERCLA section 107(a), and that subject matter jurisdiction exists. For the reasons discussed in the accompanying summary order, we affirm in part and reverse in part the district court’s grant of summary judgment and remand the case for further proceedings.
Notes
.According to the website of the New York State Department of Environmental Conservation, in such plants, gas was stored, and then piped to the surrounding area, where it was used for lighting, cooking, and heating homes and businesses. Manufactured Gas Plants were first built before the Civil War, and were generally closed during the first half of the twentieth century. The plants would generate a variety of contaminants, including coal tar, an oily liquid created during gas production and distribution, and purifier waste, generated when cyanide and sulfur were removed from the manufactured gas. N.Y. State Dep't of Envtl. Conservation, General Information About MGPs, at http://www.dec.state.ny.us/web-site/der/mgp/mgp_faq.html# mgp.
. The Westchester Plants are the Mount Vernon Plant, the New Rochelle Plant, the Pel-ham Plant, the Port Chester Plant, the Rye Plant, the Tarrytown Plant, the White Plains Plant, the Ludlow Street Plant in Yonkers, the Nepperhan Avenue Plant in Yonkers, and the Woodworth Avenue Plant in Yonkers.
. The plants whose sites were covered in the Voluntary Cleanup Agreement were the Mount Vernon Plant, the New Rochelle Plant, the Pelham Plant, the Rye Plant, the Ludlow Street Plant in Yonkers, the Nepperhan Avenue Plant in Yonkers, and the Woodworth Avenue Plant in Yonkers.
. CERCLA section 106 states that when the President determines that “an imminent and substantial endangerment” to the public or the environment exists, the United States may "secure such relief as may be necessary to abate such danger or threat,” and grants the federal district courts jurisdiction to grant such relief. 42 U.S.C. § 9606(a).
. CERCLA defines the term "response” to mean "remove, removal, remedy, and remedial action” and all “enforcement activities related thereto.” 42 U.S.C. § 9601(25). "The terms 'remove' or 'removal' means [inter alia ] the cleanup or removal of released hazardous substances from the environment.” Id. § 9601(23). The terms "remedy” or "remedial action” mean inter alia "those actions consistent with permanent remedy taken instеad of or in addition to removal actions ... to prevent or minimize the release of hazardous substances.” Id. § 9601(24).
We also note that the term "response action” is used throughout the statute. See, e.g., id. §§ 9601(20)(E)(ii)(II), 9601(22), 9605(10), 9607(1)(2)(A).
. At oral argument, Con Ed argued that even if the releases from liability under the Environmental Conservation Law, the Navigation Law, and the State Finance Law do not serve to release Con Ed from CERCLA liability, the more general promise not to refer claims for recovery of costs to the state's Attorney General does. The promise not to refer does nothing, however, to resolve Con Ed’s liability for CERCLA claims.
. This opinion generally eschews the ternas “potentially responsible person” and “PRP,” which do not appear anywhere in the text of either CERCLA section 107 or section 113(f). The terms strike us as vague and imprecise because, when no action has been filed nor fact-finding conducted, any person is conceivably a responsible party under CERCLA. Moreover, we believe the term may be read to confer on a party that has not been held liable a legal status that it should not bear. We believe our alternative designation- — a party that, if sued, would be held liable under section 107(a) — is more precise.
.Some might argue that a person who, if sued, would be partly liable for necessary costs of response may be unjustly enriched if allowed under section 107(a) to recover 100 percent of its costs from other persons. This fear seems misplaced. While we exрress no opinion as to the efficacy of such a procedure, there appears to be no bar precluding a person sued under section 107(a) from bringing a counterclaim under section 113(f)(1) for offsetting contribution against the plaintiff volunteer who, if sued, would be liable under section 107(a).
See, e.g., Blasland, Bouck & Lee v. City of N. Miami,
. In Syms, this court faced the same question we face here: the effect of Cooper Industries on section 107(a). In that case, Cooper Industries had been issued after the court had heard oral argument, and the court elected not to decide the issue but rather to permit the district court to consider the issue on remand. Id. at 106-07. Here, where Cooper Industries was issued well before oral argument, and the parties submitted, at the court's request, briefs on this purely legal issue, remand is unnecessary and would only delay resolution of this matter.
. This is, of course, consistent with the view that courts took of section 107(a) before section 113(f)(1) was enacted.
See Wickland,
. Generally, "this court is bound by a decision of a prior panel unless and until its rationale is overruled, implicitly or expressly, by the Supreme Court or this court
en banc.” BankBoston, N.A. v. Sokolowski,
. We note, however, that even decisions stating that the imposition of liability may create expenditures that are not costs of response have confined their holding to liability imposed through court proceedings.
Taylor
held that а party subjected to a court-approved settlement or judgment was limited to the contribution remedy, but also stated that a party implementing response or remedial activity under an administrative order incurs "necessaiy costs of response” under section
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107(a).
Id.
at 363;
see New Castle County,
. Indeed, the voluntariness of the costs that Con Ed has incurred is demonstrated by the fact that the First Amended Complaint identified these costs, even though it was filed more than six months before Con Ed entered into the Voluntary Cleanup Agreement.