MEMORANDUM AND OPINION
The nation’s need for wartime supplies made during World War II and the Korean War left lasting environmental effects. More recent statutes require those involved to clean the pollution left in the refineries and plants where aviation fuel and other supplies our nation’s military needed were produced. This case requires the court to decide who pays, and how much. The issue is whether the federal government or a private oil company it contracted with to produce fuel needed in the wars must pay for the environmental harm the production generated, under a statute enacted years later.
During World War II and the Korean War, the United States enlisted oil companies across the country to swiftly increase the nation’s production of high-octane aviation gas (“avgas”), synthetic rubber, and toluene required for military operations in Europe and the Pacific. The companies contracted with the federal government to increase avgas production at their existing refineries and to construct and operate new plants to produce synthetic rubber, avgas components, and other necessary war materials. The swift increase in production capabilities also generated more hazardous waste.
This case involves two sites — one in Baytown, Texas and one in Baton Rouge, Louisiana — where ExxonMobil Corporation’s predecessors
Decades later, Exxon reached administrative agreements with the State of Texas to clean up the Baytown site and with the State of Louisiana for the Baton Rouge site. Exxon estimates that it has incurred roughly $41 million to clean up Baytown and $30 million for Baton Rouge. The United States refused to pay Exxon for any of these costs. Exxon sued the United States under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., seeking to hold the government accountable as a “covered person” responsible for cleanup costs at both sites.
After several years of litigation and discovery, both Exxon and the United States moved for partial summary judgment as to certain issues important to deciding who was liable for the past and future clean up costs. (Docket Entry Nos. 102, 103, in 4:10-ev-02386; Docket Entry Nos. 51, 52 in 4:ll-cv-01814).
• Exxon operated the refineries at both sites.
• The United States government did not operate the refineries at either site.
• Both Exxon and the government operated the chemical plants at the sites.
• Joint and several liability does not apply-
• It is too early to decide whether to adopt Exxon’s proposed method for apportioning fault or to grant declaratory relief awarding future costs under the proposed method. Exxon may request the court to adopt its proposed method to apportion liability for the costs in Phase II of this litigation.
The reasons for these rulings are explained in detail below.
I. Background
Because the number of government agencies, programs, and statutory and regulatory terms involved makes acronyms unavoidable, a glossary is attached to the end of this opinion.
A. CERCLA
Congress enacted CERCLA in 1980 “in response to the serious environmental and health risks posed by industrial pollution.” Burlington N. & Santa Fe Ry. Co. v. United States,
Section 107(a) identifies four categories of PRPs who may be liable for costs to clean up hazardous substances. See 42 U.S.C. § 9607(a). The categories are: (1) owners ánd operators of facilities at which hazardous substances are located; (2) past owners and operators of these facilities when the disposal of hazardous substances occurred; (3) persons who arranged to dispose of or treat hazardous substances; and (4) certain transporters of hazardous. substances. See 42 U.S.C. § 9607(a)(1)-(4). Unless a statutory defense or exclusion applies, covered persons are liable for “all costs of removal or remedial action incurred by the United States government or a State ... not inconsistent with the national contingency plan,” and “any other necessary costs of response incurred by any other person consistent with the national contingency plan,” 42 U.S.C. § 9607(a).
Section 113, added in 1986 as part of SARA, contains a subsection entitled “Contribution.” This subsection states:
Any person may seek contribution from any other person who is liable or potentially liable under [§ 107(a) ], during or following any civil action under [§§ 106 or 107(a) ].... In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under [§§ 106 or 107].
42 U.S.C. § 9613(f)(1).
Under § 113, a PRP that “has resolved its liability to the United States or a State in an administrative or judicially approved settlement” is immune from contribution claims made by other PRPs “regarding matters addressed in the settlement.” Id. at § 9613(f)(2). A settling PRP may seek contribution under § 113(f)(3) from other, nonsettling PRPs. Id. at § 9613(f)(3)(B). Section 107(a) allows a plaintiff to recover 100% of its response costs from all liable parties, including those who have settled their CERCLA liability with the government. Id. at §§ 9613(g)(2), 9607(a). Section 113’s right to contribution is more restricted than that afforded by § 107. Section 107 has a six-year statute of limitations; § 113 has a three-year statute of limitations in certain scenarios. Under § 107, plaintiffs may recover only costs in excess of their equitable share and may not recover from previously settling parties. Id. at § 9613(f)(1), (f)(2), ■ (g)(3). Federal and state governments may sue PRPs for response costs and may also be liable as PRPs for response costs others incur. See 42 U.S.C. § 9607(a)(4)(A) and (B).
B. Factual Background
1. Avgas and Synthetic-Rubber Production in World War II and the Korean War
“In the early 1930s, petroleum refiners in the United States developed new technologies for producing high-octane gaso
The Shell opinion described the avgas production process:
Avgas was a blend of petroleum distillates and chemical additives. Its base component was ordinary gasoline, to which the refineries added varying amounts of several additives. Oil producers made avgas using one of two types of additives. The most prevalent additive was a compound called “alky-late,” which comprised 25^40% of the weight of avgas. The production of al-kylate, as well as other additives, required the use of sulfuric acid. In the production of alkylate, through a process called “alkylation,” the refineries used 98% purity sulfuric acid as a catalyst. Approximately 90% of the sulfuric acid used by the refineries during the war was devoted to this purpose. As a consequence of its use in alkylation, the purity of the acid was greatly reduced. “Spent” alkylation acid could be reprocessed, at some expense, so that its purity was once again high enough for use as an alkylation catalyst. Alternatively, spent acid either could be used in other refinery processes, or could be dumped without being reused.
Shell Oil Co.,
“When the war began, the alkylation process and the production of avgas were new technological developments. During the war, production of avgas increased more than twelve-fold, from roughly 40,000 barrels per day in December 1941 to 636,-000 barrels per day in 1944.” Id.; (see also Docket Entry No. 118-1 ¶ 28). “Sulfuric acid consumption increased five-fold, from 24 million pounds per year in 1941 to 120 million pounds per year in 1944. The use of sulfuric acid in the alkylation process produced quantities of spent alkylation acid far greater than had ever been produced before.” Shell Oil Co.,
“Because high-octane avgas was critical to the war effort, the United States government had a considerable stake in ensuring its consistent production during World War II.” Id. “In 1942, President Roosevelt established several agencies to oversee war-time production of avgas. Among those with authority over petroleum production were the War Production Board (“WPB”) and the Petroleum Administration for War (“PAW”).” Id. The WPB, which was created to “assur[e] the most effective prosecution of war procurement and production,” established a nationwide priority ranking system to identify scarce goods, prioritize their use, and facilitate their production; it also limited the production of nonessential goods. Exec. Order No. 9024 ¶2, 7 Fed.Reg. 329, 329-30
The WPB, PAW, and other federal government agencies had the authority to require oil companies to produce certain goods at the refineries they owned, and to seize the refineries if the companies refused. During the war, the “President, through the head of the War or Navy Departments of the Government ... [was] ... authorized to take immediate possession of any such plant” that “refuse[d] to manufacture the kind, quantity, or quality of arms or ammunition, or the parts thereof, or any necessary supplies or equipment. ...” Selective Training and Service Act of 1940, 54 Stat. 885, 892 (1940). The PAW seized Exxon’s refinery in Ingleside, Texas, but “the company continued to operate the Refinery for its own account....” (Docket Entry No. 66-4 ¶32 (4:ll-cv-01814); Docket Entry No. 118-1 ¶ 65, Gravel Decl. ¶ 7). These seizures were unusual. The federal agencies relied almost exclusively on contracts with oil companies to ensure avgas production, including long-term contracts to purchase avgas with low-cost loans to companies to help them build avgas-producing plants.
The federal government implemented the Planned Blending Program to optimize avgas production. “Under this program, the government assisted the refineries operated by the oil' companies in exchanging and blending various avgas components in order to maximize production of avgas. The government could, and sometimes did, direct that specific exchanges be made, but it usually accepted what was proposed by the refineries.” Shell Oil Co.,
In addition, “[t]he government reduced the financial risk to producers of avgas and its components through the Aviation Gas Reimbursement Plan (‘AGRP’).” Shell Oil Co.,
Throughout World War II, the oil companies designed and built production facilities, maintaining private ownership and managing their own refinery operations. See id. The oil companies entered into contracts to sell the avgas they produced to the federal government. The contracts were profitable. (Docket Entry No. 52-2, ¶ 86 (4:ll-cv-01814)). The companies nonetheless filed grievances with the government about contract terms. One grievance concerned contractual limits on profits. Another concerned “statutory renegotiation clauses” allowing the government to renegotiate certain contract terms. The oil companies wanted to preserve their ability to challenge the constitutionality of the statute authorizing these renegotiation clauses. The Supreme Court described some of the contract challenges facing the federal government and private industry during the War as follows:
The problem was to find a fair means of compensation for the services rendered and the goods purchased. Contracts were awarded by negotiation wherever competitive bidding no longer was practicable. Contracts were let at cost-plus-a-fixed fee. Escalator clauses were inserted. Price ceilings were established. A flat percentage limit on the profits in certain lines of production was tried. Excess profits taxes were imposed. Appeals were made for voluntary refunds of excessive profits. However, experience with these alternatives convinced the Government that contracts at fixed initial prices still provided the best incentive to production.
Lichter v. United States,
[I]n the case of the 100 octane contracts in which Standard was dealing, Defense Supplies Company is the sole purchaser and P.A.W. insists that each company utilize all of its facilities to make 100 octane aviation gasoline to the extent of its ability to do so, and there is not in fact any freedom to make a choice between contracting and not contracting.
(Docket Entry No. 159 at 2). According to Parkhurst, the lack of freedom stemmed from the government’s power to seize refineries and cut off the supply of crude oil if the oil companies refused to cooperate.
Synthetic rubber was also critical to the war effort. After Pearl Harbor, the United States was cut off from 90 percent of the world’s natural rubber supplies. The government designated rubber as a critical and strategic material, (Docket Entry No. 118-1 ¶ 15), creating the U.S. Rubber Reserve Company (“RuR”) to draw on industry expertise to develop synthetic rubber production. (Docket Entry No. 123-1 ¶ 56; Docket Entry No. 118-1 ¶¶ 11-14). Through the U.S. Defense Plant Corporation (“DPC”), the government arranged for the construction of synthetic rubber and avgas-component plants, known as “Plancors,” during the War. (Docket Entry Nos. 118-1 ¶ 12; 123-1 ¶ 57; Docket Entry No. 118-1 ¶¶ 11-14). The DPC negotiated lease agreements and supply contracts valued at $7.2 billion, involving 2300 plants and projects, during World War II. (Docket Entry No. 66-4 ¶ 45 (4:ll-cv-01814)). Unlike most avgas refineries, however, the government — not the contracting companies — owned the Plancors.
Laying aside as undesirable the complete governmental ownership and operation of the production of war goods of all kinds, many alternative solutions were attempted. Often these called for capital expenditures by the Government in building new plant facilities. Adhering, however, to the policy of private operation of these facilities Congress and the Administration sought to promote a policy of wide distribution of prime contracts and subcontracts, even to comparatively high cost marginal producers of unfamiliar products. Congress sought to do everything possible to retain and encourage individual initiative in the world-wide race for the largest and quickest production of the best equipment and supplies. It clung to its faith in private enterprise.
Lichter,
When the Korean War began in 1950, Congress enacted the Defense Production Act (“DPA”). Modeled after the Second War Powers Act of 1942, the DPA gave President Truman “robust legal authority ... to force industry to give priority to national sechrity production” and to seize or requisition facilities and equipment. (Docket Entry No. 123-1 ¶ 35). On September 9, 1950, President Truman issued Executive Order 10161, creating the National Production Authority (“NPA”) and the Petroleum Administration for Defense (“PAD”). (Docket Entry No. 123-1 ¶¶ 37-38). Modeled after the PAW, the PAD had authority to issue orders to private companies to establish programs and policies to operate refineries to ensure sufficient oil production for the war effort. (Docket Entry No. 118-1 ¶¶ 120-33; see also Docket Entry No. 118-1 ¶ 121) (observing that “PAD now stands on a footing virtually identical with that enjoyed by the last war’s PAW”). Although plant seizures were possible, PAD did “not wish to see [this] happen” and did not exercise this authority during the Korean War. (Docket Entry No. 123-1 ¶ 46).
2. The Baytown and Baton Rouge Sites
Although refineries and plants throughout the country produced avgas and synthetic rubber during the wars, only the Baytown, Texas and the Baton Rouge, Louisiana sites are relevant here. Exxon’s predecessor, Humble Oil & Refining Company (“Humble”), owned and began operating the Baytown refinery in the 1920s. (Docket Entry No. 118-1 ¶¶ 1-2). The Baton Rouge refinery, located next to the Mississippi River in Baton Rouge, began operating in 1909 under the ownership and control of the Standard Oil Company of Louisiana (“Standard LA”), another Exxon predecessor. (Docket Entry No. 118-1 ¶ 4).
a. Avgas Production at the Baytown and Baton Rouge Sites
In the 1930s, Humble and Standard LA began developing and installing new technologies at Baytown and Baton Rouge to produce high-octane gas and synthetic rubber. (Docket Entry No. 118-1 ¶ 3). By the start of World War II, the sites had either already produced or could produce many of the products they made during the War. (Id.).
After Pearl Harbor, the Defense Supplies Corporation (“DSC”) and Exxon’s predecessors signed three avgas supply contracts for 100-octane avgas production at the Baytown and Baton Rouge refineries. (Docket Entry No. 118-1 ¶¶ 72-74). On January 13, 1942, the DSC and Standard Oil Company of New Jersey (“Standard NJ”) signed a four-year avgas supply contract. Under this contract, Humble and Standard LA would supply 100-octane avgas to Standard NJ, which would supply
Even though these contracts limited profits to 6% to prevent war profiteering, both Standard LA and Humble consistently profited from them. (Docket Entry No. 117-4 ¶ 86). During World War II and the Korean War, both companies applied for and received tax-amortization certificates worth a total of more than $120 million (without adjusting for present-day inflation). (Docket Entry No. 117-4 ¶¶ 82-85). The companies paid their investors dividends during the wars. (Id. ¶ 86).
The avgas contracts did not provide the United States government authority to make personnel decisions at the Baytown or .Baton Rouge refineries. (Id. ¶ 170). The contracts required the companies to provide certificates of inspections from licensed inspectors about product quality and quantity, unless the government waived this requirement and instead inspected the avgas on delivery. (Id. ¶ 172). The government did not operate the equipment at the two refineries, supervise Humble or Standard LA employees in their day-to-day refinery operations, or make personnel or labor decisions. (Id. ¶ 174).
Under the Planned Blending Program, however, the federal government did control the type and amount of crude oil and other raw materials sent to the two refineries. This was part of the approach that treated all the nation’s refineries “as units in one vast national refinery.” (Docket Entry No. 118-1 ¶¶ 59, 89).
Exxon asserts that the United States government “directed” and “controlled” production levels, the production process, and other day-to-day aspects of avgas production at these two refineries through a series of “recommendations” or “directives.” Recommendation 8 is illustrative. It stated that the two refineries should “cease to use” various blending components derived from petroleum, “except for the production and manufacture of 100 octane aviation gasoline or such other aviation gasolines as may hereafter be recommended. ...” (Docket Entry No. 118-1 ¶ 36). Recommendation 16 called for “plans for the use of all sources of the components of’ avgas and stated that such plans “may provide for ... allocation, exchange, license, pooling, loan, sale or lease of crude oil, base stocks, blending agents, processes, and patents, and production, transportation and refining facilities ... whenever and to whatever extent may be necessary to facilitate the maximum production of all grades of aviation gasoline----” (Docket Entry No. 118-1 ¶38). Louis Goldsmith, a high-ranking PAW official during most of World War II, testified that “the government came in and said: Thou shalt produce. If you’re going to produce at all, you’ve got to produce these
Exxon also points to a stream of telegrams PAW sent the Baytown and Baton Rouge refineries communicating the government’s desired production levels for av-gas and other war products under these contracts. (Docket Entry No. 118-1 ¶ 77). In 1946, a government-prepared report acknowledged the industry’s frustrations:
One of the wartime conditions which served to harass the refiners as much, perhaps, as anything else was the frequent need to change yields so as to produce, at all times, the maximum quantities of most-needed products. One day, refiners would have instructions from PAW to increase their yields of gasoline and cut down their yields of fuel oil. On another occasion, the ever-shifting requirements of war might call for exactly the opposite. And, adding to the difficulty, the orders often had to be dispatched in the form of telegrams, calling for the changes to be made virtually overnight.
(Docket Entry No. 118-1 ¶ 55).
The government contends that the “Av-gas Contracts did not confer on the United States any decision-making authority over or role in production” and “[t]he United States simply agreed to buy 100-octane Avgas.” (Docket Entry No. 118-1 ¶ 78). The government’s expert witness, Dr. Jay Brigham, a research historian specializing in twentieth century American political, western, and environmental history, testified that the telegrams were a means of “encouraging greater production, in a sense of rallying the troops,” but were not directives aimed at “engaging in a production or management decision” akin to “saying do it this way or do it that way.” (Docket Entry No. 72-2, Brigham Decl. (4:11-cv-1814); Docket Entry No. 118, Ex. 10, Brigham Depo., Vol. 2 at 367-68 (4:10-cv-2386)).
b. The Synthetic-Rubber, Avgas-Com-ponent, and Toluene-Production Plants at Baytown and Baton Rouge
Beginning in the early 1940s, the government purchased land adjacent to the refineries and leased land within the refineries to build plants to produce synthetic rubber, avgas blending components, toluene (a key component of TNT), and other war materials. (Docket Entry No. 118-1 ¶¶ 134-201). The federal government owned many of these plants, or “Plancors” through the mid-1950s. (Docket Entry No. 102, Ex. 1, Gravel Deck, ¶¶ 4-6). Exxon’s predecessors designed, built, and operated the Plancors under contracts with the federal government. The government regularly inspected the plants and supplied Exxon’s predecessors with the raw materials necessary to maintain production in accordance with the contract requirements.
i. The Baytown Plants
There were four Plancors at the Bay-town site. Three produced synthetic rubber and the other avgas components. (Docket Entry No. 118-1 ¶¶ 134-201). The government bought the land for these Plancors from Humble in 1942 and 1943. (Docket Entry No. 67-1 ¶¶ 145, 152, 159, 167 (4:ll-cv-01814)). One, the Hydrocodi-mer Plancor, was located within the Bay-town refinery and produced an avgas blending stock for the refinery. The Hy-drocodimer Plancor used the refinery’s waste processing facilities and its waste-drainage ditch. (Docket Entry No. 67-1 ¶¶ 167-73 (4:ll-cv-01814)). The other three Plancors were located outside the refinery’s boundary.
The Baytown Plancors generated byproducts and waste, including oil slop, tertiary butyl alcohol, caustic soda, sulphuric acid, copper ammonium acetate aluminum chloride, rubber polymer, naphtha, zinc stearate, lubricating oils, boiler blow-down waste and sludge, sludge from brine purification, spent-caustic acids containing TB.C from butadiene purification, wastewater from carbon black paint, and various other liquid wastes. (Docket Entry No. 67-1 ¶¶ 149, 156, 164 (4:11 — cv—01814)). Some of the Baytown Plancors sent their byproducts to the Baytown refinery, which would use them to produce avgas. (Docket Entry No. 118-1 ¶¶ 205-06). The Baytown Plancors disposed of other byproducts in Scott’s Bay, upstream from where the Baytown refinery discharged its avgas-re-lated waste. (Docket Entry No. 67-1 ¶¶ 150, 165, 246 (4:ll-ev-01814)). In 1946, the government sold the Hydrocodimer Plancor to Humble. The government did not sell the other Plancors to Humble until after the Korean War. (Docket Entry No. 67-1 ¶ 173 (4:ll-cv-01814)).
In addition to the Plancors and avgas refineries, the government relied on another chemical plant adjacent to the Baytown refinery, the Baytown Ordnance Works, to produce toluene. The Ordnance Works accounted for over 40 percent of the nation’s toluene production. (Docket Entry No. 118-1, ¶ 139). The government bought the land for the Ordnance Works from Humble' in February 1941 and leased the land back to Humble until August 1945. (Docket Entry No. 67-1 ¶ 134 (4:11-ev-01814)). Humble and the government entered into a contract under which Humble agreed to construct the Ordnance Works and to furnish “all architectural and engineering services covering the design, preparation of the drawings, plans, specifications and field engineering and supervision necessary for the efficient execution and coordination of the work” there. (Docket Entry No. 67-1 ¶ 135 (4:ll-cv-01814)). The Ordnance Works included toluene-producing facilities, above-ground tanks, military barracks, a mess hall, air raid shelters, perimeter fencing, and four guard watchtowers. (Docket Entry No. 67-1 ¶ 136 (4:ll-cv-01814)). The Ordnance Works generated waste in the form of spent-acid sludge, spent-alumina catalyst, and acidic wastewater effluent. (Docket Entry No. 67-1 ¶ 140 (4:ll-ev-01814)). Some of the spent-alumina catalyst went to three nearby dumps. (Docket Entry No. 61-1 ¶ 142 (4:ll-cv-01814)). Although most of the Or.dnance Works infrastructure was outside the Baytown refinery’s boundary, the Works exchanged byproducts with the refinery, used the refinery’s waste-processing facilities for its wastewaters, and shared a waste-drainage
In August 1945, the government conveyed the property associated with the Ordnance Works to Humble, and in February 1946, sold the land back to Humble. (Id. ¶ 144). The Ordnance Works was not used after World War II.
ii. The Baton Rouge Plancors
The government owned six Plancors at the Baton Rouge site. Four produced synthetic rubber and the other two avgas components. (Docket Entry No. 118-1 ¶¶ 134-201). The government bought the land for the Plancors from Standard LA in 1941, 1942, and 1943, and leased the land back to Standard. (Docket Entry No. 67-1 ¶¶ 174, 183, 189, 196, 199 (4:ll-cv-01814)).
The byproducts and waste from these Plancors included oil emulsions, sulphuric acid esters, acetone and isoprene wastes, rubber polymer crumbs, aluminum chloride, copper ammonium acetate, ammonium hydroxide, oily water, and various wastewaters. (Docket Entry No. 67-1 ¶¶ 178, 186 (4:ll-ev-01814)). Some of the Plancors sent their byproducts to the Baton Rouge refinery for use in producing avgas. Some of the Plancors disposed of solid waste in landfills, burn pits, and other land-based disposal units in the western part of the Baton Rouge refinery. (Docket Entry No. 67-1 ¶ 187 (4:ll-cv-01814)). One plant, the Butadiene Plancor, used the refinery’s waste-processing facilities to treat wastewater before discharging it into Callaghan’s Bayou. (Docket Entry No. 67-1 ¶ 179 (4:ll-cv-01814)). Another plant, the Butadiene Conversion Plancor, used the refinery’s wasteprocessing system to treat and dispose of Plancor wastes as well. (Id. ¶ 194). This Plancor had been converted from existing facilities in the Baton Rouge refinery and was located within the refinery boundary. (Docket Entry No. 67-1 ¶ 192).
After World War II ended, the government sold some of the Baton Rouge Plan-cors to Exxon’s predecessors. (Docket Entry No. 67-1 ¶ 195, 198, 201 (4:ll-cv-01814)). The government retained ownership of the other Plancors until the Korean
c. The Government’s Involvement in Waste Disposal
The increased avgas, rubber, and toluene production at the Baytown and Baton Rouge sites led to more hazardous waste, which Exxon’s predecessors routed into nearby bodies of water, including the Houston Shipping Channel and the Mississippi River. According to one Humble engineer, Sidney O. Brady, “[d]uring the war it was not possible to devote much technical manpower to the problem of effluent improvement since it was obvious, that saving surface waters was secondary to saving men.” (Docket Entry No. 118-1 ¶ 100). The government agreed that “personnel could not be diverted from more pressing objectives to study complex problems related to waste prevention and treatment — nor could construction materials be secured for such purposes.” (Docket Entry No. 118-1 ¶ 219). But the government did not play a direct role in waste disposal. Neither the avgas-production, Ordnance Works, nor Plancors contracts specified how to dispose of production waste. (Docket Entry No. 66-4 ¶ 126 (4:ll-cv-01814)).
The government did not direct or order either Humble or Standard LA to dispose of the production waste in any particular way. The Plancors contracts between the federal government and the Exxon predecessors did provide that the government would be responsible for the plants’ waste-disposal costs. (Docket Entry No. 117-4 ¶¶-93-96, 138). The government also controlled the allocation of scarce materials that could be used for more environmentally conscious waste disposal. As Louis Goldsmith, a PAW Refinery Division official during the War, testified in a June 1992 deposition in different case,
On August 4, 1944, the U.S. Engineer Office informed its Chief of Engineers that the Baton Rouge refinery was in violation of the River and Harbor Act, because the refinery’s “enormous operations and rapid expansion” had “overloaded the waste disposal system,” causing daily “disposal of [ ] vast wastes from the refinery [ ] into the Mississippi River.” A842; US-BR006087; see also 33 U.S.C. •§ 407 (forbidding the “[djeposit of refuse in navigable waters”). The U.S. Engineer Office recommended that the PAW and WPB approve a Master Separator, a “key unit” to “end pollution of the Mississippi River.” A843; (see also Docket Entry No. 123-1 ¶ 31). Standard LA had first considered a Master Separator several years before the War began, but had not built it. When Standard LA proposed during the War that the Master
In 1953, the U.S. Public Health Service put a team of government engineers and analysts in a mobile laboratory at the Baton Rouge site for eight weeks to investigate and evaluate refinery operations and thé waste they caused. The investigation resulted in a report entitled “A Study of Liquid Wastes From a Gulf Coast Petroleum Refinery.” (Docket Entry No. ,117 — 3 ¶ 52). That report described the refinery’s waste-disposal process, identified the types of contaminants found in the refinery’s effluent discharge and the particular refinery operation responsible for those contaminants, and provided “possible methods ... for control of the wastes.” RA 165; BRC-0027353.
d. Postwar Disposal and Cleanup at Baytown and Baton Rouge
After World War II and the Korean War, Exxon’s predecessors continued to own and manage the refineries and many of the Plancors they had purchased from the government. Exxon currently owns both the Baytown and Baton Rouge sites. In 1995, Exxon reached an administrative settlement with the State of Texas to cleanup hazardous waste at the Baytown site. (Docket Entry No. 67-1 ¶ 289 (4:11— cv-01814)). Exxon alleges that it spent $41.7 million dollars remediating the Bay-town site under this settlement agreement, is currently performing “groundwater remediation and monitoring,” and expects to incur future costs at the site and its nearby waters. (Docket Entry No. 102 at 59 (4:10-cv-2386); Docket Entry No. 67-1 ¶ 293 (4:ll-cv-01814)). Exxon is applying for a Facility Operations Area permit that covers remediation, assessment, monitoring, and other response actions across the Baytown site.
Exxon alleges that it has spent over $30.5 million voluntarily cleaning up waste at the Baton Rouge site. Exxon is currently “performing response actions pursuant to a Corrective Action Order or otherwise required by the Louisiana Department on Environmental Quality,” including remediating groundwater and monitoring several areas across the site. (Docket Entry No. 102, at 54). Exxon contends that it will incur future costs at the Baton Rouge site and nearby waters.
C. Procedural Background
In March 2010, Exxon sued the United States in the Eastern District of Virginia, alleging CERCLA liability for past and future cleanup costs associated with the Baytown site. The United States successfully moved to transfer the case to the Southern District of' Texas. After the transfer, Exxon filed another suit against the United' States in the Southern District of Texas, raising the same legal and similar factual issues for the Baton Rouge site. The United States counterclaimed under CERCLA’s contribution provision, § 113(f)(3)(B), as to both sites. The two cases have proceeded on a coordinated basis. (Docket Entry No. 102 at 12).
At the parties’ joint suggestion, the court bifurcated the pretrial proceedings into two phases. Phase 1 addresses liability and fault allocation; Phase 2 will address other cost issues and issues under the National Contingency Plan. (Docket Entry No. 102 at 13). The parties com
Exxon seeks summary judgment on its claim that the United States is jointly and severally hable for Exxon’s past and future cleanup costs under CERCLA § 107(a)(2) as a prior operator of both the Baytown and Baton Rouge refineries and as a prior owner and prior operator of the rubber and chemical plants at both sites. In the alternative, Exxon seeks a summary judgment on its claim that the United States is liable in contribution under § 113(f)(3)(B) for Exxon’s past and future response costs at Baytown and under § 107(a) for Exxon’s past and future response costs at Baton Rouge, based on the government’s role as a former owner and operator. Exxon seeks an equitable allocation of responsibility based on a proposed “production-based approach” that applies - both to costs already incurred and to future cleanup costs. (Docket Entry No. 102).
The United States seeks summary judgment on its claim that during the two wartime periods, it did not operate either refinery within the meaning of § 107(a)(2), that Exxon’s predecessors operated both refineries, and that Exxon’s predecessors operated each of the nearby plants and the Ordnance Works. (Docket Entry No. 52-1 (4:ll-cv-01814)). The United States also asks this court to deny Exxon’s motion for summary judgment that the United States operated the plants and decline Exxon’s request to allocate responsibility for future costs because they are too speculative. The United States opposes Exxon’s proposed method of allocation. (Docket Entry No. 52 at 1 (4:11 — cv—01814); Docket Entry No. 103-1, at 1-2 (4:10-ev-2386)).
Each issue and the parties’ arguments are examined against record evidence and the summary judgment standard.
II. The Rule 56 Standard and the Summary Judgment Issues
Summary judgment is appropriate if the moving party “shows that there is no genuine dispute as to any material fact” and that it “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine [dispute] of material fact.” Lincoln Gen. Ins. Co. v. Reyna,
When the parties cross-move for summary judgment, the court must review “each motion independently, viewing the evidence and inferences in the light most favorable to the nonmoving party.” Mid-Continent Cas. Co. v. Bay Rock Operating Co.,
The parties’ cross-motions present many liability and fault issues. But they can be organized into the following three categories:
1.Whether CERCLA’s contribution provision, 42 U.S.C. § 9613(f)(3)(B), is the exclusive mechanism for Exxon to recoup cleanup costs for the Baytown site, and if so, whether its claim under that provision is timely.
2. Whether the United States is liable as a prior operator of the refineries and the chemical plants.
3. Whether Exxon is entitled to joint and several liability or to an equitable allocation of present and future costs.
III. Exxon’s § 113(f)(3)(B) Claim to Recover Its Costs to Cleanup the Baytown Site
The parties dispute whether Exxon must bring its CERCLA claim for the Baytown site as a contribution action under § 113(f)(3)(B). The answer may determine whether Exxon timely asserted its CERCLA claim for the Baytown site cleanup costs.
In 1995, Exxon signed two administrative consent orders with the State of Texas for the Baytown site. The United States argues that these agreements are administrative settlements under § 113(f)(3)(B) and that Exxon cannot seek to recover the costs incurred under those settlements under § 107. Instead, according to the government, § 113(f) provides the exclusive remedy for Exxon to recover money it has already spent cleaning up the Baytown site. Exxon disagrees, arguing that the settlement with the State of Texas had nothing to do with CERCLA, but rather only with state-law regulatory violations. As a result, according to Exxon, the agreement is not an administrative settlement under § 113(f)(3)(B). Exxon also argues that even if the administrative settlement did limit its remedy under CERCLA, recovery under § 107 is still available for any costs Exxon voluntarily incurred from 1986 to 1995, before entering into the agreement with the State of Texas, or for costs incurred after the agreement that are outside its scope.
As explained below, the court concludes that: (1) § 113(f) is the exclusive remedy
A. Whether § 113(f)(3)(B)’s Contribution Provision is the Exclusive Remedy for Exxon to Seek the Cleanup Costs It Incurred in Response to the Administrative Settlements
In 1986, Congress amended CERCLA to provide an express contribution right for PRPs that have been found liable under CERCLA or that have entered into certain administratively or judicially approved settlements.
Until 2007, many courts held that PRPs could not sue under § 107(a) and that § 113(f) was their only remedy for contribution. In 2007, the Supreme Court made clear that PRPs may bring an action for cost recovery under § 107 if they have “incurred cleanup costs.” United States v. Atlantic Research Corp.,
The Supreme Court did not address every “different procedural circumstance! ]” that might trigger different remedial options under § 107(a) or § 113(f). The Court did recognize another situation in which the distinction between §§ 107 and 113 might blur. If a PRP “sustainfs] expenses pursuant to a consent decree,” “the PRP does not incur costs voluntarily but does not reimburse the costs of another party.” The Court declined to resolve
whether these compelled costs of response are recoverable under § 113(f), § 107(a), or both. For our purposes, it suffices to demonstrate that costs incurred voluntarily are recoverable only by way of § 107(a)(4)(B), and costs ofreimbursement to another person pursuant to a legal judgment or settlement are recoverable only under § 113(f).
Id.
The government argues that § 113(f)(3)(B) provides the exclusive remedy for Exxon, a PRP that has incurred expense costs under administrative settlements. CERCLA’s text, structure, history, and the position of every circuit court to address this issue since Atlantic Research lead this court to agree.
“Statutes must ‘be read as a whole.’ ” Atlantic Research,
Every court of appeals considering the question the Supreme Court left open in Atlantic Research has reached the same conclusion. See NCR Corp. v. George A. Whiting Paper Co.,
The cases Exxon cites—Bernstein v. Bankert,
In W.R. Grace, the Second Circuit concluded that the consent order did not resolve liability under CERCLA and was not an administrative settlement under § 113(f)(3)(B). See W.R. Grace,
If the orders Exxon and the State of Texas signed requiring Exxon to pay to clean up the Baytown site qualify as administrative settlements under § 113(f)(3)(B), Exxon may not bring a § 107(a) claim for the cleanup costs it incurred in complying with those orders.
B. Exxon’s Agreed Orders with the State of Texas are “Administrative Settlements” under § 113(f)(3)(B)
1. The Agreed Orders
In March and July of 1995, Exxon entered into two Agreed Orders
Agreed Order 1 required Exxon to do the following at Baytown: (1) “[i]dentifieation, delineation, containment and remediation of known hydrocarbon plumes” as well as of “hydrocarbon plumes discovered after the effective date” of the Agreed Order; (2) submission and implementation of a “groundwater quality assessment plan,” to include a report of past remedial activities and a plan to study hydrocarbon sources; (3) implementation of a semiannual groundwater-monitoring program (after the report of the groundwater-quality assessment plan); (4) a soil-investigation work plan to identify and study potential hydrocarbon sources; and (5) corrective-measures studies and reports for saturated and unsaturated zones, followed by implementation of a corrective-measures work plan to “verify cleanup of contaminated soils ... and groundwater,” including post-remediation sampling. A2766-91. If Exxon withdraws from the Order, the TCEQ may refer the matter to the Texas Attorney General “for further enforcement proceedings as provided by law if the Executive Director determines that Exxon is noncompliant with or in violation of any of the terms or conditions set forth in this Agreed Order.” (Docket Entry No. 118-1 ¶ 290). The Agreed Order provided that if Exxon withdrew, it could still be held criminally liable for noncompliance.
Exxon asserts that under Agreed Order 1, it “conducted investigatory, monitoring, and remediation activities ... across the entire Facility” at Baytown. (Docket Entry No. 118-1 ¶ 291). Exxon also asserts that under Agreed Order 2, it has conducted investigatory, monitoring, and remediation activities relating to a groundwater contamination plume in an area now known as Tankfarm 3000. (Docket Entry No. 118-1 ¶ 292). Exxon alleges that through December 31, 2011, it incurred over $41.7 million in response costs and will continue to incur costs. (Docket Entry No. 1 ¶ 41); (Docket Entry No. 118-1 ¶ 293).
In its opening memorandum in support of its motion for partial summary judgment, Exxon argued that its two Agreed Orders with the State of Texas are within § 113(f)(3)’s contribution provision. (Docket Entry No. 102, at 46-47). Faced now with the prospect that this remedy is exclusive and may be time-barred, Exxon now argues that the Orders are not administrative 'settlements under § 113(f)(2). The court agrees with Exxon’s original position.
Section 113(f)(3)(B) applies if Exxon “resolved its liability to ... a State for some or all of a response action or for some or all of the costs of such action in an administrative ... settlement.” 42 U.S.C. § 9613(f)(3)(B). Unlike the separate contribution provision of § 113(f)(1) — which applies only “during or following any civil action under section 9606 of this title or under section 9607(a) of this title”— § 113(f)(3)(B) does not specify the type of “liability” that needs to be resolved to qualify as an administrative settlement. Congress did not limit § 113(f)(3)(B) to administrative settlements specifically resolving CERCLA liability. CERCLA itself defines a “response action” to include a broad range of remedial activities, and broadly defines those activities to cover remediation beyond CERCLA. See id. §§ 9601(23) (defining “remove” or “removal”); 9601(24) (defining “remedy” or “remedial action”); 9601(25) (defining “respond” or “response”). For example, courts have concluded that costs incurred to comply with the Resource Conservation and Recovery Act (“RCRA”), see 42 U.S.C. §§ 6901-92k, may also be response costs under CERCLA’s ' administrative-settlement provision. See Mardan Corp. v. C.G.C. Music Ltd.,
The Fifth Circuit has not addressed this issue. In its opening brief, Exxon urged this court to follow Trinity Indus., Inc. v. Chicago Bridge & Iron Co.,
Some courts considering administrative settlements have relied on language in those settlements expressly resolving CERCLA liability. See, e.g., Hobart,
The two Agreed Orders fully resolved Exxon’s potential civil liability for cleanup costs for the Baytown site. Although the Orders did not specifically méntion CERC-LA, they reserved only one potential claim, for federal criminal liability. The Orders resolved other types of liability. See A2793-94 (March 1995 Agreed Order, “General Ordering Provisions,” ¶ 24). Exxon alleges that it spent substantial sums of money 'Complying with its Resource Conservation and Recovery Act obligations under its Agreed Orders with the State of Texas. (Docket Entry No. 102, at 42). RCRA compliance costs are considered “response costs” under CERCLA’s administrative-settlement provision. See Mardan Corp.,
Exxon cites this court’s opinion in Differential Development v. Harkrider Distributing Co.,
Exxon contends that it may sue under § 107(a) to recover the cleanup costs it voluntarily incurred at Baytown before signing the 1995 Agreed Orders with the State of Texas. Exxon also argues that it may sue to recover the cleanup costs it incurred after signing the Orders if those costs are outside the scope of the Orders. Exxon argues that it “undertook substantial cleanup work voluntarily at the Bay-town Site beginning in 1986,” none of which “was covered by any specific administrative order.” (Docket Entry No. 121, at 19 (citing Gagnon Decl. ¶ 4)). Exxon asserts that its subsequent effort to establish a Facility Operations Area (“FOA”) at the Baytown Site “was not specifically called for in these Orders and is outside the[ir] scope.” (Id.). Exxon relies principally on two district court cases suggesting that a PRP may bring a cost-recovery action under § 107 for certain costs incurred in performing a consent decree. See LWD PRP Grp. v. ACF Indus., LLC, No. 5:12-cv-00127,
But, as the government contends and the weight of authority demonstrates, the critical question is the PRP’s procedural circumstances, not whether its response costs were voluntary or involuntary. See Atlantic Res.,
Exxon resolved its liability to the State of Texas in an administrative settlement. The procedural circumstances entitle Exxon to seek contribution under § 113(f), but not cost recovery under § 107(a), for the cleanup costs it. incurred at that site.
D. Exxon’s § 113(f) Contribution Claim for the Baytown Site is Timely
The United States argues that Exxon’s § 113(f)(3)(B) claim is time-barred under § 113(g)(3)’s three-year statute of limitations. Exxon disagrees, contending that § 113(g)(3) does not apply to initial contribution actions arising out of administrative settlements with a state, as opposed to with the United States. The statutory language and Fifth Circuit case law leads the court to agree with Exxon.
Section 113(g) sets several limitations periods for CERCLA .actions. See 42 U.S.C. § 9613(g). These periods vary depending on the underlying action. Cost-recovery actions under § 107(a) must be brought within three or six years, depending on whether the costs were incurred as part of a “removal” or a “remedial” action. See id. § 9613(g)(2). These time limits are. specified in § 113(g)(2), entitled “Actions for Recovery of Costs.” Id. By contrast, § 113(g)(3), entitled “Contribution,” sets out the time limits for certain contribution actions. Section 113(g)(3) states that “[n]o action for contribution for any response costs or damages may be commenced more than 3 years after” either: the date (1) “of judgment in any action under this chapter for recovery of such costs or damages”; or (2) “of an administrative order under section 9622(g) of this title (relating to de minimis settlements) or 9622(h) of this title (relating to cost recovery settlements) or entry of a judicially approved settlement with respect to such costs or damages.” Id. § 9613(g)(3).
The parties agree that under the statute, none of these triggering events expressly applies to an administrative settlement with a state. Exxon argues that either no statute of limitations — or, at the very least, a six-year statute of limita
In Geraghty & Miller v. Conoco Inc.,
The government urges this court to'ignore Geraghty’s holding in light of two subsequent Supreme Court cases, Cooper Indus., Inc. v. Aviall Servs., Inc.,
The government argues that these two cases and decisions applying them show that a three-year statute of limitations applies to administrative settlements such as the agreement between Exxon and the State of Texas, despite the language of § 113(g)(3). The government cites Hobart Corp. v. Waste Mgmt. of Ohio, Inc., 758 F.3d 757, 773-74 (6th Cir.2014) (holding “that § 113(g)(2) is irrelevant to resolving whether Appellants’ contribution action [based on costs incurred in response to state administrative settlement] was timely filed and that § 113(g)(3) provides the statute of limitations for all contribution actions” and concluding that Geraghty is “no longer good law on this point” after Aviall and Atlantic Research); Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc.,
This conclusion raises the question of whether an interlocutory appeal is appropriate. A threshold determination involving “a controlling question of law as to which there is substantial ground for difference of opinion” may merit interlocutory review to “materially advance the ultimate termination of the litigation.” See 28 U.S.C. § 1292(b); R.J. Reynolds Tobacco Co. v. Hudson,
E. Summary
Section 113(f) is Exxon’s exclusive remedy for seeking cleanup costs it incurred at the Baytown site because Exxon resolved its liability in administrative settlements with the State of Texas. That claim is timely under prevailing Fifth Circuit law, at least on the summary judgment record.
IV. Prior Operator Liability under CERCLA
The parties agree that Exxon is liable as a former and current owner of the refineries and as a current owner of the plants at both the Baytown and Baton Rouge sites. They parties agree that the United States is liable as a prior owner of the plants at both sites. (Docket Entry No. 103-1 at 11 n. 3). They now agree that Exxon is liable as a former and current operator of the refineries and the plants at both sites.
Exxon seeks summary judgment that the government did operate the refineries and the plants. The government seeks summary judgment that it was not an operator of the refineries. The government asks the court to deny Exxon’s motion for summary judgment that the government was an operator with respect to the plants, but the government does not cross-move for summary judgment that it cannot be liable as an operator.
For the reasons explained below, the court concludes that: (1) the refineries and plants were sufficiently integrated at each site to be part of the same “facility”; (2) the government was not an “operator” of the refineries at either site; and (3) the government, with Exxon, operated the plants at both sites.
A. Whether the Refineries and the Plancors Are Separate “Facilities” Within Each Site
The parties agree that each of the two oil refineries is considered a “facility” under CERCLA and that the chemical plants — the plancors — at each site is also considered a “facility.” The parties dispute whether the refineries and plants at each site are a single “facility.” If so, liability for either the refineries or the plants would result in liability for the entire Baytown or Baton Rouge site. Because the government has admitted liability as a prior owner of the plancors at each
Exxon contends that the refineries and the plancors at each site are one “facility” for CERCLA liability purposes. The government disagrees, cautioning the court to be “on guard to prevent clever constructions [of the CERCLA definition of “facility”] by private litigants ... to expand the scope of liability beyond what would otherwise be provided____” (Docket Entry No. 67 at 46 (4:ll-cv-01814)). The government concedes that one Baytown plant, the Hydrocodimer Plancor, which was “located on refinery property and integrated into refinery operations,” is properly included as part of the Baytown site “facility.” (Docket Entry No. 67 at 49 n. 19 (4:ll-cv-01814)). The government argues that the remaining plancors at Baytown and all the plancors at Baton Rouge should be considered separate “facilities” from the refineries at the site. The government agrees that these plancors were located on federally owned land outside the refinery boundaries, were operated independently from the refineries, had different waste-disposal processes than the refineries, and were treated as distinct facilities by state regulatory agencies and subsequent owners or operators.
The existence of a “facility” is an element of Exxon’s prima facie case. Uniroyal Chem. Co. v. Deltech Corp.,
(A) any building, structure, installation, equipment, pipe, or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located....
42 U.S.C. § 9601(9). Courts have generally given the definition a broad, practical construction that depends on the facts of each case. See, e.g., Clear Lake Prop. v. Rockwell Int’l Corp.,
Under the broad definition of “facility,” Plancor 1909 — a hydrocodimer plant used to produce an avgas-blending component— at the Baytown site and the Baytown Ordnance Works are properly considered part of the same facility as the Baytown refinery. Similarly, the Baton Rouge refinery and two of the Baton Rouge Plancors easily qualify as one facility. The government admits that these three plants were located within the refinery boundaries, shared waste disposal processes with the refinery at the two sites, and are properly viewed as part of the same facility. (Docket Entry No. 67 at 49 n. 19 (4:ll-cv-01814)) (conceding that Plancor 1909 “was located on refinery property and integrated into refinery operations” at the Baytown site); (Docket Entry No. 67 at 48 n. 17 (4:ll-cv-01814)) (conceding that the two plants “located within the refinery boundary [are] logically included” in the same facility as the Baton Rouge refinery).
The government protests including the Baytown Ordnance Works in the same facility as the Baytown refinery, in part because the Works was located on federally owned land outside the refinery boundary. But “courts have consistently rejected attempts to create unnatural boundaries between different ‘facilities’ based on legal ownership boundaries.” Clear Lake Prop.,
The remaining plancors present a closer question. Those plants were located outside the refinery boundaries. They were not integrated with the refinery. They generally had different waste-disposal processes from the refinery. At the Baytown site, for example, “the basic waste streams from all three Baytown rubber Plancors were routed through their own separators and down a common sewer towards Scott Bay, some distance upstream of the refinery outfalls.” (Docket Entry No. 67 at 48 (4:11-cv-1814)) (citing Gravel Rep. at 62, 65, 67; Kittrell Decl. ¶ 6(a)-(b)). At the Baton Rouge site, the “rubber Plancors were similar, generally having their own waste treatment systems, and discharging to the Monte Sano Bayou well north of the refinery outfall.” (Id. at 49) (citing Gravel
Given CERCLA’s broad definition of the term “facility,” the interrelated need for avgas and rubber production, the plants’ and the refineries’ proximity to each other and location on the same sites, and the shared destination for the released wastes, the court concludes that the refineries and plancors at each of the two sites are a single “facility” for CERCLA liability purposes. See Southern Pac. Transp. Co. v. Voluntary Purchasing Grps. Inc.,
Exxon has admitted its prior- and current-operator liability as well as its owner liability for the plancors. The United States has admitted its prior-owner liability. Both parties are hable for remediation costs at the sites. Because operator status with respect to each sub-facility is a factor in allocating fault, the court will consider the parties’ arguments about prior-operator liability at both the refineries and the plants at each site. The Phase II determination of how to equitably allocate the remediation costs incurred at each site will be informed by the following analysis, which considers the refineries and the Plancors separately. See Lockheed Martin Corp. v. United States,
B. Whether the Government Was a Prior “Operator” of the Refineries or the Plants
1. The CERCLA “operator” standard
CERCLA defines an “operator” as “any person ... operating” a facility. 42 U.S.C. § 9601(20)(A)(ii). In United States v. Bestfoods,
Exxon argues that the “indicia of control” test from FMC Corp. v. U.S. Dep’t of Commerce,
The government argues that FMC’s continuing relevance is dubious. The FMC court based its operator-liability test on Lansford-Coaldale Joint Water Auth. v.
Many lower courts have recognized that FMC’s test is not helpful after Bestfoods. See Miami-Dade Cnty., Fla. v. United States,
2. Analysis
a. The Refineries
Under the Bestfoods standard, the government did not operate either the Baytown or Baton Rouge refineries. Although the government had regulatory authority over the industry and contracted with the oil companies to ensure adequate avgas production during World War II and the Korean War, the government did not “manage, direct, or conduct ... operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations.” Bestfoods,
Exxon argues that the government’s pervasive wartime regulation of the petroleum industry shows that it directed the Baytown and Baton Rouge refinery operations, including waste disposal. Exxon relies on Brighton,
The township appealed, arguing that “it did not exercise sufficient control over the site to qualify as a liable ‘operator’ under CERCLA.” Id. The Sixth Circuit acknowledged that “the Supreme Court ha[d] recently addressed the issue of defining ‘operator’ status” in Bestfoods. Id. at 313. But because the panel thought “corporate-form cases [were] not applicable to the present case,” in which the federal government’s rather than a private corporation’s role was at issue, the panel sought to define “operator liability outside of the corporate context.” Id. at 314. The panel viewed its “task” as distinguishing (1) “situations in which a governing authority uses its conventional police power to ensure that a dump does not pose a threat to public health and safety; from (2) situations in which the ‘regulations’ are just the government’s method of macromanaging the facility,” because “mere regulation does not suffice to render a government entity liable, but actual operation (or ‘ma-cromanagement’) does.” Id. at 315-316. Applying this test to the record, the panel could not “conclude that Brighton Township was or was not an operator of the facility.” The panel vacated the district court’s “ruling that the township was an operator of the facility” and remanded for further proceedings. Id.
Brighton does not support Exxon’s argument. The distinction that opinion drew between the government-entity and private-entity cases, applying the “regulation” versus “macromanagement” test only when a government entity is involved is not consistent with Bestfoods. See Brighton,
In addition, the governmental entity in Brighton “made repeated and substantial ad hoc appropriations, and it made arrangements ... for bulldozing and other maintenance when [the landowner it contracted with] himself proved unequal to the task. It also took responsibility for ameliorating the unacceptable condition of the dump, before and after scrutiny from the state government, at least as early as
The federal government’s wartime influence over these refineries stemmed from its voluntary contractual relationships with Exxon’s predecessors. Courts have repeatedly rejected arguments that similar procurement activities during wartime to fill national defense needs are enough for operator liability. Direct and specific federal government involvement in the waste-disposal matters at issue is required. See, e.g., E. Bay Mun. Util. Dist. v. U.S. Dep’t of Commerce,
The government “played the role of a very interested consumer” in its wartime contracts with suppliers, including Exxon’s predecessors. See United States v. Iron Mountain Mines, Inc.,
Exxon argues that the specter of having the refineries seized and cutting crude-oil supplies coerced its predecessors into taking orders from the federal government. (Docket Entry No. 102 at 26-27). While the government had seizure authority, it did not seize, or threaten to seize, either the Baytown or Baton Rouge refineries. Indeed, there was no need; Exxon’s predecessors appeared to be willing partners enthusiastic to support the nation’s defense needs. (Docket Entry No. 66-4, ¶ 184 (4:11-cv-1814)). See Coeur D’Alene Tribe v. Asarco, Inc.,
Exxon cites evidence about the oil companies’ dissatisfaction with the renegotiation clauses. This evidence does not turn what was otherwise a consensual relationship into a coercive one. Exxon cites a 1943 letter that George Parkhurst, Standard’s national assistant director of refining, sent to George H. Hill, Jr., the Defense Supplies Corporation’s executive vice-president and general counsel. (Docket Entry No. 159). The letter discussed the “unwillingness” of certain oil companies “to execute a contract containing a clause having the effect of waiving the right to contest the validity or applicability of the renegotiation statute.” (Id.). The statute allowed the government to renegotiate wartime profits if they were too high. See Lichter v. United States,
The federal government’s “authority to control” the private entities that were necessary to meet wartime supply needs is not the Bestfoods standard. Bestfoods requires a direct nexus between the government’s activities and the decisions in the refineries’ waste leakage, disposal, or environmental compliance. See Bestfoods,
Nothing in the record indicates that the contracting parties negotiated or specified how the oil companies would manage waste disposal at the refineries. The contracts are silent on this issue. (Docket Entry No. 66-4, ¶¶ 198-99 (4:ll-cv-1814)). The evidence does not show that government officials or employees worked at the Baytown and Baton Rouge refineries. Instead, the record shows that Humble and Standard LA personnel ran the refineries’ day-to-day operations. (Docket Entry No. 66-4, ¶¶ 2, 6, 169 (4:ll-cv-1814)). The avgas contracts referred to the personnel operating the refineries as governed by the companies’ existing labor contracts. No federal government employees operated any refinery equipment, supervised operations, or directed operations. (Docket Entry No. 66-4, ¶¶ 81, 174, 177). See Miami-Dade Cnty.,
Exxon argues that the inspections by government employees at the refineries— including by one employee stationed at Baton Rouge — supports a conclusion that the government “operated” these entities. (Docket Entry No. 102 at 26-27). Courts have consistently rejected similar arguments. In Miami-Dade County, for example, the court determined the United States was not liable as a past operator, noting that “[f]ederal government employees ... including those actually stationed at the ... plant, had no objective, duty, or responsibility other than to enforce the price, schedule, and other contract provisions by ensuring delivery of quality products in accordance with the terms of the contract....”
The evidence shows that a government employee was stationed at the Baton Rouge refinery to “inspect C-S,” a blending agent for avgas, to ensure product quality, and to coordinate 'shipping for the finished product. Exxon’s predecessors contractually agreed to these inspections. Nothing in the record suggests that this inspector’s duties involved day-to-day management of the refinery or related to waste disposal or environmental compliance. (Docket Entry No. 66-4, ¶ 172 (4:11-cv-1814)). As in Lockheed Martin Corp. v. United States,
The evidence also shows that the government did not hire, fire, or otherwise manage the refineries’ employees. No contract provision allowed the government to make personnel or labor-related decisions. Nothing in the record suggests the government had or played a role in these decisions. (Docket Entry No. 66-4, ¶¶ 170-71, 179 (4:11-cv-1814)). When, as here, “[n]o one from the federal government was involved with the hiring or firing of [the] employees” running the facility, Miami-Dade County,
Exxon argues that the government’s control over the national labor market during wartime subjects it to operator liability. The ease law is clear, however, that this broad or general authority over industry-wide labor allocation is not enough. See, e.g., Coeur D’Alene Tribe,
Third, there is no evidence that the government designed, specified, or provided equipment to the refineries. Exxon’s predecessors designed and constructed their own processes and equipment. (Docket Entry No. 66-4, ¶¶ 50-53, 55, and 59 (4:11-cv-1814)). Both the Baytown and Baton Rouge refineries had an existing infrastructure that provided the capacity to make war products. Both refineries were valuable to the war effort “as is.” (Docket Entry No. 66-4, ¶ 60 (4:11-cv-1814)).
Exxon urges this court to follow “cases in which the courts have recognized that wartime conditions presented a unique set of factors when considering CERCLA liabilities.” (Docket Entry No. 102 at 29) (citing Cadillac Fairview,
Cadillac Fairview did not address operator liability under Bestfoods in the refinery context. Instead, it concerned eq
Finally, as discussed above, Bestfoods, not FMC, controls. The observation that “environmental cleanup costs [a]re a cost to society that the Government should rightly pay as a result of wartime conditions,”
Exxon argues that federal rationing of materials critical for the war effort controlled and limited the oil refineries’ ability to dispose of the increased waste. Exxon identifies two requests to allocate materials toward waste-disposal projects. The government rejected both requests.
At the Baytown refinery, Exxon’s predecessors requested PAW’s approval in 1944 to use scarce material to build a new acid-sludge burning facility that would serve as back-up until a new acid-concentration facility was built and the existing facility overhauled. The government had already approved the new construction and overhauling projects. The PAW denied the request for the acid-sludge burning facility, concluding that it would “only serve to
At the Baton Rouge refinery, Standard LA first considered building a new master separator in 1931, but did not. Standard LA reviewed the adequacy of its waste-disposal facilities in two studies that showed the “escape of oil to the river.” This led Standard LA to plan changes in the existing separators in 1939. But Standard LA did not take meaningful action until 1944, after a high-profile oil spill from a barge at the Baton Rouge refinery.
In July 1944, Standard LA applied to the PAW for permission to use steel, copper, and labor to build a master separator and a silt-treating system. (Docket Entry No. 66-4, ¶ 260 (4:ll-cv-1814)). Standard LA acknowledged that the wartime need for the scarce materials might prevent it from completing both projects and told the PAW that it put a higher priority on the silt-treating system:
We believe that you are fully aware that our two projects covering the master separator and the mud washing and emulsion treating facilities can be handled separately. Although we think the installation of both projects is very desirable, if'in the interest of conservation of materials and manpower it is necessary to postpone at least part of those projects, we believe that the installation of mud washing and emulsion treating facilities should be given preference, since they could be installed more quickly and more could be accomplished in correcting pollution problems with a smaller investment.
(Docket Entry No. 66-4, ¶ 272 (quoting Standard LA’s internal correspondence) (4:11-ev-1814)).
The PAW concluded that constructing the master separator would divert too much steel and labor from higher priority war projects. The PAW approved the silt-treatment unit, consistent with Standard LA’s preference. Standard LA completed the unit in September 1945. Although the government lifted the restriction on the materials necessary to build the master separator in 1945, Standard LA did not begin operating the separator until October 1952, seven years later. (Docket Entry No. 66-4, ¶¶ 292-93 (4:11-cv-1814)).
In both instances, the government’s role focused on allocating scarce materials, not on deciding whether, when, or how Exxon’s predecessors should dispose of wastes at either facility. The government exercised its regulatory authority to refuse to allocate steel or other scarce materials to the two proposed waste-disposal projects.
The evidence that the Corps knew the potential for pollution at the Baton Rouge refinery does not support holding the United States liable for that pollution as an operator. See Coeur D’Alene Tribe,
Exxon fails to justify, and neither the record nor law supports, using these two examples to make the United States liable. Given the undisputed and extensive evidence of the general and limited nature of federal control over the refineries’ operation, these neglected requests are insufficient for operator liability. There is no evidence that the United States was otherwise involved in environmental-compliance decisions at either facility.
Exxon relies on similar arguments in arguing that the United States’ involvement in the refineries during the Korean War subjects it to operator liability. The same analysis and result apply. Exxon does not allege or identify evidence that the United States had played a role — as required by Bestfoods — in either site’s waste-disposal operations during the Korean War.
The court rules that the United States did not operate either the Baytown or Baton Rouge refineries during either World War II or the Korean War.
b. The Plancors and the Ordnance Works
Exxon also moved for summary judgment that the United States is liable as operator for the chemical plants (including the Ordnance Works) at both the Bay-town and Baton Rouge sites. The government opposes Exxon’s motion but does not seek a declaratory judgment that the United States did not operate the plants. Because the government admits ownership of the plants, the United States is liable as a “covered person” for an equitable share of the qualifying cleanup costs. The issue is whether, for the purpose of this court’s later equitable allocation, the United States also operated the plancors and the Baytown Ordnance Works.
On numerous occasions I sit in my office looking out of the window along about a quarter to five and can see the men gathering up through the aisles of the boiler house section and lining up to make a rush for the time clocks at five o’clock. Since this matter has not just occasionally happened, but has been constant for weeks, it is running into a considerable loss of time.... Please take steps with the general contractor to see that the condition is eliminated or the matter will have to be taken up with Washington, where I am sure we can get results.
(Docket Entry No. 117, at 58 (quoting PPF ¶ 233)). Unlike the CS inspector at the Baton Rouge refinery, the official at the plant played a substantial role in overseeing day-to-day operations.
In addition to playing a much larger role in directing plant operations than refinery operations, the United States also made specific decisions about waste disposal and environmental compliance at the plants. During World War II, the Army’s Ordnance Department knew that some, if not most, of the spent alumna-catalyst waste generated at the hydroformer reactor processing unit at the Ordnance Works was disposed of in open dumps at, or in the vicinity of, the Ordnance Works. (Docket Entry No. 118-1 ¶ 221). The government acknowledged that during the War, it delayed improving the waste-processing facilities at the plants:
During this period, it was recognized that some raw and partially processed materials were lost into waste waters leaving the plants, and that some of these substances were causing a stream pollution problem. However, personnel could not be diverted from more pressing objectives to study the complex problems related to waste prevention or treatment — nor could construction materials be secured for such purposes.
(Docket Entry No. 118-1 ¶ 219). In the same 1946 report, the government observed that “[m]any of these facilities were designed to meet only the minimum requirements because the more comprehensive programs in many instances could not be justified in the war emergency and the scarcity of critical materials.” (Docket Entry No. 118-1 ¶ 217).
The RuR eventually recognized the “increasing importance of active attention to problems concerned with air and water pollution in our operating plants” and deemed it “advisable to centralize the contacts and work on such projects under Reserve’s direction in a single office.” (Docket Entry No. 117-3, ¶ 64). In 1946, the RuR hired an industrial waste-management expert, Sheppard Powell, to inspect and make recommendations to address pollution from the synthetic-rubber plants. (Docket Entry No. 118-1 ¶¶ 150, 157, 179, 220). (Docket Entry No. 118-1
The government’s organization of, and direction over, the operations at the Ordnance Works and its disposal mechanisms also satisfy the Bestfoods operator standard. The Ordnance Works featured military barracks, a mess hall, air raid shelters, high-security perimeter fencing, and four guard watchtowers. It resembled a United States Army base more than a chemical plant. Army personnel, including a commanding officer, a permanent Army staff, a detachment, and an infantry company, were stationed full-time at the Ordnance Works. (Docket Entry No. 118-1 ¶¶ 227-28, 230). The Army personnel played an important role in the plant’s toluene production. As one Humble employee wrote in a memo:
[w]e are subjected to a steady stream of orders from this [Ordnance Department] office stating how various phases of the business should be conducted and specifying numerous reports to be submitted daily, weekly, and monthly to St. Louis covering personnel, absenteeism, average hourly rates, overtime payments, production quotas, maintenance costs, warehouse inventories on a dollar basis.... [Inspectors from the Eighth Service Command regularly check our sanitary facilities and require a monthly report from us as to the adequacy of our water supply and sewage facilities.
(Docket Entry No. 102-1, ¶ 231).
C. Findings and Conclusions as to CERCLA Operator Liability
The court makes the following rulings on the parties’ CERCLA operator liability under the parties’ wartime contracts:
• Exxon operated the refineries;
• Both Exxon and the United States operated the Plancors at the Baytown and Baton Rouge sites; and
• Both Exxon and the United States operated the Baytown Ordinance Works.35
Accordingly, both parties operated the Baytown and Baton Rouge “facilities” during the time in question. Each party’s culpability and extent of liability, which depend in part on whether that party operated particular parts of those facilities, will be decided in the equitable allocation phase.
D. The Forms of Relief Available to Exxon
Even though the United States did not operate the refineries, it did operate the
1. Joint and Several Liability
Exxon argues that joint and several liability is the “default” standard in § 107(a) actions. See PCS Nitrogen Inc. v. Ashley II of Charleston,
Section 107(a) does not mandate joint and several liability. See In re Bell Petroleum Servs., Inc.,
The government argues that common-law principles preclude liable parties like Exxon from imposing joint and several liability on other liable parties. See Restatement (Second) of Torts § 433B cmt. d at 444 (1965) (“As between the proved tortfeasor who has clearly caused some harm, and the entirely innocent plaintiff, any hardship due to lack of evidence as to the extent of the harm caused should fall upon the former.” (emphasis added)). This court need not decide the issue. ■Even if joint and seyeral liability applies here, the government has “blunt[ed] any inequitable distribution” through its counterclaim for contribution under § 113(f). Atlantic Research,
2. The Equitable Allocation Methodology
After liability is established, a court allocates fault “using such equitable factors as the court determines are appropriate.” 42 U.S.C. § 9613(f)(1). “This language gives district courts discretion to decide what factors ought to be considered, as well as the duty to allocate costs according to those factors.” Boeing Co. v. Cascade Corp.,
(i) the ability of the parties to demonstrate that their contribution to a discharge, release or disposal of a hazardous waste can be distinguished; (ii) the amount of the hazardous waste involved; (iii) the degree of toxicity of the hazardous waste involved; (iv) the degree of involvement by the parties in the generation, transportation, treatment, storage, or disposal of the hazardous waste; (v) the degree of care exercised by the parties with respect to the hazardous waste concerned, taking into account the characteristics of such hazardous waste; and (vi) the degree of cooperation by the parties with the Federal, State or local officials to prevent any harm to the public health or the environment.
Carson Harbor Vill., Ltd. v. Unocal Corp.,
“Given the broad discretion granted in CERCLA § 113(f)(1), courts also look beyond the Gore and Torres factors when equitably allocating response costs.” Id. (citing Am. Int’l Specialty Lines Ins. Co. v. United States (AISLIC II),
2. The value of the contamination-causing activities to furthering the government’s national defense efforts. Cadillac Fairview/Cal., Inc. v. Dow Chem. Co.,
3. The existence of an indemnification agreement demonstrating “the parties’ intent to allocate liability among themselves.” Halliburton Energy Servs., Inc. v. NL Indus.,
4. “The financial benefit that a party may gain from remediation of a site.” Litgo New Jersey, Inc. v. Martin,
5. The potential for windfall “double recoveries” by a plaintiff. See, e.g., Litgo N.J. Inc. v. Comm’r N.J. Dep’t of Envtl. Prot.,
6. The potential that a plaintiff might “make a profit on the contamination” at the expense of another PRP. See Vine St., LLC v. Keeling ex rel. Estate of Keeling,
7. CERCLA’s intent that “ ‘responsible parties, rather than taxpayers, bear the costs’ ” of cleanup. Yankee Gas [Services Co. v. UGI Utilities, Inc.], 852 F.Supp.2d [229], at 256 [ (D.Conn.2012) ] (quoting Marsh v. Rosenbloom,
Lockheed Martin,
Exxon asks the court to adopt its expert witness’s proposed “production-based approach” to allocate fault in Phase II. This approach uses “throughputs” — the amounts of oil and rubber each facility produced — to approximate the hazardous waste generated during a given period. The proposed model places more weight on the period during the war, before better waste-management technology was installed at either site. The model also assigns more blame to operators than to owners.
The United States opposes this methodology on several grounds. The United States argues that the court should defer deciding equitable allocation, including methodology, until it receives more evidence during Phase II of this case, including “the opinion of the United States’ expert on CERCLA allocation, Matt Low.” (Docket Entry No. 118, at 83). The court agrees with the United States that deciding on the method for allocating fault is premature. The court will resolve that issue during Phase II of the litigation. Exxon is free to reurge its allocation arguments at that time.
3. A Declaratory Judgment as to Future Costs
Exxon seeks a declaratory judgment that the United States is liable for the future cleanup costs Exxon will incur at both sites and specifying the United States’ equitable share of these future costs. The United States argues that the “court should enter the declaratory judgment as to liability only for unknown future costs, and defer any equitable allocation of those costs until they are actually incurred and sufficient facts are established to determine what allocation would be equitable.” (Docket Entry No. 67 at 38 (4:ll-cv-01814)).
Based on the court’s holding that the United States owned and operated the Plancors at the Baton Rouge site, the court enters declaratory judgment that the United States is liable for its share of past and future costs. Section 113(g)(2) pro
Section 113(f) is different. A declaratory judgment is not required in Exxon’s § 113(f) action to recover its Baytown site cleanup costs. “The statute does not explicitly provide for declaratory relief for a contribution action for future or past response costs.” United States v. Davis,
Exxon’s claim for a declaratory judgment that the United States is liable for its share of the cleanup costs is ripe as to both its § 107(a) and § 113(f) elaims. Courts have held that “some funds must be spent on response costs prior to a [CERCLA] declaratory judgment action being considered ripe.” A Shapiro & Sons, Inc. v. Rutland Waste & Metal Co.,
The issue is whether the record similarly supports a declaratory judgment for fault allocation as to Exxon’s future costs, including costs incurred in cleaning up “offshore” water bodies near the two sites. For the 'Same reasons that allocating fault at this time would be premature, the court declines to enter a summary declaratory judgment that the United States is equitably held to a certain share of for future costs. During Phase II, the court may issue a declaratory judgment equitably assigning the parties’ shares of future costs if the evidence is not unduly speculative or otherwise subject to challenge. See New York,
V. Conclusion
The court grants in part and denies in part Exxon’s motions for partial summary-judgment as to Phase I liability and allocation, (Docket Entry No. 102 (4:10-ev-2386); Docket Entry No. 51 (4:ll-cv-1814)). The court grants in part and denies in part the government’s motions for partial summary judgment. (Docket Entry No. 103 (4:10-2386); Docket Entry No. 52 (4:11-cv-1814)). The court enters declaratory judgment that the United States is liable for its equitable share of the past and future cleanup costs incurred at the Baytown and Baton Rouge sites. The equitable allocation of fault and costs will be determined in Phase II.
GLOSSARY APPENDIX
AGRP Aviation Gas Reimbursement Plan
Avgas Aviation Gasoline
CERCLA Comprehensive Environmental Response, Compensation, and Liability Act
DPC Defense Plant Corporation
DPA Defense Production Act
EPA Environmental Protection Agency
FOA Facility Operations Area
NCP National Contingency Plan
NPA National Production Authority
PAD Petroleum Administration for Defense
PAW Petroleum Administration for War
PRP Potentially Responsible Party
RCRA Resource Conservation and Recovery Act
RuR Rubber Reserve Company
SARA Superfund Amendments and Reauthorization Act of 1986
TCEQ Texas Commission on Environmental Quality
WPB War Production Board
Notes
. Exxon's predecessor at the Baytown site was Humble Oil and its predecessor at the Baton Rouge site was Standard Oil. For simplicity, the court refers to these predecessors as “Exxon” unless otherwise noted.
. Unless otherwise noted, citations are to the record in the lead case, Exxon Mobil Corp. v. United States, No. 4:10-cv-2386 (S.D. Tex. filed Mar. 29, 2010).
. The national contingency plan consists of federal regulations that prescribe the procedure for conducting hazardous substance cleanups under CERCLA and other federal laws. See CERCLA § 105, 42 U.S.C. § 9605; 40 C.F.R. Pt. 300.
. The term "person” includes an "individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, State, municipality, commission, political subdivision of a State, or any interstate body....” 42 U.S.C. § 9601(21).
The term "facility” means
(A) any building, structure, installation, equipment, pipe or pipeline (including any pipe into'a sewer or publicly owned treatment works), well, pit, pond, lagoon, im-poundment, ditch, landfill, storage container, motor 4 vehicle, rolling stock, or aircraft; or
(B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel.
Id. at § 9601(9).
The term "release” 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), but excludes
(A) any release which results in exposure to persons solely within a workplace, with respect to a claim which such persons may assert against the employer of such persons;
(B) emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine;
(C) release of source, byproduct, or special nuclear material from a nuclear incident, as those terms are defined in the Atomic Energy Act of 1954 [42 U.S.C.2011 et seq.l if such release is subject to requirements with respect to financial protection established by the Nuclear Regulatory Commission under section 170 of such Act [42 U.S.C. § 2210], or, for the purposes of section 9604 of this title or any other response action, any release of source byproduct, or special nuclear material from any processing site designated under section 7912(a)(1) or 7942(a) of this title; and
(D) the normal application of fertilizer.
Id. at § 9601(22).
(8) The term "environment” means
(A) the navigable waters, the waters of the contiguous zone, and the ocean waters ofwhich the natural resources are under the exclusive management authority of the United States under the -Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C. 1801 et seq.\\ and
(B) any other surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air within the United States or under the jurisdiction of the United States.
Id. at § 9601(8).
“Disposal” is defined as:
The discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the 5 environment or be emitted into the air or discharged into any waters, including ground waters.
Id. at § 9601(29) (citing 42 U.S.C. § 6903(3)).
. Section 120(a)(1) of CERCLA, 42 U.S.C. § 9620(a)(1), enacted as part of the 1986 SARA amendments, broadly waives the federal government’s sovereign immunity, providing that “[e]ach department, agency, and instrumentality of the United States” is subject to CERCLA’s provisions "in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 9607 [CERC-LA section 107] of this title.” 42 U.S.C. § 9620(a)(1); see also United States v. Shell Oil Co.,
. Much of the background summary is from Shell Oil Co.,
. Humble played no role in the management of one government-owned Plancor, the Copo-lymer Plancor (No. 877), which was operated by the General Tire & Rubber Company from 1943 to 1955 when it was sold to the United Carbon Company. (Docket Entry No. 67-1 ¶¶ 162-66 (4:ll-cv-01814)).
. In 1950, the lease for the Butadiene Plancor was transferred from Standard LA to the Co-polymer Corporation. (Docket Entry No. 67-1 ¶ 176 (4:1 l-cv-01814)).
. Standard LA had already begun building the Butyl Rubber Plancor and the Hydrogenation Plancor before the United States purchased the land. (Docket Entry No. 67-1 ¶¶ 182, 199 (4:1 l-cv-01814)).
.Standard LA owned this Plancors land and buildings, while the government owned part of the machinery and equipment. (Docket Entry No. 67-1 ¶ 192 (4:ll-cv-01814)).
. United States v. Shell Oil Co., Civ. Action No. CV 91-0589-RJK (C.D.Cal.). (Docket Entry No. 118-1, ¶ 61).
. The Supreme Court has interpreted CERC-LA's use of the term "contribution” in accordance with the common-law definition that "the 'tortfeasor's right to collect from others responsible for the same tort after the tortfea-sor has paid more than his or her proportionate share, the shares being determined as a percentage of fault.' ” United States v. Atlantic Research Corp.,
. The Fifth Circuit does not appear to have addressed this question. See Lyondell Chem. Co. v. Occidental Chem. Corp.,
. Exxon contends that § 107(a) allows "any person” to bring a cost-recovery action and therefore does not forbid an action by a PRP that has incurred costs in response to an administrative settlement. (Docket Entry No. 121, at 11). But under well-established principles of statutory construction, the general language of § 107(a) must give way to the later-enacted, more specific provisions of § 113(f). See Fourco Glass Co. v. Transmirra Prods. Corp.,
. See Agreed Order, In the Matter of Exxon Co. U.S.A., SWR No. 30040, No. 95-0282-IHW-E (March 15, 1995) ("Agreed Order 1”); , Agreed Order, In the Matter of Exxon Chems. Americas, SWR No. 33880, No. 95-1078-IHW-E (July 31, 1995) ("Agreed Order 2”).
. TNCC is referred to in the briefs and this opinion as the TCEQ.
. Although not necessary to the conclusion that the voluntary agreement in Differential Development was not an administrative settlement, the opinion also relied in part on the absence of any CERCLA-specific language in that agreement. See Differential Development-1994,
. See also Whittaker Corp. v. United States, No. CV 13-1741 FMO (JCx),
. Even if Exxon could seek cost recovery under § 107(a) for costs incurred outside the scope of the administrative settlements, it has already made critical admissions on this front that would limit any potential recovery under that section. In its complaint, Exxon asserted that it had spent as little as $200,000 (out of the $45 million it seeks arising out of the Baytown site) on cleanup outside the scope of the settlement. (Docket Entry No. 1, Compl. ¶¶ 28-29 (‘‘[I]n accordance with the Agreed Orders and a subsequent TCEQ corrective action plan ... [Exxon] has incurred to date approximately $45,000,000 in response costs.”)). See Davis v. A.G. Edwards & Sons, Inc.,
. Because of this conclusion, the court need not consider Exxon's argument (or the government's counterarguments) that no limitations period applies to § 113(f)(3)(B) contribution actions for costs incurred in response to administrative settlements.
. The government argues that Exxon’s § 113(f) claim for its Baytown response costs is untimely even under § 113(g)(2)'s six-year statute of limitations because Exxon’s contribution claim "first accrued upon its entry of the administrative orders on consent in 1995” and "Exxon did not file suit against the United States until” 2010, "far more than six years” after 1995. (Docket Entry No. 118, at 32, 40). But § 113(g)(2)’s statute of limitations begins to run on the "completion of the removal action” or "after initiation of physical on-site construction of the remedial action,” not the date of an administrative order. 42 U.S.C. § 9613(g)(2)(A), (B). And beginning in December 2003, the government entered agreements with Exxon tolling the statute of limitations. (Docket Entry No. 67, at 32 n. 6 & Ex. 20 (4:ll-cv-1814)). Because the inquiry under § 113(g)(2) is "highly fact-specific,” Geraghty,
. As noted above, the government may reurge this affirmative defense during Phase II based on a more specific showing that Exxon’s Baytown contribution claim is untimely under § 113(g)(2).
. In its briefs, Exxon argued that it was not an operator between 1941 and 1955 of either the refineries or the plants it owned. At oral argument, Exxon admitted that, for purposes of liability under CERCLA, it operated both its own facilities and the government’s during the relevant times. (Docket Entry No. 143, at 110-11, 123-24). The court grants the government’s motion, (Docket Entry No. 103), on these issues and denies Exxon's motion. (Docket Entry No. 102).
. This conclusion would not preclude alio-, eating less fault to the government based on lower culpability for wastes generated at the refineries than at the plancors. See Southern Pacific Transp. Co. v. Voluntary Purchasing Grps. Inc.,
. At the very least, the government argues, the court should defer ruling on the partial summary judgment motion and “examine the issue independently after trial.” (Docket Entry No. 67 at 50 (4:1 l-cv-01814)).
. The government contends that the remaining plancors should nevertheless be considered separately because they were constructed later than the refineries and treated separately by subsequent owners and the State of Texas. As the court in Southern Pacific observed in rejecting a similar argument about three separate administrative consent orders for a chemical plant, railroad line, and cotton gins at a contaminated site, the "entirety of the Commerce Site is similarly contaminated” as a "result of the longtime operation of the chemical plant, the railroad line, and the cotton gins,” which "integrated their operations to varying degrees.” Southern Pacific,
. In Geraghty & Miller, the court went on to say that "operator liability only attaches if the defendant had authority to control the cause of the contamination at the time the hazardous substances were released into the environment.”
. See also, Miami-Dade Cnty. v. United States,
. The letter mentions only the following companies as examples of those “which have most strongly objected” to the statutory renegotiation clauses: "Texas, Phillips, Socony-Vacuum, Pan American, Mohawk, and Tide Water." (Docket Entry No. 159, at 1).
. To the extent that FMC remains good law after Bestfoods, the court agrees with the government that it is not liable as a prior "operator” under that standard. In FMC, unlike the present case, the government "supplied equipment for use in the manufacturing process, acted to ensure that the facility retained an adequate labor force, participated in the management and supervision of the labor force, had the authority to remove workers who were incompetent or guilty of misconduct, controlled the price of the facility’s product, and controlled who could purchase the product.” Id. at 843.
Decisions applying FMC’s “substantial control” test have held that federal involvement at an industrial plant will make the government liable under CERCLA only if that involvement exceeds general regulation of or oversight over a contractor's operations. See, e.g., Twp. of Brighton,
. Exxon contends that its predecessor "originally requested PAW’s approval to construct” the master separator "during the 'early part’ of the war” (Docket Entry No. 117 at 45), but it acknowledges “historical documentation of Standard Oil’s initial attempt to obtain PAW approval” is "very limited,” (Id. n. 16). The government points out that there is "no record of a 1943 request made by Standard regarding a master separator at Baton Rouge” apart from a "1946 company memorandum” and a "1953 company newspaper.” (Docket Entry No. 123, at 23 n. 7).
. Exxon, asserts that "the available evidence shows that the government made at least five, unilateral waste disposal decisions about waste processing improvements at the Bay-town and Baton Rouge refineries.” (Docket Entry No. 121, at 16). Three of these examples were entwined with the government’s resource-allocation decisions about the acid-waste burner at Baytown and the master separator at Baton Rouge: (1) the government’s first denial of Standard LA’s request to construct a master separator in the "early part” of World War II; (2) the government's approval of Standard LA’s silt-treating unit; and (3) the government's approval of Humble’s request to build acid reconstruction facilities. (Docket Entry No. 117, at 47). Whether framed as approving the use of certain materials or denying the use of others, these decisions were part of the decisions to deny materials to build a back-up acid-sludge burner at Baytown and build a master separator at Baton Rouge. (Docket Entry No. 123, at 22 (”[I]n fact, those two projects — through subdivision — make up the five instances that Exxon now refers to in its brief.”)).
. The government argues that Exxon’s expert witness, A.J. Gravel, is not “qualified as an expert [historian] by knowledge, skill, experience, training, or education” and will not “help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R.Evid. 702; (Docket Entry No. 118, at 80). The government specifically challenges Mr. Gravel's ability "to assist the Court in understanding the context of the WWII and Korean War time periods” because he "lacks training and education in history.” (Docket Entry No. 118, at 81). The government has not, however, challenged his qualifications to provide an opinion on non-historical issues. Considering Gravel’s testimony and report does not alter the conclusion that the United States did not operate the refineries. Nor is Gravel’s testimony necessary to find and conclude that the United States did operate the plants.
The government also argues that "Exxon's expert reports — all unsworn — would constitute inadmissible hearsay at trial and thus do not constitute competent summary judgment evidence.” (Docket Entry No. 67, at 83 n. 31 (4:11-cv-1814)). Each of Exxon’s experts subsequently filed sworn rebuttal declarations incorporating their reports by reference under penalty of perjury. (See Docket Entry Nos. 121-1, ¶ 3; 121-2, ¶ 5; 121-3, It 4); see also Straus v. DVC Worldwide, Inc.,
. Exxon also moved for summary judgment that the government is liable as an "arranger” for the disposal of waste at the Hydrocodimer Plancor (Plancor 1909) at the Baytown site. Exxon argues that the government "arranged for and paid” it to process "various hazardous raw materials” into hydrocodimer at the plant, and that the government "retained title to these raw materials throughout the production process.” (Docket Entry No. 102, at 42-43 n. 14); see also Sea Lion, Inc. v. Wall Chem. Corp.,
. Exxon initially argued that it did not operate the Plancors or the Ordnance Works because it served as the government’s agent and its actions were therefore attributable to the government. (Docket Entry No. 117, at 10, 63). At oral argument, however, Exxon appeared to retreat from this theory, conceding that for liability purposes, it did operate the plants under its contracts with the government. In any event, the court rejects Exxon’s agency arguments, in part because CERCLA expressly exempts from liability “an act or omission of a third party other than an employee or agent of the defendant....” 42 U.S.C. § 9607(b)(3) (emphasis added); see also Bestfoods,
. These water bodies include the Houston Ship Channel, Black Duck Bay, Scott’s Bay, and Mitchell Bay at the Baytown site. At the Baton Rouge site, they include the Mississippi River and the Monte Sano Bayou. (Docket Entry No. 117 at 68 n. 28).
. Several courts since Atlantic Research have concluded that § 107(a) allows for joint and several liability. See PCS Nitrogen
. Exxon argues that this does not apply when liability is disputed. But the Court found that most aspects of liability are not in dispute. For example, the United States admitted that it was a prior owner of the plants.