The island of Guam has been a territory of the United States for more than a century, and for most of the period between 1898 and the mid-1900s, Guam served as a central base of operations for the United States Navy in the South Pacific. (Am. Compl., ECF No. 7, ¶ 6.) Early on, the Navy created a major landfill on the island-the Ordot Landfill-to support its mission, and this dump was used to dispose of munitions and chemicals, as well as military and civilian waste, for decades. (Id. ¶¶ 7, 11.) As relevant here, by the time the United States government relinquished control of Guam to civilian authorities in the year 1950, the Ordot Landfill contained, and would continue to receive, significant quantities of trash and hazardous waste that posed a serious risk to the surrounding environment. As a protectorate of the United States, Guam is subject to U.S. environmental laws, and pursuant to an agreement with the U.S. Environmental Protection Agency ("the EPA") that arose under the Clean Water Act ("CWA"),
Before this Court at present is the United States's motion to dismiss Guam's complaint under Federal Rule of Civil Procedure 12(b)(6). (See United States' Mem. in Supp. of Mot. to Dismiss Guam's Am. Compl. ("Def.'s Mem."), ECF No. 27-1.) In its motion to dismiss, the United States argues that Guam cannot compel the United States to pay for the closure and remediation of the Ordot Landfill under CERCLA's section 107(a) because, under the circumstances presented here, CERCLA only provides Guam with a claim for contribution under section 113(f)(3)(B) (see
On September 30, 2018, this Court issued an Order that DENIED the United States's motion to dismiss. (See Order, ECF No. 37.) This Memorandum Opinion explains the reasons for that Order. In short, the Court concludes that a cost-recovery action under section 107(a) remains available to Guam because the 2004 Consent Decree plainly left the issue of liability for the costs associated with the Ordot Landfill cleanup unresolved, and therefore, section 113(f)(3)(B)'s contribution mechanism was not triggered. Consequently, and to that extent, the Court finds that the United States's motion to dismiss Guam's cost-recovery claim under section 107(a) must be denied.
*78I. BACKGROUND
A. The Ordot Landfill
Over one hundred years ago, the United States captured the island of Guam from Spain and began administering the island as a United States territory. (See Am. Compl. ¶ 6.) Between 1898 and 1950, the United States Navy "unilaterally governed and operated" Guam (id. ), and at some point during its administration of the island's operations, the Navy established the Ordot Landfill to dispose of the waste being generated on the island (see
Notably, throughout its lifespan, the Ordot Landfill accepted waste from both military and civilian entities. (See
For present purposes, it is important to note that because the Ordot Landfill was built in the pre-World War II era, it was not designed with modern environmental practices in mind, and thus, did not have certain safeguards to shield the surrounding environment from contamination. For example, "[d]uring its years of operation, the Ordot Landfill was ... uncapped at its top." (Am. Compl. ¶ 12.) Consequently, "[t]he landfill absorbed rain and surface water" from storms and other sources, and this water "percolated through the landfill and picked up contaminants." (Id. ) In addition, since the landfill was also "unlined on its bottom[,]" the contaminated water-which is known as "leachate"-leaked out of the Ordot Landfill into the nearby Lonfit River, and the river carried hazardous materials from the landfill out into the Pacific Ocean. (Id. )
The EPA has been aware of these and other environmental problems with the Ordot Landfill for many decades; indeed, the agency placed this site on the National Priorities List as far back as 1983, which indicated its "priority [status] for the expenditure of funds to respond to the release or threatened release of hazardous substances." (Id. ¶ 13.) Moreover, starting in 1986, the EPA began issuing administrative orders under the CWA, directing Guam's civilian government to halt the further *79discharge of contaminants from the Ordot Landfill into the rivers and oceans of Guam. See Guam ,
B. The EPA's CWA Lawsuit And The Resulting Consent Decree
The EPA finally filed a lawsuit against Guam in 2002, "asserting that leachate was discharging from the Ordot Landfill into the Lonfit River and two of its tributaries" in violation of the CWA. (Am. Compl. ¶ 14.) The EPA's legal action sought (1) "[a]n injunction ordering the Government of Guam to comply with the [CWA]"; (2) civil monetary penalties; (3) and court orders that required Guam to file timely and complete applications for any required discharge permits and forbade Guam from allowing further unpermitted discharges from the landfill. (CWA Compl., Ex. 2 to Decl. of Matthew Woolner in Supp. of Def. United States' Mot. to Dismiss ("Woolner Decl."), ECF No. 27-2, at 13 (Prayer for Relief).) Ultimately, rather than litigating these CWA claims in court, the parties entered into a consent decree in 2004 to resolve the EPA's lawsuit. (See 2004 Consent Decree, Ex. 3 to Woolner Decl., ECF No. 27-2, at 16-45.)
The 2004 Consent Decree between Guam and the EPA required Guam to pay a relatively modest civil penalty (see id. ¶ 5); mandated that Guam close the Ordot Landfill and cease the discharge of pollutants into the Lonfit River (see id. ¶ 8); and required Guam to construct a new municipal landfill to replace the Ordot Landfill (see id. ¶ 9). Significantly for present purposes, despite imposing these obligations on Guam, the Consent Decree specifically provided that the agreement was "based on the pleadings, before taking testimony or adjudicating any issue of fact or law, and without any finding or admission of liability against or by the Government of Guam[.]" (Id. at 18 (Therefore Clause).)
The 2004 Consent Decree also contained a number of provisions that specified the claims that the EPA was relinquishing as part of the settlement and the rights the United States retained notwithstanding the parties' agreement. First, the Consent Decree expressly stated that
[e]ntry of this Consent Decree and compliance with the requirements herein shall be in full settlement and satisfaction of the civil judicial claims of the United States against the Government of Guam as alleged in the Complaint filed in this action through the date of the lodging of the Consent Decree.
(Id. ¶ 45.) The Consent Decree also provided that
[n]othing in this Consent Decree shall limit the ability of the United States to enforce any and all provisions of applicable federal laws and regulations for any violations unrelated to the claims in the Complaint or for any future events that occur after the date of lodging of this Consent Decree.
(Id. ¶ 46.) The Consent Decree further stated that "[e]xcept as specifically provided herein, the United States does not waive any rights or remedies available to it for any violation by the Government of Guam of federal and territorial laws and regulations." (Id. ¶ 48.)
In accordance with the terms of the Consent Decree, which, as noted, required the "complete closure of [the] Ordot Dump" and the "implementation of [a] post-closure plan" (id. ¶ 8(h) ), Guam began taking steps to close the Ordot Landfill and to put an end to the leaching of pollutants from that dump. Guamanian officials *80officially ceased operations at the Ordot Landfill in 2011, and "[r]emediation and closure work" began "in December 2013." (Id. ¶ 14.) That remediation work, "which include[s] capping the landfill, installing storm water management ponds, leachate storage tanks and a sewer line, ... is still ongoing" (id. ), and "Guam expects costs of remediation ... to exceed approximately $160,000,000" (id. ¶ 15).
C. Procedural History
On March 2, 2017, Guam filed the instant CERCLA action against the United States to recoup its landfill-closure and remediation costs. (See Compl., ECF No. 1.) On May 19, 2017, Guam filed the operative amended complaint, which contains three counts that collectively allege that the United States is liable for at least some, if not all, of the costs that Guam has incurred in closing and remediating the Ordot Landfill. (See Am. Compl. ¶¶ 32-34.) The first count contends that, because the United States Navy contributed hazardous waste to the Ordot Landfill and managed that landfill for many decades (see id. ¶ 19), Guam is entitled to recover all of the "removal and remediation costs" it incurred at or "related to the Ordot Landfill, plus interest" from the United States pursuant to section 107(a) of the CERCLA (id. ¶ 25). The second count seeks "a declaratory judgment of liability" to the effect that the United States will pay for Guam's future expenses relating to the remediation of the Ordot Landfill under CERCLA's section 113(g)(2). (Id. ¶¶ 29, 33.) The third count is a claim in the alternative for contribution under section 113(f)(3)(B) of CERCLA; Guam maintains that, even if it is not entitled to recover the full costs of remediation and closure of the Ordot Landfill, the United States must nevertheless pay "for all [such] costs in excess of Plaintiff's fair and equitable share of costs." (Id. ¶ 31.)
On November 27, 2017, the United States filed a motion to dismiss Guam's amended complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (See Def.'s Mem.) In its motion, the United States first argues that Guam cannot recover its costs for remediating the Ordot Landfill under section 107(a) because Guam resolved its liability for that cleanup in the 2004 Consent Decree, and a contribution claim under section 113(f)(3)(B) is "the exclusive CERCLA remedy for the costs a liable party is compelled to incur pursuant to a judicially-approved settlement with the United States." (Id. at 28.) The United States further asserts that, "because CERCLA imposes a three-year statute of limitations on contribution claims[,]" Guam "waited far too long after settling its liability in 2004" to bring its alternative claim for contribution under section 113(f)(3)(B). (Id. at 27.) Thus, from the United States's perspective, Guam has no right to recover under either section 107(a) or section 113(f)(3)(B) at this time, and therefore, the Court should "dismiss Guam's amended complaint with prejudice." (Id. at 40.)
Guam's opposition challenges the United States's understanding of the applicable law on several grounds. Most significantly, Guam argues that its right to maintain a contribution action under section 113(f)(3)(B) was never triggered because Guam had not "resolved its liability ... [for] a response action or for some or all of the costs of such action" in the context of "an administrative or judicially approved settlement[,]" as the text of section 113(f)(3)(B) requires. (Pl.'s Opp'n at 20.) Guam insists that the parties "did not resolve response cost liability" in the 2004 Consent Decree, because the provisions of that agreement left Guam fully exposed to future liability under CERCLA. (Id. at 16;
*81see also id. at 26-40.) Moreover, because the 2004 Consent Decree was "expressly limited to the CWA" (id. at 16), Guam argues that it does not qualify as a "settlement agreement" giving rise to a cause of action for contribution under CERCLA's section 113(f)(3)(B) (id. ; see also id. at 40-48). Indeed, Guam asserts that it has not heretofore pursued a contribution claim against the United States precisely because it is not entitled to do so, given that its liability for the Ordot Landfill cleanup costs remains unresolved. (See id. at 20 n.12.) Thus, in Guam's view, a cost-recovery action under section 107(a) is appropriate and legally available, and this Court should not dismiss the instant cost-recovery claim.
The United States's motion to dismiss became ripe for decision on January 8, 2018. (See Def.'s Mem.; Pl.'s Opp'n; United States' Reply in Supp. of its Mot. to Dismiss ("Def.'s Reply"), ECF No. 33.) This Court held a hearing on May 15, 2018, and on September 30, 2018, the Court issued an Order denying the United States's motion to dismiss.
II. LEGAL STANDARDS
A. Motions To Dismiss Under Rule 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint on the grounds that it "fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a complaint must comply with Rule 8, which requires a "short and plain statement of the claim showing that the pleader is entitled to relief[,]" Fed. R. Civ. P. 8(a)(2), and it must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face," Ashcroft v. Iqbal ,
In evaluating whether a complaint has managed to set forth sufficient factual allegations, a court must "accept the plaintiff's factual allegations as true and construe the complaint liberally, granting plaintiff the benefit of all inferences that can reasonably be derived from the facts alleged." Sickle v. Torres Advanced Enter. Sols., LLC ,
Finally, to the extent that a defendant's 12(b)(6) motion rests on the argument that a plaintiff's claim falls outside the applicable statute of limitations, "courts should *82hesitate to dismiss a complaint on statute of limitations grounds based solely on the face of the complaint." Momenian v. Davidson ,
B. Legal Actions Brought Under CERCLA
Congress enacted CERCLA in 1980 "in response to the serious environmental and health risks posed by industrial pollution." United States v. Bestfoods ,
The instant case centers on the text of two of CERCLA's remedial provisions: (1) section 107(a)'s cost-recovery mechanism, which is codified at section 9607(a) of Title 42 of the United States Code, and (2) section 113(f)(3)(B)'s contribution mechanism, which is codified at section 9613(f)(3)(B) of Title 42 of the United States Code. These two provisions work in harmony to encourage response actions such as "removal[s]" (i.e. , carting away hazardous waste from a given waste site) or "remediation[s]" (i.e. , taking action that ensures that hazardous waste will never escape from its current waste site),
Specifically, section 107(a) "creates a cause of action through which entities that have incurred costs cleaning up contaminated sites may sue to recover cleanup costs from" four categories of PRPs, Lockheed Martin ,
Through section 113(f), Congress has provided a mechanism for PRPs who have been held liable for cleanup costs to seek contribution from other responsible parties, thereby ensuring that the costs of cleaning up hazardous waste sites are divided fairly among all PRPs. See Cooper Indus., Inc. v. Aviall Servs., Inc. ,
has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement[.]
Thus, when coupled together, the remedies available under sections 107(a) and 113(f) serve to ensure that PRPs pick up the tab for the cleanup costs that occur with respect to hazardous waste sites and that PRPs share the costs in an equitable manner. In this way, sections 107(a) and 113(f) provide "complementary yet distinct" causes of action.
III. ANALYSIS
In its motion to dismiss, the United States maintains that Guam is precluded from seeking cost-recovery under CERCLA's section 107(a) because the prescriptions of section 113(f)(3)(B) apply to the circumstances presented here. As noted, and as the amended complaint itself suggests, cost-recovery claims under CERCLA section 107(a) and contribution claims under CERCLA section 113(f)(3)(B) are exclusive of one another, such that Guam is permitted to proceed against the United States for full cost recovery under section 107(a) only if Guam's right to contribution under section 113(f)(3)(B) has not been triggered.
For the reasons explained below, this Court concludes that the 2004 Consent Decree did not trigger Guam's contribution rights under section 113(f)(3)(B). In accordance with the persuasive reasoning of the Sixth and Seventh Circuits in CERCLA cases that are substantially similar to this one, this Court finds that whether or not an agreement for the removal or remediation of hazardous waste "resolves" liability for section 113(f)(3)(B) purposes turns on the terms of the agreement, and that, here, the 2004 Consent Decree did not resolve Guam's liability for the Ordot Landfill cleanup given the broad, open-ended reservation of rights, the plain non-admissions of liability, and the conditional resolution of liability that that agreement contains. Thus, the statutorily prescribed conditions for bringing a contribution claim under section 113(f)(3)(B) have not been satisfied, which means that Guam is not precluded from maintaining its section 107(a) claim against the United States.
*85A. To "Resolve" Liability Within The Meaning Of Section 113(f)(3)(B), The Agreement At Issue Must Decide Or Determine That The Claimant PRP Is Liable For The Costs Of A Response Action
CERCLA nowhere defines the phrase "resolved its liability," which, as noted, is one of the veritable linchpins of section 113(f)(3)(B). See
Given this understanding, it is clear to this Court-as it was to the Sixth, Seventh, and Ninth Circuits-that liability with respect to cleaning up a hazardous waste site is not "resolved" simply and solely because interested parties have "sign[ed] a settlement agreement" concerning the response actions that will be taken at the site, Bernstein ,
Of course, there exists no formulaic means of determining when a particular settlement agreement has "decided, determined, or settled" the "nature, extent, or amount" of an entity's liability, Bernstein ,
In this regard, when the agreement that is subject to interpretation is a federal consent decree, its "construction ... is essentially a matter of contract law." Segar v. Mukasey ,
Where the courts of appeals diverge is with respect to how one best interprets agreement language that expressly eschews liability and reserves the right to sue, when the court undertakes to evaluate whether a particular agreement "resolve [d] [the] liability" of a CERCLA plaintiff for section 113(f)(3)(B) purposes. Compare, e.g. , Asarco ,
1. The Sixth And Seventh Circuits Correctly Concluded That Contracts Containing Non-Admissions Of Liability, Broad Reservations Of Rights, And Conditional Covenants Not To Sue Do Not Resolve Liability
At issue in the Seventh Circuit's Bernstein decision was whether two written *87agreements between the EPA and several different PRPs (agreements that were denominated "Administrative Orders by Consent" ("AOCs") ) had resolved those PRPs' liability for the purpose of section 113(f)(3)(B). See
In analyzing the agreement for section 113(f)(3)(B) purposes, the Seventh Circuit panel took particular stock in the fact that the parties had expressly disclaimed any resolution of liability; given that fact alone, the panel noted that it was "very difficult to say ... that the agreement between the parties constituted a resolution of liability."
The panel further addressed-and rejected-the EPA's argument that the covenants not to sue within the AOC demonstrated that the parties had intended to resolve their liability. See
Ultimately, the Seventh Circuit explained its conclusion with respect to the resolution of liability this way: "[t]he parties to a settlement may choose to structure their contract so that liability is resolved immediately upon execution of the contract. Or, the parties may choose to leave the question of liability open through the inclusion of reservations of rights, conditional covenants, and express disclaimers of liability."
The Sixth Circuit has recently employed similar reasoning to reach similar results. See, e.g. , Fla. Power ,
This reasoning was on full display in the Sixth Circuit's Florida Power case. In that case, the court examined whether two Administrative Orders of Consent resolved liability within the meaning of section 113(f)(3)(B) -AOCs that expressly provided that "[f]ollowing satisfaction of the requirements of this Consent Order, plaintiff shall have resolved its liability to EPA[.]"
2. The Ninth Circuit Mistakenly Characterizes Settlements That Contain Conditional Releases, Non-Admissions, And Broad Reservations Of Rights As Agreements That "Resolve" Liability For The Purpose Of CERCLA Section 113(f)(3)(B)
By contrast, the Ninth Circuit considered whether a settlement agreement "resolved *89[the] liability" of a PRP within the meaning of section 113(f)(3)(B) just last year, and it appears to have charted its own course in analyzing the effect of disclaimers of liability, conditional releases, broad reservations of rights, and the like. See Asarco LLC v. Atl. Richfield Co. ,
The Asarco court began the relevant analysis by accepting the premise that, in order to qualify as having resolved liability for the purpose of section 113(f)(3)(B), "a settlement agreement must determine a PRP's compliance obligations with certainty and finality."
The Asarco court used similar logic when it concluded, contrary to the Sixth Circuit in Florida Power , that "it matters not that a PRP refuses to concede liability in a settlement agreement."
The primary concern that this Court has with the Ninth Circuit's reasoning concerning disclaimers of liability in a settlement agreement in particular is that the Ninth Circuit's position results in a situation in which parties who have clearly opted to set aside the resolution of the PRP's "liability"-i.e. , its legal responsibility-in the context of an agreement to undertake (or pay for) response actions are nevertheless deemed to have "resolved its liability" for the purpose of section 113(f)(3)(B). As the Seventh Circuit astutely exclaimed, in the face of an explicit disclaimer of liability in a written settlement agreement, "[i]t is very difficult to say ... that the agreement between the parties constituted a resolution of liability." Bernstein,
Nor is the Ninth Circuit's analysis persuasive with respect to the appropriate evaluation of conditional covenants not to sue. In Bernstein , the Seventh Circuit made clear that the existence of a covenant not to sue in a settlement agreement was a contract term that the agency had pointed to in order to support its own section 113(f)(3)(B) contention. Specifically, because the parties in Bernstein had included such a release in the agreements at issue, the agency argued that the agreements did, in fact, resolve the liability of the PRPs concerning the cleanup costs and remediation that the agreements addressed. See Bernstein ,
For what it's worth, this Court also questions the Ninth Circuit's view of the requirements for "resolv[ing] [ ] liability" under section 113(f)(3)(B) from a practical perspective. First of all, it is difficult to see how a settlement agreement can meaningfully "decide[ ], determine[ ], or settle[ ]" the "nature, extent, or amount" of a PRP's liability if that agreement has not established that the PRP is in fact liable. Cf. Queen v. Schultz ,
The concern that giving effect to the parties' disclaimer of liability will discourage PRPs from entering into "prompt settlements that establish PRPs' cleanup obligations with certainty and finality[,]" Asarco ,
B. The 2004 Consent Decree Did Not "Resolve" Guam's Liability For The Ordot Landfill Hazardous Waste Response Actions It Has Undertaken
Of course, as noted earlier, whether or not contractual terms such as a disclaimer of liability or a covenant not to sue in a settlement agreement with the United States "resolve[s]" a party's liability, and thereby gives rise to a right to seek contribution under section 113(f)(3)(B), must be determined through "a case-by-case analysis of a particular agreement's terms." Asarco ,
1. The 2004 Consent Decree's Disclaimer Of Liability, Broad Reservation-Of-Rights Clause, And Conditional Resolution Of Liability Are Not Indicative Of An Intent To Resolve Guam's Liability
The very first affirmative representation Guam and the EPA make in the 2004 Consent Decree (following an unremarkable series of "Whereas" clauses) is that the agreement itself is "based on the pleadings, before taking testimony or adjudicating any issue of fact or law, and without any finding or admission of liability against or by the Government of Guam ." (2004 Consent Decree 18, lines 7-9 (emphasis added).) This "therefore" provision leaves no room for ambiguity; it specifies exactly what materials the parties had access to at the time they signed the Consent Decree (few); which legal and factual issues remained unexamined (all of them); and what liability Guam is accepting by virtue of consenting to settlement (none). Thus, this contract language plainly reflects the parties' intention to leave the question of liability unresolved , despite the fact that Guam was proceeding to consent to engage in the immediate cleanup of the Ordot Landfill by virtue of entering into the agreement. (Id. ¶ 9(a) (requiring Guam to start taking steps within thirty days of the entry of the consent decree).) Cf. Bernstein ,
*93The argument that Guam "resolved its liability" to the United States by executing the 2004 Consent Decree is thus facially untenable. But that conclusion becomes even more far-fetched when one considers the broad reservation of rights that the EPA inserted into this contract. The 2004 Consent Decree agreement specifically provides that
[n]othing in this Consent Decree shall limit the ability of the United States to enforce any and all provisions of applicable federal laws and regulations for any violations unrelated to the claims in the Complaint or for any future events that occur after the date of lodging of this Consent Decree .
(2004 Consent Decree ¶ 46 (emphasis added).) And presumably to reinforce the point that Guam could still be held potentially liable notwithstanding the settlement, the Consent Decree also states that "[e]xcept as specifically provided herein, the United States does not waive any rights or remedies available to it for any violation by the Government of Guam of federal and territorial laws and regulations ." (Id. ¶ 48 (emphasis added).)
Much like the disclaimer of liability clause, the takeaway from these two provisions in the 2004 Consent Decree is that the United States was reserving its right to pursue any violation of law that Guam may have committed other than those articulated in the 2002 CWA complaint to which the settlement agreement was addressed, and the scope of the 2002 CWA complaint was similarly clear: it asserted that Guam was liable under the CWA and should be ordered to pay monetary penalties and to cease the discharge of hazardous chemicals into the Lonfit River. (See CWA Compl. ¶¶ 25-27, 34-35, Prayer for Relief.) Thus, the careful wording of the 2004 Consent Decree's reservation-of-rights clause makes clear that the United States retained its rights to sue Guam under countless other environmental statutes for the response actions and costs relating to any cleanup at the Ordot Landfill, and it can hardly be viewed as evidencing the parties' intention that this settlement agreement resolved Guam's liability for any response costs or response actions that those other statutes might demand. See Fla. Power ,
If any more proof that the 2004 Consent Decree did not resolve Guam's liability is needed, one need look no further than paragraph forty-five of the 2004 Consent Decree, which unequivocally establishes the agreement's scope, by stating that
[e]ntry of this Consent Decree and compliance with the requirements herein shall be in full settlement and satisfaction of the civil judicial claims of the United States against the Government of Guam as alleged in the Complaint filed in this action through the date of the lodging of this Consent Decree.
(2004 Consent Decree ¶ 45 (emphasis added).) Again, the parties clearly contemplated Guam's compliance with the 2004 Consent Decree as settling and satisfying only the CWA claims that the EPA had brought against Guam. And because Guam was plainly left fully exposed to other environmental suits and allegations-say, a subsequent suit brought by the United States to recover costs under CERCLA section 107(a)-the language above cannot be reasonably interpreted to evince the parties' intent that the 2004 Consent Decree resolved Guam's liability for the response costs or actions associated with the cleanup of the Ordot Landfill under section 107(a) or any other statute.
Also noteworthy is the fact that paragraph 45 of the 2004 Consent Decree explicitly conditions the resolution of whatever *94CWA liability that the 2004 Consent Decree addresses on both the "[e]ntry of this Consent Decree and compliance with the requirements herein ." (Id. (emphasis added).) Thus, the agreement could not be clearer that the "entry of this Consent Decree" alone does not settle or resolve any of the claims against Guam-that is, whatever circumstances might be inferred from a general conditional covenant not to sue, this agreement states that the resolution of Guam's liability for the specified claims does not occur until Guam has actually complied with all of the Consent Decree's requirements.
In short, it is clear to this Court that, taken together, the terms of the 2004 Consent Decree do not support the conclusion that Guam and the EPA intended to resolve Guam's liability for any response actions or costs relating to the Ordot Landfill. (Id. at 18 (Therefore Clause), ¶¶ 45-46, 48.) Under the terms of that settlement, Guam and the United States unquestionably reached a consensus that Guam would engage in certain response actions to clean up and remediate the dump, but the 2004 Consent Decree does not decide-much less determine with finality and certainty-who bears the ultimate responsibility for the costs of that cleanup. Cf. Bernstein ,
2. The United States's Argument That The 2004 Consent Decree Resolved Guam's Liability Distorts Both The Provisions Of That Contract And Relevant Case Law
To resist the above conclusion, the United States makes several pointed arguments that are largely aimed at the just-discussed provisions of the 2004 Consent Decree. In this Court's view, each of Defendant's arguments either warps the underlying text of CERCLA and/or the 2004 Consent Decree beyond recognition, or advances a dubious reading of case law from the courts of appeals.
For example, the United States maintains that, because the 2004 Consent Decree "resolved Guam's liability for the civil penalties paid and the injunctive relief performed under the decree," it should be construed as having resolved Guam's liability for the purpose of CERCLA's section 113(f)(3)(B). (Def.'s Reply at 19.) But as has already been explained, CERCLA has its own (strict) liability provision, see
In a similarly bewildering reading of the agreement between Guam and the EPA, the United States argues that the 2004 Consent Decree contains no "specific covenant not to sue, let alone one" that resolves liability "in a conditional manner." (Def.'s Reply at 24.) Yet, as the United States readily admits (see
The Eighth Circuit's decision in Dravo Corporation v. Zuber ,
Thus, the nature of the settlement (de minimis versus substantive) is an important distinction that differentiates the instant case from the facts of Dravo Corporation . As the D.C. Circuit and the *96Supreme Court have both explained, "[i]dentical words [within a statute] may have different meanings where 'the subject-matter to which the words refer is not the same in the several places where they are used, or the conditions are different, or the scope of the legislative power exercised in one case is broader than that exercised in another.' " Weaver v. U.S. Info. Agency ,
The United States also appears to attach significance to the fact that the instant case involves a "judicially-approved consent decree that also constituted a final judgment[,]" rather than an "administrative settlement[.]" (Def.'s Reply at 20.) But it fails to explain why this distinction makes a difference with respect to an evaluation of its terms, and it does not cite a single case that supports the suggestion that this distinction matters when it comes to determining whether a settlement agreement resolves liability under section 113(f)(3)(B). Compare Asarco ,
Finally, the United States seeks to distinguish this case from the Sixth Circuit's reasoning in ITT Industries and Florida Power by maintaining that the reservation-of-rights clauses in those cases were "substantially broader" than the reservation of rights in the 2004 Consent Decree. (Def.'s Reply at 20; see also id. at 20-22.) This Court has dutifully compared the clauses in each of those cases with the reservation-of-rights clause at issue here, and it cannot agree with the United States's characterization. In ITT Industries , "the EPA expressly reserve[d] its rights to legal action to adjudicate Plaintiff's liability for failure to comply with the AOC, for costs of response (past, present or future), for costs of injunctive relief of enforcement, criminal liability, and other damages."
*97Neither of these reservation-of-rights clauses is any broader than the one at issue in this case. Although no mention of CERCLA is made in the relevant portions of the 2004 Consent Decree, the EPA expressly reserved its rights "to enforce any and all provisions of applicable federal laws and regulations for any violations unrelated to the claims in the Complaint " (2004 Consent Decree ¶ 46 (emphasis added) ), which patently includes any violations under CERCLA, and to be doubly clear, the agreement also stated that "except as specifically provided herein, the United States does not waive any rights or remedies available to it for any violation ... of federal and territorial laws and regulations" (id. ¶ 48 (emphasis added) ). Therefore, it appears that the United States has discerned a material difference where there is none: all of these provisions plainly reserve the right of the United States to take any other action against the signatory of the agreement for any violation of law, and if the 2004 Consent Decree is narrower, it is only marginally so, given that the United States only expressly waived its ability to seek the monetary penalties and compliance actions that it requested for the CWA violations that were specified in the underlying complaint.
In the final analysis, then, the 2004 Consent Decree between Guam and the EPA did not "resolve[ ]" Guam's "liability" within the meaning of section 113(f)(3)(B), as evidenced principally by the following provisions: (1) the statement disclaiming any admission of liability on Guam's part (see id. at 18 (Therefore Clause) ); (2) the broad reservation-of-rights clauses that benefited the United States (see id. ¶¶ 46, 48); and (3) the omission of any language that immediately and effectively insulated Guam from future lawsuits by the EPA under CERCLA sections 106(a) and 107(a).
IV. CONCLUSION
For the reasons explained above, this Court has concluded that, in order to resolve liability within the meaning of CERCLA section 113(f)(3)(B), a settlement agreement must "decide[ ], determine[ ], or settle[ ]" the "nature, extent, or amount of a PRP's liability," Bernstein ,
Notes
In the context of CERCLA, courts commonly refer to the cost-recovery claim embodied in section 9607(a) of Title 42 of the United States Code as a "section 107(a)" action and they call the contribution claim embodied in section 9613(f)(3)(B) of Title 42 of the United States Code a "section 113(f)(3)(B)" action. This Memorandum Opinion generally employees that same nomenclature.
Page-number citations to the documents that the parties have filed refer to the page numbers that the Court's electronic filing system automatically assigns.
The Amended Complaint pleads a cost-recovery claim under section 107(a) and a contribution claim under section 113(f)(3)(B)"in the alternative." (Am. Compl. ¶ 31.) Given this Court's conclusion that Guam can maintain its cost-recovery claim against the United States under section 107(a), the alternative cause of action in Plaintiff's amended complaint must be DISMISSED .
The following facts are derived from the Government of Guam's amended complaint and certain exhibits that are referenced in the complaint and are necessary to this Court's resolution of the pending motion. See Azima v. RAK Investment Auth. ,
Section 113(f)(1) parallels section 113(f)(3)(B), insofar as it bestows upon PRPs a cause of action for contribution, but only once they have been found liable in the context of a fully litigated section 106(a) or section 107(a) action. See
See also Asarco ,
Although not pivotal to the outcome of this case, it is noteworthy that the two causes of action at the center of this dispute have different statutes-of-limitations periods. See Asarco ,
Although the D.C. Circuit has not yet made this particular pronouncement and Guam's counsel refused to concede at the motion hearing that Guam cannot maintain both a section 107(a) cost-recovery claim and a section 113(f) contribution claim simultaneously (see Hr'g Tr. at 16:4-13), the amended complaint quite clearly seeks full cost recovery under section 107(a) and pleads contribution under section 113(f)"in the alternative" (Am. Compl. ¶¶ 31, 34), and a party cannot amend its complaint through subsequent argument, see Hudson v. Am. Fed'n of Gov't Emps. ,
See https://www.merriam-webster.com/dictionary/resolve (last visited June 27, 2018).
Guam's suggestion that the 2004 Consent Decree must be interpreted according to the precepts of state contract law-in this case, the law of Guam-ignores the different practices of this Circuit with respect to this issue. (See Pl.'s Opp'n at 20-22.) The Sixth Circuit appears to have taken the approach that state common law governs with respect to its interpretation of administrative orders by consent and consent decrees. See Fla. Power ,
In ITT , the Sixth Circuit held that an Administrative Order by Consent "did not resolve any of the plaintiff's liability for at least two reasons." Fla. Power ,
Indeed, because the Ordot Landfill cleanup is still ongoing (see Am. Compl. ¶ 14), it remains to be seen whether Guam will actually be released from the specter of liability per this agreement in the future. See Fla. Power ,
Because this Court concludes that the 2004 Consent Decree did not resolve liability within the meaning of section 113(f)(3)(B), it need not consider whether a consent decree that addresses claims under the CWA can qualify as a "settlement" within the meaning of section 113(f)(3)(B) (see Pl.'s Opp'n at 22-26; 40-45), or any of Guam's myriad other contentions (see Pl.'s Opp'n at 46-51).