*1 excessive); light that amount in Thurman for reconsideration of constitutionally Street, (rejecting forfei- Eighth F.3d at 1198 Amendment’s Excessive of the the max- “more than 40 times Ferro, ture amount v. Fines Clause. See United States the Guide- permitted imum fíne 2012) (re- 1105, 1117 lines”). manding analysis); for excessiveness Thur- (same). Street, 164 at 1198 man up no case government cites a disparity a forfeiture order with holding V here, and it has not to the one similar that the million attempted argue reasons, to $107 AFFIRM foregoing For the we injuries corresponds to sus otherwise of restitution and the amounts of the order the government banks.9 tained Beecroft’s convic- forfeiture ordered on (discuss F.3d at 1018-19 Mackby, 339 10, 11, 13, 14. tions for Counts and We Cf. harms caused defen ing governmental million in forfeiture VACATE $107 Street, crimes); Thurman dant’s on Beeeroft’s conviction for Count ordered (“[T]his amount bears no reason at 1198 and we REMAND for reconsideration any injury suffered able correlation such forfeiture. appropriate amount of party, as the government fully fraudulently-obtained loan will be re And, propriety because the of the
paid.”).
forfeiture amount was not even discussed sentencing, justification ap no such us. parent on the record before CORPORATION, WHITTAKER Eighth have little doubt that We corporation, a Delaware allows Beecroft to be ordered Amendment Plaintiff-Appellant, money to forfeit a substantial sum of participation her in such an extensive and difficulty damaging conspiracy. But re- America, UNITED STATES exceptional with the amount of for- mains Defendant-Appellee. impose. feiture the court did Without even No. 14-55385 argument supporting propriety Appeals, United States Court of forfeiture, million we have no the $107 Ninth Circuit. choice but to conclude that an order which vastly outpaces the otherwise available so Argued and March Submitted. criminal activity penalties for Beecroft’s 2016, Pasadena, California runs afoul of the Excessive Fines Clause. Filed June review, must va- plain-error Even on we respect cate the forfeiture order with 1 and remand the district court
Count Indeed, government wholly ignores simply elect to reduce a district court cannot 9. analysis discretionary Eighth it as a matter. But the court Amendment excessiveness that, argues such a reduction $107 and because million can—and must—make instead factually accounting be unconsti- accurate of the where the order would otherwise Newman, proceeds, court had no tutional. F.3d at 1240-41 crime's the district Cf. mandatory (contrasting limitations on for- discretion to reduce the forfeiture constitutional reductions). government's argument discretionary con- feiture with To hold amount. The concluding discretionary with constitu- otherwise would be tantamount flates reductions that, Eighth simply does not tionally ones. It is correct Amendment statutorily statutorily required apply mandated forfeitures. this forfeiture is *2 Whittaker, company that was injuries caused
both found liable
pollu-
that also
to clean
pollution and
Pillsbury Win-
Fong (argued),
Kevin M.
now seeks reimburse-
up.
tion Whittaker
LLP,
Francisco,
San
throp
Pittman
Shaw
from other
cleanup expenses
of its
ment
Siemens,
California;
L.
Mark E.
Reynold
*3
decide whether Whit-
polluters. We must
Plant, Pillsbury
Elliott,
L.
and Caroline
seeking
taker
is limited
LLP,
Ange-
Pittman
Los
Winthrop Shaw
polluters,
from other
whether Whittak-
les, California,
Plaintiff-Appellant.
cleanup
recover its
ex-
er
instead
(argued), Attor-
A. DiMascio
Nicholas
in a
action.
Natural Resources
ney,
and
Environment
in a
We hold
Whittaker’s
Division,
Department of
States
United
contri-
seeking
case did not limit it to
prior
Colorado;
Justice, Denver,
Aaron P. Avila
bution for all of its
so Whittaker
Augustini, Attorneys; Sam
and Michael C.
recovery action
may use a CERCLA cost
General;
Hirsch,
Attorney
Acting Assistant
for the
to seek reimbursement
Natural Resources Divi-
Environment and
costs at issue
this case.
Justice,
sion,
Department
States
United
D.C.;
Defendant-Appellee.
Washington,
I
REINHARDT,
Before: STEPHEN
Corporation is a defense con-
Whittaker
MURGUIA, and JOHN B.
MARY H.
that manufactures and tests muni-
tractor
OWENS,
Judges.
Circuit
1967,
military.2
for the
In
Whit-
tions
U.S.
acquired
facility
a munitions
in Santa
taker
by Judge
Partial
OWENS
Concurrence
Clarita, California, from the Bermite Pow-
(the
Site).
Company
Bermite
Between
der
OPINION
1954,
Company
when the Bermite Powder
MURGUIA,
Judge:
Circuit
until
charge,
was in
when Whittaker
been
people
two or more
have
When
operations, approximately
per-
ceased
injury, and one
found liable for someone’s
manufacturing
of the munitions
and
cent
share,
than her fair
pays
of them
more
testing at the Bermite Site was done
paid too
lets the
who
law often
military.
contracts with
U.S.
others, in
much recover from the
order to
re-
began investigating Whittaker
called the
things
even
out. This is
lease of hazardous substances
the Ber-
“contribution,”
deep
and it has
roots
In
early
mite
in the
1980s.
Whit-
Site
statutory and common law. See Nw. Air
by the
Lake Water
taker was sued
Castaic
lines,
Transp.
Inc. v.
Workers Union of
(the
providers
and other water
77, 86-88,
Agency
Am., AFL-CIO, 451
U.S.
(1981).
plaintiffs)
Lake
under CERCLA
Castaic
1571,
tions. Lake Castaic LA lawsuit the United States to alleged: tiffs recover Whittaker incurred since Plaintiffs, them, injured each of the 1980s from investigating and cleaning by the (including, contamination without the Bermite Site. alleged Whittaker limitation, perchlorate contamina- these included costs for soil sam- tion) caused on a continu- Defendants borings, excavations, pling, surveys, addition, Plaintiffs, ing basis. and groundwater sampling, and remedial oper- them, each have incurred and will addressing ations chlorinated solvents and continue to incur costs in responding to heavy metals. explicitly Whittaker alleged *4 contamination (including,
the without these separate were from limitation, the perchlorate contamina- the costs for which it was liable under the tion) caused Defendants’ activities at Castaic Lake settlement. the Site. Until the prob- contamination The United States moved to dismiss lems caused stopped, are Site Whittaker’s complaint, arguing that be- will Plaintiffs continue to incur substan- cause Whittaker had been sued Castaic tial costs for the indefinite future. Lake, bring it could only a CERCLA con- In action, their CERCLA causes of tribution action—not ac- plaintiffs Castaic Lake sought to recover States, the United and that tion— of response” they “costs had incurred. the statute of limitations for a contribution The Castaic plaintiffs Lake alleged claim had expired. The district court of action negligence, nuisance, causes agreed with the United States. The district trespass, and activity, ultra-hazardous that, court concluded pursuant to CERC- action, in those causes of they sought an §LA Lake Castaic lawsuit trig- injunction ordering Whittaker to “remedi- gered Whittaker’s right bring an action ate and abate all contamination and (ie., for contribution reimbursement threats contamination caused share), paying more than fair and that Site.” instant sought expenses lawsuit The district court in grant- Castaic Lake could have been through reimbursed such summary judgment ed to the Castaic Lake a contribution action. Because Whittaker plaintiffs on their claim based brought could have a contribution on perchlorate plain- contamination the district court concluded under our case tiffs’ wells. Castaic Agency Lake Water law Whittaker not could Corp., F.Supp.2d Whittaker (ie., recovery action reimbursement from (C.D. 2003). Cal. Whittaker and its insur- costs). polluter And cleanup because subsequently ers settled with the Castaic only Whittaker brought plaintiffs Lake in 2007. Under the terms of action, the district court dismissed the settlement, Whittaker and its insurers complaint. agreed to reimburse the Castaic Lake timely Whittaker filed this appeal. We plaintiffs for costs the plaintiffs had in- jurisdiction have 28 U.S.C. under perchlorate pollution curred remove and we reverse. wells, from their water purchase and to replacement water. The result of Castaic II Lake was that Whittaker was found liable for a specific set of the plaintiffs’ costs of We review the district court’s de responding pollution; grant Whit- cision motion to dismiss de novo. Custom, or “PRP.” See Chubb party” Space Sys./Lor ble Ins. Co. v.
Chubb Custom
at 956.
al, Inc., 710 F.3d
in the com
allegations
factual
take the
We
to recover
other mechanism
them in the
construe
true and
plaint as
113(f),
allows a
plaintiff. Id.
to the
most favorable
light
circum
two
to seek “contribution”
complaint
when
proper
“Dismissal is
provides,
rele
stances. Section
theo
cognizable legal
make out a
does not
part:
vant
facts to
allege sufficient
ry
or does
may seek contribution
Any person
legal theory.” Id. We
cognizable
support a
poten-
is liable
who
interpretation of
the district court’s
review
107(a)
title,
of this
tially
]
liable under [§
novo. Id.
de
statute
action ...
any civil
during
following
107(a)
title.
...
of this
]
[§
Ill
claims, the court
resolving contribution
A
among liable
response costs
may allocate
in 1980
factors as
equitable
enacted CERCLA
Congress
parties using such
of hazardous
the remediation
appropriate.
facilitate
the court determines
the resolution of
sites and
waste
113(f)(3)(B)
9613(f)(1).
And
42 U.S.C.
costs, especially through
for the related
provides:
*5
Custom, 710
Chubb
negotiated settlements.
liability to
has
its
A
who
resolved
ways
CERCLA
F.3d at 956. One of
a
for some
States or State
United
by allowing party
goals
these
achieves
for some or all
response
action or
all of
site to
waste
remediates
hazardous
who
in an
action
adminis-
of the costs
such
of its
obtain reimbursement
judicially
settlement
approved
trative or
id.
pollution.
See
responsible
those
for
any person
contribution from
may seek
at 956-57.
....
party
to a settlement
who is
pro-
CERCLA
relevant to this
As
9613(f)(3)(B).
short,
gen-
§
§
Id.
private parties
vides two mechanisms
bring a contribu-
erally
polluter
allows a
cleanup ex-
to recover their environmental
if the
against
polluters
claim
other
tion
First, CERCLA
parties.
from other
§
in a
107 cost
has been sued
polluter
107(a)
bring “cost re-
parties
allows
govern-
with the
recovery action or settled
polluters for wide
covery”
actions
ment.
“any ... nec-
including
range
“contribu-
does not define
CERCLA
incurred” and
response
essary costs of
However,
the Su-
tion.”
id.
9601.
See
of,
to,
injury
destruction
“damages
a definition Unit-
provided
Court
preme
resources,
including the
natural
loss of
Research, another
ed States
Atlantic
injury,
such
assessing
costs of
reasonable
case:
destruction,
resulting from such a
or loss
as the “tortfea-
is defined
Contribution
substance].”
release
a hazardous
[of
from others re-
sor’s
to collect
9607(a)3;
v. Atl.
States
United
tort after the
sponsible for the same
128, 139, 127
Corp., 551 U.S.
Research
than his or her
tortfeasor has
more
(2007).
2331,
In the
S.Ct.
168 L.Ed.2d
share,
being
the shares
proportionate
who
litigation, polluter
lingo of CERCLA
of fault.”
a percentage
determined as
recov-
might be liable under
113(f) sug-
Nothing
[CERCLA]
responsi-
ery
“potentially
action is called a
42 of the
provided
in Title
litigants
to the sections
Adopting
and
the convention of the
3.
courts,
opinion refers to
body
of this
Code.
other
United States
sections,
citations
but
CERCLA’sPublic Law
gests
Congress
used
terra “con-
neously
seek to recover the same ex-
107(a).
anything
tribution” in
other than this
penses under
traditional sense.
(internal
139,
Id. at
B tortfeasor has more than his or her bring allows con- share, proportionate being the shares tribution claim two circumstances: “dur- percentage determined of fault.” as being in a ing following” sued right ... PRP’s to contribution un- [A] and after the contingent upon der an in- liability to the United “has resolved equitable distribution of common liabili- ... in an administrative States or State ty among parties. liable judicially approved settlement.” (3)(B). 9613(f)(1), Although 107(a) contrast, § By permits recovery trig- these procedural CERCLA sets forth not costs but does create a claim, gers a contribution private party to contribution. A actually define “contribu- statute does 107(a) recover under without tion,” as noted above. See id. 9601. The par- establishment of third that, government argues once one of the ty- *7 procedural triggers party’s for a contribu- occurred, party’s right tion claim has the Section authorizes a contribu- party’s to contribution extends to all of the action to tion PRPs common liabili- with site, regardless of whether expenses at the ty stemming from an action instituted expenses trig- those were at issue the 107(a). under ... However, gering litigation or settlement. government’s argument the mischaracter- (citation 138-39, at omit- Id. S.Ct. 2331 remedy. izes ted). The Court’s statement that right “contingent to contribution is party’s expenses Not all of a related to upon inequitable distribution of liabili- scope fall remediating site within right that a Research, ty” indicates contribution. In Atlantic the Su- in- preme explained only Court that “costs recover contribution for those costs belongs solely 6. We do not here decide Castaic Lake to Whittaker's in- whether contribution claim based on its surers. liable; for which it has been found trigger decree did a right riot costs can be recovered in a contribution. Id. at 207-08. The Seventh recovery action “without establishment Circuit held that the Trust bring could liability.” id. This is consistent See with action under 107 for the the traditional notion of contribution. See expenses it incurred under the 2002 de- (Third) 23(b) Restatement of Torts cree, because, the extent “[t]o (2000) (“A person entitled to recover con- Trustees’ suit seeks to recover expenses may tribution recover no more than the arising performance out of their of the plaintiff amount to the in excess of decree], it [consent is not a contribu- person’s comparative respon- share of tion action.” Id. at 207. sibility.”). In Corp. NCR v. George Whiting A Research, Following Atlantic we have Co., Paper the Seventh Circuit reaffirmed explained private party also that a must Bernstein’s, approach separately evalu use a contribution action to recov- ating costs, different sets of but arrived at expenses paid er under a settlement slightly different outcome. 768 F.3d Kotrous, agreement judgment. or a (7th 2014). NCR, 690-92 plain “If, however, F.3d at 932. the private party NCR, tiff company, sought reimbursement costs, has itself incurred response it cleanup expenses it had incurred seek ac- [a separate site under three orders from the pursuant tion 107.”Id. to] EPA and the Department Wisconsin of' The two other circuits to have consid- 2001, 2004, Natural Resources issued in question that, ered the have held even and 2007. argued Id. at 691. NCR it could statutory where one of the triggers for a bring action for these ex contribution claim has occurred for certain penses, and that it was not limited to a site, expenses at a a party may still contribution action. Id. Applying Bern cost recovery action for its other expenses. stein, the Seventh Circuit held that each Bankert, In Bernstein v. the Seventh Cir- triggered order right NCR’s of contribu cuit confronted a case where some of a tion for expenses covered that or plaintiffs cleanup expenses at a site were der. Id. at 691-92. NCR conceded that its pursuant incurred to a 1999 finalized set- expenses incurred under the 2001 order EPA, tlement with expenses and other triggered to contribution. Id. at pursuant were incurred to a 2002 consent 691. The Seventh Circuit held that NCR’s yet decree that was not final. 733 F.3d expenses incurred under the 2004 order 202-03 plaintiff required were also to be reimbursed (the Bernstein, the Third Site Trust Fund contribution, through because that order Trust), group established of com- liability” “resolved NCR’s for those ex panies that potentially responsible were 113(f)(3)(B). penses, triggering Id. at pollution at a hazardous waste site. Id. finally, 692. And the Seventh Circuit held 196. For the in- Trust NCR’s under the 2007 order settlement, curred under the finalized 1999 were brought to be in contri *8 the Seventh Circuit held the Trust that bution, government brought because the required bring a contribution ac- order, an action in 2010 to enforce that and tion, since the settlement “resolved its lia- “during contribution action is available 113(f)(3)(B). bility” triggered and at Id. following” enforcement action. Id. at However, 204-06. the Seventh Circuit also 9613(f)(1)). 691-92 (citing U.S.C. The held that the non-final 2002 consent decree rejected argument did not Seventh Circuit NCR’s liability resolve the Trust’s for costs, separate those expenses and therefore the that it the incurred under the Third government’s expenses. Id. at 225-26. The Circuit 2007 order before Agere Sys- by plaintiff, also held that another action were not covered enforcement tems, (Agere), bring Inc. could cost re- slicing right NCR’s of contribution: “Such covery action because it had not been sued dicing costs incurred under the and EPA for the related to by expenses order makes little same administrative Operational either Unit. Id. The Third Cir- liability all of party’s when a for sense explained “Agere cuit and TI 'do not ultimately be determined those costs will have contribution claims action.” Id. at 692. the enforcement parties settlement sums because those Inc. v. Advanced En Agere Systems, In never themselves sued those were Technology Corp., the Third vironmental by by the EPA or other PRPs.” amounts that a who had been Circuit held added). (emphasis Id. at 225 recovery action could sued in a 107 cost Bernstein, NCR, Agere and each demon- action for bring still its own party’s strate that a right contribution separate liability from the estab expenses expenses for some of its at a site does not suit, by prior lished because 113 had necessarily mean that the loses its triggered separate been for those costs right bring action for action was therefore and Agere expenses. other Both Bernstein and (3d unavailable. 602 F.3d plaintiffs bring held that could cost recov- 2010). plaintiffs Agere, of the TI One ery expenses separate actions for (TI), Systems Automotive LLC had plaintiffs right those for which the had potentially into a trust fund with other plain- And that the contribution. NCR held responsible parties to cover a certain set of bring tiff was all of its claims (the “Operational at a site expenses Unit contribution because each set ex- expenses), though One” even TI had not triggering was covered an order expenses. been sued for those Id. at 212. to contribution.7 previously TI had also been sued EPA in a cost action under Considering closely related issue of (the expenses “Opera for a different set of party’s right whether a to contribution for expenses), resulting in a tional Unit Two” expenses triggers some of its the statute of requiring pay TI to those consent decree limitations for contribution for all of its separate expenses. Id. 212-13. expenses, the First Circuit has held TI Third Circuit held that was not re periods separate limitations all quired to use a contribution action for expenses triggered indepen sets of claims, of its and could dently. Cyanamid Capuano, Am. Co. v. (1st 6, 13-15 action to recover its share of the In Amer Operational' One even Cyanamid, Unit ican a hazardous waste site though TI had sued the EPA required groundwater been both soil and Operational 107 for the liti- previous Unit Two remediation. Id. 10-11. regarding problematic 7. The Seventh Circuit’s statement to consider different sets of ex- “slicing dicing” and of costs under the penses separately, separate- because the court 2007 administrative order is consistent with ly evaluated NCR’s under each of analysis. “slicing The statement refers Instead, the three orders. the Seventh Circuit dicing incurred of costs under the same problematic found it to further divide NCR’s order," “liability administrative where NCR’s order, expenses under the 2007 when NCR’s ultimately for all those costs will be deter- for all of those would be mined in the enforcement action.” government's determined in the enforcement added). (emphasis apparent at 692 It is action. generally the Seventh Circuit did not find it
1011 potentially responsible party questions, a statute of limitations gation, their rea- (R&H) Company soning party’s called the Rohm & Haas confirms that a in recovery held liable 107 cost is limited to the expenses contribution for expenses action for related to the soil which it has been found liable. cleanup. Id. at 10. R&H also entered into a In this Whittaker was found separate consent decree with the United plaintiffs liable to the Castaic Lake for the groundwater cleanup. related to the States expenses specifically removing related to Id. at 11. R&H later brought CERCLA perchlorate from plaintiffs’ wells potential contribution action other replacing their water. Whittaker now ly responsible parties groundwater for its seeks reimbursement govern cleanup expenses. Id. The First Circuit ment for a different set of for upheld R&H’s contribution action over the which Whittaker was not found in liable argument defendants’ the statute of Castaic Lake.8 Following guidance ground limitations for contribution for the Court and the other circuit expenses triggered by
water had been courts, we hold that Whittaker was not liability earlier for the R&H’s soil ex its in claims this case in Id. at 13. penses. The First Circuit ex §a contribution action after its lia plained that statute of CERCLA’s limita bility was resolved in Castaic Lake. tions for contribution claims bases the timeliness of an “action for contribution for C any response damages” costs or on “the government presents The two text- judgment any date of action ... arguments why based party who has damages.” of such costs or Id. been sued 107 cost action (quoting 9613(g)(3)). The First pollution related to at a site “ phrase Circuit held ‘such costs should be limited to a contribution action damages’ damages refers to the costs or site, for all of the party’s expenses at the ” ‘judgment.’ contained in the Id. (empha regardless of whether the added). years sis PRP “[A] has three liability covered established seek contribution for costs contained with prior argument 107 suit. We find neither limitations, judgment. in a statute persuasive. however, triggered is not for costs not 15; First, the judgment.” noting contained within Id. at allows ASARCO, brought see also LLC v. action to “during Celanese Chem. contribution be (9th 2015) Co., following” action under (“[T]here 9613(f)(1), is no limit in pre gov the statute to see U.S.C. early in an argues party’s right vent settlement from ernment that a seeking contribution related to a later set contribution cannot be limited to the liabil tlement, long ity as as those settlements cover established all, separate obligations.”); Corp. RSR v. Com action. After it would not make sense Co., to recover permit mercial Metals 2007) (“Rather liability par than focus is established if the on who before short, cost-recovery ty’s right to contribution is limited to its settled the However, liability. the statute asks us to focus on what was established the Su settled.”). that: Although preme explained these cases considered Court has litigation, 8. Nor is Whittaker’s own for the ex- as far as we are aware. pending it seeks in this case *10 1012 This is how contribution discharged.”). authorizes a PRP to seek
The statute
traditionally
claims
work. See Restatement
following” a
“during or
suit
contribution
(Third)
23(b)
§
113(f)(1)
of Torts
& cmt. b.10 For
107(a). Thus,
§
§
...
under
reason,
this
it was not the terms of the
or after the estab-
permits suit before
that
complaint
Castaic Lake
determined
liability. In either
lishment of common
contribution,
right to recover
right to contribution un-
a PRP’s
but rather the extent of the costs for which
113(f)(1)
contingent upon
§
is
der
in
ease.
was held liable
Whittaker
of common lia-
inequitable distribution
113(f)(1)
Second,
§
noting that
allows a
bility among
parties.
liable
brought against
contribution action to be
107(a)
contrast,
§
By
permits
person
poten
who is liable or
“any
not create a
of
costs but does
§
under
see 42
tially liable”
private party
A
right
to contribution.
9613(f)(1),
that,,
government argues
107(a)
may
any
under
without
recover
trig
claim has been
once a contribution
liability
par-
to a third
establishment of
gered,
scope
expenses
of
recoverable
ty-
in
contribution is coextensive with
138-39,
Research,
tom, 710 Allowing party 956. who has incurred substantial environmental re
sponse span costs over a of decades to OWENS, Judge, Circuit concurring in recover from other potentially responsible all but Part III D: parties goals. serves these dual See Fire opinion The Court’s persuasively follows Lodi, City Cal., man’s Fund Ins. Co. v. Supreme current Court and circuit law (9th 2002) (“Poten interpreting statutory relevant provi- purchasers tial of abandoned or underuti sions, so I concur. join Yet I do not Part properties lized contaminated are often de D, law, III view, as the my case purchasing terred from and cleaning up drifted from what Congress these properties by exposure to intended when unbound Bernstein, ed and uncertain it liability.”); passed and amended CERCLA (“[T]he F.3d at 214 action is 1980s. See Chubb Custom Ins. Space Co. v. subject limitations, a longer statute of Inc., Sys./Loral, it making arguably preferable
vehicle for a PRP embarking on what Requiring all related contribution claims might effort, well be a decade-long cleanup to be “dealt with in a single action” would actually creating and thus posi further “encourage private party settlements and settle.”). tive incentive to cleanup” because the threat of being sued recognize We goal CERCLA’s defendant, “as a third-party concurrent encouraging prompt settlement with original litigation, has the effect by interpreting be served the right of con- of bringing all such responsible parties to broadly, tribution imposition because the the bargaining table at early date.” of a shorter statute of limitations would 99-253, H.R. Rep. (1985), No. pt. at 80 parties incentivize to initiate lawsuits soon- reprinted in 1986 U.S.C.C.A.N. 2862. ASARCO, er. 9613(g); See U.S.C. Rather than dining at the same table F.3d at 1211. interpreta- Yet such broad feast, big one holding tion of “contribution” is inconsistent with —dic- by Congress my the balance struck tated view language and with Atlantic interpretation Court’s permits fight adversaries to Research — term. We do not believe that Congress generations moldy over leftover crumbs. mandated parties who have been sued in lawyers, Good but bad for the environ- § 107 actions to all of ment and the communities affected their own CERCLA claims in the form of contamination. a contribution on an accelerated I urge Congress to take a second look timeframe, regardless of the merit or the aspect this of CERCLA. result of the suit.
IV
Because Whittaker seeks to recover ex- separate that are from those for
which Whittaker’s is established or
pending, Whittaker was not
bring this suit as a claim for contribution.
Whittaker therefore is not barred on this