ASARCO, LLC v. Celanese Chemical Co.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ASARCO, LLC, No. 12-16832

Plaintiff-Appellant,

D.C. No.

v. 3:11-cv-01384-

WHA

CELANESE CHEMICAL COMPANY,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the Northern District of California

William Alsup, District Judge, Presiding

Argued and Submitted

October 8, 2014—San Francisco, California

Filed July 10, 2015

Before: William A. Fletcher and Paul J. Watford, Circuit

Judges, and Kevin Thomas Duffy, District Judge.*

Opinion by Judge Duffy

*

The Honorable Kevin Thomas Duffy, United States District Judge for

the Southern District of New York, sitting by designation.

2 ASARCO V. CELANESE CHEMICAL CO.

SUMMARY**

Environmental Law

Affirming the district court’s summary judgment, the

panel held that a claim for contribution under § 113(f)(3)(B)

of the Comprehensive Environmental Response,

Compensation, and Liability Act was time-barred.

In 1989 plaintiff ASARCO, LLC, entered into a

settlement agreement arising from a cost-recovery lawsuit

under CERCLA § 107. During bankruptcy proceedings in

2008, ASARCO entered into a second settlement agreement

arising from response cost claims asserted by the California

Department of Toxic Substances Control. ASARCO filed its

new contribution claim in 2011.

The panel held that the judicially approved settlement

agreement between private parties to the cost-recovery suit

started the clock on the three-year statute of limitations in

CERCLA § 113(g)(3)(B) in 1989. The panel held that the

later bankruptcy settlement with the government, fixing

ASARCO’s costs associated with the cost-recovery

settlement agreement, did not revive a contribution claim that

had otherwise expired.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ASARCO V. CELANESE CHEMICAL CO. 3

COUNSEL

Linda R. Larson (argued), Russell C. Prugh, and Meline G.

MacCurdy, Marten Law PLLC, Seattle, Washington; Gregory

Evans and James G. Warren, Integer Law Corporation, Los

Angeles, California, for Plaintiff-Appellant.

John D. Edgcomb (argued) and Michael A.G. Einhorn,

Edgcomb Law Group, P.C., San Francisco, California, for

Defendant-Appellee.

OPINION

DUFFY, District Judge:

Plaintiff-Appellant ASARCO, LLC (“ASARCO”) appeals

the district court’s grant of summary judgment in favor of

Defendant-Appellee CNA Holdings, LLC1 (“CNA”) in

ASARCO’s suit for contribution under § 113(f)(3)(B) of the

Comprehensive Environmental Response, Compensation, and

Liability Act (“CERCLA”), 42 U.S.C. § 9613(f)(3)(B).2 The

district court ruled that ASARCO’s contribution action was

time-barred and dismissed the complaint. For the reasons

that follow, we affirm the judgment of the district court.

1

Erroneously named in the suit as Celanese Chemical Company.

2

ASARCO’s appeal as to Union Pacific Railroad Company and Union

Pacific Corporation was voluntarily dismissed with prejudice on February

15, 2013, pursuant to Federal Rule of Appellate Procedure 42(b), so CNA

is the only remaining appellee in this case.

4 ASARCO V. CELANESE CHEMICAL CO.

FACTS AND PROCEDURAL HISTORY

ASARCO is the corporate successor to a company that

owned and operated a silver and lead smelter on a 66-acre

industrial site (the “Selby Site”) on San Pablo Bay in Contra

Costa, California. The smelter operated until 1970,

depositing smelting byproducts on its property and the

tideland ASARCO leased from the California State Lands

Commission (“State Lands”) abutting the property. The

smelter was closed after it was named as the likely source of

lead pollution that caused livestock deaths nearby. After the

smelter closed, ASARCO leased a 1.33 acre parcel of the

Selby Site containing a sulfur dioxide plant (“Plant”) that

ASARCO had previously operated to Virginia Chemicals, a

corporate predecessor to CNA. CNA leased and operated the

Plant from 1972 until September 1977. As a result of the

Plant operations that occurred before and during CNA’s

leasehold, the soil in the Selby Site area was contaminated

with sulfuric acid, as discovered by the San Francisco Bay

Regional Water Quality Control Board (the “RWQCB”) in

April 1976. RWQCB issued a cleanup and abatement order

in August 1976, amended the order in November 1976, and

conditionally rescinded the order in April 1977.

After the Plant shut down, and long after smelting had

ceased, Wickland Oil Company (“Wickland”) purchased

ASARCO’s Selby Site property in October 1977, and leased

the tidelands from State Lands in July 1981 to build and

operate a marine fuel terminal. Wickland learned from the

California State Department of Health Services (“California

DHS”) that the Selby Site contained hazardous substances,

and that further investigation and remediation efforts were

required across much of the site. California DHS had

identified the presence of toxic metals in the slag pile, with

ASARCO V. CELANESE CHEMICAL CO. 5

high concentrations of lead, zinc, arsenic, and cadmium. The

Selby Site was placed on the California State Superfund list.

Wickland incurred environmental response costs and looked

for other responsible parties to share those costs.

In 1983, Wickland filed a cost-recovery lawsuit under

CERCLA § 107 against ASARCO, as the former owner of

part of the Selby Site and operator of the entire Selby Site,

and State Lands, as the former owner of the remainder of the

Selby Site that permitted and encouraged the disposal by

ASARCO of hazardous substances on the Selby Site. In its

lawsuit, Wickland sought to establish ASARCO’s liability for

response costs at the Selby Site to address metals leaching

from the slag and causing groundwater contamination.

Wickland sought reimbursement of no less than $400,000 in

past response costs and a declaration that ASARCO and State

Lands were liable for all future response costs at the Selby

Site. After the district court rendered summary judgment in

favor of ASARCO and State Lands in the 1983 case on the

grounds that (1) the cost recovery claim was not ripe and

(2) the claims for declarative and therefore injunctive relief

were not ripe, we reversed the district court’s judgment and

remanded the case so that Wickland could pursue its claims.

Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887,

892–93 (9th Cir. 1986).

In February 1989, Wickland, ASARCO, and State Lands

(collectively, the “Settling Parties”) entered into the

Wickland Agreement, an “Agreement for Entry of Consent

Judgment” to “settle and compromise the [district court

lawsuit], and to establish a procedure for allocating past and

future costs attributable to the events and conditions

underlying the [district court lawsuit].” State Lands entered

into the agreement as the former owner of part of the Selby

6 ASARCO V. CELANESE CHEMICAL CO.

Site, not as a “Government Agency.” Although the Settling

Parties knew that Virginia Chemicals had been named in the

1976 RWQCB Order and repeatedly referred to in the

Wickland lawsuit, Virginia Chemicals had never been

brought into the lawsuit as a party, and was not a party to the

Wickland Agreement. The district court entered a consent

judgment based on the Wickland Agreement on March 13,

1989, and retained jurisdiction over the parties in order to

enforce or amend the terms of the Agreement.

In August 2005, sixteen years after the Wickland

Agreement settled the Selby Site litigation, ASARCO filed a

Chapter 11 voluntary petition in the United States Bankruptcy

Court for the Southern District of Texas. State Lands, C.S.

Land, Inc. (“CSLI,” Wickland’s successor in interest), and

California Department of Toxic Substances Control

(“DTSC,” California DHS’s successor as the administrating

regulatory agency) asserted claims for ASARCO’s share of

past and future Selby Site environmental costs in July 2006

(and amended the claims in 2007). DTSC’s proof of claim

indicated that remediation of the conditions addressed by

ASARCO’s interim remedial measures was not complete and

sought to recover costs to implement a final remedy at the

Selby Site.

In January 2008, ASARCO moved in the bankruptcy

court for approval of a settlement (“2008 Bankruptcy

Settlement”) of the response cost claims asserted by State

Lands, CSLI and DTSC. Notably, ASARCO’s parent

company filed an objection to the settlement, contending that

the settlement included costs to remediate contaminated

groundwater that ASARCO had nothing to do with.

ASARCO’s parent withdrew the objection after negotiating

a stipulation and clarification with the parties regarding $33

ASARCO V. CELANESE CHEMICAL CO. 7

million ASARCO was to pay DTSC under the 2008

Bankruptcy Settlement. The bankruptcy court approved the

2008 Bankruptcy Settlement on March 31, 2008.

On March 23, 2011, ASARCO filed a new lawsuit against

CNA to seek contribution under CERCLA § 113(f). CNA

moved for summary judgment on the ground that ASARCO’s

suit was barred by the statute of limitations under CERCLA

§ 113(g)(3)(B), and on June 6, 2012, the district court entered

summary judgment in favor of CNA. The district court

decided that the statute of limitations for contribution claims

following a “judicially approved settlement” under CERCLA

§ 113(g)(3)(B) applied to any judicially approved settlement,

whether between private parties or between a private party

and the United States or a State. The district court

determined that the statute of limitations applied to the

Wickland Agreement and that ASARCO’s time to file a

contribution claim pursuant to the Wickland Agreement had

expired. The district court also determined that 2008

Bankruptcy Settlement did not present any new costs not

contemplated in the Wickland Agreement, and therefore a

new contribution claim had not accrued as a result of the

2008 Bankruptcy Settlement. This appeal followed.

STANDARD OF REVIEW

Summary judgment in CERCLA cases is reviewed de

novo. Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d

863, 870 (9th Cir. 2001) (en banc). The district court’s

interpretation of CERCLA is reviewed de novo. City of

Emeryville v. Robinson, 621 F.3d 1251, 1261 (9th Cir. 2010).

“Interpretation of a settlement agreement is a question of law

subject to de novo review, but we defer to any factual

findings made by the district court in interpreting the

8 ASARCO V. CELANESE CHEMICAL CO.

settlement agreement unless they are clearly erroneous.” Id.

(internal citation omitted).

DISCUSSION

I. Introduction

The issues before us hinge on a question of statutory

interpretation: Under CERCLA, may a settlement agreement

between private parties to a CERCLA § 107 cost-recovery

lawsuit create a cause of action for contribution under

CERCLA § 113(f)(1) that is excepted from the three-year

statute of limitations in CERCLA § 113(g)(3)? As we have

previously noted, CERCLA is a complex statute with a

“‘maze-’like structure and ‘baffling language.’” California

ex rel. Cal. Dep’t of Toxic Substances Control v. Neville

Chem. Co., 358 F.3d 661, 663 (9th Cir. 2004) (quoting

Carson Harbor Vill., 270 F.3d at 880, 883). While the

statutory language may be baffling and the structure maze-

like, the statute clearly indicates that any contribution claim

for particular remedial costs is subject to a three-year statute

of limitations once liability for a potentially responsible party

(“PRP”) becomes recognized through a judicially approved

settlement. 42 U.S.C. § 9613(g)(3)(B).

At oral argument in this case, ASARCO admitted that it

could have filed a contribution claim against CNA following

the entry of the Wickland Agreement. At issue in this appeal

is (1) whether or not a CERCLA contribution claim, once it

has accrued, may be excepted from the statute of limitations

based on the type of settlement that underlies the claim, and

(2) if the claim is subject to the statute of limitations and the

time to file has expired, whether the claim may be revived by

a subsequent event. We hold that a judicially approved

ASARCO V. CELANESE CHEMICAL CO. 9

settlement agreement between private parties to a CERCLA

cost-recovery suit starts the clock on the three-year statute of

limitations in CERCLA § 113(g)(3)(B), and that a later

bankruptcy settlement that fixes the costs of such a cost-

recovery settlement agreement does not revive a contribution

claim that has otherwise expired. Our holding that a later

bankruptcy settlement with the government cannot revive an

otherwise expired contribution claim ensures that a party does

not receive a benefit that it had not paid for in the bankruptcy

settlement.

II. ASARCO’s Time to File Contribution Claims

Pursuant to the Wickland Agreement Has Expired.

CERCLA § 113(f)(1) creates the right of contribution for

private parties that are liable or potentially liable under

CERCLA, during or following certain CERCLA civil actions.

Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 167

(2004). Contribution rights for one PRP against another PRP

only accrue if the first PRP is already involved in a lawsuit

under CERCLA § 106 (for federally-required abatement

action response costs) or CERCLA § 107(a) (for clean-up

cost recovery by the government or a private party). Id.

Otherwise, such a claim for contribution between PRPs

would be properly stated through a CERCLA § 107(a) cost

recovery suit, assuming that the plaintiff PRP has incurred its

own cleanup costs. Kotrous v. Goss-Jewett Co. of N. Cal.,

523 F.3d 924, 934 (9th Cir. 2008); accord United States v.

Atl. Research Corp., 551 U.S. 128, 139 (2007). Once

Wickland sued ASARCO for CERCLA § 107 cost recovery

in 1983, ASARCO could have filed a contribution claim

against CNA’s corporate predecessor, Virginia Chemicals.

See 42 U.S.C. § 9613(f)(1). ASARCO conceded as much at

oral argument in this case when ASARCO recognized that it

10 ASARCO V. CELANESE CHEMICAL CO.

could have pursued a contribution claim following the entry

of the Wickland Agreement in 1989. As discussed in the

following subsection B, ASARCO’s right to pursue its

contribution claim against CNA for the Selby Site

remediation expired when the statute of limitations in

CERCLA § 113(g)(3) ran out in 1992.

A. Contribution Claims Are Subject to a Three Year

Statute of Limitations.

CERCLA § 113

provides two express avenues for

contribution: § 113(f)(1) (“during or

following” specified civil actions) and

§ 113(f)(3)(B) (after an administrative or

judicially approved settlement that resolves

liability to the United States or a State).

Section 113(g)(3) then provides two

corresponding 3-year limitations periods for

contribution actions, one beginning at the date

of judgment, § 113(g)(3)(A), and one

beginning at the date of settlement,

§ 113(g)(3)(B). . . . [T]o assert a contribution

claim under § 113(f), a party must satisfy the

conditions of either § 113(f)(1) or

§ 113(f)(3)(B).

Cooper Indus., 543 U.S. at 167. Thus, one “avenue” to a

contribution claim accrues once a polluter sues or is sued

under CERCLA §§ 106 or 107, and that avenue remains open

while the lawsuit is unresolved. 42 U.S.C. § 9613(f)(1).

Then the statute of limitations begins to run once that

litigation settles or ends by judgment. See id.; see also id.

ASARCO V. CELANESE CHEMICAL CO. 11

§ 9613(g)(3). The other “avenue” to a contribution claim

accrues when a person 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.” Id. § 9613(f)(3)(B).

ASARCO contends that the special rights conferred by

CERCLA § 113(f)(2)–(3) on persons that settle liability or

costs with the government suggest, when read in conjunction

with the rest of the statute, that private-party settlements may

not activate the statute of limitations for contribution claims.

But that is not what the plain language of the statute suggests.

In order for a contribution claim to accrue, one of two

necessary conditions must occur: (1) a lawsuit under either

CERCLA §§ 106 or 107, or (2) a judicially approved

settlement with the United States or a State. 42 U.S.C.

§ 9613(f)(1) & (f)(3)(B); see also Cooper Indus., 543 U.S. at

166 (“There is no reason why Congress would bother to

specify conditions under which a person may bring a

contribution claim, and at the same time allow contribution

actions absent those conditions.”). The lack of any specified

statute of limitations for a contribution claim pled in the

absence of either of the two necessary conditions—as would

be the case for a contribution claim pled as a result of a

“purely voluntary cleanup”—means that a claim absent either

of the two necessary conditions is unavailable. Cooper

Indus., 543 U.S. at 167. It follows, then, that any contribution

claim is subject to the three-year statute of limitations. See

id.

12 ASARCO V. CELANESE CHEMICAL CO.

B. The Wickland Agreement Triggered the Statute of

Limitations of § 9613(g)(3)(B).

The statute of limitations for a contribution claim is

triggered by the date upon which the judgment or settlement

that underlies the claim is entered. See id. When the

CERCLA §§ 106 or 107 lawsuit is over and a judgment is

entered, the statute of limitations begins to run on the cause

of action for contribution that accrued during the pendency of

that litigation. See 42 U.S.C. § 9613(g)(3)(A). When a

person resolves its liability to the United States or a State

through an administrative or judicially approved settlement,

a right to assert a contribution claim against other PRPs also

accrues. Id. § 9613(f)(3)(B). Such a settlement starts the

clock on the three-year statute of limitations for the

contribution claim that accrues on the basis of that settlement.

Id. § 9613(g)(3)(B). ASARCO argues that only judicially

approved settlements involving the United States or a State

may trigger the statute of limitations under § 9613(g)(3)(B),

and that private-party judicially approved settlements cannot

trigger the § 9613(g)(3)(B) statute of limitations. We hold

that private-party judicially approved settlements may trigger

the § 9613(g)(3)(B) statute of limitations.

“Statutes of limitations are intended to provide notice to

defendants of a claim before the underlying evidence

becomes stale.” In re Hanford Nuclear Reservation Litig.,

534 F.3d 986, 1009 (9th Cir. 2008). A primary canon of

statutory interpretation is that the plain language of a statute

should be enforced according to its terms, in light of its

context. Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997);

Wilshire Westwood Assocs. v. Atl. Richfield Corp., 881 F.2d

801, 803 (9th Cir. 1989).

ASARCO V. CELANESE CHEMICAL CO. 13

When interpreting a statute, our task is to

construe what Congress has enacted. We look

first to the plain language of the statute,

construing the provisions of the entire law,

including its object and policy, to ascertain

the intent of Congress. We will resort to

legislative history, even where the plain

language is unambiguous, where the

legislative history clearly indicates that

Congress meant something other than what it

said.

Carson Harbor Vill., 270 F.3d at 877 (internal quotation

marks and citations omitted). “Thus, we examine the statute

as a whole, including its purpose and various provisions.” Id.

at 880. We construe the statute in context to avoid

superfluities. Cooper Indus., 543 U.S. at 166 (citing Hibbs v.

Winn, 542 U.S. 88, 101 (2004)). If possible, we “construe a

statute to give every word some operative effect.” Id. at 167

(citing United States v. Nordic Vill., Inc., 503 U.S. 30, 35–36

(1992)). “Clearly, neither a logician nor a grammarian will

find comfort in the world of CERCLA. It is not our task,

however, to clean up the baffling language Congress gave us

. . . .” Carson Harbor Vill., 270 F.3d at 883.

Here, ASARCO suggests that we read into the statutory

language a requirement that a judicially approved settlement

include the United States or a State in order to trigger the

statute of limitations at § 9613(g)(3)(B), just as the settlement

bar at § 9613(f)(2) and the accrual of contribution rights

under § 9613(f)(3)(B) each require that a judicially approved

settlement include the United States or a State as a party.

First, the plain language of the statute of limitations does not

limit triggering “judicially approved settlements” to those

14 ASARCO V. CELANESE CHEMICAL CO.

involving the United States or a State. See 42 U.S.C.

§ 9613(g)(3)(B). The triggering event for that statute of

limitations at § 9613(g)(3)(B) includes judicially approved

settlements involving the United States or a State, but is not

limited to those types of settlements on its face. We are wary

of reading such an additional condition into this statute

of limitations. See City of Colton v. Am. Promotional

Events, Inc.-W., 614 F.3d 998, 1007 (9th Cir. 2010) (quoting

Transam. Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 19–20

(1979)).

Second, our reading does not result in superfluity. The

provisions cited by ASARCO in support of its position are

distinct in that they confer certain rights upon parties that

settle their liability with the government. These rights may

encourage parties to settle with the government at an early

stage, thus facilitating the cleanup efforts that CERCLA was

designed to promote. See Carson Harbor Vill., 270 F.3d at

884. Judicially approved settlements that do not include the

United States or a State do not confer such settlement

protection. Whether or not a private party “judicially

approved settlement” is also a “judgment” that would trigger

the statute of limitations at § 9613(g)(3)(A) does not

necessarily render the provision superfluous. See id. at

881–82 (substantial overlap in definitions does not render

terms superfluous).

Third, interpreting the statute of limitations at

§ 9613(g)(3)(B) to include a trigger for private-party

judicially approved settlements ensures that every word has

operative effect. To do otherwise would confer a right of

contribution following private-party judicially approved

settlements that would never expire. ASARCO recognized

that it could have filed a claim for contribution following the

ASARCO V. CELANESE CHEMICAL CO. 15

entry of the Wickland Agreement. Exempting these

contribution claims from the statute of limitations would

subject PRPs to litigation at any time following a private

party settlement, and encourage private parties to settle with

each other, rather than with the government, rendering the

statute of limitations for contribution actions meaningless.3

III. The Wickland Agreement Covered All Response

Costs at the Selby Site and the 2008 Bankruptcy

Settlement Merely Fixed Costs.

A. The Scope of the Wickland Agreement

The 1989 Consent Judgment and Wickland Agreement

ended the litigation related to the Selby Site, after the appeal

in Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887 (9th

Cir. 1986). As discussed earlier, Wickland was permitted to

pursue its CERCLA cost recovery claims against ASARCO

after we reversed the district court’s dismissal. In order to

determine what the Wickland Agreement covered, we

interpret de novo the settlement agreement. City of

Emeryville, 621 F.3d at 1261.

Under California law, “the mutual intention of the parties

at the time the contract is formed governs interpretation.”

AIU Ins. Co. v. Super. Ct., 799 P.2d 1253, 1264 (Cal. 1990)

(citing Cal. Civ. Code § 1636). The intent of the parties is

3

ASARCO also argues that the Wickland Agreement did not meet the

standard for a judicially approved settlement. ASARCO cannot now

argue that the court was wrong to approve the Wickland Agreement as

part of the consent judgment 25 years after ASARCO participated in the

agreement and accepted the consent judgment. The district court did not

abuse its discretion decades ago in approving the agreement.

16 ASARCO V. CELANESE CHEMICAL CO.

determined “solely from the written provisions of the

contract.” Id. (citing Cal. Civ. Code § 1639). The ordinary

meaning of a contract’s terms controls judicial interpretation.

Id.; see also Cal. Civ. Code § 1644. No matter how broad a

contract may appear, “it extends only to those things

concerning which it appears that the parties intended to

contract.” Cal. Civ. Code § 1648.

In this case, the provisions of the contract are clear.4 The

Wickland Agreement settled the dispute between ASARCO

and Wickland over the Selby Site. In the Wickland

Agreement, the parties undertook to “establish a procedure

for allocating past and future costs attributable to the events

and conditions underlying the [district court case].” The

events and conditions underlying the district court case were

the industrial operations and resulting pollution that had

occurred at the Selby Site prior to Wickland’s ownership.

See Wickland Oil Terminals, 792 F.2d at 889. The parties to

the Wickland Agreement, Wickland, ASARCO, and State

Lands, agreed to undertake site remediation to investigate,

monitor, and abate actual or threatened contamination at the

Selby Site, caused by or related to the conditions at the site

addressed by the Remedial Action Plan.

4

“The construction and enforcement of settlement agreements are

governed by principles of local law which apply to interpretation of

contracts generally.” Jeff D. v. Andrus, 899 F.2d 753, 759 (9th Cir. 1990).

The Wickland Agreement expressly states that California law governs its

terms, but the district court analyzed the Wickland Agreement by applying

principles of federal common law. While the district court committed

error by failing to explicitly apply California law, instead using a federal

standard to interpret the Wickland Agreement, such error was harmless

because both approaches yield the same result. See Cachil Dehe Band of

Wintun Indians v. California, 618 F.3d 1066, 1073 (9th Cir. 2010).

ASARCO V. CELANESE CHEMICAL CO. 17

The Remedial Action Plan was based on a report prepared

by an environmental consultant and incorporated into the

Wickland Agreement. The goals of the Remedial Action Plan

were to dredge contaminated sediments in the tidelands to

dispose of them, to remediate acid-affected soils in the

Virginia Chemicals area, to cap the site to prevent runoff

contamination, and to relocate a sewage oxidation pond.

ASARCO, Wickland, and State Lands agreed to share the

costs of implementing the initial part of this plan equally. To

the extent that a government agency responsible for oversight

of the cleanup effort ordered additional work, or the parties

mutually agreed that additional work was required to

accomplish the Remedial Action Plan, those costs would also

be shared equally as a “Subsequent Modification.” The

parties decided that if a future cost was an “Other

Remediation Cost” and not a “Subsequent Modification,” that

ASARCO would bear 42%, State Lands 38%, and Wickland

20% of the future cost. Costs envisioned were necessary and

proper if the parties agreed to them, an arbitrator imposed

them, or the government required them as part of a

compliance order. The Wickland Agreement’s Remedial

Action Plan was developed with input and approval from

California DHS and the RWQCB. The California DHS letter

attached as part of the Wickland Agreement establishes an

understanding between the agency and the parties that the

parties would take over responsibility for the efforts that

California DHS had already begun to remediate conditions at

the Selby Site. The Wickland Agreement’s tasks matched

those already planned or started by California DHS.

The Remedial Action Plan included work in the Virginia

Chemicals-leased area. Therefore, the clean-up work that

underlies ASARCO’s contribution claim against CNA was

included in the Wickland Agreement. The Remedial Action

18 ASARCO V. CELANESE CHEMICAL CO.

Plan does not distinguish between site conditions caused by

Virginia Chemicals and those caused by ASARCO as a result

of sulfur dioxide operations at the Plant. When read in total,

it is evident from the terms of the Wickland Agreement that

the agreement was meant to be a final determination of each

agreeing party’s liability for costs associated with cleaning up

the Selby Site, in accordance with the oversight and

requirements of California DHS.

ASARCO argues that the future work to be performed and

associated costs were too uncertain under California law to be

enforceable by contract. ASARCO cites Robinson & Wilson,

Inc. v. Stone, 110 Cal. Rptr. 675, 682–84 (Cal. Ct. App.

1973), in support of that proposition, though that case is

factually distinguishable. In Robinson, the contract calling

for future work failed to provide sufficient clarity regarding

the nature of the work or who would pay for it. See id. at

683. The terms of the Wickland Agreement clearly define

who will pay for the work and the nature of the work to

remediate the Selby Site, while contemplating that additional

tasks may be added to accomplish the remediation’s goals.

Though the complete costs were unknown at the time that the

Wickland Agreement was entered, ASARCO’s contention

that the uncertainty of costs then means that the Wickland

Agreement could not have covered costs now mirrors

ASARCO’s contention against Wickland in the 1980s

litigation.

We previously decided that “[t]he essential fact

establishing Wickland’s right to declaratory relief—the

alleged disposal of hazardous substances at the Selby [Site]

at the time [ASARCO] owned and operated the smelting

facility—has already occurred.” Wickland Oil Terminals,

792 F.2d at 893. The Wickland Agreement functions much

ASARCO V. CELANESE CHEMICAL CO. 19

like a proportionate liability declaratory judgment would.5

The fact that the full costs were unknown at the time does not

mean that the Wickland Agreement was less than

comprehensive.

B. The 2008 Bankruptcy Settlement Fixed

ASARCO’s Costs Associated with the Wickland

Agreement.

The 2008 Bankruptcy Settlement settled any claims that

State Lands and CSLI had against ASARCO as a result of the

Wickland Agreement. It also settled ASARCO’s

responsibility vis-a-vis DTSC (California DHS’s successor)

to clean up the Selby Site. The 2008 Bankruptcy Settlement

refers to the Wickland Agreement, and states that DTSC

required ASARCO, CSLI, and State Lands to conduct

additional remediation at the site in order to achieve a “final

remedy.” CSLI’s and State Lands’ proofs of claim in the

2008 Bankruptcy Settlement all cite to the entry of the

Wickland Agreement Consent Judgment on March 13, 1989,

as the basis for their claims against ASARCO. DTSC’s proof

of claim cites January 1, 1983 as the date when ASARCO’s

obligations to DTSC began. In other words, the bankruptcy

claims against ASARCO stem from ASARCO’s liability to

fund or perform cleanup efforts at the Selby Site, which,

according to the terms of the Wickland Agreement, were

divided among ASARCO, Wickland, and State Lands for past

and future costs at the Selby Site. In an affidavit in support

5

If ASARCO had filed a contribution claim against CNA after entering

the Wickland Agreement, it could have sought a declaratory judgment for

contribution costs. See, e.g., Boeing Co. v. Cascade Corp., 207 F.3d

1177, 1191 (9th Cir. 2000) (proportional declaratory judgment

contribution claims allowed following private party CERCLA actions).

20 ASARCO V. CELANESE CHEMICAL CO.

of the 2008 Bankruptcy Settlement, ASARCO contended that

its fair share of any future work at the Selby Site would be

33%, in accordance with the terms of the Wickland

Agreement (although the other Wickland Agreement parties

maintained that ASARCO would be liable for 42%, citing a

different provision of the Wickland Agreement), and the

amount paid to DTSC reflected that liability. Therefore, the

2008 Settlement Agreement reflects an understanding of the

parties to settle ASARCO’s 1989 obligations under the

Wickland Agreement. Also instructive is ASARCO’s

parent’s objection to the terms of the 2008 Bankruptcy

Settlement, withdrawn after clarification and a stipulation

among the parties that the 2008 Bankruptcy Settlement did

not go beyond ASARCO’s responsibilities under the

Wickland Agreement. While ASARCO’s contention that

there are items in DTSC’s remedial action objectives that

differ from the intermediate remedial measures in the

Wickland Agreement is valid, those changes are the mandate

of an overseeing government agency. The Wickland

Agreement defines such mandated costs as “necessary and

appropriate,” and apportions that liability according to the

intent of the parties. Therefore, the $33 million that

ASARCO agreed to pay to DTSC in the 2008 Bankruptcy

Settlement to satisfy ASARCO’s obligations to clean up the

Selby Site is not a new cost, and it cannot underlie a new

claim for contribution.

ASARCO contends that the phrase “such costs or

damages” in the statute of limitations means that ASARCO’s

claim for contribution only came about when “such costs or

damages” became fixed. ASARCO cites to American

Cyanamid Co. v. Capuano, 381 F.3d 6 (1st Cir. 2004), but

that case held that a new claim for contribution based on new

settlement liability (groundwater) cannot be barred by an

ASARCO V. CELANESE CHEMICAL CO. 21

earlier settlement for a different contribution claim (soil).

381 F.3d at 25–26. ASARCO also cites to a Sixth Circuit

case in an attempt to bolster the point that only costs fixed in

a settlement are eligible in contribution. See RSR Corp. v.

Commercial Metals Co., 496 F.3d 552, 559 (6th Cir. 2007).

But the Sixth Circuit found that the future costs sought in that

action were imposed as part of a judicially approved

settlement, and found that the statute of limitations had

expired. Id. at 558. “Rather than focus on who settled the

cost-recovery action, in short, the statute asks us to focus on

what was settled.” Id. at 557. In this appeal, ASARCO’s

new contribution claim via the 2008 Bankruptcy Settlement

is for exactly the same liability ASARCO assumed in the

1989 Wickland Agreement, and is therefore time barred.

IV. The 2008 Bankruptcy Settlement Did Not Create

a New Claim or Revive the Expired Claim.

ASARCO argues that even though it failed to pursue a

CERCLA § 113(f)(1) claim during or following the litigation

that led to the Wickland Agreement, it should nonetheless be

permitted to pursue a contribution claim against CNA as a

result of the 2008 Bankruptcy Settlement, pursuant to a right

for contribution under CERCLA § 113(f)(3)(B). ASARCO

argues that there is nothing in CERCLA that would bar it

from seeking successive contribution from CNA now that

ASARCO’s costs of response and liability vis-a-vis the

government are fixed in the 2008 Bankruptcy Settlement.

ASARCO makes this argument two ways. First, ASARCO

argues that the costs it seeks in this action related to the 2008

Bankruptcy Agreement are for final response costs not

22 ASARCO V. CELANESE CHEMICAL CO.

contemplated in the Wickland Agreement.6 Second,

ASARCO argues that CERCLA § 113(f)(3)(B) creates a

separate and absolute right to seek contribution following

settlement with the government, even for the same costs

ASARCO could have sought contribution for following the

Wickland Agreement, but failed to seek before ASARCO was

time-barred.

ASARCO is correct that there is no limit in the statute to

prevent a party in an early settlement from seeking

contribution related to a later settlement, as long as those

settlements cover separate obligations. See Am. Cyanamid,

381 F.3d at 25–26. ASARCO is also correct that there is an

express right to seek contribution from other PRPs following

a settlement with the government, according to CERCLA

§ 113(f)(3)(B), and that the 2008 Bankruptcy Settlement

settled ASARCO’s liability to the government for the first

time. We have not previously considered whether a settling

party has an absolute right to pursue an otherwise expired

claim following a settlement with the government, and we

hold that no such right exists. On this point, the First

Circuit’s reasoning in American Cyanamid is helpful. The

First Circuit reasoned that allowing a previous settlement on

a discrete set of costs to trigger the statute of limitations on an

unresolved set of costs would unfairly reward an early settler

with a benefit that it had not paid for, and would allow that

settler to avoid paying its fair share. Am. Cyanamid, 381 F.3d

at 16. Additionally, if we adopted ASARCO’s position,

allowing a bankruptcy settlement with the United States or a

State to revive an otherwise expired CERCLA claim would

circumvent the statute of limitations. “The principal purpose

6

As addressed in Section III, above, the costs are the same, so ASARCO

cannot recover from CNA under this theory.

ASARCO V. CELANESE CHEMICAL CO. 23

of limitations periods in this setting is to ensure that the

responsible parties get to the bargaining—and clean-

up—table sooner rather than later.” RSR Corp., 496 F.3d at

559. If the right to seek contribution on an otherwise expired

claim was allowed after fixing costs with the government,

then any PRP seeking to fix the costs of privately-apportioned

CERCLA liability through a bankruptcy settlement with the

government would receive a benefit that it had not paid for in

that bankruptcy settlement. Such a right would circumvent

the statute of limitations for contribution actions and would

encourage tardy parties to use bankruptcy to revive their

expired claims. It would also serve to discourage private

party settlements and diligent pursuit of contribution claims

following the entry of such settlements. If the principal

purpose of the limitations period is to ensure that responsible

parties get to the “bargaining and clean-up table” sooner

rather than later, then potentially responsible parties must be

brought to that table within three years of the statute-of-

limitations triggering event, and once the statute of

limitations has expired on that cause of action, potentially

responsible parties cannot revive the expired contribution

claim through a subsequent bankruptcy settlement with the

United States or a State.

The judgment of the district court is AFFIRMED.