Asarco LLC v. Atlantic Richfield Co.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ASARCO LLC, a Delaware No. 14-35723

corporation,

Plaintiff-Appellant, D.C. No.

6:12-cv-00053-

v. DLC

ATLANTIC RICHFIELD COMPANY, a

Delaware corporation, OPINION

Defendant-Appellee.

Appeal from the United States District Court

for the District of Montana

Dana L. Christensen, Chief Judge, Presiding

Argued and Submitted February 8, 2017

Seattle, Washington

Filed August 10, 2017

Before: Raymond C. Fisher, Richard A. Paez,

and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan

2 ASARCO V. ATLANTIC RICHFIELD

SUMMARY *

Environmental Law

The panel vacated the district court’s summary judgment

in favor of the defendant in a contribution action under

§ 113(f) of the Comprehensive Environmental Response,

Compensation, and Liability Act.

CERCLA § 113(f) provides that after a party has,

pursuant to a settlement agreement, resolved its liability for

a “response” action or the costs of such an action, that party

may seek contribution from any person who is not a party to

the settlement.

The panel held that a 1998 settlement agreement under

the Resource Conservation and Recovery Act between the

plaintiff and the United States did not trigger the three-year

statute of limitations for the plaintiff to bring a CERCLA

contribution action concerning the East Helena Superfund

Site. Agreeing with the Third Circuit, and disagreeing with

the Second Circuit, the panel held that a settlement

agreement entered into under an authority other than

CERCLA may give rise to a CERCLA contribution action.

In addition, a “corrective measure” under RCRA qualifies as

a “response” action under CERCLA. The plaintiff did not,

however, “resolve its liability” under the 1998 RCRA

settlement agreement.

*

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. ATLANTIC RICHFIELD 3

Nonetheless, a later, 2009 agreement, on which the

plaintiff based its present CERCLA contribution action, did

resolve the plaintiff’s liability. Because the plaintiff filed the

present action within the three-year limitations period

measured against entry of the 2009 agreement, it was timely.

The panel remanded the case for further proceedings to

determine whether the plaintiff was entitled to contribution

for the response costs it incurred under the 2009 agreement.

COUNSEL

Gregory Evans (argued), Laura G. Brys, and Daphne Hsu,

McGuire Woods LLP, Los Angeles, California; Linda R.

Larson, Marten Law PLLC, Seattle, Washington; for

Plaintiff-Appellant.

Shannon Wells Stevenson (argued), William J. Duffy, and

Mave A. Gasaway, Davis Graham & Stubbs LLP, Denver,

Colorado; Elizabeth H. Temkin, Temkin Wielga & Hardt

LLP, Denver, Colorado; Randy J. Cox and Randy J. Tanner,

Boone Karlberg P.C., Missoula, Montana; for Defendant-

Appellee.

OPINION

CALLAHAN, Circuit Judge:

Section 113(f)(3)(B) of the Comprehensive

Environmental Response, Compensation, and Liability Act

of 1980 (“CERCLA”) allows persons who have taken

actions to clean up hazardous waste sites to seek monetary

contribution from other parties who are also responsible for

the contamination. 42 U.S.C. § 9613(f)(3)(B). The

4 ASARCO V. ATLANTIC RICHFIELD

provision provides that a person that has “resolved its

liability” for “some or all of a response action or for some or

all of the costs of such action” pursuant to a settlement

agreement with the government “may seek contribution

from any person who is not party to a settlement.” Id. In

other words, “a [potentially responsible party] that pays

money to satisfy a settlement agreement . . . may pursue

§ 113(f) contribution.” United States v. Atl. Research Corp.,

551 U.S. 128, 139 (2007). CERCLA imposes a three-year

statute of limitations after entry of a judicially approved

settlement, during which a party may bring a contribution

action. 42 U.S.C. § 9613(g)(3).

This case presents three issues of first impression in our

circuit. First, we must decide whether a settlement

agreement entered into under an authority other than

CERCLA may give rise to a CERCLA contribution action.

Second, we must decide whether a “corrective measure”

under a different environmental statute, the Resource

Conservation and Recovery Act (“RCRA”), qualifies as a

“response” action under CERCLA. And third, we must

decide what it means for a party to “resolve[] its liability” in

a settlement agreement—a prerequisite to bringing a

§ 113(f)(3)(B) contribution action. Our answers to these

legal questions guide our inquiry into whether a 1998

settlement agreement under RCRA (the “1998 RCRA

Decree”) between Appellant Asarco LLC (“Asarco”) and the

United States, which was approved and entered by a federal

district court, triggered the three-year statute of limitations

for Asarco to bring a § 113(f)(3)(B) contribution action.

In this contribution action against Appellee Atlantic

Richfield Company (“Atlantic Richfield”), the district court

answered the first two questions in the affirmative but did

not address the third. On Atlantic Richfield’s motion for

ASARCO V. ATLANTIC RICHFIELD 5

summary judgment, the district court concluded that

Asarco’s action accrued with entry of the 1998 RCRA

Decree. Because Asarco brought its action in 2012—well

beyond the three-year statute of limitations under

CERCLA—the district court determined that its claim was

time-barred.

We agree with the district court on the first two issues

but, as to the third, conclude that Asarco did not “resolve[]

its liability” under the 1998 RCRA Decree. Asarco therefore

could not have brought its contribution action in 1998, and

the statute of limitations did not begin to run with entry of

the 1998 RCRA Decree. By contrast, a later, 2009

agreement, on which Asarco bases its present contribution

action, did resolve Asarco’s liability. And because Asarco

filed that action within the three-year limitations period

measured against entry of the 2009 agreement, it is also

timely. The district court therefore erred in dismissing

Asarco’s action on statute of limitations grounds.

Accordingly, we vacate the district court’s judgment and

remand for further proceedings to determine whether Asarco

is entitled to contribution for the response costs it incurred

under the 2009 agreement.

I. Factual Background

The East Helena Superfund Site (the “Site”) is located in

and around an industrial area in Lewis and Clark County,

Montana. The Site includes the City of East Helena,

Asarco’s former lead smelter, and a nearby zinc fuming plant

that was operated by Atlantic Richfield’s predecessor,

Anaconda Mining Company (“Anaconda”), and later by

Asarco.

The Site has been a locus of industrial production for

more than a century, resulting in decades of hazardous waste

6 ASARCO V. ATLANTIC RICHFIELD

releases. The lead smelter, which Asarco operated from

1888 until 2001, discharged toxic compounds into the air,

soil, and water, such as lead, arsenic, and other heavy metals.

Asarco alleges that the zinc fuming plant, which Anaconda

operated from 1927 to 1972, also contributed to the

contamination. Asarco purchased the zinc fuming plant in

1972 and apparently ceased operations in 1982. 1 In 1984,

the United States Environmental Protection Agency

(“EPA”) added the Site to the National Priorities List under

CERCLA.

In the late 1980s, EPA identified Asarco and Anaconda

as potentially responsible parties (“PRPs”) under CERCLA,

meaning—in CERCLA vernacular—that they bore at least

some responsibility for the contamination. See 42 U.S.C.

§ 9607(a). EPA sought remedial action only from Asarco,

which resulted in three CERCLA settlements between

Asarco and the United States in the late 1980s and early

1990s. Those early settlements are not at issue in this

litigation.

In 1998, the United States brought claims against Asarco

for civil penalties and injunctive relief under RCRA and the

Clean Water Act (“CWA”). The complaint alleged that

Asarco had illegally disposed of hazardous waste at the Site,

and sought an order requiring Asarco to, inter alia, “conduct

corrective action pursuant to Section 3008(h) of RCRA,

42 U.S.C. § 6928(h) . . . .” A “corrective action” under

RCRA is a type of “response measure” necessary to protect

human health or the environment, see 42 U.S.C. § 6928(h),

1

It is unclear whether the plant remains active. Asarco and Atlantic

Richfield both contend that the plant ceased operations in 1982, but the

parties rely on authority from 1997, which states that “Asarco continues

to operate the zinc fuming plant.”

ASARCO V. ATLANTIC RICHFIELD 7

and is “designed to clean up contamination,” J. Stanton

Curry, James J. Hamula, Todd W. Rallison, The Tug-of-War

Between RCRA and CERCLA at Contaminated Hazardous

Waste Facilities, 23 Ariz. St. L.J. 359, 369 (1991).

Asarco settled the case with the United States. The

settlement agreement was approved by the federal district

court in Montana, and entered on the court’s docket as a

consent decree. The 1998 RCRA Decree assessed civil

penalties against Asarco and also required Asarco to take

certain remedial actions to address past violations. Those

actions included “[c]orrective [m]easures” to, inter alia,

“remediate, control, prevent, or mitigate the release,

potential release or movement of hazardous waste or

hazardous constituents into the environment or within or

from one media to another.”

Despite the 1998 RCRA Decree’s lofty goals, Asarco

failed to meet its cleanup obligations. Further complicating

matters, in 2005 Asarco filed for Chapter 11 bankruptcy

protection. The United States and Montana filed proofs of

claim in the bankruptcy proceeding asserting joint and

several liability claims under CERCLA. On June 5, 2009,

the bankruptcy court entered a consent decree under

CERCLA (the “CERCLA Decree”) between Asarco, the

United States, and Montana. The CERCLA Decree

established a custodial trust for the Site, and turned over

cleanup responsibility to a trustee. As part of the agreement,

Asarco paid $99.294 million (plus other expenses), which,

inter alia, “fully resolved and satisfied” its obligations under

the 1998 RCRA Decree. 2

2

Asarco also paid $5 million to Montana to settle a claim for natural

resource damages.

8 ASARCO V. ATLANTIC RICHFIELD

II. Procedural Background

On June 5, 2012, Asarco brought an action against

Atlantic Richfield under CERCLA § 113(f)(3)(B), seeking

contribution for its financial liability under the CERCLA

Decree. Atlantic Richfield filed a motion for summary

judgment, arguing that Asarco’s action was untimely

because the three-year statute of limitations under § 113

began running with the 1998 RCRA Decree. Asarco

countered that “RCRA, a statute that does not authorize

contribution claims, [cannot] trigger the limitations period

under another law, CERCLA.” Asarco also argued that the

CERCLA Decree created “new” and “different” work

obligations from the 1998 RCRA Decree, thereby triggering

a new statute of limitations period for at least the costs

associated with those new obligations.

The district court granted summary judgment for

Atlantic Richfield and dismissed the case. It concluded that

the plain language of CERCLA § 113(f)(3)(B) requires only

that a settlement agreement address a “response action,” not

that it be entered into under CERCLA. The court also

determined that Asarco had incurred response costs under

the 1998 RCRA Decree, and therefore held that the 1998

RCRA Decree provided the necessary predicate for a

CERCLA contribution action. Finally, the court rejected

Asarco’s argument that the CERCLA Decree contained

matters not addressed by the 1998 RCRA Decree.

Accordingly, it held that the CERCLA Decree did not reset

the statute of limitations for any response costs incurred

under that agreement, and deemed Asarco’s claim for

contribution untimely. Asarco appealed.

ASARCO V. ATLANTIC RICHFIELD 9

III. Statutory Context

Congress enacted CERCLA in 1980 with two goals in

mind: (i) to encourage the “‘expeditious and efficient

cleanup of hazardous waste sites,’” and (ii) to ensure that

those responsible for hazardous waste contamination pay for

the cleanup. Carson Harbor Vill., Ltd. v. Unocal Corp.,

270 F.3d 863, 880 (9th Cir. 2001) (en banc) (quoting Pritkin

v. Dep’t of Energy, 254 F.3d 791, 795 (9th Cir. 2001)); see

S. Rep. No. 96–848, at 13 (1980). Hazardous waste sites—

also known as Superfund sites—contain toxic substances

often deposited by multiple entities. See 42 U.S.C.

§ 9607(a)(1)–(4). In order to spread responsibility among

those entities, Congress included a provision in CERCLA

providing for reimbursement of costs incurred by the

government or a liable PRP. Section 107(a) provides a cause

of action for a “cost recovery” claim against PRPs for a wide

range of expenses, including “‘any . . . necessary costs of

response incurred’” that result from a release of a hazardous

substance. Whittaker Corp. v. United States, 825 F.3d 1002,

1006 (9th Cir. 2016) (quoting 42 U.S.C. § 9607(a)).

“Response” is a term of art under CERCLA and means

“remove, removal, remedy, and remedial action.” 42 U.S.C.

§ 9601(25). Congress even gave those defining terms their

own definitions. A “removal” means, inter alia, “the

cleanup or removal of released 3 hazardous substances from

the environment” and any actions that may be necessary “in

the event of the threat of release of hazardous substances into

3

With exceptions, a “release” under CERCLA means “any spilling,

leaking, pumping, pouring, emitting, emptying, discharging, injecting,

escaping, leaching, dumping, or disposing into the environment

(including the abandonment or discarding of barrels, containers, and

other closed receptacles containing any hazardous substance or pollutant

or contaminant) . . . .” 42 U.S.C. § 9601(22).

10 ASARCO V. ATLANTIC RICHFIELD

the environment.” Id. § 9601(23). A “remedial action”

means, inter alia, “actions consistent with permanent

remedy taken instead of or in addition to removal actions . . .

to prevent or minimize the release of hazardous substances

so that they do not migrate to cause substantial danger to

present or future public health or welfare or the

environment.” Id. § 9601(24). Put simply, a “response

action” covers a broad array of cleanup activities.

Section 107(a) is limited to recovery of response costs

the suing PRP itself directly incurred. See Atl. Research,

551 U.S. at 139 (“[Section] 107(a) permits recovery of

cleanup costs but does not create a right to contribution.”).

At the time of enactment, CERCLA included no express

right to contribution for a PRP that did not itself incur

response costs, but that reimbursed another party that did

incur response costs. See Cooper Indus., Inc. v. Aviall

Servs., Inc., 543 U.S. 157, 162 (2004). Such a situation

arises under two circumstances: (i) where the PRP is the

defendant in a CERCLA § 106 or § 107(a) action and a

money judgment issues against it; or, as with the CERCLA

Decree in the matter before us, (ii) where the PRP pays the

United States’ or a State’s response costs pursuant to a

settlement agreement. See id. at 160–61; Atl. Research,

551 U.S. at 138–39; Whittaker, 825 F.3d at 1006–07.

Congress added an express right to contribution with the

Superfund Amendments and Reauthorization Act of 1986

(“1986 CERCLA Amendments”), Pub. L. No. 99–499, to

address these two circumstances. See Atl. Research,

551 U.S. at 132. Section 113(f)(1) captures the first, and

provides that “[a]ny person may seek contribution from any

other person who is liable or potentially liable under

[§ 107(a)] of this title, during or following any civil action .

. . under [§ 106 or § 107(a)] of this title.” 42 U.S.C.

ASARCO V. ATLANTIC RICHFIELD 11

§ 9613(f)(1). Section 113(f)(1) is not at issue in the instant

matter, but, as discussed infra in Part IV.A, it is relevant to

resolving the first issue we must decide: whether the 1998

RCRA Decree may give rise to a CERCLA contribution

action. Section 113(f)(3)(B), which is directly at issue,

captures the second scenario, and provides that

[a] person who has resolved its liability to the

United States or a State for some or all of a

response action or for some or all of the costs

of such action in an administrative or

judicially approved settlement may seek

contribution from any person who is not party

to a settlement [that immunizes such person

from a contribution action].

Id. § 9613(f)(3)(B). In other words, “a PRP that pays money

to satisfy a settlement agreement or a court judgment may

pursue § 113(f) contribution.” Atl. Research, 551 U.S. at

139; see Cooper, 543 U.S. at 163, 167 (recognizing that

§ 113(f)(1) and § 113(f)(3)(B) set forth separate rights of

contribution).

While § 107(a) cost recovery actions and § 113(f)

contribution actions offer “complementary yet distinct”

remedies, there is overlap between them. Atl. Research,

551 U.S. at 138, 139 n.6. For example, a PRP may undertake

its own response actions pursuant to a settlement agreement

with the government. See id. That PRP will have incurred

its own response costs, meaning it is eligible for cost

recovery under § 107(a), but it has also settled with the

government, giving rise to a contribution action under

§ 113(f)(3)(B). The question is whether both or only one of

these avenues of relief is available. Our circuit, and “every

federal court of appeals to have considered the question

12 ASARCO V. ATLANTIC RICHFIELD

since Atlantic Research,” has concluded that “a party who

may bring a contribution action for certain expenses must use

the contribution action [under § 113(f)(3)(B)], even if a cost

recovery action [under § 107(a)] would otherwise be

available.” Whittaker, 825 F.3d at 1007 (emphasis in

original); see, e.g., Bernstein v. Bankert, 733 F.3d 190, 206

(7th Cir. 2013) (party may not pursue cost recovery claim

where a contribution claim is available); Solutia, Inc. v.

McWane, Inc., 672 F.3d 1230, 1236–37 (11th Cir. 2012)

(same); Morrison Enters., LLC v. Dravo Corp., 638 F.3d

594, 603–04 (8th Cir. 2011) (same); Agere Sys., Inc. v.

Advanced Envtl. Tech. Corp., 602 F.3d 204, 229 (3d Cir.

2010) (same); Niagara Mohawk Power Corp. v. Chevron

U.S.A., Inc., 596 F.3d 112, 128 (2d Cir. 2010) (same); ITT

Indus., Inc. v. BorgWarner, Inc., 506 F.3d 452, 458 (6th Cir.

2007) (same). Thus, a PRP that incurs its own response costs

pursuant to a settlement agreement may only bring a claim

for contribution.

Sections 107(a) and 113(f) have different statutes of

limitations periods. An action for “recovery of . . . costs”

under § 107(a) “must be commenced . . . within 6 years after

initiation of physical on-site construction of the remedial

action” or “within 3 years after the completion of the

removal action.” 42 U.S.C. § 9613(g)(2)(A), (B). An action

for contribution of “response costs or damages” under

§ 113(f), by contrast, “may be commenced” no more than

“3 years after . . . the date of . . . entry of a judicially approved

settlement with respect to such costs or damages.” Id.

§ 9613(g)(3)(B). 4 The shorter three-year limitations period

4

When comparing the limitations periods for §§ 107(a) and 113(f),

courts generally interpret the limitations period for § 107(a) recovery

actions to be a uniform six years, not six years or three years. See, e.g.,

ASARCO V. ATLANTIC RICHFIELD 13

for contribution actions is intended “to ensure that the

responsible parties get to the bargaining—and clean-up—

table sooner rather than later.” RSR Corp. v. Commercial

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

Whittaker, 825 F.3d at 1013 (Owens, J., concurring in part)

(observing that § 113(f) was intended to “‘bring[] all such

responsible parties to the bargaining table at an early date’”

(quoting H.R. Rep. (Energy and Commerce Committee) No.

99–253, pt. 1, at 80 (1985), 5 reprinted in 1986 U.S.C.C.A.N.

2835, 2862)).

IV. Discussion

Asarco’s action is untimely if it could have brought a

contribution action after judicial approval and entry of the

1998 RCRA Decree. Such would be the case if three

Florida Power Corp. v. FirstEnergy Corp., 810 F.3d 996, 1006 (6th Cir.

2015); Consol. Edison Co. v. UGI Utils., 423 F.3d 90, 98 (2d Cir. 2005).

5

With a wary eye trained on the potential pitfalls of gleaning

congressional intent from legislative history, we note that the version of

the bill to which H.R. Rep. No. 99–253 refers, H.R. 2817, included a

contribution provision substantially similar to the final version included

in the enacted statute. That bill, which was introduced in the House of

Representatives on June 20, 1985, and which remained the same in

relevant part when reported out of the House Committee on Energy and

Commerce, contained a contribution provision stating in part:

Nothing in this subsection shall affect or modify in any

way the rights of . . . any person that has resolved its

liability to the United States or a State in a good-faith

settlement, to seek contribution or indemnification

against any persons who are not party to a settlement

[with the United States or a State in a judicially

approved good-faith settlement].

H.R. 2817, 99th Cong. § 113 (June 20, 1985).

14 ASARCO V. ATLANTIC RICHFIELD

conditions are met: (i) a non-CERCLA authority may give

rise to a CERCLA contribution action, (ii) Asarco took a

response action or incurred response costs under the 1998

RCRA Decree, and (iii) the 1998 RCRA Decree resolved

Asarco’s liability for at least some of those response actions

or costs. The district court analyzed the first two conditions

but not the third. We evaluate all three issues.

Our review of the district court’s grant of summary

judgment is de novo, as is our review of the court’s

determination that Asarco’s contribution claim under the

CERCLA Decree is barred by the statute of limitations.

Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th

Cir. 2003). Our review of the district court’s interpretation

of the RCRA and CERCLA Decrees is also de novo, except

that we defer to any factual findings unless they are clearly

erroneous. City of Emeryville v. Robinson, 621 F.3d 1251,

1261 (9th Cir. 2010).

A Non-CERLCA Settlement Agreement May Form

the Basis for a CERCLA Contribution Action

1.

We begin by considering whether § 113(f)(3)(B) applies

to non-CERCLA settlement agreements. “As in any case of

statutory construction our analysis begins with the language

of the statute.” Hughes Aircraft Co. v. Jacobson, 525 U.S.

432, 438 (1999) (internal quotation marks omitted). But it

does not end there. We must heed the “fundamental canon

of statutory construction that the words of a statute must be

read in their context and with a view to their place in the

overall statutory scheme.” FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 133 (2000) (internal quotation

marks omitted). “A statutory provision that may seem

ambiguous in isolation is often clarified by the remainder of

ASARCO V. ATLANTIC RICHFIELD 15

the statutory scheme . . . because only one of the permissible

meanings produces a substantive effect that is compatible

with the rest of the law.” Util. Air Regulatory Grp. v. EPA,

134 S. Ct. 2427, 2442 (2014) (alteration in original and

internal quotation marks omitted).

The plain text of § 113(f)(3)(B) is unilluminating. A

“response” action is a defined term under CERCLA, but it is

unclear from the text of § 113(f)(3)(B) whether it is a

CERCLA-exclusive term. See 42 U.S.C. § 9601(25). In the

same vein, § 113(f)(3)(B) requires a PRP to enter into a

settlement agreement that is “administrative[ly] or judicially

approved,” but the text says nothing about whether the

agreement must settle CERCLA claims in particular. See id.

§ 9613(f)(3)(B).

Expanding our analysis to the broader context of the

statute, we consider § 113(f)(3)(B)’s companion provision,

§ 113(f)(1). That section expressly requires a CERCLA

predicate by providing that “[a]ny person may seek

contribution from any other person who is liable or

potentially liable under [§ 107(a)] of this title, during or

following any civil action under [§ 106] of this title or under

[§ 107(a)] of this title.” Id. § 9613(f)(1) (emphasis added).

“Where Congress includes particular language in one section

of a statute but omits it in another section of the same Act, it

is generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.” Russello

v. United States, 464 U.S. 16, 23 (1983) (internal quotation

marks omitted). Applying this principle here, Congress’

express requirement of a CERCLA predicate in § 113(f)(1)

and its absence in § 113(f)(3)(B) is strong evidence that

Congress intended no such predicate in the latter provision.

Our understanding of § 113(f)(3)(B) is consistent with

CERCLA’s broad remedial purpose. “In ascertaining the

16 ASARCO V. ATLANTIC RICHFIELD

meaning of an ambiguous [statutory] term, we may use

canons of statutory construction, legislative history, and the

statute’s overall purpose to illuminate Congress’s intent.”

Probert v. Family Centered Servs. of Alaska, Inc., 651 F.3d

1007, 1011 (9th Cir. 2011) (internal quotation marks

omitted). With the 1986 CERCLA Amendments, Congress

sought to get parties to the negotiating table early to allocate

responsibility for cleaning up contaminated sites. H.R. Rep.

No. 99–253, pt. 1, at 80. Granting a settling party a right to

contribution from non-settling PRPs provides a strong

incentive to settle and initiate cleanup. Congress gave no

indication that it matters whether the authority governing the

settlement is CERCLA or something else. Its focus was,

instead, on cleaning up hazardous waste sites. An

interpretation that limits the contribution right under

§ 113(f)(3)(B) to CERCLA settlements would undercut

private parties’ incentive to settle (except, of course, where

the agreement was entered into under CERCLA), thereby

thwarting Congress’ objective and doing so without reaping

any perceptible benefit.

Our interpretation also aligns with EPA’s own view. In

Niagara Mohawk Power Corp. v. Chevron, U.S.A., Inc.,

596 F.3d 112 (2d Cir. 2010), EPA argued that “‘settlement

of federal and state law claims other than those provided by

CERCLA fits within § 113(f)(3)(B) as long as the settlement

involves a cleanup activity that qualifies as a “response

action” within the meaning of CERCLA § 101(25),

42 U.S.C. § 9601(25).’” Id. at 126 n.15 (quoting Brief for

the United States as Amicus Curiae Supporting Appellant at

15). “[EPA’s] views, as expressed in [its amicus] brief, are

persuasive because [its] reasoning is consistent with the

statutory language,” statutory context, and CERCLA’s

overall structure and purpose. See Van Asdale v. Int’l Game

Tech., 763 F.3d 1089, 1093 (9th Cir. 2014) (deferring to the

ASARCO V. ATLANTIC RICHFIELD 17

Secretary of Labor’s amicus brief). Its interpretation

therefore merits some deference. See Skidmore v. Swift &

Co., 323 U.S. 134, 140 (1944) (deference to an agency’s

interpretation depends on “the thoroughness evident in its

consideration, the validity of its reasoning, its consistency

with earlier and later pronouncements, and all [other] factors

which give it power to persuade”); see also Fed. Exp. Corp.

v. Holowecki, 552 U.S. 389, 401–02 (2008) (according an

agency’s non-binding interpretation Skidmore deference

where the interpretation was “consistent with the statutory

framework” and the statute was susceptible to “[n]o clearer

alternatives”).

2.

Whether a non-CERLCA settlement agreement may

give rise to a contribution action has split the circuits. In

Trinity Industries, Inc. v. Chicago Bridge & Iron Co.,

735 F.3d 131 (3d Cir. 2013), the Third Circuit arrived at the

conclusion we adopt here in evaluating a settlement

agreement entered into under state law, reasoning that

“Section 113(f)(3)(B) does not state that the ‘response

action’ in question must have been initiated pursuant to

CERCLA.” Id. at 136. Trinity relied on that court’s prior

holding in United States v. Rohm & Haas Co., 2 F.3d 1265

(3d Cir. 1993), overruled on other grounds by United States

v. E.I. Dupont De Nemours & Co., 432 F.3d 161 (3d Cir.

2005) (en banc), where it held that CERCLA § 107(a)—

which provides a cause of action for recovery of response

costs—was available “even when the waste removal [wa]s

not undertaken pursuant to CERCLA.” Trinity, 735 F.3d at

136. In Rohm & Haas, as in the matter before us, the

remedial action was taken under RCRA. 2 F.3d at 1267. The

court in Rohm & Haas noted that § 107(a) lacks any

“CERCLA-specific requirement,” and concluded that

18 ASARCO V. ATLANTIC RICHFIELD

given the similarity of the provisions of

RCRA and CERCLA authorizing EPA to

order private parties to conduct corrective

activity, we fail to perceive any reason why

Congress might have wished to make

government oversight expenses recoverable

if the government invoked CERCLA

statutory authority, but not if it invoked

RCRA.

Id. at 1275.

The Second Circuit has gone the other way. In

Consolidated Edison Co. of N.Y., Inc. v. UGI Utilities, Inc.,

423 F.3d 90, 95 (2d Cir. 2005), the court held that

§ 113(f)(3)(B) creates a “contribution right only when

liability for CERCLA claims . . . is resolved.” That case,

like Trinity, involved a party’s § 113(f)(3)(B) contribution

action to recoup costs spent pursuant to a settlement

agreement under state law. Id. at 96. But unlike Trinity, the

Second Circuit read the term “response action” to be a

“CERCLA-specific term,” and relied on a House of

Representatives Committee report for the 1986 CERCLA

Amendments creating § 113. Id. at 95–96. That report states

that § 113 “‘clarifies and confirms the right of a person held

jointly and severally liable under CERCLA to seek

contribution from other potentially liable parties.’” Id.

(quoting H.R. Rep. No. 99–253, pt. 1, at 79) (emphasis in

opinion). 6

6

Several district courts—including one in the Ninth Circuit—have

agreed with the Second Circuit’s approach. See, e.g., Differential Dev.-

1994, Ltd. v. Harkrider Distrib. Co., 470 F. Supp. 2d 727, 739–43 (S.D.

Tex. 2007); ASARCO, Inc. v. Union Pac. R.R. Co., No. CV 04-2144-

ASARCO V. ATLANTIC RICHFIELD 19

The Second Circuit’s approach is not persuasive and may

be shifting. First, the court misreads the pertinent legislative

history. Consolidated Edison relied on a portion of the

House report that is specific to § 113(f)(1) for the

proposition that Congress intended to require a CERCLA

predicate under § 113(f)(3)(B). See 423 F.3d at 96; H.R.

Rep. No. 99–253, pt. 1, at 79. But, as previously noted, those

two provisions diverge in a crucial way: § 113(f)(1)

expressly requires that a party first be sued under CERCLA

before bringing a contribution action, whereas

§ 113(f)(3)(B) makes no reference to CERCLA at all.

Second, in a subsequent case, Niagara Mohawk, the Second

Circuit indicated agreement with EPA’s position that a

CERCLA-specific settlement agreement is not necessary to

maintain a § 113(f)(3)(B) contribution action. 596 F.3d at

126 n.15. While the court addressed a distinct issue, and so

did not have an opportunity to revisit its holding in

Consolidated Edison, it commented that EPA

“understandably takes issue with our holding in

Consolidated Edison.” Id.

We agree with the Third Circuit. Consideration of

CERCLA’s statutory context, structure, and broad remedial

purpose, combined with EPA’s reasonable interpretation,

lead us to the inexorable conclusion that Congress did not

intend to limit § 113(f)(3)(B) to response actions and costs

incurred under CERCLA settlements. We therefore hold

that a non-CERLCA settlement agreement may form the

necessary predicate for a § 113(f)(3)(B) contribution action.

PHX-SRB, 2006 WL 173662, at *7–9 (D. Ariz. Jan. 24, 2006); City of

Waukesha v. Viacom Int’l Inc., 404 F. Supp. 2d 1112, 1115 (E.D. Wis.

2005).

20 ASARCO V. ATLANTIC RICHFIELD

We turn next to considering whether the 1998 RCRA Decree

is such an agreement.

The 1998 RCRA Decree Required Asarco to Take

“Response” Actions

The second condition necessary for the 1998 RCRA

Decree to have triggered Asarco’s ability to bring a

§ 113(f)(3)(B) contribution action is that the agreement

required Asarco to take response actions or incur response

costs. Asarco suggests that the 1998 RCRA Decree did not

actually require any response actions, but was instead

focused on assessing penalties for RCRA violations, such as

noncompliance with RCRA’s land disposal restrictions.

Asarco argues that the agreement “at best” only resolved

“Asarco’s liability for civil penalties stemming from alleged

operating violations.” The district court barely

acknowledged this issue.

Asarco dramatically understates the scope of its

obligations under the Decree. The agreement clearly

required Asarco to take response actions to clean up

hazardous waste at the Site. Specifically, the 1998 RCRA

Decree obligated Asarco to:

• Implement interim measures to “control or

abate[] . . . imminent threats to human health

and/or the environment”;

• Prevent or minimize the spread of hazardous

waste “while long-term corrective measure

alternatives are being evaluated”;

• Remove and dispose of contaminated soil and

sediment at the Site; and, more generally, to

ASARCO V. ATLANTIC RICHFIELD 21

• Fulfill the Decree’s “remedial objectives” and

“remedial activities”—specifically by

(i) implementing “corrective measures” to

“reduce levels of hazardous waste or hazardous

constituents to applicable standards”;

(ii) remediating “any contamination in

groundwater, surface water and soils, and the ore

storage areas”; (iii) taking actions that “will

result in the remediation of contaminated

media”; and (iv) “provid[ing] the minimum level

of exposure to contaminants and the maximum

reduction in exposure.”

The agreement’s requirement that Asarco take various

“corrective measures” is particularly noteworthy because

RCRA expressly defines “corrective action” as a type of

“response” action: Under RCRA, EPA “may issue an order

requiring corrective action or such other response measure

as [it] deems necessary to protect human health or the

environment.” 7 42 U.S.C. § 6928(h) (emphasis added). In

short, we hold that the 1998 RCRA Decree included

response actions for purposes of bringing a CERCLA

§ 113(f)(3)(B) action.

Asarco Did Not “Resolve Its Liability” Under the

1998 RCRA Decree

The third condition necessary for the 1998 RCRA

Decree to have triggered Asarco’s ability to bring a

§ 113(f)(3)(B) contribution action is that the agreement

“resolved its liability to the United States or [Montana] for

some or all of” its response action or the “costs of such

7

We do not suggest that other authorities that lack the term

“response” could not support a § 113(f)(3)(B) contribution action.

22 ASARCO V. ATLANTIC RICHFIELD

action” in the 1998 RCRA Decree. See 42 U.S.C.

§ 9613(f)(3)(B). Asarco argues that it did not, and therefore

the statute of limitations to bring the instant action did not

expire three years later, in 2001.

1.

Atlantic Richfield contends that Asarco waived this

argument by not raising it in the district court, and that we

should therefore not consider it. Atlantic Richfield is correct

that Asarco failed to raise this precise issue below. Waiver,

however, is not an absolute bar to our consideration of

arguments on appeal. See In re Mercury Interactive Corp.

Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010). We may reach

an otherwise waived issue in three circumstances: (i) to

prevent a miscarriage of justice or preserve the integrity of

the judicial process, (ii) when a new issue arises on appeal

because of a change in the law, and (iii) “‘when the issue

presented is purely one of law and either does not depend on

the factual record developed below, or the pertinent record

has been fully developed.’” Id. (quoting Bolker v. Comm’r,

760 F.2d 1039, 1042 (9th Cir. 1985)).

Determining whether Asarco “resolved its liability”

under the 1998 RCRA Decree falls into the first and third

categories. If Asarco did not, as it contends, resolve its

liability under the 1998 RCRA Decree, then justice would

not be served by upholding the district court’s decision. The

correct interpretation of the phrase “resolved its liability” is

also a pure question of law. While deciding whether Asarco

“resolved its liability” requires application of the law to the

particular terms of the 1998 RCRA Decree, those terms are

not in dispute and the record requires no further

development. Moreover, deciding this issue will bring

certainty to the state of the law in the Ninth Circuit and

ASARCO V. ATLANTIC RICHFIELD 23

thereby “‘preserve the integrity of the judicial process.’” Id.

We therefore proceed to the merits.

2.

As we did in Part IV.A, supra, we begin our analysis

with the plain text of the statute. Hughes, 525 U.S. at 438.

Where Congress has not defined specific statutory terms, we

look to their ordinary meanings. Carcieri v. Salazar,

555 U.S. 379, 388 (2009). The commonly understood

meaning of “resolve” is “to deal with successfully,” “reach

a firm decision about,” or to “work out the resolution of”

something. Resolve, Merriam-Webster Online Dictionary,

https://www.merriam-webster.com/dictionary/resolve (last

accessed July 13, 2017). Black’s Law Dictionary similarly

defines the term to mean “to find an acceptable or even

satisfactory way of dealing with (a problem or difficulty).”

Resolve, Black’s Law Dictionary 1504 (10th ed. 2014).

Implicit in these definitions is an element of finality. If the

parties reach a “firm decision about” liability, then the

question of liability is not susceptible to further dispute or

negotiation. As the Seventh Circuit explained in interpreting

the same statutory provision, “[a]n issue which is ‘resolved’

is an issue which is decided, determined, or settled—

finished, with no need to revisit.” Bernstein, 733 F.3d at

211. “To meet the statutory trigger for a contribution action

under § 9613(f)(3)(B), the nature, extent, or amount of a

PRP’s liability must be decided, determined, or settled, at

least in part, by way of agreement with the EPA.” Id. at 212

(emphasis in original).

But even if an agreement decides with finality the scope

of a PRP’s legal exposure and obligations, is its liability

“resolved” where the government reserves certain rights, or

where the party refuses to concede liability? For example,

the statutory provision setting forth EPA’s settlement

24 ASARCO V. ATLANTIC RICHFIELD

authority allows EPA to include a covenant not to sue in a

settlement agreement. 42 U.S.C. § 9622(f). But such

covenant must be conditioned on a PRP’s completed

performance. Section 122(f)(3) provides that

[a] covenant not to sue concerning future

liability to the United States shall not take

effect until the President certifies that

remedial action has been completed in

accordance with the requirements of this

chapter at the facility that is the subject of

such covenant.

Id. § 9622(f)(3). EPA must therefore preserve its ability to

bring an enforcement action even after the settlement

agreement is executed. This requirement is reflected in

EPA’s model CERCLA consent decree, which provides that

“covenants not to sue are conditioned upon the satisfactory

performance by Settling Defendants of their obligations

under this Consent Decree.” Superfund Program; Revised

Model CERCLA RD/RA Consent Decree, 60 Fed. Reg.

38,817, 38,833 (July 28, 1995). Similarly, EPA has, in the

past, included in settlement agreements releases from

liability that are conditioned on a PRP’s completed

performance. See, e.g., Bernstein, 733 F.3d at 212–13;

Florida Power Corp. v. FirstEnergy Corp., 810 F.3d 996,

1004 (6th Cir. 2015); RSR, 496 F.3d at 558. Furthermore,

parties often expressly refuse to concede liability under a

settlement agreement, even while assuming obligations

consistent with a finding of liability.

The Sixth and Seventh Circuits have decided that these

reservations of rights tip the scales against a finding that a

party has resolved its liability. In Bernstein, the Seventh

Circuit held that settling PRPs had not resolved their liability

ASARCO V. ATLANTIC RICHFIELD 25

where (i) the agreement expressly stated that the PRPs had

not conceded liability; (ii) EPA reserved its right to “seek

legal [] or equitable relief to enforce the terms of the

[agreement]”; and (iii) EPA only “conditionally promised to

release the [PRPs] from liability” upon the PRPs’ “complete

performance, as well as certification thereof.” 733 F.3d at

212–13 (emphasis in original). In rejecting the PRPs’

argument that the agreement’s covenant not to sue amounted

to the requisite resolution, the court reasoned that because

the release from liability was conditioned on completed

performance, the covenant could only take effect when

“performance was complete.” Id. at 212.

The Sixth Circuit conducted a similar analysis in ITT

Industries. 506 F.3d 452. The court found no resolution of

liability where (i) EPA reserved its right to bring legal action

for failure to comply with the agreement or for past, present,

or future response costs; and (ii) the agreement expressly

stated that the PRP did not concede liability. Id. at 459–60.

And more recently, in Florida Power, the Sixth Circuit

found no resolution where (i) EPA reserved its right to bring

a CERCLA enforcement action for violations of the

agreement; (ii) the agreement expressly stated that the PRP

“shall have resolved [its] liability to EPA” only “[f]ollowing

satisfaction of the requirements of this Consent Order”; (iii)

the agreement provided that “participation of [the PRP] in

this Order shall not be considered an admission of liability”;

and (iv) the agreement was not titled an “administrative

settlement.” 810 F.3d at 1004.

By comparison, in Hobart Corp. v. Waste Management

of Ohio, Inc., 758 F.3d 757 (6th Cir. 2014), the Sixth Circuit

held that a PRP had resolved its liability where the

agreement (i) stated that, “for purposes of

Section 113(f)(3)(B) . . . [the PRPs] have, as of the Effective

26 ASARCO V. ATLANTIC RICHFIELD

Date, resolved their liability to the United States”; (ii)

immunized the settling parties from contribution actions as

of the Effective Date; (iii) included the title, “Administrative

Settlement Agreement”; and (iv) contained a covenant

prohibiting EPA from suing under CERCLA “[i]n

consideration of the actions that will be performed and the

payments that will be made by [the PRPs] under the terms of

th[e] Settlement Agreement.” Id. at 768–69 (emphasis

added and omitted). Yet, as pointed out by the dissent in

Florida Power, the agreement in Hobart also included a

broad reservation of rights, specifying that “nothing herein

shall prevent U.S. EPA . . . from taking other legal or

equitable action as it deems appropriate or necessary.”

Florida Power, 810 F.3d at 1016 (Suhrheinrich, J.,

dissenting) (internal quotation marks omitted). Similar

provisions precluded a finding that the parties had resolved

their liability in ITT and Florida Power, thus creating what

appears to be an inconsistent approach within the Sixth

Circuit.

Further complicating the law in the Sixth Circuit is an

earlier case, RSR, in which the court held that the PRP’s

promise of future performance “resolved [its] liability to the

United States” because RSR “agree[d] to assume all liability

(vis-à-vis the United States) for future remedial actions.”

496 F.3d at 558 (emphasis in original). But, as noted again

by the dissent in Florida Power, the agreement at issue in

RSR also included a covenant not to sue conditioned on a

Certification of Completion of Remediation Action issued

by EPA. Florida Power, 810 F.3d at 1012 (Suhrheinrich, J.,

dissenting); see id. (contemplating that the covenant might

“not take effect until the remedial action was complete”).

The RSR court indicated that a promise of future

performance in an agreement suffices to constitute

resolution of liability. See 496 F.3d at 558.

ASARCO V. ATLANTIC RICHFIELD 27

We adopt a meaning of the phrase “resolved its liability”

that falls somewhere in the middle of these various cases.

We conclude that a settlement agreement must determine a

PRP’s compliance obligations with certainty and finality.

See Bernstein, 733 F.3d at 211–12 (“An issue which is

‘resolved’ is an issue which is decided, determined, or

settled—finished, with no need to revisit.”); see also Florida

Power, 810 F.3d at 1002–03. However, we disagree with

the Sixth and Seventh Circuits’ holdings in Florida Power

and Bernstein that the government must divest itself of its

ability to enforce an agreement’s terms. If a covenant not to

sue conditioned on completed performance negated

resolution of liability, then it is unlikely that a settlement

agreement could ever resolve a party’s liability. That is

because CERCLA prevents a covenant not to sue from

“tak[ing] effect until the President certifies that remedial

action has been completed . . . .” 42 U.S.C. § 9622(f)(3); see

60 Fed. Reg. at 38,833 (model consent decree, conditioning

a covenant not to sue on completed performance).

Nor do we agree—as the court held in Bernstein—that a

release from liability conditioned on completed performance

defeats “resolution.” An agreement may “resolve[]” a PRP’s

liability once and for all without hobbling the government’s

ability to enforce its terms if the PRP reneges. This

reasoning applies equally to a covenant not to sue

conditioned on completed performance. 8 It is also consistent

8

Bernstein held that an agreement containing a covenant not to sue

conditioned on completed performance could give rise to a

§ 113(f)(3)(B) contribution action after performance was completed.

733 F.3d at 204. The court reasoned that once the condition was

satisfied, the PRP had resolved its liability. Id. But such an

interpretation renders another part of § 113—the statute of limitations

provision—anomalous. The statute of limitations provision requires a

PRP to bring a contribution action “no more than 3 years after . . . entry

28 ASARCO V. ATLANTIC RICHFIELD

with the 1986 CERCLA Amendments. A House of

Representatives Committee report expresses Congress’

intent to encourage settlements by creating a right to

contribution. H.R. Rep. 99–253, pt. 1, at 80. That same

report criticizes EPA’s inclusion of releases from liability in

settlement agreements. Id. at 102–03 (“[T]he Committee

specifically notes its disapproval of the releases granted in

the settlements entered into in the Seymore Recy[c]ling case

and the Inmont case and expects and intends that any

compara[b]le releases that might be presented for court

approval would be rejected as not in the public interest.”).

Indeed, the report goes one step further, expressing an intent

to “authorize[]” EPA “to include in an agreement . . . any

provisions allowing future enforcement action . . . that

[EPA] determines are necessary and appropriate to assure

protection of public health, welfare, and the environment.”

Id. at 102 (emphasis added). Having sung the praises of

settlements providing for a right of contribution in one part

of the report, it would make little sense for Congress to

encourage EPA to craft settlements in a way that nullifies

that right in another.

of a judicially approved settlement . . . .” 42 U.S.C. § 9613(g)(3)(B)

(emphasis added). Thus, under the Seventh Circuit’s approach, a party’s

contribution action could accrue after the statute of limitations had

already expired. For example, if a settlement agreement included a

covenant not to sue conditioned on completed performance, and the

cleanup took four years, then—in the Seventh Circuit’s view—the PRP

would be precluded from ever bringing a contribution action, even

though it (eventually) satisfied the requirements for doing so. And this

would necessarily be the case because, as discussed, CERLCA requires

that a covenant not to sue be conditioned on completed performance. See

42 U.S.C. § 9622(f)(3). Where possible, we avoid construing statutes in

a way that results in such internal inconsistencies. Boise Cascade Corp.

v. EPA, 942 F.2d 1427, 1432 (9th Cir. 1991).

ASARCO V. ATLANTIC RICHFIELD 29

Moreover, unlike the court in Florida Power, we

conclude that it matters not that a PRP refuses to concede

liability in a settlement agreement. Congress’ intent in

enacting § 113(f)(3)(B) was to encourage prompt

settlements that establish PRPs’ cleanup obligations with

certainty and finality. A PRP’s refusal to concede liability

does not frustrate this objective so long as the PRP commits

to taking action. Indeed, requiring a PRP to concede liability

may discourage PRPs from entering into settlements because

doing so could open the PRP to additional legal exposure.

See 42 U.S.C. § 9607(a) (setting forth obligations of liable

PRPs).

In sum, an examination of § 113(f)(3)(B)’s plain

language, with due consideration for CERCLA’s structure

and purpose, leads us to the conclusion that a PRP

“resolve[s] its liability” to the government where a

settlement agreement decides with certainty and finality a

PRP’s obligations for at least some of its response actions or

costs as set forth in the agreement. A covenant not to sue or

release from liability conditioned on completed performance

does not undermine such a resolution, nor does a settling

party’s refusal to concede liability. Whether this test is met

depends on a case-by-case analysis of a particular

agreement’s terms.

3.

Turning to the 1998 RCRA Decree, we conclude that it

fails to resolve Asarco’s liability for any of its response

actions or costs. First, the Decree’s release from liability

covers none of the “corrective measures”—i.e., response

actions—mandated by the agreement. Paragraph 209, under

“Effect of Decree,” states that

30 ASARCO V. ATLANTIC RICHFIELD

ASARCO’s payment of all civil penalties

due, and ASARCO’s commitments to pay all

stipulated penalties due and owing under this

Decree, and ASARCO’s commitment to fully

and successfully complete the requirements

of this Decree, shall constitute full

satisfaction of the claims for civil penalties

for civil violations alleged in the complaint of

the United States that occurred prior to the

date of lodging of this Decree, except as

provided in this Paragraph . . . . This release

is conditioned upon the complete and

satisfactory performance by ASARCO of its

obligations under this Decree.

1998 RCRA Decree ¶ 209 (emphasis added). The release is

expressly limited to liability with regards to the United

States’ claims for civil penalties. Yet the complaint that

prompted the parties to reach the agreement specifically

sought both civil penalties and injunctive relief—only the

latter of which could “require ASARCO to conduct

corrective action.”

Second, the 1998 RCRA Decree is replete with

references to Asarco’s continued legal exposure. For

example, in paragraph 122, under the header “Off-Site

Access,” the agreement states unequivocally that “[n]othing

in this section shall be construed to limit or otherwise affect

ASARCO’s liability and obligation to perform corrective

measures . . . .” Similarly, in setting forth a limited covenant

not to sue, paragraph 214 states that the

Decree shall not be construed as a covenant

not to sue, release, waiver or limitation of any

rights, remedies, powers and/or authorities,

ASARCO V. ATLANTIC RICHFIELD 31

civil or criminal, which EPA has under

RCRA, CERCLA, or any other statutory,

regulatory, or common law authority, except

as provided in Paragraph 209 above . . . .

Because paragraph 209 does not address—let alone

resolve—the United States’ claims for injunctive relief, the

covenant not to sue does not restrict the United States’

authority to bring an action under CERCLA §§ 106 or 107,

which could result in additional response obligations.

42 U.S.C. §§ 9606, 9607.

Lest there be any doubt, the Decree makes the point at

least three more times. Paragraph 216 states that “except as

specifically provided in Paragraph 209,” compliance with

the Decree “shall be no defense to any action commenced”

under federal or state law. 1998 RCRA Decree ¶ 216. And

the next paragraph provides that

[e]xcept as expressly provided herein,

nothing in this Decree shall constitute or be

construed as a release from any claim, cause

of action or demand in law or equity, against

any person, firm, partnership, or corporation

for any liability it may have arising out of, or

relating in any way to, the generation,

storage, treatment, handling, transportation,

release, management or disposal of any

hazardous wastes . . . found at, on, or under,

taken to or from, or migrating to, from or

through the [lead smelter and contiguous

areas].

Id. ¶ 217 (emphasis added). Finally, paragraph 137 states

that Asarco’s CERCLA liability for response costs would

32 ASARCO V. ATLANTIC RICHFIELD

not be released even if Asarco fully complied with the

Decree:

Notwithstanding compliance with the terms

of this Decree, ASARCO is not released from

liability, if any, for the costs of any response

actions taken or authorized by EPA under any

applicable statute, including CERCLA.

Simply put, the 1998 RCRA Decree did not just leave open

some of the United States’ enforcement options, it preserved

all of them. Because the Decree did not settle definitively

any of Asarco’s response obligations, it did not “resolve[]

[Asarco’s] liability.” See 42 U.S.C. § 9613(f)(3)(B).

Accordingly, Asarco could not have brought a contribution

action pursuant to the 1998 RCRA Decree and the

corresponding limitations period did not run with that

agreement. 9

9

Asarco was not without recourse to seek reimbursement for costs

incurred under the RCRA Decree. As discussed in Part III, supra, where

a § 113(f) contribution action is unavailable, a PRP may be able to bring

a § 107 “cost recovery” action against other PRPs to recoup “any . . .

necessary costs of response incurred” that result from a release of a

hazardous substance. 42 U.S.C. § 9607(a); see Bernstein, 733 F.3d at

214. Put another way, a PRP that has taken a response action but has not

entered into a settlement agreement that resolves its liability has satisfied

the criteria for bringing a § 107 action. A § 107 action has at least three

advantages and one disadvantage compared to a § 113(f)(3)(B) action:

(i) § 107(a) comes with a longer statute of limitations period than

§ 113(f)(3)(B) (six years versus three), (ii) it provides the possibility of

joint and several liability, and (iii) it comes with limited defenses—e.g.,

acts of God, acts of war, and third-party omissions. See Burlington N. &

Santa Fe Ry. Co. v. United States, 556 U.S. 599, 614 (2009) (joint and

several liability is available under § 107 unless the harms caused by

multiple entities “are capable of apportionment”); NCR Corp. v. George

ASARCO V. ATLANTIC RICHFIELD 33

Asarco “Resolved Its Liability” Under the 2009

CERCLA Decree

The district court held that Asarco’s contribution claim

for response costs incurred under the 2009 CERCLA Decree

was time-barred based on the erroneous conclusion that

Asarco could have brought its action under the 1998 RCRA

Decree. Asarco argues the district court erred because it

brought its action no more than three years after entry of the

June 2009 CERCLA Decree, which it argues “resolved its

liability” for the first time, and therefore its action is timely.

We agree with Asarco.

Asarco has a timely contribution claim under the

CERCLA Decree if three conditions are met. First, Asarco

must have brought its action within three years after the date

the settlement was judicially approved. 42 U.S.C.

§ 9613(g)(3)(B). Second, the CERCLA Decree must cover

response actions or costs of response. Id. § 9613(f)(3)(B).

And third, the CERCLA Decree must “resolve[]” Asarco’s

liability for at least some response actions or costs. Id.

Statute of limitations. Section 113(g)(3) requires a party

seeking contribution to bring its action no more than “3 years

after . . . the date of . . . entry of a judicially approved

settlement.” Id. § 9613(g)(3). The bankruptcy court

approved and entered the CERCLA Decree on June 5, 2009.

Asarco brought its contribution action on June 5, 2012. In

its denial of Atlantic Richfield’s motion to dismiss, the

A. Whiting Paper Co., 768 F.3d 682, 690 (7th Cir. 2014) (discussing

limited defenses under § 107); 42 U.S.C. § 9607(a)(4)(B) (listing

defenses). On the other hand, a party that is ineligible to bring a § 113(f)

contribution action—and therefore must resort to § 107(a)—does not

enjoy protection from other PRPs’ contribution actions. See 42 U.S.C.

§ 9613(f)(2).

34 ASARCO V. ATLANTIC RICHFIELD

district court held that Asarco’s claim was timely. Dist. Ct.

Dkt. 49, at 6–7. On appeal, Asarco reiterates that its action

“was filed within three years of a settlement that did in fact

resolve Asarco’s liability at the Site.” Conspicuously absent

from Atlantic Richfield’s brief is any contention that the

district court erred on this issue. We therefore deem

abandoned Atlantic Richfield’s argument that Asarco’s

claim is time-barred as measured against the CERCLA

Decree. See Collins v. City of San Diego, 841 F.2d 337, 339

(9th Cir. 1988) (issue abandoned where not raised on

appeal).

Even if Atlantic Richfield did not abandon this claim, we

would conclude Asarco’s claim is timely. Under

§ 113(g)(3), the day of the event that triggers the period is

excluded for purposes of computing the period’s end date.

See Asarco, LLC v. Union Pac. R.R. Co., 765 F.3d 999,

1007–08 (9th Cir. 2014). Therefore, the first day of the

period would be June 6, 2009, and the last day for filing

would be June 5, 2012. See id. at 1007. Asarco met this

deadline.

Response actions or costs. The CERCLA Decree

required Asarco to pay $99.294 million (plus other

expenses) into a custodial trust account to clean up the East

Helena Site. The account covers expenses for past and

future response actions, including, inter alia, “remedial

actions, removal actions, [and] corrective action” at the Site.

The CERCLA Decree also settled all obligations under the

1998 RCRA Decree, which, as described in Part IV.B, supra,

itself addressed response actions. It is therefore beyond cavil

that the CERCLA Decree covers “response” actions or costs

of response.

Resolution of liability. Asarco argues that the CERCLA

Decree “unequivocally” resolved its liability for all of its

ASARCO V. ATLANTIC RICHFIELD 35

response costs at the Site. Atlantic Richfield does not

directly address this issue, but instead asserts that the

CERCLA Decree did not “trigger a new limitations period

for costs incurred under the 1998 [RCRA] Consent Decree”

because the CERCLA Decree served only as a “funding

mechanism” for Asarco’s “preexisting commitments.”

Atlantic Richfield asserts that deeming Asarco’s

contribution claim timely would work an injustice by

allowing Asarco to incur cleanup obligations, sit on its rights

and do nothing for years, and then pursue a stale claim

through bankruptcy by virtue of its own indolence.

We agree with Asarco and hold that the CERCLA

Decree “resolved” its liability for all of its response costs at

the Site. 10 For example, the Decree sets forth a covenant not

to sue that is immediately effective and covers all of

Asarco’s response obligations. The covenant provides, in

relevant part, that

10

While the district court did not address whether the CERCLA

Decree resolved Asarco’s liability, we need not remand to the district

court for consideration of this issue in the first instance. Whether the

CERCLA Decree resolved Asarco’s liability is an “issue fairly included

within the question presented,” namely, whether the district court erred

in holding that Asarco could not maintain a contribution action under the

CERCLA Decree. See Lewis v. Clarke, 137 S. Ct. 1285, 1293 n.3 (2017).

It was also raised before the district court, see Asarco Opp. to Mot. for

Summary Judgment, Dist. Ct. Dkt. 161, at 11 (“The CERCLA Decree

resolved Asarco’s CERCLA liability at East Helena for the first time.”),

requires no supplementation of the record, and is pressed by Asarco on

appeal. We therefore proceed to the merits and decide whether the

CERCLA Decree resolved Asarco’s liability. See Lewis, 137 S. Ct. at

1293 n.3.

36 ASARCO V. ATLANTIC RICHFIELD

upon the Effective Date and Debtors’ 11 full

funding of all Custodial Trust Accounts . . .

the United States [and Montana] covenant[]

not to sue or assert any civil claims or civil

causes of action against [Asarco] . . . pursuant

to Sections 106 and 107(a) of CERCLA,

42 U.S.C. §§ 9606, 9607(a), and RCRA,

42 U.S.C. § 6901, et seq., Sections 301(a),

309(b), and 311 of CWA, 33 U.S.C.

§§ 1311(a), 1319(b), and 1321, or any similar

state law, including any liabilities or

obligations asserted in the United States’

[and Montana’s] Proofs of Claim with

respect to the East Helena Site.

CERCLA Decree ¶¶ 28–29. Thus, so long as Asarco funds

the Custodial Trust Accounts, 12 it is released from liability

for all response obligations under prior settlements,

including “corrective measures” under the RCRA Decree.

Other parts of the Decree are similarly all-encompassing.

For example, the section setting forth reservations of rights

by the government is, in pertinent part, limited to Asarco’s

“future acts.” Under that provision, the United States and

Montana “specifically reserve . . . liability for[, inter alia,]

response costs [and] response actions . . . under CERCLA,

RCRA, CWA, [the Montana Comprehensive Environmental

Cleanup and Responsibility Act] or any other law for

11

Asarco is a “debtor” under the agreement.

12

Asarco asserts that it has funded the custodial trust account, and

Atlantic Richfield’s brief concedes the point. We assume that Asarco

has complied with the CERCLA Decree’s payment obligations with

respect to the East Helena Site.

ASARCO V. ATLANTIC RICHFIELD 37

Debtors’ . . . future acts creating liability” under those

statutes “that occur after the Closing Date.” CERCLA

Decree ¶ 39 (emphasis added). The section expressly does

not reserve any rights to hold Asarco liable under any legal

authority with respect to then-existing contamination

beyond its payment obligations under the agreement. See id.

The agreement also caps Asarco’s “total financial

obligations” for past contamination at the amount specified

in the agreement. CERCLA Decree ¶ 8.h. While it leaves

open the possibility that Asarco may owe certain additional

costs, those costs do not include response costs. Id. In other

words, Asarco’s financial liability was “resolved”—i.e.,

determined with finality—under the agreement itself; the

agreement did not expose Asarco to future liability for past

hazardous waste releases.

The agreement also provides Asarco with protection

against contribution actions by non-settling parties, as

provided under CERCLA § 113(f)(2), 42 U.S.C.

§ 9613(f)(2). CERCLA Decree ¶ 43. Contribution

protection applies only to “[a] person who has resolved its

liability . . . in an administrative or judicially approved

settlement.” 42 U.S.C. § 9613(f)(2) (emphasis added). The

agreement’s incorporation of that provision is further

evidence that Asarco “resolved its liability” under the

agreement. See Hobart, 758 F.3d at 768–69 (incorporation

of provision immunizing a settling PRP from contribution

weighed in favor of finding that the agreement resolved its

liability).

Finally, we consider Atlantic Richfield’s concern that

deeming Asarco’s contribution claim timely would allow

Asarco to benefit from its own alleged neglect under the

RCRA Decree. We sympathize with Atlantic Richfield’s

position but cannot agree with its conclusion. Whether a

38 ASARCO V. ATLANTIC RICHFIELD

right of contribution is available does not depend on whose

ox gets gored: the fact that Asarco and not some other party

was liable under the RCRA Decree does not change the fact

that that agreement did not give rise to a right of

contribution, whereas the CERCLA Decree did.

In sum, the CERCLA Decree constitutes a “firm decision

about” Asarco’s liability that lends it the requisite degree of

finality. See Bernstein, 733 F.3d at 211 n.12. We therefore

hold that Asarco has a cognizable claim for contribution

under CERCLA § 113(f)(3)(B) because it brought a timely

action under an agreement that resolved its liability. 13

V. Conclusion

We hold that the 1998 RCRA Decree did not resolve

Asarco’s liability for at least some of its response obligations

under that agreement. It therefore did not give rise to a right

to contribution under CERCLA § 113(f)(3)(B). By contrast,

the 2009 CERCLA Decree did resolve Asarco’s liability,

and Asarco has brought a timely action for contribution

under that agreement. We therefore vacate the district

court’s grant of summary judgment and remand for further

proceedings consistent with this opinion. On remand, the

district court should determine whether Asarco is entitled to

any financial contribution from Atlantic Richfield and, if so,

how much.

13

We express no opinion on the scope of contribution and protection

rights where a settlement agreement, unlike this CERCLA Decree,

resolves a PRP’s liability only for some of its response obligations. Cf.

Whittaker, 825 F.3d at 1008 (a party may not seek contribution for

expenses that are not “at issue in the triggering . . . settlement”).

ASARCO V. ATLANTIC RICHFIELD 39

Costs are awarded to the Appellant.

VACATED and REMANDED.