Government of Guam v. United States

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 12, 2019 Decided February 14, 2020

No. 19-5131

GOVERNMENT OF GUAM,

APPELLEE

v.

UNITED STATES OF AMERICA,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:17-cv-02487)

Rachel Heron, Attorney, U.S. Department of Justice,

argued the cause for appellant United States of America. With

her on the briefs were Eric Grant, Deputy Assistant Attorney

General, and Evelyn Ying and Michael Augustini, Attorneys.

John D.S. Gilmour argued the cause for plaintiff-appellee.

With him on the brief were Bezalel A. Stern, William J.

Jackson, and Mark Donatiello. Fabio Dworschak entered an

appearance.

Before: HENDERSON and TATEL, Circuit Judges, and

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

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TATEL, Circuit Judge: For nearly half a century, the United

States Navy operated a landfill on the island of Guam. Home

to discarded munitions, chemicals, and everyday garbage, the

so-called Ordot Dump lacked any sort of environmental

safeguards. At bottom, this case concerns whether Guam or the

Navy is financially responsible for the environmental hazards

arising from the Ordot Dump. The answer to that question turns

on the interaction between two provisions of the

Comprehensive Environmental Response, Compensation, and

Liability Act (CERCLA): section 107, the act’s “cost-

recovery” provision, and section 113, its “contribution”

provision. See 42 U.S.C. §§ 9607, 9613(f). If Guam must

proceed under section 113, then its suit against the Navy for

costs related to the dump is now time-barred. But if it may

utilize section 107, then its suit remains timely. As explained

below, we conclude that a 2004 consent decree with EPA

triggered Guam’s right to pursue a contribution claim under

section 113, precluding it from now pursuing a claim under

section 107. We therefore reverse the district court’s contrary

conclusion and remand with instructions to dismiss.

I.

Congress enacted CERCLA, 42 U.S.C. §§ 9601 et seq., “in

response to the serious environmental and health risks posed

by industrial pollution,” United States v. Bestfoods, 524 U.S.

51, 55 (1998). Seeking to enable the “prompt cleanup of

hazardous waste sites and to ensure that responsible parties foot

the bill,” General Electric Co. v. Jackson, 610 F.3d 110, 114

(D.C. Cir. 2010), CERCLA directs that any potentially

responsible party— “PRP” for short—“shall be liable” for the

costs associated with the release of hazardous substances and

subsequent cleanup of polluted sites, CERCLA § 107(a).

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Remediation at Superfund sites is, unsurprisingly,

expensive. Central to CERCLA’s operation is a mechanism for

entities to seek recoupment of any cleanup costs incurred from

other responsible parties. As originally drafted, CERCLA

provided that “any person” potentially responsible for

hazardous waste “shall be liable for . . . all costs of removal or

remedial action incurred by the United States Government or a

State or an Indian tribe,” CERCLA § 107(a)(4)(A), as well as

“any other necessary costs of response incurred by any other

person,” id. § 107(a)(4)(B) (emphasis added). While CERCLA

“did not mandate ‘joint and several’ liability in every case,”

Burlington Northern & Santa Fe Railway Co. v. United States,

556 U.S. 599, 613 (2009), “[t]he practical effect of placing the

burden on defendants has been that responsible parties rarely

escape joint and several liability,” O’Neil v. Picillo, 883 F.2d

176, 178–79 (1st Cir. 1989), meaning that any one PRP may be

held responsible for the entire cost of a cleanup.

Although multiple entities may be responsible for a

superfund site, only one may have actually “incurred” “costs of

response”—a necessary predicate to bringing a section 107

claim. CERCLA § 107(a)(4)(A), (B). Following CERCLA’s

passage in 1980, “litigation arose over whether § 107, in

addition to allowing the Government and certain private parties

to recover costs from PRPs, also allowed a PRP that had

incurred response costs”—that is, a PRP that had paid out but

not actually done a cleanup itself—“to recover costs from other

PRPs.” Cooper Industries, Inc. v. Aviall Services, Inc., 543

U.S. 157, 161 (2004). At common law, tortfeasors like PRPs

were typically entitled to “contribution”—a “right to collect

from joint tortfeasors when, and to the extent that, the tortfeasor

has paid more than his or her proportionate share to the injured

party, the shares being determined as percentages of causal

fault.” Contribution, Black’s Law Dictionary (11th ed. 2019).

But as originally passed, “CERCLA contained no provision

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expressly providing for a right of action for contribution;” in

fact, it made no mention of “contribution” at all. Cooper, 543

U.S. at 162.

Congress addressed this gap in the statutory scheme when

it amended CERCLA through the Superfund Amendments and

Reauthorization Act of 1986, Pub. L. 99–499, 100 Stat. 1613.

Specifically, it added a new section to the Act—section 113—

which “provide[d] two express avenues for contribution.”

Cooper, 543 U.S. at 167. The first, section 113(f)(1), provides

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

who is liable or potentially liable under section [107(a)] of this

title, during or following any civil action . . . under section

[107(a)] of this title.” CERCLA § 113(f)(1). The second new

avenue, section 113(f)(3)(B), provides that a party that “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.” Section 113 also creates special incentives for

PRPs to settle with enforcement authorities. Although that

section broadly allows PRPs to seek contribution from other

PRPs, “[a] person who has resolved its liability to the United

States or a State in an administrative or judicially approved

settlement shall not be liable for claims for contribution

regarding matters addressed in the settlement.” Id. § 113(f)(2).

Settlement with EPA or state authorities therefore inoculates a

party from further contribution liability.

The upshot is that CERCLA now offers two potential

causes of action for an entity seeking recovery from a PRP: a

section 107 “cost-recovery” action, available for recoupment

of cleanup costs, and a section 113(f) “contribution” action,

available for recoupment of funds paid out pursuant to a section

107 action, a settlement, or another contribution action. Central

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to this case, the statute of limitations for a contribution action

is three years, see CERCLA § 113(g)(3); the statute of

limitations for a remedial section 107 action is six, id.

§ 113(g)(2)(B).

II.

Nearly a century before CERCLA’s passage, the United

States captured the island of Guam following the Spanish-

American War. See Paul Carano & Pedro C. Sanchez, A

Complete History of Guam 169–83 (1964) (describing how

Guam became an American possession). From 1903 until

World War II, the United States treated Guam as a US Naval

ship—the “USS Guam”—and maintained military rule until

the passage of the Guam Organic Act in 1950. Robert F.

Rogers, Destiny’s Landfall: A History of Guam 126, 226

(1995). That act marked the formal transfer of power from the

United States to Guam’s newly formed civilian government, id.

at 226, but until the 1960s, visiting Guam required a military

security clearance, see Exec. Order No. 11045, 3 C.F.R. 238,

238–39 (1962) (discontinuing the Guam Island Naval

Defensive Sea Area and Guam Island Naval Airspace

Reservation). Guam remained, as it had been since the Treaty

of Paris in 1898, an “unincorporated territory of the United

States.” 48 U.S.C. § 1421a.

Against this colonial backdrop, the Navy constructed and

operated the Ordot Dump for the disposal of municipal and

military waste sometime in the 1940s. Even after relinquishing

sovereignty over the island, however, the Navy continued to

take advantage of the dump. Throughout the Korean and

Vietnam Wars, the Navy used the Ordot Dump for the disposal

of munitions and chemicals, allegedly including

Dichlorodiphenyltrichloroethane—DDT—and Agent Orange,

Am. Compl. ¶ 11. It was “the only sited and operational dump

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on Guam” until the 1970s, and the only public landfill on the

island until its closure in 2011. Id. And as the Navy continued

to use the Ordot Dump, it continued growing; “[w]hat was once

a valley,” the District Court of Guam explained, “is now at least

a 280-foot mountain of trash.” United States v. Guam, No.02-

00022, slip op. at 1 (D. Guam Jan. 24, 2008).

Despite its extensive use, the Ordot Dump lacked basic

environmental safeguards. “[U]nlined on its bottom and

uncapped at its top,” the landfill absorbed rain and surface

water, which percolated through the landfill and mixed with

contaminants. Am. Compl. ¶ 12. These contaminants released

into the nearby Lonfit River, which flows into the Pago River,

and ultimately into the Pacific Ocean at Pago Bay. Id.

The Ordot Dump has long attracted the attention of the

United States as regulator. EPA added the Ordot Dump to its

National Priorities List in 1983, and, in 1988, issued a Record

of Decision designating the Navy as a potentially responsible

party for the site. Id. ¶ 13. But having relinquished sovereignty

over the island, the Navy no longer owned and operated the

Ordot Dump—Guam did. And, beginning in 1986, EPA

repeatedly ordered Guam to devise plans for containing and

disposing of waste at the landfill.

Unsatisfied with Guam’s remediation attempts, EPA sued

Guam in 2002 under the Clean Water Act, 33 U.S.C. §§ 1251

et seq., asserting that Guam violated that act by “discharging

pollutants . . . into waters of the United States without obtaining

a permit.” Complaint for Injunctive Relief, United States v.

Guam, No. 02-00022, at ¶ 26 (D. Guam) (CWA Compl.), Joint

Appendix (J.A.) 86. As EPA explained in its complaint, the

Clean Water Act defines “waters of the United States” as

“including the territorial seas,” id. at ¶ 14, J.A. 85 (quoting 33

U.S.C. § 1362(7), and it alleged that Guam “has routinely

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discharged untreated leachate from the Ordot [Dump] into the

Lonfit River and two of its tributaries,” id. at ¶ 21, J.A. 85. EPA

sought an injunction ordering Guam to comply with the Clean

Water Act, by, among other things, “submit[ting] plans and a

compliance schedule for a cover system for the Ordot Landfill”

and “complet[ing] construction of the cover system to

eliminate discharges of untreated leachate.” Id. ¶ 29, J.A. 86.

Rather than litigate these claims, Guam and EPA entered

into a consent decree in 2004, which the District Court of Guam

approved. See Consent Decree, United States v. Guam, No. 02-

00022 (D. Guam) (Consent Decree), J.A. 90. That Decree

required Guam, among other things, to pay a civil penalty,

close the Ordot Dump, and design and install a “dump cover

system.” Id. at 5–12, J.A. 94–101. The Decree expressly states

that it “shall apply and be binding upon the Government of

Guam . . . and on the United States on behalf of U.S. EPA,”

and was “based on the pleadings, before taking testimony or

adjudicating any issue of fact or law, and without any finding

or admission of liability against or by the Government of

Guam,” id. at 3, J.A. 92. Although cleanup continues, Guam

officially closed the Ordot Dump in 2011 pursuant to the

Decree.

Guam initiated this action against the United States in

2017, arguing that the Navy was responsible for the Ordot

Dump’s contamination and seeking to recoup its landfill-

closure and remediation costs. Alleging that the costs of the

Ordot Dump’s required remediation would “exceed

approximately $160,000,000,” Am. Compl. ¶ 15, Guam

brought two causes of action relevant here: a CERCLA section

107(a) claim seeking “removal and remediation costs” related

to the landfill, id. ¶ 25, and, “[i]n the alternative,” a section

113(f) contribution action, id. ¶ 31.

8

The United States moved to dismiss under Federal Rule of

Civil Procedure 12(b)(6), arguing that Guam could not avail

itself of CERCLA section 107(a) because section 113(f)(3)(B)

is “the exclusive CERCLA remedy for the costs a liable party

is compelled to incur pursuant to a judicially-approved

settlement with the United States.” Mot. to Dismiss 18.

Pointing to the 2004 Consent Decree, the United States argued

that Guam had resolved its liability for a response action, and

so had to proceed under section 113 rather than 107. And,

because CERCLA section 113 “imposes a three-year statute of

limitations on contribution claims” that runs from a consent

decree’s entry, the United States argued that Guam was time-

barred from pursuing that claim. Id. at 17, J.A. 61.

The district court, accepting the premise that “Guam is

permitted to proceed against the United States for full cost

recovery under section 107(a) only if Guam’s right to

contribution under section 113(f)(3)(B) has not been

triggered,” explained that “the key question[] that the pending

motion to dismiss presents is whether the 2004 Consent Decree

‘resolve[d] [Guam’s] liability’ for the response action or

response costs that Guam undertook with respect to the Ordot

Landfill and also qualifies as a ‘settlement’ within the meaning

of” CERCLA’s contribution provision. Guam v. United States,

341 F. Supp. 3d 74, 84 (D.D.C. 2018) (quoting CERCLA

§ 113(f)(3)(B)) (alterations in original). In a thorough opinion,

the district court explained that “whether or not an agreement

for the removal or remediation of hazardous waste ‘resolves’

liability for section 113(f)(3)(B) purposes turns on the terms of

the agreement,” and concluded that “the 2004 Consent Decree

did not resolve Guam’s liability for the Ordot Landfill

cleanup.” Id. Because the Decree failed to meet the “statutorily

prescribed conditions for bringing a contribution claim under

section 113(f)(3)(B),” the court ruled that Guam could

9

maintain its section 107(a) claim against the United States and

denied the United States’ motion to dismiss. Id.

The United States sought interlocutory appeal of the

district court’s order pursuant to 28 U.S.C. § 1292(b). The

district court, noting that “the courts of appeals diverge . . . with

respect to how one best interprets agreement language” of the

kind presented here, concluded that “there is substantial ground

for difference of opinion regarding at least one controlling

issue of law . . . , and that allowing the United States to appeal

. . . could materially advance this litigation,” and certified the

interlocutory appeal of the order. Guam v. United States, No.

1:17-CV-2487, 2019 WL 1003606, at *1 (D.D.C. Feb. 28,

2019) (internal quotation marks omitted). We granted the

request for interlocutory review. “We review de novo the

District Court’s legal conclusions denying a motion to

dismiss.” Liff v. Office of Inspector General for U.S.

Department of Labor, 881 F.3d 912, 918 (D.C. Cir. 2018).

III.

The first question we must decide, as it underlies this

dispute, is whether CERCLA sections 107 and 113 are

mutually exclusive. That is, if a party incurs costs pursuant to

a settlement and therefore has a cause of action under section

113, is it precluded from seeking cost-recovery under section

107?

While the differences between CERCLA sections 107 and

113 seem clear in theory, the supposedly sharp distinction

between cost-recovery and contribution does not always play

out in practice. Although the two actions are separate, some

situations ostensibly fall under both CERCLA provisions. As

the Supreme Court explained in United States v. Atlantic

Research Corp., 551 U.S. 128 (2007), “a PRP may sustain

10

expenses pursuant to a consent decree” that involve cleanup

costs. Id. at 139 n.6. “In such a case, the PRP does not incur

costs voluntarily,” as one would while undertaking a cleanup,

“but [also] does not reimburse the costs of another party,” as

one would in a traditional contribution action. Id. Having

settled with the Government, the PRP is authorized to pursue a

section 113(f)(3)(B) contribution action, but because it has

incurred cleanup costs, the recoupment of those funds would

arguably also fall within section 107. In other words, given that

“neither remedy swallows the other,” id., both cost-recovery

and contribution actions appear available.

In Atlantic Research, the Supreme Court “d[id] not decide

whether these compelled costs of response are recoverable

under § 113(f), § 107(a), or both.” Id. To date, neither have we.

But “every federal court of appeals to have considered the

question since Atlantic Research . . . has said that a party who

may bring a contribution action for certain expenses must use

the contribution action, even if a cost recovery action would

otherwise be available.” Whittaker Corp. v. United States, 825

F.3d 1002, 1007 (9th Cir. 2016); see id. at 1007 n.5 (collecting

cases).

Today we join our sister circuits. The entire purpose of

section 113(f)(3)(B) is to “permit[] private parties to seek

contribution after they have settled their liability with the

Government.” Atlantic Research Corp., 551 U.S. at 132 n.1.

Allowing a PRP that has settled with the government to instead

seek recoupment through a section 107 cost-recovery claim

would render section 113(f)(3)(B) superfluous; if a PRP could

choose whether to sue under section 107 or section 113, “a

rational PRP would prefer to file an action under § 107(a)[] in

every case.” Hobart Corp. v. Waste Management of Ohio, Inc.,

758 F.3d 757, 767 (6th Cir. 2014). Like any statute, CERCLA

must be “read as a whole,” King v. St. Vincent’s Hospital, 502

11

U.S. 215, 221 (1991), and we decline to interpret section

113(f)(3)(B) as providing superfluous relief to a party that has

settled with the United States or a State.

Having concluded that section 113(f)(3)(B) and section

107 are mutually exclusive, we must address one more

threshold issue. Section 113(f)(3)(B) reads: “A person who has

resolved its liability to the United States . . . for some or all of

a response action or for some or all of the costs of such action

in a[] . . . judicially approved settlement may seek contribution

from any person who is not party to a settlement referred to in

paragraph (2).” CERCLA § 113(f)(3)(B) (emphasis added).

Paragraph (2), in turn, provides that “[a] person who has

resolved its liability to the United States or a State in an

administrative or judicially approved settlement shall not be

liable for claims for contribution regarding matters addressed

in the settlement.” Id. § 113(f)(2). Here, we face an unusual

situation: the United States, through the Navy, is a potentially

responsible party, but the United States, through EPA, is also

the regulator that has brought the enforcement action. At first

blush, the “not party to a settlement” language would seem to

preclude a contribution suit by Guam against the United States

regardless of whether the settlement otherwise triggers

section 113(f)(3)(B); after all, the United States is a “party to a

settlement” with Guam.

CERCLA “is not a model of legislative draftsmanship,”

Exxon Corp. v. Hunt, 475 U.S. 355, 363 (1986), and, read

literally, section 113(f)(3)(B)’s “not party to a settlement”

language could create non-sensical results. For example,

imagine hypothetical Company X settles with EPA for the

costs of response actions for a contaminated site in California

in 1990. By virtue of becoming “party to a settlement,”

Company X would gain immunity from any future section

113(f)(3)(B) action, even if that action were to arise decades

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later for an entirely unrelated site in Massachusetts. The very

first time an agency of the United States settled with a

potentially responsible party at any site, moreover, that agency

would become wholly immune to section 113(f)(3)(B) claims

at every site where it may be a responsible party. “A fair

reading of legislation demands a fair understanding of the

legislative plan,” King v. Burwell, 135 S. Ct. 2480, 2496

(2015), and given that section 113 clearly seeks to incentivize

private parties to settle with the United States, we decline to

read the “not party to a settlement” language as forever

foreclosing contribution actions against any party that has ever

settled any qualifying claim.

The United States offers two alternative interpretations.

First, it argues that reading sections 113(f)(2) and 113(f)(3)(B)

together demonstrates that the phrase “any person who is not

party to a settlement referred to in paragraph (2)” simply means

any person not insulated from such a contribution claim by a

section 113(f)(2) settlement. Appellant’s Suppl. Br. 7.

Alternatively, it argues that, even if the phrase means that a

contribution action could not be brought against any party to

any settlement whatsoever, it does not matter here because the

Consent Decree was a settlement between Guam and the EPA

and Guam’s contribution action is against the Navy—a

different federal agency. Id. at 7-9. Because we agree with the

first alternative, we need not address the second.

Congress enacted Section 113(f) to bring PRPs “to the

bargaining table at an early date.” Asarco LLC v. Atl. Richfield

Co., 866 F.3d 1108, 1117 (9th Cir. 2017) (quoting Whittaker

Corp., 825 F.3d at 1013 (Owens, J., concurring)). Section

113(f) accomplishes this goal by providing two benefits to such

PRPs: a “defensive benefit” to PRPs who decide to resolve

their liability by entering a settlement with the United States or

with a State and are thereby protected against contribution

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actions brought by other PRPs regarding matters included in

the settlement, see CERCLA § 113(f)(2); and an “offensive

benefit” to those same PRPs who, again, in exchange for

resolving their liability, can pursue other PRPs for contribution,

see id. § 113(f)(3)(B).

Reading these two sections in pari materia, we interpret

the phrase “any person who is not party to a settlement referred

to in paragraph (2)” in section 113(f)(3)(B) to mean that one

benefit does not cancel out the other. See Motion Picture

Association of America, Inc. v. F.C.C., 309 F.3d 796, 801 (D.C.

Cir. 2002) (“Statutory provisions in pari materia normally are

construed together to discern their meaning.”). Section

113(f)(3)(B) provides that a person who has resolved its

liability with the United States or a State can pursue a

contribution action against any person but it notes that the right

to seek contribution does not erase the protection provided

under section 113(f)(2). For example, if Company A resolves

its liability for a response action with the United States, it is

protected under section 113(f)(2) from future contribution

actions related to its settlement with the United States. The fact

that Company B subsequently also resolves its liability to the

United States in a related action—and can thereby initiate a

contribution action against “any person” under section

113(f)(3)(B)—cannot mean that Company A’s protection

under section 113(f)(2) is forfeited, leaving it vulnerable to a

contribution suit by Company B. This is what the phrase “any

person who is not party to a settlement referred to in paragraph

(2)” clarifies. Another way to view the two provisions working

in tandem is to think of the above hypothetical in reverse. As

the Third Circuit has explained, “[i]t appears that the statute

allows the government to immunize a late settlor from an early

settlor’s contribution suit by settling with the government.”

United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1186 (3d

Cir. 1994); see also J. Whitney Pesnell, The Contribution Bar

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in CERCLA Settlements and Its Effect on the Liability of

Nonsettlors, 58 La. L. Rev. 167, 231 (1997) (“[Section

113(f)(2)] provides, in no uncertain terms, that parties who

have resolved their liability to the government in a judicially

approved settlement, such as the parties to the second

settlement, shall not be liable for claims for contribution

regarding matters addressed in the settlement.”).

This interpretation is supported by the fact that Congress

chose to reference “paragraph (2)” within section 113(f)(3)(B).

“[W]e are obliged to give effect, if possible, to every word

Congress used.” Reiter v. Sonotone Corp., 442 U.S. 330, 339

(1979). In section 113(f)(3)(B), Congress did not state “any

person who is not party to a settlement” alone; instead, it

specifically stated “any person who is not a party to a

settlement referred to in paragraph (2).” CERCLA

§ 113(f)(3)(B) (emphasis added). A settlement included in

“paragraph (2)” means a settlement entered into by a person to

resolve its liability to the United States or a State in order to

secure protection from a contribution action. Therefore, giving

effect to section 113(f)(3)(B)’s express reference to section

113(f)(2) and reading that section in harmony with section

113(f)(3)(B), we think it quite clear that section 113(f)(3)(B)

allows a person to seek contribution from any person other than

those persons protected by their own settlement under section

113(f)(2). Put differently, a person may not use section

113(f)(3)(B) to seek contribution against a person who has

resolved its liability through a settlement agreement under

section 113(f)(2) to the extent the contribution action involves

matters addressed in that settlement.

Here, the “any person who is not a party” language in

section 113(f)(3)(B) does nothing to prohibit Guam’s

contribution action. Guam is not attempting to pursue a

contribution action against a PRP that has already resolved its

15

liability to the United States or a State and is thus protected by

section 113(f)(2). The key inquiry, then, is this: did the 2004

Consent Decree “resolve [Guam’s] liability” for a response

action within the meaning of section 113(f)(3)(b), thus

triggering Guam’s right to seek contribution and precluding it

from seeking cost-recovery under section 107? It is to that

question we now turn.

A.

In order to trigger CERCLA section 113(f)(3)(B), a party

must have “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 a[] . . . judicially approved settlement.”

CERCLA § 113(f)(3)(B). Guam contends that the 2004

Consent Decree cannot qualify as a settlement under CERCLA

because it settled an action brought by EPA under the Clean

Water Act, not CERCLA. In Guam’s view, the Consent Decree

“requires reference to CERCLA to trigger a Section

113(f)(3)(B) claim.” Appellee’s Br. 26 n.11.

“Whether a non-[CERCLA] settlement agreement may

give rise to a contribution action has split the circuits,” three to

one. Asarco, 866 F.3d at 1119. As the Ninth Circuit recently

explained, both it and the Third Circuit have concluded that

“Congress did not intend to limit § 113(f)(3)(B) to response

actions and costs incurred under CERCLA settlements,” and

that “a non-[CERCLA] settlement agreement may form the

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

Id. at 1120–21; see also Trinity Industries, Inc. v. Chicago

Bridge & Iron Co., 735 F.3d 131, 136 (3d Cir. 2013) (same).

The Seventh Circuit has recently concluded the same. See

Refined Metals Corp. v. NL Industries Inc., 937 F.3d 928, 932

(7th Cir. 2019) (“[Section] 113(f)(3)(B) . . . does not limit

covered settlements to those that specifically mention

16

CERCLA.”). The Second Circuit has gone the other way,

holding that section 113(f)(3)(B) creates a “contribution right

only when liability for CERCLA claims . . . is resolved.”

Consolidated Edison Co. of New York, Inc. v. UGI Utilities,

Inc., 423 F.3d 90, 95 (2d Cir. 2005). More recently, however,

the Second Circuit cast doubt on that holding, noting that EPA

“understandably takes issue” with that case and that “there is a

great deal of force to [its] argument.” Niagara Mohawk Power

Corp. v. Chevron USA, Inc., 596 F.3d 112, 126 n.15 (2d Cir.

2010).

We agree with the Third, Seventh, and Ninth Circuits that

section 113(f)(3)(B) does not require a CERCLA-specific

settlement. As the Seventh and Ninth have pointed out, another

provision of section 113—paragraph (f)(1)—expressly

requires that a party first be sued under CERCLA section 106

or 107 before pursuing contribution. See CERCLA § 113(f)(1)

(“Any person may seek contribution from any other person

who is liable or potentially liable under section [1]07(a) of this

title, during or following any civil action under section [1]06

of this title or under section [1]07(a) of this title.”) (emphasis

added). But section 113(f)(3)(B) contains no such CERCLA-

specific language, and “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 citation, alterations and quotation marks omitted). We

therefore conclude that a settlement agreement can trigger

section 113(f)(3)(B) even if it never mentions CERCLA.

B.

But that conclusion gets us only so far. The fact that a non-

CERCLA settlement can trigger section 113(f)(3)(B) tells us

17

little about whether the 2004 Consent Decree, in fact,

“resolve[d] [Guam’s] liability” for some or all of the response

action or response costs that Guam undertook with respect to

the Ordot Dump. “Whether or not liability is resolved through

a settlement” is unanswerable by a “universal rule;” it instead

requires examination of “the terms of the settlement on a case-

by-case basis.” Bernstein v. Bankert, 733 F.3d 190, 213 (7th

Cir. 2013). Because “a consent decree . . . is essentially a

contract,” a court’s “construction of a consent decree is

essentially a matter of contract law,” Segar v. Mukasey, 508

F.3d 16, 21 (D.C. Cir. 2007) (internal quotation marks

omitted), and where, as here, that consent decree binds the

United States, that contract is “governed exclusively by federal

law,” Boyle v. United Technologies Corp., 487 U.S. 500, 504

(1988).

We begin with CERCLA’s text. The phrase “resolved its

liability” is nowhere defined in the statute, meaning our

interpretation of these words should start “with their ordinary

meaning.” BP American Production Co. v. Burton, 549 U.S.

84, 91 (2006). The word “resolve” usually means “to deal with

successfully,” “reach a firm decision about,” or “work out the

resolution” of something. Resolve, Merriam-Webster’s

Collegiate Dictionary 997 (10th ed. 1997). Our sister circuits

have likewise concluded that in the context of section

113(f)(3)(B), “resolved” means “decided, determined, or

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

at 211, that is, a “firm decision” that is no longer “susceptible

to further dispute or negotiation,” Asarco, 866 F.3d at 1122

(internal quotation marks omitted). The word “[l]iability,” in

turn, means an “obligat[ion] according to law or equity.”

Liability, Merriam-Webster’s Collegiate Dictionary 670 (10th

ed. 1997); see also Liability, Black’s Law Dictionary (11th ed.

2019) (“the quality, state, or condition of being legally

obligated or accountable; legal responsibility to another or to

18

society, enforceable by civil remedy or criminal punishment.”);

Asarco, 866 F.3d at 1124 (“a settlement agreement must

determine a PRP's compliance obligations”) (emphasis added).

Taking the phrase “resolved its liability” as a whole, we think

it clear that “a PRP’s liability must be decided, determined, or

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

Bernstein, 733 F.3d at 212 (emphasis in original removed).

So far, so good—but liability for what? Recall that

section 113(f)(3)(B) kicks in where a party has resolved its

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

all “of the costs of such action.” CERCLA § 113(f)(3)(B)

(emphasis added). As Guam readily admits, “‘[r]esponse’ is a

term of art in CERCLA,” Appellee’s Br. 9, and it entails a wide

range of actions. Specifically, “response” is defined as any

“removal . . . and remedial action; [and] all such terms

(including the terms ‘removal’ and ‘remedial action’) include

enforcement activities related thereto.” CERCLA § 101(25).

“Removal,” in turn, is defined as “the cleanup or removal of

released hazardous substances from the environment,” “such

actions as may be necessary to monitor, assess, and evaluate

the release or threat of release of hazardous substances,” “the

disposal of removed material,” or “other actions as may be

necessary to prevent, minimize, or mitigate damage to the

public health or welfare or to the environment.” Id. § 101(23).

And “remedy” or “remedial action” means “actions consistent

with permanent remedy taken instead of or in addition to

removal actions in the event of a release or threatened release

of a hazardous substance into the environment,” or 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.

§ 101(24). And there is more: remedial action includes

“storage, confinement, perimeter protection using dikes,

trenches, or ditches, clay cover, neutralization, cleanup of

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released hazardous substances and associated contaminated

materials, recycling or reuse, diversion, destruction,

segregation of reactive wastes, dredging or excavations,” as

well as the “repair or replacement of leaking containers,

collection of leachate and runoff, onsite treatment or

incineration, provision of alternative water supplies, and any

monitoring reasonably required to assure that such actions

protect the public health and welfare and the environment.” Id.

Section 113(f)(3)(B) comes into play, therefore, when a party

has resolved its liability for “some or all” of any of the above

actions.

By its plain terms, the 2004 Consent Decree “resolve[d]”

Guam’s liability for “some . . . of a response action.” The

Consent Decree provides that it “shall be in full settlement and

satisfaction of the civil judicial claims of the United States

against the Government of Guam as alleged in the Complaint

filed in this action.” Consent Decree ¶ 45, J.A. 112. EPA’s

Complaint, in turn, sought an injunction requiring Guam to

comply with the Clean Water Act, by, among other things,

“submit[ting] plans and a compliance schedule for a cover

system for the Ordot Landfill” and for “complet[ing]

construction of the cover system to eliminate discharges of

untreated leachate.” CWA Complaint ¶ 29, J.A. 86. The

Consent Decree further obligates Guam to design and install a

“dump cover system.” Consent Decree ¶ 8, J.A. 94.

Construction and installation of a cover falls squarely within

the definition of a “remedial action,” which includes the

“confinement” of substances and the “repair or replacement of

leaking containers.” CERCLA § 101(24). EPA’s Clean Water

Act lawsuit, in other words, sought injunctive relief for Guam

to take action that qualified as a “response action,” and the

2004 Consent Decree released Guam from legal exposure for

that claim in exchange for Guam’s commitment to perform

work that qualified as a “response action.”

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That “construction of the cover system to eliminate

discharges of untreated leachate” “resolv[ed] [Guam’s]

liability . . . for some or all of a response action” within the

meaning of CERCLA section 113(f)(3)(B), triggering that

section and precluding Guam from seeking cost-recovery

under section 107.

C.

Despite the clarity of the Consent Decree, Guam insists

that, for several reasons, the Decree did not “resolve” Guam’s

liability to the United States. We are unpersuaded.

Guam first argues that because “the US broadly and

unconditionally reserved all of its rights, including its rights to

pursue CERCLA claims,” the Consent Decree is “replete with

ongoing legal exposure for Guam” and therefore “did not

resolve liability with the requisite finality to trigger a Section

113(f)(3)(B) contribution claim.” Appellee’s Br. 25; 28–29.

True, the Consent Decree provides that “[n]othing . . . shall

limit the ability of the United States to enforce any and all

provisions of applicable federal laws and regulations.” Consent

Decree ¶ 46, J.A. 112. But that provision applies only to

“violations unrelated to the claims in the Complaint.” Id.

(emphasis added). This reservation of rights tells us nothing

about what the complaint and the consent decree do or do not

resolve under CERCLA. Section 113(f)(3)(B) is clear,

moreover, that it requires merely the resolution of liability for

“some” of a response action. In order to trigger section

113(f)(3)(B), a decree need not decisively determine every

action that a party may one day be required to perform at the

relevant site. What matters is whether what it does require

qualifies as “some” of a “response action.” And as explained

above, supra at 16–20, Guam’s construction obligations for the

Ordot Dump—agreed to under the threat of injunctive relief—

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qualified as “some of” a “response action” under CERCLA.

The consent decree’s reservation of rights for unrelated claims

does nothing to alter that analysis.

Guam next contends that the Consent Decree cannot have

triggered section 113(f)(3)(B) because “it only releases Guam

from . . . liability upon full implementation of the settlement’s

requirements, and performance is ongoing.” Appellee’s Br. 19.

Such a reading, however, would nullify section 113(f)(3)(B) in

a host of cases. According to section 113’s statute of

limitations, a party must bring a contribution action “no more

than 3 years after . . . entry of a judicially approved settlement.”

CERCLA § 113(g)(3)(B) (emphasis added). The clock starts to

run, in other words, on entry of the settlement, not when

liability is “resolved.” But under Guam’s theory, liability may

not be “resolved” for quite some time. For example, the Decree

requires Guam to perform within “44 months”—nearly four

years. Consent Decree ¶ 9, J.A. 100. Guam’s view—that

liability is not “resolved” until that performance is complete—

would produce an absurd result: Guam’s cause of action under

section 113 would not accrue until after the statute of

limitations runs. See Asarco, 866 F.3d at 1124 n.8 (rejecting

such a reading of CERCLA). And Guam would hardly be

alone. A different CERCLA provision, section 122, 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.” CERCLA

§ 122(f)(3). If parties “resolve” their liability only following

full performance and Presidential certification, most PRPs

would find themselves barred by the statute of limitations by

the time they gained the ability to sue under section

113(f)(3)(B). Congress could not have intended such a result.

Next, Guam directs us to the Consent Decree’s disclaimer

of liability, which provides that the parties’ agreement is

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“based on the pleadings, before taking testimony or

adjudicating any issue of fact or law, and without any finding

or admission of liability against or by the Government of

Guam.” Consent Decree 3, J.A. 92. Pointing to what it calls this

“clear and unambiguous” language, Guam urges us to take the

disclaimer at its word. Appellee’s Br. 16–17. To be sure, a

disclaimer of liability may weigh against the conclusion that

the parties intended to resolve liability within the meaning of

section 113(f)(3)(B). See, e.g., Florida Power Corp. v.

FirstEnergy Corp., 810 F.3d 996, 1002 (6th Cir. 2015) (finding

that consent decree did not resolve the plaintiff’s liability, in

part because “the plaintiff had not conceded the question of its

liability”). As other circuits faced with similar language have

observed, however, “parties often expressly refuse to concede

liability under a settlement agreement, even while assuming

obligations consistent with a finding of liability.” Asarco, 866

F.3d at 1123. Accordingly, “the mere fact that [a party] refused

to admit liability is not enough to exempt [a consent] [d]ecree

from the reach of section 113(f)(3)(B).” Refined Metals Corp.,

937 F.3d at 931. Here, the disclaimer of liability, standing

alone, cannot overcome the Consent Decree’s substantive

provisions. And because we have concluded that those

substantive terms do, in fact, “resolve” Guam’s “liability” to

the United States “for some . . . of a response action,” supra at

16–20, the Consent Decree triggers section 113(f)(3)(B)

despite the disclaimer.

Guam nonetheless asserts that the consent decree falls

outside CERCLA’s provisions because the statute covers

“[c]ontamination involving ‘hazardous substances’” and the

Clean Water Act violations alleged in EPA’s Complaint

concerned “non-CERCLA pollutant discharges only.”

Appellee’s Br. 42. But the Complaint demanded that Guam

“complete construction of [a] cover system to eliminate

discharges of untreated leachate,” CWA Compl. ¶ 29, and

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CERCLA expressly identifies the “collection of leachate and

runoff” as a “remedial action,” CERCLA § 101(24).

And finally, Guam argues that denying it the right to seek

recovery under section 107 presents constitutional concerns.

“[A]s to non-settling PRPs,” Guam insists, “the right to

contribution is a property interest, which cannot be

extinguished without due process of law.” Appellee’s Br. 49

(internal quotations omitted). Because a qualifying section

113(f)(3)(B) settlement insulates Guam from further

contribution suits, Guam argues that other PRPs lack notice,

and “[a]llowing the [Clean Water Act] and [Consent Decree] at

issue here to trigger contribution rights equates to silently

extinguishing the property interest of anyone who might have

a potential claim against a settling party without due process of

law.” Id. Although it is far from clear whether Guam could

assert this claim on behalf of absent third parties, because

Guam failed to raise it in the district court, “it is forfeited.”

Keepseagle v. Vilsack, 815 F.3d 28, 36 (D.C. Cir. 2016). And

as to Guam’s own rights, Guam lost the ability to bring a

contribution claim not because it was deprived of due process,

but because the statute of limitations ran.

IV.

From Guam’s perspective, the result we reach today is

harsh. “[A]ccept[ing] as true,” as we must at this stage, “all

material allegations of the complaint,” Barker v. Conroy, 921

F.3d 1118, 1121 (D.C. Cir. 2019) (internal quotations omitted),

the United States deposited dangerous munitions and

chemicals at the Ordot Dump for decades and left Guam to foot

the bill. The practical effect of our decision is that Guam cannot

now seek recoupment from the United States for that

contamination because its cause of action for contribution

expired in 2007. Unfortunately for Guam, however, “where a

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statute is clear, the courts are not at liberty to construe the

statute other than according to its terms, or to depart from its

clear requirements.” Hirshfeld v. District of Columbia, 254

F.2d 774, 775 (D.C. Cir. 1958) (internal citations omitted). And

while offering little consolation to Guam, EPA has reduced the

likelihood that these circumstances will reoccur by since

revising its model settlement language to include an express

statement that the parties “agree that this Settlement Agreement

constitutes an administrative settlement for purposes of Section

113(f)(3)(B) of CERCLA.” Florida Power Corp., 810 F.3d at

1009.

For the foregoing reasons, we reverse the district court’s

denial of the United States’ motion to dismiss and remand with

instructions to dismiss the complaint.

So ordered.