Arconic, Inc. v. Apc Investment Co.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARCONIC, INC., FKA Alcoa, Inc.; No. 19-55181

APPLIED MICRO CIRCUITS CORP.;

BASF CORPORATION; BAXTER D.C. No.

HEALTHCARE CORPORATION; CAL- 2:14-cv-06456-

TAPE & LABEL CO.; CALIFORNIA GW-E

HYDROFORMING COMPANY, INC.;

CINTAS CORPORATION; COLUMBIA

SHOWCASE & CABINET COMPANY, OPINION

INC.; COUNTY OF LOS ANGELES;

CROSBY & OVERTON, INC.; DISNEY

ENTERPRISES, INC.; FHL GROUP;

FORENCO, INC.; GENERAL DYNAMICS

CORPORATION; HEXCEL

CORPORATION; HERCULES, INC.;

HONEYWELL INTERNATIONAL, INC.;

INTERNATIONAL PAPER COMPANY;

LOS ANGELES COUNTY

METROPOLITAN TRANSPORTATION

AUTHORITY; MATTEL, INC.; MASCO

CORPORATION OF INDIANA; MERCK

SHARP & DOHME CORPORATION;

PILKINGTON GROUP LIMITED; QUEST

DIAGNOSTICS CLINICAL

LABORATORIES, INC.; RAYTHEON

COMPANY; SOCO WEST, INC.;

SPARTON TECHNOLOGY, INC.; THE

BOEING COMPANY; THE DOW

CHEMICAL COMPANY; REGENTS OF

THE UNIVERSITY OF CALIFORNIA;

2 ARCONIC V. APC INVESTMENT

TRIMAS CORPORATION; UNIVAR

USA, INC.; SAFETY-KLEEN

SYSTEMS, INC.,

Plaintiffs-Appellants,

v.

APC INVESTMENT CO.; ASSOCIATED

PLATING COMPANY; ASSOCIATED

PLATING COMPANY, INC.; GORDON

E. MCCANN; LYNNEA R. MCCANN;

DARRELL K. GOLNICK; CLARE S.

GOLNICK; BODYCOTE THERMAL

PROCESSING, INC.; POWERINE OIL

COMPANY; CLAUDETTE EARL; EARL

MFG. CO., INC.; FERRO CORP.;

FIREMAN’S FUND INSURANCE

COMPANY; FEDERAL INSURANCE

COMPANY; PALLEY SUPPLY

COMPANY; FOSS PLATING COMPANY,

INC.; KEKROPIA, INC.; PALMTREE

ACQUISITION CORPORATION;

PHIBRO-TECH, INC.; FIRST DICE

ROAD COMPANY, INC.; UNION

PACIFIC RAILROAD COMPANY;

HALLIBURTON AFFILIATES, LLC;

CHERYL A. GOLNICK,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

George H. Wu, District Judge, Presiding

ARCONIC V. APC INVESTMENT 3

Argued and Submitted March 3, 2020

Pasadena, California

Filed August 10, 2020

Before: Consuelo M. Callahan and Jacqueline H. Nguyen,

Circuit Judges, and Dana L. Christensen, * District Judge.

Opinion by Judge Callahan

SUMMARY **

Environmental Law

The panel reversed the district court’s grant of summary

judgment in favor of defendants and remanded for further

proceedings in an action seeking contribution for cleanup

costs under § 113(f) of the Comprehensive Environmental

Response, Compensation, and Liability Act.

The panel held that to trigger the CERCLA limitations

period, requiring parties to pursue contribution for their

cleanup costs within three years of the “entry of a judicially

approved settlement with respect to such costs,” a settlement

must impose costs on the party seeking contribution. The

panel explained that a party can obtain contribution only for

costs incurred in excess of its own liability. A settlement,

*

The Honorable Dana L. Christensen, United States District Judge

for the District of Montana, sitting by designation.

**

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

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

4 ARCONIC V. APC INVESTMENT

then, starts the limitations period on a § 113(f) claim for

response costs only if it imposed such costs and serves as the

basis for seeking contribution. The panel concluded that

here, plaintiffs’ settlement with certain de minimis parties

did not start the limitations period for contribution claims

against different polluters.

The panel further held that plaintiffs were not judicially

estopped from seeking contribution for their costs.

COUNSEL

E. Joshua Rosenkranz (argued) and Elizabeth R.

Cruikshank, Orrick Herrington & Sutcliffe LLP, New York,

New York; Brian P. Goldman, Easha Anand, and Karim J.

Kentfield, Orrick Herrington & Sutcliffe LLP, San

Francisco, California; Nancy Sher Cohen and Ronald A.

Valenzuela, Lathrop Gage LLP, Los Angeles, California; for

Plaintiffs-Appellants.

Thomas R. McCarthy (argued), Consovoy McCarthy PLLC,

Arlington, Virginia; David E. Cranston, Greenberg Glusker,

Los Angeles, California; for Defendant-Appellee Union

Pacific Railroad Company.

James B. Harris, Thompson & Knight LLP, Dallas, Texas;

for Defendant-Appellee Bodycote Thermal Processing, Inc.

Robert P. Doty (argued) and Cathy T. Moses, Cox Castle &

Nicholson LLP, San Francisco, California, for Defendant-

Appellee Palmtree Acquisition Corporation.

No appearances by remaining Defendants-Appellees.

ARCONIC V. APC INVESTMENT 5

Matthew R. Oakes (argued) and Jennifer Scheller Neumann,

Attorneys; Eric Grant, Deputy Assistant Attorney General;

Environment and Natural Resources Division, United States

Department of Justice, Washington, D.C.; Michael Massey,

Attorney, United States Environmental Protection Agency;

for Amicus Curiae United States.

Xavier Becerra, Attorney General; Sally Magnani, Senior

Assistant Attorney General; Edward H. Ochoa, Supervising

Deputy Attorney General; Olivia W. Karlin and James

Potter, Deputy Attorneys General; Office of the Attorney

General, Los Angeles, California; for Amicus Curiae

California Department of Toxic Substances Control.

Timothy T. Coates and Marc J. Poster, Greines Martin Stein

& Richland LLP, Los Angeles, California, for Amicus

Curiae Former United States Department of Justice Official

Stephen D. Ramsey.

6 ARCONIC V. APC INVESTMENT

OPINION

CALLAHAN, Circuit Judge:

The Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA) requires parties

to pursue contribution for their cleanup costs within three

years of the “entry of a judicially approved settlement with

respect to such costs.” 42 U.S.C. § 9613(g)(3)(B). This

appeal asks whether, to trigger this limitations period, a

settlement must impose costs on the party seeking

contribution—a question we answer in the affirmative.

Because the district court relied on a contrary reading of the

statute in holding the plaintiffs’ claims time-barred, we

reverse its grant of summary judgment in the defendants’

favor.

I.

A.

The Omega Chemical Corporation recycled solvents and

refrigerants at its facility in Whittier, California, from 1976

to 1991. The company’s mishandling of these substances

caused them to spill and leak from drums, tanks, and pipes,

severely contaminating nearby soil and groundwater. In

1999, the U.S. Environmental Protection Agency (EPA)

placed the Omega facility on the National Priorities List, a

list of the most contaminated sites in the nation. 64 Fed.

Reg. 2942, 2945 (Jan. 19, 1999). The agency then set about

developing a long-term remedial plan for cleaning up the

site, splitting the process into manageable phases, or

“operable units.” See 40 C.F.R. § 307.14 (defining

“operable unit” as “a discrete action that comprises an

incremental step toward comprehensively addressing site

problems”). EPA first turned toward cleaning up the soil and

ARCONIC V. APC INVESTMENT 7

groundwater contamination in the immediate vicinity of the

Omega plant. It dubbed this Operable Unit 1 (OU-1).

EPA negotiated the cleanup of OU-1 with a group of

Omega’s customers, who formed the Omega Chemical

Potentially Responsible Parties Organized Group (OPOG).

The discussions proved fruitful, with OPOG agreeing to lead

the remedial efforts with EPA oversight. To give a district

court authority over that agreement and to trigger OPOG’s

right to seek contribution, the United States simultaneously

lodged a complaint against OPOG with a proposed consent

decree resolving that complaint. The consent decree

required OPOG to contain and remediate the groundwater

contamination around the Omega plant. It also required

OPOG to reimburse the United States for its cleanup costs.

The court entered the consent decree a few months later, in

early 2001, thereby resolving OPOG’s liability as to OU-1.

Under the applicable statute of limitations, 42 U.S.C.

§ 9613(g)(3)(B), the entry of the consent decree gave OPOG

three years to seek contribution for its OU-1 costs. So in

2004 OPOG sued various other entities that had sent

hazardous waste to the Omega plant. By and large, these

defendants had contributed relatively small amounts of

waste. They were, in EPA parlance, “de minimis” parties.

See 42 U.S.C. § 9622(g) (characterizing de minimis parties

by the quantity and toxicity of their waste). OPOG’s

complaint alleged that it had incurred $6.5 million in

cleaning up the site, and it asserted that the de minimis

parties were liable for their share of OPOG’s past and future

cleanup costs.

The de minimis parties agreed to settle OPOG’s claims

for $1.7 million. In exchange, OPOG assumed their

“responsibilities” for the site, including their cleanup costs.

This assumption was not limited to costs associated with

8 ARCONIC V. APC INVESTMENT

OU-1; it included any Omega-site claims that the United

States or another party might, in the future, assert against the

de minimis parties. In essence, the settlement allowed these

parties to walk away from the site effectively immune from

further pursuit. The court approved that settlement in 2007.

EPA was meanwhile investigating Operable Unit 2

(OU-2). The agency had learned that chemicals from the

Omega plant had migrated through groundwater and

comingled with hazardous waste released from other

facilities, forming a toxic plume extending over four miles

downgradient of OU-1. In 2011, once EPA better

understood the extent of the OU-2 plume, it selected a

remedy: an extensive “pump-and-treat” system that would

draw contaminated water from the ground and strip it of

chemicals.

As it had with OU-1, OPOG agreed to spearhead the

cleanup efforts for OU-2. The parties formalized their

arrangement in 2016, with the United States again lodging a

complaint and corresponding consent decree the same day. 1

This time, though, the litigation concerned the downgradient

plume. The consent decree committed OPOG to finance and

implement the OU-2 pump-and-treat system. It further

obligated OPOG to post a $70 million performance

guarantee and reimburse the United States for its past and

future OU-2 costs. The court approved the consent decree

in 2017, thereby resolving OPOG’s liability as to that portion

of the site.

1

In 2010, the United States also sued and settled with OPOG for

work concerning OU-1 soil contamination.

ARCONIC V. APC INVESTMENT 9

B.

Several years earlier, in 2014, having already undertaken

some OU-2 work, OPOG brought this suit seeking to recover

the costs of that work from APC Investment Company and

other entities (collectively, the APC defendants) who

purportedly had contributed to the plume but not its cleanup.

Once OPOG entered into the OU-2 consent decree, it

amended its complaint to drop the cost-recovery claim and

assert one for contribution in its stead. OPOG also sought a

declaration as to the APC defendants’ liability “for their

respective equitable shares” of the obligations OPOG had

incurred under the OU-2 consent decree.

Some of the APC defendants moved for summary

judgment, arguing that OPOG’s 2007 settlement with the de

minimis parties triggered CERCLA’s three-year statute of

limitations for contribution claims. The district court agreed,

holding that the 2007 settlement was “with respect to” the

same costs sought in this litigation and that, as a result,

OPOG’s claims were time-barred. Observing that the

settlement resolved OPOG’s and the de minimis parties’ site-

wide claims against each other, the court reasoned that OU-2

necessarily fell within the scope of their agreement. The

court also noted that OPOG was likely estopped from

arguing that it could not previously seek contribution for

OU-2 costs, since it asserted just such a claim in its 2004

complaint against the de minimis parties. The court entered

judgment, and OPOG timely appealed. We have jurisdiction

under 28 U.S.C. § 1291 and reverse.

II.

We review de novo the grant of summary judgment and

interpretation of CERCLA. Asarco LLC v. Celanese Chem.

Co., 792 F.3d 1203, 1208 (9th Cir. 2015). We also interpret

10 ARCONIC V. APC INVESTMENT

CERCLA settlements de novo but defer to the district court’s

factual findings unless they are clearly erroneous. Id. And

finally, we review a district court’s application of the

doctrine of judicial estoppel for an abuse of discretion. MK

Hillside Partners v. Comm’r of Internal Rev., 826 F.3d 1200,

1203 (9th Cir. 2016).

III.

A.

Congress enacted CERCLA to “promote the timely

cleanup of hazardous waste sites and to ensure that the costs

of such cleanup efforts [are] borne by those responsible for

the contamination.” Burlington N. & Santa Fe Ry. Co. v.

United States, 556 U.S. 599, 602 (2009) (internal quotation

marks and citation omitted); accord S. Rep. No. 96-848,

at 13 (1980). To that end, the statute provides two

mechanisms for private parties to recoup their cleanup costs:

cost-recovery actions under § 107(a), 42 U.S.C. § 9607(a),

and contribution actions under § 113(f), id. § 9613(f). These

related but distinct provisions “complement each other by

providing causes of action to persons in different procedural

circumstances.” United States v. Atl. Research Corp.,

551 U.S. 128, 139 (2007) (internal quotation marks and

citation omitted).

Section 107(a) enables parties to recover their directly

incurred “response”—i.e., cleanup—costs from those liable

for the contamination. 42 U.S.C. § 9607(a); see Key Tronic

Corp. v. United States, 511 U.S. 809, 819 n.13 (1994)

(explaining that CERCLA “encourage[s] private parties to

assume the financial responsibility of cleanup by allowing

them to seek recovery from others” (internal quotation marks

and citation omitted)). The provision imposes strict liability,

and a successful § 107(a) claim generally results in the

ARCONIC V. APC INVESTMENT 11

defendant being held jointly and severally liable for all

cleanup costs sought in the suit, even those attributable, at

least in part, to others. Arizona v. City of Tucson, 761 F.3d

1005, 1011 (9th Cir. 2014). Consequently, a cost-recovery

defendant often faces a disproportionate share of liability for

a site’s contamination.

That is where § 113(f) comes in. It provides parties with

a right of contribution “to recover expenses paid under a

settlement agreement or judgment.” Whittaker Corp. v.

United States, 825 F.3d 1002, 1009 (9th Cir. 2016). Parties

subjected to suit under § 107(a) or § 106—which empowers

the United States to order certain cleanups—can file for

contribution, 42 U.S.C. § 9613(f)(1), as can parties that settle

their liability with the United States or a state, id.

§ 9613(f)(3)(B). Hence, a claim for contribution, unlike one

for cost recovery, turns on a party first facing or incurring

liability to a third party. Atl. Research, 551 U.S. at 139–40.

If that liability exceeds the particular polluter’s portion of

responsibility for a cleanup, § 113(f) serves to force others

to shoulder their share of the burden. Id. at 139.

CERCLA imposes a three-year statute of limitations on

§ 113(f)(1) contribution claims. 42 U.S.C. § 9613(g)(3).

The clock starts to run not when the claims accrue, but upon

the occurrence of certain statutory triggering events. As

relevant here, the statute bars parties from filing for

contribution “for any response costs . . . more than three

years after . . . [the] entry of a judicially approved settlement

with respect to such costs.” Id. § 9613(g)(3)(B). We must

decide whether the 2007 settlement, which imposed no

liability on OPOG but transferred to it the de minimis parties’

responsibilities for the Omega site, triggered this provision.

12 ARCONIC V. APC INVESTMENT

B.

Starting, as we must, with the statute’s text, Lamie v. U.S.

Trustee, 540 U.S. 526, 534 (2004), we find the limitations

provision’s applicability to claims for “contribution” largely

dispositive. Because “[n]othing in § 113(f) suggests that

Congress used . . . ‘contribution’ in anything other than [its]

traditional sense,” the term refers to the “tortfeasor’s right to

collect from others responsible for the same tort after the

tortfeasor has paid more than his or her proportionate share.”

Atl. Richfield, 551 U.S. at 138 (quoting Black’s Law

Dictionary (8th ed. 2004)); accord Whittaker, 825 F.3d at

1008. A CERCLA contribution claim, in other words, is by

definition predicated upon “an inequitable distribution of

common liability among liable parties.” 2 Atl. Richfield,

551 U.S. at 139.

2

The Restatement elaborates:

A person seeking contribution must extinguish the

liability of the person against whom contribution is

sought for that portion of liability, either by settlement

with the plaintiff or by satisfaction of judgment. As

permitted by procedural rules, a person seeking

contribution may assert a claim for contribution and

obtain a contingent judgment in an action in which the

person seeking contribution is sued by the plaintiff,

even though the liability of the person against whom

contribution is sought has not yet been extinguished.

Restatement (Third) of Torts § 33 cmt. b (citations omitted); see also

Friedland v. TIC-The Indus. Co., 566 F.3d 1203, 1206 (10th Cir. 2009)

(defining a CERCLA contribution claim as “a claim by and between

jointly and severally liable parties for an appropriate division of the

payment one of them has been compelled to make” (internal quotation

marks and citation omitted)).

ARCONIC V. APC INVESTMENT 13

Bearing that in mind, interpreting the limitations

provision is fairly straightforward. It provides that a party

must pursue contribution following the entry of a “settlement

with respect to such costs.” The term “such costs” plainly

refers to the response costs sought in the contribution action.

And since a party can obtain contribution only for costs

incurred in excess of its own liability, an action under

§ 113(f)(1) is necessarily for another’s share of the costs

faced or imposed under § 106 or § 107(a). See Am.

Cyanamid Co. v. Capuano, 381 F.3d 6, 13 (1st Cir. 2004)

(“‘[S]uch costs’ . . . refers to the judgment mentioned earlier

in the sentence and identifies a particular claim or

payment.”). A settlement, then, starts the limitations period

on a § 113(f)(1) claim for response costs only if it imposed

those costs and serves as the basis for seeking contribution.

It is therefore inaccurate to characterize the 2007

settlement as covering the costs at issue here merely because

it foresaw the remediation of the OU-2 groundwater plume.

OPOG’s claims do not concern OU-2 in the abstract. Rather,

OPOG seeks the APC defendants’ share of the liability it

assumed in the 2017 OU-2 consent decree. The 2007

settlement did not address those costs. It resolved neither

who would pay for OU-2’s remediation nor what that effort

would entail. Nor did it impose on OPOG any response costs

or remedial obligations. That OPOG agreed to forego

further contribution from the de minimis parties and, in

effect, to indemnify them for future cleanup work bears no

relation to the APC defendants’ responsibility for the site.

The 2007 settlement, after all, did not extinguish OPOG’s

and the APC defendants’ common liability to the United

States for OU-2. Accordingly, that agreement did not start

the limitations period.

14 ARCONIC V. APC INVESTMENT

C.

The APC defendants disagree, of course. They point out

that “with respect to” is broad qualifying language, and that

the limitations provision mentions costs alone—not

obligations, liabilities, or responsibilities. They advise

against reading into the statute any such requirement,

especially since Congress expressly required a resolution of

liability in § 113(f)(3)(B), which authorizes contribution

claims upon settling with the government. Thus, in the APC

defendants’ view, any settlement starts the clock so long as

it relates in some way to the general category of costs at issue

in the contribution action.

But we construe statutory language in context, Celanese,

792 F.3d at 1210, and we limit otherwise capacious terms

when that context “tug[s] . . . in favor of a narrower reading,”

Mellouli v. Lynch, 135 S. Ct. 1980, 1990 (2015) (some

alterations omitted) (quoting Yates v. United States, 574 U.S.

528, 539 (2015)). Here, we see no reason why a settlement

cashing out minor polluters from future involvement with a

site would trip the limitations period for contribution claims

against different polluters. Section 113(f) instead confirms

that the clock starts ticking only upon the entry of a judgment

or settlement resolving an underlying § 106 or § 107(a)

claim and imposing liability on a polluter, who then has three

years to seek contribution for those imposed costs.

To begin with, the APC defendants’ position

contravenes not only the central tenet of common-law

contribution, but also the “standard rule” that a limitations

period does not run—let alone expire—before a party can

assert the associated claim. Green v. Brennan, 136 S. Ct.

1769, 1776 (2016); see also Asarco LLC v. Atl. Richfield

Co., 866 F.3d 1108, 1124 n.8 (9th Cir. 2017) (construing

CERCLA to avoid this very inconsistency). A party’s right

ARCONIC V. APC INVESTMENT 15

to seek contribution extends only to the costs for which it is

potentially or actually liable, as bounded by the operative

complaint, settlement, or judgment. See Whittaker, 825 F.3d

at 1012. So if a party is never sued and never deemed liable

for a particular subset of a site’s cleanup costs, then those

costs are not recoverable under § 113(f)(1). Under the APC

defendants’ broad construction of “settlement” and “costs,”

however, the limitations period could expire prior to the

filing of a § 106 or § 107(a) claim.

This case illustrates the point. The United States’ 2000

complaint sought from OPOG the “reimbursement of certain

costs” and the “performance of certain response actions”

needed to clean up a “portion” of the Omega site. It did not

address site-wide liabilities. And even if it had, the consent

decree filed alongside the 2000 complaint dispels any doubt

as to the scope of OPOG’s then-existing contribution rights.

See id. (basing a party’s § 113(f)(1) rights on the liability

imposed in the resolved § 107(a) action rather than faced in

the complaint underlying that action). That agreement dealt

only with OU-1. It resolved the pending suit but left open

the prospect of the United States later pursuing OPOG for

liability arising from other parts of the site. Once the court

entered the OU-1 consent decree, OPOG had three years to

seek reimbursement under § 113(f) for the costs therein

incurred. But it had no right to contribution outside of that. 3

3

The APC defendants argue that the 2001 consent decree did not

limit OPOG’s contribution rights because § 113(f)(1) allows a party to

seek contribution “during or following” the underlying § 106 or § 107(a)

action. We rejected a nearly identical argument in Whittaker, explaining

that although “the statute permits a party to initiate a contribution action

while a § 107 . . . suit is pending, actual recovery under § 113(f)(1) is

limited to the expenses for which the party is found liable.” 825 F.3d

at 1012. This comports with “how contribution claims traditionally

work.” Id. (citing Restatement (Third) of Torts § 23(b) & cmt. b). So

16 ARCONIC V. APC INVESTMENT

See id. at 1008–09; Celanese, 792 F.3d at 1209 (“[Section

113(f)(1)] remains open while the [§ 106 or § 107(a)]

lawsuit is unresolved.”). Not until 2016, when the United

States sued OPOG for the downgradient plume, could it

pursue contribution for its OU-2 costs. Yet the APC

defendants’ reading of the statute would mean that the

limitations period on that claim expired six years earlier, in

2010, which strikes us as nonsensical. 4

The APC defendants’ focus on the 2007 settlement also

ignores CERCLA’s symmetrical scheme for pursuing

contribution claims. With § 113(f)(1), Congress paired the

events opening the door to contribution with the events

closing it. See Cooper Indus., Inc. v. Aviall Servs., Inc.,

543 U.S. 157, 167 (2004) (noting § 113(g)(3)’s

“corresponding” limitations periods). A contribution claim

accrues when a party is sued under § 106 or § 107(a), and

then “the statute of limitations begins to run once that

litigation settles or ends by judgment.” Celanese, 792 F.3d

at 1209 (emphasis added); see also id. at 1210 (reiterating

the same idea). This framework clearly contemplates that

the underlying § 106 or § 107(a) suit will lead to the

defendant’s liability: being sued anticipates that liability,

here, following resolution of the United States’ 2000 suit, OPOG could

have sought contribution only for “the costs for which [it] was held

liable” in that suit. Id. Other costs were recoverable by way of § 107(a).

See id. at 1009; Agere Sys., Inc. v. Advanced Envtl. Tech. Corp., 602 F.3d

204, 225–26 (3d Cir. 2010) (holding that the parties could pursue

incurred costs under § 107(a) but not § 113(f) “because those parties

were never themselves sued for those amounts”).

4

For similar reasons, the 2010 litigation concerning soil

contamination, see supra n.1, likewise failed to give rise to a contribution

claim for OU-2 costs. That is especially true given that the United States

filed that suit after the limitations period on OPOG’s pending claims

purportedly expired.

ARCONIC V. APC INVESTMENT 17

and the resulting settlement or judgment establishes it. The

statute of limitations sensibly starts then, once the defendant

knows the scope of its obligations. But the 2007 settlement

arose well before that point. It resolved no suit against

OPOG and stemmed instead from OPOG’s own claims

against the de minimis parties. Having the limitations period

run from such agreements would make a mess of both

§ 113(f) and the traditional workings of contribution. The

better reading is that the provision’s reference to settlements

means the agreement imposing the costs in question. 5

Indeed, our case law supports, if not compels, this

conclusion. Celanese, for example, also involved two

settlements concerning the cleanup of a contaminated site.

There we looked to which settlement underlay the plaintiff’s

5

We note in this respect that, in addition to judgments and

settlements, two other events trigger CERCLA’s statute of limitations

for contribution claims: administrative—i.e., EPA—settlements with de

minimis parties, and administrative settlements for cost recovery.

42 U.S.C. § 9613(g)(3). Each imposes liability on the party pursuing

contribution, so we construe “judicially approved settlements”

similarly—as referring to agreements requiring a party to clean up a site

under § 106 or pay response costs under § 107(a). See Beecham v.

United States, 511 U.S. 368, 371 (1994) (“[S]everal items in a list

shar[ing] an attribute counsels in favor of interpreting the other items as

possessing that attribute as well.”).

The legislative history is in accord. The House report explains that

Congress added § 113(f) to confirm “the right of a person held jointly

and severally liable under CERCLA to seek contribution from other

potentially liable parties, when the person believes that it has assumed a

share of the cleanup or cost that may be greater than its equitable share.”

H.R. Rep. No. 99-253(I), at 79 (1985) (emphasis added). The report

adds, in this vein, that “[p]arties who settle for all or part of a cleanup or

its costs, or who pay judgments as a result of litigation, can attempt to

recover some portion of their expenses and obligations in contribution

litigation.” Id. at 80; accord S. Rep. No. 99-11, at 43 (1985).

18 ARCONIC V. APC INVESTMENT

§ 113(f) contribution claim. 792 F.3d at 1210. We held the

claim time-barred because it was for “exactly the same

liability” assumed in the much earlier agreement. Id.

at 1214. Critically, that initial agreement comprehensively

“define[d] who [would] pay for the work and the nature of

the work to remediate” the site. Id. at 1213 (likening the

earlier agreement to “a proportionate liability declaratory

judgment”). The later settlement may have fixed those costs,

we explained, but it imposed no new ones. Id. at 1214. We

further noted that nothing prevented “a party in an early

settlement from seeking contribution related to a later

settlement, as long as those settlements cover separate

obligations.” Id. at 1215 (emphasis added).

In contrast to the underlying settlement in Celanese, the

2007 settlement neither imposed any costs on OPOG nor

obligated it to clean up OU-2. True, the 2007 settlement

transferred to OPOG the de minimis parties’

“responsibilities” for the site, including any of their

prospective future costs for the groundwater plume. 6 But

that is of no moment, as the settlement did not create any

liability on OPOG’s part. What is more, OPOG’s release of

the de minimis parties had no impact on the APC defendants’

share of responsibility for the plume, which remained

outstanding.

While the 2007 settlement fell short of triggering the

limitations period, the 2017 consent decree fits the bill. It

resolved the United States’ § 106 and § 107(a) claims

against OPOG for OU-2. In doing so, it established OPOG’s

6

In 2007, EPA was years away from selecting a remedy for the

plume, and no party was yet liable for its remediation. To date, OPOG

is the only entity to have pursued any CERCLA claim against the de

minimis parties with respect to the Omega site.

ARCONIC V. APC INVESTMENT 19

response obligations for that portion of the site and burdened

OPOG with the APC defendants’ share of liability to the

United States. It, therefore, is the settlement that is “with

respect to” the costs OPOG now seeks. And because OPOG

filed this suit within three years of the entry of that consent

decree, its claims are timely.

D.

Mooring the limitations provision to the settlement

giving rise to the contribution costs also serves CERCLA’s

remedial objectives. As this case amply demonstrates, the

cleanup of contaminated sites can span many years and

involve scores of litigants. Settling with de minimis parties

plays an important role in streamlining this process. Cashing

out minor contributors can supply a needed influx of funds

for cleanup work, and releasing them from future liability

can reduce the number of parties involved, simplifying

litigation and reducing transaction costs.

The APC defendants’ reading of the limitations

provision as including settlements untethered to resolved or

pending § 106 or § 107(a) claims would throw a wrench into

this process. It would dissuade major polluters from

providing a complete release to any party, however minor

that party’s role in contributing to a site’s contamination.

That is because any such release would require major

polluters to then file all possible contribution claims

concerning the site, even when the bounds of site-wide

liability remain undefined. The parties to such a suit would,

in turn, have to fight over their respective equitable shares of

response costs that the United States or another party may

never pursue. Here, OPOG would have had to sue for

contribution for OU-2 despite EPA having yet to select a

remedy for the plume. While § 113(f)(1) was intended to

“bring[] all . . . responsible parties to the bargaining table at

20 ARCONIC V. APC INVESTMENT

an early date,” Whittaker, 825 F.3d at 1013 (Owens, J.,

concurring) (quoting H.R. Rep. No. 99-253(I), at 80 (1985)),

it does not operate to prohibit the phased and orderly

resolution of response obligations for complex sites.

The APC defendants protest that, to avoid tripping the

limitations provision, major polluters can always cabin their

releases to particular parts of a site, similar to how the United

States proceeded in iterative stages with OPOG. Yet this

approach would undo much of the benefit derived from de

minimis settlements in the first place. As EPA guidance

explains, the legal fees and other transaction costs of

negotiating with de minimis parties often dwarf their

ultimate share of site-wide liability. 52 Fed. Reg. 24,333,

24,334 (June 30, 1987). The early dismissal of these parties

thus serves the interests of all involved. Repeatedly

dragging them to the table, on the other hand, would bog

down negotiations, increase costs, and discourage

settlement, given the lack of finality and certainty otherwise

afforded by a complete release. See United States v.

Cannons Eng’g Corp., 899 F.2d 79, 89 (1st Cir. 1990)

(discussing some of the benefits associated with de minimis

settlements). Such an outcome neither hastens cleanups nor

ensures that responsible parties bear the costs.

IV.

Finally, we conclude that OPOG is not judicially

estopped from seeking contribution for its OU-2 costs.

“Judicial estoppel is an equitable doctrine that precludes a

party from gaining an advantage by asserting one position,

and then later seeking an advantage by taking a clearly

inconsistent position.” Hamilton v. State Farm Fire & Cas.

Co., 270 F.3d 778, 782 (9th Cir. 2001) (first citing Rissetto

v. Plumbers & Steamfitters Local 343, 94 F.3d 597, 600–01

(9th Cir. 1996); then citing Russell v. Rolfs, 893 F.2d 1033,

ARCONIC V. APC INVESTMENT 21

1037 (9th Cir. 1990)). According to the APC defendants,

OPOG successfully pursued contribution for OU-2 costs in

its 2004 suit against the de minimis parties, so it cannot now

contend that such a claim arose only recently, upon entry of

the OU-2 consent decree.

This argument is largely beside the point. Even if OPOG

had obtained from the de minimis parties contribution for

OU-2, the 2007 settlement did not start the limitations period

because it did not impose on OPOG the APC defendants’

share of liability for the downgradient plume. Furthermore,

we discern no clear inconsistency in OPOG’s position. The

2004 litigation necessarily involved a § 113(f) claim for the

costs OPOG had assumed under the 2001 OU-1 consent

decree, and a § 107(a) claim for the other costs OPOG had

incurred but for which it had not, at that point, been sued.

Although OPOG’s complaint labeled the claims as for

“contribution,” it cited to § 107(a) in addition to § 113(f).

Moreover, OPOG’s 2006 motion for judicial approval of the

resulting settlement was clearer in this regard. It explained

that the claims were for contribution and cost recovery. 7 See

Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059,

1064 n.2 (9th Cir. 2002) (looking to a claim’s substance

rather than its caption). OPOG’s current position is thus

7

Prior to the Supreme Court holding in 2007 that potentially

responsible parties could proceed under § 107(a), Atl. Research,

551 U.S. at 141, this circuit took the view that any action between such

parties was “necessarily for contribution.” See Kotrous v. Goss-Jewett

of N. Cal., 523 F.3d 924, 932 (9th Cir. 2008) (overruling this position).

It therefore makes sense that OPOG would have so styled its claims.

22 ARCONIC V. APC INVESTMENT

consistent with its earlier one, and the district court erred in

concluding otherwise. 8

V.

In sum, we hold that Congress incorporated into

CERCLA basic precepts of common-law contribution.

Chief among those precepts is that contribution turns on a

party having incurred an inequitable share of another’s

liability. CERCLA’s limitations period, 42 U.S.C

§ 9613(g)(3)(B), runs upon the entry of the settlement

imposing that liability, but not before. The statutory text

supports this reading, as does its purpose. We therefore

reverse the district court’s holding that OPOG’s claims are

untimely and remand the case for further proceedings

consistent with this opinion.

REVERSED AND REMANDED.

8

Contrary to the APC defendants’ contention, OPOG did not forfeit

its right to rebut this argument at two hearings and in its supplemental

summary judgment briefs. We may review any matter passed upon by

the district court, Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253,

1260 n.8 (9th Cir. 2010) (citing Blackmon-Malloy v. U.S. Capitol Police

Bd., 575 F.3d 699, 707 (D.C. Cir. 2009)), and, in any event, OPOG did

discuss the issue. At the first hearing OPOG argued that estoppel was

inextricably tied to the characterization of the 2007 settlement. At the

second hearing the APC defendants broached estoppel only in asking for

a clear ruling on the matter. And as for the supplemental briefs, estoppel

was not among the matters the district court had ordered addressed.