Petition for Writ of Certiorari — APC Investment Co., et al., Petitioners v. Howmet Aerospace Inc., fka Arconic, Inc., et al.

APPENDICES

APPENDIX A: Opinion of the United States

Court of Appeals for the Ninth Circuit,

published at 969 F.3d 945 (9th Cir.

2020) ............................................................ App. 1

APPENDIX B: Order on Motion for Summary

Judgment regarding Statue of Limitations,

available at 2019 WL 398001 (C.D. Cal.

Jan. 15, 2019) (D.C. Dkt. 809) ................. App. 24

APPENDIX C: Final Judgment Pursuant to

Federal Rule of Civil Procedure 54(b)

(C.D. Cal. Feb. 4, 2019) (D.C. Dkt. 819) ... App. 74

APPENDIX D: Order of the United States

Court of Appeals for the Ninth Circuit

Denying Panel Rehearing and En Banc

Rehearing (9th Cir. Oct. 21, 2020)

(C.A. Dkt. 115) .......................................... App. 76

APPENDIX E: Statutory And Regulatory

Provisions Involved

42 U.S.C. § 9607 (CERCLA § 107)

(excerpt) ........................................ App. 77

42 U.S.C. § 9613 (CERCLA § 113)

(excerpt) ........................................ App. 78

App. 1

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARCONIC, INC., FKA Alcoa, Inc.;

APPLIED MICRO CIRCUITS CORP.;

BASF CORPORATION; BAXTER

HEALTHCARE CORPORATION;

CAL-TAPE & LABEL CO.; CALIFORNIA

HYDROFORMING COMPANY, INC.;

CINTAS CORPORATION; COLUMBIA

SHOWCASE & CABINET COMPANY,

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;

No. 19-55181

D.C. No.

2:14-cv-06456GW-E

OPINION

App. 2

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

Argued and Submitted March 3, 2020

Pasadena, California

Filed August 10, 2020

App. 3

Before: Consuelo M. Callahan and

Jacqueline H. Nguyen, Circuit Judges,

and Dana L. Christensen,* District Judge.

Opinion by Judge Callahan

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 DefendantAppellee 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.

Matthew R. Oakes (argued) and Jennifer Scheller

Neumann, Attorneys; Eric Grant, Deputy Assistant

* The Honorable Dana L. Christensen, United States District Judge for the District of Montana, sitting by designation.

App. 4

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.

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

App. 5

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 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

App. 6

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 OU1 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 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

App. 7

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.

App. 8

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.

App. 9

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 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. Ad. Research Corp., 551

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

App. 10

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 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.

App. 11

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.

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

App. 12

of common liability among liable parties.”2 Atl. Richfield, 551 U.S. at 139.

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)

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)).

App. 13

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.

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

App. 14

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 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

App. 15

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 See id.

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

App. 16

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.”

comports with “how contribution claims traditionally work.” Id.

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

App. 17

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, 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

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

App. 18

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 § 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

(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).

6

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

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

App. 19

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 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

date, OPOG is the only entity to have pursued any CERCLA claim

against the de minimis parties with respect to the Omega site.

App. 20

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

(Owens, J., concurring) (quoting H.R. Rep. No. 99253(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

App. 21

and other transaction costs of negotiating with de minimis parties often dwarf their ultimate share of sitewide 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, 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.

App. 22

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 consistent

with its earlier one, and the district court erred in concluding otherwise.8

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.

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

App. 23

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.

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.

App. 24

APPENDIX B

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. CV 14-6456-GW(Ex)

Title

Date January 15, 2019

Arconic, Inc., et al. v. APC Investment Co., et al.

===========================================================================================

Present: The Honorable GEORGE H. WU, UNITED

STATES DISTRICT JUDGE

Javier Gonzalez

Deputy Clerk

None Present

Court Reporter /

Recorder

Tape No.

Attorneys Present for

Plaintiffs:

Attorneys Present for

Defendants:

None Present

None Present

PROCEEDINGS: IN CHAMBERS – RULING ON

MOTION FOR SUMMARY

JUDGMENT RE: STATUTE

OF LIMITATIONS [740]

Attached hereto is the ruling on Defendants’ pending

Motion for Summary Judgment based upon the Statute of Limitations as to the First and Third Causes

of Action in the Fifth Amended Complaint. The Court

sets a status/scheduling conference for January 28,

App. 25

2019 at 8:30 a.m. The parties are to file a Joint status

report by noon on January 24.

______ : ______

Initials of Preparer JG

Arconic, Inc., et al. v. APC Inv. Co.,

Case No. CV-14-6456-GW

Ruling1 on Motion for Summary Judgment Re:

Statute of Limitations

1

At the outset, the Court notes that this ruling is substantially similar in part and substantially different in part to the

tentative rulings issued in the July 12, 2018 Civil Minutes (“MSJ

Tentative I”), Docket No. 788 and in the August 3, 2018 Civil

Minutes (“MSJ Tentative II), Docket No. 792. The Court has made

the most significant modifications to the procedural history portion in Section I.B, the analysis in Section IV, and the conclusion

in the now labeled Section V. The Court’s prior rulings were

merely tentative rulings, and this ruling replaces them and supersedes them in every way following reexamination of the original

and supplemental briefing.

App. 26

I.

Background

A. Factual Background

In the operative pleading, Plaintiffs2 assert

claims against various Defendants,3 arising under the

2

“Plaintiffs” are: Alcoa, Inc.; Alpha Therapeutic Corp.; Applied Micro Circuits Corp.; Arlon, LLC; Astro Aluminum Treating

Co., Inc.; BASF Corp.; Baxter Healthcare Corp.; Cal-Tape & Label

Co.; California Hydroforming Company, Inc.; Cintas Corp.; Columbia Showcase & Cabinet Company, Inc.; County of Los Angeles;

Crosby & Overton, Inc.; Disney Enterprises, Inc.; FHL Group;

Forenco, Inc.; General Dynamics Corp.; Gulfstream Aerospace

Corp.; Hercules, Inc.; Hexcel Corp.; Honeywell International, Inc.;

Ingersoll-Rand Co.; International Paper Co.; Johns Manville; Kimberly-Clark Worldwide, Inc.; Kinder Morgan Liquids Terminals,

LLC; Los Angeles County Metropolitan Transportation Authority;

Masco Corp. of Indiana; Mattel, Inc.; Merck Sharp & Dohme Corp.;

NBC Universal Media, LLC; Pacific Bell Telephone Co.; Pilkington

Group Ltd; Quest Diagnostics Clinical Laboratories, Inc.; Raytheon

Co.; Rio Tinto AUM Co.; Safety-Kleen Systems, Inc.; Scripto-Tokai

Corp.; Sempra Global; Shiley, LLC; Signet Armorlite, Inc.; Soco

West, Inc.; Sonoco Products Co.; Sparton Technology, Inc.; Texaco

Inc.; Texas Instruments, Inc.; The Boeing Co.; The Dow Chemical

Co.; The Regents of the University of California; The SherwinWilliams Co.; Trane U.S., Inc.; TriMas Corp.; Union Oil Co. of

California; Univar USA, Inc.; Universal City Studios, LLC; and

Yort, Inc.

3

“Defendants” are: APC Investment Co.; Associated Plating

Co.; Associated Plating Co., Inc. (fka Associated Plating Acquisition

Corp.); Bodycote Thermal Processing, Inc.; Burke Street, LLC;

Powerine Oil Co.; Continental Heat Treating, Inc.; Continental Development Company, LP; Claudette Earl, an individual; Earl Mfg.

Co., Inc.; ExxonMobil Oil Corp.; Ferro Corp.; Firmenich, Inc.; Foss

Plating Co., Inc.; Gordon E. McCann, an individual; Lynnea R.

McCann, an individual; Darrell K. Golnick, an individual; Clare S.

Golnick, an individual; Cheryl A. Golnick, an individual; Kekropia,

Inc.; Mission Linen Supply; Momentive Specialty Chemicals, Inc.;

William K. Palley, an individual; Palley Supply Co.; Palmtree

Acquisition Corp.; Phibro-Tech, Inc.; Pilot Chemical Corp.; PMC

App. 27

Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601

et seq., and the Resource Conservation and Recovery

Act (“RCRA”), 42 U.S.C. §§ 6901 et seq. See Fifth

Amended Complaint (“5AC”) ¶ 2, Docket No. 526.

The 5AC alleges4 the following: This action is one

of several arising from environmental contamination

at the Omega Chemical Superfund Site located in

Whittier and Santa Fe Springs, California, which the

Environmental Protection Agency (the “EPA”) has

designated as “Operable Unit No. 2” (“OU2” or the

“OU2 Site” or the “OU2 Facility”). See 5AC ¶ 2. The

groundwater contamination in OU2 is approximately

4.5 miles long. See id. Defendants owned properties,

operated businesses, or arranged for treatment of

waste at businesses sitting near or atop the OU2 Facility at which hazardous substances and waste (including hexavalent chromium and other solvents)

spilled or discharged onto the ground and made their

way into the soil and groundwater. See id. ¶ 3. As a result, the soil and groundwater have been contaminated; and there are multiple plumes of contamination

blending together into regional groundwater contamination. See id.

The EPA evaluated many Defendants in connection with the OU2 Facility and declared some of them

Specialties Group, Inc.; Union Pacific Railroad Co.; First Dice Road

Co.; and Halliburton Affiliates, LLC.

4

The Court provides a brief synopsis of the allegations in the

5AC to provide a contextual foundation for this motion.

App. 28

“potentially responsible parties” (“PRPs”), warranting

the receipt of a Special Notice Letter (“SNL”) from the

EPA. See id. ¶ 4. The EPA identified in the SNLs certain defendants (“SNL Defendants”) who were potentially liable under CERCLA Section 107 for the OU2

groundwater contamination and for past and future

costs to clean up that contamination. See id. The SNLs

also provided information supporting those conclusions and solicited offers from the SNL Defendants to

take remedial action and design remedial action as to

OU2. See id. The EPA issued General Notice Letters

(“GNLs”) to other PRP Defendants (“GNL Defendants”)

that were potentially liable for cleanup costs at the

Omega Superfund Site, inviting the GNL Defendants

to explain why they should not receive an SNL. See id.

¶ 5.

Plaintiffs in this action are companies that allegedly sent chemicals to Omega Chemical Corporation

(“Omega Chemical”) in Whittier for appropriate processing and recycling. See id. ¶ 7. The EPA asserts that

Omega Chemical’s failure to properly process, recycle,

and dispose of those chemicals resulted in the groundwater contamination and that Plaintiffs are responsible for remediation of the groundwater contamination

underneath the Omega Chemical property. See id. In

addition, the EPA has extended its view of Plaintiffs’

responsibility to include the groundwater contamination in OU2. See id. ¶ 8. The EPA contends that Plaintiffs are responsible for remediating OU2. See id. It

has determined that the contaminated groundwater

should be contained, extracted, and treated in order to

App. 29

be used in a beneficial manner, which will cost tens of

millions of dollars in capital and operating expenditures. See id. ¶ 9.

Each Plaintiff has voluntarily incurred significant

costs to investigate the sources of OU2 contamination

and the remediation of OU2. See id. In doing so, Plaintiffs have collectively spent millions of dollars to address these issues and may incur further future

expenses regarding response costs. See id. Defendants

are responsible for releases of hazardous substances

into the OU2 groundwater and therefore should bear

the costs to clean up that contamination. See id. Defendants have failed to implement source control

measures to prevent groundwater exceeding healthy

levels from leaving source properties as a result of contaminated on-site soils or groundwater. See id. ¶ 10.

This has led to unsafe groundwater continuing to migrate into OU2, swelling costs and the duration of

cleanup efforts. See id.

In this action, Plaintiffs seek recovery from Defendants of necessary response costs that Plaintiffs

have already incurred and will continue to incur due

to the release or threatened release of hazardous substances contaminating OU2 groundwater. See id. ¶ 11.

Plaintiffs also seek declaratory judgment that Defendants are liable for future response costs or damages

binding on any subsequent actions for recovery of response costs or damages. See id. Plaintiffs further endeavor to enjoin certain Defendants from continuing to

release hazardous substances emanating from source

properties that those Defendants own or operate and

App. 30

to force those Defendants to remediate soil and

groundwater contamination to control the spread of

hazardous substances in OU2. See id.

B. Procedural Background

At the outset, the Court notes that the statutory

grounds for the claims in this lawsuit have shifted over

time. In the original Complaint, Plaintiffs sought the

recovery of costs under CERCLA § 107. See Complaint

¶¶ 308-331, Docket No. 1. Though the Complaint mentioned CERCLA § 113 in the declaratory judgment

claim, the Complaint did not allege a contribution action under Section 113(f ). See id. ¶¶ 332-336. The first

appearance of a contribution claim under CERCLA

§ 113(f ) seemed to arise in the June 13, 2016 filing of

the Fourth Amended Complaint (“4AC”), Docket No.

489, wherein Plaintiffs pursued claims for both cost recovery under CERCLA § 107 and contribution under

CERCLA § 113(f ), among others. See 4AC ¶¶ 396-429.

By the 5AC’s filing on November 1, 2016, the CERCLA

§ 107 cost recovery claims for relief were no longer included in the pleading; instead, the CERCLA § 113(f )

contribution claim was included along with an RCRA

§ 7002 cause of action and a claim for declaratory relief

as to liability under CERCLA § 113(f ) for contribution.

See 5AC ¶¶ 396-426.

On April 30, 2018, Moving Defendants5 filed a motion for summary judgment to dismiss the first and

5

“Moving Defendants” are: Associated Plating Company,

Associated Plating Company, Inc., Gordon E. McCann, Lynnea R.

App. 31

third causes of action on statute of limitations grounds;

they provided a notice of errata on May 1, 2018, attaching the motion for summary judgment and a Tab A attached to it with certain illustrative maps located

therein. See Moving Defendants’ Notice of Motion and

Motion for Summary Judgment Re: Statute of Limitations (“MSJ” or “Motion”), Docket No. 754-1; see id.

Tab A (“Maps”), Docket No. 754-2.6 Plaintiffs filed an

opposition to the MSJ.7 See Plaintiffs’ Opposition to

McCann, Darrell K. Golnick, Clare S. Golnick, Cheryl A. Golnick,

Bodycote Thermal Processing, Claudette Earl, Earl Manufacturing Company, Inc., Halliburton Affiliates, Fireman’s Fund Insurance Company and Federal Insurance Company Interveners for

Palley Supply Company, Ferro Corporation, PMC Specialties

Group, Inc., Palmtree Acquisition Corporation, Phibro-Tech and

First Dice Road Company, Foss Plating Company, and Union Pacific Railroad Company.

6

Moving Defendants move for summary judgment as to

Plaintiffs’ first and third claims for relief, arguing that the threeyear statute of limitations in 42 U.S.C. § 9613(g)(3)(B) bars them.

See MSJ at 18-25. In the 5AC, Plaintiffs style the first claim for

relief as “Contribution Under CERCLA,” alleged against all Defendants except for Burke Street LLC. See 5AC ¶¶ 396-407. The

third claim for relief is labeled as “Declaratory Judgment Under

Federal Law,” alleged against all Defendants except Burke Street

LLC. See id. ¶¶ 424-426.

7

As part of Plaintiffs’ Opposition, they filed a request for judicial notice. See Plaintiffs’ Request for Judicial Notice in Support

of Opposition to MSJ (“Pls.’ RJN”), Docket No. 770-1. Moving Defendants do not appear to have objected to Plaintiffs’ RJN. See

Docket. The Court finds the exhibits attached to Plaintiffs’ RJN

to be appropriate for judicial notice as per Fed. R. Evid. 201. Moving Defendants also filed a request for judicial notice of a complaint in a prior related action. See Moving Defendants’ Request

for Judicial Notice in Support of MSJ (“Defs.’ RJN”), Docket No.

785. Moving Defendants’ RJN is fit for judicial notice as per Fed.

R. Evid. 201.

App. 32

Defendants’ Motion for Summary Judgment Re: Statute of Limitations (“Opp’n”), Docket No. 770. Moving

Defendants filed a reply in support of the MSJ (“Reply,”

Docket No. 779) and a “Response to Statement of Uncontroverted Material Facts” (“DRSUF,” Docket No.

780.8

On July 12, 2018 the Court issued its tentative ruling as to the MSJ, indicating its inclination to deny the

motion. See July 12, 2018 Civil Minutes (“MSJ Tentative I”), Docket No. 788. During the hearing on that

motion, the Court asked for an itemization of “what the

[OU2 response costs] generally are and the source of

those amounts. . . . the expenditures that [Plaintiffs]

have and to the extent that [Plaintiffs] know what they

are now. . . .” See July 12, 2018 Hr. Tr. at 19:5-17. The

Court also granted the request for the submission of

supplemental briefing from each side. See id. 21:22-24.

Plaintiffs filed their supplemental briefing. See Plaintiffs’ Supplemental Brief in Opposition to MSJ (“Pls.’

Supp. I”), Docket No. 789. They attach what they label

a Timeline of OU2 Activities and OPOG Costs (“Costs

Timeline”), Docket No. 789-1. Moving Defendants filed

a supplemental reply brief. See Moving Defendants’

Reply to Plaintiffs’ Offer of Proof Re: Costs Barred by

the Statute of Limitations (“Defs.’ Supp. I”), Docket No.

790. The Court heard oral argument on the MSJ again

8

In support of the Reply, Moving Defendants filed a request

for judicial notice. See Moving Defendants’ Request for Judicial

Notice in Support of Their Reply (“Defs.’ RJN”), Docket No. 785.

The Court finds the single exhibit, a complaint filed in a different

proceeding, fit for judicial notice.

App. 33

on August 6, 2018 and issued another tentative ruling

three days prior. See Aug. 3, 2018 Civil Minutes (“MSJ

Tentative II), Docket No. 792. On September 21, 2018

and September 28, 2018, the parties submitted additional briefing. See generally Moving Defendants’ PostArgument Brief, Docket No. 802 (“Defs.’ Supp. II”);

Plaintiffs’ Response to Defendants’ Post-Argument

Brief Re: Statute of Limitations (“Pls.’ Supp. II”),

Docket No. 804.

C. Statutory Context

The Ninth Circuit provided a helpful statutory

overview of CERCLA in Asarco LLC v. Atl. Richfield

Co., 866 F.3d 1108 (9th Cir. 2017), stating as follows:

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 Pritikin 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

App. 34

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 hazardous

substances from the environment” and any

actions that may be necessary “in the event of

the threat of release of hazardous substances

into 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, 127

S.Ct. 2331 (“[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

App. 35

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, 125 S.Ct. 577, 160 L.Ed.2d 548

(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, 125

S.Ct. 577; Atl. Research, 551 U.S. at 138-39,

127 S.Ct. 2331; Whittaker, 825 F.3d at 100607.

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, 127 S.Ct. 2331. 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.

§ 9613(f )(1). . . . Section 113(f )(3)(B), which is

directly at issue [in Atl. Richfield], 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

App. 36

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,

127 S.Ct. 2331; see Cooper, 543 U.S. at 163,

167, 125 S.Ct. 577 (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, 127 S.Ct. 2331. 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 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

App. 37

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, 123637 (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).

The shorter three-year limitations period for

contribution actions is intended “to ensure

that the responsible parties get to the bargaining – and clean-up – table sooner rather

App. 38

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), reprinted in

1986 U.S.C.C.A.N. 2835, 2862)).

See Atl. Richfield, 866 F.3d at 1115-1117 (internal footnotes omitted).

CERCLA § 113(g)(3) provides:

No action for contribution for any response

costs or damages may be commenced more

than 3 years after –

(A) the date of judgment in any action

under this chapter for recovery of such

costs or damages, or

(B) the date of an administrative order

under section 9622(g) of this title (relating to de minimis settlements) or 9622(h)

of this title (relating to cost recovery settlements) or entry of a judicially approved

settlement with respect to such costs or

damages.

See 42 U.S.C. § 9613(g)(3).

App. 39

II.

Undisputed Facts9

A. The Site

This lawsuit pertains to a 4.5 mile plume of contaminated groundwater situated south/southwest of

the former Omega Chemical Corporation processing

plant in Whittier, referred to as OU2 of the Omega Superfund Site.10 DRSUF ¶ 1; 5AC ¶ 2. In 1995, the EPA

issued a Unilateral Administrative Order (“UAO”) requiring the UAO Respondents11 to “undertake and

9

Some of the underlying “undisputed” facts cited herein

have been disputed by Plaintiffs or Moving Defendants. The

Court has reviewed such disputes and has included in this summary only facts that are supported by the cited evidence, altering

the proffered facts if necessary to accurately reflect the uncontroverted evidence. To the extent that the cited underlying “undisputed” facts have been disputed, the Court finds that the stated

disputes: (1) fail to controvert the proffered “undisputed” facts, (2)

dispute the facts on grounds not germane to the below statements, and/or (3) fail to cite evidence in support of the disputing

party’s position. As such, the Court treats such facts as undisputed. Any proffered facts not included in this Tentative Ruling

were found to be: (1) improper opinions or conclusions rather than

facts, (2) were unsupported by admissible evidence, (3) were

deemed irrelevant to the Court’s present analysis, or (4) some

combination thereof.

10

Many of Moving Defendants’ uncontroverted facts and

supporting evidence are mere allegations in the 5AC. See generally Moving Defendants’ Statement of Uncontroverted Material

Facts and Conclusions of Law in Support of MSJ, Docket No. 742.

Generally, to the extent the statements merely regurgitate what

Plaintiffs allege, they will not be repeated here but are instead

located in the background section above.

11

The UAO Respondents were listed in Appendices A and B

of the UAO. See Doty Decl. Ex. 7 at 1, 21-32. Not all of the Plaintiffs in this case are listed as UAO Respondents (and vice versa)

in the UAO.

App. 40

complete removal activities to abate an imminent and

substantial endangerment to the public health, welfare, or the environment.” See Declaration of Robert P.

Doty in Support of Moving Defendants’ Motion for

Summary Judgment (“Doty Decl.”) Ex. 7 at 2, Docket

No. 744.12 The EPA addressed the UAO to Omega

Chemical, its owner, and over 100 Omega Property

Generators (“Generators”), which comprised of entities

that sent chemicals to the Omega Facility for recycling

or reclamation. See id. at 3-4; Declaration of Gene A.

Lucero in Support of Plaintiffs’ Opposition to MSJ

(“Lucero Decl.”) ¶ 6, Docket No. 770-18. A portion of

those public and private Generators formed the Omega

Chemical Potentially Responsible Parties Organized

Group (“OPOG”) to work together with government

regulators and Omega Chemical to evaluate the need

for and perform necessary response actions at the

Omega Facility. See Lucero Decl. ¶ 4. Plaintiffs in this

lawsuit are included among the members of OPOG. See

id. ¶ 5. The EPA identified Plaintiffs and certain Defendants in this action as jointly and severally liable

for the regional groundwater contamination at the

12

This page number refers to the pagination at the bottom

right of the exhibit. All other page numbers for exhibits refer to

that pagination unless noted otherwise. Rather than listing the

docket numbers for each exhibit, the Court will list the exhibits

and corresponding dockets here. As to the exhibits attached to the

Doty Declaration, Exhibits 1 through 5 are at Docket No. 745; Exhibits 6 through 6A are at Docket No. 746; Exhibits 7 through 13A

are at Docket No. 747; Exhibits 14-16 are at Docket No. 748; Exhibits 18-20 are at Docket No. 749; Exhibits 21-28 are at Docket

No. 750; Exhibits 29-32 are at Docket No. 751.

App. 41

Omega Superfund Site designated as OU2.13 See

DRSUF ¶ 2.

B. Response Costs

Plaintiffs have incurred significant costs to investigate the sources and the remediation of the OU2 Facility. See DRSUF ¶ 8; 5AC ¶ 9. This has amounted to

millions of dollars. See id. Remedying the situation will

require tens of millions of dollars in capital and operating expenditures for years to come. See id. Possible

groundwater treatment technologies for the remediation, as described in a 2016 EPA fact sheet, include extraction wells, conveyance piping, and treatment

equipment.14 See Doty Decl. Ex. 5 at pg. 6 Fig. 3.

C. Relevant Settlements

1. The 2000 Action and the Related 2001

Consent Decree

In 2000, in United States v. Abex Aerospace Division,

Case No. 00-cv-12471-TJH-(JWJx) (“2000 Action”),

13

Exhibit 4 to the Doty Declaration does not state the quoted

language in DRSUF ¶ 2, but based on Plaintiffs’ response and

Moving Defendants’ reply, this statement seems to constitute the

overlapping undisputed statement of both parties.

14

Jack Keener, who has “knowledge and experience as Project Manager and Project Coordinator” provided information

about the amounts and descriptions of costs incurred by OPOG

relating to OU2 in each of the years between 2001 and 2018,

which has been incorporated into the Costs Timeline. See Declaration of Jack Keener in Support of Plaintiffs’ Opp’n, Docket No.

789-3.

App. 42

Plaintiff United States sued a number of defendants15

under CERCLA Sections 106 and 107, seeking: (1) reimbursement of costs incurred by the EPA and the Department of Justice for response actions at the Omega

Chemical Corporation Superfund Site in Whittier, California and (2) seeking performance of studies and

“Work” by the “Settling Work Defendants”16 at the

Omega Site consistent with the National Contingency

Plan (“NCP”). See Doty Decl. Ex. 13 at 4 (summarizing

the complaint in that action). The complaint in the

2000 Action alleged that the United States had incurred at least $554,189 in response costs for responding to the release or threatened release of hazardous

substances at the former hazardous waste treatment

and storage facility of Omega Chemical Corporation.

See Defs.’ RJN Ex. A ¶ 6, 11. On February 28, 2001,

Judge Terry J. Hatter (“Judge Hatter”) entered an order approving a consent decree (“2001 CD”) between

the United States and certain settling defendants. See

generally Doty Decl. Ex. 13. The 2001 CD provided that

“[t]he Settling Work Defendants will install three sentinel groundwater monitoring wells at two or three

15

Defendants in that case are delineated on the first three

pages of the 2001 Consent Decree and on the first three pages of

the complaint in that matter. See Doty Decl. Ex. 13 at 1-3; see also

Defs.’ RJN Ex. A at 1-3, Docket No. 785.

16

“Settling Work Defendants” is defined in the 2001 Consent

Decree as “those parties identified in Appendix D, who are signatories to this Consent Decree, who are required to perform the

Work, whether they perform the Work by themselves or through

any legal entity that they may establish to perform the Work.”

See Doty. Decl. Ex. 13 at 8. Appendix D does not seem to appear

in the materials provided by either party. See Docket.

App. 43

locations downgradient of Phase 1a Area and upgradient of Water Supply Well 30R3.” See Doty Decl. Ex. 13

at 49 (Task 3). The other two tasks required under the

2001 CD were: (1) the design and implementation of

“a groundwater containment and mass removal treatment system in the Phase 1a Area” and (2) the implementation of a “Remedial Investigation/Feasibility

Study (“RI/FS”) at the Omega property for vadose zone

contamination that has resulted from the release of

hazardous substances on, at, or emanating from the

Omega property.” See id. at 44-49 (Tasks 1 and 2).

2. The 2004 Action and the Related 2007

Settlement

In 2004, in the case of Omega Chemical PRP

Group LLC v. Aeroscientific Corp., Case No. 04-cv-1340TJH-(JWJx) (“2004 Action”), Omega Chemical PRP

Group LLC sued over 200 defendants who were allegedly responsible for hazardous substances stored,

treated, or disposed of at the Omega Site. See Doty

Decl. Ex. 6 at 1. In February 2004, plaintiffs in that

action filed a complaint alleging: (1) contribution under

CERCLA against non-federal defendants and (2) contribution under CERCLA against federal defendants.

See generally Doty Decl. Ex. 18 (“2004 Complaint”).

Those plaintiffs sought to recover response costs incurred in connection with the Omega Site pursuant to

CERCLA Sections 107 and 113.17 See id. Approval of

17

In more detail, the plaintiffs in the 2004 Complaint sought

the relief delineated at pages 28-29 of Doty Decl. Ex. 18 (page

App. 44

another settlement was entered on March 9, 2007

(“2007 Settlement”) but in relation to the 2004 Action.

See generally Doty Decl. Ex. 23. As part of an effort to

establish that this was a good faith settlement, two

declarations referenced an EPA $101.5 million cost estimate. See DRSUF ¶ 18; Doty Decl. Ex. 22 ¶ 10; see id.

Ex. 24 ¶ 6. This cost estimate derives from a 2004 EPA

memorandum (“2004 Cost Estimate Memo”) by Dr.

Tom Perina (“Dr. Perina” or “Perina”). See DRSUF ¶ 19;

see generally Doty Decl. Ex. 19. In the 2004 Cost Estimate Memo, Dr. Perina described the groundwater as

containing contamination dissolved within it over an

area of at least 2.5 miles long and .75 miles wide (the

“plume”). Id., Ex. 19 at 2. The 2004 Cost Estimate

Memo assumed extraction and treatment of contaminated groundwater as the presumptive remedies for

the site – characterized as “pump and treat” using a

complex treatment train to address chemicals in the

plume. See id. at 2-3. This estimate included wells, water conveyance pipelines, and a treatment plant as

components of the conceptual remediation system. See

id. at 3. The pump and treat system would operate for

30 years with soil remediation taking 3 years. See id.

Hexavalent chromium and PCE (tetrachloroethylene)

were therein identified as contaminants detected in

the Omega Site, with the 2004 Cost Estimate Memo

noting that other contaminants may be identified in

the future. See id. at 2-3. Dr. Perina estimated that soil

remediation costs with a 3.1% discount rate would add

numbers used for this citation are at the bottom right-hand side

of the exhibit).

App. 45

up to $3.9 million and groundwater pump and treat

costs would amount to $97.5 million. See id. at pg. 5

Table 1. In a 2005 EPA fact sheet and EPA memo, $6.4

million is the estimate for the cost of pumping and

treating OU-1’s groundwater. See DRSUF ¶ 26; Doty

Decl. Ex. 26 at 3. Eliminating that $6.4 million figure

from the $97.5 million figure amounts to $91.1 million

for pumping and treating.

The 2007 Settlement, in Section 2.03, defines

“Claims or Claims and Liabilities” as:

[A]ny and all claims (including without limitation all contribution claims in litigation or

arbitration), losses, demands, causes of action,

obligations, direct or consequential damages,

injuries, liens, costs (including without limitation reimbursement of government response

costs and legal costs), civil fines, penalties,

expenses, fees and liabilities of any nature

whatsoever (including without limitation attorneys’ fees), whether contractual, statutory,

equitable or under common law, whether

known or unknown, whether accrued or unaccrued, that are based on or arise from the Site.

See Doty Decl. Ex. 6A § 2.03. “Site” is defined as “the

Omega Chemical Corporation Superfund Site listed on

the National Priorities List on January 19, 1999, 64

Fed. Reg. 2945.” See id. § 2.19.

The 2007 Settlement provides for a release of “Settled Matters.” See id. § 5.01. Section 5.02 sets out “Excluded Matters” from the 2007 Settlement, and for a

claim or liability arising from the Site to be excluded it

App. 46

must not be for Regional Response Work. See id.

§ 5.02(j). “Regional Response Work” is defined under

the 2007 Settlement as “work that the Governments

require the Parties, or any one of them to perform, or

which they perform at the request or demand of the

Governments or any one of them, regarding regional

groundwater contamination alleged to be attributed to

the Site.” See id. § 2.16. In other words, Regional Response Work is not considered one of the Excluded

Matters. See id. Except for Excluded Matters and certain ministerial tasks, and pursuant to terms and conditions in the 2007 Settlement, OPOG and Omega

Chemical PRP Group LLC assumed “each Settling

Party’s responsibilities for the Site, including, but not

limited to, all the response costs associated with the

Site.” See id. 3.01(a).

Sections 5.03 and 6.01 of the 2007 Settlement preserve certain rights to additional recovery by the

Group18 against some of the settling defendants and

third parties. See id. §§ 5.03, 6.01. The Group could recover additional payments of the amount by which Total Collective Costs exceed $70 million, not to exceed

the settling party’s share of $93 million. See Doty Decl.

Ex. 6A § 5.03. “Total Collective Costs” are defined in

the 2007 Settlement as “total Site response costs that

have been or are in the future expended by the Group

and the Settling Parties.” See id. § 2.21. Those costs include costs attributable to “PRPs the Group has or does

otherwise settle with . . . [and] PRPs from whom the

18

The 2007 Settlement defines “Group” as OPOG and the

Omega Chemical PRP Group LLC.

App. 47

Group recovers through litigation to judgment.” See id.

§ 2.21.

As part of the papers arguing to Judge Hatter that

the 2007 Settlement was a good faith settlement, the

memorandum in support thereof stated that the

2007 Settlement resolves the settling parties’ “claims

against each other with regard to their responsibilities

for the Omega Site, including claims for response costs

under the completed UAO 95-15 work, Phase 1a Response work called for under the Consent Decree, as

amended, and any future Regional Response Work,

except as specifically limited in the [2007] Settlement

Agreement.” See Doty Decl. Ex. 6 at 4-5.

3. The 2010 Action and the Related 2010

Consent Decree

In 2010 in the case of United States v. Alcoa Inc.,

Case No. 2:10-cv-05051-TJH-(PLAx) (“2010 Action”),

Plaintiff United States sued a number of defendants

under CERCLA Section 107 to recover response costs

in connection with the Omega Site. See generally Complaint, Case No. 2:10-cv-05051-TJH-PLA Docket No. 1.

The complaint in the 2010 Action alleged that the

United States incurred at least $17 million in unreimbursed response costs in responding to the releases or

threatened releases of hazardous substances at the former waste treatment and storage facility of Omega

Chemical Corporation. See id. ¶¶ 6, 11.

On October 6, 2010, the EPA, settling work defendants (“2010 Settling Work Defendants”), settling cash

App. 48

defendants (“2010 Settling Cash Defendants”) and

other parties entered into a Consent Decree (“2010

CD”). See generally Doty Decl. Ex. 32. “Site” under the

2010 CD means “the Omega Chemical Corporation Superfund Site, listed on the National Priorities List on

January 19, 1999, 64 Fed. Reg. 2950.” See id. at 10. Paragraph 88 of the 2010 CD provides that:

Claims Against De Minimis and Ability to Pay

Parties. Settling Defendants agree not to assert any claims or causes of action and to

waive all claims or causes of action (including

but not limited to claims or causes of action

under Sections 107(a) and 113 of CERCLA)

that they may have for all matters relating to

the Site against any person that has entered

or in the future enters into a final CERCLA

Section 122(g) de minimis settlement, or a final settlement based on limited ability to pay,

with EPA with respect to the Site. This waiver

shall not apply with respect to any defense,

claim, or cause of action that a Settling Defendant may have against any person if such

person asserts a claim or cause of action relating to the Site against such Settling Defendant.

See Doty Decl. Ex. 32 ¶ 88. Under the 2010 CD, the

2010 Settling Work Defendants would pay $1.5 million

toward the EPA’s unrecovered costs at the Site, would

pay all future response costs not inconsistent with the

NCP, and would perform various remedial work as to

the Site. See id. ¶¶ 9-16, 49-50. The 2010 Settling Cash

App. 49

Defendants had various payment obligations under

the 2010 CD. See id. ¶¶ 47-48

4. The 2016 Action and the Related 2017

Consent Decree

In the 2016 case of United States v. Abex Aerospace,

Case No. 2:16-cv-02696-GW-(Ex) (“2016 Action”), the

United States and the State of California on behalf of

the Department of Toxic Substances Control (“DTSC”)

sued a number of defendants under Sections 106 and

107 of CERCLA and Section 7003 of the RCRA for injunctive relief and recovery of costs associated with

the release and threatened release of hazardous substances at OU2 or which have come to be located at

OU2. See Case No. 2:16-cv-02696-GW-(Ex) Docket No.

1 at pg. i and ¶ 1. The United States alleged it incurred

at least $20 million in unreimbursed response costs

in responding to hazardous substances or threatened

hazardous substances at or in route to OU2. See id.

¶ 18. Plaintiffs’ response actions allegedly included

remedial investigation, oversight of work by certain

defendants, community relations activities, and preparation feasibility studies and decision documents. See

id.

In 2017, the Court entered a consent decree (“2017

CD”) putting an end to the 2016 Action. See Order to

Enter Consent Decree, Case No. 2:16-cv-02696-GW(Ex) Docket No. 41. The 2017 CD bound the plaintiffs

in that action and certain defendants (“2017 Settling

App. 50

Defendants”).19 See Corrected Consent Decree ¶ 2,

Case No. 2:16-cv-02696-GW-(Ex) Docket No. 19-1. The

2017 CD required the Settling Work Defendants to

make cash payments to the United States and the

DTSC in the amount of $8 million and $70,000 for past

response costs, respectively. See id. ¶ 28. Additionally,

the 2017 Settling Work Defendants agreed to pay all

future response costs incurred by the EPA and DTSC

in overseeing the response actions covered by the 2017

CD, as well as a performance guarantee of $70 million,

which is the estimated cost of the “Work.” See id. ¶¶ 21,

29. The Work was to include groundwater extraction

and treatment in the Northern Extraction Area, Central Extraction Area, and a portion of the Leading Edge

Area of the OU2 plume. See id. ¶¶ O-P. The Work also

was to include investigative work to assist the EPA in

determining the appropriate remainder of the response efforts. See id. In exchange for entering the

2017 CD, all 2017 Settling Defendants received covenants not to sue under CERCLA §§ 106 and 107, as

well as RCRA § 7003 and parallel state provisions, for

the entirety of Plaintiffs’ past OU2 response costs and

the Work required by the 2017 CD. See id. ¶¶ 59-60.

The 2017 Settling Defendants are also entitled to contribution protection under CERCLA § 113(f )(2) for the

“matters addressed” in the 2017 CD. See id. ¶¶ 4, 81.

19

The 2017 Settling Defendants comprised of entities listed

in Appendix D and E of the 2017 CD. See 2017 CD at CM/ECF

pgs. 330-338, Case No. 2:16-cv-02696-GW-(Ex) Docket No. 19-1.

App. 51

III. MSJ Legal Standard

Summary judgment is proper when the pleadings,

the discovery and disclosed materials on file, including

any affidavits/declarations, show that “there is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.”20 Fed. R. Civ.

P. 56; see also Miranda v. City of Cornelius, 429 F.3d

858, 860 n.1 (9th Cir. 2005). To satisfy its burden at

summary judgment, a moving party with the burden

of persuasion must establish “beyond controversy

every essential element of its [claim or defense].” S.

Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888

(9th Cir. 2003). By contrast, a moving party without

the burden of persuasion “must either produce evidence negating an essential element of the nonmoving

party’s claim or defense or show that the nonmoving

party does not have enough evidence of an essential

element to carry its ultimate burden of persuasion at

trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos.,

Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the party

moving for summary judgment meets its initial burden

of identifying for the court the portions of the materials

on file that it believes demonstrate the absence of any

genuine issue of material fact, the nonmoving party

20

Under Federal Rule of Civil Procedure 56, the same legal

standard applies to motions for partial summary judgment and to

ordinary motions for summary judgment. See Fed. R. Civ. P.

56(a): see also California v. Campbell, 138 F.3d 772, 780 (9th Cir.

1998); Barnes v. Cnty. of Placer, 654 F.Supp.2d 1066, 1070 (E.D.

Cal. 2009), aff ’d, 386 F.App’x 633 (9th Cir. 2010) (“A motion for

partial summary judgment is resolved under the same standard

as a motion for summary judgment.”).

App. 52

may not rely on the mere allegations in the pleadings

in order to preclude summary judgment, [but instead]

must set forth, by affidavit or as otherwise provided in

Rule 56, specific facts showing that there is a genuine

issue for trial. T.W. Elec. Serv., Inc., v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (internal citations and quotation marks omitted, emphasis

in original) (citing, among other cases, Celotex Corp. v.

Catrett, 477 U.S. 317 (1986)).

“A non-movant’s bald assertions or a mere scintilla

of evidence in his favor are both insufficient to withstand summary judgment.” FTC v. Stefanchik, 559 F.3d

924, 929 (9th Cir. 2009). In addition, the evidence presented by the parties must be admissible. See Fed. R.

Civ. P. 56(e); see also Pelletier v. Fed. Home Loan Bank

of S.F., 968 F.2d 865, 872 (9th Cir. 1992) (to survive

summary judgment, the non-movant party “ordinarily

must furnish affidavits containing admissible evidence

tending to show the existence of a genuine dispute of

material fact”). Conclusory, speculative testimony in

affidavits and moving papers is insufficient to raise

genuine issues of fact and defeat summary judgment.

See Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d

730, 738 (9th Cir. 1979). With that said, courts do not

make credibility determinations or weigh conflicting

evidence at the summary judgment stage, and must

view all evidence and draw all inferences in the light

most favorable to the non-moving party. See T.W. Elec.,

809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986)); see also

App. 53

Motley v. Parks, 432 F.3d 1072, 1075, n.1 (9th Cir. 2005)

(en banc).

IV. Discussion

Moving Defendants seek summary judgment as to

Plaintiffs’ first and third claims for relief,21 arguing

that the three-year statute of limitations in 42 U.S.C.

§ 9613(g)(3)(B), CERCLA § 113(g)(3)(B) bars them. See

MSJ at 18-25. Plaintiffs disagree. See Opp’n at 11-25.

The core of this Motion rests on whether any prior judicially approved settlement or consent decree triggered the statute of limitations, barring the first and

third claims for relief in the 5AC.

A. Applicable Law on the Statute of Limitations

The Ninth Circuit has recognized the complexity

of CERCLA, noting that the statute contains a “mazelike structure and baffling language.” California ex rel.

Cal. Dep’t of Toxic Substances Control v. Neville Chem.

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

“[w]hile the statutory language may be baffling and

the structure maze-like, the statute clearly indicates

21

In the 5AC, Plaintiffs style the first claim for relief as “Contribution Under CERCLA,” alleged against all Defendants except

for Burke Street LLC. See 5AC ¶¶ 396-407. The third claim for

relief is labeled as “Declaratory Judgment Under Federal Law,”

alleged against all Defendants except Burke Street LLC. See id.

¶¶ 424-426. Because the first and third claims for relief are essentially the same, with the third merely adding a declaratory

relief element, the Court will analyze them together.

App. 54

that any contribution claim for particular remedial

costs is subject to a three-year statute of limitations

once liability for a potentially responsible party (‘PRP’)

becomes recognized through a judicially approved settlement.” ASARCO, LLC v. Celanese Chem. Co., 792

F.3d 1203, 1208 (9th Cir. 2015) (citing 42 U.S.C.

§ 9613(g)(3)(B)). Pursuant to CERCLA § 113, there are

two express avenues for contribution:

§ 113(f )(1) (“during or following” specified

civil actions) and § 113(f )(3)(B) (after an administrative or judicially approved settlement

that resolves liability to the United States or

a State). Section 113(g)(3) then provides two

corresponding 3-year limitations periods for

contribution actions, one beginning at the date

of judgment, § 113(g)(3)(A), and one beginning

at the date of settlement, § 113(g)(3)(B). . . .

[T]o assert a contribution claim under

§ 113(f ), a party must satisfy the conditions of

either § 113(f )(1) or § 113(f )(3)(B).

Cooper Indus., 543 U.S. at 167. CERCLA § 113(g)(3),

the statute of limitations provision at issue here, reads

as follows:

(3)

Contribution

No action for contribution for any response

costs or damages may be commenced more

than 3 years after –

(A) the date of judgment in any action

under this chapter for recovery of such

costs or damages, or

App. 55

(B) the date of an administrative order

under section 9622(g) of this title (relating to de minimis settlements) or 9622(h)

of this title (relating to cost recovery settlements) or entry of a judicially approved

settlement with respect to such costs or

damages.

See CERCLA § 113(g)(3). The Ninth Circuit has elaborated on the statute of limitations component, providing that:

The statute of limitations for a contribution

claim is triggered by the date upon which the

judgment or settlement that underlies the

claim is entered. See id. When the CERCLA

§§ 106 or 107 lawsuit is over and a judgment

is entered, the statute of limitations begins to

run on the cause of action for contribution

that accrued during the pendency of that litigation. See 42 U.S.C. § 9613(g)(3)(A). When a

person resolves its liability to the United

States or a State through an administrative

or judicially approved settlement, a right to

assert a contribution claim against other

PRPs also accrues. Id. § 9613(f )(3)(B). Such a

settlement starts the clock on the three-year

statute of limitations for the contribution

claim that accrues on the basis of that settlement. Id. § 9613(g)(3)(B).

Celanese, 792 F.3d at 1210. Under CERCLA

§ 113(g)(3)(B), private-party judicially approved settlements also trigger the statute of limitations. See id. at

1211.

App. 56

The outstanding question is whether the 2007 Settlement constitutes a judicially approved settlement

“with respect to” response costs or damages sought in

the present action for contribution. There is no doubt

that the 2007 Settlement constitutes a judicially approved settlement within the meaning of CERCLA

§ 113(g)(3). Therefore, the issue before the Court is

merely whether the 2007 Settlement is with respect to

the response costs or damages sought in this lawsuit.

This inevitably requires a comparison of such costs.

B. Which Costs Are Sought in This Lawsuit?

It behooves the Court to begin with establishing

what response costs or damages are sought in the present action for contribution. The Court has two primary sources for determining the costs sought here:

the 5AC and the Costs Timeline that Plaintiffs provided. First, in the 5AC, Plaintiffs seek the following:

(1) ON THE FIRST CLAIM FOR RELIEF,

for contribut[i]on for all costs and damages incurred by Plaintiffs, including pre-judgment

interest thereon as allowed by law, that exceed Plaintiffs’ equitable share of the costs

for which Plaintiffs are liable under the OU-2

Consent Decree;

***

(3) ON THE THIRD CLAIM FOR RELIEF,

for a judicial declaration that Defendants are

liable for their respective equitable shares of

App. 57

all costs and damages incurred by Plaintiffs,

including pre-judgment interest thereon as

allowed by law, that exceed Plaintiffs’ equitable share of the costs for which Plaintiffs are

liable under the OU-2 Consent Decree. . . .

See 5AC at 102-103. Paragraph 9 also bears relevance:

Plaintiffs have each voluntarily incurred significant costs to investigate the sources to,

and the remediation of, the OU-2 Facility, collectively spending millions of dollars to address it, and may incur millions of dollars

more in future response costs. EPA has determined that the contaminated groundwater

should be contained, extracted, and treated so

that it can be used in a beneficial manner.

This remedy will require tens of millions of

dollars in capital and operating expenditures

for years to come. Upon information and belief, Defendants are responsible for releases of

hazardous substances to the OU-2 Facility

groundwater and therefore should bear the

costs to clean up the resulting contamination.

See id. ¶ 9.

As the second source that the Court draws upon to

discern what costs are sought here, Plaintiffs submitted the Costs Timeline. In the Costs Timeline, Plaintiffs include a three-page matrix. See generally Costs

Timeline. That matrix, titled in full as “Timeline of

OU2 Activities and OPOG Costs,” bears four columns.

See id. Those columns are titled as follows: (1) Year; (2)

Major EPA OU2 Activities; (3) Major OPOG OU2 Activities; and (4) OPOG OU2 Costs. See id. Each row

App. 58

represents a period of time (starting in 2001 and ending in 2018). Plaintiffs aver that $16,500,000 in OPOG

OU2 costs have been incurred (or that they seek that

much in costs). See id. at CM/ECF pg. 3. Some of the

costs Plaintiffs seek relate to the “data collection on nature and scope of OU2 contamination;” “[d]ata collection on OU2 PRPs;” “work on OU2 RI;” “GNLs for RI;”

“EPA work on OU2 RI;” “work on OU2 and [p]roposed

[r]emedy;” “comments on draft RI;” “[f ]inal OU2 RI/FS

and Proposed Remedy Plan for public comment;” “OU2

ROD;” “SNLs with draft OU2 CD and Statement of

Work;” “Good Faith Offers;” “negotiations with OPOG

on GFO;” “settlement negotiations with OPOG and

McKesson;” “[n]egotiations on CD and SOW continue

based on term sheet;” and “ongoing oversight of OU2

CD SOW.” See generally Costs Timeline.

C. Which Costs Were Covered in the 2007

Settlement?

Next, the Court must establish what costs the

2007 Settlement covers as a point of comparison. The

Court applies California principles of contract interpretation in performing this task.22 From reviewing

22

Pursuant to California law, “the mutual intention of the

parties at the time the contract is formed governs interpretation.”

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

Civ. Code § 1636). To discern the parties’ intent, the Court looks

solely to “the written provisions of the contract.” Id. (citing Cal.

Civ. Code § 1639). The Court applies the ordinary meaning of a

contract’s terms. Id.; Cal. Civ. Code § 1644. Regardless of how

broad a contract may look, “it extends only to those things

App. 59

the 2007 Settlement, it provides for a release of “Settled Matters.” See Doty Decl. Ex. 6A § 5.01. On the

other hand, Section 5.02 sets out “Excluded Matters,”

and for a claim or liability arising from the Site to be

excluded from the settlement it must not be for “Regional Response Work.” See id. § 5.02(j). In other

words, Regional Response Work is not considered one

of the Excluded Matters and would thus be settled.

See id. “Regional Response Work” under the settlement

means “work that the Governments require the Parties, or any one of them to perform, or which they perform at the request or demand of the Governments or

any one of them, regarding regional groundwater contamination alleged to be attributed to the Site.” Except

for Excluded Matters and certain ministerial tasks,

and pursuant to terms and conditions in the 2007 Settlement, OPOG and Omega Chemical PRP Group LLC

assumed “each Settling Party’s responsibilities for the

Site, including, but not limited to, all the response costs

associated with the Site.” See id. 3.01(a). The Court

would also construe the 2007 Settlement as covering

OU2. To support this interpretation, Section 2.19 defines “Site” as “the Omega Chemical Corporation Superfund Site listed on the National Priorities List on

January 19, 1999, 64 Fed. Reg. 2945.” See Doty Decl.

Ex. 6A § 2.19.

Three other documents and/or evidence, among

others, contribute to the Court’s understanding of

concerning which it appears that the parties intended to contract.” Cal. Civ. Code § 1648.

App. 60

what the 2007 Settlement covers.23 First, though the

2004 Cost Estimate Memo is not binding, it provides

insight into what the 2007 Settlement covered because

it had a hand in the Court’s approval of that settlement. Dr. Perina described the groundwater as containing contamination dissolved within it over an area

of at least 2.5 miles long and .75 miles wide (the

plume). See Doty Decl. Ex. 19 at 2, Docket No. 749. The

2004 Cost Estimate Memo assumed extraction and

treatment of contaminated groundwater as the presumptive remedies for the site, characterized as pump

and treat using a complex treatment train to address

chemicals in the plume. See id. at 2-3. This estimate

included wells, water conveyance pipelines, and a

treatment plant as components of the conceptual remediation system. See id. at 3. The pump and treat system would operate for 30 years with soil remediation

taking 3 years, under this conceptual remedy. See id.

at 3. Hexavalent chromium and PCE (tetrachloroethylene) were therein identified as contaminants detected in the Omega Site, with the memo noting that

other contaminants may be identified in the future.

See id. at 2-3. Dr. Perina estimated that soil remediation “Capital and O&M” costs with a 3.1% discount

rate would add up to $3.9 million and groundwater

pump and treat costs would amount to $97.5 million.

See Doty Decl. Ex. 19 at pg. 5 Table 1. See generally

Doty Decl. Exs. 6A, 19. The Court distinguishes this

23

These documents and/or evidence give the Court context.

The Court’s decision rests with the language in the 2007 Settlement, though these documents and/or evidence reaffirm the

Court’s conclusion.

App. 61

situation from that in Celanese where there was a

concrete Remedial Action Plan incorporated into the

settlement, but the 2004 Cost Estimate Memo nonetheless has some bearing on what the 2007 Settlement

covered. See Celanese, 792 F.3d at 1212 (noting that the

settlement included an agreement to “undertake site

remediation to investigate, monitor, and abate actual

or threatened contamination . . . caused by or related

to the conditions at the site addressed by the Remedial

Action Plan.”). The 2004 Cost Estimate Memo also supports an interpretation that the 2007 Settlement covered OU-2, with a mention that the estimated cost for

groundwater included multiple sites downgradient

from the Omega processing plant and chemicals not

connected to the Omega plant. See Doty Decl. Ex. 19 at

2. Second, Albert Cohen (“Mr. Cohen”), an attorney for

certain Plaintiffs’ counterparties in the 2007 Settlement, testified in his deposition that no representatives of OPOG communicated to him that the “60-80

million dollars’ worth of costs EPA’s talking about as

of 2016” are different than what was “settled back in

2006.” See Doty Decl. Ex. 27 at exhibit stamped pgs.

5-7. Third, the 2004 Complaint leading to the 2007 Settlement sought recovery of “costs expended and to be

expended by . . . Plaintiff OPOG and its members in

response to the releases and/or threatened releases of

hazardous substances from the Omega Site.” See Doty

Decl. Ex. 18 at 28-29 (emphasis added). There was no

limitation to OU-1 or exclusion of OU-2. See id.

App. 62

D. Were the Costs Sought in the Present

Action with Respect to Those Covered

in the 2007 Settlement?

With the Court identifying above the costs sought

in the present action and the costs covered in the 2007

Settlement, the Court can now determine whether the

specific response costs sought in the present action are

“with respect to” such costs covered in the 2007 Settlement. See CERCLA § 113(g)(3). That is the crux of the

CERCLA § 113(g)(3) inquiry currently before the

Court.

This situation is somewhat similar to that in Celanese, and so the Court will address that case here before executing a cost comparison. Celanese involved a

silver and lead smelter in Contract Costa County. See

ASARCO LLC v. Shore Terminals LLC, No. C 11-01384

WHA, 2012 WL 2050253, at *1 (N.D. Cal. June 6, 2012),

aff ’d sub nom., ASARCO, LLC v. Celanese Chem. Co.,

792 F.3d 1203 (9th Cir. 2015).24 As a result of lead and

refining operations, a waste product of smelting deposited in ASARCO’s land as well as tidelands leased by

ASARCO from the California State Lands Commission. See id. A company named Wickland Oil Company

purchased ASARCO’s portion of the site. See id. Wickland Oil Company subsequently commenced litigation

against ASARCO and the California State Lands

24

The Court uses the case name “Celanese” to refer to the

entire litigation, both at the district court level and in the subsequent appeal to the Ninth Circuit. Any citation to “2012 WL

2050253” refers to the district court decision whereas the citation

to “792 F.3d 1203” refers to the Circuit decision.

App. 63

Commission. See id. at *2. In 1989, the parties entered

into a judicially approved settlement where the parties

undertook two broad categories of remediation costs.

See id. One category included four “Interim Remedial

Measures,” among other things, with each party assuming one third of the cost responsibility. See id. at

*2. The other category included “other remediation

costs” such as future costs for remediation measures

necessary and appropriate and costs associated with

reimbursement of a government agency for costs incurred in connection with site remediation. See id.

ASARCO filed the action in March 2011 against certain defendants not party to the 1989 settlement, seeking contribution under Section 113(f ) for costs

ASARCO incurred. See id. at *3. Ultimately, in Celanese, the district court held that the 1989 settlement’s

terms covered the costs in the contribution action, barring recovery beyond the three-year statute of limitations:

While it may not have been known at the time

the 1989 Wickland Settlement was entered

into exactly how much the entire remediation

efforts would cost, the Settlement’s provisions

demonstrate that the settling parties agreed

to share responsibility for future remediation

costs – such as those associated with acid-impacted soils, leaching of metals from the slag,

and groundwater contamination. ASARCO’s

argument that the costs it seeks from defendant in the present dispute are not covered

by the 1989 Wickland Agreement is not

App. 64

supported by the record, and defendant’s motion must therefore be GRANTED.

See id. at *9.

On appeal, the Ninth Circuit affirmed the district

court’s decision, holding that the 1989 settlement triggered the statute of limitations. See Celanese, 792 F.3d

at 1215. Reviewing the settlement de novo, the Ninth

Circuit noted that the settlement included an agreement for the parties to “undertake site remediation to

investigate, monitor, and abate actual or threatened

contamination . . . caused by or related to the conditions at the site addressed by the Remedial Action

Plan.” See id. at 1212. This Remedial Action Plan was

based on a report of an environmental consultant,

eventually incorporated into the 1989 settlement. See

id. The court held that “[t]he fact that the full costs

were unknown at the time does not mean that the

Wickland Agreement was less than comprehensive.”

See id. at 1213.

Earlier, this Court tentatively concluded that the

response costs and damages sought herein were not

“with respect to” the costs covered in the 2007 Settlement. See generally MSJ Tentative II. But, the Court

has changed its perspective in light of reexamining the

parties’ arguments, CERCLA, the case law, and the relevant evidence. The 2007 Settlement cast a wide net

that includes the costs sought in the 5AC and that are

more specifically delineated in the Costs Timeline.

That settlement is “comprehensive” like the one in

Celanese. As discussed above, the 2007 Settlement

App. 65

covers “Regional Response Work,” which means “work

that the Governments require the Parties, or any one

of them to perform, or which they perform at the request or demand of the Governments or any one of

them, regarding regional groundwater contamination

alleged to be attributed to the Site.” See id. § 2.16. Except for Excluded Matters and certain ministerial

tasks, and pursuant to terms and conditions in the

2007 Settlement, OPOG and Omega Chemical PRP

Group LLC assumed “each Settling Party’s responsibilities for the Site, including, but not limited to, all the

response costs associated with the Site.” See id. 3.01(a).

The Costs Timeline and 5AC fall within those definitions, and, like in Celanese, the Costs Timeline includes

a mixture of costs known to the parties when they executed the 2007 Settlement and future demands made

by regulators. Though the 2007 Settlement speaks for

itself and is sufficient, the testimony of Cohen and the

2004 Cost Estimate Memo solidify and reaffirm that is

the case from a practical perspective. It is also clear to

the Court that Plaintiffs have not raised any evidence

to create a triable issue of fact as to whether the 2007

Settlement covered OU-2. Discussed above, Section

2.19 of the 2007 Settlement defines “Site” as “the

Omega Chemical Corporation Superfund Site listed on

the National Priorities List on January 19, 1999, 64

Fed. Reg. 2945.” See Doty Decl. Ex. 6A § 2.19. Also in

support of this reading, the 2004 Complaint leading to

the 2007 Settlement sought recovery of “costs expended and to be expended by . . . Plaintiff OPOG and

its members in response to the releases and/or threatened releases of hazardous substances from the Omega

App. 66

Site.” See Doty Decl. Ex. 18 at 28-29 (emphasis added).

The 2004 Complaint, and the 2007 Settlement that followed, did not limit themselves to costs associated with

OU-1 only, but rather they covered the entire Omega

Superfund Site, which would inherently include OU-2.

In addition, the 2004 Cost Estimate Memo mentions

that the estimated cost for groundwater included multiple sites downgradient from the Omega processing

plant and chemicals not connected to the Omega plant.

See Doty Decl. Ex. 19 at 20. The Cohen testimony discussed above also implies that the 2007 Settlement

covered OU-2. See Doty Decl. Ex. 27 at exhibit stamped

pgs. 5-7.

After reviewing Plaintiffs’ various arguments, the

Court rejects their (at least) three attempts to read

additional requirements into CERCLA § 113(g)(3)(B)

that are not supported by applicable statutory interpretation. First, the Court is not convinced by Plaintiffs’ argument that the de minimis status of Plaintiffs’

generator counter-parties in the 2007 Settlement is

dispositive. See Pls.’ Supp. at 11-14; see also Opp’n at

22-25. Instead, the Court is inclined to agree with Moving Defendants that “[r]ather than focus on who settled the cost-recovery action, in short, the statute asks

us to focus on what was settled.” See RSR Corp. v.

Commercial Metals Co., 496 F.3d 552, 557 (6th Cir.

2007) (cited in a Celanese, 792 F.3d at 1214). Congress

could have included such a requirement in CERCLA

§ 113(g)(3)(B), but it did not and the Court is reluctant

to read in such a requirement even after considering

App. 67

Plaintiffs’ policy arguments to do so.25 Plaintiff has not

pointed to legislative history that would alter the

25

The Court applies the following procedure in interpreting

CERCLA’s statute of limitations provisions, as worded in Celanese:

“Statutes of limitations are intended to provide

notice to defendants of a claim before the underlying

evidence becomes stale.” In re Hanford Nuclear Reservation Litig., 534 F.3d 986, 1009 (9th Cir. 2008). A primary canon of statutory interpretation is that the plain

language of a statute should be enforced according to

its terms, in light of its context. Robinson v. Shell Oil

Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808

(1997); Wilshire Westwood Assocs. v. Atl. Richfield

Corp., 881 F.2d 801, 803 (9th Cir.1989).

When interpreting a statute, our task is to construe what Congress has enacted. We look first to the

plain language of the statute, construing the provisions

of the entire law, including its object and policy, to ascertain the intent of Congress. We will resort to legislative history, even where the plain language is

unambiguous, where the legislative history clearly indicates that Congress meant something other than

what it said.

Carson Harbor Vill., 270 F.3d at 877 (internal quotation marks and citations omitted). “Thus, we examine

the statute as a whole, including its purpose and various provisions.” Id. at 880. We construe the statute in

context to avoid superfluities. Cooper Indus., 543 U.S.

at 166, 125 S.Ct. 577 (citing Hibbs v. Winn, 542 U.S.

88, 101, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004)). If possible, we “construe a statute to give every word some

operative effect.” Id. at 167, 125 S.Ct. 577 (citing

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

112 S.Ct. 1011, 117 L.Ed.2d 181 (1992)). “Clearly, neither a logician nor a grammarian will find comfort in

the world of CERCLA. It is not our task, however, to

App. 68

Court’s plain reading and policy considerations do not

tip the scale for the Court. See generally Opp’n.

Second, the Court is not convinced that the supposed “contingent” nature of an obligation in the 2007

Settlement would somehow change the fact that the

2007 Settlement is “with respect to” costs sought in the

present action. CERCLA § 113(g)(3)(B) bears no hint of

such a requirement.26 Plaintiffs cite to no canon of statutory construction that persuades the Court to be the

first in this Circuit to carve out such a significant exception. Though there may be a few legitimate policy

concerns, Congress could choose to act if its agrees with

Plaintiffs; a plain reading of the statute and the absence of applicable legislative history lead the Court to

this conclusion. The Ninth Circuit in Celanese seemed

to reject ASARCO’s somewhat similar argument “that

the phrase ‘such costs or damages’ in the statute of limitations means that ASARCO’s claim for contribution

only came about when ‘such costs or damages’ became

fixed.” See Celanese 792 F.3d at 1214. Seemingly disagreeing with that argument, the Ninth Circuit responded that “ASARCO’s new contribution claim via

the 2008 Bankruptcy Settlement is for exactly the

same liability ASARCO assumed in the 1989 Wickland

Agreement, and is therefore time barred.” See id.

clean up the baffling language Congress gave us. . . .”

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

Celanese, 792 F.3d at 1210-11.

26

The text of CERCLA § 113(g)(3) is provided on page 7, supra.

App. 69

Third, the Court is also not convinced that because

certain costs were unknown at the time of the 2007 Settlement or because the exact procedure for remediating

the Site was not established at the time of the settlement, that somehow the 2007 Settlement does not cover

the costs sought herein. Indeed, this Court will respond

to those concerns with the words of the Ninth Circuit

responding to similar concerns in Celanese: “[t]he terms

of the [2007 Settlement] clearly define who will pay for

the work and the nature of the work to remediate the

[ ] Site, while contemplating that additional tasks may

be added to accomplish the remediation’s goals.”27 See

27

Here, the situation is also not similar to that in American

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

statute of limitations did not bar a contribution claim because an

earlier judgment covered a different set of costs altogether; the

later time-barred lawsuit addressed groundwater contamination

whereas the earlier judgment addressed soil cleanup. See id. at

10-14. At the time of the earlier judgment, regulators had not

even assessed whether there was groundwater contamination at

the site. See id. at 14. That is not the case here, where groundwater contamination is at issue in the present action came into focus

as early as 1995. See Doty Decl. Ex. 3 at 2:24-3:5. Indeed, groundwater contamination is reference both in the 2007 Settlement and

in the present action’s 5AC. See, e.g., 2007 Settlement § 2.16; see

also 5AC ¶ 9.

The Court would similarly find Whittaker Corp. v. United

States, 825 F.3d 1002 (9th Cir. 2016) distinguishable from this

case. In that case, the plaintiff “explicitly alleged” that the costs

sought were “separate from” costs covered by the earlier judicially

approved settlement at issue. See id. at 1005. Unlike here, at issue there was a motion to dismiss, rather than a motion for summary judgment, so that explicit allegation was considered true

and dispositive. See id. In addition, Whittaker did not direclty

take on a statute of limitations argument but instead the Ninth

Circuit merely determined that the plaintiff was not required to

App. 70

Celanese 792 F.3d at 1213.28 Upon reviewing the parties’ additional briefing, the Court also concludes that

bring a suit for contribution rather than cost recovery because he

sought expenses separate from those established or pending. See

id. at 1010-13. Those questions are “closely related” but they are

not necessarily identical. See id. at 1010.

28

For somewhat similar reasons to the Court’s conclusions

above, the Court would find that a contribution claim arose as

early as November 29, 2000 when the United States sued Plaintiff

under CERCLA § 107 for cost recovery of response costs and under CERCLA § 106 to compel the clean up of the Omega Site in

its entirety. See generally 2000 Action Complaint ¶¶ 12-17,

Docket No. 785. In addition, the 2004 Complaint against the de

minimis generators alleged a contribution claim as the legal basis

for the action, seeking contribution for Site costs, indicating that

even Plaintiffs must have believed this at one point in time. See

generally 2004 Complaint, Docket No. 749. As per CERCLA

§ 113(f )(1), “a person may seek contribution from any other person who is liable or potentially liable under section 9607(a) [CERCLA § 107(a)] of this title, during or following any civil action

under section 9606 [CERCLA § 106] of this title or under section

9607(a) [CERCLA § 107(a)] of this title.” That statute was satisfied here.

Separate but related, at the August 6, 2018 hearing, Moving

Defendants requested that the Court give a “clear ruling” on their

judicial estoppel argument. See Aug. 6, 2018 Hr. Tr. at 70:23-25.

In one sentence and one accompanying footnote in the MSJ, Moving Defendants mention judicial estoppel. There, the extent of

their argument is as follows:

Plaintiffs’ knowledge of the regional plume issue and

their efforts to obtain contribution in connection with

their liability for those costs present a fact pattern different from the Capuano decision and any claim now

that the 2001 settlement did not trigger limitations for

the entire Omega Superfund Site would fail by principles of judicial estoppel.

[FN 12 from the MSJ attached to the end of the above

excerpt:] Samson v. NAMA Holdings, LLC, 637 F.3d

App. 71

915, 935 (9th Cir. 2011) provides the Ninth Circuit’s

three-part framework for judicial estoppel, which Moving Defendants will address if need be in their Reply.

See MSJ at 24. In the MSJ Reply, Moving Defendants briefly argue that “judicial estoppel prevents Plaintiffs from claiming that

they lacked a CERCLA contribution claim inclusive of OU-2 until

recently.” Reply at 13-14. Moving Defendants seem to somewhat

pivot to arguing that Plaintiffs’ actions in the 2004 Action estop

Plaintiffs from preferring the aforementioned argument. See id.

The Ninth Circuit in Samson noted four factors that courts consider in deciding whether to apply the doctrine of judicial estoppel:

Factors relevant in deciding whether to apply the doctrine include: (1) whether the party’s later position is

“clearly inconsistent” with its earlier position; (2)

whether the party has successfully advanced the earlier position, such that judicial acceptance of an inconsistent position in the later proceeding would create a

perception that either the first or the second court had

been misled; and (3) “whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing

party if not estopped.”

In addition to these factors, the Ninth Circuit examines

[4] “whether the party to be estopped acted inadvertently or with any degree of intent.”

See Samson, 637 F.3d at 935 (citations omitted).

As a separate and independent basis for the Court’s decision,

it is inclined to agree with Moving Defendants’ judicial estoppel

position as argued in the Reply. See Reply at 13-14. Though there

is no evidence of any intent on Plaintiffs’ part, Plaintiffs are

“clearly inconsistent” with their earlier position in the 2004 Action seeking relief costs inclusive of the entire Site; allowing

Plaintiffs to essentially argue that they never had a contribution

claim that they litigated before Judge Hatter is an unfair advantage based on an inconsistent position. Moreover, Plaintiffs do

not persuade the Court otherwise and they never mention the

phrase “judicial estoppel” in the Opposition or any supplemental

briefing. See generally Opp’n; Pls.’ Supp.; Pls.’ Supp. II.

App. 72

the statute of limitations provision in CERCLA

§ 113(g)(3) does not require a party to accept liability

or responsibility to trigger the statute of limitations.

Plaintiffs point to no legislative history that would

indicate otherwise, and the fact that a different provision, CERCLA § 113(f )(3)(B), narrows itself to situations where a person “has resolved its liability to

the United States or a State for some or all of a response action” indicates that Congress purposefully

left out such a requirement in CERCLA § 113(g)(3).

The Court would therefore not read this additional requirement into CERCLA § 113(g)(3).

In sum, the Court would conclude that the 2007

Settlement, which was entered more than three years

prior to the filing of the present action, bars the first

and third causes of action in the 5AC. The response

costs sought here are “with respect to” those covered in

the 2007 Settlement.29 Plaintiffs provide no material

29

In a brief 1.5 page section of the MSJ, Moving Defendants

seem to argue that even if the 2007 Settlement did not trigger the

statute of limitations to preclude this action, the 2001 CD and the

2010 CD independently triggered the statute of limitations. See

MSJ at 23-25. This section, in its brevity and with its lack of supporting evidence and analysis, does not sufficiently convince the

Court that the 2001 CD or the 2010 CD trigger the statute of limitations to run as to this action. Moving Defendants backtracked

from invoking the 2001 CD and the 2010 CD in the Reply, asserting that these settlements “[b]oth were clearly identified [in the

MSJ] as background support. . . .” See Reply at 18. They even include a heading that concedes that “[t]he 2001 and 2010 Consent

Decrees Were and Remain Tertiary.” See id. With the Court determining that the 2007 Settlement bars the first and third

causes of action, the Court need not entertain the possibility that

App. 73

evidence to put that conclusion in dispute and thus the

statute of limitations applies.

V.

Conclusion

For the reasons stated above, the Court would

GRANT the Moving Defendants’ MSJ and DISMISS

WITH PREJUDICE the first and third causes of action in the 5AC.30

those consent decrees (or others) also could have triggered the

statute of limitations.

30

Moving Defendants filed three requests for evidentiary

rulings on specified objections as to three separate declarations.

See Docket Nos. 781, 782, 783. Of those objections, only two objections relate to evidence the Court has relied on in this ruling.

Those two objections in Docket No. 783, made against Paragraphs

4 and 6 of the Lucero Declaration, are overruled. Plaintiffs filed

one objection, aiming at an exhibit attached to Moving Defendants’ Reply. See Docket No. 786. The Court did not rely on this

exhibit for its ruling and it therefore need not rule on its admissibility. At both of the hearings, neither party made a further request for specific rulings on evidentiary objections.

App. 74

APPENDIX C

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

ARCONIC INC., et al.,

Plaintiffs,

v.

APC INVESTMENT CO.,

et al.,

Defendants.

Case No.

CV 14-6456 GW(Ex)

FINAL JUDGMENT

PURSUANT TO

FEDERAL RULE

OF CIVIL

PROCEDURE 54(b)

AND RELATED CROSS

ACTIONS, COUNTERCLAIMS

AND THIRD-PARTY

COMPLAINTS

For the reasons stated in the Court’s January 15,

2019, Order on Summary Judgment [ Dkt. No. 809]

and February 4, 2019, Order Directing Entry of Final

Judgment Pursuant to Federal Rule of Civil Procedure

54(b) (the “Order Directing Entry of Final Judgment”),

Plaintiffs’ First and Third Causes of Action for contribution and declaratory relief under the Comprehensive Environmental Response, Compensation, and

Liability Act are hereby DISMISSED WITH PREJUDICE and final judgment is hereby entered for the

Moving Defendants and Non-Moving Defendants, as

those terms are defined under the Order Directing Entry of Final Judgment, as to those claims.

App. 75

IT IS SO ORDERED.

DATED: February 4, 2019 /s/ George H. Wu

GEORGE H. WU,

U.S. District Judge

Respectfully Submitted by:

LATHROP GAGE LLP

Nancy Sher Cohen, Bar No. 81706

ncohen@lathropgage.com

Ronald A. Valenzuela, Bar No. 210025

rvalenzuela@lathropgage.com

1888 Century Park East, Suite 1000

Los Angeles, California 90067-1623

Telephone: 310.789.4600

Facsimile: 310.789.4601

Attorneys for Plaintiffs

Arconic Inc., et al.

App. 76

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARCONIC INC., FKA

Alcoa, Inc.; et al.,

Plaintiffs-Appellants,

v.

APC INVESTMENT CO.;

et al.,

Defendants-Appellees.

No. 19-55181

D.C. No.

2:14-cv-06456-GW-E

Central District of

California, Los Angeles

ORDER

(Filed Oct. 21, 2020)

Before: CALLAHAN and NGUYEN, Circuit Judges,

and CHRISTENSEN,* District Judge.

The panel has voted to deny the appellees’ petition

for panel rehearing. Judges Callahan and Nguyen

have also voted to deny the petition for rehearing en

banc, and Judge Christensen so recommends. The full

court has been advised of the petition, and no judge has

requested a vote on whether to rehear the matter en

banc. Fed. R. App. P. 35. Accordingly, the petitions for

rehearing and rehearing en banc are DENIED.

* The Honorable Dana L. Christensen, United States District Judge for the District of Montana, sitting by designation.

App. 77

APPENDIX E

CERCLA § 107

(42 U.S.C. § 9607)

Liability

(a) Covered persons; scope; recoverable costs

and damages; interest rate; “comparable maturity” date

Notwithstanding any other provision or rule of law,

and subject only to the defenses set forth in subsection

(b) of this section—

....

(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment

facilities, incineration vessels or sites selected by such

person, from which there is a release, or a threatened

release which causes the incurrence of response costs,

of a hazardous substance, shall be liable for—

(A) all costs of removal or remedial action incurred

by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan;

(B) any other necessary costs of response incurred by

any other person consistent with the national contingency plan;

(C) damages for injury to, destruction of, or loss of

natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from

such a release; and

App. 78

(D) the costs of any health assessment or health effects study carried out under section 9604(i) of this title.

The amounts recoverable in an action under this section shall include interest on the amounts recoverable

under subparagraphs (A) through (D). Such interest

shall accrue from the later of (i) the date payment of a

specified amount is demanded in writing, or (ii) the

date of the expenditure concerned. The rate of interest

on the outstanding unpaid balance of the amounts recoverable under this section shall be the same rate as

is specified for interest on investments of the Hazardous Substance Superfund established under subchapter A of chapter 98 of title 26. For purposes of applying

such amendments to interest under this subsection,

the term “comparable maturity” shall be determined

with reference to the date on which interest accruing

under this subsection commences.

CERCLA § 113

(42 U.S.C. § 9613)

Civil Proceedings

....

(f )

Contribution

(1)

Contribution

Any person may seek contribution from any other

person who is liable or potentially liable under section 9607(a) of this title, during or following any

App. 79

civil action under section 9606 of this title or under section 9607(a) of this title. Such claims shall

be brought in accordance with this section and

the Federal Rules of Civil Procedure, and shall

be governed by Federal law. In resolving contribution claims, the court may allocate response costs

among liable parties using such equitable factors

as the court determines are appropriate. Nothing

in this subsection shall diminish the right of any

person to bring an action for contribution in the

absence of a civil action under section 9606 of this

title or section 9607 of this title.

(2)

Settlement

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. Such settlement does

not discharge any of the other potentially liable

persons unless its terms so provide, but it reduces

the potential liability of the others by the amount

of the settlement.

(3)

Persons not party to settlement

(A) If the United States or a State has obtained

less than complete relief from a person who has

resolved its liability to the United States or the

State in an administrative or judicially approved

settlement, the United States or the State may

bring an action against any person who has not so

resolved its liability.

(B) A person who has resolved its liability to

the United States or a State for some or all of a

App. 80

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 referred to

in paragraph (2).

(C) In any action under this paragraph, the

rights of any person who has resolved its liability

to the United States or a State shall be subordinate to the rights of the United States or the State.

Any contribution action brought under this paragraph shall be governed by Federal law.

(g)

Period in which action may be brought

(1)

Actions for natural resource damages

Except as provided in paragraphs (3) and (4), no

action may be commenced for damages (as defined

in section 9601(6) of this title) under this chapter,

unless that action is commenced within 3 years after the later of the following:

(A) The date of the discovery of the loss and its

connection with the release in question.

(B) The date on which regulations are promulgated under section 9651(c) of this title.

With respect to any facility listed on the National

Priorities List (NPL), any Federal facility identified under section 9620 of this title (relating to

Federal facilities), or any vessel or facility at which

a remedial action under this chapter is otherwise

scheduled, an action for damages under this chapter must be commenced within 3 years after the

completion of the remedial action (excluding operation and maintenance activities) in lieu of the

App. 81

dates referred to in subparagraph (A) or (B). In no

event may an action for damages under this

chapter with respect to such a vessel or facility

be commenced (i) prior to 60 days after the Federal

or State natural resource trustee provides to the

President and the potentially responsible party a

notice of intent to file suit, or (ii) before selection

of the remedial action if the President is diligently

proceeding with a remedial investigation and feasibility study under section 9604(b) of this title or

section 9620 of this title (relating to Federal facilities). The limitation in the preceding sentence on

commencing an action before giving notice or before selection of the remedial action does not apply

to actions filed on or before October 17, 1986.

(2)

Actions for recovery of costs

An initial action for recovery of the costs referred

to in section 9607 of this title must be commenced—

(A) for a removal action, within 3 years after

completion of the removal action, except that such

cost recovery action must be brought within 6

years after a determination to grant a waiver under section 9604(c)(1)(C) of this title for continued

response action; and

(B) for a remedial action, within 6 years after initiation of physical on-site construction of the remedial action, except that, if the remedial action

is initiated within 3 years after the completion of

the removal action, costs incurred in the removal

action may be recovered in the cost recovery action

brought under this subparagraph.

App. 82

In any such action described in this subsection, the

court shall enter a declaratory judgment on liability for response costs or damages that will be binding on any subsequent action or actions to recover

further response costs or damages. A subsequent

action or actions under section 9607 of this title for

further response costs at the vessel or facility may

be maintained at any time during the response action, but must be commenced no later than 3 years

after the date of completion of all response action.

Except as otherwise provided in this paragraph,

an action may be commenced under section 9607

of this title for recovery of costs at any time after

such costs have been incurred.

(3)

Contribution

No action for contribution for any response costs

or damages may be commenced more than 3 years

after—

(A) the date of judgment in any action under this

chapter for recovery of such costs or damages, or

(B) the date of an administrative order under

section 9622(g) of this title (relating to de minimis

settlements) or 9622(h) of this title (relating to

cost recovery settlements) or entry of a judicially

approved settlement with respect to such costs or

damages.

(4)

Subrogation

No action based on rights subrogated pursuant to

this section by reason of payment of a claim may

be commenced under this subchapter more than 3

years after the date of payment of such claim.

App. 83

(5) Actions to recover indemnification payments

Notwithstanding any other provision of this subsection, where a payment pursuant to an indemnification agreement with a response action

contractor is made under section 9619 of this title,

an action under section 9607 of this title for recovery of such indemnification payment from a potentially responsible party may be brought at any

time before the expiration of 3 years from the date

on which such payment is made.

(6)

Minors and incompetents

The time limitations contained herein shall not

begin to run—

(A) against a minor until the earlier of the date

when such minor reaches 18 years of age or the

date on which a legal representative is duly appointed for such minor, or

(B) against an incompetent person until the earlier of the date on which such incompetent’s incompetency ends or the date on which a legal

representative is duly appointed for such incompetent.