Petition for Writ of Certiorari — Territory of Guam, Petitioner v. United States

Supreme Court briefSep 16, 2020

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No. ______

In the

Supreme Court of the United States

GOVERNMENT OF GUAM,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

LEEVIN T. CAMACHO

Attorney General

JAMES L. CANTO II

Deputy Attorney General

OFFICE OF THE ATTORNEY

GENERAL

590 S. Marine Corps Drive

Suite 901

Tamuning, Guam 96913

JOHN D.S. GILMOUR

WILLIAM J. JACKSON

FABIO C. DWORSCHAK

KELLEY DRYE

& WARREN LLP

515 Post Oak Boulevard

Suite 900

Houston, TX 77027

GREGORY G. GARRE

Counsel of Record

ROMAN MARTINEZ

BLAKE E. STAFFORD

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2207

gregory.garre@lw.com

BEZALEL STERN

KELLEY DRYE

& WARREN LLP

3050 K Street, NW

Suite 400

Washington, DC 20007

Counsel for Petitioner

QUESTIONS PRESENTED

For nearly half a century, the United States Navy

discarded toxic waste at a dump that the Navy

created in the 1940s on the Island of Guam, an

unincorporated territory of the United States,

without any environmental safeguards. The Navy

then left Guam to clean up the site—a project that is

likely to cost more than $160 million. Guam brought

this suit to recover cleanup costs from the United

States under Section 107(a) of the Comprehensive

Environmental Response, Compensation, and

Liability Act (CERCLA), 42 U.S.C. § 9607(a), which

allows parties to recover remediation costs from other

responsible parties within six years of the initiation

of a remedial action. The district court concluded that

Guam’s claim could proceed.

The D.C. Circuit, however, held that Guam’s claim

was precluded by CERCLA Section 113(f)(3)(B), in a

decision that deepens two acknowledged circuit

conflicts.

Section 113(f)(3)(B) establishes a

contribution remedy for any party that “has resolved

its liability to the United States or a State for some or

all of a response action” in a “judicially approved

settlement,” subject to a three-year statute of

limitations. Id. § 9613(f)(3)(B). Here, the D.C. Circuit

held that Section 113(f)(3)(B) was triggered by a

decade-old consent decree settling claims under the

Clean Water Act (CWA)—even though that decree did

not mention CERCLA, explicitly disclaimed any

finding of liability, and left Guam exposed to future

liability. And given that Guam filed suit more than

three years after the consent decree was entered, the

court held that Guam’s action is barred.

The questions presented are:

1. Whether a non-CERCLA settlement can

trigger a contribution claim under CERCLA Section

113(f)(3)(B).

2. Whether a settlement that expressly disclaims

any liability determination and leaves the settling

party exposed to future liability can trigger a

contribution claim under CERCLA Section

113(f)(3)(B).

iii

RELATED PROCEEDINGS

United States Court of Appeals (D.C. Cir.):

Guam v. United States, No. 19-5131 (Feb. 14,

2020), reh’g denied (May 13, 2020)

United States District Court (D.D.C.):

Guam v. United States, No. 17-cv-2487 (Oct. 5,

2018), appeal certified (Feb. 28, 2019)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................................... i

RELATED PROCEEDINGS ..................................... iii

TABLE OF AUTHORITIES .................................... vii

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................1

STATUTORY PROVISIONS INVOLVED .................1

STATEMENT OF THE CASE ....................................1

A. Statutory Background ...................................3

B. Factual Background ......................................6

C. Proceedings Below .......................................11

REASONS FOR GRANTING THE PETITION .......13

THE DECISION BELOW DEEPENS

TWO CIRCUIT SPLITS OVER THE

MEANING OF CERCLA SECTION

113(f)(3)(B) ..........................................................14

A. The Lower Courts Are Expressly

Divided About Whether Non-CERCLA

Settlements

Trigger

Section

113(f)(3)(B) ...................................................14

B. The Lower Courts Are Expressly

Divided About Whether Settlements

With Liability Disclaimers And

Reservation-Of-Rights

Clauses

Trigger Section 113(f)(3)(B) .........................17

II. THE QUESTIONS PRESENTED ARE

EXCEPTIONALLY IMPORTANT .....................21

TABLE OF CONTENTS—Continued

Page

III. THE DECISION BELOW IS WRONG ..............25

A. Section 113(f)(3)(B) Requires The

Resolution Of CERCLA Liability ................25

B. Section 113(f)(3)(B) Requires A Final,

Conclusive Liability Determination ............30

CONCLUSION ..........................................................35

APPENDIX

Opinion of the United States Court of Appeals

for the District of Columbia Circuit,

Government of Guam v. United States, 950

F.3d 104 (D.C. Cir. Feb. 14, 2020) .......................1a

Memorandum Opinion of the United States

District Court for the District of Columbia

Certifying

Interlocutory

Appeal,

Government of Guam v. United States, No.

1:17-cv-2487 (KBJ), 2019 WL 1003606

(D.D.C. Feb. 28, 2019) .......................................27a

Memorandum Opinion of the United States

District Court for the District of Columbia

Denying Motion to Dismiss, Government of

Guam v. United States, No. 1:17-cv-2487

(KBJ), 341 F. Supp. 3d 74 (D.D.C. Oct. 5,

2018) ...................................................................51a

Order of the United States Court of Appeals for

the District of Columbia Circuit Denying

Panel Rehearing, Government of Guam v.

United States, No. 19-1531 (D.C. Cir. May

13, 2020) .............................................................98a

TABLE OF CONTENTS—Continued

Page

Order of the United States Court of Appeals for

the District of Columbia Circuit Denying

Rehearing En Banc, Government of Guam

v. United States, No. 19-1531 (D.C. Cir.

May 13, 2020) .....................................................99a

33 U.S.C. § 1311(a)................................................100a

33 U.S.C. § 1319(a), (b) .........................................101a

33 U.S.C. § 1321(a)(14), (b)(1)-(2)(A),

(3)-(5), (7)(A), (11) ............................................105a

33 U.S.C. § 1342(a)................................................110a

33 U.S.C. § 1362(6), (12) .......................................111a

42 U.S.C. § 9601(14), (21)-(25), (27) .....................112a

42 U.S.C. § 9606(a), (b) .........................................117a

42 U.S.C. § 9607(a)................................................120a

42 U.S.C. § 9613(f)(1)-(3), (g)(2)-(3) ......................122a

42 U.S.C. § 9620(a)(1) ...........................................126a

42 U.S.C. § 9622(a), (c)(1)-(2) ................................127a

Complaint for Injunctive Relief and Civil

Penalties Under the Clean Water Act,

United States v. Government of Guam, No.

02-cv-00022 (D. Guam Aug. 7, 2002)

(C.A.J.A. 82-88) ................................................130a

Consent Decree, United States v. Government

of Guam, No. 02-cv-00022 (D. Guam Feb.

11, 2004) (C.A.J.A. 90-119) ..............................138a

vii

TABLE OF AUTHORITIES

Page(s)

CASES

Asarco LLC v. Atlantic Richfield Co.,

866 F.3d 1108 (9th Cir. 2017)...................... passim

Atlantic Research Corp. v. United States,

459 F.3d 827 (8th Cir. 2006), aff’d, 551

U.S. 128 (2007).....................................................23

Atlantic Richfield Co. v. Christian,

140 S. Ct. 1335 (2020)...................... 1, 3, 21, 22, 23

Bernstein v. Bankert,

733 F.3d 190 (7th Cir. 2012), cert. denied,

571 U.S. 1175 (2014) .......................... 18, 30, 31, 34

Burlington Northern & Santa Fe Railway Co.

v. United States,

556 U.S. 599 (2009) ..............................................21

Carr v. United States,

560 U.S. 438 (2010) ..............................................32

City of Columbus v. Ours Garage & Wrecker

Service Inc.,

536 U.S. 424 (2002) ..............................................29

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

UGI Utilities, Inc.,

423 F.3d 90 (2d Cir. 2005), cert. denied,

551 U.S. 1130 (2007) ......................................14, 15

Cooper Industries, Inc. v. Aviall Services, Inc.,

543 U.S. 157 (2004) ..............................................21

Differential Development-1994, Ltd. v.

Harkrider Distributing Co.,

470 F. Supp. 2d 727 (S.D. Tex. 2007) ..................16

viii

TABLE OF AUTHORITIES—Continued

Page(s)

DMJ Associates, L.L.C. v. Capasso,

181 F. Supp. 3d 162 (E.D.N.Y. 2016) ..................15

Entergy Corp. v. Riverkeeper, Inc.,

556 U.S. 208 (2009) ..............................................29

Field v. Mans,

516 U.S. 59 (1995) ................................................29

Florida Power Corp. v. FirstEnergy Corp.,

810 F.3d 996 (6th Cir. 2015).................... 18, 19, 32

Hobart Corp. v. Waste Management of Ohio,

Inc.,

758 F.3d 757 (6th Cir. 2014), cert. denied,

574 U.S. 1122 (2015) ............................................18

ITT Industries, Inc. v. BorgWarner, Inc.,

506 F.3d 452 (6th Cir. 2007)..........................18, 19

Key Tronic Corp. v. United States,

511 U.S. 809 (1994) ..............................................22

Maine Community Health Options v. United

States,

140 S. Ct. 1308 (2020)..........................................24

MPM Silicones, LLC v. Union Carbide Corp.,

931 F. Supp. 2d 387 (N.D.N.Y. 2013) ..................16

NCR Corp. v. George A. Whiting Paper Co.,

768 F.3d 682 (7th Cir. 2014)................................18

New York v. Town of Clarkstown,

95 F. Supp. 3d 660 (S.D.N.Y. 2015) ....................16

Ngiraingas v. Sanchez,

495 U.S. 182 (1990) ................................................6

TABLE OF AUTHORITIES—Continued

Page(s)

Niagara Mohawk Power Corp. v. Chevron

USA, Inc.,

596 F.3d 112 (2d Cir. 2010) .................................15

NLRB v. SW General Inc.,

137 S. Ct. 929 (2017)............................................30

Refined Metals Corp. v. NL Industries Inc.,

937 F.3d 928 (7th Cir. 2019).................... 17, 18, 20

Russello v. United States,

464 U.S. 16 (1983) ................................................28

Trinity Industries, Inc. v. Chicago Bridge &

Iron Co.,

735 F.3d 131 (3d Cir. 2013) .................................16

Trinity Industries, Inc. v. Greenlease Holding

Co.,

903 F.3d 333 (3d Cir. 2018) .................................27

United States v. Armour & Co.,

402 U.S. 673 (1971) ..............................................30

United States v. Atlantic Research Corp.,

551 U.S. 128 (2007) ................................ 2, 5, 21, 26

United States v. Bestfoods,

524 U.S. 51 (1998) ................................................21

United States Department of Energy v. Ohio,

503 U.S. 607 (1992) ..........................................8, 27

W.R. Grace & Co.-Conn. v. Zotos

International, Inc.,

559 F.3d 85 (2d Cir. 2009) .............................14, 15

TABLE OF AUTHORITIES—Continued

Page(s)

STATUTES

28 U.S.C. § 1254(1)......................................................1

28 U.S.C. § 1292(b)....................................................12

33 U.S.C. §§ 1251 et seq. .............................................1

33 U.S.C. § 1319 ................................................8, 9, 28

33 U.S.C. § 1321 ........................................................28

42 U.S.C. §§ 9601 et seq. .............................................1

42 U.S.C. § 9601(23) ........................................ 4, 25, 28

42 U.S.C. § 9601(24) ........................................ 4, 25, 28

42 U.S.C. § 9601(25) ........................................ 4, 25, 28

42 U.S.C. § 9604 ..........................................................4

42 U.S.C. § 9606 ..........................................................4

42 U.S.C. § 9606(a)....................................................26

42 U.S.C. § 9607(a)............................................ i, 2, 26

42 U.S.C. § 9607(a)(4)(A) ............................................4

42 U.S.C. § 9607(a)(4)(B) ............................................5

42 U.S.C. § 9613(f) ......................................................5

42 U.S.C. § 9613(f)(1) ...................................... 5, 26, 29

42 U.S.C. § 9613(f)(3)(B) ................................... passim

42 U.S.C. § 9613(g)(2)(B) ............................................5

42 U.S.C. § 9613(g)(3)(A) ............................................6

42 U.S.C. § 9613(g)(3)(B) ......................................6, 32

42 U.S.C. § 9620 ..........................................................8

TABLE OF AUTHORITIES—Continued

Page(s)

42 U.S.C. § 9622(a)................................................4, 22

48 U.S.C. § 1421a ........................................................7

Pub. L. No. 99-499, 100 Stat. 1613 (1986) .................5

Guam Pub. L. No. 35-36 (Sept. 4, 2019) ...................24

OTHER AUTHORITIES

EPA, Five Year Review of the No Action

Decision at the Ordot Landfill Superfund

Site in Guam (Sept. 1993),

https://semspub.epa.gov/

work/09/100002992.pdf ..........................................9

EPA, Second Five-Year Review: Ordot

Landfill Site (Sept. 2002),

https://semspub.epa.gov/work/09/

123074.pdf ..............................................................9

EPA, Superfund Record of Decision: Ordot

Landfill (Sept. 1988),

https://nepis.epa.gov/Exe/ZyPDF.cgi/

9100OBTC.PDF?Dockey=9100OBTC.PDF ...........8

EPA, Third Five-Year Review Report for

Ordot Landfill Superfund Site (Sept.

2007), https://semspub.epa.gov/work/09/

100002994.pdf ......................................................10

Gov’t Accountability Office, GAO-19-157SP,

High-Risk Series: Substantial Efforts

Needed to Achieve Greater Progress on

High-Risk Areas (2019)........................................22

H.R. Rep. No. 99-253 (1985) .................................5, 28

xii

TABLE OF AUTHORITIES—Continued

Page(s)

Office of Mgmt. & Budget, A Budget for

America’s Future: Analytical Perspectives

(Feb. 10, 2020), https://www.govinfo.gov/

content/pkg/BUDGET-2021-PER/

pdf/BUDGET-2021-PER.pdf................................24

Justin R. Pidot & Dale Ratliff, The Common

Law of Liable Party CERCLA Claims, 70

Stan. L. Rev. 191 (2018) ........................................4

Restatement (Second) of Torts § 886A(2)

(1979) ....................................................................27

Restatement (Third) of Torts § 23 cmt. b

(2000) ....................................................................27

PETITION FOR A WRIT OF CERTIORARI

The Government of Guam (Guam) respectfully

petitions this Court for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the District of Columbia Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. 1a-26a)

is reported at 950 F.3d 104. The opinion of the district

court certifying the case for interlocutory appeal (App.

27a-50a) is available at 2019 WL 1003606. The

opinion of the district court denying the United

States’ motion to dismiss (App. 51a-97a) is reported

at 341 F. Supp. 3d 74.

JURISDICTION

The court of appeals entered its judgment on

February 14, 2020 (App. 1a) and denied rehearing on

May 13, 2020 (App. 98a-99a). Pursuant to this

Court’s Order of March 19, 2020, a petition for a writ

of certiorari is timely if filed within 150 days of an

order denying a petition for rehearing. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant portions of the Comprehensive

Environmental Response, Compensation, and

Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601 et

seq., and the Clean Water Act (CWA), 33 U.S.C.

§§ 1251 et seq., are reproduced at App. 100a-29a.

STATEMENT OF THE CASE

Just last Term, this Court observed that

“[s]ettlements are the heart of the Superfund

statute.” Atlantic Richfield Co. v. Christian, 140 S.

Ct. 1335, 1355 (2020). This case presents two

acknowledged and longstanding circuit splits that

strike at the core of CERCLA’s settlement provisions

and their impact on a settling party’s ability to share

cleanup costs with other responsible parties. The

court of appeals, district court, and United States all

recognized not only the existence of these circuit

conflicts but also that each is dispositive here.

The conflicts arise out of the interaction between

two CERCLA provisions authorizing the recoupment

of cleanup costs from another responsible party.

Section 107(a) allows a responsible party to recover

cleanup costs from other responsible parties. 42

U.S.C. § 9607(a).

Section 113(f)(3)(B) allows a

responsible party that “has resolved its liability to the

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

action” in a settlement to “seek contribution” from

other responsible parties.

Id. § 9613(f)(3)(B).

Because Section 113(f)(3)(B) has a shorter limitations

period (three years, instead of six), lower courts have

held that it is exclusive—once a settlement triggers

Section 113(f)(3)(B), it bars an otherwise available

claim under Section 107(a).

The scope and

“intersection of [these] provisions” is thus a critical

issue that courts “frequently grapple[] with,” with this

Court intervening when they split. United States v.

Atlantic Research Corp., 551 U.S. 128, 131 (2007).

The D.C. Circuit’s decision in this case deepens

two splits over when a settlement triggers Section

113(f)(3)(B). First, the circuits are divided over

whether a non-CERCLA settlement can trigger a

CERCLA

contribution

claim

under

Section

113(f)(3)(B). The Second Circuit has held that the

answer to that question is no, while the Third,

Seventh, Ninth, and now D.C. Circuits have held that

the answer is yes. Second, the circuits are divided

over whether a settlement that explicitly disclaims a

determination of liability and leaves the settling

party exposed to future liability can trigger Section

113(f)(3)(B). The Sixth and Seventh Circuits have

held that the answer is no, the D.C. Circuit has now

held that the answer is yes, and the Ninth Circuit has

staked out a middle ground position.

Two acknowledged splits on recurring issues of

unquestionable importance provide a compelling

reason to grant review. But the need for certiorari is

heightened by the undeniably “harsh” (App. 26a)

consequences of the D.C. Circuit’s decision: Guam is

left on the hook for all of the costs—more than $160

million—of cleaning up a waste site that the United

States Navy itself created and then used to dump

toxic wastes for decades going back to World War II.

That figure is a staggering sum for the people of

Guam, alone comprising nearly a fifth of its total

annual budget. Meanwhile, the United States, which

indisputably is a responsible party, gets off scot-free.

That result strikes at the heart of CERCLA’s central

aims, is the product of an untenable reading of the

relevant statutory provisions, and unjustly penalizes

the people of Guam. Certiorari is warranted.

A. Statutory Background

1. Enacted in 1980, CERCLA “seeks ‘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.’”

Atlantic Richfield, 140 S. Ct. at 1345 (alteration in

original) (citation omitted). Under CERCLA, once the

Environmental Protection Agency (EPA) has

designated a contaminated site for cleanup, EPA can

either (1) undertake an appropriate “response” action

itself using the “Superfund” to pay for it, 42 U.S.C.

§ 9604; or (2) compel responsible parties to undertake

a “response action,” which EPA then monitors, id.

§ 9606. EPA is also authorized to “enter into an

agreement” with a responsible party “to perform any

response action” if EPA “determines that such action

will be done properly.” Id. § 9622(a).

CERCLA defines the term “response” to mean a

“removal” action and “remedial” action. 42 U.S.C.

§ 9601(25). A “removal” action is defined as the

“cleanup or removal of hazardous substances from the

environment” as well as any of several actions “taken

in the event of . . . the release or threat of release of

hazardous substances.” Id. § 9601(23). A “remedial”

action is an action “consistent with permanent

remedy taken instead of or in addition to removal

actions in the event of a release or threatened release

of a hazardous substance into the environment, 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).

2. The costs of cleaning up a so-called

“Superfund” site can be staggering, often exceeding

hundreds of millions of dollars. See, e.g., Justin R.

Pidot & Dale Ratliff, The Common Law of Liable

Party CERCLA Claims, 70 Stan. L. Rev. 191, 200 &

n.40 (2018). CERCLA is accordingly designed to

ensure that the liability for such costs is fairly

allocated among all responsible parties.

Section 107(a) of CERCLA provides that

potentially responsible parties (PRPs) “shall be liable”

for, among other things, “all costs of removal or

remedial action incurred by the United States

Government or a State or an Indian tribe,” 42 U.S.C.

§ 9607(a)(4)(A), as well as “any other necessary costs

of response incurred by any other person,” id.

§ 9607(a)(4)(B), including another PRP. See Atlantic

Research, 551 U.S. at 135-36. Claims to recover

remediation costs under Section 107(a) are subject to

a six-year limitations period triggered by the

“initiation” of a “remedial action.”

42 U.S.C.

§ 9613(g)(2)(B).

the

Superfund

Amendments

and

Reauthorization Act of 1986 (SARA), Pub. L. No. 99499, 100 Stat. 1613, Congress clarified that parties

“liable under CERCLA [can] seek contribution from

other potentially liable parties,” H.R. Rep. No. 99-253,

pt. 1, at 79 (1985), by adding an express cause of

action for contribution in CERCLA Section 113(f), 42

U.S.C. § 9613(f). Under Section 113(f)(1), “[a]ny

person may seek contribution from any other person

who is liable or potentially liable under [Section

107(a)], during or following any civil action under

[Section 106] or [Section 107(a)].” Id. § 9613(f)(1).

In order to encourage “[s]ettlement with the

government under CERCLA,” H.R. Rep. No. 99-253,

pt. 3, at 19 (1985), SARA also clarified that the right

to seek contribution extends to settling parties by

adding Section 113(f)(3)(B). It states:

A person who has resolved its liability to

the United States or a State for some or

all of a response action or for some or all

of the costs of such action in an

administrative or judicially approved

settlement may seek contribution from

any person who is not a party to a

settlement referred to in paragraph (2).

42 U.S.C. § 9613(f)(3)(B). Claims brought under

Section 113(f) are subject to a three-year limitations

period that commences upon either “the date of

judgment,” id. § 9613(g)(3)(A), or the “date of an

administrative order” or “entry of a judicially

approved settlement,” id. § 9613(g)(3)(B).

B. Factual Background

1. Guam is an island of just over 200 square miles

located in the west central Pacific, about a quarter of

the way from the Philippines to Hawaii—and 6000

miles from the shores of California. The United

States captured the Island in 1898 during the

Spanish-American War. The United States then

placed Guam under the control of the Navy, which

treated it as a Naval ship—the “USS Guam”—and

subjected it to military rule. App. 5a. Aside from the

period between December 1941 and July 1944, when

the Japanese military invaded and brutally occupied

the Island, the Navy exercised exclusive control over

Guam from 1898 until Congress passed the Guam

Organic Act in 1950, which purported to transfer

power from the military to a civilian government. See

Ngiraingas v. Sanchez, 495 U.S. 182, 186 (1990).

Even then, however, the Federal Government

retained a tight grip on the Island. For example,

visitors could not access the Island without a security

clearance until the 1960s, and the Governor of Guam

was handpicked by the Federal Government until

1970. App. 5a; C.A.J.A. 23-24. Despite its residents

being granted U.S. citizenship in 1950, Guam’s first

publicly elected governor did not take office until

decades later in 1971. C.A.J.A. 24. And the Navy

continued to use the Island for military purposes

during the Korean and Vietnam Wars, taking

advantage of its vital strategic location.

Today, Guam remains an unincorporated territory

of the United States, see 48 U.S.C. § 1421a, with

nearly 170,000 residents. The United States military

maintains a heavy presence on the Island, occupying

approximately 25% of the Island’s land mass and

operating two separate bases (Naval Base Guam and

Andersen Air Force Base), with a third (Marine Corps

Base Camp Blaz) currently under construction.

2. a. In the 1940s, while the Navy had exclusive

control over the Island, the Navy created a waste

site—the Ordot Dump—for the disposal of municipal

and military waste, in a ravine that slopes into the

Lonfit River. App. 5a-6a. Unlined at the bottom and

uncapped at the top, the Ordot Dump absorbed rain

and surface water, which percolated through the site

and mixed with waste. Id. at 6a. This toxic mixture

would then flow into the Lonfit River and ultimately

make its way into the Pacific Ocean. Id.

Although the United States unilaterally

transferred ownership of the contaminated land to

Guam as part of the 1950 Act, the Navy continued to

use the site as its own. Throughout the Korean and

Vietnam Wars, the Navy used the Ordot Dump to

dispose of munitions and toxic chemicals, including

DDT and Agent Orange. Id. at 5a-6a. “And as the

Navy continued to use the Ordot Dump, it continued

growing”—turning “‘[w]hat was once a valley’” into “‘a

280-foot mountain’” of waste. Id. at 6a (alteration in

original) (citation omitted).

The Ordot Dump

remained the only landfill on the Island—and also

was used by Guam itself for civilian purposes,

including everyday garbage—until the 1970s and the

only public landfill until its closure in 2011. Id.

b. Shortly after CERCLA’s enactment in 1980,

Guam requested that the Ordot Dump be remediated

with federal funds drawn from the new Superfund.

EPA opened a CERCLA investigation in 1982 and

added the Ordot Dump to the Superfund list—at

Guam’s request—in 1983. Id.; C.A.J.A. 188. In 1988,

however, EPA determined “that remedial action at

the Ordot Landfill site under [CERCLA]” was

“inappropriate” and “unnecessary,” and that the

problems at the Ordot Dump would be better

addressed “through enforcement of the Clean Water

Act [(CWA)].” EPA, Superfund Record of Decision:

Ordot Landfill 12-14 (Sept. 1988).1

EPA thus

declined CERCLA remediation, “choosing no action as

the preferred alternative.” Id. at 14.

Given the Navy’s direct role in creating and

contaminating the Ordot Dump, EPA unsurprisingly

identified the Navy as a “potentially responsible

party.” Id. at 2. But EPA’s decision to proceed under

the CWA—instead of CERCLA—had a crucial impact

on the United States’ own liability for cleanup costs.

While the United States is subject to liability under

CERCLA (see 42 U.S.C. § 9620), it is not subject to

liability under the applicable CWA provision, 33

U.S.C. § 1319. See United States Dep’t of Energy v.

Ohio, 503 U.S. 607, 624 (1992). Declining CERCLA

remediation and proceeding instead under the CWA

therefore allowed the United States to insulate itself

from its own cleanup responsibilities.

Over the next decade, EPA then filed several

administrative complaints against Guam—solely

under the CWA—demanding that Guam take certain

https://nepis.epa.gov/Exe/ZyPDF.cgi/9100OBTC.PDF?Doc

key=9100OBTC.PDF.

actions with respect to the Ordot Dump. See C.A.J.A.

188-89. Guam struggled to comply in large part due

to a lack of funding. Id. at 189. Unmoved by Guam’s

fiscal constraints, EPA continued to pile on penalties

under the CWA. See id. at 188-89. All the while, EPA

continued to maintain that “CERCLA remedial action

[was] unnecessary” at the site. EPA, Five Year

Review of the No Action Decision at the Ordot Landfill

Superfund Site in Guam 3-5 (Sept. 1993).2

3. In 2002, the United States filed a complaint

against Guam in the District of Guam exclusively

under the CWA, alleging that Guam violated 33

U.S.C. § 1319 by discharging pollutants into the

waters of the United States without a permit. App.

130a-37a. A few months later, EPA again concluded

that “CERCLA remedial actions” were not

“necessary.” C.A.J.A. 305; see EPA, Second Five-Year

Review: Ordot Landfill Site 19, 26 (Sept. 2002).3

To “avoid protracted litigation” over the CWA

claims, Guam and the United States entered into a

consent decree that the district court approved in

2004. App. 138a-73a. Pursuant to the express terms

of the decree, the parties agreed to “settle[]” only “the

civil judicial claims as alleged in the Complaint”—i.e.,

the CWA permitting claims under 33 U.S.C. § 1319.

App. 139a, 166a; see id. at 134a-36a. The decree

required Guam to pay a penalty, design and install a

cover, and close the Ordot Dump. Id. at 141a-51a.

But it never once mentioned CERCLA, “response

action,” or, for that matter, a “hazardous substance”

that would trigger CERCLA. See supra at 4.

https://semspub.epa.gov/work/09/100002992.pdf.

https://semspub.epa.gov/work/09/123074.pdf.

The 2004 CWA decree also reserved the United

States’ right to bring suit for any claims not in the

complaint, leaving Guam exposed to future liability

for any claims, under any statute, with respect to the

Ordot Dump. App. 166a. Even for the CWA claims

alleged in the complaint, the decree avoided resolving

liability: it expressly disclaimed “any finding or

admission of liability against or by the Government of

Guam,” id. at 140a, and, at the same time, expressly

conditioned the release of those claims on not only

“[e]ntry of th[e] consent decree” but also “compliance

with the requirements [t]herein,” id. at 166a.

Despite acknowledging that Guam lacked the

financial means to complete the work, id. at 150a-51a,

the decree adopted an aggressive schedule for the

closure of the Ordot Dump—a massive undertaking

given that it was the only municipal landfill on the

entire island.

Unsurprisingly, Guam’s financial

constraints hampered its ability to meet the schedule,

which eventually prompted the appointment of a

receiver that ordered Guam to take out $202 million

in bonds to pay for the projects. C.A.J.A. 141.

Meantime, EPA reiterated that “no remedial action”

was being take at the site “under CERCLA,” and,

instead, the project was solely “[u]nder Clean Water

Act authority,” as described in the consent decree.

EPA, Third Five-Year Review Report for Ordot

Landfill Superfund Site 7-1 (Sept. 2007).4

Guam finally closed the Ordot Dump and opened

a new landfill in 2011. App. 6a. But the extensive

remediation of the Ordot Dump, which began in

https://semspub.epa.gov/work/09/100002994.pdf.

December 2013, remains ongoing. C.A.J.A. 26. Total

costs are expected to exceed $160 million. App. 8a.

C. Proceedings Below

1. In light of the Navy’s undeniable responsibility

in creating and contaminating the Ordot Dump over

the course of many decades, Guam sued the United

States in 2017 for cost recovery under CERCLA

Section 107(a) and, alternatively, for contribution

under CERCLA Section 113(f)(3)(B). App. 7a-8a.

The United States moved to dismiss, asserting

that the 2004 CWA consent decree triggered a

contribution claim under Section 113(f)(3)(B) that

was now time-barred, because Guam’s suit was filed

more than three years after entry of the consent

decree. Id. at 8a. And because Sections 107(a) and

113(f) are mutually exclusive, the United States

argued, the existence of this time-barred contribution

claim required dismissal of Guam’s Section 107(a)

claim, even though that claim was timely under

Section 107(a)’s six-year limitations period. Id.

2. The district court rejected the motion to

dismiss. Id. at 51a-97a. Analyzing the “broad, openended reservation of rights, the plain non-admissions

of liability, and the conditional resolution of liability

that the agreement contains,” the court concluded

that the 2004 CWA decree did not “resolve liability

within the meaning of CERCLA section 113(f)(3)(B),”

and thus did not trigger that provision. Id. at 69a,

85a-96a. As a result, Guam could pursue its timely

Section 107(a) claim against the United States.

In reaching that conclusion, the district court

observed that “the courts of appeals diverge” over

“whether agreements that contain such clauses

should be deemed to have ‘resolved’ liability.” Id. at

73a. And, after detailing the circuit conflict, the court

agreed with Guam that “the Sixth and Seventh

Circuits have the better approach,” and that the

Ninth Circuit’s contrary approach—advanced by the

United States in seeking dismissal—“warps the

underlying text of CERCLA and/or the 2004 Consent

Decree beyond recognition.” Id. at 73a-90a.

The United States moved for an interlocutory

appeal under 28 U.S.C. § 1292(b), asserting that

“circuit and district courts” had issued “[c]onflicting

decisions” concerning “the correct interpretation of

CERCLA [Section 113(f)(3)(B)]” and that these

“conflicting statutory interpretations” implicated “the

dispositive legal questions” presented here. D. Ct.

Doc. 49-1, at 9-10 (Dec. 6, 2018); see D. Ct. Doc. 53, at

2 (Dec. 27, 2018) (stressing the “clear differences” and

“sharp split of legal authority on the controlling

questions of law” among the circuits). The district

court granted the motion, App. 27a-50a, agreeing that

“there is a circuit split” and that interlocutory review

was appropriate, id. at 38a-40a, 47a-48a.

3. The D.C. Circuit granted interlocutory review

and reversed. App. 1a-26a. Because Sections 107(a)

and 113(f) are “mutually exclusive,” the court

explained, “‘a party who may bring a contribution

action . . . must use the contribution action, even if a

cost recovery action would otherwise be available.’”

Id. at 10a-11a (citation omitted). All agree Guam’s

Section 107(a) claim was timely. Id. at 2a. But the

court held that Guam’s Section 107(a) claim is barred

because the 2004 CWA decree triggered Section

113(f)(3)(B), and Guam’s claim was not filed within

three years of that decree. Id. at 16a-26a.

In reaching this “harsh” result, id. at 26a, the

court first addressed the fact that the 2004 decree—

which was limited to CWA claims—did not purport to

resolve Guam’s CERCLA liability or, for that matter,

even mention CERCLA, id. at 16a-18a.

After

observing that the “‘circuits’” are “‘split’” on the

question whether a non-CERCLA settlement can

trigger Section 113(f)(3)(B), the court rejected the

Second Circuit’s position and joined the Third,

Seventh, and Ninth Circuits in holding that Section

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

settlement.” Id. at 16a-17a (citation omitted). To

support that conclusion, the court drew a negative

inference from the presence of “CERCLA-specific”

language in Section 113(f)(1). Id. at 17a-18a.

The court next determined that the terms of the

2004 decree “‘resolve[d]’ Guam’s liability” for a

response action because it required Guam to “design

and install a ‘dump cover system.’” Id. at 21a

(alterations in original) (citations omitted). The court

rejected the district court’s “thorough[ly]” reasoned

conclusion that the decree’s express disclaimer of

liability, conditional release of claims, and

reservation-of-rights clauses precluded a finding that

it “resolve[d]” liability. Id. at 9a, 22a-25a. Although

the court agreed that these provisions may have

precluded a Section 113(f)(3)(B) claim in “other

circuits,” the court held that these provisions could

not “overcome” Guam’s agreement to construct a

cover. Id. at 22a-25a.

The D.C. Circuit denied rehearing. App. 98a-99a.

REASONS FOR GRANTING THE PETITION

This case readily satisfies the Court’s criteria for

certiorari.

The D.C. Circuit’s decision below

exacerbates two acknowledged circuit splits

concerning the meaning of Section 113(f)(3)(B)—one

of the most consequential and frequently litigated

provisions of CERCLA. The questions presented are

unquestionably important—impacting the operation

of a critical feature of CERCLA. And, in reversing the

district court, the D.C. Circuit adopted a deeply

flawed reading of the relevant statutory provisions,

which leaves “Guam to foot the bill” for the costs of

cleaning up a dump built and used by the Navy. App.

26a. The petition should be granted.

I. THE DECISION BELOW DEEPENS TWO

CIRCUIT SPLITS OVER THE MEANING OF

CERCLA SECTION 113(f)(3)(B)

As the court of appeals, district court, and United

States all expressly acknowledged below, this case

implicates two direct circuit conflicts over the scope of

Section 113(f)(3)(B). The D.C. Circuit’s decision

deepens each of those direct conflicts.

A. The Lower Courts Are Expressly Divided

About Whether Non-CERCLA Settlements

Trigger Section 113(f)(3)(B)

As the D.C. Circuit stated, the “circuits” are “split”

on the question “[w]hether a non-CERCLA settlement

agreement may give rise to a contribution action”

under Section 113(f)(3)(B). App. 16a (citation and

internal alteration omitted); see also Gov’t C.A. Br.

19-20 & n.5 (discussing split); Gov’t C.A. Reply Br. 810 (same); C.A.J.A. 224-27 (same).

1. On one side of the split, the Second Circuit has

repeatedly held that Section 113(f)(3)(B) authorizes a

contribution claim “only when liability for CERCLA

claims, rather than some broader category of legal

claims, is resolved” in the settlement. W.R. Grace &

Co.-Conn. v. Zotos Int’l, Inc., 559 F.3d 85, 90 (2d Cir.

2009) (quoting Consolidated Edison Co. of N.Y., Inc.

v. UGI Utils., Inc., 423 F.3d 90, 95 (2d Cir. 2005), cert.

denied, 551 U.S. 1130 (2007)).

In Consolidated Edison, the Second Circuit found

it “clear” that only the settlement of “CERCLA

claims” will trigger Section 113(f)(3)(B), because the

statute requires the “resolution of liability for

‘response action[s],’” and “a ‘response action’ is a

CERCLA-specific term.” 423 F.3d at 95-96 (alteration

in original). That reading, the court explained, also

harmonizes Section 113(f)(3)(B) with Section

113(f)(1)—“[j]ust as a party must be sued under

CERCLA before it can maintain a section 113(f)(1)

contribution claim, it must settle CERCLA liability

before it can maintain a claim under section

113(f)(3).” Id. at 96 (citation omitted). The “operative

question” for purposes of Section 113(f)(3)(B), the

court held, is whether the settling party “resolved its

CERCLA liability” in the settlement. Id.

The Second Circuit reaffirmed this holding in W.R.

Grace, explaining that Section 113(f)(3)(B) applies

“only when liability for CERCLA claims . . . is

resolved.” 559 F.3d at 90-91 (quoting Consolidated

Edison, 423 F.3d at 95). By “mak[ing] no reference to

CERCLA,” the agreement in W.R. Grace “le[ft] open

the possibility that . . . the EPA could, at some future

point, assert CERCLA or other claims.” Id. at 91.

Because the settlement did “not resolve CERCLA

claims,” it did not trigger Section 113(f)(3)(B). Id.5

The United States expressed its disagreement with

Consolidated Edison more than a decade ago. See Niagara

Mohawk Power Corp. v. Chevron USA, Inc., 596 F.3d 112, 126

n.15 (2d Cir. 2010). But the Second Circuit has not changed its

position, and district courts within the Second Circuit thus

continue to follow Consolidated Edison. See, e.g., DMJ Assocs.,

L.L.C. v. Capasso, 181 F. Supp. 3d 162, 166-67 (E.D.N.Y. 2016);

Numerous district courts across the country have

followed the Second Circuit in concluding that nonCERCLA settlements do not support contribution

claims under Section 113(f)(3)(B).

See, e.g.,

Differential Dev.-1994, Ltd. v. Harkrider Distrib. Co.,

470 F. Supp. 2d 727, 739-40 & n.13 (S.D. Tex. 2007)

(collecting a dozen cases from different courts).

2. In the decision below, the D.C. Circuit

expressly rejected the Second Circuit’s position,

holding instead that “a settlement agreement can

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

CERCLA.” App. 17a-18a. In so holding, the court

joined three other circuits that have adopted this rule.

The Third Circuit was the first to hold that Section

113(f)(3)(B) “does not require resolution of CERCLA

liability in particular.” Trinity Indus., Inc. v. Chicago

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

Rejecting the Second Circuit’s position, the court

reasoned that “Section 113(f)(3)(B) does not state that

the ‘response action’ in question must have been

initiated pursuant to CERCLA—a requirement that

might easily have been written into the provision.”

Id. Relying on the absence of such an express

requirement, the court held that the non-CERCLA

settlement at issue in that case, arising under state

law, triggered Section 113(f)(3)(B). Id.

The Ninth Circuit likewise has held that “a nonCERCLA settlement agreement may form the

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

action.” Asarco LLC v. Atlantic Richfield Co., 866

F.3d 1108, 1118-21 (9th Cir. 2017). Asarco involved

New York v. Town of Clarkstown, 95 F. Supp. 3d 660, 675-76

(S.D.N.Y. 2015); MPM Silicones, LLC v. Union Carbide Corp.,

931 F. Supp. 2d 387, 394-96 (N.D.N.Y. 2013).

settlements under the Resource Conservation and

Recovery Act (RCRA). Id. at 1114. After noting the

circuit “split” over the effect of “non-CERCLA

settlement agreement[s]” under Section 113(f)(3)(B),

the Ninth Circuit rejected the Second Circuit’s

position and held that “Congress did not intend to

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

incurred under CERCLA settlements.” Id. at 111920. Finding the statute’s text “unilluminating,” the

court rested its holding on “CERCLA’s broad remedial

purpose” and the same negative inference used by the

D.C. Circuit below. Id. at 1118-19.

The Seventh Circuit has also held that “a

settlement need not resolve CERCLA-specific liability

in order to start the clock on a contribution action”

under Section 113(f)(3)(B). Refined Metals Corp. v.

NL Indus. Inc., 937 F.3d 928, 932 (7th Cir. 2019).

Refined Metals, like Asarco, involved RCRA claims.

In concluding that this settlement nevertheless

satisfied “Congress’s intention” underlying Section

113(f)(3)(B), the Seventh Circuit noted the circuit

split but was “persuaded by the view adopted by the

Third and Ninth Circuits.” Id. at 932-34.

B. The Lower Courts Are Expressly Divided

About Whether Settlements With Liability

Disclaimers And Reservation-Of-Rights

Clauses Trigger Section 113(f)(3)(B)

There is also an acknowledged “circuit split” on

whether settlements—involving CERCLA claims or

not—“containing non-admissions of liability, broad

reservations of rights, and conditional covenants not

to sue” can “‘resolve’ liability for the purpose of

[Section 113(f)(3)(B)].”

App. 39a-40a (citations

omitted); see also id. at 73a-85a (discussing split);

Gov’t C.A. Br. 25-27, 32-33, 37-39 (same).

1. The Seventh Circuit has repeatedly held that a

settlement does not resolve liability for purposes of

Section 113(f)(3)(B) “when (1) the settlement

expressly state[s] that the defendant companies did

not admit any liability or the validity of the EPA’s

findings; and (2) the covenants not to sue [a]re not

immediately effective, but instead [a]re conditional on

complete performance of the terms of the settlement.”

Refined Metals, 937 F.3d at 931; see NCR Corp. v.

George A. Whiting Paper Co., 768 F.3d 682, 692 (7th

Cir. 2014); Bernstein v. Bankert, 733 F.3d 190, 212-13

(7th Cir. 2012), cert. denied, 571 U.S. 1175 (2014).

In the Seventh Circuit, the presence of such

settlement terms is “dispositive”—and precludes the

operation of Section 113(f)(3)(B). Refined Metals, 937

F.3d at 931; see Bernstein, 733 F.3d at 212-14 (holding

that a settlement did not trigger Section 113(f)(3)(B)

because it contained an “express disclaimer[] of

liability” and “condition[ed]” the release of the settled

claims on “complete performance”).

The Sixth Circuit has likewise held that a party

does not “resolve[] its liability” for purposes of Section

113(f)(3)(B) when the settlement disclaims “‘an

admission of liability’” and contains a covenant not to

sue that is “conditioned on [the settling party’s]

performance.” Florida Power Corp. v. FirstEnergy

Corp., 810 F.3d 996, 1003-04 (6th Cir. 2015) (quoting

ITT Indus., Inc. v. BorgWarner, Inc., 506 F.3d 452,

460 (6th Cir. 2007)); see also Hobart Corp. v. Waste

Mgmt. of Ohio, Inc., 758 F.3d 757, 770-71 (6th Cir.

2014), cert. denied, 574 U.S. 1122 (2015).

In ITT, for example, the Sixth Circuit held that a

settlement did not trigger Section 113(f)(3)(B)

because it “expressly reserve[d] [EPA’s] rights to legal

action” in the future and did not “constitute an

admission of liability” on the part of the settling

party. 506 F.3d at 459-60. The Sixth Circuit reached

the same conclusion in Florida Power, where the

settlements lacked any “admission of liability,” and

“explicitly condition[ed] the resolution of liability on

performance” in the future. 810 F.3d at 1003-04.

2. The Ninth Circuit has explicitly “disagree[d]

with the Sixth and Seventh Circuits[]” and held that

a settlement can resolve liability despite the inclusion

of a liability disclaimer and a “covenant not to sue

conditioned on completed performance.” Asarco, 866

F.3d at 1123-25; see id. at 1125 (“[U]nlike the court in

Florida Power, we conclude that it matters not that a

PRP refuses to concede liability in a settlement

agreement.”). The court justified its departure from

the Sixth and Seventh Circuits based on its view of

“Congress’ intent in enacting § 113(f)(3)(B)” and its

desire to avoid a result that might “discourage PRPs

from entering into settlements.” Id. at 1125. Thus,

in the Ninth Circuit, a settling party is deemed to

have “resolved its liability” for purposes of Section

113(f)(3)(B) as long as the settlement specifies

“compliance obligations” for “at least some of its

response actions or costs.” Id. at 1124-25.

The Ninth Circuit has qualified this rule in one

respect. It has held that a settlement that “references

[the settling party’s] continued legal exposure” in a

reservation-of-rights clause can demonstrate that the

agreement “fails to resolve . . . liability.” Id. at 112526. Thus, in Asarco, which involved two settlement

agreements, the court held that a settlement that did

“not restrict the United States’ authority to bring an

action under CERCLA” and compelled “additional

response obligations” did not resolve liability for

purposes of Section 113(f)(3)(B). Id. at 1126.

The district court in this case concluded that “the

Sixth and Seventh Circuits have the better approach.”

App. 73a. The D.C. Circuit, however, sided with the

Ninth Circuit in holding that a settlement can trigger

Section 113(f)(3)(B) even if it includes an express

“disclaimer of liability” and a “‘covenant not to sue’”

conditioned on “‘full implementation of the

settlement’s requirements.’” Id. at 23a-24a (citations

omitted).6 But when it came to the reservation-ofrights provisions, the court embraced the United

States’ “disagreement with [that] part of Asarco’s

holding.” Gov’t C.A. Reply Br. 18. The court held

that, despite Guam’s continued legal exposure, all

that matters is whether the settling party agreed to

perform “‘some’ of a response action.” App. 22a-23a.

The D.C. Circuit’s decision in this case thus stakes

a claim at the far end of this split.

*****

The longstanding circuit splits deepened by the

decision below thwart the uniform, nationwide

application of CERCLA. Indeed, had this case arisen

in the Second, Sixth, or Seventh Circuits, the outcome

would have been different as a matter of law—and

Guam’s action would have been allowed to proceed.

The court also relied on a quote from the Seventh Circuit’s

decision in Refined Metals, see App. 24a, yet failed to

acknowledge the actual holding of Refined Metals—that these

provisions together are “dispositive” to “exempt [a decree] from

the reach of section 113(f)(3)(B).” 937 F.3d at 931.

This disparity, untenably based on the happenstance

of geography, warrants this Court’s review.

II. THE

QUESTIONS

PRESENTED

EXCEPTIONALLY IMPORTANT

ARE

The case for certiorari is strengthened by the fact

that the questions presented are frequently recurring

and tremendously important—to both the operation

of CERCLA and the legitimacy of dealing with the

United States. Moreover, the questions are of vital

importance to Guam, which, as the D.C. Circuit

recognized, is now “left . . . to foot the bill” for cleaning

up the toxic mess that the Navy created and left

behind. App. 26a. This case also cleanly presents

both questions, providing the Court with a uniquely

optimal vehicle for resolving them.

A. 1. As this Court has recognized, lower courts

“frequently grapple[] with whether and how PRPs

may recoup CERCLA-related costs from other PRPs,”

“questions [that] lie at the intersection of” Sections

“107(a) and 113(f).”

United States v. Atlantic

Research Corp., 551 U.S. 128, 131 (2007). The

answers to these questions are undoubtedly

important, particularly given that hundreds of

millions of dollars—as well as the fair allocation of

responsibility—often hang in the balance.

Given the significance of Sections 107 and 113 to

the Superfund program, this Court has repeatedly

granted review to resolve disagreements over their

meaning. See, e.g., Atlantic Richfield Co. v. Christian,

140 S. Ct. 1335, 1352-53 (2020); Burlington N. &

Santa Fe Ry. Co. v. United States, 556 U.S. 599, 608

(2009); Atlantic Research, 551 U.S. at 131; Cooper

Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 160-61

(2004); United States v. Bestfoods, 524 U.S. 51, 59-60

(1998); Key Tronic Corp. v. United States, 511 U.S.

809, 811 (1994). Indeed, in Cooper, the Court granted

certiorari to interpret Section 113(f) even before a

circuit conflict had developed. This case presents two

concrete circuit splits over the same subsection.

What is more, these circuit conflicts concern the

settlement provisions of that subsection. As this Court

observed last Term, “[s]ettlements are the heart of the

Superfund statute.” Atlantic Richfield, 140 S. Ct. at

1355. EPA is in fact under statutory orders to

“proceed by settlement ‘[w]henever practicable,’”

which has led EPA to seek settlements in the majority

of cases involving cleanup work. Id. (quoting 42

U.S.C. § 9622(a)). Allowing these circuit splits to

persist will frustrate that objective by exacerbating

confusion over what kinds of settlements trigger

Section

113(f)(3)(B)—producing

significant

uncertainty for parties who settle with EPA,

consuming considerable time and resources in

CERCLA litigation, and ultimately upsetting a core

feature of the Superfund program.

2. The unsettled meaning of Section 113(f)(3)(B)

has a particularly pernicious effect when, as here, the

United States is itself a responsible party—a

situation that is by no means rare. See Gov’t

Accountability Office, GAO-19-157SP, High-Risk

Series: Substantial Efforts Needed to Achieve Greater

Progress on High-Risk Areas 138-42 (2019).

When negotiating the 2004 CWA decree, the

United States thus had every incentive not to inform

Guam of its view that the decree started the shorter,

three-year clock on seeking contribution under

CERCLA Section 113(f)(3)(B). Indeed, the United

States consistently said—in 1988, 1993, 2002, and

2007, when it faced exposure for the cleanup costs—

that CERCLA remediation was not warranted at the

Ordot Dump. See supra at 8-10. The United States

chose instead to sue Guam under the CWA’s

permitting provision—pursuant to which the United

States enjoys immunity from suit, see supra at 8—

while reserving the right to bring claims, under any

statute, against Guam in the future.

Guam had no reason to think that, in negotiating

the CWA decree, it was triggering its CERCLA

contribution rights. And, instead of informing Guam

of its view that this deliberately non-CERCLA

settlement would trigger a CERCLA-specific

contribution claim under Section 113(f)(3)(B), the

United States remained silent. This settlement

would not have triggered a contribution claim in the

Second, Sixth, or Seventh Circuits—yet, under the

decision below, Guam is left on the hook for the entire

$160 million in cleanup costs.

That result is

fundamentally at odds with CERCLA’s aim of

“ensur[ing]” that cleanup costs are “borne by those

responsible for the contamination.”

Atlantic

Richfield, 140 S. Ct. at 1345 (citation omitted).

This is not the first time the United States has

tried to “insulate itself from responsibility for its own

pollution” by exploiting its “dual role” as both

“CERCLA’s primary enforcer” and “a liable party.”

Atlantic Research Corp. v. United States, 459 F.3d

827, 837 (8th Cir. 2006), aff’d, 551 U.S. 128 (2007).

Nor will it be the last. The United States has an

incentive to avoid liability for cleanup costs. And,

regardless of the tactics it pursues, the conflict and

confusion over the scope of Section 113(f)(3)(B) only

increases the risk that the United States will seek to

evade responsibility for its actions, and that those

dealing with the United States (like Guam here) will

fall prey to this trap for the unwary. This Court’s

review is warranted. Cf. Maine Cmty. Health Options

v. United States, 140 S. Ct. 1308, 1319 (2020)

(granting review to correct a “decision [that] would

‘undermin[e] the reliability of dealings with the

government’” (alteration in original) (citation

omitted)).

3. This Court’s review is also extraordinarily

important to the people of Guam. As the United

States well knows, Guam’s fiscal position is fragile.

The lack of funding delayed Guam’s ability to

construct a new landfill for decades and thereby

delayed Guam’s ability to clean up the Ordot Dump.

See supra at 9-10. Saddling Guam with the entirety

of the $160 million cleanup bill will dramatically

impact Guam’s budget—and people. That bill alone

amounts to nearly 20% of Guam’s entire budget for

2020. See Guam Pub. L. No. 35-36 (Sept. 4, 2019).

That is a crippling figure; an equivalent bill for the

Federal Government would be nearly $1 trillion. See

Office of Mgmt. & Budget, A Budget for America’s

Future: Analytical Perspectives 85 tbl.8-1 (Feb. 10,

2020).7

The result in this case is also particularly “harsh”

(App. 26a), given the United States’ undeniable

responsibility. The Navy created the Ordot Dump

and used it—including to dump DDT and Agent

Orange—for decades. Yet, under the decision below,

the United States will escape any liability for its role

under CERCLA, with Guam and its residents forced

to subsidize the cleanup of the Navy’s waste, based on

a consent decree that had nothing to do with

https://www.govinfo.gov/content/pkg/BUDGET-2021-PER/

pdf/BUDGET-2021-PER.pdf.

CERCLA—and expressly disclaimed liability on the

claims it did settle. The grossly unfair consequences

of the D.C. Circuit’s decision for Guam underscore the

need for this Court’s intervention.

B. This case is also an ideal vehicle for resolving

the questions presented. As the United States itself

argued in seeking permission for an interlocutory

appeal, the questions presented are “dispositive legal

questions” about “how to properly interpret CERCLA

§ 9613(f)(3)(B).” D. Ct. Doc. 49-1, at 6-10 (Dec. 6,

2018). Both the court of appeals and district court

issued lengthy, thoughtful opinions addressing these

questions, and there are no antecedent barriers that

might prevent this Court from reaching them.

III. THE DECISION BELOW IS WRONG

Certiorari is also warranted because the decision

below is deeply flawed. Viewed through the lens of

either question presented, the 2004 CWA consent

decree does not trigger Section 113(f)(3)(B).

A. Section

113(f)(3)(B)

Requires

Resolution Of CERCLA Liability

The

The D.C. Circuit erred by holding that a nonCERCLA settlement can trigger Section 113(f)(3)(B).

1. Section 113(f)(3)(B) authorizes contribution

claims by “[a] person who has resolved its liability to

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

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

action in an administrative or judicially approved

settlement.” 42 U.S.C. § 9613(f)(3)(B). A “response”

action is a CERCLA-defined term that means a

“removal” or “remedial” action, id. § 9601(25), both of

which are actions taken “in the event of a release or

threatened release of a hazardous substance,” id.

§ 9601(24); see id. § 9601(23). And the liability for

response actions and associated costs comes from

CERCLA itself—specifically, in Sections 106 and

107(a). See id. §§ 9606(a), 9607(a). Read in context,

therefore, resolving “liability” for a “response action”

or associated “costs” in Section 113(f)(3)(B) naturally

means resolving the liability for response actions

required or costs imposed under CERCLA.

Such a reading also makes sense in light of Section

113(f)(1), which authorizes contribution claims

“during or following any civil action under [Section

106] or [Section 107(a)],” id. § 9613(f)(1). As the

United States told this Court in Cooper, Sections

113(f)(3)(B) and 113(f)(1)—both enacted as part of

SARA—together provide for contribution when a

party “satisfies its CERCLA liability to the

government, through settlement or judgment”:

Section 113(f)(1) applies “during or following a

Section 106 or 107(a) action,” while Section

113(f)(3)(B) applies “after a CERCLA-based

settlement.” U.S. Amicus Br. 23, 26, Cooper, 543 U.S.

157 (No. 02-1192), 2004 WL 354181 (Cooper U.S. Br.)

(emphasis added); see id. at 11-12 (same).

That conclusion is confirmed by the type of remedy

involved—contribution. As this Court has explained,

“Congress used the term ‘contribution’” in its

“traditional sense,” which means that the remedy “is

contingent upon an inequitable distribution of

common liability among liable parties.” Atlantic

Research, 551 U.S. at 138-39 (emphasis added). So “a

person seeking contribution [under Section 113(f)]

must extinguish—through a pending or completed

lawsuit or through settlement—the joint liability that

provides the basis for the contribution claim.” Cooper

U.S. Br. 11 (emphasis added). To obtain contribution

after a settlement, the settlement must extinguish

both the liability of the person seeking contribution as

well as “‘the liability of the person against whom

contribution is sought.’”

Id. at 18-19 (quoting

Restatement (Third) of Torts § 23 cmt. b (2000)); see

Restatement (Second) of Torts § 886A(2) (1979).

Non-CERCLA settlements are incompatible with

this remedy. As the United States correctly asserted

below, a non-settling party is subject to contribution

under Section 113(f)(3)(B) “only” when the nonsettling party would otherwise be “liable for clean-up

costs under Section 107” of CERCLA. Gov’t C.A.

Suppl. Br. 10 (emphasis added); see, e.g., Trinity

Indus., Inc. v. Greenlease Holding Co., 903 F.3d 333,

352 (3d Cir. 2018). Thus, to obtain contribution from

a non-settling party, the settling party must

extinguish the non-settling party’s CERCLA liability.

The extinguished liability will be “common,” however,

only if the settlement extinguishes the settling party’s

CERCLA liability as well. A settlement that does not

resolve CERCLA liability does not resolve the

common liability supporting the contribution remedy.

This case sharply illustrates the point. The 2004

CWA decree settled claims brought under the

permitting provision of the CWA, which “does not

authorize liability against the United States,” United

States Dep’t of Energy v. Ohio, 503 U.S. 607, 624

(1992). Guam could not possibly have resolved

liability it shared in common with the United States—

and therefore could not have triggered a contribution

right—by settling claims under a statutory provision

that does not even authorize liability against the

United States. Yet that is the perverse conclusion

that the D.C. Circuit reached in this case.8

The statutory history further confirms that

Section 113(f)(3)(B) is limited to settlements resolving

CERCLA liability. Section 113(f)(3)(B) is among the

provisions that Congress included within Section

113(f) to “encourage” parties to enter into

“[s]ettlement[s] with the government under

CERCLA,” including “consent decree[s] under

CERCLA” that are judicially approved as “consistent

with the purposes that CERCLA is intended to serve.”

H.R. Rep. No. 99-253, pt. 3, at 19-20 (1985) (emphasis

added). The history “leaves no doubt that Congress’s

object” in enacting Section 113(f)(3)(B) was to

authorize contribution “after a CERCLA-based

settlement.” Cooper U.S. Br. 12 (emphasis added).

2. The D.C. Circuit based its contrary conclusion

solely on a negative inference drawn from the fact

that Section 113(f)(1) “expressly requires that a party

first be sued under CERCLA,” while Section

113(f)(3)(B) “contains no such CERCLA-specific

language.” App. 17a-18a (citing Russello v. United

States, 464 U.S. 16, 23 (1983)). But that argument

fails. To begin with, the very premise for a negative

inference is absent: Section 113(f)(3)(B) does contain

Further demonstrating the mismatch, the 2004 CWA

decree makes no mention of any “hazardous substances,” the

touchstone of CERCLA “response” actions. See 42 U.S.C.

§ 9601(23)-(25). Nor does the applicable CWA provision, 33

U.S.C. § 1319. To the contrary, a different CWA provision deals

with “hazardous substances,” id. § 1321, and the United States

chose not to bring claims under that provision. Thus, under the

D.C. Circuit’s reasoning, a settlement, like the one here, that

does not even identify a “hazardous substance” covered by

CERCLA can nevertheless trigger Section 113(f)(3)(B).

“CERCLA-specific language”—the reference to

“response action,” a defined CERCLA term.

In any event, as this Court has cautioned, the

“Russello presumption” generally applies when “the

omission [is] the sole difference” between the

provisions, and it “grows weaker with each difference

in the formulation of the provisions under inspection.”

City of Columbus v. Ours Garage & Wrecker Serv.,

Inc., 536 U.S. 424, 435-36 (2002). Thus, the Court has

repeatedly refused to draw such an inference when,

given many differences in formulation, the inference

“proves too much.” Field v. Mans, 516 U.S. 59, 67-68

(1995); see, e.g., Entergy Corp. v. Riverkeeper, Inc., 556

U.S. 208, 222 (2009).

That is the case here. Indeed, not even the United

States embraces the consequences of its negative

inference when it comes to the contribution defendant

(i.e., the non-settling party) rather than the

contribution plaintiff. As noted, the United States

contends that, to be subject to a contribution claim

under Section 113(f)(3)(B), the non-settling party

must be “liable for clean-up costs under Section 107.”

Gov’t C.A. Suppl. Br. 10.

Section 113(f)(3)(B),

however, does not mention Section 107; it simply

permits contribution against “any person who is not a

party to a settlement referred to in paragraph (2).” 42

U.S.C. § 9613(f)(3)(B). Section 113(f)(1), by contrast,

does reference Section 107—it permits contribution

against any person “liable or potentially liable under

[Section 107(a)].” Id. § 9613(f)(1). Applying the same

negative inference adopted by the D.C. Circuit below

therefore would mean that a non-settling party need

not be liable under Section 107. The United States

itself agrees that this cannot be right.

Ultimately, “[t]he force of any negative implication

. . . depends on context,” NLRB v. SW Gen., Inc., 137

S. Ct. 929, 940 (2017) (citation omitted), and here

context makes plain that Section 113(f)(3)(B) is not

some isolated, self-contained provision to be

contrasted with Section 113(f)(1). It is far more

natural to read the provisions together, so that they

provide a CERCLA-based contribution remedy during

or following a CERCLA-based action or “after a

CERCLA-based settlement.” Cooper U.S. Br. 23.

B. Section 113(f)(3)(B) Requires A Final,

Conclusive Liability Determination

The decision below is wrong for another, equally

glaring, reason: the consent decree did not “resolve[]

. . . liability” at all. 42 U.S.C. § 9613(f)(3)(B).

1. The term “resolved,” which is not defined in

CERCLA, means “decided, determined, or settled—

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

at 211. Thus, in plain English, for a settlement to

resolve liability, the settlement must reach a “‘firm

decision about’ liability,” such that “the question of

liability is not susceptible to further dispute or

negotiation.” Asarco, 866 F.3d at 1122. And to

determine whether a settlement satisfies that test,

“the [settlement] must be construed as it is written,”

“not by reference to what might satisfy the purposes

of one of the parties to it,” and “not as it might have

been written had the plaintiff established his factual

claims and legal theories in litigation.” United States

v. Armour & Co., 402 U.S. 673, 682 (1971).

2. The 2004 CWA decree makes explicit, in

several different provisions, that the parties did not

resolve Guam’s liability for any claim. The D.C.

Circuit disregarded the ordinary meaning of these

provisions—viewed against the plain meaning of the

statute—based on its own, arm-chair observations

about the practical operation or effect of such

provisions. That analysis cannot withstand scrutiny.

a. To begin with, the decree explicitly disclaims

“any finding or admission of liability against or by the

Government of Guam.” App. 140a (emphasis added).

As the district court explained, it is difficult to

imagine language that could more “plainly reflect[]

the parties’ intention to leave the question of liability

unresolved.” Id. at 86a; accord Bernstein, 733 F.3d at

212. Yet, instead of “tak[ing] th[is] disclaimer at its

word,” the D.C. Circuit observed that “‘parties often

expressly refuse to concede liability under a

settlement agreement, even while assuming

obligations consistent with a finding of liability.’”

App. 24a (citation omitted). That was error.

By using “resolved,” Congress required a final

determination of liability, and the 2004 consent

decree says in clear terms that there was no such final

determination. The D.C. Circuit’s reasoning defeats

the plain text of both the statute and the decree, and

renders this provision entirely pointless. Congress’s

use of “resolved” was intentional, and Guam obviously

thought that disclaiming a “finding . . . of liability”

meant something, such that it was worth bargaining

for and including in the decree. Yet the D.C. Circuit

read that provision out of the agreement.

b. The consent decree also expressly conditioned

the release of the CWA claims in the complaint on

“[e]ntry of th[e] Consent Decree and compliance with

the requirements [t]herein.” Id. at 166a (emphasis

added). As the district court explained, that provision

“could not be clearer that . . . the resolution of Guam’s

liability for the specified claims” was not resolved but

instead “condition[ed]” on future events—namely,

Guam’s actual compliance with all of the decree’s

requirements. Id. at 89a; accord Florida Power, 810

F.3d at 1003-04 (concluding that similar provision

precluded the resolution of liability).

The D.C. Circuit disagreed, claiming that this

interpretation would “nullify section 113(f)(3)(B)”

given the applicable three-year limitations period in

42 U.S.C. § 9613(g)(3)(B), which begins to run upon

“entry of the settlement, not when liability is

‘resolved.’” App. 23a. If claims addressed in the

settlement are not released until years after the

settlement’s entry, the court reasoned, “Guam’s cause

of action under section 113 would not accrue until

after the statute of limitations runs,” a result

“Congress could not have intended.” Id.

The D.C. Circuit’s reasoning wrongly backs into its

own conclusion by starting with the premise that

“Guam[]” had a “cause of action under section 113”

and then reading the terms of the consent decree to

fit the accompanying limitations period. Moreover,

the court’s timing concerns rest on a misreading of the

statutes. Section 113(f)(3)(B) applies only when the

settling party “has resolved its liability” in the

settlement itself, not sometime later. See Carr v.

United States, 560 U.S. 438, 448 (2010) (“present

perfect tense” “‘denot[es] an act that has been

completed’” (citation omitted)). If liability remains

unresolved at the “entry of the settlement,” then

Section 113(f)(3)(B) is not triggered, regardless of

what may (or does) happen in the future.9

This does not create any practical anomaly, as the D.C.

Circuit believed. App. 23a. In this instance, the PRP should

There is thus no world in which a Section 113(f)

claim could accrue “after the statute of limitations

runs.” App. 23a. That the limitations period is keyed

to the “entry of the settlement” simply reinforces the

point that a settlement that expressly conditions the

release of claims on future events, as the 2004 decree

explicitly did here, is not supposed to trigger Section

113(f)(3)(B). Only by misreading Section 113(f)(3)(B)

to permit a gap between the “entry of the settlement”

and the time “when liability is ‘resolved,’” App. 23a,

did the court below arrive at its supposed anomaly

between Sections 113(f)(3)(B) and 113(g)(3)(B).

c. The consent decree also reserved the rights of

the United States to pursue additional claims against

Guam, leaving Guam “fully exposed” to future

liability, including liability “under CERCLA.” Id. at

87a-89a. The decree makes explicit that, “[e]xcept as

specifically provided herein, the United States does

not waive any rights or remedies available to it for

any violation by the Government of Guam of federal

and territorial laws and regulations,” and that

“[n]othing in this Consent Decree shall limit the

ability of the United States to enforce any and all

provisions of applicable federal laws and regulations

for any violations unrelated to the claims in the

Complaint.” Id. at 166a (emphasis added). And, as

noted, the only “claims in the Complaint” were claims

under the CWA. See id. at 134a-36a.

The D.C. Circuit reasoned that Section 113(f)(3)(B)

“requires merely the resolution of liability for ‘some’

of a response action,” such that the only question that

“matters is whether what [the decree] does require

bring a cost recovery action under Section 107(a), as Guam tried

to do here. See Asarco, 866 F.3d at 1126 n.9.

qualifies as ‘some’ of a ‘response action.’” Id. at 22a.

Guam did not undertake any CERCLA-based

response action in carrying out the CWA-based

settlement. But the more pertinent point is that

Guam did not resolve any liability as to any response

action, in part or whole. The D.C. Circuit’s analysis

confuses “perform[ing] certain actions . . . to remedy

an instance of environmental contamination” with

“settl[ing] the issue of liability for that

contamination.” Bernstein, 733 F.3d at 212. The text

of Section 113(f)(3)(B) makes the resolution of liability

the touchstone. Regardless of what actions Guam

agreed to perform in the decree under the CWA, the

decree explicitly left Guam’s liability unresolved.

All told, the D.C. Circuit’s decision strips

Congress’s use of “resolve liability” in Section

113(f)(3)(B) of all ordinary meaning, creates the

perverse result that settlements that expressly

disclaim liability nevertheless resolve it, and sets an

unintended trap for the unwary that defeats

Congress’s goal of sharing remediation costs.

*****

The grave flaws in the D.C. Circuit’s analysis of

the questions presented underscore the need for this

Court’s review of the unjust result reached below.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

LEEVIN T. CAMACHO

Attorney General

JAMES L. CANTO II

Deputy Attorney General

OFFICE OF THE ATTORNEY

GENERAL

590 S. Marine Corps Drive

Suite 901

Tamuning, Guam 96913

JOHN D.S. GILMOUR

WILLIAM J. JACKSON

FABIO C. DWORSCHAK

KELLEY DRYE

& WARREN LLP

515 Post Oak Boulevard

Suite 900

Houston, TX 77027

GREGORY G. GARRE

Counsel of Record

ROMAN MARTINEZ

BLAKE E. STAFFORD

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2207

gregory.garre@lw.com

BEZALEL STERN

KELLEY DRYE

& WARREN LLP

3050 K Street, NW

Suite 400

Washington, DC 20007

Counsel for Petitioner

September 16, 2020