Petitioners Brief — Territory of Guam, Petitioner v. United States

Supreme Court briefFeb 22, 2021

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No. 20-382

In the

Supreme Court of the United States

GOVERNMENT OF GUAM,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR PETITIONER

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

BRENT T. MURPHY*

SOREN J. SCHMIDT

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

SUMMARY OF ARGUMENT...................................14

ARGUMENT .............................................................16

SECTION 113(f)(3)(B) DOES NOT

REACH NON-CERCLA SETTLEMENTS.........16

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

Resolution Of CERCLA Liability ................16

1. The Statutory Text And Context

Tie Section 113(f)(3)(B) To The

Liability Imposed By CERCLA ............16

2. Traditional

Contribution

Principles Confirm That Section

113(f)(3)(B)

Requires

The

Resolution Of CERCLA Liability .........20

TABLE OF CONTENTS—Continued

Page

3. Interpreting Section 113(f)(3)(B)

To Reach Only CERCLA-Based

Settlements

Comports

With

CERCLA’s Regulatory Scheme .............24

4. Section 113(f)(3)(B)’s Statutory

History

Reinforces

The

Requirement Of A CERCLABased Settlement ..................................29

5. Limiting Section 113(f)(3)(B) To

CERCLA-Based

Settlements

Accords With The Presumption Of

Fair Notice .............................................30

B. The

D.C.

Circuit’s

Contrary

Interpretation Is Fundamentally

Flawed ..........................................................31

C. The 2004 CWA Consent Decree Did

Not Resolve CERCLA Liability ...................36

II. SECTION 113(f)(3)(B) DOES NOT

REACH

SETTLEMENTS

THAT

DISCLAIM ANY DETERMINATION OF

LIABILITY AND PRESERVE FUTURE

LIABILITY ..........................................................37

A. To “Resolve[] Its Liability,” A Settling

Party Must Conclusively Decide A

Preexisting

Liability

The

Settlement Agreement.................................38

B. Guam Did Not “Resolve[] Its Liability”

In The 2004 CWA Consent Decree..............41

TABLE OF CONTENTS—Continued

Page

C. The

D.C.

Circuit’s

Contrary

Conclusion Flouts The Statutory Text

And The 2004 CWA Consent Decree’s

Terms ...........................................................43

CONCLUSION ..........................................................50

ADDENDUM

42 U.S.C. § 9601(14), (21)-(25), (27), (32)-(33)..........1a

42 U.S.C. § 9606(a), (b) .............................................7a

42 U.S.C. § 9607(a)..................................................10a

42 U.S.C. § 9613(f), (g) ............................................12a

42 U.S.C. § 9652(d)..................................................17a

vii

TABLE OF AUTHORITIES

Page(s)

CASES

Advocate Health Care Network v. Stapleton,

137 S. Ct. 1652 (2017)..........................................40

Asarco LLC v. Atlantic Richfield Co.,

866 F.3d 1108 (9th Cir. 2017)..............................38

Atlantic Richfield Co. v. Christian,

140 S. Ct. 1335 (2020)............................ 3, 4, 28, 39

Bernstein v. Bankert,

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

571 U.S. 1175 (2014) ......................................39, 40

Burdon Central Sugar Refining Co. v. Payne,

167 U.S. 127 (1897) ..............................................45

Burlington Northern & Santa Fe Railway Co.

v. United States,

556 U.S. 599 (2009) ..........................................4, 22

Carr v. United States,

560 U.S. 438 (2010) ..............................................47

Chemical Waste Management, Inc. v. EPA,

869 F.2d 1526 (D.C. Cir. 1989) ............................37

Chevron Mining Inc. v. United States,

863 F.3d 1261 (10th Cir. 2017)............................23

City of Columbus v. Ours Garage & Wrecker

Service, Inc.,

536 U.S. 424 (2002) ..............................................33

City of Milwaukee v. Illinois,

451 U.S. 304 (1981) ..............................................25

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Clay v. United States,

537 U.S. 522 (2003) ..............................................34

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) ......................................17, 25

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

543 U.S. 157 (2004) ..........................................5, 29

County Line Investment Co. v. Tinney,

933 F.2d 1508 (10th Cir. 1991)................ 22, 23, 24

County of Maui v. Hawaii Wildlife Fund,

140 S. Ct. 1462 (2020)..........................................28

CTS Corp. v. Waldburger,

573 U.S. 1 (2014) ..................................................28

Entergy Corp. v. Riverkeeper, Inc.,

556 U.S. 208 (2009) ..............................................34

Exxon Corp. v. Hunt,

475 U.S. 355 (1986) ................................................3

FAA v. Cooper,

566 U.S. 284 (2012) ..............................................20

Field v. Mans,

516 U.S. 59 (1995) .................................... 34, 35, 36

Frew v. Hawkins,

540 U.S. 431 (2004) ..............................................30

Goodyear Atomic Corp. v. Miller,

486 U.S. 174 (1988) ..............................................20

TABLE OF AUTHORITIES—Continued

Page(s)

Gutierrez v. Ada,

528 U.S. 250 (2000) ..............................................17

Jennings v. Rodriguez,

138 S. Ct. 830 (2018)............................................32

Kapral v. United States,

166 F.3d 565 (3d Cir. 1999) .................................33

Key Tronic Corp. v. United States,

511 U.S. 809 (1994) ........................................24, 39

Kirtsaeng v. John Wiley & Sons, Inc.,

568 U.S. 519 (2013) ..............................................32

Life Technologies Corp. v. Promega Corp.,

137 S. Ct. 734 (2017)............................................17

Local No. 93, International Ass’n of

Firefighters v. City of Cleveland,

478 U.S. 501 (1986) ..............................................40

M & G Polymers USA, LLC v. Tackett,

574 U.S. 427 (2015) ..............................................45

Marx v. General Revenue Corp.,

568 U.S. 371 (2013) ........................................33, 35

Meghrig v. KFC Western, Inc.,

516 U.S. 479 (1996) ..............................................26

Merit Management Group, LP v. FTI

Consulting, Inc.,

138 S. Ct. 883 (2018)............................................16

Mid-Con Freight Systems, Inc. v. Michigan

Public Service Commission,

545 U.S. 440 (2005) ..............................................19

TABLE OF AUTHORITIES—Continued

Page(s)

Middlesex County Sewerage Authority v.

National Sea Clammers Ass’n,

453 U.S. 1 (1981) ..................................................26

Mitsui & Co. v. American Export Lines, Inc.,

636 F.2d 807 (2d Cir. 1981) .................................45

Morristown Associates v. Grant Oil Co.,

106 A.3d 1176 (N.J. 2015) ...................................27

New Prime Inc. v. Oliveira,

139 S. Ct. 532 (2019)......................................19, 38

Ngiraingas v. Sanchez,

495 U.S. 182 (1990) ................................................7

Niagara Mohawk Power Corp. v. Chevron

U.S.A., Inc.,

596 F.3d 112 (2d Cir. 2010) ..................... 23, 27, 28

Norfolk Southern Railway Co. v. James N.

Kirby, Pty. Ltd.,

543 U.S. 14 (2004) ..........................................45, 46

Northwest Airlines, Inc. v. Transport Workers

Union of Am.,

451 U.S. 77 (1981) ................................................21

In re Peabody Street Asbestos Superfund Site,

No. CERCLA-01-2015-0052, 2015 WL

13845559 (EPA Dec. 4, 2015) ..............................44

Price Trucking Corp. v. Norampac Industries,

Inc.,

748 F.3d 75 (2d Cir. 2014) ...................................17

Rogers v. Commissioner,

908 F.3d 1094 (7th Cir. 2018)..............................39

TABLE OF AUTHORITIES—Continued

Page(s)

Russello v. United States,

464 U.S. 16 (1983) ................................................31

S & E Contractors, Inc. v. United States,

406 U.S. 1 (1972) ..................................................39

S.D. Warren Co. v. Maine Board of

Environmental Protection,

547 U.S. 370 (2006) ..............................................33

Sturgeon v. Frost,

136 S. Ct. 1061 (2016)..........................................24

Taggart v. Lorenzen,

139 S. Ct. 1795 (2019)..........................................20

Tarrant Regional Water District v. Herrmann,

569 U.S. 614 (2013) ..............................................48

Texas & Pacific Railway Co. v. Clayton,

173 U.S. 348 (1899) ..............................................45

Trinity Industries, Inc. v. Greenlease Holding

Co.,

903 F.3d 333 (3d Cir. 2018) .................................23

United States v. Armour & Co.,

402 U.S. 673 (1971) ........................................41, 44

United States v. Atlantic Research Corp.,

551 U.S. 128 (2007) ...................................... passim

United States v. Bridgestone Americas Tire

Operations, LLC,

No. 3:18-cv-00054, 2018 WL 5621496 (S.D.

Ohio Oct. 30, 2018) ..............................................44

United States v. Briggs,

141 S. Ct. 467 (2020)......................................25, 30

xii

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Goodrich Corp., No. 5:20-CV00154, 2021 WL 297577 (W.D. Ky. Jan. 28,

2021) .....................................................................44

United States v. ITT Continental Baking Co.,

420 U.S. 223 (1975) ..............................................44

United States v. Savoy Senior Housing Corp.,

No. 6:06cv031, 2008 WL 631161 (W.D. Va.

Mar. 6, 2008) ........................................................26

United States Department of Energy v. Ohio,

503 U.S. 607 (1992) ..........................................9, 23

United States Forest Service v. Cowpasture

River Preservation Ass’n,

140 S. Ct. 1837 (2020)....................................27, 28

STATUTES AND REGULATIONS

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

33 U.S.C. § 1311 ........................................................36

33 U.S.C. § 1311(a)....................................................10

33 U.S.C. § 1319 .............................................. 9, 10, 36

33 U.S.C. § 1321 ........................................................37

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

42 U.S.C. § 9601(14) ..................................................37

42 U.S.C. § 9601(21) ....................................................4

42 U.S.C. § 9601(23) ........................................ 4, 17, 37

42 U.S.C. § 9601(24) ........................................ 4, 17, 37

42 U.S.C. § 9601(25) .................................. 3, 17, 32, 36

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

42 U.S.C. § 9601(27) ....................................................4

42 U.S.C. § 9601(32) ..................................................17

42 U.S.C. § 9604 ..........................................................3

42 U.S.C. § 9605 ..........................................................3

42 U.S.C. § 9606 .......................................... 1, 3, 17, 25

42 U.S.C. § 9607(a)............................................1, 4, 25

42 U.S.C. § 9607(a)(4)(A) ................................ 4, 17, 27

42 U.S.C. § 9607(a)(4)(B) ......................................4, 17

42 U.S.C. § 9613(f) ................................................5, 25

42 U.S.C. § 9613(f)(1) ........................................ passim

42 U.S.C. § 9613(f)(2) ............................................5, 35

42 U.S.C. § 9613(f)(3) ..................................................5

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

42 U.S.C. § 9613(f)(3)(C) ...........................................28

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, 47

42 U.S.C. § 9614(a)....................................................28

42 U.S.C. § 9615 ..........................................................3

42 U.S.C. § 9620 ..........................................................9

42 U.S.C. § 9622(a)................................................3, 40

42 U.S.C. § 9622(c)(1) ................................................39

42 U.S.C. § 9652(d)..............................................26, 28

xiv

TABLE OF AUTHORITIES—Continued

Page(s)

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

Superfund Amendments and Reauthorization

Act of 1986, Pub. L. No. 99-499, 100 Stat.

1613 ........................................................................5

40 C.F.R. § 302.4 .......................................................37

OTHER AUTHORITIES

Ronald G. Aronovsky, A Preemption Paradox:

Preserving the Role of State Law in Private

Cleanup Cost Disputes, 16 N.Y.U. Envtl.

L.J. 225 (2008) .....................................................28

Black’s Law Dictionary (6th ed. 1990) .....................21

Dan B. Dobbs et al., The Law of Torts (2d ed.

2020, Westlaw) ...............................................21, 22

Env’t Law Inst., An Analysis of State

Superfund Programs: 50-State Study,

2001 Update (Nov. 2002),

https://www.eli.org/sites/default/files/

eli-pubs/d12-10a.pdf ............................................27

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 ............................................................10

TABLE OF AUTHORITIES—Continued

Page(s)

EPA, Superfund Record of Decision: Ordot

Landfill (Sept. 1988),

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

9100OBTC.PDF?Dockey=9100OBTC.PDF ...........9

EPA, Third Five-Year Review Report for

Ordot Landfill Superfund Site (Sept.

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

09/100002994.pdf .................................................11

EPA & Dep’t of Justice, Interim Revisions to

CERCLA Removal, RI/FS and RD AOC

Models to Clarify Contribution Rights and

Protection Under Section 113(f) (Aug. 3,

2005), https://www.epa.gov/sites/

production/files/documents/interim-revaoc-mod-mem.pdf .................................................44

H.R. Rep. No. 99-253 (1985) ........................... 5, 29, 30

Arnold H. Leibowitz, Defining Status: A

Comprehensive Analysis of United States

Territorial Relations (1989) ...............................6, 7

Memorandum from EPA & Dep’t of Justice,

Revisions to 2009 ARC Memo and

Issuance of Revised CERCLA Past Cost,

Peripheral, De Minimis, De Micromis, and

Municipal Solid Waste Settlement Models

(Sept. 26, 2014), https://www.epa.gov/sites/

production/files/2014-09/documents/

payment-models-2014-mem.pdf ..........................44

3 Oxford English Dictionary (2d ed. 1989) ...............38

xvi

TABLE OF AUTHORITIES—Continued

Page(s)

Random House Dictionary of the English

Language (2d ed. 1987)........................................38

Restatement (Second) of Torts (1979) ................21, 22

Restatement (Third) of Torts: Apportionment

of Liability (2000)..................................... 21, 22, 39

S. Rep. No. 99-11 (1985) ............................................29

Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts

(2012) ..............................................................18, 45

Treaty of Paris, Dec. 10, 1898, U.S.-Spain, 30

Stat. 1754 ...............................................................7

Uniform Contribution Among Tortfeasors Act,

12 U.L.A. 193 (2008) (1955 Revised Act) ............22

Webster’s New Collegiate Dictionary (1980) .............38

Webster’s Third New International Dictionary

(1961) ....................................................................38

OPINIONS BELOW

The court of appeals’ opinion (Pet. App. 1a-26a) is

reported at 950 F.3d 104. The district court’s opinion

certifying the case for interlocutory appeal (Pet. App.

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

district court’s opinion denying the United States’

motion to dismiss (Pet. App. 51a-97a) is reported at

341 F. Supp. 3d 74.

JURISDICTION

The court of appeals entered its judgment on

February 14, 2020, and denied rehearing on May 13,

2020. Pet. App. 1a, 98a-99a. The petition for a writ

of certiorari was timely filed on September 16, 2020,

and granted on January 8, 2021. This Court has

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

STATUTORY PROVISIONS INVOLVED

Pertinent statutory provisions are reproduced in

the addendum to this brief. Add. 1a-17a.

STATEMENT OF THE CASE

This case concerns when a settlement with the

government triggers a contribution claim under the

Comprehensive

Environmental

Response,

Compensation, and Liability Act of 1980 (CERCLA),

42 U.S.C. §§ 9601 et seq. Sections 106 and 107(a) of

CERCLA impose liability on responsible parties for

cleaning up hazardous substances. Id. §§ 9606,

9607(a). Section 113(f) authorizes liable parties to

seek contribution from other liable parties for cleanup

costs in response to either a civil action under

Sections 106 or 107(a), id. § 9613(f)(1), or a settlement

with the United States or a State, id. § 9613(f)(3)(B).

Section 113(f)(3)(B)—the key provision at issue—

states that “[a] person who has resolved its liability to

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

response action . . . in an administrative or judicially

approved settlement may seek contribution from any

person who is not party” to such a settlement. Id. The

first question presented is whether Section

113(f)(3)(B) is triggered by a settlement that does not

resolve liability imposed by CERCLA. The second

question is whether, regardless of the answer to the

first question, a settlement “resolve[s]” liability when

it explicitly disclaims any finding of liability and

leaves the settling party exposed to future liability.

The answer to both questions is no.

The dispute here involves a dump—the Ordot

Dump—that the United States Navy created on the

island of Guam during World War II and used for

decades to dispose of munitions and toxic waste. After

Guam took over the operation of the dump in its role

as a Territorial Government and used it for various

municipal purposes, the United States sued Guam

under the Clean Water Act (CWA), for alleged permit

violations in connection with the site. The United

States and Guam ultimately settled the CWA claims

in a 2004 consent decree that, among other things,

explicitly disclaimed any finding of liability and

preserved Guam’s exposure to liability in the future.

Guam later filed this action to recover costs from

the United States under CERCLA Section 107(a) for

the Navy’s role in creating and using the Ordot Dump.

But the D.C. Circuit held that the 2004 CWA Consent

Decree triggered a contribution claim under CERCLA

Section 113(f)(3)(B), and that Guam’s claim was timebarred by the shorter statute of limitations governing

contribution claims under Section 113(f). That ruling

leaves Guam, alone, to “foot the bill” (Pet. App. 26a)

for the estimated $160 million cleanup—a staggering

sum for Guam and its people.

As explained below, the D.C. Circuit’s decision is

based on two separate errors in construing Section

113(f)(3)(B), each of which requires reversal.

A. Statutory Background

1. Congress enacted CERCLA in 1980 “to address

‘the serious environmental and health risks posed by

industrial pollution.’”

Atlantic Richfield Co. v.

Christian, 140 S. Ct. 1335, 1345 (2020) (citation

omitted). Following on the heels of disasters like Love

Canal, CERCLA established a “Superfund” to

“facilitate government cleanup of hazardous waste,”

Exxon Corp. v. Hunt, 475 U.S. 355, 359-60 (1986), and

a remedial scheme 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).

CERCLA directs the President—acting primarily

through the Environmental Protection Agency

(EPA)—to designate and prioritize contaminated

sites for cleanup. 42 U.S.C. §§ 9605, 9615. Once EPA

has designated such a Superfund site, EPA can

(1) undertake an appropriate “response” action itself

using the Superfund to pay for it, id. § 9604;

(2) compel, through an administrative order or a

request for judicial relief, responsible parties to

undertake a “response” action, id. § 9606; or (3) enter

into an agreement with another party to perform a

“response action” if EPA “determines that such action

will be done properly,” id. § 9622(a).

CERCLA defines “response” to mean “removal”

and “remedial” actions. Id. § 9601(25). A “removal”

action is “the cleanup or removal of hazardous

substances from the environment” as well 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” that is designed “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. While the costs of cleaning up a Superfund site

can be enormous, CERCLA establishes a

comprehensive scheme to ensure that the liability for

such costs is fairly allocated among responsible

parties. Section 107(a) imposes “[l]iability” for certain

response costs on four classes of “[c]overed persons,”

id. 9607(a), also known as “potentially responsible

persons” or “PRPs,” Atlantic Richfield, 140 S. Ct. at

1352 (citation omitted).1 Under Section 107(a), PRPs

are “liable” for “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); see id.

§ 9601(27) (defining “State” to include Guam), as well

as “any other necessary costs of response incurred by

any other person,” including another PRP, id.

§ 9607(a)(4)(B).

See United States v. Atlantic

Research Corp., 551 U.S. 128, 135-36 (2007).

These provisions render PRPs “jointly and

severally liable for the full cost of the cleanup,”

Atlantic Richfield, 140 S. Ct. at 1346, subject to

ordinary common-law apportionment principles, see

Burlington N. & Santa Fe Ry. Co. v. United States,

CERCLA defines “person” to include “Guam” and the

“United States Government.” 42 U.S.C. § 9601(21), (27).

556 U.S. 599, 613-15 (2009). Claims to recover

remediation costs under Section 107(a) are subject to

a six-year statute of limitations that commences upon

the “initiation of physical on-site construction of the

remedial action.” 42 U.S.C. § 9613(g)(2)(B).

As originally enacted, CERCLA did not expressly

address whether a party that “had been sued in a cost

recovery action . . . could obtain contribution from

other PRPs.” Cooper Indus., Inc. v. Aviall Servs., Inc.,

543 U.S. 157, 162 (2004).

In the Superfund

Amendments and Reauthorization Act of 1986

(SARA), Pub. L. No. 99-499, 100 Stat. 1613, Congress

“clarifie[d] and confirm[ed]” 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 expressly authorizing contribution

claims in CERCLA Section 113(f), 42 U.S.C. § 9613(f).

Section 113(f)(1) authorizes contribution claims

between “liable parties,” and provides that “[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).

Under Section 113(f)(2), a party that “has resolved its

liability to the United States or a State in an

administrative or judicially approved settlement” is

immune from contribution claims by other parties.

Id. § 9613(f)(2). And in Section 113(f)(3), Congress

addressed the implications of a settlement on nonsettling parties. Id. § 9613(f)(3). Section 113(f)(3)(B)

confirms that settling parties can seek contribution

from non-settling parties:

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).

Id. § 9613(f)(3)(B).

Claims seeking “contribution for any response

costs” are subject to a three-year statute of limitations

that commences upon either “the date of judgment in

any action under this chapter for recovery of such

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

administrative order under [CERCLA Sections 122(g)

or 122(h)] or entry of a judicially approved settlement

with respect to such costs,” id. § 9613(g)(3)(B).

The remedies in Sections “107(a) and 113(f)

complement each other by providing causes of action

‘to persons in different procedural circumstances.’”

Atlantic Research, 551 U.S. at 139 (citation omitted).

In certain circumstances, however, the remedies can

overlap. See id. at 139 n.6. And because Section

113(f) has stricter procedural requirements, including

a shorter limitations period, the lower courts have

concluded that Sections 107(a) and 113(f) are

“mutually exclusive,” such that “‘a party who may

bring a contribution action’” under Section 113(f)

“‘must use the contribution action, even if a cost

recovery action would otherwise be available.’” Pet.

App. 10a-11a (citation omitted); see BIO 3-4.

B. Factual Background

1. Guam is a 30-mile-long island in the west

central Pacific, about 1400 miles from the Philippines

and 6000 miles from California. See Arnold H.

Leibowitz, Defining Status: A Comprehensive

Analysis of United States Territorial Relations 314-15

(1989). The United States acquired Guam in 1898

following the Spanish-American War. See Treaty of

Paris, Dec. 10, 1898, U.S.-Spain, art. II, 30 Stat. 1754,

1755. The United States then placed Guam under

control of the Navy, which treated it as a ship—the

“USS Guam”—and governed it under military rule.

Pet. 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 until

Congress passed the Organic Act of Guam in 1950.

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

Leibowitz, supra, at 318-19, 323-25.

The Organic Act purported to transfer power from

the military to a civilian government and grant U.S.

citizenship to Guam’s residents. Even then, however,

the Federal Government in Washington, D.C.,

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. Pet. App. 5a; JA 65-66. Despite receiving U.S.

citizenship in 1950, Guam’s residents did not publicly

elect their own governor until decades later in 1971.

JA 66. The military continued to use the island

during the Korean and Vietnam Wars, taking

advantage of its strategic location in the Pacific.

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 firm footprint on the island, occupying

approximately 25% of its 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 Guam, the Navy created the Ordot Dump

for the disposal of municipal and military waste in a

ravine that slopes into the Lonfit River, almost in the

middle of the island. Pet. App. 5a-6a. In building the

dump, the Navy omitted basic environmental

safeguards. 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 at Pago Bay. Id.

Although the United States unilaterally

transferred ownership of the contaminated land to

Guam pursuant to 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, which

also received municipal waste from Guam’s residents,

was the only landfill on Guam 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 in 1983.

Id.; see JA 26. 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.” EPA, Superfund Record of Decision:

Ordot Landfill 12-14 (Sept. 1988).2

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 immune from

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 filed several

administrative complaints against Guam—solely

under the CWA—demanding that Guam take certain

actions with respect to the Ordot Dump. See JA 2627. Guam struggled to comply in large part due to a

lack of funding. Id. at 27. Unmoved by Guam’s fiscal

constraints, EPA continued to pile on penalties under

the CWA. Id. at 27-28. 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).3

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

key=9100OBTC.PDF.

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

3. In 2002, the United States filed a complaint

against Guam in the District of Guam exclusively

under Section 309 of the CWA, 33 U.S.C. § 1319,

alleging that Guam violated Section 301(a) of the

CWA, 33 U.S.C. § 1311(a), by discharging pollutants

into the waters of the United States from the dump

without a permit. Pet. App. 130a-37a. A few months

later, EPA reiterated that no CERCLA action was

being taken at the site. See EPA, Second Five-Year

Review: Ordot Landfill Site 19, 26 (Sept. 2002).4

To advance “the public interest” and “avoid

protracted litigation” over the CWA claims, Guam

and the United States entered into a consent decree

that the district court approved in 2004. Pet. App.

138a-73a (2004 CWA Consent Decree). The decree

states that the parties agreed to “settle[]” only “the

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

the permitting claims brought under CWA Section

309. Id. at 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 at the time, EPA again reiterated that it was

taking “no . . . action under CERCLA.” JA 26, 39.

The 2004 CWA Consent Decree also reserved the

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

the complaint, exposing Guam to future liability for

any claims, under any statute, as to the Ordot Dump,

including those based on the same allegations in the

complaint. Pet. App. 166a. Even as to the CWA

claims alleged in the complaint, the consent decree

expressly disclaimed “any finding or admission of

liability against or by the Government of Guam,” id.

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

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 2004 CWA Consent 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 island. 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. See C.A.J.A. 140-41.

Meantime, EPA reiterated that “no remedial action”

was being taken 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).5

Guam closed the Ordot Dump and opened a new

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

remediation of the Ordot Dump, which began in

December 2013, remains ongoing. JA 68. Total costs

are expected to exceed $160 million. Id.

C. Proceedings Below

1. In 2017, Guam sued the United States under

CERCLA Section 107(a) to recover the United States’

share of the costs Guam incurred in remediating the

Ordot Dump, based on the Navy’s creation and

decades-long use of the Ordot Dump to discard toxic

waste. Pet. App. 7a-8a; see JA 69-70.

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

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 that decree. See

Pet. App. 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 action (including

Guam’s Section 107(a) claim, which was timely under

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

2. The district court denied the motion to dismiss.

Pet. App. 51a-97a. Analyzing the “broad, open-ended

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 Consent 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. The United States’ contrary

position, the court stated, “warps the underlying text

of CERCLA and/or the 2004 Consent Decree beyond

recognition.” Id. at 73a-90a. Accordingly, the district

court held that Guam could pursue its timely Section

107(a) claim against the United States.

3. The D.C. Circuit granted the United States’

petition for interlocutory review and reversed. Pet.

App. 1a-26a. The court acknowledged that Guam’s

Section 107(a) claim would be timely. Id. at 2a. But

after noting that Sections 107(a) and 113(f) are

“mutually exclusive,” the court found Guam’s Section

107(a) claim precluded on the ground that the 2004

CWA Consent Decree triggered a contribution claim

under Section 113(f)(3)(B). Id. at 10a-11a, 16a-26a.

And because Guam’s suit was not filed within the

shorter, three-year limitations period governing

contribution claims, the court held that Guam’s suit

is time-barred. Id. at 1a-2a, 26a.

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

court rejected Guam’s argument that the 2004 CWA

Consent Decree—which was limited to CWA claims

and did not purport to resolve any CERCLA

liability—did not trigger Section 113(f)(3)(B), 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

joined the circuits holding that Section 113(f)(3)(B)

“does not require a CERCLA-specific settlement.” Id.

at 16a-17a (citation omitted). In reaching that

conclusion, the court relied solely on a negative

inference it drew from the presence of “CERCLAspecific” language in Section 113(f)(1). Id. at 17a-18a.

The court next held that the terms of the 2004

CWA Consent Decree “‘resolve[d]’ Guam’s liability”

for a response action because Guam agreed to take an

act that would qualify as a response action, namely to

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

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

rejected the district court’s conclusion that the

decree’s express liability disclaimer, conditional

release, and reservation-of-rights clauses precluded a

finding that it “resolve[d]” liability. Id. at 22a-25a.

Although the court agreed that these provisions

would 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 for the Ordot Dump. Id.

The D.C. Circuit denied rehearing, id. at 98a-99a,

and this Court granted certiorari.

SUMMARY OF ARGUMENT

For two independent reasons, the D.C. Circuit

erred in concluding that the 2004 CWA Consent

Decree triggered Section 113(f)(3)(B).

I. The D.C. Circuit first erred in holding that

Section

113(f)(3)(B)

reaches

non-CERCLA

settlements, like the 2004 CWA Consent Decree.

The text of Section 113(f)(3)(B) and surrounding

context establish that a settlement must resolve

liability under CERCLA to trigger Section

113(f)(3)(B). Congress linked the term “liability” with

“response action” and response “costs”—CERCLAspecific terms. Those terms correspond to CERCLA

Sections 106 and 107(a), which impose liability for

response actions and response costs. And those are

the same sources of liability that are expressly

identified in Section 113(f)’s anchor provision, Section

113(f)(1). The subsequent references to “liability” in

Section 113(f), including the one in paragraph

(f)(3)(B), naturally refer back to the same liability.

Several other considerations support this reading.

The traditional understanding of the “contribution”

remedy, which Congress presumably transplanted

when it borrowed that term, requires that two or more

parties share a common liability; yet a non-CERCLA

settlement lacks the discharge of a common liability

necessary to support the contribution remedy. It also

follows that the most natural referent for a remedy

prescribed within CERCLA’s highly reticulated

framework is liability created by CERCLA itself, not

liability created by other statutory schemes. Indeed,

extending Section 113(f)(3)(B) to reach non-CERCLA

liability would disrupt the remedial frameworks

contained in other comprehensive environmental

programs, both at the federal and state level.

The D.C. Circuit’s contrary conclusion rests solely

on a negative inference that contrasts, rather than

harmonizes, the references to liability in Section

113(f)(3)(B) and Section 113(f)(1). The D.C. Circuit’s

analysis overlooks that Section 113(f)(3)(B) does

include CERCLA-specific language—its references to

a “response action” and response “costs.” The D.C.

Circuit’s reliance on a negative inference ignores the

context in which the key language appears in Section

113(f)(3)(B) as well as the interlocking nature of

Section 113(f) as a whole. Indeed, the United States

itself acknowledges that the same negative inference

cannot be applied to other portions of Section 113(f).

II. The D.C. Circuit also erred in holding that

Section 113(f)(3)(B) reaches settlements, like the 2004

CWA Consent Decree, that disclaim any

determination regarding liability and preserve the

settling party’s exposure to liability in the future.

For a settling party to “resolve[] its liability” for a

“response action” or response “costs” in a settlement,

the settlement must conclusively decide an

independent liability for undertaking a response

action or paying response costs.

The ordinary

meaning of “resolve[],” as informed in this context by

traditional principles of contribution, delineate two

conditions. First, the issue of liability must be

decided finally—with no contingency. And second,

the decided liability must arise independent of the

settlement itself; the settlement cannot create the

very liability it purportedly resolves.

Several provisions in the 2004 CWA Consent

Decree make clear that Guam did not resolve its

liability for a response action. The decree explicitly

disclaimed “any finding or admission of liability

against or by [Guam].” The decree also preserved

Guam’s exposure to liability for any violation of

federal law, and it conditioned the release of the CWA

permitting claims on Guam’s successful compliance

with the decree’s terms. These provisions confirm

that the parties left the issue of liability unresolved.

The D.C. Circuit’s contrary holding warps the plain

meaning of both the statutory text and the terms of

the 2004 CWA Consent Decree based largely on policy

considerations. It also drains the statutory phrase

“resolved its liability” of meaning by equating it with

mere entry into a settlement agreement.

For either of these reasons, the D.C. Circuit’s

decision should be reversed.

ARGUMENT

I. SECTION 113(f)(3)(B) DOES NOT REACH

NON-CERCLA SETTLEMENTS

The D.C. Circuit erred in holding that Section

113(f)(3)(B) extends to non-CERCLA settlements.

A. Section

113(f)(3)(B)

Requires

Resolution Of CERCLA Liability

The

1. The Statutory Text And Context Tie

Section 113(f)(3)(B) To The Liability

Imposed By CERCLA

The text of Section 113(f)(3)(B), understood in

terms of “both ‘the language itself [and] the specific

context in which that language is used,’” Merit Mgmt.

Grp., LP v. FTI Consulting, Inc., 138 S. Ct. 883, 893

(2018) (alteration in original) (citation omitted),

compels the conclusion that Section 113(f)(3)(B)

requires the resolution of CERCLA liability.

a. Section 113(f)(3)(B) authorizes contribution 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). Like any statutory term,

“liability” must be construed in the “context” of “[i]ts

neighboring terms.” Life Techs. Corp. v. Promega

Corp., 137 S. Ct. 734, 740 (2017); see Gutierrez v. Ada,

528 U.S. 250, 255 (2000) (“[A] word is known by the

company it keeps.” (citation omitted)). Here, the word

“liability” is closely connected to “response action”—a

“CERCLA-specific term.” Consolidated Edison Co. of

N.Y., Inc. v. UGI Utils., Inc., 423 F.3d 90, 95-96 (2d

Cir. 2005), cert. denied, 551 U.S. 1130 (2007).

CERCLA defines a “response” action to mean a

“removal” or “remedial” action, 42 U.S.C. § 9601(25),

which CERCLA then further defines as certain

actions taken in response to “a release or threatened

release of a hazardous substance,” id. § 9601(24); see

id. § 9601(23). CERCLA also imposes liability for

undertaking response actions, id. § 9606, and for the

“costs of removal or remedial action” and “any other

necessary costs of response,” id. § 9607(a)(4)(A)-(B).

Accordingly, Section 113(f)(3)(B)’s reference to

“liability” for a “response action” or response “costs”

naturally means the liability for response actions or

response costs imposed by CERCLA itself.6

Although CERCLA has an entry for “liability” in its

“Definitions” section, that provision merely identifies the

applicable “standard of liability,” 42 U.S.C. § 9601(32) (emphasis

added), which is “strict liability,” Price Trucking Corp. v.

Norampac Indus., Inc., 748 F.3d 75, 81 (2d Cir. 2014).

b. This interpretation also comports with the

interlocking structure of Section 113(f), which like

any statute “must ‘be read as a whole.’” United States

v. Atlantic Research Corp., 551 U.S. 128, 135 (2007)

(citation omitted); see Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal

Texts 167 (2012) (“The text must be construed as a

whole . . . in view of its structure and of the physical

and logical relation of its many parts.”). Section

113(f)’s provisions—which were all enacted as a single

subsection in 1986 titled “Contribution”—work

together to ensure that parties liable under CERCLA

are able to obtain contribution from other parties

liable under CERCLA and obtain protection from

contribution claims through settlements.

At a high level, Section 113(f) works as follows:

• Paragraph (f)(1) authorizes one liable party to

seek contribution from another party who is

liable or potentially liable under CERCLA

Section 107(a), “during or following a civil

action under [Sections 106 or 107(a)].”

• Paragraph (f)(2) grants a settling party—a

party that “has resolved its liability to the

United States or a State” in a settlement—

protection from contribution claims by other

liable parties for the matters in the settlement.

• And paragraph (f)(3) addresses the effect a

settlement may have on non-settling parties,

and provides in subparagraph (f)(3)(B) that a

settling party—again, a party that “has

resolved its liability to the United States or a

State” in a settlement—may seek contribution

from non-settling parties.

Section 113(f)(1) identifies, at the outset of Section

113(f), the source of liability for both of the “liable

parties” in the contribution equation—the “person”

seeking contribution must be liable as determined in

a “civil action under [CERCLA Sections 106 or

107(a)],” and the person against whom contribution is

sought must be “liable or potentially liable under

[Section 107(a)].” 42 U.S.C. § 9613(f)(1). And each

subsequent provision in Section 113(f) generally

references a person who has “resolved its liability,”

without explicitly restating the source of the liability.

But context makes plain that Section 113(f)(1) is the

anchor, such that each unadorned reference to

“liability” in Section 113(f)’s subsequent provisions

must be read in light of the liability identified in

Section 113(f)(1)—liability under CERCLA.

Put

differently, the “statute’s sequencing” demonstrates

that the liability referenced in Section 113(f)(1)

“define[s] the field in which Congress was legislating”

in the remainder of Section 113(f). New Prime Inc. v.

Oliveira, 139 S. Ct. 532, 538 (2019) (citation omitted);

see also, e.g., Mid-Con Freight Sys., Inc. v. Michigan

Pub. Serv. Comm’n, 545 U.S. 440, 447-48 (2005).

Sections

113(f)(1)

and

113(f)(3)(B)

also

demonstrate a structural “symmetry” with respect to

contribution plaintiffs and so may “be understood

only with reference to” one another.

Atlantic

Research, 551 U.S. at 135-36. Section 113(f)(1)

identifies two sources of liability—Sections 106 and

107(a); while Section 113(f)(3)(B) identifies two kinds

of liability—for a “response action” and for response

“costs.” And the dual references track one another:

As noted above, Section 106 imposes liability for

response actions, and Section 107(a) imposes liability

for response costs. Read in context, therefore, the

“liability” referenced in Section 113(f)(3)(B) tracks the

liability spelled out in more detail in Section

113(f)(1)—and, for both, the source of liability is

CERCLA. Or, as the United States has previously

told this Court, Sections 113(f)(1) and 113(f)(3)(B)

together authorize contribution when a party

“satisfies its CERCLA liability to the government,”

either “during or following a Section 106 or 107(a)

action or after a CERCLA-based settlement.” U.S.

Amicus Br. 23, 26, Cooper Indus., Inc. v. Aviall Servs.,

Inc., 543 U.S. 157 (2004) (No. 02-1192), 2004 WL

354181 (Cooper U.S. Br.) (emphasis added).

In short, the interlocking nature of Section 113(f)

as a whole supports the reading that follows from

Section 113(f)(3)(B) itself—the “liability” referred to

in Section 113(f)(3)(B) is CERCLA liability.

2. Traditional Contribution Principles

Confirm That Section 113(f)(3)(B)

Requires The Resolution Of CERCLA

Liability

Congress’s use in Section 113(f)(3)(B) of

“contribution”—a well-known term of art describing

an age-old remedy—confirms that the statute is

limited to settlements resolving CERCLA liability.

a. Congress is presumed to be aware of the law in

the area in which it legislates, Goodyear Atomic Corp.

v. Miller, 486 U.S. 174, 184-85 (1988), and when

Congress “transplant[s]” a term with a long-settled

legal understanding, the term “brings the old soil with

it,” Taggart v. Lorenzen, 139 S. Ct. 1795, 1801 (2019)

(citation omitted); see, e.g., FAA v. Cooper, 566 U.S.

284, 292 (2012) (“[I]t is a ‘cardinal rule of statutory

construction’ that, when Congress employs a term of

art, ‘it presumably knows and adopts the cluster of

ideas that were attached to [it].’” (citation omitted)).

“Contribution” is a longstanding and familiar legal

term, and “Congress used the term” in its “traditional

sense” in Section 113(f). Atlantic Research, 551 U.S.

at 138. Traditionally, “a right to contribution is

recognized when two or more persons are [jointly]

liable” for the same injury and one of them “has paid

more than his fair share of the common liability.”

Northwest Airlines, Inc. v. Transport Workers Union

of Am., 451 U.S. 77, 87-88 (1981) (citing Restatement

(Second) of Torts § 886A (1979)); see Black’s Law

Dictionary

328

(6th

ed.

1990)

(defining

“[c]ontribution” as the “[r]ight of one who has

discharged a common liability to recover of another

also liable, the aliquot portion which he ought to pay

or bear”). In that instance, the overpaying party can

“collect from others responsible” for the common

liability in terms of their “percentage of fault.”

Atlantic Research, 551 U.S. at 138 (citation omitted).

This contribution remedy accordingly has two

related elements relevant here. First, the party

seeking contribution must establish a “common

liability.” Id. at 138-39; see Restatement (Third) of

Torts: Apportionment of Liability § 23 cmt. j (2000).

Contribution is thus not available against a party who

does not share a common liability—whether because

that party is not liable under the substantive law or

is immune from suit. See Restatement (Second) of

Torts § 886A cmt. g; Dan B. Dobbs et al., The Law of

Torts § 489 (2d ed. 2020, Westlaw); see also Northwest

Airlines, 451 U.S. at 87-88 & n.20 (contribution

defendant and contribution plaintiff must be subject

to liability for violating the same statute).

Second, the party seeking contribution must

“discharge[]” the common liability by paying more

than its fair share, thereby “extinguish[ing]” both its

own liability and “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.” Restatement (Third) of

Torts: Apportionment of Liability § 23(a)-(b) & cmt. b;

see Restatement (Second) of Torts § 886A(2); Uniform

Contribution Among Tortfeasors Act § 1(d), 12 U.L.A.

193, 202 (2008) (1955 Revised Act); Dobbs, supra,

§ 489. Contribution is therefore “contingent upon an

inequitable distribution of common liability among

liable parties.” Atlantic Research, 551 U.S. at 139.

b. Applying those principles here confirms that

the “contribution” available in Section 113(f)(3)(B) is

linked to the liability imposed by CERCLA. Sections

106 and 107(a) impose joint liability for response

actions and response costs according to ordinary

common law principles. See Burlington N. & Santa

Fe Ry. Co. v. United States, 556 U.S. 599, 613-15

(2009). Section 113(f) provides liable parties a

corresponding statutory right to seek contribution

from other parties who share their common liability,

and they may do so either during or following a civil

action, 42 U.S.C. § 9613(f)(1), or after a settlement

with the government, id. § 9613(f)(3)(B).

The “source of [the] liability” referenced in Section

113(f)(3)(B) is thus “the common liability created by

CERCLA.” County Line Inv. Co. v. Tinney, 933 F.2d

1508, 1516 (10th Cir. 1991). As the United States has

argued, Section 113(f)(3)(B) authorizes a contribution

claim against a non-settling party “only” if the nonsettling party would otherwise be “liable for clean-up

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

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

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

352 (3d Cir. 2018); Chevron Mining Inc. v. United

States, 863 F.3d 1261, 1269 (10th Cir. 2017); Niagara

Mohawk Power Corp. v. Chevron U.S.A., Inc., 596

F.3d 112, 132 (2d Cir. 2010); Tinney, 933 F.2d at 1516.

To obtain contribution from a non-settling party,

therefore, the settling party must extinguish the nonsettling party’s liability under CERCLA, such that

the liability has been “inequitabl[y] distribut[ed].”

Atlantic Research, 551 U.S. at 139. But that liability

will be “common,” id., only if the settling party

extinguishes its own CERCLA liability as well. Thus,

a settlement that does not resolve the settling party’s

CERCLA liability does not resolve the common

liability necessary to support the contribution

remedy. See Tinney, 933 F.2d at 1516.

This case sharply illustrates the point. The 2004

CWA Consent Decree did not extinguish Guam’s

CERCLA liability, and thus did not extinguish any

common CERCLA liability the United States might

have shared with Guam. Indeed, the decree could not

have extinguished the United States’ liability at all:

The decree settled only permitting claims under CWA

Section 309, see Pet. App. 134a-36a, 138a-40a, and the

United States enjoys sovereign immunity from suit

under that provision—meaning that CWA Section

309 “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 a common liability it shared with the United

States by settling claims brought solely under a

provision that does not even authorize liability

against the United States in the first place.

c. Having conceded that the resolution of the nonsettling party’s CERCLA liability is necessary for a

Section 113(f)(3)(B) claim, the United States

suggested at the certiorari stage that the “common

liability” resolved in the 2004 CWA Consent Decree

was the United States’ “independent duty to take

response actions.” BIO 12. It neglected to identify the

source of this “independent duty” if not CERCLA. But

the critical point is that Section 113(f)(3)(B) does not

create some “independent,” “general federal right of

contribution” divorced from the liability imposed by

CERCLA. Tinney, 933 F.2d at 1516-17. Guam’s

“theory of the case” (BIO 12) is that the United States

is liable under CERCLA, and that liability was not

extinguished in the 2004 CWA Consent Decree.

3. Interpreting Section 113(f)(3)(B) To

Reach

Only

CERCLA-Based

Settlements Comports With CERCLA’s

Regulatory Scheme

Section 113(f)(3)(B) also must be interpreted “with

a view to [its] place in the overall statutory scheme.”

Sturgeon v. Frost, 136 S. Ct. 1061, 1070 (2016)

(citation omitted). Interpreting Section 113(f)(3)(B) to

require the resolution of CERCLA liability

harmonizes that provision with CERCLA’s

comprehensive scheme—while avoiding disruption of

other environmental schemes.

a. “As its name implies, CERCLA is a

comprehensive statute”—it prescribes a highly

reticulated regime that “Comprehensive[ly]” governs

the “Response,” “Compensation,” and “Liability”

involved in cleaning up hazardous substances. Key

Tronic Corp. v. United States, 511 U.S. 809, 814

(1994). As part of that regime, Section 106 allows

EPA to compel responsible parties to undertake

response actions, Section 107(a) imposes potential

liability for the recovery of response costs, and Section

113(f) provides a mechanism for contribution among

liable parties. See 42 U.S.C. §§ 9606, 9607(a), 9613(f).

The statute works as a cohesive whole, with

“[Sections] 107(a) and 113(f)” designed to

“complement each other by providing causes of action

‘to persons in different procedural circumstances.’”

Atlantic Research, 551 U.S. at 139 (quoting

Consolidated Edison, 423 F.3d at 99).

Interpreting Section 113(f)(3)(B) to reach beyond

CERCLA and authorize contribution based on nonCERCLA settlements would put that provision on an

island of its own. Every other component of the

remedial scheme is linked to the liability imposed by

CERCLA. Nothing in CERCLA warrants such an

aberrant

treatment

Section

113(f)(3)(B),

particularly given that Section 113(f)(1) makes clear

that the “liability” covered by Section 113(f) is limited

to CERCLA liability. See supra at 19. Because

CERCLA’s comprehensive regime is designed to

regulate hazardous-substance cleanup and liability

“‘from top to bottom,’” the most “natural referent” for

a contribution “provision within [CERCLA] is other

law in [CERCLA] itself.” United States v. Briggs, 141

S. Ct. 467, 470 (2020) (citation omitted).

b. Limiting Section 113(f)(3)(B) to the resolution

of CERCLA liability also ensures that this provision

does not interfere with other regulatory schemes.

CERCLA, while comprehensive, is not the exclusive

scheme Congress has enacted to address

environmental contamination.

The CWA, for

instance “establish[es] ‘a comprehensive program for

controlling and abating water pollution,’” City of

Milwaukee v. Illinois, 451 U.S. 304, 318-19 (1981)

(citation omitted); and the Resource Conservation and

Recovery Act “is a comprehensive environmental

statute that governs the treatment, storage, and

disposal of solid and hazardous waste,” Meghrig v.

KFC W., Inc., 516 U.S. 479, 483 (1996). Congress took

great care to ensure that CERCLA would not displace

those distinct statutory programs:

“Nothing in

[CERCLA] shall affect or modify in any way the

obligations or liabilities of any person under other

Federal or State law, including common law, with

respect to releases of hazardous substances or other

pollutants or contaminants.” 42 U.S.C. § 9652(d).

Reading

Section

113(f)(3)(B)

permit

contribution for non-CERCLA settlements would

undoubtedly “affect” those other liability regimes.

CWA Section 309—the provision invoked in the 2004

CWA Consent Decree—is a great example. This

Court has squarely held that the CWA’s “unusually

elaborate enforcement provisions” are exclusive:

“Congress provided precisely the remedies it

considered appropriate,” and “it cannot be assumed

that Congress intended to authorize by implication

additional judicial remedies” beyond those specified.

Middlesex Cnty. Sewerage Auth. v. National Sea

Clammers Ass’n, 453 U.S. 1, 14-15 (1981). Section 309

of the CWA does not expressly authorize contribution

claims.

As a result, “the United States [has]

argue[d]”—successfully—“that a CWA defendant

[cannot] assert a claim for contribution” in an action

“brought by the United States” under CWA Section

309. United States v. Savoy Senior Hous. Corp., No.

6:06-cv-031, 2008 WL 631161, at *4-7 (W.D. Va. Mar.

6, 2008). Allowing a CWA settlement to trigger

CERCLA contribution in that instance, as the United

States now insists, would bulldoze the CWA’s tailored

remedial scheme and authorize contribution when it

would not otherwise be authorized.

There is no reason to conclude that Congress

intended Section 113(f)(3)(B) to disrupt other

regulatory regimes in this indirect way. After all,

“when Congress wishes to ‘alter the fundamental

details of a regulatory scheme,’” this Court usually

“expect[s] it to speak with the requisite clarity to place

that intent beyond dispute.” United States Forest

Serv. v. Cowpasture River Pres. Ass’n, 140 S. Ct. 1837,

1849 (2020) (citation omitted). Nothing in Section

113(f)(3)(B) remotely suggests (let alone says with

“clarity,” id.) that this provision—and this provision

alone—was designed to alter the remedies available

under other statutory schemes.

c. Interpreting Section 113(f)(3)(B) to reach

beyond CERCLA also would have “striking

implications for federalism.” Cowpasture River, 140

S. Ct. at 1849.

Section 113(f)(3)(B) authorizes

contribution for a party that “has resolved its liability

to the United States or a State” in a settlement. 42

U.S.C. § 9613(f)(3)(B) (emphasis added).

This

reference to “a State” recognizes that States have a

right of action under CERCLA for cost recovery, see

id. § 9607(a)(4)(A), and parties routinely settle

CERCLA liability with state regulators, see, e.g.,

Niagara Mohawk, 596 F.3d at 125-26.

Many States, however, have enacted their own

hazardous-substance cleanup programs under state

law, with cost-allocation and contribution regimes

that can “differ[] markedly from CERCLA[’s].”

Morristown Assocs. v. Grant Oil Co., 106 A.3d 1176,

1188 n.7 (N.J. 2015); see, e.g., Env’t Law Inst., An

Analysis of State Superfund Programs: 50-State

Study, 2001 Update 33-34, 43 (Nov. 2002).7 Under the

United States’ proposed interpretation of Section

113(f)(3)(B), a settlement with a State can trigger

CERCLA’s federal contribution regime even if the

settlement resolved only state-law liability. In other

words, a party settling purely state-law claims could

seek contribution under CERCLA—which is

“governed by Federal law,” 42 U.S.C. § 9613(f)(3)(C)—

and sidestep the State’s own contribution regime. See

Niagara Mohawk, 596 F.3d at 138 n.27.

Yet, this Court’s “precedents require Congress to

enact exceedingly clear language if it wishes to

significantly alter the balance between federal and

state power.” Cowpasture River, 140 S. Ct. at 184950; see, e.g., County of Maui v. Hawaii Wildlife Fund,

140 S. Ct. 1462, 1471 (2020). CERCLA’s language

says the opposite. From start to finish, CERCLA

reflects a model of “cooperative federalism,” Atlantic

Richfield Co. v. Christian, 140 S. Ct. 1335, 1356

(2020) (citation omitted), that preserves States’

regulatory autonomy over hazardous-substance

cleanup and “leaves untouched States’ judgments

about causes of action” and “the scope of liability,”

CTS Corp. v. Waldburger, 573 U.S. 1, 12, 18 (2014);

see 42 U.S.C. §§ 9614(a), 9652(d). This preservation

of state autonomy, particularly over matters

concerning liabilities, powerfully confirms that

CERCLA’s contribution regime under Section

113(f)(3)(B) is derivative of—and limited to—the

resolution of CERCLA liability. See Ronald G.

Aronovsky, A Preemption Paradox: Preserving the

https://www.eli.org/sites/default/files/eli-pubs/d12-10a.pdf.

Role of State Law in Private Cleanup Cost Disputes,

16 N.Y.U. Envtl. L.J. 225, 314-16 & n.406 (2008).

4. Section 113(f)(3)(B)’s Statutory History

Reinforces The Requirement Of A

CERCLA-Based Settlement

The statutory history of Section 113(f)(3)(B) also

supports the conclusion that the provision requires

the resolution of CERCLA liability.

As originally enacted, CERCLA did not “expressly

provid[e]” PRPs with a right of action to “obtain

contribution from other PRPs.” Cooper Indus., Inc. v.

Aviall Servs., Inc., 543 U.S. 157, 162 (2004). Lower

courts inferred an “implied[]” contribution claim

under Section 107, id.—a claim necessarily linked to

the liability imposed by CERCLA itself. But this

implied right was “debatable” in light of this Court’s

decisions “refus[ing] to recognize implied or commonlaw rights to contribution in other federal statutes.”

Id. Congress accordingly resolved the uncertainty in

Section 113(f) by codifying an express “right of

contribution . . . for persons alleged or held to be liable

under section 106 or 107 of CERCLA,” thereby

“clarif[ying] and confirm[ing] the right of a person

held jointly and severally liable under CERCLA to

seek contribution from other potentially responsible

parties.” H.R. Rep. No. 99-253, pt. 1, at 79 (1985)

(emphasis added); see S. Rep. No. 99-11, at 44 (1985)

(same). Section 113(f) retained the link between

CERCLA contribution and CERCLA liability.

Congress did not abruptly abandon that CERCLAfocused approach in Section 113(f)(3)(B). To the

contrary, Section 113(f)(3)(B) was included as one of

several provisions aimed at encouraging “[s]ettlement

with the government under CERCLA” by “expressly

provid[ing] to settlors the right to seek contribution

from nonsettlors.” H.R. Rep. No. 99-253, pt. 3, at 1920 (emphasis added).

Indeed, requiring nonadministrative settlements to be “judicially

approved”—a requirement that appears in every

paragraph of Section 113(f)(2)-(f)(3)—ensured that

settling parties would cement their agreement in a

“consent decree under CERCLA” and satisfy a federal

judge that the decree is “consistent with the purposes

that CERCLA is intended to serve.” Id. at 19

(emphasis added); cf. Frew v. Hawkins, 540 U.S. 431,

437 (2004) (“[A] federal consent decree must . . .

further the objectives of the law upon which the

complaint was based.”). Section 113(f)’s history thus

“leaves no doubt that Congress’s object was to provide

contribution during or following a Section 106 or

107(a) action or after a CERCLA-based settlement.”

Cooper U.S. Br. 12 (emphasis added); see id. at 23-24.

5. Limiting

Section

113(f)(3)(B)

CERCLA-Based Settlements Accords

With The Presumption Of Fair Notice

Because it implicates the shorter limitations

period for contribution claims, Section 113(f)(3)(B)

also must have a clearly defined scope that gives

settling parties fair notice of their rights—i.e., notice

that entering into a settlement will trigger a CERCLA

contribution claim. Just as it is “reasonable to

presume that clarity” and “certainty” are “objective[s]

for which lawmakers strive” when it comes to

limitations periods, Briggs, 141 S. Ct. at 471, it is

reasonable to presume that Congress strives for

clarity when it designs interlocking provisions that

trigger varied limitations periods.

Interpreting Section 113(f)(3)(B) to apply to

settlements that do not resolve CERCLA claims is

fundamentally at odds with that principle. Parties

settling under other statutes may not know at the

time of settlement whether CERCLA remediation is

necessary at the site. Indeed, in this case, EPA

repeatedly told Guam that it was not proceeding

under CERCLA and that CERCLA remediation was

not appropriate. See supra at 8-11. The United States

instead brought suit over, and settled, only alleged

permitting violations under the CWA. In these

circumstances, Guam hardly had fair notice that

entering into the 2004 CWA Consent Decree would

trigger a contribution claim under the very statute

EPA went out of its way to say was not implicated.

Holding that Section 113(f)(3)(B) extends to nonCERCLA settlements creates a trap that Congress

could not have intended, and approving that trap here

will just invite agencies to find others. See Pet. 23.

B. The

D.C.

Circuit’s

Contrary

Interpretation Is Fundamentally Flawed

The D.C. Circuit did not grapple with the textual,

contextual, and structural evidence discussed above.

Instead, it relied exclusively on a purported negative

inference. Citing the “‘presum[ption] that Congress

acts intentionally and purposely’” when it “‘includes

particular language in one section of a statute but

omits it in another,’” the court observed 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.” Pet. App. 17a18a (quoting Russello v. United States, 464 U.S. 16,

23 (1983)). That inference buckles on examination.

1. For starters, there is no foundation for

invoking the Russello principle at all because there is

no “omi[ssion]”—both Section 113(f)(1) and Section

113(f)(3)(B) contain “CERCLA-specific language.”

Section 113(f)(1) authorizes contribution by “[a]ny

person . . . during or following any civil action under

[Sections 106 or 107(a)],” 42 U.S.C. § 9613(f)(1), while

Section 113(f)(3)(B) authorizes contribution by “[a]

person who has resolved its liability . . . for some or

all of a response action,” id. § 9613(f)(3)(B). The D.C.

Circuit focused on the absence of any specific

reference to Section 106 or Section 107(a) in Section

113(f)(3)(B). But it failed to appreciate that “response

action” itself is a CERCLA-defined term. See id.

§ 9601(25). Thus, both Section 113(f)(1) and Section

113(f)(3)(B) use CERCLA-specific language.

The fact that Congress used different CERCLAspecific language in these provisions does not compel

the D.C. Circuit’s inference that the “liability” for a

“response action” in Section 113(f)(3)(B) is not

CERCLA-specific. After all, “there is no ‘canon of

interpretation that forbids interpreting different

words used in different parts of the same statute to

mean roughly the same thing.’”

Jennings v.

Rodriguez, 138 S. Ct. 830, 845 (2018) (quoting

Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519,

540 (2013)). And here, the different CERCLA-specific

words used in Sections 113(f)(1) and 113(f)(3)(B)

reflect their different functions. It would make no

sense for Section 113(f)(3)(B) to “require[] that a party

first be sued under CERCLA,” Pet. App. 17a, because

Section 113(f)(3)(B) can apply following an

“administrative

...

settlement,”

U.S.C.

§ 9613(f)(3)(B), in which case there would be no

lawsuit.8 Thus, rather than predicating contribution

on a “civil action under [Sections 106 or 107(a)]” as

Section 113(f)(1) does, Section 113(f)(3)(B) aptly refers

to the kind of “liability” imposed by those provisions—

liability for a “response action” and response “costs.”

2. In any event, the Russello principle, like “any

negative implication” drawn from statutory silence,

“depends on context.” Marx v. General Revenue Corp.,

568 U.S. 371, 381 (2013); see Kapral v. United States,

166 F.3d 565, 578-79 (3d Cir. 1999) (Alito, J.,

concurring) (“Russello . . . does not purport to lay

down an absolute rule”). As explained above, the

reference to “liability” in Section 113(f)(3)(B)—as in

the other subsidiary provisions of Section 113(f)—is

most naturally read in the context of the CERCLA

liability spelled out in Section 113(f)(1), the anchor

contribution provision. See supra at 19. The D.C.

Circuit’s crude application of Russello ignores the

context in which “liability” appears in Section

113(f)(3)(B) and the structure of Section 113(f) as a

whole. Cf. S.D. Warren Co. v. Maine Bd. of Env’t

Prot., 547 U.S. 370, 380 (2006) (repudiating

“uncritical use of interpretive rules” in “making sense

of a complicated [environmental] statute”).

This Court also has cautioned that Russello

usually applies only when “the omission [is] the sole

difference” between the provisions, and that any

negative inference “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); see

Nor would it make sense for Section 113(f)(1) to reference

“resolved . . . liability” as Section 113(f)(3)(B) does, because

Section 113(f)(1) can apply “during” an ongoing “civil action.”

Clay v. United States, 537 U.S. 522, 530-32 (2003).

The Court thus has repeatedly refused to draw a

negative 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).

Applying a negative inference here proves far too

much. Indeed, not even the United States embraces

its consequences when it comes to the contribution

defendant (i.e., the non-settling party). The United

States agrees 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 (emphasis added); see

supra at 22-23. But Section 113(f)(3)(B) does not

explicitly mention liability under Section 107; it

simply permits contribution against “any person who

is not party to a settlement referred to in paragraph

(2).” 42 U.S.C. § 9613(f)(3)(B). Section 113(f)(1), by

contrast, does expressly reference Section 107—it

permits contribution against a person “liable or

potentially liable under [Section 107(a)].”

Id.

§ 9613(f)(1). Applying the same negative inference

adopted by the D.C. Circuit would mean that, for

purposes of Section 113(f)(3)(B), the non-settling

party need not be liable under Section 107. Even the

United States agrees that this cannot be correct.

Given that the negative inference cannot apply

with respect to the non-settling party, it makes no

sense to apply a negative inference with respect to the

settling party.

Selectively applying a negative

inference to only some words in the statute but not

others renders Section 113(f)(3)(B) “internally

confusing.” Atlantic Research, 551 U.S. at 136. Doing

so also upends the traditional understanding of

contribution animating Section 113(f)(3)(B), which, as

noted, requires the resolution of a common liability.

See supra at 21-23. As this Court has explained, “it is

dubious” to rely on a “negative implication” when it

would “override the background rule” driving the

statute. Marx, 568 U.S. at 381-82; see Field, 516 U.S.

at 75-76 (“[Russello] is weakest when it suggests

results strangely at odds with . . . common-law

language at work in the statute[.]”). There is no

reason to adopt such a dubious interpretation here.

It gets even stranger. Section 113(f)(2) precludes

contribution claims against any “person who has

resolved its liability to the United States or a State in

an administrative or judicially approved settlement.”

42 U.S.C. § 9613(f)(2). By itself, this provision’s

reference to “liability” is even broader than that in

Section 113(f)(3)(B), as it does not mention a

“response action” at all. And that omission is the sole

difference between Sections 113(f)(2) and 113(f)(3)(B)

in terms of the kinds of settlements that fall within

their scope; thus, the case for Russello should be even

stronger here. But applying Russello, and contrasting

Section 113(f)(2) with Section 113(f)(3)(B), would

mean that a settling party is immune from

contribution claims after resolving liability to the

government for anything—regardless of whether the

settlement has anything to do with CERCLA, a

response action, or the environment. That cannot be

right.

Likewise, Section 113(f)(1) directs courts to resolve

contribution claims according to “equitable factors as

the court determines are appropriate.” 42 U.S.C.

§ 9613(f)(1). Section 113(f)(3)(B) contains no such

requirement. By including that requirement in

Section 113(f)(1), Congress surely did not mean to

exclude it from Section 113(f)(3)(B), such that

contribution claims under Section 113(f)(3)(B) need

not be resolved according to appropriate equitable

factors. Here again, the United States agrees:

Because “[S]ections 113(f)(1) and 113(f)(3)(B) ‘should

be read in pari materia,’” the United States has

argued, the “‘equitable factors’ addressed in section

113(f)(1) likewise apply to 113(f)(3)(B) actions.” U.S.

Amicus Br. 13 n.5, Aviall Servs., Inc. v. Cooper Indus.,

Inc., 312 F.3d 677 (5th Cir. 2002) (en banc) (No. 0010197), 2002 WL 32099835 (citation omitted).

In short, the D.C. Circuit’s strained negative

inference butchers the statute and create a

nonsensical contribution regime. Especially in light

of the strong textual, contextual, and structural

evidence that Section 113(f)(3)(B) is limited to

CERCLA-based settlements, the D.C. Circuit was

wrong to “elevate[] [Russello] to the level of

interpretive trump card.” Field, 516 U.S. at 67.

C. The 2004 CWA Consent Decree Did Not

Resolve CERCLA Liability

The 2004 CWA Consent Decree did not trigger

Section 113(f)(3)(B) because it indisputably did not

resolve any liability imposed by CERCLA. The

underlying complaint raised only CWA permitting

claims under 33 U.S.C. §§ 1311, 1319, see Pet. App.

134a-36a, and the decree concerned only those claims,

see id. at 139a-40a. Neither filing makes any mention

of CERCLA liability whatsoever.

Indeed, neither the complaint nor the decree even

identified a “hazardous substance”—a statutory

prerequisite for any CERCLA response action. To

qualify as a “response” action, 42 U.S.C. § 9601(25),

an action must be taken in response to “a release or

threatened release of a hazardous substance,” id.

§ 9601(24) (emphasis added); see id. § 9601(23)

(same).

And CERCLA identifies the particular

substances that qualify as “hazardous substance[s]”

in detail. Id. § 9601(14); see 40 C.F.R. § 302.4. As a

result, “liability” for a “response action” or response

“costs” in Section 113(f)(3)(B) necessarily means, at a

minimum, liability for an action involving a

“hazardous substance.” A settlement that does not so

much as mention a hazardous substance within

CERCLA does not trigger Section 113(f)(3)(B).9

Of course, the omission of any reference to a

“hazardous substance” in the 2004 CWA Consent

Decree is not surprising given that this settlement

was not a CERCLA settlement. Indeed, the omission

appears deliberate, because the CWA has its own

provision regulating “hazardous substances,” 33

U.S.C. § 1321, which the United States declined to

invoke either in its CWA complaint or the 2004 CWA

Consent Decree. Without identifying any “hazardous

substance,” therefore, the 2004 CWA Consent Decree

could not possibly resolve any CERCLA liability, and

thus could not trigger Section 113(f)(3)(B).

II. SECTION 113(f)(3)(B) DOES NOT REACH

SETTLEMENTS THAT DISCLAIM ANY

DETERMINATION OF LIABILITY AND

PRESERVE FUTURE LIABILITY

Even if Section 113(f)(3)(B) does not require the

resolution of CERCLA liability, the D.C. Circuit erred

Contrary to the D.C. Circuit’s unsupported suggestion,

“leachate” is not synonymous with “hazardous substances.” Pet.

App. 25a (citation omitted); see, e.g., Chem. Waste Mgmt., Inc. v.

EPA, 869 F.2d 1526, 1530 (D.C. Cir. 1989) (describing leachate).

in concluding that the 2004 CWA Consent Decree

“resolved” liability at all.

A. To “Resolve[] Its Liability,” A Settling

Party Must Conclusively Decide A

Preexisting Liability In The Settlement

Agreement

To trigger Section 113(f)(3)(B), the settling party

must have “resolved its liability to the United States

or a State for some or all of a response action or for

some or all of the costs of such action in an

administrative or judicially approved settlement.” 42

U.S.C. § 9613(f)(3)(B). Because CERCLA does not

define the term “resolved,” it must be given its

“ordinary” meaning “at the time Congress enacted”

Section 113(f)(3)(B). New Prime, 139 S. Ct. at 539

(citation omitted). The ordinary meaning of “resolve,”

in the sense in which it is used here, is “to deal with

. . . conclusively,” Random House Dictionary of the

English Language 1639 (2d ed. 1987), or “to reach a

firm decision about,” Webster’s New Collegiate

Dictionary 978 (1980); see also 3 Oxford English

Dictionary 723-24 (2d ed. 1989) (“[t]o decide,

determine,

settle”);

Webster’s

Third

New

International Dictionary 1933 (1961) (“to reach a

decision about,” “settle”).

To trigger Section 113(f)(3)(B), then, a settlement

must meet two conditions. First, the settlement must

conclusively deal with the liability, such that the

matter “is not susceptible to further dispute or

negotiation.” Asarco LLC v. Atlantic Richfield Co.,

866 F.3d 1108, 1122 (9th Cir. 2017). The need for

finality is consistent with ordinary usage of

“resolved.”

For example, a settling party has

“resolved its liability to the United States” when it has

been “released . . . from further liability” in a

settlement, Key Tronic, 511 U.S. at 811-12 (emphasis

added); a government contractor has “resolved its

disputes with [an] agency” by entering into a “‘final

and conclusive’” settlement, S & E Contractors, Inc. v.

United States, 406 U.S. 1, 9-10, 19 (1972) (emphasis

added); and a taxpayer has “resolved [her] liability” to

the IRS when the tax “proceeding has reached

finality.” Rogers v. Commissioner, 908 F.3d 1094,

1096 (7th Cir. 2018) (emphasis added); see also

Bernstein v. Bankert, 733 F.3d 190, 212 (7th Cir.

2012) (additional examples), cert. denied, 571 U.S.

1175 (2014).

Requiring a final, conclusive decision on liability is

also consistent with the traditional principles of

contribution described above. See supra at 21-22. A

party may seek contribution after “discharg[ing]” a

common liability “by settlement,” Restatement

(Third) of Torts: Apportionment of Liability § 23(a),

but the “settlement” must extinguish the prospect of

“recovery outside the agreement for [the] specified

injuries,” id. § 24(a).

CERCLA’s settlement

framework also embraces this finality principle by

“authorizing EPA to include a ‘covenant not to sue,’

which caps the settling party’s liability.” Atlantic

Richfield, 140 S. Ct. at 1355 (emphasis added); see 42

U.S.C. § 9622(c)(1). Thus, for purposes of Section

113(f)(3)(B), “liability [is] ‘resolved’ when the issue of

liability is decided, in whole or in part, in a manner

that carries with it at least some degree of certainty

and finality.” Bernstein, 733 F.3d at 212.

Second, there must be a preexisting liability for

undertaking a response action or paying response

costs separate and apart from the settlement itself—

that is, there must be a liability that needs to be

resolved by way of the settlement. A settlement

cannot create the very liability it resolves. This is

part and parcel of the term “resolved”—an issue must

exist before it can be resolved.

The United States has suggested that a settlement

can at the same time “establish[]” the very liability

that it purportedly “resolve[s]” merely because one of

the settling parties agrees to do something that

qualifies as a response action. BIO 16. This

interpretation drains “resolved its liability” of

meaning by “[e]quating signing a settlement

agreement with the resolution of liability.” Bernstein,

733 F.3d at 210. Under this view, any agreement

involving conduct that would constitute a “response

action” (in whole or part), by definition, “resolve[s] . . .

liability.” If that is what Congress intended, it would

simply have authorized contribution by a party that

agrees to perform some or all of a response action. Cf.

42 U.S.C. § 9622(a) (referencing a party that “enter[s]

into an agreement . . . to perform any response

action”). There would have been no reason to require

“resolved . . . liability.” See Advocate Health Care

Network v. Stapleton, 137 S. Ct. 1652, 1659 (2017)

(“When legislators d[o] not adopt ‘obvious alternative’

language, ‘the natural implication is that they did not

intend’ the alternative.” (citation omitted)).

This interpretation is confirmed by the traditional

principles

contribution

discussed

above:

Contribution requires the resolution of a shared

liability—one that both (or more) parties face. See

supra at 21-22. Thus, even if a settlement could

“establish[]” the relevant liability as the United

States suggests, a settlement with one party would

not establish a shared liability with a non-settling

party. Cf. Local No. 93, Int’l Ass’n of Firefighters v.

City of Cleveland, 478 U.S. 501, 529-30 (1986) (noting

that a consent decree “imposes no legal duties or

obligations” on “a party that did not consent to the

decree”). Rather, Section 113(f)(3)(B) authorizes

contribution only when a party has entered into a

settlement that conclusively deals with or decides

that party’s preexisting liability to undertake a

response action or pay response costs.

B. Guam Did Not “Resolve[] Its Liability” In

The 2004 CWA Consent Decree

Determining whether a settling party “resolved its

liability” for purposes of Section 113(f)(3)(B) depends

on an examination of the agreement’s “precise terms.”

United States v. Armour & Co., 402 U.S. 673, 681

(1971). Here, multiple provisions of the 2004 CWA

Consent Decree make clear that, despite agreeing to

clean up the Ordot Dump, Guam did not “resolve[]”

any liability to take that action.

To begin with, the 2004 CWA Consent Decree

states in no uncertain terms that the parties entered

into the decree “without any finding or admission of

liability against or by the Government of Guam.” Pet.

App. 140a (emphasis added). This language “plainly

reflects the parties’ intention to leave the question of

liability unresolved, despite the fact that Guam was

proceeding to consent to engage in the immediate

cleanup of the Ordot Landfill by virtue of entering

into the agreement.” Id. at 86a. And this is the only

provision in the entire decree that mentions

“liability,” save for one other provision specifying that

the agreement was not relieving Guam of any

“criminal liability.” Id. at 166a.

The 2004 CWA Consent Decree also specifically

preserved all of the United States’ “rights [and]

remedies” for “any violation by [Guam] of federal and

territorial laws and regulations.” Id. This “broad

reservation of rights” reinforces the conclusion that

Guam’s liability remained unresolved. Id. at 86a-87a.

As the district court explained, the fact that “the

United States retained its rights to sue Guam” in the

future for “the response actions and costs relating to

any cleanup at the Ordot Landfill” undermines the

conclusion that the “settlement agreement resolved

Guam’s liability for any response costs or response

actions.” Id. at 87a-88a. This is particularly true

given that the United States theoretically could have

turned around and sued Guam under CERCLA itself.

Further, the 2004 CWA Consent Decree

conditioned release of the CWA claims at issue on

Guam’s “compliance with the requirements” in the

decree. Id. at 166a. The conditional nature of the

release confirms that Guam did not resolve its

liability in the decree. As the district court explained,

the “agreement states that the resolution of Guam’s

liability for the specified claims does not occur until

Guam has actually complied with all of the Consent

Decree’s requirements.” Id. at 89a. If Guam were to

fall out of compliance with the terms of the consent

decree, it “would seemingly resuscitate the United

States’ CWA claims.” Id. at 92a.

Whether considered individually or collectively,

these provisions compel the conclusion that the 2004

CWA Consent Decree—while obligating Guam to take

certain actions at the Ordot Dump—simply did not

“resolve [Guam’s] liability” within the meaning of

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

The settlement certainly

resulted in a final judgment ending the CWA lawsuit,

but it did not resolve Guam’s liability.10

C. The D.C. Circuit’s Contrary Conclusion

Flouts The Statutory Text And The 2004

CWA Consent Decree’s Terms

The D.C. Circuit’s conclusion that the 2004 CWA

Consent Decree nevertheless triggered Section

113(f)(3)(B) rewrites both the statute and the decree.

1. As to the disclaimer expressly withholding

“any finding . . . of liability,” Pet. App. 140a, the D.C.

Circuit refused “to take the disclaimer at its word,”

reasoning that “‘parties often expressly refuse to

concede liability under a settlement agreement, even

while assuming obligations consistent with a finding

of liability.’” Id. at 24a (citation omitted). This

reasoning cannot withstand scrutiny.

For starters, it rewrites the statute. Section

113(f)(3)(B) does not encompass settlements where

the parties merely “assumed obligations consistent

with a finding of liability”—it requires the parties to

have actually “resolved [the] liability” in the

settlement itself. This does not mean the settling

party necessarily must “concede liability,” as the D.C.

Circuit seemed to believe. Id. (emphasis added).

Indeed, the United States routinely enters into

settlements in which settling parties “do not admit

10 Even if Guam somehow resolved liability in the 2004 CWA

Consent Decree, Guam certainly did not resolve liability for a

“response action” as required by Section 113(f)(3)(B). As

discussed, neither the United States’ CWA complaint nor the

decree settling that complaint identified any “hazardous

substance” within the meaning of CERCLA. See supra at 36-37.

The failure to identify a hazardous substance in the decree

means the decree did not “resolve” liability for such substances.

any liability to [the United States],” but “agree” that

they “ha[ve], as of the Effective Date [of the

settlement], resolved liability to the United States

within the meaning of Section 113(f)(3)(B) of

CERCLA.” United States v. Bridgestone Americas

Tire Operations, LLC, No. 3:18-cv-00054, 2018 WL

5621496, at *1, *33 (S.D. Ohio Oct. 30, 2018); see, e.g.,

United States v. Goodrich Corp., No. 5:20-CV-00154,

2021 WL 297577, at *3, *27 (W.D. Ky. Jan. 28, 2021);

In re Peabody St. Asbestos Superfund Site, No.

CERCLA-01-2015-0052, 2015 WL 13845559, at *2, *7

(EPA Dec. 4, 2015).11 But a settlement that both

expressly disclaims any liability determination and

lacks language purporting to resolve liability plainly

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

The D.C. Circuit’s reasoning also impermissibly

rewrites the parties’ agreement here by refusing to

take the “disclaimer at its word.” Pet. App. 24a

(citation omitted).

A consent decree, like a

“contract[],” “‘must be construed as it is written,’”

consistent with its unambiguous terms. United

States v. ITT Cont’l Baking Co., 420 U.S. 223, 235-36

(1975) (quoting Armour, 402 U.S. at 682); see, e.g.,

11 In fact, the United States has amended its model CERCLA

settlements to include language specifically stating that the

settling party “resolved [its] liability” “for purposes of Section

113(f)(3)(B).” EPA & Dep’t of Justice, Interim Revisions to

CERCLA Removal, RI/FS and RD AOC Models to Clarify

Contribution Rights and Protection Under Section 113(f) at 3

(Aug. 3, 2005), https://www.epa.gov/sites/production/files/docu

ments/interim-rev-aoc-mod-mem.pdf; see also Memorandum

from EPA & Dep’t of Justice, Revisions to 2009 ARC Memo and

Issuance of Revised CERCLA Past Cost, Peripheral, De Minimis,

De Micromis, and Municipal Solid Waste Settlement Models at

4-5 (Sept. 26, 2014), https://www.epa.gov/sites/production/

files/2014-09/documents/payment-models-2014-mem.pdf.

Norfolk S. Ry. Co. v. James N. Kirby, Pty. Ltd., 543

U.S. 14, 32 (2004) (“[W]here the words of a law, treaty,

or contract, have a plain and obvious meaning, all

construction, in hostility with such meaning, is

excluded.” (citation omitted)). It “must [also] be so

construed as to give meaning to all its provisions.”

Burdon Cent. Sugar Refin. Co. v. Payne, 167 U.S. 127,

142 (1897); see, e.g., Texas & Pac. Ry. Co. v. Clayton,

173 U.S. 348, 359 (1899) (“[T]he court cannot hold

that [a] clause is meaningless, or that it was inserted

in the contract in ignorance of the meaning of the

words [used].”); Scalia & Garner, supra, at 174-76.

The D.C. Circuit did precisely the opposite. While

the 2004 CWA Consent Decree expressly disclaims

“any finding . . . of liability,” Pet. App. 140a, the D.C.

Circuit nevertheless read that disclaimer as

“consistent with a finding of liability” based on other

provisions, id. at 24a (citation omitted).

That

interpretation renders the liability disclaimer—a

bargained-for term—meaningless. And by focusing

instead on other provisions, the court negated the

only relevant provision in the entire agreement that

specifically uses the word used in Section

113(f)(3)(B)—“liability.” See supra at 41; cf. Mitsui &

Co. v. American Exp. Lines, Inc., 636 F.2d 807, 823 (2d

Cir. 1981) (Friendly, J.) (“[A] specific [contract]

provision should prevail over a general one.”).

The D.C. Circuit’s justification for doing so—

intuiting the implications of what “parties often” do in

other settlements, Pet. App. 24a (citation omitted)—

is especially troubling. In interpreting an agreement,

a court is obligated to give effect to the agreement’s

“‘clear and unambiguous terms,’” not “its own

suppositions about the [parties’] intentions.” M & G

Polymers USA, LLC v. Tackett, 574 U.S. 427, 435, 439

(2015) (citation omitted). Allowing courts to gloss

over bargained-for terms not only flouts basic

interpretative principles but also threatens to disrupt

the settlement process.

Parties should have

confidence that the provisions to which they agree

will be enforced—i.e., taken “at [their] word,” Pet.

App. 24a—without fear that a court will later rewrite

the agreement based on its own sensibilities.

The United States did not even try to defend this

reasoning at the certiorari stage. Instead, the United

States claimed that the liability disclaimer “makes

clear” that Guam “was not admitting that it had

violated the CWA” but “did not disclaim liability for a

response action.” BIO 16. But the United States

plucks this distinction out of thin air: The provision

disclaims “any finding or admission of liability

against or by [Guam].” Pet. App. 140a (emphasis

added). And as the Court frequently observes, “the

word ‘any’ has an expansive meaning, that is, ‘one or

some indiscriminately of whatever kind.’” Norfolk S.,

543 U.S. at 31 (citation omitted). Nothing in the

liability disclaimer or surrounding provisions

remotely suggests (let alone “makes clear,” BIO 16)

that the disclaimer is limited to the CWA or

otherwise. To the contrary, the “plain language” of

the provision demonstrates the parties’ “intent to

extend the liability [disclaimer] broadly,” Norfolk S.,

543 U.S. at 31, and there is no reason to read into that

provision a limitation that is not there.

2. The D.C. Circuit also ignored the provisions of

the 2004 CWA Consent Decree preserving exposure to

future liability and conditioning the release of the

CWA claims on compliance with the decree’s terms.

According to the court, giving those provisions effect

would “nullify section 113(f)(3)(B) in a host of cases”

given that the applicable limitations period set forth

in Section 113(g)(3)(B) begins to run upon “entry of

the settlement, not when liability is ‘resolved.’” Pet.

App. 23a. If liability is not resolved until years after

the settlement’s entry, the court reasoned, a “cause of

action under section 113 would not accrue until after

the statute of limitations runs.” Id.

But this problem is a product of the D.C. Circuit’s

own invention. Section 113(f)(3)(B) applies only when

the settling party “has resolved its liability . . . in [the]

settlement” itself, 42 U.S.C. § 9613(f)(3)(B) (emphasis

added), not sometime in the future. Indeed, Congress

used the present perfect tense—“has resolved”—

which “denot[es] an act that has been completed.”

Carr v. United States, 560 U.S. 438, 448 (2010)

(citation omitted). As a result, the only kinds of

settlements that trigger Section 113(f)(3)(B) are

settlements that resolve liability when the limitations

period begins to run—upon “entry of [the]

settlement,” 42 U.S.C. § 9613(g)(3)(B). If liability

remains unresolved at that time, then Section

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

(or does) happen in the future.

There is thus no world in which a Section

113(f)(3)(B) claim could accrue “after the statute of

limitations runs.” Pet. App. 23a. To the contrary, the

fact that the limitations period is keyed to the “entry

of the settlement” simply reinforces the point that a

settlement expressly conditioning the possibility of

future liability on future events, as the decree did

here, is not supposed to trigger Section 113(f)(3)(B).

Only by misreading the statute to permit a gap

between the “entry of the settlement” and the time

“when liability is ‘resolved,’” id., did the D.C. Circuit

arrive at its supposed anomaly between Sections

113(f)(3)(B) and 113(g)(3)(B). Stripped of that error,

the provisions work just fine.12

3. Finally, the D.C. Circuit’s apparent policy

concern that settlements will never trigger Section

113(f)(3)(B) is incorrect. Parties may—and often do—

agree to terms that explicitly resolve liability for a

response action. See supra at 43-44 & n.11. In

addition, the United States can and does insist on

admissions of liability in some circumstances. See,

e.g., Consent Decree at 3, United States v. Cytec

Indus. Inc., No. 20-cv-06916 (S.D.N.Y. Aug. 26, 2020),

ECF No. 3-1.13 The United States can also seek to

avoid the sort of conditional language and reservation

of rights in the settlement here. But the fact that it

is clearly possible for the United States, arguably the

most powerful bargaining unit in the world, to

negotiate settlements that plainly resolve a settling

party’s liability in no way provides a reason to rewrite

the decree—or the statute—in this case. Indeed, the

fact that other settlements contain provisions that

unambiguously resolve liability simply underscores

that the 2004 CWA Consent Decree in this case did

not resolve Guam’s liability. See Tarrant Reg’l Water

Dist. v. Herrmann, 569 U.S. 614, 633-34 (2013)

(presence of language in similar agreements weighs

12 Accordingly, the 2004 CWA Consent Decree does not, as

the D.C. Circuit suggested, simply “provide[] that it ‘shall be in

full settlement and satisfaction of the [United States’] civil

judicial claims.’” Pet. App. 21a. The court skipped over the

immediately preceding language conditioning that release on

“compliance with the requirements herein.” Id. at 166a.

13 https://www.justice.gov/enrd/consent-decree/file/1309266/

download.

“heavily” against interpreting agreement that lacks

such language to achieve the same result).

*****

The D.C. Circuit recognized that the result it

reached was “harsh.” Pet. App. 26a. As the court put

it, “the United States deposited dangerous munitions

and chemicals at the Ordot Dump for decades and left

Guam to foot the bill.” Id. To add insult to injury, the

“practical effect” of the D.C. Circuit’s “decision is that

Guam cannot now seek recoupment from the United

States for that contamination because its cause of

action for contribution expired in 2007.” Id. That is

reason enough for pause—the costs that Guam alone

now faces in cleaning up the Ordot Dump would be

the equivalent of a nearly trillion dollar outlay for the

United States government. Pet. 24.

Yet, Guam does not ask this Court to rule for it on

the equities; it simply asks this Court to enforce the

statutory text. The 2004 CWA Consent Decree did not

trigger Section 113(f)(3)(B) under a plain-meaning

construction of the statute. The D.C. Circuit thus

erred in holding that Guam’s action against the

United States to recover costs attributable to the

United States’ own role at the site is time-barred.

CONCLUSION

The judgment of the court of appeals should be

reversed.

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

BRENT T. MURPHY*

SOREN J. SCHMIDT

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

February 22, 2021

* Admitted to practice in Virginia only. All work supervised

by a member of the DC Bar.

ADDENDUM

TABLE OF CONTENTS

Page

42 U.S.C. § 9601(14), (21)-(25), (27), (32)-(33)..........1a

42 U.S.C. § 9606(a), (b) .............................................7a

42 U.S.C. § 9607(a)..................................................10a

42 U.S.C. § 9613(f), (g) ............................................12a

42 U.S.C. § 9652(d)..................................................17a

42 U.S.C. § 9601

§ 9601. Definitions

For purposes of this subchapter—

* * *

(14) The term “hazardous substance” means

(A) any substance designated pursuant to section

311(b)(2)(A) of the Federal Water Pollution

Control Act [33 U.S.C. 1321(b)(2)(A)], (B) any

element, compound, mixture, solution, or

substance designated pursuant to section 9602 of

this title, (C) any hazardous waste having the

characteristics identified under or listed pursuant

to section 3001 of the Solid Waste Disposal Act

(but not including any waste the regulation of

which under the Solid Waste Disposal Act [42

U.S.C. 6921] (but not including any waste the

regulation of which under the Solid Waste

Disposal Act [42 U.S.C. 6901 et seq.]has been

suspended by Act of Congress), (D) any toxic

pollutant listed under section 307(a) of the Federal

Water Pollution Control Act [33 U.S.C. 1317(a)],

(E) any hazardous air pollutant listed under

section 112 of the Clean Air Act [42 U.S.C. 7412],

and (F) any imminently hazardous chemical

substance or mixture with respect to which the

Administrator has taken action pursuant to

section 7 of the Toxic Substances Control Act [15

U.S.C. 2606].

The term does not include

petroleum, including crude oil or any fraction

thereof which is not otherwise specifically listed or

designated as a hazardous substance under

subparagraphs (A) through (F) of this paragraph,

and the term does not include natural gas, natural

gas liquids, liquefied natural gas, or synthetic gas

usable for fuel (or mixtures of natural gas and such

synthetic gas).

* * *

(21) The term “person” means an individual,

firm, corporation, association, partnership,

consortium, joint venture, commercial entity,

United States Government, State, municipality,

commission, political subdivision of a State, or any

interstate body.

(22) The term “release” means any spilling,

leaking, pumping, pouring, emitting, emptying,

discharging,

injecting,

escaping,

leaching,

dumping, or disposing into the environment

(including the abandonment or discarding of

barrels, containers, and other closed receptacles

containing any hazardous substance or pollutant

or contaminant), but excludes (A) any release

which results in exposure to persons solely within

a workplace, with respect to a claim which such

persons may assert against the employer of such

persons, (B) emissions from the engine exhaust of

a motor vehicle, rolling stock, aircraft, vessel, or

pipeline pumping station engine, (C) release of

source, byproduct, or special nuclear material

from a nuclear incident, as those terms are defined

in the Atomic Energy Act of 1954 [42 U.S.C. 2011

et seq.], if such release is subject to requirements

with respect to financial protection established by

the Nuclear Regulatory Commission under section

170 of such Act [42 U.S.C. 2210], or, for the

purposes of section 9604 of this title or any other

response action, any release of source byproduct,

or special nuclear material from any processing

site designated under section 7912(a)(1) or 7942(a)

of this title, and (D) the normal application of

fertilizer.

(23) The terms “remove” or “removal” means2

the cleanup or removal of released hazardous

substances from the environment, such actions as

may be necessary taken in the event of the threat

of release of hazardous substances into the

environment, such actions as may be necessary to

monitor, assess, and evaluate the release or threat

of release of hazardous substances, the disposal of

removed material, or the taking of such other

actions as may be necessary to prevent, minimize,

or mitigate damage to the public health or welfare

or to the environment, which may otherwise result

from a release or threat of release. The term

includes, in addition, without being limited to,

security fencing or other measures to limit access,

provision of alternative water supplies, temporary

evacuation and housing of threatened individuals

not otherwise provided for, action taken under

section 9604(b) of this title, and any emergency

assistance which may be provided under the

Disaster Relief and Emergency Assistance Act [42

U.S.C. 5121 et seq.].

(24) The terms “remedy” or “remedial action”

means2 those actions consistent with permanent

remedy taken instead of or in addition to removal

actions in the event of a release or threatened

release of a hazardous substance into the

environment, to prevent or minimize the release of

hazardous substances so that they do not migrate

So in original. Probably should be “mean”.

to cause substantial danger to present or future

public health or welfare or the environment. The

term includes, but is not limited to, such actions at

the location of the release as storage, confinement,

perimeter protection using dikes, trenches, or

ditches, clay cover, neutralization, cleanup of

released hazardous substances and associated

contaminated materials, recycling or reuse,

diversion, destruction, segregation of reactive

wastes, dredging or excavations, repair or

replacement of leaking containers, collection of

leachate and runoff, onsite treatment or

incineration, provision of alternative water

supplies, and any monitoring reasonably required

to assure that such actions protect the public

health and welfare and the environment. The

term includes the costs of permanent relocation of

residents and businesses and community facilities

where the President determines that, alone or in

combination with other measures, such relocation

is more cost-effective than and environmentally

preferable to the transportation, storage,

treatment, destruction, or secure disposition

offsite of hazardous substances, or may otherwise

be necessary to protect the public health or

welfare; the term includes offsite transport and

offsite storage, treatment, destruction, or secure

disposition of hazardous substances and

associated contaminated materials.

(25) The terms “respond” or “response” means2

remove, removal, remedy, and remedial action;,3

all such terms (including the terms “removal” and

So in original. Probably should be “mean”.

So in original.

“remedial action”) include enforcement activities

related thereto.

* * *

(27) The terms “United States” and “State”

include the several States of the United States, the

District of Columbia, the Commonwealth of Puerto

Rico, Guam, American Samoa, the United States

Virgin Islands, the Commonwealth of the

Northern Marianas, and any other territory or

possession over which the United States has

jurisdiction.

* * *

(32) The terms “liable” or “liability” under this

subchapter shall be construed to be the standard

of liability which obtains under section 311 of the

Federal Water Pollution Control Act.

(33) The term “pollutant or contaminant” shall

include, but not be limited to, any element,

substance, compound, or mixture, including

disease-causing agents, which after release into

the environment and upon exposure, ingestion,

inhalation, or assimilation into any organism,

either directly from the environment or indirectly

by ingestion through food chains, will or may

reasonably be anticipated to cause death, disease,

behavioral

abnormalities,

cancer,

genetic

mutation, physiological malfunctions (including

malfunctions in reproduction) or physical

deformations, in such organisms or their offspring;

except that the term “pollutant or contaminant”

shall not include petroleum, including crude oil or

any fraction thereof which is not otherwise

specifically listed or designated as a hazardous

substance under subparagraphs (A) through (F) of

paragraph (14) and shall not include natural gas,

liquefied natural gas, or synthetic gas of pipeline

quality (or mixtures of natural gas and such

synthetic gas).

* * *

42 U.S.C. § 9606

§ 9606. Abatement actions

(a) Maintenance, jurisdiction, etc.

In addition to any other action taken by a State or

local government, when the President determines

that there may be an imminent and substantial

endangerment to the public health or welfare or the

environment because of an actual or threatened

release of a hazardous substance from a facility, he

may require the Attorney General of the United

States to secure such relief as may be necessary to

abate such danger or threat, and the district court of

the United States in the district in which the threat

occurs shall have jurisdiction to grant such relief as

the public interest and the equities of the case may

require. The President may also, after notice to the

affected State, take other action under this section

including, but not limited to, issuing such orders as

may be necessary to protect public health and welfare

and the environment.

(b) Fines; reimbursement

(1) Any person who, without sufficient cause,

willfully violates, or fails or refuses to comply with,

any order of the President under subsection (a) may,

in an action brought in the appropriate United States

district court to enforce such order, be fined not more

than $25,000 for each day in which such violation

occurs or such failure to comply continues.

(2)(A) Any person who receives and complies with

the terms of any order issued under subsection (a)

may, within 60 days after completion of the required

action, petition the President for reimbursement from

the Fund for the reasonable costs of such action, plus

interest. Any interest payable under this paragraph

shall accrue on the amounts expended from the date

of expenditure at the same rate as specified for

interest on investments of the Hazardous Substance

Superfund established under subchapter A of chapter

98 of title 26.

(B) If the President refuses to grant all or part of

a petition made under this paragraph, the petitioner

may within 30 days of receipt of such refusal file an

action against the President in the appropriate

United States district court seeking reimbursement

from the Fund.

obtain reimbursement, the petitioner shall establish

by a preponderance of the evidence that it is not liable

for response costs under section 9607(a) of this title

and that costs for which it seeks reimbursement are

reasonable in light of the action required by the

relevant order.

(D) A petitioner who is liable for response costs

under section 9607(a) of this title may also recover its

reasonable costs of response to the extent that it can

demonstrate, on the administrative record, that the

President’s decision in selecting the response action

ordered was arbitrary and capricious or was

otherwise

not

accordance

with

law.

Reimbursement awarded under this subparagraph

shall include all reasonable response costs incurred

by the petitioner pursuant to the portions of the order

found to be arbitrary and capricious or otherwise not

in accordance with law.

(E) Reimbursement awarded by a court under

subparagraph (C) or (D) may include appropriate

costs, fees, and other expenses in accordance with

subsections (a) and (d) of section 2412 of title 28.

* * *

10a

42 U.S.C. § 9607

§ 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—

(1) the owner and operator of a vessel or a

facility,

(2) any person who at the time of disposal of

any hazardous substance owned or operated any

facility at which such hazardous substances were

disposed of,

(3) any person who by contract, agreement, or

otherwise arranged for disposal or treatment, or

arranged with a transporter for transport for

disposal or treatment, of hazardous substances

owned or possessed by such person, by any other

party or entity, at any facility or incineration

vessel owned or operated by another party or

entity and containing such hazardous substances,

and

(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

11a

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;

loss of natural resources, including the

reasonable costs of assessing such injury,

destruction, or loss resulting from such a

release; and

(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.

* * *

12a

42 U.S.C. § 9613

§ 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 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.

13a

(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

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).

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

14a

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 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

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

15a

(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.

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

16a

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.

(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.

* * *

17a

42 U.S.C. § 9652

§ 9652. Effective dates; savings provisions

* * *

(d) Nothing in this chapter shall affect or modify

in any way the obligations or liabilities of any person

under other Federal or State law, including common

law, with respect to releases of hazardous substances

or other pollutants or contaminants. The provisions

of this chapter shall not be considered, interpreted, or

construed in any way as reflecting a determination, in

part or whole, of policy regarding the inapplicability

of strict liability, or strict liability doctrines, to

activities relating to hazardous substances,

pollutants, or contaminants or other such activities.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.