it also thank you your honor let me begin with a quick overview of the two provisions of circular at issue here first section one zero seven eight one seven eight section one thirteen f one provides a claim for contribution in a one thirteen f one contribution case the plaintiffs may seek contribution in other words the plaintiff may seek to recover money that it has paid to someone else in a court judgment the trial court in the contribution action may then make an equitable allocation now one thirteen f one also has a provision controlling the timing and that is when the contribution plane can be made it's pretty flexible it says the contribution claim can be made to recover response costs that whitaker directly incurred or will incur in the future that is the classic cost recovery claim under one zero seven  limited only to the monies paid to the water purveyors in just a click and why didn't they do that it had the option of either bringing that contribution action during the pendency of the one o seven in or afterwards as it ends up there was insurance coverage involved so the insurer with its subrogated rights did bring the one thirteen one action but you're saying  also i think that they could now or they could have also brought an action at that time against the government for costs beyond that has to act like liability or damages the perkily it and the replacing of the water there had been some direct recovery costs already incurred by whittaker at that time whether it could have been brought before it could have been brought before then during then after then if there's an outrageously long statute of limitations in a one of seven a claim so it still has six years to go before bringing its one zero seven a cost recovery action and then why did it waste so long i'm just curious why did they wait so long to bring the cost recovery action for the other costs be not the cassock like costs against the united states i mean if anything you can say it's early because the six year statute of limitations starts with the initiation of the final remediation and i think it's just a matter of choice how much do you want to incur an just of out of pocket in terms of recovery cost before you finally pull the trigger and go out and bring your one o seven am action trying to get that recovery from the other parties you know if i could jump in i have a question did this help me understand because i find this very difficult case let's imagine that there is a plot of land up we'll call the whittaker plot and it's one hundred acres and action is brought by a water authority saying whittaker hundred acres has contaminated off site water and they and they reach a settlement as to acre one they sacre one here's how we're going to remediate acre one but they don't reach settlement as to acres two through one hundred whitaker then want to see contributions to your position is it could seek contribution only adds to that or cost for that one acre because that would be that t question so i guess again the question is that i'll take a step back it's my understanding inner circle that one of the goals is to get everyone to the table as quickly as possible to try to have a comprehensive plan to remediate if we take your position what i said is a close case in my view my concern is that you would further piecemeal how these things are resolved tell me why my concern is not truth here what you described is one side of circlip where you have an e p a an issue aided an action not under one o seven usually but usually under one o six but e p a doesn't need you know coordinate remediation and goes out and sues under one of six not everybody is always but the major players and it tells the major deep pocket defendants go remediate and you sort out through contribution actions you know how you split it up among yourself this is a very different type of circle claim this is just h it started in castaic lake with the water purveyors suing winter and all the water programmers were seeking was to their cost produced both sued simultaneously for contribution as to what they're paying to the water and for the government to what they previously unrelated to the one particular poison and perspective or wells which were are geographically at a different location so here it actually is a fairly easy case to try and unscramble the eggs so what do you have to do crew eliminate the poison that poison their wells if you have to remediate only a separate geographical my understanding is that the water per bayers costs were incurred soley at the site of their wells they were not at the main whitaker site so to speak so here you do have that additional element of seeking for the government is seeking to recover cost recovery for its own remediation nothing to do with what the water purveyors did what's the policy behind there is a strong policy and are circling to encourage private parties to voluntarily remediate the question is how do you do that how do you get people to go out on their own initiative and engage in remediation activities and the answer is one zero seven eight is the key because the standard is so low in one of seven  that a private party has a strong incentive to voluntarily engage in remediation because it can then turn around and bring a one o seven a cost recovery action and all it has to show is that it incurred the costs that the defendant is a covered person and that there was of release that cause the response cost to be the centerpiece of the effort to encourage voluntary efforts you knocked out one seventy and and it would be a rare party then that would voluntarily remediate without the incentive of having a one zero seven a action available but how does that play into that gets the other policy in the one the government's really focusing on debris and already mentioned here debris that you're supposed to bring everybody to table earlier than possible are you saying that this renewal of the well water correct if you look at one one zero seven there is nothing that says the policy of one zero seven is to bring everyone to the table the policy of one o seven is to allow cost recovery and as explained in w r grace vs soto's case cited or grieve the underlying policy behind that is to encourage voluntary initiation of remediation efforts i'd like to reserve my  of research taking a look at the question of the mutual exclusivity of section one thirteen and one of seven and all six have held that where a p r p falls under the procedural circumstances governed by section one thirteen it must use that remedy and cannot elect to sue under one of seven my second point here is that whitaker does in fact meet the prerequisite for a contribution claim under section one thirteen because it has been sued under section one zero seven  the cost of cleaning up the contamination released by its facility there is no reason that would occur could not have sought to assert a contribution claim against the united states  yes your honor what section one thirteen f one says is that any person may seek contribution from any other person who is liable or potentially liable under section one away during or following up any action waive my rights that i would normally have to recover a portion of a hundred of the answer to that question is yes once your right to contribution under section one hundred one thirteen f one has been triggered by a suit under one o seven for some subset of costs to clean up a given contaminated site what congressman vision happening is that the p r p would then be able to assert a contribution claim against any other p r p at the site for any costs that that p r p has incurred but doesn't atlantic research affect this interpretation because it seems like and i think you're arguing that that whitaker could bring a contribution action once it was sued in the cas castillo like case i mean that's the language that they use and so i mean they don't say cast it like but they use the word contingent upon the liability of the and then contribution action contingent on an inevitable distribution of i believe that's the phrase that was used in new black research case i think it's important to take a step back and look at what the complaint inquest to click actually asserted here that there was a very broad allegation of liability that would occur or was liable for cleaning up the contamination at the site that one o seven complained but do we look at the alleged liability or the actual liability i think you have to look at the alleged liability because what the text of one thirteen f one says as that you can bring a contribution claim against any other party who is liable or potentially liable during or following any suit under property church can you get more in the contribution claim that what you paid out here i think this is a very important point your honor if a p r p is sued in your in your hypothetical for one hundred dollars worth of response costs that someone else has incurred and that p r p has incurred let's just say five million dollars worth of costs for cleaning up other performing other response actions at the site what the atlantic research case and what this court said in poachers subsequent to atlantic reserves is that the p r p who's been sued under one of seven should be able to trigger an equitable allocation of all liability at the site so so  that it can obtain a fair resolution of all those costs and so my point would be and this comes up all the time if a p r p is sued for a certain subset of costs of the site it should be able to file a contribution counter claim for any other costs burstein and then i think it's the third sturk its decision and here which similar circumstances and and the parties were allowed to bring cost recovery actions for costs separate from those that were covered by the prior settlements why should we follow the seventh and the third circuit here it seems i mean looking at this case and i know the policy and it's what's why it makes this a close case for me that you know which was to bring the parties to the table early as possible but when you have a separate discrete action you know and someone like whitaker came in settled it meanwhile spending a lot of money and looks like on the remediation something also that i think circle of wants to encourage this whole voluntariness on especially on a munitions plant like this one where the property  seems like it could probably use a lot of remediation what why don't we want to view this the way the seventh in the third circuit did well you're not respectfully i disagree that those cases are inconsistent with the position we're going forward here to help me understand why they're not the bernstein case that you're referring to was actually a case under section one thirteen f three b where as here we're under section one thirteen f one one thirteen f three b has to do with settlements with the united states or state for a particular set of liability at the site one thirteen f one has to do with p r p who have been sued under section one and seven and so it's not necessarily the case that those two the scope of a contribution claim under those two different provisions would be the same i would refer your honor to the subsequent decision of the seventh circuit in the n c r versus whiting case that is the more factually apis it seven circuit case and what happened there was a p r p had incurred costs under a unit what's called a unilateral administrative order and incurred a bunch of costs and then subsequently it was sued under section one of seven a and the argument that was presented is very similar to the argument that would occur as presenting here and that was that because i heard certain possible or i was sued under section one seventy those costs can be part of a contribution claim under section one thirteen f one the seventh circuit specifically rejected that argument said slicing and dicing up the costs in this manner that you're referring to simply isn't supported by the text structure or purpose of circle because it has a comprehensive remedial purpose and so what matters here is that one of the triggers in section one thirteen f one has been met you have been sued under section one hundred seventy you therefore gain access to a contribution claim and the policy that's fundamentally underwriting all of this conversation is congress's policy the idea being that all related contribution claims will be brought or can at least be brought in and in a single suit early on in the case in order to obtain and early allocation of all liability at the site and thereby channel p r peace efforts into cleanup and to the other side's argument that the your your position and i understand the surplus position to bring people to the table as soon as possible but it seems like that would be for the overriding majority cost of the remediation and here you know in light of what you said you know the policy is it would allow plaintiffs in minor cases to force all potentially responsible parties you know at this site to bring their claims within a very accelerated time frame and i'm just trying to find the balance here and does this what  arguing not offer that balance well your honor respectfully i think that the balance that matters here is the balance that congress truck in the statute in the ballast that congress struck in this election well but there's a way i understand absolutely congress congress struck but that landed research seems to let you know how you read it seems to lend support to what whitaker is arguing i don't believe that's correct and the reason why is because atlantic research was about a case about a who had neither been sued under section one hundred seven nor settled it's a liability with the united states and therefore did not have access to a contribution claim under section one thirteen all of the subsequent circuit authority are interpreting atlantic research has noted that and basically their entire argument is premised on a footnote footnote six of atlantic research which is essentially dictum because the question in atlantic research was the p r p in atlantic research and not that it did not have access to one thirteen up plan in such a p r p qualify as quote unquote any other person who who can sue under section one of seven that is the narrow question that that atlanta research resolve and it left open this question of the relationship between section one hundred seven and one thirteen when there when the p r p is in the circumstances governed that's the question that six of  subsequently resolved and others focus on a put up but that seems like even in the body of the language of atlantic research when it's referring to the definition or liability it's it talks about of right contribution distinct from cost recovery so i don't think they say voluntarily at that point in atlanta research but it seems to port this put no what they wrote there with the idea that section one thirteen one of seven are distinct remedies available to p r piece and different procedural circumstances is precisely what for example the sixth and seventh circuits in the hobart bernstein and whiting cases of recently focused on rather than the quote unquote voluntariness which is a rather elusive concept you know i think again what i would like to bring this back around to is if you look at have to state waters complaint it alleged liability for all for cleaning up all of the contamination at the site and there was nothing to stop whittaker at that point from asserting make a contribution claim against the united states for any response cost that it incurred and instead of doing so it waited thirteen years to attempt to assert a section one of seven claim against the united states here and this issue of delay this issue of subsequent piecemeal litigation that is going to come back to haunt the courts over and over rather than having p r piece focus their efforts on cleanup getting an early allocation of all liability at the site that is that is the policy that congress intended to  decided not to do so it's also simply not accurate portray whitaker here as some willing participant in a clean up operation we're whitaker defaulted on its obligations to the state to clean up this site and it's only now thirteen years later that they're attempting to bring in the united states what should've happened here which is precisely what congress said that we cite in our previous would have her should have  piece at the site as soon as it's a liability as a p r p was asserted in a litigation this it matter that it was its insurance company versus the political that paid those costs in a in a separate in cast dick like i don't believe so no because you're just saying that they're paying out of their own cost when you're making your argument and so really i understand why you're making that argument but it was their insurance company that actually paid that  we're not talking about the specific dollar amounts here what i'm talking about is that when whitaker's liability as a p r p at the site had been asserted that it had been placed at issue what congress thought would happen is that whitaker would gain a contribution claim against any other p r piece at the site there would be an early equitable allocation of all liability at the site and that that mode of proceeding would encourage in a handsome early timely cleanups and if you were to instead piecemeal out each bucket of costs that's being sought you would end up with multiple suits more money going into litigation than cleaning up sites but i guess and i understand that line of argument but if you could just briefly respon though not discourage you please go along with your view companies from voluntarily taking up the remediation effort i don't believe so because actually it's quite the opposite section one thirteen the contribution provision which was added later than one second was actually intended to be a kind of character to encourage p r p is to not to have the confidence to know that if you go ahead and you take on these cleanup obligations you will be able to see contribution from many others who are responsible for it for who are liable if that p r p is at the site but along with that care it congress and acted was a stick and the stick is the limitations period the limitations period while providing rights to do p r piece so to see contribution and thereby have confidence that the regain their past the limitations period creates a stick to ensure that they do so in a timely manner rather than bring that they have to bring it because somebody has sued them for something connected with that rate and the idea is that congress that this was congress's judgment of how it's supposed to work is that once there they've been sued and litigation has begun and liability at the site has been placed at issue in a suit under one seventh congress wanted that p r p who had been sued to be able to assert contribution claims against anyone else at the site and would be a p r or whatever the other claim it would have been that kind of a claim until they paid a hundred dollars to some other company and one third pay that they can sue not only for the part of that money they paid contributed to the verdict or that settlement but they must convert what would have been a direct into a contribution you know it's it's the idea that there is a slight difference between classic contribution and what congress enacted in section one thirteen f and that is in section one thirteen f congress authorized a contribution claim during or following a suit under one zero seven so before there has been an adjudication of liability before you know the precise bounds of liability of for any particular subset of costs congress thought it appropriate to allow to file that contribution claim before the at the liability had been set that is a slight difference than the classic contribution in tort law but the reason that the reason that congress authorized that is precisely in order to ensure that all contribution claims all related contribution claims that a site could be brought together in a single civil suit to ensure an efficient comprehensive allocation of liability at the site early in early in the cleanup process and thereby channel everyone's efforts towards cleanup rather than more successive rounds of litigation over each subset of costs your honor i see i'm i'm over my time and so if i let me begin where the government just left off under the common law there is recognized a contingent contribution claim that's in restatemen third of towards section twenty three cited in or briefs but it's an comment be so under both section one thirteen f one and the common law you have a contingent claim for contribution and the scope of that contingent claim is defined by the underlying lawsuit let's call it lawsuit number one and here is what the water purveyors said in the castaic lake case which will call lawsuit number one their first claim for relief was for costs incurred by plaintiffs they weren't trying to litigate liability for the entire site all parties all comers it was a simple suit by the water programmers to recover the costs that they themselves had incurred and that's right in line with what the supreme court said in atlantic research let me quote from page one thirty eight of the case where the court said one o seven a permits a p r p to recover only the costs it has incurred in cleaning up the site that was what was at issue then water purveyors costs incurred by the water purveyors so finally i think the government has missed the fact that in atlantic research the supremes court address exactly the controlling issue here of what did congress mean by contribution and on one thirty eight to one thirty nine even if you ignore footnote six it answered that question and made clear that one thirteen f one allows a party to seek recovery of money that is paid to someone else over two pages of tax that's the one thing that's clear even though the government might quibble over the details that contribution is under one thirty f one has the same meaning as under common law it's to recover a share of money that you paid to someone else  ask so do you ascribed to the seventh circuit i think because of bernstein and then the third circuit gear are they similar to these this action here they're similar in to the extent that the seventh bernstein didn't adopt the government's tripwire theory that when she hit the trip wire you have to bring all your claims no matter what the subject matter bernstein adopt sort of approach of looking at each cla individually and i think that's what has to be done here you have to look at what was alleged in our complaint in this case if in fact it was for out of pocket directly incurred costs then it's a one zero seven eight action one thirteen f one just has no bearing because itself and that's why i think atlantic research controls where the supreme court has defined for this court and all other lower courts what contribution means thank