this case involves the redevelopment of a property in cranbury new jersey right around exit eight of the new jersey turnpike just the common core for the internet retail economy and has resulted in b development of a lot of sites this particular site was used historically by the united states for the production of munitions during world war two in the korean war and it was utilized for that purpose until nine hundred and fifty four when a massive explosion occurred at the site initials were spread all across the property the site was shut down and lay fallow for many years until a subsequent owner of the property cranbrook development corporation decided to develop the property and then entered into discussions with the new jersey department of environmental protection to oversee the cleanup that initiated an foresman action by the d p p which resulted in the issuance of a directive which is akin to a unilateral order under is one of seven and one hundred and thirteen usually exclusive no your honor i believe the supreme court has addressed that issue in the atlantic research decision right there complimentary what is one that mean practically the complimentary and overlapping according to the supreme court you honor and the court needs to look at the specifics of the situation in order to determine which remedy is appropriate in this case we're dealing with mac sam we are in your client stepped right into the shoes of c d c d c right marcus language from the a c o amendment is is pretty clear step into the shoes language no further by billet so that sounds like it plugs into our decision in the gare which you said legit research left this open but our decision in a garret said you that my client is exempt from circle i believe and is not liable a gear addresses parties that will all liable parties either as owner operators or rangers for disposal at that particular site and again the p p status was instituted by congress to promote parties like my client to come in and take over clean ups of properties of brownfield so that they can be put back into productive use it liability and they knew what they were getting into which was this was a site that was going to require ryan mental remediation correct you're on what i am i it just seems pretty obvious of what am i missing the fact that you're my client pa purchase the site it was paid one million eight hundred thousand dollars in order to be reimbursed for cleanup obligations that had taken on by another responsible party not by the seller of the property the purpose of creating this exemption from liability is to create a one of seven claim on behalf of a b s p p which is a very much more potent claim and incentive to a party to take on cleanup like this because maybe so but when you see when you become part of your agreement that says this is an administrative settlement then it's one hundred and thirteen in order to take over a court take on a cleanup in the state of new jersey you have to enter into an oversight document with the new jersey department of  matter of state law so my client entered into that oversight document in order to satisfy state law and to obtain the oversight of d p and that ensure that the cleanup was done in a proper fashion you pled that in response to the u s a s counter claims as a defense to liability the united states you pledged that you had this agreement you were using it as a settlement as a shield and so year the contribution claim and the right of other parties to allocate the costs right in this case my client has no liability because they satisfy that we have p p rick this is being hotly disputed whether your client has liability and he's using this as a shield even our one speaks of potential liability yes why isn't this a settlement you pled it is a shield you you are now in the realm of one hundred and thirteen you're not in the realm of one hundred and seven anymore i understand your position is you be f p p means that any liability goes away but even our one speaks of potential liability and this is a shield for against that why ability will you out of the supreme court in atlantic research in footnotes essentially a profit already development company they came in paid money to buy a site took over the clean up obligations of the responsible parties this was all done voluntarily and this is what congress intended in establishing the four let me try that again assume that we disagree with you you're continuing to vigorously press the one o seven or you just assume for the sake of this question that that we disagree with you on that assume that because the district court erred on the disposal issue could you tell us what happens then or you without a remedy then is it that important for you to win on the one of seven  let's grant that the puncturing the tank itself is a release but not to dispose a pig but you did a lot more than just the puncturing of the tank there's the mixing with the soil there's redeposit ing it there's the seven acre landfill would be as best as aluminum and barium there's barrels of white goo that don't get disposed of properly there's munitions explosive concern that get left uncovered i mean the government's br uncovered some of them you read deposited in the soil some of them you've moved around why don't they just knock you out to be p p status because those look more or less like just  some kind of accidental ready release and more like the active of you know the placing the deposit of soil that doesn't belong there when it's contaminated your honor the government of libel part of an opportunity to participate in this could up as monday morning quarterbacking what happened it is pointing at incidents that they claim defeats be peepin status because they were disposed at the site or who didn't exercise appropriate care here the entire cleanup was overseen by the new jersey department of environmental protection the cleanup has proceeded according to the plans approved even if you didn't sort of when you go and release your honor those materials were the lease was reported to the d p immediately by the contractor the the  rated that copy of that that's all of those things were addressed your honor in when you're doing a clean up the site you don't know what's in the ground you can do borings and wells and you can try to determine what but until you actually start digging the contractor puts the backhoe into the ground it starts digging you don't what you're going to hit in this case the contractor hit us today and it was spotted appropriately that all the spall the requirement passed be read in harmony with all the other requirements which deal with due care with notifying agencies with cooperation with providing access to the agency to oversee the cleanup all of these things were done by by the climate courses very successful clean overtime but you've just given us some articulate arguments as to why you were working hand in glove with n g d p unfortunately they're not in your brief your brief is all about whether reintroducing the contaminated soil was a with the deal in the contaminates so it was a disposal at all so it seems to me that that rigol ter compliance is a defense or something is forfeited why should we consider is there any place in your briefing where you preserve this argument before a court i didn't find it i believe it's in the reply brief will we address those arguments that we have it's in the open in britain where you're the undisputed findings of fact that we attached so the record here exactly but if you're right on disposal if remains required anyway because the district judge never got to that other p because this is a statute of limitations case under either potentially applicable statute of limitations c b y's contribution action which was filed more than nine years after that right accrued is  series to reach the b f p p issue because that issue only arises with respect to the united states contribution counterclaim oh i see now i understand why he was fighting so hard i  th circuit explained in hobart those two cases were decided before the supreme court decided it went to greece church and before the supreme court decided cooper industries and those cases made clear a point that court of appeals since it went to research has explained they don't overlap in the situation here when a party like c b y enters into an administrative settlement when that occurs  to be a gap in the statute is there not it refers to certain types of administrative settlements a triggering events not this type of administrative settlement and our position is that this court doesn't need to resolve that difficult question of circle interpretive law because and a many courts have noted circle is not a model of clarity but this isn't the case when you decide that question because under either potentially applicable static you want to take i did a special statute of limitations the congress created for contribution actions under strict law occasion limitations applicable by default in every civil action with exception applicable here against the united states this contribution actions on timely will keep so that would result for the u never a void in the federal statutory law so the borrowing doc is making the case against the u s government so we could rest on that group but if we wanted to rule ready in a way that would resolve this for for private parties going forward as well would that be the right course we could look into those cases again though our position is that that's a difficult question we had some textual support on our side we readily admit that this type of administrative settlement is not one of the filed its action four and a half years after its right occurred it didn't do that it sat on its right for nine years and congress has partially way the government's sovereign immunity in these types of cases but it still has set a six year statute of max and the successor in interest to the owner at the time that as a distant teary holes were introduced to the site immediately filed an action against the united states after entered into to settle ment a green into the administrative consent order with new jersey struggled with trying to to work with these definitions because release refers to disposing into the environment it seems extremely not only in equitable mcqua inconsistent with the whole concept of the brownfield amendments to treat mr gerunds client as a disposer when it's understood it has to remediate or they're going to come to the site and start digging stuff up if digging stuff up can be disposal how could they possibly satisfy the appropriate peer requirement it help me out with your honor i'm going to answer that question st i would like to reiterate that there is absolutely no read need to reach the question of their alleged b s p p status in this case because it's only right and he when he said there are but to answer your question as mr mclaren stated just a moment ago you don't know what's in the ground when you're a developer that's why circle has set up a system of incentives for developers to settle you can either take the assurance of a settlement with the state and circle incentivizes potential developers to saddle because it means that cleanup happens more quickly brings the parties to the bargaining table and then to clean up table as as much as this court has noted several times or you can take  insurance where you can proceed under the uncertainty that no no disposal which is a very broad term as this court has noted and has every other court of appeal to consider the issue has noted you can you can proceed under that uncertainty roll the dice hope that release doesn't happen and if it does then you can assert b f p p status as a defense in the suit against new jersey this quirks the two cases the most the two most important cases about the f p p status and and past response costs of the state so cirque was set up a strict liability scheme there are potential limits on p r p liability one of those is proving  that opinion the district court said that the the minute the the tank us t was punctured they violated the disposal required i don't read the district court opinion that clearly on page fourteen  pinpointed precisely which of those actions or what it is actions collectively constituted maybe taking it in moving it into the burbage cetera that would have been a new disposal if they just puncture the tank and belabor this anymore but one last question on it if we don't need to reach it why did this record reach it and why didn't you tell the district court or maybe you did say you know look this is a non issue of work if the government is correct this is a one thirteen case not a once one of seven case and it's time board stop i believe we made that point clear and our district court brief in the district court chose to reach it this court can uphold the judgment of the district work without reaching out issue because the only claim they have is a contribution when it's time barred and so i don't have any insight into why the district court chose to to to reach that issue but you did make the same argument there that you're making here that that we think that the undisputed facts demonstrate that they're liable party not just on the disposal issue but on the three other criteria that we grieve below and on appeal but if this panel does reach it's an interesting question we know whether they can waive a defense available to them by statute is not an issue to it we believe here that anyone has argued here in this settlement language is very clear that that defense  if you don't mind secure would you begin with the question of why nine years if you can share yes you are off again with that this cleanup originally was estimated to cost somewhere on the order of eight million dollars and a mission is cleanup is very different than a chemical cleanup because you're basically looking for hairpins all over the place and it requires screening through remote methods in the natural excavation so what happened here is that the course of the investigation and cleanup which were done in tandem resulted in a much wider areas of the impacted property which led to significantly increased cost and the cleanup costs you're well exceed fifty million dollars at this point and in terms of why it took nine years my client believes that it is exempt from liability that's the whole reason it entered into this arrangement here because i protected by congress from liability and therefore would have a one of seven claim which is a much more potent claim and the claim that you would choose to use because it has significant impacts on the  innocent party is a entitle to join several liability as opposed to several liability where you have to prove the spirit of party here in the united states created all of the munitions contamination but that's a significant factor in these types of cases response to ju critical to a brownfield we developed a good bit it sure sounds like based on everything you're telling us at the time you're calling acquired the property they were operating under operating under the belief that they would be able to pursue a one of seven dollars cost recovery action and not be limited to a status but we talked about how we wanted a tank of the contract a puncture of the tank immediately report of the discovery to d p immediately excavated soil consulted with the d p hotline on how to deal with this and the material was screened for missions and then deposit it under a cap at the site and those that section the brief also refers to the undisputed statement of fact which was addressed like to very specific triggers none of which exist here a judgement by a court which is where someone pursues a party and gets a judgment that they're responsible for costs and administrative order under section one hundred and twenty two shey which is a government has him ceded the point it's not listed this is not listed but you're not arguing that there's no stitch limitations right you agreed that would be absurd to say there's no stitch of it yes your honor so isn't the normal course to borrow the most closely what's what's a closer analog than that the caption itself the cleanup action itself that was performed here which took nine years because it took nine years to investigate where all the munitions were is there a nine year period or a ten year period anywhere in the wall that we would borrow i don't see it well in a court in the course of that nine years the trigger for when the client was able to actually initiate the remedial action occurred which didn't occur to two thousand and thirteen we were not able to come to the conclusion that the triggering event should be the remedial action for this the remedial action work plan is that is the document that was approved by the department that provided for what the remedial action was not a removal action what the remedial action was and how it will be implemented and once that was approved the court was then able to go and get permits land use permits etc in order to actually do the cleanup which took rather the what the action insufficient time you had to sorry says no way out a lot and i'm trying to draw a nexus between your reference to the remedial action and the beginning what is your toll hole in the law that points to the commencement of the remedial action i see that for cost recovery actions in g two but i don't see anything  g three for contribution actions that suggests that the right time is for the commencement of the remedial action not for say the date of a judgment of the date of a settlement what what is the law supports you just went back to square one and we're nowhere right we all we all agree that that doesn't say that administrative settlement like this one is a trigger would try to find out what the trigger is if you could help us and i guess  i heard you say the clean up is the trigger it's onsite initiation on site construction and one day in one day there's a there's a document on the record in two thousand and thirteen when the permits were proved that allowed the on site t of the remedial action here i i would submit you are that it couldn't have started before two thousand and thirteen and you know the pervert's didn't have the permits really a tolling or you miss what it is you're saying we couldn't get going until