United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-1468

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Morrison Enterprises, LLC, *

*

Plaintiff/Appellant, *

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City of Hastings, Nebraska, *

*

Plaintiff, *

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 v. *

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Dravo Corporation, *

* 

Defendant/Appellee. *

*

__________________ *

*

United States, *

*

Amicus on Behalf *

of Appellee. *

___________

Appeals from the United States

No. 10-1469 District Court for the

___________ District of Nebraska.

Morrison Enterprises, LLC, *

*

Plaintiff, *

*
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City of Hastings, Nebraska, *

*

Plaintiff/Appellant, *

*

 v. *

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Dravo Corporation, *

* 

Defendant/Appellee. *

*

__________________ *

*

United States, *

*

Amicus on Behalf *

of Appellee. *

___________

Submitted: November 17, 2010

Filed: April 5, 2011 

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Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.

___________

RILEY, Chief Judge.

Morrison Enterprises, LLC (Morrison) and the City of Hastings, Nebraska

(City) (collectively, appellants), and Dravo Corporation (Dravo) are liable within the

meaning of the Comprehensive Environmental Response, Compensation, and Liability

Act of 1980 (CERCLA), as amended, 42 U.S.C. § 9601 et seq., for hazardous

substances released at the Hastings Ground Water Contamination Site (Site).

Appellants each sued Dravo under § 107(a) of CERCLA, 42 U.S.C. § 9607(a),

seeking to recover some of the costs they incurred responding to contaminated ground
1

The Honorable Warren K. Urbom, United States District Judge for the District

of Nebraska.

2

The NPL is a list of national priorities among the known releases or threatened

releases of hazardous substances throughout the United States, and serves to identify

those sites or releases that appear to warrant further investigation and remedial action.

See 42 U.S.C. § 9605(a). 

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water at the Site. The district court1

 denied appellants’ motions for summary

judgment and granted summary judgment to Dravo on appellants’ cost-recovery

claims. The district court held (1) CERCLA § 113(f), 42 U.S.C. § 9613(f), provided

appellants’ exclusive remedy to recover response costs incurred removing

contaminants from the City’s ground water, and (2) the City’s water supply system

claims were untimely. We affirm. 

I. BACKGROUND

A. Facts

In 1983, the City attempted to restore a long-closed water production well to

service, but immediately received complaints about the water’s foul taste and odor.

Responding to the complaints, the Nebraska Department of Health (NDOH) and the

United States Environmental Protection Agency (EPA) began investigating

contamination in the City’s wells. On June 10, 1986, the EPA added the Site to the

National Priority List (NPL).2

In 1985 and 1986, the EPA notified a number of entities, including Morrison,

the City and Dravo, that they were potentially liable under CERCLA for releases and

threatened releases of hazardous substances at the Site. The EPA determined the

contamination at the Site originated from seven source areas, or subsites, three of

which are relevant to these appeals: the FAR-MAR-CO Subsite, the Colorado Avenue

Subsite and the North Landfill Subsite. Hazardous substances from each of the

subsites entered the City’s ground water and were remediated in part by the operation

of the “Well-D system” (Well-D), a ground water extraction and treatment system
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located at the FAR-MAR-CO Subsite, down gradient of the relevant sources of

contamination at all three subsites.

The EPA identified Morrison as potentially liable at the FAR-MAR-CO Subsite

for response costs necessary to remediate releases of hazardous substances at a grain

elevator owned and operated by one of Morrison’s predecessors. Dravo and others

were identified as potentially liable at the Colorado Avenue Subsite for releases of

trichloroethylene (TCE) and other volatile organic compounds (VOC) in connection

with the use of a solvent containing TCE as a degreaser in manufacturing operations

at the site. The City, Dravo, and others were identified as potentially liable for

releases of TCE and other contaminants of concern (COC) at the North Landfill

Subsite, a former landfill operated by the City. During the City’s operation of the

landfill, Dravo disposed of industrial waste containing TCE there. 

1. FAR-MAR-CO Subsite

In 1991, Morrison entered into the first of a series of administrative settlements

with the EPA, known as administrative orders on consent (AOC), pursuant to which

Morrison agreed to perform designated clean-up activities at the FAR-MAR-CO

Subsite. In 1996, Morrison entered into a second AOC, pursuant to which Morrison

agreed to operate Well-D to extract and treat ground water at the FAR-MAR-CO

Subsite and reimburse the EPA for response costs incurred at the subsite.

One stated purpose of the 1996 AOC was to reduce three specific COCs found

in ground water at the FAR-MAR-CO Subsite at concentrations hazardous to human

health and the environment—TCE, carbon tetrachloride (CT), and ethylene dibromide

(EDB). Having been found a “liable party” by the EPA within the meaning of

§ 107(a), Morrison agreed to finance and operate Well-D to remove each of those

COCs. Well-D has been operating since 1997. Morrison maintains it has never used

or released TCE anywhere within the Site and that the FAR-MAR-CO Subsite has

never been identified as a source of TCE.
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In September 2007, the EPA issued a record of decision for the FAR-MAR-CO

Subsite requiring the extraction of contaminated ground water at Well-D. On July 29,

2008, the EPA filed a civil action in the district court against Morrison under §§ 106

and 107, seeking an order compelling Morrison to operate Well-D and reimburse the

EPA for response costs incurred at the FAR-MAR-CO Subsite. In a consent decree

filed October 8, 2008, the EPA and Morrison resolved Morrison’s potential liability

for contamination at the Site under §§ 106 and 107. The 2008 consent decree

continued to rely on Well-D as the primary method of cleaning ground water at the

subsite.

In addition to contaminants originating at the FAR-MAR-CO Subsite, ground

water extracted and treated at Well-D contains TCE and other contaminants

originating at the Colorado Avenue and North Landfill Subsites. In agreements dated

June 1995 and July 1997, Morrison, the City, and one other party agreed to coordinate

efforts and allocate certain costs associated with the investigation and cleanup of

releases of hazardous substances from the North Landfill and FAR-MAR-CO

Subsites. Under those agreements, the City contributed to the construction and

operation of Well-D. Dravo did not join those agreements. 

2. North Landfill Subsite

In October 1992, the City entered into an AOC with the EPA pursuant to which

the City agreed to undertake certain response actions at the North Landfill Subsite.

In 1998, the EPA sued the City and Dravo under §§ 106 and 107. On August 13,

1998, the City and Dravo jointly entered into a consent decree with the EPA to

perform a source-control remedial action at the North Landfill Subsite. Following a

second suit by the EPA in 2007, the City and Dravo entered a second consent decree

requiring the City and Dravo to participate in operating Well-D to contain the

migration of VOCs in the City’s ground water and to coordinate efforts with the

responsible parties at the FAR-MAR-CO Subsite. The 2007 consent decree also
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requires the City and Dravo to pay the EPA’s response costs and provides contribution

protection to the settling parties. 

3. Colorado Avenue Subsite

In 1993, the EPA issued a unilateral administrative order requiring Dravo to

remediate soil and ground water contamination at the Colorado Avenue Subsite.

Several of the City’s water production wells are within the vicinity of the Colorado

Avenue Subsite and were contaminated with TCE. At the recommendation of the

NDOH, the City removed the contaminated wells from service and relocated parts of

its water supply system by installing new wells, mains, and related improvements.

Though the exact date is unknown, the City began its ongoing efforts to provide

alternative water supplies at least as early as 1986. 

On September 27, 2001, the government sued Dravo under § 107(a) to recover

costs incurred in response to the release of hazardous substances at the Colorado

Avenue Subsite. See United States v. Dravo, No. 8:01CV500 (D. Neb. filed Sept. 27,

2001). On November 26, 2001, Dravo joined the City as a third-party defendant,

seeking contribution from the City for the federal government’s response costs. The

City asserted counterclaims against Dravo for contribution. The City alleged the

hazardous substances released by Dravo migrated and contaminated the City’s ground

water, requiring water system replacements at significant cost to the City.

On January 24, 2006, Dravo and the City entered into a settlement and release

agreement to resolve certain claims between them. As part of the agreement, the City

reserved its claims against Dravo for any contamination migrating from the Colorado

Avenue Subsite to other locations in the Site, including Well-D. On May 24, 2006,

the district court approved a consent decree requiring Dravo to take various actions

to clean up TCE contamination at the Colorado Avenue Subsite. 
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B. Prior Proceedings

On July 3, 2008, appellants filed a seven-count complaint against Dravo setting

forth the following causes of action: cost recovery under § 107 (Count I); declaratory

judgment under § 113(g)(2) (Count II); noncontractual indemnity (Count III);

negligence (Count IV); private nuisance (Count V); public nuisance (Count VI); and

trespass (Count VII). Appellants jointly brought Counts I and II. Morrison brought

Count III alone, and the City brought Counts IV-VII alone. Neither Morrison nor the

City brought a claim for contribution under § 113(f). In its answer, Dravo pled as its

second affirmative defense that appellants could not recover under § 107 because

“their claims [were] for contribution.” Appellants moved to strike the defense,

arguing Dravo’s defense would only confuse the issues.

On November 6, 2008, the district court denied the motion, noting there were

material disputed factual issues regarding the source of TCE at Well-D. The district

court also stated Morrison had failed to establish Dravo’s defense was insufficient as

a matter of law. The district court’s scheduling order established February 13, 2009

as the deadline for filing motions to amend the pleadings. 

On February 24, 2009, appellants amended their complaint, adding a breach of

contract claim (Count VIII). Appellants brought Counts I-III jointly and the City

brought Counts IV-VIII alone. Appellants did not include a contribution claim under

§ 113(f). 

On March 6, 2009, Dravo answered the amended complaint and filed four

counterclaims against appellants. Counterclaims I-III consisted of contribution and

indemnification claims contingent on Dravo being found liable to appellants.

Counterclaim IV alleged Dravo was entitled to reimbursement from appellants for

Well-D costs incurred in connection with the North Landfill Subsite. Dravo continued

to include its affirmative defense asserting appellants were barred from pursuing a

§ 107(a) claim. 
3

The district court also dismissed Counts IV-VII, which the City does not

appeal.

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On June 19, 2009, Dravo moved for partial summary judgment on the City’s

water supply system claims, arguing the City’s § 107 cost-recovery claim was barred

by the applicable statute of limitations. Finding the replacement of the City’s water

system to be a remedial action rather than a removal action under CERCLA, the

district court dismissed the City’s claims under Counts I and II as time-barred.3

 The

district court also rejected the City’s argument that the present case was a “subsequent

action” for response costs because the City’s purported “initial action” (a counterclaim

in an earlier action) unambiguously was one for contribution only. 

On July 15, 2009, Dravo again moved for partial summary judgment, this time

on appellants’ Well-D claims, arguing appellants could not pursue a cost-recovery

action under § 107. That same date, appellants moved for summary judgment on

Dravo’s liability under § 107 and Dravo’s counterclaims. On November 24, 2009, the

district court granted Dravo’s motion in part, finding § 113(f) provided appellants’

exclusive remedy. The district court denied as moot appellants’ motions for summary

judgment with respect to Counterclaims I-III and Dravo’s liability under § 107. The

district court granted the City’s motion for summary judgment on Counterclaim IV

and Dravo voluntarily dismissed Counterclaim IV against Morrison. The City

voluntarily dismissed Counts III and Count VIII. 

After the district court dismissed Morrison’s § 107 claim, Morrison sought

leave to amend its complaint to assert a claim under § 113. The district court denied

the motion, deciding Morrison failed to demonstrate good cause and did not act

diligently in its efforts to meet the scheduling order. The district court entered

judgment January 26, 2010. Appellants appeal the district court’s summary judgment

rulings on Counts I and II. Morrison also appeals denial of its motion for leave to

amend.
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II. DISCUSSION

A. Standards of Review

“We review the district court’s grant of summary judgment de novo.” Cole v.

Homier Dist. Co., 599 F.3d 856, 864 (8th Cir. 2010). “Summary judgment is

appropriate when the record, viewed in the light most favorable to the non-moving

party, demonstrates that there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law.” Myers v. Lutsen Mtns. Corp., 587

F.3d 891, 893 (8th Cir. 2009). See also Fed. R. Civ. P. 56(a) (amended effective Dec.

1, 2010). We also review the district court’s interpretation of CERCLA de novo. See

Atl. Research Corp. v. United States, 459 F.3d 827, 830 (8th Cir. 2006). We review

the district court’s denial of Morrison’s motion for leave to amend for an abuse of

discretion. See Doe v. Cassel, 403 F.3d 986, 990 (8th Cir. 2005). A district court’s

finding of delay is subject to review for clear error. See id.

B. Well-D 

1. CERCLA Framework

“Two provisions of [CERCLA]—§§ 107(a) and 113(f)—allow private parties

to recover expenses associated with cleaning up contaminated sites.” United States

v. Atl. Research Corp., 551 U.S. 128, 131 (2007). Though complementary, “§§107(a)

and 113(f) provide two ‘clearly distinct’ remedies,” id. at 138, “to persons in different

procedural circumstances,” id. at 139 (quotation omitted). Section 107(a)(4)(B)

permits a private party who has voluntarily incurred costs cleaning up a site for which

it may be held liable to recover necessary response costs from another liable party

through a direct recovery action. See id. at 133-34, aff’g Atl. Research Corp. v.

United States, 459 F.3d 827 (8th Cir. 2006). 

Section 113(f), enacted after § 107 as part of the Superfund Amendments and

Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499, 100 Stat. 1613 (1986),

“authorizes one [potentially responsible party] to sue another for contribution in

certain circumstances.” Id. at 132. Section 113(f)(1) allows a person to seek
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contribution from any other person who is liable or potentially liable under § 107(a)

during or following a civil action under §§ 106 or 107. Section 113(f)(3)(B)

authorizes “[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” to seek contribution from any person

who has not so resolved its liability. 

The term “contribution” has its traditional meaning of a “tortfeasor’s right to

collect from others responsible for the same tort after the tortfeasor has paid more than

his or her proportionate share, the shares being determined as a percentage of fault.”

Atl. Research, 551 U.S. at 138 (quoting Black’s Law Dictionary 353 (8th ed. 2004)).

The “right to contribution under § 113(f)(1) is contingent upon an inequitable

distribution of common liability among liable parties.” Id. at 139. 

The right to contribution under § 113(f) is more limited than the right to recover

costs under § 107(a). See Atl. Research, 459 F.3d at 832. A person seeking

contribution under § 113(f) may be subject to the equitable allocation of response

costs, see § 113(f)(1), and may not recover from previously settling parties, see

§ 113(f)(2). Such claims are also subordinate to the rights of the United States or a

State, see § 113(f)(3)(C), and subject to a shorter limitation period than cost-recovery

claims, see § 113(g)(2)-(3). 

To ensure the continued vitality of the precise and limited right to contribution

Congress set forth in § 113, we have held the right to bring a cost-recovery action

under § 107 “is available to parties who have incurred necessary costs of response, but

have neither been sued nor settled their liability under §§ 106 or 107.” Atl. Research,

459 F.3d at 835. “[L]iable parties which have been subject to §§ 106 or 107

enforcement actions are still required to use § 113.” Id. at 836-37. See also, Niagara

Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 128 (2d Cir. 2010)

(holding that allowing a liable party whose claims fit § 113(f) “to proceed under §
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107(a) would in effect nullify the SARA amendment and abrogate the requirements

Congress placed on contribution claims under § 113”); ITT Indus., Inc. v.

BorgWarner, Inc., 506 F.3d 452, 458 (6th Cir. 2007) (“To maintain the vitality of §

113(f), however, [potentially responsible parties] who have been subject to a civil

action pursuant to §§ 106 or 107 or who have entered into a judicially or

administratively approved settlement must seek contribution under § 113(f).”).

In affirming our decision in Atlantic Research, the Supreme Court noted the

potential for overlap between §§ 107(a) and 113(f), but declined to decide whether a

liable party sustaining expenses pursuant to a consent decree following a suit under

§§ 106 or 107(a) could recover such compelled costs under § 107(a), § 113(f), or both.

Atl. Research, 551 U.S. at 139 n.6. We necessarily reach that issue in these appeals,

and hold that § 113(f) provides the exclusive remedy for a liable party compelled to

incur response costs pursuant to an administrative or judicially approved settlement

under §§ 106 or 107. See Atl. Research, 459 F.3d at 830 n.4 (explaining our holding

in Dico, Inc. v. Amoco Oil Co., 340 F.3d 525, 531 (8th Cir. 2003), that a liable party

cannot bring an action under § 107 “remains viable for those parties which still have

recourse to relief under § 113”). 

2. Morrison’s Response Costs for Well-D

The district court determined Morrison could not use § 107(a) to recover

response costs for removing TCE at Well-D because Morrison was a liable party that

had been subject to a § 107 enforcement action as evidenced by the amended 1991

AOC, the 1995 AOC amendments, the 1996 AOC, and the 2008 consent decree,

which obligated Morrison to operate Well-D to remove TCE and other hazardous

substances.

Morrison contends the district court erred in finding Morrison could not bring

a cost-recovery action because, in Morrison’s view, it “voluntarily” cleaned up TCE

contamination for which Dravo was legally liable. Denying any causal connection to
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releases of TCE anywhere in the Site, Morrison attempts to analogize its compelled

removal of TCE at Well-D to the plaintiff’s voluntary clean up of hazardous

substances in Atlantic Research. According to Morrison, “[b]y ‘voluntarily,’ the

Supreme Court [in Atlantic Research] meant actions taken ‘without any establishment

of liability to a third party,’ such as through a judgment or court order.” See Atl.

Research, 551 U.S. at 139. Morrison’s understanding of Atlantic Research and its

application here is incorrect. 

Morrison ignores the terms of the AOCs by which it is bound. Unlike the

voluntary plaintiff in Atlantic Research, which had never been subject to an action

under §§ 106 or 107, Morrison has been sued under § 107 for releases and potential

releases of hazardous substances at the FAR-MAR-CO Subsite and entered

administrative settlements to resolve its liability. Notwithstanding Morrison’s

assertions to the contrary, the 1996 AOC specifically obligates Morrison to operate

Well-D to remove TCE from contaminated ground water as a “liable party” under

§ 107(a). Morrison is subject to penalties if it fails to do so. Response costs incurred

pursuant to such administrative settlements following a suit under § 106 or § 107(a)

are not incurred voluntarily. See Atl. Research, 551 U.S. at 139 n.6. The district court

correctly concluded Morrison could not maintain a cost-recovery action under §

107(a).

3. City’s Response Costs for Well-D

The City likewise did not voluntarily incur response costs operating Well-D.

As thoroughly explained by the district court, the City was subject to enforcement

under §§ 106 and 107 and resolved its liability to the federal government in

administrative and judicially approved settlements, including the 1992 AOC, the 1998

consent decree, the 2004 AOC, and the 2007 consent decree, culminating in the

operation of Well-D to remediate contamination in the City’s ground water.
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Analyses of the City’s ground water between 1985 and 1995 revealed

contamination down gradient of the North Landfill Subsite caused by the release of

TCE. Noting “the past, present or potential migration of hazardous substances

currently located at or emanating from the Subsite, constitutes actual and/or threatened

‘releases,’” the 1992 AOC obligated the City, as a liable party, to perform certain

remedial actions at the site. The 1998 consent decree and the 2004 AOC also address

the City’s liability for migrating TCE. By the City’s own account, the 2007 consent

decree requires the City “to finance and perform the work necessary to implement the

specified remedies, including continued operation of the Well-D System to contain the

migration of TCE plumes.” The City has not operated Well-D voluntarily. 

The City contends its participation in settlements at the North Landfill Subsite

does not preclude a cost-recovery action against Dravo under § 107(a). In support of

this assertion, the City cites three cases, W.R. Grace & Co.-Conn. v. Zotos Int’l, Inc.,

559 F.3d 85, 91-93 (2d Cir. 2009), Kotrous v. Goss-Jewett Co. of N. Cal., Inc., 523

F.3d 924, 934 (9th Cir. 2008), and Schaefer v. Town of Victor, 457 F.3d 188, 191-92,

201-02 (2d Cir. 2006), each permitting a § 107 action. 

We agree with the district court that each of the City’s cases is distinguishable.

Unlike the City, none of the plaintiffs in the cited cases had resolved its § 107 liability,

nor entered into administrative or judicially approved settlements within the meaning

of § 113(f). See W.R. Grace, 559 F.3d at 91-93; Kotrous, 523 F.3d at 927; Schaefer,

457 F.3d at 191-92. This difference deprives those cases of any persuasive value. 

The City contends the district court erred in focusing on the remedy, Well-D,

rather than Dravo’s liability for contamination originating at the Colorado Avenue

Subsite, which the City stresses is a separate “facility” under CERCLA. According

to the City, each of the settlements the City entered addressed its liability at the North

Landfill Subsite, not the Colorado Avenue Subsite, making the City’s construction,
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operation and maintenance of Well-D to clean up contamination from the Colorado

Avenue Subsite voluntary.

The City’s focus on specific facilities within the Site is entirely too narrow

given CERCLA’s comprehensive remedial purpose and broad reach. See, e.g.,

Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930, 936 (8th Cir. 1995). The term

“facility” includes “any site or area where a hazardous substance has been deposited,

stored, disposed of, or placed, or otherwise come[s] to be located.” 42 U.S.C.

§ 9601(9)(B). Under § 107(a), “[l]iability is strict and is typically joint and several.”

United States v. Hercules, Inc., 247 F.3d 706, 715 (8th Cir. 2001). “[O]nce a party is

liable [under § 107(a)], it is liable for its share, as determined by [§ 113(f)], of ‘any’

and all response costs, not just those costs ‘caused’ by its release.” Control Data, 53

F.3d at 936. 

Some of the releases of hazardous substances for which the City and Dravo are

liable may have initially originated at different subsites, but both are responsible for

the release of TCE into the City’s ground water within the Site. Because the TCE

contamination from the North Landfill Subsite and the Colorado Avenue Subsite has

migrated to the FAR-MAR-CO Subsite, the district court correctly concluded the City

must use § 113(f) to allocate responsibility for response costs incurred operating WellD to remove TCE accumulating there.

 

4. Common Liability

In an argument closely related to Morrison’s claim it voluntarily incurred

response costs for TCE, Morrison contends it could not seek contribution from Dravo

pursuant to § 113(f) because Morrison and Dravo released different contaminants at

different facilities. In Morrison’s view, because Morrison has never been subject to

liability under § 107 for response costs necessary to address TCE from the Colorado

Avenue Subsite or anywhere else, Morrison does not, as a matter of law, share

“common liability” with Dravo necessary to support an action under § 113(f).
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The City similarly argues it does not have a right of contribution against Dravo

because the City is not liable for hazardous substances released at the Colorado

Avenue Subsite. According to the City, neither the AOCs and consent decrees by

which it is bound, nor its operation of Well-D create any common liability with Dravo

because “[c]ommon liability arises out of conduct leading to an indivisible harm - not

a single solution (i.e. the Well D System) to multiple, divisible harms.”

In its amicus brief, the United States asserts appellants’ interpretation

“fundamentally misconstrue[s] liability under CERCLA.” We agree. “Under

CERCLA, if a responsible party . . . releases hazardous materials into the

environment, and that release ‘causes the incurrence of response costs,’ then the party

is liable . . . . for ‘any other necessary cost of response incurred by any other person

consistent with the national contingency plan.’” Control Data, 53 F.3d at 936 (quoting

42 U.S.C. § 9607(a) (emphasis in Control Data)). “CERCLA focuses on whether the

defendant’s release or threatened release caused harm to the plaintiff in the form of

response costs.” Id. at 935; see also Hercules, 247 F.3d at 715-17 (explaining “it is

enough that response costs resulted from ‘a’ release or threatened release—not

necessarily the defendant’s release or threatened release”) (quoting 42 U.S.C.

§ 9607(a)(4)). 

When multiple parties are liable for response costs, the focus then shifts to

allocation. See Hercules, 247 F.3d at 715. “Allocation is a contribution claim

controlled by [§ 113(f)].” Control Data, 53 F.3d at 935. 

Applying the foregoing private cost-recovery framework in Control Data, a

factually similar case, we affirmed the trial court’s allocation of response costs

between liable parties based, in part, on the relative toxicity of the distinct hazardous

substances each released into the ground water at different sites. Id. at 932-34, 937-

38. Control Data owned and operated a facility that inadvertently discharged

trichloroethane (TCA) into ground water. Id. at 932. While testing the ground water
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beneath its facility, Control Data discovered tetrachloroethylene (PERC), which had

been released by Schloff Chemical at a different facility. Id. at 932-33. Control Data

installed a remediation system that simultaneously removed both TCA and PERC. Id.

at 933.

We held Control Data could seek contribution from Schloff for the operation

of the remediation system and the investigation of the ground water contamination

because, “[b]y not reacting and allowing the PERC plume to migrate, [Schloff]

became partially responsible for the hazardous condition of the Control Data site.” Id.

at 936. We reach the same conclusion with respect to appellants’ ability to seek

contribution from Dravo for response costs incurred operating Well-D to remove TCE

that migrated from the Colorado Avenue Subsite from the City’s ground water.

As the United States points out, Well-D removes hazardous substances for

which Morrison, the City and Dravo are each responsible, making them jointly and

severally liable for response costs incurred to operate it. Morrison is liable for

operating Well-D to remove TCE, CT and EDB which have migrated into the City’s

ground water at the FAR-MAR-CO Subsite. The City is liable for operating Well-D

to remove TCE and other hazardous substances released at the North Landfill Subsite.

And Dravo is liable for response costs to operate Well-D to remove TCE released at

the Colorado Avenue Subsite. Indeed, the 2007 consent decree requires Dravo and

the City to coordinate periodically with Morrison “to ensure the continued operation

of Well D.”

Morrison, the City and Dravo share liability for contaminating the City’s

ground water. They also share liability for operating Well-D to remove those

contaminants. This shared liability is sufficient to support a § 113(f) contribution

claim. Many of the factors appellants have raised with respect to common liability

may be relevant to the proper allocation of liability and response costs among the

parties but do not prevent appellants from seeking contribution from Dravo, subject
4

The United States as amicus suggests § 113(f) provides the exclusive remedy

for the City’s alternative water supply system claims because the City was sued under

§§ 106 and 107, but acknowledges that issue is not before us because Dravo did not

argue the exclusivity of § 113(f) before the district court or on appeal. 

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to any limitations CERCLA places on that ability. See Hercules, 247 F.3d at 715-19

(discussing divisibility of harm); Control Data, 53 F.3d at 935 (listing factors relevant

to resolving contribution claims).

C. City’s Water Supply System4

1. Initial Action 

The City asserts the district court erred in finding the statute of limitation

expired before the City filed an initial action to recover response costs incurred

relocating part of the City’s water supply system. The applicable statute of limitation,

CERCLA § 113(g)(2), 42 U.S.C. § 9613(g)(2), provides 

An initial action for recovery of the costs referred to in section [107] of

this title must be commenced—

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

removal action, except that such cost recovery action must be brought

within 6 years after a determination to grant a waiver under section

9604(c)(1)(C) of this title for continued response action; and 

(B) for a remedial action, within 6 years after initiation of physical

on-site construction of the remedial action, except that, if the remedial

action is initiated within 3 years after the completion of the removal

action, costs incurred in the removal action may be recovered in the cost

recovery action brought under this subparagraph.

Admitting § 113(g)(2)(B) has expired if the City’s relocation of part of its water

supply system beginning in the 1980s constitutes a remedial action, the City contends

§ 113(g)(2)(A) applies, but has not begun to run because the City’s work constitutes
5

The City argues, for the first time on appeal, its provision of alternative water

supplies cannot be a remedial action because the President has not made a

determination of cost effectiveness. “Absent exceptional circumstances,” not present

here, “we cannot consider issues not raised in the district court.” Shanklin v.

Fitzgerald, 397 F.3d 596, 601 (8th Cir. 2005).

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an ongoing removal action. Determining whether a response is a removal action or

a remedial action requires reference to CERCLA § 101(23)-(24), 42 U.S.C. §

9601(23)-(24). Section 101 provides in pertinent part 

(23) The terms “remove” or “removal” mean[] 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[s] include[], in addition, without being limited to . . . provision of

alternative water supplies . . . . 

(24) The terms “remedy” or “remedial action” mean[] 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 to cause

substantial danger to present or future public health or welfare or the

environment. The term[s] include[], but [are] not limited to . . . provision

of alternative water supplies . . . .

The inclusion of the provision of alternative water supplies in both definitions

complicates the analysis. The parties agree the City’s replacement of wells and mains

constitutes the provision of alternative water supplies, but disagree as to which

definition describes the City’s actions in this case.5
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In construing the statutory language and supporting regulations, we have

described removal actions as “those taken to counter imminent and substantial threats

to public health and welfare,” while remedial actions “are longer term, more

permanent responses.” Minnesota v. Kalman W. Abrams Metals, Inc., 155 F.3d 1019,

1024 (8th Cir. 1998); see also Exxon Corp. v. Hunt, 475 U.S. 355, 360 (1986)

(characterizing a removal action as a “short-term cleanup” and a remedial action as

“measures to achieve a ‘permanent remedy’ to a particular hazardous waste

problem”). “Generally, a removal action costs less, takes less time, and is geared to

address an immediate release or threat of release,” whereas a remedial action, which

“usually cost[s] more and take[s] longer,” “seeks to effect a permanent remedy to the

release of hazardous substances when there is no immediate threat to the public

health.” Pub. Serv. Co. v. Gates Rubber Co., 175 F.3d 1177, 1182 (10th Cir. 1999).

The district court concluded the ongoing activities the City performed for the

provision of alternative water supplies constituted a remedial action, not a removal

action under CERCLA. The district court reasoned the City’s two-and-a-half decades

of work were consistent with a permanent remedy for the lack of water that resulted

from the closing of contaminated wells, but were not in the nature of an emergency

cleanup or other interim response to an imminent threat to public health. We agree.

Although neither definition fits perfectly, we conclude the City’s replacement

of wells and mains more closely fits the definition of a remedial action. Having

already continued for over twenty-five years, the City’s ongoing relocation of part of

its water supply system lacks the immediacy and relatively short duration of a

removal. The City’s hope, that the clean-up actions will eventually return the

contaminated wells to service, does not alter our conclusion that retiring contaminated

wells and obtaining uncontaminated supplies of water to meet the needs of the City’s

residents for the forseeable future is more in the nature of a permanent remedy. 
-20-

The City contends that, in concluding the City’s work on the water supply

system was a remedial action, the district court improperly focused on the phrase

“consistent with permanent remedy” while ignoring the phrase “to prevent or

minimize the release of hazardous substances.” The City asserts that because the

“work on the water supply system did not clean one molecule of water or rid the

environment of any contamination whatsoever,” that part of the definition of remedial

action does not describe water system improvements. The City’s argument is

unavailing. 

First, the City’s narrow interpretation of the term remedial action would render

Congress’s specific inclusion of the provision of alternative water supplies in the

second sentence of the definition a nullity. By its inherent nature, the provision of

alternative water supplies never cleans contaminated water, nor rids the environment

of contamination. We “avoid interpreting a statute in a manner that renders any

section of the statute superfluous or fails to give effect to all of the words used by

Congress.” Westerfeld v. Indep. Processing, LLC, 621 F.3d 819, 824 (8th Cir. 2010).

Second, shutting down contaminated wells and providing alternative water

sources to prevent the City’s residents from drawing and using contaminated water

does “prevent or minimize the release of hazardous substances” to protect the public

health and welfare. The district court did not err in finding § 113(g)(2)(B) barred the

City’s claims for costs incurred relocating parts of its water supply system.

2. Subsequent Action

As an alternative to arguing its water supply system claim is an initial removal

action subject to § 113(g)(2)(A), the City contends its claim constitutes a subsequent

action within the meaning of the flush language of § 113(g)(2), subject to a three-year

statute of limitation that has not yet begun to run. Section 113(g)(2) provides in

relevant part: 
-21-

A subsequent action or actions under section [107] 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.

The City argues the action against Dravo in United States v. Dravo Corp., No.

8:01CV500 (D. Neb. filed Sept. 27, 2001), including the City’s counterclaims for

contribution, serves as the initial action for purposes of § 113(g)(2). More specifically,

the City asserts not only that its § 113 contribution claims constitute an initial action

under § 107, but also that, even in the absence of a prior claim against Dravo, the City

may rely on the government’s initial action against Dravo under § 107 to obtain the

benefit of the longer limitation period for subsequent actions. In the City’s view, there

is no requirement the plaintiff be the same in the initial and subsequent actions, so any

prior § 107 claim against the same defendant qualifies as an initial action regardless

of the plaintiff. Both arguments are without merit. 

We agree with the district court that the City’s previously filed counterclaims

against Dravo for declaratory judgment and contribution under § 113(f) do not

constitute an initial action to recover response costs under § 107(a). Section 113(g)(2)

refers to initial and subsequent actions to recover costs specifically under § 107, not

contribution claims under § 113(g). In addition, as Dravo points out, § 113(g)(2)(A)

and (B) each set forth a specific limitation period that applies to initial actions.

Section 113(g)(3) sets forth a separate limitation period for contribution claims.

Allowing a contribution claim to serve as the initial action under § 113(g)(2) would

impermissibly subject the action to two different limitation periods. The City’s

contention conflicts with the express language and the overall scheme of CERCLA.

 

We likewise reject the City’s unsupported contention that any prior § 107 claim

against the same defendant, regardless of the plaintiff, qualifies as an initial action.

Permitting any subsequent plaintiff to obtain the benefit of the longer limitation period

for subsequent actions as the City proposes “would largely write the limitations

restriction for initial actions out of the statute because many response actions will be
-22-

ongoing for decades.” United States v. Navistar Int’l Transp. Corp., 152 F.3d 702,

710 (7th Cir. 1998) (rejecting the government’s assertion § 113(g)(2) does not require

the same defendant in the initial action and the subsequent action). 

The City’s partial relocation of wells and mains already stretches back more

than twenty-five years and is expected to continue into the foreseeable future. Like

the defendant in Navistar, under the City’s proposed rule, Dravo could be subject to

new private-party claims for decades. See id. We decline to adopt a definition of

subsequent action that would discourage the timely filing of cost-recovery actions and

frustrate Congress’s intent “to assure that evidence concerning liability and response

costs i[s] fresh . . . and to provide some measure of finality to affected responsible

parties.” Id. at 707 & n.7 (quoting H.R. Rep. No. 99-253 pt. 1, at 138 (1985), reprinted

in 1986 U.S.C.C.A.N. 2835, 2920) (internal quotation marks omitted).

D. Leave to Amend

On December 1, 2009, following the district court’s adverse grant of summary

judgment, nine months after the February 13, 2009 deadline to file motions to amend

the pleadings expired, and just two months before trial, Morrison moved for leave to

amend its complaint a second time. When a party moves for leave to amend outside

the district court’s scheduling order, Fed. R. Civ. P. 16(b), “not the more liberal

standard of [Fed. R. Civ. P. 15(a)],” governs and requires the party to show good

cause to modify the schedule. Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716

(8th Cir. 2008). “The primary measure of good cause is the movant’s diligence in

attempting to meet the order’s requirements.” Id. at 716-17 (quoting Rahn v. Hawkins,

464 F.3d 813, 822 (8th Cir. 2006). 

“Post-dismissal motions to amend are disfavored,” In re Medtronic, Inc., Sprint

Fidelis Leads Prods. Liab. Litig., 623 F.3d 1200, 1208 (8th Cir. 2010), because

“[m]uch of the value of summary judgment . . . would be dissipated if a party were

free to rely on one theory in an attempt to defeat a summary judgment and then,

should that theory prove unsound, come back . . . and fight on the basis of some other

theory.” Littlefield v. City of Afton, 785 F.2d 596, 610 (8th Cir. 1986) (analyzing
-23-

Fed. R. Civ. P. 15) (quotation omitted), overruled in part on other grounds by Lemke

v. Cass Cnty., Neb., 846 F.2d 469, 470-71 (8th Cir. 1987) (en banc) (per curiam). 

Morrison contends it demonstrated good cause to modify the scheduling order

because Morrison “could not, in good faith,” have brought a claim under § 113(f)

against Dravo before the district court’s summary judgment rulings, and it acted

diligently thereafter. Morrison’s assertion is not persuasive. 

As the district court noted, Dravo’s September 8, 2008 answer and October 9,

2008 response to Morrison’s motion to strike gave Morrison ample notice Dravo

contended § 113(f) provided Morrison’s exclusive remedy. On November 6, 2008,

the district court notified Morrison that Dravo’s defense had merit. Explaining a

diligent plaintiff would have made all potentially viable claims given the complexities

of CERCLA, the district court determined Morrison could have reasonably offered an

amended complaint before the February 13, 2009 deadline, but chose to pursue its

claims under the more generous provisions of § 107(a). The district court did not

abuse its discretion in concluding Morrison’s tactical choice did not demonstrate

diligence or good cause. Allowing Morrison to amend its complaint after Morrison’s

strategy failed would undermine the purpose and effectiveness of summary judgment.

See Littlefield, 785 F.2d at 610.

 

Morrison also asserts the district court failed to consider the prejudice the denial

of leave caused Morrison. Even if we assume, as Morrison suggests, the requirements

of Fed. R. Civ. P. 15 are relevant to our analysis of good cause under Fed. R. Civ. P.

16, Morrison failed to adduce any evidence it ever advised the district court Morrison

would be prejudiced. In its motion, Morrison noted only the interests of judicial

economy to be served by permitting Morrison to amend its complaint rather than

requiring it to file a separate lawsuit. 

On appeal, Morrison claims prejudice caused by the need for this appeal, and

the “possibility of the loss of its claims against Dravo” on statute-of-limitation
-24-

grounds. The mere possibility of lost claims not even mentioned to the district court

falls far short of demonstrating the district court abused its discretion in denying

Morrison leave to amend. See Stafford v. Ford Motor Co., 790 F.2d 702, 706 (8th

Cir. 1986) (reasoning “[t]he district courts cannot be expected to consider matters that

the parties have not expressly called to their attention”); cf. Adams v. AlliedSignal

Gen. Aviation Avionics, 74 F.3d 882, 887-88 (8th Cir. 1996) (holding there was no

abuse of discretion in refusing to extend Fed. R. Civ. P. 4 deadline even though the

statute of limitation barred plaintiff’s claims). The district court did not abuse its

discretion in denying Morrison’s motion for leave to amend.

III. CONCLUSION

We affirm. 

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