FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ASARCO LLC, a Delaware 

corporation,

Plaintiff-Appellant,

v.

ATLANTIC RICHFIELD COMPANY, a 

Delaware corporation,

Defendant-Appellee.

No. 14-35723

D.C. No.

6:12-cv-00053-

DLC

OPINION

Appeal from the United States District Court

for the District of Montana

Dana L. Christensen, Chief Judge, Presiding

Argued and Submitted February 8, 2017

Seattle, Washington

Filed August 10, 2017

Before: Raymond C. Fisher, Richard A. Paez,

and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan
2 ASARCO V. ATLANTIC RICHFIELD

SUMMARY*

Environmental Law

The panel vacated the district court’s summary judgment 

in favor of the defendant in a contribution action under 

§ 113(f) of the Comprehensive Environmental Response, 

Compensation, and Liability Act.

CERCLA § 113(f) provides that after a party has, 

pursuant to a settlement agreement, resolved its liability for 

a “response” action or the costs of such an action, that party 

may seek contribution from any person who is not a party to 

the settlement.

The panel held that a 1998 settlement agreement under 

the Resource Conservation and Recovery Act between the 

plaintiff and the United States did not trigger the three-year 

statute of limitations for the plaintiff to bring a CERCLA 

contribution action concerning the East Helena Superfund 

Site. Agreeing with the Third Circuit, and disagreeing with 

the Second Circuit, the panel held that a settlement 

agreement entered into under an authority other than 

CERCLA may give rise to a CERCLA contribution action. 

In addition, a “corrective measure” under RCRA qualifies as 

a “response” action under CERCLA. The plaintiff did not, 

however, “resolve its liability” under the 1998 RCRA 

settlement agreement.

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
ASARCO V. ATLANTIC RICHFIELD 3

Nonetheless, a later, 2009 agreement, on which the 

plaintiff based its present CERCLA contribution action, did 

resolve the plaintiff’s liability. Because the plaintiff filed the 

present action within the three-year limitations period 

measured against entry of the 2009 agreement, it was timely. 

The panel remanded the case for further proceedings to 

determine whether the plaintiff was entitled to contribution 

for the response costs it incurred under the 2009 agreement.

COUNSEL

Gregory Evans (argued), Laura G. Brys, and Daphne Hsu, 

McGuire Woods LLP, Los Angeles, California; Linda R. 

Larson, Marten Law PLLC, Seattle, Washington; for 

Plaintiff-Appellant.

Shannon Wells Stevenson (argued), William J. Duffy, and 

Mave A. Gasaway, Davis Graham & Stubbs LLP, Denver, 

Colorado; Elizabeth H. Temkin, Temkin Wielga & Hardt 

LLP, Denver, Colorado; Randy J. Cox and Randy J. Tanner, 

Boone Karlberg P.C., Missoula, Montana; for DefendantAppellee.

OPINION

CALLAHAN, Circuit Judge:

Section 113(f)(3)(B) of the Comprehensive 

Environmental Response, Compensation, and Liability Act 

of 1980 (“CERCLA”) allows persons who have taken 

actions to clean up hazardous waste sites to seek monetary 

contribution from other parties who are also responsible for 

the contamination. 42 U.S.C. § 9613(f)(3)(B). The 
4 ASARCO V. ATLANTIC RICHFIELD

provision provides that a person that has “resolved its 

liability” for “some or all of a response action or for some or 

all of the costs of such action” pursuant to a settlement 

agreement with the government “may seek contribution 

from any person who is not party to a settlement.” Id. In 

other words, “a [potentially responsible party] that pays 

money to satisfy a settlement agreement . . . may pursue 

§ 113(f) contribution.” United States v. Atl. Research Corp., 

551 U.S. 128, 139 (2007). CERCLA imposes a three-year 

statute of limitations after entry of a judicially approved 

settlement, during which a party may bring a contribution 

action. 42 U.S.C. § 9613(g)(3).

This case presents three issues of first impression in our 

circuit. First, we must decide whether a settlement 

agreement entered into under an authority other than 

CERCLA may give rise to a CERCLA contribution action. 

Second, we must decide whether a “corrective measure” 

under a different environmental statute, the Resource 

Conservation and Recovery Act (“RCRA”), qualifies as a 

“response” action under CERCLA. And third, we must 

decide what it means for a party to “resolve[] its liability” in 

a settlement agreement—a prerequisite to bringing a 

§ 113(f)(3)(B) contribution action. Our answers to these 

legal questions guide our inquiry into whether a 1998 

settlement agreement under RCRA (the “1998 RCRA 

Decree”) between Appellant Asarco LLC (“Asarco”) and the 

United States, which was approved and entered by a federal 

district court, triggered the three-year statute of limitations 

for Asarco to bring a § 113(f)(3)(B) contribution action.

In this contribution action against Appellee Atlantic 

Richfield Company (“Atlantic Richfield”), the district court 

answered the first two questions in the affirmative but did 

not address the third. On Atlantic Richfield’s motion for 
ASARCO V. ATLANTIC RICHFIELD 5

summary judgment, the district court concluded that 

Asarco’s action accrued with entry of the 1998 RCRA 

Decree. Because Asarco brought its action in 2012—well 

beyond the three-year statute of limitations under 

CERCLA—the district court determined that its claim was 

time-barred.

We agree with the district court on the first two issues 

but, as to the third, conclude that Asarco did not “resolve[] 

its liability” under the 1998 RCRA Decree. Asarco therefore 

could not have brought its contribution action in 1998, and 

the statute of limitations did not begin to run with entry of 

the 1998 RCRA Decree. By contrast, a later, 2009 

agreement, on which Asarco bases its present contribution 

action, did resolve Asarco’s liability. And because Asarco 

filed that action within the three-year limitations period 

measured against entry of the 2009 agreement, it is also 

timely. The district court therefore erred in dismissing 

Asarco’s action on statute of limitations grounds. 

Accordingly, we vacate the district court’s judgment and 

remand for further proceedings to determine whether Asarco 

is entitled to contribution for the response costs it incurred 

under the 2009 agreement.

I. Factual Background

The East Helena Superfund Site (the “Site”) is located in 

and around an industrial area in Lewis and Clark County, 

Montana. The Site includes the City of East Helena, 

Asarco’s former lead smelter, and a nearby zinc fuming plant 

that was operated by Atlantic Richfield’s predecessor, 

Anaconda Mining Company (“Anaconda”), and later by 

Asarco.

The Site has been a locus of industrial production for 

more than a century, resulting in decades of hazardous waste 
6 ASARCO V. ATLANTIC RICHFIELD

releases. The lead smelter, which Asarco operated from 

1888 until 2001, discharged toxic compounds into the air, 

soil, and water, such as lead, arsenic, and other heavy metals. 

Asarco alleges that the zinc fuming plant, which Anaconda 

operated from 1927 to 1972, also contributed to the 

contamination. Asarco purchased the zinc fuming plant in 

1972 and apparently ceased operations in 1982.1 In 1984, 

the United States Environmental Protection Agency 

(“EPA”) added the Site to the National Priorities List under

CERCLA.

In the late 1980s, EPA identified Asarco and Anaconda 

as potentially responsible parties (“PRPs”) under CERCLA, 

meaning—in CERCLA vernacular—that they bore at least 

some responsibility for the contamination. See 42 U.S.C. 

§ 9607(a). EPA sought remedial action only from Asarco, 

which resulted in three CERCLA settlements between 

Asarco and the United States in the late 1980s and early 

1990s. Those early settlements are not at issue in this 

litigation.

In 1998, the United States brought claims against Asarco 

for civil penalties and injunctive relief under RCRA and the 

Clean Water Act (“CWA”). The complaint alleged that 

Asarco had illegally disposed of hazardous waste at the Site, 

and sought an order requiring Asarco to, inter alia, “conduct 

corrective action pursuant to Section 3008(h) of RCRA, 

42 U.S.C. § 6928(h) . . . .” A “corrective action” under 

RCRA is a type of “response measure” necessary to protect 

human health or the environment, see 42 U.S.C. § 6928(h), 

 1 It is unclear whether the plant remains active. Asarco and Atlantic 

Richfield both contend that the plant ceased operations in 1982, but the 

parties rely on authority from 1997, which states that “Asarco continues 

to operate the zinc fuming plant.”
ASARCO V. ATLANTIC RICHFIELD 7

and is “designed to clean up contamination,” J. Stanton 

Curry, James J. Hamula, Todd W. Rallison, The Tug-of-War 

Between RCRA and CERCLA at Contaminated Hazardous 

Waste Facilities, 23 Ariz. St. L.J. 359, 369 (1991).

Asarco settled the case with the United States. The 

settlement agreement was approved by the federal district 

court in Montana, and entered on the court’s docket as a 

consent decree. The 1998 RCRA Decree assessed civil 

penalties against Asarco and also required Asarco to take 

certain remedial actions to address past violations. Those 

actions included “[c]orrective [m]easures” to, inter alia, 

“remediate, control, prevent, or mitigate the release, 

potential release or movement of hazardous waste or 

hazardous constituents into the environment or within or 

from one media to another.”

Despite the 1998 RCRA Decree’s lofty goals, Asarco 

failed to meet its cleanup obligations. Further complicating 

matters, in 2005 Asarco filed for Chapter 11 bankruptcy 

protection. The United States and Montana filed proofs of 

claim in the bankruptcy proceeding asserting joint and 

several liability claims under CERCLA. On June 5, 2009, 

the bankruptcy court entered a consent decree under 

CERCLA (the “CERCLA Decree”) between Asarco, the 

United States, and Montana. The CERCLA Decree 

established a custodial trust for the Site, and turned over 

cleanup responsibility to a trustee. As part of the agreement, 

Asarco paid $99.294 million (plus other expenses), which, 

inter alia, “fully resolved and satisfied” its obligations under 

the 1998 RCRA Decree.2

 2 Asarco also paid $5 million to Montana to settle a claim for natural 

resource damages.
8 ASARCO V. ATLANTIC RICHFIELD

II. Procedural Background

On June 5, 2012, Asarco brought an action against 

Atlantic Richfield under CERCLA § 113(f)(3)(B), seeking 

contribution for its financial liability under the CERCLA 

Decree. Atlantic Richfield filed a motion for summary 

judgment, arguing that Asarco’s action was untimely 

because the three-year statute of limitations under § 113 

began running with the 1998 RCRA Decree. Asarco 

countered that “RCRA, a statute that does not authorize 

contribution claims, [cannot] trigger the limitations period 

under another law, CERCLA.” Asarco also argued that the 

CERCLA Decree created “new” and “different” work 

obligations from the 1998 RCRA Decree, thereby triggering 

a new statute of limitations period for at least the costs 

associated with those new obligations.

The district court granted summary judgment for 

Atlantic Richfield and dismissed the case. It concluded that 

the plain language of CERCLA § 113(f)(3)(B) requires only 

that a settlement agreement address a “response action,” not 

that it be entered into under CERCLA. The court also 

determined that Asarco had incurred response costs under 

the 1998 RCRA Decree, and therefore held that the 1998 

RCRA Decree provided the necessary predicate for a 

CERCLA contribution action. Finally, the court rejected 

Asarco’s argument that the CERCLA Decree contained 

matters not addressed by the 1998 RCRA Decree. 

Accordingly, it held that the CERCLA Decree did not reset 

the statute of limitations for any response costs incurred 

under that agreement, and deemed Asarco’s claim for 

contribution untimely. Asarco appealed.
ASARCO V. ATLANTIC RICHFIELD 9

III. Statutory Context

Congress enacted CERCLA in 1980 with two goals in 

mind: (i) to encourage the “‘expeditious and efficient 

cleanup of hazardous waste sites,’” and (ii) to ensure that 

those responsible for hazardous waste contamination pay for 

the cleanup. Carson Harbor Vill., Ltd. v. Unocal Corp., 

270 F.3d 863, 880 (9th Cir. 2001) (en banc) (quoting Pritkin 

v. Dep’t of Energy, 254 F.3d 791, 795 (9th Cir. 2001)); see

S. Rep. No. 96–848, at 13 (1980). Hazardous waste sites—

also known as Superfund sites—contain toxic substances 

often deposited by multiple entities. See 42 U.S.C. 

§ 9607(a)(1)–(4). In order to spread responsibility among 

those entities, Congress included a provision in CERCLA 

providing for reimbursement of costs incurred by the 

government or a liable PRP. Section 107(a) provides a cause 

of action for a “cost recovery” claim against PRPs for a wide 

range of expenses, including “‘any . . . necessary costs of 

response incurred’” that result from a release of a hazardous 

substance. Whittaker Corp. v. United States, 825 F.3d 1002, 

1006 (9th Cir. 2016) (quoting 42 U.S.C. § 9607(a)).

“Response” is a term of art under CERCLA and means 

“remove, removal, remedy, and remedial action.” 42 U.S.C. 

§ 9601(25). Congress even gave those defining terms their 

own definitions. A “removal” means, inter alia, “the 

cleanup or removal of released3 hazardous substances from 

the environment” and any actions that may be necessary “in 

the event of the threat of release of hazardous substances into 

 3 With exceptions, a “release” under CERCLA 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) . . . .” 42 U.S.C. § 9601(22).
10 ASARCO V. ATLANTIC RICHFIELD

the environment.” Id. § 9601(23). A “remedial action” 

means, inter alia, “actions consistent with permanent 

remedy taken instead of or in addition to removal actions . . . 

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). Put simply, a “response 

action” covers a broad array of cleanup activities.

Section 107(a) is limited to recovery of response costs 

the suing PRP itself directly incurred. See Atl. Research, 

551 U.S. at 139 (“[Section] 107(a) permits recovery of 

cleanup costs but does not create a right to contribution.”). 

At the time of enactment, CERCLA included no express 

right to contribution for a PRP that did not itself incur 

response costs, but that reimbursed another party that did 

incur response costs. See Cooper Indus., Inc. v. Aviall 

Servs., Inc., 543 U.S. 157, 162 (2004). Such a situation 

arises under two circumstances: (i) where the PRP is the 

defendant in a CERCLA § 106 or § 107(a) action and a 

money judgment issues against it; or, as with the CERCLA 

Decree in the matter before us, (ii) where the PRP pays the 

United States’ or a State’s response costs pursuant to a 

settlement agreement. See id. at 160–61; Atl. Research, 

551 U.S. at 138–39; Whittaker, 825 F.3d at 1006–07.

Congress added an express right to contribution with the 

Superfund Amendments and Reauthorization Act of 1986 

(“1986 CERCLA Amendments”), Pub. L. No. 99–499, to 

address these two circumstances. See Atl. Research, 

551 U.S. at 132. Section 113(f)(1) captures the first, and 

provides that “[a]ny person may seek contribution from any 

other person who is liable or potentially liable under 

[§ 107(a)] of this title, during or following any civil action . 

. . under [§ 106 or § 107(a)] of this title.” 42 U.S.C. 
ASARCO V. ATLANTIC RICHFIELD 11

§ 9613(f)(1). Section 113(f)(1) is not at issue in the instant 

matter, but, as discussed infra in Part IV.A, it is relevant to 

resolving the first issue we must decide: whether the 1998 

RCRA Decree may give rise to a CERCLA contribution 

action. Section 113(f)(3)(B), which is directly at issue, 

captures the second scenario, and provides that

[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 [that immunizes such person 

from a contribution action].

Id. § 9613(f)(3)(B). In other words, “a PRP that pays money 

to satisfy a settlement agreement or a court judgment may 

pursue § 113(f) contribution.” Atl. Research, 551 U.S. at 

139; see Cooper, 543 U.S. at 163, 167 (recognizing that 

§ 113(f)(1) and § 113(f)(3)(B) set forth separate rights of 

contribution).

While § 107(a) cost recovery actions and § 113(f) 

contribution actions offer “complementary yet distinct” 

remedies, there is overlap between them. Atl. Research, 

551 U.S. at 138, 139 n.6. For example, a PRP may undertake 

its own response actions pursuant to a settlement agreement 

with the government. See id. That PRP will have incurred 

its own response costs, meaning it is eligible for cost 

recovery under § 107(a), but it has also settled with the 

government, giving rise to a contribution action under 

§ 113(f)(3)(B). The question is whether both or only one of 

these avenues of relief is available. Our circuit, and “every 

federal court of appeals to have considered the question 
12 ASARCO V. ATLANTIC RICHFIELD

since Atlantic Research,” has concluded that “a party who 

may bring a contribution action for certain expenses must use 

the contribution action [under § 113(f)(3)(B)], even if a cost 

recovery action [under § 107(a)] would otherwise be 

available.” Whittaker, 825 F.3d at 1007 (emphasis in 

original); see, e.g., Bernstein v. Bankert, 733 F.3d 190, 206 

(7th Cir. 2013) (party may not pursue cost recovery claim 

where a contribution claim is available); Solutia, Inc. v. 

McWane, Inc., 672 F.3d 1230, 1236–37 (11th Cir. 2012) 

(same); Morrison Enters., LLC v. Dravo Corp., 638 F.3d 

594, 603–04 (8th Cir. 2011) (same); Agere Sys., Inc. v. 

Advanced Envtl. Tech. Corp., 602 F.3d 204, 229 (3d Cir. 

2010) (same); Niagara Mohawk Power Corp. v. Chevron 

U.S.A., Inc., 596 F.3d 112, 128 (2d Cir. 2010) (same); ITT 

Indus., Inc. v. BorgWarner, Inc., 506 F.3d 452, 458 (6th Cir. 

2007) (same). Thus, a PRP that incursits own response costs 

pursuant to a settlement agreement may only bring a claim 

for contribution.

Sections 107(a) and 113(f) have different statutes of 

limitations periods. An action for “recovery of . . . costs” 

under § 107(a) “must be commenced . . . within 6 years after 

initiation of physical on-site construction of the remedial 

action” or “within 3 years after the completion of the 

removal action.” 42 U.S.C. § 9613(g)(2)(A), (B). An action 

for contribution of “response costs or damages” under 

§ 113(f), by contrast, “may be commenced” no more than 

“3 years after . . . the date of . . . entry of a judicially approved 

settlement with respect to such costs or damages.” Id.

§ 9613(g)(3)(B).4 The shorter three-year limitations period 

 4 When comparing the limitations periods for §§ 107(a) and 113(f), 

courts generally interpret the limitations period for § 107(a) recovery 

actions to be a uniform six years, not six years or three years. See, e.g., 
ASARCO V. ATLANTIC RICHFIELD 13

for contribution actions is intended “to ensure that the 

responsible parties get to the bargaining—and clean-up—

table sooner rather than later.” RSR Corp. v. Commercial 

Metals Co., 496 F.3d 552, 559 (6th Cir. 2007); see 

Whittaker, 825 F.3d at 1013 (Owens, J., concurring in part) 

(observing that § 113(f) was intended to “‘bring[] all such 

responsible parties to the bargaining table at an early date’” 

(quoting H.R. Rep. (Energy and Commerce Committee) No. 

99–253, pt. 1, at 80 (1985),5 reprinted in 1986 U.S.C.C.A.N. 

2835, 2862)).

IV. Discussion

Asarco’s action is untimely if it could have brought a 

contribution action after judicial approval and entry of the 

1998 RCRA Decree. Such would be the case if three 

 

Florida Power Corp. v. FirstEnergy Corp., 810 F.3d 996, 1006 (6th Cir. 

2015); Consol. Edison Co. v. UGI Utils., 423 F.3d 90, 98 (2d Cir. 2005).

5 With a wary eye trained on the potential pitfalls of gleaning 

congressional intent from legislative history, we note that the version of 

the bill to which H.R. Rep. No. 99–253 refers, H.R. 2817, included a 

contribution provision substantially similar to the final version included 

in the enacted statute. That bill, which was introduced in the House of 

Representatives on June 20, 1985, and which remained the same in 

relevant part when reported out of the House Committee on Energy and 

Commerce, contained a contribution provision stating in part:

Nothing in this subsection shall affect or modify in any 

way the rights of . . . any person that has resolved its 

liability to the United States or a State in a good-faith 

settlement, to seek contribution or indemnification 

against any persons who are not party to a settlement 

[with the United States or a State in a judicially 

approved good-faith settlement].

H.R. 2817, 99th Cong. § 113 (June 20, 1985).
14 ASARCO V. ATLANTIC RICHFIELD

conditions are met: (i) a non-CERCLA authority may give 

rise to a CERCLA contribution action, (ii) Asarco took a 

response action or incurred response costs under the 1998 

RCRA Decree, and (iii) the 1998 RCRA Decree resolved 

Asarco’s liability for at least some of those response actions 

or costs. The district court analyzed the first two conditions 

but not the third. We evaluate all three issues.

Our review of the district court’s grant of summary 

judgment is de novo, as is our review of the court’s 

determination that Asarco’s contribution claim under the 

CERCLA Decree is barred by the statute of limitations. 

Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th 

Cir. 2003). Our review of the district court’s interpretation 

of the RCRA and CERCLA Decrees is also de novo, except 

that we defer to any factual findings unless they are clearly 

erroneous. City of Emeryville v. Robinson, 621 F.3d 1251, 

1261 (9th Cir. 2010).

A Non-CERLCA Settlement Agreement May Form 

the Basis for a CERCLA Contribution Action

1.

We begin by considering whether § 113(f)(3)(B) applies 

to non-CERCLA settlement agreements. “As in any case of 

statutory construction our analysis begins with the language 

of the statute.” Hughes Aircraft Co. v. Jacobson, 525 U.S. 

432, 438 (1999) (internal quotation marks omitted). But it 

does not end there. We must heed the “fundamental canon 

of statutory construction that the words of a statute must be 

read in their context and with a view to their place in the 

overall statutory scheme.” FDA v. Brown & Williamson 

Tobacco Corp., 529 U.S. 120, 133 (2000) (internal quotation 

marks omitted). “A statutory provision that may seem 

ambiguous in isolation is often clarified by the remainder of 
ASARCO V. ATLANTIC RICHFIELD 15

the statutory scheme . . . because only one of the permissible 

meanings produces a substantive effect that is compatible 

with the rest of the law.” Util. Air Regulatory Grp. v. EPA, 

134 S. Ct. 2427, 2442 (2014) (alteration in original and 

internal quotation marks omitted).

The plain text of § 113(f)(3)(B) is unilluminating. A 

“response” action is a defined term under CERCLA, but it is 

unclear from the text of § 113(f)(3)(B) whether it is a 

CERCLA-exclusive term. See 42 U.S.C. § 9601(25). In the 

same vein, § 113(f)(3)(B) requires a PRP to enter into a 

settlement agreement that is “administrative[ly] or judicially 

approved,” but the text says nothing about whether the 

agreement must settle CERCLA claims in particular. See id.

§ 9613(f)(3)(B).

Expanding our analysis to the broader context of the 

statute, we consider § 113(f)(3)(B)’s companion provision, 

§ 113(f)(1). That section expressly requires a CERCLA 

predicate by providing that “[a]ny person may seek 

contribution from any other person who is liable or 

potentially liable under [§ 107(a)] of this title, during or 

following any civil action under [§ 106] of this title or under 

[§ 107(a)] of this title.” Id. § 9613(f)(1) (emphasis added). 

“Where Congress includes particular language in one section 

of a statute but omits it in another section of the same Act, it 

is generally presumed that Congress acts intentionally and 

purposely in the disparate inclusion or exclusion.” Russello 

v. United States, 464 U.S. 16, 23 (1983) (internal quotation 

marks omitted). Applying this principle here, Congress’ 

express requirement of a CERCLA predicate in § 113(f)(1) 

and its absence in § 113(f)(3)(B) is strong evidence that 

Congress intended no such predicate in the latter provision.

Our understanding of § 113(f)(3)(B) is consistent with 

CERCLA’s broad remedial purpose. “In ascertaining the 
16 ASARCO V. ATLANTIC RICHFIELD

meaning of an ambiguous [statutory] term, we may use 

canons of statutory construction, legislative history, and the 

statute’s overall purpose to illuminate Congress’s intent.” 

Probert v. Family Centered Servs. of Alaska, Inc., 651 F.3d 

1007, 1011 (9th Cir. 2011) (internal quotation marks 

omitted). With the 1986 CERCLA Amendments, Congress 

sought to get parties to the negotiating table early to allocate 

responsibility for cleaning up contaminated sites. H.R. Rep. 

No. 99–253, pt. 1, at 80. Granting a settling party a right to 

contribution from non-settling PRPs provides a strong 

incentive to settle and initiate cleanup. Congress gave no 

indication that it matters whether the authority governing the 

settlement is CERCLA or something else. Its focus was, 

instead, on cleaning up hazardous waste sites. An 

interpretation that limits the contribution right under 

§ 113(f)(3)(B) to CERCLA settlements would undercut 

private parties’ incentive to settle (except, of course, where 

the agreement was entered into under CERCLA), thereby 

thwarting Congress’ objective and doing so without reaping 

any perceptible benefit.

Our interpretation also aligns with EPA’s own view. In 

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

596 F.3d 112 (2d Cir. 2010), EPA argued that “‘settlement 

of federal and state law claims other than those provided by 

CERCLA fits within § 113(f)(3)(B) as long as the settlement 

involves a cleanup activity that qualifies as a “response 

action” within the meaning of CERCLA § 101(25), 

42 U.S.C. § 9601(25).’” Id. at 126 n.15 (quoting Brief for 

the United States as Amicus Curiae Supporting Appellant at 

15). “[EPA’s] views, as expressed in [its amicus] brief, are 

persuasive because [its] reasoning is consistent with the 

statutory language,” statutory context, and CERCLA’s 

overall structure and purpose. See Van Asdale v. Int’l Game 

Tech., 763 F.3d 1089, 1093 (9th Cir. 2014) (deferring to the 
ASARCO V. ATLANTIC RICHFIELD 17

Secretary of Labor’s amicus brief). Its interpretation 

therefore merits some deference. See Skidmore v. Swift & 

Co., 323 U.S. 134, 140 (1944) (deference to an agency’s 

interpretation depends on “the thoroughness evident in its 

consideration, the validity of its reasoning, its consistency 

with earlier and later pronouncements, and all [other] factors 

which give it power to persuade”); see also Fed. Exp. Corp. 

v. Holowecki, 552 U.S. 389, 401–02 (2008) (according an 

agency’s non-binding interpretation Skidmore deference 

where the interpretation was “consistent with the statutory 

framework” and the statute was susceptible to “[n]o clearer 

alternatives”).

2.

Whether a non-CERLCA settlement agreement may 

give rise to a contribution action has split the circuits. In 

Trinity Industries, Inc. v. Chicago Bridge & Iron Co., 

735 F.3d 131 (3d Cir. 2013), the Third Circuit arrived at the 

conclusion we adopt here in evaluating a settlement 

agreement entered into under state law, reasoning that 

“Section 113(f)(3)(B) does not state that the ‘response 

action’ in question must have been initiated pursuant to 

CERCLA.” Id. at 136. Trinity relied on that court’s prior 

holding in United States v. Rohm & Haas Co., 2 F.3d 1265 

(3d Cir. 1993), overruled on other grounds by United States 

v. E.I. Dupont De Nemours & Co., 432 F.3d 161 (3d Cir. 

2005) (en banc), where it held that CERCLA § 107(a)—

which provides a cause of action for recovery of response 

costs—was available “even when the waste removal [wa]s 

not undertaken pursuant to CERCLA.” Trinity, 735 F.3d at 

136. In Rohm & Haas, as in the matter before us, the 

remedial action was taken under RCRA. 2 F.3d at 1267. The 

court in Rohm & Haas noted that § 107(a) lacks any 

“CERCLA-specific requirement,” and concluded that
18 ASARCO V. ATLANTIC RICHFIELD

given the similarity of the provisions of 

RCRA and CERCLA authorizing EPA to 

order private parties to conduct corrective 

activity, we fail to perceive any reason why 

Congress might have wished to make 

government oversight expenses recoverable 

if the government invoked CERCLA 

statutory authority, but not if it invoked 

RCRA.

Id. at 1275.

The Second Circuit has gone the other way. In 

Consolidated Edison Co. of N.Y., Inc. v. UGI Utilities, Inc., 

423 F.3d 90, 95 (2d Cir. 2005), the court held that 

§ 113(f)(3)(B) creates a “contribution right only when 

liability for CERCLA claims . . . is resolved.” That case, 

like Trinity, involved a party’s § 113(f)(3)(B) contribution 

action to recoup costs spent pursuant to a settlement 

agreement under state law. Id. at 96. But unlike Trinity, the 

Second Circuit read the term “response action” to be a 

“CERCLA-specific term,” and relied on a House of 

Representatives Committee report for the 1986 CERCLA 

Amendments creating § 113. Id. at 95–96. That report states 

that § 113 “‘clarifies and confirms the right of a person held 

jointly and severally liable under CERCLA to seek 

contribution from other potentially liable parties.’” Id.

(quoting H.R. Rep. No. 99–253, pt. 1, at 79) (emphasis in 

opinion).6

 6 Several district courts—including one in the Ninth Circuit—have 

agreed with the Second Circuit’s approach. See, e.g., Differential Dev.-

1994, Ltd. v. Harkrider Distrib. Co., 470 F. Supp. 2d 727, 739–43 (S.D. 

Tex. 2007); ASARCO, Inc. v. Union Pac. R.R. Co., No. CV 04-2144-
ASARCO V. ATLANTIC RICHFIELD 19

The Second Circuit’s approach is not persuasive and may 

be shifting. First, the court misreads the pertinent legislative 

history. Consolidated Edison relied on a portion of the 

House report that is specific to § 113(f)(1) for the 

proposition that Congress intended to require a CERCLA 

predicate under § 113(f)(3)(B). See 423 F.3d at 96; H.R. 

Rep. No. 99–253, pt. 1, at 79. But, as previously noted, those 

two provisions diverge in a crucial way: § 113(f)(1) 

expressly requires that a party first be sued under CERCLA

before bringing a contribution action, whereas 

§ 113(f)(3)(B) makes no reference to CERCLA at all. 

Second, in a subsequent case, Niagara Mohawk, the Second 

Circuit indicated agreement with EPA’s position that a 

CERCLA-specific settlement agreement is not necessary to 

maintain a § 113(f)(3)(B) contribution action. 596 F.3d at 

126 n.15. While the court addressed a distinct issue, and so 

did not have an opportunity to revisit its holding in 

Consolidated Edison, it commented that EPA 

“understandably takes issue with our holding in 

Consolidated Edison.” Id.

We agree with the Third Circuit. Consideration of 

CERCLA’s statutory context, structure, and broad remedial 

purpose, combined with EPA’s reasonable interpretation, 

lead us to the inexorable conclusion that Congress did not 

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

incurred under CERCLA settlements. We therefore hold 

that a non-CERLCA settlement agreement may form the 

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

 PHX-SRB, 2006 WL 173662, at *7–9 (D. Ariz. Jan. 24, 2006); City of 

Waukesha v. Viacom Int’l Inc., 404 F. Supp. 2d 1112, 1115 (E.D. Wis. 

2005).
20 ASARCO V. ATLANTIC RICHFIELD

We turn next to considering whether the 1998 RCRA Decree 

is such an agreement.

The 1998 RCRA Decree Required Asarco to Take 

“Response” Actions

The second condition necessary for the 1998 RCRA 

Decree to have triggered Asarco’s ability to bring a 

§ 113(f)(3)(B) contribution action is that the agreement 

required Asarco to take response actions or incur response 

costs. Asarco suggests that the 1998 RCRA Decree did not 

actually require any response actions, but was instead 

focused on assessing penalties for RCRA violations, such as 

noncompliance with RCRA’s land disposal restrictions. 

Asarco argues that the agreement “at best” only resolved 

“Asarco’s liability for civil penalties stemming from alleged 

operating violations.” The district court barely 

acknowledged this issue.

Asarco dramatically understates the scope of its 

obligations under the Decree. The agreement clearly 

required Asarco to take response actions to clean up 

hazardous waste at the Site. Specifically, the 1998 RCRA 

Decree obligated Asarco to:

• Implement interim measures to “control or 

abate[] . . . imminent threats to human health 

and/or the environment”;

• Prevent or minimize the spread of hazardous 

waste “while long-term corrective measure 

alternatives are being evaluated”;

• Remove and dispose of contaminated soil and 

sediment at the Site; and, more generally, to
ASARCO V. ATLANTIC RICHFIELD 21

• Fulfill the Decree’s “remedial objectives” and 

“remedial activities”—specifically by 

(i) implementing “corrective measures” to 

“reduce levels of hazardous waste or hazardous 

constituents to applicable standards”; 

(ii) remediating “any contamination in 

groundwater, surface water and soils, and the ore 

storage areas”; (iii) taking actions that “will 

result in the remediation of contaminated 

media”; and (iv) “provid[ing] the minimum level 

of exposure to contaminants and the maximum 

reduction in exposure.”

The agreement’s requirement that Asarco take various 

“corrective measures” is particularly noteworthy because 

RCRA expressly defines “corrective action” as a type of 

“response” action: Under RCRA, EPA “may issue an order 

requiring corrective action or such other response measure 

as [it] deems necessary to protect human health or the 

environment.”7 42 U.S.C. § 6928(h) (emphasis added). In 

short, we hold that the 1998 RCRA Decree included 

response actions for purposes of bringing a CERCLA 

§ 113(f)(3)(B) action.

Asarco Did Not “Resolve Its Liability” Under the 

1998 RCRA Decree

The third condition necessary for the 1998 RCRA 

Decree to have triggered Asarco’s ability to bring a 

§ 113(f)(3)(B) contribution action is that the agreement 

“resolved its liability to the United States or [Montana] for

some or all of” its response action or the “costs of such 

 7 We do not suggest that other authorities that lack the term 

“response” could not support a § 113(f)(3)(B) contribution action.
22 ASARCO V. ATLANTIC RICHFIELD

action” in the 1998 RCRA Decree. See 42 U.S.C. 

§ 9613(f)(3)(B). Asarco argues that it did not, and therefore 

the statute of limitations to bring the instant action did not 

expire three years later, in 2001.

1.

Atlantic Richfield contends that Asarco waived this 

argument by not raising it in the district court, and that we 

should therefore not consider it. Atlantic Richfield is correct 

that Asarco failed to raise this precise issue below. Waiver, 

however, is not an absolute bar to our consideration of 

arguments on appeal. See In re Mercury Interactive Corp. 

Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010). We may reach 

an otherwise waived issue in three circumstances: (i) to 

prevent a miscarriage of justice or preserve the integrity of 

the judicial process, (ii) when a new issue arises on appeal 

because of a change in the law, and (iii) “‘when the issue 

presented is purely one of law and either does not depend on 

the factual record developed below, or the pertinent record 

has been fully developed.’” Id. (quoting Bolker v. Comm’r, 

760 F.2d 1039, 1042 (9th Cir. 1985)).

Determining whether Asarco “resolved its liability” 

under the 1998 RCRA Decree falls into the first and third 

categories. If Asarco did not, as it contends, resolve its 

liability under the 1998 RCRA Decree, then justice would 

not be served by upholding the district court’s decision. The 

correct interpretation of the phrase “resolved its liability” is 

also a pure question of law. While deciding whether Asarco 

“resolved its liability” requires application of the law to the 

particular terms of the 1998 RCRA Decree, those terms are 

not in dispute and the record requires no further 

development. Moreover, deciding this issue will bring 

certainty to the state of the law in the Ninth Circuit and 
ASARCO V. ATLANTIC RICHFIELD 23

thereby “‘preserve the integrity of the judicial process.’” Id. 

We therefore proceed to the merits.

2.

As we did in Part IV.A, supra, we begin our analysis 

with the plain text of the statute. Hughes, 525 U.S. at 438. 

Where Congress has not defined specific statutory terms, we 

look to their ordinary meanings. Carcieri v. Salazar, 

555 U.S. 379, 388 (2009). The commonly understood 

meaning of “resolve” is “to deal with successfully,” “reach 

a firm decision about,” or to “work out the resolution of” 

something. Resolve, Merriam-Webster Online Dictionary, 

https://www.merriam-webster.com/dictionary/resolve (last 

accessed July 13, 2017). Black’s Law Dictionary similarly 

defines the term to mean “to find an acceptable or even 

satisfactory way of dealing with (a problem or difficulty).” 

Resolve, Black’s Law Dictionary 1504 (10th ed. 2014). 

Implicit in these definitions is an element of finality. If the 

parties reach a “firm decision about” liability, then the 

question of liability is not susceptible to further dispute or 

negotiation. As the Seventh Circuit explained in interpreting 

the same statutory provision, “[a]n issue which is ‘resolved’ 

is an issue which is decided, determined, or settled—

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

211. “To meet the statutory trigger for a contribution action 

under § 9613(f)(3)(B), the nature, extent, or amount of a 

PRP’s liability must be decided, determined, or settled, at 

least in part, by way of agreement with the EPA.” Id. at 212 

(emphasis in original).

But even if an agreement decides with finality the scope 

of a PRP’s legal exposure and obligations, is its liability 

“resolved” where the government reserves certain rights, or 

where the party refuses to concede liability? For example, 

the statutory provision setting forth EPA’s settlement 
24 ASARCO V. ATLANTIC RICHFIELD

authority allows EPA to include a covenant not to sue in a 

settlement agreement. 42 U.S.C. § 9622(f). But such 

covenant must be conditioned on a PRP’s completed 

performance. Section 122(f)(3) provides that

[a] covenant not to sue concerning future 

liability to the United States shall not take 

effect until the President certifies that 

remedial action has been completed in 

accordance with the requirements of this 

chapter at the facility that is the subject of 

such covenant.

Id. § 9622(f)(3). EPA must therefore preserve its ability to 

bring an enforcement action even after the settlement 

agreement is executed. This requirement is reflected in 

EPA’s model CERCLA consent decree, which provides that 

“covenants not to sue are conditioned upon the satisfactory 

performance by Settling Defendants of their obligations 

under this Consent Decree.” Superfund Program; Revised 

Model CERCLA RD/RA Consent Decree, 60 Fed. Reg. 

38,817, 38,833 (July 28, 1995). Similarly, EPA has, in the 

past, included in settlement agreements releases from 

liability that are conditioned on a PRP’s completed 

performance. See, e.g., Bernstein, 733 F.3d at 212–13; 

Florida Power Corp. v. FirstEnergy Corp., 810 F.3d 996, 

1004 (6th Cir. 2015); RSR, 496 F.3d at 558. Furthermore, 

parties often expressly refuse to concede liability under a 

settlement agreement, even while assuming obligations 

consistent with a finding of liability.

The Sixth and Seventh Circuits have decided that these 

reservations of rights tip the scales against a finding that a 

party has resolved its liability. In Bernstein, the Seventh 

Circuit held that settling PRPs had not resolved their liability 
ASARCO V. ATLANTIC RICHFIELD 25

where (i) the agreement expressly stated that the PRPs had 

not conceded liability; (ii) EPA reserved its right to “seek 

legal [] or equitable relief to enforce the terms of the 

[agreement]”; and (iii) EPA only “conditionally promised to 

release the [PRPs] from liability” upon the PRPs’ “complete 

performance, as well as certification thereof.” 733 F.3d at 

212–13 (emphasis in original). In rejecting the PRPs’ 

argument that the agreement’s covenant not to sue amounted 

to the requisite resolution, the court reasoned that because 

the release from liability was conditioned on completed 

performance, the covenant could only take effect when 

“performance was complete.” Id. at 212.

The Sixth Circuit conducted a similar analysis in ITT 

Industries. 506 F.3d 452. The court found no resolution of 

liability where (i) EPA reserved its right to bring legal action 

for failure to comply with the agreement or for past, present, 

or future response costs; and (ii) the agreement expressly 

stated that the PRP did not concede liability. Id. at 459–60. 

And more recently, in Florida Power, the Sixth Circuit 

found no resolution where (i) EPA reserved its right to bring 

a CERCLA enforcement action for violations of the 

agreement; (ii) the agreement expressly stated that the PRP 

“shall have resolved [its] liability to EPA” only “[f]ollowing 

satisfaction of the requirements of this Consent Order”; (iii) 

the agreement provided that “participation of [the PRP] in 

this Order shall not be considered an admission of liability”; 

and (iv) the agreement was not titled an “administrative 

settlement.” 810 F.3d at 1004.

By comparison, in Hobart Corp. v. Waste Management 

of Ohio, Inc., 758 F.3d 757 (6th Cir. 2014), the Sixth Circuit 

held that a PRP had resolved its liability where the 

agreement (i) stated that, “for purposes of 

Section 113(f)(3)(B) . . . [the PRPs] have, as of the Effective 
26 ASARCO V. ATLANTIC RICHFIELD

Date, resolved their liability to the United States”; (ii) 

immunized the settling parties from contribution actions as 

of the Effective Date; (iii) included the title, “Administrative 

Settlement Agreement”; and (iv) contained a covenant 

prohibiting EPA from suing under CERCLA “[i]n 

consideration of the actions that will be performed and the 

payments that will be made by [the PRPs] under the terms of 

th[e] Settlement Agreement.” Id. at 768–69 (emphasis 

added and omitted). Yet, as pointed out by the dissent in 

Florida Power, the agreement in Hobart also included a 

broad reservation of rights, specifying that “nothing herein 

shall prevent U.S. EPA . . . from taking other legal or 

equitable action as it deems appropriate or necessary.” 

Florida Power, 810 F.3d at 1016 (Suhrheinrich, J., 

dissenting) (internal quotation marks omitted). Similar 

provisions precluded a finding that the parties had resolved 

their liability in ITT and Florida Power, thus creating what 

appears to be an inconsistent approach within the Sixth 

Circuit.

Further complicating the law in the Sixth Circuit is an 

earlier case, RSR, in which the court held that the PRP’s 

promise of future performance “resolved [its] liability to the 

United States” because RSR “agree[d] to assume all liability 

(vis-à-vis the United States) for future remedial actions.” 

496 F.3d at 558 (emphasis in original). But, as noted again 

by the dissent in Florida Power, the agreement at issue in 

RSR also included a covenant not to sue conditioned on a 

Certification of Completion of Remediation Action issued 

by EPA. Florida Power, 810 F.3d at 1012 (Suhrheinrich, J., 

dissenting); see id. (contemplating that the covenant might 

“not take effect until the remedial action was complete”). 

The RSR court indicated that a promise of future 

performance in an agreement suffices to constitute 

resolution of liability. See 496 F.3d at 558.
ASARCO V. ATLANTIC RICHFIELD 27

We adopt a meaning of the phrase “resolved its liability” 

that falls somewhere in the middle of these various cases. 

We conclude that a settlement agreement must determine a 

PRP’s compliance obligations with certainty and finality. 

See Bernstein, 733 F.3d at 211–12 (“An issue which is 

‘resolved’ is an issue which is decided, determined, or 

settled—finished, with no need to revisit.”); see also Florida 

Power, 810 F.3d at 1002–03. However, we disagree with 

the Sixth and Seventh Circuits’ holdings in Florida Power 

and Bernstein that the government must divest itself of its 

ability to enforce an agreement’s terms. If a covenant not to 

sue conditioned on completed performance negated 

resolution of liability, then it is unlikely that a settlement 

agreement could ever resolve a party’s liability. That is 

because CERCLA prevents a covenant not to sue from 

“tak[ing] effect until the President certifies that remedial 

action has been completed . . . .” 42 U.S.C. § 9622(f)(3); see 

60 Fed. Reg. at 38,833 (model consent decree, conditioning 

a covenant not to sue on completed performance).

Nor do we agree—as the court held in Bernstein—that a 

release from liability conditioned on completed performance 

defeats “resolution.” An agreement may “resolve[]” a PRP’s 

liability once and for all without hobbling the government’s 

ability to enforce its terms if the PRP reneges. This 

reasoning applies equally to a covenant not to sue 

conditioned on completed performance.8 It is also consistent 

 8 Bernstein held that an agreement containing a covenant not to sue 

conditioned on completed performance could give rise to a 

§ 113(f)(3)(B) contribution action after performance was completed. 

733 F.3d at 204. The court reasoned that once the condition was 

satisfied, the PRP had resolved its liability. Id. But such an 

interpretation renders another part of § 113—the statute of limitations 

provision—anomalous. The statute of limitations provision requires a 

PRP to bring a contribution action “no more than 3 years after . . . entry 
28 ASARCO V. ATLANTIC RICHFIELD

with the 1986 CERCLA Amendments. A House of 

Representatives Committee report expresses Congress’ 

intent to encourage settlements by creating a right to 

contribution. H.R. Rep. 99–253, pt. 1, at 80. That same 

report criticizes EPA’s inclusion of releases from liability in 

settlement agreements. Id. at 102–03 (“[T]he Committee 

specifically notes its disapproval of the releases granted in 

the settlements entered into in the Seymore Recy[c]ling case 

and the Inmont case and expects and intends that any 

compara[b]le releases that might be presented for court 

approval would be rejected as not in the public interest.”). 

Indeed, the report goes one step further, expressing an intent 

to “authorize[]” EPA “to include in an agreement . . . any 

provisions allowing future enforcement action . . . that 

[EPA] determines are necessary and appropriate to assure 

protection of public health, welfare, and the environment.” 

Id. at 102 (emphasis added). Having sung the praises of 

settlements providing for a right of contribution in one part 

of the report, it would make little sense for Congress to 

encourage EPA to craft settlements in a way that nullifies 

that right in another.

 of a judicially approved settlement . . . .” 42 U.S.C. § 9613(g)(3)(B) 

(emphasis added). Thus, under the Seventh Circuit’s approach, a party’s 

contribution action could accrue after the statute of limitations had 

already expired. For example, if a settlement agreement included a 

covenant not to sue conditioned on completed performance, and the 

cleanup took four years, then—in the Seventh Circuit’s view—the PRP 

would be precluded from ever bringing a contribution action, even 

though it (eventually) satisfied the requirements for doing so. And this 

would necessarily be the case because, as discussed, CERLCA requires

that a covenant not to sue be conditioned on completed performance. See 

42 U.S.C. § 9622(f)(3). Where possible, we avoid construing statutes in 

a way that results in such internal inconsistencies. Boise Cascade Corp. 

v. EPA, 942 F.2d 1427, 1432 (9th Cir. 1991).
ASARCO V. ATLANTIC RICHFIELD 29

Moreover, unlike the court in Florida Power, we 

conclude that it matters not that a PRP refuses to concede 

liability in a settlement agreement. Congress’ intent in 

enacting § 113(f)(3)(B) was to encourage prompt 

settlements that establish PRPs’ cleanup obligations with 

certainty and finality. A PRP’s refusal to concede liability 

does not frustrate this objective so long as the PRP commits 

to taking action. Indeed, requiring a PRP to concede liability 

may discourage PRPs from entering into settlements because 

doing so could open the PRP to additional legal exposure. 

See 42 U.S.C. § 9607(a) (setting forth obligations of liable

PRPs).

In sum, an examination of § 113(f)(3)(B)’s plain 

language, with due consideration for CERCLA’s structure 

and purpose, leads us to the conclusion that a PRP 

“resolve[s] its liability” to the government where a 

settlement agreement decides with certainty and finality a 

PRP’s obligations for at least some of its response actions or 

costs as set forth in the agreement. A covenant not to sue or 

release from liability conditioned on completed performance 

does not undermine such a resolution, nor does a settling 

party’s refusal to concede liability. Whether this test is met 

depends on a case-by-case analysis of a particular 

agreement’s terms.

3.

Turning to the 1998 RCRA Decree, we conclude that it 

fails to resolve Asarco’s liability for any of its response 

actions or costs. First, the Decree’s release from liability 

covers none of the “corrective measures”—i.e., response 

actions—mandated by the agreement. Paragraph 209, under 

“Effect of Decree,” states that
30 ASARCO V. ATLANTIC RICHFIELD

ASARCO’s payment of all civil penalties 

due, and ASARCO’s commitments to pay all 

stipulated penalties due and owing under this 

Decree, and ASARCO’s commitment to fully 

and successfully complete the requirements 

of this Decree, shall constitute full 

satisfaction of the claims for civil penalties 

for civil violations alleged in the complaint of 

the United States that occurred prior to the 

date of lodging of this Decree, except as 

provided in this Paragraph . . . . This release 

is conditioned upon the complete and 

satisfactory performance by ASARCO of its 

obligations under this Decree.

1998 RCRA Decree ¶ 209 (emphasis added). The release is 

expressly limited to liability with regards to the United 

States’ claims for civil penalties. Yet the complaint that 

prompted the parties to reach the agreement specifically 

sought both civil penalties and injunctive relief—only the 

latter of which could “require ASARCO to conduct 

corrective action.”

Second, the 1998 RCRA Decree is replete with 

references to Asarco’s continued legal exposure. For 

example, in paragraph 122, under the header “Off-Site 

Access,” the agreement states unequivocally that “[n]othing 

in this section shall be construed to limit or otherwise affect 

ASARCO’s liability and obligation to perform corrective 

measures . . . .” Similarly, in setting forth a limited covenant 

not to sue, paragraph 214 states that the

Decree shall not be construed as a covenant 

not to sue, release, waiver or limitation of any 

rights, remedies, powers and/or authorities, 
ASARCO V. ATLANTIC RICHFIELD 31

civil or criminal, which EPA has under 

RCRA, CERCLA, or any other statutory, 

regulatory, or common law authority, except 

as provided in Paragraph 209 above . . . . 

Because paragraph 209 does not address—let alone 

resolve—the United States’ claims for injunctive relief, the 

covenant not to sue does not restrict the United States’ 

authority to bring an action under CERCLA §§ 106 or 107, 

which could result in additional response obligations. 

42 U.S.C. §§ 9606, 9607.

Lest there be any doubt, the Decree makes the point at 

least three more times. Paragraph 216 states that “except as 

specifically provided in Paragraph 209,” compliance with 

the Decree “shall be no defense to any action commenced” 

under federal or state law. 1998 RCRA Decree ¶ 216. And 

the next paragraph provides that

[e]xcept as expressly provided herein, 

nothing in this Decree shall constitute or be 

construed as a release from any claim, cause 

of action or demand in law or equity, against 

any person, firm, partnership, or corporation 

for any liability it may have arising out of, or 

relating in any way to, the generation, 

storage, treatment, handling, transportation, 

release, management or disposal of any 

hazardous wastes . . . found at, on, or under, 

taken to or from, or migrating to, from or 

through the [lead smelter and contiguous 

areas].

Id. ¶ 217 (emphasis added). Finally, paragraph 137 states 

that Asarco’s CERCLA liability for response costs would 
32 ASARCO V. ATLANTIC RICHFIELD

not be released even if Asarco fully complied with the 

Decree:

Notwithstanding compliance with the terms 

of this Decree, ASARCO is not released from 

liability, if any, for the costs of any response 

actions taken or authorized by EPA under any 

applicable statute, including CERCLA.

Simply put, the 1998 RCRA Decree did not just leave open 

some of the United States’ enforcement options, it preserved 

all of them. Because the Decree did not settle definitively 

any of Asarco’s response obligations, it did not “resolve[] 

[Asarco’s] liability.” See 42 U.S.C. § 9613(f)(3)(B). 

Accordingly, Asarco could not have brought a contribution 

action pursuant to the 1998 RCRA Decree and the 

corresponding limitations period did not run with that 

agreement.9

 9 Asarco was not without recourse to seek reimbursement for costs 

incurred under the RCRA Decree. As discussed in Part III, supra, where 

a § 113(f) contribution action is unavailable, a PRP may be able to bring 

a § 107 “cost recovery” action against other PRPs to recoup “any . . . 

necessary costs of response incurred” that result from a release of a 

hazardous substance. 42 U.S.C. § 9607(a); see Bernstein, 733 F.3d at 

214. Put another way, a PRP that has taken a response action but has not 

entered into a settlement agreement that resolves its liability has satisfied 

the criteria for bringing a § 107 action. A § 107 action has at least three 

advantages and one disadvantage compared to a § 113(f)(3)(B) action: 

(i) § 107(a) comes with a longer statute of limitations period than 

§ 113(f)(3)(B) (six years versus three), (ii) it provides the possibility of 

joint and several liability, and (iii) it comes with limited defenses—e.g., 

acts of God, acts of war, and third-party omissions. See Burlington N. & 

Santa Fe Ry. Co. v. United States, 556 U.S. 599, 614 (2009) (joint and 

several liability is available under § 107 unless the harms caused by 

multiple entities “are capable of apportionment”); NCR Corp. v. George 
ASARCO V. ATLANTIC RICHFIELD 33

Asarco “Resolved Its Liability” Under the 2009 

CERCLA Decree

The district court held that Asarco’s contribution claim 

for response costs incurred under the 2009 CERCLA Decree 

was time-barred based on the erroneous conclusion that 

Asarco could have brought its action under the 1998 RCRA 

Decree. Asarco argues the district court erred because it 

brought its action no more than three years after entry of the 

June 2009 CERCLA Decree, which it argues “resolved its 

liability” for the first time, and therefore its action is timely. 

We agree with Asarco.

Asarco has a timely contribution claim under the 

CERCLA Decree if three conditions are met. First, Asarco 

must have brought its action within three years after the date 

the settlement was judicially approved. 42 U.S.C. 

§ 9613(g)(3)(B). Second, the CERCLA Decree must cover 

response actions or costs of response. Id. § 9613(f)(3)(B). 

And third, the CERCLA Decree must “resolve[]” Asarco’s 

liability for at least some response actions or costs. Id.

Statute of limitations. Section 113(g)(3) requires a party 

seeking contribution to bring its action no more than “3 years 

after . . . the date of . . . entry of a judicially approved 

settlement.” Id. § 9613(g)(3). The bankruptcy court 

approved and entered the CERCLA Decree on June 5, 2009. 

Asarco brought its contribution action on June 5, 2012. In 

its denial of Atlantic Richfield’s motion to dismiss, the 

 

A. Whiting Paper Co., 768 F.3d 682, 690 (7th Cir. 2014) (discussing 

limited defenses under § 107); 42 U.S.C. § 9607(a)(4)(B) (listing 

defenses). On the other hand, a party that is ineligible to bring a § 113(f) 

contribution action—and therefore must resort to § 107(a)—does not 

enjoy protection from other PRPs’ contribution actions. See 42 U.S.C. 

§ 9613(f)(2).
34 ASARCO V. ATLANTIC RICHFIELD

district court held that Asarco’s claim was timely. Dist. Ct. 

Dkt. 49, at 6–7. On appeal, Asarco reiterates that its action 

“was filed within three years of a settlement that did in fact 

resolve Asarco’s liability at the Site.” Conspicuously absent 

from Atlantic Richfield’s brief is any contention that the 

district court erred on this issue. We therefore deem 

abandoned Atlantic Richfield’s argument that Asarco’s 

claim is time-barred as measured against the CERCLA 

Decree. See Collins v. City of San Diego, 841 F.2d 337, 339 

(9th Cir. 1988) (issue abandoned where not raised on 

appeal).

Even if Atlantic Richfield did not abandon this claim, we 

would conclude Asarco’s claim is timely. Under 

§ 113(g)(3), the day of the event that triggers the period is 

excluded for purposes of computing the period’s end date. 

See Asarco, LLC v. Union Pac. R.R. Co., 765 F.3d 999, 

1007–08 (9th Cir. 2014). Therefore, the first day of the 

period would be June 6, 2009, and the last day for filing 

would be June 5, 2012. See id. at 1007. Asarco met this 

deadline.

Response actions or costs. The CERCLA Decree 

required Asarco to pay $99.294 million (plus other 

expenses) into a custodial trust account to clean up the East 

Helena Site. The account covers expenses for past and 

future response actions, including, inter alia, “remedial 

actions, removal actions, [and] corrective action” at the Site. 

The CERCLA Decree also settled all obligations under the 

1998 RCRA Decree, which, as described in Part IV.B, supra,

itself addressed response actions. It is therefore beyond cavil 

that the CERCLA Decree covers “response” actions or costs 

of response.

Resolution of liability. Asarco argues that the CERCLA 

Decree “unequivocally” resolved its liability for all of its 
ASARCO V. ATLANTIC RICHFIELD 35

response costs at the Site. Atlantic Richfield does not 

directly address this issue, but instead asserts that the 

CERCLA Decree did not “trigger a new limitations period 

for costs incurred under the 1998 [RCRA] Consent Decree” 

because the CERCLA Decree served only as a “funding 

mechanism” for Asarco’s “preexisting commitments.” 

Atlantic Richfield asserts that deeming Asarco’s 

contribution claim timely would work an injustice by 

allowing Asarco to incur cleanup obligations, sit on its rights 

and do nothing for years, and then pursue a stale claim 

through bankruptcy by virtue of its own indolence.

We agree with Asarco and hold that the CERCLA 

Decree “resolved” its liability for all of its response costs at 

the Site.10 For example, the Decree sets forth a covenant not 

to sue that is immediately effective and covers all of 

Asarco’s response obligations. The covenant provides, in 

relevant part, that

 10 While the district court did not address whether the CERCLA 

Decree resolved Asarco’s liability, we need not remand to the district 

court for consideration of this issue in the first instance. Whether the 

CERCLA Decree resolved Asarco’s liability is an “issue fairly included 

within the question presented,” namely, whether the district court erred 

in holding that Asarco could not maintain a contribution action under the

CERCLA Decree. See Lewis v. Clarke, 137 S. Ct. 1285, 1293 n.3 (2017). 

It was also raised before the district court, see Asarco Opp. to Mot. for 

Summary Judgment, Dist. Ct. Dkt. 161, at 11 (“The CERCLA Decree 

resolved Asarco’s CERCLA liability at East Helena for the first time.”), 

requires no supplementation of the record, and is pressed by Asarco on 

appeal. We therefore proceed to the merits and decide whether the 

CERCLA Decree resolved Asarco’s liability. See Lewis, 137 S. Ct. at 

1293 n.3.
36 ASARCO V. ATLANTIC RICHFIELD

upon the Effective Date and Debtors’11 full 

funding of all Custodial Trust Accounts . . . 

the United States [and Montana] covenant[] 

not to sue or assert any civil claims or civil 

causes of action against [Asarco] . . . pursuant 

to Sections 106 and 107(a) of CERCLA, 

42 U.S.C. §§ 9606, 9607(a), and RCRA, 

42 U.S.C. § 6901, et seq., Sections 301(a), 

309(b), and 311 of CWA, 33 U.S.C. 

§§ 1311(a), 1319(b), and 1321, or any similar 

state law, including any liabilities or 

obligations asserted in the United States’ 

[and Montana’s] Proofs of Claim with 

respect to the East Helena Site.

CERCLA Decree ¶¶ 28–29. Thus, so long as Asarco funds 

the Custodial Trust Accounts,12 it is released from liability 

for all response obligations under prior settlements, 

including “corrective measures” under the RCRA Decree.

Other parts of the Decree are similarly all-encompassing. 

For example, the section setting forth reservations of rights 

by the government is, in pertinent part, limited to Asarco’s 

“future acts.” Under that provision, the United States and 

Montana “specifically reserve . . . liability for[, inter alia,] 

response costs [and] response actions . . . under CERCLA, 

RCRA, CWA, [the Montana Comprehensive Environmental 

Cleanup and Responsibility Act] or any other law for 

 11 Asarco is a “debtor” under the agreement.

12 Asarco asserts that it has funded the custodial trust account, and 

Atlantic Richfield’s brief concedes the point. We assume that Asarco 

has complied with the CERCLA Decree’s payment obligations with 

respect to the East Helena Site.
ASARCO V. ATLANTIC RICHFIELD 37

Debtors’ . . . future acts creating liability” under those 

statutes “that occur after the Closing Date.” CERCLA 

Decree ¶ 39 (emphasis added). The section expressly does 

not reserve any rights to hold Asarco liable under any legal 

authority with respect to then-existing contamination 

beyond its payment obligations under the agreement. See id.

The agreement also caps Asarco’s “total financial 

obligations” for past contamination at the amount specified 

in the agreement. CERCLA Decree ¶ 8.h. While it leaves 

open the possibility that Asarco may owe certain additional 

costs, those costs do not include response costs. Id. In other 

words, Asarco’s financial liability was “resolved”—i.e., 

determined with finality—under the agreement itself; the 

agreement did not expose Asarco to future liability for past 

hazardous waste releases.

The agreement also provides Asarco with protection 

against contribution actions by non-settling parties, as 

provided under CERCLA § 113(f)(2), 42 U.S.C. 

§ 9613(f)(2). CERCLA Decree ¶ 43. Contribution 

protection applies only to “[a] person who has resolved its 

liability . . . in an administrative or judicially approved 

settlement.” 42 U.S.C. § 9613(f)(2) (emphasis added). The 

agreement’s incorporation of that provision is further 

evidence that Asarco “resolved its liability” under the 

agreement. See Hobart, 758 F.3d at 768–69 (incorporation 

of provision immunizing a settling PRP from contribution 

weighed in favor of finding that the agreement resolved its 

liability).

Finally, we consider Atlantic Richfield’s concern that 

deeming Asarco’s contribution claim timely would allow 

Asarco to benefit from its own alleged neglect under the 

RCRA Decree. We sympathize with Atlantic Richfield’s 

position but cannot agree with its conclusion. Whether a 
38 ASARCO V. ATLANTIC RICHFIELD

right of contribution is available does not depend on whose 

ox gets gored: the fact that Asarco and not some other party 

was liable under the RCRA Decree does not change the fact 

that that agreement did not give rise to a right of 

contribution, whereas the CERCLA Decree did.

In sum, the CERCLA Decree constitutes a “firm decision 

about” Asarco’s liability that lends it the requisite degree of 

finality. See Bernstein, 733 F.3d at 211 n.12. We therefore 

hold that Asarco has a cognizable claim for contribution 

under CERCLA § 113(f)(3)(B) because it brought a timely 

action under an agreement that resolved its liability.13

V. Conclusion

We hold that the 1998 RCRA Decree did not resolve 

Asarco’s liability for at least some of its response obligations 

under that agreement. It therefore did not give rise to a right 

to contribution under CERCLA § 113(f)(3)(B). By contrast, 

the 2009 CERCLA Decree did resolve Asarco’s liability, 

and Asarco has brought a timely action for contribution 

under that agreement. We therefore vacate the district 

court’s grant of summary judgment and remand for further 

proceedings consistent with this opinion. On remand, the 

district court should determine whether Asarco is entitled to 

any financial contribution from Atlantic Richfield and, if so, 

how much.

 13 We express no opinion on the scope of contribution and protection 

rights where a settlement agreement, unlike this CERCLA Decree, 

resolves a PRP’s liability only for some of its response obligations. Cf. 

Whittaker, 825 F.3d at 1008 (a party may not seek contribution for 

expenses that are not “at issue in the triggering . . . settlement”).
ASARCO V. ATLANTIC RICHFIELD 39

Costs are awarded to the Appellant.

VACATED and REMANDED.