FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WHITTAKER CORPORATION, a

Delaware corporation,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

No. 14-55385

D.C. No.

2:13-cv-01741-FMO-JC

OPINION

Appeal from the United States District Court

for the Central District of California

Fernando M. Olguin, District Judge, Presiding

Argued and Submitted March 10, 2016

Pasadena, California

Filed June 13, 2016

Before: Stephen Reinhardt, Mary H. Murguia,

and John B. Owens, Circuit Judges.

Opinion by Judge Murguia;

Partial Concurrence by Judge Owens
2 WHITTAKER CORP. V. UNITED STATES

SUMMARY*

CERCLA 

The panel reversed the district court’s dismissal of

Whittaker Corporation’s lawsuit against the United States

under the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 to recover expenses

that Whittaker incurred since the 1980s from investigating

and cleaning the Bermite Site, a munitions facility in Santa

Clarita, California.

The district court dismissed the case based on its

conclusion that because Whittaker had been sued in Castaic

Lake Water Agency v. Whittaker Corp., 272 F. Supp. 2d 1053,

1069 (C.D. Cal. 2003), it could bring only a CERCLA

contribution action – not a cost recovery action – against the

United States, and the statute of limitations for a contribution

claim had expired.

Whittaker was found liable to the Castaic Lake plaintiffs

for the expenses specifically related to removing perchlorate

from the plaintiffs’ wells and replacing water; in this case,

Whittaker sought reimbursement from the government for a

different set of expenses for which Whittaker was found not

liable in Castaic Lake.

The panel held that because Whittaker sought to recover

expenses that were separate from those for which Whittaker’s

liability was established or pending, Whittaker was not

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

been prepared by court staff for the convenience of the reader.
WHITTAKER CORP. V. UNITED STATES 3

required to bring this suit as a claim for CERCLA § 113(f)

contribution. The panel concluded that Whittaker was not

barred on this basis from bringing a CERCLA § 107(a) cost

recovery action against the United States. 

Judge Owens concurred in all but Part III D because in his

view the case law has drifted from Congress’s intent when it

passed and amended CERCLA in the 1980s.

COUNSEL

Kevin M. Fong (argued), Pillsbury Winthrop Shaw Pittman

LLP, San Francisco, California; Reynold L. Siemens, Mark

E. Elliott, and Caroline L. Plant, Pillsbury Winthrop Shaw

Pittman LLP, Los Angeles, California, for PlaintiffAppellant.

Nicholas A. DiMascio (argued), Attorney, Environment and

Natural Resources Division, United States Department of

Justice, Denver, Colorado; Aaron P. Avila and Michael C.

Augustini, Attorneys; Sam Hirsch, Acting Assistant Attorney

General; Environment and Natural Resources Division,

United States Department of Justice, Washington, D.C.; for

Defendant-Appellee.
4 WHITTAKER CORP. V. UNITED STATES

OPINION

MURGUIA, Circuit Judge:

When two or more people have been found liable for

someone’s injury, and one of them pays more than her fair

share, the law often lets the person who paid too much

recover from the others, in order to even things out. This is

called the right to “contribution,” and it has deep roots in our

statutory and common law. See Nw. Airlines, Inc. v. Transp.

Workers Union of Am., AFL-CIO, 451 U.S. 77, 86–88 (1981). 

CERCLA, a federal environmental statute, also allows people

who pay to clean up pollution recover their costs from the

polluters.1See 42 U.S.C. § 9607(a). The plaintiff in this

case, Whittaker, is a company that was both found liable for

injuries caused by its pollution and that also paid to clean

pollution up. Whittaker now seeks reimbursement of its

cleanup expenses from other polluters. We must decide

whether Whittaker is limited to seeking contribution from

other polluters, or whether Whittaker may instead recover its

cleanup expenses in a CERCLA cost recovery action. We

hold that Whittaker’s liability in a prior case did not limit it

to seeking contribution for all of its expenses, so Whittaker

may use a CERCLA cost recovery action to seek

reimbursement for the cleanup costs at issue in this case.

1

“CERCLA” stands for the “Comprehensive Environmental Response,

Compensation, and Liability Act of 1980.” See generally 42 U.S.C.

§§ 9601–75.
WHITTAKER CORP. V. UNITED STATES 5

I

Whittaker Corporation is a defense contractor that

manufactures and tests munitions for the U.S. military.

2

In

1967, Whittaker acquired a munitions facility in Santa

Clarita, California, from the Bermite Powder Company (the

Bermite Site). Between 1954, when the Bermite Powder

Company was in charge, until 1987, when Whittaker ceased

operations, approximately 90 percent of the munitions

manufacturing and testing at the Bermite Site was done under

contracts with the U.S. military.

Whittaker began investigating the release of hazardous

substances at the Bermite Site in the early 1980s. In 2000,

Whittaker was sued by the Castaic Lake Water Agency and

other water providers (the Castaic Lake plaintiffs) under

CERCLA and various state laws. The Castaic Lake plaintiffs

were in the business of pumping water out of ground wells

near the Bermite Site. They alleged that their water supplies

were contaminated by a pollutant called perchlorate and other

hazardous chemicals as a result of Whittaker’s operations. 

Specifically, the Castaic Lake plaintiffs alleged:

Plaintiffs, and each of them, are injured by the

contamination (including, without limitation,

the perchlorate contamination) caused by

Defendants on a continuing basis. In addition,

Plaintiffs, and each of them, have incurred

 

2

 Because we are reviewing the district court’s decision on a motion to

dismiss, we take the factual allegations in the complaint as true and

construe them in the light most favorable to Whittaker. See Chubb

Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir.

2013).
6 WHITTAKER CORP. V. UNITED STATES

and will continue to incur costs in responding

to the contamination (including, without

limitation, the perchlorate contamination)

caused by Defendants’ activities at the Site. 

Until the contamination problems caused by

the Site are stopped, Plaintiffs will continue to

incur substantial costs for the indefinite

future.

In their CERCLA causes of action, the Castaic Lake plaintiffs

sought to recover the “costs of response” they had incurred. 

The Castaic Lake plaintiffs also alleged causes of action for

negligence, nuisance, trespass, and ultra-hazardous activity,

and in those causes of action, they sought an injunction

orderingWhittaker to “remediate and abate all contamination

and threats of contamination caused by the Site.”

The district court in Castaic Lake granted summary

judgment to the Castaic Lake plaintiffs on their CERCLA

claim based on perchlorate contamination in the plaintiffs’

wells. Castaic Lake Water Agency v. Whittaker Corp., 272 F.

Supp. 2d 1053, 1069 (C.D. Cal. 2003). Whittaker and its

insurers subsequently settled with the Castaic Lake plaintiffs

in 2007. Under the terms of the settlement, Whittaker and its

insurers agreed to reimburse the Castaic Lake plaintiffs for

costs the plaintiffs had incurred to remove perchlorate

pollution from their water wells, and to purchase replacement

water. The result of Castaic Lake was that Whittaker was

found liable for a specific set of the plaintiffs’ costs of

responding to Whittaker’s pollution; Whittaker was never

ordered in Castaic Lake to clean up the Bermite Site.

In 2013, Whittaker initiated this CERCLA lawsuit against

the United States to recover expenses Whittaker incurred
WHITTAKER CORP. V. UNITED STATES 7

since the 1980s from investigating and cleaning the Bermite

Site. Whittaker alleged that these expenses included costs for

soil sampling, borings, excavations, surveys, groundwater

sampling, and remedial operations addressing chlorinated

solvents and heavy metals. Whittaker explicitly alleged that

these expenses were separate from the costs for which it was

liable under the Castaic Lake settlement.

The United States moved to dismiss Whittaker’s

complaint, arguing that because Whittaker had been sued in

Castaic Lake, it could bring only a CERCLA contribution

action—not a cost recoveryaction—against the United States,

and that the statute of limitations for a contribution claim had

expired. The district court agreed with the United States. 

The district court concluded that, pursuant to CERCLA

§ 113, the Castaic Lake lawsuit triggered Whittaker’s right to

bring an action for contribution (i.e., reimbursement for

paying more than its fair share), and that the instant lawsuit

sought expenses that could have been reimbursed through

such a contribution action. Because Whittaker could have

brought a contribution action, the district court concluded

under our case law that Whittaker could not bring a cost

recovery action (i.e., reimbursement from a polluter for

cleanup costs). And because Whittaker only brought a cost

recovery action, the district court dismissed the complaint.

Whittaker filed this timely appeal. We have jurisdiction

under 28 U.S.C. § 1291, and we reverse.

II

We review the district court’s decision to grant a motion

to dismiss de novo. Chubb Custom Ins. Co. v. Space

Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir. 2013). We take
8 WHITTAKER CORP. V. UNITED STATES

the factual allegations in the complaint as true and construe

them in the light most favorable to the plaintiff. Id.

“Dismissal is proper when the complaint does not make out

a cognizable legal theory or does not allege sufficient facts to

support a cognizable legal theory.” Id. We review the

district court’s interpretation of a statute de novo. Id.

III

A

Congress enacted CERCLA in 1980 to facilitate the

remediation of hazardous waste sites and the resolution of

liability for the related costs, especially through negotiated

settlements. Chubb Custom, 710 F.3d at 956. One of the

ways CERCLA achieves these goals is by allowing a party

who remediates a hazardous waste site to obtain

reimbursement of its expenses from those responsible for the

pollution. See id. at 956–57.

As relevant to this case, CERCLA provides two

mechanisms for private parties to recover their environmental

cleanup expenses from other parties. First, CERCLA

§ 107(a) allows parties to bring “cost recovery” actions

against polluters for a wide range of expenses, including “any

. . . necessary costs of response incurred” and “damages for

injury to, destruction of, or loss of natural resources,

including the reasonable costs of assessing such injury,

destruction, or loss resulting from such a release [of a

hazardous substance].” 42 U.S.C. § 9607(a)3; United States

 

3 Adopting the convention of the litigants and other courts, the body of

this opinion refers to CERCLA’s Public Law sections, but citations are

provided to the sections in Title 42 of the United States Code.
WHITTAKER CORP. V. UNITED STATES 9

v. Atl. Research Corp., 551 U.S. 128, 139 (2007). In the

lingo of CERCLA litigation, a polluter who might be liable

under a § 107 cost recovery action is called a “potentially

responsible party” or “PRP.” See Chubb Custom, 710 F.3d at

956.

The other mechanism to recover cleanup expenses,

§ 113(f), allows a party to seek “contribution” in two

circumstances. Section 113(f)(1) provides, in relevant part:

Any 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 [§ 107(a)]

of this title. . . . In resolving contribution

claims, the court may allocate response costs

among liable parties using such equitable

factors as the court determines are

appropriate.

42 U.S.C. § 9613(f)(1). And § 113(f)(3)(B) provides:

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 . . . .

Id. § 9613(f)(3)(B). In short, § 113(f) generally allows a

polluter to bring a contribution claim against other polluters

if the polluter has been sued in a § 107 cost recovery action

or settled with the government.
10 WHITTAKER CORP. V. UNITED STATES

CERCLA does not define “contribution.” See id. § 9601. 

However, the Supreme Court provided a definition in United

States v. Atlantic Research, another CERCLA case:

Contribution is defined as the “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.” 

Nothing in [CERCLA] § 113(f) suggests that

Congress used the term “contribution” in

anything other than this traditional sense.

551 U.S. at 138 (quotingBlack’s Law Dictionary 353 (8th ed.

2004)).

The Supreme Court has made clear that “cost recovery”

and “contribution” are “two ‘clearly distinct’ remedies.” Id.

(quoting Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S.

157, 163 n.3 (2004)). The Court explained the distinction as

follows:

[T]he remedies available in §§ 107(a) and

113(f) complement each other by providing

causes of action to persons in different

procedural circumstances. Section 113(f)(1)

authorizes a contribution action to PRPs with

common liability stemming from an action

instituted under . . . § 107(a). And § 107(a)

permits cost recovery (as distinct from

contribution) by a private party that has itself

incurred cleanup costs. Hence, a PRP that

pays money to satisfy a settlement agreement

or a court judgment may pursue § 113(f)
WHITTAKER CORP. V. UNITED STATES 11

contribution. But by reimbursing response

costs paid by other parties, the PRP has not

incurred its own costs of response and

therefore cannot recover under § 107(a). As

a result, though eligible to seek contribution

under § 113(f)(1), the PRP cannot

simultaneously seek to recover the same

expenses under § 107(a).

Id. at 139 (internal quotation marks and citations omitted). A

party uses contribution to get reimbursed for being made to

pay more than its fair share to someone else, and uses cost

recovery to get reimbursed for its own voluntary cleanup

costs. See id. at 139 n.6.

However, problems with this distinction arise when a

party is ordered to incur its own cleanup costs. Such a party

is not reimbursing someone else, but neither are its own costs

“voluntary.” Because the procedural requirements and the

remedies for cost recovery and contribution claims are

distinct,4every federal court of appeals to have considered the

question since Atlantic Research, including this Court, has

said that a party who may bring a contribution action for

certain expenses must use the contribution action, even if a

cost recovery action would otherwise be available. See, e.g.,

Kotrous v. Goss-Jewett Co. of N. Cal., 523 F.3d 924, 932 (9th

4 Several courts have recognized that, given the choice, plaintiffs would

generally prefer to proceed under a § 107 cost recovery action, rather than

a § 113 contribution action, due to the § 107 cost recovery action’s

different statute of limitations, its provision for strict liability, its limited

defenses, and its opportunity for joint and several recovery. See, e.g.,

NCR Corp. v. George A. Whiting Paper Co., 768 F.3d 682, 690 (7th Cir.

2014); Solutia, Inc. v. McWane, Inc., 672 F.3d 1230, 1236–37 (11th Cir.

2012).
12 WHITTAKER CORP. V. UNITED STATES

Cir. 2008) (“A PRP cannot choose remedies, but must

proceed under § 113(f)(1) for contribution if the party has

paid to satisfy a settlement agreement or a court judgment

pursuant to an action instituted under . . . § 107 [for cost

recovery].”).5

Under our precedent, if Whittaker could bring its claim in

this case as a contribution action, it is required to do so. See

id. The government argues, and the district court determined,

that Whittaker’s right to bring its claim in contribution was

triggered by the Castaic Lake lawsuit, barringWhittaker from

bringing this cost recovery action. It is clear that the Castaic

Lake suit triggered Whittaker’s ability to bring a contribution

claim for at least the costs it was found liable for in that case.6

See id. The determinative question here is whether Whittaker

could, and therefore must, also bring a contribution action for

costs for which it was not found liable in Castaic Lake, after

the entry of judgment in that case.

5

See also NCR, 768 F.3d at 690–92; Hobart Corp. v. Waste Mgmt. of

Ohio, Inc., 758 F.3d 757, 767 (6th Cir. 2014) (“CERCLA’s text and

structure lead us to conclude that PRPs must proceed under § 113(f) [for

contribution] if they meet one of that section’s statutory triggers.”);

Bernstein v. Bankert, 733 F.3d 190, 206 (7thCir. 2012); Solutia, 672 F.3d

at 1237; Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594, 603 (8th

Cir. 2011) (holding “that § 113(f) [contribution] provides the exclusive

remedy for a liable party compelled to incur response costs pursuant to an

administrative or judicially approved settlement under . . . [§] 107 [for cost

recovery]”); Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc.,

596 F.3d 112, 124–28 (2d Cir. 2010) (“In our view, only § 113(f)(3)(B)

[contribution] provides the proper procedural mechanism for [the

plaintiff’s] claims.”).

 

6

 We do not here decide whether Whittaker’s contribution claim based

on its liability in Castaic Lake belongs solely to Whittaker’s insurers.
WHITTAKER CORP. V. UNITED STATES 13

B

CERCLA allows a party to bring a contribution claim in

two circumstances: “during or following” being sued in a

§ 107 cost recovery action, and after the party “has resolved

its liability to the United States or a State . . . in an

administrative or judicially approved settlement.” 42 U.S.C.

§ 9613(f)(1), (3)(B). Although CERCLA sets forth these

procedural triggers to bring a contribution claim, the statute

does not actually define “contribution,” as noted above. See

id. § 9601. The government argues that, once one of the

procedural triggers for a party’s contribution claim has

occurred, the party’s right to contribution extends to all of the

party’s expenses at the site, regardless of whether those

expenses were at issue in the triggering litigation or

settlement. However, the government’s argument

mischaracterizes the contribution remedy.

Not all of a party’s expenses related to remediating a site

fall within the scope of contribution. In Atlantic Research,

the Supreme Court explained that “costs incurred voluntarily

are recoverable only by way of § 107(a)(4)(B), and costs of

reimbursement to another person pursuant to a legal judgment

or settlement are recoverable only under § 113(f).” 551 U.S.

at 139 n.6; see also id. at 138 (rejecting the government’s

argument that contribution is “synonymous with any

apportionment of expenses among PRPs”). Although the

Supreme Court has not explicitly held that a party’s right to

contribution in a CERCLA case is limited to the costs for

which the party has been found liable, the Court’s reasoning

in Atlantic Research strongly supports that interpretation:

Contribution is defined as the “tortfeasor’s

right to collect from others responsible for the
14 WHITTAKER CORP. V. UNITED STATES

same tort after the tortfeasor has paid more

than his or her proportionate share, the shares

being determined as a percentage of fault.”

. . . [A] PRP’s right to contribution under

§ 113(f)(1) is contingent upon an inequitable

distribution of common liability among liable

parties.

By contrast, § 107(a) permits recovery of

cleanup costs but does not create a right to

contribution. A private party may recover

under § 107(a) without any establishment of

liability to a third party.

. . .

Section 113(f)(1) authorizes a contribution

action to PRPs with common liability

stemming from an action instituted under . . .

§ 107(a).

Id. at 138–39 (citation omitted). The Supreme Court’s

statement that the right to contribution is “contingent upon an

inequitable distribution of liability” indicates that a party has

a right to recover contribution only for those costs for which

it has been found liable; other costs can be recovered in a

§ 107 cost recovery action “without any establishment of

liability.” See id. This is consistent with the traditional

notion of contribution. See Restatement (Third) of Torts

§ 23(b) (2000) (“A person entitled to recover contribution

may recover no more than the amount paid to the plaintiff in

excess of the person’s comparative share of responsibility.”).
WHITTAKER CORP. V. UNITED STATES 15

Following Atlantic Research, we have also explained that

a private party must use a § 113(f) contribution action to

recover expenses paid under a settlement agreement or a

judgment. Kotrous, 523 F.3d at 932. “If, however, the

private party has itself incurred response costs, it may seek

recovery under [a cost recovery action pursuant to] § 107.” 

Id.

The two other circuits to have considered the question

have held that, even where one of the statutory triggers for a

contribution claim has occurred for certain expenses at a site,

a party may still bring a cost recovery action for its other

expenses. In Bernstein v. Bankert, the Seventh Circuit

confronted a case where some of a plaintiff’s cleanup

expenses at a site were incurred pursuant to a 1999 finalized

settlement with the EPA, and other expenses were incurred

pursuant to a 2002 consent decree that was not yet final. 

733 F.3d 190, 202–03 (7th Cir. 2012). The plaintiff in

Bernstein, the Third Site Trust Fund (the Trust), was

established by a group of companies that were potentially

responsible for pollution at a hazardous waste site. Id. at 196. 

For the expenses the Trust incurred under the finalized 1999

settlement, the Seventh Circuit held that the Trust was

required to bring a contribution action, since the settlement

“resolved its liability” and triggered § 113(f)(3)(B). Id. at

204–06. However, the Seventh Circuit also held that the nonfinal 2002 consent decree did not resolve the Trust’s liability

for those separate costs, and therefore the 2002 decree did not

trigger a right to contribution. Id. at 207–08. The Seventh

Circuit held that the Trust could bring a cost recovery action

under § 107 for the expenses it incurred under the 2002

decree, because, “[t]o the extent that the Trustees’ suit seeks

to recover expenses arising out of their performance of the
16 WHITTAKER CORP. V. UNITED STATES

2002 [consent decree], it is not a contribution action.” Id. at

207.

In NCR Corp. v. George A. Whiting Paper Co., the

Seventh Circuit reaffirmed Bernstein’s approach of separately

evaluating different sets of costs, but arrived at a slightly

different outcome. 768 F.3d 682, 690–92 (7th Cir. 2014). In

NCR, the plaintiff company, NCR, sought reimbursement for

cleanup expenses it had incurred at a site under three separate

orders from the EPA and the Wisconsin Department of

Natural Resources issued in 2001, 2004, and 2007. Id. at 691. 

NCR argued it could bring a cost recovery action for these

expenses, and that it was not limited to a contribution action. 

Id. Applying Bernstein, the Seventh Circuit held that each

order triggered NCR’s right of contribution for the expenses

covered by that order. Id. at 691–92. NCR conceded that its

expenses incurred under the 2001 order triggered its right to

contribution. Id. at 691. The Seventh Circuit held that

NCR’s expenses incurred under the 2004 order were also

required to be reimbursed through contribution, because that

order “resolved NCR’s liability” for those expenses,

triggering § 113(f)(3)(B). Id. at 692. And finally, the

Seventh Circuit held that NCR’s expenses under the 2007

order were also required to be brought in contribution,

because the government brought an action in 2010 to enforce

that order, and a contribution action is available “during or

following” an enforcement action. Id. at 691–92 (citing

42 U.S.C. § 9613(f)(1)). The Seventh Circuit rejected NCR’s

argument that the expenses it incurred under the 2007 order

before the government’s 2010 enforcement action were not

covered by NCR’s right of contribution: “Such slicing and

dicing of costs incurred under the same administrative order

makes little sense when a party’s liability for all of those
WHITTAKER CORP. V. UNITED STATES 17

costs will ultimately be determined in the enforcement

action.” Id. at 692.

In Agere Systems, Inc. v. Advanced Environmental

Technology Corp., the Third Circuit held that a partywho had

been sued in a § 107 cost recovery action could still bring its

own cost recovery action for expenses separate from the

liability established by the prior suit, because § 113 had not

been triggered for those separate costs and a contribution

action was therefore unavailable. 602 F.3d 204, 225 (3d Cir.

2010). One of the plaintiffs in Agere, TIAutomotive Systems

LLC (TI), had paid into a trust fund with other potentially

responsible parties to cover a certain set of expenses at a site

(the “Operational Unit One” expenses), even though TI had

not been sued for those expenses. Id. at 212. TI had also

previously been sued by the EPA in a cost recovery action

under § 107 for a different set of expenses (the “Operational

Unit Two” expenses), resulting in a consent decree requiring

TI to pay those separate expenses. Id. at 212–13. The Third

Circuit held that TI was not required to use a contribution

action for all of its claims, and could bring a § 107 cost

recovery action to recover its share of the Operational Unit

One expenses, even though TI had been sued by the EPA

under § 107 for the Operational Unit Two expenses. Id. at

225–26. The Third Circuit also held that another plaintiff,

Agere Systems, Inc. (Agere), could bring a cost recovery

action because it had not been sued by the EPA for the

expenses related to either Operational Unit. Id. The Third

Circuit explained that “Agere and TI do not have § 113(f)

contribution claims for the settlement sums because those

parties were never themselves sued for those amounts by the

EPA or by other PRPs.” Id. at 225 (emphasis added).
18 WHITTAKER CORP. V. UNITED STATES

Bernstein, NCR, and Agere each demonstrate that a

party’s right to contribution for some of its expenses at a site

does not necessarily mean that the party loses its right to

bring a cost recovery action for other expenses. Both

Bernstein and Agere held that plaintiffs could bring cost

recovery actions for expenses separate from those for which

the plaintiffs had a right of contribution. And NCR held that

the plaintiff was required to bring all of its claims in

contribution because each set of expenses was covered by an

order triggering the right to contribution.7

Considering the closely related issue of whether a party’s

right to contribution for some of its expenses triggers the

statute of limitations for contribution for all of its other

expenses, the First Circuit has held that the limitations

periods for separate sets of expenses are triggered

independently. Am. Cyanamid Co. v. Capuano, 381 F.3d 6,

13–15 (1st Cir. 2004). In American Cyanamid, a hazardous

waste site required both soil and groundwater remediation. 

Id. at 10–11. In previous litigation, a potentially responsible

party called the Rohm & Haas Company (R&H) was held

liable in a § 107 cost recovery action for expenses related to

 

7 The Seventh Circuit’s statement regarding the “slicing and dicing” of

costs under the 2007 administrative order is consistent with our analysis. 

The statement refers to “slicing and dicing of costs incurred under the

same administrative order,” where NCR’s “liability for all of those costs

will ultimately be determined in the enforcement action.” 768 F.3d at 692

(emphasis added). It is apparent that the Seventh Circuit did not find it

generally problematic to consider different sets of expenses separately,

because the court separately evaluated NCR’s expenses under each of the

three orders. Instead, the Seventh Circuit found it problematic to further

divide NCR’s expenses under the 2007 order, when NCR’s liability for all

of those expenses would be determined in the government’s enforcement

action.
WHITTAKER CORP. V. UNITED STATES 19

the soil cleanup. Id. at 10. R&H also entered into a separate

consent decree with the United States related to the

groundwater cleanup. Id. at 11. R&H later brought a

CERCLA contribution action against other potentially

responsible parties for its groundwater cleanup expenses. Id.

The First Circuit upheld R&H’s contribution action over the

defendants’ argument that the statute of limitations for

contribution for the groundwater expenses had been triggered

by R&H’s earlier liability for the soil expenses. Id. at 13. 

The First Circuit explained that CERCLA’s statute of

limitations for contribution claims bases the timeliness of an

“action for contribution for any response costs or damages”

on “the date of judgment in any action . . . for recovery of

such costs or damages.” Id. (quoting 42 U.S.C.

§ 9613(g)(3)). The First Circuit held that the phrase “‘such

costs or damages’ refers to the costs or damages contained in

the ‘judgment.’” Id. (emphasis added). “[A] PRP has three

years to seek contribution for costs contained within a

judgment. The statute of limitations, however, is not

triggered for costs not contained within the judgment.” Id. at

15; see also ASARCO, LLC v. Celanese Chem. Co., 792 F.3d

1203, 1215 (9th Cir. 2015) (“[T]here is no limit in the statute

to prevent a party in an early settlement from seeking

contribution related to a later settlement, as long as those

settlements cover separate obligations.”); RSR Corp. v.

Commercial Metals Co., 496 F.3d 552, 557 (6th Cir. 2007)

(“Rather than focus on who settled the cost-recovery action,

in short, the statute asks us to focus on what was settled.”). 

Although these cases considered statute of limitations

questions, their reasoning confirms that a party’s right to

contribution is limited to the expenses for which it has been

found liable.
20 WHITTAKER CORP. V. UNITED STATES

In this case, Whittaker was found liable to the Castaic

Lake plaintiffs for the expenses specifically related to

removing perchlorate from the plaintiffs’ wells and replacing

their water. Whittaker now seeks reimbursement from the

government for a different set of expenses, for which

Whittaker was not found liable in Castaic Lake.

8

 Following

the guidance of the Supreme Court and the other circuit

courts, we hold that Whittaker was not required to bring its

claims in this case in a § 113(f) contribution action after its

liability was resolved in Castaic Lake.

C

The government presents two text-based arguments for

why a party who has been sued in a § 107 cost recovery

action for expenses related to pollution at a site should be

limited to a contribution action for all of the party’s expenses

at the site, regardless of whether the expenses are covered by

the liability established by the prior § 107 suit. We find

neither argument persuasive.

First, noting that § 113(f)(1) allows a contribution action

to be brought “during or following” a cost recovery action

under § 107, see 42 U.S.C. § 9613(f)(1), the government

argues that a party’s right to contribution cannot be limited to

the liability established by the § 107 cost recovery action. 

After all, it would not make sense to permit a party to recover

contribution before its liability is established if the party’s

right to contribution is limited to its established liability. 

However, the Supreme Court has explained that:

8 Nor is Whittaker’s own liability for the expenses it seeks in this case

pending in any other litigation, as far as we are aware.
WHITTAKER CORP. V. UNITED STATES 21

The statute authorizes a PRP to seek

contribution “during or following” a suit

under . . . § 107(a). Thus, § 113(f)(1) permits

suit before or after the establishment of

common liability. In either case, a PRP’s

right to contribution under § 113(f)(1) is

contingent upon an inequitable distribution of

common liability among liable parties.

By contrast, § 107(a) permits recovery of

cleanup costs but does not create a right to

contribution. A private party may recover

under § 107(a) without any establishment of

liability to a third party.

Atl. Research, 551 U.S. at 138–39 (emphasis added; citation

omitted). While the statute permits a party to initiate a

contribution action while a § 107 cost recovery suit is

pending, actual recovery of contribution under § 113(f)(1) is

limited to the expenses for which the party is found liable.9

See Bernstein, 733 F.3d at 207 (“To the extent that the

Trustees’ suit seeks to recover expenses arising out of their

performance of the 2002 [consent decree], it is not a

contribution action.”); United States v. Davis, 261 F.3d 1, 46

(1st Cir. 2001) (“This [statutory] language anticipates that a

defendant in a § [107] cost recovery action may initiate a

contribution action before its own liability is established. 

Consistent with this scheme, a § [107] defendant whose

liability has been established may be awarded declaratory

9 A party may also be able to obtain a declaratory judgment in a

contribution action, in order to assign proportionate liability for any

uncertain future expenses. See Boeing Co. v. Cascade Corp., 207 F.3d

1177, 1191–92 (9th Cir. 2000).
22 WHITTAKER CORP. V. UNITED STATES

relief before that liability has been fully discharged.”). This

is how contribution claims traditionally work. See

Restatement (Third) of Torts § 23(b) & cmt. b.10 For this

reason, it was not the terms of the Castaic Lake complaint

that determined Whittaker’s right to recover contribution, but

rather the extent of the costs for which Whittaker was held

liable in that case.

Second, noting that § 113(f)(1) allows a contribution

action to be brought against “any other person who is liable

or potentially liable” under § 107, see 42 U.S.C. § 9613(f)(1),

the government argues that, once a contribution claim has

been triggered, the scope of expenses recoverable in

contribution is coextensive with the scope of potential

liability under § 107, including “any . . . necessary costs of

response incurred” by a party, see id. § 9607(a)(4)(B). If the

right to contribution were so broad, there would be no reason

for courts to evaluate different sets of expenses separately in

deciding whether a party has a contribution claim, yet

evaluating expenses separately is precisely what courts have

done. See, e.g., NCR, 768 F.3d at 690–92; Bernstein,

 

10 As explained in the comment:

A person seeking contribution must extinguish the

liability of the person against whom contribution is

sought for that portion of liability, either by settlement

with the plaintiff or by satisfaction of judgment. As

permitted by procedural rules, a person seeking

contribution may assert a claim for contribution and

obtain a contingent judgment in an action in which the

person seeking contribution is sued by the plaintiff,

even though the liability of the person against whom

contribution is sought has not yet been extinguished.

Restatement (Third) of Torts § 23 cmt. b (citations omitted).
WHITTAKER CORP. V. UNITED STATES 23

733 F.3d at 207–08; Agere Sys., 602 F.3d at 225–26; Am.

Cyanamid, 381 F.3d at 14–16. Section 113(f)(1)’s reference

to § 107’s potentially responsible parties indicates from

whom contribution may be sought, not the scope of expenses

that are recoverable in contribution.

D

Finally, our holding is consistent with CERCLA’s

purposes. As noted above, CERCLA was intended to

incentivize both environmental cleanup efforts and negotiated

settlements of liability. Chubb Custom, 710 F.3d at 956. 

Allowing a party who has incurred substantial environmental

response costs over a span of decades to recover from other

potentially responsible parties serves these dual goals. See

Fireman’s Fund Ins. Co. v. City of Lodi, Cal., 302 F.3d 928,

948 (9th Cir. 2002) (“Potential purchasers of abandoned or

underutilized contaminated properties are often deterred from

purchasing and cleaning up these properties by exposure to

unbounded and uncertain liability.”); Bernstein, 733 F.3d at

214 (“[T]he cost recovery action is subject to a longer statute

of limitations, making it arguably the preferable recovery

vehicle for a PRP embarking on what might well be a decadelong cleanup effort, and thus actually creating a further

positive incentive to settle.”).

We recognize that CERCLA’s goal of encouraging

prompt settlement may also be served by interpreting the

right of contribution broadly, because the imposition of a

shorter statute of limitations would incentivize parties to

initiate lawsuits sooner. See 42 U.S.C. § 9613(g); ASARCO,

792 F.3d at 1211. Yet such a broad interpretation of

“contribution” is inconsistent with the balance struck by

Congress and with the Supreme Court’s interpretation of the
24 WHITTAKER CORP. V. UNITED STATES

term. We do not believe that Congress mandated parties who

have been sued in § 107 cost recovery actions to bring all of

their own CERCLA claims in the form of a contribution

action, on an accelerated timeframe, regardless of the merit

or the result of the § 107 cost recovery suit.

IV

Because Whittaker seeks to recover expenses that are

separate from those for which Whittaker’s liability is

established or pending, Whittaker was not required to bring

this suit as a claim for contribution. Whittaker therefore is

not barred on this basis from bringing a cost recovery action

against the United States.

REVERSED and REMANDED.

OWENS, Circuit Judge, concurring in all but Part III D:

The Court’s opinion persuasively follows current

Supreme Court and circuit law interpreting the relevant

statutory provisions, so I concur. Yet I do not join Part III D,

as the case law, in my view, has drifted from what Congress

intended when it passed and amended CERCLA in the 1980s. 

See Chubb Custom Ins. Co. v. Space Sys./Loral, Inc.,

710 F.3d 946, 956 (9th Cir. 2013).

Requiring all related contribution claims to be “dealt with

in a single action” would “encourage private partysettlements

and cleanup” because the threat of being sued “as a thirdparty defendant, concurrent with the original litigation, has

the effect of bringing all such responsible parties to the
WHITTAKER CORP. V. UNITED STATES 25

bargaining table at an early date.” H.R. Rep. No. 99-253, pt.

1, at 80 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2862. 

Rather than dining at the same table for one big CERCLA

feast, our holding—dictated in my view by language in

Atlantic Research—permits adversaries to fight for

generations over moldy leftover crumbs. Good for lawyers,

but bad for the environment and the communities affected by

the contamination.

I urge Congress to take a second look at this aspect of

CERCLA.