F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

W H I T T A K

E R C O R P O R A T I O N , a Delaware corporation,

Plaintiff-Appellant

,

v.

U N I T E D S T A T E S O F A M E R I C A , Defendant-Appellee. No. 14-55385

D.C. No. 2:13-cv-01741-F MO-J C

OPI N I ON

A ppeal from the United States District Court for the Central District of California F ernando M. Olg

uin, District J udg e, Presiding

Arg ued and Submitted March 10, 2016 Pasadena, California

F iled J une 13, 2016

B e fore: Stephen Reinhardt, Mary H. Murg uia, and J ohn B . Owens, Circuit J udg es.

Opinion by

J udg e Murg uia; Partial Concurrence by

J udg e OwensW H I T T A K E R C O R P

. V

. U N I T E D S T A T E S 2

SUMMARY *

CERCLA

The panel reversed the district c ourt’s dismissal o f W h ittaker Corporation’s lawsuit a g ainst the United States under th e C o m p r e h e n s i v e E n v i r onmental Response, Compensation, and L iability Act of 1 980 to recover ex penses t h at W hittaker incurred since the 1980s from investig at i n g and cleaning the B ermite Site, a munitions facility in Santa Clarita, California.

The d istrict court d i s m i ssed the case based o n its conclusion that b ecause W hittaker had been sued in Castaic Lake W a ter A gency v. W

hittaker Corp.
, 272 F

. Supp. 2d 1053, 1069 ( C

. D

. Cal. 2003), it could b ring only a CERCL A contribution action – not a cost recovery action – ag ainst the United States, and the statute of limitations for a contribution claim had ex pired.

W h ittaker was found liable to the Castaic Lake plaintiffs for the ex penses specifically related to removing p erchlorate from the plaintiffs’ w ells a nd replacing water; in this c ase, W h ittake r soug ht reimbursement f rom the g overnment f

or a different set of ex

penses for which W hittaker was found not liable in Castaic Lake

. The panel held that because W hittaker soug ht to recover

ex p enses that were separate from those for which W hittaker’s l iability was established or p ending

, W hittaker was no t

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.W H I T T A K E R C O R P

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. U N I T E D S T A T E S 3

r e quired to bring this suit as a claim f or CERCL A § 113(f

) contribution. The panel concluded that W hittaker was not barred on this basis f

r om bring ing a CERCL A § 107(a) cost recovery action ag ainst the United States.

J udg e O wens concurred in a ll but Part I I I D because in his view the case law has drifted from Cong ress’s intent w h en it passed and amended CERCL A in the 1980s.

COUNSEL

Kevin M. F ong ( arg u e d ), Pillsbury Winthrop Shaw Pittman L L P, San F rancisco, California; R ey nold L

. Siemens, Mark E. Elliott, and Caroline L

. Plant, Pillsbury W inth r o p S haw Pittman L L P, L os Ang eles, California, f or PlaintiffAppellant.

Nicholas A. DiMascio (arg ued), Attorney , Environment and N a t ural Resources Division, U nited States Department o f J ustice, D enver, Colorado; Aaron P. Avila and Michae l C

. Aug ustini, Attorney s; Sam Hirsch, Acting Assistant Attorney General; E n vironment and Natural Resources D ivision, United States Department of J ustice, Washing ton, D.C.; for Defendant-Appellee.W H I T T A K E R C O R P

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. U N I T E D S T A T E S 4

OP INION

MURGUI A, Circuit J udg e:

W h en two or more people have been found liable for someone’s injury

, and one o f t h e m pay s more than her fair share, the law of

t e n lets the p erson who paid too much

recover from the others, in order to e v e n t h i n g s out. T his is called the rig ht to “contribution,” and it has deep roots in our statutory and common law. S ee Nw. Airlines, Inc. v. Transp. W orkers Union of

Am., AFL-CIO
, 4 51 U.S. 77, 8 6–88 (1981). CERCL A, a federal environmental statute, also allows people who pay to clean up pollution recover their costs from the polluters. 1 See 42 U.S.C. § 9607(a). The p l a i n t iff in this case, W hittaker, is a company that was b oth found liable for injuries caused by its pollution and that also p a id to clean pollution up. W hittaker now see k s reimbursement of its cleanup ex penses from other polluters. W e must decide whether W hittaker is limited to seekin g c ontribution from other polluters, or w hether W hittaker may instead recover its cleanup ex p enses in a CERCL A cost recovery action. W e hold that W hittaker’s liability in a prior case d i d not limit it
to seeking contribution fo r al l o f its ex p enses, so W hittaker
may u se a CERCL A cost recovery action to seek reimbursement for the cleanup costs at issue in this case.

1 “ CERCL A ” stan d s f

o r th e “ Co m

p reh en siv e En v iro n m en tal Resp o n se, Co m p en satio n , an d L iab ility A ct o f 1 9 8 0

. ” See g en era lly 4 2 U.S.C. § § 9 6 01

– 7 5

.W H I T T A K E R C O R P

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. U N I T E D S T A T E S 5

I

W h ittaker Corporation is a defense contractor t h at manufactures a n d tests munitions for the U.S. military

. 2 I n 196 7, W h ittaker acquired a munitions facility in Santa Clarita, California, from the B ermite Powder Company (the B ermite Site). B etween 1954, when the B ermite Powder Company was in charg e, until 1987, when W h ittaker ceased operations, appro x imately 90 percent of the munitions manufacturing and testing at the B ermite Site was done under contracts with the U.S. military

.

W h itt a ker beg an investig ating the release of haz ardous substances a t t h e B ermite Site in the early 1980s. I n 2000, W h ittaker was sued by t h e C astaic L a ke W ater Ag ency a nd other water p roviders (the Castaic L a k e plaintiffs) under CERCL A and various state laws. The Castaic Lake plaintiffs

were in the business of pumping water o u t of g round wells

near the B ermite Site. They alleg e d that their water supplies

were contaminated by a pollutant called p erchlorate and other haz a rdous chemicals as a result of W h i t t a k er’s operations. Specifically , the Castaic Lake plaintiffs alleg ed:

Plaintiffs, and each of them, a r e injured by the contamination ( including

, without limitation, the perchlorate contamination) c aused b y Defendants on a continuing basis. I n addition, Plaintiffs, a

nd each o f them, have incurred

2 B ecau se w e are rev i ew in g th e d istrict co u rt’ s d ecisio n o n a m otio n to d ism iss, w e tak e th e f

actu al alleg a t i o n s in th e co m p lain t as tru e an d

co n stru e th em in th e lig h t m o st f av o rab le to W h ittak er. S ee C h u b b Cu sto m In s. Co

. v

. S

p a ce S ys./Lo r al, In c. , 7 10 F.3 d 9 4 6
, 9 5 6 (9 th Cir. 2 0 1 3 ).W H I T T A K E R C O R P

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. U N I T E D S T A T E S 6

and will continue to incur costs in responding
to the contamination (including

, without limitation, the perchlorate contamination) caused by Defenda n t s ’ activities at the Site. Until the contamination problems caused b y the Site are stopped, Plaintiffs will continue to incur substantial costs for the indefinite future.

I n their CERCL A causes of action, the Castaic Lake plaintiffs
soug h t to recover the “cost s of response” they had incurred. The Castaic Lake plaintiffs also alleg ed causes of action for
neg lig ence, nuisance, trespass, and u ltra-haz ardous a ctivity

, and in those causes o f a ct i o n , they soug h t an injunction ordering W hittaker to “remediate and a bate all contamination and threats of contamination caused by the Site.”

The district court in Ca staic Lake g r anted summary judg ment to the Castaic Lake p laintiffs on t h e i r CERCL A claim based on perchlorate contaminatio n i n the plaintiffs’ wells. Castaic Lake W

a ter Agency v. W

hittaker Corp.
, 272 F

. Supp. 2d 1053, 1069 (C.D. Cal. 2 003). W hittaker and its insurers subsequently settled with the Castaic Lake plaintiffs in 2 007. Under the terms of the settlement, W hittaker and its insurers ag reed t o reimburse the Castaic Lake plaintiffs for
costs the plaintiffs h a d incurred to remove p erchlorate pollution f

rom their water wells, and to purchase replacement
water. The result of Castaic Lake was that W hi t t a ker was found liable for a specific set of the plaintiffs’ costs o f responding to W h ittaker’s p ollution; W hittaker was never ordered in Castaic Lake to clean up the B ermite Site.

I n 2013, W hittaker initiated this CERCL A lawsuit ag ainst the United States to recover e x penses W hittaker incurredW H I T T A K E R C O R P

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. U N I T E D S T A T E S 7

since the 1980s from investig a ting and cleaning the B ermite Site. W hittaker alleg ed that these ex p enses included costs for soil sampling

, boring s , ex cavations, survey s, g roundwater sampling

, and remedial operations addressing chlorinated solvents and heavy

metals. W hittaker ex plicitly alleg ed that these ex penses were separate from the costs for which it was liable under the Castaic Lake settlement.

The United States mov e d t o dismiss W hittaker’s complaint, arg uing that because W hittaker had be e n s u ed in Ca s t a i c Lake

, it could bring o nly a CERCL A contribution action—not a cost reco v e r y a c t i o n

— ag a inst the United States, and that the statute of limitations for a contribution claim h ad

e x pired. T he district c o urt ag reed with the United State s

. The district court c o n c luded that, pursuant to CERCL A § 113, the Castaic Lake lawsuit trig g ered W hittaker’s r ig ht to bring an action for contribution ( i. e

. , reimbursement for
pay ing mor e than its fair share), and that the instant lawsuit
soug h t e x penses that could have been reimbursed throug h such a contribution action. B ecause W h i ttaker c ould have broug ht a contribution action, the district court concluded under our c ase law that W hittaker could not bring a cost recovery action ( i.e.
, reimbursement f rom a p ollute r for cleanup c osts). A nd because W h itt a k er only b roug ht a cost recovery action, the district court dismissed the complaint.

W h ittaker filed this timely appeal. W e have jurisdiction under 28 U.S.C. § 1291, and we reverse.

I I

W e review the district c o urt’s decision to g rant a motion
t o d i s m i s s de novo

. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc.
, 710 F .3d 946, 956 (9th Cir. 2 013). W e takeW H I T T A K E R C O R P

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. U N I T E D S T A T E S 8

the factual alleg ations in the c omplaint as true and const r u e them in the lig ht most favorable to the plaintiff. Id. “Dismissal is proper w h e n t h e complaint does not make out

a cog niz able leg al theory or does not alleg e sufficient facts to support a cog niz able leg al theory

. ” Id. W e review the district court’s interpretation of a statute de novo

. Id.

I I I

A

Cong r ess enacted CERCL A in 1 980 t o f acilitate the remediation of haz ardous waste sites and the resolution o f liability for the r elated costs, e specially th r o u gh neg otiated settlements. Chubb Custom
, 7 1 0 F .3d at 9 5 6. One of the
way s CERCL A a chieves these g oals is by allowing a party wh o remediates a haz ardous waste site to obtain reimbursement of its e x penses from those responsible for the pollution. See id . at 956–57.

As rele vant to this case, CERCL A provides two mechanisms for private parties to recover their environmental cleanup e x penses from o t h e r parties. F irst, CERCL A § 1 0 7(a) allows parties to bring “cost recovery ” actio n s ag ainst polluters for a wide rang e of ex penses, including “any

. . . necess a

ry costs of response incurred” and “damag es for injury t o , d estruction of, or loss of natural resources, including t h e r easonable c osts of assessing such injury

, destruction, o r l o s s resulting from such a release [ of a haz a rdous substance] .” 42 U.S.C. § 9607(a) 3 ; United States

3 A d o p t in g th e co n v en tio n o f th e litig an ts an d o th er co u rts, th e b o dy o f th is o p in i o n ref

e r s to CERCL A ’ s Pu

b lic L aw sectio n s, b u t citatio n s are p ro v id ed to th e sectio n s in T itle 4 2 o f

th e Un i ted States Co d e.W H I T T A K E R C O R P

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. U N I T E D S T A T E S 9

v. Atl. Research Cor

p

. , 5 5 1 U.S. 128, 139 (2007). I n the l i n g o of CERCL A litig ation, a polluter who mig ht b e liab l e under a § 107 cost recovery act ion is called a “potentially responsible party ” or “PRP.” See Chubb Custom
, 710 F .3d at 956.

The other mechanism to r ecover clea n u p ex penses, § 113(f), allows a party t o seek “contribution” in two circumstances. Section 113(f)(1) provides, in relevant part:

Any person may seek contributi o n from any other person who is liable or p otentially liable under [ § 107(a)] of this ti t le, during o r following any civil action

. . . under [ § 107(a)]

o f t h i s title.

. . . I n resolving contributio n cl ai ms, the court may a llocate response costs among liable p arties using such equi table f a ct o r s a s t h e c o u r t d e t e r m i n e s a r e appropriate.

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

A person who has reso l v e d i ts liability to the United States or a Sta t e f or some or all of a response action o r f

or some o r all of the costs of such action in a

n a dministrative o r judicially approved se ttlement may seek contribution from any person who is not party to a settlement . . . .

Id. § 9 6 1 3(f)(3)(B )

. I n short, § 113(f) g enerally allows a polluter to b ring a contribution claim ag ainst other polluters if the polluter h a s b een sued in a § 1 07 cost recovery action or settled with the g overnment.W H I T T A K E R C O R P

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. U N I T E D S T A T E S 10

CERCL A d oes n ot define “ contribution.” See id. § 9601. However, the Supreme Court provided a definition in United States v. Atlantic Research , another CERCL A case:

Contr i b u tion is d efined as the “tortfeasor’s rig ht to collect from others responsible f or the

same to rt after the tortfeasor has paid more than his o r her proportionate share, the shares being determined as a percent a ge of fault.” Nothing in [ CERCL A ] § 113(f) sug g ests that Cong r ess u sed the term “con tribution” in
any thing other than this traditional sense.

551 U.S. at 138 (quoting B lack’s L a w Dictionary 353 ( 8th ed. 2004)).

The Supreme Court has made clear tha t “cost recovery ” and “contribution” are “two ‘clearly distinct’ remedies.” Id. (quoting Cooper Indus., Inc. v. A v iall Servs., Inc.
, 5 4 3 U

. S

. 157, 163 n.3 ( 2004)). The Court ex p lained the distinction a s follows:

[ T] he remedies a v a i l able in §§ 107(a) a nd 113(f) complement each other b y providing

causes of action to persons in d iffer ent procedural circumstances. Section 1 1 3 (f)(1) authoriz es a contribution action to PRPs with

common liability stemming f r om an action i n s t i t u ted under

. . . § 107(a). A nd § 107(a ) permits cost r ec o v e r

y (as distinct f

rom contribution) by

a private party

that has itself incurred cleanup costs. H ence, a PRP that
pay s money to satisfy a settlement ag reement

or a c ourt judg ment may p ursue § 113(f)W H I T T A K E R C O R P

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. U N I T E D S T A T E S 11

contr i b u tion. B ut by reimbursing response cost s paid by other parties, the PRP h as not i n c u r red its own costs of response a n d therefore cann o t recover under § 107(a). A s

a result, thoug h elig ible to seek contributio n

u n d e r § 1 1 3 ( f

) ( 1 )

, t h e P R P c a n n o t simultaneously seek to r ecover the same

ex p enses under § 107(a).

Id. at 139 (internal quotation marks and citations omitted). A party u s e s c ontribution to g et r eimbursed for b eing made to pay m o r e t h an its fair share to someone else, and uses cost recovery to g et reimb u rs e d for its own voluntary cleanup
costs. See id. at 139 n.6.

However, problems with this distinction a rise when a party is ordered to incur its own cleanup costs. Such a party is not reimbursing someone e lse, but neither are its own costs “voluntary .” B ecause the procedural r eq uirements and the

r e m edies f

or cost recovery and c ontribution claims are distinct, 4 e very federal c ourt of appeals to have considered the question since Atlantic Research

, i n cluding this Court, has said that a party who may bring a contribu t ion action for certain ex penses must u s e 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 Sev eral co u rts h av e reco g n ized t h at, g iv en t

h e ch o i ce, p lain tif

f s w ou ld
g en erally p ref

er to p ro ceed u n d er a § 1 0 7 co st reco v ery actio n , rath er th an

a § 1 1 3 co n trib u tio n actio n , d u e t o th e § 1 0 7 co st r e co v ery actio n ’ s d if f eren t statu te o f

lim itatio n s, its p ro v isio n

f o r strict liab ility , its lim ited d ef en ses, an d i ts o p p o rtu n i ty f o r j o i n t an d sev eral r e c o v ery

. S ee, e.g

. , NCR Co rp

. v. Geo rg e A. W h itin g Pa p er Co

. , 76 8 F.3 d 6 8 2
, 6 90 (7 th Cir. 2 0 1 4 ); S o lu tia

, In c. v. McW

a n e, In c. , 6 7 2 F.3 d 12 3 0
, 1 2 3 6

– 3 7 (1 1 th Cir. 2 0 1 2 ).W H I T T A K E R C O R P

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. U N I T E D S T A T E S 12

Cir. 2008) (“A PRP cannot choose remedies, b u t must proceed under § 113(f)(1) for cont ri b u tion if the p arty has
p a i d to satisfy a settlement ag reement or a court judg m e n t pu rs u a n t t o an action instituted under

. . . § 107 [ for cost recovery ].”). 5

Under our precedent, if W hittaker could bring its claim in this case as a contribution action, it is required to do so. See id. T he g overnment arg ues, and the d istrict court determined, that W hittaker’s rig h t to bring its claim in contributio n was trig g ered by the Castaic Lake lawsuit, barring W hittaker from bring ing this cost recovery action. I t is clear that the Castaic Lake suit trig g ered W hittaker’s ability to bring a contribution claim for at least the costs it was found liable for in that case. 6 See id. T he determinative question here is whether W hittaker could, and therefore must, also bring a c o ntribution action for
costs f or which it was not found liable in Castaic Lake

, a fter the entry of judg ment in that case.

5 S ee also NCR
, 7 6 8 F.3 d at 6 9 0

– 9 2 ; Ho b a rt Co rp

. v. W a s te Mg mt. o

f Oh io

, In c. , 7 5 8 F.3 d 7 5 7
, 7 6 7 (6 th Cir. 2 0 1 4 ) (“ CERCL A ’ s tex t an d
stru ctu re lead u s to co n clu d e th at P RP s m u st p ro ceed u n d er § 1 13 (f ) [f or

co n trib u tio n ] if th ey m eet o n e o f th at sectio n ’ s statu to ry trig g ers.”); Bern stein v. Ba n kert

, 7 3 3 F.3 d 1 9 0
, 2 0 6 (7 th Cir. 2 0 1 2); S o lu tia
, 6 7 2 F.3 d
at 1 2 3 7 ; Mo rriso n En ters., LLC v. Dra vo Co rp

. , 6 3 8 F.3 d 5 9 4
, 6 0 3 (8 th Cir. 2 0 1 1 ) (h o l d in g “ th at § 1 1 3 (f ) [co n trib u t i o n] p ro v i d es th e ex clu siv e

rem ed y f or a liab l e party co m

p elled to i n cu r resp o n se co sts p u rsu an t to an ad m i n istrativ e o r j u dicially ap p ro v ed settlem en t u n d er

. . . [§ ] 10 7 [f o r co st

reco v ery ]”); N

ia g a r a Mo h a w k Po wer Co rp

. v. Ch evro n U.S .A., In c. , 5 9 6 F.3 d 1 1 2 , 1 24

– 2 8 (2 d C ir. 2 0 1 0 ) (“ In o u r v i ew , o n ly § 1 1 3 (f )(3 )(B ) [co n trib u tio n ] p ro v id es t h e p ro p er p ro ced u ral m ech an ism f o r [th e p lain tif f ’ s] claim s .”).

6 W e d o n o t h ere d ecid e w h eth er W h ittak er’ s co n trib u tio n claim b ased

o n its liab ility

in Ca sta ic La ke b elo n g s so lely to W h ittak er’ s in su

rers.W H I T T A K E R C O R P

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. U N I T E D S T A T E S 13

B

CERCL A allows a party to bring a c ontribution claim in
two c ircumstances: “ d

u ring or following ” being sued in a § 107 cost recovery action, and after the party “has resolved its liability to the Unit e d S t a t e s or a State

. . . in an administrative or judicially approved settlement.” 42 U .S.C. § 9613(f)(1), (3)(B ). Althoug h CERCL A set s f o r th these procedural trig g e rs to bring a c ontribution claim, the statute does not actually define “contribution,” as noted above. See id. § 9 601. Th e g overnment arg u es that, once one of the procedural trig g er s for a p arty ’s contribution c laim has occurred, the party ’s r ig ht to contribution ex tends to all of the party ’s ex penses at the site, rega r d l ess of whether those

ex p enses were at is s u e in the trig g ering litig ation o r

s e t t l e m e n t. However, the g o v er n m e n t ’ s ar gu m e n t mischaracteriz es the contribution remedy

.

Not all of a party ’ s ex penses related to remediating a site fall within the scope of c o n tribution. I n Atla ntic Research

, the Supreme Court ex plained that “ c osts incurred voluntarily

are recoverable only by w ay of § 1 0 7 (a ) (4)(B )

, and costs o f reimbursement to a

n other person pursuant to a leg al judg ment

or settlement are recoverable only u nder § 113(f).” 551 U.S.
at 139 n .6; see also id. a t 138 (rejecting the g overnment’s
arg ument that contribution is “sy nony mous w i t h any apportionment of ex p e n ses among PRPs”). Althoug h the Supreme Court has not e x plicitly held that a party ’s ri g ht to contribution in a CERCL A case is limited to the c o s t s f o r which the party

has been found liable, the Court’s r easoning in Atlantic Research strong ly supports that interpretation:

Contribution i s d efined as the “tortfeasor’s rig ht to collect from others responsible f or theW H I T T A K E R C O R P

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. U N I T E D S T A T E S 14

same tort after the t ortfeasor has paid more than his or her proportionate share, the shares being determined as a perce n t a g e of fault.”

. . . [ A] PRP’s rig ht to contribution under § 113(f)(1) is conting ent upon an inequita b l e distribution of common liability among liable parties.

B y co n trast, § 1 07(a) permits recovery o f cleanup costs but does not create a rig h t to contribution. A priv a t e party may recover under § 107(a) without any est a b lishment o f liability to a third party

.

. . .

Sect i o n 113(f)(1) authoriz e s a contribution action to PRPs w i t h common liability stemming from an action instituted under . . . § 107(a).

Id. at 138–39 (c i t ation omitted). The Supreme Court’s
statement that the rig h t to contribution is “conting ent u pon an inequitable distribution of liability ” indicates that a party has

a rig ht to recover contribution only for those costs for which it has been f

ound lia b l e ; o ther costs can be recovered in a § 107 c o s t r ecovery action “without any establishment o f liability .” See id. This is consistent with the tr a d i t ional notion o f contribution. See Restatement (Third) o f Torts § 23(b) ( 2000) ( “A person entitled to recover contribution
may recover no more than the a mount paid to the plaintiff in

ex c e ss of the person’s c omparative share of responsibility .”).W H I T T A K E R C O R P

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. U N I T E D S T A T E S 15

F ollowing Atlantic Research

, we have also ex plained that

a p rivate party must u se a § 113(f) contribution action t o

recover ex penses p aid under a settlement ag reement or a judg ment. Kotrous
, 523 F .3d at 932. “I f, however, the private party has itself incur red response costs, it may seek
recovery under [ a cost r e c overy action pursuant to] § 1 07.” Id.

The two other c ircuits to have c o n s i d ered the question have held that, even where one of the statutory trig g ers for a contribution claim h as occurred for certain ex penses at a site,

a party may still brin g a c o st recovery action for its other

ex p enses. I n Bernstein v. Bankert

, the Seventh Circuit confronte d a case where some of a plaintiff’s cleanup

ex p enses at a site were incurred pursuant to a 1999 finaliz ed settlement w ith the EPA, and other ex penses were incurred pursuant to a 2002 consent decree that was not y et final. 733 F

. 3d 190, 202–03 (7th Cir. 2012). T h e p laintiff in B ernstein
, the Third Site Trust F und (the Trust), was established b y a g roup o f c ompanies tha t were potentially responsible for pollution at a haz a rdous waste site. Id. at 196. F or the ex penses the Trust incurred under the finaliz ed 1999 settlement, the Seventh Circuit held that the T r ust was required to b ring a contribution action, since the settlement “resolved its liability ” and trig g ered § 113(f)(3)(B ). Id. at 204–06. However, the Seventh Circuit a lso held that the nonfinal 2002 consent decree d id not r e solve the Trust’s liability for those separate costs, and therefore the 2002 decree did not trig g er a rig ht to contribution. Id. at 2 07–08. The Seventh Circuit held that the T rust could bring a cost recovery action under § 107 for the ex penses it incurred under t h e 2 0 02 decree, because, “[ t] o the ex tent that the Trustees’ suit seeks
t o recover e x penses arising out of their performance of theW H I T T A K E R C O R P

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. U N I T E D S T A T E S 16

2002 [ consent decree]

, it is not a contribution action.” Id. at 207.

I n NCR Corp. v. George A. W hiting Paper Co.
, the Seventh Circuit reaffirmed B e r n s t e i n ’ s a p p r o ach of separately evaluating different se ts of costs, but arrived at a slig htly different outcome. 768 F .3d 682, 690–92 (7th Cir. 2014). I n NCR
, the plaintiff company , NCR, soug h t reimbursement for cleanup ex penses it had incurred at a site under three separate orders f r o m the EPA a

nd the W isconsin Department o f Natural Resources issued in 2001, 2004, a nd 2007. Id. at 691. NCR arg ued it could b ring a cost recovery acti on for these

ex p enses, and that it was not limited to a contribution action. I d

. Apply ing Bernstein
, the Seventh Circuit held that ea c h order trig g ered NCR’s rig ht of contribution for the ex penses covered b y that order. I

d. at 6 91–92. NCR conceded that its

ex p enses incurred under the 2001 order trig g ered its rig h t to contribution. Id. at 691. The Seven t h Circuit held that NCR’s ex penses incurred under the 2 004 o rder w e r e also required to b e reimbursed throug h contribution, because that order “resolved NCR’s liability ” f or those ex penses, trig g ering § 113(f)(3)(B ). Id. at 692. A n d finally

, the Seventh Circuit held that NCR’s ex p enses under the 2007 order w ere a l s o required to be broug ht in contribution, because the g overnment broug ht an action in 2010 to e nforce that o rder, a

nd a contribution action is available “during o r followi n g” an enforcement action. Id. at 691–92 (citing 42 U.S.C. § 9613(f)(1)). The Seventh Circuit rejected NCR’s
arg ument tha t the ex penses it incurred under the 2007 order before the g over n m ent’s 2010 enforcement action were not covered by NCR’s rig ht of c ontribution: “Such slic i n g a nd dicing of costs incurred under the same administrative order makes little sense when a party ’s lia b ility for all of thoseW H I T T A K E R C O R P

. V

. U N I T E D S T A T E S 17

costs w ill u ltimately be dete rmined in the enforcement action.” Id. at 692.

I n Agere Systems, Inc. v. A d v anced Environmental Technology Corp.
, the Third Circuit held that a party who h ad been sued in a § 107 cost recovery action could still bring its

own c ost recovery action for ex p enses s e p a r a te from the liability established b y the prior sui t , b e c ause § 113 had not been trig g ered for those separate costs and a con t r i bution action was therefore unavailable. 602 F

. 3d 204, 225 ( 3d Cir. 2010). O ne of the plaintiffs in Agere
, T I Automotive Sy stems L L C ( T I )

, had paid into a trust fund with other potentially responsible parties to cover a certain set of ex penses at a site (the “ Operational Unit One” ex pen s e s )

, even thoug h TI h ad

n o t been sued for those ex penses. Id. at 212. TI had a l s o previously been sued b y the EPA in a cost recovery action under § 107 for a different set of ex penses (the “Operational Unit Two” ex penses), resulting in a consent d ecree requiring TI to p ay those separate ex penses. Id. at 212–13. The Third Circuit held that TI w as not required t o u s e a contribution action for a ll of its claims, and cou l d bring a § 107 cost recovery action to recover its s h a re of the Operational Unit One ex p enses, even thoug h TI had been s u e d b y the EPA under § 107 f

or the Operational Un i t T wo ex penses. Id. at 225–26. The Thir d Circuit also held that another plaintiff, Ag er e Sy stems, I nc. (Ag ere), could bring a cost r e covery action because it had not been sued by the EPA f o r the

ex p e n ses r elated to either Operational Unit. Id. T h e Third Circuit ex p lained that “Ag ere and TI do not have § 1 1 3(f) contribution claims f

or the settlement sums becau s e those parties were never themselves sued for those amounts by the EPA or by

other PRPs.” Id. at 225 (emphasis added).W H I T T A K E R C O R P

. V

. U N I T E D S T A T E S 18

Bernstein
, NCR
, a

nd Agere each demonstrat e t h at a party ’s rig ht to contribution for some of its ex penses at a site does n ot necessarily mean that t h e p a r ty loses its rig h t to bring a cost recovery action for other ex p enses. B oth Bernstein and Agere held t h a t plaintiffs could bring cost recovery actions for ex penses separate from those for which the plaintiffs had a r ig ht o f contribution. And NCR h e ld that the pl ai n tiff was required to bring a ll of its claims in contribution because each set of e x penses was covered by an order trig g ering the rig h t to contribution. 7

Considering the closely r elated issue of whether a party ’s

r i ght to contribution for some of its ex penses trig g ers the
statute of limitations for contribution for all of its other

ex p enses, the F irst Circuit has he ld that the limitations periods for separate sets of ex p ens e s are trig g ered independently

. A m. Cyanamid Co. v. Capuano
, 3 8 1 F .3d 6, 13–15 (1st Cir. 2004). I n American C yanamid

, a haz ardous
waste site required both soil and g roun d w a t e r remediation. Id. at 10–11. I n previous litig ation, a potentially responsible
p a r t y called the Rohm & Haas Company (R& H) was he l d liable in a § 107 cost recovery action for ex penses related to

7 T h e Sev en th Circu it’ s statem en t reg ard in g th e “ slicin g an d d icin g ” o f

co sts u n d er t

h e 20 0 7 ad m in istrativ e o rd er is co n sisten t w ith o u r an aly sis. T h e statem en t ref

ers to “ slicin g a n d d icin g o f co sts in cu r red u n d er th e

sa me a d min istra t ive o rd

er ,” w h ere NCR’ s “ liab ility f

o r a ll of th o se co s ts

w ill u ltim ately b e d eterm i n ed in t h e en f o rcem en t actio n .” 76 8 F.3 d at 6 9 2 ( e m p h a s is ad d ed ). It i s ap p aren t th at t h e Sev en th Circu it d id n ot f in d i t g e n e rally p ro b lem atic to co n s id er d i f f eren t sets o f ex pen ses sep arate l y , b ecau se th e co u rt sep arately ev alu ated NCR’ s ex p en s es u n der each o f th e th ree o rd ers. In stead

, th e Sev en th Circu it f ou n d it p ro b lem atic to f

u rth er d iv id e N CR’ s ex pen ses u n d er th e 2 0 0 7 o rd er, w h en NCR’ s liab ility f

o r all

o f th o se ex p en ses w o u ld b e d eterm in ed in th e g o v ern m en t’ s en f orcem en t actio n

.W H I T T A K E R C O R P

. V

. U N I T E D S T A T E S 19

the soil cleanup. Id. at 10. R& H also entered into a separate consent decree with the U nited S t ates related to the
g roundwater cleanup. Id. at 11. R& H later broug ht a CE R CL A contribution action a g ainst other potentially responsible parties for its g roundwater cleanup ex penses. Id. The F irst Circuit upheld R& H ’s contribution action over the def e n d a n ts’ arg u ment that the statute of limitations for contribution for the groundwater ex penses had been trig g ered by R &H’s earlier liability for the soil ex penses. I d. at 13. The F irst Circui t ex plained that CERCL A’s statute o f limitations for contribution claims bases the timeliness of an “act i on for contribution for any response costs or damag es”

on “the date of j u d gm en t i n any action

. . . for recovery o f such c osts o r d amag es.” Id. (quo t i n g 4 2 U .S.C. § 9613(g )(3)). The First Circuit held that the phrase “‘such
costs or damag es’ refers to the costs or damag es contained in the ‘judg ment.’” Id. (emphasis added). “[ A] PR P has three
y ears to seek contribution for costs c o n t ained within a judg ment. T he statute o f limitations, however, is not trig g ered f

or costs not contained within the judg ment.” Id. at 15; see a lso ASARCO, LLC v. Celanese Chem. Co.
, 792 F .3d 1203, 1215 (9th Cir. 2015) (“[ T ] here is n o 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 s eparate o blig ations.”); RSR Corp. v

. Comm e r c ial Metals Co.
, 496 F .3d 552, 557 (6th Cir. 2 007) (“Rathe r than f

ocus on who settled the cost-recovery action, in short, the statute a sks us to focus on wh a t was settled.”). Althoug h these cases considered statute of limitations questions

, their reasoning confirms that a party ’s r ig ht to contribution is limited to the e x penses f or which it has been found liable.W H I T T A K E R C O R P

. V

. U N I T E D S T A T E S 20

I n this c a s e , W hittaker w as found liable to the Castaic Lake plaintiffs for the ex penses specificall y r e l ated to removing p erchlorate from the plaintiffs’ wells and r eplacing their w ater. W hittaker now seeks reimbursement fr o m the
g overnment for a different set o f ex penses, f o r which W h ittaker was not found liable in Castaic Lake

. 8 F ollowing the g u idance of the Supreme Court and the other circuit courts, w e h old that W hittaker was not req u i r e d t o bring its

c laims in this case in a § 113(f) contribution action afte r i t s liability was resolved in Castaic Lake

.

C

The g ove r nment presents two tex t-based arg uments for why a party who has been sued in a § 107 cost r e covery

ac t ion for ex penses r elated to pollution at a site should be limited to a contribution a ction for all of the party ’s ex penses at the site, reg ardless of whether the e x penses are c overed b y the liability established by the prior § 1 0 7 suit. W e find neither arg

ument persuasive.

F irst, noting that § 113(f)(1) allows a contribution action
to be broug h t “during or f ollowing ” a c o s t recovery action under § 107, s ee 42 U .S.C. § 9613(f)(1), the g overnment arg ues that a party ’ s r ig ht to contribution cannot b e limited to the liabilit y e s t a blished b y the § 107 cost recovery action. After all, it would n ot make sense to permit a party to r ecover contribution before its liability is e s t ab lished if the party ’s rig ht to contribution is limited to i t s e stablished liability

. However, the Supreme Court has ex plained that:

8 No r is W h ittak er’ s o w

n liab ility f

o r th e e x p en ses it s eek s i n t

h i s case p en d in g in an y

o th er litig atio n , as f

ar as w e are aw are.W H I T T A K E R C O R P

. V

. U N I T E D S T A T E S 21

The statute authoriz e s a PRP t o seek contribution “during or following” a suit under

. . . § 107(a). Thus, § 113(f)(1) permits suit before or a ft e r the establishment o f

com m on liability

. I n either case, a PRP’s rig ht to contribution under § 113(f)(1) is contingent upon an inequitable distribution o f common liability

among liable parties.

B y contrast, § 1 07(a) permits recovery o f cleanup costs but does not create a rig h t to contribution. A private party may r e c over under § 107(a) w i t h o ut any establishment of liability to a third party

.

Atl. Research

, 551 U.S. at 1 38–39 (emphasis added; citation omitted). W h ile the statute permits a pa r ty to initiate a contribution action while a § 107 cos t r ec overy suit is pending

, actual recovery of contribution under § 113(f)(1) is l i m ited to the ex penses f

or w hich the party is found liable. 9 S e e Bernstein
, 733 F

. 3d at 207 (“To the ex tent that t h e Trustees’ suit seeks to recover e x p e n ses arising out o f their performance o f the 2002 [ c onsent decree]

, it is not a contribution action.”); United States v. Davis
, 2 61 F .3d 1, 46 (1st Cir. 2 0 0 1 ) (“This [ statutory ] lang uag e anticipates that a defendant in a § [ 107] cost reco v e r y action may initiate a contribution action b efore its own liability is established. Co n sistent with this scheme, a § [ 107] defendant whose liability has b een established may be awarded de claratory

9 A p arty m ay also b e ab le to o b t ain a d e c l a r a t o ry j u d g m en t in a

co n trib u tio n actio n , in o rd er to assig n p ro p o rtio n ate liab ility fo r an y

u n certain f

u tu re ex p e n s es. S

ee Bo ein g C

o

. v. Ca sca d

e Co rp

. , 2 0 7 F.3 d 1 1 7 7 , 1 1 9 1

– 92 (9 th

Cir. 2 0 0 0 ).W H I T T A K E R C O R P

. V

. U N I T E D S T A T E S 22

relief before that liability h as been fully discharg ed.”). This is how c o n tribution c laims traditionally work. See Restate m e nt (Third) of Torts § 23(b) & cmt. b. 1 0 F or this

r e a son, it was not the terms of the Castaic Lake compl a i n t that determined W hittaker’s rig ht to recover contribution, but rather the e x tent of t h e c o s t s for w hich W hittaker was h eld liable in that case.

Second, noting th a t § 113(f)(1) allows a contribution action to be broug ht ag ainst “an y o t her person who is liable

or potentially liable” under § 107, see 42 U.S.C. § 9613(f)(1), the g overnment arg ues that, onc e a c ontribution claim has b een trig g ered, the scope o f ex penses recoverable i n contribution is c o e x t ensive w ith the scope of potential liability u nder § 107, including “any

. . . necessary costs o f
response incurred” by a party , see id. § 9607(a)(4)(B ). I f the rig ht to contribution were so broad, there would b e no reason for courts to evaluate d ifferent sets of ex penses separately in deciding whether a party has a contribution cla i m, y et evaluating ex penses separately is precisely

what courts have done. See, e.g. , N

C R
, 7 68 F .3d a t 690–92; Bernstein
,

10 A s ex p l ain ed in th e co m m en t:

A p erso n seek i n g co n trib u tio n m u s t ex tin g u ish th e liab ility o f th e p erso n ag ain st w h o m co n trib u t io n is

so u g h t f o r th at po rtio n o f liab ility

, eith er b y settlem en t

w ith th e p l ain tif

f o r b y s ati s fa c tio n o f j u d g m en t. A s p erm i tted b y p r o ced u

ral ru les, a p erso n seek in g

co n t rib u tio n m ay assert a c l aim f o r co n trib u tio n an d

o b tain a co n tin g en t j u d g m en t in an actio n in w h ich th e p erso n seek in g co n t r i b u tio n is su ed b y th e p lain t if f

, e ven th o u g h th e liab ility o f th e p erso n ag ain st w h o m

co n t rib u tio n is so u g h t h as n o t y et b een ex tin g u ish ed

.

Restatem en t (T h ird ) o f

T o rts § 2 3 cm

t. b (citatio n s o m itted ).W H I T T A K E R C O R P

. V

. U N I T E D S T A T E S 23

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

. Cyanamid

, 381 F .3d at 14–16. Section 1 13(f)(1)’s r e ference
to § 107’s potentially r e s ponsible parties indicates from whom contribution may b e soug ht, not the scope of ex penses that are recoverable in contribution.

D

F inally

, our holding is c o nsistent with CERCL A ’s
p u r p oses. As noted above, CERCL A was intended t o i n centiviz e both environmental cleanup efforts an d n e g o t i a t e d settlements o f liability

. Chub b C u s t om , 710 F .3d at 956. Allowing a party who has incurred substantial environmental

r e sponse costs over a span o f decades to recover from oth e r potentially responsib l e p a r ties serves these dual g oals. See Fireman’s Fund Ins. Co. v. City of Lodi, Cal.

, 302 F .3d 928, 948 (9th Cir. 2002) (“Potential purchaser s o f abandoned o r underutiliz ed contaminated properties are often deterred from purchasing and cleaning up these proper t ies by ex posure to unbounded and uncertain liability .”); Bern s t ein
, 733 F .3d at 214 (“[ T] he cost recovery action is subject to a long e r statute of limitations, making it arg u ably t h e p r eferable r e covery vehicle for a PRP embarking on w hat mig ht well be a decadelong cleanup effort, and thus actually creating a f urther positive incentive to settle.”).

W e recog niz e that CER C L A ’s g oal of encourag ing prompt set t l e ment may also be served by interpreting the rig ht of contribution broadly

, because the imposition of a shorter s t atute of limitations would incentiviz e parties to initiate lawsuits sooner. See 42 U .S.C. § 9613(g ); A S ARCO
, 792 F .3d at 1 2 1 1

. Yet such a broad interpretation o f “contribution” is inconsistent with the balance stru c k b y Cong r ess a

nd w ith the Supreme Court’s interpretation of theW H I T T A K E R C O R P

. V

. U N I T E D S T A T E S 24

term. W e do n ot believe that Cong ress mandated p a rties w ho have been sued in § 107 cost recovery actions to bring all o f their own CERCL A c laims in the form of a contribution

ac t i o n, on an accelerated timeframe, r eg ardless of the merit or the result of the § 107 cost recovery suit.

I V

B e cau se W hittaker seeks to r ecover ex penses that a re separate from those for w hich W hittake r ’ s l iability is established or pending

, Whittaker was not required to bring th i s s uit as a claim for c ontribution. W hittaker therefore is not barred on this basis from bring ing a cost recovery action
ag ainst the United States.

REVERSED and REMANDED

.

OW ENS, Circuit J udg e, concurring in all but Part I I I D:

The Court’s opinion persuasively follows curren t Supreme Court and circ u it law interpreting the relevant statutory provisions, so I concur. Yet I do not join Part I I I D
, as the case law, in my

view, has drifted from what Cong ress intended when it passed a

nd amended CERCL A in the 1980s. See Chubb C ustom 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 sing le action” w ould “encourag e private party settlements and cleanup” because the threat of being s u e d “ as a thirdparty defendant, concurrent with the orig inal litig ation, has the effect o f bring ing all such respons i b l e parties to theW H I T T A K E R C O R P

. V

. U N I T E D S T A T E S 25

barg a ining table at an e arly date.” H.R. Rep. No. 9 9-253, pt. 1, a t 80 (1985), reprinted in 1 986 U.S.C.C.A.N. 2835, 2862. Rather than dinin g a t the same table for one big CERCL A feast, o ur holding

— dictat e d in my view by lang uag e in Atlantic R esearch —permits a d versaries to fig ht for
g enerations over moldy leftover crumbs. Good for la w y e r s, but bad for the environment and the c ommunities affected b y the contamination.

I u rg e Cong ress to take a second look at this a spect o f CERCL A.