Asarco v. Celanese Chemical Co. , 792 F.3d 1203 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ASARCO, LLC, No. 12-16832
Plaintiff-Appellant,
D.C. No.
v. 3:11-cv-01384-
WHA
CELANESE CHEMICAL COMPANY,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted
October 8, 2014—San Francisco, California
Filed July 10, 2015
Before: William A. Fletcher and Paul J. Watford, Circuit
Judges, and Kevin Thomas Duffy, District Judge.*
Opinion by Judge Duffy
*
The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
2 ASARCO V. CELANESE CHEMICAL CO.
SUMMARY**
Environmental Law
Affirming the district court’s summary judgment, the
panel held that a claim for contribution under § 113(f)(3)(B)
of the Comprehensive Environmental Response,
Compensation, and Liability Act was time-barred.
In 1989 plaintiff ASARCO, LLC, entered into a
settlement agreement arising from a cost-recovery lawsuit
under CERCLA § 107. During bankruptcy proceedings in
2008, ASARCO entered into a second settlement agreement
arising from response cost claims asserted by the California
Department of Toxic Substances Control. ASARCO filed its
new contribution claim in 2011.
The panel held that the judicially approved settlement
agreement between private parties to the cost-recovery suit
started the clock on the three-year statute of limitations in
CERCLA § 113(g)(3)(B) in 1989. The panel held that the
later bankruptcy settlement with the government, fixing
ASARCO’s costs associated with the cost-recovery
settlement agreement, did not revive a contribution claim that
had otherwise expired.
**
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. CELANESE CHEMICAL CO. 3
COUNSEL
Linda R. Larson (argued), Russell C. Prugh, and Meline G.
MacCurdy, Marten Law PLLC, Seattle, Washington; Gregory
Evans and James G. Warren, Integer Law Corporation, Los
Angeles, California, for Plaintiff-Appellant.
John D. Edgcomb (argued) and Michael A.G. Einhorn,
Edgcomb Law Group, P.C., San Francisco, California, for
Defendant-Appellee.
OPINION
DUFFY, District Judge:
Plaintiff-Appellant ASARCO, LLC (“ASARCO”) appeals
the district court’s grant of summary judgment in favor of
Defendant-Appellee CNA Holdings, LLC1 (“CNA”) in
ASARCO’s suit for contribution under § 113(f)(3)(B) of the
Comprehensive Environmental Response, Compensation, and
Liability Act (“CERCLA”), 42 U.S.C. § 9613(f)(3)(B).2 The
district court ruled that ASARCO’s contribution action was
time-barred and dismissed the complaint. For the reasons
that follow, we affirm the judgment of the district court.
1
Erroneously named in the suit as Celanese Chemical Company.
2
ASARCO’s appeal as to Union Pacific Railroad Company and Union
Pacific Corporation was voluntarily dismissed with prejudice on February
15, 2013, pursuant to Federal Rule of Appellate Procedure 42(b), so CNA
is the only remaining appellee in this case.
4 ASARCO V. CELANESE CHEMICAL CO.
FACTS AND PROCEDURAL HISTORY
ASARCO is the corporate successor to a company that
owned and operated a silver and lead smelter on a 66-acre
industrial site (the “Selby Site”) on San Pablo Bay in Contra
Costa, California. The smelter operated until 1970,
depositing smelting byproducts on its property and the
tideland ASARCO leased from the California State Lands
Commission (“State Lands”) abutting the property. The
smelter was closed after it was named as the likely source of
lead pollution that caused livestock deaths nearby. After the
smelter closed, ASARCO leased a 1.33 acre parcel of the
Selby Site containing a sulfur dioxide plant (“Plant”) that
ASARCO had previously operated to Virginia Chemicals, a
corporate predecessor to CNA. CNA leased and operated the
Plant from 1972 until September 1977. As a result of the
Plant operations that occurred before and during CNA’s
leasehold, the soil in the Selby Site area was contaminated
with sulfuric acid, as discovered by the San Francisco Bay
Regional Water Quality Control Board (the “RWQCB”) in
April 1976. RWQCB issued a cleanup and abatement order
in August 1976, amended the order in November 1976, and
conditionally rescinded the order in April 1977.
After the Plant shut down, and long after smelting had
ceased, Wickland Oil Company (“Wickland”) purchased
ASARCO’s Selby Site property in October 1977, and leased
the tidelands from State Lands in July 1981 to build and
operate a marine fuel terminal. Wickland learned from the
California State Department of Health Services (“California
DHS”) that the Selby Site contained hazardous substances,
and that further investigation and remediation efforts were
required across much of the site. California DHS had
identified the presence of toxic metals in the slag pile, with
ASARCO V. CELANESE CHEMICAL CO. 5
high concentrations of lead, zinc, arsenic, and cadmium. The
Selby Site was placed on the California State Superfund list.
Wickland incurred environmental response costs and looked
for other responsible parties to share those costs.
In 1983, Wickland filed a cost-recovery lawsuit under
CERCLA § 107 against ASARCO, as the former owner of
part of the Selby Site and operator of the entire Selby Site,
and State Lands, as the former owner of the remainder of the
Selby Site that permitted and encouraged the disposal by
ASARCO of hazardous substances on the Selby Site. In its
lawsuit, Wickland sought to establish ASARCO’s liability for
response costs at the Selby Site to address metals leaching
from the slag and causing groundwater contamination.
Wickland sought reimbursement of no less than $400,000 in
past response costs and a declaration that ASARCO and State
Lands were liable for all future response costs at the Selby
Site. After the district court rendered summary judgment in
favor of ASARCO and State Lands in the 1983 case on the
grounds that (1) the cost recovery claim was not ripe and
(2) the claims for declarative and therefore injunctive relief
were not ripe, we reversed the district court’s judgment and
remanded the case so that Wickland could pursue its claims.
Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887,
892–93 (9th Cir. 1986).
In February 1989, Wickland, ASARCO, and State Lands
(collectively, the “Settling Parties”) entered into the
Wickland Agreement, an “Agreement for Entry of Consent
Judgment” to “settle and compromise the [district court
lawsuit], and to establish a procedure for allocating past and
future costs attributable to the events and conditions
underlying the [district court lawsuit].” State Lands entered
into the agreement as the former owner of part of the Selby
6 ASARCO V. CELANESE CHEMICAL CO.
Site, not as a “Government Agency.” Although the Settling
Parties knew that Virginia Chemicals had been named in the
1976 RWQCB Order and repeatedly referred to in the
Wickland lawsuit, Virginia Chemicals had never been
brought into the lawsuit as a party, and was not a party to the
Wickland Agreement. The district court entered a consent
judgment based on the Wickland Agreement on March 13,
1989, and retained jurisdiction over the parties in order to
enforce or amend the terms of the Agreement.
In August 2005, sixteen years after the Wickland
Agreement settled the Selby Site litigation, ASARCO filed a
Chapter 11 voluntary petition in the United States Bankruptcy
Court for the Southern District of Texas. State Lands, C.S.
Land, Inc. (“CSLI,” Wickland’s successor in interest), and
California Department of Toxic Substances Control
(“DTSC,” California DHS’s successor as the administrating
regulatory agency) asserted claims for ASARCO’s share of
past and future Selby Site environmental costs in July 2006
(and amended the claims in 2007). DTSC’s proof of claim
indicated that remediation of the conditions addressed by
ASARCO’s interim remedial measures was not complete and
sought to recover costs to implement a final remedy at the
Selby Site.
In January 2008, ASARCO moved in the bankruptcy
court for approval of a settlement (“2008 Bankruptcy
Settlement”) of the response cost claims asserted by State
Lands, CSLI and DTSC. Notably, ASARCO’s parent
company filed an objection to the settlement, contending that
the settlement included costs to remediate contaminated
groundwater that ASARCO had nothing to do with.
ASARCO’s parent withdrew the objection after negotiating
a stipulation and clarification with the parties regarding $33
ASARCO V. CELANESE CHEMICAL CO. 7
million ASARCO was to pay DTSC under the 2008
Bankruptcy Settlement. The bankruptcy court approved the
2008 Bankruptcy Settlement on March 31, 2008.
On March 23, 2011, ASARCO filed a new lawsuit against
CNA to seek contribution under CERCLA § 113(f). CNA
moved for summary judgment on the ground that ASARCO’s
suit was barred by the statute of limitations under CERCLA
§ 113(g)(3)(B), and on June 6, 2012, the district court entered
summary judgment in favor of CNA. The district court
decided that the statute of limitations for contribution claims
following a “judicially approved settlement” under CERCLA
§ 113(g)(3)(B) applied to any judicially approved settlement,
whether between private parties or between a private party
and the United States or a State. The district court
determined that the statute of limitations applied to the
Wickland Agreement and that ASARCO’s time to file a
contribution claim pursuant to the Wickland Agreement had
expired. The district court also determined that 2008
Bankruptcy Settlement did not present any new costs not
contemplated in the Wickland Agreement, and therefore a
new contribution claim had not accrued as a result of the
2008 Bankruptcy Settlement. This appeal followed.
STANDARD OF REVIEW
Summary judgment in CERCLA cases is reviewed de
novo. Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d
863, 870 (9th Cir. 2001) (en banc). The district court’s
interpretation of CERCLA is reviewed de novo. City of
Emeryville v. Robinson, 621 F.3d 1251, 1261 (9th Cir. 2010).
“Interpretation of a settlement agreement is a question of law
subject to de novo review, but we defer to any factual
findings made by the district court in interpreting the
8 ASARCO V. CELANESE CHEMICAL CO.
settlement agreement unless they are clearly erroneous.” Id.(internal citation omitted).
DISCUSSION
I. Introduction
The issues before us hinge on a question of statutory
interpretation: Under CERCLA, may a settlement agreement
between private parties to a CERCLA § 107 cost-recovery
lawsuit create a cause of action for contribution under
CERCLA § 113(f)(1) that is excepted from the three-year
statute of limitations in CERCLA § 113(g)(3)? As we have
previously noted, CERCLA is a complex statute with a
“‘maze-’like structure and ‘baffling language.’” California
ex rel. Cal. Dep’t of Toxic Substances Control v. Neville
Chem. Co., 358 F.3d 661, 663 (9th Cir. 2004) (quoting
Carson Harbor Vill., 270 F.3d at 880, 883). While the
statutory language may be baffling and the structure maze-
like, the statute clearly indicates that any contribution claim
for particular remedial costs is subject to a three-year statute
of limitations once liability for a potentially responsible party
(“PRP”) becomes recognized through a judicially approved
settlement. 42 U.S.C. § 9613(g)(3)(B).
At oral argument in this case, ASARCO admitted that it
could have filed a contribution claim against CNA following
the entry of the Wickland Agreement. At issue in this appeal
is (1) whether or not a CERCLA contribution claim, once it
has accrued, may be excepted from the statute of limitations
based on the type of settlement that underlies the claim, and
(2) if the claim is subject to the statute of limitations and the
time to file has expired, whether the claim may be revived by
a subsequent event. We hold that a judicially approved
ASARCO V. CELANESE CHEMICAL CO. 9
settlement agreement between private parties to a CERCLA
cost-recovery suit starts the clock on the three-year statute of
limitations in CERCLA § 113(g)(3)(B), and that a later
bankruptcy settlement that fixes the costs of such a cost-
recovery settlement agreement does not revive a contribution
claim that has otherwise expired. Our holding that a later
bankruptcy settlement with the government cannot revive an
otherwise expired contribution claim ensures that a party does
not receive a benefit that it had not paid for in the bankruptcy
settlement.
II. ASARCO’s Time to File Contribution Claims
Pursuant to the Wickland Agreement Has Expired.
CERCLA § 113(f)(1) creates the right of contribution for
private parties that are liable or potentially liable under
CERCLA, during or following certain CERCLA civil actions.
Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 167
(2004). Contribution rights for one PRP against another PRP
only accrue if the first PRP is already involved in a lawsuit
under CERCLA § 106 (for federally-required abatement
action response costs) or CERCLA § 107(a) (for clean-up
cost recovery by the government or a private party). Id.
Otherwise, such a claim for contribution between PRPs
would be properly stated through a CERCLA § 107(a) cost
recovery suit, assuming that the plaintiff PRP has incurred its
own cleanup costs. Kotrous v. Goss-Jewett Co. of N. Cal.,
523 F.3d 924, 934 (9th Cir. 2008); accord United States v.
Atl. Research Corp., 551 U.S. 128, 139 (2007). Once
Wickland sued ASARCO for CERCLA § 107 cost recovery
in 1983, ASARCO could have filed a contribution claim
against CNA’s corporate predecessor, Virginia Chemicals.
See 42 U.S.C. § 9613(f)(1). ASARCO conceded as much at
oral argument in this case when ASARCO recognized that it
10 ASARCO V. CELANESE CHEMICAL CO.
could have pursued a contribution claim following the entry
of the Wickland Agreement in 1989. As discussed in the
following subsection B, ASARCO’s right to pursue its
contribution claim against CNA for the Selby Site
remediation expired when the statute of limitations in
CERCLA § 113(g)(3) ran out in 1992.
A. Contribution Claims Are Subject to a Three Year
Statute of Limitations.
CERCLA § 113
provides two express avenues for
contribution: § 113(f)(1) (“during or
following” specified civil actions) and
§ 113(f)(3)(B) (after an administrative or
judicially approved settlement that resolves
liability to the United States or a State).
Section 113(g)(3) then provides two
corresponding 3-year limitations periods for
contribution actions, one beginning at the date
of judgment, § 113(g)(3)(A), and one
beginning at the date of settlement,
§ 113(g)(3)(B). . . . [T]o assert a contribution
claim under § 113(f), a party must satisfy the
conditions of either § 113(f)(1) or
§ 113(f)(3)(B).
Cooper Indus., 543 U.S. at 167. Thus, one “avenue” to a
contribution claim accrues once a polluter sues or is sued
under CERCLA §§ 106 or 107, and that avenue remains open
while the lawsuit is unresolved. 42 U.S.C. § 9613(f)(1).
Then the statute of limitations begins to run once that
litigation settles or ends by judgment. See id.; see also id.ASARCO V. CELANESE CHEMICAL CO. 11
§ 9613(g)(3). The other “avenue” to a contribution claim
accrues when a person 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.” Id. § 9613(f)(3)(B).
ASARCO contends that the special rights conferred by
CERCLA § 113(f)(2)–(3) on persons that settle liability or
costs with the government suggest, when read in conjunction
with the rest of the statute, that private-party settlements may
not activate the statute of limitations for contribution claims.
But that is not what the plain language of the statute suggests.
In order for a contribution claim to accrue, one of two
necessary conditions must occur: (1) a lawsuit under either
CERCLA §§ 106 or 107, or (2) a judicially approved
settlement with the United States or a State. 42 U.S.C.
§ 9613(f)(1) & (f)(3)(B); see also Cooper Indus., 543 U.S. at
166 (“There is no reason why Congress would bother to
specify conditions under which a person may bring a
contribution claim, and at the same time allow contribution
actions absent those conditions.”). The lack of any specified
statute of limitations for a contribution claim pled in the
absence of either of the two necessary conditions—as would
be the case for a contribution claim pled as a result of a
“purely voluntary cleanup”—means that a claim absent either
of the two necessary conditions is unavailable. Cooper
Indus., 543 U.S. at 167. It follows, then, that any contribution
claim is subject to the three-year statute of limitations. See
id.12 ASARCO V. CELANESE CHEMICAL CO.
B. The Wickland Agreement Triggered the Statute of
Limitations of § 9613(g)(3)(B).
The statute of limitations for a contribution claim is
triggered by the date upon which the judgment or settlement
that underlies the claim is entered. See id. When the
CERCLA §§ 106 or 107 lawsuit is over and a judgment is
entered, the statute of limitations begins to run on the cause
of action for contribution that accrued during the pendency of
that litigation. See 42 U.S.C. § 9613(g)(3)(A). When a
person resolves its liability to the United States or a State
through an administrative or judicially approved settlement,
a right to assert a contribution claim against other PRPs also
accrues. Id. § 9613(f)(3)(B). Such a settlement starts the
clock on the three-year statute of limitations for the
contribution claim that accrues on the basis of that settlement.
Id. § 9613(g)(3)(B). ASARCO argues that only judicially
approved settlements involving the United States or a State
may trigger the statute of limitations under § 9613(g)(3)(B),
and that private-party judicially approved settlements cannot
trigger the § 9613(g)(3)(B) statute of limitations. We hold
that private-party judicially approved settlements may trigger
the § 9613(g)(3)(B) statute of limitations.
“Statutes of limitations are intended to provide notice to
defendants of a claim before the underlying evidence
becomes stale.” In re Hanford Nuclear Reservation Litig.,
534 F.3d 986, 1009 (9th Cir. 2008). A primary canon of
statutory interpretation is that the plain language of a statute
should be enforced according to its terms, in light of its
context. Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997);
Wilshire Westwood Assocs. v. Atl. Richfield Corp., 881 F.2d
801, 803 (9th Cir. 1989).
ASARCO V. CELANESE CHEMICAL CO. 13
When interpreting a statute, our task is to
construe what Congress has enacted. We look
first to the plain language of the statute,
construing the provisions of the entire law,
including its object and policy, to ascertain
the intent of Congress. We will resort to
legislative history, even where the plain
language is unambiguous, where the
legislative history clearly indicates that
Congress meant something other than what it
said.
Carson Harbor Vill., 270 F.3d at 877 (internal quotation
marks and citations omitted). “Thus, we examine the statute
as a whole, including its purpose and various provisions.” Id.
at 880. We construe the statute in context to avoid
superfluities. Cooper Indus., 543 U.S. at 166 (citing Hibbs v.
Winn, 542 U.S. 88, 101 (2004)). If possible, we “construe a
statute to give every word some operative effect.” Id. at 167
(citing United States v. Nordic Vill., Inc., 503 U.S. 30, 35–36
(1992)). “Clearly, neither a logician nor a grammarian will
find comfort in the world of CERCLA. It is not our task,
however, to clean up the baffling language Congress gave us
. . . .” Carson Harbor Vill., 270 F.3d at 883.
Here, ASARCO suggests that we read into the statutory
language a requirement that a judicially approved settlement
include the United States or a State in order to trigger the
statute of limitations at § 9613(g)(3)(B), just as the settlement
bar at § 9613(f)(2) and the accrual of contribution rights
under § 9613(f)(3)(B) each require that a judicially approved
settlement include the United States or a State as a party.
First, the plain language of the statute of limitations does not
limit triggering “judicially approved settlements” to those
14 ASARCO V. CELANESE CHEMICAL CO.
involving the United States or a State. See 42 U.S.C.
§ 9613(g)(3)(B). The triggering event for that statute of
limitations at § 9613(g)(3)(B) includes judicially approved
settlements involving the United States or a State, but is not
limited to those types of settlements on its face. We are wary
of reading such an additional condition into this statute
of limitations. See City of Colton v. Am. Promotional
Events, Inc.-W., 614 F.3d 998, 1007 (9th Cir. 2010) (quoting
Transam. Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 19–20
(1979)).
Second, our reading does not result in superfluity. The
provisions cited by ASARCO in support of its position are
distinct in that they confer certain rights upon parties that
settle their liability with the government. These rights may
encourage parties to settle with the government at an early
stage, thus facilitating the cleanup efforts that CERCLA was
designed to promote. See Carson Harbor Vill., 270 F.3d at
884. Judicially approved settlements that do not include the
United States or a State do not confer such settlement
protection. Whether or not a private party “judicially
approved settlement” is also a “judgment” that would trigger
the statute of limitations at § 9613(g)(3)(A) does not
necessarily render the provision superfluous. See id. at
881–82 (substantial overlap in definitions does not render
terms superfluous).
Third, interpreting the statute of limitations at
§ 9613(g)(3)(B) to include a trigger for private-party
judicially approved settlements ensures that every word has
operative effect. To do otherwise would confer a right of
contribution following private-party judicially approved
settlements that would never expire. ASARCO recognized
that it could have filed a claim for contribution following the
ASARCO V. CELANESE CHEMICAL CO. 15
entry of the Wickland Agreement. Exempting these
contribution claims from the statute of limitations would
subject PRPs to litigation at any time following a private
party settlement, and encourage private parties to settle with
each other, rather than with the government, rendering the
statute of limitations for contribution actions meaningless.3
III. The Wickland Agreement Covered All Response
Costs at the Selby Site and the 2008 Bankruptcy
Settlement Merely Fixed Costs.
A. The Scope of the Wickland Agreement
The 1989 Consent Judgment and Wickland Agreement
ended the litigation related to the Selby Site, after the appeal
in Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887 (9th
Cir. 1986). As discussed earlier, Wickland was permitted to
pursue its CERCLA cost recovery claims against ASARCO
after we reversed the district court’s dismissal. In order to
determine what the Wickland Agreement covered, we
interpret de novo the settlement agreement. City of
Emeryville, 621 F.3d at 1261.
Under California law, “the mutual intention of the parties
at the time the contract is formed governs interpretation.”
AIU Ins. Co. v. Super. Ct., 799 P.2d 1253, 1264 (Cal. 1990)
(citing Cal. Civ. Code § 1636). The intent of the parties is
3
ASARCO also argues that the Wickland Agreement did not meet the
standard for a judicially approved settlement. ASARCO cannot now
argue that the court was wrong to approve the Wickland Agreement as
part of the consent judgment 25 years after ASARCO participated in the
agreement and accepted the consent judgment. The district court did not
abuse its discretion decades ago in approving the agreement.
16 ASARCO V. CELANESE CHEMICAL CO.
determined “solely from the written provisions of the
contract.” Id. (citing Cal. Civ. Code § 1639). The ordinary
meaning of a contract’s terms controls judicial interpretation.
Id.; see also Cal. Civ. Code § 1644. No matter how broad a
contract may appear, “it extends only to those things
concerning which it appears that the parties intended to
contract.” Cal. Civ. Code § 1648.
In this case, the provisions of the contract are clear.4 The
Wickland Agreement settled the dispute between ASARCO
and Wickland over the Selby Site. In the Wickland
Agreement, the parties undertook to “establish a procedure
for allocating past and future costs attributable to the events
and conditions underlying the [district court case].” The
events and conditions underlying the district court case were
the industrial operations and resulting pollution that had
occurred at the Selby Site prior to Wickland’s ownership.
See Wickland Oil Terminals, 792 F.2d at 889. The parties to
the Wickland Agreement, Wickland, ASARCO, and State
Lands, agreed to undertake site remediation to investigate,
monitor, and abate actual or threatened contamination at the
Selby Site, caused by or related to the conditions at the site
addressed by the Remedial Action Plan.
4
“The construction and enforcement of settlement agreements are
governed by principles of local law which apply to interpretation of
contracts generally.” Jeff D. v. Andrus, 899 F.2d 753, 759 (9th Cir. 1990).
The Wickland Agreement expressly states that California law governs its
terms, but the district court analyzed the Wickland Agreement by applying
principles of federal common law. While the district court committed
error by failing to explicitly apply California law, instead using a federal
standard to interpret the Wickland Agreement, such error was harmless
because both approaches yield the same result. See Cachil Dehe Band of
Wintun Indians v. California, 618 F.3d 1066, 1073 (9th Cir. 2010).
ASARCO V. CELANESE CHEMICAL CO. 17
The Remedial Action Plan was based on a report prepared
by an environmental consultant and incorporated into the
Wickland Agreement. The goals of the Remedial Action Plan
were to dredge contaminated sediments in the tidelands to
dispose of them, to remediate acid-affected soils in the
Virginia Chemicals area, to cap the site to prevent runoff
contamination, and to relocate a sewage oxidation pond.
ASARCO, Wickland, and State Lands agreed to share the
costs of implementing the initial part of this plan equally. To
the extent that a government agency responsible for oversight
of the cleanup effort ordered additional work, or the parties
mutually agreed that additional work was required to
accomplish the Remedial Action Plan, those costs would also
be shared equally as a “Subsequent Modification.” The
parties decided that if a future cost was an “Other
Remediation Cost” and not a “Subsequent Modification,” that
ASARCO would bear 42%, State Lands 38%, and Wickland
20% of the future cost. Costs envisioned were necessary and
proper if the parties agreed to them, an arbitrator imposed
them, or the government required them as part of a
compliance order. The Wickland Agreement’s Remedial
Action Plan was developed with input and approval from
California DHS and the RWQCB. The California DHS letter
attached as part of the Wickland Agreement establishes an
understanding between the agency and the parties that the
parties would take over responsibility for the efforts that
California DHS had already begun to remediate conditions at
the Selby Site. The Wickland Agreement’s tasks matched
those already planned or started by California DHS.
The Remedial Action Plan included work in the Virginia
Chemicals-leased area. Therefore, the clean-up work that
underlies ASARCO’s contribution claim against CNA was
included in the Wickland Agreement. The Remedial Action
18 ASARCO V. CELANESE CHEMICAL CO.
Plan does not distinguish between site conditions caused by
Virginia Chemicals and those caused by ASARCO as a result
of sulfur dioxide operations at the Plant. When read in total,
it is evident from the terms of the Wickland Agreement that
the agreement was meant to be a final determination of each
agreeing party’s liability for costs associated with cleaning up
the Selby Site, in accordance with the oversight and
requirements of California DHS.
ASARCO argues that the future work to be performed and
associated costs were too uncertain under California law to be
enforceable by contract. ASARCO cites Robinson & Wilson,
Inc. v. Stone, 110 Cal. Rptr. 675, 682–84 (Cal. Ct. App.
1973), in support of that proposition, though that case is
factually distinguishable. In Robinson, the contract calling
for future work failed to provide sufficient clarity regarding
the nature of the work or who would pay for it. See id. at
683. The terms of the Wickland Agreement clearly define
who will pay for the work and the nature of the work to
remediate the Selby Site, while contemplating that additional
tasks may be added to accomplish the remediation’s goals.
Though the complete costs were unknown at the time that the
Wickland Agreement was entered, ASARCO’s contention
that the uncertainty of costs then means that the Wickland
Agreement could not have covered costs now mirrors
ASARCO’s contention against Wickland in the 1980s
litigation.
We previously decided that “[t]he essential fact
establishing Wickland’s right to declaratory relief—the
alleged disposal of hazardous substances at the Selby [Site]
at the time [ASARCO] owned and operated the smelting
facility—has already occurred.” Wickland Oil Terminals,
792 F.2d at 893. The Wickland Agreement functions much
ASARCO V. CELANESE CHEMICAL CO. 19
like a proportionate liability declaratory judgment would.5
The fact that the full costs were unknown at the time does not
mean that the Wickland Agreement was less than
comprehensive.
B. The 2008 Bankruptcy Settlement Fixed
ASARCO’s Costs Associated with the Wickland
Agreement.
The 2008 Bankruptcy Settlement settled any claims that
State Lands and CSLI had against ASARCO as a result of the
Wickland Agreement. It also settled ASARCO’s
responsibility vis-a-vis DTSC (California DHS’s successor)
to clean up the Selby Site. The 2008 Bankruptcy Settlement
refers to the Wickland Agreement, and states that DTSC
required ASARCO, CSLI, and State Lands to conduct
additional remediation at the site in order to achieve a “final
remedy.” CSLI’s and State Lands’ proofs of claim in the
2008 Bankruptcy Settlement all cite to the entry of the
Wickland Agreement Consent Judgment on March 13, 1989,
as the basis for their claims against ASARCO. DTSC’s proof
of claim cites January 1, 1983 as the date when ASARCO’s
obligations to DTSC began. In other words, the bankruptcy
claims against ASARCO stem from ASARCO’s liability to
fund or perform cleanup efforts at the Selby Site, which,
according to the terms of the Wickland Agreement, were
divided among ASARCO, Wickland, and State Lands for past
and future costs at the Selby Site. In an affidavit in support
5
If ASARCO had filed a contribution claim against CNA after entering
the Wickland Agreement, it could have sought a declaratory judgment for
contribution costs. See, e.g., Boeing Co. v. Cascade Corp., 207 F.3d
1177, 1191 (9th Cir. 2000) (proportional declaratory judgment
contribution claims allowed following private party CERCLA actions).
20 ASARCO V. CELANESE CHEMICAL CO.
of the 2008 Bankruptcy Settlement, ASARCO contended that
its fair share of any future work at the Selby Site would be
33%, in accordance with the terms of the Wickland
Agreement (although the other Wickland Agreement parties
maintained that ASARCO would be liable for 42%, citing a
different provision of the Wickland Agreement), and the
amount paid to DTSC reflected that liability. Therefore, the
2008 Settlement Agreement reflects an understanding of the
parties to settle ASARCO’s 1989 obligations under the
Wickland Agreement. Also instructive is ASARCO’s
parent’s objection to the terms of the 2008 Bankruptcy
Settlement, withdrawn after clarification and a stipulation
among the parties that the 2008 Bankruptcy Settlement did
not go beyond ASARCO’s responsibilities under the
Wickland Agreement. While ASARCO’s contention that
there are items in DTSC’s remedial action objectives that
differ from the intermediate remedial measures in the
Wickland Agreement is valid, those changes are the mandate
of an overseeing government agency. The Wickland
Agreement defines such mandated costs as “necessary and
appropriate,” and apportions that liability according to the
intent of the parties. Therefore, the $33 million that
ASARCO agreed to pay to DTSC in the 2008 Bankruptcy
Settlement to satisfy ASARCO’s obligations to clean up the
Selby Site is not a new cost, and it cannot underlie a new
claim for contribution.
ASARCO contends that the phrase “such costs or
damages” in the statute of limitations means that ASARCO’s
claim for contribution only came about when “such costs or
damages” became fixed. ASARCO cites to American
Cyanamid Co. v. Capuano, 381 F.3d 6 (1st Cir. 2004), but
that case held that a new claim for contribution based on new
settlement liability (groundwater) cannot be barred by an
ASARCO V. CELANESE CHEMICAL CO. 21
earlier settlement for a different contribution claim (soil).
381 F.3d at 25–26. ASARCO also cites to a Sixth Circuit
case in an attempt to bolster the point that only costs fixed in
a settlement are eligible in contribution. See RSR Corp. v.
Commercial Metals Co., 496 F.3d 552, 559 (6th Cir. 2007).
But the Sixth Circuit found that the future costs sought in that
action were imposed as part of a judicially approved
settlement, and found that the statute of limitations had
expired. Id. at 558. “Rather than focus on who settled the
cost-recovery action, in short, the statute asks us to focus on
what was settled.” Id. at 557. In this appeal, ASARCO’s
new contribution claim via the 2008 Bankruptcy Settlement
is for exactly the same liability ASARCO assumed in the
1989 Wickland Agreement, and is therefore time barred.
IV. The 2008 Bankruptcy Settlement Did Not Create
a New Claim or Revive the Expired Claim.
ASARCO argues that even though it failed to pursue a
CERCLA § 113(f)(1) claim during or following the litigation
that led to the Wickland Agreement, it should nonetheless be
permitted to pursue a contribution claim against CNA as a
result of the 2008 Bankruptcy Settlement, pursuant to a right
for contribution under CERCLA § 113(f)(3)(B). ASARCO
argues that there is nothing in CERCLA that would bar it
from seeking successive contribution from CNA now that
ASARCO’s costs of response and liability vis-a-vis the
government are fixed in the 2008 Bankruptcy Settlement.
ASARCO makes this argument two ways. First, ASARCO
argues that the costs it seeks in this action related to the 2008
Bankruptcy Agreement are for final response costs not
22 ASARCO V. CELANESE CHEMICAL CO.
contemplated in the Wickland Agreement.6 Second,
ASARCO argues that CERCLA § 113(f)(3)(B) creates a
separate and absolute right to seek contribution following
settlement with the government, even for the same costs
ASARCO could have sought contribution for following the
Wickland Agreement, but failed to seek before ASARCO was
time-barred.
ASARCO is correct that there 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. See Am. Cyanamid,
381 F.3d at 25–26. ASARCO is also correct that there is an
express right to seek contribution from other PRPs following
a settlement with the government, according to CERCLA
§ 113(f)(3)(B), and that the 2008 Bankruptcy Settlement
settled ASARCO’s liability to the government for the first
time. We have not previously considered whether a settling
party has an absolute right to pursue an otherwise expired
claim following a settlement with the government, and we
hold that no such right exists. On this point, the First
Circuit’s reasoning in American Cyanamid is helpful. The
First Circuit reasoned that allowing a previous settlement on
a discrete set of costs to trigger the statute of limitations on an
unresolved set of costs would unfairly reward an early settler
with a benefit that it had not paid for, and would allow that
settler to avoid paying its fair share. Am. Cyanamid, 381 F.3d
at 16. Additionally, if we adopted ASARCO’s position,
allowing a bankruptcy settlement with the United States or a
State to revive an otherwise expired CERCLA claim would
circumvent the statute of limitations. “The principal purpose
6
As addressed in Section III, above, the costs are the same, so ASARCO
cannot recover from CNA under this theory.
ASARCO V. CELANESE CHEMICAL CO. 23
of limitations periods in this setting is to ensure that the
responsible parties get to the bargaining—and clean-
up—table sooner rather than later.” RSR Corp., 496 F.3d at
559. If the right to seek contribution on an otherwise expired
claim was allowed after fixing costs with the government,
then any PRP seeking to fix the costs of privately-apportioned
CERCLA liability through a bankruptcy settlement with the
government would receive a benefit that it had not paid for in
that bankruptcy settlement. Such a right would circumvent
the statute of limitations for contribution actions and would
encourage tardy parties to use bankruptcy to revive their
expired claims. It would also serve to discourage private
party settlements and diligent pursuit of contribution claims
following the entry of such settlements. If the principal
purpose of the limitations period is to ensure that responsible
parties get to the “bargaining and clean-up table” sooner
rather than later, then potentially responsible parties must be
brought to that table within three years of the statute-of-
limitations triggering event, and once the statute of
limitations has expired on that cause of action, potentially
responsible parties cannot revive the expired contribution
claim through a subsequent bankruptcy settlement with the
United States or a State.
The judgment of the district court is AFFIRMED.