Gov't of Guam v. United States

• Decision Date: 14 February 2020
• Docket Number: No. 19-5131,19-5131
• Citation: 950 F.3d 104
• Parties: GOVERNMENT OF GUAM, Appellee v. UNITED STATES of America, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

950 F.3d 104

GOVERNMENT OF GUAM, Appellee

v.UNITED STATES of America, Appellant

No. 19-5131

United States Court of Appeals, District of Columbia Circuit.

Argued November 12, 2019

Decided February 14, 2020

Rachel Heron, Attorney, U.S. Department of Justice, argued the cause for appellant United States of America. With her on the briefs were Eric Grant, Deputy Assistant Attorney General, and Evelyn Ying and Michael Augustini, Attorneys.

John D.S. Gilmour argued the cause for plaintiff-appellee. With him on the brief were Bezalel A. Stern, William J. Jackson, and Mark Donatiello. Fabio Dworschak entered an appearance.

Before: Henderson and Tatel, Circuit Judges, and Ginsburg, Senior Circuit Judge.

Tatel, Circuit Judge:

For nearly half a century, the United States Navy operated a landfill on the island of Guam. Home to discarded munitions, chemicals, and everyday garbage, the so-called Ordot Dump lacked any sort of environmental safeguards. At bottom, this case concerns whether Guam or the Navy is financially responsible for the environmental hazards arising from the Ordot Dump. The answer to that question turns on the interaction between two provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA): section 107, the act’s "cost-recovery" provision, and section 113, its "contribution" provision. See 42 U.S.C. §§ 9607, 9613(f). If Guam must proceed under section 113, then its suit against the Navy for costs related to the dump is now time-barred. But if it may utilize section 107, then its suit remains timely. As explained below, we conclude that a 2004 consent decree with EPA triggered Guam’s right to pursue a contribution claim under section 113, precluding it from now pursuing a claim under section 107. We therefore reverse the district court’s contrary conclusion and remand with instructions to dismiss.

I.

Congress enacted CERCLA, 42 U.S.C. §§ 9601 et seq., "in response to the serious environmental and health risks posed by industrial pollution," United States v. Bestfoods , 524 U.S. 51, 55, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998). Seeking to enable the "prompt cleanup of hazardous waste sites and to ensure that responsible parties foot the bill," General Electric Co. v. Jackson , 610 F.3d 110, 114 (D.C. Cir. 2010), CERCLA directs that any potentially responsible party— "PRP" for short—"shall be liable" for the costs associated with the release of hazardous substances and subsequent cleanup of polluted sites, CERCLA § 107(a).

Remediation at Superfund sites is, unsurprisingly, expensive. Central to CERCLA’s operation is a mechanism for entities to seek recoupment of any cleanup costs incurred from other responsible parties. As originally drafted, CERCLA provided that "any person" potentially responsible for hazardous waste "shall be liable for ... all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe," CERCLA § 107(a)(4)(A), as well as "any other necessary costs of response incurred by any other person," id . § 107(a)(4)(B) (emphasis added). While CERCLA "did not mandate ‘joint and several’ liability in every case," Burlington Northern & Santa Fe Railway Co. v. United States , 556 U.S. 599, 613, 129 S.Ct. 1870, 173 L.Ed.2d 812 (2009), "[t]he practical effect of placing the burden on defendants has been that responsible parties rarely escape joint and several liability," O’Neil v. Picillo , 883 F.2d 176, 178–79 (1st Cir. 1989), meaning that any one PRP may be held responsible for the entire cost of a cleanup.

Although multiple entities may be responsible for a superfund site, only one may have actually "incurred" "costs of response"—a necessary predicate to bringing a section 107 claim. CERCLA § 107(a)(4)(A), (B). Following CERCLA’s passage in 1980, "litigation arose over whether § 107, in addition to allowing the Government and certain private parties to recover costs from PRPs, also allowed a PRP that had incurred response costs"—that is, a PRP that had paid out but not actually done a cleanup itself—"to recover costs from other PRPs." Cooper Industries, Inc. v. Aviall Services, Inc ., 543 U.S. 157, 161, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004). At common law, tortfeasors like PRPs were typically entitled to "contribution"—a "right to collect from joint tortfeasors when, and to the extent that, the tortfeasor has paid more than his or her proportionate share to the injured party, the shares being determined as percentages of causal fault." Contribution , Black’s Law Dictionary (11th ed. 2019). But as originally passed, "CERCLA contained no provision expressly providing for a right of action for contribution;" in fact, it made no mention of "contribution" at all. Cooper , 543 U.S. at 162, 125 S.Ct. 577.

Congress addressed this gap in the statutory scheme when it amended CERCLA through the Superfund Amendments and Reauthorization Act of 1986, Pub. L. 99–499, 100 Stat. 1613. Specifically, it added a new section to the Act—section 113—which "provide[d] two express avenues for contribution." Cooper , 543 U.S. at 167, 125 S.Ct. 577. The first, section 113(f)(1), provides that "[a]ny person may seek contribution from any other person who is liable or potentially liable under section [107(a) ] of this title, during or following any civil action ... under section [107(a) ] of this title." CERCLA § 113(f)(1). The second new avenue, section 113(f)(3)(B), provides that a party that "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." Section 113 also creates special incentives for PRPs to settle with enforcement authorities. Although that section broadly allows PRPs to seek contribution from other PRPs, "[a] person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement." Id. § 113(f)(2). Settlement with EPA or state authorities therefore inoculates a party from further contribution liability.

The upshot is that CERCLA now offers two potential causes of action for an entity seeking recovery from a PRP: a section 107 "cost-recovery" action, available for recoupment of cleanup costs, and a section 113(f) "contribution" action, available for recoupment of funds paid out pursuant to a section 107 action, a settlement, or another contribution action. Central to this case, the statute of limitations for a contribution action is three years, see CERCLA § 113(g)(3); the statute of limitations for a remedial section 107 action is six, id. § 113(g)(2)(B).

II.

Nearly a century before CERCLA’s passage, the United States captured the island of Guam following the Spanish-American War. See Paul Carano & Pedro C. Sanchez, A Complete History of Guam 169–83 (1964) (describing how Guam became an American possession). From 1903 until World War II, the United States treated Guam as a US Naval ship—the "USS Guam"—and maintained military rule until the passage of the Guam Organic Act in 1950. Robert F. Rogers, Destiny’s Landfall: A History of Guam 126, 226 (1995). That act marked the formal transfer of power from the United States to Guam’s newly formed civilian government, id. at 226, but until the 1960s, visiting Guam required a military security clearance, see Exec. Order No. 11045, 3 C.F.R. 238, 238–39 (1962) (discontinuing the Guam Island Naval Defensive Sea Area and Guam Island Naval Airspace Reservation). Guam remained, as it had been since the Treaty of Paris in 1898, an "unincorporated territory of the United States." 48 U.S.C. § 1421a.

Against this colonial backdrop, the Navy constructed and operated the Ordot Dump for the disposal of municipal and military waste sometime in the 1940s. Even after relinquishing sovereignty over the island, however, the Navy continued to take advantage of the dump. Throughout the Korean and Vietnam Wars, the Navy used the Ordot Dump for the disposal of munitions and chemicals, allegedly including Dichlorodiphenyltrichloroethane—DDT—and Agent Orange, Am. Compl. ¶ 11. It was "the only sited and operational dump on Guam" until the 1970s, and the only public landfill on the island until its closure in 2011. Id. And as the Navy continued to use the Ordot Dump, it continued growing; "[w]hat was once a valley," the District Court of Guam explained, "is now at least a 280-foot mountain of trash." United States v. Guam, No.02-00022, slip op. at 1 (D. Guam Jan. 24, 2008).

Despite its extensive use, the Ordot Dump lacked basic environmental safeguards. "[U]nlined on its bottom and uncapped at its top," the landfill absorbed rain and surface water, which percolated through the landfill and mixed with contaminants. Am. Compl. ¶ 12. These contaminants released into the nearby Lonfit River, which flows into the Pago River, and ultimately into the Pacific Ocean at Pago Bay. Id .

The Ordot Dump has long attracted the attention of the United States as regulator. EPA added the Ordot Dump to its National Priorities List in 1983, and, in 1988, issued a Record of Decision designating the Navy as a potentially responsible party for the site. Id. ¶ 13. But having relinquished sovereignty over the island, the Navy no longer owned and operated the Ordot Dump—Guam did. And, beginning in 1986, EPA repeatedly ordered Guam to devise plans for containing and disposing of waste at the landfill.

Unsatisfied with Guam’s remediation attempts, EPA sued Guam in 2002 under the Clean Water Act, 33 U.S.C. §§ 1251 et seq., asserting that Guam violated that act by "discharging pollutants ... into waters of the United States without obtaining a permit." Complaint for Injunctive Relief, United States v. Guam, No. 02-00022, at ¶ 26 (D. Guam) (CWA Compl.), Joint Appendix (J.A.) 86. As EPA explained in...