Whittaker Corp. v. United States

• Citation: 825 F.3d 1002
• Decision Date: 13 June 2016
• Docket Number: No. 14-55385,14-55385
• Parties: Whittaker Corporation, a Delaware corporation, Plaintiff-Appellant, v. United States of America, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

825 F.3d 1002

Whittaker Corporation, a Delaware corporation, Plaintiff-Appellant

v.United States of America, Defendant-Appellee.

No. 14-55385

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 2016, Pasadena, California

Filed June 13, 2016

Kevin M. Fong (argued), Pillsbury Winthrop Shaw Pittman LLP, San Francisco, California; Reynold L. Siemens, Mark E. Elliott, and Caroline L. Plant, Pillsbury Winthrop Shaw Pittman LLP, Los Angeles, California, for Plaintiff-Appellant.

Nicholas A. DiMascio (argued), Attorney, Environment and Natural Resources Division, United States Department of Justice, Denver, Colorado; Aaron P. Avila and Michael C. Augustini, Attorneys; Sam Hirsch, Acting Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; for Defendant-Appellee.

Before: Stephen Reinhardt, Mary H. Murguia, and John B. Owens, Circuit Judges.

Partial Concurrence by Judge Owens

OPINION

MURGUIA, Circuit Judge:

When two or more people have been found liable for someone's injury, and one of them pays more than her fair share, the law often lets the person who paid too much recover from the others, in order to even things out. This is called the right to “contribution,” and it has deep roots in our statutory and common law. See Nw. Airlines, Inc. v. Transp. Workers Union of Am., AFL – CIO , 451 U.S. 77, 86–88, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981). CERCLA, 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 plaintiff in this case, Whittaker, is a company that was both found liable for injuries caused by its pollution and that also paid to clean pollution up. Whittaker now seeks reimbursement of its cleanup expenses from other polluters. We must decide whether Whittaker is limited to seeking contribution from other polluters, or whether Whittaker may instead recover its cleanup expenses in a CERCLA cost recovery action. We hold that Whittaker's liability in a prior case did not limit it to seeking contribution for all of its expenses, so Whittaker may use a CERCLA cost recovery action to seek reimbursement for the cleanup costs at issue in this case.

I

Whittaker Corporation is a defense contractor that manufactures and tests munitions for the U.S. military.² In 1967, Whittaker acquired a munitions facility in Santa Clarita, California, from the Bermite Powder Company (the Bermite Site). Between 1954, when the Bermite Powder Company was in charge, until 1987, when Whittaker ceased operations, approximately 90 percent of the munitions manufacturing and testing at the Bermite Site was done under contracts with the U.S. military.

Whittaker began investigating the release of hazardous substances at the Bermite Site in the early 1980s. In 2000, Whittaker was sued by the Castaic Lake Water Agency and other water providers (the Castaic Lake plaintiffs) under CERCLA and various state laws. The Castaic Lake plaintiffs were in the business of pumping water out of ground wells near the Bermite Site. They alleged that their water supplies were contaminated by a pollutant called perchlorate and other hazardous chemicals as a result of Whittaker's operations. Specifically, the Castaic Lake plaintiffs alleged:

Plaintiffs, and each of them, are injured by the contamination (including, without limitation, the perchlorate contamination) caused by Defendants on a continuing basis. In addition, Plaintiffs, and each of them, have incurred and will continue to incur costs in responding to the contamination (including, without limitation, the perchlorate contamination) caused by Defendants' activities at the Site. Until the contamination problems caused by the Site are stopped, Plaintiffs will continue to incur substantial costs for the indefinite future.

In their CERCLA causes of action, the Castaic Lake plaintiffs sought to recover the “costs of response” they had incurred. The Castaic Lake plaintiffs also alleged causes of action for negligence, nuisance, trespass, and ultra-hazardous activity, and in those causes of action, they sought an injunction ordering Whittaker to “remediate and abate all contamination and threats of contamination caused by the Site.”

The district court in Castaic Lake granted summary judgment to the Castaic Lake plaintiffs on their CERCLA claim based on perchlorate contamination in the plaintiffs' wells. Castaic Lake Water Agency v. Whittaker Corp. , 272 F.Supp.2d 1053, 1069 (C.D. Cal. 2003). Whittaker and its insurers subsequently settled with the Castaic Lake plaintiffs in 2007. Under the terms of the settlement, Whittaker and its insurers agreed to reimburse the Castaic Lake plaintiffs for costs the plaintiffs had incurred to remove perchlorate pollution from their water wells, and to purchase replacement water. The result of Castaic Lake was that Whittaker was found liable for a specific set of the plaintiffs' costs of responding to Whittaker's pollution; Whittaker was never ordered in Castaic Lake to clean up the Bermite Site.

In 2013, Whittaker initiated this CERCLA lawsuit against the United States to recover expenses Whittaker incurred since the 1980s from investigating and cleaning the Bermite Site. Whittaker alleged that these expenses included costs for soil sampling, borings, excavations, surveys, groundwater sampling, and remedial operations addressing chlorinated solvents and heavy metals. Whittaker explicitly alleged that these expenses were separate from the costs for which it was liable under the Castaic Lake settlement.

The United States moved to dismiss Whittaker's complaint, arguing that because Whittaker had been sued in Castaic Lake, it could bring only a CERCLA contribution action—not a cost recovery action—against the United States, and that the statute of limitations for a contribution claim had expired. The district court agreed with the United States. The district court concluded that, pursuant to CERCLA § 113, the Castaic Lake lawsuit triggered Whittaker's right to bring an action for contribution (i.e. , reimbursement for paying more than its fair share), and that the instant lawsuit sought expenses that could have been reimbursed through such a contribution action. Because Whittaker could have brought a contribution action, the district court concluded under our case law that Whittaker could not bring a cost recovery action (i.e. , reimbursement from a polluter for cleanup costs). And because Whittaker only brought a cost recovery action, the district court dismissed the complaint.

Whittaker filed this timely appeal. We have jurisdiction under 28 U.S.C. § 1291, and we reverse.

II

We review the district court's decision to grant a motion to dismiss de novo .

Chubb Custom Ins. Co. v. Space Sys./ Loral, Inc. , 710 F.3d 946, 956 (9th Cir. 2013). We take the factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff. Id. “Dismissal is proper when the complaint does not make out a cognizable legal theory or does not allege sufficient facts to support a cognizable legal theory.” Id. We review the district court's interpretation of a statute de novo . Id.

III

A

Congress enacted CERCLA in 1980 to facilitate the remediation of hazardous waste sites and the resolution of liability for the related costs, especially through negotiated settlements. Chubb Custom , 710 F.3d at 956. One of the ways CERCLA achieves these goals is by allowing a party who remediates a hazardous waste site to obtain reimbursement of its expenses from those responsible for the pollution. See id . at 956–57.

As relevant to this case, CERCLA provides two mechanisms for private parties to recover their environmental cleanup expenses from other parties. First, CERCLA § 107(a) allows parties to bring “cost recovery” actions against polluters for a wide range of expenses, including “any ... necessary costs of response incurred” and “damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release [of a hazardous substance].” 42 U.S.C. § 9607(a)³ ; United States v. Atl. Research Corp. , 551 U.S. 128, 139, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007). In the lingo of CERCLA litigation, a polluter who might be liable under a § 107 cost recovery action is called a “potentially responsible party” or “PRP.” See Chubb Custom , 710 F.3d at 956.

The other mechanism to recover cleanup expenses, § 113(f), allows a party to seek “contribution” in two circumstances. Section 113(f)(1) provides, in relevant part:

Any person may seek contribution from any other person who is liable or potentially liable under [§ 107(a) ] of this title, during or following any civil action ... under [§ 107(a) ] of this title. ... In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.

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

A person who has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement may seek contribution from any person who is not party to a settlement ....

Id. § 9613(f)(3)(B). In short, § 113(f) generally allows a polluter to bring a contribution claim against other polluters if the polluter has been sued in a § 107 cost recovery action or settled with the government.

CERCLA does not define “contribution.” See id. § 9601. However, the Supreme Court provided a definition in United States v. Atlantic Research, another CERCLA case:

Contribution is defined as the “tortfeasor's right to collect from others responsible for the same tort after the tortfeasor has paid more than his or her proportionate share, the shares being determined as a percentage of fault.” Nothing in [CERCLA] §

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