September 10, 2019
Appeal from the United States District Court for the District
of New Jersey (D.C. No. 3-15-cv-02789) District Judge:
Honorable Brian R. Martinotti
McGahren [ARGUED] Stephanie R. Feingold Counsel for Appellant
Jeffrey Bossert Clark Allen M. Brabender Avi Kupfer [ARGUED]
United States Department of Justice
Heather E. Gange United States Department of Justice Counsel
Before: HARDIMAN, GREENAWAY, JR., and BIBAS, Circuit Judges.
up pollution is both essential and expensive. But polluters
often frustrate cleanups, blaming one another to shift their
fair share of the costs. The Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA) tries to
fix this problem by forcing them all to pay: A government or
person who incurs cleanup costs can sue a site's
polluters to recover those costs in a "cost
recovery" action. If the plaintiff prevails, the
polluters are held strictly as well as jointly and severally
liable. Then, the polluters can ask a court to split the bill
among them equitably in a "contribution" action.
polluter first settles its liability with the government,
CERCLA immunizes that polluter from contribution liability to
other polluters. But this immunity comes with a cost: a
polluter who has settled with the government may bring a
contribution claim against other polluters, but not a
Cranbury Brick Yard, LLC, brings both cost-recovery and
contribution claims against the federal government. It seeks
to recover money that it spent cleaning up a long-abandoned
weapons-manufacturing facility that the U.S. military and
others contaminated. But Cranbury Brick Yard settled its
potential CERCLA liability with the State of New Jersey
before the cleanup. That gave it immunity from contribution
claims, which extinguishes its cost-recovery claim. This left
only its contribution claim against the federal government.
But that claim is untimely because Cranbury Brick Yard sued
nine years after joining the settlement. So we will affirm.
CERCLA, Briefly Explained
is "notorious for its lack of clarity and poor
draftsmanship." Lansford-Coaldale Joint Water Auth.
v. Tonolli Corp., 4 F.3d 1209, 1221 (3d Cir.
1993); accord Giovanni v. U.S. Dep't of the
Navy, 906 F.3d 94, 117 (3d Cir. 2018) ("CERCLA is
not the Mona Lisa of statutes."). Still, its broad
contours are easy enough to grasp.
gives private litigants two causes of action: cost recovery
under section 107(a) and contribution under section
113(f)(1). 42 U.S.C. §§ 9607(a), 9613(f)(1). The
two are distinct, but they "complement each other"
by applying" 'to persons in different procedural
circumstances.'" United States v. Atl. Research
Corp., 551 U.S. 128, 139 (2007) (quoting Consol.
Edison Co. of N.Y. v. UGI Utils., Inc., 423 F.3d 90, 99
(2d Cir. 2005)); see Cooper Indus., Inc. v. Aviall
Servs., Inc., 543 U.S. 157, 163 n.3 (2004). We discuss
each in turn.
who cleans up a brownfield may sue the site's polluters
to recover "any . . . necessary costs of response."
42 U.S.C. § 9607(a)(4)(B). If a cost-recovery suit
succeeds, the defendants are strictly as well as jointly and
severally liable. Pa. Dep't of Envtl. Prot. v.
Trainer Custom Chem., LLC, 906 F.3d 85, 89-90 (3d Cir.
2018). For "remedial action[s]" (that is,
"those actions consistent with permanent remedy"),
the statute of limitations for a cost-recovery action is six
years from when the cleanup begins. 42 U.S.C. §§
kinds of "potentially responsible part[ies]" may be
liable for cost recovery, including the site's current
owner and anyone who owned the site "at the time of
disposal of any hazardous substance." Id.
§ 9607(a)(1)-(2); 40 C.F.R. § 304.12(m). But an
owner is immune from liability if it bought the site as a
"bona fide prospective purchaser." 42 U.S.C.
§§ 9601(40), 9607(r)(1). To qualify, the owner must
show (among other things) that "[a]ll disposal of
hazardous substances . . . occurred before [it] acquired the
facility." Id. § 9601(40)(B)(i).
polluter is or may be liable under CERCLA or has settled its
liability with a state or the federal government, it may sue
other polluters for "contribution." Id.
§ 9613(f)(1), (3)(B). Contribution is a
"tortfeasor's right to collect from others
responsible for the same tort after the tortfeasor has paid
more than his or her proportionate share, [with] the shares
being determined as a percentage of fault." Atl.
Research, 551 U.S. at 138 (quoting
Contribution, Black's Law Dictionary
353 (8th ed. 2004)). So a contribution action lets a court
"allocate response costs among liable parties using . .
. equitable factors." 42 U.S.C. § 9613(f)(1).
Resolving the overlap
recovery and contribution are "similar and somewhat
overlapping remed[ies]." Key Tronic Corp. v. United
States, 511 U.S. 809, 816 (1994). That overlap became an
issue after the Supreme Court's decision in Atlantic
Research, which held that polluters could bring both
kinds of claims against one another. 551 U.S. at 141. Since
then, we and our sister circuits have clarified the
relationship between the two kinds of claims.
The price of contribution-claim immunity.
polluter who settles its CERCLA liability with the federal
government or a state government enjoys immunity under §
9613(f)(2) from contribution claims. In Agere
Systems, we held that if a polluter is immune from
contribution claims, it cannot bring cost-recovery claims.
Agere Sys., Inc. v. Advanced Envtl. Tech. Corp., 602
F.3d 204, 229 (3d Cir. 2010). Instead, it can bring only
contribution claims. Id.
other circuits have reached this issue. All agree. See
Whittaker Corp. v. United States, 825 F.3d 1002, 1007
& n.4 (9th Cir. 2016); Hobart Corp. v. Waste Mgmt. of
Ohio, Inc., 758 F.3d 757, 768 (6th Cir. 2014);
Bernstein v. Bankert, 733 F.3d 190, 202 (7th Cir.
2013); Solutia, Inc. v. McWane, Inc., 672 F.3d 1230,
1236-37 (11th Cir. 2012) (per curiam); Morrison Enters.
v. Dravo Corp., 638 F.3d 594, 603 (8th Cir. 2011);
Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc.,
596 F.3d 112, 127-28 (2d Cir. 2010).
Why the Agere Systems rule is necessary.
example may help show (a) the normal interplay between
cost-recovery and contribution claims, (b) why
contribution-claim immunity under § 9613(f)(2)
encourages CERCLA settlements, and (c) how the Agere
Systems rule helps apportion cleanup costs equitably by
keeping polluters from using their immunity as both sword and
a cleanup of comic proportions: Years ago, Wayne Enterprises
and LexCorp ran a chemical factory together. After it shut
its doors, the site remained contaminated with hazardous
substances. Now, Gotham City owns the vacant, polluted
brownfield. Responding to mounting public pressure, the City
spends $1 billion cleaning up the site. Then it sues both
companies for cost recovery.
typical CERCLA lawsuit, this is how cost-recovery and
contribution claims would interact: because cost-recovery
actions impose joint-and-several liability, both companies
would theoretically be on the hook for 100% of the
billion-dollar liability. Trainer Custom, 906 F.3d
at 90. While joint-and-several liability helps compensate
fully those who clean up pollution, it sometimes leads to
inequitable results. Fortunately, CERCLA has an answer: the
two companies could cross-claim for contribution and ask the
court to split the bill between them in proportion to their
percentages of fault. See Atl. Research, 551 U.S. at
139-40 (citing 42 U.S.C. § 9613(f)(1)).
litigation is costly and time consuming. So CERCLA encourages
polluters to settle with the government to get cleanups
started sooner. Contribution-claim immunity under §
9613(f)(2) promotes those efficient settlements. Imagine
instead that the Environmental Protection Agency starts an
enforcement action, claiming that LexCorp is responsible for
$400 million of the cleanup costs at the Gotham chemical
factory. LexCorp's lawyers negotiate down and settle for
just $100 million. Afterwards, Wayne Enterprises cannot bring
a contribution action and ask the court to allot more than
$100 million in cleanup costs to LexCorp. If it could, it
would undermine the finality of CERCLA settlements and thus
discourage them. Cf. Atl. Research, 551 U.S. at 141
(noting that "settlement carries the inherent benefit of
finally resolving liability"). Instead,
contribution-claim immunity under § 9613(f)(2) protects
settlements like LexCorp's.
the Agere Systems rule, however, settling polluters
could wield this immunity offensively to escape liability. If
LexCorp settles with the government for $100 million and then
sues Wayne Enterprises for cost recovery, LexCorp could
impose 100% of its liability on Wayne Enterprises through
joint-and-several liability. Agere Sys., 602 F.3d at
228. Worse still, because LexCorp has § 9613(f)(2)
immunity, Wayne Enterprises could not counterclaim for
contribution to apportion costs equitably. So LexCorp could
recoup its $100 million in settlement costs even though it is
"actually responsible for, and ha[s] stipulated that [it
is] responsible for, a significant portion of the
contamination." Id. at 228.
So if a
polluter like LexCorp who is immune from contribution claims
could bring a cost-recovery action, it could use that
immunity to" 'eschew equitable apportionment,
'" impose "the harshness of joint and several
liability" against other polluters, and shift its own
liability in the process. Id. at 228-29 (quoting
Atl. Research, 551 U.S. at 138). To avoid this
"perverse result," we held in Agere
Systems that a polluter who has contribution-claim
immunity under § 9613(f)(2) cannot bring a cost-recovery
claim. Id. Instead, it can bring only a contribution
claim. Id. at 229.