March 25, 2019
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No. l:17-cv-02565
- Sarah Evans Barker, Judge.
Wood, Chief Judge, and Flaum and Sykes, Circuit Judges.
a case about who should bear the costs of cleaning up a
contaminated lead smelter site in Beech Grove, Indiana, a
suburb of Indianapolis. Plaintiff Refined Metal Corporation
("Refined") has owned the site since 1980, when it
acquired it from defendant NL Industries Inc.
("NL"). After years of litigation involving both
the federal Environmental Protection Agency ("EPA")
and the Indiana Department of Environmental Management
("IDEM"), Refined entered into a settlement with
both agencies in 1998. The 1998 Decree, as we will call it,
required Refined to close the site, pay a $210, 000 fine, and
remedy the contamination. For their part, EPA and IDEM agreed
not to bring suit against Refined on at least some of their
potential claims (though the parties dispute the scope of
those covenants). These covenants not to sue took effect
immediately upon the entry of the 1998 Decree. In 2017,
almost 19 years later, Refined sued NL to recoup some of the
cleanup costs for which it is responsible.
of 19 years is a long time to keep an entitlement to
reimbursement up in the air. The question before us is
whether it is so long that Refined lost its statutory right
to bring this action. The district court found that
Refined's claim qualified as a "contribution
action" under section 113(f)(3)(B) of the Comprehensive
Environmental Response, Compensation, and Liability Act
("CERCLA"), 42 U.S.C. § 9613(f)(3)(B).
Contribution claims are subject to a three-year statute of
limitations, and so the court dismissed the suit on that
ground. It also relinquished supplemental jurisdiction over
Refined's state law claims. On appeal, Refined argues
that its suit is instead a "cost-recovery" action
under section 107(a) of CERCLA, 42 U.S.C. § 9607(a), and
that it would be timely under that subsection's more
permissive limitations period. NL contends that it wins no
matter which CERCLA provision applies, given that the statute
of limitations applicable to section 107(a) is only six years
and, as NL sees things, that clock began running and expired
matters, in our opinion, whether this is a section
113(f)(3)(B) contribution action or a section 107(a)
cost-recovery case. If it were the latter, we would need to
conduct a searching examination of what actions to clean up
the site anyone has taken, and when. But we can skip that
inquiry, because we agree with the district court that this
is a section 113(f)(3)(B) contribution action, and the
limitations period had expired by the time Refined filed
suit. We therefore affirm the decision of the district court.
commonly known as the Superfund Act, "shifts the cost of
[an environmental] cleanup to the parties responsible for
creating the hazard and away from taxpayers, who otherwise
would be left to pick up the bill." NCR Corp. v.
George A. Whiting Paper Co., 768 F.3d 682, 689 (7th Cir.
2014). The statute identifies who may be held liable; they
are called "potentially responsible parties" or
PRPs in the jargon of environmental law. If a PRP believes
that it has paid or may become liable for paying
"cleanup costs in excess of its fair share,"
id., the statute permits it to seek compensation
from other PRPs.
are two such routes available to someone seeking to recover
from a PRP: a section 107(a) "cost-recovery" action
and a section 113(f) "contribution" action.
Bernstein v. Bankert, 733 F.3d 190, 206 (7th Cir.
2013). A plaintiff such as Refined will often prefer to
proceed under the cost-recovery provision in section 107(a),
because it not only contains a longer statute of limitations,
but it also bars defendants from asserting equitable
defenses. NCR Corp., 768 F.3d at 690. These
plaintiff-friendly provisions make sense: section 107
generally, if not always, operates as an avenue for
recovering "costs incurred during a self-initiated
environmental cleanup" rather than one spurred by a
lawsuit or settlement. Id. But if either statutory
trigger for a section 113(f) contribution action is present-a
qualifying lawsuit under section 113(f)(1) or a qualifying
settlement under section 113(f)(3)(B)-the plaintiff may
proceed only under that provision. See Bernstein,
733 F.3d at 206 ("[A] plaintiff is limited to a
contribution remedy when one is available.").
statutory trigger at issue in this case is the one spelled
out in section 113(f)(3)(B), which creates a right to
contribution for 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." (A "response" is a term of art in
CERCLA that encompasses both short-term "removal"
actions and more permanent "remedies" or
"remedial actions." 42 U.S.C. § 9601(25)). The
district court found that the 1998 Decree resolved enough of
Refined's liability to qualify as "an administrative
or judicially approved settlement" under section
113(f)(3)(B). Since the three-year clock for contribution
suits starts when the settlement is entered, the district
court ruled that the statute of limitations ran out in 2001
and this suit was time-barred.
appeal, Refined advances nine issues, which we have
reorganized into three principal arguments, in support of its
contention that the 1998 Decree did not trigger a section
113(f)(3)(B) contribution claim. If it is correct, and if
other conditions were satisfied, then it would be able to
pursue a section 107 cost-recovery claim. First, Refined
asserts that its refusal to admit liability in the 1998
Decree meant that the Decree did not actually "resolve
its liability to the United States or a State for some or all
of a response action/' as the statute requires. Second,
Refined argues that only settlements that resolve liability
for CERCLA-specific violations qualify as predicates for
section 113(f)(3)(B) claims. As Refined reads it, the 1998
Decree included only covenants from the agencies not to sue
Refined under other statutes-in particular, the Resource
Conservation and Recovery Act (RCRA) and the Clean Air
Act-and left Refined's CERCLA liability open. Refined
asks us to find that this is an independent reason that the
1998 Decree could not have triggered a contribution action.
Third, Refined argues that it could not have sought a
"contribution" from NL because, in its view, NL and
Refined are not "joint tortfeasors." We address its
arguments in that order.
determining whether the 1998 Decree qualified under section
113(f)(3)(B), Refined urges us to focus on the presence or
absence of an admission of liability. But that is not the
central inquiry. We recognize that in Bernstein, we
found that a settlement had not resolved enough of the
PRP's liability to trigger a section 113(f)(3)(B) claim,
but the circumstances are important. We reached this result
when (1) the settlement expressly stated that the defendant
companies did not admit any liability or the validity of the
EPA's findings; and (2) the covenants not to sue
were not immediately effective, but instead were conditional
on complete performance of the terms of the settlement. 733
F.3d at 212. The district court in this case found it
"clearer than a remediated stream" which of the two
factors the Bernstein court found dispositive: the
lack of an immediately effective covenant not to sue. The
Bernstein court emphasized that "if the EPA had
included an immediately effective promise not to sue as
consideration for entering into the agreement, the
situation would be different." Id. at 213 (emphasis
added). We have in this case that "different"