Jeanette Schuster Examines Whittaker Corp. v. United States for Oregon State Bar Publication
August 3, 2016
authored the below article for ENR Case Notes, Vol. 26
, published July 2016 by the Oregon State Bar Environmental and Natural Resources Section.
Whittaker Corp. v. United States
, No. 14-55385, 2016 WL 3244838, ---F3d.---(9th Cir. June 13, 2016).
This case examines the interplay between the two different and distinct methods available to potentially responsible parties ("PRPs") under CERCLA to recover all or a portion of their environmental response costs—cost recovery claims under CERCLA Section 107(a) and contribution claims under CERCLA Section 113(f). Cost recovery is available to PRPs for costs "voluntarily" incurred to respond to environmental contamination, while contribution claims are available to PRPs during or after being sued for cost recovery under Section 107(a) or after a PRP has settled its CERCLA liability with the government. The distinction is often key, as it was here, because cost recovery claims have a longer statute of limitations period than contribution claims (six years and three years, respectively).
In this case, the Ninth Circuit reviewed the district court's dismissal of Whittaker's lawsuit brought against the United States government under CERCLA to recover the costs Whittaker had incurred to investigate and clean up environmental contamination at its munitions facility in Santa Clarita, California (the "Bermite Site"). Whittaker is a defense contractor that manufactures and tests munitions for the United States military. It acquired the Bermite Site in 1967 and operated it until 1987. In 2000, Whittaker was sued by the Castaic Lake Water Agency and other water providers under CERCLA for contamination (perchlorate primarily) to the plaintiffs' water supplies from the Bermite Site. In 2003, the district court in that litigation granted summary judgment to the Castaic Lake plaintiffs and, in 2007, Whittaker and its insurers settled the case. Of importance to the Ninth Circuit in this case was the fact that the Castaic Lake litigation made Whittaker liable for a specific set of plaintiffs' costs—the costs to remove perchlorate contamination from the water wells and the costs to purchase replacement water—but did not require Whittaker to clean up the Bermite Site.
In 2013, Whittaker initiated this CERCLA lawsuit against the United States seeking to recover Whittaker's costs to investigate and clean up the Bermite Site, which were separate and distinct from the costs it incurred in connection with the Castaic Lake litigation. The district court did not appreciate this distinction and dismissed Whittaker's case, holding that Whittaker was limited to a contribution claim under CERCLA Section 113(f) because of the Castaic Lake litigation and that the statute of limitations for a contribution claim had lapsed.
The Ninth Circuit reversed and remanded. It rejected the government's claim that once the procedural/statutory triggers for a party's contribution claim under CERCLA Section 113(f) have occurred, the party's right (or requirement) to seek contribution from other PRPs extends to all of the party's expenses at the site, not just those that are the subject of the proceeding that triggered the initial contribution remedy. Instead, the Ninth Circuit recognized separate rights of action under CERCLA for separate sets of environmental expenses, and thus separate sets of triggers for statute of limitations purposes. Because in its case against the United States Whittaker sought recovery of costs that were separate from the Castaic Lake litigation, the Ninth Circuit held that Whittaker was not required to bring its suit as a claim for contribution and was therefore not barred from bringing a cost recovery action against the United States.