[00:00:03] Speaker 02:
31, government of Guam versus United States of America appellate.

[00:00:08] Speaker 02:
Ms.

[00:00:08] Speaker 02:
Herron for the appellate, Ms.

[00:00:09] Speaker 02:
Gilmore for the appellate.

[00:00:15] Speaker 00:
Ms.

[00:00:15] Speaker 00:
Herron, good morning.

[00:00:16] Speaker 00:
Good morning.

[00:00:17] Speaker 00:
May it please the court.

[00:00:19] Speaker 00:
My name is Rachel Herron on behalf of the United States.

[00:00:21] Speaker 00:
With the court's permission, I'd like to reserve three minutes for rebuttal.

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This court should reverse the district court's order denying the United States motion to dismiss.

[00:00:31] Speaker 00:
In this lawsuit, Guam is explicitly seeking to recover the cost of actions that according to Guam's own complaint... I would stop you and ask you to move the speaker up or get a little closer to it or something.

[00:00:47] Speaker 00:
Is that better, Your Honor?

[00:00:49] Speaker 00:
Apologies.

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This Court should reverse the District Court's order denying the United States' motion to dismiss.

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In this lawsuit, Guam is explicitly seeking to recover the cost of actions that, according to Guam's own complaint, Guam is obliged to take by a 2004 consent decree with the EPA, and that also, according to Guam's own complaint, constitute response actions within the meaning of CERCLA.

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Under section 113, F3B of CERCLA, a party has three years to bring a contribution action after the entry of a consent decree that resolves that party's liability for some or all of a response action.

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Guam waited more than a decade.

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For that reason, the contribution claim that section 113, F3B afforded to Guam is now time barred.

[00:01:41] Speaker 04:
Because that claim- I want to ask you just about the last few words

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of FB3 that neither of the parties focus on, it says you can bring a claim against a potentially responsible party only if that party is not party to a settlement under F2.

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And in this case, the United States is a party to the settlement.

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So how can Guam bring a case under 113, FB3?

[00:02:19] Speaker 00:
It's an interesting question, Your Honor, and I'll admit it's not one that we've considered here in the briefs.

[00:02:24] Speaker 04:
Right on both accounts.

[00:02:26] Speaker 04:
So what does it mean?

[00:02:27] Speaker 04:
It looks, that's the plain language of the statute says Guam can't use 113 because the United States is a party.

[00:02:39] Speaker 04:
It's plain language of the statute.

[00:02:41] Speaker 00:
Well, Your Honor, I think that that provision of the statute may not, from any person who is not a party to a settlement, refer to in paragraph two, refers to a person who has resolved his liability to the United States for a state in that paragraph.

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Where does it say that?

[00:02:58] Speaker 04:
It doesn't say that.

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And why would it say that?

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Well, because, and I think here something important to keep in mind as well, is that the 2004 consent decree is between Guam and the EPA.

[00:03:08] Speaker 04:
Wait, you said it means a party who has resolved?

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is just used under F2 or has not.

[00:03:14] Speaker 00:
I read the reference that you're referring to at the end of 113F3B, may seek contribution from any person who is not a party to a settlement referred in paragraph two.

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To refer to in paragraph two, which is 113F2, begins, 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 of contribution.

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So I agree that the wording of that last provision

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could be read to mean that you can't bring the suit potentially against either the person that has resolved its liability in that consent decree or the United States or the state, but I don't think that that broader reading

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makes sense.

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And I also think that here it's also important to keep in mind that the 2004 consent decree is between Guam and the EPA.

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Certainly, the EPA is an agency of the United States, but the federal government can wear multiple hats when it's involved potentially in these kind of contaminated sites.

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Where here, EPA, the 2004 consent decree between Guam and the EPA is between Guam and the United States as regulator.

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Whereas in this action,

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WAM is attempting to sue the United States in its capacity as potentially another potentially responsible party at the site.

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So I see Your Honor's point about the potential very broad reading of that language at the end of 113F3B, but I think that the better reading of the statute is simply that it was trying to cut off the ability to bring

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a contribution action against someone who under 113F2 has already resolved its liability and thus gained immunity from contribution suits.

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And also here in this context, the 2004 consent decree, you know, because it is between Guam and EPA.

[00:05:10] Speaker 04:
Well, let me ask you a related question about that.

[00:05:12] Speaker 04:
Certainly.

[00:05:13] Speaker 04:
107 is a waiver of sovereign immunity, correct?

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That's what 107 is.

[00:05:20] Speaker 05:
Yes.

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But what in 113

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Is there any indication that in passing this Congress intended to waive the government's sovereign immunity?

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For contribution actions?

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Yeah.

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Yes, there is.

[00:05:34] Speaker 04:
Where?

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I apologize, Your Honor, that I don't have a particular provision to show you right now.

[00:05:41] Speaker 04:
Is it in the statute?

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I'll have to look, Your Honor.

[00:05:46] Speaker 04:
Well, maybe you can get it when you come up with something.

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Yes, I think I can certainly do that.

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But contribution actions under 113 had been brought against the federal government, can be brought against the federal government.

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There's never been a sovereign immunity bar to those kinds of cases in which someone is seeking to recover against the United States in its capacity as a potentially responsible party at a site.

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Is it your position that you can bring a contribution action against the US if you've settled with the US?

[00:06:19] Speaker 00:
Yes.

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precisely what happened here.

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What does the settlement achieve?

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What the settlement achieves is that it places an obligation on the person who settled to begin performing response actions.

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Without a settlement in place, the only avenue for relief that a person at a site would have against the United States would be to bring a cost recovery action under section 107.

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But they could only

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They could only bring a 107 action after they had already incurred response costs at the site.

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So the concern and that animated the contribution provisions of CERCLA is that it's quite a lot to ask a party and there is a hesitance on parties to perform a full response action

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and then wait and then sue under 107 when they don't know what the ultimate outcome of that 107 action will be.

[00:07:19] Speaker 00:
The idea of having the 113 process is that we get these determinations out of the way early.

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We get some certainty as to what actions are going to be performed, at least in the first instance.

[00:07:30] Speaker 00:
And then there is this short three-year statute of limitations for seeking contribution.

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So it gets that process rolling and prevents the situation where you have these seats

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these sites, excuse me, that could sit out there for years or decades while people sort of wait to see who will move first.

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Or where the United States, in its capacity to protect the public health and welfare, will have to move first and expend public funds and then after the fact go after those who are also responsible at the site.

[00:08:02] Speaker 00:
So if I could, Your Honors, I'd like to focus on the earlier language of 113 F3B before the piece that Judge Tatel drew the Court's attention to, which is that this section provides a contribution action for, quote, a person who has resolved its liability to the United States or a state for some or all of a response action.

[00:08:29] Speaker 00:
I think what's important to keep in mind here is that unlike CERCLA's other contribution provision, F1, there is no requirement in the language of the statute that says that the liability that has to be resolved is liability under CERCLA or liability under any particular legal claim.

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It simply requires the resolution of liability for some or all of a response action.

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For that reason,

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The hallmark of a consent decree that will give rise to an action under 113F3B is that the consent decree settles with finality at least some subset of actions that the person settling will have to perform at this site.

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So long as it does so, other features of the consent decree going to whether the underlying claims that gave rise to the consent decree have been resolved are immaterial.

[00:09:26] Speaker 00:
In our view, that's where the district court went wrong here.

[00:09:29] Speaker 00:
The three features of the consent decree that the district court focused on, the non-admission of liability, the reservation of certain rights, the statement that release and settlement of the claims would be contingent on performance, those all go to the question of whether there is a resolution

[00:09:49] Speaker 00:
of the underlying claims.

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But that is not what 113 F3B requires in order for a response action to be afforded.

[00:09:58] Speaker 00:
And then I would also point out that those provisions that the district court found troubling here are common in CERCLA settlements, certainly, but also in settlements outside of this area.

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They are common features that people enter into when they are entering into a settlement.

[00:10:14] Speaker 00:
And in fact, they are features that Section 122 of CERCLA, which

[00:10:19] Speaker 00:
In our view, as we've said under the terms of the statute, it need not be a CERCLA settlement in particular to trigger a 113 FQB action, but certainly a CERCLA settlement would.

[00:10:29] Speaker 00:
Even Guam agrees that.

[00:10:31] Speaker 00:
But Section 122 of CERCLA specifically authorizes, and in the case of the conditional covenants, requires consent decrees to have each of these features.

[00:10:40] Speaker 00:
So it would be odd indeed and inconsistent with the statute if those features nevertheless prevented

[00:10:45] Speaker 00:
a finding that a consent decree resolved liability.

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And we think the reason that the district court was even focused on those features in the first place was because of this misunderstanding as to the difference between resolving liability for a response action and resolving liability for claims.

[00:11:04] Speaker 00:
I see that there's about four minutes left on the clock, Your Honors, and I will reserve the rest of that time unless there's another question right now.

[00:11:12] Speaker 00:
Thank you.

[00:11:23] Speaker 02:
Good morning.

[00:11:24] Speaker 01:
Good morning.

[00:11:25] Speaker 01:
May it please the court.

[00:11:26] Speaker 01:
John Gilmore on behalf of the people and government of Guam.

[00:11:30] Speaker 01:
Your honors, this case is about the United States' dominance and control of Guam for the better part of a century and its ongoing recalcitrance to take responsibility for its historic actions.

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US acquired Guam in 1898 in resolution of the Spanish-American War and the Treaty of Paris.

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It designated Guam, an island with a population as a naval vessel.

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Until 1950, it was the USS Guam and overseen by the United States Navy.

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That time frame encompassed pre-World War II, the occupation by the Japanese during World War II, the liberation in 1944, the cleanup after the war,

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What the United States consistently omits in its briefing and its argument is that the

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owned, operated by the United States for that entire time.

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Pre-World War II, it was a ravine into which the United States military dumped its waste.

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During World War II, the Japanese troops, post-World War II, or post-liberation in 1944, the United States resumed using the Oradot dump as a waste disposal area and continued to do so through the 1960s, even after

[00:12:49] Speaker 01:
they had created the government of Guam through the Organic Act in 1950.

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Most telling is that from 1944 until 1950, 100% of the island of Guam was owned and 70% of the island of Guam was occupied and operated by the United States military.

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The United States set up and established all of the island's infrastructure post-World War II.

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The Ordot dump is unlined.

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because of the design implemented by the United States.

[00:13:24] Speaker 01:
Leachate, the subject of the Clean Water Act Complaint and Consent Decree at the core of today's discussion, escaped from the or dot dumped because of the United States design.

[00:13:38] Speaker 03:
That leachate could contain, could it not, materials that would be ordinarily be subject to remediation under

[00:13:49] Speaker 01:
Yes, Your Honor, they could, but it's not clear.

[00:13:52] Speaker 01:
One of the things that I was going to discuss is that CERCLA and RCRA require hazardous wastes.

[00:14:00] Speaker 01:
Hazardous wastes are defined terms under the statutes.

[00:14:04] Speaker 01:
The Clean Water Act is designed to address pollutants.

[00:14:08] Speaker 01:
Pollutants are also a defined term under the statute.

[00:14:13] Speaker 01:
pollutants are much broader than hazardous substances.

[00:14:16] Speaker 01:
Hazardous substance has to be listed in the federal register regulations.

[00:14:20] Speaker 03:
Maybe that bears on this question.

[00:14:21] Speaker 03:
Why didn't Guam assert a contribution claim under CERCLA in response to the 2002 action?

[00:14:33] Speaker 01:
The 2002 action, Your Honor, was a Clean Water Act violation.

[00:14:38] Speaker 01:
And pollutants, which are the subject of the Clean Water Act, can include such things as sand, dirt.

[00:14:45] Speaker 01:
The case was brought under the Clean Water Act, too.

[00:14:48] Speaker 01:
I'm sorry, Your Honor?

[00:14:48] Speaker 03:
The complaint in this case is based on the Clean Water Act, also.

[00:14:51] Speaker 01:
No, Your Honor, it's not.

[00:14:52] Speaker 01:
It's based on the circle of cost recovery.

[00:14:55] Speaker 03:
Where is that in the record?

[00:14:58] Speaker 03:
I thought I was looking at the proper page at 112.

[00:15:03] Speaker 03:
Is that not the current complaint?

[00:15:07] Speaker 01:
Give me one second, Your Honor.

[00:15:14] Speaker 01:
The amended complaint, Your Honor, is enjoyed appendix at 21.

[00:15:16] Speaker 01:
21?

[00:15:20] Speaker 01:
Yes, Your Honor.

[00:15:27] Speaker 01:
And the claims for relief, Your Honor,

[00:15:29] Speaker 01:
are located at pages JA26 through 29.

[00:15:35] Speaker 01:
Thank you.

[00:15:41] Speaker 01:
As I was saying, Your Honor, the pollutants are much broader, and even such things as heat can constitute a pollutant under the Clean Water Act.

[00:15:50] Speaker 01:
But it is not a hazardous substance under CERCLA.

[00:15:53] Speaker 01:
They are not one and the same.

[00:15:54] Speaker 01:
And because the Clean Water Act complaint

[00:15:57] Speaker 01:
and the Clean Water Act consent decree all address only Clean Water Act violations and only address pollutants, there is no indication that there is any resolution of any other liability.

[00:16:10] Speaker 01:
In fact, we would argue that there is no resolution of liability even as to the Clean Water Act claims because of the broad reservation of rights that the United States has.

[00:16:21] Speaker 01:
It specifically states

[00:16:26] Speaker 01:
that abiding by the consent decree does not guarantee compliance with the Clean Water Act and in no way affects the government of Guam's responsibilities to comply with all applicable federal and territorial laws and regulations.

[00:16:42] Speaker 01:
That's at paragraph 47.

[00:16:43] Speaker 04:
Under 113, the question is whether

[00:16:50] Speaker 04:
what Guam was required to do was a response action.

[00:16:53] Speaker 04:
That's the question, right?

[00:16:56] Speaker 04:
That's what the statute says.

[00:16:58] Speaker 01:
I would respectfully disagree.

[00:17:00] Speaker 01:
I agree that the statute says it, but I think the key here is that there was resolution of liability for a response action.

[00:17:06] Speaker 04:
For a response action.

[00:17:08] Speaker 04:
And under the consent decree, the consent decree relates back to the complaint, and the complaint sought

[00:17:16] Speaker 04:
to require Guam to build a cover, right?

[00:17:19] Speaker 04:
And ultimately to close it.

[00:17:22] Speaker 04:
Isn't that a response action?

[00:17:25] Speaker 01:
Your Honor, the complaint actually, the two claims in the complaint are solely for permit violations and civil penalties.

[00:17:35] Speaker 01:
Paragraph 27 of the complaint.

[00:17:37] Speaker 01:
What about the injunction?

[00:17:40] Speaker 01:
The injunction simply was a request.

[00:17:42] Speaker 01:
This is paragraph one of the prayer for relief.

[00:17:46] Speaker 01:
Ordering the government of Guam to comply with the Clean Water Act.

[00:17:49] Speaker 01:
That is all that was required.

[00:17:50] Speaker 04:
What about the requirement to put a lid on a cap?

[00:17:57] Speaker 01:
That's not in... As part of the consent decree, there was a requirement that they install a cover over the Oradot dump.

[00:18:10] Speaker 01:
The cover would solely serve the purpose as preventing rainwater

[00:18:15] Speaker 01:
from percolating through causing leachate to come out and potentially reach the Lawn Fit River, which is arguably water in the United States.

[00:18:23] Speaker 04:
Why isn't that?

[00:18:24] Speaker 04:
I'm looking at the language of F3B.

[00:18:28] Speaker 04:
Yes, Your Honor.

[00:18:29] Speaker 04:
ROM has, quote, resolved its liability to the U.S.

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for some or all of a response action.

[00:18:35] Speaker 04:
Some or all of a response action.

[00:18:38] Speaker 01:
But, Your Honor, liability is a defined term in the statute, in CERCLA.

[00:18:44] Speaker 01:
and it references the Water Pollution Control Act 33 USC, section 1321.

[00:18:50] Speaker 01:
Therein, the Water Pollution Control Act defines liability as requiring hazardous substances.

[00:18:57] Speaker 01:
There is no indication in either the Clean Water Act complaint or the Clean Water Act consent decree that hazardous substances are being abated by any actions.

[00:19:08] Speaker 01:
The sole focus is on leachate that is arguably reaching waters in the United States.

[00:19:14] Speaker 01:
That is very different than a response action under CERCLA, which mandates for cleanup.

[00:19:20] Speaker 04:
What's your reaction to the discussion we were having with Ms.

[00:19:22] Speaker 04:
Herron about this language in FB3, which says, may seek contribution from any person who is not party to a settlement under F2?

[00:19:35] Speaker 04:
And the fact is that that, who is not party, and the fact is that the United States is.

[00:19:43] Speaker 04:
Is there a reason you didn't argue that?

[00:19:46] Speaker 01:
I would argue that they're not, Your Honor, because this is specific.

[00:19:48] Speaker 01:
If you would argue what?

[00:19:49] Speaker 01:
I'm sorry?

[00:19:50] Speaker 04:
What would you argue?

[00:19:51] Speaker 01:
Sorry.

[00:19:51] Speaker 01:
I would argue that F2 is inapplicable because that is a specific provision for contribution protection for CERCLA and RCRA specific settlements, which this is not.

[00:20:05] Speaker 04:
All right.

[00:20:17] Speaker 04:
Is that because of the language that says, here, let me find the statute.

[00:20:21] Speaker 04:
Is that because of F2?

[00:20:27] Speaker 04:
A person who has resolved its liability to the US or a state in an administratively or judicially approved settlement.

[00:20:40] Speaker 04:
It doesn't say anything about CERCLA.

[00:20:44] Speaker 04:
It just says,

[00:20:46] Speaker 04:
a person who has resolved its liability to the US or state in an administrative settlement?

[00:20:54] Speaker 01:
I agree with the language you are.

[00:20:56] Speaker 01:
I would argue that because it's found within 9613 of CERCLA that it is referencing CERCLA-specific settlements, which are discussed in 9622, part of the same subchapter.

[00:21:11] Speaker 04:
Well, F1 refers to CERCLA, but F2 doesn't.

[00:21:17] Speaker 01:
F1 refers to the cost recovery provision.

[00:21:21] Speaker 04:
My point is it refers to this statute, which suggests that F2 is broader.

[00:21:28] Speaker 04:
If Congress had wanted to limit F2 to circle, it would have said what it said in F1.

[00:21:34] Speaker 04:
Is that right?

[00:21:41] Speaker 01:
I would agree that it is broader than F1.

[00:21:43] Speaker 01:
Yes, Your Honor.

[00:21:47] Speaker 04:
So you don't want to rely on that provision in FB3 and just say, well, look, the United States is a party to this settlement, so you can't pursue.

[00:21:55] Speaker 04:
113 is not triggered.

[00:22:00] Speaker 01:
That's correct, Your Honor.

[00:22:00] Speaker 01:
We argue that 9613 was not triggered, that we can pursue a. No, no, no, no.

[00:22:08] Speaker 04:
This language could help you, because the United States is a party to this decree.

[00:22:13] Speaker 04:
Right?

[00:22:14] Speaker 04:
Yes, Your Honor.

[00:22:15] Speaker 04:
And if it is, under this language, Guam could not pursue a Section 113 action.

[00:22:21] Speaker 04:
You could only pursue under 107.

[00:22:24] Speaker 04:
But you chose not to rely on that.

[00:22:26] Speaker 04:
Right?

[00:22:27] Speaker 01:
Until this point, Your Honor, yes.

[00:22:33] Speaker 01:
May I amend our pleading?

[00:22:34] Speaker 04:
No, I thought you said, I thought you ended up agreeing with Ms.

[00:22:38] Speaker 04:
Heron.

[00:22:39] Speaker 04:
Which is that I thought you said that F3B, F3B refers you back to F2, right?

[00:22:54] Speaker 01:
Yes, Your Honor.

[00:22:55] Speaker 04:
And that is a person who has resolved its liability to the United States.

[00:23:01] Speaker 01:
Yes, Your Honor.

[00:23:02] Speaker 04:
And her position is that can't be, that's not the United States.

[00:23:10] Speaker 04:
I don't know.

[00:23:15] Speaker 04:
This is not the clearest statute, is it?

[00:23:17] Speaker 02:
Isn't the person referred to in F3B a potentially responsible party?

[00:23:27] Speaker 02:
It is not the US, because the US is separately referred to in all of F

[00:23:37] Speaker 02:
as the United States, not as a person.

[00:23:42] Speaker 02:
So I think F3B, when it says, may seek contribution of any person who is not a party to a settlement referred to in paragraph two, it is simply repeating what F2 says.

[00:23:58] Speaker 02:
That is, that a potentially responsible party who settles with the US is not liable

[00:24:08] Speaker 02:
for contribution claims from other potentially responsible parties, but the latter group is not discharged from liability.

[00:24:18] Speaker 02:
In other words, the two sections are saying the same thing.

[00:24:23] Speaker 01:
I would tend to agree with you, Your Honor.

[00:24:25] Speaker 01:
The only complicating factor

[00:24:27] Speaker 01:
that I would point out is that person is a defined term within CERPLA and does include the United States.

[00:24:33] Speaker 01:
However, I agree, given the wording of the statute that it's referred to as the United States and not as a person, I would agree with the analysis.

[00:24:41] Speaker 02:
Well, if you just look at 3D, it says a person who has resolved his liability of the United States.

[00:24:46] Speaker 02:
That is, it doesn't say the United States, which has resolved his liability of the United States.

[00:24:51] Speaker 02:
It's got to be somebody other than the United States in this provision.

[00:24:55] Speaker 01:
I would agree.

[00:24:57] Speaker 04:
Well, but wait, but in this case, one of the potentially responsible parties is the United States, right?

[00:25:03] Speaker 04:
Yes, Your Honor, we are in a... So, I mean, that's what's odd about this case, is that it's brought by the United States, but a potentially responsible party is the United States.

[00:25:15] Speaker 04:
Yeah.

[00:25:16] Speaker 04:
So the language of F2, a person who has resolved its liability, is that the Navy?

[00:25:33] Speaker 01:
Our position, Your Honor, is that there was no resolution of liability in the 2004 Clean Water Act consent decree.

[00:25:41] Speaker 04:
Correct.

[00:25:41] Speaker 01:
Therefore, 9613 was not triggered at all.

[00:25:44] Speaker 04:
Right.

[00:25:44] Speaker 04:
So if you stop using the word United States and just use the word Navy, right, then

[00:26:04] Speaker 04:
We can't do that.

[00:26:05] Speaker 04:
Forget it.

[00:26:05] Speaker 04:
It doesn't work.

[00:26:08] Speaker 01:
Yes, Your Honor.

[00:26:10] Speaker 02:
Can I ask you one thing?

[00:26:11] Speaker 02:
You originally brought the 107 action.

[00:26:14] Speaker 01:
Yes, Your Honor.

[00:26:15] Speaker 01:
Originally, we brought a 107 action, a claim under CERCLA for injunctive relief, and in the alternative, a 113 action, which the district court dismissed.

[00:26:25] Speaker 02:
Okay, but the 107 presumes that there are some hazardous substances.

[00:26:30] Speaker 02:
I just want to get clear.

[00:26:32] Speaker 02:
You've been talking about pollutants and leachates.

[00:26:34] Speaker 02:
There are some hazardous substances.

[00:26:37] Speaker 01:
Your Honor, in the past, since the on-site construction started in 2013, there has been extensive sampling, and yes, there are hazardous substances present.

[00:26:48] Speaker 04:
Right, okay.

[00:26:49] Speaker 04:
Do you have anything, any thoughts about my question to Ms.

[00:26:54] Speaker 04:
Heron about

[00:26:56] Speaker 04:
Sovereign immunity waivers.

[00:26:57] Speaker 04:
107 is a clear waiver of sovereign immunity.

[00:27:01] Speaker 04:
She says that 113 FB3 is also.

[00:27:06] Speaker 04:
Do you agree with that?

[00:27:08] Speaker 01:
I do, Your Honor.

[00:27:10] Speaker 01:
Where is that?

[00:27:13] Speaker 04:
I mean, waivers of sovereign immunity have to be clear, correct?

[00:27:17] Speaker 01:
Yes, Your Honor.

[00:27:17] Speaker 04:
So you've got to find something in the statute that says that the United States can be sued for contribution.

[00:27:27] Speaker 04:
Yes, Your Honor.

[00:27:27] Speaker 04:
We know it can be sued for costs, but what about contribution?

[00:27:31] Speaker 04:
Where does it say that?

[00:27:33] Speaker 01:
I don't think there is a specific waiver within 9613 as there is in 9607.

[00:27:39] Speaker 01:
I think that it has been the practice of the United States, and I would defer to Ms.

[00:27:44] Speaker 01:
Herron regarding that, but it has been the practice to be subject to 9613 contribution actions.

[00:27:52] Speaker 04:
This would help your case, do you understand?

[00:27:53] Speaker 01:
Yes, Your Honor, I agree it would.

[00:27:57] Speaker 04:
But you think there is a waiver somewhere.

[00:27:59] Speaker 04:
You're willing to rely on the government for that proposition?

[00:28:02] Speaker 01:
I am telling Your Honor that I am not aware of a specific waiver of sovereign immunity in 9613, but I am not aware of case law holding that sovereign immunity of the United States either.

[00:28:15] Speaker 04:
Well, I only care for starters about what the statute says, because that's where you've got to find a waiver of sovereign immunity.

[00:28:22] Speaker 04:
Are there other 113 actions for contribution against the United States?

[00:28:29] Speaker 01:
There are some, yes.

[00:28:32] Speaker 01:
Any in appeals courts?

[00:28:35] Speaker 01:
Not currently, pending that I'm aware of.

[00:28:37] Speaker 04:
No, I mean, are there any appeals court decisions, opinions?

[00:28:40] Speaker 01:
Not addressing the sovereign immunity of 9613 that I am aware of, Your Honor.

[00:28:44] Speaker 01:
All right, thank you.

[00:28:45] Speaker 01:
Sorry, my time has expired.

[00:28:46] Speaker 02:
Can I ask you one more question?

[00:28:48] Speaker 02:
Absolutely, Your Honor.

[00:28:49] Speaker 02:
On F1, the contribution.

[00:28:51] Speaker 02:
Do you read it as I do that you can either bring a contribution cause of action as part of a 106 or a 107 action, or you can bring a freestanding contribution claim?

[00:29:09] Speaker 01:
I read 96F1 to state that if you as a potentially responsible party are a defendant

[00:29:17] Speaker 01:
in a 106 or 107 action, then you may bring a contribution claim against another potentially responsible party.

[00:29:24] Speaker 02:
All right.

[00:29:24] Speaker 02:
Just concentrate on that last sentence.

[00:29:27] Speaker 02:
Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action.

[00:29:35] Speaker 01:
Yes, Your Honor.

[00:29:36] Speaker 01:
I think that would then... Allow a freestanding contribution.

[00:29:39] Speaker 02:
Yes, Your Honor.

[00:29:43] Speaker 01:
All right.

[00:29:43] Speaker 01:
Thank you.

[00:29:45] Speaker 02:
How much time does Ms.

[00:29:47] Speaker 02:
Heron have?

[00:29:54] Speaker 00:
Okay.

[00:29:55] Speaker 00:
Your Honors, if I could, I'd like to jump right back into Judge Tatel's question about 113F3B and how we know that a suit can be brought against the United States.

[00:30:06] Speaker 00:
So I would direct, Your Honors, to two provisions.

[00:30:10] Speaker 00:
First, 113F3B itself.

[00:30:12] Speaker 00:
which says that, as we've been discussing, that a person may seek contribution from any, quote, person.

[00:30:18] Speaker 04:
And then I would refer back... There are persons defined as United States, right?

[00:30:22] Speaker 00:
Yes, in section 101, subsection 21, person includes United States government.

[00:30:27] Speaker 00:
So I think that should resolve that issue.

[00:30:29] Speaker 04:
Well, except for the last part of the sentence.

[00:30:30] Speaker 00:
Yes, and with regard to that sentence, I agree, Your Honor, that there is, it's unfortunately, as with many things about CERCLA, as the courts have noted, it's not a model of clarity, but I think that the... You know, we still have to figure it out.

[00:30:45] Speaker 00:
Yes, I think that the reading of that section of that last sentence that makes the most sense is, as Judge Henderson was saying, that it is referring back to 113F2 and

[00:30:58] Speaker 00:
Making clear that a person that also starts with a person that's yes and and a United States government or an agency can be a person in this context because they can resolve its liability to the United States or a state in an administrative or just Judicially approved settlement 113 f2 then says that person shall not be liable for

[00:31:20] Speaker 00:
for claims for contribution regarding matters addressed in the settlement.

[00:31:24] Speaker 00:
So what 113F2 is saying is that once you have entered into one of these consent decrees and resolved your liability, no one can bring a contribution action against you.

[00:31:34] Speaker 00:
And I think the clear import of that last piece of 113F3B is to make clear

[00:31:39] Speaker 00:
that the action that it gives does not override the protection that 113 F2 provides to other persons who have also resolved their liability.

[00:31:48] Speaker 04:
But we know the United States is not a party to an F2 settlement, right?

[00:31:54] Speaker 00:
In this instance, no.

[00:31:56] Speaker 04:
No, I'm wrong or yes?

[00:31:58] Speaker 00:
I apologize.

[00:31:59] Speaker 00:
In this instance, there is no United States agency has resolved it.

[00:32:03] Speaker 04:
It's not a party to an F2 settlement.

[00:32:06] Speaker 04:
So, right?

[00:32:08] Speaker 04:
So why isn't it just clearer, then?

[00:32:12] Speaker 00:
The complication here is that there is this 2004 consent decree, which, as we've said, is a settlement that resolves liability.

[00:32:21] Speaker 00:
It doesn't resolve the United States' liability for some of response action.

[00:32:24] Speaker 00:
It resolves Guam's liability.

[00:32:26] Speaker 04:
But not the United States.

[00:32:27] Speaker 00:
That's correct.

[00:32:28] Speaker 00:
That's EPA.

[00:32:29] Speaker 04:
So it just seems to me that Guam

[00:32:35] Speaker 04:
It says, may seek contribution from any person who is not party to a settlement referred to in paragraph F2.

[00:32:42] Speaker 04:
So we look at F2, and we know the United States is not a party to an F2 settlement.

[00:32:49] Speaker 04:
So the plain language of the statute seems to suggest that Guam cannot bring an FB3 action.

[00:32:57] Speaker 00:
I disagree, Your Honor.

[00:32:59] Speaker 00:
I think 113 F3B says that a person who has resolved its liability to the United States or a state for some or all response action may seek contribution from any person who is not a party to a settlement referred in paragraph two.

[00:33:13] Speaker 00:
We go back to paragraph two.

[00:33:15] Speaker 04:
We totally agree on what the words are.

[00:33:17] Speaker 04:
I apologize.

[00:33:18] Speaker 04:
Neither one of us can figure out what to do.

[00:33:20] Speaker 00:
So here we have, and then when we go back to 113F2, the only resolution of liability that's at issue here is the 2004 consent decree.

[00:33:29] Speaker 00:
The EPA is a party to that consent decree, yes.

[00:33:32] Speaker 00:
But it is not.

[00:33:34] Speaker 04:
It didn't resolve its liability.

[00:33:35] Speaker 00:
It did not resolve its liability.

[00:33:37] Speaker 04:
It was the prosecuting agency.

[00:33:37] Speaker 00:
That's correct.

[00:33:38] Speaker 04:
That's what's so strange about this case.

[00:33:40] Speaker 00:
It is a little strange.

[00:33:42] Speaker 00:
And these kind of strangers is a rise in circular because the United States and states

[00:33:47] Speaker 00:
wear two hats potentially in these situations where here we have a situation where the US is a regulator and so you have EPA taking actions.

[00:33:55] Speaker 00:
And we also have allegations that federal agencies are potentially responsible parties.

[00:34:00] Speaker 04:
So what about the sovereign immunity?

[00:34:04] Speaker 04:
And then I have a general question for you.

[00:34:06] Speaker 00:
Sure.

[00:34:06] Speaker 00:
So with regard to the sovereign immunity point, again, I would refer back to section 101, subsection 21, the definition of person, which explicitly includes the United States government when the Congress then in 113 F3B referred to being able to bring an action against a person.

[00:34:24] Speaker 00:
We know under the statute that person includes the United States.

[00:34:28] Speaker 02:
Isn't it possible that in this provision, persons or person is a shorthand for potentially responsible person?

[00:34:40] Speaker 02:
I mean, I haven't looked at the definition of potentially responsible person, but is it possible that that's just shorthand in this provision for the PRP?

[00:34:54] Speaker 02:
And they just didn't say it every single time they said person.

[00:35:00] Speaker 02:
In other words, the last sentence of F2 says, such settlement does not discharge any of the other potentially liable persons, unless its terms so provide.

[00:35:13] Speaker 02:
But it reduces the potential liability of the others, meaning other potentially responsible persons.

[00:35:23] Speaker 02:
Is the US considered a PRP?

[00:35:29] Speaker 00:
Guam certainly alleges that the United States is a PRP here.

[00:35:32] Speaker 02:
Well, under the definition of PRP.

[00:35:34] Speaker 00:
I mean, as a factual matter, the allegations and the complaint, the United States certainly falls under that definition.

[00:35:41] Speaker 02:
What's the definition of PRP?

[00:35:42] Speaker 00:
Well, here, I think the relevant one would be owner or operator of the site.

[00:35:45] Speaker 00:
Given the allegations as alleged in the complaint, the United States maybe would certainly fit under that category.

[00:35:52] Speaker 00:
I thought you had indicated you might have another general question.

[00:35:59] Speaker 04:
Waivers of the Statute of Sovereignty have to be clear.

[00:36:02] Speaker 04:
And if 113 isn't, then the way this statute would work is that, well, I'm settled, so it gets the benefit of F2, right?

[00:36:11] Speaker 04:
Yes.

[00:36:12] Speaker 04:
It can't be, no one can seek contribution from it, which is what Congress intended, right?

[00:36:18] Speaker 00:
That's correct.

[00:36:18] Speaker 04:
But it can only pursue to get its, it can only pursue the cost,

[00:36:24] Speaker 04:
It can only go under 107 to get its cost back from the United States, which is a clear waiver set of sovereign immunity.

[00:36:33] Speaker 04:
Why isn't that sort of the logical way to think about the statute?

[00:36:41] Speaker 00:
inconsistent with the language of 113 F3B, which says that, as we've discussed, a person who's resolved its liability to the United States or a state for some or all of response action can seek contribution from any person.

[00:36:56] Speaker 04:
Right, but as you and I both agree, this is an unusual case because here the United States is both the prosecutor and the potentially responsible person.

[00:37:04] Speaker 04:
So we have to figure out how the statute applies in that situation.

[00:37:08] Speaker 00:
well i think in terms of unusual it's

[00:37:12] Speaker 00:
not sort of the standard way we think of these things working in most statutory contexts, but in the CERCLA context, it's not at all uncommon for the United States to be both regulator and potentially responsible party, and the same is true for states.

[00:37:25] Speaker 00:
This is certainly not the only kind of situation or the only case in which this issue has arisen, excuse me, in which there has been a suit for contribution brought against a federal agency in their capacity as

[00:37:41] Speaker 00:
as a potentially responsible party and we think that the reference to person and the use of person and the fact that person is defined to include the United States allows those actions to proceed against the United States and requires them to be brought when there is a resolution of liability under the 113 contribution provisions.

[00:38:00] Speaker 00:
The problem with kind of moving all of these into the 107 context in addition to the fact that we think that the statute language calls for otherwise is that

[00:38:11] Speaker 00:
the more that we are funneling actions under 107, the less value the 113 settlement process has, because as we've discussed in 113 F2, the protection that people who resolve their liability to the United States or state get is that they are protected from contribution suits, that is other 113 suits, not 107 suits.

[00:38:33] Speaker 00:
So the harder we make it to trigger a 113 action, the more we sort of read additional requirements into the statute,

[00:38:39] Speaker 00:
we're kind of devaluing 113 and making it less likely that people will enter into settlements in the first place, which is Congress' whole purpose in enacting this 113 provision.

[00:38:49] Speaker 00:
For these reasons, Your Honors, we would ask that the Court reverse and dismiss the lawsuit.

[00:38:58] Speaker 00:
All right.

[00:38:58] Speaker 00:
Thank you.