Whittaker Corporation, a Delaware corporation, Plaintiff-Appellant,
United States of America, Defendant-Appellee.
and Submitted March 10, 2016 Pasadena, California
from the United States District Court for the Central
District of California, No. 2:13-cv-01741-FMO-JC Fernando M.
Olguin, District Judge, Presiding
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
Before: Stephen Reinhardt, Mary H. Murguia, and John B.
Owens, Circuit Judges.
panel reversed the district court's dismissal of
Whittaker Corporation's lawsuit against the United States
under the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 to recover expenses that Whittaker
incurred since the 1980s from investigating and cleaning the
Bermite Site, a munitions facility in Santa Clarita,
district court dismissed the case based on its conclusion
that because Whittaker had been sued in Castaic Lake
Water Agency v. Whittaker Corp., 272 F.Supp.2d 1053,
1069 (C.D. Cal. 2003), it could bring only a CERCLA
contribution action - not a cost recovery action - against
the United States, and the statute of limitations for a
contribution claim had expired.
was found liable to the Castaic Lake plaintiffs for
the expenses specifically related to removing perchlorate
from the plaintiffs' wells and replacing water; in this
case, Whittaker sought reimbursement from the government for
a different set of expenses for which Whittaker was found not
liable in Castaic Lake.
panel held that because Whittaker sought to recover expenses
that were separate from those for which Whittaker's
liability was established or pending, Whittaker was not
required to bring this suit as a claim for CERCLA §
113(f) contribution. The panel concluded that Whittaker was
not barred on this basis from bringing a CERCLA § 107(a)
cost recovery action against the United States.
Owens concurred in all but Part III D because in his view the
case law has drifted from Congress's intent when it
passed and amended CERCLA in the 1980s.
MURGUIA, Circuit Judge.
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 (1981). CERCLA, a federal environmental statute, also
allows people who pay to clean up pollution recover their
costs from the polluters. 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.
Corporation is a defense contractor that manufactures and
tests munitions for the U.S. military. 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
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, 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.
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."
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
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.
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.
filed this timely appeal. We have jurisdiction under 28
U.S.C. § 1291, and we reverse.
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 ...