[00:00:01] Speaker 04:
The next case this morning is 23-1349, Atlantic Richfield versus NL Industries, Council for Appellant.

[00:00:14] Speaker 04:
If you'd make your appearance, then proceed, please.

[00:00:23] Speaker 01:
Thank you, Mr. Chief Judge, and may it please the Court.

[00:00:26] Speaker 01:
I'm Theresa Benz for Atlantic Richfield.

[00:00:30] Speaker 01:
This circular case concerns Atlantic Richfield's cleanup of a mining site where both it and NL's predecessors had operations, and whether Atlantic Richfield will be foreclosed from pursuing NL's share of the cleanup costs by a statute of limitations that expired before Atlantic Richfield's contribution claim even occurred.

[00:00:51] Speaker 01:
Annelle agrees that once Atlantic Ridgefield settled with EPA, it no longer had a claim for cost recovery and could only pursue contribution.

[00:01:01] Speaker 01:
The question here is what statute of limitations applies to that contribution claim?

[00:01:06] Speaker 01:
Is it section 113 G3 for contribution, the claim that Atlantic Ridgefield has, or is it section 113 G2 for cost recovery, the claim it doesn't?

[00:01:19] Speaker 01:
Put that way, the answer seems clear.

[00:01:21] Speaker 01:
It should be contribution.

[00:01:23] Speaker 01:
But the dilemma here is that the Section 122A settlement that Atlantic Ridgefield entered is not one of the listed triggering events for the contribution statute of limitations.

[00:01:33] Speaker 01:
But post-Cooper Industries and Atlantic Research, every circuit to consider this question has held that the contribution statute of limitations applies in the circumstance.

[00:01:44] Speaker 03:
If ARCO had incurred the

[00:01:47] Speaker 03:
expenses after the unilateral administrative order and prior to the settlement, wouldn't the action actually have been a cost recovery action as opposed to a contribution action?

[00:02:01] Speaker 01:
Only until Atlantic Richfield settled, because once it settled it moved into the procedural posture of only having a contribution claim.

[00:02:10] Speaker 01:
That's what Cooper Industries said.

[00:02:11] Speaker 03:
Even though the costs had not been incurred in connection with the settlement,

[00:02:17] Speaker 03:
In other words, if the costs had been incurred only as obviously the complaint was originally a cost recovery complaint, if the costs are incurred then and then there is let's say years later then there's a settlement, well the costs weren't incurred by virtue of the settlement.

[00:02:38] Speaker 03:
The settlement is obviously after the fact.

[00:02:42] Speaker 03:
Can the settlement

[00:02:43] Speaker 03:
sort of retroactively and magically transform the character of those expenses from cost recovery to contribution?

[00:02:52] Speaker 01:
It can, as long as that settlement resolves liability to the United States, which this settlement did, for past response costs, which this settlement also did, it qualifies for contribution under the plain language of CERCLA, Section 113 F3B.

[00:03:09] Speaker 01:
So we know that we're in contribution land with respect to all the matters addressed in the settlement, and that included those past work costs because Atlantic Richfield settled its liability to the United States and said, we're responsible for those costs, we're responsible for the future cleanup, they're on the hook with stipulated penalties and financial assurance.

[00:03:29] Speaker 01:
EPA got certainty that this cleanup was going to be completed.

[00:03:33] Speaker 01:
Both parties coveted not to sue each other over this cleanup, and that includes matters related to those past costs.

[00:03:40] Speaker 01:
So they were encompassed within the settlement, and it moved the whole case into contribution.

[00:03:45] Speaker 01:
Had Atlantic Ridgefield not settled the past costs and just settled its reimbursement to EPA, it would still have a cost recovery claim for those costs.

[00:03:53] Speaker 03:
Let me just ask one follow-up question.

[00:03:56] Speaker 03:
You mentioned F3B.

[00:03:58] Speaker 03:
Is a contribution action under F3B or F3B and F1, are those independent sources of a contribution action or must an action under F3B in order to constitute a contribution action also have to satisfy F1?

[00:04:18] Speaker 01:
They're independent.

[00:04:20] Speaker 01:
I think the Supreme Court has made clear in both Cooper Industries and Atlantic Research that there's two avenues to contribution.

[00:04:26] Speaker 01:
You can settle or you can be sued.

[00:04:29] Speaker 01:
Either one gets you to contribution.

[00:04:31] Speaker 01:
And once you're in contribution, you can't also seek cost recovery.

[00:04:35] Speaker 01:
And one of the reasons, particularly when you've settled your liability and you're within the F3B type

[00:04:41] Speaker 01:
contribution claim is that Atlantic Richfield now enjoys protection from the contribution claims of other potentially responsible parties, PRPs.

[00:04:52] Speaker 01:
They can't sue Atlantic Richfield in contribution anymore for the matters addressed in the settlement.

[00:04:57] Speaker 01:
So if Atlantic Richfield could still pursue a cost recovery claim, it could settle its liability with the government, pursue any of its costs that's incurred

[00:05:07] Speaker 01:
in cost recovery, and the party it sues, NL in this case, wouldn't be able to bring that contribution claim.

[00:05:13] Speaker 01:
So that's the trade-off, is that by settling this liability, we lost that cost recovery claim.

[00:05:19] Speaker 01:
And that is a more expansive claim.

[00:05:20] Speaker 01:
It allows you to recover any costs incurred.

[00:05:24] Speaker 01:
Whereas now we're in contribution, we can only seek NL's equitable share of those costs, not any of the costs incurred in joint and separate liability.

[00:05:36] Speaker 01:
Turning to Sunco,

[00:05:37] Speaker 01:
and why it doesn't require this court to rule in LL's favor.

[00:05:42] Speaker 01:
There's two reasons.

[00:05:43] Speaker 01:
It's both factually distinguishable and no longer good law.

[00:05:47] Speaker 01:
And they're sort of overlapping.

[00:05:48] Speaker 01:
Because if Suncoe were decided today, this court would look at Suncoe as a PRP, potentially responsible party,

[00:05:56] Speaker 01:
who does not have a contribution claim because Sunco had neither been sued nor settled.

[00:06:02] Speaker 01:
So it didn't fall within either section 113 F1 or F3B's contribution claims.

[00:06:09] Speaker 01:
So it makes sense that this court couldn't find a corresponding statute of limitations trigger for a party that had neither been sued nor settled.

[00:06:17] Speaker 01:
Here, however,

[00:06:19] Speaker 01:
Atlantic Richfield has settled its liability within the meaning of Section 113, F3B.

[00:06:25] Speaker 01:
I don't think that's disputed.

[00:06:26] Speaker 01:
And therefore, we have this contribution claim.

[00:06:29] Speaker 01:
And the question is, did Congress create this right to contribution and not give a corresponding statute of limitations just because the type of settlement we entered under Section 122A isn't specifically listed?

[00:06:44] Speaker 03:
You do concede, don't you, that you don't have a contribution action under F1?

[00:06:49] Speaker 01:
That's correct.

[00:06:51] Speaker 01:
It's under F3B for the administrative settlement we entered with the United States.

[00:06:58] Speaker 01:
So either this Court has to conclude that there's no statute of limitations,

[00:07:04] Speaker 01:
or it has to borrow one.

[00:07:06] Speaker 01:
And there's different places to look to borrow.

[00:07:08] Speaker 01:
You could look to state law, but that could create a patchwork of opinions across the states.

[00:07:14] Speaker 01:
And instead, the court is directed to look at the most suitable statute of limitations.

[00:07:18] Speaker 01:
It is the most suitable one, the one for contribution or for cost recovery.

[00:07:23] Speaker 01:
And if you look at G3, the one for contribution,

[00:07:27] Speaker 01:
It talks about the triggering events or a judgment or three types of settlement.

[00:07:31] Speaker 01:
They're just like the 122A settlement because they define when a party's claim for contribution comes into existence, when they become responsible for more than their fair share of the costs, and that's when contribution kicks in.

[00:07:44] Speaker 01:
So the thrust of the triggers in 113G3 are just like the settlement agreement that Atlantic Richfield entered.

[00:07:51] Speaker 01:
And unlike anything happening in cost recovery, where you're looking to recover any of the costs that you incurred in that type of lawsuit, and so you're looking at the beginning of a remedial action or the end of a removal action for marking the time that that claim occurs.

[00:08:09] Speaker 03:
What if the settlement were, let's say, I have Bob Becker at Cleanup Action in 2024, and I incurred $20 million

[00:08:21] Speaker 03:
And then I've incurred that, and let's say that's a cost recovery action.

[00:08:30] Speaker 03:
And then let's say 20 years later, I enter into a settlement with EPA.

[00:08:38] Speaker 03:
and the EPA says, okay, well, you were released from liability.

[00:08:41] Speaker 03:
You have no, you know, third-party liability if sued by another PRP.

[00:08:48] Speaker 03:
You know, can I then, 20 years later, institute a contribution action, even though none of my costs were incurred in connection with that settlement?

[00:08:57] Speaker 03:
It was obviously after the fact.

[00:08:59] Speaker 03:
Would I still have a 3B contribution action, and if so, can I still

[00:09:04] Speaker 03:
As long as I, you know, satisfy the statute of limitations as ARCO arguably did here, could I then recoup my costs against another PRP?

[00:09:14] Speaker 01:
Yes, so long as you resolve your liability to the United States for those response costs.

[00:09:20] Speaker 03:
It really doesn't matter whether the settlement had anything to do with your actual incurring of the costs or when it did or how many decades later it is.

[00:09:30] Speaker 03:
It seems a little bit crazy, doesn't it?

[00:09:34] Speaker 01:
It's not crazy at all.

[00:09:36] Speaker 01:
It's not that the settlement forced you to start undergoing those costs because CERCLA exists to get to that prompt cleanup.

[00:09:43] Speaker 01:
So it's not about let's figure out who did what, let's get them on the hook, get them to settle, and then the cleanup can begin.

[00:09:50] Speaker 01:
It's not supposed to work that way.

[00:09:52] Speaker 01:
The government can go out and order a party, any PRP, to start cleaning up under an order.

[00:09:58] Speaker 01:
And that's what's happened here.

[00:10:00] Speaker 01:
And then start to negotiate what is this cleanup going to look like and what are we going to

[00:10:04] Speaker 03:
But they had already done it.

[00:10:06] Speaker 01:
They had already done some of it, but Atlanta-Witchville committed to finishing that cleanup.

[00:10:10] Speaker 03:
But the rule would be the same even if they had already finished it.

[00:10:17] Speaker 03:
If they say, okay, you pay $400,000, okay, you've already finished the cleanup, now you can go after NL.

[00:10:24] Speaker 01:
As a practical matter, EPA wouldn't settle a removal action that had already finished because they wouldn't have nothing to settle.

[00:10:31] Speaker 01:
The action would be finished.

[00:10:33] Speaker 03:
So as a practical matter... They wanted their $400,000, let's say.

[00:10:37] Speaker 01:
for their own costs to be reimbursed because that's a different type of settlement or for costs that the party had.

[00:10:43] Speaker 03:
Okay.

[00:10:43] Speaker 03:
But if EPA, let's say they had a bad man running EPA, if they did enter a settlement, the rule would be the same, right?

[00:10:52] Speaker 03:
That in this situation, the equivalent of ARCO could seek contribution against another PRP even if ARCO had already completed the cleanup.

[00:11:07] Speaker 01:
So long as those cleanup costs were part of the matters addressed in the settlement.

[00:11:14] Speaker 01:
And I imagine there'd have to be some consideration or some reason that EPA would settle a removal action after it's done.

[00:11:20] Speaker 01:
But as long as it's within the settlement, and it's a resolution of liability to the United States in an administrative or judicially approved settlement, it triggers contribution under CERCLA statute.

[00:11:33] Speaker 01:
And it's intended to be that way because, again, CERCLA is not concerned about figuring out everybody who's responsible.

[00:11:41] Speaker 01:
They're concerned with getting the cleanup done, getting it paid for by private parties, and then giving a private party who has incurred more than its fair share, which is what happened when Atlantic Richfield entered into this settlement, to allow them to seek contribution and cost sharing from other potentially responsible parties.

[00:12:02] Speaker 01:
And unless the court has further questions, I'll save the remainder of my time for rebuttal.

[00:12:07] Speaker 01:
No.

[00:12:07] Speaker 01:
Thank you.

[00:12:25] Speaker 02:
Thank you.

[00:12:25] Speaker 02:
Mr. Chief Justice, may it please the court, Joel Herz, on behalf of NL Industries, Inc.

[00:12:33] Speaker 02:
There's a primary question that this court is going to have to answer in this appeal.

[00:12:38] Speaker 02:
And that question is this, is did the United States Supreme Court, in either Cooper versus Avial, United States versus Atlantic Richfield, or Guam versus the United States, indisputably and pollucedly abrogate Sun Company versus Browning Ferris, Inc.?

[00:12:59] Speaker 02:
The answer to that question is no.

[00:13:03] Speaker 02:
The answer to that question is no for the following reason, which is what this court did in Sun Country is said if there has not been a 113G3 triggering event, 113G3, they're calling it the contribution statute of limitations, it has four specific triggering events, none of which have admittedly been met.

[00:13:28] Speaker 02:
One is a judgment.

[00:13:30] Speaker 02:
That hasn't happened.

[00:13:31] Speaker 05:
What is what?

[00:13:32] Speaker 05:
I didn't hear what you said.

[00:13:33] Speaker 02:
One is a judgment, and that hasn't happened.

[00:13:37] Speaker 02:
Two is a court approved consent decree, which there was live litigation between NL and ARCO and the United States at the time the settlement was entered into.

[00:13:49] Speaker 02:
They did not go to the district judge to have a consent decree approved.

[00:13:55] Speaker 02:
That consent decree would have required publication in the federal record.

[00:14:00] Speaker 02:
It would have required comment.

[00:14:02] Speaker 02:
And it would have required EPA to consider those comments.

[00:14:05] Speaker 02:
And ultimately, for that settlement to be approved, there would have needed to be a fairness hearing where NL would have had to have participated, had the right to participate and object, and state its position.

[00:14:16] Speaker 02:
What you said earlier, Judge,

[00:14:19] Speaker 02:
Backrock was, it sounds crazy.

[00:14:22] Speaker 02:
Well, it is crazy.

[00:14:23] Speaker 02:
What's crazy here is, and I think the facts matter here, and I want to take the court through some of them, it is undisputed that there's no allegation that NL's alleged successor had anything to do with the site since 1944.

[00:14:40] Speaker 03:
I'm sorry to interrupt you.

[00:14:42] Speaker 03:
Please don't forget your train of thought.

[00:14:44] Speaker 02:
Sure.

[00:14:44] Speaker 03:
I wanted to ask you about what you had just said about Sunco.

[00:14:49] Speaker 03:
and how it wasn't indisputably abrogated by Cooper Industries or Atlantic Richfield.

[00:14:55] Speaker 03:
Didn't, in Sunco, didn't the court predicate the applicability of G2 on the premise that a contribution action, broadly defined, is simply a subset of a cost recovery action, and therefore the court was going to apply the limitations period for a cost recovery action, G2,

[00:15:18] Speaker 03:
when a contribution action didn't otherwise fall into one of the predicates in G3.

[00:15:24] Speaker 03:
We know that's no longer even arguable.

[00:15:29] Speaker 03:
It's indisputable and polluted because of what Atlantic Ridgefield said, if Cooper Industries hadn't already done it, and that is that cost recovery and contribution action are completely independent.

[00:15:43] Speaker 03:
They're mutually exclusive, to use the words of Atlantic Ridgefield.

[00:15:47] Speaker 02:
So, and that's an excellent question, and thank you for asking that.

[00:15:51] Speaker 02:
When you read, let me take Sun Company first, and then I will turn to Atlantic Ridgefield.

[00:15:58] Speaker 02:
When you read Sun Company, there's two pieces of analysis.

[00:16:03] Speaker 02:
One is the statutory text, where it actually reads the statute 113G3.

[00:16:11] Speaker 02:
and the four triggering events that I had started to go through.

[00:16:15] Speaker 02:
It then reads the statutory language of 113G2 and what it says, and it talks about the recovery of the costs that were incurred pursuant to 107.

[00:16:26] Speaker 02:
There is no argument here by the other side that the $64 million that they spent under this unilateral order was incurred pursuant to 107A.

[00:16:37] Speaker 02:
That was their whole original complaint.

[00:16:39] Speaker 03:
Well, yeah.

[00:16:40] Speaker 03:
And so they acknowledge that they don't have a contribution action under F1.

[00:16:45] Speaker 03:
It's under F3B.

[00:16:47] Speaker 03:
And so why does it matter under F3B?

[00:16:50] Speaker 02:
So why does it matter what the court?

[00:16:53] Speaker 03:
In other words, a contribution action under F1 would only be if it was incurred during or after a civil action under 106 or 107.

[00:17:03] Speaker 03:
They acknowledge that they're not invoking that.

[00:17:07] Speaker 03:
But they do fall under F3B.

[00:17:09] Speaker 02:
They do follow, they don't fall under F3B, there's no question about that.

[00:17:14] Speaker 02:
What the court, what the 10th Circuit looked at in some country is

[00:17:18] Speaker 02:
Okay, if you do not have a triggering event under 113G3, what statute of limitations will apply?

[00:17:28] Speaker 02:
And what this court said is, if we don't have that triggering event, the statute of limitations, the most suitable one, is 113G2.

[00:17:38] Speaker 02:
There's a reason why Congress left out a 122A settlement, which is what they've had.

[00:17:44] Speaker 02:
It's not there.

[00:17:45] Speaker 02:
We don't think it's an accident because they're very specific on the other types of settlements, a 122D settlement, which is a de minimis settlement, a 122H settlement, which is bringing back the government its costs, the judgment that we talked about, the judgment we talked about earlier, and then the court-approved consent decree.

[00:18:03] Speaker 02:
They're very specific.

[00:18:05] Speaker 02:
And so what some country then goes and does, well, wait a second.

[00:18:10] Speaker 02:
These costs have been spent under 107A

[00:18:14] Speaker 02:
This is to and it's in our brief is to get back those costs.

[00:18:20] Speaker 02:
whether it's a contribution action or whether it's a cost recovery action doesn't answer the question of whether it's 113G2 or 113G3 and the most suitable one there the court determined was 113G2 and the same should be here.

[00:18:37] Speaker 02:
Now let me take you to the second part of analysis because I think this is the most important part and I don't want to insult you but I think I slightly disagree with your analysis of what was said

[00:18:48] Speaker 03:
I've been insulted by far worse things.

[00:18:51] Speaker 03:
You won't insult me.

[00:18:52] Speaker 03:
I'm wrong a lot.

[00:18:55] Speaker 02:
Thank you for that bit of humor.

[00:18:58] Speaker 02:
Let's talk more specifically about Atlantic Richfield.

[00:19:01] Speaker 02:
What did Atlantic Richfield address?

[00:19:03] Speaker 02:
And what did Atlantic Richfield do?

[00:19:06] Speaker 02:
The sole question in Atlantic Richfield was somebody who has not been sued by the government and hasn't been the focus of a 106 order

[00:19:19] Speaker 02:
Do they have a 107A claim?

[00:19:21] Speaker 02:
That was the sole decision of that case.

[00:19:24] Speaker 02:
It did not address the statute of limitations.

[00:19:27] Speaker 02:
It did not consider the statute of limitations.

[00:19:30] Speaker 02:
And more importantly, and this is the part where you and I slightly part ways,

[00:19:36] Speaker 02:
It reaches out, and albeit in a footnote, and I know that footnotes are not typically holdings, it reaches out and specifically says- Wait a minute, you said you know that footnotes are not holdings?

[00:19:49] Speaker 02:
Typically a footnote will not be a holding, yes.

[00:19:51] Speaker 05:
I don't think there's any black letter rule about that.

[00:19:55] Speaker 02:
And I'm not suggesting that there is.

[00:19:57] Speaker 02:
But it isn't a footnote, and what they say in Atlantic Richfield is we are not suggesting that there is no overlap

[00:20:06] Speaker 02:
between a 113 claim and a 107 claim.

[00:20:10] Speaker 02:
And so the question that comes is, where is that overlap?

[00:20:15] Speaker 02:
What is that overlap?

[00:20:17] Speaker 02:
What was the Supreme Court speaking about in Atlantic Ridgefield?

[00:20:21] Speaker 02:
And the answer is, it's right here in this case, which is they spent the $64 million under 107A.

[00:20:32] Speaker 02:
That's undisputed.

[00:20:33] Speaker 02:
It's in their complaints.

[00:20:35] Speaker 02:
It was the whole basis of their original lawsuit for the first two years until we moved to the motion for summary judgment, which was fully briefed and ready to go.

[00:20:44] Speaker 02:
And then they do this magical switch, paying EPA $400,000, reminding when

[00:20:51] Speaker 02:
The government was a defendant in the case at the time.

[00:20:53] Speaker 02:
The government got protection so that our suit against them for contribution had to be dismissed.

[00:20:59] Speaker 02:
And this is that overlap.

[00:21:01] Speaker 02:
And so the concept that Atlantic Richfield has abrogated, certainly not indisputably and collusively, Sun Company because it determined that contribution and cost recovery are distinct remedies,

[00:21:17] Speaker 02:
doesn't mean that it said that the statute of limitations should be 113 G3 instead of 113.

[00:21:23] Speaker 03:
But the same money can't be, do you agree with this?

[00:21:28] Speaker 03:
The same dollar can't be characterized as both cost recovery and contribution.

[00:21:34] Speaker 03:
There might be overlap.

[00:21:36] Speaker 03:
But a dollar spent for a cleanup is either cost recovery or its contribution.

[00:21:42] Speaker 03:
Is that wrong?

[00:21:44] Speaker 02:
I think that's not correct because up until March, they filed this lawsuit in January of 2020.

[00:21:52] Speaker 02:
We filed a motion for summary judgment.

[00:21:57] Speaker 02:
They filed their amended complaint in, and I might be getting this date wrong, in May of 2022, two years later.

[00:22:06] Speaker 02:
Up until the date they filed that amended complaint, they were calling that $64,000 cost recovery.

[00:22:14] Speaker 02:
Suddenly when they made the settlement, that same exact money that had already been spent, they now just started to call it something different.

[00:22:21] Speaker 02:
And so if we take ARCO's own words,

[00:22:24] Speaker 02:
Yes, they can both be classified in the same way.

[00:22:28] Speaker 03:
Well, I was just kind of curious if the $64 million was cost recovery under your theory and the additional money that they hadn't yet spent in the cleanup when they filed the amended complaint might arguably be considered a contribution action under F3B and Trigger G3 for the let's say it's additional million dollars to be spent in the future under the settlement.

[00:22:54] Speaker 03:
So I was wondering if the same cleanup can have X part be considered a cost of recovery under 107 and part, the remainder, be a contribution action under F3B.

[00:23:08] Speaker 02:
And again, I think that's an excellent question.

[00:23:10] Speaker 02:
And I think the answer to that should be no.

[00:23:12] Speaker 02:
And I will tell you why.

[00:23:13] Speaker 02:
And I will be forthright.

[00:23:16] Speaker 02:
There is no 10th Circuit case that says that.

[00:23:19] Speaker 02:
But there is.

[00:23:21] Speaker 02:
a Ninth Circuit case, and it's cited in our briefing.

[00:23:24] Speaker 02:
It's Asarco v. Selenis, 2015, where exactly what Arco tried to do here is exactly what Asarco tried to do there, which is Asarco's statute of limitations had expired.

[00:23:41] Speaker 02:
And there was a lot of money involved, like there's a lot of money here.

[00:23:44] Speaker 02:
ARCO went ahead and then did a settlement with the government and said, our claim is now revived.

[00:23:52] Speaker 02:
The Ninth Circuit said, no, you can't do that.

[00:23:56] Speaker 02:
Once your claim is expired, you can't revive it by a settlement.

[00:24:01] Speaker 05:
And I think that answers your question as to... Was it extinguished before the settlement here?

[00:24:09] Speaker 02:
Absolutely.

[00:24:10] Speaker 02:
That's, I believe, undisputed, which is there's no question here that if

[00:24:20] Speaker 02:
Two applies, and the facts which I was starting to go through earlier are important, which is the unilateral administrative order is issued on March of 2011, either under three years or six years, whether it's removal action or whether it's remedial action.

[00:24:41] Speaker 02:
The six years pass from the date of that order.

[00:24:45] Speaker 02:
There's a couple other important pieces here, and that is coming back to the facts.

[00:24:50] Speaker 02:
And I don't think the court should get lost out on this, which is in 1996, after they had written us a letter telling us they were going to sue us, they had litigation involving this site with a company called Crystal Oil.

[00:25:06] Speaker 02:
That was in the District of Louisiana.

[00:25:09] Speaker 02:
They told that district court in May 31, 1996, that they had pending claims against NL for this very site.

[00:25:22] Speaker 02:
They said they were going to make those claims and wanted to move the case to the District of Colorado.

[00:25:26] Speaker 02:
Ultimately, the case was moved to the District of Colorado.

[00:25:30] Speaker 02:
1996 went by, 97, 98.

[00:25:34] Speaker 02:
EPA came in in 2000 after ARCO abandoned the site, did an emergency removal action to clean this up.

[00:25:44] Speaker 02:
They didn't sue us then.

[00:25:46] Speaker 02:
They then waited not merely until the 2011 period, but until 2020.

[00:25:54] Speaker 02:
It's more than 25 years after they told us they were going to sue us.

[00:25:59] Speaker 02:
It's 25 years after they told us that the district court said they had pending claims.

[00:26:06] Speaker 02:
When you look, and this is an exhibit A to our response brief, when you look at the congressional stated purpose of the statute of limitations, and the statute of limitations was added in 1986 after CERCLA was originally enacted in 1980, the Congress said the purpose of the statute of limitations is to bring the parties to the tables quickly.

[00:26:32] Speaker 02:
And I want to get you the exact language.

[00:26:35] Speaker 02:
This amendment

[00:26:36] Speaker 02:
provides for the timely filing of cost recovery actions to assure that evidence concerning liability and response cost is fresh and to provide a measure of finality to the responsible parties.

[00:26:50] Speaker 02:
That was the stated congressional purpose.

[00:26:53] Speaker 02:
In the intervening

[00:26:56] Speaker 02:
80 years since my client was involved, the 40 years since ARCO started the cleanup, the nine years since the AOC.

[00:27:04] Speaker 02:
People have died.

[00:27:05] Speaker 02:
Documents have been lost.

[00:27:07] Speaker 02:
The exact purpose of the statute of limitations is why I believe the district court approved our motion for summary judgment.

[00:27:16] Speaker 02:
And it's for those same reasons the court should be affirmed.

[00:27:19] Speaker 02:
And unless there are questions, I thank all judges for their time.

[00:27:24] Speaker 02:
and listening to me.

[00:27:25] Speaker 02:
Thank you.

[00:27:25] Speaker 04:
Thank you for the argument, Council.

[00:27:36] Speaker 01:
Thank you.

[00:27:36] Speaker 01:
Thank you.

[00:27:37] Speaker 01:
I'm going to start where Enel left off about these past events and what people knew.

[00:27:43] Speaker 01:
Congress didn't make what PRPs knew or past events relevant to the statute of limitations.

[00:27:49] Speaker 01:
When it comes to cost recovery, you're looking at when did the removal action end?

[00:27:53] Speaker 01:
And this was a removal action which hasn't ended, so that statute of limitations is still going.

[00:27:58] Speaker 01:
When did the remedial action start?

[00:28:01] Speaker 01:
Because remedial actions require a lot of planning, so there's more knowledge.

[00:28:04] Speaker 05:
So you're saying the removal action is still continuing?

[00:28:06] Speaker 01:
It is.

[00:28:08] Speaker 01:
And much more than a million dollars has occurred since the 64 million.

[00:28:12] Speaker 05:
Rather than calling it, rather than calling it under a remediation action.

[00:28:18] Speaker 00:
EPA has called it a removal action.

[00:28:21] Speaker 00:
It's been run out of the office for removal actions.

[00:28:24] Speaker 00:
It was set up as a removal action, and it continues to be a removal action.

[00:28:27] Speaker 05:
I'm just confused factually about a very fundamental question.

[00:28:30] Speaker 05:
Remediation can include the act of further removal, I assume.

[00:28:36] Speaker 05:
When does the title change from removal to remediation?

[00:28:42] Speaker 01:
It depends on a number of factors, is my understanding.

[00:28:45] Speaker 01:
But there's administrative lead-up to that.

[00:28:48] Speaker 01:
There's feasibility studies.

[00:28:50] Speaker 01:
There's a record on decision.

[00:28:51] Speaker 01:
None of those things have occurred here.

[00:28:53] Speaker 01:
The cleanup continues as a removal.

[00:28:55] Speaker 05:
Are there any of those seen aquinones of a remediation?

[00:29:01] Speaker 05:
Is there any magic test for when everything involves getting the bad stuff out completely, and you either

[00:29:13] Speaker 05:
So is there, do the parties have to, when is that magic moment that it moves from removal to remediation?

[00:29:24] Speaker 05:
Is it simply when you have a remediation agreement?

[00:29:26] Speaker 05:
Is it a legal question or is it a factual question?

[00:29:31] Speaker 01:
I think it's a mixed question, and that was not a question that the district court decided here.

[00:29:36] Speaker 01:
And the important thing for this case is that we do have a contribution claim, and the matters addressing the settlement include these past work costs.

[00:29:44] Speaker 01:
And Judge Backerock asked about fairness.

[00:29:48] Speaker 01:
One of the things that Atlantic Richfield gave up by entering the settlement is its cost recovery claim for the $63 million, $64 million and counting against ML.

[00:29:58] Speaker 01:
It can't pursue any amounts incurred.

[00:30:01] Speaker 01:
It can only pursue NL's equitable share.

[00:30:03] Speaker 01:
That's what contribution does, and that's a significant concession.

[00:30:10] Speaker 01:
And so that allows the cleanup to continue and for EPA to have certainty about what's going to happen here.

[00:30:16] Speaker 01:
And I just want to address the Asarco case very quickly.

[00:30:20] Speaker 01:
It's Asarco versus Selenese.

[00:30:21] Speaker 01:
That was a bankruptcy case.

[00:30:22] Speaker 01:
So actually, the contribution statute had accrued with certainty.

[00:30:26] Speaker 01:
And that statute of limitations had been missed.

[00:30:28] Speaker 01:
And I see that my time is up.

[00:30:29] Speaker 01:
We'd ask that the court reverse.

[00:30:32] Speaker 05:
But that case did not.

[00:30:33] Speaker 05:
There is no Supreme Court case that has addressed the statute, specifically the statute of limitations issue.

[00:30:38] Speaker 05:
Is that right?

[00:30:39] Speaker 01:
For a claim that's not specifically listed in G3, that it is an administrative settlement that creates contribution, no, there's no Supreme Court case that has addressed that.

[00:30:48] Speaker 01:
But the Sixth Circuit and Third Circuit have addressed it and found that contribution should apply.

[00:30:53] Speaker 01:
Unless the court has further questions.

[00:30:56] Speaker 01:
No, counsel.

[00:30:57] Speaker 01:
Thank you for your argument.