Halliburton Energy Services, Inc. v. NL Industries (648 F. Supp. 2d 840, 2009)

United States District Court for the Southern District of Texas 2009-08-18

The Public Health and Welfare

Citations

Full opinion text

MEMORANDUM AND OPINION

LEE H. ROSENTHAL, District Judge.

This opinion addresses motions for partial summary judgment filed by Georgia-Pacific Corporation (“Georgia-Pacific”) and Milwhite Inc. (“Milwhite”). Georgia-Pacific and Milwhite assert that, as a matter of law, they are not liable to Halliburton Energy Services, Inc. (“HESI”) and DII Industries, LLC (“DU”) (together, “Halliburton”), or to each other, under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or under the Arkansas Remedial Action Trust Fund Act (RATFA). The parties filed lengthy briefs and a large record, and this court heard oral argument on the motions.

Based on the pleadings, the motions and briefs, the record, the arguments, and the applicable law, this court rules as follows:

• Georgia-Pacific’s motion for partial summary judgment, (Docket Entry No. 189), is denied.

• Milwhite’s motion for partial summary judgment, (Docket Entry No. 228), is denied.

• Halliburton’s related motion for leave to file supplemental evidence in opposition to Georgia-Pacific’s motion for summary judgment, (Docket Entry No. 332), is also denied.

■ Milwhite’s motion to supplement its summary judgment motion, (Docket Entry No. 363), is granted.

The reasons for these rulings are explained below. A scheduling conference is set for September 18, 2009, at 10:00 a.m., to set deadlines for the work needed to resolve this ease.

I. Factual and Procedural Background

This court’s July 2006 Memorandum and Opinion set out the relevant background in detail. Only a summary is provided here. Briefly, Halliburton filed this suit in 2005 against the Tremont Parties — NL Industries, Inc. (“NL”), Tremont, LLC (“Tremont”), TRE Holding Corporation (“TRE Holding”), and TRE Management Company (“TRE Management”) — and against MI, L.L.C. (“M-I”), Milwhite, and Georgia-Pacific. Halliburton filed this suit after entering into an Administrative Settlement Agreement in 2000 (“Administrative Settlement”) and a Consent Administrative Order in 2003 (“Consent Order”) with the Arkansas Department of Environmental Quality (“ADEQ”). Halliburton seeks to recover the money it spent investigating and remediating environmental contamination near the towns of Magnet Cove and Malvern, Arkansas (the “Site”). The Site consists of approximately 600 acres located north of Magnet Cove, Arkansas, situated in Sections 10,11,14, and 15 of Township 3 South, Range 17 West in Hot Spring County.

The Site was used for barite ore mining and milling by the Baroid Sales Division of NL and by Magnet Cove Barium Corporation (“Magcobar”). (See Docket Entry No. 189, Ex. 2 at 1; id, Ex. 3 at ES-1). According to the Consent Order, “[n]o mining activity has been conducted at the Site since 1977.” (Id., Ex. 2 at 1). A Site Investigation Report prepared for Halliburton and TRE Management states that “[a]ll mining or milling activity at the Site had ceased by 1982.” (Docket Entry No. 189, Ex. 3 at ES-1). The mining produced a large open pit, (id, Ex. 2 at 1), as well as “a number of piles of mining spoils of unknown acreage ...,” (id, Ex. 1 at 1). According to the Consent Order, “[s]ubsequent to the cessation of mining activities at the Site, the mine pit began to fill with water.” (Id., Ex. 2 at 1). The pit “now forms a lake (‘Pit Lake’) that is approximately 90 acres in surface area and more than 400 feet deep at the deepest point.” (Id., Ex. 2 at 1). Some of the water in the Pit Lake “may pass over or through certain of the mining spoil piles.” (Id., Ex. 1 at 2). “The water in the Pit Lake has a low pH and contains dissolved metals and minerals.” (Docket Entry No. 189, Ex. 2 at 1). The Consent Order states that without remedial action, “the Pit Lake will overflow in the near future and release untreated water into Chamberlain Creek and subsequently into other downstream waters to which Chamberlain Creek is a tributary.” (Id., Ex. 2 at 1).

In 1988, NL entered into a restructuring plan (the “1988 Plan”). The 1988 Plan stated that NL was a holding company that conducted it operations through its wholly owned subsidiaries NL Chemicals, Inc. (“NLC”) and Baroid Energy Services, Inc. (“Baroid Energy Services”). NLC owned and operated NL’s titanium and dioxide pigments and specialty chemicals businesses, principally through subsidiaries. Baroid Energy Services owned and operated NL’s petroleum services business, principally through subsidiaries. Through the 1988 Plan and related agreements, NL spun off Baroid Energy Services into a separate publicly traded company, first called NL Petroleum Services, Inc. (“NLPS”) and later called Baroid Corporation (“Old Baroid”). Through a related Amended and Restated Formation Agreement, NL agreed to transfer to Old Baroid all assets related to the petroleum services business or to Titanium Metals Corporation of America (“TMCA”), including the outstanding shares of TMCA capital stock and the subsidiaries engaged in NL’s petroleum services business.

Another restructuring followed in 1990. Under the 1990 Plan, Old Baroid split its titanium and bentonite business from its “Petroleum Services Business.” The 1990 Plan stated that “[NL] has heretofore indirectly owned and operated its petroleum services operations (the ‘Petroleum Services Business’) principally through its subsidiaries ....” Under the 1990 Plan, Old Baroid agreed to assign to a new entity called New Baroid Corporation (“New Baroid”) its properties and assets attributable to its Petroleum Services Business, defined as the “Petroleum Services Assets,” and its properties and assets attributable to its bentonite mining operations (the “Bentonite Business”), defined as the “Bentonite Assets.” New Baroid agreed to assume the liabilities and obligations of Old Baroid arising out of or attributable to the past, present, or future ownership or operations of the Petroleum Services Business, defined as “Petroleum Services Obligations.” Through a series of transactions, the Bentonite Business was transferred back to Old Baroid. Ultimately, Old Baroid retained both its titanium metals operations, defined as the “Titanium Business,” and its Bentonite Business. New Baroid retained the Petroleum Services Business. New Baroid is a predecessor of Halliburton. Old Baroid is a predecessor of the Tremont Parties.

Under the 2000 Administrative Settlement with the ADEQ, HESI, TRE Management, and M-I agreed to investigate the Site condition, submit a report to the ADEQ, and do a feasibility study on ways to remediate the environmental contamination. (See Docket Entry No. 189, Ex. 1). In the meantime, HESI, TRE Management, and M-I had to perform “Interim Remedial Measures” under the Administrative Settlement. (Id., Ex. 1 at 2-4). Under the May 2003 Consent Order, TRE Management and HESI constructed and paid for a water-treatment system for the Pit Lake. (See id., Ex. 2 at 1-2).

In April 2005, TRE Management and HESI entered into a Cost Sharing, Cooperation, and Final Allocation Process Agreement (the “2005 Cost Sharing Agreement”). (Id., Ex. 6). This Agreement included a procedure to allow the parties to cooperate in continuing to fund the response and remediation costs for the Site, “allocating on an interim basis.” (Id., Ex. 6 at 1-2, 13-14). The 2005 Cost Sharing Agreement also set out a procedure for the parties to reach a “Final Allocation” of “their and others’ respective shares of such past, present, and future costs, expenses, liabilities, settlements, recoveries, or unpaid shares relating to the Site .... ” (Id., Ex. 6 at 2, 6-9). The 2005 Cost Sharing Agreement defined “Final Allocation” as a “full, final, and binding apportionment among the Parties to the Agreement,” by agreement or by arbitration, of defined categories of costs, including future costs. (Docket Entry No. 189, Ex. 6 at 6). Under the 2005 Cost Sharing Agreement, if mediation did not result in “Final Allocation,” the parties would participate in binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association and the Federal Arbitration Act. (Id., Ex. 6 at 7).

The 2005 Cost Sharing Agreement recognized that there could be both arbitration among the signatories to the 2005 Cost Sharing Agreement and litigation with nonsignatories to resolve contribution disputes. The 2005 Cost Sharing Agreement set out limits on the admissibility in arbitration of any “order, judgment, decree, or decision of any court in any contribution litigation under CERCLA or RAT-FA involving one or more Parties to this Agreement that allocates to the Parties responsibility, fair share, or liability relating to the Site .... ” (Id., Ex. 6 at 10). Under the Agreement, the result of such contribution litigation

shall be ineffective, invalid, and of no force and effect as between the Parties and shall not be used or admissible as evidence in the Final Allocation Process by any Party or against any Party for any purpose other than establishing the amount of liability that has been finally allocated to non-Parties. All allocation of responsibility, fair share, or liability relating to the Site as between the Parties, and all issues or disputes between the Parties relating to whether a cost or expense is a Shared Cost, the reasonableness of any cost or expense to be allocated in the Final Allocation, and the allocability or collectibility of any cost or expenses under CERCLA or RATFA, shall be determined in the Final Allocation Process pursuant to this Agreement without reference to, or consideration of, any arguments made or conclusions reached in any such contribution litigation.

(Id., Ex. 6 at 10-11). Georgia-Pacific and Milwhite were not signatories to the 2005 Cost Sharing Agreement.

In late 2005, Halliburton filed this suit against the Tremont Parties as prior owners and operators of the Site when hazardous substances were released or as successors-in-interest to such owners or operators. Halliburton also sued Georgia-Pacific as a prior owner of property at the Site, and Milwhite as a prior owner and operator. Halliburton asserted cost-recovery and contribution claims under CERCLA, 42 U.S.C. §§ 9607(a) and 9613(f)(3)(B), contribution claims under RATFA, ArkCode Ann. § 8-7-520, and a right to recover response and remediation costs under a state common-law unjust enrichment cause of action. Halliburton also sought a declaratory judgment that the defendants were liable for future response and remediation costs at the Site and that Tremont was obligated to indemnify Halliburton for these costs under the contracts used to restructure the corporate predecessors-in-interest. Georgia-Pacific and Milwhite counterclaimed against Halliburton and crossclaimed against each other and against their codefendants, the Tremont Parties, seeking contribution and indemnity.

On December 27, 2005, a few weeks after this lawsuit was filed, TRE Management — which was also a party to the 2000 Administrative Settlement Agreement and the 2003 Consent Order — sued Georgia-Pacific in the federal district court for the Western District of Arkansas, where the Site is located. In that suit, TRE Management sought contribution under CERCLA and RATFA for Georgia-Pacific’s “proportionate share of all costs and expenses TRE Management has incurred and will continue to incur in performing removal actions and remedial actions at the Site.” (Docket Entry No. 38, Ex. E at 7-8).

In March 2006, after this lawsuit and the Arkansas lawsuit had been filed, Halliburton and the Tremont Parties entered into an agreement expanding the entities consenting to arbitrate the allocation of response and remediation costs at the Site. In this 2006 Arbitration Agreement, the parties agreed to “resolve through binding arbitration all claims between them related to the allocation of response and remediation costs incurred or to be incurred at the Site including the claims that have been asserted in the Texas Case or such claims that may be asserted in the Arkansas Case.” (Docket Entry No. 189, Ex. 7 at 2). The arbitration was to be conducted in accordance with certain paragraphs of the 2005 Cost Sharing Agreement, including the provisions on related contribution litigation with nonsignatories. (See id., Ex. 7 at 2). Georgia-Pacific and Milwhite were not parties to this Arbitration Agreement and did not participate in the arbitration.

The arbitration between Halliburton and the Tremont Parties was conducted in two phases and resulted in two awards. The panel allocated response costs between the parties to the arbitration, declining to “assess any liability to entities which are not signatories to the Cost Sharing Agreement,” (id., Ex. 9 at 34), including Georgia-Pacific and Milwhite. The arbitration panel allocated all response costs at the Site to Halliburton. This court confirmed the arbitration awards on March 31, 2008, and later entered final judgment under Federal Rule of Civil Procedure 54(b) on the claims resolved in the arbitration. Halliburton appealed the order confirming the awards and the final judgment on the confirmation order. The Fifth Circuit affirmed.

Georgia-Pacific seeks partial summary judgment that it is not liable to reimburse Halliburton for any of the response costs associated with the Site, past or future. Georgia-Pacific argues that it did not conduct mining or mine-waste disposal activities at the Site and was fully indemnified for such activities conducted by others on its property under leases that it signed. (See id. at 3). For similar reasons, Georgia-Pacific also moves for summary judgment dismissing Milwhite’s cross-claim. (Id.). Georgia-Pacific also seeks summary judgment dismissing Halliburton’s unjust enrichment claim under Arkansas law. (Id. at 3-4). Halliburton has opposed the motion. (Docket Entry No. 218).

Milwhite responded to Georgia-Pacific’s motion by stating that the primary purpose of the crossclaim “is that if Milwhite is found liable in any degree and the possible circumstance in which Georgia Pacific is responsible for any of [Halliburton’s] damages, then Milwhite would be entitled to contribution and/or indemnity.” (Docket Entry No. 213 at 2). Milwhite argues that neither it nor Georgia-Pacific is liable to Halliburton. “Should the Court decide that Georgia-Pacific does not have any liability in this matter, then Milwhite in turn, would not be entitled to any indemnity or contribution from Georgia-Pacific.” (Id.). Georgia-Pacific has stipulated that it seeks no relief against the Tremont Parties in its motion for partial summary judgment and that the Tremont Parties need not respond. (Docket Entry No. 215).

Like Georgia-Pacific, Milwhite seeks summary judgment that it is not liable to reimburse Halliburton for past or future response costs associated with the Site, arguing that there is no evidence that Mil-white conducted mining or mine-waste disposal activities at the Site. (Docket Entry No. 228 at 3^4). For similar reasons, Milwhite moves for summary judgment denying Georgia-Pacific’s cross-claim and denying Halliburton’s claim for unjust enrichment. (Id. at 4). Halliburton has opposed the motion. (Docket Entry No. 233). Milwhite is not seeking relief against the Tremont Parties in its motion. (Docket Entry No. 232).

II. The Legal Standards

A. Summary Judgment

Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). “The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact.” Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir.2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

If the burden of proof at trial lies with the nonmoving party, the movant may satisfy its initial burden by “ ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” See Celotex, 477 U.S. at 325, 106 S.Ct. 2548. While the party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant’s case. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005) (citation omitted). “ ‘A fact is ‘material’ if its resolution in favor of one party might affect the outcome of the lawsuit under governing law.’ ” Sossamon v. Lone Star State of Texas, 560 F.3d 316, 326 (5th Cir.2009) (quoting Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir.2000) (per curiam)), petition for cert. filed, 77 U.S.L.W. 3657 (U.S. May 22, 2009) (No. 08-1438). “ ‘If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant’s response.’ ” United States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 507 (5th Cir.2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc)).

When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings. The nonmovant must identify specific evidence in the record and articulate how that evidence supports that party’s claim. See Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir.2007) (citation omitted). “This burden will not be satisfied by ‘some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.’ ” Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d at 1075). In deciding a summary judgment motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party. Deville v. Marcantel, 567 F.3d 156, 163-64 (5th Cir.2009) (per curiam) (citing Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 325 (5th Cir.2004)).

B. CERCLA Liability

Congress enacted CERCLA in 1980 in response to environmental and health dangers posed by property contamination from hazardous substances. See United States v. Bestfoods, 524 U.S. 51, 55, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998) (citing Exxon Corp. v. Hunt, 475 U.S. 355, 106 S.Ct. 1103, 89 L.Ed.2d 364 (1986)). The statute was amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub.L. No. 99-499, 100 Stat. 1613. CERCLA’s “broad, remedial purpose is to facilitate the prompt cleanup of hazardous waste sites and to shift the cost of environmental response from the taxpayers to the parties who benefitted from the wastes that caused the harm.” OHM Remediation Servs. v. Evans Cooperage Co., 116 F.3d 1574, 1578 (5th Cir.1997) (citing Matter of Bell Petroleum Servs., Inc., 3 F.3d 889, 894 (5th Cir.1993)). Section 107(a)(4) states that “covered persons” are liable for costs incurred by the federal or state government or Indian tribes in responding to the contamination and for response costs incurred by “any other person.” 42 U.S.C. § 9607(a)(4)(A)-(B). Two contribution provisions, sections 113(f)(1) and 113(f)(3)(B), were added later, as part of SARA. Because CERCLA imposes strict liability, plaintiffs generally do not need to prove that the defendant caused the contamination, only that the defendant is a “covered person.” OHM Remediation Servs., 116 F.3d at 1578 (citing United States v. Alcan Aluminum Corp., 990 F.2d 711, 721 (2d Cir.1993)). If the harm is indivisible, liability is joint and several. Id. at 1579 (citing Bell Petroleum, 3 F.3d at 903).

Section 107(a) identifies four categories of “covered persons” who may be liable for cleanup costs associated with the release or threatened release of hazardous substances. See 42 U.S.C. § 9607(a). “Covered persons” are: (1) owners and operators of facilities at which hazardous substances are located; (2) past owners and operators of such facilities at the time that disposal of hazardous substances occurred; (3) persons who arranged for disposal or treatment of hazardous substances; and (4) certain transporters of hazardous substances. See 42 U.S.C. § 9607(a)(l)-(4). “Covered persons” are also referred to as “potentially responsible parties” or “PRPs.” See Alfred R. Light, Cercla Law and Procedure 94 (BNA Books 1991) (“Under CERCLA, a person becomes a potentially responsible party by becoming an owner or operator at the time of disposal or the time of a response action, by arranging for treatment or disposal of substances that are sent to a facility, or transporting substances to the site that it selected for disposal.”). Unless a statutory defense or exclusion applies, covered persons are liable for “all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan,” “any other necessary costs of response incurred by any other person consistent with the national contingency plan,” “damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release,” and “the costs of any health assessment or health effects study carried out under section 9604© ....” 42 U.S.C. § 9607(a).

Section 113, added in 1986 as part of SARA, contains the following subsection entitled “Contribution”:

Any person may seek contribution from any other person who is liable or potentially liable under [section 107(a) ], during or following any civil action under [sections 106 or 107(a) ] .... In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under [sections 106 or 107].

42 U.S.C. § 9613(f)(1). “ ‘[I]n enacting the contribution section, Congress also contemplated the 100% shifting of responsibility, by way of indemnification, should the facts so warrant.’ Section 113(f)(1) thus permits a court to deny contribution based on ‘equitable factors.’ ” Light, supra, at 147 (footnotes omitted).

III. Georgia-Pacific’s Motion for Partial Summary Judgment

Georgia-Pacific contends that it should not be held responsible for response costs at the Site because: it no longer owns property at the Site; it never owned property at the Site on which Magcobar or its successors conducted mining, ore-processing, or waste-disposal activities; and there is no evidence that it released any pollutant that necessitated the remediation and response efforts at the Site. (Docket Entry No. 208 at 2). Georgia-Pacific or its predecessor, Malvern Lumber Company (“Malvern Lumber”), leased property to NL or its predecessor. (Id.). According to Georgia-Pacific, all the leases contained indemnity clauses requiring NL to assume liability arising from activities that the leases permitted NL to conduct on the leased property. (Id.). Georgia-Pacific argues that “[t]aken together, (1) the indemnity provisions of the leases and (2) the absence of any physical connection between Georgia-Pacific and the contamination being remediated at the Site are dispositive equitable factors that should preclude statutory recovery against Georgia-Pacific.” (Id. at 3). Georgia-Pacific also argues that Halliburton’s unjust enrichment claim is precluded because the leases explicitly allocated responsibility for aetivities on property Georgia-Pacific owned at the Site and because Georgia-Pacific will not receive anything of value as a result of the environmental response. (Id.).

A. Factual Background Relevant to Georgia-Pacific’s Motion

The following lease agreements are central to Georgia-Pacific’s motion:

• The Mining Lease. Malvern Lumber, a predecessor of Georgia-Pacific, leased the southwest 1/4 of the northeast 1/4 of Section 15 to H.A. Neustaedter in December 1939, for purposes of mining and waste disposal. (See Docket Entry No. 189, Ex. 10). Neustaedter assigned the lessee’s rights and obligations under this lease to NL in 1940. (Id., Ex. 11 at 1). This lease was subsequently amended several times. (See id., Exs. 12, 13, 14, and 15). In 1969, Georgia-Pacific acquired all of the stock of Malvern Lumber, and all of Malvern Lumber’s real estate within the Site was conveyed to Georgia-Pacific. (See id., Exs. 16, 17). Georgia-Pacific and NL executed another amendment to this lease on March 10, 1972, which included an indemnity provision providing that “Lessee [NL] agrees that it will indemnify, defend, protect, hold and save harmless the Lessor [Georgia-Pacific] from and against any claims, loss, liability, attorney’s fees, costs or any other expense arising out of or resulting from any injury, loss or damage to persons or property in, on or about the demised premises.” (Id., Ex. 18 at 3). Georgia-Pacifie states that under this lease, “NL dug the southwest corner of the mining pit deep into this tract, piled mining spoils around the pit, and constructed tailings ponds to dispose of mining wastes.” (Docket Entry No. 208 at 6 (citing Docket Entry No. 189, Exs. 3, 5)).

• The 1946 Waste Disposal Lease. Malvern Lumber leased, among other tracts, the north 1/2 and the southeast 1/4 of the southwest 1/4 (except for three acres in the southeast corner previously acquired for a Powder House site) of Section 11 to NL for “the sole purpose of disposal of refuse and waste from [NL’s] mining operations ...” in July 1946. (Docket Entry No. 189, Ex. 19 at 1). The lease had a term of twenty-five years, with NL retaining the option to renew for five additional terms of five years each, and provided for the payment by NL of annual rental fees. (Id., Ex. 19 at 1, 2). The lease contained an indemnity provision stating that “Lessee covenants and agrees that it will indemnify and save harmless Lessor against any claims for damage either to person or property that may be asserted by third parties on account of Lessor’s occupancy or operations on said Lands.” (Id., Ex. 19 at 2). As with the Mining Lease, Malvern Lumber conveyed the 1946 Waste Disposal Lease to Georgia-Pacific in 1969. (Id., Ex. 17). NL extended this lease through at least June 1991. (Id., Ex. 20). Based on an exhibit attached to the expert report of Dr. Daniel B. Stephens, one of Halliburton’s experts in the arbitration, some piles of mining spoils deposited by NL on the adjacent tract within Section 11 — the southwest 1/4 of the southwest 1/4 of Section 11 — ■ may have extended into the tract described in the 1946 Waste Disposal Lease. (See id., Ex. 5 at 1).

• The 1947 Waste Disposal Lease. In January 1947, Malvern Lumber leased the northwest ten acres of the southeast 1/4 of the northeast 1/4 of Section 15 to NL for “the sole purpose of disposal of refuse and waste from [NL’s] mining operations .... ” (Docket Entry No. 189, Ex. 21 at 1). This lease contained similar terms to those in the 1946 Waste Disposal Lease, and included a similar indemnity provision, stating: “Lessee covenants and agrees that it will indemnify and save harmless Lessor against any claims for damage either to person or property that may be asserted by third parties on account of Lessee’s occupancy or operations on said lands.” (Id., Ex. 21 at 1). As with the 1946 Waste Disposal Lease, the lease had a term of twenty-five years,

renewable for five five-year periods. (Id., Ex. 21 at 1, 2). The lease was conveyed to Georgia-Pacific in 1969. (Id., Ex. 17). Georgia-Pacific contends that the lease was extended until at least July 1990. (Docket Entry No. 208 at 7 (citing Docket Entry No. 189, Ex. 22)). Based on the map attached to Stephens’s expert report, it appears that NL deposited piles of mining spoils on this leased tract. (Docket Entry No. 189, Ex. 5 at 1).

• The Tailings Pond Lease. In November 1954, Malvern Lumber leased the northeast 1/4 of the southeast 1/4 of Section 15 to NL “for the sole purpose of disposal of mill tailings and waste from [NL’s] mining and milling operations. ...” (Docket Entry No. 189, Ex. 23 at 1). As with the Waste Disposal Leases, the Tailings Pond Lease contained an indemnity clause stating: “Lessee covenants and agrees that it will indemnify and hold harmless Lessor against any claims for damage either to person or property that may be asserted by third parties on account of Lessee’s occupancy or operations on said lands.” (Id., Ex. 23 at 3). This lease also had an initial term of twenty-five years, with the option to renew for five additional five-year periods. (Id., Ex. 23 at 1-2). The lease was conveyed from Malvern Lumber to Georgia-Pacific in 1969. (Id., Ex. 17). According to the map attached to Stephens’s expert report, it appears that NL constructed a tailings pond and may have deposited mining spoils on this leased tract. (Id., Ex. 5 at 1).

• The Settling Pond Lease. In October 1971, Georgia-Pacific leased ten acres of the north side of the northwest 1/4 of the southwest 1/4 of Section 15 to NL “for the purpose of backing up waters and settling mine waters and waste from Lessee’s mining operations ....” (Docket Entry No. 189, Ex. 24 at 1). The lease had an initial term of ten years, with NL retaining the option to extend the lease for two additional terms of five years each. (Id., Ex. 24 at 1). NL extended the lease until September 30, 1986. (Id., Ex. 26). This lease also contained an indemnity clause stating: “Lessee agrees that it will indemnify, defend, protect, hold and save harmless Lessor from and against any claims, loss, liability, attorney’s fees, costs or any other expense for any injury, loss or damage to persons or property arising out of or resulting from Lessee’s operations hereunder or use of the leased premises.” (Id., Ex. 24 at 3). Based on the map attached to Stephens’s expert report, it appears that NL constructed a settling pond on this leased tract. (Id., Ex. 5 at 1, 2). Georgia-Pacific points out that before allowing the lease to terminate, NL discontinued use of the pond and poured cement to prevent water from reaching the mining sludge at the bottom of the dried out ponds. {Id., Ex. 27).

Georgia-Pacific argues that the only activities at the Site that matter for environmental response costs are the mining activities. (Docket Entry No. 208 at 8). Georgia-Pacific points to the Administrative Settlement, which states that mining operations at the Site resulted in the Pit Lake and piles of mining spoils. {See Docket Entry No. 189, Ex. 1 at 1-2). Georgia-Pacific argues that the only evidence Halliburton submitted connecting Georgia-Pacific to mining activities or contamination at the Site are the leases and Site Investigation Report. {See Docket Entry No. 189, Ex. 28 at 4-8 (Responses to Interrogatories 3 and 6)). Georgia-Pacific argues that it is not mentioned in the Site Investigation Report and that no document shows that Georgia-Pacific physically conducted any activity at the Site that would have contributed to the environmental degradation caused by the mining activities. (Docket Entry No. 208 at 10). Georgia Pacific points out that Halliburton has formally admitted that Georgia-Pacific: “did not physically conduct or direct the excavation and removal of overburden or barite ore at the Site”; “did not physically conduct or direct the milling of overburden or barite ore at the Site”; and “did not physically conduct the transport of mine and mill wastes disposed of on Georgia-Pacific property on the Site.” (Docket Entry No. 189, Ex. 28 at 4).

Georgia-Pacific has presented evidence that NL and Magcobar were aware that mining activities were polluting adjacent waters, and that NL “planned, but consciously declined to implement, the very environmental remediation solutions that have been and will ultimately be pursued under the ADEQ Settlement and the ADEQ Order.” (Docket Entry No. 208 at 11). Georgia-Pacific presents the following chronology through a series of exhibits:

• In 1946, the Arkansas Fish and Game Commission accused NL and Magcobar of polluting Ouachita River with mine runoff and discharges. (See Docket Entry No. 189, Ex. 29). NL began monitoring the pH level in Chamberlain Creek, and the water samples showed low pH levels (acidic water). (See id., Ex. 30).

• In April 1962, state regulators inspected the mine. NL concluded that there was nothing further to do to prepare for additional surveys, “except continue our present program of watching the Ouachita, continue to lime water pumped from the pit, and continue to slow down erosion from our strip dumps as much as possible.” (Id., Ex. 31 at 2). In June 1970, NL met with state regulators and was directed to submit a “letter of intent for more efficiently neutralizing, precipitating and removing the iron concentration of the mine and run off water presently being discharged from the Magnet Cove Mine into Chamberlain Creek.” (Id., Ex. 32 at 1). What appears to be a draft letter from the superintendent of the plant and mine to the Arkansas Pollution Control Commission describes plans for preventing further environmental effects from the mine. The plans included designing a complete automated system for treating discharge water, for continually monitoring discharge water, and for implementing clarification methods using settling ponds. The plans would require purchasing additional land, leasing additional land, or obtaining the right-of-way for routing water from settling ponds back to Chamberlain Creek. (See id., Ex. 32).

In November 1976, the Arkansas Department of Pollution Control and Ecology approved of a plan by NL for treating and discharging waste water, subject to compliance with several additional requirements. (Id., Ex. 33). In January 1977, NL sent a confidential letter to the U.S. Environmental Protection Agency (EPA), stating that “[t]he significant capital required for the Magnet Cove water treatment facilities and the rather large annual expense incurred in water treatment and discharge has prompted our management to review the economics of maintaining production from the Magnet Cove underground mines beyond May 1977.” (Docket Entry No. 189, Ex. 34). This letter explained that “[i]f the decision is to cease the current mining operation then there will be no need to pump water and, therefore, no discharge from the property,” and stated that “construction of the treatment facilities has been suspended for a period of 30 days until a decision is reached.” (Id., Ex. 34).

• In February 1977, state regulators advised NL that “Cove Creek was essentially ‘sterile’ from the junction of Cove-Chamberlain to the Ouachita River,” and that “[n]o fish or aquatic species were found except for a mutated plankton.” (Id., Ex. 35 at 1). An internal, confidential NL memorandum discussing the February 1977 communication from the state regulators indicated that NL had told the regulators of its decision to stop pumping water from the mine in the summer of 1977. (Id., Ex. 35 at 1). In July 1977, NL advised the EPA that it would terminate the mine drainage and rain runoff discharge, and that no further discharges from the mine would be made until a future time when a new mining program was initiated. (Id., Ex. 36 at 1).

Georgia-Pacific has submitted the April 1978 notes of F.R. Baser. F.R. Baser appears to have been an NL employee. Georgia-Pacific argues that the notes support the argument that NL supplied regulators with water samples knowing that Chamberlain Creek upstream from the samples was contaminated. (See Docket Entry No. 208 at 12). It is not clear from these notes that NL provided samples of water knowing that a different area of the Chamberlain Creek was more contaminated. The notes suggest that NL wanted to take samples from a different area of Chamberlain Creek because the area the regulators originally tested was not “indicative of discharge to the stream.” The notes, in relevant part, state:

The State of Arkansas tested not only the discharge from the site to the Chamberlain River but also the Chamberlain River itself and found very high concentrations of heavy metals and suspended solids. It was pointed out by NL that this was not indicative of the discharge to the stream and that the State should, in fact, measure up-stream from NL’s discharge point. The State requested NL sample which NL has done knowing full well that the Chamberlain Creek upstream was quite contaminated. This contamination is the result of leachate from the waste piles. The leachate contains heavy metals, sulfate, and is low in pH. During the years of operation of the mine, in excess of 30, over-burden was removed and piled in the area surrounding the pit covering many hundreds of acres. Dresser Industries, who operated a mine adjacent to NL’s, also participated in the accumulation of waste piles [and] therefore has some liability.

(Docket Entry No. 189, Ex. 37 at 2-3).

In May 1978, NL advised Arkansas regulators that it intended to reopen the pit mine and build a comprehensive treatment plant. (Id., Ex. 38). In May 1979, NL informed the regulators that in reactivating the mine, it intended to implement measures to protect nearby waters. (Id., Ex. 39 at 2). These measures included reclaiming existing overburden piles and installing a multimillion dollar plant to treat water pumped from the open pit before discharge into Chamberlain Creek. (Id., Ex. 39 at 2). The plant would first treat water that had been impounded in the pit since the mining operations ended in 1977 and then continue to treat water during normal mine operation. (Id., Ex. 39 at 2). In connection with its proposed water treatment plan, NL asked state regulators to revise the water quality standards. NL stated that “without a change in the existing Water Quality Standards for sulfate and total dissolved solids (TDS) in the affected streams, limits would be written into a new NPDES Permit that could not be met,” and that “there is no practicable technology for removal of sulfates from effluent streams in this instance.” (Id., Ex. 39 at 2). In November 1979, an NL consultant issued a “Conceptual Plan for Reclamation of Abandoned Mine Spoils Dump, Disposal of Mine Pit Water Treatment Sludge, and Disposal of Open-Cut Overburden.” (Docket Entry No. 189, Ex. 40).

In October 1981, NL stated in an internal memorandum that it had plans to close the barite plant. (Id., Ex. 41). NL sought internal opinions about “responsibilities and possible liabilities as to reclaimation [sic] if [sic] any of the waste dumps; open pit and tailings ponds.” (Id., Ex. 41). An internal memorandum dated a few months later evaluated the potential for environmental liability associated with the mining operations, stating that “Chamberlin [sic] Creek originates in the vicinity of the plant and also receives significant non-point drainage of acidic leachate from the waste piles, including those on NL Industries’ property.” (Id., Ex. 42 at 1). The memorandum noted that “[t]he cessation of mining activities precedes the enactment of [the Resource Conservation and Recovery Act (RCRA) ] and corresponding State regulations,” but that “clean-up requirements could be mandated under RCRA if the site were to be determined a ‘substantial hazard’ to human health or the environment.” (Id., Ex. 42 at 2). The memorandum concluded that “[s]uch a determination is not anticipated as other disposal sites may be more likely candidates for attention; the site has not yet been targeted for action under the ‘Superfund’ legislation.” (Id., Ex. 42 at 2). As to Closure/Post-Closure environmental requirements, the memorandum concluded that “[t]he only known requirement would be to comply with the terms of the NPDES permit if discharges were to continue from Tailings Pond No. 4.” (Docket Entry No. 189, Ex. 42 at 3). The memorandum noted that “NL’s prior discussion of a reclamation plan for the abandoned mine spoils dump, that was to be associated with the possible renewal of open pit mining operations, might have excessively kindled State interest in the existing acidic mine drainage,” and that “[t]his could possibly precipitate some additional closure requirements or threats to list the site in accordance with the ‘Superfund’ legislation.” (Id., Ex. 42 at 3).

In February 1986, an internal NL memorandum with an “[u]pdated [o]pinion of [potential [environmental [r]equirements/[e]xposures” for Magnet Cove Barite Operations concluded as follows:

The retention of leased property is not recommended unless it could be anticipated to be required for the siting of possible treatment facilities. If the leases were to be discontinued, their renegotiation under such circumstances might not be possible under terms that were favorable to NL Baroid. However, if outrageous terms were to be required by a property owner, this might constitute a denial of access that, until resolved, would protect us from requirement to undertake related remedial action. It has been Environmental Controlas] experience that this regional office of the USEPA may not be aggressive in forcing non-consenting property owners to grant access.

(Id., Ex. 43 at 8 (emphasis added)). Georgia-Pacific uses this memorandum to argue that NL concluded that terminating the leases might help forestall any required environmental response. (Docket Entry No. 208 at 13).

On December 15, 1986, NL submitted notice terminating the 1939 Mining Lease. (See Docket Entry No. 189, Ex. 45 at 1). In an internal memorandum discussing the reasons, NL noted that even after lease termination, it should be granted “reasonable access for reclamation or environmental clean-up projects, if required.” (Id., Ex. 44 at 1).

In June 1981, Georgia-Pacific conveyed certain Arkansas property, including property it owned at the Site, to its subsidiary Rex Timber Inc. (See id., Ex. 46). Rex Timber conveyed certain property at the Site to the Taylor family in 1987. (See id., Ex. 47). Rex Timber was merged into Georgia-Pacific in 1988. (See id., Ex. 48). In 1990, Georgia-Pacific conveyed its remaining interests at the Site to two individuals, W.R. Ward and Dorsey D. Glover. (See id, Ex. 49).

The EPA eventually investigated the Site. (See Docket Entry No. 189, Ex. 50 (Expanded Site Inspection Report for Magcobar Mine, Malvern, Hot Spring County, AR, dated December 1996)). The Administrative Settlement and the Consent Order followed, and interim remedial procedures were implemented.

Georgia-Pacific contends that the environmental problems at the Site were caused by the mining activities conducted there. (Docket Entry No. 208 at 14). Georgia-Pacific points to parts of the Site Investigation Report prepared for Halliburton and TRE Management, which state:

A natural phenomenon known as ARD occurs when air and water reach exposed rocks containing pyrite. This phenomenon generally occurs as the result of mining and other activities that disturbed the surface of the earth, but natural occurrences of ARD are also documented .... Where ARD is the result of manmade activities, it generally is the result of the acceleration of natural weathering processes, which occur when disturbed rocks containing sulfides, such as pyrite, are exposed to air and water.

The primary adverse environmental effect caused by the DIM Mine Site (as named by the EPA) involves formation of low pH water that exits the Site in surface pathways and lowers pH in off-Site surface waters. The low pH water formed at the Site results from accelerated weathering processes that generate acidity and increase solubility of metals naturally present in some of the rock that was disturbed by mining.

The mine spoil and pit lake are the most environmentally significant features at the Site because most of the ARD is produced in the spoil and enters the pit lake by seepage and runoff. The pit lake serves as a storage reservoir for ARD historically produced on the Site.

Mine spoil present at the Site will produce ARD for decades, though at a continually decreasing rate.

Surficial runoff from the spoil piles produces ARD, but more concentrated ARD is produced by infiltration through the spoil piles.

In its present condition the pit lake acts as a storage reservoir for ARD. Mine spoil is the primary ongoing source of ARD to the pit lake (very small amounts of ARD may also originate from the small amount of exposed pit wall on the west side of the pit that is comprised primarily of Stanley Formation rocks).

Runoff from the floatation tailings results in ARD that is transported to pooled areas on the tailings impoundments. Water quality in the tailings ponds reflects this source and is acidic with elevated concentrations of metals and sulfate, consistent with ARD that has been diluted by precipitation.

(Docket Entry No. 189, Ex. 3 at 2-13, 8-1, 8-2, 8-3, 8-5, 8-7 (emphasis added)). Georgia-Pacific points out that “[t]he Report attributes no environmental issue to any activity other than mining,” and that “[a]t least in this respect, ADEQ has approved the Report.” (Docket Entry No. 208 at 15).

Georgia-Pacific also points out that Halliburton’s experts in the arbitration found that mining had caused the environmental problems. (See Docket Entry No. 189, Ex. 51 at 10 (“The primary environmental impacts at Magnet Cove are the result of mining rocks of the Mississippian Stanley Formation .... The process of stripping the Stanley Formation to access ore and placing it in piles where it is exposed to the atmosphere and precipitation results in increased production of ARD.”); id., Ex. 52 at 8 (“[T]he contamination at issue stems from mining operations conducted by NL and Magcobar.”)). Halliburton’s counsel told the arbitrators that a “critical and important fact which I would suggest is not contested and has been recognized by all the parties and reflected in the SI report is that the production of acid rock drainage, ARD, and its migration compromises [sic] the primary environment[al] concern at this site.” (Id., Ex. 53 at 565). Georgia-Pacific asserts that it is undisputed that the mining activity caused the Site contamination and that Georgia-Pacific did not conduct the mining operations. (Docket Entry No. 208 at 15). Georgia-Pacific argues that based on these uncontested facts, it is entitled to judgment that it is not liable, as a matter of law. (Id.).

Except as noted below, Halliburton does not contest, for purposes of this motion, the facts Georgia-Pacific recited about the Site history, the Site characteristics, and regulatory response actions. (Docket Entry No. 218 at 4). Halliburton argues, however, that Georgia-Pacific is not entitled to the relief it seeks.

B. The Contribution Analysis

1. Georgia-Pacific’s Status as a Potentially Responsible Party Under Section 107(a) of CERCLA

Under section 107(a)(4) of CERCLA, “the owner and operator of a ... facility ... shall be liable for ... (B) any ... necessary costs of response incurred by any ... person ... consistent with the national contingency plan.” 42 U.S.C. § 9607(a)(4)(B). For the purpose of its motion, Georgia-Pacific concedes: “(a) that Plaintiffs and Georgia-Pacific were owners or operators of the Site as a ‘facility;’ (b) that the costs incurred and to be incurred by Plaintiffs with respect to the Site were ‘necessary’ and ‘consistent with the national contingency plan;’ and (c) that Georgia-Pacific does not assert any defense to liability under CERCLA § 107(b).” (Docket Entry No. 208 at 16). “In other words, Georgia-Pacific is willing to assume that it, Plaintiffs and Milwhite are all potentially liable under section 107(a).” (Id.).

Georgia-Pacific focuses its arguments on section 113(f)(1), which provides in relevant part:

Any person may seek contribution from any other person who is liable or potentially liable under section [107(a) ], during or following any civil action under ... section [107(a) ]. Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by Federal law. In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.

42 U.S.C. § 9613(f)(1). The relevant provisions of RATFA are similar. RATFA’s contribution provisions state:

(a) Any person who has undertaken or is undertaking remedial action at a hazardous substance site in response to an administrative or judicial order initiated against such person ... may obtain contribution from any other person who is liable for such hazardous substance site.

(b) Any person who has resolved all or a portion of his liability for a hazardous substance site by undertaking remedial action pursuant to an administrative ... settlement may obtain contribution from any person who is liable for such hazardous substance site and is not a party to the settlement.

(d) ... In resolving contribution claims, the court shall allocate the costs and expenses incurred or to be incurred by the contribution claimant or claimants for undertaking remedial action among all persons liable for the hazardous substance site, using such equitable factors as the court determines are appropriate.

AricCode Ann. § 8-7-520. With respect to the RATFA claims, Georgia-Pacific concedes, for the purpose of its motion only, that:

(1) the Site is a “hazardous substance site” within the meaning of sections 8-7-520(a) and (b); (2) the Halliburton Plaintiffs and TRE Management have standing under subsections (a) and (b); (3) Georgia-Pacific is a “person who is liable” for the Site within the meaning of subsections (a) and (b); and (4) [Georgia-Pacific] is not a party to the settlement giving Plaintiffs standing under subsection (b).

(Docket Entry No. 208 at 18).

As Georgia-Pacific points out, “CERCLA prevents double recovery. If Plaintiffs recover under CERCLA, they cannot recover under RATFA; if they recover under RATFA, they cannot recover under CERCLA.” (Id. (citing 42 U.S.C. § 9614(b))). Because the contribution provisions are similar under both CERCLA and RATFA, Georgia-Pacific does not separately address RATFA contribution. This court focuses on contribution under CERCLA as well.

Halliburton responds that it has not argued that Georgia-Pacific is an “owner or operator” of the Site liable for costs under section 107(a)(1) of CERCLA. (Docket Entry No. 218 at 6). Instead, Halliburton argues that Georgia-Pacific is liable under sections 107(a)(2) and (3) of CERCLA (and the comparable sections of RATFA). (Id.). These sections cover persons who owned or operated a facility, where hazardous substances were disposed, at the time of disposal (“prior owners and operators”), and persons who arranged for disposal of hazardous substances (“arrangers”).

The interplay between section 107(a) and section 113(f) is important to the pending motion. In Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004), the Supreme Court “concluded that CERCLA provided for a right of cost recovery in certain circumstances, referring to 42 U.S.C.A. § 9607(a), and separate rights to contribution in other circumstances, referring to 42 U.S.C.A. § 9613(f)(1) and 42 U.S.C.A. § 9613(f)(3)(B).” John J. Dvorske, Annotation, Right of Private Party to Seek Cost Recovery Under CERCLA § 107(a), 42 U.S.C.A. § 9607(a), or Contribution Under CERCLA § 113(f)(1), 42 U.S.C.A. § 9613(f)(1), in Connection with Environmental Response — Post-Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004), 22 A.L.R. Fed.2d 233 at § 2 (2007). One commentator has explained:

Under a § 107(a) “cost recovery” action, a party, such as a private party landowner or the United States government, who has incurred cleanup and remediation costs at a hazardous waste site, may seek to recover its full response costs from a party or parties who may be potentially responsible for the contamination. The apportionment of liability under § 107(a) is strict, joint, and several — without regard to fault or willfulness, and thus, once liability is demonstrated, a defendant potentially responsible party may be held liable for the entire cost of cleanup, even if multiple potentially responsible parties are involved. Under a § 113(f)(1) “contribution” action, a potentially responsible party is granted the right to recoup from other potentially responsible parties the portion of its cleanup and remediation costs which exceeds its fair share of the overall liability. In other words, under § 113(f)(1), an individual potentially responsible party which has been left with the entire cleanup cost may seek contribution from, and attempt to apportion liability to, other potentially responsible parties. In contrast to a § 107(a) action in which liability is joint and several, under § 113(f)(1), a court is called upon to allocate the response costs among the potentially responsible parties based upon each potentially responsible party’s percentage of fault and, to do so, may use such equitable factors as the court determines are appropriate.

Id. at § 3 (footnote omitted).

The Supreme Court addressed the interplay between sections 107(a) and 113(f) in United States v. Atlantic Research Corp., 551 U.S. 128, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007). In Atlantic Research, the Court held that section 107(a) provides PRPs with a cause of action to recover costs from other PRPs. 551 U.S. at 131, 127 S.Ct. 2331. The Court noted that it had previously held in Cooper Industries that “a private party could seek contribution from other liable parties only after having been sued under § 106 or § 107(a).” Id. at 133, 127 S.Ct. 2331. Atlantic Research leased property operated by the Department of Defense. Id. After cleaning up environmental damage at the relevant site at its own expense, Atlantic Research sought to recover some of its costs by suing the United States under both section 107(a) and section 113(f). Id. After the Court’s Cooper Industries decision, the section 113(f) claim could not proceed. Id. Atlantic Research amended its complaint to seek relief only under section 107(a) and federal common law. Id.

The Atlantic Research Court pointed out that in Cooper Industries, it had “recognized that §§ 107(a) and 113(f) provide two ‘clearly distinct’ remedies.” Atlantic Research, 551 U.S. at 138, 127 S.Ct. 2331 (citing Cooper Industries, 543 U.S. at 163 n. 3, 125 S.Ct. 577). The Atlantic Research Court noted:

Section 113(f) explicitly grants PRPs a right to contribution. Contribution is defined as the “tortfeasor’s right to collect from others responsible for the same tort after the tortfeasor has paid more than his or her proportionate share, the shares being determined as a percentage of fault.” Black’s Law Dictionary 353 (8th ed.1999). Nothing in § 113(f) suggests that Congress used the term “contribution” in anything other than this traditional sense. The statute authorizes a PRP to seek contribution ‘during or following’ a suit under § 106 or § 107(a). 42 U.S.C. § 9613(f)(1). Thus, § 113(f)(1) permits suit before or after the establishment of common liability. In either case, a PRP’s right to contribution under § 113(f)(1) is contingent upon an inequitable distribution of common liability among liable parties.

Id. at 138-39, 127 S.Ct. 2331 (footnote omitted). The Court distinguished section 113(f) liability from liability under section 107(a):

By contrast, § 107(a) permits recovery of cleanup costs but does not create a right to contribution. A private party may recover under § 107(a) without any establishment of liability to a third party. Moreover, § 107(a) permits a PRP to recover only the costs it has “ineurred” in cleaning up the Site. 42 U.S.C. § 9607(a)(4)(B). When a party pays to satisfy a settlement agreement or a court judgment, it does not incur its own costs of response. Rather, it reimburses other parties for costs that those parties incurred.

Id. at 139,127 S.Ct. 2331.

The Atlantic Research Court emphasized that while sections 107(a) and 113(f)(1) could overlap, the remedies are generally distinct and “complement each other by providing causes of action ‘to persons in different procedural circumstances.’ ” See id. & n. 6 (quoting Consol. Edison Co. of N.Y. v. UGI Utils., Inc., 423 F.3d 90, 99 (2d Cir.2005)) (additional citation omitted). The Court explained:

Section 113(f)(1) authorizes a contribution action to PRPs with common liability stemming from an action instituted under § 106 or § 107(a). And § 107(a) permits cost recovery (as distinct from contribution) by a private party that has itself incurred cleanup costs. Hence, a PRP that pays money to satisfy a settlement agreement or a court judgment may pursue § 113(f) contribution. But by reimbursing response costs paid by other parties, the PRP has not incurred its own costs of response and therefore cannot recover under § 107(a). As a result, though eligible to seek contribution under § 113(f)(1), the PRP cannot simultaneously seek to recover the same expenses under § 107(a).

Id. The Court noted that at least in the case of reimbursement, a PRP does not have the option to choose the longer statute of limitations for cost-recovery claims over the shorter limitations period for section 113(f) claims. Id. (footnote omitted). Moreover, “a PRP could not avoid § 113(f)’s equitable distribution of reimbursement costs among PRPs by instead choosing to impose joint and several liability on another PRP in an action under § 107(a).” Atlantic Research, 551 U.S. at 140, 127 S.Ct. 2331. The Court also noted that “a defendant PRP in such a § 107(a) suit could blunt any inequitable distribution of costs by filing a § 113(f) counterclaim,” and that “[rjesolution of a § 113(f) counter-claim would necessitate the equitable apportionment of costs among the liable parties, including the PRP that filed the § 107(a) action.” Id. (citations omitted).

Atlantic Research makes clear that cost recovery under section 107(a) is a separate inquiry from equitable allocation in a contribution claim under section 113(f). Georgia-Pacific’s motion asks this court to determine whether it is entitled to a judgment of zero liability, based on section 113(f)’s equitable allocation principles. Halliburton argues that the undisputed facts establish that Georgia-Pacific is liable for response costs under CERCLA sections 107(a)(2) and (3). Halliburton points to contracts between Georgia-Pacific and NL that allowed NL to dispose of mining wastes on property Georgia-Pacific owned at the Site, and to a contract between Georgia-Pacific and NL that allowed the removal and disposal of overburden and waste rock from other property Georgia-Pacific owned at the Site.

Georgia-Pacific concedes for purposes of this motion that it is a PRP under section 107(a) of CERCLA. (Docket Entry No. 208 at 16). This court need not determine whether Georgia-Pacific is in fact liable under section 107(a), and if so, under which subsection. Georgia-Pacific has “blunted” Halliburton’s claim for cost recovery under section 107(a) with a counterclaim under section 113(f), and Halliburton has also asserted a claim for contribution under section 113(f). Assuming, for the purpose of this motion, that Georgia-Pacific is a PRP under section 107(a), the issue to be resolved is whether Georgia-Pacific is entitled to judgment of zero liability based on equitable allocation under section 113(f). Cf. Kalamazoo, 274 F.3d at 1047 (“A holding of potential liability does not preclude a zero allocation of response costs.”); Acushnet Co. v. Mohasco Corp., 191 F.3d 69, 77-78 (1st Cir.1999) (“We therefore hold that a defendant may avoid joint and several liability for response costs in a contribution action under § 9613(f) if it demonstrates that its share of hazardous waste deposited at the site constitutes no more than background amounts of such substances in the environment and cannot concentrate with other wastes to produce higher amounts. This rule is not b