Citations
- 108 F. Supp. 3d 486
Full opinion text
MEMORANDUM AND OPINION
LEE H. ROSENTHAL, District Judge.
The nation’s need for wartime supplies made during World War II and the Korean War left lasting environmental effects. More recent statutes require those involved to clean the pollution left in the refineries and plants where aviation fuel and other supplies our nation’s military needed were produced. This case requires the court to decide who pays, and how much. The issue is whether the federal government or a private oil company it contracted with to produce fuel needed in the wars must pay for the environmental harm the production generated, under a statute enacted years later.
During World War II and the Korean War, the United States enlisted oil companies across the country to swiftly increase the nation’s production of high-octane aviation gas (“avgas”), synthetic rubber, and toluene required for military operations in Europe and the Pacific. The companies contracted with the federal government to increase avgas production at their existing refineries and to construct and operate new plants to produce synthetic rubber, avgas components, and other necessary war materials. The swift increase in production capabilities also generated more hazardous waste.
This case involves two sites — one in Baytown, Texas and one in Baton Rouge, Louisiana — where ExxonMobil Corporation’s predecessors produced avgas and other materials under government contracts. The Baytown and Baton Rouge refineries and plants disposed of the resulting hazardous waste in nearby bodies of water, including the Houston Shipping Channel and the Mississippi River. Both feed into the Gulf of Mexico. Under these contracts, the government encouraged Exxon and other oil companies to produce as much as possible to meet the war effort’s demands. Exxon, like other oil companies that entered similar contracts, retained day-to-day control, including over waste management.
Decades later, Exxon reached administrative agreements with the State of Texas to clean up the Baytown site and with the State of Louisiana for the Baton Rouge site. Exxon estimates that it has incurred roughly $41 million to clean up Baytown and $30 million for Baton Rouge. The United States refused to pay Exxon for any of these costs. Exxon sued the United States under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., seeking to hold the government accountable as a “covered person” responsible for cleanup costs at both sites.
After several years of litigation and discovery, both Exxon and the United States moved for partial summary judgment as to certain issues important to deciding who was liable for the past and future clean up costs. (Docket Entry Nos. 102, 103, in 4:10-ev-02386; Docket Entry Nos. 51, 52 in 4:ll-cv-01814). Based on the pleadings; the motions, responses, replies, and supplemental briefing; the parties’ arguments; the record; and the applicable law, the court grants the parties’ motions in part and denies them in part. The following findings and conclusions are entered:
• Exxon operated the refineries at both sites.
• The United States government did not operate the refineries at either site.
• Both Exxon and the government operated the chemical plants at the sites.
• Joint and several liability does not apply-
• It is too early to decide whether to adopt Exxon’s proposed method for apportioning fault or to grant declaratory relief awarding future costs under the proposed method. Exxon may request the court to adopt its proposed method to apportion liability for the costs in Phase II of this litigation.
The reasons for these rulings are explained in detail below.
I. Background
Because the number of government agencies, programs, and statutory and regulatory terms involved makes acronyms unavoidable, a glossary is attached to the end of this opinion.
A. CERCLA
Congress enacted CERCLA in 1980 “in response to the serious environmental and health risks posed by industrial pollution.” Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 602, 129 S.Ct. 1870, 173 L.Ed.2d 812 (2009); see also CTS Corp. v. Waldburger, — U.S. —, 134 S.Ct. 2175, 2180, 189 L.Ed.2d 62 (2014); United States v. Bestfoods, 524 U.S. 51, 55, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998). “The Act was designed to promote the timely cleanup of hazardous waste sites and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination.” Burlington N., 556 U.S. at 602, 129 S.Ct. 1870 (quotations omitted). As amended by the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), Pub.L. No. 99-499, 100 Stat. 1613, CERCLA provides several alternative means for cleaning up contaminated property. Sections 104 and 106 provide for federal abatement and enforcement actions to compel cleanup of contaminated sites. See 42 U.S.C. §§ 9604, 9606(a). Section 107(a)(4) states that “covered persons” (also known as “potentially responsible parties” or “PRPs”) may be liable for costs the federal or state government incur in responding to the contamination and for response' costs incurred by “any other person.” See 42 U.S.C. § 9607(a)(4)(A)-(B). Section 107(a)(4) is part of the original statute enacted in 1980. Two contribution provisions, §§ 113(f)(1) and 113(f)(3)(B),.were added later as part of SARA.
Section 107(a) identifies four categories of PRPs who may be liable for costs to clean up hazardous substances. See 42 U.S.C. § 9607(a). The categories are: (1) owners ánd operators of facilities at which hazardous substances are located; (2) past owners and operators of these facilities when the disposal of hazardous substances occurred; (3) persons who arranged to dispose of or treat hazardous substances; and (4) certain transporters of hazardous. substances. See 42 U.S.C. § 9607(a)(1)-(4). 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 ... not inconsistent with the national contingency plan,” and “any other necessary costs of response incurred by any other person consistent with the national contingency plan,” 42 U.S.C. § 9607(a). The statute defines “person,” “facility,” “disposal,” “release,” and “environment.” CERCLA also provides a narrow set of defenses to liability that may arise under § 107(a), none of which applies here.
Section 113, added in 1986 as part of SARA, contains a subsection entitled “Contribution.” This subsection states:
Any person may seek contribution from any other person who is liable or potentially liable under [§ 107(a) ], during or following any civil action under [§§ 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 [§§ 106 or 107].
Under § 113, a PRP that “has resolved its liability to the United States or a State in an administrative or judicially approved settlement” is immune from contribution claims made by other PRPs “regarding matters addressed in the settlement.” Id. at § 9613(f)(2). A settling PRP may seek contribution under § 113(f)(3) from other, nonsettling PRPs. Id. at § 9613(f)(3)(B). Section 107(a) allows a plaintiff to recover 100% of its response costs from all liable parties, including those who have settled their CERCLA liability with the government. Id. at §§ 9613(g)(2), 9607(a). Section 113’s right to contribution is more restricted than that afforded by § 107. Section 107 has a six-year statute of limitations; § 113 has a three-year statute of limitations in certain scenarios. Under § 107, plaintiffs may recover only costs in excess of their equitable share and may not recover from previously settling parties. Id. at § 9613(f)(1), (f)(2), ■ (g)(3). Federal and state governments may sue PRPs for response costs and may also be liable as PRPs for response costs others incur. See 42 U.S.C. § 9607(a)(4)(A) and (B).
B. Factual Background
1. Avgas and Synthetic-Rubber Production in World War II and the Korean War
“In the early 1930s, petroleum refiners in the United States developed new technologies for producing high-octane gasoline fuel.” Shell Oil Co., 294 F.3d at 1049. “Until that time, the highest octane gasoline available had octane ratings in the 70s, but by 1935 refiners possessed the ability to produce mass- quantities of 100-octane fuel.” Id. “The primary consumer of this fuel was the United States military, which used it in airplane engines, leading to its colloquial name ‘avgas.’ The high octane and low volatility of avgas allowed the design and use of high-compression internal combustion engines for military airplanes.” Id. For the Allied forces, avgas was the “super-fuel that meant more speed, more power, quicker take-off, longer range, [and] greater maneuverability— all of the things that meant the victory margin in combat.” (Docket Entry No. 118-1 ¶ 25). According to Geoffrey Lloyd, the British Minister of Fuel and Power during the War, “without 100-octane we should not have won the Battle of Britain. But we had 100-octane.” (Docket Entry No. 118-1 ¶ 27).
The Shell opinion described the avgas production process:
Avgas was a blend of petroleum distillates and chemical additives. Its base component was ordinary gasoline, to which the refineries added varying amounts of several additives. Oil producers made avgas using one of two types of additives. The most prevalent additive was a compound called “alky-late,” which comprised 25^40% of the weight of avgas. The production of al-kylate, as well as other additives, required the use of sulfuric acid. In the production of alkylate, through a process called “alkylation,” the refineries used 98% purity sulfuric acid as a catalyst. Approximately 90% of the sulfuric acid used by the refineries during the war was devoted to this purpose. As a consequence of its use in alkylation, the purity of the acid was greatly reduced. “Spent” alkylation acid could be reprocessed, at some expense, so that its purity was once again high enough for use as an alkylation catalyst. Alternatively, spent acid either could be used in other refinery processes, or could be dumped without being reused.
Shell Oil Co., 294 F.3d at 1049. Another, less desirable method, to produce avgas used codimer, a blending component from polymers, instead of alkylate. Codimer production also led to various spent wastes that either had to be disposed of or used.
“When the war began, the alkylation process and the production of avgas were new technological developments. During the war, production of avgas increased more than twelve-fold, from roughly 40,000 barrels per day in December 1941 to 636,-000 barrels per day in 1944.” Id.; (see also Docket Entry No. 118-1 ¶ 28). “Sulfuric acid consumption increased five-fold, from 24 million pounds per year in 1941 to 120 million pounds per year in 1944. The use of sulfuric acid in the alkylation process produced quantities of spent alkylation acid far greater than had ever been produced before.” Shell Oil Co., 294 F.3d at 1049.
“Because high-octane avgas was critical to the war effort, the United States government had a considerable stake in ensuring its consistent production during World War II.” Id. “In 1942, President Roosevelt established several agencies to oversee war-time production of avgas. Among those with authority over petroleum production were the War Production Board (“WPB”) and the Petroleum Administration for War (“PAW”).” Id. The WPB, which was created to “assur[e] the most effective prosecution of war procurement and production,” established a nationwide priority ranking system to identify scarce goods, prioritize their use, and facilitate their production; it also limited the production of nonessential goods. Exec. Order No. 9024 ¶2, 7 Fed.Reg. 329, 329-30 (Jan. 17, 1942). The president delegated broad authority to the WPB, including the power to issue directives about “purchasing, contracting, specifications, and construction.” Id. “The PAW centralized the government’s petroleum-related activities. It made policy determinations regarding the construction of new facilities, allocation of raw materials, avgas pricing and . profit limitations, and had the authority to issue production orders to refineries.” Shell Oil Co., 294 F.3d at 1049; see also Testimony of Louis R. Goldsmith, (Docket Entry No. 118-1 PF ¶ 61) (testifying that although it was “completely a cooperative effort in which everybody said: “We’ve got a war to fight and let’s get on with it, providing what’s needed, ... [n]obody could build anything without PAW’s concurrence and approval because, for one thing, you couldn’t get any raw materials to build anything with unless PAW certified that it was essential.”).
The WPB, PAW, and other federal government agencies had the authority to require oil companies to produce certain goods at the refineries they owned, and to seize the refineries if the companies refused. During the war, the “President, through the head of the War or Navy Departments of the Government ... [was] ... authorized to take immediate possession of any such plant” that “refuse[d] to manufacture the kind, quantity, or quality of arms or ammunition, or the parts thereof, or any necessary supplies or equipment. ...” Selective Training and Service Act of 1940, 54 Stat. 885, 892 (1940). The PAW seized Exxon’s refinery in Ingleside, Texas, but “the company continued to operate the Refinery for its own account....” (Docket Entry No. 66-4 ¶32 (4:ll-cv-01814); Docket Entry No. 118-1 ¶ 65, Gravel Decl. ¶ 7). These seizures were unusual. The federal agencies relied almost exclusively on contracts with oil companies to ensure avgas production, including long-term contracts to purchase avgas with low-cost loans to companies to help them build avgas-producing plants.
The federal government implemented the Planned Blending Program to optimize avgas production. “Under this program, the government assisted the refineries operated by the oil' companies in exchanging and blending various avgas components in order to maximize production of avgas. The government could, and sometimes did, direct that specific exchanges be made, but it usually accepted what was proposed by the refineries.” Shell Oil Co., 294 F.3d at 1050. The Planned Blending Program set “aside” and alleviated concerns about “antitrust restrictions that had always governed the industry,” so “there could be total cooperation in avgas production” (Docket Entry No. 117-3 ¶ 30). Under the Program, the government issued instructions that “were at times quite detailed. Sometimes they directed refiners to blend avgas in a way that would allow increased overall production even if that method would reduce an individual refinery’s yield.” Shell Oil Co., 294 F.3d at 1050. “Expert juggling of [the] components and elimination of bottlenecks in transportation insured maximum quality and quantity of the blended fuel. Under this plan, the nation’s refineries were all treated as units in one vast national refinery.” (Docket Entry No. 118-1 ¶ 59 (PAW handbook)). The Program did not, however, exercise direct control over the production of avgas components or waste disposal. Instead, the Planned Blending Program controlled only their exchange and blending after production.
In addition, “[t]he government reduced the financial risk to producers of avgas and its components through the Aviation Gas Reimbursement Plan (‘AGRP’).” Shell Oil Co., 294 F.3d at 1060. “This program allowed oil companies that entered into long-term avgas supply contracts to recoup costs they could not have anticipated at the time of the execution of the contracts.” Id. “The AGRP directly reimbursed the refineries for any extraordinary expenditures they undertook — including those incurred under the Planned Blending Program to maintain maximum avgas production during the war.” Id.
Throughout World War II, the oil companies designed and built production facilities, maintaining private ownership and managing their own refinery operations. See id. The oil companies entered into contracts to sell the avgas they produced to the federal government. The contracts were profitable. (Docket Entry No. 52-2, ¶ 86 (4:ll-cv-01814)). The companies nonetheless filed grievances with the government about contract terms. One grievance concerned contractual limits on profits. Another concerned “statutory renegotiation clauses” allowing the government to renegotiate certain contract terms. The oil companies wanted to preserve their ability to challenge the constitutionality of the statute authorizing these renegotiation clauses. The Supreme Court described some of the contract challenges facing the federal government and private industry during the War as follows:
The problem was to find a fair means of compensation for the services rendered and the goods purchased. Contracts were awarded by negotiation wherever competitive bidding no longer was practicable. Contracts were let at cost-plus-a-fixed fee. Escalator clauses were inserted. Price ceilings were established. A flat percentage limit on the profits in certain lines of production was tried. Excess profits taxes were imposed. Appeals were made for voluntary refunds of excessive profits. However, experience with these alternatives convinced the Government that contracts at fixed initial prices still provided the best incentive to production.
Lichter v. United States, 334 U.S. 742, 768, 68 S.Ct. 1294, 92 L.Ed. 1694 (1948). A general complaint about the contracts is illustrated by the following statement from George L. Parkhurst, then Standard’s Director of Refining:
[I]n the case of the 100 octane contracts in which Standard was dealing, Defense Supplies Company is the sole purchaser and P.A.W. insists that each company utilize all of its facilities to make 100 octane aviation gasoline to the extent of its ability to do so, and there is not in fact any freedom to make a choice between contracting and not contracting.
(Docket Entry No. 159 at 2). According to Parkhurst, the lack of freedom stemmed from the government’s power to seize refineries and cut off the supply of crude oil if the oil companies refused to cooperate.
Synthetic rubber was also critical to the war effort. After Pearl Harbor, the United States was cut off from 90 percent of the world’s natural rubber supplies. The government designated rubber as a critical and strategic material, (Docket Entry No. 118-1 ¶ 15), creating the U.S. Rubber Reserve Company (“RuR”) to draw on industry expertise to develop synthetic rubber production. (Docket Entry No. 123-1 ¶ 56; Docket Entry No. 118-1 ¶¶ 11-14). Through the U.S. Defense Plant Corporation (“DPC”), the government arranged for the construction of synthetic rubber and avgas-component plants, known as “Plancors,” during the War. (Docket Entry Nos. 118-1 ¶ 12; 123-1 ¶ 57; Docket Entry No. 118-1 ¶¶ 11-14). The DPC negotiated lease agreements and supply contracts valued at $7.2 billion, involving 2300 plants and projects, during World War II. (Docket Entry No. 66-4 ¶ 45 (4:ll-cv-01814)). Unlike most avgas refineries, however, the government — not the contracting companies — owned the Plancors.
Shortly after World War II ended, the Supreme Court described the wartime relationship between the government and private industry:
Laying aside as undesirable the complete governmental ownership and operation of the production of war goods of all kinds, many alternative solutions were attempted. Often these called for capital expenditures by the Government in building new plant facilities. Adhering, however, to the policy of private operation of these facilities Congress and the Administration sought to promote a policy of wide distribution of prime contracts and subcontracts, even to comparatively high cost marginal producers of unfamiliar products. Congress sought to do everything possible to retain and encourage individual initiative in the world-wide race for the largest and quickest production of the best equipment and supplies. It clung to its faith in private enterprise.
Lichter, 334 U.S. at 767-68, 68 S.Ct. 1294.
When the Korean War began in 1950, Congress enacted the Defense Production Act (“DPA”). Modeled after the Second War Powers Act of 1942, the DPA gave President Truman “robust legal authority ... to force industry to give priority to national sechrity production” and to seize or requisition facilities and equipment. (Docket Entry No. 123-1 ¶ 35). On September 9, 1950, President Truman issued Executive Order 10161, creating the National Production Authority (“NPA”) and the Petroleum Administration for Defense (“PAD”). (Docket Entry No. 123-1 ¶¶ 37-38). Modeled after the PAW, the PAD had authority to issue orders to private companies to establish programs and policies to operate refineries to ensure sufficient oil production for the war effort. (Docket Entry No. 118-1 ¶¶ 120-33; see also Docket Entry No. 118-1 ¶ 121) (observing that “PAD now stands on a footing virtually identical with that enjoyed by the last war’s PAW”). Although plant seizures were possible, PAD did “not wish to see [this] happen” and did not exercise this authority during the Korean War. (Docket Entry No. 123-1 ¶ 46).
2. The Baytown and Baton Rouge Sites
Although refineries and plants throughout the country produced avgas and synthetic rubber during the wars, only the Baytown, Texas and the Baton Rouge, Louisiana sites are relevant here. Exxon’s predecessor, Humble Oil & Refining Company (“Humble”), owned and began operating the Baytown refinery in the 1920s. (Docket Entry No. 118-1 ¶¶ 1-2). The Baton Rouge refinery, located next to the Mississippi River in Baton Rouge, began operating in 1909 under the ownership and control of the Standard Oil Company of Louisiana (“Standard LA”), another Exxon predecessor. (Docket Entry No. 118-1 ¶ 4).
a. Avgas Production at the Baytown and Baton Rouge Sites
In the 1930s, Humble and Standard LA began developing and installing new technologies at Baytown and Baton Rouge to produce high-octane gas and synthetic rubber. (Docket Entry No. 118-1 ¶ 3). By the start of World War II, the sites had either already produced or could produce many of the products they made during the War. (Id.).
After Pearl Harbor, the Defense Supplies Corporation (“DSC”) and Exxon’s predecessors signed three avgas supply contracts for 100-octane avgas production at the Baytown and Baton Rouge refineries. (Docket Entry No. 118-1 ¶¶ 72-74). On January 13, 1942, the DSC and Standard Oil Company of New Jersey (“Standard NJ”) signed a four-year avgas supply contract. Under this contract, Humble and Standard LA would supply 100-octane avgas to Standard NJ, which would supply the federal government. (Docket Entry No. 118-1 ¶ 72). On February 4, 1942, the DSC and Humble also signed a four-year avgas supply contract to sell 100-octane avgas directly to the federal government including from the Baytown refinery. (Docket Entry No. 118-1 ¶ 73). On February 16, 1943, the DSC and Standard NJ signed a third contract incorporating by reference the provisions in the other contracts and applying them to the Baton Rouge refinery. (Docket Entry No. 118-1 ¶ 74). Standard’s contract provided that “[t]he prices, specifications and quantities of [100-octane avgas of specifications other than those originally attached to the contract] shall be determined by negotiation between the parties, and [Standard] shall not be required to deliver such products unless and until an agreement has been reached.” (Docket Entry No. 52-2, ¶ 61 & MIS-00022189-90 (4:ll-cv-01814)). Humble’s avgas contracts with the federal government had almost identical provisions. (See Docket Entry No. 52-2, ¶¶ 67-71 & BAYHIS-00010204 (4:ll-ev-01814)).
Even though these contracts limited profits to 6% to prevent war profiteering, both Standard LA and Humble consistently profited from them. (Docket Entry No. 117-4 ¶ 86). During World War II and the Korean War, both companies applied for and received tax-amortization certificates worth a total of more than $120 million (without adjusting for present-day inflation). (Docket Entry No. 117-4 ¶¶ 82-85). The companies paid their investors dividends during the wars. (Id. ¶ 86).
The avgas contracts did not provide the United States government authority to make personnel decisions at the Baytown or .Baton Rouge refineries. (Id. ¶ 170). The contracts required the companies to provide certificates of inspections from licensed inspectors about product quality and quantity, unless the government waived this requirement and instead inspected the avgas on delivery. (Id. ¶ 172). The government did not operate the equipment at the two refineries, supervise Humble or Standard LA employees in their day-to-day refinery operations, or make personnel or labor decisions. (Id. ¶ 174).
Under the Planned Blending Program, however, the federal government did control the type and amount of crude oil and other raw materials sent to the two refineries. This was part of the approach that treated all the nation’s refineries “as units in one vast national refinery.” (Docket Entry No. 118-1 ¶¶ 59, 89).
Exxon asserts that the United States government “directed” and “controlled” production levels, the production process, and other day-to-day aspects of avgas production at these two refineries through a series of “recommendations” or “directives.” Recommendation 8 is illustrative. It stated that the two refineries should “cease to use” various blending components derived from petroleum, “except for the production and manufacture of 100 octane aviation gasoline or such other aviation gasolines as may hereafter be recommended. ...” (Docket Entry No. 118-1 ¶ 36). Recommendation 16 called for “plans for the use of all sources of the components of’ avgas and stated that such plans “may provide for ... allocation, exchange, license, pooling, loan, sale or lease of crude oil, base stocks, blending agents, processes, and patents, and production, transportation and refining facilities ... whenever and to whatever extent may be necessary to facilitate the maximum production of all grades of aviation gasoline----” (Docket Entry No. 118-1 ¶38). Louis Goldsmith, a high-ranking PAW official during most of World War II, testified that “the government came in and said: Thou shalt produce. If you’re going to produce at all, you’ve got to produce these kinds of products.” (Docket Entry No. 123-1 ¶ 12). A 1943 PAW report laid out seven steps for meeting avgas requirements, including “[f]orc[ing] each refining operating unit to its maximum output.” (Docket Entry No. 118-1 ¶ 60).
Exxon also points to a stream of telegrams PAW sent the Baytown and Baton Rouge refineries communicating the government’s desired production levels for av-gas and other war products under these contracts. (Docket Entry No. 118-1 ¶ 77). In 1946, a government-prepared report acknowledged the industry’s frustrations:
One of the wartime conditions which served to harass the refiners as much, perhaps, as anything else was the frequent need to change yields so as to produce, at all times, the maximum quantities of most-needed products. One day, refiners would have instructions from PAW to increase their yields of gasoline and cut down their yields of fuel oil. On another occasion, the ever-shifting requirements of war might call for exactly the opposite. And, adding to the difficulty, the orders often had to be dispatched in the form of telegrams, calling for the changes to be made virtually overnight.
(Docket Entry No. 118-1 ¶ 55).
The government contends that the “Av-gas Contracts did not confer on the United States any decision-making authority over or role in production” and “[t]he United States simply agreed to buy 100-octane Avgas.” (Docket Entry No. 118-1 ¶ 78). The government’s expert witness, Dr. Jay Brigham, a research historian specializing in twentieth century American political, western, and environmental history, testified that the telegrams were a means of “encouraging greater production, in a sense of rallying the troops,” but were not directives aimed at “engaging in a production or management decision” akin to “saying do it this way or do it that way.” (Docket Entry No. 72-2, Brigham Decl. (4:11-cv-1814); Docket Entry No. 118, Ex. 10, Brigham Depo., Vol. 2 at 367-68 (4:10-cv-2386)).
b. The Synthetic-Rubber, Avgas-Com-ponent, and Toluene-Production Plants at Baytown and Baton Rouge
Beginning in the early 1940s, the government purchased land adjacent to the refineries and leased land within the refineries to build plants to produce synthetic rubber, avgas blending components, toluene (a key component of TNT), and other war materials. (Docket Entry No. 118-1 ¶¶ 134-201). The federal government owned many of these plants, or “Plancors” through the mid-1950s. (Docket Entry No. 102, Ex. 1, Gravel Deck, ¶¶ 4-6). Exxon’s predecessors designed, built, and operated the Plancors under contracts with the federal government. The government regularly inspected the plants and supplied Exxon’s predecessors with the raw materials necessary to maintain production in accordance with the contract requirements.
i. The Baytown Plants
There were four Plancors at the Bay-town site. Three produced synthetic rubber and the other avgas components. (Docket Entry No. 118-1 ¶¶ 134-201). The government bought the land for these Plancors from Humble in 1942 and 1943. (Docket Entry No. 67-1 ¶¶ 145, 152, 159, 167 (4:ll-cv-01814)). One, the Hydrocodi-mer Plancor, was located within the Bay-town refinery and produced an avgas blending stock for the refinery. The Hy-drocodimer Plancor used the refinery’s waste processing facilities and its waste-drainage ditch. (Docket Entry No. 67-1 ¶¶ 167-73 (4:ll-cv-01814)). The other three Plancors were located outside the refinery’s boundary.
Under the contracts with' the federal government, Humble agreed to build the plants and arranged for subcontractors to develop the designs and specifications. (Id. ¶ 146). The government and Humble agreed to the specifications, production levels, and prices of the synthetic-rubber material and avgas components to be produced. If the government unilaterally changed the prices, Humble had the right to withhold future performance until the government either reinstated the agreed price or took other action. (Id. ¶ 148). The parties could also submit their disputes to arbitration. (Id.). The DPC had at least one official stationed in the Bay-town plants. (Docket Entry No. 67-1 ¶ 232 (4:ll-cv-01814)).
The Baytown Plancors generated byproducts and waste, including oil slop, tertiary butyl alcohol, caustic soda, sulphuric acid, copper ammonium acetate aluminum chloride, rubber polymer, naphtha, zinc stearate, lubricating oils, boiler blow-down waste and sludge, sludge from brine purification, spent-caustic acids containing TB.C from butadiene purification, wastewater from carbon black paint, and various other liquid wastes. (Docket Entry No. 67-1 ¶¶ 149, 156, 164 (4:11 — cv—01814)). Some of the Baytown Plancors sent their byproducts to the Baytown refinery, which would use them to produce avgas. (Docket Entry No. 118-1 ¶¶ 205-06). The Baytown Plancors disposed of other byproducts in Scott’s Bay, upstream from where the Baytown refinery discharged its avgas-re-lated waste. (Docket Entry No. 67-1 ¶¶ 150, 165, 246 (4:ll-ev-01814)). In 1946, the government sold the Hydrocodimer Plancor to Humble. The government did not sell the other Plancors to Humble until after the Korean War. (Docket Entry No. 67-1 ¶ 173 (4:ll-cv-01814)).
In addition to the Plancors and avgas refineries, the government relied on another chemical plant adjacent to the Baytown refinery, the Baytown Ordnance Works, to produce toluene. The Ordnance Works accounted for over 40 percent of the nation’s toluene production. (Docket Entry No. 118-1, ¶ 139). The government bought the land for the Ordnance Works from Humble' in February 1941 and leased the land back to Humble until August 1945. (Docket Entry No. 67-1 ¶ 134 (4:11-ev-01814)). Humble and the government entered into a contract under which Humble agreed to construct the Ordnance Works and to furnish “all architectural and engineering services covering the design, preparation of the drawings, plans, specifications and field engineering and supervision necessary for the efficient execution and coordination of the work” there. (Docket Entry No. 67-1 ¶ 135 (4:ll-cv-01814)). The Ordnance Works included toluene-producing facilities, above-ground tanks, military barracks, a mess hall, air raid shelters, perimeter fencing, and four guard watchtowers. (Docket Entry No. 67-1 ¶ 136 (4:ll-cv-01814)). The Ordnance Works generated waste in the form of spent-acid sludge, spent-alumina catalyst, and acidic wastewater effluent. (Docket Entry No. 67-1 ¶ 140 (4:ll-ev-01814)). Some of the spent-alumina catalyst went to three nearby dumps. (Docket Entry No. 61-1 ¶ 142 (4:ll-cv-01814)). Although most of the Or.dnance Works infrastructure was outside the Baytown refinery’s boundary, the Works exchanged byproducts with the refinery, used the refinery’s waste-processing facilities for its wastewaters, and shared a waste-drainage ditch that fed into the Houston Ship Channel. (Id. ¶ 141).
In August 1945, the government conveyed the property associated with the Ordnance Works to Humble, and in February 1946, sold the land back to Humble. (Id. ¶ 144). The Ordnance Works was not used after World War II.
ii. The Baton Rouge Plancors
The government owned six Plancors at the Baton Rouge site. Four produced synthetic rubber and the other two avgas components. (Docket Entry No. 118-1 ¶¶ 134-201). The government bought the land for the Plancors from Standard LA in 1941, 1942, and 1943, and leased the land back to Standard. (Docket Entry No. 67-1 ¶¶ 174, 183, 189, 196, 199 (4:ll-cv-01814)). The contracts between Standard LA and the government were similar to the contracts for the Baytown Plancors. Standard LA agreed to construct the plants and to arrange for subcontractors to develop the designs and specifications. (Id. ¶ 175, 177, 184). The parties agreed to specifications, production levels, and prices of the synthetic rubber material and avgas components. If the government unilaterally changed those prices, Standard LA retained the right to withhold future performance until either reinstatement or other action. (Id. ¶ 148). The government agreed to pay for certain costs, including the “cost of disposing of all waste solids, byproducts, liquids, and gases resulting from manufacturing operations” at the plants. (Docket Entry No. 117-4 ¶¶ 93, 97,138,144,161,165).
The byproducts and waste from these Plancors included oil emulsions, sulphuric acid esters, acetone and isoprene wastes, rubber polymer crumbs, aluminum chloride, copper ammonium acetate, ammonium hydroxide, oily water, and various wastewaters. (Docket Entry No. 67-1 ¶¶ 178, 186 (4:ll-ev-01814)). Some of the Plancors sent their byproducts to the Baton Rouge refinery for use in producing avgas. Some of the Plancors disposed of solid waste in landfills, burn pits, and other land-based disposal units in the western part of the Baton Rouge refinery. (Docket Entry No. 67-1 ¶ 187 (4:ll-cv-01814)). One plant, the Butadiene Plancor, used the refinery’s waste-processing facilities to treat wastewater before discharging it into Callaghan’s Bayou. (Docket Entry No. 67-1 ¶ 179 (4:ll-cv-01814)). Another plant, the Butadiene Conversion Plancor, used the refinery’s wasteprocessing system to treat and dispose of Plancor wastes as well. (Id. ¶ 194). This Plancor had been converted from existing facilities in the Baton Rouge refinery and was located within the refinery boundary. (Docket Entry No. 67-1 ¶ 192). The other Plan-cors disposed of their wastewater into the Monte Sano Bayou, upstream from where the Baton Rouge refinery discharged its avgas-related wastewater. (Docket Entry No. 67-1 ¶¶ 179,165 (4:ll-cv-01814)).
After World War II ended, the government sold some of the Baton Rouge Plan-cors to Exxon’s predecessors. (Docket Entry No. 67-1 ¶ 195, 198, 201 (4:ll-cv-01814)). The government retained ownership of the other Plancors until the Korean War ended and then sold the plants and the land to Exxon’s predecessors. (Docket Entry No. 67-1 ¶¶ 151, 154, 188 (4:11-cv-01814)).
c. The Government’s Involvement in Waste Disposal
The increased avgas, rubber, and toluene production at the Baytown and Baton Rouge sites led to more hazardous waste, which Exxon’s predecessors routed into nearby bodies of water, including the Houston Shipping Channel and the Mississippi River. According to one Humble engineer, Sidney O. Brady, “[d]uring the war it was not possible to devote much technical manpower to the problem of effluent improvement since it was obvious, that saving surface waters was secondary to saving men.” (Docket Entry No. 118-1 ¶ 100). The government agreed that “personnel could not be diverted from more pressing objectives to study complex problems related to waste prevention and treatment — nor could construction materials be secured for such purposes.” (Docket Entry No. 118-1 ¶ 219). But the government did not play a direct role in waste disposal. Neither the avgas-production, Ordnance Works, nor Plancors contracts specified how to dispose of production waste. (Docket Entry No. 66-4 ¶ 126 (4:ll-cv-01814)).
The government did not direct or order either Humble or Standard LA to dispose of the production waste in any particular way. The Plancors contracts between the federal government and the Exxon predecessors did provide that the government would be responsible for the plants’ waste-disposal costs. (Docket Entry No. 117-4 ¶¶-93-96, 138). The government also controlled the allocation of scarce materials that could be used for more environmentally conscious waste disposal. As Louis Goldsmith, a PAW Refinery Division official during the War, testified in a June 1992 deposition in different case, “[n]o-body could build anything without PAW’s concurrence and approval because, for one thing, you couldn’t get any raw materials to build anything unless PAW certified that it was essential.” (Docket Entry No. 118-1 ¶ 61). In April 1943, the WPB instituted the Controlled Materials Plan, which set allocations for materials like steel, aluminum, iron, and copper that were important to the war effort. See J.S. Frey & H.C. Ide, A History of the Petroleum Administration for War, 19kl-191p5 (1946). During most of the War, the PAW required Humble and Standard LA to apply for and obtain approval before constructing new facilities or structures at the Bay-town or Baton Rouge refineries that would require steel, copper, or other “controlled materials.” (Docket Entry No. 118-1 ¶ 93).
On August 4, 1944, the U.S. Engineer Office informed its Chief of Engineers that the Baton Rouge refinery was in violation of the River and Harbor Act, because the refinery’s “enormous operations and rapid expansion” had “overloaded the waste disposal system,” causing daily “disposal of [ ] vast wastes from the refinery [ ] into the Mississippi River.” A842; US-BR006087; see also 33 U.S.C. •§ 407 (forbidding the “[djeposit of refuse in navigable waters”). The U.S. Engineer Office recommended that the PAW and WPB approve a Master Separator, a “key unit” to “end pollution of the Mississippi River.” A843; (see also Docket Entry No. 123-1 ¶ 31). Standard LA had first considered a Master Separator several years before the War began, but had not built it. When Standard LA proposed during the War that the Master Separator and a silt remover should be built at Baton Rouge, the government responded that it could allow only one of the two. Standard LA chose the silt remover because it offered more benefit and required less critical material than the Separator. The government approved Standard LA’s request to construct the silt remover. Although the government lifted the restrictions on steel, copper, and similar materials in 1945, Standard LA waited until the 1950s to build a Master Separator at the Baton Rouge refinery. (Docket Entry No. 123-1 ¶ 34).
In 1953, the U.S. Public Health Service put a team of government engineers and analysts in a mobile laboratory at the Baton Rouge site for eight weeks to investigate and evaluate refinery operations and thé waste they caused. The investigation resulted in a report entitled “A Study of Liquid Wastes From a Gulf Coast Petroleum Refinery.” (Docket Entry No. ,117 — 3 ¶ 52). That report described the refinery’s waste-disposal process, identified the types of contaminants found in the refinery’s effluent discharge and the particular refinery operation responsible for those contaminants, and provided “possible methods ... for control of the wastes.” RA 165; BRC-0027353.
d. Postwar Disposal and Cleanup at Baytown and Baton Rouge
After World War II and the Korean War, Exxon’s predecessors continued to own and manage the refineries and many of the Plancors they had purchased from the government. Exxon currently owns both the Baytown and Baton Rouge sites. In 1995, Exxon reached an administrative settlement with the State of Texas to cleanup hazardous waste at the Baytown site. (Docket Entry No. 67-1 ¶ 289 (4:11— cv-01814)). Exxon alleges that it spent $41.7 million dollars remediating the Bay-town site under this settlement agreement, is currently performing “groundwater remediation and monitoring,” and expects to incur future costs at the site and its nearby waters. (Docket Entry No. 102 at 59 (4:10-cv-2386); Docket Entry No. 67-1 ¶ 293 (4:ll-cv-01814)). Exxon is applying for a Facility Operations Area permit that covers remediation, assessment, monitoring, and other response actions across the Baytown site.
Exxon alleges that it has spent over $30.5 million voluntarily cleaning up waste at the Baton Rouge site. Exxon is currently “performing response actions pursuant to a Corrective Action Order or otherwise required by the Louisiana Department on Environmental Quality,” including remediating groundwater and monitoring several areas across the site. (Docket Entry No. 102, at 54). Exxon contends that it will incur future costs at the Baton Rouge site and nearby waters.
C. Procedural Background
In March 2010, Exxon sued the United States in the Eastern District of Virginia, alleging CERCLA liability for past and future cleanup costs associated with the Baytown site. The United States successfully moved to transfer the case to the Southern District of' Texas. After the transfer, Exxon filed another suit against the United' States in the Southern District of Texas, raising the same legal and similar factual issues for the Baton Rouge site. The United States counterclaimed under CERCLA’s contribution provision, § 113(f)(3)(B), as to both sites. The two cases have proceeded on a coordinated basis. (Docket Entry No. 102 at 12).
At the parties’ joint suggestion, the court bifurcated the pretrial proceedings into two phases. Phase 1 addresses liability and fault allocation; Phase 2 will address other cost issues and issues under the National Contingency Plan. (Docket Entry No. 102 at 13). The parties completed Phase 1 discovery on June 14, 2013 and both parties moved for partial summary judgment. (Docket Entry Nos. 51, 52 (4:ll-cv-01814); Docket Entry Nos. 102, 103 (4:10-cv-2386)). Extensive briefs and oral argument have narrowed the issues presented in the motions and responses.
Exxon seeks summary judgment on its claim that the United States is jointly and severally hable for Exxon’s past and future cleanup costs under CERCLA § 107(a)(2) as a prior operator of both the Baytown and Baton Rouge refineries and as a prior owner and prior operator of the rubber and chemical plants at both sites. In the alternative, Exxon seeks a summary judgment on its claim that the United States is liable in contribution under § 113(f)(3)(B) for Exxon’s past and future response costs at Baytown and under § 107(a) for Exxon’s past and future response costs at Baton Rouge, based on the government’s role as a former owner and operator. Exxon seeks an equitable allocation of responsibility based on a proposed “production-based approach” that applies - both to costs already incurred and to future cleanup costs. (Docket Entry No. 102).
The United States seeks summary judgment on its claim that during the two wartime periods, it did not operate either refinery within the meaning of § 107(a)(2), that Exxon’s predecessors operated both refineries, and that Exxon’s predecessors operated each of the nearby plants and the Ordnance Works. (Docket Entry No. 52-1 (4:ll-cv-01814)). The United States also asks this court to deny Exxon’s motion for summary judgment that the United States operated the plants and decline Exxon’s request to allocate responsibility for future costs because they are too speculative. The United States opposes Exxon’s proposed method of allocation. (Docket Entry No. 52 at 1 (4:11 — cv—01814); Docket Entry No. 103-1, at 1-2 (4:10-ev-2386)).
Each issue and the parties’ arguments are examined against record evidence and the summary judgment standard.
II. The Rule 56 Standard and the Summary Judgment Issues
Summary judgment is appropriate if the moving party “shows that there is no genuine dispute as to any material fact” and that it “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine [dispute] of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir.2005) (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.” Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Although the party moving for summary judgment must demonstrate the absence of a genuine dispute as to any 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 dispute “is material if its resolution could affect the outcome of the action.’” DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir.2005) (quoting Weeks Marine, Inc. v. Fireman’s Fund Ins. Co., 340 F.3d 233, 235 (5th Cir.2003)). “If the moving party fails to meet its initial burden, the motion for summary judgment must be denied, regardless of the nonmovant’s response.” Quorum Health Res., L.L.C. v. Maverick Cnty. Hosp. Dist., 308 F.3d 451, 471 (5th Cir.2002) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc)).
When the moving party has met its Rule 56(a) burden, the nonmoving party cannot survive a summary judgment motion by resting on its pleading allegations. “[T]he nonmovant must identify specific evidence in the record and articulate the manner in which that evidence supports that party’s claim.” Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.2004) (citation omitted). “This burden is not satisfied with ‘some metaphysical doubt as to the material facts,’ by ‘conclusory allegations,’ by ‘unsubstantiated assertions,’ or by ‘only a “scintilla” of evidence.’ ” Little, 37 F.3d at 1075 (citations omitted). In deciding a summary judgment motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
When the parties cross-move for summary judgment, the court must review “each motion independently, viewing the evidence and inferences in the light most favorable to the nonmoving party.” Mid-Continent Cas. Co. v. Bay Rock Operating Co., 614 F.3d 105, 110 (5th Cir.2010) (internal quotation marks and alteration omitted). Nevertheless, “[i]f a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e)(2).
The parties’ cross-motions present many liability and fault issues. But they can be organized into the following three categories:
1.Whether CERCLA’s contribution provision, 42 U.S.C. § 9613(f)(3)(B), is the exclusive mechanism for Exxon to recoup cleanup costs for the Baytown site, and if so, whether its claim under that provision is timely.
2. Whether the United States is liable as a prior operator of the refineries and the chemical plants.
3. Whether Exxon is entitled to joint and several liability or to an equitable allocation of present and future costs.
III. Exxon’s § 113(f)(3)(B) Claim to Recover Its Costs to Cleanup the Baytown Site
The parties dispute whether Exxon must bring its CERCLA claim for the Baytown site as a contribution action under § 113(f)(3)(B). The answer may determine whether Exxon timely asserted its CERCLA claim for the Baytown site cleanup costs.
In 1995, Exxon signed two administrative consent orders with the State of Texas for the Baytown site. The United States argues that these agreements are administrative settlements under § 113(f)(3)(B) and that Exxon cannot seek to recover the costs incurred under those settlements under § 107. Instead, according to the government, § 113(f) provides the exclusive remedy for Exxon to recover money it has already spent cleaning up the Baytown site. Exxon disagrees, arguing that the settlement with the State of Texas had nothing to do with CERCLA, but rather only with state-law regulatory violations. As a result, according to Exxon, the agreement is not an administrative settlement under § 113(f)(3)(B). Exxon also argues that even if the administrative settlement did limit its remedy under CERCLA, recovery under § 107 is still available for any costs Exxon voluntarily incurred from 1986 to 1995, before entering into the agreement with the State of Texas, or for costs incurred after the agreement that are outside its scope.
As explained below, the court concludes that: (1) § 113(f) is the exclusive remedy for a PRP that has incurred cleanup costs in response to an administrative settlement; (2) Exxon’s agreements with the State of Texas qualify as administrative settlements under § 113(f); (3) Exxon may not use § 107(a) to recoup the costs it voluntarily paid that predated its agreement with Texas or fell outside its scope; and (4) Exxon’s § 113(f)(3)(B) contribution claim is timely, at least for purposes of summary judgment.
A. Whether § 113(f)(3)(B)’s Contribution Provision is the Exclusive Remedy for Exxon to Seek the Cleanup Costs It Incurred in Response to the Administrative Settlements
In 1986, Congress amended CERCLA to provide an express contribution right for PRPs that have been found liable under CERCLA or that have entered into certain administratively or judicially approved settlements. Under § 113(f)(3)(B), a PRP that “has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement may seek contribution from any person who is not party to a settlement referred to in [Section 113(f)(2) ].” ■ 42 U.S.C. § 9613(f)(2)(B). Under § 113(f)(3), a settling PRP may seek contribution from other, nonsettling PRPs. Id. at § 9613(f)(3)(B).
Until 2007, many courts held that PRPs could not sue under § 107(a) and that § 113(f) was their only remedy for contribution. In 2007, the Supreme Court made clear that PRPs may bring an action for cost recovery under § 107 if they have “incurred cleanup costs.” United States v. Atlantic Research Corp., 551 U.S. 128, 138, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007). At the same time, the Court emphasized the “complementary yet distinct nature of the rights established in §§ 107(a) and 113(f).” Id. “The remedies available in §§ 107(a) and 113(f) complement each other by providing causes of action to persons in different procedural circumstances.” Id. at 139, 127 S.Ct. 2331 (quotations omitted). When a PRP “pays to satisfy a settlement agreement or a court judgment,” that PRP “may pursue § 113(f) contribution.” Id. 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).” Id. Even though this PRP is “eligible to seek contribution” under § 113(f), in that procedural circumstance the PRP “cannot simultaneously seek to recover the same expenses under § 107(a).” Id.
The Supreme Court did not address every “different procedural circumstance! ]” that might trigger different remedial options under § 107(a) or § 113(f). The Court did recognize another situation in which the distinction between §§ 107 and 113 might blur. If a PRP “sustainfs] expenses pursuant to a consent decree,” “the PRP does not incur costs voluntarily but does not reimburse the costs of another party.” The Court declined to resolve
whether these compelled costs of response are recoverable under § 113(f), § 107(a), or both. For our purposes, it suffices to demonstrate that costs incurred voluntarily are recoverable only by way of § 107(a)(4)(B), and costs of reimbursement to another person pursuant to a legal judgment or settlement are recoverable only under § 113(f).
Id.
The government argues that § 113(f)(3)(B) provides the exclusive remedy for Exxon, a PRP that has incurred expense costs under administrative settlements. CERCLA’s text, structure, history, and the position of every circuit court to address this issue since Atlantic Research lead this court to agree.
“Statutes must ‘be read as a whole.’ ” Atlantic Research, 551 U.S. at 135, 127 S.Ct. 2331 (quoting King v. St. Vincent’s Hosp., 502 U.S. 215, 221, 112 S.Ct. 570, 116 L.Ed.2d 578 (1991)). The 1986 CERCLA amendment adding an express contribution remedy laid out how PRPs could seek contribution. Section 113(f) allows courts to use equitable factors to allocate response costs among liable parties. See 42 U.S.C. § 9613(f)(1). Second, § 113(f) protects parties that have previously settled with the government from future contribution actions, Id. § 9613(f)(2). In some circumstances, the statute of limitations under § 113 is shorter than under § 107(a) actions. Cost-recovery actions under § 107(a) may be brought within six years, but certain contribution actions under § 113 must be brought within three years. See id. § 9613(g)(2) & (g)(3). If PRPs could simply pick either § 107(a) or § 113(f) to recover cleanup costs incurred in responding to an administrative settlement, these limits on § 113(f) actions (and the 1986 amendment) would be superfluous. See Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 167, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004) (recognizing, in the context of CERCLA, “the settled rule that [courts] must, if possible, construe a statute to give every word some operative effect”); Stone v. INS, 514 U.S. 386, 397, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (“When Congress acts to amend a statute, [courts] presume it intends its amendment to have real and substantial effect.”); Bernstein v. Bankert, 733 F.3d 190, 205-06 (7th Cir.2013) (“‘[T]o allow [a qualifying contribution plaintiff] to proceed under § 9607(a) would in effect nullify the SARA amendment and abrogate the requirements Congress placed on contribution claims under § 9613.’ ” (quoting Niagara Mohawk, 596 F.3d at 128)). The statute’s text, structure, and history support the conclusion that § 113(f) is the exclusive remedy for PRPs that incur cleanup costs in responding to administrative settlements.
Every court of appeals considering the question the Supreme Court left open in Atlantic Research has reached the same conclusion. See NCR Corp. v. George A. Whiting Paper Co., 768 F.3d 682, 691 (7th Cir.2014) (“[A]lthough a strict reading of the phrase ‘necessary costs of response’ in section 107(a) might suggest that parties who pay pursuant to an enforcement action might be able to sue under section 107(a), this court — like our sister circuits— restricts plaintiffs to section 113 contribution actions when they are available.”); Hobart Corp. v. Waste Mgmt. of Ohio, Inc., 758 F.3d 757, 767 (6th Cir.2014) (concluding that “PRPs must proceed under § 113(f) if they meet one of that section’s statutory triggers,” including incurring costs in response to an administrative settlement); Solutia, Inc. v. McWane, Inc., 672 F.3d 1230, 1235-37 (11th Cir.2012) (per curiam) (upholding the dismissal of the PRPs’ § 107 claims when the PRPs had entered into a consent decree imposing cleanup obligations); Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594, 602-04 (8th Cir.2011) (finding that a PRP that had agreed to administrative settlements imposing cleanup obligations and that had been sued by EPA under §§ 106 and 107 was barred from bringing § 107(a) claims against other PRPs); Agere Sys. Inc. v. Advanced Envtl. Tech. Corp., 602 F.3d 204, 227-29 (3d Cir.2010) (PRPs that entered consent decrees with EPA are limited to seeking contribution under § 113(f)); Niagara Mohawk Power Corp., 596 F.3d 112, 127-28 (2d Cir.2010) (a PRP that entered into a consent order with a state is limited to a § 113(f)(3)(B) contribution claim).
The cases Exxon cites—Bernstein v. Bankert, 733 F.3d 190, 207-15 (7th Cir.2013), and W.R. Grace & Co.-Conn. v. Zotos Int'l Inc., 559 F.3d 85, 92-93 (2d Cir.2009) — do not support a different result. Both cases allowed PRPs that had entered into agreements with state regulators to maintain cost-recovery actions under § 107(a), but on a wholly different basis than Exxon contends. Exxon’s reliance on these cases conflates two questions. The first question is whether a party with a § 113(f)(3)(B) claim may bring a separate claim under § 107(a). The second question is whether a party without a § 113(f)(3)(B) claim may maintain a § 107(a) action. In both Bernstein and W.R. Grace, the court concluded that the agreements did not qualify as “administrative settlements” under § 113(f)(3)(B), a question addressed in the next part of this opinion. Because there was no administrative settlement, the plaintiffs in these cases could not bring §■ 113(f)(3)(B) contribution actions. Bernstein addressed two separate agreements, only one of which qualified as an administrative settlement under § 113(f)(3)(B). The Seventh Circuit concluded that if § 113(f)(3)(B) was available, it was the exclusive remedy for seeking costs incurred in responding to the qualifying administrative settlement agreement. See Bernstein, 733 F.3d at 206 (“[W]e agree with our sister circuits that a plaintiff is limited to a contribution remedy when one is available.”); see also NCR Corp., 768 F.3d at 691 (describing Bernstein and observing that “[t]he earlier order [in that case] dealt with a project on which the PRP had completed work. The PRP was therefore limited to a contribution action under section 113(f) to recover its costs.”).
In W.R. Grace, the Second Circuit concluded that the consent order did not resolve liability under CERCLA and was not an administrative settlement under § 113(f)(3)(B). See W.R. Grace, 559 F.3d at 91 (“The Consent Order at issue here did not resolve CERCLA claims that could be brought by the federal government.”). The court stated that “[t]he relevant inquiry with respect to section 107(a) is whether the party undertook the remedial actions without the need for the type of administrativ