MEMORANDUM OPINION
KETANJI BROWN JACKSON UNITED STATES DISTRICT JUDGE
On
September 30, 2018, this Court issued an Order denying a
motion to dismiss that the United States had filed in the
instant matter, which is a case that involves cost-recovery
and contribution claims that the government of Guam has
brought against the United States. See Gov't of Guam
v. United States, 341 F.Supp.3d 74 (D.D.C. 2018). (See
also Order, ECF No. 37.) Guam's complaint maintains that,
“because the United States substantially contributed to
the environmental contamination at [Guam's] Ordot
Landfill, the United States should pay the full $160, 000,
000 cost of cleaning up the dump under [the Comprehensive
Environmental Response, Compensation, and Liability Act's
(‘CERCLA's')] section 107(a)'s
cost-recovery mechanism, or should at least pay its fair
share of the cleanup costs under CERCLA's section
113(f)(3)(B)'s contribution mechanism[.]”
Id. at 76-77 (internal citations
omitted).[1] In its motion to dismiss, the United
States argued that (1) Guam cannot proceed on its section
107(a) cost-recovery claim, because Guam “resolved its
liability for th[e] cleanup” as part of a past
settlement agreement with the United States and, as a result,
a section 113(f)(3)(B) contribution claim is the exclusive
CERCLA remedy available to Guam at present, Id. at
80; and (2) Guam cannot proceed on any section 113(f)(3)(B)
contribution claim against the United States because such a
claim is now time-barred, see Id. This Court
disagreed with the proposition that Guam is precluded from
bringing a section 107(a) cost-recovery claim, based on the
plain language of the settlement agreement and the
Court's interpretation of section 113(f)(B)(3), and thus,
the Court denied the United States' Rule 12(b)(6) motion.
See Id. at 97 (concluding that “Guam's
right to contribution under section 113(f)(3)(B) has not yet
been triggered, which means that it is not precluded from
proceeding via a cost-recovery action under section
107(a)”).
Before
this Court at present is another motion that the United
States has presented for this Court's consideration: a
motion to certify for interlocutory appeal this Court's
Order denying the motion to dismiss, in accordance with
section 1292(b) of Title 28 of the United States Code, and to
stay all district court proceedings pending a decision by the
D.C. Circuit on appeal. (See Mem. in Supp. of Def.'s Mot.
to Certify Dismissal Orders for Interlocutory Appeal
(“Def.'s Mem.”), ECF No. 49-1, at
6.)[2]Because this Court finds that there is a
substantial ground for difference of opinion regarding at
least one controlling issue of law that the United States has
identified, and that allowing the United States to appeal at
this stage in the litigation could materially advance the
litigation, see 28 U.S.C. § 1292(b), it concludes that
the legal standard for certifying the prior Order for
interlocutory appeal has been met. The Court further finds
that a stay of the district court proceedings would benefit
judicial economy and would not subject the parties to
hardship during the pendency of the requested appeal.
Therefore, the United States' motion for certification
will be GRANTED, and all district court proceedings will be
STAYED pending the D.C. Circuit's resolution of the
United States' appeal. A separate Order consistent with
this Memorandum Opinion will follow.
I.
The
facts and procedural history of this case are recited in full
in the Memorandum Opinion that this Court issued in
conjunction with its Order denying the United States'
motion to dismiss. See Gov't of Guam, 341 F.Supp.3d at
78-81. As relevant to the instant motion, that Opinion notes
that “Guam served as a central base of operations for
the United States Navy in the South Pacific” for the
better part of 50 years, beginning in 1898, Id. at
76 (citation omitted), and that during this period of use,
the Navy “established the Ordot Landfill to dispose of
the waste being generated on the island[, ]”
Id. at 78 (citation omitted). When the United States
transferred ownership of the landfill to the newly-formed
civilian government of Guam in 1950, Guam “continued to
operate the Ordot Landfill as a dump until the facility was
officially closed in 2011.” Id. (citation
omitted). Notably, even while it was in operation, the Ordot
Landfill had more than its share of maintenance issues;
indeed, “[t]he [Environmental Protection Agency
(‘EPA')] ha[d] been aware of . . . environmental
problems with the Ordot Landfill for many decades[, ]”
and the EPA “regularly ordered Guam to devise a
feasible plan for containing and disposing of the waste at
the landfill[.]” Id. at 78-79.
In
2002, “[t]he EPA finally filed a lawsuit against
Guam”; the agency specifically claimed that
“leachate was discharging from the Ordot Landfill into
the Lonfit River and two of its tributaries in violation of
the [Clean Water Act].” Id. at 79 (internal
quotation marks and citation omitted). To resolve this legal
action, in 2004, Guam and the EPA “entered into a
consent decree” that “required Guam to pay a
relatively modest civil penalty; mandated that Guam close the
Ordot Landfill and cease the discharge of pollutants into the
Lonfit River; and required Guam to construct a new municipal
landfill to replace the Ordot Landfill.” Id.
(internal citations omitted). “[T]he Consent Decree
[also] specifically provided that the agreement was based on
the pleadings, before taking testimony or adjudicating any
issue of fact or law, and without any finding or admission of
liability against or by the Government of Guam.”
Id. (alteration, internal quotation marks, and
citation omitted). Furthermore, the written agreement
expressly stated that “nothing in this Consent Decree
shall limit the ability of the United States to enforce any
and all provisions of applicable federal laws and regulations
for any violations unrelated to the claims in the [EPA's
] Complaint or for any future events that occur[.]”
Id. (alteration and citation omitted).
Following
entry of the 2004 Consent Decree, “remediation and
closure work began[, ]” at Guam's expense.
Id. at 80 (alteration, internal quotation marks, and
citation omitted). At present, “Guam expects costs of
remediation to exceed approximately $160, 000, 000.”
Id. (internal quotation marks, ellipsis, and
citation omitted). “Guam filed the instant CERCLA
action against the United States [in 2017] to recoup its
landfill-closure and remediation costs.” Id.
(See also Am. Compl., ECF No. 7.)[3]
A.
The
United States filed a motion to dismiss Guam's complaint
under Federal Rule of Civil Procedure 12(b)(6) on November
27, 2017. (See Def.'s Mot. to Dismiss, ECF No. 27.) In
that motion, the United States maintained that Guam cannot
state a claim for either cost recovery or contribution under
the CERCLA as a matter of law. (See Id. at 2-3.) The
United States reasoned, first, that because “Guam
resolved its liability for that cleanup in the 2004 Consent
Decree, ” it “cannot recover its costs for
remediating the Ordot Landfill under section 107(a)[.]”
Gov't of Guam, 341 F.Supp.3d at 80 (citation omitted);
see also Id. (quoting the United States as arguing
that “the exclusive CERCLA remedy for the costs a
liable party is compelled to incur pursuant to a
judicially-approved settlement with the United States”
is a contribution claim under section 113(f)(3)(B)). The
United States then asserted that Guam cannot maintain a
contribution claim under section 113(f)(3)(B) either, because
the statute of limitations has long run on any such claim.
See Id. (explaining the United States' view that
“Guam [has] waited far too long after settling its
liability in 2004 to bring its alternative claim for
contribution”).
In
response, Guam argued that it was legally entitled to
maintain a full cost-recovery action under CERCLA section
107(a) because
its right to maintain a contribution action under section
113(f)(3)(B) was never triggered [given that] Guam had not
‘resolved its liability for a response action or for
some or all of the costs of such action in the context of
‘an administrative or judicially approved
settlement' as the text of section 113(f)(3)(B) requires.
Id. (citation, ellipsis, and alterations omitted).
To be specific, “Guam insist[ed] that the parties
‘did not resolve response cost liability' in the
2004 Consent Decree, ” given that “the provisions
of that agreement left Guam fully exposed to future liability
under CERCLA.” Id. (citation omitted). Guam
also asserted that “because the 2004 Consent Decree was
‘expressly limited to the [Clean Water Act],' . . .
it does not qualify as a ‘settlement agreement'
giving rise to a cause of action for contribution under
CERCLA's section 113(f)(3)(B).” Id. at 81
(citations omitted).
B.
In
ruling on the United States' motion to dismiss, this
Court acknowledged that “cost-recovery claims under
CERCLA section 107(a) and contribution claims under CERCLA
section 113(f)(3)(B) are exclusive of one another, such that
Guam is permitted to proceed against the United States for
full cost recovery under section 107(a) only if Guam's
right to contribution under section 113(f)(3)(B) has not been
triggered.” Id. at 84 (footnote omitted). The
Court therefore assessed “whether the 2004 Consent
Decree resolved Guam's liability for the response action
or response costs that Guam undertook with respect to the
Ordot Landfill and also qualifies as a ‘settlement'
within the meaning of section 113(f)(B)(3) [of
CERCLA].” Id. (internal quotation marks,
citation, and alterations omitted).
The
Court's resolution of this issue rested on several
significant legal determinations. First, the Court concluded
that liability “is not ‘resolved' simply and
solely because interested parties have ‘signed a
settlement agreement' concerning the response actions
that will be taken at the site, or because one or more
[potentially responsibly parties (‘PRPs')] have
‘cut a check' made payable to the United
States.” Id. at 85 (alteration and citations
omitted). Rather, “‘the nature, extent, or amount
of a PRP's liability must be decided, determined, or
settled, at least in part, by way of agreement with the
EPA.'” Id. (quoting Bernstein v.
Bankert, 733 F.3d 190, 212 (7th Cir. 2013)) (emphasis in
original). The Court then explained that in order to
determine whether an agreement has “decided,
determined, or settled the nature, extent, or amount”
of a party's liability, Id. (internal quotation
marks and citation omitted), “a court must ‘look
to the specific terms of the agreement' and ascertain
whether, based on the provisions in the settlement agreement,
the parties intended to resolve the plaintiff's liability
within the meaning of section 113(f)(3)(B)[, ]”
Id. (quoting Fla. Power Corp. v. FirstEnergy
Corp., 810 F.3d 996, 1001 (6th Cir. 2015)).
Significantly
for present purposes, the Court also specifically noted that
“the courts of appeals diverge . . . with respect to
how one best interprets agreement language that expressly
eschews liability and reserves the right to sue, ”
Id. at 86 (emphasis in original), and it joined the
Sixth and Seventh Circuits in concluding that
“contracts containing non-admissions of liability,
broad reservations of rights, and conditional covenants not
to sue do not resolve liability[, ]” Id.
(capitalization altered). Turning to the settlement agreement
at issue in this case-which contained a “clear
disclaimer of liability, [a] conditional release of liability
for the claims the United States had brought against Guam in
a [Clean Water Act] complaint, and two complementary
reservation-of-rights clauses[, ]” Id. at
92-this Court ultimately “conclude[d] ...