FILED
NOT FOR PUBLICATION
OCT 15 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TDY HOLDINGS, LLC; TDY No. 19-55804
INDUSTRIES, LLC,
D.C. No.
Plaintiffs-Appellants, 3:07-cv-00787-CAB-BGS
v.
MEMORANDUM*
UNITED STATES OF AMERICA; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Argued and Submitted October 6, 2020
Seattle, Washington
Before: GRABER and W. FLETCHER, Circuit Judges, and FREUDENTHAL,**
District Judge.
Plaintiff TDY Holdings, LLC, timely appeals from the district court’s
allocation of remediation costs between TDY and the government, in this action
under the Comprehensive Environmental Response, Compensation, and Liability
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Nancy D. Freudenthal, United States District Judge for
the District of Wyoming, sitting by designation.
Act of 1980, 42 U.S.C. §§ 9601–75. Reviewing for abuse of discretion the district
court’s selection of factors and for clear error in its allocation of costs according to
those factors, Boeing Co. v. Cascade Corp., 207 F.3d 1177, 1187 (9th Cir. 2000),
we affirm.
1. The district court did not violate our mandate in TDY Holdings, LLC v.
United States, 885 F.3d 1142 (9th Cir. 2018) ("TDY I") because, on remand, the
district court (1) considered the parties’ course of dealings; (2) permissibly
analyzed and applied United States v. Shell Oil Co., 294 F.3d 1045 (9th Cir. 2002),
and Cadillac Fairview/California, Inc. v. Dow Chemical Co., 299 F.3d 1019 (9th
Cir. 2002); and (3) allocated at least some cleanup costs to the government. TDY
Holdings, LLC v. United States, 372 F. Supp. 3d 1091, 1098–99, 1101 (S.D. Cal.
2019) ("TDY II"). Read holistically, our prior opinion did not require that the
district court’s reconsideration of the parties’ course of dealings and our precedents
reach a predetermined result. See United States v. Alpine Land & Reservoir Co.,
983 F.2d 1487, 1492 (9th Cir. 1992) (holding that a district court on remand is to
read our opinion "in its entirety" and in "context").
2. In allocating costs on remand, the district court did not abuse the "broad
discretion" that we emphasized in our prior opinion. TDY I, 885 F.3d at 1149.
The district court permissibly tailored the government’s allocation to approximate
2
only cleanup costs for contamination that was inherent to the use of chemicals that
the government had required. See id. at 1148 (holding that the district court
properly considered "that TDY’s own repair and maintenance practices caused the
contamination").
Thus, the district court did not clearly err in allocating to the government 5%
of the cleanup costs linked to chromium, because it permissibly found that "micro-
quantities" of contamination through aeration represented the only inherent
contamination from chromium’s mandated use. TDY II, 372 F. Supp. 3d at 1100;
see also ASARCO LLC v. Atl. Richfield Co., No. 18-35934, 2020 WL 5509748, at
*7 (9th Cir. Sept. 14, 2020) (holding that a district court "need not allocate
response costs to a mathematical certainty, and . . . [can] apply general principles
of fairness and equity in deciding whether to err on the side of over- or
under-compensation"). Similarly, the district court did not clearly err in allocating
to the government 10% of the cleanup costs for a groundwater plume linked to
chlorinated solvents, because it permissibly found that the sewer
dumping—authorized by a municipal permit before modern environmental laws’
passage—was "most equitably related" to the "government’s role." TDY II, 372 F.
Supp. 3d at 1100–01. Finally, the district court did not clearly err in allocating to
TDY all of the cleanup costs linked to polychlorinated biphenyls, because the
3
government did not mandate their use. Although a reasonable jurist may have
reached a different allocation, discretion’s very nature allows for such divergent
approaches.
3. The district court did not clearly err in allocating to TDY all cleanup
costs for contamination that occurred after 1979, when the government ceased to
own equipment at TDY’s plant. To the extent that the district court erred in
concluding that sovereign immunity shielded the government from post-1979
costs, id. at 1099 n.5, any error was harmless. We already had allowed the district
court to consider how long the government had owned equipment at the site as an
equitable factor. TDY I, 885 F.3d at 1148. The district court also gave no
indication that it would have extended the government’s liability if only it believed
that it could have done so.
4. Finally, the district court did not clearly err when it allocated to TDY all
post-2012 remediation costs. All remediation for which the government was
responsible was completed or very nearly completed by the end of 2012, the year
of trial.
AFFIRMED.
4