Express Resolution of CERCLA Liability Not Necessary to Trigger CERCLA Contribution Statute of Limitations

    November 2015

    With all of the briefing completed, the Ninth Circuit Court of Appeals is all set to resolve a dispute between Asarco LLC (Asarco) and the Atlantic Richfield Company (ARCO) over whether a judicially approved settlement of environmental liabilities that does not include express reference to the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. section 9601 et seq. (CERCLA) can trigger the statute of limitations for CERCLA contribution claims. Asarco LLC v. Atlantic Richfield Company, Case No. 14-35723 (9th Cir. 2015). The Asarco appeal arises from a decision by the District Court in Montana which held that Asarco had waited too long to bring its CERCLA contribution claim against ARCO. Asarco LLC v. Atlantic Richfield Company, 73 F. Supp. 3d 1285 (D. Mont. 2014). On appeal, Asarco is principally arguing that a judicially approved consent decree from 1998 (1998 decree) entered into between Asarco and the U.S. Environmental Protection Agency (EPA), which stemmed from environmental liabilities alleged under the Resource Conservation and Recovery Act (RCRA) and the Clean Water Act (CWA), could not serve to trigger the statute of limitations for a CERCLA contribution claim because there is no reference to CERCLA or resolution of CERCLA liability in the 1998 consent decree.

    On August 24, 2014, in ruling on an ARCO motion for summary judgment, the district court considered the foregoing issue on triggering the statute of limitations for Asarco’s contribution claim arising out of CERCLA. In its decision, the district court recognized that the foregoing issue “has not been addressed by the Ninth Circuit Court of Appeals, and in the two circuits which have addressed this issue, the Second and Third, conflicting conclusions were reached.” Asarco, 73 F. Supp. 3d at 1286. These circumstances, i.e., a circuit split and an issue of first impression for the Ninth Circuit, present the parties with a unique opportunity to resolve a novel issue that could potentially cost the losing party up to $99M—a substantial sum by any measure.