On August 8, 2014, the Eighth Circuit affirmed dismissal of Asarco LLC’s Superfund cost recovery action against Squire Patton Boggs client Union Pacific ruling that Union Pacific’s prior settlement with the US Environmental Protection Agency for the Omaha Lead Superfund Site protected it from any obligation to Asarco, leaving the former bankrupt mining company responsible for paying US$214 million towards Superfund cleanup.
The courts determined that a prior US$25 million settlement between Union Pacific and the EPA protects the company from any response cost contribution actions concerning the Superfund site in Omaha, Nebraska. It held that “Asarco’s claims are prohibited contribution claims even though some are disguised—like wolves ‘clad, so to speak, in sheep’s clothing,’…as breach of contract claims.” Contrary to Asarco’s argument that the tolling agreement preserved its contribution claims unaltered, the Court found that the agreement simply extended Asarco’s ability to pursue its contribution claim “(unsurprisingly given the title of the agreement)”—by two years. Further, because the tolling agreement did not include a “clear and unequivocal” waiver of the statutory contribution protection, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) protects the company from further claims related to pollution costs at the Omaha site.
The Squire Patton Boggs team representing Union Pacific was led by Carolyn McIntosh. Union Pacific’s team included Jason Grams and William Lamson Jr. of Lamson & Dugan; Norton Colvin Jr. of Colvin, Chaney, Saenz & Rodriguez, LLP, Debra Baker, Michael Connelly, and Ernest Wotring of Connelly, Baker, Wotring LLP, and Maureen Mahoney of Latham & Watkins, LLP.
In late June, the Union Pacific team, again led by Squire Patton Boggs lawyer Carolyn McIntosh and included Christa Rock, Maxine Martin, Weslynn Reed, and Charlotte Scull won another victory for Union Pacific, who along with Pepsi, avoided reimbursing Asarco any portion of a US$1.5 million pollution settlement with the US EPA for an area in Denver known as the Vasquez site. In that case, the US District for Colorado and the Tenth Circuit held that Asarco’s response cost contribution claims were time-barred and it had no subrogation rights. The Tenth Circuit ruled Asarco had to cover costs for all environmental-related damages.