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The Ninth Circuit
Court of Appeals vacated a District Court’s summary judgment in favor of the
defendant in a contribution action under CERCLA, finding mining company Asarco
timely brought a claim to recoup compensation from Atlantic Richfield. Asarco, LLC v. Atlantic Richfield Co.,
No.14-35723 (9th Cir., August 10, 2017).
CERCLA § 113(f) provides that
after a party has, pursuant to a settlement agreement, resolved its liability
for a “response” action or the costs of such an action, that party may seek
contribution from any person who is not a party to the settlement.
The Court’s opinion
addresses three issues of first impression in the Ninth Circuit regarding
contribution litigation under CERCLA. First,
the Court agreed with the District Court’s holding that a settlement agreement
entered into under an authority other than CERCLA may give rise to a CERCLA
contribution action. Second, the Court
upheld the District Court’s finding that the settlement agreement, which was entered
into pursuant to a 1998 RCRA Decree, qualified as a “response” under
However, the Court reversed
the District Court’s finding that the claims were barred by three-year statute
of limitations. The Court found Asarco
did not resolve its liability for response costs at the site pursuant to the
1998 RCRA Decree with “certainly and finality.” As such, Asarco could not have brought its contribution
action in 1998, and the statute of limitations did not begin to run with entry
of the 1998 RCRA Decree. The Court found that a later, 2009 CERCLA decree
entered into between Asarco and the United States in Asarco’s bankruptcy
proceedings did resolve Asarco's liability.
Since Asarco filed its contribution action within the three-year
limitations period, it is timely.
In reaching its decision, the Court noted the terms of the
RCRA Decree resolved liability for civil penalties only and reserved all
authority of the U.S. to take other actions under CERCLA and other
statutes. The Court, contrary to
decisions in the Sixth and Seventh Circuits, also held that a party’s
non-admission of liability does not prevent a finding of certainty and
finality. While the Court’s opinion
clarified what it would require by way certainty and finality, the test of
certainty and finality will require a case by case analysis.