News & Insights

United States Supreme Court Will Hear A Case Seeking Guidance On The Applicable Statute Of Limitations In A Cercla Contribution Case

The U.S. Supreme Court has agreed to hear litigation concerning which section of the law, and their different statutes of limitations, parties must use when seeking to recoup Superfund cleanup costs.  The case, Guam v. United States, Case No. 20-382, is slated to be heard in the Court’s upcoming term.

In 2017, Guam sued the Navy, seeking to recover almost $160 million in closure and remediation costs. It brought a cost recovery claim under Section 107(a) of the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA), and a contribution claim under section 113(f).  The United States moved for dismissal, arguing a 2004 EPA consent decree resolved Guam’s liability for the response action, and that a section 113 contribution action therefore constituted Guam’s exclusive CERCLA remedy.  Since Section 113 imposes a three-year statute of limitations, the U.S. argued Guam was barred from pursuing that claim. 

The District Court disagreed, concluding the 2004 EPA consent decree failed to resolve Guam’s liability for the clean-up, and allowed the territory to proceed under section 107, which carries the longer, six-year statute of limitation.  The U.S. filed an interlocutory appeal. 

On appeal, the D.C. Circuit reversed, joining three other circuits, first determining a potentially responsible party (PRP) who may bring a section 113 contribution action must bring such an action rather than a section 107 claim for cost recovery.  Acknowledging the circuit split, the Court held a settlement need not be CERCLA-specific to trigger a section 113 contribution action.  Turning to the terms of the 2004 Consent Decree, the D.C. Circuit concluded the agreement triggered a contribution action and the three-year statute of limitations had expired.

Guam asked the Supreme Court to grant certiorari on two questions: (1) whether a non-CERCLA settlement can trigger a contribution claim under CERCLA Section 113(f)(3)(B), and (2) whether a settlement that expressly disclaims any liability determination and leaves the settling party exposed to future liability can trigger a contribution claim under CERCLA Section 113(f)(3)(B).

Guam argued that the circuit courts are split on both questions, and because the 2004 EPA consent decree failed to trigger section 113 contribution, it can proceed with its section 107 claim. The United States conceded a “lopsided” circuit split on the first question, but contested the presence of a split on the second question, which it characterized as a “case-specific dispute about the interpretation of a particular consent decree.” The Supreme Court granted the petition.

The case will give the Court a chance to address the line between CERCLA section 107 cost recovery claims and section 113 contribution claims, which has consistently confused litigants and the lower courts. We urge our clients that are potentially subject to CERCLA actions to closely follow this case as the U.S. Supreme Court hears oral argument and eventually issues a decision.