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Ninth Circuit Holds Historic RCRA Settlement Did Not Trigger 3-Year Statute of Limitations for CERCLA 113 Contribution Claims
The federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), better known as Superfund, provides private parties with two types of claims to recover costs associated with investigating and remediating contaminated sites – a cost recovery claim under CERCLA Section 107(a), 42 U.S.C. § 9607(a), and a contribution claim under Section 113(f), 42 U.S.C. § 9613(f). A party has a claim for contribution under CERCLA Section 113(f)(3)(B) if that party has “resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement.” A party can therefore settle its liability for a contaminated site with the EPA or a state government, and then seek to recover a portion of the costs of that settlement from other potentially responsible parties who contributed to the contamination at the site. But, CERCLA imposes a 3-year statute of limitations on Section 113 contribution actions, which begins to run from the date of entry of the administrative or judicially approved settlement. While at first, this may appear to be a cut-and-dry statute of limitations, there is ample case law exploring the nuances of what it means for a party to have “resolved” its liability with the government such that the 3-year statute of limitations begins to run. Last month, the United States Courts of Appeals for the Ninth Circuit added to that growing body of case law, in Asarco, LLC v. Atlantic Richfield Co., 866 F.3d 1108 (9th Cir. 2017).
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