November 01, 2015

In Brief

Theodore L. Garrett

CERCLA

ASARCO, LLC v. Celanese Chemical Co., 792 F.3d 1203 (9th Cir. 2015).
The Ninth Circuit rejected an argument by ASARCO that the Superfund statute of limitations for contribution claims could be restarted by ASARCO’s subsequent bankruptcy settlement. ASARCO’s predecessor owned a smelter in California and leased a portion of the property containing a sulfur dioxide plant to CNA Holdings, LLC’s predecessor. In 1989, ASARCO settled a cost-recovery lawsuit by a subsequent purchaser who incurred response costs, Wickland Oil Company, and also with the California Lands Commission in its capacity as a former owner of part of the site. Some 19 years later, in 2008, ASARCO agreed to pay $33 million to the state of California as part of a compromise of claims asserted by the State in ASARCO’s bankruptcy proceeding. Three years later ASARCO filed a contribution claim pursuant to CERCLA section 113(f), seeking to recover some of its costs for the same site from others including CNA. The Ninth Circuit affirmed the district court’s decision dismissing ASARCO’s 2011 contribution suit, stating that “ASARCO’s new contribution claim via the 2008 Bankruptcy Settlement is for exactly the same liability ASARCO assumed in the 1989 Wickland Agreement, and is therefore time barred.” The court noted that if ASARCO could restart the statute of limitations through a bankruptcy settlement, ASARCO “would receive a benefit that it had not paid for in that bankruptcy settlement” and such a ruling “would encourage tardy parties to use bankruptcy to revive their expired claims.”

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