ASARCO, LLC v. Celanese Chemical Co., 2015 U.S. App. LEXIS 11919

Background

ASARCO owned/operated the Selby smelter; later leased a 1.33-acre Plant to Virginia Chemicals (predecessor to CNA) which operated 1972–1977 and contributed to site contamination. Regulatory orders issued in the 1970s.
Wickland purchased the site, incurred cleanup costs, and in 1983 sued ASARCO (and State Lands) under CERCLA §107 for cost recovery. Litigation led to the 1989 Wickland Agreement (consent judgment) allocating past and future remediation costs among Wickland, ASARCO, and State Lands; Virginia Chemicals/CNA was not a party.
ASARCO could have pursued a §113(f) contribution claim against Virginia Chemicals/CNA after the 1989 consent judgment but did not. The consent judgment remained judicially approved and allocated remediation responsibilities.
In 2008 ASARCO settled bankruptcy claims with DTSC, State Lands, and CSLI, agreeing to pay approximately $33 million to resolve its obligations (the 2008 Bankruptcy Settlement), which referenced and fixed ASARCO’s liability under the Wickland Agreement.
ASARCO sued CNA in 2011 under CERCLA §113(f)(3)(B) seeking contribution; CNA moved for summary judgment arguing the claim was time-barred by the three-year limitations period in §113(g)(3)(B). The district court granted summary judgment for CNA; ASARCO appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a private-party, judicially approved settlement (Wickland Agreement) triggers the §113(g)(3)(B) three-year limitations period for contribution claims	ASARCO: §113(g)(3)(B) should be triggered only by settlements that include the United States or a State; private-party settlements should not start the limitations clock	CNA: Judicially approved private-party settlements trigger §113(g)(3)(B); otherwise contribution claims after private settlements would never expire	Court: Private-party judicially approved settlements do trigger the §113(g)(3)(B) three-year limitations period
Whether ASARCO’s contribution claim was revived or newly accrued by the 2008 Bankruptcy Settlement with DTSC and others	ASARCO: The 2008 bankruptcy settlement fixed new/final costs and thus created (or revived) a §113(f)(3)(B) contribution claim against CNA	CNA: The 2008 settlement merely fixed ASARCO’s previously apportioned liability under the Wickland Agreement and cannot revive an otherwise expired claim	Court: The 2008 settlement did not create a new claim or revive an expired claim; it fixed costs already covered by the 1989 agreement, so ASARCO’s claim was time-barred
Whether CERCLA permits successive contribution claims based on the same underlying costs after different settlements	ASARCO: Settlement with the government creates an independent right to contribution even if earlier private settlement existed	CNA: Allowing revival would undermine the statute of limitations and reward late filers via bankruptcy maneuvering	Court: No absolute right to revive expired claims via later government settlements; permitting revival would circumvent the limitations purpose
Scope of the Wickland Agreement as covering remediation of the Virginia Chemicals (CNA) area	ASARCO: Some later remediation obligations differ and were not covered/enforceable by the Wickland Agreement	CNA: The Wickland Agreement and its Remedial Action Plan covered past and future response costs for the entire Selby Site, including the Virginia Chemicals area	Court: The Wickland Agreement encompassed the remediation at issue; the 2008 settlement only fixed ASARCO’s liability under that agreement

Key Cases Cited

Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157 (addresses when contribution rights under CERCLA §113(f) accrue)
Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863 (en banc) (statutory interpretation principles in CERCLA context)
Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887 (discusses original Selby Site litigation and ripeness; appellate history)
City of Emeryville v. Robinson, 621 F.3d 1251 (settlement interpretation standard; de novo review)
American Cyanamid Co. v. Capuano, 381 F.3d 6 (First Circuit decision on separate-settlement contribution claims)
RSR Corp. v. Commercial Metals Co., 496 F.3d 552 (Sixth Circuit on statute of limitations for contribution after settlement)
United States v. Atl. Research Corp., 551 U.S. 128 (distinguishing §107 cost-recovery and §113 contribution remedies)
In re Hanford Nuclear Reservation Litig., 534 F.3d 986 (limitations and notice policy in environmental litigation)