CERCLA Contribution Claims: The Ninth Circuit Weighs In On Two Circuit Splits

In ASARCO LLC v. Atlantic Richfield Co., the Ninth Circuit Court of Appeals recently addressed two Circuit splits regarding contribution claims under Section 113(f)(3)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).1 First, the Ninth Circuit joined the Third Circuit in holding that settlement agreements for investigating or remediating contamination under an authority other than CERCLA (e.g., state law; RCRA) can give rise to a CERCLA Section 113 contribution claim.2 Second, the Ninth Circuit weighed into what does it means for a settlement agreement to "resolve" liability so as to trigger a CERCLA contribution claim by adopting a case-by-case analysis of whether "the settlement agreement decides with certainty and finality a PRP's obligations for at least some of its response actions or costs as set forth in the agreement."3

The Ninth Circuit's views on both of these Circuit splits will have ramifications on CERCLA litigants both in and outside of the Ninth Circuit. This advisory addresses below what you need to know about this latest development in the CERCLA contribution claim caselaw.

The Ninth Circuit Holds that Non-CERCLA Settlements May Trigger CERCLA Contribution Claims, Joining Third Circuit

Courts have been divide over whether a settlement agreement for investigating or remediating contamination under an authority under than CERCLA (e.g., state law; RCRA) can give rise to a CERCLA contribution claim.

This issue can be a crucial one for litigants. Most notably, if such agreements do trigger a CERCLA contribution claim, then the settlor must pursue any CERCLA recovery solely through a CERCLA contribution claim and not through a cost recovery claim under CERCLA Section 107.4 Plaintiffs, however, would generally prefer to bring a CERCLA Section 107 cost recovery claim instead of a Section 113 contribution claim, since a Section 107 cost recovery claim is subject to a longer statute of limitations for certain costs5 and is not subject to the CERCLA contribution protection bar.6

In ASARCO LLC v. Atlantic Richfield Co., the Ninth Circuit found that CERCLA Section 113(f)(3)(B)'s "text says nothing about whether the agreement must settle CERCLA claims in particular" in order to give rise to a Section 113(f)(3)(B) contribution claims.7 The Ninth Circuit therefore turned to three sources to conclude that a settlement agreement need not settle CERCLA claims to trigger a Section 113(f)(3)(B) contribution claim. First, the Ninth Circuit contrasted Section 113(f)(3)(B) with the other CERCLA contribution claim provision at Section 113(f)(1) (which does have an express CERCLA predicate), finding that the textual differences between these two provisions provide "strong evidence that Congress intended no such predicate" in the case of CERCLA Section 113(f)(3)(B) contribution claims.8 Second, the Ninth Circuit found that such an interpretation was "consistent with CERCLA's broad remedial purpose" and Congress' goal to incentivize parties "to settle and initiate cleanup" of contamination.9 Third, the Ninth Circuit noted that EPA itself endorsed this interpretation and that EPA's view was entitled to Skidmore deference.10 For these reasons, the Ninth Circuit held that ASARCO's RCRA settlement triggered a...