Asarco v. Celanese Chemical Co.

Settlements between private parties following claims for contribution and cost-recovery under § 113(f)(3)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act, fall within the three-year statute of limitations.

ASARCO, LLC (“ASARCO”) owned and operated a silver and lead smelter (the “Selby Site”) until 1970, when it was closed for polluting the area and tidelands that ASARCO leased from the California State Lands Commission (“State Lands”). ASARCO leased a portion of the Selby Site to Virginia Chemicals, a corporate predecessor to CNA Holdings, LLC (“CNA”). As a result of CNA’s use, and ASARCO’s use before, the soil in the Selby Site area was contaminated. Wickland Oil Company (“Wickland”) purchased ASARCO’s Selby Site property in 1977. After purchasing, Wickland learned that the site contained hazardous substances and required remediation efforts, necessitating Wickland to incur environmental response costs. Wickland filed a cost-recovery lawsuit under § 113(f)(3)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) against ASARCO and State Lands. Wickland sought past response costs and a declaration that ASARCO and State Lands were liable for all future response costs. The district court entered summary judgment in favor of ASARCO and State Lands on the grounds that the claims were not ripe. In 1989, Wickland, ASARCO, and State Lands (the “settling parties”) entered into the Wickland Agreement. Although the settling parties knew that Virginia Chemicals had been previously named, it was not brought in. After filing for bankruptcy, ASARCO filed a new lawsuit against CNA seeking contribution under CERCLA §113(f). The district court determined that the statute of limitations applied to the Wickland Agreement and ASARCO’s time to file a contribution claim had expired. On appeal, the Ninth Circuit affirmed. The panel held that any contribution claims for remedial costs are subject to the three-year statute of limitations which begins to run once liability is recognized through a judicially approved settlement. AFFIRMED.