Federal Circuits Are Split on When a CERCLA Section 113 Contribution Claim Can Be Pursued

Judge and Gavel

The 9th Circuit Court of Appeals recently reinforced a Circuit split on what kind of settlement agreement allows a claimant to pursue a contribution claim against other PRPs under Section 113(f)(3)(B) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). In Asarco v. Atlantic Ritchfield, (9th Cir. 8/10/17), the Court held that Congress did not intend to limit Section 113(f)(3)(B) contribution actions to the recovery of costs incurred in response actions under CERCLA settlements. Non-CERCLA settlements, such as for implementation of corrective measures under the Resource Conservation and Recovery Act (RCRA), may provide the necessary predicate for a CERCLA contribution claim if they “determine a PRP’s compliance obligations with certainty and finality.” In so ruling, the 9th Circuit joined the 3rd Circuit (Trinity Industries, Inc. v Chicago Bridge & Iron Co., 3rd Cir. 2013) in holding that non-CERCLA settlements can authorize CERCLA contribution claims.  The 2nd Circuit has held that a contribution right arises “only when liability for CERCLA claims … is resolved.” Consolidated Edison Co. of N.Y., Inc. v. UGI Utilities, Inc. (2nd Cir. 2005).

For more information on CERCLA settlements and contribution claims, contact Steve O’Day.

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