Argued and Submitted, San Francisco, California October 8, 2014.
Appeal from the United States District Court for the Northern District of California. D.C. No. 3:11-cv-01384-WHA. William Alsup, District Judge, Presiding.
Affirming the district court's summary judgment, the panel held that a claim for contribution under § 113(f)(3)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act was time-barred.
In 1989 plaintiff ASARCO, LLC, entered into a settlement agreement arising from a cost-recovery lawsuit under CERCLA § 107. During bankruptcy proceedings in 2008, ASARCO entered into a second settlement agreement arising from response cost claims asserted by the California Department of Toxic Substances Control. ASARCO filed its new contribution claim in 2011.
The panel held that the judicially approved settlement agreement between private parties to the cost-recovery suit started the clock on the three-year statute of limitations in CERCLA § 113(g)(3)(B) in 1989. The panel held that the later bankruptcy settlement with the government, fixing ASARCO's costs associated with the cost-recovery settlement agreement, did not revive a contribution claim that had otherwise expired.
Linda R. Larson (argued), Russell C. Prugh, and Meline G. MacCurdy, Marten Law PLLC, Seattle, Washington; Gregory Evans and James G. Warren, Integer Law Corporation, Los Angeles, California, for Plaintiff-Appellant.
John D. Edgcomb (argued) and Michael A.G. Einhorn, Edgcomb Law Group, P.C., San Francisco, California, for Defendant-Appellee.
Before: William A. Fletcher and Paul J. Watford, Circuit Judges, and Kevin Thomas Duffy, District Judge.[*] Opinion by Judge Duffy.
Kevin Thomas Duffy,
Plaintiff-Appellant ASARCO, LLC (" ASARCO" ) appeals the district court's grant of summary judgment in favor of Defendant-Appellee CNA Holdings, LLC (" CNA" ) in ASARCO's suit for contribution under § 113(f)(3)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act (" CERCLA" ), 42 U.S.C. § 9613(f)(3)(B). The district court ruled that ASARCO's contribution action was time-barred and dismissed the complaint. For the reasons that follow, we affirm the judgment of the district court.
FACTS AND PROCEDURAL HISTORY
ASARCO is the corporate successor to a company that owned and operated a silver and lead smelter on a 66-acre industrial site (the " Selby Site" ) on San Pablo Bay in Contra Costa, California. The smelter operated until 1970, depositing smelting byproducts on its property and the tideland ASARCO leased from the California State Lands Commission (" State Lands" ) abutting the property. The smelter was closed after it was named as the likely source of lead pollution that caused livestock deaths nearby. After the smelter closed, ASARCO leased a 1.33 acre parcel of the Selby Site containing a sulfur dioxide plant (" Plant" ) that ASARCO had previously operated to Virginia Chemicals, a corporate predecessor to CNA. CNA leased and operated the Plant from 1972 until September 1977. As a result of the Plant operations that occurred before and during CNA's leasehold, the soil in the Selby Site area was contaminated with sulfuric acid, as discovered by the San Francisco Bay Regional Water Quality Control Board (the " RWQCB" ) in April 1976. RWQCB issued a cleanup and abatement order in August 1976, amended the order in November 1976, and conditionally rescinded the order in April 1977.
After the Plant shut down, and long after smelting had ceased, Wickland Oil Company (" Wickland" ) purchased ASARCO's Selby Site property in October 1977, and leased the tidelands from State Lands in July 1981 to build and operate a marine fuel terminal. Wickland learned from the California State Department of Health Services (" California DHS" ) that the Selby Site contained hazardous substances, and that further investigation and remediation efforts were required across much of the site. California DHS had identified the presence of toxic metals in the slag pile, with high concentrations of lead, zinc, arsenic, and cadmium. The Selby Site was placed on the California State Superfund list. Wickland incurred environmental response costs and looked for other responsible parties to share those costs.
In 1983, Wickland filed a cost-recovery lawsuit under CERCLA § 107 against ASARCO, as the former owner of part of the Selby Site and operator of the entire Selby Site, and State Lands, as the former owner of the remainder of the Selby Site that permitted and encouraged the disposal by ASARCO of hazardous substances on the Selby Site. In its lawsuit, Wickland sought to establish ASARCO's liability for response costs at the Selby Site to address metals leaching from the slag and causing groundwater contamination. Wickland sought reimbursement of no less than $400,000 in past response costs and a declaration that ASARCO and State Lands were liable for all future response costs at the Selby Site. After the district court rendered summary judgment in favor of ASARCO and State Lands in the 1983 case on the grounds that (1) the cost recovery claim was not ripe and (2) the claims for declarative and therefore injunctive relief were not ripe, we reversed the district court's judgment and remanded the case so that Wickland could pursue its claims. Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 892-93 (9th Cir. 1986).
In February 1989, Wickland, ASARCO, and State Lands (collectively, the " Settling Parties" ) entered into the Wickland Agreement, an " Agreement for Entry of Consent Judgment" to " settle and compromise the [district court lawsuit], and to establish a procedure for allocating past and future costs attributable to the events and conditions underlying the [district court lawsuit]." State Lands entered into the agreement as the former owner of part of the Selby Site, not as a " Government Agency." Although the Settling Parties knew that Virginia Chemicals had been named in the 1976 RWQCB Order and repeatedly referred to in the Wickland lawsuit, Virginia Chemicals had never been brought into the lawsuit as a party, and was not a party to the Wickland Agreement. The district court entered a ...