ELG wins Summary Judgment for CNA in Asarco’s $33M CERCLA Contribution Claim Suit

Posted by in CERCLA, Environmental Legislation and Regulation, Environmental Litigation on June 29, 2012

On June 6, 2012, U.S. District Judge William Alsup granted summary judgment to ELG client CNA Holdings, LLC (“CNA”) in a CERCLA § 113(f) contribution suit brought against it by Asarco LLC.  COURT ORDER   Asarco filed the suit in 2011 against CNA, and several other defendants, to recoup a substantial portion of $33 million in anticipated cleanup costs it paid to DTSC in settlement of a bankruptcy claim filed by DTSC regarding a Superfund site in northern California known as the Selby Slag Site.  The Selby Slag Site was formerly the location of a smelter operated by ASARCO on the shore of San Francisco Bay for over 50 years.  In 1989, ASARCO had entered into a prior settlement regarding the allocation of past and future Selby Slag Site response costs with the State Lands Commission and Wickland Oil Company.

ELG sought summary judgment on behalf of CNA on the basis that CERCLA’s three-year statute of limitations for contribution claims arising out of judicially approved settlements, section 113(g)(3)(B), barred Asarco from seeking contribution from CNA due to Asarco’s 1989 settlement.  Asarco argued that CERCLA’s statute of limitations did not apply to the 1989 settlement because it was not “a judicially approved settlement ‘ with the United States or a state,'” but only a settlement between private parties.

Judge Alsup granted CNA’s motion, finding that the CERCLA § 113(g)(3)(B) three-year statute of limitations on CERCLA contribution claims applies to all judicially-approved settlements; not just those involving the United States or a state.  On June 20, Asarco’s attorneys filed a motion for entry of final judgment, an express finding under FRCP Rule 52(b) that there is no just reason to delay entry, and to stay the action.

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