ASARCO LLC v. Atlantic Richfield Company, LLC, No. 18-35934 (9th Cir. 2020)
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After Asarco entered into a settlement agreement and consent decree with the government, it filed a contribution action under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) against Atlantic Richfield. The district court entered judgment in favor of Asarco, finding that Asarco had incurred $111.4 million in necessary response costs for the cleanup of a Superfund Site and that Atlantic Richfield was responsible for twenty-five percent of that sum.
The Ninth Circuit held that the district court erred in its determination of the necessary response costs incurred by Asarco by including speculative future costs in its tabulation of necessary response costs eligible for contribution under CERCLA. However, the panel held that the district court did not err in allocating responsibility for twenty-five percent of the response costs to Atlantic Richfield. Accordingly, the panel vacated and remanded in part, and affirmed in part.
Court Description: Environmental Law. The panel affirmed in part and vacated in part the district court’s judgment, after a bench trial, in favor of the plaintiff in a contribution action under the Comprehensive Environmental Response, Compensation, and Liability Act. Plaintiff ASARCO LLC entered into a consent decree with the Environmental Protection Agency to clean up environmental contamination at several sites, including a Superfund Site in East Helena, Montana. Asarco, former operator of a lead smelting facility, then brought a CERCLA contribution action against Atlantic Richfield Co., successor in interest to the operator of a zinc fuming plant The district court found that Asarco had incurred $111.4 million in necessary response costs for the cleanup of the Site and that Atlantic Richfield was responsible for 25% of that sum. Vacating and remanding in part, the panel held that the district court erred in its determination of the necessary response costs incurred by Asarco. Specifically, the district court erred when it counted the full settlement amount, ASARCO V. ATLANTIC RICHFIELD 3 including about $50 million of funds that had not been, and might never be, spent on the Site cleanup, as response costs subject to contribution at this stage of the Site cleanup. The panel remanded for further consideration of what response costs were sufficiently concrete and non-speculative such that they would be eligible for contribution under CERCLA. Affirming in part, the panel held that the district court did not err in allocating responsibility for 25% of the response costs to Atlantic Richfield. The panel held that the district court property exercised its discretion in its consideration of appropriate equitable factors and did not clearly err in its factual findings supporting its allocation decision.
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