United States: CERCLA Contribution Claims: The Ninth Circuit Weighs In On Two Circuit Splits

In ASARCO LLC v. Atlantic Richfield Co., the Ninth Circuit Court of Appeals recently addressed two Circuit splits regarding contribution claims under Section 113(f)(3)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).1 First, the Ninth Circuit joined the Third Circuit in holding that settlement agreements for investigating or remediating contamination under an authority other than CERCLA (e.g., state law; RCRA) can give rise to a CERCLA Section 113 contribution claim.2 Second, the Ninth Circuit weighed into what does it means for a settlement agreement to "resolve" liability so as to trigger a CERCLA contribution claim by adopting a case-by-case analysis of whether "the settlement agreement decides with certainty and finality a PRP's obligations for at least some of its response actions or costs as set forth in the agreement."3

The Ninth Circuit's views on both of these Circuit splits will have ramifications on CERCLA litigants both in and outside of the Ninth Circuit. This advisory addresses below what you need to know about this latest development in the CERCLA contribution claim caselaw.

The Ninth Circuit Holds that Non-CERCLA Settlements May Trigger CERCLA Contribution Claims, Joining Third Circuit

Courts have been divide over whether a settlement agreement for investigating or remediating contamination under an authority under than CERCLA (e.g., state law; RCRA) can give rise to a CERCLA contribution claim.

This issue can be a crucial one for litigants. Most notably, if such agreements do trigger a CERCLA contribution claim, then the settlor must pursue any CERCLA recovery solely through a CERCLA contribution claim and not through a cost recovery claim under CERCLA Section 107.4 Plaintiffs, however, would generally prefer to bring a CERCLA Section 107 cost recovery claim instead of a Section 113 contribution claim, since a Section 107 cost recovery claim is subject to a longer statute of limitations for certain costs5 and is not subject to the CERCLA contribution protection bar.6

In ASARCO LLC v. Atlantic Richfield Co., the Ninth Circuit found that CERCLA Section 113(f)(3)(B)'s "text says nothing about whether the agreement must settle CERCLA claims in particular" in order to give rise to a Section 113(f)(3)(B) contribution claims.7 The Ninth Circuit therefore turned to three sources to conclude that a settlement agreement need not settle CERCLA claims to trigger a Section 113(f)(3)(B) contribution claim. First, the Ninth Circuit contrasted Section 113(f)(3)(B) with the other CERCLA contribution claim provision at Section 113(f)(1) (which does have an express CERCLA predicate), finding that the textual differences between these two provisions provide "strong evidence that Congress intended no such predicate" in the case of CERCLA Section 113(f)(3)(B) contribution claims.8 Second, the Ninth Circuit found that such an interpretation was "consistent with CERCLA's broad remedial purpose" and Congress' goal to incentivize parties "to settle and initiate cleanup" of contamination.9 Third, the Ninth Circuit noted that EPA itself endorsed this interpretation and that EPA's view was entitled to Skidmore deference.10 For these reasons, the Ninth Circuit held that ASARCO's RCRA settlement triggered a CERCLA Section 113(f)(3)(B) contribution claim.11

With this opinion, the Ninth Circuit joins the Third Circuit Court of Appeals, which held in 2013 in Trinity Indus., Inc. v. Chicago Bridge & Iron Co., that a settlement that resolved state law liability for a response action triggered a CERCLA Section 113(f)(3)(B) contribution claim.12 District courts, including the court below in ASARCO LLC v. Atlantic Richfield Co., also have endorsed the interpretation advanced by the Ninth Circuit.13

On the other side of the Circuit split is the Second Circuit; however, the Second Circuit appears willing to rejoin its sister Circuits on the other side of the fence once given the opportunity to do so. In 2005, the Second Circuit in Consolidated Edison Co. of N.Y. , Inc. v. UGI Utilities, Inc., held that CERCLA Section 113(f)(3)(B) creates a "contribution right only when liability for CERCLA claims . . . is resolved." 14 The Second Circuit's interpretation rested heavily upon a 1986 House of Representatives Committee report. But, as both the Ninth and Third Circuits have noted when they subsequently split with the Second Circuit on this issue, this report reported to "a different provision—§113(f)(1)" and not Section 113(f)(3)(B), which was at issue.15 Indeed, the Second Circuit in its 2010 opinion Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., strongly hinted that the Second Circuit's interpretation first expressed in Consolidated Edison was incorrect and that EPA's contrary view had a "great deal of force . . . given the language of the statute."16 In other words, the Second Circuit appears poised to reconsider its prior interpretation and resolve the Circuit split once it is confronted with this issue again.

With the Ninth Circuit's recent opinion, the clear trend in caselaw is toward finding that non-CERCLA settlement agreements (including those issued under state law or RCRA) may trigger CERCLA Section 113(f)(3)(B) contribution claims. Consequently, non-CERCLA settlors that hope to turn to CERCLA to recover some of their costs for investigating or remediating contamination under RCRA or state law settlement agreements may find themselves subject to, among other things, a shorter statute of limitations than what might have been available had they been able to pursue recovery under CERCLA Section 107.

The Ninth Circuit Adopts a Substance Over Form Case-by-Case Approach to Whether a Settlement Agreement Resolves Liability

The second Circuit split at issue in the Ninth Circuit's recent opinion pertained to what does it mean to "resolve" liability to the United States or a State for a response action in a settlement agreement? Only if the settlement agreement resolved such liability does the settlement trigger a CERCLA Section 113(f)(3)(B) contribution claim.17 Both the Sixth and Seventh Circuits have opined on this issue and have reached different conclusions depending on the language of the settlement agreements at issue.18

The Ninth Circuit weighed into this morass by first agreeing with the Seventh Circuit that to "resolve" liability means that "the nature, extent, or amount of a PRP's liability must be decided, determined, or settled, at least in part, by way of agreement with the EPA."19 Ultimately, the Ninth Circuit held that "a PRP 'resolve[s] its liability' to the government where a settlement agreement decides withcertainty and finality a PRP's obligations for at least some of its response actions or costs as set forth in the agreement" and "[w]hether this test is met depends on a case-by-case analysis of a particular agreement's terms."20

Along the way, the Ninth Circuit disagreed with courts that relied upon two boilerplate settlement agreement provisions to tip the scales against a finding that a settlement agreement resolved liability and triggered a CERCLA Section 133(f)(3)(B).

First, the Ninth Circuit departed from the Sixth Circuit's decision in Florida Power Corp. v. FirstEnergy Corps that a disclaimer of liability in a settlement agreement weighed in favor of concluding that the agreement did not "resolve" liability.21 The Ninth Circuit instead concluded "that it matters not that a PRP refuses to concede liability in a settlement agreement" and adding that, in fact, "requiring a PRP to concede liability may discourage PRPs from entering into settlements because doing so could open the PRP to additional legal exposure," which in turn would frustrate Congress' intent of encouraging settlements and expediting cleanups.22 Consequently, at least in the Ninth Circuit, boilerplate disclaimer of liabilities found in most all settlement agreements, including EPA's model CERCLA settlement agreements,23 will not bar a CERCLA Section 113(f)(3)(B) contribution claim.

Second, the Ninth Circuit disagreed that the "government must divest itself of its ability to enforce the agreement's terms" in order for an agreement to "resolve" the settlor's liability, concluding that such a view would make it "unlikely that a settlement agreement could ever resolve a party's liability" "because CERCLA prevents a covenant not to sue from 'tak[ing] effect until the President certifies that remedial action has been completed.'"24 For further support, the Ninth Circuit relied upon a 1986 Congressional committee report that "expresses Congress' intent to encourage settlements by creating a right to contribution" and also encouraged EPA to include in settlement agreements the ability pursue further enforcement action.25 As the Ninth Circuit explained, "having sung the praises of settlements providing for a right of contribution in one part of the report, it would make little sense for Congress to encourage EPA to craft settlements in a way that nullifies that right in another."26 Indeed, EPA's model CERCLA settlements reserve EPA the right to take action against the settlor if the terms of the settlement agreement are not satisfied.27


Even beyond the Ninth Circuit, CERCLA litigants should be mindful that the recent opinion in ASARCO LLC v. Atlantic Richfield Co., provides a persuasive interpretation of two existing Circuit splits regarding CERCLA Section 113(f)(3)(B) contribution claims.

The Ninth Circuit's holding that settlement agreements under an authority other than CERCLA (e.g., state law; RCRA) can give rise to a CERCLA Section 113(3)(f)(B) contribution claim now constitutes the majority position among the Circuits and may not remain a Circuit split once the Second Circuit can revisit its prior interpretation and join the Ninth and Third Circuits.

The Ninth Circuit's interpretation on what it means for a settlement agreement to "resolve" liability should provide settlors (including those who enter into EPA's CERCLA settlement agreements) greater confidence that their agreement bestows a right to contribution under CERCLA. Although a specific settlement agreement resolves liability and therefore triggers a CERCLA Section 113(f)(3)(B) contribution claim remains a "case-by-case analysis," the Ninth Circuit has directed that such analysis should focus not on boilerplate provisions, but on a more holistic analysis of whether "a settlement agreement decides with certainty and finality a PRP's obligations for at least some of its response actions or costs as set forth in the agreement."28


1. There are two different types of contribution claims under CERCLA Section. Section 113(f)(3)(B) bestows a contribution claim upon a party once it "has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement . . . ." 42 U.S.C. § 9613(f)(3)(B). Section 113(f)(1) bestows a contribution claim to a party "during or following any civil action under section 9606 of this title or under section 9607(a) of" CERCLA. 42 U.S.C. § 9613(f)(1).

2. ASARCO LLC v. Atlantic Richfield Co., __ F.3d __, 2017 WL 3427708, at *8 (9th Cir. Aug. 10, 2017).

3. Id. at *12.

4. Id. *4 (citing, in support, decisions from the Second, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits Courts of Appeals).

5. Compare 42 U.S.C. § 9613(g)(2) (cost recovery claims statute of limitations), with id. § 9613(g)(3) (contribution claims statute of limitations).

6. Id. § 9613(f)(2).

7. ASARCO, 2017 WL 3427708, at *6.

8. Id. ("Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." (quoting Russello v. United States, 464 U.S. 16, 23 (1983))).

9. Id.

10. Id.

11. Id. at *8.

12. 735 F.3d 131, 136 (3d Cir. 2013).

13. SARCO LLC v. Atl. Richfield Co., 73 F. Supp. 3d 1285, 1292 (D. Mont. 2014); Exxon Mobil Corp. v. United States, 108 F. Supp. 3d 486, 510 (S.D. Tex. 2015).

14. 423 F.3d 90, 95 (2d Cir. 2005).

15. Trinity Indus., 735 F.3d at 136.

16. 596 F.3d 112, 126 n.15 (2d Cir. 2010).

17. 42 U.S.C. § 9613(f)(3)(B).

18. See, e.g., Florida Power Corp. v. FirstEnergy Corps, 810 F.3d 996, 1004 (6th Cir. 2015); NCR Corp. v. George A. Whiting Paper Co., 768 F.3d 682 (7th Cir. 2014); Hobart Corp. v. Waste Management of Ohio, Inc., 758 F.3d 757 (6th Cir. 2014); Bernstein v. Bankert, 733 F.3d 190 (7th Cir. 2013);; RSR Corp. v. Commercial Metals Co., 496 F.3d 552 (6th Cir. 2007).

19. ASARCO, 2017 WL 3427708, at *9 (quoting Bernstein, 733 F.3d at 212) (emphasis in the original).

20. Id. *12 (quoting 42 U.S.C. § 9613(f)(3)(B)) (emphasis added).

21. 810 F.3d 996, 1004 (6th Cir. 2015).

22. ASARCO, 2017 WL 3427708, at *12. E.g., EPA, Model Administrative Settlement Agreement and Order on Consent for Remedial Investigation/Feasibility Study ¶ 3 (April 2017) ("(T)he actions undertaken by Respondents in accordance with this Settlement do not constitute an admission of any liability.").

24. ASARCO, 2017 WL 3427708, at *11 (quoting 42 U.S.C. § 9622(f)(3)).

25. Id.

26. Id.

27. EPA, Model Administrative Settlement Agreement and Order on Consent for Remedial Investigation/Feasibility Study ¶ 86 (April 2017) ("These covenants are conditioned upon the complete and satisfactory performance by Respondents of their obligations under this Settlement.") (emphasis added).

28. ASARCO, 2017 WL 3427708, at *12 (quoting 42 U.S.C. § 9613(f)(3)(B)).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.