By: Olivia N. Daily
In May of 2021, the United States Supreme Court heard Guam v. United States, a case dealing with the intersection of CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act) liability for contamination and future contribution actions to recover for cleanups. Plaintiffs who are intending to bring CERCLA-specific contribution actions should take guidance from the Court’s decision in Guam while being cognizant of the applicable statutes of limitations to bring said actions.
Guam v. United States has a particularly interesting fact pattern. The United States Government owned a site beginning in the 1940’s known as the Ordot Dump (described in the opinion as a “280-foot mountain of trash”) near the center of the island of Guam. This site was used to dispose of toxic military waste over the course of several decades. The US Government ceded control of the Dump to Guam, which used the site as a public landfill. The Environmental Protection Agency sued Guam after the US Government ceded control of the Ordot Dump, claiming that Guam had violated the Clean Water Act. The EPA and Guam entered into a consent decree in 2004, which abrogated liability for the civil claims (i.e. the Clean Water Act claims) brought by the US Government if Guam paid a civil penalty and closed and covered the dump. However, the consent decree specifically stated that “the United States d[id] not waive any rights or remedies available to it for any violation by the Government of Guam of federal and territorial laws and regulations,” except for those specifically waived in the decree. This meant that Guam was still liable under CERCLA, as these claims were not specifically waived by the consent decree.
Thirteen years later, Guam sued the United States for contribution and for cost-recovery under §113(f) and §107(a), respectively, of the Comprehensive Environmental Response, Compensation, and Liability Act (hereafter “CERCLA”). The United States, citing CERCLA’s three-year statute of limitations, moved to dismiss the action. The United States argued that because Guam had “resolved it’s liability to the United States” in 2004, the CERCLA statute of limitations had expired and Guam had no standing to bring this claim. The D.C. Circuit Court found that the remedial measures and conditional release in the 2004 consent decree had sufficiently resolved the CERCLA claims to begin running the statute of limitation, and dismissed the action on those grounds. Guam appealed, and the Supreme Court granted certiorari.
Contribution actions brought under §113(f)(3)(B) of CERCLA allow a “person who has resolved its liability to the United States or a State” through a settlement to seek contribution for the cleanup from another party also responsible for the contamination. This section applies only to the statutory provisions contained in CERCLA, and does not give rise to claims under other environmental statutes.
Guam argued that because the 2004 consent decree left Guam open to CERCLA liability, the statute of limitations had not run. The United States argued that because the 2004 decree had resolved a civil environmental liability (albeit arising under a separate statute), the three-year statute of limitations had expired years prior, and Guam had forfeited its claim under CERCLA.
The Supreme Court opined that “[a] settlement must resolve a CERCLA liability to trigger a contribution action under §113(f),” and that because the EPA had only waived “civil claims” and had not addressed CERCLA liability in the consent decree, the statute of limitations had not expired. The Court also found that while “remedial measures under different environmental statutes might functionally overlap with a CERCLA response action does not justify reinterpreting §113(f)(3)(B)’s phrase “resolved its liability…for some or all of a response action” to instead mean ‘settled an environmental liability that might have been actionable under CERCLA.’”
In short, this decision means that in order to have standing to bring a contribution action, a Plaintiff must prove that the settlement of environmental liabilities at issue resolved a CERCLA-specific liability. This also means that the statute of limitation for CERCLA contribution claims does not begin running until a claim is completely and finally resolved. Plaintiffs with CERCLA contribution claims that have been fully resolved need to be cognizant of the three-year statute of limitations, but also should be aware that resolution of an environmental claim under another federal statute may not be sufficient for standing to bring a contribution claim under §113(f).
For advice regarding CERCLA liability and resolution or with all other contamination and environmental law questions, please contact Olivia N. Daily at firstname.lastname@example.org or your DSV attorney.
***The information contained on this website is for informational purposes and is not intended as formal legal advice and cannot be relied upon as such. No attorney client relationship is established or intended as a result of the information contained on this website.***