The U.S. Supreme Court will once again wade into the scope and meaning of CERCLA, granting Guam’s petition for certiorari in Territory of Guam v. United States, No. 20-382, petition for cert. granted (U.S. Jan. 8, 2021). This time, the Court will address multiple circuit splits regarding what it means for a settling party to have “resolved” its CERCLA liability with the government, and the extent to which a non-CERCLA settlement agreement may give rise to a contribution action under Section 113 of CERCLA.
These questions have important implications for when the statute of limitations clock begins to tick for a claim against other parties responsible for a Superfund cleanup. These issues are of particular significance to parties who have entered into historical settlements with the government involving the remediation or cleanup of a property; the decision Guam is challenging ruled that the clock on its CERCLA contribution claim against the U.S. Navy started over fifteen years ago when Guam settled Clean Water Act claims with the United States and the contribution claim is therefore untimely.
BackgroundGuam seeks to overturn a D.C. Circuit ruling that its claim for clean-up costs against the U.S. Navy regarding an old landfill are time-barred, potentially saddling the Territory with a $160 million cleanup. The Navy constructed the Ordot Dump in Guam in the 1940s, and for decades disposed of military waste at the site, allegedly containing DDT and Agent Orange. Guam became the owner/operator of the dump when it gained territorial sovereignty. In 2002, EPA sued Guam under the Clean Water Act (CWA), asserting violations of the CWA based on the discharge of untreated leachate into a nearby river. Guam and EPA entered into a consent decree in 2004, under which Guam agreed to close the dump and install a cover system.
In 2017, Guam sued the United States under CERCLA to recover remediation costs. Guam’s complaint asserted standard CERCLA claims: a cost recovery claim under § 107(a), and, in the alternative, a contribution claim under § 113(f). A key difference between the two claims is the statute of limitations, which have different lengths and different accrual rules. While EPA has identified the Navy as a potentially responsible party, the United States argued that Guam’s action was untimely because: (1) the 2004 consent decree required Guam to proceed by a contribution claim, and (2) the three-year statute of limitations for contribution claims ran from the entry of the 2004 consent decree. Guam argued that it could maintain a § 107(a) cost recovery action, which was...
