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Asarco LLC, A Delaware Corporation v. Atlantic Richfield Company

November 30, 2012

ASARCO LLC, A DELAWARE CORPORATION,
PLAINTIFF,
v.
ATLANTIC RICHFIELD COMPANY, A DELAWARE CORPORATION, AMERICAN CHEMET CORPORATION, A MONTANA CORPORATION, DEFENDANTS.



ORDER

Before the Court is the motion of American Chemet Corporation ("American Chemet") to dismiss the First Amended Complaint filed by ASARCO LLC ("ASARCO"). American Chemet suggests several independent bases for dismissal. It argues that ASARCO's claims for contribution are time-barred; that ASARCO is judicially estopped from making these claims; and that ASARCO failed to join all potentially responsible parties.

After briefing had been completed on American Chemet's motion to dismiss, Defendant Atlantic Richfield Company ("Atlantic") moved to join the motion based on the limited grounds that the claim is time-barred by the June 5, 2009 entry of the Consent Decree and the February 6, 2009 approval of a settlement agreement. ASARCO does not oppose Atlantic's motion to join insofar as it simply seeks to join in American Chemet's arguments, but does object to Atlantic's "recap" of the arguments. Atlantic's motion to join limited portions of the motion to dismiss is granted. However, because the additional briefing and argument do not affect the Court's analysis of the issues, ASARCO's request for an opportunity to submit more briefs is denied.

Finally, because the issues can be decided on the briefs already submitted, ASARCO's unopposed motion for oral arguments is also denied. For the reasons discussed below, the motion to dismiss is denied.

BACKGROUND

ASARCO and its predecessors operated a metals refinery in East Helena, Montana, for over a hundred years. Lead and zinc smelting and metals processing operations deposited numerous hazardous substances into the soil, surface water, and groundwater in the area. ASARCO's facility was closed on April 4, 2001.

East Helena was named a "Superfund" site in 1984. In 1990 and 1998, ASARCO entered settlement agreements with the Environmental Protection Agency ("EPA") concerning remediation of various aspects of the site. In 2005, ASARCO filed for bankruptcy. Within that proceeding, it entered two additional settlements with the EPA regarding its liability at the East Helena site, among other sites around the nation. Each settlement agreement was judicially approved.

Now ASARCO seeks contribution from American Chemet and Atlantic Richfield, which it claims are potentially responsible parties who share liability for the releases at the site.

ANALYSIS

I. Statute of Limitations

A party who has been sued under § 106 or § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA") may bring a contribution claim under § 113(f)(1) against other liable parties. Cooper Industries, Inc. v. Aviall Servs., Inc., 543 U.S. 157, 160--61 (2004). CERCLA provides a three-year statute of limitations for such claims:

No action for contribution for any response costs or damages may be commenced more than 3 years after-

(A) the date of judgment in any action under this chapter for recovery of such costs or damages, or

(B) the date of an administrative order under section 9622(g) of this title (relating to de minimis settlements) or 9622(h) of this title (relating to cost recovery settlements) or entry of a judicially approved settlement with respect to such costs or damages.

41 U.S.C. § 9613(g)(3). The latter clause of § 9613(g)(3)(B) is at issue here. The plain language of § ...


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