3 "No Federal court shall have jurisdiction under Federal law other than under section 1332 of title 28 (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under section 9621 of this title (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title[.]" 42 U.S.C. § 9613(h).4 42 U.S.C. § 9613(h).5 "No Federal court shall have jurisdiction under Federal law. . . in any action except one of the following . . . (2) An action to enforce an order issued under section 9606(a) of this title or to recover a penalty for violation of such order[.]"

Cost-recovery claims under Section 107(a) are subject to a six-year statute of limitations. 42 U.S.C. § 9613(g)(2)(B).Separately, CERCLA allows for a contribution claim against “any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title.”

To mitigate the frequently harsh results of a government action against only one or a few PRPs at a site where the waste of many was disposed of, Congress added Section 113(f) to CERCLA in the Superfund Amendments and Reauthorization Act (SARA) of 1986. See 42 U.S.C. § 9613(f). This provision enables a party liable to the government for response costs to seek contribution from any other person who is liable or potentially liable under Section 9607(a).

Trinity then filed a suit for contribution against CB&I under CERCLA and RCRA, contending that CB&I caused some of the contamination at the site during its ownership. The district court granted summary judgment in favor of CBI on grounds that CERLCA did not authorize contribution claims arising from state enforcement actions. The court relied on two Second Circuit decisions holding that contribution only arose in actions arising “under CERCLA,” citing CERCLA legislative history and referencing 42 U.S.C. § 9613(f)(3)(B). The Third Circuit broke with the reasoning of the Second Circuit cases, citing a later case suggesting that it had “begun to retreat” from its earlier rulings.

This week the Supreme Court decided Territory of Guam v. United States, No. 20-382 (U.S. May 24, 2021), and held that contribution claims under section 113(f)(3)(B) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9613(f)(3)(B) are only permitted in cases where there has been “resolution of a CERCLA-specific liability.” The United States Navy constructed the Ordot Dump in Guam during the 1940s and allegedly disposed of toxic waste there for decades before ceding control of the landfill to Guam.

Notes 2020 WL 1906542, Sup. Ct. (2020) 42 U.S.C. § 9601 et seq. 42 U.S.C. § 9622(e)(6). 2020 WL 1906542, *3 at 10.Id., *5 at 11.Id., *5 at 12.Id., *3 at 10.Id., *6 at 13.Id., *7 at 13, citing 42 U.S.C. § 9613(b).Id., *7 at 13.Id., *7 at 14.Id., *8 at 13.Id., *9 at 14.Id., *9 at 15, citing 42 U.S.C. § 9601(9)(B).Id., *9 at 15 and *11 at 16.Id., *13 at 18.Id., *14 at 19.Id., *17 at 21.Id., *19 at 22.Id., *20 at 23.Id., *11 at 16.Lehman Brothers, Inc. v. City of Lodi, 333 F.Supp.2d 895, 901 (E.D. Ca. 2004), citing 42 U.S.C. § 9613(b) and Fort Ord Toxics Project, Inc. v. California Envt'l Protection Agency, 189 F.3d 828, 832 (9th Cir. 1999).

The Court remanded the case for further proceedings.DiscussionState Courts Have Jurisdiction to Hear Non-CERCLA ClaimsCERCLA provides exclusive federal jurisdiction over actions “arising under” the statute. 42 U.S.C. § 9613(b) (“[T]he United States district courts shall have exclusive original jurisdiction over all controversies arising under [CERCLA].”) Further, CERCLA states that federal courts are deprived of jurisdiction over any claims constituting a “challenge” to a CERCLA cleanup while that cleanup is ongoing.

Atlantic Richfield had relied on Section 113(b) of CERCLA, which provides that “the United States district courts shall have exclusive original jurisdiction over all controversies arising under this chapter.” 42 U. S. C. §9613(b). But the Court held that the landowners’ state-law claims did not arise under CERCLA, they arose under state law.

Section 113(b) gives federal courts “exclusive original jurisdiction over all controversies arising under” CERCLA. 42 U.S.C. § 9613(b). Section 113(h), in turn, bars federal courts from reviewing “any challenges” to ongoing removal or remedial action chosen by EPA, subject to limited exceptions.

On July 23, in ASARCO LLC v. Union Pacific Railroad Company, et al. No. 13-1435 (10th Cir.), the Tenth Circuit rejected the notion that settlement requirements are different in the bankruptcy context. Section 113 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §9613, provides a statutory right of contribution for any party who has paid more than its fair share of cleanup costs or natural resource damages to recover from other liable parties on an equitable basis. However, CERCLA also sets a three-year statute of limitations for bringing such contribution claims.