CERCLA Actions and Statute of Limitations: Navigating the Circuit Split, Lessons From Recent Decisions

Practical Implications for Whether Judicially Approved Settlement Requires Resolution of CERCLA Liability

Recording of a 90-minute CLE webinar with Q&A


Conducted on Thursday, February 2, 2017
Recorded event now available


This CLE webinar will provide guidance to counsel on the application of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) statute of limitations and when settlements trigger the statute. The panel will examine recent decisions and the circuit split, as well as offer best practices for managing timing issues in Superfund and environmental litigation.

Description

CERCLA is an evolving area of law and how the courts interpret it varies from jurisdiction to jurisdiction. Plaintiffs and defendants must navigate a growing and conflicting body of law regarding the statute of limitations.

The Second Circuit held a judicially approved settlement of environmental liabilities does not trigger the statute of limitations on a CERCLA contribution claim. In the Third Circuit, a judicially approved settlement of state law claims can give rise to a CERCLA contribution action, and thereby trigger the three-year statute of limitations on that claim.

The Ninth Circuit discussed the statute of limitations issue in Whittaker Corp. v. United States (June 13, 2016) and is expected to weigh in on the issue in Asarco L.L.C. v. Atlantic Richfield Co., where Asarco is appealing the district court decision, which followed the Third Circuit’s broader view and concluded Asarco waited too long to bring its CERCLA contribution claim against Atlantic Richfield.

Many federal circuit courts have not addressed the issue of when settlements trigger the statute of limitations for CERCLA actions. Environmental counsel must understand this issue or face statute of limitations challenges.

Listen as our authoritative panel of environmental attorneys examines the circuit split on the issue of the statute of limitations for CERCLA actions. The panel will discuss the two private rights of action under CERCLA and the practical implications of how the courts are ruling. The panel will also offer best practices for addressing the issue and avoiding statute of limitations problems.

Outline

  1. CERCLA actions and statute of limitations
    1. Contribution
    2. Cost recovery
  2. Circuit split on the statute of limitations and its implications
  3. Best practices for addressing the issues and avoiding statute of limitations issues

Benefits

The panel will review these and other key issues:

  • How are the federal courts addressing the issue of when settlement triggers the statute of limitations?
  • What factors should counsel consider when deciding when to file a contribution claim?
  • What best practices can counsel employ to reduce CERCLA liability early in the litigation?

Faculty

Leah J. Knowlton, Partner
Taylor English Duma, Atlanta

Ms. Knowlton has more than 25 years of experience counseling clients on environmental regulatory matters and representing them in criminal and civil litigation involving chemical contamination and other environmental violations. Ms. Knowlton regularly develops and implements environmental compliance management systems and advises clients on chemical safety and security matters. She has extensive experience assessing environmental risk and negotiating contracts and remediation plans in corporate and real estate transactions. 

Summer Nastich, Founder
Nastich Law, Berkeley, Calif.

Ms. Nastich specializes in environmental, construction, and land use law, including any necessary litigation. Her legal practice is focused on environmental and heavy industrial/commercial construction projects, hazardous substance remediation and removal projects, environmental law and regulation compliance, release reporting, and pollution-related disputes. Ms. Nastich advises, counsels and litigates issues involving state and federal governmental statutes, including CERCLA, RCRA, CWA, and in trespass and nuisance claims.

Christopher (Smitty) Smith, Esq.
Steptoe & Johnson, Los Angeles

Mr. Smith practices regulatory compliance and litigation as it relates to environmental matters. He concentrates on complex environmental and mass tort litigation and regulatory matters, and a variety of commercial disputes. Mr. Smith regularly prosecutes and defends claims under federal and state environmental statutory schemes, including CERCLA, California’s Hazardous Substances Account Act, the RCRA, the CWA, FIFRA, and California’s Safe Drinking Water and Toxic Enforcement Act.


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Environmental Law Advisory Board

John J. Allen

Partner

Allen Matkins

Albert M. Cohen

Partner

Loeb & Loeb

Aaron Courtney

Of Counsel

Stoel Rives

Andrew N. Davis

Partner

Shipman & Goodwin

David R. Gillay

Partner

Barnes & Thornburg

Paul E. Gutermann

Partner

Akin Gump Strauss Hauer & Feld

Brian D. Israel

Partner

Arnold & Porter

Thomas J. P. McHenry

Partner

Gibson Dunn & Crutcher

Reed D. Rubinstein

Partner

Dinsmore & Shohl

James B. Slaughter

Principal

Beveridge & Diamond

Jeffrey A. Smith

Partner

Crowell & Moring

E. Gail Suchman

Special Counsel

Stroock & Stroock & Lavan

Gregory D. Trimarche

Partner

Wrenn Bender

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