U.S. Supreme Court Weighs in on CERCLA Contribution Trigger

By: Jay Tufano

In a unanimous decision delivered by Justice Thomas, Territory of Guam v. United States, No. 20-382, 2021 WL 2044537 (U.S. May 24, 2021), the United States Supreme Court clarified that to trigger CERCLA’s contribution protections under 42 U.S.C. § 9613 (f), a party must settle a CERCLA-specific claim with United States (i.e., EPA). The implication is that a party who settles with the United States in an action arising under similar a statute such as the federal Clean Water Act is not entitled to pursue a CERCLA contribution based on that settlement. And as held in Guam, nor is that party subject to the three-year statute of limitations governing contribution actions which begins to run from the date of settlement.

Guam involves contamination at the Ordot Dump (in Agana, Guam), originally built in the 1940’s by the U.S. Navy. After the United States discontinued its use of the facility, Guam used it as a public landfill. In the late 1990’s, EPA sued Guam under the Clean Water Act and the matter settled in in 2004 via consent decree.

In 2017 Guam, in turn, sued the United States in the District Court for the District of Columbia under CERCLA seeking cost recovery (42 U.S.C. § 9607) and contribution costs (42 U.S.C. § 9613) for contamination allegedly caused by the U.S. Navy resulting from military waste. The district court granted the United States’ motion to dismiss finding that (1) Guam could not assert a cost-recovery claim if it had a viable contribution claim and (2) that Guam at one point had a contribution claim but it was barred by CERCLA’s three-year statute of limitations based on the 2004 Clean Water Act settlement.

The High Court reversed, holding that a section 9613 contribution action is not triggered unless the underlying settlement involved CERCLA-specific claims. (Id. at *3-5.)

In drawing this conclusion, the Court noted that Section 9613 must be read as a whole and in context. That is, Section 9613’s contribution protection is specifically tied to CERCLA settlements and is rife with CERCLA-specific terminology such as “response action” and “response costs” (Id. at *4.) As such, there is no basis to infer that Section 9613’s contribution rights are triggered by a settlement under some other statute.

Given that prevalence of state statutes modeled on CERCLA across the U.S., the Guam decision leaves open the question of how far courts will go in determining whether a case that has been resolved under an analogous state statute has been resolved under CERCLA.