In a decision released on June 25, 2014, the US Court of Appeals for the Second Circuit held that ASARCO LLC could not maintain CERCLA cost recovery actions against the trustees of residuary trusts created by the will of John D. Rockefeller, Sr. ASARCO, as part of its emergence from Chapter 11 bankruptcy, paid the US, the State of Washington, and the Port of Everett, Washington $50.2 million to settle pending CERCLA claims at two Superfund sites in Washington State. ASARCO then filed its contribution action against the trustees in federal court on the theory that the remediation costs were “fairly attributable” to the actions of its predecessors at these sites, corporations controlled by Rockefeller that were engaged in mining and smeltering operations nearly 100 years ago. The Second Circuit, affirming the lower court, rejected ASARCO’s claims on the basis that they were barred by the relevant CERCLA statute of limitations, and that ASARCO was not a subrogee entitled to take advantage of another, more generous CERCLA statute of limitation. The case is ASARCO LLC v. Goodwin, et. al.
This ruling follows by only a few days a similar decision by the Tenth Circuit in the case of ASARCO LLC v. Union Pacific Railroad Company, et. al. ASARCO argued that these defendants (the Union Pacific Railroad, the Union Pacific Corporation, Pepsi-Cola, and a bottling company) were also potentially responsible parties at the Vasquez site in Denver, Colorado. ASARCO paid over $1.5 million to settle these claims. The court of appeals held that ASARCO’s post-bankruptcy claims were barred by the relevant CERCLA statute of limitation, and again, that ASARCO could not be considered a subrogee entitled to the CERCLA statute of limitations applicable to subrogees.
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