9th Circuit Concludes that RCRA Corrective Action is a CERCLA Response Action

In ASARCO, LLC v Atlantic Richfield Co., 2017 WL 3427708 (9th Cir. August 10, 2017) the court addressed whether a settlement under the Resource Conservation and Recovery Act (RCRA) could give rise to a contribution action under the Comprehensive Environmental Responsce Compensation and Liability Act (CERCLA).   The court noted a split in the federal circuits on the issue and sided with the Third Circuit in concluding that a RCRA settlement can trigger a CERCLA contribution action.  The court’s reasoning was based largely on the wording of the CERCLA contribution provision.  CERCLA contains two distinct contribution provisions.  Section 113(f)(3)(B) provides a contribution action only during or after an action under CERCLA.  Section 113(f)(1), in contrast, provides a contribution claim to persons who have settled a “response” action.  The court explained that by including the requirement that the triggering action be a CERCLA action in one provision and not the other, Congress must have intended that limitation to apply only where specified.

The primary difference between RCRA and CERCLA is that RCRA regulates the use, handling and disposal of hazardous wastes at active industrial sites and CERCLA provides a liability scheme for the remediation of inactive hazardous waste disposal sites.  Some sites are subject to both programs.  At these sites, whether a response action is called a RCRA corrective action or a CERCLA response largely makes no difference.   A response action that satisfies one program should satisfy the other.   This decision is consistent with that principal, so that, as a practical matter, which program the remediation satisfies should not make a difference.

Despite this decision, a responsible party, performing RCRA corrective action pursuant to a settlement agreement should seek to include a provision that the settlement is resolving CERCLA liabiliity as well.  This makes the right to contribution stronger, but more importantly, one wants the broadest resolution possible to limit future claims.

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