Tenth Circuit Clarifies CERCLA Timing: §113(g)(3)’s Three-Year Limitations Period Applies to All Contribution Actions—Triggered by Entry of an Administrative Settlement; Sun Co. Abrogated

Case: Atlantic Richfield Company v. NL Industries, Inc.; NL Environmental Management Services

Court: United States Court of Appeals for the Tenth Circuit

Date: March 27, 2025

Disposition: Reversed and remanded; panel rehearing granted in part; rehearing en banc denied

Introduction

This published Tenth Circuit decision addresses a recurring and consequential question under CERCLA: when a party that has entered into an administrative settlement with the EPA seeks to recoup a portion of its cleanup expenditures from other potentially responsible parties (PRPs), which statute of limitations governs—CERCLA’s cost-recovery limitation in §113(g)(2) or its contribution limitation in §113(g)(3)? The answer determines timeliness and, often, the viability of substantial claims.

Atlantic Richfield Company (ARCO) incurred substantial costs responding to sulfuric acid releases associated with a Colorado mining operation. After initially suing under CERCLA for cost recovery, ARCO settled with the EPA and amended its claims to seek contribution from NL Industries and NL Environmental Management Services. The district court granted partial summary judgment to the NL entities, deeming the claims untimely by applying the cost-recovery limitations framework. ARCO appealed.

The panel holds that ARCO’s claims are contribution claims under §113(f)(3)(B), not cost-recovery claims, and that the three-year limitations period for contribution in §113(g)(3) supplies the governing timeframe—even though the text of §113(g)(3) enumerates trigger events that do not expressly include the type of administrative settlement present here. The court borrows §113(g)(3) as the “most closely analogous” limitations rule and pegs the trigger to the entry of the administrative settlement order. The ruling reverses summary judgment and clarifies that the Tenth Circuit’s earlier decision in Sun Co. v. Browning-Ferris, Inc. has been abrogated by subsequent Supreme Court precedent distinguishing cost recovery and contribution as “clearly distinct” causes of action.

Summary of the Opinion

Nature of action: The court characterizes ARCO’s suit as a contribution action under CERCLA §113(f)(3)(B) because ARCO settled with the EPA, resolved liability for a “response action,” and sought equitable apportionment from non-settling PRPs.
Statute of limitations: Although §113(g)(3) lists specific triggering events (judgment, §122(g) de minimis settlements, §122(h) cost-recovery settlements, and judicially approved settlements), the panel holds that §113(g)(3)’s three-year period applies to all contribution actions. Where the listed triggers do not precisely fit, the court borrows the most closely analogous federal limitations period—§113(g)(3)—and uses the entry of the administrative settlement order as the trigger.
Abrogation of Sun Co.: The Tenth Circuit’s pre-Atlantic Research/Supreme Court approach in Sun Co. treating contribution as a subset of cost recovery is no longer viable. Supreme Court decisions in Cooper Industries and Atlantic Research “unambiguously” establish that §§107 and 113 are distinct causes of action governed by distinct limitations provisions.
Outcome: Applying the three-year contribution period from the date of the administrative settlement order (entered in 2021), ARCO’s 2022 contribution claims are timely. The court reverses the district court’s grant of partial summary judgment and remands.

Analysis

1) Precedents Cited and Their Influence

United States v. Atlantic Research Corp., 551 U.S. 128 (2007)
The Supreme Court clarified that §107(a) (cost recovery) and §113(f) (contribution) provide distinct rights of action. This distinction is foundational to the Tenth Circuit’s rejection of Sun Co.’s conflation of contribution with cost recovery. The panel also acknowledges Atlantic Research’s note that the provisions are “similar and somewhat overlapping,” but emphasizes the Court’s repeated insistence on their distinctness.
Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004)
Cooper Industries confirms that contribution under §113(f) is available only in specified procedural circumstances and characterizes the §107 and §113 remedies as “clearly distinct.” The Tenth Circuit relies on this to conclude Sun Co. is abrogated: it can no longer treat contribution as a subset of cost recovery.
Sun Co. v. Browning-Ferris, Inc., 124 F.3d 1187 (10th Cir. 1997)
Sun Co. used the §113(g)(2) cost-recovery period for what it called a “type of cost-recovery action,” even though it involved equitable apportionment between PRPs. After Cooper Industries and Atlantic Research, this approach is untenable. The panel expressly recognizes Sun Co. as no longer good law in light of Supreme Court doctrine.
Hobart Corp. v. Waste Mgmt. of Ohio, Inc., 758 F.3d 757 (6th Cir. 2014)
The Sixth Circuit held that §113(g)(3) provides the governing limitations period for contribution claims and that, when the listed triggers do not fit, the “signing of the administrative settlement agreement” is the most logical trigger. The Tenth Circuit follows this logic to anchor the trigger to the entry of the administrative settlement order.
Cranbury Brick Yard, LLC v. United States, 943 F.3d 701 (3d Cir. 2019)
The Third Circuit applied §113(g)(3) to §113(f)(3)(B) contribution actions even when not neatly enumerated in §113(g)(3), rejecting the application of the cost-recovery trigger. The Tenth Circuit aligns with this reasoning to ensure uniformity in federal CERCLA timing.
ASARCO, LLC v. Celanese Chem. Co., 792 F.3d 1203 (9th Cir. 2015)
The Ninth Circuit stated that “any contribution claim is subject to the statute of limitations in §113(g)(3).” The Tenth Circuit quotes and adopts this categorical approach.
RSR Corp. v. Commercial Metals Co., 496 F.3d 552 (6th Cir. 2007)
Recognizes congressional design of separate limitations periods for contribution and cost recovery and applies §113(g)(3) as the appropriate analogy for contribution claims even where particular triggers are not listed.
Consolidated Edison Co. v. UGI Utilities, Inc., 423 F.3d 90 (2d Cir. 2005)
Interprets Cooper Industries to foreclose viewing §113(f) as the mechanism for effectuating §107(a) cost recovery for PRPs—reinforcing the distinctness of the remedies.
United Techs. Corp. v. Browning-Ferris Indus., Inc., 33 F.3d 96 (1st Cir. 1994), and Key Tronic Corp. v. United States, 511 U.S. 809 (1994)
Cited for the limited observation that the remedies may be “similar and somewhat overlapping,” but not to undermine the core principle that the causes of action are distinct.
DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151 (1983), and Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143 (1987)
Provide the framework for borrowing the “most closely analogous” statute of limitations when an express provision does not squarely apply—here, justifying use of §113(g)(3) for a §113(f)(3)(B) contribution action arising from an administrative settlement not expressly enumerated.
Standards for precedent abrogation and appellate procedure: United States v. Brooks, 751 F.3d 1204 (10th Cir. 2014); Barnes v. United States, 776 F.3d 1134 (10th Cir. 2015); United States v. Venjohn, 104 F.4th 179 (10th Cir. 2024) (abrogation where Supreme Court decisions fatally undermine foundation); Zahourek Sys., Inc. v. Balanced Body Univ., LLC, 965 F.3d 1141 (10th Cir. 2020) (summary judgment standard); Wildearth Guardians v. U.S. Fish & Wildlife Serv., 784 F.3d 677 (10th Cir. 2015) (supplemental appendix denial).
Legislative history: H.R. Rep. No. 253, 99th Cong., 1st Sess., pt. 1, at 79–80 (1985); H.R. Conf. Rep. No. 962, 99th Cong., 2d Sess., at 223 (1986). These materials confirm Congress’s design of separate and uniform limitations periods for contribution and for cost recovery.

2) Legal Reasoning

Characterization of the claim controls the limitations period.
ARCO’s settlement with the EPA resolved liability for a response action (specifically, a “removal action”), bringing the case within §113(f)(3)(B). That provision authorizes contribution actions by settling PRPs. Because the claim is contribution—not cost recovery—§113(g)(2) (the cost-recovery limitations provision) is inapplicable by design.
Sun Co. is no longer viable after Cooper Industries and Atlantic Research.
The panel explains that Sun Co.’s premise—treating contribution as a species of cost recovery—has been “unambiguously abrogated” because the Supreme Court has made clear that §§107(a) and 113(f) supply “clearly distinct” causes of action. The Tenth Circuit thus cannot continue to apply §113(g)(2) to contribution suits simply because §113(g)(3) does not enumerate the precise trigger at issue.
Borrowing the most closely analogous limitations period: §113(g)(3) governs.
Although §113(g)(3) lists four specific triggering events (entry of judgment; §122(g) de minimis settlement; §122(h) cost-recovery settlement for government-incurred costs; and a judicially approved settlement), the statute does not expressly mention the administrative settlement here, which required ARCO to perform removal work and protected it from future EPA liability. Using DelCostello’s borrowing principle, the court selects §113(g)(3) as the closest fit because:
- The claim is a contribution action, not a cost-recovery action;
- Congress intended separate and uniform timing rules for contribution versus cost recovery;
- Borrowing state-law limitations would create a patchwork; federal uniformity is preferred.
Triggering event: entry of the administrative settlement order.
Aligning with the Sixth Circuit’s Hobart approach, the Tenth Circuit holds that when §113(g)(3)’s enumerated triggers do not fit a §113(f)(3)(B) administrative settlement, the most logical trigger is the entry of the administrative settlement order itself. Here, the order was entered in 2021, and ARCO sued in 2022; thus, the claims are timely within the three-year period.
“Gaming the system” argument rejected.
The NL entities argued ARCO was trying to repackage previously asserted cost-recovery expenses as contribution. The court explains that the EPA settlement changed the legal character of the claim: once ARCO resolved its liability through an administrative settlement that imposed cleanup obligations and provided covenants, the proper avenue was contribution under §113(f)(3)(B). Motive is irrelevant; the settlement’s terms trigger contribution as a matter of law.

3) Impact

This opinion brings the Tenth Circuit into alignment with the Third, Sixth, and Ninth Circuits on two important points: (1) contribution and cost recovery are distinct rights governed by distinct limitation periods; and (2) §113(g)(3)’s three-year clock governs §113(f)(3)(B) contribution actions, with the administrative settlement’s entry serving as the trigger when §113(g)(3)’s enumerated triggers do not precisely apply.

Practical timing rule for PRPs: PRPs that enter administrative settlements resolving CERCLA liability must file contribution suits within three years of the administrative settlement order’s entry. They cannot rely on the longer or differently triggered periods in §113(g)(2).
Uniformity and predictability: By borrowing §113(g)(3) rather than turning to state law or §113(g)(2), the decision promotes a consistent federal timing rule for contribution actions and avoids state-by-state disparities.
Litigation strategy and pleading: After settlement with the EPA, PRPs should treat their recoupment claims as contribution claims under §113(f)(3)(B). Attempting to proceed under §107(a) or import §113(g)(2) triggers risks dismissal as untimely.
Settlement incentives: The decision reinforces that settlement transforms the procedural posture and the applicable limitations framework. Parties will need to docket the three-year deadline at the moment of administrative order entry.
Clarification of Tenth Circuit law: Sun Co. can no longer be invoked to graft the cost-recovery limitations period onto contribution suits. This clarification resolves a source of intra-circuit uncertainty.

Complex Concepts Simplified

CERCLA cost recovery (§107(a)) vs. contribution (§113(f)):
- Cost recovery lets parties who incur cleanup costs independently (without having been sued or having settled liability) recover from PRPs.
- Contribution lets a PRP who has been sued or has settled its liability seek equitable apportionment of cleanup costs from other PRPs.
§113(f)(3)(B) contribution: A party that resolves its CERCLA liability to the United States or a state “for some or all of a response action” in an administratively or judicially approved settlement may seek contribution against non-settling PRPs.
“Response action” and “removal”: CERCLA defines “response” to include both “removal” and “remedial” actions. A removal action generally addresses immediate threats (e.g., stabilizing wastes, installing treatment systems), whereas remedial actions are longer-term, permanent solutions.
Statutes of limitations:
- §113(g)(2) applies to cost-recovery actions under §107(a) and has its own triggers and durations.
- §113(g)(3) applies to contribution actions under §113(f) and generally imposes a three-year period from specified events. Even when a particular event is not enumerated, courts borrow §113(g)(3) for contribution claims as the closest analogue and identify a logical trigger tied to settlement or judgment.
Administrative settlements and trigger events: Some administrative settlements (e.g., under §122(h)) relate to reimbursement of EPA’s costs and are expressly listed in §113(g)(3). Others, like the settlement here, impose cleanup obligations (a response action) and are not literally enumerated. In such cases, courts treat the entry/signing of the administrative settlement order as the trigger for the three-year clock.
Abrogation of precedent: A circuit court may recognize that a prior circuit decision has been abrogated when subsequent Supreme Court decisions “fatally undermine” the earlier decision’s foundation, even if the Supreme Court has not expressly overruled the circuit case by name.

Additional Observations

Procedural posture: The court reviewed de novo the district court’s summary judgment ruling, viewing facts in the light most favorable to ARCO and finding no applicable express limitations provision, thereby applying federal borrowing principles.
Scope of the appeal: The NL entities did not seek summary judgment on the separate claim concerning ARCO’s $400,000 payment to EPA under §122(h), and the court’s timeliness analysis concerns the cleanup costs ARCO incurred itself pursuant to the administrative settlement.
Supplemental appendix: ARCO’s motion to file a supplemental appendix was denied as the materials could have been included initially, but this procedural ruling did not affect the merits.

Conclusion

The Tenth Circuit’s decision in Atlantic Richfield v. NL Industries squarely confirms that CERCLA contribution and cost recovery are distinct causes of action governed by distinct statutes of limitations. When a PRP settles with the EPA and resolves liability for a response action, any suit to reallocate costs is a contribution action under §113(f)(3)(B). Even if §113(g)(3) does not list the precise administrative settlement at issue, courts must borrow §113(g)(3)’s three-year limitations period as the closest analogue and treat the entry of the administrative settlement order as the triggering event. This approach abrogates the circuit’s earlier Sun Co. framework, harmonizes Tenth Circuit law with other circuits, promotes uniformity in federal environmental litigation, and provides a clear rule-of-thumb for practitioners: after entering an administrative settlement that resolves CERCLA liability, docket the three-year contribution deadline from the date the settlement order is entered.

Key Takeaways

After an EPA settlement resolving liability for a response action, PRPs must proceed under §113(f)(3)(B) (contribution), not §107(a) (cost recovery).
§113(g)(3)’s three-year limitations period governs all contribution actions; where the statute’s enumerated triggers do not fit, the entry of the administrative settlement order serves as the trigger.
Sun Co. is abrogated by Supreme Court precedent; contribution cannot be treated as a subset of cost recovery for limitations purposes.
ARCO’s claims were timely because it sued within three years of the 2021 administrative settlement order.