Uniform Three-Year Limitations for CERCLA Contribution Claims: Tenth Circuit Applies §113(g)(3) to §113(f)(3)(B) Administrative Settlements and Declares Sun Co. No Longer Viable

Uniform Three-Year Limitations for CERCLA Contribution Claims: Tenth Circuit Applies §113(g)(3) to §113(f)(3)(B) Administrative Settlements and Declares Sun Co. No Longer Viable

Court: United States Court of Appeals for the Tenth Circuit

Date: March 27, 2025

Case: Atlantic Richfield Company v. NL Industries, Inc.; NL Environmental Management Services (No. 23-1349)

Panel: Holmes, C.J., Ebel, J., and Bacharach, J. (opinion by Bacharach, J.)

Disposition: Reversed and remanded. Panel rehearing granted in part for minor modifications; rehearing en banc denied.

Introduction

This published decision resolves a recurring and consequential timing question under CERCLA: which statute of limitations governs a contribution claim under §113(f)(3)(B) when the administrative settlement that triggers the contribution right does not neatly fit the four triggering events listed in §113(g)(3)?

Atlantic Richfield Company (ARCO) sought to shift a portion of substantial environmental cleanup costs at a Colorado mining site to NL Industries and its affiliate (collectively, NL). After the EPA ordered ARCO to take actions and later entered an administrative settlement that resolved ARCO’s liability for certain response actions, ARCO amended an earlier cost-recovery suit to assert contribution under §113(f)(3)(B). The district court held the claims time-barred by applying the cost-recovery limitations provision, §113(g)(2). The Tenth Circuit reversed, holding that because ARCO’s claim is a contribution claim, the most closely analogous—and controlling—limitations period is §113(g)(3)’s three-year period for contribution, even if §113(g)(3)’s enumerated triggering events do not literally apply. The Court further concluded that the settlement’s entry in 2021 is the logical trigger, making ARCO’s 2022 suit timely.

In reaching this outcome, the Court expressly recognized that its earlier approach in Sun Co. v. Browning-Ferris, Inc. is no longer viable in light of Supreme Court decisions clarifying that §107(a) cost recovery and §113(f) contribution are distinct remedies governed by distinct statutes and time bars. The opinion aligns the Tenth Circuit with the Third, Sixth, and Ninth Circuits on this limitations question.

Summary of the Opinion

  • The Court characterizes ARCO’s claims as contribution under §113(f)(3)(B) because they follow an administratively approved settlement with EPA that resolved ARCO’s liability for “some or all” of a response action (a removal action at the site).
  • Although §113(g)(3) lists four specific triggers (judgment, §122(g) de minimis settlement, §122(h) cost-recovery administrative settlement, or a judicially approved settlement), the settlement at issue here is not a §122(h) settlement with respect to the particular costs ARCO seeks to recoup (its own cleanup costs). Therefore, no CERCLA limitations provision literally applies.
  • Applying federal borrowing principles, the Court selects the most closely analogous limitations period—§113(g)(3)’s three-year period for contribution claims—rather than §113(g)(2)’s period for cost-recovery claims. The nature of the claim (contribution) controls the choice of the time bar.
  • The Court holds the administrative settlement’s entry in 2021 is the logical triggering event; because ARCO filed the contribution claim in 2022, the claim is timely.
  • The Court rejects the district court’s use of §113(g)(2) and confirms that Sun Co.’s treatment of contribution as a subset of cost recovery cannot survive Supreme Court authority recognizing the distinctness of §§107 and 113.

Background

Decades of acid leakage from a plant near a Colorado mine contaminated a river. The mine owner attempted to contain sulfuric acid with sludge ponds; ARCO later acquired the mine and expanded the ponds. EPA stabilization efforts in 2000 did not stop the leakage. In 2011, EPA ordered ARCO to install water treatment systems.

In 2020, ARCO sued NL for cost recovery under CERCLA §107(a). In 2021, ARCO entered into an administratively approved settlement with EPA that required ARCO to perform a removal action and to pay $400,000 to reimburse EPA’s costs. After that settlement, ARCO amended its complaint, now seeking contribution from NL under §113(f)(3)(B) for a portion of ARCO’s cleanup expenses.

NL moved for partial summary judgment on the cleanup-cost contribution claims (not challenging the separate claim tied to the $400,000 paid to EPA). The district court granted NL’s motion, ruling the claims time-barred. ARCO appealed.

Analysis

Precedents Cited and Their Influence

  • Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004)
    • Key holding: §113(f)(1) contribution is available “during or following” specified civil actions; more broadly, the Court recognized the distinctness of contribution (§113) and cost recovery (§107(a)).
    • Relevance: Undermines the Tenth Circuit’s earlier conflation of remedies in Sun Co. and supports treating the claim here as contribution, with a contribution-specific limitations framework.
  • United States v. Atlantic Research Corp., 551 U.S. 128 (2007)
    • Key holding: §107(a) and §113(f) provide distinct causes of action for cost recovery and contribution, respectively, available to persons in different procedural postures.
    • Relevance: Reinforces that a party with an administrative settlement resolving liability for response actions proceeds under §113(f)(3)(B), not §107(a). Also informs the limitations analysis by clarifying the distinct remedies.
  • Key Tronic Corp. v. United States, 511 U.S. 809 (1994)
    • Described §§107 and 113 as similar and somewhat overlapping, but nonetheless distinct in remedy and purpose.
  • Sun Co. v. Browning-Ferris, Inc., 124 F.3d 1187 (10th Cir. 1997)
    • Earlier Tenth Circuit approach that treated contribution as a subset of cost recovery for limitations purposes when §113(g)(3)’s triggers did not fit.
    • Current opinion: Sun Co. is no longer viable after Cooper Industries and Atlantic Research clarified the distinctness of §§107 and 113. Other circuits have likewise rejected Sun Co.’s approach.
  • Hobart Corp. v. Waste Mgmt. of Ohio, Inc., 758 F.3d 757 (6th Cir. 2014)
    • Held §113(g)(3) governs contribution claims generally and that, where §113(g)(3) lacks an explicit trigger for an administrative settlement not listed, the settlement’s signing is the logical trigger.
    • Influence: The Tenth Circuit follows Hobart’s logic regarding both the applicable limitations provision and the trigger.
  • Cranbury Brick Yard, LLC v. United States, 943 F.3d 701 (3d Cir. 2019)
    • Applied §113(g)(3) to a §113(f)(3)(B) contribution claim even though none of the listed triggers fit; declined to borrow state law; emphasized the importance of uniform federal limitations policy.
    • Influence: Supports selecting §113(g)(3) as the most analogous—and intended—limitations provision for contribution claims.
  • RSR Corp. v. Commercial Metals Co., 496 F.3d 552 (6th Cir. 2007)
    • Concluded Congress designed separate limitations for contribution and cost recovery, warranting application of §113(g)(3) to contribution claims even if enumerated triggers are not a perfect fit.
  • ASARCO, LLC v. Celanese Chemical Co., 792 F.3d 1203 (9th Cir. 2015)
    • Confirmed that any contribution claim is subject to §113(g)(3)’s three-year limitations period, underscoring the uniform-contribution-time-bar principle.
  • Consolidated Edison Co. v. UGI Utilities, Inc., 423 F.3d 90 (2d Cir. 2005)
    • Read Cooper Industries to require treating §§107 and 113 as distinct, undermining older views that blended the two.
  • DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151 (1983); Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143 (1987)
    • Provide the borrowing framework: when no explicit limitations period applies, courts borrow the most closely analogous federal statute of limitations to serve federal policy and uniformity.
    • Influence: Justifies borrowing §113(g)(3) rather than using §113(g)(2) or a patchwork of state limitations rules.

Legal Reasoning

  1. Characterization of the claim
    • ARCO entered an administrative settlement with EPA that resolved ARCO’s liability for a “response action”—specifically, a removal action at the site. CERCLA defines “response” to include removal and remedial actions. This squarely fits §113(f)(3)(B), which authorizes a contribution claim by a party that has resolved its liability to the United States for “some or all of a response action” through an administrative or judicially approved settlement.
    • Because the settlement resolved ARCO’s response obligations, ARCO’s claim is in contribution, not cost recovery. The settlement also forecloses pursuing the same costs under §107(a), consistent with the Supreme Court’s distinct-remedies frame.
  2. Sun Co. cannot control after Cooper Industries and Atlantic Research
    • Sun Co. treated contribution as a species of cost recovery for limitations purposes when §113(g)(3) did not neatly fit. The Supreme Court has since confirmed that §107(a) and §113(f) are distinct remedies for different procedural circumstances.
    • Under Tenth Circuit abrogation principles (citing cases like Brooks, Barnes, and Venjohn), where a Supreme Court decision fatally undermines the foundation of a circuit precedent, that precedent is no longer viable. Thus, Sun Co. is no longer good law on this point.
  3. Choice of the applicable limitations period via federal borrowing
    • Problem: §113(g)(3) lists four events that trigger the three-year limitations period for contribution claims (judgment; de minimis §122(g) settlements; §122(h) administrative settlements for governmental cost recovery; judicially approved settlements). ARCO’s claim to recoup its own cleanup expenses is not a §122(h) settlement, and the other triggers do not literally apply.
    • Solution: Borrow the most closely analogous federal limitations period. Because the claim is a contribution claim, §113(g)(3) is the closest—and intended—fit. Using state limitations periods would undermine uniformity and federal cleanup policy and lead to forum-dependent variability. Using §113(g)(2) would mischaracterize the claim and disregard the congressional design of separate time bars.
    • Trigger: Following Hobart and Cranbury, the Court identifies the administrative settlement’s entry in 2021 as the logical trigger for the three-year period in this context.
  4. Application to the facts and outcome
    • ARCO filed the contribution claim in 2022, within three years of the 2021 administrative settlement. Therefore, the claim is timely under §113(g)(3) as borrowed and applied here.
    • The Court reverses the district court’s grant of partial summary judgment and remands for further proceedings.
  5. Response to “gaming” accusation
    • NL argued that ARCO “gamed” the system by initially filing a §107(a) cost-recovery action and then amending to contribution after settling. The Court rejects this framing: the legal nature of the claim changed by operation of law when ARCO resolved its liability through the settlement. That settlement both triggered §113(f)(3)(B) contribution rights and foreclosed §107(a) cost-recovery for the same costs.

Impact and Significance

  • Alignment with the majority approach
    • The Tenth Circuit now expressly aligns with the Third, Sixth, and Ninth Circuits in holding that §113(g)(3)’s three-year limitations period governs contribution claims under §113(f)(3)(B) even when none of §113(g)(3)’s enumerated triggers precisely apply. This strengthens national uniformity in CERCLA contribution timing.
  • Abrogation of Sun Co. approach
    • By recognizing that contribution and cost recovery are distinct and must be governed by their respective limitations provisions, the Court confirms that Sun Co.’s blending of the two (for limitations purposes) is no longer viable. This removes a source of confusion within the Tenth Circuit and clarifies pleading and limitations strategies for CERCLA practitioners.
  • Practical filing guidance for PRPs
    • Parties that enter administrative settlements resolving response liabilities must treat those settlements as the trigger for a three-year window to bring contribution claims for covered costs. Docket the settlement’s effective or entry date and file within three years.
    • Pre-settlement voluntary costs that are not resolved in the settlement may, in some circumstances, proceed under §107(a), but once a §113(f) contribution right exists for particular costs, courts generally require use of §113(f) for those costs.
  • Reduced forum shopping and increased predictability
    • By borrowing a federal time bar (rather than a state period) and using the nature of the action to drive the choice of limitations period, the opinion curbs inconsistent outcomes and forum-dependent deadlines.
  • Defense strategy recalibration
    • Defendants will still have a potent limitations defense, but the clock will generally run from the settlement’s entry (or comparable administrative order) for contribution claims, rather than from cleanup milestones relevant to §107(a). Older administrative settlements may already have started—and perhaps expired—the three-year clock.

Complex Concepts Simplified

  • CERCLA “cost recovery” vs. “contribution”
    • Cost recovery (§107(a)): A party that voluntarily incurs cleanup costs can sue potentially responsible parties (PRPs) to recover those costs, often on a joint-and-several basis. Typically available when the plaintiff has not resolved its own liability through a settlement or been sued in a qualifying civil action.
    • Contribution (§113(f)): A PRP that has been sued in certain civil actions (§113(f)(1)) or has resolved its liability to the government for some or all of a response action in an administrative or judicial settlement (§113(f)(3)(B)) can seek to equitably apportion costs among other PRPs.
    • They are distinct remedies serving different procedural contexts, and they carry distinct statutes of limitations.
  • Response actions, removal vs. remedial
    • “Response” encompasses both “removal” and “remedial” actions. Removal actions are often shorter-term, aimed at immediate threats; remedial actions are longer-term, comprehensive cleanups. Either type can support contribution under §113(f)(3)(B) if liability for the action is resolved in a settlement.
  • Administrative settlements and §122(h)
    • Section 122(h) authorizes administrative settlements specifically for recovery of government-incurred costs. If the settlement is a §122(h) settlement, §113(g)(3) expressly lists it as a trigger. But many administrative settlements (e.g., Administrative Orders on Consent) resolve a PRP’s obligations to perform work (a removal action) rather than reimburse government costs; these are still §113(f)(3)(B) settlements even if they are not §122(h) settlements for limitations-trigger purposes.
  • Borrowing a limitations period
    • When a federal statute creates a cause of action but does not supply an explicit limitations period for the precise scenario, courts borrow the most closely analogous federal limitations period to further federal policy and ensure uniformity, rather than defaulting to state-law periods.
  • Triggering event under §113(g)(3) for administrative settlements not enumerated
    • Courts have treated the entry or effective date of the administrative settlement as the logical trigger for the three-year limitations clock on contribution claims arising from that settlement.

Key Takeaways

  • Contribution vs. cost recovery matters not just for remedy but also for limitations: a §113(f)(3)(B) contribution claim is governed by §113(g)(3)’s three-year period, even if §113(g)(3)’s listed triggers do not literally apply.
  • The entry or effective date of the administrative settlement is the most logical—and now controlling within the Tenth Circuit—trigger for the three-year limitations period for §113(f)(3)(B) contribution claims.
  • Sun Co.’s earlier approach of treating contribution as a subset of cost recovery for limitations purposes is no longer viable in the Tenth Circuit after Supreme Court precedent clarified the distinctness of §§107 and 113.
  • The Tenth Circuit joins the Third, Sixth, and Ninth Circuits in adopting a uniform federal limitations framework that promotes predictability and reduces forum shopping.

Conclusion

Atlantic Richfield v. NL Industries sets an important and clarifying rule in the Tenth Circuit’s CERCLA jurisprudence: where a PRP’s contribution claim arises under §113(f)(3)(B) by virtue of an administrative settlement resolving liability for a response action, the applicable statute of limitations is the three-year period in §113(g)(3). This is true even when none of §113(g)(3)’s enumerated triggers maps exactly onto the settlement, and the settlement’s entry operates as the logical trigger for the limitations period.

By declaring Sun Co. no longer viable in light of Cooper Industries and Atlantic Research, the Tenth Circuit harmonizes doctrine with Supreme Court precedent and aligns with the Third, Sixth, and Ninth Circuits. The decision enhances uniformity, provides clear timing guidance for PRPs contemplating contribution claims after administrative settlements, and reinforces the principle that the nature of the claim—not the happenstance of imperfect statutory fit—controls the choice of limitations period. On remand, ARCO’s contribution claims proceed on the merits, timely filed within three years of the 2021 settlement.

Case Details

Year: 2025
Court: Court of Appeals for the Tenth Circuit

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