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Asarco LLC v. Union Pacific Railroad Co.

ELR Citation: 43 ELR 20156
Nos. 8:12CV416, (D. Neb., 07/01/2013) (Bataillon)

A district court held that a settlement agreement bars a mining corporation from seeking contribution from a railroad company under CERCLA for environmental liability related to the Omaha Lead Superfund site in Omaha, Nebraska. Both parties owned the site at different times between 1871 and 1997. It was designated as a Superfund site in 2003, with both parties named as potentially responsible parties and with a clean-up cost of around $400 million. Prior to any settlement, the railroad company filed a FOIA case against EPA. In 2010, the parties entered into a tolling agreement that extended the statute of limitations on the mining corporation's contribution claims until two years after the conclusion of the railroad company's FOIA case. After the FOIA case was resolved, the government and the railroad company settled the CERCLA claims, which settlement was approved by the court in 2011. The mining corporation then sought contribution from the railroad company. But under CERCLA §113(f)(2), judicial approval of the settlement gives the railroad company protection from contribution claims, meaning that no one can sue it for costs incurred in relation to the site. Were it to grant relief to the mining corporation, the result would be an unraveling of the consent decree. And although the tolling agreement extended the statute of limitations for two years, the parties did not specifically waive the CERCLA contribution protections. In fact, the railroad company reserved all rights and defenses to contest or defend any claim the other might have against them. In addition, the mining corporation failed to file anything during the public comment process and did not object to the consent decree. The court, therefore, dismissed the mining corporation's lawsuit.