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Asarco, LLC v. Union Pacific Railroad Co.

Citation: 44 ELR 20187
No. 13-2830, (8th Cir., 08/08/2014)

The Eighth Circuit upheld the dismissal of a company's breach of contract and contribution claims against a railroad in connection with a lead-contaminated Superfund site in Omaha, Nebraska. The company paid approximately $200 million to settle its liability with the government, and the railroad settled with EPA for $25 million. The company filed suit, arguing that the railroad contributed too small a share of the cleanup costs. It also claimed that by entering into a consent decree with EPA, the railroad breached the two companies' agreement to toll the statute of limitations applicable to any contribution action for two years. But the company's breach of contract claims are really contribution claims "in disguise." And in light of the consent decree between EPA and the railroad, CERCLA unambiguously protects the railroad against any contribution claim related to the site. The consent decree plainly covers all Superfund remediation costs, whether incurred before or after the consent decree's effective date, including the company's earlier settlement with the government. In addition, nothing in the tolling agreement between the company and the railroad prevented the railroad from obtaining contribution protection under CERCLA.