ASARCO LLC v. Atlantic Richfield Co., LLC

In 2009, Asarco reached a settlement agreement with the Environmental Protection Agency for the arsenic-contaminated East Helena lead smelting facility. As part of the settlement, Asarco was responsible for $111.4 million in cleanup and remediation expenses. Following this payment, Asarco brought a contribution claim under the Comprehensive Environmental Response, Compensation, and Liability Act against Atlantic Richfield. Finally, in 2020, the Ninth Circuit Court of Appeals held that Asarco’s remediation expenses of $111.4 million were not eligible for contribution because the costs were not fully incurred. The Ninth Circuit stated that only incurred or concrete, non-speculative future costs can be eligible for contribution. The Ninth Circuit remanded the case back to the district court to determine actual incurred costs. However, the Ninth Circuit did uphold the district court’s decision to allocate 25 percent of the response costs to Atlantic Richfield. Moving forward, this case will provide a useful roadmap for companies to determine what CERCLA expenses are incurred and what costs can be recovered under contribution claims