Time-barred – CERCLA – Contribution Claim

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7^th Circuit Court of Appeals

Case Name: Refined Metals Corporation v. NL Industries Inc.,

Case No.: 18-3235

Officials: WOOD, Chief Judge, and FLAUM and SYKES, Circuit Judge

Focus: Time-barred – CERCLA – Contribution Claim

This is a case about who should bear the costs of cleaning up a contaminated lead smelter site in Beech Grove, Indiana, a suburb of Indianapolis. Plaintiff Refined Metal Corporation (“Refined”) has owned the site since 1980, when it acquired it from defendant NL Industries Inc. (“NL”). After years of litigation involving both the federal Environmental Protection Agency (“EPA”) and the Indiana Department of Environmental Management (“IDEM”), Refined entered into a settlement with both agencies in 1998. The 1998 Decree, as we will call it, required Refined to close the site, pay a $210,000 fine, and remedy the contamination. For their part, EPA and IDEM agreed not to bring suit against Refined on at least some of their potential claims (though the parties dispute the scope of those covenants). These covenants not to sue took effect immediately upon the entry of the 1998 Decree. In 2017, almost 19 years later, Refined sued NL to recoup some of the cleanup costs for which it is responsible.

A delay of 19 years is a long time to keep an entitlement to reimbursement up in the air. The question before us is whether it is so long that Refined lost its statutory right to bring this action. The district court found that Refined’s claim qualified as a “contribution action” under section 113(f)(3)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9613(f)(3)(B). Contribution claims are subject to a three-year statute of limitations, and so the court dismissed the suit on that ground. It also relinquished supplemental jurisdiction over Refined’s state law claims. On appeal, Refined argues that its suit is instead a “cost-recovery” action under section 107(a) of CERCLA, 42 U.S.C. § 9607(a), and that it would be timely under that subsection’s more permissive limitations period. NL contends that it wins no matter which CERCLA provision applies, given that the statute of limitations applicable to section 107(a) is only six years and, as NL sees things, that clock began running and expired long ago.

It matters, in our opinion, whether this is a section 113(f)(3)(B) contribution action or a section 107(a) cost-recovery case. If it were the latter, we would need to conduct a searching examination of what actions to clean up the site anyone has taken, and when. But we can skip that inquiry, because we agree with the district court that this is a section 113(f)(3)(B) contribution action, and the limitations period had expired by the time Refined filed suit. We therefore affirm the decision of the district court.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.