Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

US Supreme Court Agrees to Address Circuit Split Over CERCLA Liability

Author: Daniel T. McKillop

Date: January 28, 2021

Key Contacts

Back
The U.S. Supreme Court has agreed to consider a closely-watched case involving liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

The U.S. Supreme Court has agreed to consider a closely-watched case involving liability under CERCLA

The U.S. Supreme Court has agreed to consider a closely-watched case involving liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The questions in Guam v. United States involve the interaction between cost recovery claims under CERCLA section 107 and contribution claims under section 113.

Comprehensive Environmental Response, Compensation, and Liability Act

Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), both the State and the Federal Governments may recover their clean-up costs directly from Potentially Responsible Parties (PRPs). CERCLA also authorizes entities who have taken actions to clean up hazardous waste sites to recoup their cleanup costs from other parties who are also responsible for the contamination. Section 107(a) allows a responsible party to recover cleanup costs from other responsible parties. In addition, Section 113(f)(3)(B) provides that a person that has “resolved its liability” for “some or all of a response action or for some or all of the costs of such action” pursuant to a settlement agreement with the government “may seek contribution from any person who is not party to a settlement.”

Because Section 113(f)(3)(B) has a shorter limitations period of three years rather than six, lower courts have held that it is exclusive, meaning that once a settlement triggers Section 113(f)(3)(B), it bars an otherwise available claim under Section 107(a). The courts do not agree, however, when a settlement triggers Section 113(f)(3)(B).

CERCLA Liability for Remediation of Superfund Site

The dispute in Guam v. United States centers on whether Guam or the U.S. Navy is financially responsible for the environmental hazards arising from the Ordot Dump on the island of Guam. For nearly half a century, the Navy operated the landfill, which contains discarded munitions, chemicals, and everyday garbage. Despite its extensive use, the Ordot Dump lacked basic environmental safeguards. According to court documents, because the landfill was unlined on its bottom and uncapped at its top, it absorbed rain and surface water, which percolated through the landfill and mixed with contaminants. These contaminants released into the nearby Lonfit River and made their way into the Pacific Ocean at Pago Bay. 

After Guam failed to devise plans for containing and disposing of waste at the landfill, the U.S. Environmental Protection Agency (EPA) sued under the Clean Water Act (CWA), asserting that Guam violated the CWA by discharging pollutants into waters of the United States without obtaining a permit. Guam and the EPA entered into a consent decree in 2004, which required Guam, among other things, to pay a civil penalty, close the Ordot Dump, and design and install a “dump cover system.”  The Decree expressly states that it “shall apply and be binding upon the Government of Guam … and on the United States on behalf of U.S. EPA,” and was “based on the pleadings, before taking testimony or adjudicating any issue of fact or law, and without any finding or admission of liability against or by the Government of Guam.” 

In 2017, Guam filed a lawsuit against the United States, arguing that the Navy was responsible for the Ordot Dump’s contamination and seeking to recoup its landfill closure and remediation costs. Guam brought two causes of action: a CERCLA section 107(a) claim seeking “removal and remediation costs” related to the landfill, and, “[i]n the alternative,” a section 113(f) contribution action. The United States moved to dismiss the suit, arguing that Guam could not avail itself of CERCLA section 107(a) because section 113(f)(3)(B) is “the exclusive CERCLA remedy for the costs a liable party is compelled to incur pursuant to a judicially-approved settlement with the United States.” Citing the 2004 Consent Decree, the United States argued that Guam had resolved its liability for a response action, and so had to proceed under section 113 rather than 107. Because section 113 “imposes a three-year statute of limitations on contribution claims” that runs from a consent decree’s entry, the United States argued that Guam was time-barred from pursuing that claim.

According to the district court, “whether or not an agreement for the removal or remediation of hazardous waste ‘resolves’ liability for section 113(f)(3)(B) purposes turns on the terms of the agreement.” It went on to conclude that “the 2004 Consent Decree did not resolve Guam’s liability for the Ordot Landfill cleanup.” Because the 2004 Decree failed to meet the “statutorily prescribed conditions for bringing a contribution claim under section 113(f)(3)(B),” the court ruled that Guam could maintain its section 107(a) claim against the United States and denied the United States’ motion to dismiss.

The D.C. Circuit Court of Appeals reversed, concluding that the 2004 Consent Decree triggered Guam’s right to pursue a contribution claim under section 113, precluding it from pursuing a claim under section 107. In so ruling, the D.C. Circuit agreed with the Third, Seventh, and Ninth Circuits that section 113(f)(3)(B) does not require a CERCLA-specific settlement. Given that Guam filed suit more than three years after the consent decree was entered, the court held that Guam’s action is barred.

Issues Before the Supreme Court

The Supreme Court granted certiorari on January 8, 2021. The justices have agreed to consider the following questions:

(1) Whether a settlement that is not under the Comprehensive Environmental Response, Compensation, and Liability Act can trigger a contribution claim under CERCLA Section 113(f)(3)(B); and (2) whether a settlement that expressly disclaims any liability determination and leaves the settling party exposed to future liability can trigger a contribution claim under CERCLA Section 113(f)(3)(B).

Oral arguments have not yet been scheduled. However, a decision is expected before the term ends in June. The Supreme Court’s decision will hopefully resolve the circuit splits and  bring much-needed clarity regarding what types of settlements will trigger contribution claims under § 113(f)(3)(B). Please stay tuned for updates.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
One Big Beautiful Bill: New Tip Income Tax Rules Employers & Workers Need to Know post image

One Big Beautiful Bill: New Tip Income Tax Rules Employers & Workers Need to Know

Part 2 – Tips Excluded from Income Certain employees and independent contractors may be eligible to deduct tips from their income for tax years 2025 through 2028 under provisions included in the One Big Beautiful Bill. The deduction is capped at $25,000 per year and begins to phase out at $150,000 of modified adjusted gross […]

Author: Scott H. Novak

Link to post with title - "One Big Beautiful Bill: New Tip Income Tax Rules Employers & Workers Need to Know"
One Big Beautiful Bill: New Overtime Tax Rules Employers and Employees Need to Know post image

One Big Beautiful Bill: New Overtime Tax Rules Employers and Employees Need to Know

Part 1 – Overtime Pay and Income Tax Treatment Overview This Firm Insights post summarizes one provision of the “One Big Beautiful Bill” related to the tax treatment of overtime compensation and related employer wage reporting obligations. Overtime Pay and Employee Tax Treatment The Fair Labor Standards Act (FLSA) generally requires that overtime be paid […]

Author: Scott H. Novak

Link to post with title - "One Big Beautiful Bill: New Overtime Tax Rules Employers and Employees Need to Know"
New York’s FAIR Business Practices Act: What the New Consumer Protection Measure Means for Your Business post image

New York’s FAIR Business Practices Act: What the New Consumer Protection Measure Means for Your Business

In 2025, New York enacted one of the most consequential updates to its consumer protection framework in decades. The Fostering Affordability and Integrity through Reasonable Business Practices Act (FAIR Act) significantly expands the scope and strength of New York’s long-standing consumer protection statute, General Business Law § 349, and alters the compliance landscape for New York […]

Author: Dan Brecher

Link to post with title - "New York’s FAIR Business Practices Act: What the New Consumer Protection Measure Means for Your Business"
How to Reduce Legal Risk as Your New Jersey Business Grows in 2026 post image

How to Reduce Legal Risk as Your New Jersey Business Grows in 2026

For many New Jersey businesses, growth is a primary objective for the New Year. However, it is important to recognize that growth involves both opportunity and risk. For example, business expansion often results in complex contracts, an increased workforce, new regulatory requirements, and heightened exposure to disputes. Without proactive planning, even routine growth can lead […]

Author: Ken Hollenbeck

Link to post with title - "How to Reduce Legal Risk as Your New Jersey Business Grows in 2026"
Crypto Investor Protection: SEC and CFTC Enforcement Trends post image

Crypto Investor Protection: SEC and CFTC Enforcement Trends

Crypto investor protection continues to evolve, with the SEC and CFTC investing resources and coordinating more closely to uphold regulatory standards. Whether you’re a retail investor, an institutional trader, or part of a crypto startup, understanding enforcement trends is essential for navigating this dynamic and high-stakes regulatory environment. Crypto Is No Longer the Wild West […]

Author: Dan Brecher

Link to post with title - "Crypto Investor Protection: SEC and CFTC Enforcement Trends"
New Jersey’s Next Manufacturing Tax Credit: Stability Secured, Timing Matters post image

New Jersey’s Next Manufacturing Tax Credit: Stability Secured, Timing Matters

A Settled Regulatory Environment Enables Confident Capital Planning New Jersey’s new manufacturing incentive program, Next New Jersey Manufacturing Program,  enters 2026 with something uncommon in economic development these days: policy stability. The statute is enacted, New Jersey Economic Development Authority’s (“NJEDA”) rules are adopted, and the application portal is open. With the election outcome settled, […]

Author: Michael J. Sheppeard

Link to post with title - "New Jersey’s Next Manufacturing Tax Credit: Stability Secured, Timing Matters"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form. By providing a telephone number and submitting this form you are consenting to be contacted by SMS text message. Message & data rates may apply. Message frequency may vary. You can reply STOP to opt-out of further messaging.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!