CERCLA Contribution Protection Provision Protects Site Owner Against Collateral Attack.

The defendant owns a property and leased it to the plaintiff.  EPA designated 27 square miles around the property (former lead refinery) as CERCLA site.  The EPA sued the plaintiff for $400 million in "recovery" costs.  The plaintiff filed bankruptcy and the court approved a $214 million settlement that resolved the plaintiff's liability.  The defendant, as owner of the site, was a potentially responsible party and settled with the EPA for $25 million.  The defendant claimed that lead-based paint was the primary source of contamination and filed FOIA requests for EPA documents to prove its argument.  The plaintiff moved to intervene in the FOIA case in an attempt to void its government settlement.  The plaintiff also had outstanding claims against the defendant for a portion of its $214 million that it owed the EPA.  The defendant tolled the statute of limitations for a contribution action for two years after a final judgment in the FOIA case, but later reached a settlement with the EPA for $25 million.  The plaintiff did not object to the settlement which provided the defendant with "protection from contribution actions or claims"  via Sec. 113(f)(2) of CERCLA.  The appellate court upheld the trial court's determination that the plaintiff's failure to object barred any claims it had against the defendant.  The court noted that the plaintiff had failed to raise its estoppel argument prior to the appeal.  Asarco v. Union Pacific Railroad Company, No. 13-2830, 2014 U.S. App. LEXIS 15285 (8th Cir. Aug. 8, 2014), aff'g., 8:12cv416, 2013 U.S. Dist. LEXIS 108852 (D. Neb. Aug. 2, 2013).

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