June 1, 2021
Law360, Bloomberg Law and Reuters covered a significant victory for McGuireWoods client Asarco LLC in its long-running battle to hold Atlantic Richfield Company liable under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) for a portion of the funds Asarco spent to remediate arsenic groundwater pollution at a Montana Superfund site.
U.S. District Judge Dana L. Christensen of Montana ruled on May 26, 2021, that BP subsidiary Atlantic Richfield must pay Asarco $15.3 million, a $1 million sanction and 25 percent of future cleanup costs associated with contamination near Asarco’s old East Helena Smelter complex. Atlantic Richfield’s predecessor, The Anaconda Co., operated a slag reprocessing facility on the property for 45 years.
The decision marks an important milestone in Asarco’s efforts to claw back millions of dollars from parties that contributed to contamination at sites Asarco paid to clean up under its settlement in the largest environmental bankruptcy in U.S. history. Asarco sued Atlantic Richfield under CERCLA, seeking partial repayment for some of the $111.4 million Asarco paid under a settlement with the Environmental Protection Agency and the state of Montana.
In September 2020, the 9th U.S. Circuit Court of Appeals affirmed that Atlantic Richfield must repay Asarco for the portion of the cleanup costs at the East Helena site. It appeals court sent the case back to the U.S. District Court for a determination regarding total cleanup costs.
Los Angeles partner Gregory Evans leads the McGuireWoods team, arguing in the 9th Circuit twice and at trial for Asarco.
“The Asarco decision demonstrates that CERCLA can work in the way that it was designed,” Evans told Law360. “It could be held out as a model to show that when parties step up and pay for a site cleanup rather than for litigation and trial, that there is a meaningful right to contribution and that right of contribution was affirmed yesterday in the district court's judgment awarding Asarco millions.”