In contrast to the early days of Superfund when no argument for extending CERCLA liability was too far-fetched, the Second Circuit recently rejected one of the all-time “Hail Mary” passes for CERCLA contribution. The case, ASARCO LLP v. Goodwin, involved a 2009 settlement by ASARCO of Superfund liability involving several contaminated mines it owned in Everett, Washington.  After settling, ASARCO asserted contribution claims against residuary trusts established in 1937 by the will of John D. Rockefeller to benefit his heirs. According to ASARCO, Rockefeller over a century ago had controlled a corporation which in turn had owned and operated the contaminated mines.

The Second Circuit declined ASARCO’s invitation to apply trusts and estates principles drawn from federal common law. Instead, the court ruled that New York probate law would decide whether a residuary trust could be required to answer a CERCLA contribution claim against the decedent. However, without deciding the probate issue or the Best Foods issue whether Rockefeller could be sued personally for the actions of a corporation, the court leap-frogged to its final conclusion that the contribution claim was barred by the applicable three year statute of limitations.

Apparently, the wild west era of Superfund claims is over.