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
