13‐3954‐cv Asarco LLC v. Goodwin

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2013

(Argued: April 7, 2014 Decided: June 25, 2014)

Docket No. 13‐3954‐cv

ASARCO LLC,

Plaintiff‐Appellant,

— v. —

NEVA R. GOODWIN, S. PARKMAN SHAW, AND WILLIAM A. TRUSLOW, as Trustees of the Trust under Article Second of the Will and Codicils of John D. Rockefeller for the benefit of John de Cuevas and his descendants, and as Trustees of the Trust under Article Second of the Will and Codicils of John D. Rockefeller for the benefit of Elizabeth de Cuevas and her descendants,

Defendants‐Appellees.*

* 1 The clerk of court is respectfully directed to conform the caption to that shown 2 above. B e f o r e:

KEARSE, JACOBS, and LYNCH, Circuit Judges.

__________________

Plaintiff‐appellant ASARCO LLC (“Asarco”) appeals from a judgment of

the United States District Court for the Southern District of New York (Thomas P.

Griesa, Judge) dismissing its Second Amended Complaint. As part of Asarco’s

Chapter 11 bankruptcy, Asarco paid the United States, the State of Washington,

and the Port of Everett $50.2 million to resolve certain environmental claims

arising from the release of hazardous substances at two sites in Washington State.

Pursuant to the Comprehensive Environmental Response, Compensation, and

Liability Act of 1980, as amended, 42 U.S.C. §§ 9601‐9675 (“CERCLA”), Asarco,

having emerged from bankruptcy, then sought contribution, directly and on a

subrogation theory, from the Trustees of the residuary trusts created by the will

of John D. Rockefeller Sr., the current beneficiaries of which are his

great‐grandchildren, alleging that the remediation costs were fairly attributable

to the activities of corporations controlled by Rockefeller as owner and operator

of the contaminated sites. Assuming without deciding that New York law

permits the imposition of liability on testamentary beneficiaries in such

2 circumstances, we conclude that the district court properly dismissed Asarco’s

direct contribution claims because they are barred by the applicable three‐year

statute of limitations, and that its subrogation claims were properly dismissed

because Asarco is not a subrogee.

AFFIRMED.

E. DUNCAN GETCHELL, JR. (Eugene E. Matthews III, Richard C. Beaulieu, K. Elizabeth Sieg, on the brief), McGuireWoods LLP, Richmond Virginia; Dion W. Hayes, Marshall Biel, on the brief, McGuireWoods LLP, New York, New York; Gregory Evans, on the brief, Integer Law Corporation, Los Angeles, California, for Plaintiff‐Appellant.

EDWARD M. GRAUMAN, Beveridge & Diamond, P.C., Austin, Texas (Stephen L. Gordon and Megan R. Brillault, Beveridge & Diamond, P.C., New York, New York, on the brief), for Defendants‐ Appellees.

GERARD E. LYNCH, Circuit Judge:

This case requires us to decide whether, in 2014, the Trustees of the

residuary trust created by the will of John D. Rockefeller Sr. in 1937 may be made

to contribute to cleanup costs of environmental contamination allegedly caused

by corporations controlled by Rockefeller in Washington State between 1892 and

3 1903. The answer to that question turns on a number of provisions of federal and

state law.

The Comprehensive Environmental Response, Compensation, and

Liability Act of 1980, as amended, 42 U.S.C. §§ 9601‐9675 (“CERCLA”), imposes

liability for cleanup costs on persons who are responsible for the release or

threatened release of hazardous substances into the environment. See

(a). A party who has been sued for such contamination may then seek

contribution from others in the chain of title or from certain polluters – the so‐

called potentially responsible parties. Such potentially responsible parties

include, as relevant here, the owners and operators of the property at the time of

the hazardous waste disposal. See

§ 9613(f). While CERCLA does not

expressly permit contribution claims against successors‐in‐interest, such as

beneficiaries of the estates of such potentially responsible parties, our precedents

require us to analyze applicable state law to determine whether such liability

may be imposed. See Marsh v. Rosenbloom,

, 181‐84 (2d Cir. 2007).

Here, the applicable state law is a provision of New York probate law, see N.Y.

Est. Powers & Trusts Law § 12‐1.1(a), which holds testamentary beneficiaries

liable for certain debts of a decedent. Where the applicable state law would

4 permit such contribution claims, those claims must be brought within three years

of “the date of . . . entry of a judicially approved settlement with respect to such

costs.”

(g)(3)(B). Separately, CERCLA requires subrogation

claims to be brought within three years of the payment of a claim. See

§ 9613(g)(4).

Plaintiff‐appellant ASARCO LLC (“Asarco”) appeals from a judgment of

the United States District Court for the Southern District of New York (Thomas P.

Griesa, Judge) dismissing its Second Amended Complaint. As part of its Chapter

11 bankruptcy, the United States Bankruptcy Court for the Southern District of

Texas (Richard S. Schmidt, Bankruptcy Judge) approved two settlement

agreements related to the environmental contamination at the Everett Smelter

and the Monte Cristo Mining Area (together, “the Sites”), located in Washington

State. As a result of those settlements, Asarco eventually paid the United States,

the State of Washington, and the Port of Everett $50.2 million for costs related to

the remediation of the Sites. Asarco then sought contribution, directly and as a

purported subrogee, from the Trustees of the residuary trusts created by the will

of the late John D. Rockefeller, which now benefit his great‐grandchildren,

alleging that the remediation costs were fairly attributable to activities of

5 corporations controlled by Rockefeller, which owned and operated the

contaminated sites.

We assume arguendo that New York law permits the imposition of liability

on testamentary beneficiaries in such circumstances, but nevertheless conclude

that the district court properly dismissed Asarco’s contribution claims because

they are barred by the applicable three‐year statute of limitations, and its

subrogation claims because Asarco is not a subrogee. We therefore AFFIRM the

judgment of the district court.

BACKGROUND

The Second Amended Complaint, and the bankruptcy documents it

references, set forth the following facts, which we must accept as true in

adjudicating a motion to dismiss under Rule 12(b)(6), drawing all reasonable

inferences in Asarco’s favor. Pension Comm. of the Univ. of Montreal Pension

Plan v. Banc of Am. Sec. LLC,

(2d Cir. 2009).

I. Facts

Located in the Mt. Baker‐Snoqualmie National Forest in Snohomish

County, Washington, the Monte Cristo Mining Area (“MCMA”) includes several

large mine complexes, and the former site of an ore processing and concentrating

6 facility. The former Everett Smelter plant property and surrounding area are

located in Everett, Washington, some 40 miles from the MCMA. Predecessors of

Asarco, a limited liability company organized under Delaware law, operated

Everett Smelter from approximately 1903 to 1912, and the MCMA from

approximately 1903 to 1905. Before Asarco’s operation of the Sites, the Puget

Sound Reduction Company (“PSRC”) held legal title to the Everett Smelter,

which was PSRC’s principal business activity. PSRC “was operated by [John D.]

Rockefeller directly and through his personal agents acting at his direction and

under his control.” J.A. 72, ¶ 4. Rockefeller also had interests in companies that

owned or operated several of the MCMA mines. Asarco alleged, and the district

court assumed arguendo that Rockefeller’s control of those corporate entities was

exercised in a manner that warrants piercing the corporate veil and imposing

personal liability on Rockefeller for the actions of those corporations.

Between 1892 and 1903, under Rockefeller’s ownership and operation of

the Sites, substantial quantities of slag – a material containing various hazardous

substances – and smelting wastes were discharged at the Everett Smelter.

Further, various mining wastes were discharged at the MCMA as a result of the

mining activities, as well as the storage, processing, and transportation of mining

7 ore. The discharge of those waste products caused various hazardous

substances, including arsenic, lead, and other heavy metals and metal‐like

substances to be released into the environment, contaminating the Sites.

Rockefeller died in 1937. In his will and its codicils, he established a

residuary trust for the primary lifetime benefit of his granddaughter, Margaret

Strong de Cuevas, which upon her death was divided into two separate trusts for

the benefit of her children, Rockefeller’s great‐grandchildren. Those trusts,

which will not terminate until the deaths of those great‐grandchildren, still

contain substantial assets received directly from Rockefeller’s estate or derived

from the original assets so received.

II. Prior Proceedings

A. Bankruptcy Proceedings

On August 9, 2005, Asarco filed a voluntary petition for relief under

Chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy

Court for the Southern District of Texas. The United States, State of Washington,

and the Port of Everett filed proofs of claim for remediation costs, future

response costs, and natural resource damages. On April 18, 2008, pursuant to

8 Federal Rule Bankruptcy Procedure 9019(a),1 the Bankruptcy Court approved a

settlement of the Everett Smelter claims. Under the terms of the settlement, the

State of Washington and Port of Everett were allowed a general unsecured claim

in the amount of $38 million, to be allocated between the two. On June 5, 2009,

the bankruptcy court approved a similar agreement under which the State of

Washington and the United States were allowed general unsecured claims

totaling just over $12.2 million, settling the MCMA claims.2 Both settlements

became effective when they were approved by the bankruptcy court. The

bankruptcy court approved Asarco’s Reorganization Plan on November 13, 2009,

and the Plan became effective on December 9, 2009. The Everett Smelter and

MCMA claims were paid on the latter date.

1 “On motion by the trustee and after notice and a hearing, the court may approve a compromise or settlement. Notice shall be given to creditors, the United States trustee, the debtor, and indenture trustees as provided in Rule 2002 and to any other entity as the court may direct.” Fed. R. Bankr. P. 9019(a). 2 The Trustees dispute the amount of the MCMA settlement, but the precise size of the settlement does not affect the resolution of the issues before us.

9 B. District Court Proceedings

After emerging from its Chapter 11 bankruptcy reorganization, Asarco

pursued its right under CERCLA to require other potentially responsible parties

to reimburse it for those parties’ fair share of remediation costs. Asarco filed the

original complaint in this action against the Trustees on May 10, 2012, alleging

substantial response costs and seeking contribution for Rockefeller’s

environmental liabilities at the Everett Smelter site only. Asarco amended its

complaint on July 17, 2012, to include a similar claim for contribution for

Rockefeller’s liabilities at MCMA. The Trustees moved to dismiss the Amended

Complaint, and with the consent of the Trustees and leave of the district court,

Asarco filed its Second Amended Complaint on October 25, 2012. The Second

Amended Complaint included two additional claims against the Trustees for

contribution at both sites, by Asarco as subrogee of itself as the former debtor‐in‐

possession and predecessor‐in‐interest. The Trustees moved to dismiss the

Second Amended Complaint, and the district court granted the motion in an oral

ruling.

The district court noted that under CERCLA the owner and operator of a

facility is liable for cleanup costs, and assumed “that if John D. Rockefeller were

10 alive today, he [could] be held liable as the owner and perhaps even the

operator” of the Sites. J.A. 451. The district court refused, however, to impose

such liability on the beneficiaries of Rockefeller’s estate. First, citing New York

Estates, Powers & Trusts Law § 12‐1.1(a),3 the district court held that any liability

under CERCLA or for contribution could not be a “debt” of John Rockefeller

because “CERCLA didn’t even exist at the time of his death.” Second, relying on

this Court’s decision in Marsh v. Rosenbloom,

(2d Cir. 2007), the

district court concluded that the Trustees could not be held liable under a “theory

of trust fund liability.” J.A. 455.4

The district court then addressed the Trustees’ other defenses. Under

(g)(3)(B), no action for contribution may be commenced more than

3 “Subject to the other provisions of this article, distributees and testamentary beneficiaries are liable, in an action, to the extent of the value of any property received by them as such, for the debts and reasonable funeral expenses of a decedent, the expenses of administering his estate and all taxes for which the estate is liable, which have not previously been recovered from the personal representative or from any other source . . . .” N.Y. Est. Powers & Trusts Law § 12‐1.1(a). 4 “Under a trust fund theory, a beneficiary is deemed to hold the assets received from a liable party’s estate in trust for the benefit of satisfying environmental liabilities of a deceased, responsible person.” North Carolina ex rel. Howes v. W.R. Peele, Sr. Trust,

(E.D.N.C. 1995).

11 three years after “the date of . . . entry of a judicially approved settlement with

respect to such costs.” Because the bankruptcy court approved a settlement as to

the Everett Smelter Site on April 18, 2008, the district court concluded that the

three‐year statute of limitations for the Everett Smelter claim expired on April 18,

2011, more than a year before this action was commenced on May 10, 2012.

Similarly, the bankruptcy court approved a settlement as to the MCMA on June

5, 2009, and thus the three‐year statute of limitations expired on June 5, 2012. No

claims regarding the MCMA were filed, however, until July 17, 2012, the date of

the first amended complaint. The district court determined that with respect to

the claims relating to the MCMA, the first amended complaint did not relate back

to the original May 10, 2012 complaint.

The district court rejected Asarco’s argument that the statute of limitations

did not begin to run as to any of its claims until December 9, 2009, “when the

plan of reorganization became effective and the payments were made.” J.A. 425.

While agreeing that “the bankruptcy proceeding is not finished until it is indeed

finished,” id. at 456, the district court noted that the bankruptcy court “literal[ly]”

approved settlements in April 2008 and June 2009, which “were not the subject of

renegotiation or review in any meaningful way,” id., and that the limitations

12 periods for the contribution claims began to run on the dates when the

settlements were thus approved.

Finally, the district court rejected Asarco’s arguments that it could invoke

the statute of limitations for CERCLA subrogation claims,

(g)(4).

That provision also provides a three‐year statute of limitations, but it is instead

triggered upon “payment of [a] claim” rather than the entry of a judicially

approved settlement. The district court determined that “the kind of transactions

which are necessary to create subrogation simply did not take place in the

bankruptcy of ASARCO,” J.A. 457, because an entity cannot be “subrogated to

pay [its] own liability,”

. Asarco timely filed a notice of appeal, and we

now affirm.

DISCUSSION

On appeal, Asarco contends that the district court erred in dismissing its

complaint for several reasons. It argues (1) that the district court erroneously

refused to apply the “trust fund theory,” a common law doctrine under which

beneficiaries of estates have been held liable for a decedent’s personal CERCLA

liability; (2) that, contrary to the district court’s conclusion, New York probate

law expressly permits holding testamentary beneficiaries liable for the debts of a

13 decedent imposed by a later enacted retroactive statute; (3) that the district court

erred in concluding that Asarco’s direct contribution claims were barred by the

three‐year statute of limitations in

(e)(2) and 9613(g)(3)(B); and

(4) that the district court erroneously concluded that Asarco could not pursue a

subrogation claim under

(g)(4) because the transactions at issue

in Asarco’s bankruptcy did not meet the basic requirements of subrogation.

After setting forth the applicable legal standards, we address each of those

arguments in turn.

I. Legal Standards

A. Standard of Review

We review de novo a district court judgment granting a motion to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6), “accepting all factual

allegations in the complaint as true.” Absolute Activist Value Master Fund Ltd.

v. Ficeto,

(2d Cir. 2012) (internal quotation marks omitted). “To

survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal,

(2009) (internal quotation marks omitted). “In

adjudicating a motion to dismiss, a court may consider only the complaint, any

14 written instrument attached to the complaint as an exhibit, any statements or

documents incorporated in it by reference, and any document upon which the

complaint heavily relies.” In re Thelen LLP,

(2d Cir. 2013).

B. CERCLA

“CERCLA’s primary purposes are axiomatic: (1) to encourage the timely

cleanup of hazardous waste sites; and (2) to place the cost of that cleanup on

those responsible for creating or maintaining the hazardous condition.” Price

Trucking Corp. v. Norampac Indus.,

(2d Cir. 2014) (internal

quotation marks omitted). “To effectuate those goals, CERCLA looks backward

in time and imposes wide‐ranging liability.” Marsh,

. Thus,

somewhat akin to the common law rules applicable to ultra‐hazardous activities,

the statute imposes strict liability on facility owners and operators, on persons

who arranged for the disposal or treatment of hazardous waste at the relevant

site, and on persons who transported hazardous waste to the site, often

collectively referred to as potentially responsible parties. See

(a)(1)‐(4);5 Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc.,

CERCLA defines four classes of persons as potentially responsible parties: (1) the owner and operator of a vessel or a facility, (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at

15 112, 120 (2d Cir. 2010).

But CERCLA “provide[s] property owners an avenue of reprieve; it allows

them to seek reimbursement of their cleanup costs from others in the chain of title

or from certain polluters — the so‐called potentially responsible parties.”

Niagara Mohawk,

. In this case, the relevant avenue of reprieve is

(f)(3)(B), which provides a right of contribution to property

owners that have settled their CERCLA liability with a state or the United States

through either an administrative or judicially approved settlement.

The parties agree, because the complaint in this matter was dismissed for

failure to state a claim, that if Rockefeller were alive today, he would be liable

which such hazardous substances were disposed of, (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and (4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance.

(a)(1)‐(4).

16 under CERCLA, as either an owner or an operator of the Sites. There is also no

dispute that Asarco settled its CERCLA liability through a judicially approved

settlement. The question ,therefore, is whether CERCLA permits a right of

contribution against the beneficiaries of a potentially responsible party’s estate.

II. Asarco’s Arguments

A. Trust Fund Theory Under Federal Law

We acknowledge at the outset that “CERCLA does not contain any

provision that imposes liability directly upon the estates of [the] four classes of

[potentially] responsible parties,” Witco Corp. v. Beekhuis,

(3d

Cir. 1994), much less the beneficiaries of such estates. That cannot end the

inquiry, however, because our precedents make clear that under some

circumstances, the liability of potentially responsible parties may pass to certain

of their successors‐in‐interest. For example, while “CERCLA does not

specifically provide that a successor corporation may be held liable for response

costs,” New York v. Nat’l Serv. Indus., Inc.,

, 206 (2d Cir. 2006),we

have held that CERCLA encompasses such successor liability, see id.

Asarco contends that we should craft a rule of federal common law under

CERCLA mandating that a decedent’s personal liability is transferred to those

17 who benefit from the decedent’s estate, a rule known as the “trust fund doctrine.”

Appellant’s Br. 17; see W.R. Peele, Sr. Trust,

. Such an

approach, however, is foreclosed by our precedents. As we recently reiterated,

“where federal statutory regulation is comprehensive and detailed, as CERCLA

is, we presume that matters left unaddressed are left subject to the disposition

provided by state law.” Price Trucking Corp.,

(internal quotation

marks omitted).

Our decision in Marsh,

, illustrates that principle. There, the

State of New York appealed from an order dismissing its claims under CERCLA

against the shareholder‐distributees of a dissolved Delaware corporation. The

relevant provision of Delaware law established “a three‐year continuation

period, beginning at dissolution, for dissolved corporations to wind up their

affairs and for unknown claimants to assert claims against the corporation.”

at 170 (citing

). The state asserted its claims “several

years after [the corporation] had been dissolved, [and] outside the corporate

wind‐up period” established by Delaware law.

. In affirming the

district court’s dismissal, we declined to create a rule of federal common law that

would have displaced Delaware law regarding actions against dissolved

18 corporations, concluding that “CERCLA does not suggest that the entire corpus

of state corporation law is to be replaced simply because a plaintiff’s cause of

action is based upon a federal statute.”

(internal quotation marks

omitted).

The same conclusion necessarily obtains with respect to federal claims

against decedents’ estates, which, by longstanding precedent, are governed by

state probate law and procedures, unless federal law specifically provides

otherwise. See, e.g., Pufahl v. Parks’ Estate,

(1936); Forrest v.

Jack,

, 162‐63 (1935). CERCLA gives no indication of any intention to

displace state probate law, any more than it displaces state law regarding

successor liability in the case of dissolved corporations.

Accordingly, we agree with the district court’s rejection of Asarco’s

argument that the Trustees may be held liable by application of a trust fund

theory as a matter of federal law.

B. New York Probate Law

Having concluded that state law governs whether liability may be imposed

against the beneficiaries of Rockefeller’s estate, we turn next to Asarco’s

arguments based on New York law. The relevant New York statute provides:

19 Subject to the other provisions of this article, distributees and testamentary beneficiaries are liable, in an action, to the extent of the value of any property received by them as such, for the debts and reasonable funeral expenses of a decedent, the expenses of administering his estate and all taxes for which the estate is liable, which have not previously been recovered from the personal representative or from any other source . . . .

N.Y. Est. Powers & Trusts Law § 12‐1.1(a).6 The relevant question is whether the

“debts . . . of a decedent” may arise as a result of legislation enacted following the

decedent’s death, and which has been expressly made retroactive.

“CERCLA by its terms has unlimited retroactivity,” Commonwealth

Edison Co. v. United States,

(Fed. Cir. 2001), and it is by now

settled that Congress intended CERCLA to have such retroactive effect. See, e.g.,

United States v. Monsanto Co.,

(4th Cir. 1988); United States v.

Ne. Pharm. & Chem. Co.,

(8th Cir. 1986). Such retroactive

application does not violate the due process clause, and does not convert

CERCLA into a bill of attainder or an ex post facto law. See Monsanto,

The law in effect at the time of Rockefeller’s death was Decedent Estate Law § 170, which was materially similar to N.Y. Est. Powers & Trusts Law § 12‐1.1(a). See Brooklyn Sav. Bank v. Joseph Wechsler Estate,

, 12‐13 (1932) (quoting that statute: “An action may be maintained, as prescribed in this article, against the . . . legatees of a testator to recover, to the extent of the assets paid or distributed to them, for a debt of the decedent . . . .”).

20 at 174‐75.

Although Asarco does not identify any case in which New York courts

have interpreted “debts . . . of a decedent” to include debts created by post‐

demise legislation that has been expressly made retroactive, and is not otherwise

constitutionally infirm, it does cite cases that might support such a conclusion by

negative pregnant. Essentially, those cases hold that New York courts will

generally presume that New York statutes do not impose liability retroactively

on the estates of decedents, and will not consider as “debts . . . of a decedent”

liabilities retrospectively imposed by legislation after the decedent’s death where

such retrospective imposition would be unconstitutional.7 Asarco argues that we

can infer that New York law would recognize as such debts liabilities

retrospectively imposed where, as in the case of CERCLA, the legislature clearly

7 See, e.g., In re Malavase,

(2d Dep’t 1987) (“It has been repeatedly held that the rights of individuals who may have an interest in a decedent’s estate are fixed as of the date of death. Thus, the Legislature is presumed not to have intended to deprive those individuals of their rights through the retroactive operation of a statute passed after the date of death.”); In re Kania’s Estate,

(N.Y. Surr. Ct. Broome County 1953) (“It is well established that, even in an instance where it intended to do so, the Legislature is without power to enact a law which destroys or impairs pre‐ existing vested rights, titles and interests. A statute which assumes to do so is sometimes regarded as being in violation of the ‘due process of law’ provisions of the Federal and State Constitutions.”);

(“Cases upholding the protection of vested property rights against the operation of an ‘ex post facto’ statute are very numerous.”).

21 did intend to impose such liability and the statute has been held constitutional.

We are hesitant to rely on inference to decide an important issue of New

York law. We might, of course, certify the issue to the New York Court of

Appeals for its definitive resolution. See Second Cir. Local R. 27.2(a); N.Y. Comp.

Codes R. & Regs., tit. 22, § 500.27(a); see also N.Y. Const. art. 6, § 3(b)(9). We do

not do so in this case, however, because the answer to the potential “certified

question is [not] determinative of a claim before us.” In re Thelen,

(internal quotation marks omitted). In light of the conclusions we reach below

regarding the statute of limitations, even if New York would consider liabilities

imposed by CERCLA long after Rockefeller’s death to be “debts . . . of a

decedent” chargeable to his estate or its beneficiaries, Asarco’s claims are, in any

event, time‐barred.

We therefore assume arguendo that New York law would permit the

imposition of liability against John Rockefeller’s testamentary trusts under these

circumstances, and proceed to consider the statute of limitations issues.

C. Statute of Limitations: Contribution Claims

CERCLA contribution claims are subject to a three‐year statute of

limitations, which provides that “[n]o action for contribution for any response

costs or damages may be commenced more than 3 years after . . . entry of a

22 judicially approved settlement with respect to such costs or damages.”

(g)(3)(B). The event triggering the beginning of the limitations period –

“entry of a judicially approved settlement” – is the point of contention here. The

district court, relying on the plain language of that provision, concluded that the

statute of limitations began to run for the Everett Smelter Site on April 18, 2008,

and for the MCMA on June 5, 2009. Asarco contends that the district court

“committed legal error by ignoring the bankruptcy context in which the Everett

Site and MCMA Site Agreements were negotiated and approved,” Appellant’s

Br. 32‐33, and that the statute of limitations did not begin to run until the date its

reorganization plan became effective. We disagree.

We review the interpretation of federal statutes de novo. W. R. Grace &

Co. – Conn. v. Zotos Int’l, Inc.,

(2d Cir. 2009). “[O]ur obligation is

to look to the plain language of the statute to effectuate the intent of Congress.”

The plain language of § 9613(g)(3)(B) contradicts Asarco’s contention that

the statute of limitations did not begin to run until its Reorganization Plan was

either approved by the bankruptcy court or became effective. See RSR Corp. v.

Commercial Metals Co.,

(6th Cir. 2007) (“[T]he statute of

limitations for contribution actions runs from the ‘entry’ of the settlement, 42

(g)(3)(B), not from the date that each provision of that settlement

takes effect.”). Pursuant to its authority under Federal Rule of Bankruptcy

Procedure 9019(a), the bankruptcy court approved settlements for the Sites,

which, by the terms of each settlement, resolved Asarco’s liability for the

corresponding government entities for the response costs incurred at each site.

Moreover, each settlement was effective once approved by the bankruptcy court

and was not conditioned on the confirmation of a reorganization plan. We have

no doubt that the bankruptcy court’s approval of the settlement falls within

§ 9613(g)(3)(B).

Asarco contends that the bankurptcy court’s approval of the settlement

agreements only resolved the disputed proofs of claim and did not immediately

trigger CERCLA’s three‐year statute of limitations for direct contribution claims

because “[n]o moneys could be paid at that time,” and because “it could not even

be definitively stated how much would be paid at the time the Bankruptcy Court

approved the two agreements.” Appellant’s Br. 33. Therefore, Asarco argues, the

date that the reorganization plan became effective is the most logical triggering

event for the statute of limitations because “[o]nly upon the [Reorganization]

Plan’s judicial confirmation and effective date was the

24 contribution amount finally determined and payable,”id., in this case, December

9, 2009.8

It is a sufficient answer to say that Congress chose to tie the limitation

period to the “entry of a judicially approved settlement” and not to “approval of

[a reorganization] [p]lan.” We note as well, however, that under the terms of the

statute a “judicially approved settlement” need only “resolve[]” a potentially

responsible party’s liability, and not fix the settlement amount. See

(f)(3)(B). Such a resolution occurs when a potentially responsible party is

released from CERCLA liability, which the Everett Smelter and MCMA

settlements accomplished with respect to Asarco. See Niagara Mohawk, 596 F.3d

at 125‐26; RSR Corp.,

. Moreover, given that the confirmation of a

reorganization plan could plausibly take years, tying the statute of limitations to

that date would do nothing to ensure the “principal purpose of limitations

periods in this setting,” namely “ensur[ing] that the responsible parties get to the

bargaining‐ and clean‐up‐table sooner rather than later.” RSR Corp.,

.

Because the bankruptcy court approved a settlement as to the Everett

8 Asarco alternatively argues that the date of the bankruptcy court order confirming the Plan, November 13, 2009, could be the triggering event. We reject that argument too as having no basis in the statutory text.

25 Smelter Site on April 18, 2008, and as to the MCMA on June 5, 2009, we agree

with the district court that the three‐year statute of limitations for the Everett

Smelter expired on April 18, 2011, more than a year before this action was

commenced on May 10, 2012.

As to the MCMA, the three‐year statute of limitations expired on June 5,

2012 – after this action was filed, but before Asarco filed its first amended

complaint on July 17, 2012. It was only in that amended complaint that Asarco

first asserted a claim relating to the MCMA. Thus, as Asarco concedes, that claim

is time‐barred unless it relates back to the filing of the initial complaint. See Fed.

R. Civ. P. 15(c)(1)(B).

Upon de novo review, we find no error in the district court’s determination

that the MCMA claims do not relate back the original complaint. See Slayton v.

Am. Exp. Co.,

, 228 (2d Cir. 2006). For a newly‐added claim to relate

back under Rule 15(c)(1)(B), “the basic claim must have arisen out of the conduct

set forth in the original pleading.” Id. (internal quotation marks omitted). “[T]he

central inquiry is whether adequate notice of the matters raised in the amended

pleading has been given to the opposing party within the statute of limitations by

the general fact situation alleged in the original pleading.” Id. (internal quotation

marks omitted).

26 Here, Asarco’s original complaint dealt exclusively with the alleged

contamination at the Everett Smelter, and contained no facts whatever about the

MCMA settlement, any actions taken or costs incurred to remediate the MCMA

site, or even any reference to the environmental contamination there. Indeed, the

original complaint explained that the suit involved a claim “for costs incurred by

Asarco at a former lead smelter and arsenic extraction facility . . . and

surrounding areas located in Everett, Washington.” J.A. 19, ¶ 1. In contrast, the

MCMA claims, as described in the Second Amended Complaint, arose as a result

of “mining, ore concentrating, and transportation facilities located . . . in

Snohomish County, Washington,” approximately 40 miles away from Everett.

J.A. 71, ¶ 1. While the Second Amended Complaint alleges that the enterprises

involved in the Everett and MCMA operations were “interrelated,” we cannot

see how the original complaint would have given “adequate notice” that the

MCMA claims, which were based on different conduct, in a different location,

and attributable to different entities than the claims set forth in that pleading,

would be at issue in the dispute. See Slayton, 460 F.3d at 228.

Accordingly, Asarco’s direct contribution claims are time‐barred.

IV. Subrogation Claim

Finally, Asarco contends that it is entitled to assert a contribution claim as a

27 subrogee, based on the fact that it paid the sum approved in the settlement,

which was made and approved while Asarco was a debtor‐in‐possession in a

Chapter 11 bankruptcy proceeding, after it had emerged from bankruptcy. The

argument is founded on the premise that as the reorganized debtor, Asarco is a

separate legal entity from the former debtor‐in‐possession and paid the debtor’s

CERCLA liability. Therefore, Asarco asserts that its claims are timely under the

alternative statute of limitations in

(g)(4), which provides that

“[n]o action based on rights subrogated pursuant to this section by reason of

payment of a claim may be commenced under this subchapter more than 3 years

after the date of payment of such claim.” If that provision applies, both the

Everett Smelter and the MCMA claims would be timely, since the payment of the

settlement amount occurred on December 9, 2009, which was less than three

years before the filing of the later of Asarco’s two amended complaints, which

was filed in October 2012.

For the reasons set forth below, we reject Asarco’s argument and conclude

that the Asarco that filed for bankruptcy as debtor‐in‐possession and entered the

settlement and the Asarco that emerged from bankruptcy and paid the settlement

amounts are not separate legal entities for purposes of pursuing

28 post‐confirmation subrogation claims. Having paid its own debt, Asarco is not

entitled to assert a subrogation claim.

“To determine whether or not entities are the same the court must look to

the substance of the [Reorganization] Plan.” Cross Media Mktg. Corp. v. CAB

Mktg., Inc.,

(Bankr. S.D.N.Y. 2007). Here, the terms of the Plan

establish that Asarco is the same legal entity as the debtor in the bankruptcy

proceeding (the “Debtor”) and is therefore not a subrogee. Provisions of the

Reorganization Plan:

• define “Reorganized ASARCO,” which is the plaintiff here, to be one and the same as the Debtor as of the effective date of the Plan. It defines “Reorganized ASARCO” as “ASARCO and/or any of its successors . . . on or after the Effective Date,” Reorganization Plan, ¶ 298, and defines “ASARCO” as “ASARCO LLC” which is “a Delaware limited liability company and one of the Debtors herein,” id., ¶¶ 21, 25.

• continue the Debtor’s existence as Asarco. Id., art. 10.11 (“Reorganized ASARCO shall continue its existence after the Effective date.”).

• vest the claims and causes of action of the Debtor and the bankruptcy estate in Asarco. Id., art. 10.12 (“Except as otherwise expressly provided in the [Plan], on the Effective Date, all of ASARCO’s and its Estate’s property and assets shall vest in Reorganized ASARCO . . . .”); id., art. 10.13 (“Any and all claims and causes of action that were owned by ASARCO or its Estate as of the Effective Date . . . shall vest in Reorganized ASARCO on the Effective Date . . . .”).

29 • maintain the Debtor’s identical equity owners as the owners of the Reorganized Asarco. Id., art. 10.11 (“The equity interests in Reorganized ASARCO shall continue to be held by ASARCO USA Incorporated.”).

Because the Asarco that emerged upon reorganization is not a different

entity from the Asarco that entered bankruptcy as the Debtor, Asarco’s payment

of the settlement lacks the basic requirement of subrogation – the existence of a

subrogee that is a distinct entity from the subrogor. See US Airways, Inc. v.

McCutchen,

(2013). As the Supreme Court put it in that case,

“[s]ubrogation simply means substitution of one person for another; that is, one

person is allowed to stand in the shoes of another and assert that person’s rights

against a third party.”

at 1546 n.5 (internal quotation marks omitted). Asarco

is still wearing its own shoes; it agreed to pay and paid its own debts. The

district court thus properly dismissed Asarco’s subrogation claims, and correctly

concluded that the statute of limitations for subrogation claims has no bearing on

this case.

30 CONCLUSION

We have considered all of Asarco’s contentions on this appeal and have

found them to be without merit. For the foregoing reasons, the judgment of the

district court is AFFIRMED.

31