Subscribe for updates
Recent Posts
- Louisiana Trial Court Enjoins EPA From Enforcement of Disparate Impact Regulations Under Title VI
- D.C. Circuit Continues to Afford Deference to Technical Agency Decisions
- SCOTUS to Resolve Scope of Agency NEPA Environmental Analysis
- Pennsylvania Supreme Court Rules that Nonprofits are Permitted to Defend Pennsylvania’s Membership in the Regional Greenhouse Gas Initiative
- Massachusetts Appeals Court Affirms Cleanup Option with Activity and Use Exemption and No Award for Diminution in Value
Topics
- Title VI
- Disparate Impact
- Environmental Justice
- Massachusetts
- Evidence
- Internal Investigation
- Citizens Suit
- Georgia
- Federal Insecticide, Fungicide, and Rodenticide Act
- FIFRA
- Major Questions Doctrine
- Lead Paint
- Greenwashing
- Good Faith Settlement
- Federal Facilities
- Statutory Notice
- Oil Pollution Act
- Federal Jurisdiction
- Owner Liability
- Court of Federal Claims
- Ripeness
- Renewable Fuel Standard
- Fish and Wildlife Service
- Greenhouse Gas
- Refinery
- Alaska
- Florida
- National Priorities List
- Vapor Intrusion
- Solvents
- Price-Anderson Act
- Solid Waste Management Act
- Personal Jurisdiction
- Successor Liability
- Potentially Responsible Parties
- Operator Liability
- Federal Circuit
- Environmental Covenants
- National Contingency Plan
- Divisibility
- Apportionment
- Strict Liability
- Water Pollution Control Act
- Utilities
- Public Utilities Commission
- Historic Resources
- Hydraulic Fracturing
- Water Use
- PFAS
- Ohio
- Arbitration
- Alternative Dispute Resolution
- Climate Change
- Auer Deference
- Fees
- Commonwealth Court
- West Virginia
- Forest Service
- TSCA
- Asbestos
- Martime
- New Mexico
- Utah
- Tribal Lands
- Federal Tort Claims Act
- Gold King Mine
- Delaware Department of Natural Resources and Environmental Control
- Delaware
- FERC
- National Forest Management Act
- Endangered Species Act
- Chevron Deference
- United States Supreme Court
- HSCA
- Corporate Veil
- Alter Ego
- Allocation
- Eleventh Amendment
- Delaware River Basin Commission
- Mining
- Intervention
- New Hampshire
- Property Damage
- Building Materials
- First Circuit
- PCBs
- Groundwater
- Natural Resource Damages
- Innocent Party
- Brownfields
- Brownfield
- Environmental Rights Amendment
- Pipeline Hazardous Materials Safety Administration
- PHMSA
- FOIA
- Effluents
- Sediment Sites
- EHB
- Texas
- Missouri
- Pipelines
- Injunction
- Coal Ash
- Spoliation
- Stormwater
- TMDL
- Safe Drinking Water Act
- Colorado
- Drinking Water
- Michigan
- North Carolina
- Bankruptcy
- Clean Streams Law
- Hearing Board
- Civil Penalties
- Arranger Liability
- Sovereign Immunity
- Retroactive
- Tax assessment
- Fair Market Value
- Damages
- Stigma
- Property Value
- Storage Tank
- Indemnification
- Electric
- Energy
- Fifth Circuit
- Arizona
- Ninth Circuit
- Attorney-Client
- OPRA
- Iowa
- Fourth Circuit
- Discovery Rule
- Eighth Circuit
- Taxes
- Administrative Appeals
- Preemption
- CAFA
- Inspection
- Residential
- Freshwater Wetlands Protect Act
- New York
- Federal Energy Regulatory Commission
- Natural Gas Act
- Pennsylvania Department of Environmental Protection
- D.C. Circuit
- HAPs
- Hazardous Air Pollutants
- Mercury
- Condemnation
- Takings
- Natural Gas
- Storage
- Flooding
- Takings Clause
- Fifth Amendment
- Spill Act
- Causation
- NEPA
- Interior
- Tenth Circuit
- Mineral Leasing Act
- California
- Act 13
- Zoning
- Duty to Defend
- Insurance Coverage
- Landfill
- Eminent Domain
- Private Right of Action
- Sixth Circuit
- Illinois
- Water
- Diligent Prosecution
- Subject Matter Jurisdiction
- Citizen Suit
- Arkansas
- Pennsylvania
- Press
- Uncategorized
- Maryland
- Eleventh Circuit
- Equal-Footing Doctrine
- Montana
- Navigability
- Riverbed
- Indiana
- Seventh Circuit
- Breach of Contract
- Public Lands
- Green House Counsel
- Bona Fide Prospective Purchaser
- Boiler MACT
- Rulemaking
- CISWI
- Enforcement
- Equity
- Consent Decree
- Laches
- Delay Notice
- EPA
- Contribution
- Declaratory Relief
- Second Circuit
- Procedure
- Standing
- NPDES
- Medical Monitoring
- Dimock
- Case Update
- Legislation
- Certification
- Contamination
- Dukes
- Louisiana
- CLE
- Decisions of Note
- Cases to Watch
- Discovery
- Expert Witness
- Privilege
- Work Product
- CERCLA
- Cost Recovery
- Defense Costs
- Insurance
- Real Estate
- Negligence
- Remediation
- Response Action Contractors
- Consultant Liability
- Donovan
- Rapanos
- Army Corps
- Trespass
- Farming
- Hog Barn
- Kentucky
- Nuisance
- Class Actions
- Odors
- Informal Agency Action
- Administrative Hearing
- New Jersey
- ISRA
- Air
- Cancer
- Combustion
- Emissions
- Railroad
- RCRA
- Waste
- Speaking Engagements
- Third Circuit
- Toxic Torts
- Federal Procedure
- Removal
- Clean Air Act
- Permits
- Statute of Limitations
- Title V
- Cleanup
- Superfund
- Supreme Court
- Multi-District Litigation
- Statute of Repose
- Tolling
- Camp Lejeune
- Enforcement Action
- Wetlands
- Administrative Procedures Act
- Deeds
- Marcellus Shale
- Clean Water Act
- Mineral Rights
- Due Process
- Leases
- Oil and Gas
- Royalties
- Drilling
- Exploration
Blog editor
Blog Contributors
Last week, the United States Court of Appeals for the Tenth Circuit ruled that a PRP’s bankruptcy settlement of its CERCLA liability did not bar that PRP from later seeking contribution for a share of the settlement – despite the bankruptcy court’s determination that the settlement represented the PRP’s “fair share” of CERCLA liability.
The case – Asarco, LLC v. Noranda Mining, Inc., Dkt. No. 16-4045 (10th Cir. Jan. 3, 2017) – involves the Lower Silver Creek / Richardson Flat Site located near Park City, Utah, which had been used as a lead and silver ore mine since the 1870s. In August 2005, Asarco, a mining, smelting, and refining company, filed for Chapter 11 reorganization bankruptcy, which included approximately $6.5 billion environmental claims for 52 sites in 19 states. To approve Asarco’s settlement of these environmental claims, the bankruptcy court was required to determine that the settlement was “fair” and “reasonable,” under both bankruptcy law and CERCLA. Because parties that settle their CERCLA liability with the federal government receive protection from third-party contribution claims, to satisfy the “fair and reasonable” standard, the settlement must be “roughly correlated with some acceptable measure of comparative fault” for the settling party. To support its argument that the settlement for the various sites was “fair and reasonable,” Asarco’s former director of environmental services submitted a declaration with the bankruptcy court stating that the settlement was roughly equal to Asarco’s share of liability at the various sites, including the Lower Silver Creek / Richardson Flat Site.
In June 2013, after emerging from bankruptcy, Asarco filed a CERCLA contribution action against another PRP at the Lower Silver Creek / Richardson Flat Site, Noranda Mining, Inc. Asarco sought a share of the cleanup costs that it paid in the bankruptcy action to settle the CERCLA claims for the site. Asarco argued that the $8.7 million it paid at the site was more than its fair share of the cleanup costs at the site, and that Noranda should reimburse Asarco for its share of the remediation costs.
Noranda filed a motion for summary judgment, arguing, among other things, that Asarco was judicially estopped from seeking contribution because it told the bankruptcy court that it was paying its fair share of liability at the site, which was why Asarco’s settlement in the bankruptcy was fair and reasonable. The United States District Court for the District of Utah agreed, and held that Asarco was judicially estopped from asserting a CERCLA contribution claim based on the representations it made in its bankruptcy, and also that Asarco could not establish that it paid more than its fair share of costs, a prerequisite for a CERCLA contribution claim.
The Tenth Circuit disagreed and reversed, holding that “CERCLA allows a party to settle for an inexact amount and later seek contribution from other PRPs for any amounts it overpaid. If this were not the case, no party would settle with the government before going through a “mini trial” to determine the party’s exact share of liability at a site. And if such a mini-trial was held, there would never be a need for a contribution action, since that settling party’s exact amount of liability would have been established. Asarco’s contribution claim against Noranda could therefore move forward as Asarco’s claim was not barred by its statements in the bankruptcy action. Ultimately, to be successful in its contribution claim, Asarco will need to prove its share of liability at the site more precisely and establish that it “overpaid” when it settled for $8.7 million.