McGuireWoods Wins Appeal Allowing Asarco To Seek Cleanup Costs for Utah Superfund Site

January 6, 2017

McGuireWoods scored a significant federal appeals court victory Tuesday for copper mining giant Asarco, allowing the company to seek recovery of costs associated with the cleanup of a Utah Superfund site in a civil trial.

A three-judge panel of the 10th Circuit unanimously reversed the U.S. District Court for the District of Utah, ruling that the trial court abused its discretion when it dismissed Asarco’s lawsuit against Noranda Mining Inc. on summary judgment. Arizona-based Asarco sued Noranda in 2013 to recover a portion of the amount Asarco paid the Environmental Protection Agency for cleanup of the Richardson Flat Superfund site in Park City, Utah. This payment was part of approximately $1.79 billion that Asarco paid during its previous Chapter 11 bankruptcy to resolve its alleged environmental liability at 52 sites in 19 states.

The Court of Appeals rejected the trial court’s determination that judicial estoppel should bar Asarco’s case under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), determining that none of the three judicial estoppel elements were met.  The Court of Appeals also found that Asarco’s claims are not barred by the terms of a consent decree between the EPA and Noranda. The appeals court remanded the case to the U.S. District Court for trial.

“We are pleased for our client that the federal appeals court concluded unanimously that Asarco should be allowed to present evidence to show why Noranda should bear the significant cleanup costs for the Richardson Flat site,” said McGuireWoods partner Gregory Evans, who litigated the case for longstanding client Asarco in the District Court and argued the case on appeal. “We now look forward to trying this case on its merits before the District Court.”

Law360 published a Jan. 3 story on the decision, which includes comments from Evans.