844 F.3d 1201
10th Cir.2017Background
- Asarco, a mining company, filed Chapter 11 in 2005 and in 2009 the bankruptcy court approved a global environmental settlement resolving claims at 52 sites for about $1.79 billion; the Miscellaneous Agreement covered 26 sites including the Lower Silver Creek / Richardson Flat Site (the Site) for $7.4 million.
- The bankruptcy approval process considered both Bankruptcy Rule 9019 standards and CERCLA fairness principles; the court received extensive testimony and exhibits supporting the settlements and concluded amounts were reasonably linked to Asarco’s comparative fault.
- Asarco’s representative (Robbins) submitted a declaration describing cost estimates and uncertainties at the Site and stating the settlement figure "reflects only ASARCO’s share of the response costs," though he later explained that was misstated and deposition testimony clarified intent.
- The Chapter 11 Plan and the settlement agreements expressly reserved Asarco’s right to pursue contribution claims against non-settling PRPs; the Richardson Flat site was listed in the schedule of preserved claims.
- In 2013 reorganized Asarco sued Noranda under CERCLA § 113(f) seeking contribution for $8.7 million paid related to the Site, claiming it paid more than its fair share; Noranda moved for summary judgment asserting (inter alia) judicial estoppel, consent-decree protection, and that Asarco cannot show overpayment.
- The district court granted summary judgment for Noranda on judicial estoppel and on the ground Asarco could not show it paid more than its fair share; the Tenth Circuit reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Asarco is judicially estopped from pursuing contribution because it told the bankruptcy court the settlement reflected its allocable share | Asarco: Robbins’ statement was ambiguous/misworded; settlement preserved contribution rights and CERCLA allows later contribution claims for overpayment | Noranda: Asarco represented the $7.4M was its fair share; allowing contribution now contradicts and misleads the bankruptcy court | Court: Reversed district court — judicial estoppel inappropriate given context, reservations of rights, and CERCLA framework; positions not clearly inconsistent |
| Whether Asarco preserved its contribution claim in bankruptcy | Asarco: The Reorganization Plan and settlement expressly reserved contribution claims, including Richardson Flat | Noranda: Argued disallowance or that claim was discharged | Court: Preservation upheld; bankruptcy documents expressly reserved these claims (district court earlier held preserved) |
| Whether Noranda is protected by its 2006 consent decree from contribution for the Tailings Impoundment | Asarco: Settlement covers costs for Richardson Flat and Lower Silver Creek; Asarco seeks post-2006 and related-area costs beyond decree scope | Noranda: Consent decree bars contribution for matters addressed, which include Tailings costs through March 1, 2006 | Court: Rejected summary judgment on this ground — decree does not as a matter of law foreclose Asarco’s claimed post-2006 or related-site costs; factual issues remain |
| Whether Asarco can prove as a matter of law it did not overpay (i.e., paid more than its fair share) | Asarco: CERCLA permits settling for inexact amounts and later seeking contribution; evidence supports genuine factual dispute on allocable share and timing of costs | Noranda: Robbins’ statements are admissions and establish Asarco’s pro rata share; Asarco’s estimates make $7.4M consistent with apportioned share | Court: Reversed summary judgment — Robbins’ statement is not dispositive judicial admission here and factual disputes preclude judgment as a matter of law |
Key Cases Cited
- New Hampshire v. Maine, 532 U.S. 742 (1992) (sets judicial‑estoppel framework requiring clearly inconsistent positions and unfair advantage concerns)
- United States v. Cannons Eng’g Corp., 899 F.2d 79 (1st Cir. 1990) (CERCLA settlements should be roughly correlated to comparative fault but allowance for reasonable linkage)
- Eastman v. Union Pac. R.R. Co., 493 F.3d 1151 (10th Cir. 2007) (judicial estoppel applied where debtor concealed an asset from the bankruptcy court)
- Vehicle Mkt. Research, Inc. v. Mitchell Int’l, Inc., 767 F.3d 987 (10th Cir. 2014) (judicial estoppel is an equitable doctrine to be used narrowly; burden on movant)
- Hansen v. Harper Excavating, Inc., 641 F.3d 1216 (10th Cir. 2011) (cautionary approach to judicial estoppel’s application)
- Queen v. TA Operating, LLC, 734 F.3d 1081 (10th Cir. 2013) (discussion of bankruptcy disclosure and estoppel principles)
- U.S. Energy Corp. v. Nukem, Inc., 400 F.3d 822 (10th Cir. 2005) (distinguishes judicial admissions from ordinary evidentiary admissions)