Asarco, LLC v. Noranda Mining, Inc.

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ASARCO, LLC, a Delaware limited liability company, Plaintiff, v. NORANDA MINING, INC., a Delaware corporation, Defendant.

No. 2:12-cv-00527-DBB

United States District Court, D. Utah

November 23, 2022

MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S [237] MOTION TO LIFT STAY

David Barlow, United States District Judge

The matter before the court is Plaintiff ASARCO, LLC's (“Asarco”) Motion to Lift Stay.^[1] The court previously granted Defendant Noranda Mining, Inc.'s (“Noranda”) motion for a stay^[2] on July 11 2017.^[3] After reviewing the briefing and relevant law, the court finds that oral argument is unnecessary.^[4] For the reasons below, the court denies Asarco's motion.

BACKGROUND

In the late nineteenth century, miners began to extract lead and silver ore from the mountains near Park City Utah.^[5] The act of processing the ore created waste “tailings.”^[6] The tailings washed down a nearby body of water-Silver Creek-ultimately resting in the Lower Silver Creek.^[7] From 1925 to 1981, Asarco had an ownership interest in a mining site at Lower Silver Creek.^[8] Asarco also leased a site upstream from the Lower Silver Creek in 1970 to 1979 known as the Richardson Flat site.^[9] From 1979 to 1982, Noranda was the lessee of the Richardson Flat site; it did not mine near the Lower Silver Creek.^[10] After 1982, no further tailings were deposited at the Richardson Flat site.^[11] The Lower Silver Creek site and Richardson Flat site are part of the greater Richardson Flat tailings impoundment area.

The EPA has divided the area into four operable units (“OU”). OU1 contains the bulk of the area's tailings and consists of the Richardson Flat site.^[12] OU2 and OU3 include the Lower Silver Creek site. Tailings at this site include historic tailings piles and places where the Silver Creek deposited tailings from upstream sources.^[13] The sites and OUs are depicted below.^[14]

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Liability of the United Park City Mines Company

The EPA began studying the Richardson Flat area in the 1980s pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”).^[15]Congress enacted CERCLA to address threats to health and the environment.^[16] For purposes of CERCLA, the EPA acts as the lead federal agency.^[17] United Park City Mines Company (“United Park”) owns portions of the Richardson Flat site.^[18] Through a judicial consent decree with the EPA, United Park assumed responsibility for the cleanup of the Richardson Flat site in exchange for the ability to draw from an EPA account that would be funded by potentially responsible parties (“PRP”).^[19] In consequence, the EPA sent letters to two PRPs, Noranda and Asarco, about liability for the Richardson Flat site and sought reimbursement.^[20] In August 2005, Asarco filed for bankruptcy.^[21] Noranda settled its liability to the EPA for the Richardson Flat site in March 2006.^[22] The settlement, however, did not address the Lower Silver Creek site.^[23] After the EPA selected a remediation plan for the Richardson Flat site in 2005, United Park finished cleanup at the site.^[24]

In 2009, the EPA expanded its cleanup efforts to the Lower Silver Creek site.^[25] United Park took responsibility for cleaning up this site and entered into an agreement with the EPA in 2014.^[26] In exchange for its efforts, the EPA let United Park seek reimbursement from an account funded with money from Asarco's 2009 bankruptcy settlement, which is described below.^[27]Pursuant to its agreement, United Park could seek reimbursement only when the EPA approves a cleanup plan for the Lower Silver Creek site.^[28] As a preliminary step to determining the cleanup costs for the Lower Silver Creek site, United Park needed to submit an Engineering Evaluation and Cost Analysis (“EE/CA”).^[29] The EPA took over responsibility for the EE/CA and all other required cleanup steps in 2017 because United Park failed to meet its obligations.^[30] The United States brought suit against United Park in March 2019 to enforce the settlement agreement.^[31] In October 2022, the court entered a consent decree that resolved all claims between the United States and United Park.^[32]

Typical CERCLA Contribution Action

In a traditional CERCLA contribution case, the EPA first completes “a Remedial Investigation/Feasibility Study . . . to develop various options for cleanup and to determine the scope of remedial action” after identifying a site as hazardous.^[33] Then, the EPA “conducts a detailed investigation at the site, seeking information regarding all site operations, and the extent of contamination at the site.”^[34] It also “prepares a Record of Decision (“ROD”) describing the remedial action it selected and the action's anticipated costs.”^[35] The ROD is issued after a public comment period.^[36] Finally, the EPA can bring a CERCLA action against PRPs if the EPA “has incurred costs or determined that an imminent release of hazardous contaminants would initiate a government response.”^[37] A PRP could then seek contribution from other PRPs pursuant to 42 U.S.C. § 9613(f)(1).^[38] As explained below, this process did not happen here.

Asarco's Bankruptcy and EPA Settlement

Asarco filed a Chapter 11 petition in the Bankruptcy Court for the Southern District of Texas in August 2005.^[39] Asarco sought protection from over $3.6 billion in environmental claims related to fifty-two sites nationwide, including the Richardson Flat area.^[40] In 2006, the EPA filed a Proof of Claim for roughly $607,000 in cleanup costs associated with the Richardson Flat site.^[41] In 2008, after learning of Asarco's ownership history at the Lower Silver Creek site, the EPA filed a supplemental claim and sought to recover another $50 million.^[42] The EPA settled its claims against Asarco in 2009 regarding the Richardson Flat area for $7.4 million.^[43]

Asarco's Contribution Action

On June 5, 2012, Asarco filed its Complaint.^[44] It sought contribution from Noranda for the portion of the environmental damage that Noranda had allegedly caused to the Richardson Flat area.^[45] The court granted summary judgment to Noranda in March 2016 based on “judicial estoppel, Noranda's contribution protection, and Asarco's inability to establish that it paid more than its fair share of costs at the Site.”^[46] Asarco appealed.^[47] The Tenth Circuit reversed, holding that Asarco had raised a genuine issue of material fact as to the amount, if any, owed by Noranda for cleanup costs related to the Richardson Flat area.^[48] Noranda subsequently moved for a stay.^[49]The court granted the stay on July 11, 2017, remarking that the stay would be lifted “after the EPA approves a remediation plan for the Lower Silver Creek site.”^[50] The court ordered the parties to submit quarterly joint status reports in the interim.^[51]

EPA's Actions at the Lower Silver Creek Site

Before determining the scope of remedial action at the Lower Silver Creek site, the EPA must complete several steps. First, the EPA must create a Site Characterization Report, which in turn will inform a Human Health Risk Assessment.^[52] At the same time, the EPA must complete an Ecological Risk Assessment.^[53] These reports, along with other test data, will lead to an EE/CA.^[54] The EE/CA will outline cleanup options at the site and give an estimate of what each option would cost.^[55] The EPA plans to open the EE/CA for at least thirty days of public comment and then publish an action memorandum.^[56] The action memorandum will set forth the chosen cleanup plan and detail the scope of removal actions, if any, required for the site.^[57] The EPA's estimates to complete the EE/CA have changed over time. As of October 2017, the EPA anticipated that it would finish the EE/CA for the Lower Silver Creek site between 2018 and 2019.^[58] Two years later, the EPA pushed back its estimate to the second half of 2020.^[59] In July 2020, the EPA predicted partial completion of the EE/CA by March 2021.^[60]The following spring, the EPA said that it hoped to have the assessment done by early 2022.^[61]Most recently, the EPA projected that it likely would complete the EE/CA by Summer 2023.^[62] In an August 2022 email to Noranda, the EPA said that they are “hoping [the EE/CA] will be done in a year, but since [the new site manager] is just coming on to the [Lower Silver Creek] Site, it may take extra time to come up to speed.”^[63]

Despite the shifting estimates, EPA has made progress. Starting in 2018, the EPA completed a summary characterization of surface water at the Lower Silver Creek site.^[64] Also in 2018, the EPA finished the background chemical determination for the site.^[65] In 2018, the EPA analyzed soil and groundwater samples, conducted fish surveys, evaluated the area for potential aquatic life, performed data mapping, and executed a site features survey.^[66] The EPA conducted more sampling in 2021.^[67] The next year, the EPA analyzed the data from the 2021 sampling.^[68]

Motion to Lift the Stay

On October 13, 2021, the court granted Asarco leave to file a motion to lift the stay.^[69]Asarco filed the instant motion on July 11, 2022.^[70] Noranda filed an opposition on August 9, 2022,^[71] and Asarco replied on August 23, 2022.^[72]

STANDARD

“[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.”^[73] “When determining whether to lift an existing stay, courts typically apply the same standard that applies to determine whether to impose a stay in the first place.”^[74]Factors relevant to the court's decision are: “(1) whether the stay would promote judicial economy; (2) whether the stay would avoid...