Pakootas v. Teck Cominco Metals, Ltd.

Date: July 3rd, 2006

Topic: Natural Resources, Solid & Hazardous Waste, Water Pollution

Type: Amicus Brief, Lawsuit vs. Private Actors

Jurisdiction: Arizona, California, Idaho, Montana, Oregon, Washington

Teck Cominco Metals, Ltd. (Teck) is a Canadian company that operates a lead-zinc smelting facility located just 10 miles north of the United States border. From 1906 until 1995 that facility disposed of slag, i.e. heavy metals and other hazardous materials, into the Columbia River in Canada, which flows down through Washington and Oregon into the Pacific Ocean. For almost 100 years there have been legal disputes regarding damages in Washington caused by Teck’s operations.

Upon petition by the Colville Tribes, EPA conducted a site assessment of the Upper Columbia River and in 2003 found that it was eligible for listing on the National Priorities List. Later that year EPA issued an order forcing Teck to perform a remedial investigation/feasibility study pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Teck did not comply with the order and several members of the Colville Tribes filed suit in 2006 to force compliance. Washington intervened in the action and several other states filed amicus briefs in the suit as well. Teck moved to dismiss the action claiming that CERCLA does not apply extraterritorially, but the 9th Circuit affirmed the district court’s denial of the motion in a decision known as Pakootas I. The court differentiated CERCLA from the Resource Conservation and Recovery Act, and noted that in this case the leaching of the hazardous substances from the slag occurred within the United States, even though the initial disposal took place in Canada.

After that decision, EPA and Teck entered into a settlement agreement whereby Teck and its American subsidiary agreed to perform remediation and EPA withdrew its order. Plaintiffs then amended their complaint to seek only penalties, costs, and fees for past noncompliance with EPA’s order. Teck moved to dismiss the suit again for lack of jurisdiction and the district court granted the motion with respect to the penalties. In 2011, the 9th Circuit affirmed the grant of Teck’s partial motion to dismiss in Pakootas II, on the grounds that the plaintiffs could not sustain an action for penalties under the citizen suit provision at issue.

Throughout the litigation, Teck brought various CERCLA counterclaims against the plaintiffs, all of which were dismissed by the district court. The district court concluded Phase I of the litigation by declaring that “Teck is jointly and severally liable in any subsequent action or actions to recover past or future response costs under [CERCLA] at the Upper Columbia River site.” Phase IIdealt with liability for natural resource damages.

The plaintiffs again sought to amend their complaint to add CERCLA disposal claims against Teck. However, the 9th Circuit held that the plaintiffs could not recover under CERCLA for cleanup costs and natural resource damages against a smelter for emitting arsenic, mercury, cadmium and arsenic compounds when those compounds contaminate water and land downwind of the smokestack.

In 2015 the district court dismissed the Tribes claims for attorney’s fees and litigation expenses which it claimed as response costs under CERCLA. The court did not decide, though, as to those expenses which the Tribes could claim that were related to response or remediation. In 2016, the district court granted the Tribes $8,253,676.65 in response and removal costs.

Citation: Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066 (9th Cir. 2006)

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