Home » Case Summaries » 2016 » Pakootas v. Teck Cominco Metals, Ltd., 830 F.3d 975 (9th Cir. 2016)

 
 

Pakootas v. Teck Cominco Metals, Ltd., 830 F.3d 975 (9th Cir. 2016)

 

 

In this case, members of the Confederated Tribes of the Colville Reservation (collectively, the Tribe)[1] brought claims under the Comprehensive Environmental Response, Compensation, and Liability Act[2] (CERCLA) against Teck Cominco Metals, Ltd. (Teck Cominco), the owner-operator of a Canadian smelter, including claims to recover the cost of hazardous waste cleanup and natural resource damages in the State of Washington. All parties agreed that Teck Cominco could be held liable for costs and damages under CERCLA if Teck Cominco arranged for the “disposal” of hazardous substances—such as lead, arsenic, cadmium, and mercury compounds—when those substances entered the air from Teck Cominco’s smelter stacks and were eventually deposited onto soil and water in Washington. Teck Cominco moved to strike the claims seeking cleanup costs and damages on the basis that CERCLA does not impose liability when hazardous substances travel through the air and eventually enter the land or water. The district court initially denied Teck Cominco’s motion.[3] Teck Cominco filed a motion for reconsideration one month after the Ninth Circuit ruled that it was not “disposal” within the meaning of the Resource Conservation and Recovery Act[4] (RCRA) when hazardous material, emitted into the air, eventually enter the land or water. The district court again denied the motion.[5] However, because CERCLA cross-references RCRA’s definition of “disposal” and no court had addressed whether aerial deposits constituted “disposal” under CERCLA, the district court certified the question to the Ninth Circuit for interlocutory appeal.[6]

The Ninth Circuit reviewed the district court’s decision de novo. The court explained that, in order for the Tribe to prevail, it needed to prove that 1) Teck Cominco either released or had a threatened release of hazardous substances; and 2) the hazardous substances were found at a CERCLA “facility”—i.e., the site where a hazardous substance has been “disposed.” The Tribe argued that Teck Cominco disposed of various hazardous substances in Washington after those substances were carried through the air from Teck Comico’s smelter stacks in Canada and deposited onto the soil and water in Washington. The Ninth Circuit held that it was bound by its previous interpretation under RCRA that aerial emissions leading to deposit elsewhere did not constitute disposal. Accordingly, the court reversed the district court’s ruling.

This case was one in a series of disputes regarding damages occurring within Washington caused by hazardous substances originating from Teck Cominco’s smelter operation ten miles north of the United States-Canada border in Trail, British Columbia. The larger dispute centered on Teck Cominco dumping slag into the Columbia River. The appeal in this case focused on the hazardous substances Teck Cominco emitted into the air from the smelter’s smokestacks. The Tribe alleged that Teck Cominco discharged hazardous substances into the atmosphere through its smelter stacks, and those hazardous substances were “deposited” within the United States after travelling through the air, causing continuing detrimental impacts to human health and the environment.

The Tribe argued that Teck Cominco allowed hazardous substance to be “deposited” in Washington through the air or by the wind, and cited dictionary definitions of “deposit” that included gradual accumulation through natural forces. Though the court found the Tribe’s interpretation reasonable, it determined that prior rulings precluded it from adopting the Tribe’s proffered definition.[7] In Carson Harbor Village Ltd. v. City of Carson, the Ninth Circuit concluded that “deposit” in the CERCLA context meant placement by a party and not “passive migration.”[8] And in Center for Community Action v. BNSF Railway, the court held that, under RCRA, for airborne hazardous waste to have been “deposited” it must be first placed into or onto water or land before being emitted into the air.[9]

Based on its own controlling precedent, the Ninth Circuit was unable to adopt the Tribe’s proposed interpretation of what constituted a “deposit” under CERCLA. The court reversed the district court’s orders and remanded the case for further proceedings on the remaining claims.

 

 

 

Footnotes    (↵ returns to text)

  1. Plaintiffs included Joseph A. Pakootas and Donald R. Michel, both enrolled members of the Confederated Tribes of the Colville Reservation, and the Confederated Tribes of the Colville Reservation were plaintiff-appellees. The State of Washington intervened as plaintiff-appellee.
  2. Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601–9675.
  3. Pakootas v. Teck Cominco Metals, Ltd., No. CV-04-256-LRS, 2014 WL 12481339, at *1 (E.D. Wash. Mar. 7, 2014).
  4. Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901–6992k (amending Solid Waste Disposal Act, Pub. L. No. 89-272, 79 Stat. 992 (1965)).
  5. Pakootas v. Teck Cominco Metals, Ltd., No. CV-04-256-LRS, 2014 WL 12480262, at *1 (E.D. Wash. July 29, 2014).
  6. Pakootas v. Teck Cominco Metals, Ltd., No. CV-04-256-LRS, 2014 WL 7408399, at *4 (E.D Wash. Dec. 31, 2014).
  7. Ctr. for Cmty. Action & Envtl. Justice v. BNSF Ry., 764 F.3d 1019 (9th Cir. 2014); Carson Harbor Vill., Ltd. v. City of Carson, 270 F.3d 863, 879 (9th Cir. 2001).
  8. Carson Harbor, 270 F.3d at 879.
  9. Ctr. for Comm. Action, 764 F.3d at 1025.
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