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Pakootas v. Teck Cominco Metals, Ltd.

United States Court of Appeals for the Ninth Circuit

April 6, 2016, Argued and Submitted, Seattle, Washington; July 27, 2016, Filed

No. 15-35228

Opinion

 [*978]  HAWKINS, Circuit Judge:

When a smelter emits lead, arsenic, cadmium, and [**4]  mercury compounds through a smokestack and those compounds contaminate land or water downwind, can the owner-operator of the smelter be held liable for cleanup costs and natural resource damages under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9607(a)(3)? All parties agree the answer turns on whether the smelter owner-operator can be said to have arranged for the "disposal" of those hazardous substances within the meaning of CERCLA. Bound by a previous en banc case's interpretation of "deposit"—the only theory of "disposal" urged by Plaintiffs in this interlocutory appeal—as not including the gradual spread of contaminants without human intervention, we must answer no.

I. Background

The history of legal disputes over damage caused in the State of Washington by emissions of toxic chemicals from Defendant Teck Cominco Metals, Ltd.'s ("Teck's") smelter, located ten miles north of the U.S.-Canada border in Trail, British Columbia, stretches back almost 100 years.2 The emissions-based claim in this lawsuit is only the latest chapter in the saga.

This [**5]  particular lawsuit initially focused on a different form of waste disposal: Teck's dumping of slag into the Columbia River. The early procedural history of the "river pathway" claims in this lawsuit was recounted in prior appeals and is not repeated here. Pakootas v. Teck Cominco Metals, Ltd., 646 F.3d 1214, 1216 (9th Cir. 2011) ("Pakootas II"); Pakootas v. Teck  [*979]  Cominco Metals, Ltd., 452 F.3d 1066, 1069-71 (9th Cir. 2006) ("Pakootas I"). Since our last published opinion in this case, some issues relevant to the river pathway claims have proceeded to trial in the district court ("Phase I"),3 while other issues remain to be tried.

While Phase I was ongoing, Plaintiff the Confederated Tribes of the Colville Reservation and Plaintiff-Intervenor [**6]  the State of Washington (collectively, "Plaintiffs") sought leave to file a third amended complaint to add a new CERCLA claim, alleging that, in addition to dumping hazardous substances into the river, Teck also emitted hazardous substances into the air. Those substances were carried by air currents to the Upper Columbia River Site ("UCR Site"), including "upland" areas of the UCR Site.4 The district court initially denied the motion as untimely. However, after the Phase I trial was completed, the district court changed its position and allowed Plaintiffs to amend their complaints to add claims for cost recovery and natural resource damages resulting from Teck's aerial emissions.

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830 F.3d 975 *; 2016 U.S. App. LEXIS 13662 **; 46 ELR 20129; 82 ERC (BNA) 2045

JOSEPH A. PAKOOTAS, an individual and enrolled member of the Confederated Tribes of the Colville Reservation; DONALD R. MICHEL, an individual and enrolled member of the Confederated Tribes of the Colville Reservation; CONFEDERATED TRIBES OF THE COLVILLE RESERVATION, Plaintiffs-Appellees, STATE OF WASHINGTON, Intervenor-Plaintiff-Appellee, v. TECK COMINCO METALS, LTD., a Canadian corporation, Defendant-Appellant.

Prior History:  [**1] Appeal from the United States District Court for the Eastern District of Washington. D.C. No. 2:04-cv-00256-LRS. Lonny R. Suko, District Judge, Presiding.

Pakootas v. Teck Cominco Metals, Ltd., 2014 U.S. Dist. LEXIS 178964 (E.D. Wash., Dec. 31, 2014)

Disposition: REVERSED AND REMANDED.

CORE TERMS

disposal, deposit, hazardous substance, air, Site, emissions, emitted, River, slag, district court, contaminants, compounds, sediment, smelter, en banc, Dictionaries, arranged

Civil Procedure, Appeals, Standards of Review, De Novo Review, Governments, Legislation, Interpretation, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Business & Corporate Compliance, Environmental Law, Hazardous Wastes & Toxic Substances, CERCLA & Superfund, Resource Conservation & Recovery Act, Environmental Law, Disposal, Storage & Treatment, CERCLA & Superfund, Enforcement, Cost Recovery Actions, Potentially Responsible Parties, Responses, Affirmative Defenses, Defenses, Defenses, Innocent Landowners, Reviewability of Lower Court Decisions, Preservation for Review, Courts, Judicial Precedent