Thursday, June 2, 2011

Pakootas v. Teck Cominco Metals, Ltd.

Jun 1: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-35951 & 10-35045. Appealed from the United States District Court for the Eastern District of Washington. The Appeals Court addresses citizen suit jurisdiction under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The case involves a facility in Canada that is polluting waters across the border in the U.S.
    The Appeals Court indicates Teck Cominco Metals Limited (Teck Cominco), a Canadian mining company, owns a smelter in Trail, British Columbia. From 1905 to 1995, slag from the smelter was dumped in the Columbia River, ten miles north of the border with Washington. Pollution flowed downstream into the United States. Plaintiffs Joseph A. Pakootas and Donald R. Michel sued Teck Cominco to enforce the EPA's unilateral administrative order. They founded jurisdiction on the citizen suit provision of CERCLA, seeking: (1) a declaration that Teck Cominco was in violation of the order; (2) an injunction compelling compliance; (3) penalties for Teck Cominco's failure to comply; and (4) attorneys' fees and costs.
    The Appeals Court explains the complicated legal actions. Teck Cominco moved to dismiss for lack of subject matter and personal jurisdiction, and for failure to state a claim upon which relief could be granted. Before the district court ruled on the motion to dismiss, the State of Washington intervened in the litigation and sought the same relief. The district court denied Teck Cominco's motion to dismiss, but certified the order for interlocutory appeal. While that appeal was before us, the Confederated Tribes of the Colville Reservation joined as a party plaintiff. Subsequently, the State amended its complaint to seek the anticipated costs of the CERCLA recovery and assessment, as well as declaratory relief regarding the reasonable costs of assessing natural resource damages, a claim that is proceeding in district court. The Colville Tribes have added the same demand as the State, and these claims are now proceeding in district court.
    The Appeals Court affirmed the district court's denial of Teck Cominco's motion and held that the suit was not an extraterritorial application of CERCLA because even though the smelter was in Canada, slag had moved downstream into the United States. Because a "site" where a hazardous substance has "come to be located" falls within the definition of a "facility" in CERCLA, the Appeals Court held that the EPA was not acting extraterritorially in addressing that downstream "facility." The Appeals Court said, "The unilateral administrative order, we held, was addressed to this 'facility' within the State of Washington.We did not reach the question of whether Congress intended CERCLA to apply extraterritorially."
    While that appeal was pending, but before we had decided it, the EPA and Teck Cominco settled. The settlement went into effect in June 2006. Teck Cominco, the Canadian company together with its American subsidiary, and the EPA, signed what they called a "contractual agreement" (not a stipulation for a consent decree or other court order) to perform remediation. Teck Cominco consented to personal jurisdiction in the United States District Court "solely for the limited purpose of an action to enforce" designated provisions of the contract.
    Meanwhile, Teck Cominco had petitioned for certiorari from our decision. The Supreme Court, denied certiorari, so the arguments were not ruled upon. The Appeals Court explains that the district court held that the Pakootas-Michel claim for
penalties for the 892 days of noncompliance was a challenge barred by 42 U.S.C. § 9613(h), and that it did not fall within § 9613(h)(2)'s exception. "We generally agree with the district court's careful analysis and affirm." Following a lengthy discussion of the legal issues, the Appeals Court concludes, "As the district court correctly concluded, it lacked jurisdiction to adjudicate the Pakootas and Michel claims for penalties for the 892 days of noncompliance with the unilateral administrative order, and properly dismissed their claims."
    Access the complete opinion (click here). [*Remed]

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