Mining Co. Must Face Airborne Pollution Claims, Court Told
The federal government and a California state agency urged the Ninth Circuit Tuesday to affirm that a Canadian mining company must face allegations from Washington state and a Native American tribal confederation over certain airborne pollutants emitted by its facility that allegedly settled in the Columbia River.
Teck Cominco Metals Ltd., which has been found liable for pollution it dumped directly into the river, asked the appeals court in August to strike new allegations from the Confederated Tribes of the Colville Reservation and the state of Washington that some of the water pollution arose from air emissions, saying the claims are precluded under the circuit court’s decision in a separate case last year.
There, it found that waste initially emitted aerially before falling on land or water doesn’t count as a “disposal” of waste under the Comprehensive Environmental Response, Compensation and Liability Act.
But on Tuesday, the U.S. argued in an amicus brief that Teck’s argument creates a new requirement that isn’t supported by CERCLA’s wording and would undermine Congress’ objectives. Under Teck’s interpretation, polluters could avoid cleanup liability under CERCLA if their pollutants traveled through the air at all before reaching land or water, according to the government’s brief.
“Teck’s crabbed interpretation would negate ‘disposal’ in countless cases, put many polluters beyond CERCLA’s reach, and lead to absurd results that cannot be squared with CERCLA’s text and purposes,” the government told the court.
The lawsuit was filed in 2004 by two members of the tribes, later joined by the state of Washington and the tribes themselves, to enforce a U.S. Environmental Protection Agency order directing Teck to address contamination of the Columbia River that had crossed the border. After Teck settled the EPA’s claims, the suit continued on claims under CERCLA.
The tribes added the aerial emissions claims after U.S. District Judge Lonny R. Suko clarified that his December 2012 decision, finding Teck liable for the tribes’ and state’s costs related to hazardous materials the company dumped into the river, didn’t cover liability for air emissions. The parties are currently litigating the extent to which Teck is liable for damages from the direct pollution.
Teck urged the Ninth Circuit in its August brief to strike the air emissions allegations, citing the circuit’s ruling in Center for Community Action and Environmental Justice v.BNSF Railway Co. The company contends that the August 2014 decision, holding that railroad companies weren’t liable under the Resource Conservation and Recovery Act for diesel pollution because the act doesn’t cover pollution that is first emitted in the air, applies to the tribes’ claims because CERCLA incorporates the RCRA’s definition of “disposal.”
On Tuesday, the California Department of Toxic Substances Control echoed the federal government’s comments in a second amicus brief, saying that narrowing the meaning of “disposal” under CERCLA would be contrary to CERCLA’s purpose. Under that interpretation, companies could skirt the regulation by pulverizing their hazardous waste and releasing it into the air, the department said.
The department added that the example isn’t theoretical in California, where lead smelters and certain metal recycling operations emit hazardous substances into the air that eventually fall to the ground.
“A ruling from the court that interprets ‘disposal’ narrowly could inhibit DTSC’s ability to respond under the [California Hazardous Substances Account Act], and to recover costs under CERCLA, to the detriment of California’s citizens and the environment,” according to the brief.
The federal government also argued on Tuesday that Teck’s interpretation of CERCLA relies on an extreme reading of the BNSF case that isn’t applicable in the instant suit. The claims in that case had to do with certain air pollutants that had been directly inhaled, and never reached land or water, the government said, and it was fundamentally about controlling the defendants’ emissions of air pollutants.
The court therefore viewed the suit as an air quality problem under the Clean Air Act, meaning that the plaintiffs’ claims under the RCRA essentially sought to end-run the CAA’s more limited provisions, according to the government.
Attorneys and representatives for the parties were not immediately available for comment Wednesday.
The tribes are represented by Paul J. Dayton and Brian S. Epley of Short Cressman & Burgess PLLC.
Washington is represented by Assistant Attorneys General Dorothy H. Jaffe and Thomas J. Young, and Assistant Attorney General and Senior Counsel Christa Thompson of the Washington state attorney general’s office.
Teck is represented by Kevin M. Fong and Christopher J. McNevin of Pillsbury Winthrop Shaw Pittman LLP.
The California Department of Toxic Substances is represented by the California Attorney General’s office.
The U.S. is represented by the U.S. Department of Justice.
The case is Pakootas et al. v. Teck Cominco Metals Ltd., case number 15-35228, in the U.S. Court of Appeals for the Ninth Circuit.
–Additional reporting by Andrew Westney. Editing by Emily Kokoll.