Teck held accountable for airborne pollution – per Court ruling

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.

2 responses to this post.

  1. Posted by Pamela Lynch on January 27, 2016 at 12:06 am

    I purchased a home in Northport in Dec. 2004. The sellers realtor and the seller never told me of an EPA study on my soon to be property. I asked them both just before escrow closed and verbally was told no problems existed on my property nor did the disclosure statement say otherwise either. Just before escrow closed I had been hearing about the EPA being in the area and what they were doing. I call the EPA and found out that my property was part of the study. I then contacted the sellers who had already moved to Oregon and then received a letter from the owner with the test results from the EPA. I moved from the state of Nevada and had already sold my home and business and packed my Uhaul to move to Northport. The test results stated to the Philips family that their property in fact had been contaminated abs by what , but by then they had already sold the house to me and left town. The report was datedJuly 2004. I signed into extol the house in August 2004. Needless to say I was very upset. My mother had just had breast cancer and had one of her breasts removed four weeks before we moved to Washington. And I have two different forms of Autoimmune diseases. I was told by my realtor to keep my mouth shut as the sellers of my house were a four generation family to the area and I didn’t want to make enemies. But it’s ok for those people to lie to make a profit and risk the health of the new owners . Fortunately I no longer live in Northport and I called it my dream home at the time. I had two small dogs , a toy poodle and a toy Yorksihire Terrier who died less than a year of moving in that house and they died several weeks apart of each other . Of course , again, I was unaware of any environmental issues with my house when I bought it and it was already too late because all documents were signed and I was in the process of moving in. I’m glad it’s over for me but I got to know many residence of Northport and I am so upset to hear the news of some of their illnesses and the deaths. And there are those who are alive now that may not be in the near furure. It is devastating for that whole community and grew to love dearly. Shame on Teck and Canada. Why aren’t they being required to close the nine ? Shame on America and Canada for this life threatening mess and not closing it down. How greedy do people have to be??????

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  2. Posted by Eman on November 18, 2015 at 9:23 pm

    Way to go Jamie !! Keep digging !!

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