Kelly T. Wood, Assistant Attorney General
Just over the border from Northeast Washington, in the town of Trail, B.C., the Teck Metals (formerly Teck Cominco) smelter hovers over the Columbia River like a bird of prey. In 2002 and 2003, swimmer Christopher Swain swam the length of the Columbia—from its Canadian headwaters to the Pacific Ocean—in an effort to bring attention to pollution and blockage issues. Passing the Teck smelter, Swain recalled the sight as he took slow freestyle-swim breaths beneath the smelter: “Water. Mordor. Water. Mordor. Water. Mordor . . .”
The Trail smelter is currently the largest lead/zinc smelter in the world, a title it recently regained after a downturn in emerging markets caused the prices of metals to take a dive, and a number of other smelters to close, in the early 2010s.
For a period of 100+ years, Teck discharged hazardous byproducts from its smelting operations into the Columbia River, both liquid effluent and granulated slag. Up to 145,000 tons of slag went into the Columbia on an annual basis, the vast majority of which was dutifully carried downstream the 10 river miles to Washington. So much slag (millions of tons) washed downstream from the Trail smelter, that a “black sand” beach formed in a backwater eddy north of the town of Northport. Over time, Teck slag physically decays in the river, leaching heavy metals to the surrounding environment. And, other metals in Teck’s liquid effluent discharges also adsorbed to river sediment and settled into the quiescent waters of Lake Roosevelt.
In addition to direct discharges to the Columbia, Teck also discharged hazardous substances into the air from its Trail Smelter stacks, including heavy metals such as lead, arsenic, cadmium, and mercury. Prevailing winds in the river valley carried Teck’s aerial discharges along the same corridor bearing Teck’s river discharges. By the 1920s, smelter smoke, containing large amounts of sulphur dioxide, had denuded vegetation in and around Trail and into the Columbia River Valley in Washington State. Indeed, the dispute over vegetative damage from the Trail smelter became a landmark trans-boundary pollution dispute and arbitration in the late 1920s and early 1930s.
Phase I Litigation
By the 1990s, concerns regarding Teck’s operations turned from the air to the river. In the early 1990s, the Canadian government began looking into Teck’s discharges. And, in 1992, the Canadian Department of Fisheries and Oceans published a report on a series of bioassays conducted on Teck’s slag, a byproduct Teck had long cited as being benign. Essentially everything put in contact with Teck slag (from zooplankton to trout fingerlings) exhibited significant mortality.
Concerns also sprang up on the south side of the border. In 1999, and based on longstanding concerns about Teck’s discharges, the Confederated Tribes of the Colville Reservation petitioned EPA to conduct an assessment of contamination in and along the Columbia River, from the Grand Coulee Dam to the border. The EPA completed its assessment in 2003 and concluded that the UCR Site was eligible for listing on the National Priorities List (i.e., Superfund). Also in 2003, the EPA issued a Unilateral Administrative Order requiring Teck to conduct a remedial investigation at the UCR Site in order to determine the nature and extent of the contamination and establish feasible means of cleaning it up. After EPA’s Order languished for a year, two members of the Confederated Tribes of the Colville Reservation filed a CERCLA citizen suit seeking to enforce the Order. The State of Washington moved (and was granted the right) to intervene on the side of the named citizens.
Teck immediately moved to dismiss the Complaint(s) for failing to state a claim, arguing that CERCLA could not apply extraterritorially to its discharges in Canada. Both the District Court, and later the 9th Circuit, disagreed. The 9th Circuit determined that, while Teck’s initial discharges to the Columbia occur in Canada, the actionable CERCLA releases alleged occur in the United States. Thus, if the Plaintiffs could show that hazardous substances discharged in Canada are shown to have been released from a CERCLA facility within the United States, the application of CERCLA is domestic. Thus, in 2006, with the Supreme Court denying Teck’s Petition for cert, the 9th Circuit remanded the case back to the District Court for trial.
In the meantime, EPA and Teck entered into a contractual agreement whereby EPA withdrew its Order in return for Teck’s American subsidiary conducting the RI/FS work (but with no promise on any work to follow). As a result, in 2008 the Tribes and the State amended their complaints from enforcement of the Order to a cost recovery action under CERCLA Sec. 107. The case was bifurcated (actually trifurcated), with “Phase I” limited to establishing Teck’s CERCLA liability for releases to the River.
After four more years of litigation, including nearly 100 fact and expert depositions, on the eve of trial, Teck stipulated that its slag and liquid effluent travelled to the UCR Site, that its slag leached hazardous substances into water and sediment, and that its releases caused the State and the Tribes to incur response costs. This left the issues of whether Teck was an “arranger” under CERCLA and whether the Court had personal jurisdiction over Teck.
The Court ruled against Teck on both counts, thus authorizing the State and Tribes to recover response costs related to the river pathway.
Following the Court’s ruling on the river pathway and Teck’s CERCLA liability, and simultaneously with litigation of response costs for the river pathway, the State and Tribes amended their complaints to add a claim for liability via another pathway: aerial deposition at the UCR Site. Specifically, and based upon emerging work performed in the UCR Site uplands, the amended complaints alleged that Teck’s discharges into the atmosphere from Trail traveled through the air into the United States, resulting in disposal of airborne contaminants at the UCR Site.
The District Court granted the motions amending the complaints. Teck again immediately moved to dismiss the air pathway claims based upon the argument that aerial deposition does not constitute a “disposal” under CERCLA. The District Court again disagreed with Teck, reasoning that a disposal had occurred at a CERCLA “facility” (i.e., the UCR Site). Similar to the arguments regarding extraterritorial application, the Court reasoned that CERCLA does not require that there be a disposal “into or on any land or water” in the first instance. Rather, “so long as Defendant’s hazardous substances were disposed of ‘into or on any land or water’ of the UCR Site—whether by the Columbia River or by air—[Teck] is potentially liable as an ‘arranger.’”
Given Teck’s Phase I push for “divisibility” (up-front apportionment of Teck’s liability), a 2009 Supreme Court decision with the BNSF moniker featured prominently in the litigation. Teck ultimately lost its divisibility defense via summary judgment in 2011. However, less than a month from the Court’s decision on the air pathway, the 9th Circuit announced a new decision involving BNSF as a party and that has played another central role in the Teck litigation: Center for Community Action v. BNSF Railway, 764 F.3d 1019 (9th Cir. 2014).
This BNSF decision came under RCRA rather than CERCLA. Specifically, an environmental group filed suit against BNSF under RCRA’s citizen suit provisions claiming that particulates emitted from its idling diesels at a BNSF railyard constituted an imminent and substantial endangerment to human health. On review from the trial court, the 9th Circuit tossed the citizen suit on the grounds that RCRA’s definition of “disposal” did not include the emission of solid waste directly into the air. Instead, the Circuit concl uded that disposal occurs where the solid waste (i.e., the particulates in the diesel emissions) is first placed “into or on any land or water” and thereafter “emitted into the air.” Because Plaintiffs in BNSF had not alleged anything beyond the first emission “into the air,” the Circuit held that there was no cognizable RCRA “disposal.”
Teck immediately seized on the BNSF decision and filed a motion for reconsideration with the District Court. Because CERCLA merely adopts by reference RCRA’s definition of “disposal,” Teck argued that CERCLA arranger liability cannot reach to a party that arranged for the disposal of materials that are first discharged to the air. In other words, Teck argued that BNSF requires any CERCLA disposal of hazardous substances to be via first direct contact with land or water. Because its aerial emissions first contact is with the airshed, rather than land or water at the UCR Site, Teck asserted that CERCLA cannot reach the hazardous substances leaving its stack.
The District Court disagreed. Siding with the Tribes and the State, the Court distinguished BNSF and concluded that the CERCLA disposal alleged by the Plaintiffs “occurred when the hazardous substances from Teck’s aerial emissions . . . were deposited ‘into or on any land or water’ of the UCR Site.” As a result, such a disposal occurs “in the first instance” onto land or water. Teck appealed, and the 9th Circuit granted interlocutory review. The District Court stayed litigation of Teck’s liability for aerial discharges pending the 9th Circuit’s decision.
Yet Another Trip to the 9th Circuit
For the fourth time in the case, the 9th Circuit heard oral argument on April 6, 2016. Teck’s arguments were simple and hewed closely to its assertions at the District Court: BNSF creates a bright-line rule that any discharges which travel through the air first and then eventually fall onto land or water are not CERCLA (or RCRA) disposals and thus not actionable under the statute.
The Tribes and State (and the U.S. Government as amici) argued that Teck’s position would create a gaping hole in CERCLA’s broad remedial purpose, contrary to decades of government and industry assumptions regarding the statute’s scope (not to mention the billions of dollarsof settlements and judgments based upon such liability). And, as noted above, the governments asserted that the actionable “disposal” in this case (unlike BNSF) occurred only when solids from Teck’s stack make their way across the border and come to be located in upland soils and lakes.
It will be months before any decision is expected from the Circuit.
arguments regarding extraterritorial application, the Court reasoned that CERCLA does not require that there be a disposal “into or on any land or water” in the first instance. Rather, “so long as Defendant’s hazardous substances were disposed of ‘into or on any land or water’ of the UCR Site—whether by the Columbia River or by air—[Teck] is potentially liable as an ‘arranger.’”