“For the better part of 20 years now, Teck has continued to fight liability and associated obligations at all levels for the century’s worth of industrial wastes Trail historically discharged directly to the Columbia River or from smokestacks at the smelter complex. The litigation and multiple appeals continue in federal court.“
– Washington State Department of Ecology
1999
The Confederated Tribes of the Colville Reservation (CCT) petitioned the EPA to assess the contamination of the Upper Columbia River.
2003
The EPA issued a Unilateral Administrative Order requiring Teck to investigate the site and propose a contamination assessment plan; however, Teck did not comply.
2004
Plaintiffs Joseph Pakootas and Donald R. Michel filed a lawsuit in the U.S. District Court for the Eastern District of Washington under the CERCLA (Superfund) citizens’ suit provision to enforce the EPA’s order. Soon after, Washington State joined the case. Over time, the lawsuit expanded to include Natural Resource Damage Assessment (NRDA), cost recovery, and air pathway liability.
2006
The district court concluded Pakootas phase I of the litigation by declaring that “Teck is jointly and severally liable in any subsequent action or actions to recover past or future response costs under [CERCLA] at the Upper Columbia River site.” That same year Teck entered into a voluntary agreement with the EPA to begin studies to assess the damages their disposal and emissions of heavy metal toxins caused to the environment and the risk it posed to human health. However, they continued to appeal the ruling of the Pakootas case.
The case has proceeded in three phases:
- Liability
- Response costs
- NRDA
Liability
In 2012, the district court ultimately held that Teck was liable as a CERCLA “arranger”.
In 2016, the 9th Circuit Court of Appeals found Teck was not liable as a person who “arranged for disposal” of hazardous substances when it emitted those compounds into the air and the substances were deposited onto land and water downwind. Overturning the district court’s decision, the Court excluded from the federal CERCLA definition of “disposal,” the emission of hazardous substances into the air that are then deposited elsewhere. The Court relied heavily on the reasoning and analysis from two previous Ninth Circuit decisions to determine that the term “disposal,” as construed under CERCLA, did not include the passive depositing of compounds onto land or water through emission into the air.
Response Costs
In 2018, the Ninth Circuit Court denied Teck’s appeal, stating they should not be required to reimburse the State and CCT’s response costs.
NRDA
In 2022, the Natural Resources Damage Assessment (NRDA) claim phase began.
In 2024, the United States District Court for the Eastern District of Washington held that CERCLA does not mandate a procedure for conducting natural resource damage assessments (NRDAs), nor is the certainty of costs required for NRDAs to be considered valid under the CERCLA statute.
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