Pakootas v. Teck Cominco Metals, Ltd.
| Decision Date | 14 December 2012 |
| Docket Number | NO. CV-04-256-LRS,CV-04-256-LRS |
| Court | U.S. District Court — Eastern District of Washington |
| Parties | JOSEPH A. PAKOOTAS, an individual and enrolled member of the Confederated Tribes of the Colville Reservation; DONALD R. MICHEL, an individual and enrolled member of the Confederated Tribes of the Colville Reservation; and the CONFEDERATED TRIBES OF THE COLVILLE RESERVATION, Plaintiffs, and STATE OF WASHINGTON, Plaintiff-Intervenor v. TECK COMINCO METALS, LTD., a Canadian corporation, Defendant. |
Defendant Teck Cominco Metals, Ltd. (Teck) has stipulated that it discharged slag and effluent into the Columbia River from its smelter located inTrail, British Columbia, Canada, and that some portion of its slag and effluent has come to be located in the Upper Columbia River (UCR) Site, a "facility" as defined in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §9601(9). The UCR Site includes the reaches of the Columbia River from immediately downstream of the international border to the Grand Coulee Dam.
Furthermore, Teck has stipulated that its slag which has come to be located in the UCR Site has leached and continues to leach hazardous substances into the waters and sediments from and at the UCR Site; and that hazardous substances in Teck's effluent have come to be located and continue to move into and through the waters and sediments from and at the UCR Site. Teck has stipulated that this release or threatened release of hazardous substances at the UCR Site has caused Plaintiff, Confederated Tribes of the Colville Reservation (Tribes), and Plaintiff-Intervenor, the State of Washington (State), to incur at least $1 each in response costs which were necessary and not inconsistent with the National Contingency Plan. These stipulations satisfy three of the four elements for liability for response costs under CERCLA, 42 U.S.C. § 9607(a).
Teck contests whether it is within one of the four classes of persons subject to the liability provisions of §9607(a). Specifically, it contends that it cannot be held liable as an "arranger" because it did not arrange with another party or entity for the disposal or treatment of its hazardous substances, and that holding it liableas an "arranger" would constitute an improper extraterritorial application of CERCLA. Furthermore, Teck contests whether this court has specific personal jurisdiction over it.
The parties designated the portions of the record they requested the court consider in adjudicating these disputed issues (ECF Nos. 1940, 1946 and 1947). On October 10, 2012, they presented oral argument to the court. The court has considered the entirety of the designated record in formulating its Findings Of Fact. The Findings Of Fact are based on a preponderance of the evidence submitted by the parties and are otherwise based on the parties' Stipulation (ECF No. 1928). All objections to exhibits cited in the Findings Of Fact are OVERRULED for the reasons specified in Ex. A to ECF No. 1946. All objections to deposition testimony cited in the Findings Of Facts are OVERRULED for the reasons specified in Ex. 1 to ECF No. 1699 (ECF Nos. 1699-1, 1699-2 and 1699-3). To the extent objections have been registered to those portions of expert declarations cited in the Findings Of Fact, ECF Nos. 1726 (Bierman); 1728 (McLean); 1732 (Queneau); 1746 (Vlassopolous); and Higginson (ECF Nos. 1744 and 1765), those objections are OVERRULED.
At the October 10, 2012 oral argument, the Plaintiffs and Defendant registered objections to certain Findings of Fact and Conclusions of Law proposed by the other. The court has considered those objections and it should be apparent which objections the court has sustained and which it has overruled.
1. Teck is a Canadian corporation registered as an extra provincial company under the laws of British Columbia. All references to "Teck" incorporate its predecessor entities. ECF 1928 ¶ 10.
2. Teck's metal and fertilizer production facilities are collectively referred to herein as the "Trail Smelter" and are located in Trail, B.C., Canada, approximately 10 miles upstream from the U.S.-Canada border. ECF 1928 ¶ 11.
3. Teck and its predecessors have operated metal and/or fertilizer production facilities at Trail since 1896. ECF 1928 ¶ 12.
4. The Trail Smelter produced slag as a by-product of high-temperature recovery of metals. Teck's slag consists primarily of silica, lime and iron, as well as base metals, including zinc, lead, copper, arsenic, cadmium, barium, antimony, chromium, cobalt, manganese, nickel, selenium and titanium. ECF 1928 ¶ 13.
5. Between 1930 and 1995, Teck discharged at least 9.97 million tons of slag directly into the Columbia river via outfalls at its Trail smelter. This discharge was intentional. ECF 1928 ¶ 14. According to Teck's General Manager of Lead Operations, Wayne Wyton, Teck discarded approximately 400 tons of slag directly into the Columbia River every day. Dep. of Wyton, 6/30/10, at 23-24, 69. See Ex. 150 (Dep. of William Duncan, 7/22/10, at 239, referring to dep. ex. 248) (Teck scientist estimates discharges of 400 tons per day). See also, Ex. 185, p. 1. (Kenyon dep. at 172, referring to dep. ex. 176.) Teck concedes the 9.97 million tons of slag discarded into the river contained 7,300 tons of lead and 255,000 tons of zinc. (Higginson, ECF 1631, ¶¶ 15, 118). Teck knew that the waste slag contained metals. Ex. 138 at 2, 5 & 6 (Duncan dep. at 59-69 (); Ex. 175 at 9 (); Ex. 185 (); Ex. 189, (Kenyon at 208-210, referring to dep. ex. 187).
6. At least 8.7 million of the at least 9.97 million tons of slag discharged by Teck from its Trail Smelter has been transported by the Columbia River downstream of the international border into Washington, and some portion of that slag has come to be located at the UCR Site. ECF 1928 ¶ 17.
7. In addition to slag, Teck's Trail Smelter generated waste as effluent. The term "effluent" means all non-slag discharges of waste by Teck, excluding air emissions. Effluent was generated by numerous processes over a century of operation, including copper smelting and refining, lead smelting and refining, silver refining, an antimonial lead plant, a bismuth refinery, zinc operations (which included roasting, calcine leaching, fume leaching, electrolysis, melting and casting, cadmium recovery, and the acid plants) and production of fertilizer. ECF 1928 ¶ 15.
8. Teck discharged effluent via outfalls at the Trail Smelter directly into the Columbia River. The discharged effluent contained lead, zinc, cadmium, arsenic, copper, mercury, thallium, and other metals, as well as a variety of other chemical compounds. The components of effluent were discharged in dissolved, colloidal, and particulate form. This discharge was intentional. ECF 1928 ¶ 16. Teck concedes the effluent discarded into the Columbia River from 1923-2005 contained approximately 132,000 tons of hazardous substances, including 108,000 tons of zinc, 22,000 tons of lead, 200 tons of mercury, 1,700 tons of cadmium, and 270 tons of arsenic. Higginson, ECF 1631, ¶118. Teck knew that its discarded effluent contained at least lead, zinc, cadmium, arsenic, copper, and mercury. Wyton dep. at 34. And see Ex. 178 (), (Kenyon dep. at 139-146, referring to dep ex. 158). Ex. 152 (); Ex. 169 at 39-48, (Kenyon dep. at 40, referring to dep. ex. 159); Ex. 175, (Kenyon dep. at 99-101, referring to dep. ex. 165).
9. Nearly all of Teck's effluent that was discharged via its outfalls at the Trail Smelter has been transported by the Columbia River downstream of the international border into Washington, and at least some portion of it has come to be located at the UCR Site. ECF 1928 ¶ 18.
10. There is a single flow path directly from Teck's Trail smelter to the United States. Bierman, ECF 1624, ¶ 17. The Columbia River between Trail and the international border has ample power to mobilize and suspend slag particles even at moderate, average flows. McLean, ECF 1635, ¶ 52. The river has the capacity to transport slag, either in suspension or as bed load, in a wide range of flow conditions. McLean, ECF 1635, ¶ 53. Based on the river water's velocity in this reach, most sand-sized sediment (including most slag) behaves as wash load, maintained continuously in suspension without depositing on the river bed until it reaches a point of repose in the UCR Site. See McLean, ECF 1635, ¶ 50. The river's capacity to transport slag means that the river also has the capacity to transport Teck's sewer effluent. McLean, ECF 1635, ¶ 36.
11. The transport of slag-sized sediment in the Columbia River at Trail is supply-limited because the river's capacity to transport the material is much greater than the amount that is being supplied. As a result, the slag has been swept off the river bed surface, exposing the coarse natural cobble and gravel river bed material. McLean, ECF 1635, ¶ 54.
12. During sediment transport in the gravel and cobble environment of the Upper Columbia River, slag particles are subject to the same abrasive forces and break down creating smaller particles that are more easily transported and creating new fresh surfaces that are exposed to the flow. McLean, ECF 1635, ¶ 48. Teck's own slag study in 1991 confirmed this. Ex. 217 (Kuit dep. at 194, referring to dep. ex. 22; Ex. 244 (). In some locations, river dynamics in the UCR Site cause slag to float on the river surface. Exs. 643, 646.
13. The Grand Coulee Dam has an impact on sedimentation within the Upper Columbia River. As the river transforms from free-flowing to reservoir, Teck's slag and effluent are deposited...
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