Pakootas v. Teck Cominco Metals, Ltd.

• Decision Date: 04 April 2012
• Docket Number: No. CV–04–256–LRS.,CV–04–256–LRS.
• Court: U.S. District Court — District of Washington
• Parties: Joseph A. PAKOOTAS, an individual and enrolled member of the Confederated Tribes of the Colville Reservation; and 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 The State of Washington, Plaintiff–Intervenor, v. TECK COMINCO METALS, LTD., a Canadian corporation, Defendant.

868 F.Supp.2d 1106

Joseph A. PAKOOTAS, an individual and enrolled member of the Confederated Tribes of the Colville Reservation; and 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,andThe State of Washington, Plaintiff–Intervenor,

v.TECK COMINCO METALS, LTD., a Canadian corporation, Defendant.

No. CV–04–256–LRS.

United States District Court, E.D. Washington.

April 4, 2012.

Gregory T. Hixson, Leslie C. Clark, Paul J. Dayton, Richard Allan Dubey, Russell S. King, Tatyana A. Gidirimski, Short Cressman & Burgess PLLC, Seattle, WA, for Plaintiffs.

Christa L. Thompson, Kristie Carevich Elliott, Thomas J. Young, Kelly T. Wood, Attorney General of Washington, Olympia, WA, Paul J. Dayton, Short Cressman & Burgess PLLC, Seattle, WA, for Plaintiff-Intervenor.

Bryce James Wilcox, Lee & Hayes, PLLC, Spokane, WA, Christopher J. McNevin, Mark E. Elliott, David Longjohn Stanton, Pillsbury Winthrop Shaw Pittman LLP, Los Angeles, CA, Gerald F. George, Amy Elizabeth Gaylord, Kevin Murray Fong, Pillsbury Winthrop Shaw Pittman LLP, San Francisco, CA, R. Jack Reynolds, Thomas A. Campbell, Samuel E. Stubbs, Pillsbury Winthrop Shaw Pittman LLP, Houston, TX, for Defendant.

ORDER GRANTING MOTIONS TO DISMISS SIXTEENTH AFFIRMATIVE DEFENSE (LIABILITY PROPORTIONATE TO APPORTIONMENT) AND MOTION FOR PARTIAL SUMMARY JUDGMENT ON DEFENDANT'S DIVISIBILITY DEFENSE, INTER ALIA

LONNY R. SUKO, District Judge.

BEFORE THE COURT are the Motion To Dismiss Sixteenth Affirmative Defense (Liability Proportionate To Apportionment) (ECF No. 957) filed by The Confederated Tribes Of The Colville Reservation (Tribes), and the Motion For Partial Summary Judgment On Defendant's Divisibility Defense (ECF No. 960) filed by the State Of Washington (State).

These motions were heard with oral argument on January 23, 2012. Paul J. Dayton, Esq., argued for the Tribes. Kelly T. Wood, Esq., argued for the State., Christopher J. McNevin, Esq., argued for the Defendant, Teck Cominco Metals, Ltd. (Teck).

I. BACKGROUND

A bench trial is scheduled in September 2012 to determine if Defendant is responsible for a “release” or “threatened release” of any “hazardous substance” from the Upper Columbia River (UCR) Site which caused the Tribes and the State to incur response costs that were “necessary” and “consistent with the national contingency plan.” ¹ Per the Ninth Circuit's 2006 decision, Pakootas v. Teck Cominco Metals, Ltd. ( Pakootas I ), 452 F.3d 1066 (9th Cir.2006), it is already established that the UCR is a “facility” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and that Defendant can potentially be held liable as an “arranger” for its disposal of slag and liquid effluent into the Columbia River from its smelter in Trail, B.C., Canada, provided there were releases or threatened releases of hazardous substances from that slag and/or effluent after it was deposited in the UCR Site located wholly within the United States. In sum, it will be determined if Defendant is liable for response costs incurred by the Tribes and the State.

Defendant contests its liability and contends it cannot be held responsible for any release or threatened release of hazardous substances from the UCR Site. Consistent therewith, its expert, Mark W. Johns, Ph.D., opines there is no detectable release of hazardous substances from Teck's barren slag and there is no evidence that dissolved metals from historical liquid effluent releases are located in the UCR. (ECF No. 966–1 at p. 23). Moreover, even assuming it is liable, Defendant asserts its liability should be several, not joint and several, because the harm at issue is divisible.²

CERCLA was designed to promote the “timely cleanup of hazardous waste sites and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination.” Burlington Northern and Santa Fe Railway Company v. United States ( BNSF ), 556 U.S. 599, 129 S.Ct. 1870, 1874, 173 L.Ed.2d 812 (2009). Imposition of joint and several liability, when appropriate, serves that purpose by making solvent liable parties, rather than the responding government, bear the risk that other liable parties are insolvent and therefore, places the financial burden of CERCLA cleanup on those responsible for the contamination. United States v. Chem–Dyne Corp., 572 F.Supp. 802, 808 (S.D.Ohio 1983). In order to ameliorate the harshness of joint and several liability, those who are found jointly and severally liable may bring a contribution action against other liable parties. 42 U.S.C. § 9613. “Equitable considerations play no role in the apportionment analysis; rather, apportionment is proper only when the evidence supports the divisibility of damages jointly caused by the PRPs [Potentially Responsible Parties].” BNSF, 129 S.Ct. at 1882 n. 9 (emphasis added). Contribution actions allow jointly and severally liable PRPs to recover from each other on the basis of equitable considerations. Id.

Liability under CERCLA is generally joint and several unless the defendant meets it burden to prove the harm is divisible and capable of apportionment. BNSF, 129 S.Ct. at 1881. “ ‘The universal starting point for divisibility of harm analyses in CERCLA cases is § 433A of the Restatement (Second) of Torts.’ ” Id., quoting United States v. Hercules, 247 F.3d 706, 717 (8th Cir.2001). Under that section of the Restatement, “when two or more persons acting independently caus[e] a distinct or single harm for which there is a reasonable basis for division according to the contribution of each, each is subject to liability only for the portion of the total harm that he has himself caused.” Id. (quoting Restatement (Second) of Torts, § 433A (1976)). “Evidence supporting divisibility must be concrete and specific.” Hercules, 247 F.3d at 718.

In a cost recovery action under 42 U.S.C. § 9607, CERCLA's strict liability scheme precludes the need to prove causation in the traditional sense. The phrase “causes the incurrence of response costs” does not require proof of causation as in a traditional common law tort action, but requires only a nexus. Carson Harbor Village, Ltd. v. Unocal Corp., 287 F.Supp.2d 1118, 1186 (C.D.Cal.2003). The nexus that must be shown is, however, “a loose one.” Id. “In the case of an actual release, the plaintiff need only prove that the defendant's hazardous materials were deposited at the site ³, that there was a release at the site, and that the release caused it to incur response costs.” Id. The plaintiff “need not show that defendant's waste was the source of the release or that defendant's waste caused it to incur response costs.” Id., citing numerous cases, including United States v. Alcan Aluminum Corp., 990 F.2d 711, 721 (2nd Cir.1993). Although causation is not required to show liability under CERCLA, the burden the defendant must meet in order to reduce its liability under the doctrine of divisibility (apportionment) is essentially a burden to prove that it caused only some part of the contamination and how much. Alcan, 990 F.2d at 722 (“[C]ausation is brought back into the case-through the backdoor, after being denied entry at the front door-at the apportionment stage”).

BNSF represents the Supreme Court's most recent foray into the availability of apportionment under CERCLA.⁴ The apportionment inquiry is a two-step process. The first question is whether the harm is “theoretically capable of apportionment.” BNSF, 129 S.Ct. at 1881. This is a question of law. Before evidence can support a reasonable basis for apportioning the harm (which is the second, factual question), the harm must be “theoretically capable of apportionment.” ⁵ In BNSF, the Supreme Court spent little time on this first step, merely observing that “both the District Court and Court of Appeals agreed that the harm created by the contamination of the Arvin site, although singular, was theoretically capable of apportionment.” BNSF, 129 S.Ct. at 1881. The Supreme Court acknowledged, however, that “[n]ot all harms are capable of apportionment.” Id. There is such a thing as a “single, indivisible harm.” Id. and see Restatement (Second) of Torts, § 433A(2) (1966). “When two or more causes produce a single, indivisible harm, ‘courts have refused to make an arbitrary apportionment for its own sake, and each of the causes is charged with responsibility for the entire harm.’ ” Id., quoting Restatement (Second) of Torts § 433A, Comment i, p. 440 (1963–64).

Teck's expert, Dr. Johns, uses three different methods to apportion Teck's liability for the harm to the UCR Site. At the outset, he apportions by “type” such that he considers only seven metals that could be attributed to Teck's slag, those being the six specifically listed in Plaintiffs' Second Amended Complaints (“SACs”)—arsenic, cadmium, copper, mercury, lead, and zinc—and antimony as opined by Plaintiffs' expert, Dimitrios Vlassopoulos. After apportioning by “type,” Dr. Johns proceeds to apportion by volume.

Dr. Johns' first method, a “metals loading approach,” considers the amount of metals released from Teck's slag in the UCR Site. Dr. Johns assumes, per the analysis of Teck's expert, Jeffrey Bradley, that none of Teck's liquid effluent remains in the UCR Site. He also assumes, per the analysis of Teck's expert,

Dr. Arthur C. Riese, that Teck's slag in the UCR Site did not leach any of the SAC metals or antimony. Dr. Johns' conclusion based on this method is that Teck should be apportioned 0% liability. In other words, the conclusion is that Teck is not liable for any releases or threatened releases of hazardous substances from the UCR Site. Apportionment is not an issue because there is no liability in the first instance. Unless liability exists, there is nothing to apportion.

Dr. Johns' second or alternative apportionment method is based on a calculated...