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Pakootas v. Teck Cominco Metals, Ltd.

ELR Citation: 41 ELR 20195
Nos. Nos. 08-35951, (9th Cir. , 06/01/2011) Aff'd

The Ninth Circuit upheld the dismissal of individuals' citizen suit claim against a Canadian mining company seeking civil penalties under CERCLA for the mining company's noncompliance with a unilateral administrative order. Because a citizen suit for penalties while remediation is ongoing is a challenge to an EPA-selected removal or remedial action, their claim is barred by CERCLA §113(h). In addition, the claim does not fall within §113(h)(2)'s exception for actions to recover penalties since CERCLA §113(h)(2) does not apply to citizens suits. What the individuals seek here is not a penalty payable to themselves, but enforcement of a penalty payable to the Superfund. Such a lawsuit is not one to "recover" money. Accordingly, the lower court properly ruled that it lacked jurisdiction.