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Pakootas v. Teck Cominco Metals Ltd.

ELR Citation: 41 ELR 20356
Nos. CV-04-256-LRS, (E.D. Wash., 11/29/2011) (Suko, J.)

A district court held that the state of Washington is not liable as an arranger under CERCLA for hazardous waste contamination stemming from mining operations on state lands. The state entered into mining contracts with a Canadian mining company that allowed the company to excavate and remove metal-containing ores from state lands. But the naturally occurring in-ground ore deposits did not have the "characteristic of waste" at the time they were "delivered" by the state to the mining companies. It was the extraction of the ore and the treatment of the ore that created the hazardous waste. The state did not perform this extraction and treatment—the mining company did. And it was the treatment of the severed ore that generated "waste" in the form of tailings. Furthermore, the state did not have the authority to control, or duty to dispose of or treat, those wastes. In addition, the fact that the ore deposits were not hazardous waste when the state entered into the contracts with the mining company indicates that the purpose of those contracts—and the intent of the state—was not to dispose of or treat hazardous waste. It was simply to generate revenue for the state. The state's mere knowledge that waste would be generated from the extraction and treatment of the ore deposits and would require disposal in some fashion does not prove the state "planned for" disposal. Accordingly, the state should not be held liable as an arranger for the disposal or treatment of hazardous waste.