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Pakootas v. Teck Cominco Metals, Ltd.

Citation: 42 ELR 20262
No. CV-04-256-LRS, (E.D. Wash., 12/14/2012) (Suko, J.)

A district court held that a mining company that operates a smelter in Canada is liable as an arranger under CERCLA for the release and threatened release of hazardous substances in the Upper Columbia River. The company stipulated that it discharged slag and effluent into the Columbia River from its smelter in Canada and that some portion of its slag and effluent has come to be located in the Upper Columbia River site, a "facility" as defined in CERCLA. It also stipulated that this release has caused Native American tribes and the state of Washington to incur response costs. But the company contested that it is within one of the four classes of persons subject to the liability provisions of CERCLA §607(a). Specifically, it argued 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. But the company's discarding of its slag and effluent in an unrecoverable manner via sewer outfalls into a river is clear intent to dispose of a waste. No court has held that a generator must intend to dispose of its wastes at a particular location to be held liable as an arranger under CERCLA. The company, therefore, is jointly and severally liable to the tribes and the state in any subsequent action or actions to recover past or future response costs at the site.