Pakootas, et al v. Teck Cominco Metals, et al
Filing
2149
ORDER DENYING MOTION FOR RECONSIDERATION, INTER ALIA , denying 2118 Motion for Reconsideration; and staying 2119 Motion to Modify Phase II Schedule. Signed by Senior Judge Lonny R. Suko. (LR, Case Administrator)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF WASHINGTON
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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,
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Plaintiffs,
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and
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THE STATE OF WASHINGTON, )
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Plaintiff-Intervenor,
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vs.
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TECK COMINCO METALS, LTD., )
a Canadian corporation,
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Defendant.
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______________________________)
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ORDER DENYING MOTION
FOR RECONSIDERATION,
INTER ALIA
BEFORE THE COURT are Defendant’s Motion For Reconsideration Of
Order Denying Motion To Strike Or Dismiss (ECF No. 2118), and Defendant’s
Motion To Modify Phase II Schedule Regarding Aerial Emission Allegations
(ECF No. 2119). Telephonic argument was heard on December 16, 2014.
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No. CV-04-256-LRS
ORDER DENYING MOTION
FOR RECONSIDERATION-
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Defendant asks the court to reconsider its order which declined to strike or
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dismiss Plaintiffs’ allegations concerning aerial emissions as a basis for recovery
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of response costs and natural resource damages. (See “Order Denying Motion To
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Strike Or Dismiss” at ECF No. 2115). Defendant asks for reconsideration on the
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basis of the Ninth Circuit’s August 20, 2014 decision in Center For Community
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Action and Environmental Justice v. BNSF Railway Company, 764 F.3d 1019
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(2014) (“CCAEJ”). On October 20, 2014, the Ninth Circuit denied a petition for
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rehearing en banc and its mandate issued on October 30.
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I. DISCUSSION
CCAEJ is a Resource Conservation and Recovery Act (RCRA) case, 42
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U.S.C. §§ 6901-6992k. It is not a Comprehensive Environmental Response,
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Compensation, and Liability Act (CERCLA) case, 42 U.S.C. §9601 et seq., and
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makes no mention of CERCLA. That said, CERCLA borrows RCRA’s definition
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of “disposal” which is as follows:
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[T]he discharge, deposit, injection, dumping, spilling,
leaking, or placing of any solid waste or hazardous
waste into or on any land or water so that such solid
waste or hazardous waste or any constituent thereof
may enter the environment or be emitted into the air
or discharged into any waters, including ground waters.
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42 U.S.C. § 6903(3). (Emphasis added).
In CCAEJ, the Ninth Circuit had this to say about § 6903(3):
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We note first that RCRA’s definition of “disposal” does not
include the act of “emitting.” Instead, it includes only acts
of discharging, depositing, injecting, dumping, spilling,
leaking, and placing. That “emitting” is not included in
that list permits us to assume, at least preliminarily, that
“emitting” solid waste into the air does not constitute
“disposal” under RCRA.
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ORDER DENYING MOTION
FOR RECONSIDERATION-
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The text of §6903(3) is also very specific: it limits the
definition of “disposal” to particular conduct causing a
particular result. By its terms, “disposal” includes only
conduct that results in the placement of solid waste
“into or on any land or water.” 42 U.S.C. §6903(d). That
placement, in turn, must be “so that such solid waste
. . . may enter the environment or be emitted into the air
or discharged into any waters, including ground waters.”
Id. We therefore conclude that “disposal” occurs where
the solid waste is first placed “into or on any land or water”
and is thereafter “emitted into the air.”
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Id. at 1024. (Emphasis in original).
In their complaint, the CCAEJ plaintiffs alleged the defendants “dispose” of
solid waste (diesel particulate matter) by allowing the waste to be “transported by
wind and air currents onto the land and water near the railyards.” Plaintiffs
alleged the particulates are then “inhaled by people both directly and after the
particles have fallen to the earth and then have been re-entrained into the air by
wind, air currents, and passing vehicles.” Id. at 1023. According to the Ninth
Circuit:
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The solid waste at issue here . . . at least as it is characterized
in Plaintiffs’ complaint, is not first placed “into or on any
land or water”; rather, it is first emitted into the air. Only
after the waste is emitted into the air does it then travel
“onto the land and water.” To adopt Plaintiffs’ interpretation
of §6903(3), then, would effectively be to rearrange the
wording of the statute- something that we, as a court,
cannot do. Reading §6903(3) as Congress has drafted it,
“disposal” does not extend to emissions of solid waste
directly into the air.
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Id. at 1024.
Defendant Teck Cominco Metals, Ltd. (“Teck”) says this court “denied [its]
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motion [to strike or dismiss], agreeing with Plaintiffs that emissions to air could
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constitute a CERCLA disposal.” This court, however, did not find that aerial
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emissions from Teck’s smelter constitute a “CERCLA disposal.” Indeed, they
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cannot be a “CERCLA disposal” because what gives rise to arranger liability
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ORDER DENYING MOTION
FOR RECONSIDERATION-
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under the plain terms of 42 U.S.C. § 9607(a)(3) is “disposal . . . of hazardous
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substances . . . at any facility . . . from which there is a release . . . of a hazardous
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substance . . . .” Defendant’s Trail, B.C. Smelter is not a “facility” under
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CERCLA, nor are the skies above the smelter, nor is the river running alongside
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the smelter. The “facility” is the UCR Site located in the United States. “Facility”
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is a term of art under CERCLA, defined at 42 U.S.C. § 9601(9) as “any site or area
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where a hazardous substance has been deposited, stored, disposed of, or placed,
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or otherwise come to be located . . . .” (Emphasis added). Liability under
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RCRA, on the other hand, does not depend on there being a disposal at a
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“facility.” RCRA’s citizen suit provision authorizes private parties to sue “any
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person who has contributed or who is contributing to the past or present . . .
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disposal of any solid or hazardous waste which may present an imminent and
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substantial endangerment to health or the environment.” 42 U.S.C. §
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6972(a)(1)(B).
As this court explained in its “Order Denying Motion To Strike Or
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Dismiss,” the “CERCLA disposal” alleged by Plaintiffs occurred when hazardous
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substances from Teck’s aerial emissions and its river discharges were deposited
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“into or on any land or water” of the UCR Site. This disposal occurred in the
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“first instance” into or on land or water of the UCR Site and therefore, does not
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run afoul of RCRA’s definition of “disposal” as interpreted by the Ninth Circuit in
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CCAEJ.
RCRA’s definition of “disposal” is colored by how that term is used in the
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CERCLA context. And in the CERCLA context, it means disposal “into or on any
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ORDER DENYING MOTION
FOR RECONSIDERATION-
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land or water” of the “facility,” that being the UCR Site.1 RCRA’s definition of
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“disposal” cannot be viewed apart from what § 9607(a)(3) of CERCLA has in
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mind regarding liability for the cleanup of a “facility.” RCRA is not concerned
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with cleanup of a “facility” and that term is not defined in RCRA. The harm
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sought to be remedied in the CCAEJ case was inhalation of diesel particulate
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matter by humans. (See Plaintiff’s First Amended Complaint, ECF No. 10 in CV-
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11-08608-SJO). Recognizing as much, the Ninth Circuit in its decision framed the
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issue as whether RCRA “may be used to enjoin the emission from Defendant’s
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railyards of particulate matter found in diesel exhaust.” CCAEJ, 764 F.3d at 1020.
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The Ninth Circuit in CCAEJ had no reason to consider how its interpretation of
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“disposal” relates to the additional CERCLA definitions of “facility” and
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“release.”
This court has analytically treated Defendant’s discharge of slag and liquid
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effluent into the Columbia River in the same fashion. The CERCLA disposal
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“into or on any land or water” was not the discharge of slag and liquid effluent
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into the Columbia River at the Trail Smelter. Rather, it was the disposal of
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hazardous substances contained in that slag and effluent which occurred when the
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slag and effluent were deposited “into or on any land or water” of the UCR Site.
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Accordingly, as this court quoted in its “Order Denying Motion To Strike Or
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In CCAEJ, the Ninth Circuit acknowledged the importance of context in
determining what “disposal” means under RCRA:
Thus, we preliminarily conclude- based on the statute’s
wording considered alone and in context- that emitting
diesel particulate matter into the air does not constitute
“disposal” as that term is defined under RCRA.
764 F.3d at 1025. (Emphasis added).
ORDER DENYING MOTION
FOR RECONSIDERATION-
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Dismiss,” one of its “Conclusions of Law” regarding Defendant’s CERCLA
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liability for river pathway response costs was that:
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Disposal at the UCR Site occurred when, after Teck actively
and intentionally discarded its slag and effluent as waste into
the Columbia River at Trail, at least some portion of that slag and
effluent came to a point of repose at the UCR Site.
(Paragraph 18 at pp. 42-43, ECF No. 1955). (Emphasis added).
Emissions into the air and river discharges in Trail, B.C. are disposals in an
ordinary sense, but they do not constitute “CERCLA disposals.” And for that
matter, they do not constitute RCRA disposals because there is no authority of
which this court is aware that RCRA can be applied extraterritorially to regulate
generation and disposal of hazardous waste in Canada. Emissions to the air alone
do not constitute a “CERCLA disposal.”
In over 30 years of CERCLA jurisprudence, no court has impliedly or
expressly addressed the issue of whether aerial emissions leading to disposal of
hazardous substances “into or on any land or water” are actionable under
CERCLA. A reasonable explanation is that the issue simply has not been raised in
any CERCLA case. Instead, it appears to have been treated as a given that if
hazardous substances from aerial emissions are “disposed” of “into or on any land
or water” of a CERCLA “facility,” response costs and natural resource damages
can be recovered for cleaning up those hazardous substances and compensating
for harm caused.
This court ascribes no particular significance to the fact the United States
decided not to submit an amicus brief in support of a petition for rehearing en
banc in the CCAEJ case. A reasonable explanation is the United States recognized
the circuit was unlikely to grant a petition to address the CERCLA ramifications
of a decision that did not involve CERCLA. Instead, the United States opted to
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ORDER DENYING MOTION
FOR RECONSIDERATION-
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file an amicus brief with this court in this CERCLA case. Likewise, this court
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ascribes no particular significance to the circuit’s declining the CCAEJ plaintiffs’
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petition for rehearing en banc. A reasonable explanation is the circuit was
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unwilling to undertake an examination of potential CERCLA ramifications from a
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decision that did not involve CERCLA.
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II. CONCLUSION/CERTIFICATION
Fed. R. Civ. P. 60(b)(6) permits a court to relieve a party from an order for
“any reason that justifies relief.” It “is to be used sparingly as an equitable remedy
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to prevent manifest injustice and is to be utilized only where extraordinary
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circumstances exist.” Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008).
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“A motion for reconsideration should not be granted, absent highly unusual
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circumstances, unless the district court is presented with newly discovered
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evidence, committed clear error, or if there is an intervening change in the
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controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co.,
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571 F.3d 873, 880 (9th Cir. 2009).
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For the reasons set forth above, this court’s “Order Denying Motion To
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Strike Or Dismiss” is not clearly contrary to the Ninth Circuit’s decision in
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CCAEJ and therefore, is not clearly erroneous so as to warrant reconsideration.
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Nor does CCAEJ, on its face at least, represent an “intervening change in the
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controlling law” with regard to CERCLA and indeed, it is not apparent it even
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represents an “intervening change in the controlling law” with regard to RCRA.
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Accordingly, Teck’s Motion For Reconsideration (ECF No. 2118) is DENIED.
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While this court is confident in its analysis of how RCRA’s definition of
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“disposal” is to be interpreted in a CERCLA context, it again acknowledges that
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apparently no court has addressed this issue head-on. Therefore, the court hereby
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ORDER DENYING MOTION
FOR RECONSIDERATION-
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CERTIFIES its “Order Denying Motion To Strike Or Dismiss” and this “Order
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Denying Motion For Reconsideration” for an immediate interlocutory appeal to
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the Ninth Circuit Court of Appeals pursuant to 28 U.S.C. § 1292(b). Because of
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the Ninth Circuit’s decision in CCAEJ, in particular its interpretation of the term
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“disposal” as defined in RCRA, there is a “substantial ground for difference of
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opinion” on the “controlling question of law” of whether Teck’s aerial emissions
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are actionable under CERCLA if they result in a “disposal” of hazardous
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substances “into or on any land or water” of the UCR Site (a CERCLA “facility”).
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A decision from the Ninth Circuit on this issue will “materially advance the
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ultimate termination of this litigation.” If the air pathway is eliminated from this
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case, it will undoubtedly reduce the time necessary to bring this case to a
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conclusion because it will leave only the recovery of response costs and natural
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resource damages resulting from Teck’s discharges of slag and effluent into the
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river.
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Of course, this court does not have the final say on whether there will be an
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interlocutory appeal. Within ten (10) days after this court’s certification, Teck will
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have to file a petition with the circuit seeking permission to appeal. Fed. R. App.
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P. 5. This court has discretion to stay the air pathway portion of the case while
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that petition is pending. The parties have already stipulated to a three months
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extension of certain Phase II pretrial dates pertaining primarily to air allegations
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(ECF Nos. 2133 and 2142).2 Lest there be any misunderstanding as to precisely
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It is the court’s understanding that the parties have not stipulated to alter
any of the Phase II Schedule dates as they pertain to the river pathway portion of
the case in Phase II (determination of recoverable response costs), with the
exception of the date pertaining to completion of fact discovery.
ORDER DENYING MOTION
FOR RECONSIDERATION-
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which dates are impacted, the parties may wish to file an additional stipulation
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which clarifies the same. Depending on the length of time it takes for the circuit
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to determine whether it will entertain an interlocutory appeal, this court will, upon
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motion by the Defendant or stipulation of the parties, consider whether that time
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should be added to the extension to which the parties have already stipulated.
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Resolution of Defendant’s Motion To Modify Phase II Schedule (ECF No.
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2119) is STAYED pending the Ninth Circuit’s determination of whether it will
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entertain an interlocutory appeal in this matter. Should the circuit deny permission
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to appeal, the court will proceed to resolve the motion. Should the Ninth Circuit
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permit the appeal, this court will stay the air pathway portion of the case pending
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resolution of the appeal, seemingly rendering moot Defendant’s Motion To
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Modify Phase II Schedule.
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IT IS SO ORDERED. The District Court Executive is directed to enter
this order and forward copies to counsel of record.
DATED this
31st
day of December, 2014.
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s/Lonny R. Suko
LONNY R. SUKO
Senior United States District Judge
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ORDER DENYING MOTION
FOR RECONSIDERATION-
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