Pakootas, et al v. Teck Cominco Metals, et al

Filing 2564

ORDER DENYING 2497 DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM; the discovery stay on air emissions and the air pathway theory is hereby LIFTED. Signed by Chief Judge Stanley A Bastian. (CLP, Case Administrator)

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Case 2:04-cv-00256-SAB ECF No. 2564 filed 09/15/22 PageID.61864 Page 1 of 5 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 1 2 Sep 15, 2022 3 SEAN F. MCAVOY, CLERK 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 JOSEPH A. PAKOOTAS, an individual 10 and enrolled member of the Confederated No. 2:04-CV-00256-SAB 11 Tribes of the Colville Reservation; and 12 DONALD R. MICHEL, an individual and ORDER DENYING 13 enrolled member of the Confederated DEFENDANT’S MOTION TO 14 Tribes of the Colville Reservation; and DISMISS FOR FAILURE TO 15 THE CONFEDERATED TRIBES OF STATE A CLAIM 16 THE COVILLE RESERVATION, Plaintiffs, 17 18 and 19 THE STATE OF WASHINGTON, Plaintiff-Intervenor, 20 21 v. 22 TECK COMINCO METALS, LTD., a 23 Canadian corporation, 24 Defendant. 25 26 27 28 ORDER DENYING DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM *1 Case 2:04-cv-00256-SAB 1 ECF No. 2564 filed 09/15/22 PageID.61865 Page 2 of 5 Before the Court is Defendant’s Motion to Dismiss for Failure to State a 2 Claim, ECF No. 2497. The Court heard oral argument on the motion by Video 3 Conference on August 25, 2022. Defendant Teck Cominco Metals, Ltd.’s (“Teck”) 4 was represented by Deborah Baum, Amanda Halter, Deanna Willman, and Bryce 5 Wilcox. Plaintiff-Intervenor the State of Washington (“Washington State”) was 6 represented by Andrew Fitz, Joshua Osborne-Klein, and Kara Tebeau. 7 Teck moves to dismiss Washington State’s Model Toxics Control Act 8 (“MTCA”), Wash. Rev. Code 70A.305 et seq., claim for natural resource damages 9 deriving from aerial deposition of hazardous substances.1 Washington State alleges 10 Teck is liable under MTCA because it disposed of hazardous air emissions at the 11 upper Columbia River and surrounding lands (the “Site”) from its metallurgical 12 smelter in Trail, British Columbia. Specifically, Washington State claims that Teck 13 “deliberately discharged pollutants through its smokestack and made use of 14 Columbia River Valley air currents to dispose of these wastes in Washington.” 15 Under Washington State’s theory of liability, Teck is an “owner” or “operator” of 16 the Site and/or “arranged for disposal” of hazardous substances at the Site, as those 17 terms are defined by MTCA. Wash. Rev. Code § 70A.305.040(1)(a), (d). 18 In its motion, Teck contends Washington State’s MTCA claim is an 19 unprecedented expansion of the statute by its application to aerial emissions—Teck 20 argues that aerial emissions from a stationary source like its smelter “do not 21 constitute a ‘disposal’ under MTCA.” Teck also claims Washington State cannot 22 demonstrate a “release” has occurred under MTCA, because any release to the 23 environment initially occurred in British Columbia, Canada. Teck thus disputes that 24 25 1 The motion is brought pursuant to Federal Rule of Civil Procedure 26 12(b)(6), and thus, the Court accepts Washington State’s factual allegations as true 27 and construes the pleadings in the light most favorable to it. Manzarek v. St. Paul 28 Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). ORDER DENYING DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM *2 Case 2:04-cv-00256-SAB ECF No. 2564 filed 09/15/22 PageID.61866 Page 3 of 5 1 Washington State has alleged sufficient facts to demonstrate it (1) is a potentially 2 liable party, or that it (2) released a hazardous substance to the environment. Last, 3 Teck posits that applying MTCA to it—a foreign entity—violates the presumption 4 against extraterritoriality and the foreign affairs doctrine. 5 Washington State responds that MTCA’s remedial scope expressly 6 encompasses surface contamination resulting from aerial deposition plumes, like 7 those caused by Teck’s smelter. Relatedly, Washington State contends it has applied 8 MTCA to aerial deposition plumes from smelters in practice. It argues that a MTCA 9 “release” includes entry of hazardous substances into Washington at the border as 10 well as the continued leaching of hazardous substances deposited at the Site. 11 Washington State also asserts its theory of MTCA liability does not require 12 extraterritorial application of the statute and its application in this case does not 13 violate the foreign affairs doctrine. 14 In this case, Washington State has stated a claim under MTCA because it has 15 plausibly alleged Teck is a liable party and a release has occurred at the Site. First, 16 the Court finds Washington State has pled sufficient facts to allege Teck is liable as 17 an “arranger” for disposal of hazardous waste in Washington. Wash. Rev. Code 18 § 70A.305.040(1)(c) (stating a person is liable under MTCA if they “arranged for 19 disposal or treatment of the hazardous substance at the facility”). While MTCA does 20 not define “disposal,” the Court concludes “disposal” may include discharges to air. 21 The ordinary meaning of “disposal” does not preclude this interpretation, and 22 crucially, MTCA expressly contemplates cleanup sites created by aerial 23 contamination. H.B. Rep. SB 6722, 60th Leg., Reg. Sess. (Wash. 2008); Wash. Rev. 24 Code § 70A.305.130(4); see also Mod. Sewer Corp. v. Nelson Distrib., Inc., 125 25 Wash.App. 564, 571 (2005) (defining “disposal” under MTCA to include 26 “discharging”). 27 Second, Washington State has plausibly alleged facts to show a “release.” A 28 “release” under MTCA means “any intentional or unintentional entry of any ORDER DENYING DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM *3 Case 2:04-cv-00256-SAB ECF No. 2564 filed 09/15/22 PageID.61867 Page 4 of 5 1 hazardous substance into the environment[.]” Wash. Rev. Code § 70A.305.020(32). 2 The “environment” is geographically limited to that “within the state of Washington 3 or under the jurisdiction of the state of Washington.” Wash. Admin. Code § 1734 340-200. Based on the facts alleged, a “release” occurred when hazardous 5 substances entered the state of Washington (1) through the domestic airshed at the 6 border; (2) through deposits to domestic soils and sediment; (3) continuing relapses 7 from these deposits, after deposit; and (4) through releases to biota. See Pakootas v. 8 Teck Cominco Metals, Ltd., 452 F.3d 1066, 1077–79 (9th Cir. 2006) (finding that 9 leaching of a hazardous substance was a domestic “release” under MTCA’s federal 10 counterpart CERCLA). Since the purported releases occurred within Washington, and the hazardous 11 12 substances have come to be located in the same, this case involves a permissible 13 domestic application of MTCA. See id. at 1082 (holding that application of 14 CERCLA did not involve an extraterritorial application of law because Teck’s 15 hazardous substances had come to be located in the United States, even though the 16 original source of the hazardous substances was located in a foreign country). And 17 since MTCA does not regulate Teck’s activities either domestically or 18 extraterritorially, the claim does not run afoul of the foreign affairs doctrine. 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // ORDER DENYING DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM *4 Case 2:04-cv-00256-SAB ECF No. 2564 filed 09/15/22 1 Accordingly, IT IS HEREBY ORDERED: 2 1. PageID.61868 Page 5 of 5 Defendant’s Motion to Dismiss for Failure to State a Claim, ECF No. 3 2497, is DENIED. 4 2. The discovery stay on air emissions and the air pathway theory is 5 hereby LIFTED. 6 IT IS SO ORDERED. The District Court Clerk is hereby directed to enter 7 this Order and to provide copies to counsel. 8 DATED this 15th day of September 2022. 9 10 11 12 13 14 15 Stanley A. Bastian Chief United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER DENYING DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM *5

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