JUDICIAL DEVELOPMENTS

October 2006

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Ninth Circuit Upholds EPA Unilateral Order Mandating CERCLA RI/FS Regarding Releases to Columbia River Originating from Canadian Disposal Site
Pakootas et al. v. Teck Cominco Metals, Ltd.,

In Pakootas et al. v. Teck Cominco Metals, Ltd., the Ninth Circuit Court of Appeals, on July 3, 2006, upheld the District Court’s denial of defendant’s motion for summary judgment, holding that (1) the portion of the Columbia River which was the subject of an EPA unilateral administrative order constituted a domestic “facility”; (2) leaching of hazardous substances from slag discharged in Canada but which had come to be located in a portion of the Columbia River within the United States constituted a domestic “release”; (3) the defendant could qualify as a liable party under CERCLA even if the act of “arranging for disposal” took place outside the U.S.; and (4) no extraterritorial application of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) was involved in plaintiffs’ attempt to seek enforcement of the EPA order because of the domestic impacts of the “release.”