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On August 12, 2016, Justice Suko of the U.S. District Court (Eastern District of Washington) ruled that Teck Cominco Metals, Ltd., a Canadian company, was liable to the Confederated Tribes of the Coleville Reservation for “response costs” of $8.25 million, plus prejudgment interest, under the Comprehensive Environmental Response and Liability Act (CERCLA). The Tribe alleged that Teck, as a result of its Canadian operations located in Trail, British Columbia along Lake Roosevelt, deposited hazardous substances into the Upper Columbia River and was liable under CERCLA in the United States.

The case has had a long history and is still not over. The suit was launched in 2004, and promptly challenged on jurisdictional grounds by Teck, on the basis that US law could not apply to what a Canadian company lawfully does in Canada. As we reported in 2008, the US Supreme Court concluded that US law could apply to a Canadian company and the suit proceeded.

Response costs include the costs of removal or remedial action incurred by the US Government, a state or an Indian Tribe, consistent with the national contingency plan; and for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release (42 U.S.C. Section 9607).

The court concluded in its order that

Conclusions of Law declaring Defendant Teck Metals, Ltd. is jointly and severally liable for past and future response costs … and determining the amount of past response costs for which Teck is liable … allows for a prompt appeal of the Phase I and Phase II findings and conclusions. … Before commencement of Phase III litigation, efficiency is best served by full appellant resolution of response cost liability and the amount of recoverable response costs.

Subject to any appeals, the next phase of the litigation will be in relation to response costs for injury to, destruction of, or loss of natural resources. The company reports that it is reviewing its options.

As we also reported earlier this year, Teck was fined $3 million in Fisheries Act fines for the release of substances deleterious to fish in the Columbia River.

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