American Bar Association Tort Trial & Insurance Practice Section Toxic Torts and Environmental Law Committee Reaching Across the 49th Parallel: The Origins and Transformation of Canada/U.S. Environmental Disputes Phoenix, AZ April 2-4, 2009 Cont ami na tion of the Upper ClColumbi a River and the Transboundary Application of CERCLA: Pakootas v. TCM Metals, Ltd. Presented by: Richard A. Du Bey Short Cressman & Burgess PLLC | Seattle, WA | (206) 682-3333 |
[email protected] 1 Superfund (CERCLA) 42 U.S.C. §§ 9601 et seq. (1980) • Provides a Federal “Superfund” to clean up uncontrolled or abandoned hazardous-waste sites . ..., . , and other . releases . into the environment • Potentially responsible parties (PRPs) are held strictly jointly and severally liable for total cleanup cost 2 Superfund (CERCLA) 42 U.S.C. §§ 9601 et seq. (1980) • Provides for enforcement by Tribal, State and Federal governmental aggfencies for the clean up pf of hazardous substances and each of the three sovereiggyns may assert statutory claims for Natural Resource Damages (NRD) 3 Tribal Interests at Risk • Indian Reservations are the remaining homeland of Indian Tribes • Tribes entitled to use and enjoy their reservation homeland and associated on and off-Reservation natural resources • Tribal rights to natural resources have significant economic, cultural and spiritual value 4 Case Study: the Upper Colum bia River • Lake Roosevelt created by Grand Coulee Dam in 1942 • 150 miles between Grand Coulee Dam and US/Canada border •Collllville Reservation west of LLkake Roosevelt • Spokane Reservation east of Lake Roosevelt 5 Area of Concern Cominco Smelter 6 The Grand Coulee Dam 7 Source of Contamination • Contamination from world’ s largest lead- zinc smelter 16 km upstream from border • 1992 USGS sediment study identified elevated levels of metals in sediments • 1994 WA Dept.