In Pakootas v. Teck Cominco Metals, Ltd., No. 2:04-CV-00256-SAB, 2024 WL 627260 (E.D. Wash. Feb. 14, 2024), the United States District Court for the Eastern District of Washington held that CERCLA does not mandate a procedure for conducting natural resource damage assessments (NRDAs), nor is certainty of costs required for NRDAs to be considered valid under the CERCLA statute.

In 2004, members of the Confederated Tribes of the Colville Reservation (CCT) filed a citizen suit against Teck Cominco Metals, Ltd. (Teck) under CERCLA alleging that Teck dumped millions of tons of smelter waste into the Upper Columbia River (UCR) from its Trail, British Columbia facility over the course of sixty years. The State of Washington (Washington) joined CCT as plaintiff and over the last twenty years, courts have determined that Teck is liable under CERCLA. Since 2016, CCT has been awarded nearly $10 million in response costs.

CCT and Washington instituted litigation to recover natural resource damages after unsuccessful negotiations with Teck around 2020-2021. Teck filed the instant motion for partial summary judgment in response, alleging that the plaintiffs did not comply with CERCLA’s regulations in conducting the NRDA, that the claims were premature, and that the estimated costs of natural resource restoration, ranging from $315 million to $413 million, were too uncertain.

The District Court rejected Teck’s arguments because CERCLA’s NRDA regulations state in the first subsection that the procedures set forth therein “are not mandatory.” The court therefore held that “[d]efendant fails to identify a portion of CERCLA that requires public participation, cost effectiveness, or a ‘restoration alternatives analysis’ in the process of a NRDA.” The fact that the plaintiffs chose to develop their NRDA “through their litigation experts rather than through the public administrative process” did not render the NRDA invalid as a matter of law. The court likewise found no support for Teck’s claim that the natural resource damage claims were not ripe.

With regard to the certainty of costs, the court held that damages asserted need not be “reasonably certain” and that natural resource damage claims “regularly involve a range of potential costs.” The fact that natural resource damages are expressed in a range of costs developed through experts’ calculations demonstrates the complexity of the matter, representing “factual disputes of the amount of contamination, the extent of contamination, and the practicality of restoring or replacing the damaged natural resources along the UCR.” Because questions of fact still persist with regard to actual cost, summary judgment was inappropriate.

The District Court therefore denied Teck’s motion for partial summary judgment, opening the door for CCT and Washington to proceed with a trial to determine the amount of natural resource damages that may be recovered for harm caused to the UCR. This case reiterates that claims for natural resource damages under CERCLA can hinge on expert testimony and may be allowed to proceed, even without having followed the NRDA regulations’ procedures.

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