## Facts

- Teck Cominco Metals, Ltd. (Teck) is a Canadian corporation that operated a lead-and-zinc smelter in Trail, British Columbia, near the U.S.–Canada border.
- For many decades, Teck discharged slag and liquid effluent containing hazardous substances into the Columbia River in Canada, and those materials moved downstream into the United States.
- Hazardous substances associated with Teck’s releases (including heavy metals such as arsenic, cadmium, copper, lead, mercury, and zinc) were alleged to be present in sediments and related media in northeastern Washington at what EPA treated as the Upper Columbia River Site under CERCLA.
- EPA directed Teck to perform investigative work tied to cleanup planning for contamination in the United States; litigation followed regarding Teck’s responsibility for response costs and related obligations under CERCLA.
- The plaintiffs included tribal members (Joseph Pakootas and Donald Michel) and the Confederated Tribes of the Colville Reservation; the State of Washington participated as an intervenor-plaintiff.
- By the time of this order, the case was set for a trifurcated bench-trial process, and Teck sought to avoid joint and several liability by asserting that any environmental harm at the Site was divisible and could be apportioned.
- The Colville Tribes moved to dismiss Teck’s sixteenth affirmative defense, which sought to limit liability through apportionment.
- The State of Washington moved for partial summary judgment to reject Teck’s divisibility defense as a matter of law on the existing record.

## Issues

1. Whether Teck produced enough evidence to show that the alleged harm at the Upper Columbia River Site was capable of apportionment and had a reasonable basis for division, so that liability (if established) could be several rather than joint and several.
2. Whether Teck’s apportionment-related affirmative defense (its sixteenth affirmative defense) should be dismissed before trial.

## Decision

- The court granted the Colville Tribes’ motion to dismiss Teck’s sixteenth affirmative defense.
- The court granted the State of Washington’s motion for partial summary judgment against Teck’s divisibility defense.
- The court concluded Teck had not carried its burden to present a workable basis to divide the alleged Site-wide harm for purposes of apportionment.
- As a result, if Teck were found liable under CERCLA, it remained subject to potential joint and several liability for response costs at the Site (with allocation questions left to later proceedings if appropriate).

## Legal Principles

- Under CERCLA § 107(a), liability for response costs is generally joint and several when environmental harm is not divisible.
- Divisibility and apportionment operate as an affirmative defense; the defendant bears the burden to prove both (1) the harm is capable of division and (2) there is a reasonable basis to assign shares.
- Evidence that other sources may have contributed, or that the defendant’s contribution can be estimated in some way, does not by itself establish divisibility; the defendant must show a method that addresses the full harm for which response costs are sought and permits a rational division.
- A court may resolve divisibility at the summary-judgment stage when the defendant’s proof cannot support a finding of divisibility or a reasonable basis for apportionment.

## Conclusion

In this 2012 order in *Pakootas v. Teck Cominco Metals, Ltd.*, the Eastern District of Washington rejected Teck’s attempt to limit potential CERCLA exposure through divisibility, dismissing Teck’s apportionment-related affirmative defense and granting partial summary judgment for the plaintiffs on divisibility because Teck did not provide a sufficient, fact-based method to divide the claimed Site-wide harm into apportioned shares.


Pakootas v. Teck Cominco Metals, Ltd., 2012 WL 6546088, 76 ERC 1310 (2012)