No Second Guessing EPA: CERCLA Citizen Suit Cannot Interfere With Ongoing Cleanup

By SEDINA L. BANKS This week, the Ninth Circuit ruled that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not give a federal district court jurisdiction to adjudicate claims for past noncompliance with an order issued by the Environmental Protection Agency (EPA). The decision, Pakootas v. Teck Cominco Metals, Ltd., affirms that CERCLA's citizen suit provision cannot be used to second guess an ongoing CERCLA cleanup action. From 1905 to 1995, slag from defendant Teck Cominco Metals Limited's (Teck Cominco) smelter located in British Columbia was dumped into the Columbia River, ten miles north of the border with Washington. The pollution flowed downstream from Canada into the United States. In 1999, parties petitioned EPA to investigate the environmental contamination in the Columbia River and Lake Roosevelt. In 2003, EPA determined that the site was eligible for inclusion on CERCLA's so-called "Superfund List" as a top priority for cleanup.

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