Pakootas v. Teck Cominco Metals, Ltd.

Citation452 F.3d 1066
Decision Date03 July 2006
Docket NumberNo. 05-35153.,05-35153.
PartiesJoseph A. PAKOOTAS, an individual and enrolled member of the Confederated Tribes of the Colville Reservation; Donald R. Michel, an individual and enrolled member of the Confederated Tribes of the Colville Reservation; State of Washington, Plaintiffs-Appellees, v. TECK COMINCO METALS, LTD., a Canadian corporation, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Kevin M. Fong, Pillsbury Winthrop Shaw Pittman LLP, San Francisco, CA, for defendant-appellant Teck Cominco Metals, Ltd.

Richard A. Du Bey, Paul J. Dayton (argued) and Daniel F. Johnson, Short Cressman

& Burgess PLLC, Seattle, WA, for plaintiffs-appellees Joseph A. Pakootas and Donald R. Michel.

Alexandra K. Smith, Steven J. Thiele, and Kristie E. Carevich, Assistant Attorneys General, Washington State office of the Attorney General, Olympia, WA, for plaintiff/intervenor-appellee State of Washington.

Loren R. Dunn, Riddell Williams PS, Seattle, WA, for amici Washington Environmental Council, Washington, Public Interest Research Group, and Citizens for a Clean Columbia.

Rex S. Heinke, Akin Gump Strauss Hauer & Feld LLP, Los Angeles, CA, for amici Canadian Chamber of Commerce and the Mining Association of Canada.

Brian Hembacher, Deputy Attorney General, Los Angeles, CA, for amici People of the State of California ex rel. Bill Lockyer, Attorney General for the State of California, and the States of Arizona, Idaho, Montana and Oregon.

Margaret K. Pfeiffer, Sullivan & Cromwell LLP, Washington, D.C., for amicus Government of Canada.

Carter G. Phillips, Sidley Austin Brown & Wood LLP, Washington, D.C., for amicus Chamber of Commerce of the United States of America.

Rob Roy Smith, Morisset Schlosser Jozwiak & McGaw, Seattle, WA, for amicus Okanagan National Alliance in support of plaintiffs-appellees.

Catherine E. Stetson, Hogan & Hartson LLP, Washington, D.C., for amici National Mining Association and the National Association of Manufacturers.

Martin Wagner, Earthjustice, Oakland, CA, for amici Sierra Club and Sierra Club of Canada.

Shannon D. Work, Funke & Work, Coeur d'Alene, ID, for amicus Spokane Tribe of Indians.

Appeal from the United States District Court for the Eastern District of Washington; Alan A. McDonald, Senior District Judge, Presiding. D.C. No. CV-04-00256-AAM.

Before: RONALD M. GOULD and MARSHA S. BERZON, Circuit Judges, and WILLIAM W SCHWARZER,* District Judge.

GOULD, Circuit Judge:

Joseph A. Pakootas and Donald R. Michel (collectively "Pakootas") filed suit to enforce a Unilateral Administrative Order (Order) issued by the United States Environmental Protection Agency (EPA) against Teck Cominco Metals, Ltd. (Teck), a Canadian corporation. The Order requires Teck to conduct a remedial investigation/feasibility study (RI/FS) in a portion of the Columbia River entirely within the United States, where hazardous substances disposed of by Teck have come to be located. We decide today whether a citizen suit based on Teck's alleged non-compliance with the Order is a domestic or an extraterritorial application of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675. Further, we address Teck's argument that it is not liable for having "arranged for disposal" of hazardous substances because it disposed of the hazardous substances itself, rather than arranging for disposal "by any other party or entity." § 9607(a)(3).1 We hold that because CERCLA liability is triggered by an actual or threatened release of hazardous substances, and because a release of hazardous substances took place within the United States, this suit involves a domestic application of CERCLA. Further, we reject Teck's contention that it is not liable under § 9607(a)(3) because it disposed of the hazardous substances itself.

I

We consider an interlocutory appeal of the denial of Teck's motion to dismiss.2 In August of 1999, the Colville Tribes petitioned the EPA under § 9605 to conduct an assessment of hazardous substance contamination in and along the Columbia River in northeastern Washington state. The EPA began the site assessment in October 1999, and found contamination that included "heavy metals such as arsenic, cadmium, copper, lead, mercury and zinc." In re Upper Columbia River Site, Docket No. CERCLA-10-2004-0018, at 2 (Unilateral Administrative Order for Remedial Investigation/Feasibility Study Dec. 11, 2003), available at http://yosemite .epa.gov/R10/CLEANUP.NSF/UCR/ Enforcement [hereinafter UAO]. The "EPA also observed the presence of slag, a by-product of the smelting furnaces, containing glassy ferrous granules and other metals, at beaches and other depositional areas at the Assessment Area." Id. at 2-3. The EPA completed its site assessment in March of 2003, and concluded that the Upper Columbia River Site (the Site)3 was eligible for listing on the National Priorities List (NPL).4

Teck owns and operates a lead-zinc smelter ("Trail Smelter") in Trail, British Columbia.5 Between 1906 and 1995, Teck generated and disposed of hazardous materials, in both liquid and solid form, into the Columbia River. These wastes, known as "slag," include the heavy metals arsenic, cadmium, copper, mercury, lead, and zinc, as well as other unspecified hazardous materials. Before mid-1995, the Trail Smelter discharged up to 145,000 tons of slag annually into the Columbia River. Although the discharge took place within Canada, the EPA concluded that Teck

has arranged for the disposal of its hazardous substances from the Trail Smelter into the Upper Columbia River by directly discharging up to 145,000 tonnes of slag annually prior to mid-1995. Effluent, such as slag, was discharged into the Columbia River through several outfalls at the Trail Smelter . . . . The slag was carried downstream in the passing river current and settled in slower flowing quiescent areas.6

Id. at 3. A significant amount of slag has accumulated and adversely affects the surface water, ground water, sediments, and biological resources of the Upper Columbia River and Lake Roosevelt. Technical evidence shows that the Trail Smelter is the predominant source of contamination at the Site. The physical and chemical decay of slag is an ongoing process that releases arsenic, cadmium, copper, zinc, and lead into the environment, causing harm to human health and the environment.

After the EPA determined that the Site was eligible for listing on the NPL, it evaluated proposing the Site for placement on the NPL for the purpose of obtaining federal funding for evaluation and future cleanup. At that time Teck Cominco American, Inc. (TCAI)7 approached the EPA and expressed a willingness to perform an independent, limited human health study if the EPA would delay proposing the Site for NPL listing. The EPA and TCAI entered into negotiations, which reached a stalemate when the parties could not agree on the scope and extent of the investigation that TCAI would perform. The EPA concluded that TCAI's proposed study would not provide the information necessary for the EPA to select an appropriate remedy for the contamination, and as a result the EPA issued the Order on December 11, 2003. The Order directed Teck to conduct a RI/FS8 under CERCLA for the Site. To date Teck has not complied with the Order, and the EPA has not sought to enforce the Order.

Pakootas filed this action in federal district court under the citizen suit provision of CERCLA. § 9659(a)(1). Pakootas sought a declaration that Teck has violated the Order, injunctive relief enforcing the Order against Teck, as well as penalties for non-compliance and recovery of costs and fees. Teck moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) for failure to state a cause of action under CERCLA and lack of subject matter jurisdiction, on the ground that the district court could not enforce the Order because it was based on activities carried out by Teck in Canada. Teck also moved to dismiss for lack of personal jurisdiction over Teck, a Canadian corporation with no presence in the United States. After Teck filed its motion to dismiss, the State of Washington moved to intervene as of right as a plaintiff in the action. The district court granted the motion to intervene, and considered Teck's pending motion to dismiss to apply to both Pakootas's complaint and the State of Washington's complaint-in-intervention.

The district court denied Teck's motion to dismiss. It held that because the case arises under CERCLA "there is a federal question which confers subject matter jurisdiction on this court." Because there was a federal question, and because Pakootas's claims were not insubstantial or frivolous, the district court held that dismissal under Federal Rule of Civil Procedure 12(b)(1) was inappropriate. The district court also held that "[t]he facts alleged in plaintiffs' complaints establish this court's specific, limited personal jurisdiction over the defendant."

Much of district court's order was devoted to analyzing Teck's argument that the suit involved an impermissible extraterritorial application of CERCLA, and thus whether dismissal for failure to state a claim under CERCLA was appropriate. The district court first acknowledged that "there is some question whether this case really involves an extraterritorial application of CERCLA." However, the district court assumed that the case involved an extraterritorial application of CERCLA, and considered whether extraterritorial application was permissible here.

In addressing the question of extraterritorial application, the district court acknowledged that "Congress has the authority to enforce its laws beyond the territorial boundaries of the United States," but that it is "a longstanding principle of American law `that legislation of Congress, unless a contrary intent appears, is meant to apply...

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