Petition for Writ of Certiorari — Teck Metals Ltd., fka Teck Cominco Metals, Ltd., Petitioner v. The Confederated Tribes of the Colville Reservation, et al.

APPENDIX

1a

APPENDIX A

_________

UNITED STATES COURT OF APPEALS,

NINTH CIRCUIT

_________

No. 16-35742

_________

JOSEPH 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

Coville Reservation; CONFEDERATED TRIBES OF THE

COLVILLE RESERVATION,

Plaintiffs-Appellees,

STATE OF WASHINGTON,

Intervenor-Plaintiff-Appellee,

v.

TECK COMINCO METALS, LTD.,

a Canadian corporation,

Defendant-Appellant.

_________

Argued and Submitted

February 5, 2018, Seattle, Washington

Filed September 14, 2018

_________

2a

OPINION

GOULD, Circuit Judge:

This appeal is the latest chapter in a multi-decade

dispute centered on Teck Metals’ liability for

dumping several million tons of industrial waste into

the Columbia River.

Since we last heard an

interlocutory appeal in this case, the district court

dismissed Teck’s divisibility defense to joint and

several liability on summary judgment. At Phase I

of the trifurcated bench trial, the court held that

Teck was a liable party under the Comprehensive

Environmental Response, Compensation, and

Liability Act (“CERCLA”). At Phase II, the court

found Teck liable for more than $8.25 million of the

Confederated Tribes of the Colville Reservation’s

response costs. The district court then certified this

appeal by entering partial judgment under Federal

Rule of Civil Procedure 54(b). We conclude that we

have jurisdiction, and we affirm.

I

The Columbia River, the fourth-largest river in

North America, begins its 1,200-mile journey to the

sea from its headwaters in the Canadian Rockies.

The River charts a northwest course in British

Columbia before bending south toward Washington.

It then widens and forms the Arrow Lakes reservoir

until, thirty miles before the international border, it

reaches the Hugh Keenleyside Dam. After passing

through the dam’s outlet, the River is free-flowing

until south of the border near Northport,

Washington. There it again starts to slow and pool

at the uppermost reaches of Lake Roosevelt, the

massive reservoir impounded behind the Grand

3a

Coulee Dam. This case concerns the more than 150mile stretch of river between the Canadian border

and the Grand Coulee Dam, known as the Upper

Columbia River.

From time immemorial, the Upper Columbia River

has held great significance to the Confederated

Tribes of the Colville Reservation. These tribes

historically depended on the River’s plentiful fish for

their survival and gave the River a central role in

their cultural traditions.1 And the Colville Tribes

continue to use the Upper Columbia River to this day

for fishing and recreation. Under the applicable

treaties, the Tribes retain fishing rights in the River

up to the Canadian border.

See Okanogan

Highlands All. v. Williams, 236 F.3d 468, 478 (9th

Cir. 2000) (citing Antoine v. Washington, 420 U.S.

194, 196 n.4, 95 S.Ct. 944, 43 L.Ed.2d 129 (1975)).

Those treaties draw the Colville Reservation’s

eastern and southern boundaries “in the middle of

the channel of the Columbia River.” Act of July 1,

1892, ch. 140, § 1, 27 Stat. 62, 62-63. The Tribes

claim equitable title to the riverbed on their side of

the channel, and the United States has long

supported this claim. See Confederated Tribes of

Colville Reservation v. United States, 96 F.2d 1102,

1105 n.7 (Fed. Cir. 1992); Opinion on the Boundaries

of and Status of Title to Certain Lands Within the

1

See generally U.S. EPA, Upper Columbia River Expanded

Site Inspection Report Northeast Washington, app. A

(Petition

for

Assessment

of

Release),

https://nepis.epa.gov/Exe/ZyPURL.cgi?Dockey=P100MFOQ.T

XT.

4a

Colville

and

Spokane

Indian

Reservations,

84 Interior Dec. 72, 75–80, 1977 WL 28859, at *3-5.

For nearly a century, however, the Upper Columbia

River has been fouled by Teck Metals’ toxic waste.2

Teck operates the world’s largest lead and zinc

smelter in Trail, British Columbia, just ten miles

upstream of the U.S. border. During smelting, lead

or zinc ore is heated to a molten state, during which

the desired metal is separated from impurities in the

raw ore. These impurities cool to form glassy,

granular slag.

Between 1930 and 1995, Teck

discharged about 400 tons of slag daily—an

estimated 9.97 million tons in total—directly into the

free-flowing Columbia River.

Teck washed this

debris into the river using untold gallons of

contaminated effluent. These solid and liquid wastes

contained roughly 400,000 tons (800 million pounds)

of the heavy metals arsenic, cadmium, copper, lead,

mercury, and zinc, in addition to lesser amounts of

other hazardous substances.3

At least 8.7 million tons of the Trail smelter’s slag

and nearly all of the dissolved and particulate-bound

metals in its effluent made the short trip

2

3

Teck was previously named Teck Cominco Metals.

Teck’s slag contained 255,000 tons of zinc (510 million

pounds) and 7,300 tons of lead (14.6 million pounds). Teck’s

effluent contained an additional 108,000 tons of zinc (216

million pounds), 22,000 tons of lead (44 million pounds),

1,700 tons of cadmium (3.4 million pounds), 270 tons of

arsenic (540,000 pounds), and 200 tons of mercury (400,000

pounds). The district court did not make a finding on how

much copper Teck dumped into the river, but Teck

previously conceded that about 29,000 tons (58 million

pounds) reached the Upper Columbia River.

5a

downstream into the United States. Upon reaching

the calmer waters of Lake Roosevelt, Teck’s smelting

byproducts came to rest on the riverbed and banks,

with larger detritus settling upstream and smaller

particles settling downstream near the Grand Coulee

Dam.4 Once settled, these wastes began to break

down and release hazardous substances into the

River’s waters and sediment.

In 1999, the Colville Tribes petitioned the U.S.

Environmental Protection Agency to assess the

threats posed by the contamination of the Upper

Columbia River Site. Two years later the Tribes and

EPA signed an intergovernmental agreement

coordinating a site investigation and assessment.

After completing its preliminary assessment, EPA

issued a unilateral administrative order against

Teck. The order directed Teck to perform a remedial

investigation and feasibility study (“RI/FS”) of the

Site under CERCLA. Teck disputed whether it was

subject to CERCLA, however, and EPA decided not

to enforce the order during negotiations with the

company.

The Colville Tribes then tried to enforce EPA’s

order by funding a CERCLA citizen suit by two of

their tribal government officials in 2004. These

plaintiffs were later joined by the State of

Washington as a plaintiff-intervenor and eventually

by the Colville Tribes as a co-plaintiff.

4

Black Sand Beach, for instance, is named after the sandlike slag deposits that have accumulated on the riverbank

near Northport, Washington. See URS Corp., Completion

Report & Performance Monitoring Plan: Black Sand Beach

Project

§ 2.2

(2011),

https://fortress.wa.gov/ecy/gsp/DocViewer.ashx?did=3783.

6a

Teck moved to dismiss the action. It primarily

argued

that

CERCLA

does

not

apply

extraterritorially to its activities and that it cannot

be held liable as a person who “arranged for disposal”

of hazardous substances. The district court denied

this motion to dismiss and certified the issues for

immediate appeal under 28 U.S.C. § 1292(b).

While the appeal was pending, Teck and EPA

entered a settlement agreement withdrawing EPA’s

order and committing Teck to fund and conduct an

RI/FS modeled on CERCLA’s requirements. The

study aims to investigate the extent of contamination

at the Site, to provide information for EPA’s

assessment of the risk to human health and the

environment, and to evaluate potential remedial

alternatives. But the settlement agreement is silent

as to Teck’s responsibility for cleaning up the Site.

We accepted Teck’s interlocutory appeal and

affirmed the district court’s denial of the motion to

dismiss. See Pakootas v. Teck Cominco Metals, Ltd.,

452 F.3d 1066, 1082 (9th Cir. 2006) (Pakootas I). We

held that the suit did not involve an extraterritorial

application of CERCLA because Teck’s pollution had

“come to be located” in the United States. Id. at 1074

(quoting 42 U.S.C. § 9601(9)). We also held that the

complaint had stated a claim for relief because the

actual or threatened release of hazardous substances

at the Site could subject Teck to “arranger” liability

under CERCLA. Id. at 1082 (citing 42 U.S.C.

§ 9607(a)(3)).

On remand, the Tribes and the State each filed

amended complaints seeking cost recovery, natural

resource damages, and related declaratory relief

7a

under CERCLA. 5

Litigation was ultimately

trifurcated into three phases to sequentially

determine: (1) whether Teck is liable as a potentially

responsible party (“PRP”); (2) Teck’s liability for

response costs; and (3) Teck’s liability for natural

resource damages.

Before the first bench trial, the Tribes and the

State moved for partial summary judgment on Teck’s

divisibility defense. The district court granted the

motions and dismissed the defense, concluding that

Teck did not present enough evidence to create a

genuine issue of fact as to whether the

environmental harm to the Upper Columbia River

was theoretically capable of apportionment or

whether there was a reasonable basis for

apportioning Teck’s share of liability.

In Phase I of trial, the district court concluded that

Teck was liable as an arranger under CERCLA

section 107(a)(3), 42 U.S.C. § 9607(a)(3). In doing so,

the court rejected Teck’s argument that Washington

courts lack personal jurisdiction over the company.

The district court then held that without its

divisibility defense, Teck was jointly and severally

liable to the Tribes and the State under

section 107(a)(4)(A), 42 U.S.C. § 9607(a)(4)(A).6

5

The individual plaintiffs’ claims were subsequently

dismissed and judgment was entered against them, which

we affirmed on appeal. Pakootas v. Teck Cominco Metals,

Ltd., 646 F.3d 1214, 1225 (9th Cir. 2011) (Pakootas II).

6

After the Phase I bench trial, the Tribes and the State

filed amended complaints adding allegations that the Trail

smelter’s air emissions also resulted in the discharge of

hazardous substances at the Site. The district court denied

the motion to strike those allegations, but we reversed on

8a

In Phase II, the State settled its claim for past

response costs while the Tribes proceeded to trial.

The district court found in favor of the Tribes and

awarded them $3,394,194.43 in investigative

expenses incurred through December 31, 2013,

$4,859,482.22 in attorney’s fees up to that date, and

$344,300.00 in prejudgment interest. The court then

directed the entry of judgment on Teck’s liability for

these response costs under Federal Rule of Civil

Procedure 54(b).

Teck now appeals from the district court’s

summary judgment order and partial judgment on

the first two phases of trial.

II

We first consider whether we have jurisdiction to

entertain this appeal.

A

Teck contends, as an initial matter, that Rule 54(b)

did not authorize the district court to certify this

appeal by entering partial final judgment.

Rule 54(b) allows a district court in appropriate

circumstances to enter judgment on one or more

claims while others remain unadjudicated.7 To do so,

the district court first must render “an ultimate

disposition of an individual claim.” Curtiss-Wright

Corp. v. Gen. Elec. Co., 446 U.S. 1, 7, 100 S.Ct. 1460,

appeal. Pakootas v. Teck Cominco Metals, Ltd., 830 F.3d

975, 986 (9th Cir. 2016) (Pakootas III).

7

In relevant part, the Rule provides: “When an action

presents more than one claim for relief ..., the court may

direct entry of a final judgment as to one or more, but fewer

than all, claims ... only if the court expressly determines that

there is no just reason for delay.” Fed. R. Civ. P. 54(b).

9a

64 L.Ed.2d 1 (1980) (quoting Sears, Roebuck & Co. v.

Mackey, 351 U.S. 427, 436, 76 S.Ct. 895, 100 L.Ed.

1297 (1956)). The court then must find that there is

no just reason for delaying judgment on this claim.

Id. at 8, 100 S.Ct. 1460.

According to Teck, the district court had to await

the conclusion of this entire multi-decade litigation

before entering judgment on the Tribes’ response

costs claim. Teck reasons that the Tribes actually

raise a single CERCLA claim—for arranger

liability—with multiple remedies:

recovery of

response costs and natural resource damages.

What constitutes an individual “claim” is not well

defined in our law.

The Supreme Court has

expressly declined to “attempt any definitive

resolution of the meaning of” the term, Liberty Mut.

Ins. Co. v. Wetzel, 424 U.S. 737, 743 n.4, 96 S.Ct.

1202, 47 L.Ed.2d 435 (1976), and its “judicial crumbs

have failed to lead the circuit courts to a consensus

as to the handling of this confusing area of law,”

Eldredge v. Martin Marietta Corp., 207 F.3d 737, 741

(5th Cir. 2000). In this circuit, we have often tried to

avoid this jurisprudential quagmire by employing a

“pragmatic approach.”

Cont’l Airlines, Inc. v.

Goodyear Tire & Rubber Co., 819 F.2d 1519, 1525

(9th Cir. 1987); cf. 15A Charles Alan Wright, Arthur

R. Miller & Edward H. Cooper, Federal Practice and

Procedure:

Jurisdiction § 3914.7 (2d ed. 2018)

(“[T]he policies underlying Rule 54(b) are not well

served, and certainly are not well explained, by

reliance on efforts to define a claim.”).

At the doctrine’s outer edges, however, our cases

have given some guidance. Rule 54(b)’s use of the

word “claim” at minimum refers to “a set of facts

10a

giving rise to legal rights in the claimant.” CMAX,

Inc. v. Drewry Photocolor Corp., 295 F.2d 695, 697

(9th Cir. 1961). Multiple claims can thus exist if a

case joins multiple sets of facts. See, e.g., Purdy

Mobile Homes, Inc. v. Champion Home Builders Co.,

594 F.2d 1313, 1316 (9th Cir. 1979). Conversely,

only one claim is presented when “a single set of

facts giv[es] rise to a legal right of recovery under

several different remedies.” Ariz. State Carpenters

Pension Tr. Fund v. Miller, 938 F.2d 1038, 1040 (9th

Cir. 1991).

In Arizona State Carpenters Pension Trust Fund,

for example, we identified a single claim under

Rule 54(b) because a single set of facts gave rise to

both a count for punitive damages and a count for

compensatory damages. Id. The plaintiff’s count for

punitive damages required all the same facts as its

count for compensatory damages, plus additional

proof of an aggravating factor. Id. Because the

showing required for punitive damages completely

encompassed that required for compensatory

damages, we considered these counts to be an

indivisible claim for Rule 54(b)’s purposes. See id.

We thus forbade the immediate appeal of a ruling

dismissing only the punitive damages claim, which

necessarily would have become moot if the lesserincluded count for compensatory damages later

failed as well. See id.

Nevertheless, a challenger “cannot successfully

attack the court’s finding of multiple claims merely

by showing that some facts are common to all of its

theories of recovery.” Purdy Mobile Homes, 594 F.2d

at 1316 (internal quotation marks omitted). Claims

with partially “overlapping facts” are not “foreclosed

11a

from being separate for purposes of Rule 54(b).”

Wood v. GCC Bend, LLC, 422 F.3d 873, 881 (9th Cir.

2005). Instead, a district court can enter final

judgment on a claim even if it is not “separate from

and independent of the remaining claims.” Texaco,

Inc. v. Ponsoldt, 939 F.2d 794, 797 (9th Cir. 1991)

(quoting Sheehan v. Atlanta Int’l Ins. Co., 812 F.2d

465, 468 (9th Cir. 1987)). And such a judgment is

permissible even if the claim “arises out of the same

transaction and occurrence as pending claims.” Cold

Metal Process Co. v. United Eng’g & Foundry Co.,

351 U.S. 445, 452, 76 S.Ct. 904, 100 L.Ed. 1311

(1956).

Here, the Colville Tribes’ counts for response costs

and for natural resource damages present multiple

claims because each requires a factual showing not

required by the other. See Purdy Mobile Homes,

594 F.2d at 1316; cf. also Blockburger v. United

States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306

(1932) (holding that for the purposes of the Double

Jeopardy Clause, “the test to be applied to determine

whether there are two offenses or only one, is

whether each provision requires proof of a fact which

the other does not”).8 Both response cost and natural

resource damages claims require proof that (1) the

defendant falls within one of the four classes of PRPs

listed in section 107(a), 42 U.S.C. § 9607(a); (2) the

8

See also Samaad v. City of Dallas, 940 F.2d 925, 931 n.10

(5th Cir. 1991) (noting that our approach in Purdy Mobile

Homes “bears a striking similarity to that employed in the

double jeopardy context” under Blockburger), abrogated on

other grounds by Stop the Beach Renourishment, Inc. v. Fla.

Dep’t of Envtl. Prot., 560 U.S. 702, 728, 130 S.Ct. 2592,

177 L.Ed.2d 184 (2010).

12a

site on which hazardous substances are found is a

“facility” within the meaning of section 101(9), id.

§ 9601(9); and (3) a “release” or “threatened release”

of a hazardous substance from the facility has

occurred. See id. § 9607(a); Pakootas III, 830 F.3d at

981. But a government’s claim for response costs

must also show that (4) the government has incurred

costs responding to the release or threatened release;

and (5) those costs are “not inconsistent with the

national contingency plan,” which is assumed to be

the case absent a defendant’s proof to the contrary.

42 U.S.C. § 9607(a)(4), (4)(A). By contrast, a claim

for natural resource damages instead must show

that (4) natural resources under the plaintiff’s

trusteeship have been injured and (5) the injury to

natural resources “result[ed] from” the release or

threatened release of the hazardous substance.

42 U.S.C. § 9607(a)(4)(C); Pakootas III, 830 F.3d at

981 n.4. The text of CERCLA elsewhere suggests the

conclusion that these two claims are distinct,

describing them as separate “[a]ctions for recovery of

costs” and “[a]ctions for natural resource damages,”

and imposing different limitations periods in which

those actions may be brought.

42 U.S.C.

§ 9613(g)(1)-(2).

In situations like this, where a suit involves

multiple claims, we leave it to the district court, as

“dispatcher,” Curtiss-Wright, 446 U.S. at 8, 100 S.Ct.

1460 (quoting Sears, Roebuck & Co., 351 U.S. at 435,

76 S.Ct. 895), to evaluate the “interrelationship of

the claims” and determine in the first instance

“whether the claims under review [are] separable

from the others remaining to be adjudicated.” Id. at

8, 10, 100 S.Ct. 1460. In doing so, “a district court

13a

must take into account judicial administrative

interests as well as the equities involved.” Id. at 8,

100 S.Ct. 1460. We review the district court’s

decision to enter final judgment under Rule 54(b) for

abuse of discretion. See id.

Although no party disputes the district court’s

exercise of discretion in this case, we must review it

to satisfy ourselves that we have subject matter

jurisdiction to hear this appeal.

See Sheehan,

812 F.2d at 468. Having done so, we conclude that

there was no abuse of discretion. This is a complex

case that has been ongoing for fourteen years, and

the entry of partial judgment against Teck would

help ensure that a responsible party promptly pays

for the contamination of the Upper Columbia River,

advancing CERCLA’s goals and easing the Tribes’

burden of financing the litigation effort. See Wood,

422 F.3d at 882. We hold that the district court’s

Rule 54(b) certification here was appropriate.

B

Teck also raises two challenges to the district

court’s exercise of personal jurisdiction over the

company. First, Teck argues that the district court

should not have applied the so-called “effects” test of

Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482,

79 L.Ed.2d 804 (1984). In the alternative, Teck

argues that the Calder test was not satisfied because

the Trail smelter’s discharges into the Columbia

River were not expressly aimed at Washington.

We assess specific personal jurisdiction using a

three-prong test. See Yahoo! Inc. v. La Ligue Contre

Le Racisme Et L’Antisemitisme, 433 F.3d 1199,

1205-06 (9th Cir. 2006) (en banc). Under the first

prong, the Colville Tribes must show either that

14a

Teck purposefully availed itself of the privilege of

conducting activities in Washington, or that it

purposefully

directed

its

activities

toward

Washington. See Schwarzenegger v. Fred Martin

Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). A

“purposeful availment” analysis is used for cases

sounding in contract. Id. By contrast, a “purposeful

direction” analysis under Calder “is most often used

in suits sounding in tort.” Id. at 802-03.

The Calder test plainly applies here. Claims for

recovery of response costs and natural resource

damages are “more akin to a tort claim than a

contract claim.” Ziegler v. Indian River Cty., 64 F.3d

470, 474 (9th Cir. 1995); see also E.I. Du Pont de

Nemours & Co. v. United States, 365 F.3d 1367, 1373

(Fed. Cir. 2004) (“CERCLA evolved from the doctrine

of common law nuisance.”).

Besides, CERCLA

liability for toxic pollution is much closer to the

traditional domain of common law torts than several

of the other areas in which we have applied Calder’s

effects test.

See, e.g., Brayton Purcell LLP v.

Recordon & Recordon, 606 F.3d 1124, 1128 (9th Cir.

2010) (copyright infringement); Yahoo! Inc., 433 F.3d

at 1206 (foreign court order enforcement);

Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316,

1321 (9th Cir. 1998) (trademark dilution).

We

construe

Calder

as

imposing

three

requirements: “the defendant allegedly must have

(1) committed an intentional act, (2) expressly aimed

at the forum state, (3) causing harm that the

defendant knows is likely to be suffered in the forum

state.”

Yahoo!, 433 F.3d at 1206 (alteration in

original) (quoting Schwarzenegger, 374 F.3d at 803).

15a

Teck argues only that its waste disposal activities

were not “expressly aimed” at Washington. Express

aiming is an ill-defined concept that we have taken

to mean “something more” than “a foreign act with

foreseeable effects in the forum state.” Bancroft &

Masters, Inc. v. Augusta Nat. Inc., 223 F.3d 1082,

1087 (9th Cir. 2000).

Calder illustrates this point. In that case, a

California actress sued two National Enquirer

employees for an allegedly defamatory article

published in the magazine. The article had been

written and edited in Florida but the magazine was

distributed nationally, with its largest market in

California. The Supreme Court upheld the exercise

of personal jurisdiction in California because the

allegations of libel did not concern “mere untargeted

negligence” with foreseeable effects there; rather, the

defendants’ “intentional, and allegedly tortious,

actions were expressly aimed” at the state. 465 U.S.

at 789, 104 S.Ct. 1482.

Those actions simply

involved writing and editing an article about a

person in California, an article that the defendants

knew would be circulated and cause reputational

injury in that forum. Id. at 789-90, 104 S.Ct. 1482.

Under those circumstances, the defendants should

“reasonably anticipate being haled into court there”

to answer for their tortious behavior. Id. at 790,

104 S.Ct. 1482 (quoting World-Wide Volkswagen

Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559,

62 L.Ed.2d 490 (1980)). That was true even though

the defendants were not personally responsible for

the circulation of their article in California. Id. at

789-90, 104 S.Ct. 1482.

16a

We have no difficulty concluding that Teck

expressly aimed its waste at the State of

Washington.

The district court found ample

evidence that Teck’s leadership knew the Columbia

River carried waste away from the smelter, and that

much of this waste travelled downstream into

Washington, yet Teck continued to discharge

hundreds of tons of waste into the river every day. It

is inconceivable that Teck did not know that its

waste was aimed at the State of Washington when

Teck deposited it into the powerful Columbia River

just miles upstream of the border. As early as the

1930s, Teck knew that its slag had been found on the

beaches of the Columbia River south of the United

States border.

By the 1980s, Teck’s internal

documents recognized that its waste was having

negative effects on Washington’s aquatic ecosystem.

And by the early 1990s, Teck’s management

acknowledged that the company was “in effect

dumping waste into another country,” using the

Upper Columbia River as a “free” and “convenient

disposal facility.” But still Teck, over and over again,

on a daily basis for decades, dumped its waste into

the river until it modernized its furnace in the mid1990s.

It is no defense that Teck’s wastewater outfalls

were aimed only at the Columbia River, which in

turn was aimed at Washington. Rivers are nature’s

conveyor belts. Teck simply made use of the river’s

natural transport system throughout the 1900s,

much like lumberjacks of that period who would roll

timber into a stream to start a log drive. Without

this transport system, Teck would have soon been

inundated by the massive quantities of waste it

17a

produced—which, it bears repeating, averaged some

400 tons per day.

Teck’s connection with

Washington was not “random,” “fortuitous,” or

“attenuated,” Burger King Corp. v. Rudzewicz,

471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528

(1985) (internal quotation marks omitted), nor would

the maintenance of this suit offend “traditional

conception[s] of fair play and substantial justice,” id.

at 464, 105 S.Ct. 2174 (alteration in original)

(quoting Int’l Shoe Co. v. Washington, 326 U.S. 310,

320, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). To the

contrary, there would be no fair play and no

substantial justice if Teck could avoid suit in the

place where it deliberately sent its toxic waste. We

hold that personal jurisdiction over Teck exists in

Washington.

III

Satisfied that we have jurisdiction, we now turn to

Teck’s argument that CERCLA does not allow the

Colville Tribes to recover their costs of establishing

Teck’s liability. The district court awarded the

Tribes more than $8.25 million in costs incurred

through December 31, 2013, consisting of about

$3.39 million in investigation expenses plus $4.86

million in attorney’s fees and costs. The court

deemed the Tribes’ investigation to be recoverable as

part of a “removal” action, and characterized their

attorney’s efforts as “enforcement activities.” We

consider each part of the district court’s award below,

reviewing its findings of fact for clear error and its

conclusions of law de novo. Kirola v. City & Cty. of

San Francisco, 860 F.3d 1164, 1174 (9th Cir. 2017).

18a

A

We first review the district court’s award of the

Colville Tribes’ investigation costs.

1

Section 107(a)(4)(A) of CERCLA provides that a

PRP is liable for “all costs of removal or remedial

action incurred by the United States Government or

a State or an Indian tribe not inconsistent with the

national

contingency

plan.”

42 U.S.C.

§ 9607(a)(4)(A). At its core, a “removal” action is

defined as “the cleanup or removal” of hazardous

substances from the environment.9 Id. § 9601(23).

No less important, however, are several associated

activities described by the statutory definition. 10

This case concerns two defined categories of related

activities: such efforts “as may be necessary to

9

To clarify our terminology, we note that “Congress

intended that there generally will be only one removal

action,” of which different activities are just a part. Kelley v.

E.I. DuPont de Nemours & Co., 17 F.3d 836, 843 (6th Cir.

1994); see also Brian Block, Remediating CERCLA’s Polluted

Statute of Limitations, 13 Rutgers J.L. & Pub. Pol’y 388, 400

(2016) (collecting cases).

10

Section 101(23) defines “removal” as “[1] the cleanup or

removal of released hazardous substances from the

environment, [2] such actions as may be necessary taken in

the event of the threat of release of hazardous substances

into the environment, [3] such actions as may be necessary

to monitor, assess, and evaluate the release or threat of

release of hazardous substances, [4] the disposal of removed

material, or [5] the taking of such other actions as may be

necessary to prevent, minimize, or mitigate damage to the

public health or welfare or to the environment, which may

otherwise result from a release or threat of release.”

42 U.S.C. § 9601(23).

19a

monitor, assess, and evaluate the release or threat of

release of hazardous substances,” and “as may be

necessary to prevent, minimize, or mitigate damage

to the public health or welfare or to the

environment.” Id.

Cleanup-adjacent activities face a low bar to

satisfying these definitions of “removal.” See United

States v. W.R. Grace & Co., 429 F.3d 1224, 1238 (9th

Cir. 2005) (“The definition of ‘removal’ is written in

sweeping terms.”).

Section 101(23) covers all

activities “as may be necessary” to advance certain

threat assessment or abatement goals.

This

permissive language means qualifying activities

need not be performed with the intent of achieving

the statutory goals; need not be absolutely necessary

to achieve those goals; and need not actually achieve

those goals. Rather, taking a cue from the D.C.

Circuit’s construction of “as may be necessary” in the

Communications Act of 1934, we hold that the

definitions of “removal” reach all acts that “are not

an unreasonable means” of furthering section

101(23)’s enumerated ends. Cellco P’ship v. FCC,

357 F.3d 88, 91 (D.C. Cir. 2004) (quoting FCC v.

Nat’l Citizens Comm. for Broad., 436 U.S. 775, 796,

98 S.Ct. 2096, 56 L.Ed.2d 697 (1978)).

2

The district court concluded that the investigations

by the Tribes’ expert consultants qualify as

recoverable costs of removal. To begin with, the

Tribes

hired

an

environmental

consultant,

Environment International, to plan and implement a

study of the Upper Columbia River Site. This

consultant collected multiple sediment and pore

water samples and sent those samples to

20a

independent labs for testing. An environmental

engineering firm, LimnoTech, then compiled the

resulting data into a comprehensive database and

analyzed the data. The Tribes also employed several

subject-matter experts, such as a geochemist and a

metallurgist, to review the data. Finally, the Tribes

retained a hydrology firm, Northwest Hydraulic

Consultants, to sample and analyze upstream

sediment cores from the Canadian reach of the

Columbia River.

We agree with the district court that the Tribes’

data collection and analysis efforts were not an

unreasonable means of furthering at least three

distinct purposes embraced by CERCLA.

First, the expert consultants investigated the

presence and movement of toxic wastes at the Site.

We have held that section 101(23) encompasses such

studies into the location and migration of materials

containing hazardous substances. See Wickland Oil

Terminals v. Asarco, Inc., 792 F.2d 887, 889, 892 (9th

Cir. 1986) (allowing cost recovery for “testing ... of

the migration of slag particles” as an action that

“may be necessary to monitor, assess, and evaluate

the release or threat of release of hazardous

substances”).

Second, the Tribes’ experts tested whether the slag

and effluent-contaminated sediment found at the

Site leach contaminants into the environment.

Section 101(23) on its face covers “asses[ing] ... [the]

threat of release of hazardous substances.” 42 U.S.C.

§ 9601(23); see also Wickland, 792 F.2d at 889, 892

(allowing cost recovery for “conduct[ing] tests to

evaluate the hazard posed by the slag”); Cadillac

21a

Fairview/California, Inc. v. Dow Chem. Co.,

840 F.2d 691, 692-93, 695 (9th Cir. 1988) (same).

And third, the experts traced the origins of the slag

and sediment metals found at the Site. Teck has

maintained before and throughout this litigation

that many other sources, including other smelters,

are to blame for the Upper Columbia River’s

pollution.

The Tribes commissioned a study

investigating this claim, but the results show that

the wastes match the Trail smelter’s isotopic and

geochemical “fingerprint.”

Efforts to identify the parties responsible for the

disposal of toxic wastes at a site are likewise

recoverable costs of removal. In Key Tronic Corp. v.

United States, 511 U.S. 809, 114 S.Ct. 1960,

128 L.Ed.2d 797 (1994), the Supreme Court

considered whether a PRP could recover fees for

work performed by an attorney in searching for other

parties that had used a site for hazardous waste

disposal. Id. at 820, 114 S.Ct. 1960. The Court held

that “[t]hese kinds of activities are recoverable costs

of response clearly‘ distinguishable from litigation

expenses.” Id. Indeed, searches for pollution sources

are often conducted by non-lawyers, such as

“engineers, chemists, private investigators, or other

professionals”—much like the Tribes’ experts here.

Id.

Key Tronic appears to have rested its holding on

yet another statutory definition, section 101(25). See

id. at 813, 816-20, 114 S.Ct. 1960. That provision

defines removal and remedial actions collectively as

“response” actions, and then defines all “response”

actions to “include enforcement activities related

thereto.” 42 U.S.C. § 9601(25). The Court in Key

22a

Tronic noted that the search in that case had

prompted EPA to initiate an administrative

enforcement action against another party that had

been identified as disposing of wastes at the site. Id.

at 820, 114 S.Ct. 1960. The Court also found it

significant that “[t]racking down other responsible

solvent polluters increases the probability that a

cleanup will be effective and get paid for.” Id.

Although Key Tronic did not discuss section 101(23)’s

definition of “removal,” the benefit of making an

effective cleanup more likely also falls within the

scope of actions identified by the district court that

“may be necessary to prevent, minimize, or mitigate

damage to the public health or welfare or to the

environment.” Similarly, uncovering evidence that a

party is responsible for hazardous waste puts

pressure on that party voluntarily to clean up its

pollution, which would also advance the goals of that

provision. Cf. E.I. DuPont de Nemours & Co. v.

United States, 508 F.3d 126, 135 (3d Cir. 2007)

(“Voluntary cleanups are vital to fulfilling CERCLA’s

purpose.”). And under both provisions, CERCLA’s

broad remedial purpose “supports a liberal

interpretation of recoverable costs” to ensure that

polluters pay for the messes they create—including

the difficulties of identifying them in the first place.

United States v. R.W. Meyer, Inc., 889 F.2d 1497,

1503 (6th Cir. 1989) (quoting United States v.

Northernaire Plating Co., 685 F.Supp. 1410, 1419

(W.D. Mich. 1988)).

3

Teck opposes the district court’s conclusion,

arguing that the Tribes’ studies implicitly fall out of

the statutory definitions of “removal” because they

23a

are all “litigation-related.” To be sure, the studies

were commissioned after the Tribes joined this

litigation; they were undertaken to help prove Teck’s

liability; and many of them were presented to the

district court in Phase I of trial.

Teck’s argument relies on a pair of decisions from

the Third Circuit. In Redland Soccer Club, Inc. v.

Dep’t of Army of U.S., 55 F.3d 827 (3d Cir. 1995), the

court held that when evaluating the “necessary”

costs of response under section 107(a)(4)(B), it looks

to “[t]he heart of the[ ] definitions of removal and

remedy” and considers whether the costs are

“necessary to the containment and cleanup of

hazardous releases.” Id. at 850 (quoting United

States v. Hardage, 982 F.2d 1436, 1448 (10th Cir.

1992)). The court then applied this rule in Black

Horse Lane Assoc., L.P. v. Dow Chemical Corp.,

228 F.3d 275 (3d Cir. 2000), where it held that

“private parties may not recoup litigation-related

expenses in an action to recover response costs

pursuant to section 107(a)(4)(B).” Id. at 294. As

Teck points out, the court noted that the work at

issue did not “play[ ] any role in the containment and

cleanup of the Property,” which meant it was not

“necessary.” Id. at 297.

We conclude that those out-of-circuit cases are not

persuasive here. The Colville Tribes bring their cost

recovery action as a sovereign under section

107(a)(4)(A), so they are entitled to “all costs” rather

than merely the “necessary” costs of response.

Compare 42 U.S.C. § 9607(a)(4)(A), with id.

24a

§ 9607(a)(4)(B). 11 And even if the latter standard

were applicable, we have never interpreted the term

“necessary” as requiring a nexus solely between

recoverable costs and on-site cleanup activities. See

Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d

863, 871 (9th Cir. 2001) (en banc) (holding that a

response action is necessary if it responds to “an

actual and real threat to human health or the

environment”). We instead read CERCLA’s cost

recovery provisions as making no distinction between

cleanup and investigatory costs. Wickland, 792 F.2d

at 892. Neither case cited by Teck speaks to the

issue presented—whether an activity that would

otherwise qualify as removal is disqualified by virtue

of having a connection to litigation. See Black Horse

Lane, 228 F.3d at 298 & n.13 (concluding that “the

removal definition ... exclud[es] the sort of ‘oversight’

costs” sought by plaintiff); Redland Soccer Club,

55 F.3d at 850 (concluding that plaintiffs’ health risk

assessment costs are not “ ‘response costs’ under any

of the[ ] definitions” of “removal” and “remedial”).

Seeing no supportive authorities on point, we

decline to adopt Teck’s reading of “removal” as

implicitly excluding activities that have a connection

to litigation. By its terms, the statute gives no

11

For this reason, we need not decide whether the Tribes’

cost of fingerprinting wastes at the Site was “necessary” in

light of the study yielding a “duplicative identification” of

Teck as a polluter. Syms v. Olin Corp., 408 F.3d 95, 104 (2d

Cir. 2005). But in any case, we cannot fault the Tribes for

paying to learn that Teck disposed of these wastes when

Teck disputed that the wastes could be traced back to the

company rather than to a number of other potential

pollution sources.

25a

weight to the timing, purpose, or ultimate use of

covered activities. See 42 U.S.C. § 9601(23), (25). A

plaintiff’s ongoing response action may complicate

recovery, but those costs remain recoverable at trial.

See Johnson v. James Langley Operating Co.,

226 F.3d 957, 963 (8th Cir. 2000) (“[P]laintiffs’

response costs in this case are not transformed into

litigation costs merely by their timing with respect to

their initiation of this action.”); Matter of Bell

Petroleum Servs., Inc., 3 F.3d 889, 908 (5th Cir.

1993) (“With respect to costs, if any, incurred after

the complaint was filed, prejudgment interest should

be assessed on those costs from the date of the

expenditures.”). Further, a plaintiff’s intent to use

the fruits of an investigation in litigation does not

excise that activity from the statutory definitions of

removal. See Johnson, 226 F.3d at 963 (“[T]he

motives of the ... party attempting to recoup response

costs ... are irrelevant.” (quoting Gen. Elec. Co. v.

Litton Indus. Automation Sys., Inc, 920 F.2d 1415,

1418 (8th Cir. 1990), abrogated on other grounds by

Key Tronic Corp., 511 U.S. 809, 114 S.Ct. 1960); cf.

Carson Harbor, 270 F.3d at 872 (holding that selfserving “ulterior motive[s]” should be disregarded

when determining whether response costs are

necessary because “[t]o hold otherwise would result

in a disincentive for cleanup”). Many, if not most,

CERCLA plaintiffs study the contamination at a site

with an eye to potential litigation, and it would make

little sense to provide these costs only to parties that

are disinclined to file suit. Finally, recoverable

investigation costs do not transform into

unrecoverable costs if the information obtained is

later used to help prove a PRP’s liability. See Vill. of

Milford v. K-H Holding Corp., 390 F.3d 926, 935-36

26a

(6th Cir. 2004) (holding that the plaintiff could

recover from the defendant the costs of identifying it

as a PRP). Indeed, we would turn Key Tronic’s

reasoning on its head if we read that opinion as

making a defendant liable for all PRP search costs

except the cost of identifying that defendant once

that evidence is used in the plaintiff’s case in chief.

See 511 U.S. at 820, 114 S.Ct. 1960 (lauding the

plaintiff’s investigation for “uncovering

the

[defendant’s] disposal of wastes at the site”).

We instead determine whether an activity amounts

to “removal” by comparing the actions taken to the

categories defined by statute. See, e.g., W.R. Grace &

Co., 429 F.3d at 1246-47; Hanford Downwinders

Coal., Inc. v. Dowdle, 71 F.3d 1469, 1477-79 (9th Cir.

1995); Durfey v. E.I. DuPont De Nemours & Co.,

59 F.3d 121, 124-26 (9th Cir. 1995). The statutory

language—not extra-textual factors—is controlling.

We conclude that the district court properly

awarded the Colville Tribes all investigation

expenses as costs of removal, even though many of

these activities played double duty supporting both

cleanup and litigation efforts.12

12

We need not decide whether the Tribe’s removal costs

are “inconsistent with the national contingency plan”

because Teck forfeited this argument by not raising it on

appeal. 42 U.S.C. § 9607(a)(4)(A). Also, we decline to

consider Teck’s assertion that the district court “went

beyond the evidence” in calculating the amount of the Tribes’

removal costs because Teck neither raised this issue in its

opening brief, see United States v. Kelly, 874 F.3d 1037, 1051

n.9 (9th Cir. 2017), nor provided a sufficient record on which

to review this claim, see Fed. R. App. P. 10(b)(2); In re

O’Brien, 312 F.3d 1135, 1137 (9th Cir. 2002).

27a

B

We next consider the district court’s award of the

Colville Tribes’ attorney’s fees.

1

Shortly after CERCLA was enacted, several district

courts interpreted section 107(a)(4)(A) to mean that

the United States could recover its attorney’s fees for

successfully bringing a response costs action. See,

e.g., United States v. Ne. Pharm. & Chem. Co.

(NEPACCO), 579 F.Supp. 823, 851 (W.D. Mo. 1984),

aff’d in part and rev’d in part on other grounds,

810 F.2d 726 (8th Cir. 1986); United States v.

Conservation Chem. Co., 619 F.Supp. 162, 186 (W.D.

Mo. 1985); United States v. S.C. Recycling &

Disposal, Inc. (SCRDI), 653 F.Supp. 984, 1009

(D.S.C. 1984), aff’d in part and vacated in part on

other grounds sub nom. United States v. Monsanto

Co., 858 F.2d 160 (4th Cir. 1988).

In early 1985, Congress began considering

legislation that would become the Superfund

Amendments and Reauthorization Act (“SARA”).

During Congress’s deliberations, EPA submitted

information to the hearing record accounting for the

costs of its “enforcement activities,” a term the

agency defined as including “litigation costs,”

“identification of responsible parties” through

“records review” and “field investigations,” and

several other line items.

Reauthorization of

Superfund: Hearings Before the Subcomm. on Water

Res. of the H. Comm. on Pub. Works and Transp.,

99th Cong. 666-67 (1985) (statement of Lee M.

Thomas, Administrator, Envtl. Protection Agency).

At the time, some of those cases providing the

28a

government its attorney’s fees were still pending on

appeal. See Monsanto, 858 F.2d 160 (4th Cir. 1988);

NEPACCO, 810 F.2d 726 (8th Cir. 1986).

To ensure that these types of expenses could be

recovered, Congress amended section 101(25)’s

definition of “response” to add the following clause:

“all such terms (including the terms ‘removal’ and

‘remedial action’) include enforcement activities

related thereto.” Pub. L. No. 99-499, § 101, 100 Stat.

1613, 1615 (1986) (codified at 42 U.S.C. § 9601(25)).

SARA’s Conference Committee Report summarizes

the amendment as “clarif[ying] and confirm[ing] that

such costs are recoverable from responsible parties,

as removal or remedial costs under section 107.”

H.R. Conf. Rep. 99-962, at 185 (1986), reprinted in

1986 U.S.C.C.A.N. 3276, 3278.

The Supreme Court in Key Tronic considered

whether, in light of SARA’s “enforcement activities”

amendment, “attorney’s fees are ‘necessary costs of

response’ within the meaning of § 107(a)(4)(B).”

511 U.S. at 811, 114 S.Ct. 1960. Specifically, the

case concerned whether “a private action under § 107

is one of the enforcement activities covered by that

definition [such] that fees should therefore be

available in private litigation as well as in

government actions.” Id. at 818, 114 S.Ct. 1960. The

Court answered this question in the negative. Id. at

818-19, 114 S.Ct. 1960. Given the subject of the

appeal, however, the Court offered “no comment” on

whether a government could recover its attorney’s

fees in a “government enforcement action” under

section 107(a)(4)(A). Id. at 817, 819, 114 S.Ct. 1960.

Dissenting in part, Justice Scalia, joined by Justices

Blackmun and Thomas, urged that the phrase

29a

“enforcement activities” is best understood “to cover

the attorney’s fees incurred by both the government

and private plaintiffs successfully seeking cost

recovery” under either subparagraph. Id. at 824,

114 S.Ct. 1960 (Scalia, J., dissenting).

We confronted the question whether section

107(a)(4)(A) allows the federal government to recover

its attorney’s fees in United States v. Chapman,

146 F.3d 1166 (9th Cir. 1998). There we held that

CERCLA sufficiently “evinces an intent” to provide

the government its reasonable attorney’s fees. Id. at

1175-76 (quoting Key Tronic, 511 U.S. at 815,

114 S.Ct.

1960).

We

reasoned

that

section 107(a)(4)(A)’s use of the term “all costs” gives

the government “very broad cost recovery rights”

standing alone. Id. at 1174 (quoting NEPACCO,

579 F.Supp. at 850).

And we concluded that

Congress need not “incant the magic phrase

‘attorney’s fees’ ” where it has “explicitly authorized

the recovery of costs of ‘enforcement activities,’ ” id.

at 1175 (quoting Key Tronic, 511 U.S. at 823,

114 S.Ct. 1960 (Scalia, J., dissenting)), because

“enforcement activities naturally include attorney

fees,” id. (quoting and citing Key Tronic, 511 U.S. at

823, 114 S.Ct. 1960 (Scalia, J., dissenting)). We also

noted that CERCLA generally must be construed

liberally to accomplish its dual goals of promptly

cleaning up hazardous waste sites and making

polluters, rather than society as a whole, pay. See id.

Awarding the government its attorney’s fees furthers

these goals by encouraging responsible parties

proactively

to

clean

up

pollution,

accept

responsibility for cleanup costs, and stop running up

the government’s expenses. Id. at 1175-76.

30a

We have since observed that Chapman’s holding

applies equally to all of the governmental entities

listed in section 107(a)(4)(A). See Fireman’s Fund

Ins. Co. v. City of Lodi, 302 F.3d 928, 953 (9th Cir.

2002).

By its terms, that provision makes no

distinction between “the United States Government

or a State or an Indian tribe.”

42 U.S.C.

§ 9607(a)(4)(A). Each of these sovereigns is entitled

to “all costs” of a response action, including related

“enforcement activities.” See Reardon v. United

States, 947 F.2d 1509, 1514 (1st Cir. 1991) (en banc)

(“We cannot give the definition [in section 101(25) ]

inconsistent readings within the statute.”). It follows

that section 107(a)(4)(A) “permits the United States

Government or a State or an Indian tribe to recover

all ‘reasonable attorney fees’ ‘attributable to the

litigation as a part of its response costs’ if it is the

‘prevailing party.’ ” Fireman’s Fund, 302 F.3d at 953

(quoting Chapman, 146 F.3d at 1175-76).

2

Teck contends that Chapman does not apply here

because its holding is tied to the specific facts of that

case. In Chapman, EPA ordered the defendant to

remove hazardous substances from the site, and

when the defendant failed to comply, EPA itself

initiated a response action. 146 F.3d at 1168-69.

EPA then requested repayment for its response

costs, and only after the defendant refused to pay did

the United States bring a response costs action. Id.

at 1169. Teck maintains that the Tribes’ response

costs action is distinguishable because it is “not

premised on a refused order or a refusal to fund

response costs.”

31a

We disagree. Neither background fact identified by

Teck was material to the outcome in Chapman. See

id. at 1173-76. Litigation may not be necessary if a

defendant is cooperative, but CERCLA does not limit

a government’s recovery of attorney’s fees just to

those response costs actions that are absolutely

unavoidable. And we follow the other circuits that

have considered this issue, which have held that a

government’s response costs action amounts to an

“enforcement activit[y]” without so much as

mentioning a requirement that there first be a

disobeyed cleanup order or an unsuccessful

repayment negotiation. See United States v. Dico,

Inc., 266 F.3d 864, 878 (8th Cir. 2001); B.F. Goodrich

v. Betkoski, 99 F.3d 505, 528, 530 (2d Cir. 1996),

overruled on other grounds by United States v.

Bestfoods, 524 U.S. 51, 118 S.Ct. 1876, 141 L.Ed.2d

43 (1998); see also Reardon, 947 F.2d at 1514 (“[I]f

‘enforcement activities’ in § 9601(25) is interpreted to

exclude the expenses of cost recovery actions, this

would have the effect of denying the government

significant amounts of attorney’s fees—which was

certainly not the intent of Congress.”).

Because this case is squarely governed by

Chapman, we conclude that the Colville Tribes are

entitled to collect their reasonable attorney’s fees for

prevailing in their response costs action against

Teck. See 146 F.3d at 1176; see also Fireman’s Fund,

302 F.3d at 953.

3

Teck also tries to evade the significance of

Chapman by raising several novel challenges to the

district court’s award of attorney’s fees.

32a

First, Teck asserts that the Tribes do not have the

requisite “enforcement authority” to recover the costs

of any enforcement activities connected with the

Upper Columbia River Site. Teck reasons that the

Tribes lack the response authority bestowed on the

federal government by section 104, 42 U.S.C. § 9604,

which Teck claims that EPA can—but here did not—

“delegate” to a state, political subdivision, or Indian

tribe under section 104(d)(1)(A), id. § 9604(d)(1)(A).

But this provision is irrelevant. Section 104(d)(1)(A)

does not address delegation at all; it simply

“authorizes EPA to enter into cooperative

agreements or contracts with a state, political

subdivision, or a federally recognized Indian tribe to

carry out [Superfund]-financed response actions.”

40 C.F.R. § 300.515(a)(1). EPA’s regulations explain

that the agency “use[s] a cooperative agreement to

transfer funds”—not federal authority—“to those

entities to undertake Fund-financed response

activities.” Id. And in any event, the enforcement

authority at issue is whether the Tribes can bring a

lawsuit to recover their response costs. As Teck

conceded at oral argument, the Tribes “clearly can

bring a claim for recovery of response costs” under

section 107(a)(4)(A), so they have all the authority

needed to “enforce [this] liability provision.”

Reardon, 947 F.2d at 1512-13; see also Washington

State Dep’t of Transp. v. Washington Nat. Gas Co.,

Pacificorp, 59 F.3d 793, 801 (9th Cir. 1995) (“States

[and tribes] need not obtain EPA authorization to

clean up hazardous waste sites and recover costs

from potentially responsible parties.”).

Teck next contends that the Tribes cannot recover

their attorney’s fees because this case is not “related

33a

to” any response action at the Site, as required by

section 101(25). In another statutory context, the

Supreme Court has explained that the “ordinary

meaning of [the] words ‘related to’ is a broad one,”

meaning “having a connection with or reference to,”

though that breadth “does not mean the sky is the

limit.” Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S.

251, 260, 133 S.Ct. 1769, 185 L.Ed.2d 909 (2013)

(alterations omitted) (quoting Rowe v. New

Hampshire Motor Transp. Ass’n, 552 U.S. 364, 370,

128 S.Ct. 989, 169 L.Ed.2d 933 (2008)). Adopting

that standard here, we conclude that an enforcement

activity falls outside of section 101(25) only if it has

an inadequate connection with an existing or

potential response action at a given site. Although

some enforcement activities can be conducted only

after a response action has begun, some can be

conducted beforehand. For instance, a cash-strapped

property owner may wish to locate solvent polluters

to split the tab before incurring response costs, and

EPA may well review and approve a party’s cleanup

plans before any response activities are conducted.

See, e.g., Key Tronic, 511 U.S. at 820, 114 S.Ct. 1960

(covering PRP searches); United States v. E.I.

Dupont De Nemours & Co. Inc., 432 F.3d 161, 163,

173 (3d Cir. 2005) (en banc) (covering EPA’s review,

approval, and monitoring of proposed cleanup

activities). Nothing in section 101(25)’s text or the

case law interpreting it requires one activity to come

before the other for them to be related. The Tribes

have conducted investigative activities during the

course of this litigation, so the district court correctly

held that this response costs suit is “related to” a

response action at the Site.

34a

Last, Teck takes issue with the attorney’s fees

associated with the Tribes’ declaratory judgment

claim. CERCLA provides that any court awarding

response costs in a section 107(a) action “shall enter

a declaratory judgment on liability for response

costs ... that will be binding on any subsequent

action or actions to recover further response costs.”

42 U.S.C. § 9613(g)(2). As a result, the declaration of

Teck’s liability for future response costs is simply an

additional form of relief that the Tribes obtained

through the same efforts underlying their successful

response costs action. See City of Colton v. Am.

Promotional Events, Inc.-W., 614 F.3d 998, 1007 (9th

Cir. 2010). Teck responds that declaratory relief did

not need to be granted to compel Teck to fund a

response action, but this mandatory relief does not

require a showing of necessity.

Regardless of

whether future response costs are speculative—or

even, as Teck insists, affirmatively unlikely—

CERCLA requires that a successful plaintiff in a

section 107(a) action be awarded both response costs

and declaratory relief. See 42 U.S.C. § 9613(g)(2).

4

Teck also challenges the reasonableness of the

attorney’s fees award under the standard set forth in

Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933,

76 L.Ed.2d 40 (1983). Teck contends that if we agree

that the Tribes were not entitled to any costs of

removal, then we should conclude that the district

court misjudged the degree of the Tribes’ success.

But we do not agree with Teck’s premise, so we reject

its conclusion. The district court did not abuse its

discretion in finding the $4.86 million attorney’s fees

award to be reasonably proportionate to the properly

35a

awarded $3.39 million for investigation expenses.

See Webb v. Ada Cty., 285 F.3d 829, 837 (9th Cir.

2002). The ratio between attorney’s fees and the

degree of success obtained is also reasonable when

one considers that the Tribes earned a valuable

declaratory judgment, which “confer[s] substantial

benefits not measured by the amount of damages

awarded.” Hyde v. Small, 123 F.3d 583, 584 (7th Cir.

1997); see also In re Dant & Russell, Inc., 951 F.2d

246, 249–50 (9th Cir. 1991) (noting that CERCLA

plaintiffs often “spend some money responding to an

environmental hazard” and then bring a response

cost action to recover their “initial outlays” and to

obtain “a declaration that the responsible party will

have continuing liability for the cost of finishing the

job”).

In sum, we conclude that the district court properly

awarded the Colville Tribes their attorney’s fees, and

we do not disturb the finding that approximately

$4.86 million is a reasonable award in this case.

IV

The final question presented is whether the district

court erred in granting summary judgment on Teck’s

divisibility defense to joint and several liability.13

13

Teck’s closing renews its past contentions that this case

presents an extraterritorial application of CERCLA and that

Teck cannot be held liable as an “arranger” under

section 107(a)(3), 42 U.S.C. § 9607(a)(3). We rejected these

very arguments more than a decade ago in Pakootas I,

452 F.3d at 1082, and we are bound by that opinion as the

law of the case. See Old Pers. v. Brown, 312 F.3d 1036, 1039

(9th Cir. 2002).

36a

We review the district court’s grant of summary

judgment de novo, and we may affirm on any basis

supported by the record. Kohler v. Bed Bath &

Beyond of California, LLC, 780 F.3d 1260, 1263 (9th

Cir. 2015). Viewing the evidence in the light most

favorable to the nonmoving party, we must

determine whether there is “no genuine dispute as to

any material fact,” Fed. R. Civ. P. 56(a), and whether

the district court correctly applied the relevant

substantive law, see Devereaux v. Abbey, 263 F.3d

1070, 1074 (9th Cir. 2001) (en banc).

A

The district court granted summary judgment on

Teck’s divisibility defense on the ground that Teck

did not have enough evidence to establish the

defense. See Celotex Corp. v. Catrett, 477 U.S. 317,

322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In

opposing the motions for summary judgment, Teck

relied almost exclusively on the declaration and

report prepared by its divisibility expert, Dr. Mark

Johns.

Dr. Johns’s report set out to estimate the

contributions from all of the sources of six heavy

metals—arsenic, cadmium, copper, lead, mercury,

and zinc—that are found in the Upper Columbia

River and that allegedly originated from Teck’s

smelter. The report began by cataloging many

potential pollution sources dating back to the

nineteenth century. These sources throughout the

River’s watershed include 487 mines, eight mills, six

smelters, several municipal wastewater treatment

plants and industrial operations, urban runoff from

the City of Spokane, natural erosion, and landslides.

The materials containing heavy metals could range

37a

from waste rock and tailings to particles carried by

rainwater, mine water seepage, and liquid effluent;

from finely eroded soils to large masses of clay and

rock. The report concluded that Teck’s slag is

concentrated near the U.S.-Canada border and is not

found more than 45 miles downriver. By contrast,

one smelter dumped slag into the Upper Columbia

River a few miles south of the border; other smelter

slag, mine waste, and soil erosion could have reached

the River at more than ten confluences with its

tributaries; some wastewater treatment plants and

industrial sources discharged liquid effluent to the

River north of the international border; the Spokane

River contributed waste from mining, smelting,

wastewater treatment plants, industrial sources, and

urban runoff about 100 miles south of the border;

and landslides occurred on the banks of Lake

Roosevelt as far as 150 miles downriver.

The report then identified two methods for

apportioning liability for the River’s pollution, and

Dr. Johns’s declaration identified a third possible

method not set forth in his report but identified at

his deposition.

The primary apportionment method employed a

“metals loading approach.” This approach was based

on the premise that “[t]he harm in this case is the

extent of sediment contamination by hazardous

substances released at the Site.” To calculate the

release of hazardous substances from Teck’s wastes,

Dr. Johns credited a study by another one of Teck’s

experts concluding that “no verifiable amount of

hazardous substances were measured leaching from

Teck’s slag” and that no dissolved metals from Teck’s

effluent were even found at the Site. Dr. Johns then

38a

expressed his opinion that because he believed Teck’s

wastes are harmless, Teck should be apportioned 0%

of the liability for the Upper Columbia River’s

contamination.

As an alternative, Dr. Johns conducted a “flux”

apportionment analysis.

Unlike the primary

apportionment method, this analysis assumed that

the relevant harm is contamination of the River’s

“surface water.” Dr. Johns evaluated the six heavy

metals’ net flux from contaminated sediment into

overlying water. This analysis assumed that the

“diffusion boundary layer to the sediment-water

interface” was limited to the top five centimeters of

sediment. Dr. Johns then estimated the mass of

Teck’s slag present in this top portion of sediment in

the northernmost 45 miles of the Site. Using a

“theoretical” release rate for zinc—the only metal

“measured to even theoretically release from slag”—

Dr. Johns calculated a maximum daily release rate

for Teck’s slag. He compared this rate against the

zinc flux rate for all remaining sediment in this area,

as estimated by another one of Teck’s experts, and

concluded that Teck should be apportioned a 0.05%

share of liability.

Finally, Dr. Johns testified about a potential massbased approach to account for Teck’s share of metals

found at the Upper Columbia River Site. This

approach assumed that any “placement of hazardous

substances” into the Site is the relevant harm.

Dr. Johns estimated the mass of metals found in

Teck’s slag and materials from other sources at the

Site, but he ultimately did not use this method to

determine Teck’s portion of liability.

39a

B

The threshold issue on appeal is how to review

divisibility evidence on summary judgment.

CERCLA liability is ordinarily joint and several,

except in the rare cases where the environmental

harm to a site is shown to be divisible. United States

v. Coeur d’Alenes Co., 767 F.3d 873, 875 (9th Cir.

2014); see also Martha L. Judy, Coming Full

CERCLA: Why Burlington Northern Is Not the

Sword of Damocles for Joint and Several Liability,

44 New Eng. L. Rev. 249, 283 (2010) (counting only

four decisions finding divisibility out of 160 cases).

In Burlington Northern, the Supreme Court

confirmed that “ ‘[t]he universal starting point for

divisibility of harm analyses in CERCLA cases’ is

§ 433A of the Restatement (Second) of Torts.”

Burlington N. & Santa Fe Ry. Co. v. United States,

556 U.S. 599, 614, 129 S.Ct. 1870, 173 L.Ed.2d

812 (2009) (Burlington Northern II) (quoting United

States v. Hercules, Inc., 247 F.3d 706, 717 (8th Cir.

2001)). Under the Restatement, “when two or more

persons acting independently cause a distinct or

single harm for which there is a reasonable basis for

division according to the contribution of each, each is

subject to liability only for the portion of the total

harm that he has himself caused.” Id. (quoting

United States v. Chem-Dyne Corp., 572 F.Supp. 802,

810 (S.D. Ohio 1983)) (alteration omitted). “But

where two or more persons cause a single and

indivisible harm, each is subject to liability for the

entire harm.” Id. (quoting Chem-Dyne, 572 F.Supp.

at 810).

The divisibility analysis involves two steps. First,

the court considers whether the environmental harm

40a

is theoretically capable of apportionment.

See

Restatement (Second) of Torts § 434 cmt. d. This is

primarily a question of law. See United States v.

Burlington N. & Santa Fe Ry. Co., 520 F.3d 918, 942

(9th Cir. 2008) (Burlington Northern I), rev’d on

other grounds, 556 U.S. 599, 129 S.Ct. 1870,

173 L.Ed.2d 812 (2009); United States v. NCR Corp.,

688 F.3d 833, 838 (7th Cir. 2012); Hercules, 247 F.3d

at 718; Bell Petroleum, 3 F.3d at 896. Underlying

this question, however, are certain embedded factual

questions that must necessarily be answered, such as

“what type of pollution is at issue, who contributed to

that pollution, how the pollutant presents itself in

the environment after discharge, and similar

questions.” NCR, 688 F.3d at 838. Second, if the

harm is theoretically capable of apportionment, the

fact-finder determines whether the record provides a

“reasonable basis” on which to apportion liability,

which is purely a question of fact. Restatement

(Second) of Torts §§ 433A(1)(b), 434 cmt. d; see also

Burlington Northern II, 556 U.S. at 615, 129 S.Ct.

1870; NCR, 688 F.3d at 838; Hercules, 247 F.3d at

718; Bell Petroleum, 3 F.3d at 896.

At both steps, the defendant asserting the

divisibility defense bears the burden of proof. See

Restatement (Second) of Torts § 433B(2); see also

Burlington Northern II, 556 U.S. at 614, 129 S.Ct.

1870; NCR, 688 F.3d at 838.

This burden is

“substantial” because the divisibility analysis is

“intensely factual.”

United States v. Alcan

Aluminum Corp., 964 F.2d 252, 269 (3d Cir. 1992)

(Alcan-Butler). The necessary showing requires a

“fact-intensive,

site-specific”

assessment,

PCS Nitrogen Inc. v. Ashley II of Charleston LLC,

41a

714 F.3d 161, 182 (4th Cir. 2013), generating

“concrete and specific” evidence, Hercules, 247 F.3d

at 718. But that is not to say that the defendant’s

proof must rise to the level of absolute certainty. See

Burlington Northern II, 556 U.S. at 618, 129 S.Ct.

1870.

Rather, the defendant must show by a

preponderance of the evidence—including all logical

inferences, assumptions, and approximations—that

there is a reasonable basis on which to apportion the

liability for a divisible harm. See Restatement

(Second) of Torts § 433A cmt. d; see also, e.g.,

Hercules, 247 F.3d at 719; Bell Petroleum, 3 F.3d at

904 n.19.

2

In the context of a motion for summary judgment,

however, the burdens operate somewhat differently.

Teck’s answer pleaded divisibility as an affirmative

defense for which Teck would bear the burden of

proof at trial.14 To defeat this affirmative defense on

summary judgment, the Colville Tribes and the State

of Washington took on both the initial burden of

production and the ultimate burden of persuasion.

See Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc.,

210 F.3d 1099, 1102 (9th Cir. 2000). Their burden of

production required them to show that Teck did not

have sufficient evidence to prove its defense at trial.

See id. If they carried this burden of production,

14

The Tribes rightly note that “affirmative defense” is

something of a misnomer because divisibility is only a

partial defense to liability. But for the purposes of Federal

Rule of Civil Procedure 8(c)(1), even a partial defense that

introduces new matter into a case must be pleaded

affirmatively. 5 Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 1273 (3d ed. 2018).

42a

then Teck had to produce enough evidence in support

of its defense to create a genuine issue of material

fact. See id. at 1103. The Tribes’ and the State’s

burden of persuasion on their motions required them

to persuade the court that despite Teck’s evidence,

there was no genuine issue of material fact for trial.

See id. at 1102.

Here, the Tribes and the State pointed to an

absence of evidence sufficient to support either step

of Teck’s divisibility defense. Teck then had to

furnish all evidence necessary to show both that the

harm is theoretically capable of apportionment and

that there is a reasonable basis for apportioning

liability. See, e.g., Chem-Dyne, 572 F.Supp. at 811.

Specifically, Teck had to submit “evidence of the

appropriate dividend and divisor”—the overall harm,

and Teck’s apportioned share. Steve C. Gold, DisJointed? Several Approaches to Divisibility After

Burlington Northern, 11 Vt. J. Envtl. L. 307, 332

(2009). The Tribes and the State bore the burden of

persuading the court that this evidence was

inadequate.

3

Teck counters that the first question on the

motions for summary judgment is whether the

alleged harm could be divided “under any set of

facts,” which would mean Teck had no burden of

production on the overall harm.

We disagree. Even on a Rule 12(b)(6) motion to

dismiss—that is, before discovery—a non-moving

party is held to more than an “any set of facts”

standard. See Bell Atl. Corp. v. Twombly, 550 U.S.

544, 562-63, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

It is not the court’s job to envision hypothetical

43a

scenarios in which a mix of pollution from multiple

sources could potentially be divisible. Rather than

relying on judicial imagination, Teck was required to

“make a showing sufficient to establish the existence

of an element essential to” its divisibility defense:

that the harm is theoretically capable of division.

Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

4

Teck then argues that, at most, its burden of

production extended only to addressing the harm

from the specific pollutants that Teck is alleged to

have contributed to the Site. In the operative

complaints, the Tribes and the State sought “the

costs of remedial or removal actions, natural

resource damage assessment costs, and natural

resource damages that [plaintiffs] have incurred and

will continue to incur at the Upper Columbia River

and Lake Roosevelt where hazardous substances

have come to be located.” The district court read

these pleadings as alleging a harm caused by “all of

the hazardous substances released or threatened to

be released from the Site, from whatever source.”

But in Teck’s view, the harm pleaded is impliedly

limited to the six hazardous substances alleged to

have originated from the Trail smelter, so Teck

contends that it can disregard all other types of

pollution found with its wastes at the Site.

The environmental harm in this case is not so

limited. Section 107(a) imposes strict liability on all

PRPs, even if those persons are in fact not

responsible for any pollution at all. United States v.

Atl. Research Corp., 551 U.S. 128, 136, 127 S.Ct.

2331, 168 L.Ed.2d 28 (2007). That is because

“Congress has ... allocated the burden of disproving

44a

causation to the defendant who profited from the

generation and inexpensive disposal of hazardous

waste.” Monsanto, 858 F.2d at 170. It certainly is

not always an easy task to determine the entire

extent of contamination at a site. See NCR, 688 F.3d

at 841. The Restatement makes clear, however, that

“[a]s between the proved tortfeasor who has clearly

caused some harm, and the entirely innocent

plaintiff, any hardship due to lack of evidence as to

the extent of the harm should fall upon the former.”

Restatement (Second) of Torts § 433B cmt. d.

In line with CERCLA’s pleading requirements, the

complaints here identified six of Teck’s pollutants

just to establish the company’s liability.

The

complaints cannot be fairly read as needlessly

narrowing this suit to recovery for harm caused

solely by those pollutants. As a result, Teck was

required to produce evidence showing divisibility of

the entire harm caused by Teck’s wastes combined

with all other River pollution—not just the harm

from sources of Teck’s six metals alone.15

C

With the standards of review thus established, we

turn to evaluating the evidence submitted on

summary judgment.

15

Teck does not contend, nor does the record reflect, that

Teck’s heavy metals formed an area of pollution that was

distinct from areas with non-metal pollutants. And that

would be an argument for apportioning liability based on

distinct harms, not a single divisible harm. See Restatement

(Second) of Torts § 433A(1).

45a

1

The district court primarily granted summary

judgment on the ground that Teck did not have

enough evidence to show that the harm at issue is

theoretically capable of apportionment. The court

reasoned that Teck’s evidence could not establish

divisibility because it failed to account for the entire

harm at the Site. Reviewing the parties’ submissions

de novo, we agree that there was no genuine dispute

of fact for trial on the question whether the harm to

the Upper Columbia River is theoretically capable of

apportionment.

At the first step of the divisibility analysis, a court

cannot say whether a harm “is, by nature, too unified

for apportionment” without knowing certain details

about the “nature” of the harm.

Burlington

Northern I, 520 F.3d at 942, rev’d on other grounds,

556 U.S. 599, 129 S.Ct. 1870, 173 L.Ed.2d 812

(2009); see also Bell Petroleum, 3 F.3d at 895 (“The

nature of the harm is the key factor in determining

whether apportionment is appropriate.”). As one

commentator has explained: “Even if a party’s waste

stream can be separately accounted for, its effect on

the site and on other parties’ wastes at the site must

also be taken into account.” William C. Tucker, All

Is Number:

Mathematics, Divisibility and

Apportionment

Under

Burlington

Northern,

22 Fordham Envtl. L. Rev. 311, 316 (2011). That is,

“a defendant must take into account a number of

factors relating not just to the contribution of a

particular defendant to the harm, but also to the

effect of that defendant’s waste on the environment.”

Id.

Those factors generally include when the

pollution was discharged to a site, where the

46a

pollutants are found, how the pollutants are

presented in the environment, and what are the

substances’ chemical and physical properties. See

NCR, 688 F.3d at 838. Chief among the relevant

properties are “the relative toxicity, migratory

potential, degree of migration, and synergistic

capacities of the hazardous substances at the site.”

United States v. Alcan Aluminum Corp., 990 F.2d

711, 722 (2d Cir. 1993) (Alcan-PAS).

Teck’s divisibility expert identified hundreds of

heavy metal sources that may have contributed to

Upper Columbia River’s pollution throughout its

watershed over the course of more than a century.

At Teck’s direction, however, Dr. Johns expressly

curtailed his divisibility analysis to the six

hazardous substances allegedly “attributable to

Teck.” But Teck did not claim that these were the

only pollutants found at the Site.

Both the Tribes and the State pointed out this

deficiency in their motions for summary judgment.

The Tribes cited evidence of the Site containing the

hazardous

substances

antimony,

beryllium,

chromium, nickel, radon, selenium, thallium, 2,3,7,8tetrachlorodibenzo-pdioxin,

polycyclic

aromatic

hydrocarbons (“PAHs”), polychlorinated biphenyls

(“PCBs”), and DDTs. And one of the State’s experts

submitted a declaration stating that EPA was

evaluating the Site for around 199 contaminants of

concern, including PAHs, PCBs, dioxins and furans,

and pesticides. This declaration further showed that

sediment samples found Teck’s metals physically

mixed with other hazardous substances in the

northern stretches of the Site. Zinc, for example,

“was detected with other metals like antimony,

47a

arsenic, cadmium, copper, mercury, and lead, and

also in several instances with up to 14 reported

organic PAH chemicals present, as well as less

frequently with pesticides like 2,4-DDT, 4,4 DDE,

and 4,4-DDT.”

Despite this evidence, Teck’s opposition to the

motions for summary judgment continued to rely on

Dr. Johns’s limited analysis. Teck reiterated its

assumption that the Site’s harm was solely traceable

to the specific metals that Teck discharged. While

conceding that its slag was “co-located” with “other

slag and tailings,” Teck made no mention of its

pollutants being found alongside non-metal

pollutants. And Teck relied on Dr. Johns’s view that

if Teck’s slag “is not leaching,” as he believed, then

“the location of the slag in sediment is irrelevant to

the apportionment analysis.”

On these points Teck erred. At the outset, Teck

repeatedly misapprehended the harm here. For the

purpose of apportioning CERCLA liability, the

relevant “harm” is the entirety of contamination at a

site that has caused or foreseeably could cause a

party to incur response costs, suffer natural resource

damages, or sustain other types of damages

cognizable under section 107(a)(4).

See, e.g.,

Burlington Northern II, 556 U.S. at 618, 129 S.Ct.

1870 (suggesting that the harm is “the overall site

contamination requiring remediation” in a response

cost action); NCR, 688 F.3d at 840-41 (“[T]he

underlying harm caused [is] the creation of a

hazardous, polluted condition ....”); Burlington

Northern I, 520 F.3d at 939 (holding that each share

of liability for the harm is “the contamination

traceable to each defendant”), rev’d on other grounds,

48a

556 U.S. 599, 129 S.Ct. 1870, 173 L.Ed.2d 812

(2009); Chem-Nuclear Sys., Inc. v. Bush, 292 F.3d

254, 259 (D.C. Cir. 2002) (“[T]he harm at issue was

the release or threatened release of hazardous

substances into groundwater ....” (internal quotation

marks omitted)).

Dr. Johns instead based his apportionment

methods on three inconsistent notions of the Site’s

harm: (1) “the extent of sediment contamination by

hazardous substances released at the Site”; (2) “harm

[to] the river,” namely “the surface water”; and (3)

“the placement of hazardous substances” at the Site.

Dr. Johns’s first and second measures of the harm

are incomplete because they look only to the actual

releases of hazardous substances from toxic wastes

at the Site, ignoring the fact that wastes with a

“threatened release of hazardous substances” are

likewise contamination that could give rise to

response costs. Chem-Nuclear Sys., 292 F.3d at 259

(emphasis added); see also 42 U.S.C. § 9607(a)(4).

Further, the second measure excludes contamination

deeper than five centimeters, even though remedial

activities like dredging would obviously need to

excavate these materials too. Only Dr. Johns’s third

apportionment method—the approach that he

sketched briefly in his deposition rather than

outlining in his detailed report—correctly recognized

that the presence of contaminants throughout the

Site is the relevant harm.

More importantly, all of Dr. Johns’s analysis

overlooked the fact that “the mixing of the wastes

raises an issue as to the divisibility of the harm.”

Chem-Dyne, 572 F.Supp. at 811.

Mixing of

pollutants “is not synonymous with indivisible

49a

harm,” Alcan-PAS, 990 F.2d at 722, but it does

create a rebuttable presumption of such harm, see

id.; see also Monsanto, 858 F.2d at 172; Chem-Dyne,

572 F.Supp. at 811. The State put this presumption

at issue by submitting evidence of Teck’s metals

being found with unrelated pollutants, yet Teck

chose not to address the potential for synergistic

harm from these pollution hotspots.

Teck responds that the only relevant synergistic

effects are from substances that are chemically

commingled, not just physically interspersed. To

that end, Dr. Johns opined that Teck’s slag cannot

chemically interact with other substances based on

his understanding that the slag does not leach

pollutants.

We are not persuaded. Even if pollutants do not

chemically interact, their physical aggregation can

cause disproportionate harm that is not linearly

correlated with the amount of pollution attributable

to each source. In Monsanto, a key case addressing

chemical commingling, the Fourth Circuit explained:

“Common sense counsels that a million gallons of

certain substances could be mixed together without

significant consequences, whereas a few pints of

others improperly mixed could result in disastrous

consequences.” 858 F.2d at 172. Also common sense,

however, is the old adage that sometimes dilution is

the solution to pollution. See, e.g., Carol M. Browner,

Environmental Protection: Meeting the Challenges of

the Twenty-First Century, 25 Harv. Envtl. L. Rev.

329, 331 (2001).

For example, “[i]f several

defendants independently pollute a stream, the

impurities traceable to each may be negligible and

harmless, but all together may render the water

50a

entirely unfit for use.” W. Keeton et al., Prosser and

Keeton on Law of Torts § 52, p. 354 (5th ed. 1984).

The Second Circuit thus allowed a PRP to be

apportioned no liability if “its pollutants did not

contribute more than background contamination and

also cannot concentrate,” provided that there were no

EPA thresholds below those ambient contaminant

levels. Alcan-PAS, 990 F.2d at 722. And the Third

Circuit has held that “the fact that a single

generator’s waste would not in itself justify a

response is irrelevant ..., as this would permit a

generator to escape liability where the amount of

harm it engendered to the environment was

minimal, though it was significant when added to

other generators’ waste.” Alcan-Butler, 964 F.2d at

264.

Without knowing more about the accumulation of

Teck’s wastes with unrelated pollutants, with like

materials, and by themselves, a court could not tell

whether “their presence is harmful and the River

must be cleaned.” NCR, 688 F.3d at 840. That

question is particularly important here because the

most likely remedy for the Site will involve cleaning

up some, but not all, of the contaminants in the

150-mile long stretch of river.

See 40 C.F.R.

§ 300.430(f)(1)(ii)(D) (requiring EPA to select a costeffective remedy). More intensive remediation will

no doubt be prioritized where the level of

contamination, and the accompanying danger, is the

greatest.

In conclusion, once the State identified mixing of

Teck’s metals with non-metal pollutants, Teck was

required to rebut the presumption that these

pollution hotspots caused greater harm than the sum

51a

of the individual pollutants, each of which may be so

widely dispersed as to be harmless on its own. Teck

did not carry its burden of showing that the harm is

theoretically capable of apportionment by simply

“considering the effects of its waste in isolation from

the other contaminants at a site.” United States v.

Alcan Aluminum Corp., 315 F.3d 179, 187 (2d Cir.

2003) (Alcan-Consolidated).

On a related issue concerning the significance of

the buildup of slag, we again reject Teck’s

contentions.

Contrary to Dr. Johns’s mistaken

assumption, the buildup of Teck’s slag with other

metal-bearing slag or tailings and even on its own

affects the extent of the harm. Disproportionate

harm can occur whether or not the slag actively

leaches pollutants because, as mentioned, the mere

threat of leaching can prompt a response action, and

the accumulation of materials that pose a potential

risk makes a response action more likely. See

42 U.S.C. § 9607(a)(4); Chem-Nuclear Sys., 292 F.3d

at 259. Teck responds that Dr. Johns’s declaration

at least creates a disputed issue of fact on this point

that precludes summary judgment, but in light of the

statutory scheme, no rational trier of fact could

believe this unsupported assumption that the

distribution of the slag is irrelevant. See Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). And

because Teck’s slag itself contains a mixture of

pollutants, Teck also had to proffer evidence that the

clustering of these pollutants did not create

disproportionate

environmental

harm.

No

reasonable factfinder could otherwise assume, as

Dr. Johns’s apportionment methods require, that

52a

rocks and sand from landslides and erosion, for

example, are candidates for remediation on par with

Teck’s toxic slag. See id.

Finally, because the divisibility of the Upper

Columbia River’s contamination turns on the specific

facts of that contamination, Teck is also mistaken in

arguing that river pollution is categorically divisible

under the Restatement. See NCR, 688 F.3d at 838.

Besides, the Restatement provides dueling examples

of river pollution, and the types of harm for which

section 107(a) provides damages—and which the

Tribes seek—are more akin to the illustration of an

indivisible harm than a divisible harm. Compare

Restatement (Second) of Torts § 433A cmt. i, illus. 15

(river pollution poisoning animals is indivisible),

with id. cmt. d, illus. 5 (river pollution depriving a

riparian owner of the use of water for industrial

purposes is divisible). The Seventh Circuit reached

the same conclusion in NCR, writing: “The problem

here is not that downstream factories were

prevented from using the [river] for some period, but

that wholly apart from water usage, a toxic chemical

in the water causes significant and widespread

health problems in both animals and in humans.”

688 F.3d at 842.

We hold that Teck did not make a sufficient

showing to establish that liability for environmental

harm to the Site is theoretically capable of

apportionment. We fully agree with the district

court that “because [Teck] has failed to account for

all of the harm at the [Upper Columbia River] Site, it

cannot prove that harm is divisible.” And to borrow

the apt words of Alcan-Consolidated, a case involving

a defendant-appellant not carrying its burden of

53a

production at trial rather than on a motion for

summary judgment,

appellant did not satisfy its substantial

burden with respect to divisibility because it

failed to address the totality of the impact of

its waste at [the Site]; it ignored the likelihood

that the cumulative impact of its waste

[mixture] exceeded the impact of the

[mixture’s]

constituents

considered

individually, and neglected to account for the

[mixture’s] ... physical interaction with other

hazardous substances already at the site.

315 F.3d at 187. Although Teck must only produce

evidence sufficient to create a genuine issue of

material fact at the summary judgment stage, for the

reasons stated above, it has not done so here.

2

As an additional ground for summary judgment,

the Tribes and the State argued that Teck did not

have enough evidence to show a reasonable basis for

apportioning liability. The district court briefly

considered this argument and again sided with the

plaintiffs on the ground that Teck did not show that

the chosen proxy—volume of hazardous substances

deposited in the Upper Columbia River—was

proportional to the environmental harm. We agree

that the lack of a reasonable factual basis for

apportioning Teck’s liability provides yet another

reason for upholding the district court’s grant of

summary judgment on Teck’s divisibility defense.

A defendant asserting a divisibility defense must

show that “there is a reasonable basis for

determining the contribution of each cause to a

54a

single harm.” Burlington Northern II, 556 U.S. at

614, 129 S.Ct. 1870 (quoting Restatement (Second) of

Torts § 433A(1)(b)). What is reasonable in one case

may not be in another, so apportionment methods

“vary tremendously depending on the facts and

circumstances of each case.” Hercules, 247 F.3d at

717. Still, the basis for apportionment may rely on

the “simplest of considerations,” most commonly

volumetric, chronological, or geographic factors.

Burlington Northern II, 556 U.S. at 617-18, 129 S.Ct.

1870 (quoting Burlington Northern I, 520 F.3d at

943). The only requirement is that the record must

support a “reasonable assumption that the respective

harm done is proportionate to” the factor chosen to

approximate a party’s responsibility. Bell Petroleum,

3 F.3d at 896, 903 (quoting Restatement (Second) of

Torts § 433A cmt. d).

Here, no rational trier of fact could find that Teck

has provided a reasonable basis for apportionment.

All three of Dr. Johns’s apportionment methods are

variants of a volumetric approach in that they are

premised on an estimate of the mass of pollutants at

the Site. But as the Fourth Circuit has noted,

“[v]olumetric contributions provide a reasonable

basis for apportioning liability only if it can be

reasonably assumed, or it has been demonstrated,

that independent factors had no substantial effect on

the harm to the environment.” Monsanto, 858 F.2d

at 172 n.27. Teck “presented no evidence, however,

showing a relationship between waste volume ... and

the harm at the site.” Id. at 172. Instead, the

available record undercuts the reasonableness of

Teck’s assuming a proportional relationship between

55a

waste volume alone and the Site’s contamination, for

two main reasons.

First, as the Tribes point out, Teck’s evidence

shows that geographic factors clearly affected the

river’s contamination throughout this massive site.

The Trail smelter’s pollution entered the Upper

Columbia River at the international border and,

according to Dr. Johns, Teck’s slag deposits extend

only 45 river miles south. But Dr. Johns accounted

for the potential contribution of metals from sources

as far as 150 miles downriver, many of which were

concentrated at more than ten different confluences

between the River and its tributaries. Further,

conditions varied greatly throughout the Site; the

River is free flowing close to the Canadian border,

causing less sediment to accumulate, but it

eventually slows and forms Lake Roosevelt,

preserving more sediment. As discussed above, these

differences in pollution hotspots will doubtless entail

varying remediation needs and injuries to the

natural environment. See Hercules, 247 F.3d at 717.

But even if the harm from those hotspots is capable

of division, the fact that contamination strongly

correlates with geography means that this is an

independent factor that substantially affects the

environmental harm at issue. Any proxy for the

harm that did not account for geography thus could

not be found reasonable.

Second, Teck’s evidence also shows that the

passage of time could have a substantial impact on

the river’s contamination given the long time period

under consideration.

Dr. Johns accounted for

materials deposited into the Columbia River from

the late 1800s through the present. He testified in

56a

his deposition that over time, the accumulation of

new sediment could bury old contaminants, and in

his declaration he said that remediation is not

needed if contaminants are buried beneath at least

five centimeters of sediment. Further, Dr. Johns

acknowledged that over time, slag may slowly

release—and thus lose—hazardous substances to the

surrounding environment. The upshot is that older

wastes may present less of a need for cleanup than

more recently disposed wastes. On this record, no

reasonable fact-finder could assume that the time at

which wastes entered the River is irrelevant to

determining the extent of harmful contamination at

the Site.

Other independent factors could also affect the

environmental harm here, but were similarly ignored

by Teck. To take a ready example, some pollutants

in the Upper Columbia River may be more toxic than

others, like lead compared to zinc. And pollutants

may have different migratory potentials based on the

media in which they are deposited, such as glassy

slag, powdery tailings, or suspended particulates.

See Monsanto, 858 F.2d at 173 n.26; see also, e.g.,

United States v. Manzo, 279 F.Supp.2d 558, 572-73

(D.N.J. 2003) (rejecting a volumetric apportionment

theory where the defendants did not account for

relative toxicity and migratory potential).

Absent evidence of how these factors affected the

contamination of the Site, any apportionment would

have been arbitrary. The district court properly

“refused to make an arbitrary apportionment for its

own sake.” Burlington Northern II, 556 U.S. at 61415, 129 S.Ct. 1870 (quoting Restatement (Second) of

Torts § 433A cmt. i). But Teck of course can always

57a

bring a contribution action under section 113(f),

42 U.S.C. § 9613(f), against other pollution sources it

identified, which “mitigates any inequity arising

from

the

unavailability

of

apportionment.”

PCS Nitrogen, 714 F.3d at 182.

In holding that Teck did not carry its burden of

production, we do not mean to suggest that Teck had

to rush the ongoing RI/FS and exhaustively

document every contaminant at the Site to save its

divisibility defense from summary judgment. That

was not required. What was required, however, was

that Teck survey the Site, “comprehensively and

persuasively address the effects of its waste,” and

come up with an apportionment method that a

rational trier of fact could find reasonable. AlcanConsolidated, 315 F.3d at 187. Teck did not do so

here.

V

For the foregoing reasons, we affirm the district

court’s judgment holding Teck jointly and severally

liable for the Colville Tribes’ costs of response.

AFFIRMED.

58a

APPENDIX B

_________

UNITED STATES COURT OF APPEALS,

FOR THE NINTH CIRCUIT

_________

No. 16-35742

D.C. No. 2:04-cv-00256-LRS

Eastern District of Washington, Spokane

_________

DONALD R. MICHEL, an individual and enrolled

member of the Confederated Tribes of the Coville

Reservation and JOSEPH A. PAKOOTAS, an individual

and enrolled member of the Confederated Tribes of

the Colville Reservation,

Plaintiffs,

and

CONFEDERATED TRIBES OF THE

COLVILLE RESERVATION,

Plaintiff-Appellee,

STATE OF WASHINGTON,

Intervenor-Plaintiff-Appellee,

v.

TECK COMINCO METALS, LTD.,

a Canadian corporation,

Defendant-Appellant.

_________

59a

ORDER

Before: GOULD and PAEZ, Circuit Judges, and

MCSHANE,* District Judge.

The panel has unanimously voted to deny the

petition for panel rehearing. Judges Gould and Paez

voted to deny the petition for rehearing en banc, and

Judge McShane has so recommended.

The petition for en banc rehearing has been

circulated to the full court, and no judge has

requested a vote on whether to rehear the matter en

banc. Fed. R. App. P. 35(b).

Appellant’s petition for panel rehearing

petition for rehearing en banc are denied.

*

and

The Honorable Michael J. McShane, United States

District Judge for the District of Oregon, sitting by

designation.

60a

APPENDIX C

_________

UNITED STATES COURT OF APPEALS,

NINTH CIRCUIT

_________

No. 05-35153

_________

JOSEPH 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

Coville Reservation; STATE OF WASHINGTON,

Plaintiffs-Appellees,

v.

TECK COMINCO METALS, LTD.,

a Canadian corporation,

Defendant-Appellant.

_________

Argued and Submitted December 5, 2005

Filed July 3, 2006

_________

Opinion

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

61a

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

1

Unless otherwise indicated, statutory citations herein are

to Title 42 of the United States Code.

2

Because this appeal follows denial of a motion to dismiss,

we take the facts as stated in the complaint as true and in

the light most favorable to Pakootas. See Campanelli v.

Bockrath, 100 F.3d 1476, 1479 (9th Cir.1996).

62a

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/C

LEANUP.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

3

The “Upper Columbia River Site” includes “the areal

extent of contamination in the United States associated with

the Upper Columbia River, and all suitable areas in

proximity

to

the

contamination

necessary

for

implementation of a response action.” UAO at 2.

4

The NPL “is a compilation of uncontrolled hazardous

substances releases in the United States that are ‘priorities’

for long-term evaluation and response.” 4 William H.

Rodgers, Jr., Environmental Law: Hazardous Wastes and

Substances § 8.7(C) (Supp.2005). “Inclusion of a site or

facility on the list requires no action, assigns no liability,

and does not pass judgment on the owner or operator....

[T]he key consequence of being listed is that only NPL sites

qualify for [Superfund]-financed remedial action.” Id.

63a

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

5

This is not the first time the Trail Smelter has been in a

dispute over transboundary environmental pollution. See

generally Michael J. Robinson-Dorn, The Trail Smelter: Is

What’s Past Prologue? EPA Blazes a New Trail for CERCLA,

14 N.Y.U. Envtl. L.J. 233, 241-53 (2006) (describing factual

and procedural background of the Trail Smelter Arbitration,

which concerned sulfur dioxide emissions from the Trail

Smelter that migrated into the United States in the early

twentieth century).

6

The complaint alleges that the Trail Smelter discharged

up to 145,000 tons of slag annually, but the EPA alleges that

the Trail Smelter discharged up to 145,000 tonnes annually.

A “ton” is equivalent to 2,000 pounds. A “tonne,” or metric

ton, is equivalent to 1,000 kilograms, or 2,205 pounds. Thus,

145,000 tonnes, each with 205 pounds more than an

64a

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

American “ton,” is equivalent to about 160,000 tons. Either

way, the Trail Smelter discharged a ton of slag in the

colloquial sense, and the difference between the two figures

is immaterial for our purposes. Because we take the facts as

alleged by Pakootas, we use his figure of 145,000 tons.

7

TCAI is a wholly-owned American subsidiary of Teck.

65a

Order directed Teck to conduct a RI/FS 8 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

8

“The purpose of the remedial investigation/feasibility

study (RI/FS) is to assess site conditions and evaluate

alternatives to the extent necessary to select a remedy.

Developing and conducting an RI/FS generally includes the

following activities: project scoping, data collection, risk

assessment, treatability studies, and analysis of

alternatives. The scope and timing of these activities should

be tailored to the nature and complexity of the problem and

the response alternatives being considered.”

40 C.F.R.

§ 300.430(a)(2).

66a

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 only

within the territorial jurisdiction of the United

States.’ ” (quoting EEOC v. Arabian Am. Oil Co.

67a

(“Aramco ”), 499 U.S. 244, 248, 111 S.Ct. 1227, 113

L.Ed.2d 274 (1991)). However, the district court

concluded

that

the

presumption

against

extraterritoriality was overcome here, because

there is no doubt that CERCLA affirmatively

expresses a clear intent by Congress to remedy

‘domestic conditions’ within the territorial

jurisdiction of the U.S. That clear intent,

combined with the well-established principle

that

the

presumption

[against

extraterritoriality] is not applied where failure

to extend the scope of the statute to a foreign

setting will result in adverse effects within the

United States, leads this court to conclude

that extraterritorial application of CERCLA is

appropriate in this case.

Further, the district court held that Teck was a

“person” under the meaning of § 9601(21), and held

that Teck’s liability as a “generator” of hazardous

waste and/or as an “arranger” of the disposal of

hazardous waste could not be ruled out under

§ 9607(a)(3).9

The district court sua sponte certified its order for

immediate appeal to us pursuant to 28 U.S.C.

9

CERCLA defines an arranger as:

any person who by contract, agreement, or otherwise

arranged for disposal or treatment, or arranged with a

transporter for transport for disposal or treatment, of

hazardous substances owned or possessed by such

person, by any other party or entity, at any facility or

incineration vessel owned or operated by another party

or entity and containing such hazardous substances.

§ 9607(a)(3).

68a

§ 1292(b). Thereafter, Teck petitioned for permission

to appeal, which we granted. While Teck’s petition

for permission to appeal was pending before us, the

district court granted Teck’s motion to stay further

proceedings in the district court pending the outcome

of this interlocutory appeal.10

10

After this appeal was submitted for decision, Teck filed a

request for us to take judicial notice of a settlement

agreement between Teck and EPA, in which the EPA agreed

to withdraw the Order that is the subject of this appeal.

Neither Pakootas nor the State of Washington, who are the

plaintiff and plaintiff-intervenor in this litigation, was a

party to the settlement agreement. We take notice that the

settlement between Teck and the EPA was reached, but we

do not take notice of supplemental arguments urged by Teck

relating to the agreement.

The parties are agreed that the settlement between Teck

and the EPA does not render this action moot. Teck argues

that this settlement renders moot Pakootas’s claims for

injunctive relief to enforce the Order and for declaratory

relief that Teck is in violation of the Order, but that

Pakootas’s claims for civil penalties “for each day” that Teck

violated the Order and for attorneys’ fees, are not moot.

Pakootas disputes that the settlement is self-executing and

that it necessarily renders moot the claims for injunctive and

declaratory relief. For purposes of this appeal, it is sufficient

for us to note that Pakootas’s claims for civil penalties and

for attorneys’ fees are not moot, and that we must proceed to

decision of the appeal. On remand, we leave for the district

court to decide in the first instance whether the claims for

injunctive and declaratory relief are moot.

We further deny Teck’s request for us to take judicial

notice on this appeal of the following documents: (1) Order

Granting Motions to Lift Stay, issued by the district court on

October 25, 2005; (2) Plaintiffs’ Amended Complaint, filed

November 7, 2005; and (3) State of Washington’s First

69a

On this appeal, Teck does not challenge the district

court’s determination that it had personal

jurisdiction over Teck. And although Teck “disputes

the conclusion” that the district court had subject

matter jurisdiction to hear the case, it does not argue

in its briefing that the district court was without

subject matter jurisdiction. Rather, Teck argues that

the district court should have dismissed Pakootas’s

complaint under Federal Rule of Civil Procedure

12(b)(6) for two reasons. First, Teck argues that to

apply CERCLA to Teck’s activities in Canada would

be an impermissible extraterritorial application of

United States law. Second, Teck argues that it is not

liable as a person who “arranged for disposal” of

hazardous substances under § 9607(a)(3).

II

We review de novo a district court’s decision on a

motion to dismiss for failure to state a claim

pursuant to Federal Rule of Civil Procedure 12(b)(6).

Decker v. Advantage Fund Ltd., 362 F.3d 593, 595-96

(9th Cir. 2004). We review questions of law de novo.

Torres-Lopez v. May, 111 F.3d 633, 638 (9th

Cir.1997).

III

We begin by considering how this litigation fits

within the CERCLA statutory framework. CERCLA

sets forth a comprehensive scheme for the cleanup of

hazardous waste sites, and imposes liability for

cleanup costs on the parties responsible for the

release or potential release of hazardous substances

Amended Complaint in Intervention, filed November 4,

2005.

70a

into the environment. See Pinal Creek Group v.

Newmont Mining Corp., 118 F.3d 1298, 1300 (9th

Cir.1997); see also Gen. Elec. Co. v. Litton Indus.

Automation Sys., Inc., 920 F.2d 1415, 1422 (8th

Cir.1990) (stating that “two ... main purposes of

CERCLA” are “prompt cleanup of hazardous waste

sites and imposition of all cleanup costs on the

responsible party”) (cited with approval in Meghrig v.

KFC W., Inc., 516 U.S. 479, 483, 116 S.Ct. 1251,

134 L.Ed.2d 121 (1996)).

To ensure the prompt cleanup of hazardous waste

sites, CERCLA gives four options to the EPA: 11

(1) the EPA can investigate and remediate hazardous

waste sites itself under § 9604, and later seek to

recover response costs from the potentially

responsible parties (PRPs) under § 9607; (2) the EPA

can initiate settlement negotiations with PRPs under

§ 9622; (3) the EPA can file suit in federal district

court to compel the PRPs to abate the threat if there

is an “imminent and substantial” threat to public

health or welfare under § 9606(a); or (4) the EPA can

issue orders directing the PRPs to clean up the site

under § 9606(a). In this case, the EPA chose the

fourth approach, and issued the Order to Teck under

§ 9606(a).

If a party receives an order and refuses to comply,

enforcement options are available. See generally

Solid State Circuits, Inc. v. EPA, 812 F.2d 383, 387

(8th Cir.1987). First, the EPA may bring an action

in federal district court to compel compliance, using

11

CERCLA vests this authority in the President, who in

turn has delegated most of his functions and responsibilities

to the EPA. See 40 C.F.R. § 300.100.

71a

the contempt powers of the district court as a

potential sanction for non-compliance. § 9606(a).

Second, the EPA may bring an action in federal

district court seeking to impose fines of up to $25,000

for each day that the party fails to comply with the

order. § 9606(b)(1). Third, the EPA may initiate

cleanup of the facility itself under § 9604, and the

party responsible for the pollution is potentially

liable for the response and cleanup costs, plus treble

damages. § 9607(c)(3).

Here, the EPA has not sought to enforce the Order

through any of the mechanisms described above.12

Rather, Pakootas initiated this suit in federal district

court under § 9659, the citizen suit provision of

CERCLA. Section 9659(a)(1) provides a cause of

action for any person to commence a civil action

“against any person ... who is alleged to be in

violation of any standard, regulation, condition,

requirement, or order which has become effective

pursuant to this chapter.” Section 9659(c) gives the

district court the power “to order such action as may

be necessary to correct the violation, and to impose

any civil penalty provided for the violation.”

Further, § 9613(h)(2), the “timing of review”

provision of CERCLA, grants federal courts

jurisdiction to review an order issued under § 9606(a)

when a party seeks to enforce the order.

Having placed this litigation in context, we turn to

the merits.

12

So far as we can tell from the record, the EPA did not

take any formal action against Teck between issuing the

Order on December 11, 2003 and settling with Teck on

June 2, 2006.

72a

IV

Teck’s primary argument is that, in absence of a

clear statement by Congress that it intended

CERCLA to apply extraterritorially, the presumption

against extraterritorial application of United States

law precludes CERCLA from applying to Teck in

Canada.

We need to address whether the

presumption against extraterritoriality applies only

if this case involves an extraterritorial application of

CERCLA. So a threshold question is whether this

case involves a domestic or extraterritorial

application of CERCLA.

Unlike other environmental laws such as the Clean

Air Act, 42 U.S.C. §§ 7401-7671q, Clean Water Act,

33 U.S.C. §§ 1251-1387, and Resource Conservation

and Recovery Act (RCRA), 42 U.S.C. §§ 6901-6992k,

CERCLA is not a regulatory statute.

Rather,

CERCLA imposes liability for the cleanup of sites

where there is a release or threatened release of

hazardous substances into the environment. See

Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d

863, 881 (9th Cir. 2001) (en banc) (“CERCLA holds a

PRP liable for a disposal that ‘releases or threatens

to release’ hazardous substances into the

environment.”). CERCLA liability attaches when

three conditions are satisfied: (1) the site at which

there is an actual or threatened release of hazardous

substances is a “facility” under § 9601(9); (2) a

“release” or “threatened release” of a hazardous

substance from the facility has occurred,

§ 9607(a)(4); and (3) the party is within one of the

73a

four classes of persons subject to liability under

§ 9607(a).13

CERCLA defines the term “facility” as, in relevant

part, “any site or area where a hazardous substance

has been deposited, stored, disposed of, or placed, or

13

There is a question whether the elements of CERCLA

liability outlined in § 9607(a) are the same elements that the

EPA must allege when issuing an order under § 9606(a).

That is, § 9606(a) authorizes the EPA to issue “such orders

as may be necessary to protect public health and welfare and

the environment,” but does not specify exactly what the EPA

must allege before issuing such orders. Section 9606(b)(1)

states that the EPA can seek fines for non-compliance in

federal district court unless the person who refuses to

comply with the order has “sufficient cause.”

The Eighth Circuit, the only federal court of appeals to

address the issue, has held that “sufficient cause” includes a

defense that “the applicable provisions of CERCLA, EPA

regulations and policy statements, and any formal or

informal hearings or guidance the EPA may provide, give

rise to an objectively reasonable belief in the invalidity or

inapplicability of the clean-up order.” Solid State Circuits,

812 F.2d at 392. We need not here decide whether a party

that is not liable under § 9607(a) necessarily has “sufficient

cause” to refuse to comply with an order issued under

§ 9606(a) because, as we hold below, Teck is potentially

liable under § 9607(a).

However, one element of § 9607(a) liability does not apply

here. In private cost recovery actions under § 9607(a), the

claimant must incur response costs that are both “necessary”

and “consistent with the national contingency plan.”

§ 9607(a)(4). See Carson Harbor Vill., 270 F.3d at 871-72.

Because Pakootas filed a citizen suit under § 9659 rather

than a private cost recovery action under § 9607(a), the

requirement that a private party incur response costs before

filing suit does not apply here.

74a

otherwise come to be located.” § 9601(9). The Order

defines the “facility” in this case as the Site, which is

described as the “extent of contamination in the

United States associated with the Upper Columbia

River.” UAO at 2 (emphasis added); see also UAO at

5 (“The Upper Columbia River Site is a ‘facility’ as

defined in Section 101(9) of CERCLA, 42 U.S.C.

§ 9601(9).”).14 The slag has “come to be located” at

the Site, and the Site is thus a facility under

§ 9601(a). See 3550 Stevens Creek Assocs. v. Barclays

Bank of California, 915 F.2d 1355, 1360 n. 10 (9th

Cir.1990) (“[T]he term facility has been broadly

construed by the courts, such that in order to show

that an area is a facility, the plaintiff need only show

that a hazardous substance under CERCLA is placed

there or has otherwise come to be located there.”

(internal quotation marks omitted)). The Order

defines the facility as being entirely within the

United States, and Teck does not argue that the Site

is not a CERCLA facility. Because the CERCLA

facility is within the United States, this case does not

involve an extraterritorial application of CERCLA to

a facility abroad.

The theory of Pakootas’s

complaint, seeking to enforce the terms of the Order

to a “facility” within the United States, does not

invoke extraterritorial application of United States

law precisely because this case involves a domestic

facility.

14

Because the EPA and Pakootas in seeking enforcement

of the EPA’s order do not characterize either the Trail

Smelter or the Columbia River in Canada as a facility, we

need not and do not reach whether these sites are facilities

for purposes of CERCLA.

75a

The second element of liability under CERCLA is

that there must be a “release” or “threatened release”

of a hazardous substance from the facility into the

environment. See § 9607(a)(4). To determine if there

is an actual or threatened release here, we consider

the statutory definition of release. CERCLA defines

a “release,” with certain exceptions not relevant here,

as “any spilling, leaking, pumping, pouring, emitting,

emptying, discharging, injecting, escaping, leaching,

dumping, or disposing into the environment.”

§ 9601(22).

Here, several events could potentially be

characterized as releases.

First, there is the

discharge of waste from the Trail Smelter into the

Columbia River in Canada. Second, there is the

discharge or escape of the slag from Canada when

the Columbia River enters the United States. And

third, there is the leaching of heavy metals and other

hazardous substances from the slag into the

environment at the Site. Although each of these

events can be characterized as a release, CERCLA

liability does not attach unless the “release” is from a

CERCLA facility.

Here, as noted, the Order describes the facility as

the Site; not the Trail Smelter in Canada or the

Columbia River in Canada. Pakootas has alleged

that the leaching of hazardous substances from the

slag that is in the Site is a CERCLA release, and

Teck has not argued that the slag’s interaction with

the water and sediment of the Upper Columbia River

is not a release within the intendment of CERCLA.

Our precedents establish that the passive migration

of hazardous substances into the environment from

where hazardous substances have come to be located

76a

is a release under CERCLA. See A & W Smelter &

Refiners, Inc. v. Clinton, 146 F.3d 1107, 1111 (9th

Cir.1998) (holding that wind blowing particles of

hazardous substances from a pile of waste was a

CERCLA release); United States v. Chapman,

146 F.3d 1166, 1170 (9th Cir.1998) (affirming

summary judgment where the Government

presented evidence that corroding drums were

leaking hazardous substances into the soil); see also

Coeur D’Alene Tribe v. Asarco, Inc., 280 F.Supp.2d

1094, 1113 (D.Idaho 2003) (“Th[e] passive movement

and migration of hazardous substances by mother

nature (no human action assisting in the movement)

is still a ‘release’ for purposes of CERCLA in this

case.”). We hold that the leaching of hazardous

substances from the slag at the Site is a CERCLA

release. That release—a release into the United

States from a facility in the United States—is

entirely domestic.

The third element of liability under CERCLA is

that the party must be a “covered person” under

§ 9607(a). Teck argues that it is not a covered person

under § 9607(a)(3) because it has not “arranged for

disposal” of a hazardous substance “by any other

party or entity” as required by § 9607(a)(3), because

Teck disposed of the slag itself, and without the aid

of another. Alternatively, Teck argues that if it is an

arranger under § 9607(a)(3), then basing CERCLA

liability on Teck arranging for disposal of slag in

Canada is an impermissible extraterritorial

application of CERCLA.

77a

Assuming that Teck is an arranger under §

9607(a)(3),15 we consider whether the fact that the

act of arranging in Canada for disposal of the slag

makes this an extraterritorial application of

CERCLA. Teck argues that because it arranged in

Canada for disposal, that is, the act of arranging took

place in Canada even though the hazardous

substances came to be located in the United States, it

cannot be held liable under CERCLA without

applying CERCLA extraterritorially.

The text of § 9607(a)(3) applies to “any person” who

arranged for the disposal of hazardous substances.

The term “person” includes, inter alia, “an

individual,

firm,

corporation,

association,

partnership, consortium, joint venture, [or]

commercial entity.” § 9601(21). On its face, this

definition includes corporations such as Teck,

although the definition does not indicate whether

foreign corporations are covered. Teck argues that

because the Supreme Court recently held that the

term “any court” as used in 18 U.S.C. § 922(g)(1) does

not include foreign courts, we should interpret the

term “any person” so as not to include foreign

corporations. See Small v. United States, 544 U.S.

385, 390-91, 125 S.Ct. 1752, 161 L.Ed.2d 651 (2005).

The decision in Small was based in part on United

States v. Palmer, 16 U.S. (3 Wheat.) 610, 4 L.Ed.

471 (1818), in which Chief Justice Marshall held for

the Court that the words “any person or persons,” as

15

We address in the next section Teck’s contention that it

is not a person for § 9607(a) purposes because it has not

“arranged for disposal” of hazardous substances “by any

other party or entity.”

78a

used in a statute prohibiting piracy on the high seas,

“must not only be limited to cases within the

jurisdiction of the state, but also to those objects to

which the legislature intended to apply them.” Id. at

631. The Court held that “any person or persons” did

not include crimes “committed by a person on the

high seas, on board of any ship or vessel belonging

exclusively to subjects of a foreign state, on persons

within a vessel belonging exclusively to subjects of a

foreign state.” Id. at 633-34. However, the Court

held that even though the statute did not specifically

enumerate foreign parties as “persons,” the statute

did apply to punish piracy committed by foreign

parties against vessels belonging to subjects of the

United States. See id.

Palmer relied upon two benchmarks for

determining whether terms such as “any person”

apply to foreign persons: (1) the state must have

jurisdiction over the party, and (2) the legislature

must intend for the term to apply. See id. at 631.

Regarding jurisdiction, Teck argued in the district

court that there was no personal jurisdiction over it.

The district court held that there was personal

jurisdiction, and Teck has not appealed that

determination. Because a party can waive personal

jurisdiction, we are not required to consider it sua

sponte. See Smith v. Idaho, 392 F.3d 350, 355 n. 3

(9th Cir. 2004) (citing the “longstanding rule that

personal jurisdiction, in the traditional sense, can be

waived and need not be addressed sua sponte”).

Nevertheless, we agree with the district court that

there is specific personal jurisdiction over Teck

79a

here.16 Because there is specific personal jurisdiction

over Teck here based on its allegedly tortious act

aimed at the state of Washington, the first Palmer

benchmark is satisfied, and we can appropriately

construe the term “any person” to apply to Teck.

The second Palmer benchmark is that the

legislature must intend for the statute to apply to the

situation. Except for the statutory definition of “any

person,” CERCLA is silent about who is covered by

the Act. But CERCLA is clear about what is covered

by the Act. CERCLA liability attaches upon release

or threatened release of a hazardous substance into

16

We do not decide whether there is general personal

jurisdiction over Teck. Rather, we adopt the district court’s

conclusion that there is specific personal jurisdiction over

Teck here, based on Washington State’s long-arm statute,

which applies to “the commission of a tortious act” within

Washington, Wash. Rev.Code § 4.28.185, and our case law

holding that “personal jurisdiction can be predicated on

(1) intentional actions (2) expressly aimed at the forum state

(3) causing harm, the brunt of which is suffered—and which

the defendant knows is likely to be suffered—in the forum

state.” See Core-Vent Corp. v. Nobel Inds. AB, 11 F.3d 1482,

1486 (9th Cir.1993).

AT & T v. Compagnie Bruxelles Lambert, 94 F.3d 586 (9th

Cir.1996), is not to the contrary. There, AT & T claimed that

Compagnie Bruxelles Lambert was liable under CERCLA

because its subsidiary operated a site from which hazardous

substances were released. Id. at 590-91. We held that there

was no specific jurisdiction over the parent company because

(1) the parent company had insufficient independent

contacts with the United States to establish personal

jurisdiction, and (2) the subsidiary was not acting as the

parent company’s alter ego. Id. Here, Teck has sufficient

independent personal contacts with the forum state to justify

specific personal jurisdiction.

80a

the environment. CERCLA defines “environment” to

include “any other surface water, ground water,

drinking water supply, land surface or subsurface

strata, or ambient air within the United States or

under the jurisdiction of the United States.”

§ 9601(8) (emphasis added). CERCLA’s purpose is to

promote the cleanup of hazardous waste sites where

there is a release or threatened release of hazardous

substances into the environment within the United

States. See ARC Ecology v. U.S. Dep’t of the Air

Force, 411 F.3d 1092, 1096-98 (9th Cir. 2005) (citing

legislative history demonstrating that Congress

intended CERCLA to apply to cleanup hazardous

waste sites in the United States). Because the

legislature intended to hold parties responsible for

hazardous waste sites that release or threaten

release of hazardous substances into the United

States environment, the second Palmer benchmark is

satisfied here.

Although the Palmer analysis supports the

proposition that CERCLA applies to Teck, Palmer of

course does not address the distinction between

domestic or extraterritorial application of CERCLA.

The Palmer analysis, however, in what we have

termed its second benchmark, brings to mind the

“domestic effects” exception to the presumption

against extraterritorial application of United States

law. See Steele v. Bulova Watch Co., 344 U.S. 280,

287-88, 73 S.Ct. 252, 97 L.Ed. 319 (1952) (finding

jurisdiction in a trademark suit against a person in

Mexico who manufactured counterfeit Bulova

watches that then entered and caused harm within

the United States).

The difference between a

domestic application of United States law and a

81a

presumptively

impermissible

extraterritorial

application of United States law becomes apparent

when we consider the conduct that the law prohibits.

In Steele the prohibited conduct, the unauthorized

use and reproduction of Bulova’s registered

trademark, took place in Mexico but the harm, the

dilution of Bulova’s trademark, took place in the

United States. Id. at 287, 73 S.Ct. 252. The Court

therefore held that there was jurisdiction in that

case.

Here, the operative event creating a liability under

CERCLA is the release or threatened release of a

hazardous substance. See § 9607(a)(4). Arranging

for disposal of such substances, in and of itself, does

not trigger CERCLA liability, nor does actual

disposal of hazardous substances.17 A release must

occur or be threatened before CERCLA is triggered.

A party that “arranged for disposal” of a hazardous

17

The terms “disposal” and “release” are each defined in

CERCLA. “Disposal” is defined by reference to RCRA

§ 6903(3), which defines “disposal” as “the discharge,

deposit, injection, dumping, spilling, leaking, or placing of

any solid waste or hazardous waste into or on any land or

water so that such solid waste or hazardous waste or any

constituent thereof may enter the environment or be emitted

into the air or discharged into any waters, including ground

waters.” CERCLA defines “release” as “any spilling, leaking,

pumping, pouring, emitting, emptying, discharging,

injecting, escaping, leaching, dumping, or disposing into the

environment ....” § 9601(22). “[F]rom these definitions, we

can conclude that ‘release’ is broader than ‘disposal,’ because

the definition of ‘release’ includes ‘disposing’ (also, it

includes ‘passive’ terms such as ‘leaching’ and ‘escaping,’

which are not included in the definition of ‘disposal’).”

Carson Harbor Vill., 270 F.3d at 878.

82a

substance under § 9607(a)(3) does not become liable

under CERCLA until there is an actual or

threatened release of that substance into the

environment. Arranging for disposal of hazardous

substances, in itself, is neither regulated under nor

prohibited by CERCLA. Further, disposal activities

that were legal when conducted can nevertheless

give rise to liability under § 9607(a)(3) if there is an

actual or threatened release of such hazardous

substances into the environment.

See Cadillac

Fairview/California, Inc. v. United States (Cadillac

Fairview/California I), 41 F.3d 562, 565-66 (9th

Cir.1994) (holding that a party that sold a product to

another party “arranged for disposal” of a hazardous

substance); Cadillac Fairview/California, Inc. v.

Dow Chem. Co. (Cadillac Fairview/California II),

299 F.3d 1019, 1029 (9th Cir. 2002) (characterizing

the

conduct

at

issue

in

Cadillac

Fairview/California I as “legal at the time”).

The location where a party arranged for disposal or

disposed of hazardous substances is not controlling

for purposes of assessing whether CERCLA is being

applied extraterritorially, because CERCLA imposes

liability for releases or threatened releases of

hazardous substances, and not merely for disposal or

arranging for disposal of such substances.18 Because

18

CERCLA is a strict liability statute, and liability can

attach even when the generator has no idea how its waste

came to be located at the facility from which there was a

release. See O’Neil v. Picillo, 883 F.2d 176, 183 & n. 9

(1st Cir.1989). The three statutory defenses enumerated in

§ 9607(b), including defenses for “an act of God,” “an act of

war,” or “an act or omission of a third party other than an

employee or agent of the defendant,” are “the only [defenses]

83a

the actual or threatened release of hazardous

substances triggers CERCLA liability, and because

the actual or threatened release here, the leaching of

hazardous substances from slag that settled at the

Site, took place in the United States, this case

involves a domestic application of CERCLA.

Our conclusion is reinforced by considering

CERCLA’s place within the constellation of our

country’s environmental laws, and contrasting it

with RCRA:

Unlike [CERCLA], RCRA is not principally

designed to effectuate the cleanup of toxic

waste sites or to compensate those who have

attended to the remediation of environmental

hazards. RCRA’s primary purpose, rather, is

to reduce the generation of hazardous waste

and to ensure the proper treatment, storage,

and disposal of that waste which is

nonetheless generated, “so as to minimize the

present and future threat to human health

and the environment.”

available, and ... the traditional equitable defenses are not.”

California ex rel. Cal. Dep’t of Toxic Substances Control v.

Neville Chem. Co., 358 F.3d 661, 672 (9th Cir. 2004). There

is no requirement that the generator of hazardous

substances intend that the waste come to be located at a

CERCLA facility. “In the case of an actual release, the

plaintiff need only prove that the defendant’s hazardous

materials were deposited at the site, that there was a release

at the site, and that the release caused it to incur response

costs.”

Carson Harbor Vill., Ltd. v. Unocal Corp.,

287 F.Supp.2d 1118, 1186 (C.D.Cal.2003) aff’d sub nom.

Carson Harbor Vill., Ltd. v. County of Los Angeles, 433 F.3d

1260 (9th Cir. 2006).

84a

Meghrig, 516 U.S. at 483, 116 S.Ct. 1251 (quoting

§ 9602(b)) (internal citation omitted).

RCRA

regulates the generation and disposal of hazardous

waste, whereas CERCLA imposes liability to clean

up a site when there are actual or threatened

releases of hazardous substances into the

environment.

It is RCRA, not CERCLA, that

governs prospectively how generators of hazardous

substances should dispose of those substances, and it

is the Canadian equivalent of RCRA, not CERCLA,

that regulates how Teck disposes of its waste within

Canada.

Here, the district court assumed, but did not

decide, that this suit involved extraterritorial

application of CERCLA because “[t]o find there is not

an extraterritorial application of CERCLA in this

case would require reliance on a legal fiction that the

‘releases’ of hazardous substances into the Upper

Columbia River Site and Lake Roosevelt are wholly

separable from the discharge of those substances into

the Columbia River at the Trail Smelter.” However,

what the district court dismissed as a “legal fiction”

is the foundation of the distinction between RCRA

and CERCLA. If the Trail Smelter were in the

United States, the discharge of slag from the smelter

into the Columbia River would potentially be

regulated by RCRA and the Clean Water Act. And

that prospective regulation, if any, would be legally

distinct from a finding of CERCLA liability for

cleanup of actual or threatened releases of the

hazardous substances into the environment from the

disposal site, here the Upper Columbia River Site.

That the Trail Smelter is located in Canada does not

change this analysis, as the district court recognized.

85a

CERCLA is only concerned with imposing liability

for cleanup of hazardous waste disposal sites where

there has been an actual or threatened release of

hazardous substances into the environment.

CERCLA does not obligate parties (either foreign or

domestic) liable for cleanup costs to cease the

disposal activities such as those that made them

liable for cleanup costs; regulating disposal activities

is in the domain of RCRA or other regulatory

statutes.

We hold that applying CERCLA here to the release

of hazardous substances at the Site is a domestic,

rather than an extraterritorial application of

CERCLA, even though the original source of the

hazardous substances is located in a foreign country.

V

We next address Teck’s only other argument—that

it is not covered by § 9607(a)(3) because it has not

“arranged for disposal ... of hazardous substances ...

by any other party or entity” because, if the facts in

the complaint are taken as true, Teck disposed of the

slag itself. Preliminarily, we note that neither

Pakootas, nor the Order, specifically allege that Teck

is an arranger under § 9607(a)(3). Rather, the Order

states that Teck is a “responsible party under

Sections 104, 107, and 122 of CERCLA, 42 U.S.C.

§§ 9604, 9607, and 9622.” UAO at 6. The parties

have, however, focused in their arguments solely on

§ 9607(a)(3).19

19

The parties have not briefed or argued whether Teck

may be liable under § 9607(a)(1), (2), or (4). We accordingly

express no opinion on whether Teck may be liable under

these subsections.

86a

Section 9607(a)(3) holds liable parties that

arranged for the disposal of hazardous substances.

It states, in relevant part, the following:

any person who by contract, agreement, or

otherwise arranged for disposal or treatment,

or arranged with a transporter for the

transport for disposal or treatment, of

hazardous substances owned or possessed by

such person, by any other party or entity, at

any facility or incineration vessel owned or

operated by another party or entity and

containing such substances ... shall be liable

for ...

certain costs of cleanup. § 9607(a)(3). We have

previously said that “neither a logician nor a

grammarian will find comfort in the world of

CERCLA,” Carson Harbor Vill., 270 F.3d at 883, a

statement that applies with force to § 9607(a)(3).

Section 9607(a)(3) does not make literal or

grammatical sense as written. It is by no means

clear to what the phrase “by any other party or

entity” refers. Pakootas argues that it refers to a

party who owns the waste; and Teck argues that it

refers to a party who arranges for disposal with the

owner. To make sense of the sentence we might read

the word “or” into the section, which supports

Pakootas’s position, or we might delete two commas,

which supports Teck’s position. Neither construction

is entirely felicitous.

Section 9607(a)(3)’s phrase “by any other party or

entity” can be read to refer to “hazardous substances

owned or possessed by such person,” such that

parties can be liable if they arranged for disposal of

their own waste or if they arranged for disposal of

87a

wastes owned “by any other party or entity.” This

would mean that a party need not own the waste to

be liable as an arranger. But it would require

reading the word “or” into the provision, so that the

relevant language would read “any person who ...

arranged for disposal or treatment ... of hazardous

substances owned or possessed by such person [or]

by any other party or entity....” We followed this

approach in Cadillac Fairview/California I, where

we said with forcible reasoning:

Liability is not limited to those who own the

hazardous substances, who actually dispose of

or treat such substances, or who control the

disposal or treatment process. The language

explicitly extends liability to persons

“otherwise arrang[ing]” for disposal or

treatment of hazardous substances whether

owned by the arranger or “by any other party

or entity, at any facility or incineration vessel

owned or operated by another party or entity.”

41 F.3d at 565 (quoting § 9607(a)(3)) (alteration in

original); see also Kalamazoo River Study Group v.

Menasha Corp., 228 F.3d 648, 659 (6th Cir. 2000)

(holding that defendant was potentially liable as an

arranger when it discharged hazardous substances

into a river).

The text of § 9607(a)(3) can also be modified to

support a different meaning, the one that Teck

advances on this appeal. Teck argues that the

phrase “by any other party or entity” refers to “or

otherwise arranged for disposal or treatment,” and

so, the argument runs, arranger liability does not

attach unless one party arranged with another party

to dispose of hazardous substances. If we accept this

88a

position, then a generator of hazardous substances

who disposes of the waste alone and with no other

participant may defeat CERCLA liability, because

the generator had not “arranged” with a second party

for disposal of the waste. But this interpretation

would appear to require the removal of the two

commas that offset the phrase “by any other party or

entity,” so that the relevant language would read

“any person who ... arranged for disposal or

treatment ... of hazardous substances owned or

possessed by such person[ ] by any other party or

entity[ ].” In Kaiser Aluminum & Chemical Corp. v.

Catellus Development Corp., 976 F.2d 1338 (9th

Cir.1992) we perhaps implicitly, albeit summarily,

suggested that this reading might be appropriate,

stating: “Nor has [Plaintiff] alleged that [Defendant]

Ferry arranged for the contaminated soil to be

disposed of ‘by any other party or entity’ under

9607(a)(3). Ferry disposed of the soil itself by

spreading it over the uncontaminated areas of the

property.” Id. at 1341; see also Am. Cyanamid Co. v.

Capuano, 381 F.3d 6, 24 (1st Cir. 2004) (“The clause

‘by any other party or entity’ clarifies that, for

arranger liability to attach, the disposal or treatment

must be performed by another party or entity, as was

the case here.”). Thus it can be argued that an

implication from Kaiser Aluminum supports Teck’s

view.

Teck’s argument relying on implication from Kaiser

Aluminum would create a gap in the CERCLA

liability regime by allowing a generator of hazardous

substances potentially to avoid liability by disposing

of wastes without involving a transporter as an

intermediary. If the generator disposed of the waste

89a

on the property of another, one could argue that the

generator would not be liable under § 9607(a)(1) or

(a)(2) because both subsections apply to the owner of

a facility; as we described above the relevant facility

is the site at which hazardous substances are

released into the environment, not necessarily where

the waste generation and dumping took place.

Liability as a transporter under § 9607(a)(4) might

not attach because transporter liability applies to

“any person who accepts or accepted any hazardous

substance for transport.” Although we do not here

decide the contours of transporter liability, one could

argue that a generator who owns hazardous

substances cannot “accept” such hazardous

substances for transport because they are already

held by the generator. We hesitate to endorse a

statutory interpretation that would leave a gaping

and illogical hole in the statute’s coverage,

permitting argument that generators of hazardous

waste might freely dispose of it themselves and stay

outside the statute’s cleanup liability provisions. We

think that was not what was intended by Congress’s

chosen language and statutory scheme.

The ambiguous phrase “by any other party or

entity” cannot sensibly be read to refer both to the

language urged by Pakootas and to that urged by

Teck in their differing theories of statutory

interpretation. In interpreting the turbid phrase and

punctuation on which the parties have vigorously

pressed contradictory theories, we necessarily

navigate a quagmire. Yet, in the face of statutory

ambiguity, § 9607(a)(3) “must be given ‘a liberal

judicial interpretation ... consistent with CERCLA’s

overwhelmingly remedial statutory scheme.’ ”

90a

Cadillac Fairview/California I, 41 F.3d at 565 n. 4

(quoting United States v. Aceto Agric. Chem. Corp.,

872 F.2d 1373, 1380 (8th Cir.1989) (alteration in

original)).

Pakootas and the State of Washington suggest that

we can resolve the inconsistent and mutuallyexclusive language in Cadillac Fairview/California I

and Kaiser Aluminum by dismissing as ambiguous or

as dicta the statement in Kaiser Aluminum that

“[n]or has [Plaintiff] alleged that Ferry arranged for

the contaminated soil to be disposed of ‘by any other

party or entity’ under 9607(a)(3).” 976 F.2d at 1341.

The argument is that it is unclear whether we meant

in Kaiser Aluminum that we did not need to reach

the question because Plaintiff had not alleged that

Ferry was an arranger, or instead that Plaintiff had

alleged that Ferry was an arranger but that we

rejected that interpretation.

We conclude that Pakootas and the State of

Washington are correct. The two sentences from

Kaiser Aluminum quoted above are the only two

sentences in that opinion to discuss arranger

liability. The opinion contains no analysis of the text

of § 9607(a)(3), and does not discuss arguments for or

against interpreting § 9607(a)(3) to require the

involvement of another party or entity for arranger

liability to attach. The ambiguous discussion of

§ 9607(a)(3) liability was not in our view a holding,

but rather a prelude to discussing why the defendant

in Kaiser Aluminum was potentially liable as an

owner of a facility under § 9607(a)(2) or as a

transporter under § 9607(a)(4). And perhaps most

importantly, the statement in question may be

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simply a description of what was not alleged by a

party, rather than our court’s choice of a rule of law.

Further, the statement in Kaiser Aluminum bears

the hallmarks of dicta. See United States v. Johnson,

256 F.3d 895, 915 (9th Cir. 2001) (en banc)

(Kozinski, J., concurring) (“Where it is clear that a

statement is made casually and without analysis,

where the statement is uttered in passing without

due consideration of the alternatives, or where it is

merely a prelude to another legal issue that

commands the panel’s full attention, it may be

appropriate to re-visit the issue in a later case.”).20

Because we view the statement in Kaiser

Aluminum as offhand, unreasoned, and ambiguous,

rather than as an intended choice of a rule, we

consider the Ninth Circuit’s law to be represented by

Cadillac Fairview/California I. And under Cadillac

Fairview/California I, the phrase “by any other

party or entity” refers to ownership of the waste,

such that one may be liable under § 9607(a)(3) if they

arrange for disposal of their own waste or someone

else’s waste, and that the arranger element can be

20

Moreover, a characterization of the statement in Kaiser

Aluminum as a dictum, or as merely reflecting the absence

of an allegation by the plaintiff, is consistent with our

preexisting circuit authority, not addressed in Kaiser

Aluminum, which had suggested that a generator could be

liable under § 9607(a)(3) even if a second party was not

involved. See Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d

1149, 1156 (9th Cir.1989) (reversing the district court’s

dismissal of Ascon’s complaint for failure to state a claim

because Ascon alleged that “the eleven oil company

defendants and four transporter defendants deposited

hazardous waste onto the property”).

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met when disposal is not arranged “by any other

party or entity.” We hold instead that Teck is

potentially liable under § 9607(a)(3), and we reject

Teck’s argument that it is not liable under

§ 9607(a)(3) because it did not arrange for disposal of

its slag with “any other party or entity.”

VI

In conclusion, we hold that the district court

correctly denied Teck’s motion to dismiss Pakootas’s

complaint for failure to state a claim, and reject

Teck’s arguments to the contrary.

Applying

CERCLA to the Site, as defined by the Order issued

by the EPA, is a domestic application of CERCLA.

The argument that this case presents an

extraterritorial application of CERCLA fails because

CERCLA liability does not attach until there is an

actual or threatened release of hazardous substances

into the environment; the suit concerns actual or

threatened releases of heavy metals and other

hazardous substances into the Upper Columbia

River Site within the United States. We reject Teck’s

argument that it is not liable under § 9607(a)(3)

because it did not arrange for disposal of hazardous

substances “by any other party or entity.”

AFFIRMED.

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APPENDIX D

_________

UNITED STATES DISTRICT COURT,

EASTERN DISTRICT WASHINGTON

_________

No. CV-04-256-LRS

December 14, 2012

_________

JOSEPH 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

Coville Reservation; and the CONFEDERATED TRIBES

OF THE COLVILLE RESERVATION,

Plaintiffs,

and

STATE OF WASHINGTON,

Plaintiff-Intervenor,

v.

TECK COMINCO METALS, LTD.,

a Canadian corporation,

Defendant.

_________

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

LONNY R. SUKO, District Judge.

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I.

BACKGROUND

Defendant Teck Cominco Metals, Ltd. (Teck) has

stipulated that it discharged slag and effluent into

the Columbia River from its smelter located in Trail,

British Columbia, Canada, and that some portion of

its slag and effluent has come to be located in the

Upper Columbia River (UCR) Site, a “facility” as

defined in the Comprehensive Environmental

Response, Compensation, and Liability Act

(CERCLA), 42 U.S.C. § 9601(9).

The UCR Site

includes the reaches of the Columbia River from

immediately downstream of the international border

to the Grand Coulee Dam.

Furthermore, Teck has stipulated that its slag

which has come to be located in the UCR Site has

leached and continues to leach hazardous substances

into the waters and sediments from and at the UCR

Site; and that hazardous substances in Teck’s

effluent have come to be located and continue to

move into and through the waters and sediments

from and at the UCR Site. Teck has stipulated that

this release or threatened release of hazardous

substances at the UCR Site has caused Plaintiff,

Confederated Tribes of the Colville Reservation

(Tribes), and Plaintiff-Intervenor, the State of

Washington (State), to incur at least $1 each in

response costs which were necessary and not

inconsistent with the National Contingency Plan.

These stipulations satisfy three of the four elements

for liability for response costs under CERCLA,

42 U.S.C. § 9607(a).

Teck contests whether it is within one of the four

classes of persons subject to the liability provisions of

§ 9607(a). Specifically, it contends that it cannot be

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held liable as an “arranger” because it did not

arrange with another party or entity for the disposal

or treatment of its hazardous substances, and that

holding it liable as an “arranger” would constitute an

improper extraterritorial application of CERCLA.

Furthermore, Teck contests whether this court has

specific personal jurisdiction over it.

The parties designated the portions of the record

they requested the court consider in adjudicating

these disputed issues (ECF Nos. 1940, 1946 and

1947). On October 10, 2012, they presented oral

argument to the court. The court has considered the

entirety of the designated record in formulating its

Findings Of Fact. The Findings Of Fact are based on

a preponderance of the evidence submitted by the

parties and are otherwise based on the parties’

Stipulation (ECF No. 1928).

All objections to

exhibits cited in the Findings Of Fact are

OVERRULED for the reasons specified in Ex. A to

ECF No. 1946. All objections to deposition testimony

cited in the Findings Of Facts are OVERRULED for

the reasons specified in Ex. 1 to ECF No. 1699 (ECF

Nos. 1699-1, 1699-2 and 1699-3). To the extent

objections have been registered to those portions of

expert declarations cited in the Findings Of Fact,

ECF Nos. 1726 (Bierman); 1728 (McLean); 1732

(Queneau); 1746 (Vlassopolous); and Higginson (ECF

Nos. 1744 and 1765), those objections are

OVERRULED.

At the October 10, 2012 oral argument, the

Plaintiffs and Defendant registered objections to

certain Findings of Fact and Conclusions of Law

proposed by the other. The court has considered

those objections and it should be apparent which

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objections the court has sustained and which it has

overruled.

II.

FINDINGS OF FACT

A.

PERSONAL JURISDICTION AND

COVERED PERSON/ ARRANGER

STATUS

1. Teck is a Canadian corporation registered as

an extra provincial company under the laws of

British Columbia.

All references to “Teck”

incorporate its predecessor entities. ECF 1928 ¶ 10.

2. Teck’s metal and fertilizer production facilities

are collectively referred to herein as the “Trail

Smelter” and are located in Trail, B.C., Canada,

approximately 10 miles upstream from the U.S.Canada border. ECF 1928 ¶ 11.

3. Teck and its predecessors have operated metal

and/or fertilizer production facilities at Trail since

1896. ECF 1928 ¶ 12.

4. The Trail Smelter produced slag as a byproduct of high-temperature recovery of metals.

Teck’s slag consists primarily of silica, lime and iron,

as well as base metals, including zinc, lead, copper,

arsenic, cadmium, barium, antimony, chromium,

cobalt, manganese, nickel, selenium and titanium.

ECF 1928 ¶ 13.

5. Between 1930 and 1995, Teck discharged at

least 9.97 million tons of slag directly into the

Columbia river via outfalls at its Trail smelter. This

discharge was intentional.

ECF 1928 ¶ 14.

According to Teck’s General Manager of Lead

Operations,

Wayne

Wyton,

Teck

discarded

approximately 400 tons of slag directly into the

Columbia River every day. Dep. of Wyton, 6/30/10,

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at 23-24, 69. See Ex. 150 (Dep. of William Duncan,

7/22/10, at 239, referring to dep. ex. 248) (Teck

scientist estimates discharges of 400 tons per day).

See also, Ex. 185, p. 1.

(Kenyon dep. at 172,

referring to dep. ex. 176.) Teck concedes the 9.97

million tons of slag discarded into the river contained

7,300 tons of lead and 255,000 tons of zinc.

(Higginson, ECF 1631, ¶¶ 15, 118). Teck knew that

the waste slag contained metals. Ex. 138 at 2, 5 & 6

(Duncan dep. at 59-69 (referring to dep. ex. 224);

Ex. 175 at 9 (Kenyon dep. at 99-101, referring to dep.

ex. 165); Ex. 185 (Kenyon at 172, referring to dep.

ex. 176); Ex. 189, (Kenyon at 208-210, referring to

dep. ex. 187).

6. At least 8.7 million of the at least 9.97 million

tons of slag discharged by Teck from its Trail

Smelter has been transported by the Columbia River

downstream of the international border into

Washington, and some portion of that slag has come

to be located at the UCR Site. ECF 1928 ¶ 17.

7. In addition to slag, Teck’s Trail Smelter

generated waste as effluent. The term “effluent”

means all non-slag discharges of waste by Teck,

excluding air emissions. Effluent was generated by

numerous processes over a century of operation,

including copper smelting and refining, lead smelting

and refining, silver refining, an antimonial lead

plant, a bismuth refinery, zinc operations (which

included roasting, calcine leaching, fume leaching,

electrolysis, melting and casting, cadmium recovery,

and the acid plants) and production of fertilizer.

ECF 1928 ¶ 15.

8. Teck discharged effluent via outfalls at the

Trail Smelter directly into the Columbia River. The

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discharged effluent contained lead, zinc, cadmium,

arsenic, copper, mercury, thallium, and other metals,

as well as a variety of other chemical compounds.

The components of effluent were discharged in

dissolved, colloidal, and particulate form.

This

discharge was intentional. ECF 1928 ¶ 16. Teck

concedes the effluent discarded into the Columbia

River from 1923-2005 contained approximately

132,000 tons of hazardous substances, including

108,000 tons of zinc, 22,000 tons of lead, 200 tons of

mercury, 1,700 tons of cadmium, and 270 tons of

arsenic. Higginson, ECF 1631, ¶ 118. Teck knew

that its discarded effluent contained at least lead,

zinc, cadmium, arsenic, copper, and mercury. Wyton

dep. at 34. And see Ex. 178 (identifying metals in

outfalls), (Kenyon dep. at 139-146, referring to dep

ex. 158). Ex. 152 (Duncan dep. at 241-245, referring

to dep. ex. 250); Ex. 169 at 39-48, (Kenyon dep. at 40,

referring to dep. ex. 159); Ex. 175, (Kenyon dep. at

99-101, referring to dep. ex. 165).

9. Nearly all of Teck’s effluent that was

discharged via its outfalls at the Trail Smelter has

been transported by the Columbia River downstream

of the international border into Washington, and at

least some portion of it has come to be located at the

UCR Site. ECF 1928 ¶ 18.

10. There is a single flow path directly from Teck’s

Trail smelter to the United States.

Bierman,

ECF 1624, ¶ 17. The Columbia River between Trail

and the international border has ample power to

mobilize and suspend slag particles even at

moderate, average flows. McLean, ECF 1635, ¶ 52.

The river has the capacity to transport slag, either in

suspension or as bed load, in a wide range of flow

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conditions. McLean, ECF 1635, ¶ 53. Based on the

river water’s velocity in this reach, most sand-sized

sediment (including most slag) behaves as wash load,

maintained continuously in suspension without

depositing on the river bed until it reaches a point of

repose in the UCR Site. See McLean, ECF 1635,

¶ 50. The river’s capacity to transport slag means

that the river also has the capacity to transport

Teck’s sewer effluent. McLean, ECF 1635, ¶ 36.

11. The transport of slag-sized sediment in the

Columbia River at Trail is supply-limited because

the river’s capacity to transport the material is much

greater than the amount that is being supplied. As a

result, the slag has been swept off the river bed

surface, exposing the coarse natural cobble and

gravel river bed material. McLean, ECF 1635, ¶ 54.

12. During sediment transport in the gravel and

cobble environment of the Upper Columbia River,

slag particles are subject to the same abrasive forces

and break down creating smaller particles that are

more easily transported and creating new fresh

surfaces that are exposed to the flow. McLean,

ECF 1635, ¶ 48. Teck’s own slag study in 1991

confirmed this. Ex. 217 (Kuit dep. at 194, referring

to dep. ex. 22; Ex. 244 (McKay dep. in LMI, 7/16/10

at 94, referring to dep. ex. 70). In some locations,

river dynamics in the UCR Site cause slag to float on

the river surface. Exs. 643, 646.

13. The Grand Coulee Dam has an impact on

sedimentation within the Upper Columbia River. As

the river transforms from free-flowing to reservoir,

Teck’s slag and effluent are deposited in the

downstream direction, with the sand-sized and siltsized particles deposited near the upstream end and

100a

the finer silt-sized and clay-sized deposited near the

dam. McLean ECF 1635, ¶ 30. Bierman, ECF 1624,

¶¶ 13, 44. Vlassopoulos, ECF 1664, ¶ 164.

14. Teck’s Trail leadership assumed that both slag

and effluent went downstream, across the border and

into Lake Roosevelt. Dep. of Wayne Wyton, 6/30/10,

at 74-75, 137. Unlike Mr. Wyton, Teck employees

generally claimed that they did not know where the

slag went after it was discarded into the Columbia

River, e.g. Dep. of Kenyon at 218-219.

Teck’s

documents indicate otherwise. They confirm that for

decades its leadership knew its slag and effluent

flowed from Trail downstream and are now found in

Lake Roosevelt and, nonetheless, Teck continued

discharging wastes into the Columbia River.

15. As early as the Trail arbitration in the 1930s,

Teck knew that the United States had observed slag

on the beaches of the Columbia River north of

Northport (near the Canadian border). Ex. 226,

pp. 5,6,11-14 ((Dep. of Walter Kuit in insurance

coverage law suit (“LMI”), 2/23/11, at 46-49, referring

to dep. ex. 3)) The United States explained in its

filing that “[t]he trail smelter disposes of slag in such

a manner that it reaches the Columbia river and

enters the United States in that stream.” Ex. 225,

(Kuit dep., 2/23/11, at 44:10-12, referring to dep.

ex. 2). Walter Kuit, testifying in a Rule 30(b)(6)

deposition described these allegations by the

U.S. government as “a description of “the practice”

and confirmed that it is “consistent with [Teck’s1]

understanding of Teck’s and its predecessor’s

practice.” Id. 45:5-10.

1

Kuit was testifying as Teck’s speaking agent.

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16. In 1974, Teck documents confirmed its

understanding that its disposal of granulated slag in

the Columbia River “settles out” in Lake Roosevelt.

Ex. 212, (Kuit dep., 6/8/10 at 124, referring to dep.

ex. 9) (“The action of the river will reduce the slag to

silt which will carry down to Roosevelt Lake and

accumulate in the lake bottom together with

naturally occurring silt.”) Studies done in the 1970s

by Canadian regulatory authorities (and known to

Teck) found elevated content in the Columbia River.

See Exs. 241 (Kootenay Air and Water Quality Study

Phase I and II). (Dep. of Douglas McKay in LMI,

7/16/10, at 57-59, 63, 64, 66, referring to dep. ex. 64)

and 242.

17. By the 1980’s, Teck recognized its discharges

were having impacts in the Upper Columbia River.

Teck’s Manager of Environmental Control, Nigel

Doyle, authored a summary of Environmental

Control at Cominco Ltd. and noted that samples

taken downstream of the Trail facility showed that

metals were leaching from Teck’s slag. He also noted

an absence of aquatic life and observed that may in

part be due to metals in Teck’s slag and the abrasive

effect of “constantly moving slag.” Ex. 163, pp. 43-44.

See also table 8-16, p. 161. (Dep. of Mark Edwards in

LMI, 6/17/10, at 141-142, referring to dep. ex. 8.)

18. At approximately the same time, in 1981, Teck

recognized that it faced potential claims based on its

disposal of its wastes in the Upper Columbia River

and Lake Roosevelt. A risk analyst employed by

Teck, Jeffrey T.G. Scott, commented in a written

memorandum:

[t]he primary potential for environmental

damage and subsequent claims [at Trail] is the

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discharge of pollutants to the Columbia

River....

Any incr

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