Opposition Brief — Teck Cominco Metals, Ltd. v. Pakoototas (No. 06-1188)

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IN THE

Supreme Court of the United States

TECK COMINCO METALS, LTD.,

a Canadian corporation,

Petitioner,

Vv.

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 Colville Reservation;

STATE OF WASHINGTON,

Respondents.

On PETITION FOR A Writ OF CERTIORARI TO THE

Unitep States Court OF APPEALS FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION FOR RESPONDENTS

JOSEPH A. PAKOOTAS AND DONALD R. MICHEL

RICHARD A. Du Bey

Pau J. DayTon*

DANIEL F. JOHNSON

SHORT CRESSMAN & Burcess PLLC

999 Third Avenue, Suite 3000

Seattle, WA 98104

(206) 682-3333

Counsel for Respondents

Joseph A. Pakootas and

* Counsel of Record Donald R. Michel

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COUNSEL FROSS

(800) 274-3321 + (ROY) 359-58s?

TABLE OF CONTENTS

Table of Cited Authorities ....................

Summary of Reasons to Deny the Petition .......

seatement Of the Case .......ccccccccccccevees

Reasons for Denying the Petition...............

A. The Court of Appeals Correctly Held That an

B.

Action to Remedy Domestic Conditions at a

Domestic Site Is a Domestic Application of

CC Cictebeguesvcevevesdeeeoees

1. EPA’s Remediation of a Domestic Waste

Site Is a Domestic Application of

Cees hdwecebeseerececesece

2. CERCLA Liability Is Triggered by a

Release, not by Disposal. ...........

3. Petitioner’s New Argument on Disposal

Was Not Presented to the Courts Below

and Is Not Supported by Any Precedent.

eee nrae eee eer ese ese eeeeae@ee@asesreeee ee 8

The Ninth Circuit’s Application of United

States Law to This Domestic Condition Does

Not Raise Any Comity Concerns. ........

Application of United States Law to Remedy

Domestic Conditions Does Not Implicate

the Presumption Against Extraterritorial

Enforcement of U.S. Law. ..............

14

17

il

Contents

Page

D. Teck Cominco’s Argument On Arranger

Liability Is Not Ripe For Supreme Court

I, Guat venduckaee suede eenoarens 23

E. The Court of Appeals’ Decision Creates No

SMS cneanocevcaesvecseyeeeu cea 24

Nn a a bee ee 29

ili

TABLE OF CITED AUTHORITIES

Page

Cases:

3550 Stevens Creek Assocs. v. Barclays Bank,

phe © Bk ag fee, | 9

ABB Indus. Sys., Inc. v. Prime Tech., Inc.,

yo) hy Ls Bren re 13

American Banana Company v. United Fruit Company,

ee Ss PEE ki dcNoxceeeureovensesese 19

American Cyanamid Co. v. Capuano,

pee Ee: ae ay | ee ere passim

Arc Ecology v. U.S. Dep’t of the Air Force,

411 F.3d 1092 (9th Cir. 2005) ............... 8, 20

Beaulieu v. United States,

Ge Bhs CRUD ov cece ccvecscessecnss 29

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

OE Fie Fee Cre es FSD cc cc cevancseesves 24

Canron, Inc. v. Federal Ins. Co.,

918 P.2d 937 (Wash. App. 1996) ............. 7

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

ye. § Bw LT. Ly Ry |) ) 13

Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp.,

RR Re te errr pe errr err re 16

iv

Cited Authorities

Page

Containerport Group, Inc. v. Am. Fin. Group, Inc.,

128 F. Supp. 2d 470 (S.D. Ohio 2001) ........ 9

Dedham Water Co. v. Cumberland Farms Dairy,

889 F.2d 1146 (Ist Cir. 1989) ............... 9

Dent v. Beazer Materials and Servs., Inc.,

993 F. Supp. 923, (D.S.C. 1995),

aff'd, 133 F.3d 914 (4th Cir. 1998) ........... 12

EEOC v. Arabian Am. Oil Co.,

499 U.S. 244 (1991) ............. apr nei 17

Envtl. Def. Fund, Inc. v. Massey, .

900 F206 S28 COC. Cir. TGGS) onc cnvcveceunves 20

F. Hoffman-La Roche Ltd. v. Empagran S.A.,

Be ae Be CD oe bce veka ee aeaenede san passim

Foley Bros. v. Filardo,

ee es EE HUD 94 0004 e003 4405 bees 17

Gen. Elec. Co. v. AAMCO Transmissions, Inc.,

DGS P28 Ze) CE CU. TPE) oc ccc scevsecwens 10

Gen. Elec. Co. v. Litton Indus. Automation Sys.,Inc.,

920 F.2d 1415 (8th Cir. 1990) ............... 7

GenCorp, Inc., v. Olin Corp.,

390 F.3d 433 (6th Cir. 2004) .............. 25, 28-29

Hartford Fire Ins. Co. v. California,

De es Fe COPOE v5s 4 6000s cae neusaseunes passim

Cited Authorities

Page

In re Hemingway Transp., Inc.,

993 F.2d 915 (Ist Cir. 1994) ............. ees 12

In re Simon,

153 F.3d 991 (9th Cir. 1998) ................ 20

Int’l Paper Co. v. Ouellette,

sD os ony oe viewed e5'ee wenn 16

Kahn v. Juniper Dev. Grp.,

eS ee 12

Kaiser Aluminum & Chem. Corp.

v. Catellus Development Corp.,

976 F.2d 1338 (9th Cir. 1992) ............. 12, 24-25

Key Tronic Corp. v. United States,

PEE PENNE co veweeviecv cet evccebees 21

Laker Airways, Ltd. v. Sabena,

Belgian World Airlines,

pis Go fyi: Sod | | passim

Massachusetts v. EPA,

i eee a ae, POO CMOT) acccseceess 15

Meghrig v. KFC W., Inc.,

DP PEI cédcvsavevevanvsesenves 7

Microsoft Corp. v. AT&T Corp.,

550 U.S. __, No. 05-1056, slip op.

SI HU ED sack cccvecsscsscessvesersss 18

vi

Cited Authorities

Page

Morton Int'l, Inc., v. A. E. Staley Mfg. Co.,

DED F306 Gor CSE CAR, BOSD occ cccccccsccces 26, 29

Murray v. Schooner The Charming Betsy,

6 U.S. (2 Cranch) 64 (1804) ................. 22

Nat’! R.R. Passenger Corp.

v. New York City Hous. Auth.,

819 F. Supp. 1271 (S.D.N.Y. 1993) ........... 27

New Jersey Turnpike Auth. v. PPG Indus., Inc.,

fg A i fk oe | Peer ere re rerrire 10

New York v. Shore Realty Corp.,

Tae F268 BOSE (26 Cis. I9GS) nec ccevccccees 7,10

Nurad, Inc. v. William E. Hooper & Sons Co.,

966 F.2d 837 (4th Cir. 1992) ............40.. 13

Ohio v. Wyandotte Chems. Corp.,

gt OS). ) er ee 16

Pravin Banker Assocs. Ltd.

v. Banco Popular Del Peru,

109 F.3d SSO G6 Cot. 19F7) oc ccccsvccccucess 16

Rice v. Sioux City Memorial Park Cemetery,

De ey PRED dug bu vciaunsseneveeaes be 29

Schoenbaum v. Firstbrook,

405 F.26 200 (246 Civ. 1966). 0... ccc cccccccss 20

vil

Cited Authorities

Small v. United States,

SOG Ls ee ED 6 tox'o as ceveusssseseeen

Smith v. United States,

See as BT CHD bcncdedenveccesesseren

Société Nationale Industrielle Aérospatiale

v. United States District Court for the

Southern District of lowa,

SEs Ua DER CEPT) 4680s owes sh 040 14e eens

Spector v. Norwegian Cruise Line, Ltd.,

SES US. FUP GHEE 604-05 «440 05 cent eeanet

State of Colorado v. Idarado Mining Co.,

707 F. Supp. 1227, amended by 735 F. Supp. 368

(D. Colo.), rev'd on other grounds 916 F.2d 1486

CHG GAR. TOG a cc ccvevses 6uvessesdbunsen

Steele v. Bulova Watch Co.,

Tamari v. Bache & Co. (Lebanon) S.A.L.,

730 F.2d 1103 (7th Cir. 1984) ...............

Tanglewood East Homeowners

v. Charles-Thomas, Inc.,

849 F.2d 1568 (Sth Cir. 1988) ............6.5.

Turner Entn't Co. v. Degeto Film GmbH,

25 F.36 1512 (Lith Cir, 199E) on cc cveveccvees

Page

17

14

21

vill

Cited Authorities

Page

United States v. 150 Acres of Land,

204 F.3d 698 (6th Cir. 2000) ..............4. 13

United States v. Alcan Aluminum Corp.,

964 F.2d 252 (3d Cir. 1992) ............-00e, 1]

United States v. Aluminum Co. of Am.,

148 F.2d 416 (2d Cir. 1945) .. 0... eee eee 19

United States v. CDMG Realty Co.,

96 F.3d 706 (3d Cir. 1996) ............06005, 13

United States v. Corey,

232 F.3d 1166 (9th Cir. 2000) ............... 17, 19

United States v. lron Mountain Mines, Inc.,

881 F. Supp. 1432 (E.D. Cal. 1995) .......... 11

United States v. Ivey,

26 O.R. 533 (Gen. Div. 1995)

aff’d 30 O.R. 3d 370 (C.A. 1996) ............ 8

United States v. Ivey,

747 F. Supp. 1235 (E.D. Mich. 1990) ......... 7-8

United States vy. Monsanto Co.,

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

cert. denied, 490 U.S. 1106 (1989) ........... 10

United States vy. Northeastern Pharm. & Chem. Co.,

810 F.2d 726 (8th Cir. 1986) .........002.... 25, 29

ix

Cited Authorities

Page

United States v. Shell Oil Co.,

294 F.3d 1045 (9th Cir. 2002) ............... 25

United States v. Vertac Chem. Corp.,

SO F.36 GES GE Cat. 1FGS) cc ccccccccccveves 29

Wildenhus’s Case,

ED. o.tcecdsandeeseeneekeuse4 22

Statutes:

EE Bid oe oud kepnksececdescensasunee 15

Be ae SED kbp dvuvewenesdererenieees 24

SEs SEED couse decnesccvedscteces 9,10

Se ae ED ced ebebendacdacenseetenss 9,21

ees ED odes baeesecee¥eunuetandia ae

Se ee ED nc centeabecencoueseeves 9

Oe as I. hss 46 wecuuwnd dvcunee 4,9

GE UB SO | bocce sa rdcvevdestveesetsus 7,9, 28

Ce Es Oe ED 6-0 neseeceedeeuceestens passim

Oe Thee Se PTD cee ccc enceseetsiuvsnewen 1!

42 U.S.C. § 9613(b) ....... PE er Pr iskae a 18

GE VBA. BPS GE) cece ctecccccvtceversetees 4,18

x

Cited Authorities

Page

Rules:

Se GG REE ctcccedscecdecdccvneunts 18

SR ee eer re 29

Other Authorities:

Brief of Federal Appellees, Arc Ecology v. U.S. Dep't

of the Air Force, 2004 WL 1935956 (9th Cir. 2004)

ON rrr ers ee rer ree 8

F. Anderson, et al., Environmental Protection: Law

gg RE 7

F-J.E. Jordan, Great Lakes Pollution: A Framework

for Action, 5 Ottawa L. Rev. 65 (1971-72) ..... 17

Justice Stevens, Some Thoughts on Judicial Restraint,

66 Judicature 177 (1982) ............200 eee 30

Michael Robinson-Dorn, Trail Smelter: Is the Past

Prologue? EPA Blazes a New Trail for CERCLA,

22,4 6)8 Sei, | eer 28

Restatement (Second) of Foreign Relations Law

fF ee ree ee ee 11, 23

Restatement (Third) of Foreign Relations Law of the

Celta, Bambee (SSSI) oo cv ec ccinsdescccccss 14, 25, 22

]

SUMMARY OF REASONS

TO DENY THE PETITION

The Ninth Circuit decided a narrow question: Whether an

action to enforce an EPA order for remediation of hazardous

waste that was released into the environment in the United States

was a domestic application of law even though the object of the

order was a Canadian company. Petitioner Teck Cominco has

cited no case or authority that contradicts the court’s conclusion

on that question. The only argument it offers now—that

CERCLA requires a “disposal” of hazardous substances at the

same facility from which they were ultimately “released,” and

that the only “disposal” in this case occurred solely in Canada—

was never even considered by the Ninth Circuit because Teck

Cominco has never asserted it before, in any court; nor is it

supported by any case authority. The thrust of Teck Cominco’s

Petition—that CERCLA does not apply to it because it

commenced its disposal of hazardous waste in Canada—does

not answer the Ninth Circuit’s analysis or take account of the

harm to U.S. territory its mining waste has caused. Because the

EPA’s order concerns solely domestic conditions, Congress

clearly intended CERCLA to apply.

Teck Cominco’s alternative argument—that by its terms

~ CERCLA does not apply to generators of hazardous substances

who unilaterally dump their waste on another person’s

property—was also poorly developed below. Teck Cominco did

not seek dismissal on this basis in the district court, and cited

no authority for its position in the Court of Appeals until just

before oral argument, in a letter to the panel. That authority

does not conflict with the Ninth Circuit’s decision, and no case

supports Teck Cominco’s position, which would create an

illogical and clearly unintended loophole in CERCLA’s

comprehensive liability scheme.

There is no basis to grant certiorari in this case.

2

STATEMENT OF THE CASE

For at least 100 years, Teck Cominco and its predecessors

have owned and operated an integrated mining, minerals

processing, smelting, refining, and metals marketing operation

located on the banks of the Columbia River in Trail, British

Columbia, just ten river miles north of the Canadian border

with Washington State. The Trail smelter is the largest lead

smelting facility in the world. For most of its history, through at

least the mid-1990s, Teck Cominco disposed of the byproduct

of the smelting process, known as “slag,” by simply dumping it

into the Columbia River. Teck Cominco’s “slag” includes many

substances considered hazardous to human health and the

environment, including arsenic, cadmium, copper, mercury, lead,

and zinc. Teck Cominco dumped hundreds of thousands of tons

of raw slag into the Columbia every year for approximately 90

years, and that slag flowed south over the border into the United

States. Appendix to Petition (Pet. App.) at 72a.

About 15 river miles south of the border, the Columbia

River becomes characteristic of a lake or reservoir due to the

Grand Coulee Dam, and is known as Franklin D. Roosevelt

Lake, or “Lake Roosevelt.” Pet. App. at 69a-70a. Spanning

approximately 130 miles in length, Lake Roosevelt attracts more

than a million recreational visitors per year and comprises a

major economic resource for the surrounding area. Pet. App. at

70a. The lake is used for fishing, boating, and swimming and is

habitat to a variety of fish, plant, and other aquatic species. /d.

Respondents Pakootas and Michel are members of the

Confederated Tribes of the Colville Reservation (“Colville

Tribes”) and live within the exterior boundaries of the

reservation, which includes land along the Upper Columbia

River. Pet. App. at 70a. They fish and recreate in the Upper

Columbia River and Lake Roosevelt, and as members of the

Colville Tribes they have expressly reserved hunting, fishing,

and gathering rights and entitlements to use the Upper Columbia

River and Lake Roosevelt. /d. Their use of the River and Lake

3

are Of central importance to their subsistence, culture, and

spiritual well-being. Pet. App. at 109a.

After state and federal agencies issued several studies and

health advisories concerning the presence of hazardous

substances in the Upper Columbia and Lake Roosevelt (the

“Site”), the Colville Tribes in August 1999 petitioned the U.S.

Environmental Protection Agency (“EPA”) to assess the threat

of these substances to human health and the environment. Pet.

App. at 70a. EPA conducted a site assessment at the Site from

October 1999 to March 2003. Pet. App. at 70a-7 La. It concluded

that the Site contained numerous substances that are known to

be hazardous to human health and the environment. Pet. App.

at 71a. EPA determined Teck Cominco to be a “responsible

person” under CERCLA. The evidence showed with scientific

certainty that Teck Cominco was the predominant source of

contaminants at the Site. Pet. App. at 72a. EPA considered the

contanmunation sufficiently serious to warrant ranking on the

National Priorities List. Jd. Teck Cominco has cited no Canadian

environmental law that applies to the Site, and no entity or

government has sought to invoke Canadian law or any treaty to

remedy the conditions at the Site.

Based on its site assessment results, EPA determined that

Teck Cominco was responsible for the costs of further

investigation and remediation at the Site. Pet. App. at 76a. It

further foynd that the presence of Teck Cominco’s hazardous

waste at the Site constituted actual or threatened releases of

hazardous substances into the environment for which it was

responsible under CERCLA. /d. Teck Cominco’s United States

subsidiary had extended discussions concerning the required

investigation and clean up at the Site. Pet. App. at 73a. After

“months of inconclusive discussions and ambiguous

commitments” from Teck Cominco and its subsidiary, EPA

concluded that Teck Cominco would not voluntarily cooperate,

ended the negotiations and, in December 2003, issued a

Unilateral Administrative Order (“Order”) under CERCLA

ordering Teck Cominco to prepare a remedial investigation and

4

feasibility study (“RI/FS”) for the Site. Pet. App. at 73a, 80a-

81a; 42 U.S.C. § 9606(a). In issuing the Order, the United States

determined that CERCLA applies to Teck Cominco’s

contamination of the Site.

Teck Cominco refused to comply with the Order. On July

21, 2004, respondents filed suit in the United States District

Court for the Eastern District of Washington, seeking declaratory

and injunctive relief requiring Teck Cominco to comply with

the EPA’s Order. Pet. App. at 73a-75a, 105a-112a; See 42 U.S.C.

§ 9659. The State of Washington intervened as of right on the

side of respondents. Pet. App. at 113a-119a. Neither the United

States nor Canada intervened.

On August 26, 2004, Teck Cominco filed a motion to

dismiss, claiming the district court (a) lacked subject matter

jurisdiction because CERCLA does not apply to a Canadian

polluter; and (b) lacked personal jurisdiction over Teck

Cominco. Teck Cominco did not directly challenge application

of the “arranger” provision in CERCLA and did not argue, as it

does here, that “disposal” must occur at the same “facility” from

which there is a “release.” After briefing and oral argument, the

district court denied Teck Cominco’s motion in an order dated

November 8, 2004. Pet. App. at 59a.

The district court held that it had personal jurisdiction over

Teck Cominco based on the allegations that Teck Cominco’s

pollution of the Site “is an intentional act aimed at the State of

Washington,” which “causes harm which defendant knows is

likely to be suffered downstream by the State of Washington

and those individuals, such as [respondents], who fish and

recreate in the Upper Columbia River and Lake Roosevelt.”

Pet. App. at 31a-35a. Teck Cominco has not challenged this

ruling of the district court.

The district court also ruled that it had subject matter

jurisdiction and that CERCLA applied because Congress

intended that CERCLA provide a means of addressing hazardous

waste sites within the United States, and Teck Cominco’s

hazardous substances created such a site within the United

5

States. Pet. App. at 37a. It found Teck Comince could be liable

as an “arranger” under CERCLA section 107(a)(3) without

having utilized a third party to dispose of its waste. Pet. App. at

47a-50a. Teck Cominco sought and was granted interlocutory

review by the United States Court of Appeals for the Ninth

Circuit.

The appeal was extensively briefed to the Ninth Circuit

with multiple amicus briefs filed on behalf of each side. The

United States did not seek leave to file an amicus brief. Again,

Teck Cominco never made the argument that “arranger” liability

requires disposal at the same facility from which there is a

release. Nor did it cite any cases in its brief supporting its

assertion that “arranger” liability requires disposal “by [an] other

party or entity.” Teck Cominco first cited American Cyanamid

Co. v. Capuano, 381 F.3d 6 (1st Cir. 2004), on which it now

relies for evidence of a circuit split on this issue, in a November

22, 2005 letter to the Ninth Circuit — less than two weeks before

oral argument.

After oral argument, and just two months before the panel

issued its decision affirming the district court, EPA and Teck

Cominco entered into a private agreement under which Teck

Cominco agreed to a CERCLA-like investigation and feasibility

study and EPA agreed to withdraw its Order. Respondents are

not party to the agreement. Teck Cominco has not sought any

relief in the district court based on that agreement and it advised

the Ninth Circuit that the settlement did not moot the case or

the appeal. Pet. App. at 9a, n.10.

A panel of the Ninth Circuit issued a unanimous decision

on July 3, 2006, affirming the district court. Pet. App. at la-

28a. The panel held that EPA’s Order did not involve

extraterritorial application of CERCLA because it concerned a

facility located entirely within the United States and a CERCLA

release — the leaching of hazardous substances from Teck

Cominco’s slag — occurred at the Site in the United States.

Pet. App. at 15a. In addition, the Ninth Circuit panel reasoned

that Teck Cominco could be liable as an “arranger” under

6

42 U.S.C. § 9607(a)(3), rejecting Teck Cominco’s argument

that CERCLA requires the involvement of another party.

42 U.S.C. § 9607(a)(3). Pet. App. at 28a.

On July 17, 2006, Teck Cominco filed a petition for panel

rehearing and rehearing en banc, asserting that the panel decision

(a) conflicted with a First Circuit opinion regarding “arranger”

liability under CERCLA section 107(a)(3); and (b) raised a

question of exceptional importance regarding the application

of CERCLA to a foreign corporation. On October 30, 2006,

after briefing by respondents, the State of Washington, and amici

for both sides, the Ninth Circuit denied Teck Cominco’s petition:

“The full court has been advised of the Petition for Rehearing

En Banc and no judge of the court has requested a vote on the

Petition for Rehearing En Banc.” Pet. App. at 61a.

REASONS FOR DENYING THE PETITION

A. The Court of Appeals Correctly Held That an Action to

Remedy Domestic Conditions at a Domestic Site Is a

Domestic Application of CERCLA.

This case concerns responsibility for the domestic cleanup

of a domestic hazardous waste Site. Teck Cominco generated,

owned, and disposed of hazardous waste which, in the

President’s considered judgment, poses a threat to the domestic

environment. App. At 75a-76a. Teck Cominco’s focus on the

“disposal activities” it commenced in Canada misconceives the

scope and application of CERCLA. Congress enacted CERCLA

to ensure prompt and effective cleanup of hazardous waste that

threatens human health and the environment, not to regulate

disposal of such waste. The waste and the cleanup at issue in

this case are in the United States, not in Canada. If U.S. law

does not govern, no law does. The Ninth Circuit correctly found

CERCLA’s application in this case was a domestic application

of the law. Pet. App. at 22a.

7

1. EPA’s Remediation of a Domestic Waste Site Is a

Domestic Application of CERCLA.

CERCLA’s two main objectives are to ensure “prompt

cleanup” of hazardous waste sites and to “impos[e] all cleanup

costs on the responsible party.” Gen. Elec. Co. v. Litton Indus.

Automation Sys., Inc., 920 F.2d 1415, 1422 (8th Cir. 1990),

quoted in Meghrig v. KFC W., Inc., 516 U.S. 479, 483 (1996).

CERCLA’s liability regime focuses on the site, or “facility,” at

which hazardous wastes have “come to be located,” not the

place where the wastes were originally produced. See 42 U.S.C.

§§ 9607(a), 9601(9). The statute does not even mention the

location from which the hazardous substances originated,

because the location of the source is irrelevant to its remediation

goal. See New York v. Shore Realty Corp., 759 F.2d 1032, 1040

(2d Cir. 1985) (CERCLA applies “primarily to the cleanup of

leaking inactive or abandoned sites and to emergency responses

to spills.”) (quoting F. Anderson, et al., Environmental

Protection: Law and Policy 568 (1984)). Its remedial scheme is

not concerned with environmental regulation, but with

environmental remediation. See Meghrig, 516 U.S. at 483

(contrasting CERCLA’s focus on cleaning up waste with

RCRA’s focus on ongoing and future releases). The sole concern

of CERCLA is to hold the responsible parties accountable to

clean up the Site at issue. That Site is in the United States.

The fact that Teck Cominco happens to reside in Canada is

incidental to the application of CERCLA in this case. Had Teck

Cominco sent its hazardous substances across the border by

rail or truck and dumped them into the Upper Columbia River

Site on the U.S. side of the border, there is no doubt that

CERCLA would apply and Teck Cominco would be responsible

for the costs of investigation and remediation at the Site.

See, e.g., Canron, Inc. v. Federal Ins. Co., 918 P.2d 937, 939

(Wash. App. 1996) (describing case in which CERCLA was

applied to Canadian company to recover cleanup costs at

property in Washington State to which it had “shipped” its waste

products from Canada); United States v. Ivey, 747 F. Supp. 1235

8

(E.D. Mich. 1990) (Canadian former owner of Michigan waste

Site liable under CERCLA); see also United States v. Ivey, 26

O.R. 533 (Gen. Div. 1995) aff’d 30 O.R. 3d 370 (C.A. 1996)

(Canadian court enforced U.S. judgment against Canadian actor

under CERCLA). Teck Cominco does not deny that application

of CERCLA in such a situation is appropriate.’ Teck Cominco’s

use of an international waterway to dispose of its wastes in the

United States should be treated no differently. The natural and

inevitable consequence of Teck Cominco’s discharge of

hazardous substances into the river in Canada was that they

would be released into the environment in the United States.

The Ninth Circuit correctly concluded that CERCLA applies to

this domestic release.

The Ninth Circuit has confronted a case which did call for

application of CERCLA to foreign territory, and rejected such

application. Compare Arc Ecology v. U.S. Dep’t of the Air Force,

411 F.3d 1092, 1098 (9th Cir. 2005) (addressing extraterritorial

reach of CERCLA in context of case seeking cleanup of former

military base located in Philippines). In that case, as party

defendant, the United States confirmed the position it has taken

in the EPA’s Order in this case, Pet. App. at 75a-76a, that when

a foreign party releases a hazardous substance across the

Canadian border into the United States, as Teck Cominco did

here, EPA’s imposition of liability under CERCLA “‘is riot an

extraterritorial application of CERCLA because EPA is

addressing a release into the environment in the United States.”

Brief of Federal Appellees at 18 n.2, Arc Ecology v. U.S. Dep't

of the Air Force, 2004 WL 1935956 (9th Cir. 2004) (No. 04-

15031).

1. For this reason, its reliance on Small v. United States, 544 U.S.

385 (2005), for the propositi»n that CERCLA’s express application to

“any person” who meets the requirements for liability should not

be construed to include “foreign persons” is illogical. CERCLA

undoubtedly applies to foreign persons who place their hazardous

substances in the U.S. environment, and Small’s analysis is inapplicable.

9

2. CERCLA Liability Is Triggered by a Release, not

by Disposal.

The Ninth Circuit correctly found that the trigger for

application of CERCLA is a “release” (or threatened release)

of hazardous substances into the “environment.”* Pet. App. at

19a-20a; see also 42 U.S.C. §§ 9604(a) (authorizing President

to take action in response to “release” of hazardous substances

into the “environment”); 9606(a) (authorizing President to issue

orders or file suit in response to “release” of hazardous substance

from a “facility”’); 9607(a) (describing persons liable for costs

incurred in response to “release” of hazardous substances).

Teck Cominco’s contrary contention that CERCLA liability

is triggered by certain “conduct” is based on a backwards reading

of section 107(a), and is fundamentally inconsistent with

CERCLA’s sweeping, strict liability scheme. Petition at 15. A

party is liable if it falls within one or more of the classes of

“covered persons” in section 107(a)(1)-(4). However, liability

is not triggered unless there is a “release” at a facility which

requires “response costs.” See 42 U.S.C. § 9607(a); 3550 Stevens

Creek Assocs. v. Barclays Bank, 915 F.2d 1355, 1358 (9th Cir.

1990); see also Dedham Water Co. v. Cumberland Farms Dairy,

889 F.2d 1146, 1151 (1st Cir. 1989) (section 107({a) describes

persons who “may be held liable if there is a release or threatened

release of a hazardous substance.”); Containerport Group, Inc.

v. Am. Fin. Group, Inc., 128 F. Supp. 2d 470, 474 (S.D. Ohio

2001) (CERCLA liability analysis commences with whether a

“release” has occurred). Indeed, the mere “disposal” of

hazardous substances does not implicate CERCLA at all, until

2. “Release” is defined broadly to include “any spilling, leaking,

pumping, pouring, emitting, emptying, discharging, injecting, escaping,

leaching, dumping, or disposing into the environment... .” 42 U.S.C.

§ 9601(22). “Environment” is defined to include the water, land, and

air within or under the jurisdiction of the United States. 42 U.S.C.

§ 9601(8). Teck Cominco does not dispute that its hazardous waste has

been released, and threatens to continue to be released, into the

environment in Washington State.

10

and unless the hazardous substances are “released” into the

“environment,” i.e., the water, soil, or air. See 42 U.S.C.

§ 9601(22). Once such a release occurs, the classes of “covered

persons” who may be liable is sweeping; liability reaches back

to anyone with any relationship or “nexus” to that release. See

New Jersey Turnpike Auth. v. PPG Indus., Inc., 197 F.3d 96,

105 (3d Cir. 1999); Gen. Elec. Co. v. AAMCO Transmissions,

Inc., 962 F.2d 281, 286 (2d Cir. 1992).

“Conduct” is neither sufficient nor even necessary to impose

liability under CERCLA. The first two categories of covered

persons listed in section 107(a) include current and former

owners of the property where the release occurs, regardless of

whether they have engaged in any “conduct” at all. See, e.g.,

United States v. Monsanto Co., 858 F.2d 160, 168-71 (4th Cir.

1988), cert. denied, 490 U.S. 1106 (1989) (liability extends to

owners regardless of their degree of participation in subsequent

disposal of hazardous waste); Shore Realty Corp., 759 F.2d at

1043-44 (Site owner liable even though he did not contribute to

presence or cause release of hazardous substances at facility).

CERCLA liability is triggered not by any “conduct” with respect

to hazardous substances but by the “release” of those substances

into the “environment.” Teck Cominco does not dispute the latter

occurred entirely within the United States.’

3. Teck Cominco’s use of the crime of murder to illustrate the

importance of “conduct” in imposing CERCLA liability is, ironically,

only half wrong. The law prohibiting murder, of course, is the

quintessential opposite of a strict liability statute such as CERCLA

because it turns solely on state of mind. Thus, while death occurs every

day without a murder, the very purpose of CERCLA is to ensure that

every hazardous waste Site be cleaned up by a responsible party.

On the other hand, as a jurisdictional matter, the analogy supports

the Ninth Circuit’s conclusion because, under well-settled jurisdictional

principles, an act occurring in one nation (such as a shot fired across a

border or slag dumped in a river) which produces harm (such as death

or destruction) in another nation subjects the actor to the laws of the

latter nation. See Laker Airways, Ltd. v. Sabena, Belgian World Airlines,

(Cont'd)

1]

3. Petitioner’s New Argument on Disposal Was Not

Presented to the Courts Below and Is Not Supported

by Any Precedent.

In its petition to this Court, Teck Cominco offers a wholly

new argument: It contends that, but for a “printer’s error,” section

107(a)(3) would contain an additional clause at the end, “from

which there is a release, or a threatened release which causes

the incurrence of response costs, of a hazardous substance. . . .”

See Petition at 18-19 (combining portions of 42 U.S.C.

§§ 9607(a)(3) & (4)). According to Teck Cominco, this

modification “makes absolutely clear” that a person who

“disposes” at one facility is not responsible for subsequent

“releases” at another facility. Petition at 19.

Absolute clarity is an attribute rarely, if ever, given to the

language of CERCLA in general, or section 107(a)(3) in

particular. See United States v. Alcan Aluminum Corp., 964 F.2d

252, 258 n.5 (3d Cir. 1992) (CERCLA is “riddled with

inconsistencies and redundancies”); United States v. Iron

Mountain Mines, Inc., 881 F. Supp. 1432, 1451 (E.D. Cal. 1995)

(definition of “arranger” is “inartful”). Moreover, the

interpretation Teck Cominco advances has never been adopted

by any court, ever. Indeed, this interpretation, which Teck

Cominco now says is “indisputably compel[ed]” by the statutory

language, is one that it did not even think of until it reached this

Court. Petition at 18. Teck Cominco did not advance this

argument in the district couri, or in the Court of Appeals, or in

its petition for rehearing en banc. Teck Cominco now states the

Ninth Circuit “badly misapprehend[ed] the statutory text” for

(Cont'd)

731 F.2d 909, 922 (D.C. Cir. 1984) (conduct outside the territorial

boundary which has or is intended to have a substantial effect within

the territory subject to jurisdiction of the territory); Restatement (Second)

of Foreign Relations Law § 18, cmt. c, illus. 2 (1965) (a person taking

action in State B which causes a homicide in State A becomes subject

to prosecution under the jurisdiction and laws of State A).

12

failing to adopt this new interpretation, yet it failed to even argue

this interpretation in that court.

Teck Cominco’s new argument depends on another

proposition, also never raised in any court below (and barely

mentioned in its petition to this Court): that its “disposal” of

hazardous waste occurred exclusively in Canada, even though

it dumped the waste into a river, knowing it would be carried

into the Upper Columbia River Site in the United States. Petition

at 20 n.4. , .™

In Teck Cominco’s view, its disposal ended when its slag

splashed into the river, not when it came to rest downstream in

the United States. Yet, “disposal” under CERCLA is not a

discrete, isolated event that can be severed from the ultimate

repose of the substances concerned. See, e.g., Kaiser Aluminum

& Chem. Corp. v. Catellus Development Corp., 976 F.2d 1338,

1342 (9th Cir. 1992) (“the term ‘disposal’ should not be limited

solely to the initial introduction of hazardous substances onto

property”) (citing Tanglewood East Homeowners v. Charles-

Thomas, Inc., 849 F.2d 1568, 1573 (Sth Cir. 1988)). If it were,

then a person standing in his own yard who rolled barrels of

hazardous waste down a hill into his neighbor’s yard would

have “disposed” of it only in his yard, and he would bear no

responsibility for it under CERCLA.*

In support of its position, Teck Cominco cites no cases on

point; its cases held only that so-called “innocent owners” —

people who were not even aware that there was hazardous waste

on their property—cannot be held liable under CERCLA based

merely on “the gradual passive migration of contamination

4. Compare, e.g., Dent v. Beazer Materials and Servs., Inc., 993

F. Supp. 923, 929, 946 (D.S.C. 1995), aff'd, 133 F.3d 914 (4th Cir.

1998) (defendant who dumped chemicals on his own property, which

drained onto neighbor's, liable under CERCLA); /n re Hemingway

Transp., Inc., 993 F.2d 915, 931 (ist Cir. 1994), cert. denied, Kahn v.

Juniper Dev. Grp., 510 U.S. 914 (1993) (neighboring landowner may

assert right of action against PRP for response costs incurred from

migration of hazardous substances from adjoining property).

13

through the soil.” Carson Harbor Village, Ltd., v. Unocal Corp.,

270 F.3d 863, 879 (9th Cir. 2001) (en banc). As the Third Circuit

explained in CDMG Realty, holding such innocent owners liable

would be inconsistent with CERCLA’s purpose to hold

“polluters” responsible for the costs of remediation:

Those who owned previously contaminated property

where waste spread without their aid cannot

reasonably be characterized as “polluters”; excluding

them from liability will not let those who cause

pollution off the hook.

96 F.3d at 717.

By contrast, this case involves neither an “innocent owner”

nor a “passive disposal”; Teck Cominco actively dumped

millions of tons of raw contaminants into a moving river, and

that act of “disposal” continued until the contaminants came to

rest in the Upper Columbia River, in the United States.® The

5. See also United States v. 150 Acres of Land, 204 F.3d 698, 705

(6th Cir. 2000); ABB Indus. Sys., Inc. v. Prime Tech., Inc., 120 F.3d 351,

358 n.3 (2d Cir. 1997); United States v. CDMG Realty Co., 96 F.3d 706,

722 (3d Cir. 1996). Contrary to Teck Cominco’s assertion, its cases

recognized that “disposal” may include “passive” movement of

contamination; they merely found passive soil migration did not

constitute “disposal.” See Carson Harbor, 270 F.3d 863, 879, 881

(rejecting the “binary ‘active/passive’ distinction” and concluding that

“disposal” may include passive migration); ABB Indus. Sys., 120 F.3d

at 358 n.3 (holding that passive soil migration is not a disposal; “we

express no opinion” whether leaking barrels could constitute passive

“disposal”); CDMG Realty Co., 96 F.3d at 714 (observing that “leaking”

and “spilling” could constitute “disposal” without affirmative human

conduct). Many courts have concluded, in other circumstances, that

“passive” movement of hazardous substances may constitute a

“disposal” under CERCLA. See, e.g., Nurad, Inc. v. William E. Hooper

& Sons Co., 966 F.2d 837, 845 (4th Cir. 1992) (leaking storage tanks

constitute “disposal”); see also CDMG Realty, 96 F.3d at 713 (citing

additional cases).

6. Contrary to Teck Cominco’s assertions, Petition at 19-20, the

EPA's findings support the conclusion that Teck Cominco “disposed”

(Cont'd)

14

district court recognized this when, in its analysis of personal

jurisdiction, it concluded that plaintiffs had adequately alleged

that Teck Cominco’s disposal was “an intentional act expressly

aimed at the State of Washington.” Pet. App. at 34a.

B. The Ninth Circuit’s Application of United States Law

to This Domestic Condition Does Not Raise Any Comity

Concerns.

The principle of international comity is not violated unless

application of CERCLA to Teck Cominco makes it impossible

for Teck Cominco to comply with United States and Canadian

law. Hartford Fire Ins. Co. v. California, 509 U.S. 764, 799

(1993) (quoting Restatement (Third) of Foreign Relations Law

of the United States, § 415, cmt. e (1987) (hereinafter

Restatement (Third) of Foreign Relations Law); see, Société

Nationale Industrielle Aérospatiale v. United States District

Court for the Southern District of lowa, 482 U.S. 522, 555

(1987) (comity concern not raised unless there is “a true conflict

between domestic and foreign law”). This Court has explained

that application of U.S. law to foreign conduct causing domestic

injury does not violate comity principles. F. Hoffman-La Roche

Ltd. v. Empagran S.A. , 542 U.S. 155, 165 (2004). Having failed

to explain how remediation of its hazardous substances in the

United States will impair its compliance with Canadian law,

Teck Cominco has not established any comity concern.’

(Cont'd)

of its waste “into” the facility in the United States: EPA found Teck

Cominco had “arranged for 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.” Pet. App. 72a.

7. Although Teck Cominco identifies no clash between United

States and Canadian law, it does not claim that it has complied with

Canadian law. That claim is not based on any evidence in the record.

Indeed, the only evidence regarding Canadian law in the record was

submitted by the State of Washington through the Declaration of Richard

Kyle Paisley, a professor of law at the University of British Columbia.

In a Declaration filed in the Court of Appeals he explained that thcre is

(Cont'd)

15

Teck Cominco suggests that comity concerns are implicated

because the government of Canada has opposed application of

CERCLA in an amicus brief filed in the Ninth Circuit.’ Canada’s

objection, that it prefers negotiation over litigation, is even less

compelling than the British government’s unsuccessful objection

in Hartford. There, this Court applied the Sherman Act,

15 U.S.C. § 1, to British insurance companies based on foreign

conduct that had effects in the United States, even though the

British government objected that the private lawsuit interfered

with its comprehensive regulatory scheme permitting such

practices. That the insurers’ conduct was consistent with British

law and policy was not enough to state a conflict. 509 U.S. at

799. “No conflict exists, for these purposes, ‘where a person

subject to regulation by two states can comply with the laws of

both.’” /d. (quoting Restatement (Third) of Foreign Relations

Law § 403, cmt. e); see also Laker Airways, Ltd. v. Sabena,

Belgian World Airlines, 731 F.2d 909, 921-26, 931-45 (D.C.

Cir. 1984).

The government of Canada expressed interest in “preserving

from interference, by private litigation in U.S. courts, its

sovereign right to regulate Canadian persons and companies

operating in Canada.” Petition at 13. “Private litigation” is a

misnomer because this lawsuit is based on an order issued by

(Cont'd)

no clash between United States and Canadian law and that Canadian

law does not provide for remediation of any site located in the United

States.

8. Teck Cominco also cites and relies upon a diplomatic note which

the district court struck from the record on Respondents’ Motion. Teck

Cominco has not appealed the district court’s order, nor explained why

it may now cite this document. EPA may not, as Teck Cominco urges

here, decline to apply CERCLA out of concern that the Canadian

government may not support the United States’ military efforts in

Afghanistan. Petition at 22. This Court has clearly stated that “[i]n

particular, while the President has broad authority in foreign affairs,

that authority does not extend to the refusal to execute domestic laws.”

Massachusetts v. EPA U.S. ___, 127 S. Ct. 1438, 1463 (2007).

16

the United States government that CERCLA applies to Teck

Cominco. That order reflects the President’s judgment that

comity concerns should not prevent application of CERCLA to

this domestic site, and answers any comity concern here.

See Pravin Banker Assocs. Ltd. v. Banco Popular Del Peru,

109 F.3d 850, 855 (2d Cir. 1997) (“extending comity to Peru’s

debt negotiations is only appropriate if it is consistent with

United States government policy’’). It is not for this court to

second guess the Executive’s decision. Chicago & S. Air Lines,

Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948). The

President is best suited to make the comity judgment and this

Court should defer to it.

Despite the fact that only U.S. law applies to remediate

this site in the United States, Teck Cominco suggests that

CERCLA should not be applied because there are “bilateral

mechanisms” for resolving trans-boundary environmental

issues, principally the Boundary Waters Treaty of 1909

(“BWT’”). This argument is not based on any principled analysis

of abstention, or other ground to decline to exercise jurisdiction.

Turner Entn’t Co. v. Degeto Film GmbH, 25 F.3d 1512, 1521-

1523 (11th Cir. 1994) (discussing the standards for deference

to a foreign proceeding). The BWT does not create a binding or

exclusive dispute resolution mechanism. Ohio v. Wyandotte

Chems. Corp., 401 U.S. 493, 494, 500-01 (1971) (holding State

of Ohio could sue Canadian company under state common law

for dumping mercury into streams which flowed across the

border into Lake Erie, despite the existence of a related

proceeding under the BWT), rev’d by implication on other

grounds, see Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987);

see also id. at 506-07 (Douglas, J., dissenting on other grounds)

(BWT “does not evince a purpose on the part of the national

governments of the United States and Canada to exclude their

States and Provinces from seeking other remedies for water

pollution”).? The BWT provides a non-binding, consensual

9. During negotiation of the BWT, the United States specifically

(Cont'd)

17

procedure by which the U.S. and Canadian governments can

submit certain trans-boundary water disputes to arbitration.

Neither government has attempted to commence such a process

regarding the Site at issue here, and the BWT is literally beside

the point.

C. Application of United States Law to Remedy Domestic

Conditions Does Not Implicate the Presumption Against

Extraterritorial Enforcement of U.S. Law.

Teck Cominco relies heavily on the presumption against

extraterritorial application of U.S. law. This rule of statutory

construction is a useful guide when applying U.S. regulatory

laws to foreign conditions. '° In a case in which a plaintiff sought

to apply U.S. labor law to work place conditions in Saudi Arabia,

EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991) (ARAMCO),

this Court explained that “legislation of Congress, unless a

contrary intent appears, is meant to apply only within the

territorial jurisdiction of the United States.” 499 U.S. at 248

(quoting Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949)).

Teck Cominco concedes that the “presumption against

extraterritoriality flows naturally from the ‘commonsense notion

that Congress generally legislates with domestic concerns in

mind.’” Petition at 12 (quoting Smith v. United States, 507 U.S.

197, 204 n.5 (1993)). Teck Cominco’s Rule 12(b)(6)'' motion

(Cont'd)

rejected the idea of vesting exclusive jurisdiction over trans-boundary

water pollution disputes in an international tribunal. See F.J.E. Jordan,

Great Lakes Pollution: A Framework for Action, 5 Ottawa L. Rev. 65,

67 (1971-72).

10. The presumption against extraterritoriality is a canon of

construction “whereby unexpressed congressional intent may be

ascertained.” Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949). As with

any interpretive tool, it is not applicable “where it is not a reliable guide

to congressional intent.” United States v. Corey, 232 F.3d 1166, 1170-

71 (9th Cir. 2000).

11. Teck Cominco’s motion also challenged subject matter

jurisdiction. As the district court recognized, Pet. App. 31a, it had subject

(Cont'd)

18

presented the question of whether Congress intended to apply

CERCLA to this domestic site and the parties responsible for

the hazardous substances released there. Nothing about such

application of U.S. law raises the concerns underlying the

presumption against extraterritorial application of law.

Teck Cominco argues that the extraterritorial presumption

reflects Congressional intent in CERCLA because application

of CERCLA here will result in a clash of law between the United

States and that of another sovereign, which Congress generally

seeks to avoid. Petition at 12-13. See ARAMCO, 499 US. at

248. No clash of law is alleged here, though. Teck Cominco has

alleged only Canada’s interest in regulating its citizens, and no

clash regarding laws applicable to remediation of this Site.'?

This is no clash at all because U.S. law is not being applied to

regulate Teck Cominco’s Canadian operations or to remediate

conditions at a Canadian site. See Empagran, 542 U.S. at 165,

(application of U.S. antitrust laws to redress domestic antitrust

injury caused by foreign conduct is reasonable even though it

conflicts with foreign nation’s regulation of its-commercial

affairs)."°

Teck Cominco’s claim that the extraterritoriality

presumption is implicated is ultimately grounded in its allegation

that its disposal of hazardous substances occurred exclusively

in Canada and Congress did not intend CERCLA to reach such

(Cont'd)

matter jurisdiction pursuant to 42 U.S.C. § 9613(b) and § 9659 (c).

Teck Cominco’s motion challenging application of CERCLA to its

conduct is analyzed under Fed. R. Civ. P. 12(b)(6). See Hartford Fire

Ins. 509 U.S. at 813. (J. Scalia dissenting.)

12. Teck Cominco fails to cite any Canadian law whatsoever.

See Petition at 13. The record shows there is no conflict between

Canadian law and U.S. law on this point. Declaration of Professor

Richard Kyle Paisley.

13. Compare Microsoft Corp. v. AT&T Corp., 550 U.S. __,

No. 05-1056, slip op. at 16 (Apr. 30, 2007) (Foreign law governs rights

in inventions manufactured and soled solely in foreign countries).

19

conduct even when it causes substantial harm in the United

States.'* Teck Cominco’s argument on this point relied

substantially on American Banana Company v. United Fruit

Company, 213 U.S. 347, 356 (1909), which it cites for the

proposition that U.S. courts should refrain from applying U.S.

law to foreign acts. Petition at 12-13. Such reliance is misguided

because to the extent that American Banana has been read to

reject application of U.S. law to foreign conduct causing

domestic injury, as Teck Cominco alleges, it has been repudiated.

Hartford Fire Ins., 509 U.S. at 796. This Court has embraced

effects-based application of U.S. law to foreign conduct causing

injury in the United States. Steele v. Bulova Waich Co., 344

U.S. 280, 287 (1952).'°

Whether the conduct in question is a murder in which the

bullet is shot across the border or an antitrust conspiracy

conducted in Canada but causing injury in the United States,

United States laws are reasonably applied to the conduct causing

domestic injury.'° Empagran, 542 U.S. at 164-65; see also

Hartford Fire Ins., 509 U.S. at 796; Laker Airways, 731 F.2d at

922. (“It has long been settled law that a country can regulate

conduct occurring outside its territory which causes harmful

results within its territory”). See also United States v. Aluminum

Co. of Am., 148 F.2d 416, 443-444 (2d Cir. 1945). This is not

14. Teck Cominco’s claim that it acted exclusively in Canada is

not supported by any authority or reason, see pp. 11-14, supra.

15. Although the proposition was perhaps not always free

from doubt, see American Banana Company v. United

Fruit Company, 213 U.S. 347 (1909), it is well

established by now that the Sherman Act applies to

foreign conduct that was meant to produce and did in

fact produce some substantial affect in the United

States.

Hartford Fire Ins. Co., 509 U.S. at 795.

16. Rudimentary principles of personal jurisdiction indicate that

Teck Cominco’s purposeful conduct directed toward U.S. territory gave

the U.S. courts jurisdiction over its conduct. See District Court opinion,

Pet. App., 31a-32a.

20

an extraterritorial assertion of jurisdiction, because such

jurisdiction is premised on the effects that occurred within U.S.

territory. Laker Airways, 731 F.2d at 923.

Many courts have found the extraterritorial presumption

unhelpful or inapplicable when examining application of U.S.

law to remedy domestic injury or injury to lands over which the

U.S. has territorial sovereignty. See United States v. Corey, 232

F.3d 1166, 1170 (9th Cir. 2000). The Courts of Appeal have

consistently noted that the presumption is not applicable when

the conduct in question is “intended to, and results in, substantial

effects within the United States.” Jn re Simon, 153 F.3d 991,

995 (9th Cir. 1998) (quoting Laker Airways, 731 F.2d at 925);

see also Envtl. Def. Fund, Inc. v. Massey, 986 F.2d 528, 533

(D.C. Cir. 1993); Tamari v. Bache & Co. (Lebanon) S.A.L., 730

F.2d 1103, 1108 (7th Cir. 1984); Schoenbaum v. Firstbrook,

405 F.2d 200, 206 (2d Cir. 1968). This is because in cases

involving substantial domestic injury, there is little or no reason

to believe Congress intended to exclude foreign actors from

liability. The district court cited the Seventh Circuit’s reasoning

in Jamari on this principle:

Reliance on [on the extraterritoriality] presumption

is misplaced, however, when the conduct under

scrutiny has not occurred wholly outside the United

States, or when conduct outside the United States

could otherwise affect domestic conditions. In these

cases, courts have looked at this nature of the conduct

or effects in the United States to determine whether

extraterritorial application would be consistent with

the purposes underlying the statute.

Tamari, 730 F.2d at 1108 (citation omitted).

Application of CERCLA to a foreign polluter whose

hazardous substances are released in a domestic site is

indisputably necessary to accomplish the purposes of CERCLA:

Remediation of hazardous substances which have been released

in the domestic environment. Arc Ecology v. U.S. Dep’t of the

Air Force, 411 F.3d at 1094 (CERCLA’s primary objectives are

21

“to ensure the prompt and effective cleanup of waste disposal

sites, and to assure that parties responsible for hazardous

substances [bear] the cost of remedying the conditions they

created.” (citation omitted). See Key Tronic Corp. v. United

States, 511 U.S. 809, 814 (1994) (“CERCLA is a comprehensive

statute that grants the President broad power to command

government agencies and private parties to clean up hazardous

waste sites’). The breadth of the U.S. focus of CERCLA is

expressed in 42 U.S.C § 9601(8) (aefining “environment to

include all land, air and water within the United States or under

its jurisdiction”). If CERCLA cannot reach the hazardous

substances found in this Site, Congress’ objectives in passing

CERCLA cannot be accomplished.

Teck Cominco ignores the above-cited authority and focuses

on one case, Steele v. Bulova, which it attempts to distinguish

by noting that it involved some domestic conduct. Teck

Cominco’s discharges into the territorial U.S. are at least as

substantial as the domestic acts in Steele, so this argument gains

Teck Cominco nothing. More fundamentally, the Court’s

reasoning in Steele was based on “[u]nlawful domestic effects”

and the purposes of the statute; the same considerations suggest

application of U.S. law here. 344 U.S. at 288.

In its recent decision in Spector v. Norwegian Cruise Line,

Ltd., 545 U.S. 119 (2005), the Court similarly focused on

territorial injury in determining whether a “clear statement” was

necessary to permit application of U.S. law to actions on foreign

flag ships in U.S. territorial waters. Its formulation distinguishes

between statutes of general application and those targeting

domestic concerns, for which application of U.S. law is self-

evident:

Our cases hold that a clear statement of congressivnal

intent is necessary before a general statutory

requirement can interfere with matters that concern

a foreign-flag vessel’s internal affairs and operations,

as contrasted with statutory requirements that

22

concern the security and well-being of United States

citizens or territory.

545 U.S. at 125 (emphasis added). Thus, a “clear statement” of

legislative intent is not necessary for application of U.S. law to

matters aboard a foreign flag vessel that affect the peace and

tranquility of the U.S. Such matters have never “by comity or

usage been entitled to any exemption from the operation of the

local laws.” Id. at 130 (quoting Wildenhus’s Case, 120 US. 1,

12 (1887)).

This approach to assessment of Congressional intent applies

with equal force here. This Court has never held that U.S. law

does not apply to foreign conduct causing domestic harm, and

Teck Cominco does not attempt to cite such a case. This is

because the clash of law and interference with sovereignty that

is presented when U.S. law is applied to foreign actions with

exclusively foreign impact is not presented when U.S. law is

applied to remedy a domestic condition and such application is

consistent with Congress’ presumed focus on domestic

conditions.

Teck Cominco cites Hartford Fire Ins. and Murray v.

Schooner The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804),

for the proposition that American statutes should not be read as

transgressing the law of nations. Teck Cominco does not explain,

however, what law of nations is violated by application of

CERCLA to this domestic condition. The effects-based

application alleged here is well grounded in international law.

As stated in the Restatement (Third) of Foreign Relations Law,

“a state has jurisdiction to prescribe law with respect to ...

conduct outside of its territory that has or is intended to have

substantial effect within its territory, so long as such exercise is

reasonable.” Restatement (Third) of Foreign Relations Law

§§ 402, 403; see Empagran, 542 U.S. at 165. Teck Cominco

has not attempted to rebut this proposition. Nor has it cited any

23

law in Canada, provincial or federal, which is inconsistent with

CERCLA’s application in this case."’

Instead, Teck Cominco complaiiis that EPA’s application

of CERCLA to this domestic condition would “wreck the elegant

bilateralism that has distinguished U.S.-Canadian environmental

relations for the past century” and usurp the foreign-relations

powers of the political branches. Petition at 21. The existence

of treaties and other agreements between Canada and the United

States does not demonstrate conflict with principles of

international law. Nor can Teck Cominco seriously argue that

EPA, acting for the President, interfered in the President’s foreign

relations power by issuing the Unilateral Order in this case.

Respondents’ suit based on that order is grounded in the same

authority.

D. Teck Cominco’s Argument On Arranger Liability Is Not

Ripe For Supreme Court Review.

Teck Cominco claims the Ninth Circuit’s decision creates

a “direct conflict of federal appellate authority in one of

CERCLA’s core liability provisions” —arranger liability under

§ 107(a)(3), 42 U.S.C. § 9607(a)(3). Petition at 25. Teck

Cominco contends that “arranger” liability requires concerted

action with an “other party or entity,” and does not reach polluters

who dispose of their own waste themselves.

Teck Cominco’s district court motion mentioned arranger

liability as it pertained to the question of whether CERCLA

17. This case is almost as paradigmatic of effects-based jurisdiction

as the trans-boundary homicide. See Laker Airways, 731 F.2d at 922.

Indeed, the Restatement provides the following prescient example:

X operates a refinery in state A near the border of state B

that emits fumes generally known to be injurious to plant

life. The fumes pollute the air in B, and Y’s trees in B stop

bearing fruit as a result. B has jurisdiction to prescribe a

civil remedy for damages.

Restatement (Second) of Foreign Relations Law § 18, cmt. g, ex. 6

(1965).

24

applied extraterritorially, but cited no case authority explaining

its application. Teck Cominco’s appeal to the Ninth Circuit also

focused on the extraterritoriality question. Its petition for

permission to appeal under 28 U.S.C. § 1292(b) said: “the issue

presented is whether the district court erred in holding that

Congress intended to allow CERCLA to be applied to conduct

in foreign countries.” Appelldnt’s Opening Brief in the Ninth

Circuit described the issue presented for review as follows: “the

issue presented is whether the district court erred in holding

that Congress intended to allow CERCLA to be applied to

conduct in foreign countries.”

Teck Cominco’s Ninth Circuit brief mentioned arranger

liability as part of its argument that CERCLA was being

improperly applied extraterritorially, but again it cited no cases

supporting its position and did not suggest that failure to allege

the elements of arranger liability required reversal. Teck

Cominco first mentioned the American Cyanamid Co. v.

Capuano, 381 F.3d 6, 23-25 (1st Cir. 2004) case, based on which

it now claims a Circuit split, in a letter to the Ninth Circuit panel,

less than two weeks before oral argument. Even then, Teck

Cominco provided only one sentence describing the significance

of the case and no analysis of the Ninth Circuit’s decision in

Cadillac Fairview/California, Inc. v. United States, 41 F.3d 562,

565 (9th Cir. 1994).

E. The Court of Appeals’ Decision Creates No Circuit Split.

The Ninth Circuit’s decision did not create a conflict among

federal courts on CERCLA’s definition of “arranger.” Teck

Cominco argues that a person who disposes of hazardous

substances on someone else’s property, without the aid of a third

party, cannot be liable as an “arranger” under CERCLA section

107(a)(3), 42 U.S.C. § 9607(a)(3). The Court of Appeals rejected

this novel argument, and there is no case that holds to the

contrary. '*

18. But see Kaiser Aluminum & Chem. Corp. v. Catellus Dev.,

(Cont'd)

25

Teck Cominco attempts to conjure a “conflict” by citing

cases that: ..:2ssed an entirely different question—whether

a person mus. have “owned or possessed” the hazardous

substances in order to be potentially liable as an “arranger.”

See American Cyanamid, 381 F.3d at 24-25 (holding that a

“broker” of hazardous substances was liable on the theory

of “constructive possession”). The Circuits that have

addressed that question, including the Ninth, are in general

agreement, albeit by employing different analyses to varying

factual situations. For example, the Sixth Circuit, like the

First, has held that a party may be liable as an “arranger” if it

exercised control over hazardous waste, even if it did not

actually own or physically possess it. GenCorp, Inc., v. Olin

Corp., 390 F.3d 433, 449 (6th Cir. 2004). The Eighth and

Ninth Circuits are in accord. See United States v. Shell Oil

Co., 294 F.3d 1045, 1055 (9th Cir. 2002) (control of the

process that produces hazardous substances is crucial in

determining whether a party is an “arranger’’); United States

v. Northeastern Pharm. & Chem. Co., 810 F.2d 726, 743 (8th

Cir. 1986) (““NEPACCO’) (“We believe requiring proof of

personal ownership or actual physical possession of

hazardous substances as a precondition. for liability under

CERCLA § 107(a)(3) ... would be inconsistent with the

broad remedial purposes of CERCLA”). The Third Circuit

has indicated that “arranger” liability requires proof of

ownership or possession and knowledge or control of the

(Cont'd)

976 F.2d 1338, 1341 (9th Cir. 1992). There, the court found the defendant

could be liable under CERCLA both as a “former operator” and as a

“transporter.” The plaintiff had not even alleged that the defendant could

be held liable as an arranger, but the court offhandedly stated: “Nor has

[plaintiff] alleged that 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.” /d. The panel in this case unanimously agreed that this

comment was “offhand, unreasoned, and ambiguous” and did not state

the law on “arranger” liability. Pet. App. at 28a.

26

hazardous substances. Morton Int'l, Inc.,v. A. E. Staley Mfg.

Co., 343 F.3d 669, 677 (3d Cir. 2003) (discussing various

cases and concluding that the circuits are “virtually

unanimous” on broad principles for arranger liability but

disagree about specific factors).

Only one of these courts even mentioned the phrase in

section 107(a)(3) upon which Teck Cominco’s argument in

this case depends, “any other party or entity,” and that

mention is clearly a dictum. In American Cyanamid, the

defendants had brokered the disposal of the plaintiff’s

hazardous waste on the property of a third person, and the

plaintiff sued for a contribution to the remediation costs under

CERCLA. 381 F.3d at 10. Following a bench trial in which

the district court found the brokers liable under three of

CERCLA’s four categories of responsible parties—as

“operators,” “transporters,” and “arrangers”—the brokers

appealed, and the First Circuit affirmed. See id. at 21-24.

First, the court held that the brokers were “transporters” under

section 107(a)(4) because they actively participated in

deciding where the waste would be dumped. /d. at 22.

Second, the court held that the brokers were liable as

“operators” under section 107(a)(2) because they “developed

the idea for using the Site, prepared the Site for dumping,

arranged for waste to be dumped at the Site, showed the

transporters where to dump on the Site, and collected

payment and transmitted a share to” the owner of the Site.

Id. at 23. Finally, the court held the brokers were liable as

“arrangers” under section 107(a)(3) because they exercised

control over the waste, such that they “constructively

possessed” it. /d. at 25. The court remarked that the clause

in section 107(a)(3) “‘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.” /d. at 24. This statement was not necessary to the

27

court’s holding and did not affect the outcome of the case.'?

Teck Cominco has cited no case that decided the question

the Ninth Circuit decided here, whether a person who

disposes of its own waste on the property of another must

have utilized another party or entity in order to be liable as

an arranger.”

As the Ninth Circuit noted below, no effort to assign the

phrase, “by any other party or entity” in section 107(a)(3) is

entirely satisfactory. Pet. App. at 24a. If, for example, the

Court were to accept Teck Cominco’s position, then the

second, disjunctive clause of the section serves no purpose.

That clause provides two categories of potentially liable

persons: those who “arranged for disposal or treatment” and

those who “arranged with a transporter for disposal or

treatment.” 42 U.S.C. § 9607(a)(3).7! In Teck Cominco’s

19. The offhanded nature of the First Circuit's treatment of the

phrase “by any other party or entity” may explain why Teck Cominco

did not even think to cite American Cyanamid to the Court of Appeals

until two weeks before oral argument.

20. Respondents cited cases in which owners or generators of

hazardous substances disposed of their own hazardous substances on

someone else’s property and the courts held them hable as arrangers.

See, e.g., Nat'l R.R. Passenger Corp. v. New York City Hous. Auth., 819

F. Supp. 1271, 1277 (S.D.N.Y. 1993) (natural flaking of substances from

railroad tunnel onto tracks constitutes “arrangement for disposal’’); State

of Colorado v. Idarado Mining Co., 707 F. Supp. 1227, 1241, amended

by 735 F. Supp. 368 (D. Colo.), rev'd on other grounds, 916 F.2d 1486

(10th Cir. 1990) (defendant “arranged” for disposal of mine tailings by

dumping them into river, which brought them downstream to a

“facility”).

21. Section 107(a)(3) reads, with emphasis added, as follows:

any person who by contract, agreement, or otherwise

arranged for disposal or treatment, or arranged with a

transporter 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.. ..

28

analysis, the latter group is necessarily embraced in the

former because an “arrangement” with a transporter would

always constitute an “arrangement” with an “other party or

entity.” Why would Congress need to impose liability on both

those who “arranged for disposal or treatment” and those

who “arranged with a transporter for disposal or treatment”

if no arranger was liable unless he involved an “other party

or entity’?

Ultimately, the Ninth Circuit correctly recognized that

Teck Cominco’s reading of arranger liability would produce

“a gaping and illogical hole” in CERCLA’s coverage, Pet.

App. at 26a, which Congress could not have intended and

no court has ever adopted: That a person who knowingly,

intentionally, and actively disposed of his own hazardous

substances onto the property of another would not be

responsible for those substances under the federal cleanup

statute.” The so-called “midnight dumper” was expressly

targeted by the drafters of CERCLA. See Michael Robinson-

Dorn, Trail Smelter: Is the Past Prologue? EPA Blazes a

New Trail for CERCLA, 14 N.Y.U. Envtl. L.J. 2, 51-52 & n.

275 (2005) (quoting legislative history expressing

“Congress’s well known and oft-expressed concern” with

“midnight dumpers” who dispose of hazardous substances

on the property of others). Congress could not have intended

to exclude such polluters from CERCLA’s reach.

Not only has no case so held, but the cases upon.

which Teck Cominco relies for its position strenuously

resisted similarly restrictive interpretations. The First Circuit

in American Cyanamid, for example, embraced the concept

of “constructive possession” of hazardous substances in order

to avoid “a loophole through which brokers and middlemen

could escape liability.” 381 F.3d at 25; see also Gencorp,

22. None of the other categories of responsible persons—owner/

operators of facilities, former owner/operators of facilities, and

transporters—would apply. 42 U.S.C. § 9607(a).

29

390 F.3d at 448-49 (same, citing other cases). The cases cited

by Teck Cominco as evidence of a circuit “split” over the

meaning of “arranger” embraced a broad reading of section

107(a)(3). See, e.g., Morton Int'l, 343 F.3d at 676; United

States v. Vertac Chem. Corp., 46 F.3d 803, 810 (8th Cir. 1995)

(quoting NEPACCO, 810 F.2d at 743). The interpretation ©

Teck Cominco seeks, by contrast, would narrow CERCLA’s

coverage and give immunity to a group of plainly culpable

polluters whom Congress clearly meant to reach.

To the extent that the lower appellate courts have

analyzed the substance of “arranger” liability under

CERCLA, they are generally in agreement. The Ninth

Circuit’s holding in this case that a party can be an arranger

by disposing of its own waste on the property of another

does not conflict with the holding of any other Circuit. It is

not an issue deserving of certiorari.

CONCLUSION

This case does not meet the standard for certiorari. Teck

Cominco has not shown a true conflict between the Circuits,

much less a conflict concerning “an important matter” that

should be reviewed by this Court in this case. S. Ct. Rule

10(a). A conflict that is merely “academic or [] episodic” is

insufficient to justify certiorari. Rice v. Sioux City Memorial

Park Cemetery, 349 U.S. 70, 74 (1955). The Court often

denies review in cases in which there is some acknowledged

conflict over an issue of insufficient importance or has been

insufficiently developed for a full and considered decision

by this Court. See, e.g., Beaulieu v. United States, 497 U.S.

1038 (1990) (noting 56 petitions denied in 1989 term despite

conflicts with other courts). As Justice Stevens has observed,

the Court often serves its role best by waiting for a conflict

to ripen in the lower courts before accepting review of the

issue. “[E]xperience with conflicting interpretations of

federal rules may help to illuminate an issue before it is finally

30

resolved and thus may play a constructive role in the

lawmaking process.” Justice Stevens, Some Thoughts on

Judicial Restraint, 66 Judicature 177, 183 (1982). The issues

Teck Cominco raises are not ripe for Supreme Court review.

For the foregoing reasons, the Petition for writ of

certiorari should be denied.

* Counsel of Record

Respectfully submitted,

RicHARD A. Du Bey

Paut J. Dayron*

DANIEL F. JOHNSON

SHort CRESSMAN & Burcess PLLC

999 Third Avenue, Suite 3000

Seattle, WA 98104

(206) 682-3333

Counsel for Respondents

Joseph A. Pakootas and

Donald R. Michel