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

NO. 06-1188 .-° ..

IN THE SUPREME COURT OF

THE UNITED STATES

TECK COMINCO METALS, LTD.,

Petitioners,

V.

JOSEPH A. PAKOOTAS, DONALD R. MICHEL, AND

THE STATE OF WASHINGTON,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE STATE OF WASHINGTON IN

OPPOSITION

ROBERT M. MCKENNA

Attorney General

Maureen Hart

Solicitor General

Jay Douglas Geck*

Deputy Solicitor General

*Counsel of Record

Alexandra K. Smith

Kristie E. Carevich

Assistant Attorneys General

1125 Washington Street SE

Olympia, WA 98504-0100

360-753-6245

Attorneys For Respondent

State of Washington

L

i

TABLE OF CONTENTS

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a svisscresevercerccesesceceesecessvecsesveesovoees 1

Ee l

I I oo... <cccsscsceuesnevecovecvecesevorseseecsvonsecees 5

REASONS FOR DENYING THE WRIT ..............0.000.00002. 8

A. There Is No Circuit Split Concerning

Liability For Generators Who Dispose Of

cs cwensesceenvenenscconnsseses 9

1. The First Circuit Decision In

American Cyanamid Addresses A

Different Issue In A Different Context

And Presents No Conflict ..................0........2:. 11

2. Teck Wrongly Claims Uniform

Support In Other Circuits ........................00. 13

3. An Appeal Of A Motion To Dismiss Is

Not The Appropriate Vehicle To

Examine Liability For Disposal..................... 15

B. Teck’s New Arguments Are Not

Appropriate For Review By This Court................. 15

C. The Court Of Appeals Decision Affirming

Denial Of Teck’s Rule 12(b)(6) Motion

Raises No Substantial Issue Of

International Law Or Comity .....................ccccceeeees 18

1. Optional Diplomatic Processes Do Not

Preclude The Application Of CERCLA

Nees inarievescteseseuseversnsves 18

2. This Case Concerns Application Of

CERCLA To A Hazardous Waste Site

In The United States And The

Presumption Against Extraterritorial

Application Does Not Apply........................0.. 21

3. Denial Of Teck’s Rule 12(b)(6) Motion

Does Not Disrupt Foreign Relations

GID visccsdccismisivialacistssassigueuniaaaeanelnene 28

CIEE vuniipieninnsesichvencindaocseicmumeasaaibiiiaidialn 30

TABLE OF AUTHORITIES

Cases

American Cyanamid Co. v. Capuano

SEL FOG CS Chat Cir. BOO4)...nn..ccccceecsesesccesconcsses 8-9, 11-13

ARC Ecology v. United States Department

of the Air Force

294 F. Supp. 2d 1152 (N.D. Cal. 2003) .......... ee. 26

ARC Ecology v. United States Department

of the Air Force

RE Fe Be Ee RE. BIO erecccsccncrcveveccesccceosccevecceues 25

Berkovitz v.United States

i no aleaaasemuasine menue 1

Black v. Cutter Labs.

as adeueioenennaiabion 12

Bunting v. Mellen ;

Sa a ceananenionanioun 12

Canron, Inc. v. Fed. Ins. Co.

82 Wash. App. 480, 918 P.2d 937 (1996) ................... 26

Colorado v. Idarado Mining Co.

707 F. Supp. 1227 (D. Colo. 1989),

amended by 735 F. Supp. 368 (D. Colo. 1990),

reud on other grounds, 916 F.2d 1486

T_T SSE ESE i an 14, 15

Consol. Edison Co. of New York, Inc. v. UGI

Utils., Inc.

ee ee a OE ty i avcinscindsnecnuannteersenoutebsnnenttennes 17

Cooper Indus., Inc. v. Aviall Servs., Inc.

I Oa colstameiionsuesnbouenh 16

Durham v. Herbert Olbrich GMBH & Co.

BOG F.Sa 1BEG CGE Cae. BOOB) oon. cccccccccccesscceseveceseecsone 29

iv

E.E.O.C. v. Arabian Am. Oil Co.

ee le oi aids asshctartcensnesevebavinns 21, 23, 24

Enutl. Def. Fund, Inc. v. Massey

GOOG F 2b GEG CUI... Car. 2OGG) Wn cccccccccccssccccscscesecccessoncees 22

F. Hoffman-LaRoche, Ltd. v. Empagran S.A.

Sy a SN ach ho aass SbdsassantnaivaddesauiPabeenal 24, 27

Fed. Trade Comm'n. v. Compagnie De Saint-

Gobain-Pont-A-Mousson

G36 F.2d 1300 CD.C. Cir. 1960).........ccccccscccsccsesovecccceesecs 21

First Nat'l Bank & Trust Corp. v. American

Eurocopter Corp.

BG EG | | SE MOET 29

Florida Power & Light Co. v. Allis Chalmers

Corp. |

Be Fe BES Ce Ute GE, LO oicveccscinccccccccconssnsosersacesses 14

GenCorp, Inc. v. Olin Corp.

Be Oe ee Ce es BD ine ccksicnsvesvcvenauvecosnidcersncncirns 14

Government of Province of Manitoba v. Norton

398 F. Supp. 2d 41 (D. D.C. 200B).............2000.-eccee0. 19, 20

Hartford Fire Ins. Co. v. California

ae LETT ER: 26, 27

Her Majesty the Queen in Right of Ontario v.

United States Enutl. Prot. Agency

DES Fe Be IA CE, FD vavctnceiveccisciscnisivanegasoesnans 20

In re Maxwell Comme’n Corp. ple

2 Se. cg: Bie kOe | nen paEnMnrT En ts 22

Kalamazoo River Study Group v. Menasha Corp.

Be ek Ge In Ge i veeecnnccipeiiccencivncenecnienneenvers 15

Key Tronic Corp. v. United States

ie ee iaiccescndactivacidetesciaxeicctvaconsseedanbnctnn 2

Meghrig v. KFC W., Inc.

ie ins srtcaceseccacntismoesinasacsansienomaan 22, 23

Michie v. Great Lakes Steel Div., Natl Steel Corp.

re re Ce FF winersseesetcnneerecnesiesenccvesesseces 20

Microsoft Corp. v. AT&T Corp.

No. 05-1056, WL 123838 (U.S. Apr. 30, 2007)............. 24

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

S43 F.3d S60 (Sd Cir. 2008).....cccrccsesccccesessessscessesees 14, 15

Ohio v. Wyandotte Chem. Corp.

I GE IT ED cic xccsdesecaseiavescosineceseseves 19, 20, 22, 29

Pennsylvania v. Union Gas Co.

491 U.S. 1 (1989),

overruled on other grounds,

Seminole Tribe of Florida v. Florida

I a i auiptieibecaliarniete 2

Raytheon Constructors, Inc. v. Asarco, Inc.

BOS © Oe LEIS IGE GAP. BOOB) 00 cccccccecevcecessercesees scenes: 14

Reid v. Covert

I i ang testcase niith 21

Societe Nationale Industrielle Aerospatiale v.

United States Dist. Court

2c cgusueansinonennnisioions 22, 29

United States v. Bestfoods

a anaeniieesbensonsnannnes 2

United States v. Conserv. Chem. Co.

619 F. Supp. 162 (W.D. Mo. 1985) ...................cccceseseees 17

United States v. Corey

232 F.3d 1166 (Sth Cir. 2000) ............cccccrcccresvcseeess 29, 30

United States v. Hooker Chems. & Plastics Corp.

Be le Be Ne Se Bi ces onccsovecresecsevenvescossvensseseenses 20

United States v. Ivey

30 O.R.3d 370 (Ontario Ct. App. 1996)....................... 25

United States v. Vertac Chem. Corp.

ee te Ee Ge BI orivcrecccciceecesesvevenessceessceresoses 14

vi

United States v. Ward

618 F. Supp. 884 (E.D. N.C. 1985) ....ccccccccscessessesssesseees 17

Vine Street, LLC v. Keeling ex rel. Estate of

Keeling

460 F. Supp. 2d 728 (E.D. Tex. 2006)......cccccceccse-0 12-14

Violet v. Piciolo

648 F. Supp. 1283 (D. R.I. 1966) ...................ssccceseseeoees 17

Virginia Military Inst. v. United States

ny 9

Yoakim v. Miller

RN I rei ai aa ca ee 16

Statutes

I i ae 1

te ir oa ee 6

Pk A aOR NS 16

42 U.S.C. §§ 9601-9675 .

(Comprehensive Environmental Response,

Compensation And Liability Act (CERCLA)) ............... 1

| ASAIN SIRT SAM EARS To PTET 7

Se II siiissstnniescnnasneniionseivbinsdiaiienetiniaeetaeiacabadaiataaiol 16

SINE sink sihtiicedickaghasudibedicinunuansamiiheniacubdcmicansammannalnn 2

i TEI iniinscsnigainksessduntbhchadetsnuiibstelnoandsannpemmimsanmuanielstealetian 12

ETc cininsid bu imsecegeadsedcbuninigiababianadbidandediadaienaialie 17

III cin dhsiscd-ccnbiloadaoncnansascdeaideihodsemnian 6, 8, 10, 16

eee 5

CERCLA

i IIIT inkhstestncctsisinindopnabslcoiiniistiediniadaantniaoeaaaneaiivoianil 2, 4,7

DTTP ENTE ND FI. 17

vii

BP FTI TP vsinissctconssaeuncdeeicernetneabneinheaiaenamanaen 11, 13

Be SII iics:ccininisesccasadleahineddaadenmamialileaaiaainial 8-13, 15

British Columbia’s Environmental

I TIE csi ciccsesscknicemisitivitiemieeenenimaiaae 24

I SIEIET chasis sclssadsnisinsanadedoeiecssedesecccasiiaaeamanan hepdemeecieoneail 24

§ FID ncveresornsersccerervassrerevceresecenserensshentensnenesoaneceatsennens 24

Boundary Waters Treaty, Jan. 11, 1909,

SFE Bs SO I el iicinebiniicdsnucdeiicaneseniecinni 18—20

Constitutional Provisions

Canadian Constitution Act, 1867 (U.K.), 30, 31

WORD cocicsicntsomintiotvintsienaiion: aaa 24

Rules |

ge tM | | RRR eran BEN Meee TT 5

OU. Be. CB0. Fe FI ccintcacensssccssensies esteemed 5

Fed. R. Civ. P. 12(b)(6).............. 1, 5—6, 9, 15-16, 22-23, 28

Other Authorities

BBG Cece. FROG, Ty Fee Ce hace necctcccdincrsetssanetavietarscncarsaas 22

RED Cee Be BE Fa Ce ict s birbtcicersencecsyccnpetniahincapemas 22

Exec. Order No. 12,580, 3 C.F.R. 193 (1988)...............0205. 2

S. Rep. No. 848, 96th Cong., 2d Sess. (1985)...............0.. 10

Jennifer Woodward,

International Pollution Control: the United

States and Canada—the International Joint

Commission, 9 N.Y.L. Sch. J. Int'l & Comp. L.

BE CI vvceciiacisestassctsoninssesshisidaraedanandaeaae

Michael J. Robinson-Dorn,

The Trail Smelter: Is What’s Past Prologue?

14 N.Y.U. Envtl. L.J. 233, 251 (2006) ......0. ee 19

Brief For The Federal Appellees, ARC Ecology v.

United States Dep’t of the Air Force,

No. 04-15031 (9th Cir. Aug. 4, 2004),

i. crs seesnesonnevstoenin 26

Treatises

1 Allan J. Topol & Rebecca Snow, Superfund

Me IEEE F POCMEIS CROUG) .......0000000000ccserercccesecececoseseeeee 10

Restatement (Third) of the Foreign Relations of

the United States Restatement (1987) .................... 28, 29

Robert L. Stern et al., Supreme Court Practice

PRN OT, ZOO Z) 22.0. ncnerererssnrerevesesrsevesacserssesersrsoescececersesees 11

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.

la—28a) is reported at 452 F.3d 1066. The opinion of the

' district court (Pet. App. 29a—59a) is unreported, but can

be found electronically at 2004 WL 2578982.

JURISDICTION

The court of appeals opinion was entered July 3,

2006. A petition for panel rehearing and rehearing en

banc was denied October 30, 2006. On January 12, 2007,

Justice Kennedy extended the time within which to file a

petition for a writ of certiorari to and including February

27, 2007, and the petition was filed February 27, 2007.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATEMENT

A. Factual Background!

Congress enacted the Comprehensive Environ-

mental Response, Compensation And Liability Act

(CERCLA), 42 U.S.C. §§ 9601-9675, “in response to the

serious environmental and health risks posed by

industrial pollution.” United States v. Bestfoods, 524 U.S.

51, 55 (1998). CERCLA “grants the President broad

power to command government agencies and private

parties to clean up hazardous waste sites.” Key Tronic

! This case is in a preliminary procedural posture; its

facts are therefore limited. The court below affirmed the

district court’s denial of Petitioner Teck Cominco Metals, Ltd.'s

Rule 12(b)(6) motion to dismiss. Thus, the only facts before the

Court are the well-pleaded allegations in Respondents’

complaints, which the court must assume to be true. Berkovitz

v.United States, 486 U.S. 531, 540 (1988). We address Teck’s

assertion of “facts” not properly before the Court in this

Statement, and in responding to Teck’s arguments that go

beyond the preliminary record.

Corp. v. United States, 511 U.S. 809, 814 (1994). It both

provides a mechanism for cleaning up hazardous waste

sites and requires that such cleanups be paid for by those

responsible for the contamination. Pennsylvania v. Union

Gas Co., 491 U.S. 1, 7 (1989), overruled on other grounds,

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).

Indeed, “[t]he remedy that Congress felt it needed in

CERCLA is sweeping: everyone who is potentially

responsible for hazardous waste contamination may be

forced to contribute to the costs of cleanup.” Bestfoods,.

524 U.S. at 56 n.1 (quoting Union Gas Co., 491 U.S. at 21)

(emphasis added).

CERCLA provides the President, acting through

the Environmental Protection Agency (EPA),? with

several alternatives for cleaning up contaminated sites.

CERCLA § 106(a) gives the President authority to

respond to releases of hazardous substances that “may be

an imminent and substantial endangerment” to the

environment by “issuing such orders as may be necessary”

to liable parties directing them to clean up the site.

42 U.S.C. § 9606(a). |

Petitioner Teck Cominco Metals, Ltd. (Teck) owns

and operates the world’s largest integrated lead/zinc

smelter, in Trail, British Columbia on the banks of the

Columbia River (the Trail Smelter). Pet. App. 4a—5a.

Trail is just ten miles north of the border between the

United States and Canada. Pet. App. 72a. Teck has

operated the Trail Smelter for over 100 years, and for the

majority of that time, Teck discharged both the solid and

the liquid byproducts of its smelting operations

(collectively known as slag) directly into the free-flowing

2 CERCLA grants authority to the President, who has

delegated various powers to the EPA. See Exec. Order No.

12,580, 3 C.F.R. 193 (1988).

Columbia River.’ Pet. App. 72a. The slag flowed with the

river across the border, where it came to rest in the beds

and banks of the Upper Columbia River and Lake

Roosevelt in the United States.4 Pet. App. 72a. Teck

discharged 160,000 tons of slag annually (more than 13

million tons total) into the Columbia River from the turn

of the century until 1995, when it ceased such discharges.

Pet. App. 5a n.6.

The slag contains heavy metals, including arsenic,

cadmium, copper, mercury, lead, and zinc, as well as

other unspecified hazardous substances. Pet. App. 72a

412. A significant amount of slag accumulated in the

Upper Columbia River and Lake Roosevelt and has

contaminated the surface water, ground’ water,

sediments, and biological resources there. Pet. App. 7la

~49=6, 7. The slag continues to decay physically and

chemically, releasing arsenic, cadmium, copper, zinc, and

lead into the environment and causing harm to human

health and the environment. Pet. App. 5a—6a. Technical

evidence demonstrates the Trail Smelter is the

predominant source of contamination in the Upper

Columbia River and Lake Roosevelt. Pet. App. 5a—6a.

In 1999, the Environmental Protection Agency

began an assessment of what it termed the Upper

3 Teck asserts that its slag disposal was in accordance

with the laws of Canada. Pet. Question Presented 2. This

assumes facts beyond the pleadings and the record. This case is

before the Court on denial of Teck’s motion to dismiss, which

Teck filed before answering Respondents’ complaints. Teck is

not entitled to the benefit of “facts” that it has neither alleged

nor proven. Teck similarly asserts that no second party was

involved in the disposal of its hazardous wastes. This too is a

factual assertion not properly before the Court.

4 Franklin D. Roosevelt Lake (Lake Roosevelt) was

created when the Columbia River was blocked by the

construction of the Grand Coulee Dam in the early 1940s.

Columbia River Site (the Site), defined as “the areal

extent of contamination in the United States associated

with the Upper Columbia River.” Pet. App. 69a. EPA’s

assessment found heavy metals contamination and slag

throughout the area. Pet. App. 5a. EPA completed the

assessment in 2003 and concluded the Site was eligible

for the list of the most contaminated sites in the country,

the National Priorities List (NPL). Pet. App. 6a, 72a.

EPA determined the releases of hazardous substances at

the Site “may present an imminent and substantial

endangerment to public health or welfare or the

environment.” Pet. App. 75a 4 4.

When the EPA proposed listing the Site on the

NPL, Teck Cominco American, Inc. (Teck American), a

wholly owned American subsidiary of Teck, approached

the EPA and proposed to conduct a limited human health

study if the EPA would defer proposing listing the Site on

the NPL. Pet. App. 6a. EPA and Teck American entered

into negotiations, which ended when EPA concluded Teck

American’s proposed investigation would not meet

CERCLA’s requirements in at least five essential ways,

and would not provide adequate information to allow the

EPA to select an appropriate remedy for the

contamination at the Site. Pet. App. 74a—75a 9 18. Asa

result, on December 11, 2003, the EPA issued a

Unilateral Administrative Order (the EPA Order) to Teck

under CERCLA § 106(a), which directed Teck to

investigate the contamination at the Site under CERCLA

and evaluate alternatives for cleaning up the Site. See

Pet. App. 68a—99a (EPA Order), 6a. On January 12,

2004, Teck sent the EPA a letter stating that it would not

comply with the Order. Pet. App. 102a—O4a. The federal

government did not bring an action to enforce the EPA

Order. Pet. App. 6a.

B. Proceedings Below

On July 21, 2004, two members of the

Confederated Tribes of the Colville Reservation, Joseph

Pakootas and Donald R. Michell (collectively Pakootas),

filed a complaint under CERCLA’s citizen suit provision

in the United States District Court for the Eastern

District of Washington, seeking enforcement of the EPA

Order. Pet. App. 6a, 105a—12a. Without filing an answer,

on August 26, 2004, Teck filed a motion to dismiss the

complaint pursuant to Federal Rules of Civil Procedure

12(b){1), 12(b)(2), and 12(b)(6). Teck argued the court

lacked personal and subject matter jurisdiction and the

complaint failed to state a claim upon which relief could

be granted. While that motion was pending, the State of

Washington (the State) moved to intervene as of right

under 42 U.S.C. § 9659(g) and filed a complaint in

intervention. Pet. App. 7a, 113a—19a. The court granted

the State’s motion and considered Teck’s pending motion

to dismiss to apply to both Pakootas’ and the State’s

complaints. Pet. App. 7a.

The district court denied Teck’s mction to dismiss,

finding the court had subject matter jurisdiction over the

action, the court had specific personal jurisdiction over

Teck under Washington’s long-arm statute, and Pakootas

and the State had stated claims upon which relief could

be granted. Pet. App. 59a. The district court recognized

that the case involved applying a domestic law to clean up

a site located entirely within the United States. Pet. App.

37a-—38a. Nevertheless, the court assumed, for the sake of

its analysis, that applying CERCLA to clean up pollutants

discharged in Canada, but which came to rest in the

United States, was an extraterritorial application of the

statute. Pet. App. 37a—38a. The court ruled that, even if

extraterritorial, the application of CERCLA in this case

was nonetheless permissible, given CERCLA’s focus on

remedying domestic conditions and the _ significant

harmful effects Teck’s contamination caused within the

United States. Pet. App. 57a. The district court also held

that it could not rule out Teck’s liability as one who

“arranged for disposal” of hazardous substances under

42 U.S.C. § 9607(a)(3). Pet. App. 49a.5 The district court

sua sponte certified its order for immediate appeal

pursuant to 28 U.S.C. § 1292(b); the court of appeals

granted permission to appeal. Pet. App. 59a, 9a.

On appeal, Teck did not challenge the district

court’s ruling that the court had personal jurisdiction over

Teck and did not argue on appeal that the court lacked

subject matter jurisdiction over the case. Pet. App. 59a,

9a. Accordingly, those claims are abandoned. Instead,

Teck asserted that the district court erred when it denied

Teck’s Rule 12(b)(6) motion by (a) rejecting Teck’s

argument that the case involved an _ improper

extraterritorial application of CERCLA, and (b) finding

Teck could be held liable as a party who “arranged for

disposal” under 42 U.S.C. § 9607(a)(3). Pet. App. 9a—10a.

A unanimous court of appeals affirmed the district

court. Pet. App. 3a. The court concluded “this case

involves a domestic application of CERCLA,” and did not

therefore trigger the presumption against extraterritorial

application of United States law. Pet. App. 3a. The court

also concluded that Teck could be held liable for having

5 In the district court, Teck submitted what purports to

be a note from the Canadian Embassy. The district court

granted the Respondents’ motion to strike the note. Order

Granting Motion To Strike Exhibits In Part, Pakootas v. Teck

Cominco Metals, Litd., No. CV-040256-AAM (E.D. Wash.

June 29, 2004). Teck did not challenge that ruling below, and

the note is not properly part of the record in this case. Yet,

nonetheless, Teck submitted it to the appellate court and has

included the document in.the petition appendix (Pet. App.

100a—O la), relying on it to support its petition (Pet. 4, 24). No

facts beyond those pled in Respondents’ complaints are properly

before the Court, and Teck is not entitled to the benefit of one-

sided, unlitigated, and unproven “facts.”

“arranged for disposal” of hazardous substances and that

the involvement of a second party is not a prerequisite to

such liability. Pet. App. 3a.

The appellate court recognized that EPA’s

authority under CERCLA § 106(a) and CERCLA’s

liability provisions are triggered by disposals that

subsequently cause releases or threatened releases of

hazardous substances into the environment. Pet. App. 3a.

The court of appeals concluded that the requisite releases

occurred at the Site in the United States when the slag

from Teck’s smelter reached the Site and when the slag

leached heavy metals and other contaminants into the

surrounding environment. Pet. App. 14a—15a. Since the

Site is specifically limited to the environment within the

United States, the court of appeals determined that

applying CERCLA to remedy that contamination to be

wholly domestic. Pet. App. 21a.

The court below also determined that holding Teck

liable as having “arranged for disposal” of the slag would

not involve an extraterritorial application of CERCLA.

Pet. App. 20a. The court observed that CERCLA is a

remedial statute that focuses on remedying the harmful

effects of past conduct, and CERCLA does not regulate or

prohibit any “arrangement” for disposal. Pet. App. 20a.

The court recognized that liability arises when a disposal

leads to hazardous substances being released at a Site in

the United States, regardless of the method of disposal.

The appellate court also rejected Teck’s argument

that it can be held liable as having “arranged for disposal”

of hazardous substances only if it involves a second party

6 CERCLA defines “environment” as waters, land, and

air within the United States or under the jurisdiction of the

United States. 42 U.S.C. § 9601(8). Accordingly, CERCLA

liability is triggered only by a release of hazardous substance

into the United States environment.

in the disposal. The court rejected Teck’s argument that

generators of hazardous wastes who arrange for the

disposal of their wastes themselves are free from liability

under § 9607(a)(3), rejecting an argument by Teck based

on American Cyanamid Co. v. Capuano, 381 F.3d 6 (lst

Cir. 2004). Pet. App. 25a—26a.

On June 2, 2006, one month before the appellate

court issued its ruling, Teck and the EPA signed a

settlement agreement that requires Teck to guarantee,

and Teck American to conduct, (a) an investigation into

the nature and extent of contamination at the Site that

meets CERCLA requirements and (b) an evaluation of

alternatives under CERCLA for cleaning up the Site. On

the same day, the EPA sent a letter to Teck in which it

withdrew its December 1993 Order. Pet. App. 120a. The

appellate court took judicial notice of the settlement. It

determined that the settlement did not moot the

Respondents’ claims for civil penalties and attorney fees,

and left it to the district court on remand to determine

whether the settlement mooted the Respondents’ claims

for declaratory and injunctive relief. Pet. App. 9a n.10.

Teck timely petitioned the court of appeals for

rehearing and rehearing en banc. On October 30, 2006,

the court of appeals denied the petition for rehearing and

denied the petition for rehearing en banc, with no judge in

the circuit requesting a vote on whether to hear the case

en banc. Pet. App. 61a.

REASONS FOR DENYING THE WRIT

The Petition For Writ Of Certiorari should be

denied for three reasons. First, the decision below creates

no conflict in the circuits. The court of appeals correctly

found—as have all other courts to address the issue—that

a generator of hazardous waste who directly arranges for

the disposal of its own waste may be liable for cleanup

under Section 107(a)(3) of CERCLA. Teck’s alleged

circuit conflict is predicated entirely on dicta in a decision

of the First Circuit that resolved a different issue. See

American Cyanamid, 381 F.3d 6 (finding parties liable

even though they did not own or transport waste, but

instead acted as “brokers” who constructively possessed

the waste and arranged for its improper disposal).

Second, this case comes to the Court in the most

preliminary of procedural postures—from denial of a Rule

12(b)(6) motion by Teck. Although Teck tries to put extra-

record “facts” before the Court in order to support its

claims, the only facts ai this juncture are the allegations

of the Respondents’ complaints.?7’ Teck also raises new

issues in its petition, which were not raised or litigated

below. Teck’s new arguments and extra-record facts

should not be litigated in the first instance before this

Court.

Third, despite Teck’s effort to create one, the court

of appeals decision that there can be liability under

CERCLA when a foreign corporation creates a hazardous

waste site in the United States raises no issue of

international law or comity.

A. There Is No Circuit Split Concerning

Liability For Generators Who Dispose Of

Their Waste

Teck’s second Question Presented contests liability

under CERCLA § 107(a)(3) and claims a circuit split on

whether liability can attach if Teck did not involve

“another party or entity” in its disposal of its slag. Pet. 9,

25-29. Section 107(a)(3) creates liability for persons who

“arranged for disposal” of waste found at a contaminated

site owned or operated by another party. CERCLA

imposes liability on:

7 Such considerations explain in part why certiorari

from interlocutory appeals is disfavored. See, e.g., Virginia

Military Inst. v. United States, 508 U.S. 946 (1993) (Scalia, J.,

concurring in denial of certiorari).

10

“(3) any person who... arranged for disposal . . . of

hazardous substances owned or possessed by such

person... at any facility . . . owned or operated by

another party or entity and containing such

hazardous substances... .” 42 U.S.C. § 9607(a)(3).

Liability under CERCLA § 107(a)(3) is intended to

apply to companies that generate waste and make the

decision to dispose of it in such a way that it is released

into the environment. See 1 Allan J. Topol & Rebecca

Snow, Superfund Law and Procedure § 3:31 (2006) (“one

thing about [§ 107(a)(3)] is clear: it makes generators of

hazardous waste liable for cleanup . . . because they

‘arrange’ for the disposal of the wastes that they have

created”). Congress has long recognized this purpose for

this particular category of liability:

“Generators create the hazardous wastes and...

how to avoid them, and they determine whether

and how to dispose of these wastes— on their own

site or at locations controlled by others.” S. Rep.

No. 848, 96th Cong., 2d Sess. (1985), at 15.

The court of appeals, in affirming the denial of

Teck’s motion to dismiss, did not create any split among

the circuits. Respondents’ complaints satisfy CERCLA §

107(a)(3) by alleging that (a) Teck generated millions of

tons of waste over the last century as a byproduct of

smelting operations, (b) Teck disposed of the waste into

the Columbia River, and (c) the waste has been released

into the environment at the contaminated Site in the

United States. Pet. App. 107—09a, 115—17a; see also Pet.

App. 69a—76a (EPA findings about Teck’s disposal of

hazardous waste).

11

1. The First Circuit Decision In American

Cyanamid Addresses A Different Issue

In A Different Context And Presents No

Conflict

When cases do not decide the same issue, they are

not in “direct” conflict. Robert L. Stern et al., Supreme

Court Practice 226 (8th ed. 2002) (“A genuine conflict, as

opposed to a mere conflict in principle, arises when it may

be said with confidence that two courts have decided the

same legal issue in opposite ways, based on their holdings

in different cases with very similar facts.”). American

Cyanamid, 381 F.3d 6 (decided a different issue in a

different context than the question presented by Teck).

In American Cyanamid, the trial court found the

Capuanos liable as “operators” of a dump site under

CERCLA § 107(a)(1) and as persons who had “arranged

for disposal” of wastes at the site under Section

§ 107(a)(3). On appeal, the First Circuit addressed

whether a dump operator could be liable as an “arranger”

by acting as a middleman and “brokering” waste disposal

at the dump. The Capuanos argued that they did not own

or possess the waste they had arranged to dispose of at

the dump and, therefore, arranger liability did not apply.

American Cyanamid, 381 F.3d at 23. The First Circuit

followed cases imposing liability on similar persons who

did not own or possess waste but who “controlled” the

disposal. Jd. at 24-25. The court ultimately held that the

term “owned or possessed” in Section 107(a)(3) could be

read broadly to include “constructive” ownership or

possession—a holding that is neither directly on point,

nor directly in conflict with, the court of appeals decision

below. See id. at 25.

In contrast, the appellate court below addressed

factual allegations in complaints that bear no

resemblance to the facts in American Cyanamid.

Respondents did not allege that Teck brokered waste for

12

others. Instead, Respondents alleged that Teck

generated, owned, controlled, and disposed of waste in the

Columbia River,.and the river carried the waste to the

contaminated site. Because the facts and holdings of the

two cases are different, the two rulings present no direct

conflict. See Black v. Cutter Labs., 351 U.S. 292; 298

(1956) (“{I]t is our duty to look beyond the broad sweep of

the language and determine for ourselves precisely the

ground on which the judgment rests.”). Lacking any real

conflict, Teck relies on dicta by the First Circuit to claim a

conflict—but this does not create a circuit split or warrant

review. See Bunting v. Mellen, 541 U.S. 1019, 1023 (2004)

(Scalia, J., dissenting from denial of cert) (“We sit, after

all, not to correct errors in dicta; ‘[t]his Court reviews

judgments... .”). The First Circuit briefly parsed out

two grammatical constructions of CERCLA § 107(a)(3),

but did not rest its holding on this grammatical parsing.

Its holding instead examines and relies on prior cases and

the unique facts in that case. American Cyanamid, 381

F.3d at 23-24. Based on those facts, the court rejected a

waste broker’s attempt to create a loophole that would

frustrate the purposes of CERCLA. See American

Cyanamid, 381 F.3d at 25 (If “CERCLA [did] not...

impose liability on a party that constructively possessed

hazardous waste and arranged for its illegal disposal,

then the statute would be subject to a loophole through

which brokers and middlemen could escape liability . . .”).8

8 A subsequent decision saw no conflict between

American Cyanamid and the decision below. See Vine Street,

LLC v. Keeling ex rel. Estate of Keeling, 460 F. Supp. 2d 728,

748-50 (E.D. Tex. 2006) (corporate parent of a dry cleaning

machine manufacturer liable for releases from a dry cleaning

operation because the “thrust” of decisions like Pakootas and

American Cyanamid, taken in tandem with the purposes of

CERCLA, counseled against interpreting § 9607(a) “in any way

that apparently frustrates the statute’s goals’).

13

Indeed, nothing in American Cyanamid indicates the

First Circuit would allow Teck to avoid liability here.

As the court below recognized, if adopted in this

case, Teck’s argument “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.” Pet. App. 26a. Teck suggests any loophole

would be covered by “operator” liability under CERCLA

§ 107(a)(1). Pet. 27 n6. Yet Teck fails to show how

operator liability applies to a company that disposes of

waste into a river, when the waste is carried away from

land they own or operate and contaminates the riverbed

or lakebed. In any event, there is no reason to strain to

find liability under other sections of CERCLA, because a

company that generates and disposes of.waste is liable

under Section 107(a)(3).

2. Teck Wrongly Claims Uniform Support

In Other Circuits

Teck claims the “substantially uniform view of the

Circuits” supports its position and cites numerous

decisions to infer they uniformly applied “arranger”

liability based on Teck’s approach to the sentence

structure of CERCLA § 107(a)(3). See Pet. 26. Teck

incorrectly describes the circuit uniformity; most courts

have not applied liability after parsing the sentence

structure of Section 107(a)(3). See Vine Street, 460

F. Supp. 2d at 748 (so noting, upon analysis of recent

cases). The courts instead have followed an intensely

factual, case-by-case approach, under which liability

hinges on a variety of facts examined to “determine

whether a defendant was sufficiently responsible for

14

hazardous-waste contamination so that it can fairly be

forced to contribute to the costs of cleanup.”®

Teck fails to cite a single case holding that a

generator of waste—like itself—is not liable if it did not

first arrange for disposal with another party.'’° In fact,

Respondents can find no case where a persen disposing of

waste has avoided liability using Teck’s argument. When

courts have addressed the liability of a company that

generated waste and disposed of the waste itself, the

courts have found that generator liable without requiring

the disposal first be carried out by another party. See,

e.g., Colorado v. Idarado Mining Co., 707 F. Supp. 1227,

1241 (D. Colo. 1989), amended by 735 F. Supp. 368

(D. Colo. 1990), rev'd on other grounds, 916 F.2d 1486

9 See Morton Int, Inc. v. A.E. Staley Mfg. Co., 343 F.3d

669, 677-78 (3d Cir. 2003); see also Vine Street, 460 F. Supp. 2d

at 749-50 (“Federal courts have developed a sophisticated case-

by-case approach” to fulfill Congressional intent that “those

responsible for problems caused by the disposal of chemical

poisons bear the costs and responsibility for remedying the

harmful conditions they created”) (internal citation omitted);

see also Florida Power & Light Co. v. Allis Chalmers Corp., 893

F.2d 1313, 1317-18 (11th Cir. 1990) (rejecting reliance on any

per se rule for arranger liability).

10 None of the cases cited by Teck have exculpated a

company that directly disposed of waste. See GenCorp, Inc. v.

Olin Corp., 390 F.3d 433, 448 (6th Cir. 2004) (analyzing liability

of company for waste disposed of by a separate company, from

whom it had purchased chemical goods); Morton Int'l, Inc., 343

F.3d at 679 (analyzing liability of company that shipped

material to a separate company for processing into usable form

for releases from second company’s processing); Raytheon

Constructors, Inc. v. Asarco, Inc., 368 F.3d 1214 (10th Cir. 2003)

(analyzing liability of minority shareholder in a mining

company based on actions taken by the predecessor's

president); United States v. Vertac Chem. Corp., 46 F.3d 803,

811 (8th Cir. 1995) (analyzing liability of United States for

waste released by a company with which it contracted).

15

(10th Cir. 1990) (finding a generator liable as an

“arranger for dumping wastes directly into a river); see

also Kalamazoo River Study Group v. Menasha Corp., 228

F.3d 648, 659 (6th Cir. 2000) (finding a generator would

be liable as an “arranger” if it had discharged its waste

into the Kalamazoo River). }

3. An Appeal Of A Motion To Dismiss Is

Not The Appropriate Vehicle To

Examine Liability For Disposal

As outlined above, arranger liability is “a fact-

sensitive inquiry that requires a multi-factor analysis.”

Morton Int, Inc. v. A.E. Staley Mfg. Co., 343 F.3d

669, 677 (3d Cir. 2003). The Rule 12(b)(6) record does

not establish how disposal occurred, who carried it out,

and what employees, contractors, or other persons were

involved. Certiorari should therefore be denied for the

separate reason that there is no factual record

appropriate for examining liability and no final judgment

on liability.

B. Teck’s New Arguments Are Not Appropriate

For Review By This Court

For the first time, Teck offers a new approach to

CERCLA 107(a)(3), borrowing from subsection (a)(4) to

argue that CERCLA cannot apply to it because it

arranged to dispose of its pollution at a different “facility”

than the one from which hazardous substances were

released. Pet. 18-21. Teck’s new argument does not

merit review from this Court because it was not raised

below, is based on facts not in the record, and has been

rejected by all courts that have addressed similar

arguments.

The district court, court of appeals, and parties

have never had the opportunity to consider or respond to

Teck’s new argument. The argument reflects Teck’s

factual characterizations of matters that are outside the

16

record and are inappropriate for this Court to consider in

the first instance. Cooper Indus., Inc. v. Aviall Servs.,

Inc., 543 U.S. 157, 168-69 (2004) (except in exceptional

circumstances, the Court does not decide questions not

raised or resolved in the lower court); accord Yoakim uv.

Miller, 425 U.S. 231, 234 (1976).

Moreover, Teck’s new argument _ stretches

statutory terms and mischaracterizes the pleaded facts.

This is contrary to review under Rule 12(b)(6), where

pleaded facts are taken as true and all inferences are

construed in favor of the Respondents. While Teck may

defend its potential liability on remand by developing a

full factual record, the record at this stage is no basis for

Teck’s new arguments. For example, Teck asserts its

Smelter is the relevant “facility” (Pet. 20), when the only

“facility” alleged in the EPA Order and Respondents’

complaints is the Upper Columbia River Site (Pet. App.

75a, 105a—19a). Teck further argues that its discharge of

slag into the river in Canada constitutes actionable

“releases” under CERCLA (Pet. 19-20'') when the only

CERCLA “releases” alleged in the EPA Order and

Respondents’ complaints are releases of hazardous

substances from the slag that has come to rest at the Site

(Pet. App. 75a, 105a-19a). Teck’s reliance on its

1! CERCLA defines “facility” as “any site or area where

a hazardous substance has been deposited, stored, disposed of,

or placed, or otherwise come to be located.” 42 U.S.C.

§ 9601(9)(B) (emphasis added). The court of appeals decision

examined potential liability of a person who “arranged for

disposal . . . of hazardous substances .. . at any facility . . .

owned or operated by another party .. . and containing such

hazardous substances... .” 42 U.S.C. § 9607(a)(3). “Disposal”

means “the discharge, deposit, injection, dumping . . . or placing

of any . . . hazardous waste into or on any land or water so that

such .. . hazardous waste .. . may enter the environment.” 42

U.S.C. § 6903(3).

17

characterization of the facts confirms why this argument

should first be considered by a lower court.

Had Teck raised this issue below, the court of

appeals would likely have followed other courts that have

rejected similar arguments. See United Siates v. Conserv.

Chem. Co., 619 F. Supp. 162, 234 (W.D. Mo. 1985)!

(rejecting argument that a generator cannot be liable

under CERCLA if it initially disposed of its waste

somewhere other than where the wastes ultimately came

to rest); accord United States v. Ward, 618 F. Supp. 884,

895 (B.D. N.C. 1985) (same); Violet v. Piciolo, 648 F.

Supp. 1283, 1291 (D. R.I. 1986) (same) (overruled on other

grounds).

The fact-bound nature of Teck’s new argument is

further illustrated by Teck’s citation to cases involving

“passive migration.” These cases involve completely

different factual scenarios than anything alleged in

Respondents’ complaints. See Pet. 20 n.4 (citing United

States v. 150 Acres of Land, 204 F.3d 698, 701 (6th Cir.

2000) (drums leaking hazardous liquids into the ground);

ABB Indus. Sys., Inc. v. Prime Tech., Inc., 120 F.3d 351,

356 (2d Cir. 1997) (same); Jnited States v. CDMG Realty,

Co., 96 F.3d 706, 710 (3d Cir. 1996) (contamination of

soil)). Under the existing record, it is implausible for

Teck to compare its disposal! of tens of millions of tons of

slag into a free-flowing river to these other factual

scenarios involving contamination spilled on solid ground.

Nor are the cases legally similar: each decides if a former

owner or operator of a site contaminated by migration of

contaminants owned or operated the site “‘at the time of

disposal’ of a hazardous substance” for purposes of

CERCLA § 107(a)(2). 42 U.S.C. § 9607(a)(2).

12 Conservation Chemical was superceded by statute on

other grounds, as stated in Consolidated Edison Co. of New

York, Inc. v. UGI Utilities, Inc., 423 F.3d 90 (2d Cir. 2005).

18

C. The Court Of Appeals Decision Affirming

Denial Of Teck’s Rule 12(b)(6) Motion Raises

No Substantial Issue Of International Law

Or Comity

Ri Optional Diplomatic Processes Do Not

Preclude The Application Of CERCLA

In This Case

Teck first argues that the “decision below upsets a

century-old tradition of bilateral solutions to

transboundary pollution problems.” Pet. 10. Teck alleges

that “[s]ince the Industrial Revolution, the United States

and Canada have resolved their transboundary pollution

problems bilaterally, including government-to-

government diplomatic negotiations and, occasionally,

arbitrations between the sovereigns.” Pet. 10. Nothing in

the record supports this sweeping factual proposition.

Of the various treaties Teck references, only the

1909 Boundary Waters Treaty even arguably applies to

Teck’s pollution of the Site." Boundary Waters Treaty,

Jan. 11, 1909, U.S.-Gr. Br., 36 Stat. 2448 (the Treaty).

The Treaty’s focus, however, is the equitable allocation of

water resources between Canada and the United States.

Jennifer Woodward, International Pollution Control: the

United States and Canada—the International Joint

Commission, 9 N.Y.L. Sch. J. Int’] & Comp. L. 325, 326

(1988) (Woodward); Treaty art. II. The only provision that

'3 Among other treaties, Teck refers to the Great Lakes

Water Quality Agreement of 1978, the 1991 Agreement

Between the Government of the United States of America and

the Government of Canada on Air Quality, and the North

American Free Trade Agreement. See Pet. 11-12. None of

these treaties speak to remedying the effects of Teck’s discharge

of contaminants into the Columbia River. Indeed, the treaties

Teck cites focus on issues related to the regulation of ongoing

polluting activities in bordering countries; they do not address

how to remedy the effects of historical transboundary pollution.

19

refers to transboundary pollution is Article IV, which

provides that waters flowing across the U.S.-Canadian

border “shall not be polluted on either side to the injury of

health or property on the other.” Treaty art. IV. During

negotiations for the Treaty, Canada advocated for a

provision “forbidding water pollution having

transboundary consequences,” and attempted to establish

an agency that would enforce the prohibition. Woodward

at 327. The United States refused to agree to either and

only reluctantly accepted the language in Article IV.

Woodward at 326.

In addition, the Treaty’s mechanisms to address

“differences” between the two countries are entirely

optional. Treaty art. IX (allowing for nonbinding

“recommendations’), art. X (allowing for binding dispute

resolution).'4 Notably, the binding dispute resolution

process in the Treaty has never been invoked in the

Treaty’s 98-year history. Government of Province of

Manitoba v. Norton, 398 F.Supp. 2d 41, 56 (D. D.C.

2005); Woodward at 328.5 At best, therefore, the Treaty

provides a voluntary alternative for addressing issues

related to transboundary pollution; it does not provide the

exclusive means. Woodward at 328; see also Ohio v.

Wyandotte Chem. Corp., 401 U.S. 493, 506-08 (1971)

'4 For the United States to invoke the binding dispute

resolution process in the Treaty, the consent of the United

States Senate is required. Treaty art. X

16 Teck implies, erroneously, that the Trail Smelter

Arbitration was conducted pursuant to the Treaty’s binding

dispute resolution provision. The initial proceeding was

pursuant to Article [X’s non-binding procedure, and only later

did the United States and Canada agree to submit issues to

arbitration under a _ separate convention entered into

specifically for that purpose. Michael J. Robinson-Dorn, The

Trail Smelter: Is What’s Past Prologue? 14 N.Y.U. Envtl. LJ.

233, 251 (2006).

20

(Douglas, J., dissenting on other grounds) (nuisance suit

for transboundary pollution was “not precluded by the

Boundary Waters Treaty”). Justice Douglas recognized

that the Treaty “does not evince a purpose on the part of

the national governments of the United States and

Canada to exclude . . . other remedies for water pollution.”

Wyandotte Chem. Corp., 410 U.S. at 507.'© Nothing in the

record in this case suggests the United States or Canada

sought to invoke either of the Treaty’s dispute resolution

procedures to address Teck’s legacy of contamination at

the Site.

In addition, numerous cases over the last century

demonstrate that litigation has often been a means for

addressing transboundary pollution between the United

States and Canada. See, e.g., Wyandotte Chem. Corp., 410

U.S. at 506-08 (litigation over pollution by Dow Canada

that. eventually harmed Lake Erie); Her Majesty the

Queen in Right of Ontario v. United States Enutil. Prot.

Agency, 912 F.2d 1525 (D.C. Cir. 1990) (suit by Ontario to

require EPA to reduce air emissions in the United States

causing damage in Canada); United States v. Hooker

Chems. & Plastics Corp., 749 F.2d 968, 975 (2d Cir. 1984)

(Ontario suing to protect Canadian citizens harmed by

U.S. company’s pollution of Lake Ontario and the Niagara

River); Michie v. Great Lakes Steel Div., Nat'l Steel Corp.,

495 F.2d 213 (6th Cir. 1974) (suit by Canadian

landowners against U.S. corporations, whose U.S. plants

emitted noxious fumes); Norton, 398 F. Supp. 2d 41 (suit

by Province of Manitoba against the U.S. Secretary of

Interior over a water diversion project that could pollute

Canadian waters).!7

16 Indeed, the Treaty: explicitly allows United States and

Canadian citizens to go to court to redress harm caused by the

diversion of water in the other country. Treaty art. II.

17 These lawsuits involve transboundary air pollution

and pollution in and around the Great Lakes, which are the

21

CERCLA was enacted against this backdrop, not a

century of exclusively bilateral diplomacy, as Teck

asserts.'8 Pet. 12. Further, notwithstanding Teck’s

implications to the contrary, nothing in international law

or comity requires a court to defer to an optional

diplomatic process. See Fed. Trade Comm'n. v.

Compagnie De Saint-Gobain-Pont-A-Mousson, 636 F.2d

1300 (D.C. Cir. 1980) (refusing to defer to optional

processes in the Hague Convention). Teck’s contention to

the contrary provides no basis for review.

2. This Case Concerns Application Of

CERCLA To A Hazardous Waste Site In

‘The United States And The

Presumption Against Extraterritorial

Application Does Not Apply

Teck next tries to create a substantial question of

international law or comity from the denial of its motion

to dismiss by asserting that the decision below

erroneously failed to apply the presumption against

extraterritorial application of U.S. law. Teck’s argument

is unsound for two reasons. First, the presumption does

not apply here. Second, even if it did, the purpose of the

presumption is to avoid “unintended clashes between our

laws and those of other nations.” E.E.O.C. v. Arabian

Am. Oil Co. (Aramco), 499 U.S. 244, 248 (1991). As the

appellate court correctly found, there is no such clash in

this case.

subject of the other treaties Teck cites. These further dispel the ~

notion that disputes involving transboundary pollution have

been resolved by the United States and Canada only through

bilateral diplomacy.

8 Indeed, to the extent the Treaty and CERCLA can be

said to conflict, CERCLA, as a later-enacted statute, “renders

the treaty null.” Reid v. Covert, 354 U.S. 1, 18 (1957).

22

The presumption against extraterritorial

application applies only if a case actually involves an

extraterritorial application of United States law. In re

Maxwell Commc’n Corp. plc, 186 B.R. 807, 815-16 (S.D.

N.Y. 1995) (“[flirst, a court must determine if the

presumption applies at all”); accord Envtl. Def. Fund, Inc.

uv. Massey, 986 F.2d 528, 531 (D.C. Cir. 1993). For

purposes of Rule 12(b)(6), the court of appeals correctly

concluded the allegations in Respondents’ complaints

present a domestic application of CERCLA to the cleanup

of the Upper Columbia River Site. The Site is in the

United States; CERCLA dictates how pollution in the

United States is cleaned up.

Teck bypasses the domestic focus of CERCLA, and

instead argues that it cannot be held liable for activities

“undertaken exclusively in Canada.” Pet. 14. Even if

Teck had established this alleged exclusivity in the

limited Rule 12(b)(6) factual record—and it did not—and

even if dumping a massive quantity of hazardous waste

into the free flowing Columbia River ten miles north of

the U.S.-Canada border could be considered an activity

wholly within Canada, CERCLA does not regulate or

prohibit that activity. It merely provides a remedy for the

harm that activity caused in this country.'9 Meghrig v.

'8 CERCLA is a remedial law, like the tort law it was

based upon. 126 Cong. Rec. 26,788 (1980) (statement of Rep.

Jeffords) (indicating CERCLA was to codify the tort of strict

liability for ultrahazardous activities); 126 Cong. Rec. 26,782

(1980) (statement of Rep. Gore) (same). In similar cases

involving application of United States remedial laws to address

domestic harm caused by foreign defendants, courts have

considered those tort-based laws to be applied domestically;

indeed, the presumption against extraterritoriality has not even

been mentioned. Societe Nationale Industrielle Aerospatiale v.

United States Dist. Court, 482 U.S. 522, 525 (1987) (French

airplane manufacturing companies owned by the French

Government sued for negligent manufacture when plane

crashed in Iowa); Wyandotte Chem. Corp., 401 U.S. at 494 (Ohio

23

KFC W., Inc., 516 U.S. 479, 483 (1996) (noting CERCLA’s

character as a remedial, rather than regulatory, statute).

No principle of international law or comity allows Teck to

evade responsibility for the tens of millions of tons of

pollution that it directed into the United States.

Teck correctly recognizes that the purpose behind

the presumption against extraterritoriality is “to protect

against unintended clashes between our laws and those of

other nations which could result in international discord.”

Aramco, 499 U.S. at 248. However, Teck points to no law

of Canada or British Columbia with which CERCLA

conflicts. CERCLA did not and does not prohibit any

action, or require Teck to take any action, related to the

Smelter’s operations. CERCLA therefore has no

regulatory impact on Teck and presents no conflict with

any regulation by Canada or British Columbia of the

Smelter’s operations and discharges.2? _ Pet. App. 22a.

Moreover, to the extent Teck’s claim that its discharge of

slag was in accordance with the laws of Canada (Pet.

Question Presented 2) is intended to demonstrate a “clash

of laws”, it is not an established fact on Teck’s Rule

12(b)(6) motion and is outside the scope of review in this

case. The same is true of Teck’s reliance on a diplomatic

note that was stricken by the district court to support its

“clash of laws” contention. Pet. 13.?!

sued Dow Canada in nuisance for the discharge of mercury into

streams in Canada which ultimately harmed Lake Erie in the

United States). CERCLA is no different in impact or scope than

the tort laws applied to foreign defendants in the cases above.

20 Even if CERCLA could somehow be said to regulate

the discharge of slag from Teck’s Smelter, there is nothing left

to regulate, for Teck ceased discharging slag in 1995 (eight

years before the EPA Order was issued).

21 Both CERCLA and its Canadian counterpart impose

liability even if a disposal was done in accordance with the

applicable law at the time the disposal occurred. Indeed, the

24

The facts of this case are decidedly different from

the circumstances in the cases Teck cites in support of its

extraterritoriality argument, Aramco and F. Hoffman-

LaRoche, Lid. v. Empagran S.A., 542 U.S. 155 (2004).22

In those cases, United States law was applied outside the

territorial jurisdiction of the United States to regulate

conduct in foreign countries. Aramco, 499 U.S. at 249-51

(applying Title VII of the Civil Rights Act to employment

practices in Saudi Arabia); Empagran, 542 U.S. at 174

(applying the Sherman Act to anti-competitive conduct

abroad). In both of those cases, the laws purported to

proscribe specific conduct (discriminatory employment

practices and price fixing) abroad. In contrast, here,

CERCLA is applied within the territorial jurisdiction of

the United States to the cleanup of a—demestic site.

CERCLA does not proscribe, or even regulate, any

conduct in Canada. It is not, therefore, being applied

applicable Canadian cleanup law is virtually identical to

CERCLA, further disproving any clash of laws. In Canada,

primary jurisdiction for addressing historical pollution rests

with the Provinces. Canadian Constitution Act, 1867 (U.K.),

30, 31 Vict. C. 3. British Columbia’s Environmental

Management Act (EMA) holds the same categories of polluters

“absolutely, retroactively and jointly and separately liable” for

the costs of cleanup. EMA § 47(1). Liability attaches regardless

of whether the polluting activity was lawful at the time it

occurred; and regardless of whether the liable party had a

permit or other governmental approval allowing the polluting

activity. EMA § 47(4). Thus, Teck is subject to the same legal

liability for pollution it caused on the Canadian side of the

border as CERCLA imposes for pollution caused in the United

States.

22 The facts alleged in this case also differ from the facts

in this Court’s most recent decision addressing extraterritorial

application of United States law. See Microsoft Corp. v. AT&T

Corp., No. 05-1056, WL 123838 (U.S. Apr. 30, 2007). Microsoft

involved an attempt to apply United States patent law to purely

foreign acts of infringement. Jd. at *10.

25

extraterritorially and does not conflict with Canada’s or

British Columbia’s regulatory authority or sovereignty.

A Canadian court recently recognized that

CERCLA poses no threat to Canadian or provincial

sovereignty. United States v. Ivey, 30 O.R.3d 370 (Ontario

Ct. App. 1996). When enforcing a CERCLA judgment

against Canadians for costs EPA incurred to clean up a

site in the United States, the court concluded:

“The United States did not seek to enforce any

laws against extraterritorial conduct. It simply

sought financial compensation for actual costs

incurred in the United States in remedying

environmental damage inflicted in the United

States on property in the United States. It is no

extension of U.S. sovereign jurisdiction to enforce

its domestic judgments against those legally

accountable for an environmental mess in the

United States[.]” Id. at 374] 19.

The United States has also taken the position that

applying CERCLA to remediate pollution coming into the

United States from a foreign country is a permissible

application of the statute. EPA took that position when it

issued the Order in this case directing Teck to investigate

the contamination at the Site under CERCLA. Pet. App.

68a—99a (the Order). The United States took the same

position in ARC Ecology v. United States Department of

the Atr Force, 411 F.3d 1092 (9th Cir. 2005). In that case,

Philippine nationals tried to apply CERCLA outside the

territorial jurisdiction of the United States, to the cleanup

of former military bases in the Philippines. The United

States informed the court:

“A different analysis applies when a hazardous

substance is released or there is a threat of such a

release from another country into the United

States—for instance, across the Canadian border.

EPA has responded to such releases under

26

CERCLA. ER 42. EPA’s response in such a case is

not an extraterritorial application of CERCLA

because EPA is addressing a release into the

environment in the United States.”23 Brief For

The Federal Appellees at 19 n.2, ARC Ecology v.

_ United States Dep't of the Air Force, No. 04-15031

(9th Cir. Aug. 4, 2004), 2004 WL 1935956

(emphasis added).

These cases demonstrate that both Canadian courts and

the United States recognize that applying CERCLA to

remedy transboundary pollution that comes to rest in the

United States is no threat to Canadian sovereignty.”

Teck misapplies cases stating that statutes are to

be interpreted to avoid “unreasonable interference with

the sovereign authority of other nations.” See Pet. 17-18.

The proposition is true, but courts must first be satisfied

that interference with the sovereign authority of another

nation will occur. Hartford Fire Ins. Co. v. California,

509 U.S. 764, 798 (1993) (noting the “only substantial

question” was “whether ‘there is in fact a true conflict

between domestic and foreign law’”).25 As shown above,

23 The district court in ARC Ecology agreed, finding “{i]n

situations where a hazardous substance ... is released . . . into

the U.S. from a bordering country, such as Mexico or Canada,

EPA could respond under CERCLA.” ARC Ecology v. United

States Department of the Air Force, 294 F. Supp. 2d 1152, 1158

(N.D. Cal. 2003).

24 See also Canron, Inc. v. Fed. Ins. Co., 82 Wash. App.

480, 482, 918 P.2d 937 (1996) (the insured, a Canadian

company that EPA held liable for wastes the company trucked

to a United States facility for disposal, sought insurance

coverage for that environmental claim). Teck’s case is no

different from Canron, except the mode of transportation was a

river instead of a truck.

25 In Hartford Fire, the Court concluded that there was

no foreign law impediment, notwithstanding that the British

27

applying CERCLA poses no conflict with Canadian law or

threat to Canadian sovereignty. The canon of

construction does not, therefore, apply.?®

Moreover, even if applying CERCLA to Teck

constituted an extraterritorial application of the law —

and it does not—Teck erroneously characterizes the

“effects doctrine.” Pet. 16-17. That doctrine provides

that the presumption against extraterritoriality does not

apply when foreign conduct causes significant adverse

efiects in the United States. Hartford Fire, 509 U.S. at

796. Teck implies that the effects doctrine only justifies

applying United States law if the defendant is a United

States citizen who “commits acts” in the United States.

Pet. 17. ‘Teck is incorrect. Empagran, 542 U.S. at 165

(finding “wholly foreign” price-fixing to violate the

Sherman Act if it results in domestic injury); Hartford

Fire, 509 U.S. at 796 (addressing price-fixing in London

by London insurers). No court has limited the effects

doctrine in the manner Teck suggests. Empagran, 542

U.S. at 165 (“application of our antitrust laws to foreign

anticompetitive conduct is nonetheless reasonable, and

hence consistent with principles of prescriptive comity,

insofar as they reflect a legislative effort to redress

Government filed a brief contending the United States law

conflicted “significantly” with British law. Hartford Fire, 509

U.S. at 798. The Court noted a “true conflict” only arises when

compliance with both the domestic and foreign laws is

impossible. Jd. at 799.

26 Teck also misquotes Empagran and the canon of

construction in that case. Pet. 14 (stating Empagran instructs

that “as long as a ‘statute’s language reasonably permits an

interpretation’ that avoids extraterritorial application, a court

‘should adopt it.’”). Empagran actually states: “If the statute’s

language reasonably permits an interpretation consistent with

that intent [the intent of the Foreign Trade Antitrust

Improvements Act of 1982], we should adopt it.” Empagran,

542 U.S. at 174.

28

domestic antitrust injury that foreign anticompetitive

conduct has caused”).

Further, the effects doctrine is wholly consistent

with international law. It is well-established that a

country can apply its law to foreign conduct that takes

place outside its territory when the conduct causes

adverse effects within its territory. Restatement (Third)

of the Foreign Relations of the United States Restatement

§ 402(1)(c) (1987). International law also specifically

contemplates that suits for damages are available “in the

state where the injury occurred.” Restatement § 602(2)

cmt. c.

Applying CERCLA to Teck is not an

extraterritorial application of the law and is consistent

with international law and comity. Teck’s assertions to

the contrary do not merit review by this Court.

3. Denial Of Teck’s Rule 12(b)(6) Motion

Does Not Disrupt Foreign Relations

Powers

Teck asserts that the decision below will “usurp

the foreign-relations powers of the political branches” and

“threatens to disrupt the foreign policy of the United

States.” Pet. 21. Apart from dubious speculation, Teck’s

argument reiies on the propositions that (1) all

transboundary pollution causing significant harm in the

United States historically has been and must be

addressed through bilateralism and (2) EPA’s Order

should be presumed to be contrary to the authority and

will of the President. Pet. 21.27

27 Teck implies that applying CERCLA here will violate

international law. Pet. 21. As is the case throughout its

petition, Teck points to no international law or principle that

would be violated. In contrast, Teck’s position (that it should

not be held liable for harm it caused in the United States) is

contrary to principles of international law. See Restatement

29

As to Teck’s first proposition that CERCLA

liability is contrary to “elegant bilateralism,” Teck’s claim

is overstated. As indicated above, diplomacy-based

bilateralism has long coexisted with other means for

addressing transboundary harms in the United States,

including litigation in United States courts.

As to the President’s foreign affairs powers, this

case poses no more a foreign policy threat than any other

case in which United States law has been used to redress

harm caused by a foreign defendant in the United States.

E.g., Societe Nationale Industrielle Aerospatiale v. United

States Dist. Court, 482 U.S. 522, 525 (1987) (French

airplane manufacturer sued for negligent manufacture

when one of its planes crashed in Iowa); Ohio v.

Wyandotte Chem. Corp., 401 U.S. 493, 494 (1971) (Ohio

sued Dow Canada in nuisance for Dow’s discharge of

mercury into streams in Canada which ultimately

harmed Lake Erie in the United States); Durham v.

Herbert Olbrich GMBH & Co., 404 F.3d 1249 (10th Cir.

2005) (a product liability suit against a German

manufacturer of a component that injured a worker in

Oklahoma); First Natl Bank & Trust Corp. v. American

Eurocopter Corp., 378 F.3d 682 (7th Cir. 2004) (product

liability suit against French manufacturer of helicopter

that caused injury in Indiana).

Moreover, Teck overlooks that it was the President

(acting through EPA) who issued the Order at the center

of this case in the first place. Pet. App. 68a—99a (the

Order). Courts presume “the President has evaluated the

foreign policy consequences of such an exercise of U.S. law

and determined that it serves the interests of the United

States.” United States v. Corey, 232 F.3d 1166, 1179 (9th

§ 602(2) cmt. c. (specifically contemplating private remedies for

harm caused by transboundary pollution).

30

Cir. 2000).28 Nothing in the record indicates that the

same presumption should not also apply to the

President’s issuance of the Order in this case.

Finally, the argument that Teck makes here—that

the President’s foreign policy goals can take precedence

over, and justify not enforcing, applicable domestic laws

(Pet. 22)—was recently rejected by this Court.

Massachusetts v. Envtl. Prot. Agency, 127 S. Ct. 1438,

1463 (2007) (“while the President has broad authority in

foreign affairs, that authority does not extend to the

refusal to execute domestic laws’).

CONCLUSION

The Court should deny the petition for writ of

certiorari.

ROBERT M. MCKENNA

Attorney General

Maureen Hart

Solicitor General

Jay Douglas Geck* e

1125 Washington Street SE Deputy Solicitor General

Olympia, WA 98504-0100 *Counsel of Record

360-753-6245 Alexandra K. Smith

Attorneys For Respondent Kristie E. Carevich

State of Washington Assistant Attorneys General

28 The effect of the EPA’s withdrawal of the EPA Order

following a Settlement Agreement between EPA and Teck after

this suit was commenced remains to be litigated. Pet. App. 9a

n.10. It is notable that the Settlement nonetheless requires an

investigation of the Site that meets CERCLA requirements.

(The settlement agreement can be found on Teck’s website

at http://www.teckcominco.com/articles/roosevelt/index.htm.)