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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006

## Text

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
ss cseesennversecsvneverensouses 1
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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.)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2229%3A03. Public record. Not legal advice.