American Bar Association Tort Trial & Insurance Practice Section Toxic Torts and Environmental Law Committee Reaching Across the 49 th Parallel: The Origins and Transformation of Canada/U.S. Environmental Disputes Phoenix, AZ April 2-4, 2009 Contamination ti of the Upper Columbia River and the Transboundary Application of CERCLA: Pakootas v. TCM Metals, Ltd. Presented by: Richard A. Du Bey Short Cressman & Burgess PLLC Seattle, WA (206) 682-3333 rdubey@scblaw.com 1
Superfund (CERCLA) 42 U.S.C. 9601 et seq. (1980) Provides a Federal Superfund to clean up uncontrolled or abandoned hazardous-waste sites..., and other... releases... into the environment Potentially responsible parties (PRPs) are held strictly jointly and severally liable for total cleanup cost 2
Superfund (CERCLA) 42 U.S.C. 9601 et seq. (1980) Provides for enforcement by Tribal, State and Federal governmental agencies for the clean up of hazardous substances and each of the three sovereigns may assert statutory claims for Natural Resource Damages (NRD) 3
Tribal Interests at Risk Indian Reservations are the remaining homeland of Indian Tribes Tribes entitled to use and enjoy their reservation homeland and associated on and off-reservation natural resources Tribal rights to natural resources have significant economic, cultural and spiritual value 4
Case Study: the Upper Columbia River Lake Roosevelt created by Grand Coulee Dam in 1942 150 miles between Grand Coulee Dam and US/Canada border Colville ll Reservation west of Lake Roosevelt Spokane Reservation east of Lake Roosevelt 5
Area of Concern Cominco Smelter 6
The Grand Coulee Dam 7
Source of Contamination Contamination from world s largest leadzinc smelter 16 km upstream from border 1992 USGS sediment study identified elevated levels of metals in sediments 1994 WA Dept. of Health issued fish consumption advisory 8
Trail Smelter 9
Timeline 1999 Tribe Petitioned U.S. Environmental Protection Agency (EPA) for PA Sept 2000 EPA granted Tribe s petition for Superfund Preliminary Assessment 2001 EPA conducting sampling/analysis sources of hazardous substances 2003 EPA issued Unilateral Administrative Order (UAO) to Teck Cominco, a Canadian corporation (TCM) 10
EPA s unilateral order concluded that Teck: Arranged for the disposal of its hazardous substances from the Trail Smelter into the Upper Columbia River by directly discharging up to 145,000 tons of slag annually prior to mid-1995. In addition, hazardous substances as liquid effluent were discharged into the Columbia River. Both slag and effluent were carried downstream and settled in slower flowing areas. 11
Rejection of EPA Order TCM rejects the EPA Order and asserts that EPA does not have jurisdiction. 2004 CERCLA Citizen Suit filed by 2 Tribal members against TCM seeking to enforce the UAO issued by EPA. Before answering the complaint, TCM filed a motion to dismiss i the case. 12
Issue Presented Whether U.S. Environmental Law (CERCLA) can be applied to a Canadian company whose discharges into the Columbia River flowed into Washington state. The case presents an issue of jurisdiction: whether Congress intended to make a foreign entity subject to CERCLA. 13
Presumption Against Extraterritoriality It is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.... It serves to protect against unintended d clashes between our laws and those of other nations which could result in international discord. EEOC v. Arabian American Oil Company and Aramco Services Company, 499 U.S. 244, 111 S. Ct. 1227 14
Exception: The Effects Doctrine [T]he presumption [against extraterritoriality] is generally not applied where the failure to extend the scope of the statute to a foreign setting will result in adverse effects within the United States. Environmental Defense Fund, Inc. v. Massey, 986 F.2d 528, 531 (D.C. Cir. 1993), citing Restatement (Second) of Foreign Relations Law, 38, 17 15
CERCLA to Remedy Domestic Conditions [The purpose p of] CERCLA... was (1) to ensure the prompt and effective cleanup of waste disposal sites, and (2) to assure that parties responsible for hazardous substances bore the cost of remedying the conditions they created. CERCLA is to be liberally construed to achieve those goals. Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 880-8181 (9th Cir. 2000), quoting Mardan Corp. v. C.G.C. CGC Music, Ltd., 804 F.2d 1454, 1455 (9th Cir. 1986) 16
District Court Decision Court denies TCM motion to dismiss (November 2004) finding that: Court has subject matter and personal jurisdiction and That the Complaint stated a cognizable claim for relief 17
The District Court held that: CERCLA was intended to address domestic pollution, even when the source of the domestic pollution originated in Canada under Canadian permits. Congress clearly l intended d that CERCLA be used to clean up hazardous substances within the United States. t 18
The District Court Found That CERCLA Applied Extraterritorially There is no doubt that CERCLA affirmatively expresses s a clear intent by Congress to remedy domestic conditions within the territorial jurisdiction of the U.S. That clear intent, combined with the well-established principle that the presumption [against extraterritoriality] does not apply where failure to extend the scope of the statute to a foreign setting will result in adverse effects within the United States, leads this court to conclude that extraterritorial application of CERCLA is appropriate in this case. 2004 U.S. Dist. LEXIS 23401 (E.D. Wash., Nov 8, 2004). 19
Appeal to 9th Circuit District Court opinion provided leave for TCM to file an immediate appeal to the Ninth Circuit Court of Appeals February 2005, the Ninth Circuit agreed to hear TCM s appeal Trial Court proceedings were stayed (so long as EPA continues to fund the RI/FS) 20
Case of First Impression First time in the 25 years since the Superfund was enacted, a circuit court will address whether a Canadian corporation operating in Canada can be held liable under a U.S. strict liability statute for the transboundary release of hazardous substances into the United States. 21
Ninth Circuit Holds That CERCLA Is Being Applied Domestically We hold that because CERCLA liability is triggered by an actual threatened release of hazardous substances, and because a release of hazardous substances took place within the United States, this suit involves a domestic application of CERCLA. 452 F.3d 1066, 1068 (9th Cir. 2006) 22
United States Opposes Teck Cominco s Petition for Writ of Certiorari Teck seeks en banc review by 9th Circuit and review is not granted. Teck next filed a writ of certiorari to the U.S. Supreme Court. Court requests brief from the United States, and the U.S. brief states that: Because this case involves a direct and compelling United States interest, an assertion of jurisdiction to prescribed law would be consistent with considerations of international comity. Brief of the United States at 16 23
United States Rejects Teck Cominco s International Law Challenge In its brief the United States rejects Teck Cominco s international law challenge. [a] A state has jurisdiction to prescribe law with respect to... conduct outside its territory that has or is intended to have substantial ti effect within its territory. (Quoting Restatement (Third) of Foreign Relations Law of the United States 402(1)(c) at 227-228 24
The United States Solicitor General goes on to say that: Here, petitioner s deliberate 90 year discharge of millions of tons of hazardous substances into a river just upstream from the United States directly and foreseeably caused harmful effects in the United States. Brief of United States at 17 25
United States Supreme Court Denies Petition for Writ of Certiorari Case returns to district court for litigation of enforcement action. Teck Cominco is proceeding with CERCLA-like RIFS under settlement agreement with EPA. Trial on the question of Teck Cominco s liability under CERCLA as a covered person is set for October 2010. 26
The Earth and myself are of one mind. The measure of the land and the measure of our bodies are the same. Himmaton Yalatkit (Joseph) Nez Perce Chief 27
Teck Cominco Smelter, Trail BC ARSENIC COPPER LEAD ZINC CADMIUM MERCURY