United States of America
Liability, Declaratory Relief, Jurisdiction, Injunctive Relief, Contract, Permits, Administrative, Remedies, Air pollution, Property
Joseph A. Pakootas (Pakootas) filed suit to enforce a unilateral administrative order issued by the United States Environmental Protection Agency (EPA) against Teck Cominco Metals, a Canadian corporation. The order required Teck to conduct a remedial investigation/feasibility study in a portion of the Columbia River entirely within the United States, where hazardous substances disposed of by Teck had come to be located. Teck owned and operated a lead-zinc smelter in Trail, British Columbia, Canada. Between 1906 and 1995, Teck generated and disposed of hazardous substances into the Columbia River. Pakootas filed the action in the federal district court under the citizen suit provision of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Teck moved to dismiss the complaint for failure to state a cause of action under CERCLA and lack of subject matter jurisdiction, on the ground that the district court could not enforce the order because it was based on activities carried out by Teck in Canada. The district court denied Teck’s motion to dismiss, and Teck sought interlocutory appeal. Teck argued before the court of appeals that to apply CERCLA to Teck’s activities in Canada would be an impermissible extraterritorial application of United States law. There was no clear statement by the US Congress that it intended to apply CERCLA extraterritorially. The court had to decide whether the litigation fitted within the CERCLA statutory framework. A threshold question was whether the case involved a domestic or extraterritorial application of CERCLA. In order to decide this, the court had to analyze whether all the conditions for CERCLA liability were satisfied: 1. The court held that the river portion entirely within the United States where slag generated at the Canadian smelting plant had come to be located qualified as a “facility” within CERCLA’s definition. 2. Even though the heavy metals had been generated at the Canadian smelting plant their disposal constituted a domestic “release” within the meaning of CERCLA when they came to be located within the United States. 3. The Canadian operator of the smelting plant qualified as “any person” within the meaning of CERCLA; the district court had specific personal jurisdiction over the operator under the tortious-act provision of the state’s long arm statute, and CERCLA clearly was intended to apply to releases of hazardous substances into the environment of the United States. Therefore, the court held that applying CERCLA here to the release of hazardous substances at the site was a domestic, rather than an extraterritorial application of CERLCA, even though the original source of the hazardous substances was located in a foreign country. The place of the actual release, not the place of operator’s arranging for disposal of the hazardous substances, determined the domestic or extraterritorial nature of the suit. Finally, the court had to decide whether Teck had “arranged” for the disposal of the substances in the meaning of CERCLA. Teck argued that it was not liable as a person who “arranged” for the disposal because it disposed of the substances itself, and without the help of another. The court held that the provision did not require the involvement of a second party as a prerequisite to the “arranger” liability. Any other interpretation would leave an illogical gap in the statute’s coverage and permit the generators of hazardous waste to freely dispose of it themselves without falling under the cleanup liability provisions. The court affirmed the decision by the district court.