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Contamination of the Upper Columbia River And American Bar Association Tort Trial & Insurance Practice Section Toxic Torts and Environmental Law Committee Reaching Across the 49th Parallel: The Origins and Transformation of Canada/U.S. Environmental Disputes Phoenix, AZ April 2-4, 2009 Cont ami na tion of the Upper ClColumbi a 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 | [email protected] 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 aggfencies for the clean up pf of hazardous substances and each of the three sovereiggyns 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 Colum bia River • Lake Roosevelt created by Grand Coulee Dam in 1942 • 150 miles between Grand Coulee Dam and US/Canada border •Collllville Reservation west of LLkake 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 lead- zinc 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 adv isory 8 Trail Smelter 9 Timeline • 1999 Tribe Petitioned U.S. Environmental Protection Agency (EPA) for PA •Sept 2000 – EPA ggpranted Tribe’s petition for Superfund Preliminary Assessment • 2001 EPA conductinggpgy 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: • Arranggped 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. • Bo th slag and effluen t were carrie d 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 dism iss the case. 12 Issue Presented • Whether U. S. Environmental Law (CERCLA) can be applied to a Canadian company w hose discharg es 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 contraryypp intent appears, is meant to apply only within the territorial jurisdiction of the United States.” . It serves to protect agaitinst unitddintended clhlashes btbetween our laws and those of other nations which could result in international discord. EEOC v. Arabian American Oil Company and Aramco Services Comppyany,,, 499 U.S. 244, 111 S. Ct. 1227 14 Exception: The Effects Doctrine “[T]he presumption [against extraterritoriality] is generally not applied w here the ffuailure to extend the scope of the statute to a foreign setting will result in adverse effects within the United States.” Environmental Defense Fund,,y,, 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 pppurpose of] CERCLA . was (1) to ensure the prompt and effective cleanup of waste disposal sites, and (2) to assure that parties responsible for hhdazardous substances bore the cost of remedying the conditions they create d.” CERCLA is to be liberally construed to achieve those goals. Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 880-81 (9t h Cir. 2000), quoting Mar dan Corp. v. CCGC.G.C. Music, Ltd., 804 F.2d 1454, 1455 (9th Cir. 1986) 16 District Court Decision • Court denies TCM motion to dismiss (November 2004) finding that: – CtCourt hshas ssbjtubject 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 offmp the domestic pollution ori ginated in Canada under Canadian permits. • Congress clllearly intenddded that CERERLCLA be used to clean up hazardous subs tances within the Un ite d Sta tes. 18 The District Court Found That CERCLA Applied Extraterritorially There is no doubt that CERCLA affirmatively exprsssxpresses a clclrear intintntent by CnrssCongress to rmdremedy ‘domestic conditions’ within the territorial jjfurisdiction of the U.S. That clear intent ,m, combined with the well-established principle that the presumption [against extraterritoriality] does not apply where fa ilure 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 offpp 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 wwwill 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 Beinggpp Applied Dom estically “We hold that because CERCLA liability is triggered by an actual threatened release off, 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 su bstan tia l effec t within its terr itory. (Quoting Restatement (Third) of Foreign Relations Law of the United States § 402(1)(c) at 227-228 24 The United States Solicitor General ggyoes 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 direct ly and foreseea bly 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 lia bility 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.
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