## Facts

- Teck Cominco Metals, Ltd., a Canadian company, operated a lead-zinc smelter in Trail, British Columbia, near the Columbia River and upstream from Washington.
- From about 1906 to 1995, the smelter discharged large quantities of waste into the Columbia River, including slag containing hazardous substances (e.g., arsenic, cadmium, copper, lead, mercury, zinc).
- The Columbia River flows into the United States; EPA found slag and related contamination in depositional areas along the Upper Columbia River in northeastern Washington.
- EPA assessed the contamination and identified an “Upper Columbia River Site” consisting of U.S. areas where hazardous substances from Teck’s operations migrated or came to be placed.
- In December 2003, EPA issued a unilateral administrative order (UAO) under CERCLA requiring Teck to perform a remedial investigation/feasibility study (RI/FS) for the U.S. site.
- Teck did not comply with the UAO.
- Two enrolled members of the Confederated Tribes of the Colville Reservation filed a CERCLA citizen suit to enforce the UAO; the State of Washington intervened as a plaintiff.

## Issues

1. Whether enforcing a CERCLA UAO requiring investigation and response at a contaminated site within the United States constitutes an impermissible extraterritorial application of CERCLA when the defendant’s discharges occurred in Canada.
2. Whether Teck could be liable as an “arranger” under 42 U.S.C. § 9607(a)(3) despite discharging waste itself, rather than arranging for disposal by a separate party.

## Decision

- The Ninth Circuit affirmed the denial of Teck’s motion to dismiss.
- Applying CERCLA to require investigation and response at the Upper Columbia River Site was a domestic application because CERCLA liability is triggered by an actual or threatened release at a facility in the United States and the need for response actions there.
- The complaint plausibly alleged arranger liability under § 9607(a)(3); arranger liability was not categorically limited to situations where disposal is carried out by another entity.

## Legal Principles

- The presumption against extraterritoriality is not violated where the statute is applied to domestic conditions Congress targeted; under CERCLA, the focus is the release (or threatened release) and resulting response obligations at the contaminated site.
- CERCLA may reach transboundary pollution when hazardous substances are located, released, or threaten release within the United States, even if the original disposal occurred abroad.
- Under 42 U.S.C. § 9607(a)(3), arranger liability may attach where a party’s intentional disposal decisions result in hazardous substances coming to be located or released at a facility, and the provision is not limited to arrangements involving a third-party disposer.
- CERCLA’s remedial scheme supports construing liability provisions to place investigation and cleanup costs on parties responsible for contamination addressed by EPA orders and response actions.

## Conclusion

The Ninth Circuit allowed a CERCLA citizen suit to enforce EPA’s UAO against a Canadian smelter operator to proceed, holding that requiring investigation and response at a contaminated U.S. site was a domestic application of CERCLA and that the pleadings supported potential arranger liability under § 9607(a)(3).


Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066 (9th Cir. 2006)