Pakootas v. Teck Cominco Metals, Ltd.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH A. PAKOOTAS, an individual 
and enrolled member of the
Confederated Tribes of the
Colville Reservation; DONALD R.
MICHEL, an individual and enrolled
No. 05-35153
member of the Confederated
Tribes of the Coville Reservation;
STATE OF WASHINGTON,
 D.C. No.
CV-04-00256-AAM
Plaintiffs-Appellees, OPINION
v.
TECK COMINCO METALS, LTD., a
Canadian corporation,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Washington
Alan A. McDonald, Senior District Judge, Presiding
Argued and Submitted
December 5, 2005—Seattle, Washington
Filed July 3, 2006
Before: Ronald M. Gould and Marsha S. Berzon,
Circuit Judges, and William W Schwarzer,* District Judge.
Opinion by Judge Gould
*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
7277
PAKOOTAS v. TECK COMINCO METALS 7281
COUNSEL
Kevin M. Fong, Pillsbury Winthrop Shaw Pittman LLP, San
Francisco, California, for defendant-appellant Teck Cominco
Metals, Ltd.
Paul J. Dayton and Daniel F. Johnson, Short Cressman &
Burgess PLLC, Seattle, Washington, for plaintiffs-appellees
Joseph A. Pakootas and Donald R. Michel.
Alexandra K. Smith, Assistant Attorney General, Olympia,
Washington, for plaintiff/intervenor-appellee State of Wash-
ington.
Loren R. Dunn, Riddell Williams PS, Seattle, Washington, for
amici Washington Environmental Council, Washington, Pub-
lic Interest Research Group, and Citizens for a Clean Colum-
bia.
Rex S. Heinke, Akin Gump Strauss Hauer & Feld LLP, Los
Angeles, California, for amici Canadian Chamber of Com-
merce and the Mining Association of Canada.
Brian Hembacher, Deputy Attorney General, Los Angeles,
California, for amici People of the State of California ex rel.
Bill Lockyer, Attorney General for the State of California,
and the States of Arizona, Idaho, Montana and Oregon.
Margaret K. Pfeiffer, Sullivan & Cromwell LLP, Washington,
D.C., for amicus Government of Canada.
Carter G. Phillips, Sidley Austin Brown & Wood LLP, Wash-
ington, D.C., for amicus Chamber of Commerce of the United
States of America.
Rob Roy Smith, Morisset Schlosser Jozwiak & McGaw, Seat-
tle, Washington, for amicus Okanagan National Alliance in
support of plaintiffs-appellees.
7282 PAKOOTAS v. TECK COMINCO METALS
Catherine E. Stetson, Hogan & Hartson LLP, Washington,
D.C., for amici National Mining Association and the National
Association of Manufacturers.
Martin Wagner, Earthjustice, Oakland, California, for amici
Sierra Club and Sierra Club of Canada.
Shannon D. Work, Funke & Work, Coeur d’Alene, Idaho, for
amicus Spokane Tribe of Indians.
OPINION
GOULD, Circuit Judge:
Joseph A. Pakootas and Donald R. Michel (collectively
“Pakootas”) filed suit to enforce a Unilateral Administrative
Order (Order) issued by the United States Environmental Pro-
tection Agency (EPA) against Teck Cominco Metals, Ltd.
(Teck), a Canadian corporation. The Order requires Teck to
conduct a remedial investigation/feasibility study (RI/FS) in
a portion of the Columbia River entirely within the United
States, where hazardous substances disposed of by Teck have
come to be located. We decide today whether a citizen suit
based on Teck’s alleged non-compliance with the Order is a
domestic or an extraterritorial application of the Comprehen-
sive Environmental Response, Compensation, and Liability
Act (CERCLA), 42 U.S.C. §§ 9601-9675. Further, we address
Teck’s argument that it is not liable for having “arranged for
disposal” of hazardous substances because it disposed of the
hazardous substances itself, rather than arranging for disposal
“by any other party or entity.” § 9607(a)(3).1 We hold that
because CERCLA liability is triggered by an actual or threat-
ened release of hazardous substances, and because a release
of hazardous substances took place within the United States,
1
Unless otherwise indicated, statutory citations herein are to Title 42 of
the United States Code.
PAKOOTAS v. TECK COMINCO METALS 7283
this suit involves a domestic application of CERCLA. Further,
we reject Teck’s contention that it is not liable under
§ 9607(a)(3) because it disposed of the hazardous substances
itself.
I
We consider an interlocutory appeal of the denial of Teck’s
motion to dismiss.2 In August of 1999, the Colville Tribes
petitioned the EPA under § 9605 to conduct an assessment of
hazardous substance contamination in and along the Colum-
bia River in northeastern Washington state. The EPA began
the site assessment in October 1999, and found contamination
that included “heavy metals such as arsenic, cadmium, cop-
per, lead, mercury and zinc.” In re Upper Columbia River
Site, Docket No. CERCLA-10-2004-0018, at 2 (Unilateral
Administrative Order for Remedial Investigation/Feasibility
Study Dec. 11, 2003), available at http://yosemite.epa.gov/
R10/CLEANUP.NSF/UCR/Enforcement [hereinafter UAO].
The “EPA also observed the presence of slag, a by-product of
the smelting furnaces, containing glassy ferrous granules and
other metals, at beaches and other depositional areas at the
Assessment Area.” Id. at 2-3. The EPA completed its site
assessment in March of 2003, and concluded that the Upper
Columbia River Site (the Site)3 was eligible for listing on the
National Priorities List (NPL).4
2
Because this appeal follows denial of a motion to dismiss, we take the
facts as stated in the complaint as true and in the light most favorable to
Pakootas. See Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir.
1996).
3
The “Upper Columbia River Site” includes “the areal extent of contam-
ination in the United States associated with the Upper Columbia River,
and all suitable areas in proximity to the contamination necessary for
implementation of a response action.” UAO at 2.
4
The NPL “is a compilation of uncontrolled hazardous substances
releases in the United States that are ‘priorities’ for long-term evaluation
and response.” 4 William H. Rodgers, Jr., Environmental Law: Hazardous
Wastes and Substances § 8.7(C) (Supp. 2005). “Inclusion of a site or facil-
ity on the list requires no action, assigns no liability, and does not pass
judgment on the owner or operator. . . . [T]he key consequence of being
listed is that only NPL sites qualify for [Superfund]-financed remedial
action.” Id.
7284 PAKOOTAS v. TECK COMINCO METALS
Teck owns and operates a lead-zinc smelter (“Trail Smelt-
er”) in Trail, British Columbia.5 Between 1906 and 1995,
Teck generated and disposed of hazardous materials, in both
liquid and solid form, into the Columbia River. These wastes,
known as “slag,” include the heavy metals arsenic, cadmium,
copper, mercury, lead, and zinc, as well as other unspecified
hazardous materials. Before mid-1995, the Trail Smelter dis-
charged up to 145,000 tons of slag annually into the Columbia
River. Although the discharge took place within Canada, the
EPA concluded that Teck
has arranged for the disposal of its hazardous sub-
stances from the Trail Smelter into the Upper
Columbia River by directly discharging up to
145,000 tonnes of slag annually prior to mid-1995.
Effluent, such as slag, was discharged into the
Columbia River through several outfalls at the Trail
Smelter . . . . The slag was carried downstream in the
passing river current and settled in slower flowing
quiescent areas.6
Id. at 3. A significant amount of slag has accumulated and
adversely affects the surface water, ground water, sediments,
5
This is not the first time the Trail Smelter has been in a dispute over
transboundary environmental pollution. See generally Michael J.
Robinson-Dorn, The Trail Smelter: Is What’s Past Prologue? EPA Blazes
a New Trail for CERCLA, 14 N.Y.U. Envtl. L.J. 233, 241-53 (2006)
(describing factual and procedural background of the Trail Smelter Arbi-
tration, which concerned sulfur dioxide emissions from the Trail Smelter
that migrated into the United States in the early twentieth century).
6
The complaint alleges that the Trail Smelter discharged up to 145,000
tons of slag annually, but the EPA alleges that the Trail Smelter dis-
charged up to 145,000 tonnes annually. A “ton” is equivalent to 2,000
pounds. A “tonne,” or metric ton, is equivalent to 1,000 kilograms, or
2,205 pounds. Thus, 145,000 tonnes, each with 205 pounds more than an
American “ton,” is equivalent to about 160,000 tons. Either way, the Trail
Smelter discharged a ton of slag in the colloquial sense, and the difference
between the two figures is immaterial for our purposes. Because we take
the facts as alleged by Pakootas, we use his figure of 145,000 tons.
PAKOOTAS v. TECK COMINCO METALS 7285
and biological resources of the Upper Columbia River and
Lake Roosevelt. Technical evidence shows that the Trail
Smelter is the predominant source of contamination at the
Site. The physical and chemical decay of slag is an ongoing
process that releases arsenic, cadmium, copper, zinc, and lead
into the environment, causing harm to human health and the
environment.
After the EPA determined that the Site was eligible for list-
ing on the NPL, it evaluated proposing the Site for placement
on the NPL for the purpose of obtaining federal funding for
evaluation and future cleanup. At that time Teck Cominco
American, Inc. (TCAI)7 approached the EPA and expressed a
willingness to perform an independent, limited human health
study if the EPA would delay proposing the Site for NPL list-
ing. The EPA and TCAI entered into negotiations, which
reached a stalemate when the parties could not agree on the
scope and extent of the investigation that TCAI would per-
form. The EPA concluded that TCAI’s proposed study would
not provide the information necessary for the EPA to select an
appropriate remedy for the contamination, and as a result the
EPA issued the Order on December 11, 2003. The Order
directed Teck to conduct a RI/FS8 under CERCLA for the
Site. To date Teck has not complied with the Order, and the
EPA has not sought to enforce the Order.
Pakootas filed this action in federal district court under the
citizen suit provision of CERCLA. § 9659(a)(1). Pakootas
sought a declaration that Teck has violated the Order, injunc-
7
TCAI is a wholly-owned American subsidiary of Teck.
8
“The purpose of the remedial investigation/feasibility study (RI/FS) is
to assess site conditions and evaluate alternatives to the extent necessary
to select a remedy. Developing and conducting an RI/FS generally
includes the following activities: project scoping, data collection, risk
assessment, treatability studies, and analysis of alternatives. The scope and
timing of these activities should be tailored to the nature and complexity
of the problem and the response alternatives being considered.” 40 C.F.R.
§ 300.430(a)(2).
7286 PAKOOTAS v. TECK COMINCO METALS
tive relief enforcing the Order against Teck, as well as penal-
ties for non-compliance and recovery of costs and fees. Teck
moved to dismiss the complaint pursuant to Federal Rule of
Civil Procedure 12(b)(1) and 12(b)(6) 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. Teck also moved to dismiss for lack
of personal jurisdiction over Teck, a Canadian corporation
with no presence in the United States. After Teck filed its
motion to dismiss, the State of Washington moved to inter-
vene as of right as a plaintiff in the action. The district court
granted the motion to intervene, and considered Teck’s pend-
ing motion to dismiss to apply to both Pakootas’s complaint
and the State of Washington’s complaint-in-intervention.
The district court denied Teck’s motion to dismiss. It held
that because the case arises under CERCLA “there is a federal
question which confers subject matter jurisdiction on this
court.” Because there was a federal question, and because
Pakootas’s claims were not insubstantial or frivolous, the dis-
trict court held that dismissal under Federal Rule of Civil Pro-
cedure 12(b)(1) was inappropriate. The district court also held
that “[t]he facts alleged in plaintiffs’ complaints establish this
court’s specific, limited personal jurisdiction over the defen-
dant.”
Much of district court’s order was devoted to analyzing
Teck’s argument that the suit involved an impermissible
extraterritorial application of CERCLA, and thus whether dis-
missal for failure to state a claim under CERCLA was appro-
priate. The district court first acknowledged that “there is
some question whether this case really involves an extraterri-
torial application of CERCLA.” However, the district court
assumed that the case involved an extraterritorial application
of CERCLA, and considered whether extraterritorial applica-
tion was permissible here.
PAKOOTAS v. TECK COMINCO METALS 7287
In addressing the question of extraterritorial application, the
district court acknowledged that “Congress has the authority
to enforce its laws beyond the territorial boundaries of the
United States,” but that 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.’ ” (quoting EEOC v. Arabian
Am. Oil Co. (“Aramco”), 499 U.S. 244, 248 (1991)). How-
ever, the district court concluded that the presumption against
extraterritoriality was overcome here, because
there is no doubt that CERCLA affirmatively
expresses a clear intent by Congress to remedy
‘domestic conditions’ within the territorial jurisdic-
tion of the U.S. That clear intent, combined with the
well-established principle that the presumption
[against extraterritoriality] is not applied where fail-
ure to extend the scope of the statute to a foreign set-
ting will result in adverse effects within the United
States, leads this court to conclude that extraterrito-
rial application of CERCLA is appropriate in this
case.
Further, the district court held that Teck was a “person” under
the meaning of § 9601(21), and held that Teck’s liability as a
“generator” of hazardous waste and/or as an “arranger” of the
disposal of hazardous waste could not be ruled out under
§ 9607(a)(3).9
9
CERCLA defines an arranger as:
any person who by contract, agreement, or otherwise arranged for
disposal or treatment, or arranged with a transporter for transport
for disposal or treatment, of hazardous substances owned or pos-
sessed by such person, by any other party or entity, at any facility
or incineration vessel owned or operated by another party or
entity and containing such hazardous substances.
§ 9607(a)(3).
7288 PAKOOTAS v. TECK COMINCO METALS
The district court sua sponte certified its order for immedi-
ate appeal to us pursuant to 28 U.S.C. § 1292(b). Thereafter,
Teck petitioned for permission to appeal, which we granted.
While Teck’s petition for permission to appeal was pending
before us, the district court granted Teck’s motion to stay fur-
ther proceedings in the district court pending the outcome of
this interlocutory appeal.10
On this appeal, Teck does not challenge the district court’s
determination that it had personal jurisdiction over Teck. And
although Teck “disputes the conclusion” that the district court
had subject matter jurisdiction to hear the case, it does not
argue in its briefing that the district court was without subject
matter jurisdiction. Rather, Teck argues that the district court
should have dismissed Pakootas’s complaint under Federal
10
After this appeal was submitted for decision, Teck filed a request for
us to take judicial notice of a settlement agreement between Teck and
EPA, in which the EPA agreed to withdraw the Order that is the subject
of this appeal. Neither Pakootas nor the State of Washington, who are the
plaintiff and plaintiff-intervenor in this litigation, was a party to the settle-
ment agreement. We take notice that the settlement between Teck and the
EPA was reached, but we do not take notice of supplemental arguments
urged by Teck relating to the agreement.
The parties are agreed that the settlement between Teck and the EPA
does not render this action moot. Teck argues that this settlement renders
moot Pakootas’s claims for injunctive relief to enforce the Order and for
declaratory relief that Teck is in violation of the Order, but that Pakootas’s
claims for civil penalties “for each day” that Teck violated the Order and
for attorneys’ fees, are not moot. Pakootas disputes that the settlement is
self-executing and that it necessarily renders moot the claims for injunc-
tive and declaratory relief. For purposes of this appeal, it is sufficient for
us to note that Pakootas’s claims for civil penalties and for attorneys’ fees
are not moot, and that we must proceed to decision of the appeal. On
remand, we leave for the district court to decide in the first instance
whether the claims for injunctive and declaratory relief are moot.
We further deny Teck’s request for us to take judicial notice on this
appeal of the following documents: (1) Order Granting Motions to Lift
Stay, issued by the district court on October 25, 2005; (2) Plaintiffs’
Amended Complaint, filed November 7, 2005; and (3) State of Washing-
ton’s First Amended Complaint in Intervention, filed November 4, 2005.
PAKOOTAS v. TECK COMINCO METALS 7289
Rule of Civil Procedure 12(b)(6) for two reasons. First, Teck
argues that to apply CERCLA to Teck’s activities in Canada
would be an impermissible extraterritorial application of
United States law. Second, Teck argues that it is not liable as
a person who “arranged for disposal” of hazardous substances
under § 9607(a)(3).
II
We review de novo a district court’s decision on a motion
to dismiss for failure to state a claim pursuant to Federal Rule
of Civil Procedure 12(b)(6). Decker v. Advantage Fund Ltd.,
362 F.3d 593, 595-96 (9th Cir. 2004). We review questions of
law de novo. Torres-Lopez v. May, 111 F.3d 633, 638 (9th
Cir. 1997).
III
We begin by considering how this litigation fits within the
CERCLA statutory framework. CERCLA sets forth a compre-
hensive scheme for the cleanup of hazardous waste sites, and
imposes liability for cleanup costs on the parties responsible
for the release or potential release of hazardous substances
into the environment. See Pinal Creek Group v. Newmont
Mining Corp., 118 F.3d 1298, 1300 (9th Cir. 1997); see also
Gen. Elec. Co. v. Litton Indus. Automation Sys., Inc., 920 F.2d
1415, 1422 (8th Cir. 1990) (stating that “two . . . main pur-
poses of CERCLA” are “prompt cleanup of hazardous waste
sites and imposition of all cleanup costs on the responsible
party”) (cited with approval in Meghrig v. KFC W., Inc., 516
U.S. 479, 483 (1996)).
To ensure the prompt cleanup of hazardous waste sites,
CERCLA gives four options to the EPA:11 (1) the EPA can
11
CERCLA vests this authority in the President, who in turn has dele-
gated most of his functions and responsibilities to the EPA. See 40 C.F.R.
§ 300.100.
7290 PAKOOTAS v. TECK COMINCO METALS
investigate and remediate hazardous waste sites itself under
§ 9604, and later seek to recover response costs from the
potentially responsible parties (PRPs) under § 9607; (2) the
EPA can initiate settlement negotiations with PRPs under
§ 9622; (3) the EPA can file suit in federal district court to
compel the PRPs to abate the threat if there is an “imminent
and substantial” threat to public health or welfare under
§ 9606(a); or (4) the EPA can issue orders directing the PRPs
to clean up the site under § 9606(a). In this case, the EPA
chose the fourth approach, and issued the Order to Teck under
§ 9606(a).
If a party receives an order and refuses to comply, enforce-
ment options are available. See generally Solid State Circuits,
Inc. v. EPA, 812 F.2d 383, 387 (8th Cir. 1987). First, the EPA
may bring an action in federal district court to compel compli-
ance, using the contempt powers of the district court as a
potential sanction for non-compliance. § 9606(a). Second, the
EPA may bring an action in federal district court seeking to
impose fines of up to $25,000 for each day that the party fails
to comply with the order. § 9606(b)(1). Third, the EPA may
initiate cleanup of the facility itself under § 9604, and the
party responsible for the pollution is potentially liable for the
response and cleanup costs, plus treble damages.
§ 9607(c)(3).
Here, the EPA has not sought to enforce the Order through
any of the mechanisms described above.12 Rather, Pakootas
initiated this suit in federal district court under § 9659, the cit-
izen suit provision of CERCLA. Section 9659(a)(1) provides
a cause of action for any person to commence a civil action
“against any person . . . who is alleged to be in violation of
any standard, regulation, condition, requirement, or order
which has become effective pursuant to this chapter.” Section
12
So far as we can tell from the record, the EPA did not take any formal
action against Teck between issuing the Order on December 11, 2003 and
settling with Teck on June 2, 2006.
PAKOOTAS v. TECK COMINCO METALS 7291
9659(c) gives the district court the power “to order such
action as may be necessary to correct the violation, and to
impose any civil penalty provided for the violation.” Further,
§ 9613(h)(2), the “timing of review” provision of CERCLA,
grants federal courts jurisdiction to review an order issued
under § 9606(a) when a party seeks to enforce the order.
Having placed this litigation in context, we turn to the mer-
its.
IV
Teck’s primary argument is that, in absence of a clear state-
ment by Congress that it intended CERCLA to apply extrater-
ritorially, the presumption against extraterritorial application
of United States law precludes CERCLA from applying to
Teck in Canada. We need to address whether the presumption
against extraterritoriality applies only if this case involves an
extraterritorial application of CERCLA. So a threshold ques-
tion is whether this case involves a domestic or extraterritorial
application of CERCLA.
[1] Unlike other environmental laws such as the Clean Air
Act, 42 U.S.C. §§ 7401-7671q, Clean Water Act, 33 U.S.C.
§§ 1251-1387, and Resource Conservation and Recovery Act
(RCRA), 42 U.S.C. §§ 6901-6992k, CERCLA is not a regula-
tory statute. Rather, CERCLA imposes liability for the
cleanup of sites where there is a release or threatened release
of hazardous substances into the environment. See Carson
Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 881 (9th
Cir. 2001) (en banc) (“CERCLA holds a PRP liable for a dis-
posal that ‘releases or threatens to release’ hazardous sub-
stances into the environment.”). CERCLA liability attaches
when three conditions are satisfied: (1) the site at which there
is an actual or threatened release of hazardous substances is
a “facility” under § 9601(9); (2) a “release” or “threatened
release” of a hazardous substance from the facility has
7292 PAKOOTAS v. TECK COMINCO METALS
occurred, § 9607(a)(4); and (3) the party is within one of the
four classes of persons subject to liability under § 9607(a).13
[2] CERCLA defines the term “facility” as, in relevant part,
“any site or area where a hazardous substance has been depos-
ited, stored, disposed of, or placed, or otherwise come to be
located.” § 9601(9). The Order defines the “facility” in this
case as the Site, which is described as the “extent of contami-
nation in the United States associated with the Upper Colum-
bia River.” UAO at 2 (emphasis added); see also UAO at 5
(“The Upper Columbia River Site is a ‘facility’ as defined in
Section 101(9) of CERCLA, 42 U.S.C. § 9601(9).”).14 The
13
There is a question whether the elements of CERCLA liability out-
lined in § 9607(a) are the same elements that the EPA must allege when
issuing an order under § 9606(a). That is, § 9606(a) authorizes the EPA to
issue “such orders as may be necessary to protect public health and wel-
fare and the environment,” but does not specify exactly what the EPA
must allege before issuing such orders. Section 9606(b)(1) states that the
EPA can seek fines for non-compliance in federal district court unless the
person who refuses to comply with the order has “sufficient cause.”
The Eighth Circuit, the only federal court of appeals to address the
issue, has held that “sufficient cause” includes a defense that “the applica-
ble provisions of CERCLA, EPA regulations and policy statements, and
any formal or informal hearings or guidance the EPA may provide, give
rise to an objectively reasonable belief in the invalidity or inapplicability
of the clean-up order.” Solid State Circuits, 812 F.2d at 392. We need not
here decide whether a party that is not liable under § 9607(a) necessarily
has “sufficient cause” to refuse to comply with an order issued under
§ 9606(a) because, as we hold below, Teck is potentially liable under
§ 9607(a).
However, one element of § 9607(a) liability does not apply here. In pri-
vate cost recovery actions under § 9607(a), the claimant must incur
response costs that are both “necessary” and “consistent with the national
contingency plan.” § 9607(a)(4). See Carson Harbor Vill., 270 F.3d at
871-72. Because Pakootas filed a citizen suit under § 9659 rather than a
private cost recovery action under § 9607(a), the requirement that a private
party incur response costs before filing suit does not apply here.
14
Because the EPA and Pakootas in seeking enforcement of the EPA’s
order do not characterize either the Trail Smelter or the Columbia River
in Canada as a facility, we need not and do not reach whether these sites
are facilities for purposes of CERCLA.
PAKOOTAS v. TECK COMINCO METALS 7293
slag has “come to be located” at the Site, and the Site is thus
a facility under § 9601(a). See 3550 Stevens Creek Assocs. v.
Barclays Bank of California, 915 F.2d 1355, 1360 n.10 (9th
Cir. 1990) (“[T]he term facility has been broadly construed by
the courts, such that in order to show that an area is a facility,
the plaintiff need only show that a hazardous substance under
CERCLA is placed there or has otherwise come to be located
there.” (internal quotation marks omitted)). The Order defines
the facility as being entirely within the United States, and
Teck does not argue that the Site is not a CERCLA facility.
Because the CERCLA facility is within the United States, this
case does not involve an extraterritorial application of CER-
CLA to a facility abroad. The theory of Pakootas’s complaint,
seeking to enforce the terms of the Order to a “facility” within
the United States, does not invoke extraterritorial application
of United States law precisely because this case involves a
domestic facility.
[3] The second element of liability under CERCLA is that
there must be a “release” or “threatened release” of a hazard-
ous substance from the facility into the environment. See
§ 9607(a)(4). To determine if there is an actual or threatened
release here, we consider the statutory definition of release.
CERCLA defines a “release,” with certain exceptions not rel-
evant here, as “any spilling, leaking, pumping, pouring, emit-
ting, emptying, discharging, injecting, escaping, leaching,
dumping, or disposing into the environment.” § 9601(22).
Here, several events could potentially be characterized as
releases. First, there is the discharge of waste from the Trail
Smelter into the Columbia River in Canada. Second, there is
the discharge or escape of the slag from Canada when the
Columbia River enters the United States. And third, there is
the leaching of heavy metals and other hazardous substances
from the slag into the environment at the Site. Although each
of these events can be characterized as a release, CERCLA
liability does not attach unless the “release” is from a CER-
CLA facility.
7294 PAKOOTAS v. TECK COMINCO METALS
[4] Here, as noted, the Order describes the facility as the
Site; not the Trail Smelter in Canada or the Columbia River
in Canada. Pakootas has alleged that the leaching of hazard-
ous substances from the slag that is in the Site is a CERCLA
release, and Teck has not argued that the slag’s interaction
with the water and sediment of the Upper Columbia River is
not a release within the intendment of CERCLA. Our prece-
dents establish that the passive migration of hazardous sub-
stances into the environment from where hazardous
substances have come to be located is a release under CER-
CLA. See A&W Smelter & Refiners, Inc. v. Clinton, 146 F.3d
1107, 1111 (9th Cir. 1998) (holding that wind blowing parti-
cles of hazardous substances from a pile of waste was a CER-
CLA release); United States v. Chapman, 146 F.3d 1166,
1170 (9th Cir. 1998) (affirming summary judgment where the
Government presented evidence that corroding drums were
leaking hazardous substances into the soil); see also Coeur
d’Alene Tribe v. Asarco, Inc., 280 F. Supp. 2d 1094, 1113 (D.
Idaho 2003) (“Th[e] passive movement and migration of haz-
ardous substances by mother nature (no human action assist-
ing in the movement) is still a ‘release’ for purposes of
CERCLA in this case.”). We hold that the leaching of hazard-
ous substances from the slag at the Site is a CERCLA release.
That release—a release into the United States from a facility
in the United States—is entirely domestic.
The third element of liability under CERCLA is that the
party must be a “covered person” under § 9607(a). Teck
argues that it is not a covered person under § 9607(a)(3)
because it has not “arranged for disposal” of a hazardous sub-
stance “by any other party or entity” as required by
§ 9607(a)(3), because Teck disposed of the slag itself, and
without the aid of another. Alternatively, Teck argues that if
it is an arranger under § 9607(a)(3), then basing CERCLA lia-
bility on Teck arranging for disposal of slag in Canada is an
impermissible extraterritorial application of CERCLA.
PAKOOTAS v. TECK COMINCO METALS 7295
Assuming that Teck is an arranger under § 9607(a)(3),15 we
consider whether the fact that the act of arranging in Canada
for disposal of the slag makes this an extraterritorial applica-
tion of CERCLA. Teck argues that because it arranged in
Canada for disposal, that is, the act of arranging took place in
Canada even though the hazardous substances came to be
located in the United States, it cannot be held liable under
CERCLA without applying CERCLA extraterritorially.
[5] The text of § 9607(a)(3) applies to “any person” who
arranged for the disposal of hazardous substances. The term
“person” includes, inter alia, “an individual, firm, corpora-
tion, association, partnership, consortium, joint venture, [or]
commercial entity.” § 9601(21). On its face, this definition
includes corporations such as Teck, although the definition
does not indicate whether foreign corporations are covered.
Teck argues that because the Supreme Court recently held
that the term “any court” as used in 18 U.S.C. § 922(g)(1)
does not include foreign courts, we should interpret the term
“any person” so as not to include foreign corporations. See
Small v. United States, 544 U.S. 385, 390-91 (2005).
The decision in Small was based in part on United States
v. Palmer, 16 U.S. (3 Wheat.) 610 (1818), in which Chief Jus-
tice Marshall held for the Court that the words “any person or
persons,” as used in a statute prohibiting piracy on the high
seas, “must not only be limited to cases within the jurisdiction
of the state, but also to those objects to which the legislature
intended to apply them.” Id. at 631. The Court held that “any
person or persons” did not include crimes “committed by a
person on the high seas, on board of any ship or vessel
belonging exclusively to subjects of a foreign state, on per-
sons within a vessel belonging exclusively to subjects of a
foreign state.” Id. at 633-34. However, the Court held that
15
We address in the next section Teck’s contention that it is not a person
for § 9607(a) purposes because it has not “arranged for disposal” of haz-
ardous substances “by any other party or entity.”
7296 PAKOOTAS v. TECK COMINCO METALS
even though the statute did not specifically enumerate foreign
parties as “persons,” the statute did apply to punish piracy
committed by foreign parties against vessels belonging to sub-
jects of the United States. See id.
[6] Palmer relied upon two benchmarks for determining
whether terms such as “any person” apply to foreign persons:
(1) the state must have jurisdiction over the party, and (2) the
legislature must intend for the term to apply. See id. at 631.
Regarding jurisdiction, Teck argued in the district court that
there was no personal jurisdiction over it. The district court
held that there was personal jurisdiction, and Teck has not
appealed that determination. Because a party can waive per-
sonal jurisdiction, we are not required to consider it sua
sponte. See Smith v. Idaho, 392 F.3d 350, 355 n.3 (9th Cir.
2004) (citing the “longstanding rule that personal jurisdiction,
in the traditional sense, can be waived and need not be
addressed sua sponte”). Nevertheless, we agree with the dis-
trict court that there is specific personal jurisdiction over Teck
here.16 Because there is specific personal jurisdiction over
16
We do not decide whether there is general personal jurisdiction over
Teck. Rather, we adopt the district court’s conclusion that there is specific
personal jurisdiction over Teck here, based on Washington State’s long-
arm statute, which applies to “the commission of a tortious act” within
Washington, Wash. Rev. Code § 4.28.185, and our case law holding that
“personal jurisdiction can be predicated on (1) intentional actions (2)
expressly aimed at the forum state (3) causing harm, the brunt of which
is suffered—and which the defendant knows is likely to be suffered—in
the forum state.” See Core-Vent Corp. v. Nobel Inds. AB, 11 F.3d 1482,
1486 (9th Cir. 1993).
AT&T v. Compagnie Bruxelles Lambert, 94 F.3d 586 (9th Cir. 1996),
is not to the contrary. There, AT&T claimed that Compagnie Bruxelles
Lambert was liable under CERCLA because its subsidiary operated a site
from which hazardous substances were released. Id. at 590-91. We held
that there was no specific jurisdiction over the parent company because (1)
the parent company had insufficient independent contacts with the United
States to establish personal jurisdiction, and (2) the subsidiary was not act-
ing as the parent company’s alter ego. Id. Here, Teck has sufficient inde-
pendent personal contacts with the forum state to justify specific personal
jurisdiction.
PAKOOTAS v. TECK COMINCO METALS 7297
Teck here based on its allegedly tortious act aimed at the state
of Washington, the first Palmer benchmark is satisfied, and
we can appropriately construe the term “any person” to apply
to Teck.
[7] The second Palmer benchmark is that the legislature
must intend for the statute to apply to the situation. Except for
the statutory definition of “any person,” CERCLA is silent
about who is covered by the Act. But CERCLA is clear about
what is covered by the Act. CERCLA liability attaches upon
release or threatened release of a hazardous substance into the
environment. CERCLA defines “environment” to include
“any other surface water, ground water, drinking water sup-
ply, land surface or subsurface strata, or ambient air within the
United States or under the jurisdiction of the United States.”
§ 9601(8) (emphasis added). CERCLA’s purpose is to pro-
mote the cleanup of hazardous waste sites where there is a
release or threatened release of hazardous substances into the
environment within the United States. See ARC Ecology v.
U.S. Dep’t of the Air Force, 411 F.3d 1092, 1096-98 (9th Cir.
2005) (citing legislative history demonstrating that Congress
intended CERCLA to apply to cleanup hazardous waste sites
in the United States). Because the legislature intended to hold
parties responsible for hazardous waste sites that release or
threaten release of hazardous substances into the United
States environment, the second Palmer benchmark is satisfied
here.
Although the Palmer analysis supports the proposition that
CERCLA applies to Teck, Palmer of course does not address
the distinction between domestic or extraterritorial application
of CERCLA. The Palmer analysis, however, in what we have
termed its second benchmark, brings to mind the “domestic
effects” exception to the presumption against extraterritorial
application of United States law. See Steele v. Bulova Watch
Co., 344 U.S. 280, 287-88 (1952) (finding jurisdiction in a
trademark suit against a person in Mexico who manufactured
counterfeit Bulova watches that then entered and caused harm
7298 PAKOOTAS v. TECK COMINCO METALS
within the United States). The difference between a domestic
application of United States law and a presumptively imper-
missible extraterritorial application of United States law
becomes apparent when we consider the conduct that the law
prohibits. In Steele the prohibited conduct, the unauthorized
use and reproduction of Bulova’s registered trademark, took
place in Mexico but the harm, the dilution of Bulova’s trade-
mark, took place in the United States. Id. at 287. The Court
therefore held that there was jurisdiction in that case.
Here, the operative event creating a liability under CER-
CLA is the release or threatened release of a hazardous sub-
stance. See § 9607(a)(4). Arranging for disposal of such
substances, in and of itself, does not trigger CERCLA liabil-
ity, nor does actual disposal of hazardous substances.17 A
release must occur or be threatened before CERCLA is trig-
gered. A party that “arranged for disposal” of a hazardous
substance under § 9607(a)(3) does not become liable under
CERCLA until there is an actual or threatened release of that
substance into the environment. Arranging for disposal of
hazardous substances, in itself, is neither regulated under nor
prohibited by CERCLA. Further, disposal activities that were
legal when conducted can nevertheless give rise to liability
under § 9607(a)(3) if there is an actual or threatened release
of such hazardous substances into the environment. See Cad-
17
The terms “disposal” and “release” are each defined in CERCLA.
“Disposal” is defined by reference to RCRA § 6903(3), which defines
“disposal” as “the discharge, deposit, injection, dumping, spilling, leaking,
or placing of any solid waste or hazardous waste into or on any land or
water so that such solid waste or hazardous waste or any constituent
thereof may enter the environment or be emitted into the air or discharged
into any waters, including ground waters.” CERCLA defines “release” as
“any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or disposing into the environment
. . . .” § 9601(22). “[F]rom these definitions, we can conclude that
‘release’ is broader than ‘disposal,’ because the definition of ‘release’
includes ‘disposing’ (also, it includes ‘passive’ terms such as ‘leaching’
and ‘escaping,’ which are not included in the definition of ‘disposal’).”
Carson Harbor Vill., 270 F.3d at 878.
PAKOOTAS v. TECK COMINCO METALS 7299
illac Fairview/California, Inc. v. United States (Cadillac
Fairview/California I), 41 F.3d 562, 565-66 (9th Cir. 1994)
(holding that a party that sold a product to another party “ar-
ranged for disposal” of a hazardous substance); Cadillac
Fairview/California, Inc. v. Dow Chem. Co. (Cadillac
Fairview/California II), 299 F.3d 1019, 1029 (9th Cir. 2002)
(characterizing the conduct at issue in Cadillac Fairview/
California I as “legal at the time”).
[8] The location where a party arranged for disposal or dis-
posed of hazardous substances is not controlling for purposes
of assessing whether CERCLA is being applied extraterritori-
ally, because CERCLA imposes liability for releases or
threatened releases of hazardous substances, and not merely
for disposal or arranging for disposal of such substances.18
Because the actual or threatened release of hazardous sub-
stances triggers CERCLA liability, and because the actual or
threatened release here, the leaching of hazardous substances
from slag that settled at the Site, took place in the United
States, this case involves a domestic application of CERCLA.
Our conclusion is reinforced by considering CERCLA’s
18
CERCLA is a strict liability statute, and liability can attach even when
the generator has no idea how its waste came to be located at the facility
from which there was a release. See O’Neil v. Picillo, 883 F.2d 176, 183
& n.9 (1st Cir. 1989). The three statutory defenses enumerated in
§ 9607(b), including defenses for “an act of God,” “an act of war,” or “an
act or omission of a third party other than an employee or agent of the
defendant,” are “the only [defenses] available, and . . . the traditional equi-
table defenses are not.” California ex rel. Cal. Dep’t of Toxic Substances
Control v. Neville Chem. Co., 358 F.3d 661, 672 (9th Cir. 2004). There
is no requirement that the generator of hazardous substances intend that
the waste come to be located at a CERCLA facility. “In the case of an
actual release, the plaintiff need only prove that the defendant’s hazardous
materials were deposited at the site, that there was a release at the site, and
that the release caused it to incur response costs.” Carson Harbor Vill.,
Ltd. v. Unocal Corp., 287 F. Supp. 2d 1118, 1186 (C.D. Cal. 2003) aff’d
sub nom. Carson Harbor Vill., Ltd. v. County of Los Angeles, 433 F.3d
1260 (9th Cir. 2006).
7300 PAKOOTAS v. TECK COMINCO METALS
place within the constellation of our country’s environmental
laws, and contrasting it with RCRA:
Unlike [CERCLA], RCRA is not principally
designed to effectuate the cleanup of toxic waste
sites or to compensate those who have attended to
the remediation of environmental hazards. RCRA’s
primary purpose, rather, is to reduce the generation
of hazardous waste and to ensure the proper treat-
ment, storage, and disposal of that waste which is
nonetheless generated, “so as to minimize the pres-
ent and future threat to human health and the envi-
ronment.”
Meghrig, 516 U.S. at 483 (quoting § 6902(b)) (internal cita-
tion omitted). RCRA regulates the generation and disposal of
hazardous waste, whereas CERCLA imposes liability to clean
up a site when there are actual or threatened releases of haz-
ardous substances into the environment. It is RCRA, not
CERCLA, that governs prospectively how generators of haz-
ardous substances should dispose of those substances, and it
is the Canadian equivalent of RCRA, not CERCLA, that regu-
lates how Teck disposes of its waste within Canada.
Here, the district court assumed, but did not decide, that
this suit involved extraterritorial application of CERCLA
because “[t]o find there is not an extraterritorial application of
CERCLA in this case would require reliance on a legal fiction
that the ‘releases’ of hazardous substances into the Upper
Columbia River Site and Lake Roosevelt are wholly separable
from the discharge of those substances into the Columbia
River at the Trail Smelter.” However, what the district court
dismissed as a “legal fiction” is the foundation of the distinc-
tion between RCRA and CERCLA. If the Trail Smelter were
in the United States, the discharge of slag from the smelter
into the Columbia River would potentially be regulated by
RCRA and the Clean Water Act. And that prospective regula-
tion, if any, would be legally distinct from a finding of CER-
PAKOOTAS v. TECK COMINCO METALS 7301
CLA liability for cleanup of actual or threatened releases of
the hazardous substances into the environment from the dis-
posal site, here the Upper Columbia River Site. That the Trail
Smelter is located in Canada does not change this analysis, as
the district court recognized.
CERCLA is only concerned with imposing liability for
cleanup of hazardous waste disposal sites where there has
been an actual or threatened release of hazardous substances
into the environment. CERCLA does not obligate parties
(either foreign or domestic) liable for cleanup costs to cease
the disposal activities such as those that made them liable for
cleanup costs; regulating disposal activities is in the domain
of RCRA or other regulatory statutes.
[9] We hold that applying CERCLA here to the release of
hazardous substances at the Site is a domestic, rather than an
extraterritorial application of CERCLA, even though the orig-
inal source of the hazardous substances is located in a foreign
country.
V
We next address Teck’s only other argument—that it is not
covered by § 9607(a)(3) because it has not “arranged for dis-
posal . . . of hazardous substances . . . by any other party or
entity” because, if the facts in the complaint are taken as true,
Teck disposed of the slag itself. Preliminarily, we note that
neither Pakootas, nor the Order, specifically allege that Teck
is an arranger under § 9607(a)(3). Rather, the Order states that
Teck is a “responsible party under Sections 104, 107, and 122
of CERCLA, 42 U.S.C. §§ 9604, 9607, and 9622.” UAO at 6.
The parties have, however, focused in their arguments solely
on § 9607(a)(3).19
19
The parties have not briefed or argued whether Teck may be liable
under § 9607(a)(1), (2), or (4). We accordingly express no opinion on
whether Teck may be liable under these subsections.
7302 PAKOOTAS v. TECK COMINCO METALS
[10] Section 9607(a)(3) holds liable parties that arranged
for the disposal of hazardous substances. It states, in relevant
part, the following:
any person who by contract, agreement, or otherwise
arranged for disposal or treatment, or arranged with
a transporter for the transport for disposal or treat-
ment, of hazardous substances owned or possessed
by such person, by any other party or entity, at any
facility or incineration vessel owned or operated by
another party or entity and containing such sub-
stances . . . shall be liable for . . .
certain costs of cleanup. § 9607(a)(3). We have previously
said that “neither a logician nor a grammarian will find com-
fort in the world of CERCLA,” Carson Harbor Vill., 270 F.3d
at 883, a statement that applies with force to § 9607(a)(3).
Section 9607(a)(3) does not make literal or grammatical sense
as written. It is by no means clear to what the phrase “by any
other party or entity” refers. Pakootas argues that it refers to
a party who owns the waste; and Teck argues that it refers to
a party who arranges for disposal with the owner. To make
sense of the sentence we might read the word “or” into the
section, which supports Pakootas’s position, or we might
delete two commas, which supports Teck’s position. Neither
construction is entirely felicitous.
Section 9607(a)(3)’s phrase “by any other party or entity”
can be read to refer to “hazardous substances owned or pos-
sessed by such person,” such that parties can be liable if they
arranged for disposal of their own waste or if they arranged
for disposal of wastes owned “by any other party or entity.”
This would mean that a party need not own the waste to be
liable as an arranger. But it would require reading the word
“or” into the provision, so that the relevant language would
read “any person who . . . arranged for disposal or treatment
. . . of hazardous substances owned or possessed by such per-
son [or] by any other party or entity . . . .” We followed this
PAKOOTAS v. TECK COMINCO METALS 7303
approach in Cadillac Fairview/California I, where we said
with forcible reasoning:
Liability is not limited to those who own the hazard-
ous substances, who actually dispose of or treat such
substances, or who control the disposal or treatment
process. The language explicitly extends liability to
persons “otherwise arrang[ing]” for disposal or treat-
ment of hazardous substances whether owned by the
arranger or “by any other party or entity, at any facil-
ity or incineration vessel owned or operated by
another party or entity.”
41 F.3d at 565 (quoting § 9607(a)(3)) (alteration in original);
see also Kalamazoo River Study Group v. Menasha Corp.,
228 F.3d 648, 659 (6th Cir. 2000) (holding that defendant was
potentially liable as an arranger when it discharged hazardous
substances into a river).
The text of § 9607(a)(3) can also be modified to support a
different meaning, the one that Teck advances on this appeal.
Teck argues that the phrase “by any other party or entity”
refers to “or otherwise arranged for disposal or treatment,”
and so, the argument runs, arranger liability does not attach
unless one party arranged with another party to dispose of
hazardous substances. If we accept this position, then a gener-
ator of hazardous substances who disposes of the waste alone
and with no other participant may defeat CERCLA liability,
because the generator had not “arranged” with a second party
for disposal of the waste. But this interpretation would appear
to require the removal of the two commas that offset the
phrase “by any other party or entity,” so that the relevant lan-
guage would read “any person who . . . arranged for dis-
posal or treatment . . . of hazardous substances owned or
possessed by such person[ ] by any other party or entity[ ].”
In Kaiser Aluminum & Chemical Corp. v. Catellus Develop-
ment Corp., 976 F.2d 1338 (9th Cir. 1992) we perhaps implic-
itly, albeit summarily, suggested that this reading might be
7304 PAKOOTAS v. TECK COMINCO METALS
appropriate, stating: “Nor has [Plaintiff] alleged that [Defen-
dant] Ferry arranged for the contaminated soil to be disposed
of ‘by any other party or entity’ under 9607(a)(3). Ferry dis-
posed of the soil itself by spreading it over the uncontami-
nated areas of the property.” Id. at 1341; see also Am.
Cyanamid Co. v. Capuano, 381 F.3d 6, 24 (1st Cir. 2004)
(“The clause ‘by any other party or entity’ clarifies that, for
arranger liability to attach, the disposal or treatment must be
performed by another party or entity, as was the case here.”).
Thus it can be argued that an implication from Kaiser Alumi-
num supports Teck’s view.
Teck’s argument relying on implication from Kaiser Alumi-
num would create a gap in the CERCLA liability regime by
allowing a generator of hazardous substances potentially to
avoid liability by disposing of wastes without involving a
transporter as an intermediary. If the generator disposed of the
waste on the property of another, one could argue that the
generator would not be liable under § 9607(a)(1) or (a)(2)
because both subsections apply to the owner of a facility; as
we described above the relevant facility is the site at which
hazardous substances are released into the environment, not
necessarily where the waste generation and dumping took
place. Liability as a transporter under § 9607(a)(4) might not
attach because transporter liability applies to “any person who
accepts or accepted any hazardous substance for transport.”
Although we do not here decide the contours of transporter
liability, one could argue that a generator who owns hazard-
ous substances cannot “accept” such hazardous substances for
transport because they are already held by the generator. We
hesitate to endorse a statutory interpretation that would leave
a gaping and illogical hole in the statute’s coverage, permit-
ting argument that generators of hazardous waste might freely
dispose of it themselves and stay outside the statute’s cleanup
liability provisions. We think that was not what was intended
by Congress’s chosen language and statutory scheme.
[11] The ambiguous phrase “by any other party or entity”
cannot sensibly be read to refer both to the language urged by
PAKOOTAS v. TECK COMINCO METALS 7305
Pakootas and to that urged by Teck in their differing theories
of statutory interpretation. In interpreting the turbid phrase
and punctuation on which the parties have vigorously pressed
contradictory theories, we necessarily navigate a quagmire.
Yet, in the face of statutory ambiguity, § 9607(a)(3) “must be
given ‘a liberal judicial interpretation . . . consistent with
CERCLA’s overwhelmingly remedial statutory scheme.’ ”
Cadillac Fairview/California I, 41 F.3d at 565 n.4 (quoting
United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373,
1380 (8th Cir. 1989) (alteration in original)).
Pakootas and the State of Washington suggest that we can
resolve the inconsistent and mutually-exclusive language in
Cadillac Fairview/California I and Kaiser Aluminum by dis-
missing as ambiguous or as dicta the statement in Kaiser Alu-
minum that “[n]or has [Plaintiff] alleged that Ferry arranged
for the contaminated soil to be disposed of ‘by any other party
or entity’ under 9607(a)(3).” 976 F.2d at 1341. The argument
is that it is unclear whether we meant in Kaiser Aluminum that
we did not need to reach the question because Plaintiff had
not alleged that Ferry was an arranger, or instead that Plaintiff
had alleged that Ferry was an arranger but that we rejected
that interpretation.
We conclude that Pakootas and the State of Washington are
correct. The two sentences from Kaiser Aluminum quoted
above are the only two sentences in that opinion to discuss
arranger liability. The opinion contains no analysis of the text
of § 9607(a)(3), and does not discuss arguments for or against
interpreting § 9607(a)(3) to require the involvement of
another party or entity for arranger liability to attach. The
ambiguous discussion of § 9607(a)(3) liability was not in our
view a holding, but rather a prelude to discussing why the
defendant in Kaiser Aluminum was potentially liable as an
owner of a facility under § 9607(a)(2) or as a transporter
under § 9607(a)(4). And perhaps most importantly, the state-
ment in question may be simply a description of what was not
7306 PAKOOTAS v. TECK COMINCO METALS
alleged by a party, rather than our court’s choice of a rule of
law.
Further, the statement in Kaiser Aluminum bears the hall-
marks of dicta. See United States v. Johnson, 256 F.3d 895,
915 (9th Cir. 2001) (en banc) (Kozinski, J., concurring)
(“Where it is clear that a statement is made casually and with-
out analysis, where the statement is uttered in passing without
due consideration of the alternatives, or where it is merely a
prelude to another legal issue that commands the panel’s full
attention, it may be appropriate to re-visit the issue in a later
case.”).20
[12] Because we view the statement in Kaiser Aluminum as
offhand, unreasoned, and ambiguous, rather than as an
intended choice of a rule, we consider the Ninth Circuit’s law
to be represented by Cadillac Fairview/California I. And
under Cadillac Fairview/California I, the phrase “by any
other party or entity” refers to ownership of the waste, such
that one may be liable under § 9607(a)(3) if they arrange for
disposal of their own waste or someone else’s waste, and that
the arranger element can be met when disposal is not arranged
“by any other party or entity.” We hold instead that Teck is
potentially liable under § 9607(a)(3), and we reject Teck’s
argument that it is not liable under § 9607(a)(3) because it did
not arrange for disposal of its slag with “any other party or
entity.”
20
Moreover, a characterization of the statement in Kaiser Aluminum as
a dictum, or as merely reflecting the absence of an allegation by the plain-
tiff, is consistent with our preexisting circuit authority, not addressed in
Kaiser Aluminum, which had suggested that a generator could be liable
under § 9607(a)(3) even if a second party was not involved. See Ascon
Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1156 (9th Cir. 1989) (revers-
ing the district court’s dismissal of Ascon’s complaint for failure to state
a claim because Ascon alleged that “the eleven oil company defendants
and four transporter defendants deposited hazardous waste onto the prop-
erty”).
PAKOOTAS v. TECK COMINCO METALS 7307
VI
[13] In conclusion, we hold that the district court correctly
denied Teck’s motion to dismiss Pakootas’s complaint for
failure to state a claim, and reject Teck’s arguments to the
contrary. Applying CERCLA to the Site, as defined by the
Order issued by the EPA, is a domestic application of CER-
CLA. The argument that this case presents an extraterritorial
application of CERCLA fails because CERCLA liability does
not attach until there is an actual or threatened release of haz-
ardous substances into the environment; the suit concerns
actual or threatened releases of heavy metals and other haz-
ardous substances into the Upper Columbia River Site within
the United States. We reject Teck’s argument that it is not lia-
ble under § 9607(a)(3) because it did not arrange for disposal
of hazardous substances “by any other party or entity.”
AFFIRMED.