Canadian firm liable
under Superfund law for non-U.S. dumping
By DAVE LENCKUS
“While any Superfund-controlled cleanup of the
SAN FRANCISCO—A first-of-its-kind federal appellate court
ruling not only puts foreign companies at risk of being held liable under the
Superfund law for waste disposals outside of U.S. borders but also could lead
to foreign liability problems for U.S. companies, according to legal and
In the closely watched case, a 9th U.S. Circuit Court of Appeals panel on July 3 unanimously ruled that a Canadian company that disposed of hazardous wastes in British Columbia is subject to the U.S. pollution law, because the pollutants migrated south and contaminated the Upper Columbia River in northeastern Washington.
Upholding a lower court's decision in a lawsuit filed by two private U.S. litigants, the appellate court-often highly critical of what it described as the Superfund law's ambiguous and ungrammatical language-dissected several provisions of the law in explaining why the court's ruling is not an extraterritorial application of the statute.
The case marks the first time that a non-U.S. operation has faced pollution liability under
With both business and environmental issues at stake, the case has drawn wide attention on both sides of the border. Nine amicus briefs were filed by business associations in both countries,
Teck has not decided whether to seek a rehearing by the full appellate court, but attorneys representing the U.S. Chamber of Commerce and the Canadian business trade associations said the groups likely would support an appeal.
An attorney for the Canadian government said she could not comment on the 9th Circuit panel's ruling.
But the government
said in its amicus brief that it has "a strong interest" in
preserving its "sovereign right to regulate Canadian persons and companies
An affirmation of the lower court's decision would make other Canadian businesses operating near the
Instead of allowing the lawsuit to proceed, the issue should be resolved through diplomatic measures, the Canadian government argued.
The Canadian Chamber of Commerce and the Mining Assn. of Canada argued similarly in their joint amicus brief.
The U.S. Chamber of Commerce opposes the litigation on several grounds.
As Teck unsuccessfully argued, said Amar Sarwao, general litigation counsel for the Chamber in Washington, CERCLA does not state that it applies to conduct outside of the
Otherwise, applying the law so widely would create confusion for companies that have operations in both the
The decision raises other potential problems for
"If the U.S. can make Canadian companies liable in its courts for alleged environmental pollution, then there's no reason Canada can't do that and Mexico can't do that" to U.S. companies that, for example, emit air pollutants that drift into those countries, said Mr. Heinke, a partner at Akin Gump Strauss Hauer & Feld L.L.P. in Los Angeles. "Is that the way to solve this problem?" he asked.
no reason" that non-U.S. litigants could not
apply the same liability concept to charge
But those who support the litigation say the 9th Circuit panel's ruling is an important victory for
Without the ruling,
While any Superfund-controlled cleanup of the
The attorneys general for
The private litigants in
While the ruling is significant for
A spokesman for Teck subsidiary Teck Cominco American Inc. of Spokane, Wash., said the parent company has "made a commitment, and will stand by it," to remove any "unacceptable risk" in the afflicted area.
Joseph A. Pakootas et al. vs. Teck Cominco Metals Ltd., 9th U.S. Circuit Court of Appeals, July 3; No. 05-35153.