CASE BRIEF—On June 19 the U.S. District Court for the Eastern District of Washington held that Indian tribes are exempt from liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), more commonly known as the "Superfund" law. The decision was the latest in the Pakootas v. Teck Cominco Metals, Ltd. series that began in 2005 when members of Washington State's Colville Tribe sued the Canadian operators of the world's largest lead-zinc smelter after discovering that discharges of hazardous waste from the smelter had been carried downstream by the Columbia River and deposited on tribal lands in the U.S.
The ruling by Judge Lonny R. Suko of the Eastern District of Washington takes away an important enforcement mechanism from parties seeking to recover cleanup costs at polluted sites owned or operated by Indian tribes.
What is CERCLA?
Congress passed CERCLA in 1980, partly in response to infamous polluted sites such as Love Canal in New York. CERCLA is a remedial program that aims to provide the tools needed to both address contamination by hazardous substances and impose liability for the contamination. CERCLA gives the Environmental Protection Agency (EPA) the authority to compel potentially responsible parties (PRPs) to conduct the required investigatory or cleanup-related activities. PRP action can be compelled by the order of a court, by a unilateral administrative order (UAO) issued by EPA itself, or by negotiated settlement. CERCLA also allows third parties such as a state, a tribe or a private party to recover the costs associated with a cleanup activity from the PRPs.
Liability under CERCLA is established if three basic elements are met: there must be 1) a release or substantial threat of release 2) of a hazardous substance 3) from a facility. If EPA issues a UAO directing a PRP to undertake a cleanup activity, it must show that the polluted site may present "an imminent and substantial endangerment to public health or welfare or the environment."
CERCLA imposes liability on four classes of persons:
1. The current owner and operator of a site;
2. Anyone who owned or operated the site in the past when the hazardous substances were actually disposed of there;
3. Anyone who arranged for disposal of the substances at the site; and
4. Anybody that transported the waste to the site for disposal.
However, CERCLA's definitions section defines the term person as "an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States government, state, municipality, commission, political subdivision of a state or any interstate body." Indian tribes are not included on the list.
Case History
The Colville Indian Reservation, home of the Confederated Tribes of the Colville Reservation (Tribes), is located in the northeastern part of Washington State. The Columbia River serves as the reservation boundary on its southern and eastern side. In 1999 the Tribes asked EPA to assess potential hazardous substance contamination in the Columbia River. EPA found that beaches and portions of the river bottom were heavily contaminated with slag, an industrial byproduct of the process typically used to remove waste in metal smelting that appears as a fine black sand. News reports of the dispute described beaches of black sand on the banks of the Columbia River's Lake Roosevelt, the large lake behind the Grand Coulee Dam that is also the site of a national recreation area. In addition to the slag, which contains high levels of lead, zinc and mercury, EPA investigators found significant levels of arsenic. EPA traced the source of the slag and metal contamination to the Trail Smelter, a large lead-zinc smelter in Trail, B.C., operated by Teck Cominco Metals Ltd. (Cominco). The city of Trail sits on the Columbia River approximately 10 miles north of the U.S.-Canadian border.
In December 2003, EPA issued a UOA directing Cominco to conduct an investigation of the contamination. This marked the first time that CERCLA jurisdiction had been asserted over a foreign company operating in a foreign country. However, Cominco ignored the UAO and EPA did not enforce it. This prompted two citizens of the Tribes to file a citizen suit seeking enforcement of the UAO against Cominco. The plaintiffs argued that application of CERCLA to an extraterritorial entity was appropriate because the UAO only addressed contamination in the U.S. and therefore did not inappropriately supersede any Canadian law. Cominco in turn filed a motion to dismiss the case for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
The U.S. District Court found for the plaintiffs and ruled that CERCLA liability could extend to foreign companies whose operations result in harmful contamination in the U.S. The United States Court of Appeals for the Ninth Circuit affirmed the district court in 2006, with the additional caveat that the releases of hazardous substances had occurred wholly within the U.S. The court reasoned that the lake bottom and sandy beaches that had accumulated the huge deposits of slag and metal waste could be considered facilities themselves, and a discharge occurred each time the river's current dislodged portions of the waste from the deposits and washed them downstream. Perhaps because the definition of facility adopted by the Ninth Circuit no longer required an examination of the question of extraterritorial discharges, the Supreme Court denied Cominco's petition for certiorari.
The Latest Round
Cominco filed counterclaims against the Tribes (and the State of Washington, which intervened in the case) seeking to establish that the Tribes were also liable under CERCLA for their ownership and operation of mines, or the land on which the mines operate, within the Colville Reservation. Cominco contended that the Tribes caused and contributed to some level of contamination in Lake Roosevelt, and therefore should bear some portion of the required cleanup costs. The Tribes filed a motion to dismiss, asserting that Indian tribes could not be held liable under CERCLA because they are not included in the statutory definition of "persons" that can be subject to liability. Judge Suko ruled in favor of the Tribes and dismissed the counterclaims.
When a statute's language is plain, courts enforce the statute according to its terms unless doing so would create an absurd result. Here, Judge Suko found no ambiguity in the CERCLA definition of person, stating "CERCLA's definition of 'person' is plain. It does not include 'Indian tribes.'"
Judge Suko pointed out that although there was no need to go beyond the plain meaning of the statement, the canon of statutory construction expressio unius est exclusio alterius (the express mentioning of one thing implies the exclusion of another) also indicates that Indian tribes are not "persons" subject to CERCLA liability. Judge Suko reasoned that the statute specifically provided for liability to an Indian tribe, but did not do so for liability of an Indian tribe.
Additionally, Judge Suko ruled that it would be inappropriate to read the statute such that a sovereign would be included within the definition of "person." Federally recognized Indian tribes have sovereign immunity from suit unless such immunity is waived by Congress, and such waivers must be clearly expressed. Because Indian tribes were excluded from the definition of persons, there was no clear expression of waiver by Congress.
Cominco then argued that the Tribes should not be treated differently than Cominco, which was itself found liable as an extraterritorial defendant. Judge Suko, however, rejected the argument, pointing out that the statute does include "corporations" in the definition of persons even as it excludes Indian tribes.
Cominco also argued that other federal environmental statutes, including the Resource Conservation and Recovery Act of 1976 (RCRA), the Safe Drinking Water Act (SDWA), and the Clean Water Act (CWA), include "municipalities" in the definitions of "persons" and specifically include Indian tribes as a form of municipality. However, the CERCLA definition of municipalities does not specifically include Indian tribes, and Judge Suko declined to read the inclusion of Indian tribes into the definition of municipality. He reasoned that CERCLA is distinct from other environmental statutes because it addresses a somewhat different subject matter, and that including Indian tribes in the municipality definition would be inappropriate because any Congressional waiver of tribal sovereign immunity requires that Congress' intent to do so be clear.
Finally, Judge Suko declined to undertake a Chevron analysis, a two-step test where reviewing courts determine whether a statute is ambiguous and whether the agency's interpretation of that ambiguous statute is reasonable or permissible. He noted that a Chevron analysis would be inappropriate because in his view, "Congressional intent to exclude Indian tribes from liability is clear from the language of the statute."
Conclusion
Judge Suko noted that although there "may be some very compelling policy reasons why Indian tribes should not be exempt from CERCLA liability," such a determination would need to be made by Congress and not the courts. Until that happens, Indian tribes cannot be a responsible party under CERCLA, and regulators will have to rely on other environmental statutes such as RCRA, SDWA and the CWA to hold tribes accountable for harmful disposal activities.
