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Ninth Circuit Rules No Arranger Liability for Smelter's Air Pollutants under CERCLA

August 02, 2016

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The Ninth Circuit reversed a district court's denial of a motion to dismiss claims brought against a smelting operation alleging that air pollutants from the operation that were blown downwind and deposited on land and water made the smelting operation an "arranger for disposal" under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). The case is Pakootas v. Teck Cominco Metals, Ltd.

Teck Cominco Metals, Ltd. ("Teck") is a Canadian company which operates a smelter ten miles north of the U.S.-Canada border in Trail, British Columbia. Teck has been embroiled in multiple years of litigation over its smelting operation and its disposal of waste.  As an amendment to its complaint, plaintiffs alleged that air emissions from the plant containing lead, zinc, arsenic, cadmium and mercury are carried by air currents to a site in the United States and that such emissions constitute an arrangement for disposal by Teck. Teck moved to strike or dismiss these claims on the grounds that CERCLA, 42 U.S.C. § 9607(a)(3), imposes no liability when the hazardous substances travel through the air. The district court rejected the argument and denied the motions.

Following the court's ruling against Teck, the Ninth Circuit issued its decision in Center for Community Action & Environmental Justice v. BNSF Railway Co., 764 F.3d 1019, 1023-24 (9th Cir. 2014). In that case, the Ninth Circuit held that emitting diesel particulates into the air and allowing it to be transported by wind and air onto the land did not constitute "disposal" of waste under the Resource Conservation and Recovery Act ("RCRA"). In light of the Center for Community Action decision, Teck sought reconsideration, arguing that disposal via air media is not covered by CERCLA. The district court ruled that the actionable CERCLA disposal occurred when the hazardous substances entered the land or water, not when they were initially released into the air. The district court certified the issue for interlocutory appeal, recognizing no court had addressed the issue.

After carefully considering the statutory language of CERCLA, specifically referring to "deposit" and "disposal," and feeling bound by the En Banc decision in Center for Community Action, the Ninth Circuit panel determined that air emissions from the smelter did not meet the definition of deposit or disposal under CERCLA. The panel noted that the parties did not present any agency interpretation to which the panel owed deference under Chevron. The claim was dismissed and the case remanded. 

Although the panel did address the federally permitted "release" exception to CERCLA and whether Congress intended to have CERCLA regulate emissions up to the point where they were regulated under the Clean Air Act, the panel determined that plaintiffs' interpretation of "deposit" was inconsistent with the rest of CERCLA and would lead to a never-ending process that would essentially eliminate the innocent landowner defense.  

For more information, please contact:

Michael Van Zandt

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