January 01, 2017

CERCLA: Liability Is Not Blowin’ in the Wind

Kathryn A. Tipple

When does airborne material constitute a “disposal,” triggering enforcement action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)? A recent decision of the U.S. Court of Appeals for the Ninth Circuit, Pakootas v. Teck Cominco Metals, Ltd., http://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/27/15-35228.pdf, D.C. No. 2:04-cv-00156-LRS (9th Cir. July 27, 2016), held that the emission of constituents into the air—and indirectly into the water and onto the land—does not constitute a disposal under CERCLA. While Pakootas appears consistent with recent case law, it remains to be seen whether this decision settles environmental liability for disposal or passive migration in water or soil that stems from wind dispersal. The following reviews the background, precedent involved, and likely effect of Pakootas.

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