September 01, 2016

In Brief

Theodore L. Garrett

CERCLA

Pakootas v. Teck Cominco Metals, Ltd., No. 15-35228, 2016 WL 4011196 15-35228 (9th Cir. July 27, 2016).
Reversing a district court’s decision, the Ninth Circuit held that the owner of a smelter in Canada is not liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for hazardous substances emitted into the air that resulted in contamination of land and water in the state of Washington. The issue for the court was whether the owner that emitted contaminants through a smokestack can be said to have arranged for the “disposal” of those contaminants under section 9607(a)(3) of CERCLA. Noting that CERCLA’s definition of “disposal” refers to the definition in the Resource Conservation and Recovery Act (RCRA), the Teck panel found persuasive the Ninth Circuit’s decision in Center for Community Action v. BNSF Railway, 764 F.3d 1019 (9th Cir. 2014), which held that emitting diesel particles from railroad locomotives in rail yards into the air and allowing the particles to be transported by wind onto the land and water did not constitute “disposal” under RCRA. Congress knew how to use the word “emit” when it wanted to, the Court found. The Teck panel also stated it was bound by the Ninth Circuit’s en banc decision in Carson Harbor Vill. Ltd. v. Unocal Corp, 270 F.3d 863 (9th Cir. 2001), holding that the term “deposit” under CERCLA is akin to “putting down, or placement” and does not include “chemical or geologic processes or passive migration.” Thus, although the panel concluded that plaintiffs had presented an “arguably plausible” construction of “disposal,” the decision in Carson Harbor compelled the panel to hold otherwise. The Teck panel rejected the argument that excluding the smelter emissions would thwart the overall statutory scheme, and noted that if “aerial depositions” were to give rise to liability, then “‘disposal’ would be a never-ending process, essentially eliminating the innocent landowner defense.” Finally, the panel’s opinion notes that it has not been presented with an agency interpretation of “deposit” to which it might owe deference.

For further information:
Summary of district court decision: The Little Hocking Water Assoc., Inc. v. E.I. duPont De Nemours & Co., Case No. 2:09-CV-1081, Document No. 439 (Mar. 10, 2015).

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