sboxermanFeatured Expert Column – Environmental Law and Policy

By Samuel B. Boxerman, Sidley Austin LLP with Katharine Falahee Newman, Sidley Austin LLP

The United States Court of Appeals for the Ninth Circuit recently issued a long-awaited decision interpreting the meaning of “disposal” under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). The court determined that parties who release air emissions containing hazardous substances that may later come to rest on downwind land and water are not liable as arrangers under CERCLA.  It is a sensible reading of the statute—as a contrary reading could open the door to substantial additional litigation.

In Pakootas v. Teck Cominco Metals, the Ninth Circuit ruled that “disposal” under CERCLA does not include the gradual spread of contamination through air emissions and deposition on the land or water absent human intervention. Plaintiffs had sought to recover cleanup costs and natural-resource damages for the Upper Columbia River Site in Washington State from Teck Cominco Metals, Ltd., a smelter whose operations date back to the early 1900s and is located across the border in Trail, British Columbia. Plaintiffs alleged Teck emitted hazardous substances (including lead, arsenic, cadmium, and mercury compounds) into the atmosphere and that these hazardous substances were ultimately deposited onto the Upper Columbia River Site. Teck moved to dismiss the claims arguing that CERCLA does not impose liability when hazardous substances are emitted through the air and then end up in or on the land and water. The district court denied Teck’s motion.

Shortly after the district court denied the motion to dismiss, the Ninth Circuit decided Center for Community Action & Environmental Justice v. BNSF Railway Co.  In Center for Community Action, the court held that under the Resource Conservation and Recovery Act (RCRA), “disposal” does not include emitting a substance into the air and “allowing it ‘to be transported by wind and air currents onto the land and water.’” Following this decision, Teck moved for reconsideration of its motion to dismiss. The district court again denied the motion, but certified the question for interlocutory appeal.

Before the Ninth Circuit, plaintiffs argued that Teck should be liable as a person who “arranged for disposal … of hazardous substances,” 42 U.S.C. § 9607(a), more commonly referred to as arranger liability. CERCLA itself does not contain a definition of “disposal”—instead, it cross-references RCRA’s definition at 42 U.S.C. § 6903. Plaintiffs argued that a “deposit” (one of the verbs in RCRA’s definition of disposal) occurred when Teck allowed hazardous substances to be carried to the site by the wind and deposited onto the land. In support, plaintiffs cited dictionary definitions referring to natural forces slowly depositing materials over time, including one which defined “deposit” as “Of water, the wind, or other natural agency).”  Pakootas at 16.

The Ninth Circuit did not, however, reject Plaintiffs’ theory out of hand.  The court even stated that Plaintiffs advanced a plausible construction of the terms “deposit” and “disposal” and may have been persuaded to adopt it, if not for the previous rulings of the Ninth Circuit in Center for Community Action and an earlier en banc decision in Carson Harbor Village Ltd. v. Unocal Corp. offering a binding interpretation of disposal. In Carson Harbor, the Ninth Circuit had held that Congress did not intend to include “chemical or geologic processes or passive migration” in the definition of disposal. In Center for Community Action, the court interpreted RCRA’s definition of disposal as requiring that waste first be placed on the land or water and then be emitted into the air in order for the emission of hazardous substances to be encompassed in the meaning of disposal.

Following these decisions, the Pakootas panel concluded that Congress did not intend for air emissions that land on the ground to be “disposal” under CERCLA. The court also rejected concerns that its decision was inconsistent with the statutory intent behind CERCLA or conflicted with the “federally permitted release” exemption. Instead, it noted that if aerial depositions are considered “disposal,” then a disposal could be a never-ending process.

The panel decision does not yet end the issue in the Ninth Circuit, as the State of Washington and the Confederated Tribes have indicated they may be seeking rehearing and rehearing en banc.  Also, by not outright rejecting Plaintiffs’ theory, the decision could also provide support for other courts that may face this question, as at least one court has already held that emission of air pollutants which later fell onto the ground was “disposal” of a “solid waste” under RCRA, so stay tuned. (See my WLF Legal Opinion Letter written with Ben Tannen on this decision here)