07.29.16

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Scope of CERCLA “Arranger” Liability Significantly Narrowed

PRACTICE GROUPS

Airborne discharges of hazardous substances do not give rise to liability under CERCLA, according to a new ruling issued by the Ninth Circuit.  See Pakootas v. Teck Cominco Metals, Ltd., No. 15-35228 (9th Cir., July 27, 2016).  The panel held that Teck Cominco, a Canadian smelter operator, could not be held liable as an “arranger” for cleaning up contamination caused by airborne fallout of heavy metals particulates downwind of the smelter.

The Teck smelter has been the subject of a long history of litigation due to environmental discharges from the site.  Previous stages in the litigation have made important CERCLA law regarding trans-boundary liability.  See Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066 (9th Cir. 2006).  This new ruling may similarly re-shape CERCLA.

The Teck smelter has operated for over 100 years adjacent to the Columbia River in British Columbia, just over the border from Washington State and the Colville Reservation.  Airborne emissions of heavy metals from the smelter have resulted in deposition of contaminants on upland soils.  Tribal members have brought an action seeking to recover cleanup costs associated with these emissions.

The case turned on the Ninth Circuit’s interpretation of the term “disposal” in CERCLA, and the question of whether airborne emissions constitute a disposal.  While CERCLA liability attaches to those who dispose of hazardous substances, it does not contain a definition of the term.  Rather, it references the definition in RCRA – – the federal hazardous waste control statute.  42 U.S.C. § 9601(29) and 42 U.S.C. § 6903(3).  The Ninth Circuit recently took a narrow reading of the RCRA definition in a similar context, finding that RCRA does not treat airborne diesel emissions as a “disposal” under RCRA.  See Center for Community Action v. BNSF, 764 F. 3d 1019, 1023-24 (9th Cir. 2014) (citing Carson Harbor Vill Ltd. v. Unocal Corp., 270 F.3d 863, 879 (9th Cir. 2001) (en banc)).

The Ninth Circuit applied the same reasoning in its recent Teck ruling.  The court agreed that the dictionary definition of “deposit,” a term also used in CERCLA in conjunction with the term “disposal,” would appear to be consistent with a finding that airborne deposit of contaminants was a disposal under CERCLA.  However, the court concluded that it was bound by its previous interpretation of RCRA disposal in the Center for Community Action and Carson Harbor cases.

This ruling represents a significant departure from past practice by EPA in dealing with airborne emissions of hazardous substances.  Over the past 30 years, EPA has pursued Superfund cleanups at many smelter sites and at other locations where off-site air emissions have led to contamination.  The court recognized that the plaintiffs offered a persuasive interpretation of CERCLA that would have maintained the status quo.  But, it was not persuasive enough to overcome settled Ninth Circuit precedent.

Predicting how this case will affect EPA’s CERCLA activities, and the course of future litigation, is very difficult at this stage.  It seems likely that the plaintiffs will seek en banc review.  And the court notes in its opinion that it declined to address a late-arising issue of court deference to EPA decision making, which was raised in an amicus brief filed by EPA.  But, in the short term, at least, we can expect a slowdown in the progress of site cleanups driven by airborne fallout.


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The opinions expressed in this article are those of the authors and do not necessarily reflect the views of Riddell Williams or its clients.  This article is for general informational purposes and is not intended to be, and should not be taken as, legal advice.

The Riddell Williams Environmental Practice Group has played a key part in addressing some of the most challenging environmental issues in the Pacific Northwest and throughout the nation.  Our group’s clients include utilities, pulp and paper manufacturers, petroleum companies, regional energy companies, airlines and airfreight carriers, steel manufacturers, waste management companies, technology businesses, real estate development partnerships, private landowners, and some of the state’s leading environmental groups.