Clearing CERCLA Air: Ninth Circuit Holds Air Emissions Are Not Disposal
In a case of first impression, this week, the Ninth Circuit Court of Appeals held that the owner of a Canadian smelter was not liable as a person who “arranged for disposal” of hazardous substances when it emitted those compounds into the air and the substances were deposited onto land and water downwind. Pakootas v. Teck Cominco Metals, No. 15-35228 (9th Cir. July 27, 2016). Overturning the district court’s decision, the Court excluded from the federal Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") definition of "disposal," the emission of hazardous substances into the air that are then deposited elsewhere. The Court relied heavily on the reasoning and analysis from two previous Ninth Circuit decisions to determine that the term “disposal” as construed under CERCLA did not include the passive depositing of compounds onto land or water through emission into the air. The Court’s holding follows Ninth Circuit precedent that passive migration does not constitute disposal under CERCLA.
Defendant Teck Cominco Metals, Ltd’s (“Teck”) owns a smelter located ten miles north of the United States – Canada border in British Columbia. The smelter has operated there for almost 100 years. Plaintiffs initially asserted CERCLA claims for historic disposal of slag into the Columbia River, which then flowed across the border into Washington State. Plaintiffs later sought to amend their complaint to add allegations that hazardous substances were “discharged into the atmosphere by the [Teck smelter and] travelled through the air into the United States resulting in the deposition of airborne hazardous substances” on the shores of and in the Upper Columbia River. (Slip Op. at 7.) Teck moved to strike these new claims. The trial court denied Teck’s motion and denied a subsequent request for reconsideration reasoning that “the actionable CERCLA ‘disposal’ in this case occurred when the hazardous substances emitted by Teck entered the land or water [at the Upper Columbia River,] not when the substances were initially released into the air.” On interlocutory appeal, the Ninth Circuit reversed.
The question before the Ninth Circuit was “whether aerial emissions leading to disposal of hazardous substances ‘into or on any land or water’ are actionable under CERCLA.” The question arose in the context of CERCLA arranger liability, and whether the defendant “arranged for disposal” within the meaning of CERCLA § 107(a) when hazardous substances passively travelled through the air and were then deposited on the land and in water. The Ninth Circuit’s analysis focuses on CERCLA’s definition of “disposal.” CERCLA does not set forth its own definition of “disposal.” Rather, it cross-references the definition of “disposal” found in the Resource Conservation and Recovery Act (“RCRA”). 42 U.S.C. § 9601(29); 42 U.S.C. § 6903(3). RCRA defines “disposal” as “the discharge, deposit, injunction, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that [such waste] may enter the environment or be emitted into the air or discharged into any waters[.]” 42 U.S.C. § 6903(3). This RCRA definition and its use of the term “deposit” was a central issue because Plaintiffs would have construed “deposit”—the only theory of “disposal” asserted by Plaintiffs—to broadly include the passive transport of air emissions.
The Court ultimately rejected this broader interpretation of what it means to “dispose” by way of “deposit” relying on two earlier Ninth Circuit cases. In Carson Harbor Vill., Ltd. v. Unocal Corp., the Ninth Circuit, en banc, interpreted the terms “deposit” and “disposal” as it applied to former owner/operator liabilities under CERCLA and held that the term “deposit” “is akin to putting down or placement by someone and that nothing in the context of the statute or the term disposal suggests that Congress meant to include chemical or geologic processes or passive migration.” (Slip Op. at 17, citing Carson Harbor, 270 F.3d 863, 879 & n. 7 (9th Cir. 2001)) Where Congress had intended to include passive activity, it employed specific terminology, such as “leaching.” Accordingly, Carson Harbor rejected the notion that “deposit” included the gradual or passive spread of contaminants without human intervention.
In its more recent case interpreting “disposal” under RCRA, the Ninth Circuit held that emitting waste into the air was not “disposal” under RCRA. The panel analyzed the statutory text and Congressional intent of RCRA and determined that waste must first be placed onto the land or water and thereafter be emitted into the air to constitute disposal. (Slip Op. at 17, citing Center for Community Action & Environmental Justice v. BNSF Railway Co., 764 F.3d 1019, 1024-25 (9th Cir. 2014) (“CCAEJ”))
Noting some appeal to Plaintiffs’ broader interpretation of “disposal,” the Court ultimately concluded that it was bound by the en banc decision in Carson Harbor that deposition requires human intervention and does not include passive spreading of contaminants alone, and found no compelling reason to depart from the persuasive reasoning in CCAEJ that a hazardous substance first emitted into the air was not a “disposal” under RCRA’s definition. Therefore, the Ninth Circuit reversed the lower court and concluded that Plaintiffs could not maintain a cause of action for arranger liability based upon Teck’s aerial emissions from its smelter.
The Ninth Circuit recognized that because its decision interpreted the definition of “disposal,” an important term used in multiple places throughout the CERCLA statute, this decision could have “ripple effects.” (Slip Op. at 15.) For instance, CERCLA uses “disposal” or variants of the word in defining a “facility” (42. U.S.C. § 9601(9)), to describe what constitutes a “release” (Id. § 9601(22)), and to describe three of the four classes of responsible persons (Id. § 9607(a)). These provisions are fundamental to establishing CERCLA liability and construing the scope of CERCLA obligations. Although this decision will have clear implications for cases pending in the Ninth Circuit, cases pending in jurisdictions (and especially jurisdictions where passive migration does constitute disposal under CERCLA) may end up with a different result. CERCLA litigants should continue to be aware of how their jurisdiction addresses passive migration (whether in the ground or through the air) and interprets the term “deposit” to understand the potential ripple effects of this decision.
Kaitlyn D. Shannon is co-author of this article.