CERCLA Disposal Does Not Include Air Emissions

The U.S. Court of Appeals for the Ninth Circuit ruled that historic air emissions from a smelter in Canada cannot provide the basis for liability under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”, also called “Superfund”). In essence, the 9th Circuit ruled in Pakootas v. Teck Cominco Metals that emitting air pollutants does not constitute arranging for disposal under CERCLA.

The case relates to the Upper Columbia River (“UCR”) CERCLA site, which includes those areas contaminated by hazardous substances in or adjacent to a 150 mile stretch of the Columbia River, from the Canadian border to the Grand Coulee Dam.

Government Argued that Air Emissions Were Disposal

The U.S. Environmental Protection Agency (“EPA”) and the State of Washington both supported the action against Teck. They argued that Teck’s air pollution, which resulted in hazardous substances coming to the UCR site, should be considered disposal and give rise to liability under the broad remedial provisions of CERCLA.  The 9th Circuit rejected this argument.

Court Looked to Key Earlier Decision on “Disposal”

In a key earlier decision, Center for Community Action & Environmental Justice v. BNSF Railway, the 9th Circuit ruled that air emissions do not give rise to liability under the Resource Conservation and Recovery Act (“RCRA”).  The EPA, the State of Washington, and others argued that CERCLA was different from RCRA, and that this 9th Circuit panel should not follow the analysis in the earlier RCRA case.  The 9th Circuit rejected this approach, stating that it saw no good reason for “disposal” under CERCLA to have a broader interpretation than under RCRA.

Decision Does Not Address Teck’s Slag Deposits into the River

While this ruling may help lower Teck’s liability for the UCR site, it will not completely absolve Teck.  In addition to the air emissions, Teck deposited slag into the Columbia River upstream of the UCR site.  The trial court has found Teck liable under CERCLA as an arranger due to the waste that Teck deposited into the Columbia River (on the Canadian side), when Teck knew that at least some of it would cross the border.   Proceedings before the trial court based on that disposal are continuing, and this decision neither upholds nor reverses the trial court’s rulings relating to Teck’s slag deposits.

For a copy of the 9th Circuit’s opinion click here.

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