The State of Washington and the Confederated Tribes of the Colville Reservation are trying to expand the reach of CERCLA, but have been blocked, once again, by the U.S. Court of Appeals for the Ninth Circuit. The case of Pakootas v. Teck Cominco Metals, Ltd., Case No. 15-35228 (9th Cir. Panel decision July 27, 2016), involves claims by the State of Washington and the Tribes against a smelter located in British Columbia. In August, a three-judge panel of the Ninth Circuit ruled in favor of the defendants in this case. Yesterday, the full Ninth Circuit denied the plaintiffs’ petition for rehearing.

The case involves hazardous air emissions (lead, arsenic, cadmium and mercury), which were emitted from the smelter’s smokestack, carried by wind, and deposited on the Upper Columbia River Superfund Site in Washington. Plaintiffs maintained that such air emissions constituted “disposal” of hazardous waste under CERCLA, thus the smelter had arranged for the disposal of hazardous waste pursuant to CERCLA and was a responsible party at the Superfund Site.

The defendant filed a motion to dismiss the plaintiffs’ CERCLA claims, which the trial court denied. The trial court found that air emissions could constitute disposal under CERCLA, but, recognizing the novel nature of this argument, certified the issue for immediate appeal to the Ninth Circuit. The three-judge panel in the Ninth Circuit reversed.

CERCLA does not set forth its own definition of “disposal”, rather it cross-references the definition in RCRA. Thus, under both CERCLA and RCRA “disposal” is defined as:

the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters. 42 U.S.C. § 6903(3).

The Ninth Circuit found that plaintiffs’ interpretation of “disposal” to include “aerial deposition” is “a reasonable enough construction”, but ultimately determined that Congress did not mean to include the gradual spread of contaminants without human intervention in the definition of “disposal” in CERCLA (or RCRA). Instead, hazardous waste must first be placed into or on the land by human involvement. Thus, the defendants in this case did not arrange for the disposal of hazardous waste and were not responsible parties under CERCLA.

The State of Washington and the Tribes filed for rehearing and rehearing en banc, which were denied without further explanation on October 11, 2016. The plaintiffs now have 90 days to seek an appeal in the U.S. Supreme Court, if they choose to do so.