In the most recent decision in a decades-long case arising from environmental damage in both the State of Washington and on the Colville Indian Reservation caused by Teck Cominco smelter, the Ninth Circuit recently decided that the emission of contaminants into the air does not constitute an “arranging for disposal” of hazardous substances under CERCLA.

The Ninth Circuit’s decision in Pakootas, et al. v. Teck Cominco Metals, Ltd., Ninth Circuit Case No. 15-35228, __ F.3d __, 2016 WL 4011196 (July 27, 2016) (“Opinion”), was heavily influenced by the Court’s earlier en banc opinion in Center for Community Action & Environmental Justice v. BNSF Railway Co., 764 F.3d 1019 (9th Cir. 2014). The Court acknowledged that, were it “writing on a blank slate,” it may have ruled differently. However, the panel felt bound to apply interpretation of the term “disposal” adopted in Center for Community Action, which held that emission of hazardous substances into the air did not constitute “disposal” for purposes of RCRA, to which CERCLA looks in defining the term. See 42 U.S.C. § 9601(24) (“The term[] ‘disposal’ . . . shall have the meaning provided in 42 U.S.C. § 6903.”). RCRA defines “disposal” 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).

Factual Background

The Teck Cominco smelter is located in Trail, British Columbia, ten miles north of the U.S.-Canada border. Opinion at 5. The Pakootas case was initially filed in response to Teck Cominco’s dumping of slag from the smelter into the Columbia River. In 2006, the Ninth Circuit held in Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066, 1069-71 (9th Cir. 2006), that Teck Cominco could be liable under CERCLA for the extraterritorial activity – namely, the disposal of hazardous substances in the United States, even though the initial deposition occurred outside the country. 452 F.3d at 1077-79. To do so, the Ninth Circuit distinguished between Teck Cominco’s initial “arranging for disposal of the hazardous substances,” which took place in Canada, and the ultimate deposition of the hazardous substances at the CERCLA “facility,” which was the Upper Columbia River Site located in the Columbia River, Lake Roosevelt, and portions of the Colville Indian Reservation.

Following that decision, Phase I of the case proceeded to trial, with the district court finding Teck Cominco liable as an “arranger,” based on the company’s intentional disposal of waste into the Columbia River, knowing that at least some of it would flow across the border. Opinion at 6 n. 2. While the Phase I trial was ongoing, the plaintiffs sought to file an amended complaint, alleging that, in addition to dumping hazardous substances into the river, Teck Cominco had also emitted hazardous substances into the air, which were then carried across the border into the Columbia River Site, including upland areas of the Site. Teck Cominco moved for dismissal of the amended complaint, which the district court denied – it was this decision which was appealed to the Ninth Circuit.

The Interrelation Between “Disposal” Under CERCLA and RCRA

In the Ninth Circuit’s decision in Center for Community Action, the Court held that the emission of diesel particulate into the air which was then “transported by wind and air currents onto land and water” did not constitute “disposal” of waste for purposes of RCRA. 764 F.3d at 1023-24. The reason this decision mattered is that CERCLA does not contain its own definition of “disposal,” but states instead that “disposal . . . shall have the meaning” provided in the RCRA statute, specifically 42 U.S.C. § 6903. Despite the fact that CERCLA does not define the term “disposal,” CERCLA applies the term in defining what constitutes a “release,” a “facility,” and in identifying the four classes of persons who are liable under the statute. 42 U.S.C. § 9601(22), (9), and § 9607(a) (identifying persons who “at the time of disposal” owned or operated a facility where hazardous substances were “disposed of;” persons who “arranged for disposal” or hazardous substances or who accepted hazardous substances for transport to “disposal or treatment facilities.”).

Like “Passive Migration,” Aerial Deposition Does Not Constitute CERCLA “Disposal”

In addition to feeling bound by the earlier en banc decision in Center for Community Action1, the Pakootas panel stated that it was also compelled by an earlier en banc decision in Carson Harbor Vill., Ltd. v. Unocal Corp, 270 F.3d 863, 887 (9th Cir. 2001), in which the Ninth Circuit held that no liability would attach for “chemical or geologic processes or passive migration” of hazardous substances. This approach is consistent with the U.S. Supreme Court’s 2009 decision in Burlington Northern Santa Fe Railway v. United States, 556 U.S. 599 (2009), in which the Supreme Court determined that a party could be held liable as an arranger only when it took intentional action to dispose of a hazardous substances and that “mere knowledge” of possible spills and leaks was “insufficient grounds for concluding that [a party] ‘arranged for disposal.’” 556 U.S. at 613.

Based on the decisions in Carson Harbor and Center for Community Action, the definition of “disposal” appears to require affirmative action on the part of the party disposing of hazardous substances, rather than passive activity. While the Ninth Circuit has been willing to find a party liable under CERCLA for actions taking place outside the U.S., those actions must be deliberate, rather than passive.