CERCLA Liability for Air Emissions? Ninth Circuit Says No, Denies Petition for En Banc Rehearing
Last year, we reported on the decision of the United States District Court for the Eastern District of Washington in Pakootas v. Teck Cominco Metals, Ltd., which held that the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) imposes liability on parties that “arranged for disposal” of hazardous substances by emitting them into the air. We discussed a number of issues presented by this potentially far-reaching decision, including most notably its apparent inconsistency with prior appellate court rulings.
On July 27, 2016, a three judge panel for the Ninth Circuit Court of Appeals reversed the trial court’s decision, holding that CERCLA “arranger” liability does not extend to parties that only emitted hazardous substances into the air, regardless of whether those substances eventually come to rest at a Superfund site. The court relied heavily on two prior decisions interpreting statutory language identical to CERCLA, but it conceded that a different reading was at least plausible. On October 11, 2016, the Ninth Circuit denied petitions to rehear the matter en banc.
The Ninth Circuit’s decision is significant, primarily because it means that otherwise non-responsible parties will not risk being drawn into CERCLA disputes at contaminated sites simply by virtue of air pollutants carried to those sites from distant, unrelated facilities. At the same time, the court did not entirely rule out CERCLA liability for air emissions where air pollutants settle at the facility from which they were emitted.
Teck Cominco Metals (“Teck”) operates a lead and zinc smelter located on the Columbia River in Trail, British Columbia. Over the course of nearly a century, Teck’s smelter discharged millions of tons of slag and other waste containing hazardous substances directly into the river. Much of this waste flowed into the United States, coming to rest in and around Lake Roosevelt in what is now known as the Upper Columbia River Site (“UCR Site”). The Confederated Tribes of the Colville Reservation (the “Tribes”) were recently awarded over $8 million in costs incurred remediating this contamination. Litigation with respect to these releases continues. According to the Tribes and the State of Washington, however, Teck’s Columbia River discharges were not the only way it contaminated the UCR Site. Instead, they claim that Teck also emitted hazardous substances into the air that ultimately settled at the UCR Site and contributed to the need for the Tribe to incur cleanup costs.
CERCLA imposes strict liability on parties responsible for releasing hazardous substances into the environment, including those who “arranged for disposal … of hazardous substances” at a “facility” (such as the UCR Site) at which there has been an actual or threatened release of hazardous substances. CERCLA defines “disposal” solely by reference to the Resource Conservation and Recovery Act (“RCRA”), which defines that term as:
[T]he 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.
Washington and the Tribes allege that because Teck emitted hazardous substances into the air that settled—or, were “deposited” for CERCLA purposes—in the UCR Site, Teck is liable for having arranged for the disposal of hazardous substances as a result of those emissions. Teck moved to strike the plaintiffs’ air-emissions claim, but the district court agreed with the State and the Tribes. The trial court distinguished the Ninth Circuit’s decision in Center for Community Action and Environmental Justice v. BNSF Railway Company (Center for Community Action), which held that air “emission of diesel particulate matter does not constitute ‘disposal’ of solid waste” and therefore could not support a claim under RCRA. The trial court did not fully address the statutory definition of “disposal” or the cases interpreting that term, although it did acknowledge that “aerial emissions from Teck’s smelter … cannot be a ‘CERCLA disposal.’”
Instead, the key to the trial court’s decision was the way it described the “disposal” in question: disposal occurred not when Teck emitted substances into the air from its smelter in Canada, but when those substances subsequently “were deposited ‘into or on any land or water’ of the UCR Site.” This was consistent with a previous decision where the court avoided a difficult extraterritoriality question by holding that Teck’s disposal of slag and liquid effluent occurred not when it discharged those wastes directly into the stretch of the Columbia bordering its smelter, but when they eventually came to rest at the UCR Site.
The trial court recognized the significance of its decision and noted that “[i]n over 30 years of CERCLA jurisprudence, no court has impliedly or expressly addressed the issue of whether aerial emissions leading to disposal of hazardous substances ‘into or on any land or water’ are actionable under CERCLA.”  Accordingly, district court certified its order for interlocutory appeal to the Ninth Circuit.
Ninth Circuit Decision
In presenting their arguments to the Court of Appeals, the State and the Tribes emphasized that “disposal” is defined in pertinent part to include “deposit.” Their position, in short, was that by emitting hazardous substances into the air and allowing them to be deposited at the UCR Site by the wind, Teck arranged for the disposal of hazardous substances. In support of this position, the State and the Tribes pointed to dictionary definitions of “deposit” that referred to natural forces depositing layers of dirt or mud over time. While the Ninth Circuit ultimately rejected the State and Tribes’ reading, it was not entirely unsympathetic, noting that “Plaintiffs’ interpretation appears a reasonable enough construction of § 9607(a)(3), and if we were writing on a blank slate, we might be persuaded to adopt it.” However, as the court also noted, it was not in fact writing on a blank slate. Instead, in Center for Community Action and Carson Harbor Vill., Ltd. v. Unocal Corp(“Carson Harbor”) the Ninth Circuit had interpreted both “disposal” and “deposit” so as to foreclose Washington and the Tribes’ position.
Carson Harbor was a CERCLA case involving environmental contamination at a former petroleum production site that eventually became a mobile home park. The current property owner and mobile home park operator sued both the prior owner and park operator as well as the petroleum company responsible for causing the contamination. The prior owner and operator did not cause petroleum releases, and no new hazardous substances were released into the environment during its tenure. Nevertheless, the current owner argued that because hazardous substances continued to migrate passively through soil during that time, there was a CERCLA “disposal” triggering the prior owner’s liability. The Ninth Circuit disagreed, and held that “the gradual spread here [cannot] be characterized as a ‘deposit,’ because there was neither a deposit by someone, nor does the term deposit encompass the gradual spread of contaminants.” The court continued: “As used in the statute, the term [‘deposit’] is akin to ‘putting down,’ or placement. Nothing in the context of the statute or the term ‘disposal’ suggests that Congress meant to include chemical or geologic processes or passive migration. Indeed, where Congress intended such a meaning, it employed specific terminology, such as “leaching.’”
Center for Community Action involved “essentially the same facts” as Pakootas. There, the question before a panel of the Ninth Circuit was whether a RCRA disposal occurs where hazardous substances are emitted into the air and subsequently come to rest on the ground. The court held that it does not: “Reading [the definition] as Congress has drafted it, ‘disposal’ does not extend to emissions of  waste directly into the air.”Instead, the court reasoned, “‘disposal’ occurs where the  waste is first placed ‘into or on any land or water’ and is thereafter ’emitted into the air.’” The Court recognized that because RCRA defines “release”—but not “disposal”—to include both “emitting” and “disposing,” “Congress knew how to define ‘disposal’ to include emissions, but nevertheless chose not to.”
Though the Pakootas court recognized that it was not technically bound by Carson Harbor and Center for Community Action, which involved slightly different questions, it found no reason to distinguish them. The court reasoned that Center for Community Action’s textual analysis was persuasive, and there was “no compelling reason to interpret ‘deposit’ differently” than the court in Carson Harbor had. The court expressly rejected two proffered justifications for departing from these decisions. First, the court dismissed the claim that Center for Community Action’s gloss on “disposal” should not apply to CERCLA, given that statute’s broad remedial purposes: “it is axiomatic that CERCLA should be construed liberally so as to effectuate its remedial purpose, but statutory interpretation must still be grounded in the statute’s text and structure.” Second, the court disagreed that its reading would render useless CERCLA’s “federally permitted release” exception, which “could … be read as addressing emissions as releases and not emissions as a form of disposal.” The court noted, if “aerial depositions” count as disposals, “‘disposal’ would be a never-ending process, essentially eliminating the innocent landowner defense”—precisely the result the Carson Harbor court sought to avoid.
When we previously reported on the district court’s decision to view CERCLA arranger liability to encompass air emissions, we noted that such a rule could significantly expand CERCLA’s reach. Because air pollutants can travel great distances before running aground, air emitters could have been drawn into CERCLA disputes at seemingly countless different sites. The most obvious and arguably important impact of the Ninth Circuit’s Pakootas decision is therefore the elimination of this scenario. At the same time, the Ninth Circuit’s decision does not mean that CERCLA is flatly inapplicable to any air emission of hazardous substances. Pakootas applies only to arranger liability, which is contingent on the occurrence of a “disposal.” This is in contrast with owner/operator liability, where the “owner or operator of a … facility” is liable where there is an actual or threatened “release” of hazardous substances at that facility—no “disposal” is necessary.
CERCLA, moreover, defines “release” to include “emitting;” as the court in Center for Community Actionindicated, this distinction is meaningful. Thus, where a party owns or operates a “facility” and emits hazardous substances into the air, it will likely find no shelter from CERCLA liability in Pakootas, at least with respect to the costs of remediating soil or groundwater contamination at that facility. This, of course, should help alleviate concerns that Pakootas will create a regulatory gap whereby parties can avoid having to clean up contamination simply by spraying it into the air instead of dumping it on the ground.
The Ninth Circuit’s judgment in Pakootas took effect when it issued its mandate on October 20, 2016. Absent a trip to the Supreme Court, then, CERCLA arranger liability for air emissions is now plainly unavailable in the Ninth Circuit. Certain factors suggest that the Supreme Court is not likely to review the case: the question is an issue of first impression, and there is no split among the lower courts. On the other hand, the Court might be persuaded to grant a timely petition for a writ of certiorari. Most notably, Pakootas presents an important question of federal law with potentially significant and wide ranging effects. The case has received commensurate attention to date: the governments of the United States and Canada both submitted amicus briefs to the Ninth Circuit (in support of the Tribes and Teck, respectively. In addition, the U.S. obtained permission to participate in oral argument. The California Department of Toxic Substances Control, the National Mining Association, the United States Chamber of Commerce, the National Association of Manufacturers and the American Chemistry Council also filed amicus briefs. Should the State or Tribes petition the Court for a writ of certiorari, interested parties should consider filing amicus briefs. The cert petition deadline is 90 days from when the Ninth Circuit denied rehearing en banc, or January 9, 2017.
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