Environmental -- 2016

Pakootas v. Teck Cominco Metals, Ltd.   (9th Circuit)

Expansive interpretation of CERCLA

This case involves the definition of a person who arranges for the disposal of hazardous waste under CERCLA, the Comprehensive Environmental Response, Compensation, and Liability Act. Representatives of the tribes of the Colville Reservation sued a Canadian company alleging that airborne particles from its mining operations landed on the earth and water of the United States, and that the company was liable as an "arranger" of the "disposal" of the hazardous materials under CERCLA.

The trial judge agreed, in a way that eliminated the first element of arranger liability: the disposal. That ruling was appealed to the Ninth Circuit, and the NAM joined with others in an amicus brief challenging the ruling and warning of the extraordinarily broad scope of liability it would create.

We argued that both the plain text of CERCLA and controlling precedent make clear that the statutory definition of “disposal” is not satisfied by the mere emission of hazardous substances into the air, even if portions of the emissions later come to rest at a facility. The district court conflated the “disposal” requirement with the next step of the analysis: “com[ing] to be located at” a “facility.” It essentially concluded that emission into the air, rather than “into or on any land or water,” still results in a “disposal” so long as the hazardous substance eventually makes its way to land or water. The judge’s interpretation would literally leave arranger liability without any limit: wherever an air emission lands, a CERCLA facility is formed. Under that interpretation any air emitter might be threatened with a broad and disproportionate form of liability that Congress never intended.

On July 27, 2016, the court reversed the trial judge and sent the case back for further consideration of any remaining claims. It held that the owner did not arrange for the "disposal" of hazardous substances that were emitted by the smelter into the air, and could therefore not be held liable for cleanup costs under the provision governing disposal. The court relied on previous cases interpreting the disposal language to mean depositing material, such as by putting it down, and not including chemical or geologic processes or passive migration, such as through the air.

The NAM sought this result to allow manufacturers that safely follow current emission standards not to have to worry about potential CERCLA liability for emissions that land miles away.

Related Documents:
NAM amicus brief  (August 11, 2015)


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