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9th Cir. Rejects Use of CERCLA to Fight Airborne Toxics

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By Casey C. Sullivan, Esq. on August 04, 2016 6:59 AM

The Comprehensive Environmental Response, Compensation, and Liability Act can't be used against companies that "dispose" of hazardous substances through air pollution, the Ninth Circuit ruled last week, in a case of first impression.

The State of Washington and Colville Tribes had sought to use CERCLA, also known as the Superfund Act, against a Canadian smelter that had released hazardous pollution into the air, pollution which was later deposited in Washington. But, the Ninth ruled, that smelter cannot be considered a person who "arranged for disposal" of hazardous substances under that law.

A 100 Year Contamination Battle

As the Ninth Circuit notes, the dispute over the Canadian smelter, Teck Cominco Metals, goes back almost 100 years. The smelter is located just ten miles north of the Washington-Canada border and the current lawsuit began over the smelter's alleged dumping of slag into the Columbia River. However, the state and tribes soon amended their complaint to accuse Teck of disposing of hazardous substances into the air, which would then be deposited downwind.

CERCLA establishes liability for parties found responsible for contaminated waste disposal sites. The plaintiffs had argued that Teck was responsible for the "aerial deposition" of hazardous waste via the wind, rather than the smelter directly depositing them on a waste site itself. That is enough for a CERCLA violation, the argument goes.

Precedent and Congress Trump a Reasonable Interpretation

However, the court noted, Ninth Circuit precedent weighs against such an interpretation of CERCLA. In two previous cases, the Ninth has ruled that "deposit" and "disposal" under CERCLA require intentional action, "putting down" or "placing" something, not passive disposal through chemical and geological processes or migration.

The court noted that Congress had included references to passive activity, such as the leaching of chemicals, where it intended to bring passive activity into CERCLA's reach. But it did not do so in regards to disposal or deposits, leading the court to conclude that toxic waste must first be actively placed into land or water; only afterwards can parties be liable for such hazardous substances that are emitted into the air.

Congressional intent, coupled with Ninth Circuit precedent, the 3-judge panel ruled in an opinion authored by Judge Michael D. Hawkings, foreclosed the state and tribes' "aerial deposition" theory, despite it being a plausible interpretation of the statute.

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