In Pakootas v. Teck Cominco Metals, LTD, Plaintiffs filed suit under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against a Canadian mining company for disposing of slag and hazardous substances into the Upper Columbia River (UCR) and Lake Roosevelt, both in the U.S., where Plaintiffs fish, hunt and recreate. Pakootas v. Teck Cominco Metals, 868 F. Supp. 2d 1106 (E.D. Wash. 2014). Plaintiffs alleged that the materials were directly emitted from Teck’s smelter located in British Columbia, Canada.
On December 31, 2014, the court held that Defendant’s direct aerial emissions could result in “disposal” and therefore be actionable under CERCLA. This holding must be viewed in light of the Ninth Circuit’s recent decision in Center for Community Action and Environmental Justice v. BNSF Railway (CCAEJ), which held that direct aerial emissions could not result in “disposal” under the Resource Conservation and Recovery Act (RCRA). Center for Community Action and Environmental Justice v. BNSF Railway, 764 F.3d 1019 (9th Cir. 2014).
The courts arrived at different conclusions regarding this central question of direct air emissions by applying the same interpretation of “disposal” to different statutes – RCRA and CERCLA. The CCAEJ court determined that direct air emissions could not result in “disposal” under RCRA because the definition requires that the contamination first be placed “into or on any land or water” and thereafter emitted into the air. The Pakootas court agreed with, and employed, the Ninth Circuit’s interpretation. However, it determined that because liability under CERCLA, unlike RCRA, arises from “disposal” at a CERCLA “facility,” “disposal” under CERCLA is triggered only when the contamination is placed “into or on any land or water” of such a “facility” even if the contamination is first directly emitted into the air. Therefore, the court held that such direct air emissions could result in “disposal” and be actionable.
In Pakootas, the court concluded that hazardous substances from direct aerial emissions that were later deposited “into or on any land or water” of the Defendant’s UCR site—a CERCLA “facility” located inside the United States—could constitute “disposal” and therefore result in CERCLA liability. In other words, though the hazardous substances were first emitted into the air, “disposal occurred in the first instance into or on land or water of the UCR Site and did not run afoul of RCRA’s definition of ‘disposal’ as interpreted in CCAEJ.”
The issue of whether CERCLA governs hazardous substances that were first directly released into the air and thereafter deposited in land or water has rarely, if ever, been litigated. Acknowledging that the court’s holding would be challenged, the court certified its decision for an immediate interlocutory appeal to the Ninth Circuit.