The warm summer breeze you felt on July 27th may have been caused by the collective sigh of relief from the nation’s manufacturers and mining companies over the Ninth Circuit’s holding that Teck Cominco (a mining company) was not liable pursuant to Superfund for the remediation of lead, arsenic, cadmium and mercury (among other chemicals) deposited on soil as a result of smokestack air emissions. Pakaootas v. Teck Cominco Metals, No. 15-35228 (9th Cir.).
Although this decision was welcomed, there are cautionary notes. The Ninth Circuit seemed surprisingly sympathetic to the plaintiff’s proposed interpretation, despite the plain meaning of the key statutory term “disposal” and the existence of a comprehensive Clean Air Act program that already regulates air emissions. Nonetheless, the panel reluctantly rejected the plaintiff’s interpretation because of the Ninth Circuit’s prior ruling that “[n]othing in the context of the statute or the term ‘disposal’ suggests that Congress meant to include chemical or geologic processes or passive migration,” Center for Community Action & Environmental Justice v. BNSF Railway Co., 764 F.3d 1019 (9th Cir. 2014) (rejecting liability due to emitting diesel particulate matter), and a prior en banc interpretation of the terms “deposit” and “disposal” (Carson Harbor Vill Ltd. v. Unocal Corp., 270 F.3d 863 (9th Cir. 2001) (en banc), albeit addressing former owner liability). Interestingly, the fact that the air emission source was in Canada did not play a role in the reasoning.
The Court’s decision avoids absurd results. For example, had it ruled the other way, virtually every industrial facility within miles of any Superfund site might be liable (greatly increasing the burden on companies and the cost of resolving liability at these sites). Also, air emissions might be considered disposal of hazardous waste, theoretically subjecting stack emissions to hazardous waste as well as a Clean Air Act permitting. However, the panel’s declaration that the plaintiff’s interpretation was “reasonable enough” and that, had the court been working with a blank slate, it “might be persuaded to adopt” a contrary view, suggests that industry may not want to relax completely yet.
