The Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. (“CERCLA”) imposes fairly broad liability on potentially responsible parties (“PRPs”) to pay for the investigation and remediation of a release of a hazardous substance.  Typically, we think of a “release” as spilling or dumping on land, or discharging to water.  A new line of cases, however, may result in CERCLA liability for PRPs emitting airborne pollutants that ultimately settle onto the land or water.

The Ninth Circuit is currently considering whether a lead smelting facility that released contaminants to the air that ultimately settled onto the land and water can be liable under CERCLA as someone who arranged for the disposal of a hazardous substance.  In the case, Pakootas v. Teck Cominco Metals, Ltd., plaintiffs alleged that a Teck Cominco Metals Ltd. (“Teck”), which operates a lead smelter in Canada, was emitting contaminants that were ultimately deposited at the Upper Columbia River site.  This action, plaintiffs argued, made Teck liable as an arranger under CERCLA.  The district court agreed with the plaintiffs, holding that Teck’s air emissions could result in CERCLA liability, but asked the Ninth Circuit to weigh in on the issue, which the court reported to be a matter of first impression.

Teck continues to argue that the aerial emissions cannot be a disposal under CERCLA.  In support of its position, it relies on another case decided by the Ninth Circuit – Center for Community Action and Environmental Justice v. BNSF Railway, 764 F.3d 1019 (9th Cir. 2014).  In that case, the Ninth Circuit held that emission of particulates in diesel exhaust does not constitute “disposal” under the Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq. (“RCRA”).  RCRA disposal, the Ninth Circuit stated, does not include “emitting,” and so contaminants in exhaust could not lead to RCRA liability.  Not all courts agree, however – an Ohio court recently held that aerial emissions can lead to RCRA liability, and how those pollutants end up on the land or water may be a “distinction without a difference.”

The cases are a warning to anyone who emits airborne pollutants – even if those emissions are permitted – that liability can follow you downwind.

The underlying case is Pakootas v. Teck Cominco Metals, Ltd., 2014 U.S. Dist. LEXIS 178964 (E.D. Wash., Dec. 31, 2014).

The RCRA cases are:

Community Action and Environmental Justice v. BNSF Railway, 764 F.3d 1019 (9th Cir. 2014).

The Little Hocking Water Association v. E.I. du Pont De Nemours Co., Case No. 2:09-CV-1081 (S.D. Ohio, Mar. 10, 2015).