Last year, we told you about a district court case in which air emissions from a lead smelter that ultimately settled on the land and in a water body gave rise to liability under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. (“CERCLA”). Last week, the Ninth Circuit overturned the district court’s decision, scaling back CERCLA liability to exclude such emissions.

The case involved emissions from Teck Cominco Metals’ smelter, located in British Columbia, Canada. Plaintiffs filed suit against Teck under CERCLA, arguing that emissions from the smelter were being deposited into the Upper Columbia River site in the United States. Plaintiffs claims that Teck was liable as a party that arranged for the disposal of hazardous substances under CERCLA. The district court agreed with the plaintiff but because the issue was one of first impression, it certified its holding to the Ninth Circuit to weigh in on the issue.

The Ninth Circuit reversed the district court’s decision, holding that the aerial emissions, which ultimately deposited onto the land and water, were not a “disposal” under CERCLA. According to the Ninth Circuit, the plaintiff’s theory was that Teck allowed hazardous substances to be deposited at the site by wind, as opposed to a direct deposit. Because of the intervention of this natural source, the Court held that it was not a disposal. Relying on prior case law, the Court held that “deposit”, a term included in the definition of “disposal”, means “putting down” or “placement,” not “the gradual spread of contaminants without human intervention.” The Court went on to say that if “aerial depositions” were considered “disposals,” “‘disposal’ would be a never-ending process . . . .”

The Ninth Circuit’s decision is in line with prior decisions interpreting the meaning of “disposal” in the context of both the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (“RCRA”) and CERCLA. These decisions support the notion that passive migration of hazardous substances or hazardous wastes does not constitute disposal under CERCLA or RCRA.

The Ninth Circuit opinion is Pakootas, et al. v. Teck Cominco Metals, Ltd., No. 15-35228 (9th Cir. Jul. 27, 2016).