WA Judges Skeptical that Superfund Includes Teck Smelter’s Airborne Waste- SERIOUSLY

From Toxics Law Reporter

By Steven M. Sellers

April 6 — A Ninth Circuit panel appeared disinclined to find that the Superfund law includes contaminants that traveled by air from a Canadian smelter onto a contaminated U.S. site.

The seemingly skeptical three-judge panel considered sharply contrasting oral arguments on how far the U.S. hazardous waste law extends Apr. 6.

The appeal, based on the judges’ questioning, may turn on the court’s interpretation of a related law with terms similar to those in the Comprehensive Environmental Response, Compensation, and Liability Act (Pakootas v. Teck Cominco Metals Ltd., 9th Cir., No. 15-35228, oral arguments 4/6/16).

Kevin M. Fong, of Pillsbury Winthrop Shaw Pittman in San Francisco, who represented smelter owner Teck Cominco Metals Ltd., argued that Teck had no “arranger liability” for aerial emissions from its smokestacks because CERCLA requires a direct deposit of contaminants onto land or into water .

But the State of Washington, the Confederated Tribes of the Colville Reservation, and the Department of Justice (as an amicus party) panned that narrower view, saying it would subvert CERCLA’s remedial intent.

Superfund liability attaches when an entity “arranges” for the disposal of hazardous substances and those substances are “deposited” or “disposed of” at a site, at which point the site becomes a “facility,” here the Upper Columbia River Superfund Site.

‘Disposals’ and ‘Deposits’ Debated

Whether deposits of emissions from the smelter’s smokestacks in British Columbia fit the CERCLA mold is the crux of the appeal.

David Gualtieri, who argued for the Department of Justice, said the lack of court decisions on the aerial emission issue in the case reflected long-accepted notions of CERCLA’s broad reach and its goal of remediating contamination of land and water—even when, as here, it arrives by air .

“Why shouldn’t we take the government’s arguments as the tie-breaker even though it’s in an amicus brief?” Judge Consuelo M. Callahan asked Fong, noting a lack of specific EPA pronouncements on CERCLA’s applicability to aerial emissions.

Previous Ruling Questioned

But the panel also had to wrestle with a 2014 Ninth Circuit ruling on a related statute—the Resource Conservation & Recovery Act—in which the court limited the meaning of a “disposal” of hazardous substances to solid waste discharged directly onto land or into water (Ctr. for Cmty. Action & Envtl. Justice v. BNSF Ry.Co., 764 F.3d 1019 (9th Cir. 2014).

Judge Johnnie B. Rawlinson asked counsel whether the court was bound byBNSF‘s definition of “disposal” even though the terms arise in two different statutes.

“We’re bound by the decisions of a prior panel,” Rawlinson said.

Fong agreed, but Gualtieri countered that BNSF doesn’t apply because it involves a fact-specific application of RCRA not intended to apply to CERCLA.

Andrew Fitz, who argued for the Washington State Attorney General’s office, concurred with Gaultieri, adding that CERCLA’s application to air emissions is well-established despite a lack of specific EPA regulations.

“A disposal occurs when it hits the land or water,” said Fitz, who disagreed that CERCLA excludes emissions that travel any distance through the air.

“If I carry a barrel of waste in the air, under Teck’s argument there’s no liability,” said Fitz, adding that involved railroad waste.

The court didn’t seem fully convinced.

“If the only distinction is that it was a railroad, you have to do better than that,” replied Callahan.

A decision in the appeal isn’t expected for several months.

Judges Michael Daly Hawkins, Johnnie B. Rawlinson and Consuelo M. Callahan heard the case.

The law offices of Pillsbury Winthrop Shaw Pittman represented Teck Cominco Metals Ltd.

The Washington State Attorney General’s Office represented the State of Washington.

The Department of Justice represented the federal government as amicus curiae.

To contact the reporter on this story: Steven M. Sellers in Washington atssellers@bna.com.