Joseph Pakootas v. Teck Cominco Metals, Ltd.
830 F.3d 975
9th Cir.2016Background
- Teck Cominco operates a smelter in Trail, British Columbia whose smokestack emissions (lead, arsenic, cadmium, mercury compounds) migrated into the U.S. Upper Columbia River Site (UCR Site), contaminating uplands, sediments, water, and biological resources.
- Plaintiffs (Confederated Tribes of the Colville Reservation and State of Washington) sued under CERCLA seeking response costs and natural resource damages for contamination attributable to both slag dumped in the Columbia River and airborne emissions deposited in the UCR Site uplands.
- The district court had previously found Teck liable as an arranger for river dumping; Plaintiffs later amended to add claims that aerial emissions themselves resulted in "deposit" (a form of "disposal") under CERCLA/RCRA definitions.
- Teck moved to dismiss the aerial-emissions claims, arguing that emissions carried by wind and later deposited on land/water do not constitute "disposal" (or arranging for disposal) under CERCLA/RCRA; the district court denied dismissal and certified the question for interlocutory appeal.
- The Ninth Circuit, constrained by its prior en banc and panel precedent interpreting "deposit" and "disposal," held that passive atmospheric transport and gradual deposition without human-directed placement do not constitute "deposit"/"disposal" for arranger liability under CERCLA §9607(a)(3); it reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether emissions into air that later settle on land/water constitute "disposal" (specifically "deposit") under CERCLA/RCRA | Aerial emissions that are carried by wind and then deposited at the UCR Site are a "deposit" and therefore an actionable "disposal" (arranged by Teck) | Emissions that travel through air and passively settle are not a statutory "deposit" or "disposal"; arranger liability does not reach passive atmospheric transport | Held for Teck: passive airborne transport and gradual deposition without human-directed placement do not constitute "deposit"/"disposal" for arranger liability under §9607(a)(3) |
| Whether Carson Harbor and Center for Community Action permit treating "deposit" to include passive migration | Plaintiffs: statutory text and CERCLA's remedial purpose support a broader reading to include aerial deposition | Teck: Ninth Circuit precedent and textual/contextual reading preclude such expansion | Held that prior Ninth Circuit precedent (Carson Harbor, Center for Community Action) controls; plaintiffs fail to distinguish them |
| Whether CERCLA's cross-reference to RCRA or remedial purpose requires a different CERCLA interpretation | Plaintiffs: CERCLA's remedial aims and differences from RCRA justify broader meaning | Teck: Presumption of consistent usage and textual context control; remedial purpose doesn't override text/precedent | Held that remedial purpose does not override text/precedent; no persuasive basis to depart from prior construction |
| Whether agency interpretations (EPA consent orders) or legislative history require deference to a broader reading | Plaintiffs: EPA practice and some legislative snippets support treating aerial deposition as disposal | Teck: No controlling agency rule; prior judicial constructions govern; agency materials not entitled to Chevron deference here | Held agency materials not given controlling deference on thin briefing; court declines to resolve complex deference questions and follows precedent |
Key Cases Cited
- Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863 (9th Cir. 2001) (en banc) ("deposit" does not encompass passive geologic or chemical migration; interpreted "deposit" as human placement)
- Center for Community Action & Envtl. Justice v. BNSF Ry. Co., 764 F.3d 1019 (9th Cir. 2014) (panel) (emissions transported by wind onto land/water do not constitute RCRA "disposal")
- Brand X Internet Servs. v. FCC, 545 U.S. 967 (2005) (agency interpretations may alter prior judicial constructions in limited circumstances; discusses Chevron deference framework)
- Duke Energy Corp. v. Envtl. Def. (consol.), 549 U.S. 561 (2007) (statutory terms may take different meanings in different statutory contexts based on purpose and structure)
- Meghrig v. KFC W., Inc., 516 U.S. 479 (1996) (distinguishing CERCLA's remedial cost-recovery mechanism from regulatory statutes)