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12.17.2015 Can Air Emissions Result in CERCLA Liability? By: Ethan R. Ware

Liability under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) results from “releases” of hazardous substances.  The term “release” is usually used in the context of something spilled or dumped on land or discharged to water, but do air emissions from a manufacturing process expose a facility to CERCLA liability?  Maybe so, if the federal government and other plaintiffs prevail in a case now pending in the United States Court of Appeals for the Ninth Circuit. 

In 2014, Teck Cominco Metals, Ltd. (“Teck”) was found liable under CERCLA for contaminating nearby waterways with heavy metals from its lead smelting operations.  The metals had been dumped into the streams and creeks directly.  Plaintiffs then made new allegations that Teck should also be liable under Superfund for airborne releases that ultimately settled in the waterways.  The district court agreed, but allowed Teck to file an immediate appeal of its ruling to the Ninth Circuit.

On appeal, Teck argued to the Ninth Circuit that hazardous substances emitted into the air before falling back to the ground are not being “disposed” of, and, therefore, it cannot have liability for them under CERCLA.  CERCLA adopts its definition of disposal directly from the Resource Conservation and Recovery Act (RCRA), and a tenet of hazardous waste regulations dating back to 1980 is that uncontainerized air emissions are not solid waste.  Therefore, air emissions cannot be “disposed of” for purposes of the applicable regulations. 

Teck is not without support for its position.  In a 2014 decision, the Ninth Circuit held that the emission of particulates in diesel exhaust is not a “disposal” under RCRA.  The Court pointed out that the definition of “disposal” under RCRA does not include “emitting,” and therefore exhaust emissions could not lead to RCRA liability. 

The federal government argued to the Ninth Circuit that air dispersion of pollutants is a “disposal” under both RCRA and Superfund.  In its brief, it said, “Teck’s crabbed interpretation…would negate disposal in countless cases [and] put polluters beyond [Superfund’s] reach…”

Depending on the outcome, this case could expand the scope of CERCLA significantly.  Also, if the federal government’s position is upheld, it may mean that companies will need to file Part A RCRA Notices for any air emissions exhibiting characteristics of hazardous waste.

Pakootus v. Teck Cominco Metals, Ltd., No. 15-800005 (9th Cir.)