Joseph A. Pakootas, an individual and enrolled member of the Confederated Tribes of the Colville Reservation; Donald R. Michel, an individual and enrolled member of the Confederated Tribes of the Colville Reservation; Confederated Tribes of the Colville Reservation, Plaintiffs-Appellees,
Teck Cominco Metals, Ltd., a Canadian corporation, Defendant-Appellant. State of Washington, Intervenor-Plaintiff-Appellee,
and Submitted April 6, 2016 Seattle, Washington
from the United States District Court for the Eastern
District of Washington Lonny R. Suko, District Judge,
Presiding D.C. No. 2:04-cv-00256-LRS
M. Fong (argued), Pillsbury Winthrop Shaw Pittman LLP, San
Francisco, California; Christopher J. McNevin, Pillsbury
Winthrop Shaw Pittman LLP, Austin, Texas; for
J. Dayton (argued) and Brian S. Epley, Short Cressman &
Burgess PLLC, Seattle, Washington, for Plaintiffs-Appellees.
A. Fitz (argued), Senior Counsel; Robert W. Ferguson,
Attorney General of Washington; Washington State Attorney
General's Office, Olympia, Washington, for
G. Bailey, Jr., Eldon V. C. Greenberg, and Richard A. Wegman;
Garvey Schubert Barer, P.C., Washington, D.C.; Malcolm
Seymour III, New York, New York; Matthew Begbie and Dean
Sherratt, Department of Foreign Affairs, Trade and
Development, Ottawa, Ontario, Canada; for Amicus Curiae
Government of Canada.
William M. Jay, Michael S. Giannotto and Andrew Kim, Goodwin
Procter LLP, Washington, D.C.; Jaime A. Santos, Goodwin
Procter LLP, Boston, Massachusetts; Leslie A. Hulse, American
Chemistry Council, Washington, D.C.; Tawny A. Bridgeford,
National Mining Association, Washington, D.C.; Steven P.
Lehotsky and Sheldon B. Gilbert, U.S. Chamber Litigation
Center, Washington, D.C.; Quentin Riegel, Manufacturers'
Center for Legal Action, Washington, D.C.; for Amici Curiae
National Mining Association, Chamber of Commerce of the
United States of America, National Association of
Manufacturers and American Chemistry Council.
S. Gualtieri (argued); John C. Cruden, Assistant Attorney
General; Environment and Natural Resources Division, United
States Department of Justice, Washington, D.C., for Amicus
Curiae United States of America.
D. Harris, Attorney General of California; Sally Magnani,
Senior Assistant Attorney General; Margarita Padilla,
Supervising Deputy Attorney General; Timothy E. Sullivan and
Dennis L. Beck, Jr., Deputy Attorneys General; Office of the
California Attorney General, Sacramento, California; for
Amicus Curiae California Department of Toxic Substances
Before: Michael Daly Hawkins, Johnnie B. Rawlinson, and
Consuelo M. Callahan, Circuit Judges.
panel reversed the district court's denial of a smelter
owner-operator's motion to dismiss claims brought against
it under the Comprehensive Environmental Response,
Compensation, and Liability Act.
panel held that the owner-operator could not be said to have
arranged for the "disposal" of hazardous substances
that were emitted by the smelter into the air, and
contaminated land and water downwind. The owner-operator
therefore could not be held liable for cleanup costs and
natural resource damages under 42 U.S.C. § 9607(a)(3).
The panel found persuasive Center for Community Action
& Environmental Justice v. BNSF Railway Co., 764
F.3d 1019 (9th Cir. 2014), which held that emitting diesel
particulate matter into the air and allowing it to be
"transported by wind and air currents onto the land and
water" did not constitute "disposal" of waste
within the meaning of the Resource Conservation and Recovery
Act. In addition, the panel was bound by the interpretation
of the terms "deposit" and "disposal" in
Carson Harbor Vill Ltd. v. Unocal Corp., 270 F.3d
863 (9th Cir. 2001) (en banc) (addressing former owner
liability under § 9607(a)(2), rather than arranger
liability under § 9607(a)(3)).
panel remanded the case to the district court for the
processing of plaintiffs' remaining claims.
HAWKINS, Circuit Judge:
smelter emits lead, arsenic, cadmium, and mercury compounds
through a smokestack and those compounds contaminate land or
water downwind, can the owner-operator of the smelter be held
liable for cleanup costs and natural resource damages under
the Comprehensive Environmental Response, Compensation, and
Liability Act ("CERCLA"), 42 U.S.C. §
9607(a)(3)? All parties agree the answer turns on whether the
smelter owner-operator can be said to have arranged for the
"disposal" of those hazardous substances within the
meaning of CERCLA. Bound by a previous en banc case's
interpretation of "deposit"-the only theory of
"disposal" urged by Plaintiffs in this
interlocutory appeal-as not including the gradual spread of
contaminants without human intervention, we must answer no.
history of legal disputes over damage caused in the State of
Washington by emissions of toxic chemicals from Defendant
Teck Cominco Metals, Ltd.'s ("Teck's")
smelter, located ten miles north of the U.S.-Canada border in
Trail, British Columbia, stretches back almost 100
years. The emissions-based claim in this lawsuit
is only the latest chapter in the saga.
particular lawsuit initially focused on a different form of
waste disposal: Teck's dumping of slag into the Columbia
River. The early procedural history of the "river
pathway" claims in this lawsuit was recounted in prior
appeals and is not repeated here. Pakootas v. Teck
Cominco Metals, Ltd., 646 F.3d 1214, 1216 (9th Cir.
2011) ("Pakootas II"); Pakootas v.
Teck Cominco Metals, Ltd., 452 F.3d 1066, 1069-71 (9th
Cir. 2006) ("Pakootas I"). Since our last
published opinion in this case, some issues relevant to the
river pathway claims have proceeded to trial in the district
court ("Phase I"),  while other issues remain to be
Phase I was ongoing, Plaintiff the Confederated Tribes of the
Colville Reservation and Plaintiff-Intervenor the State of
Washington (collectively, "Plaintiffs") sought
leave to file a third amended complaint to add a new CERCLA
claim, alleging that, in addition to dumping hazardous
substances into the river, Teck also emitted hazardous
substances into the air. Those substances were carried by air
currents to the Upper Columbia River Site ("UCR
Site"), including "upland" areas of the UCR
Site. The district court initially denied the
motion as untimely. However, after the Phase I trial was
completed, the district court changed its position and
allowed Plaintiffs to amend their complaints to add claims
for cost recovery and natural resource damages resulting from
Teck's aerial emissions.
fourth amended complaints allege:
From approximately 1906 to the present time, Teck Cominco
emitted certain hazardous substances, including, but not
limited to, lead compounds, arsenic compounds, cadmium
compounds and mercury compounds into the atmosphere through
the stacks at the Cominco Smelter. The hazardous substances,
discharged into the atmosphere by the Cominco Smelter
travelled through the air into the United States resulting in
the deposition of airborne hazardous substances into the
Upper Columbia River Site.
environmental impact of the air emissions are described thus:
Over time significant volumes of Teck Cominco's slag,
liquid waste and air emissions, and the hazardous substances
contained therein, have come to be located in, and cause
continuing impacts to, the surface water and ground water,
sediments, upland areas, and biological resources which
comprise the Upper Columbia River Site.
. . . .
Evidence shows that the physical and chemical decay of slag,
the settling of metals associated with liquid waste, the
deposition of air emissions, and the subsequent release of
elements including, but not limited to, arsenic, cadmium,
copper, zinc, and lead, is an ongoing process in ...