Pakootas v. Teck Cominco Metals, Ltd.

          Argued and Submitted April 6, 2016 Seattle, Washington

         Appeal 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

          Kevin M. Fong (argued), Pillsbury Winthrop Shaw Pittman LLP, San Francisco, California; Christopher J. McNevin, Pillsbury Winthrop Shaw Pittman LLP, Austin, Texas; for Defendant-Appellant.

          Paul J. Dayton (argued) and Brian S. Epley, Short Cressman & Burgess PLLC, Seattle, Washington, for Plaintiffs-Appellees.

          Andrew A. Fitz (argued), Senior Counsel; Robert W. Ferguson, Attorney General of Washington; Washington State Attorney General's Office, Olympia, Washington, for Intervenor-Plaintiff-Appellee.

          Harold 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.

          David 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.

          Kamala 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 Control.

          Before: Michael Daly Hawkins, Johnnie B. Rawlinson, and Consuelo M. Callahan, Circuit Judges.

         SUMMARY ^[*]

         Environmental Law

         The 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.

         The 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)).

         The panel remanded the case to the district court for the processing of plaintiffs' remaining claims.

          OPINION

          HAWKINS, Circuit Judge:

         When a 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.

         I. Background

         The 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.^[1] The emissions-based claim in this lawsuit is only the latest chapter in the saga.

         This 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"), ^[2] while other issues remain to be tried.

         While 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.^[3] 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.

         Plaintiffs' 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.

         The 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 ...