Application of CERCLA to Deposits of Hazardous Wastes Originating as Air Emissions PRESENTED BY PAUL J. DAYTON Committees’ Joint CLE Seminar, January 21-23, 2016 Environmental, Mass Torts & Products Liability Litigation

CERCLA Applied in Pakootas I to govern discharges from Trail, B.C. smelter now found in Upper Columbia River Site in United States Pakootas et al. v. Teck Cominco Metals, Ltd., 452 F.3d 1066 (9 th Cir. 2006) (Pakootas I)

Elements of CERCLA Liability Site on which hazardous substances are located is a “facility” A “release” or “threatened release” from the facility has occurred The release or threatened release has caused incurrence of “removal” or “remedial” costs; and Defendant is a covered person under CERCLA 42 U.S.C. § 9607(a)

Covered persons Arranger “[A]ny person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances” 42 U.S.C. § 9607(a)(3)

“Disposal” CERCLA incorporates by reference RCRA definition of disposal 42 U.S.C. § 9601(29) - The terms “disposal”…shall have the meaning provided in section 1004 of the Solid Waste Disposal Act RCRA defines disposal as follows: The term “disposal” means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters. 42 U.S.C. 6903(3)

RCRA citizen suit Plaintiff alleged unlawful “disposal” of diesel particulate matter (DPM) found in diesel exhaust emitted from railyards Key allegation: DPM emitted into the air first, falls to land and water, and is subsequently re-entrained into the air and inhaled Ctr. for Cmty. Action & Envtl. Justice v. BNSF Ry. Co., 764 F.3d 1019 (9 th Cir. 2014) (BNSF)

Case law prior to BNSF Sparse case law addressing application of CERCLA to hazardous substances aerially emitted before deposit on land or water U.S. v. Power Engineering Co., 191 F.3d 1224 (10 th Cir. 1999) (disposal definition has “broad scope” and encompasses mist of hexavalent chromium emitted to air before falling to nearby ground) Courtlands Aerospace v. Huffman, 826 F. Supp (E.D. Cal. 1993) (arranger liability applied to ash emitted from metal smelting plant and carried by wind onto neighbors’ property) National R.R. Passenger Corp. v. New York Hous. Auth., 819 F. Supp (S.D.N.Y. 1993) (arranger liability applied to paint containing hazardous substances that flaked off building and was carried through air onto another’s property)

Ninth Circuit addresses air emissions under RCRA Held: Under RCRA, solid waste must go first to land or water before being emitted to air Rationale: “Disposal” definition enumerates particular conduct by violator that falls within its scope, but does not include “emission” Structure of definition limits its application to particular conduct that results in placement of solid waste “into or on land or water,” which thereafter is released to environment, emitted to air, or discharged to water “[D]ischarge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may…be emitted into the air…” Statutory scheme and legislative history demonstrate Congress intended for Clean Air Act to apply to DPM emissions

District Court rejects application of BNSF to CERCLA context District Court rejected Teck’s motion for reconsideration after BNSF decision Rationale CERCLA liability arises from “disposal…of hazardous substances…at any facility…from which there is a release…of a hazardous substance” Because the relevant facility is the UCR Site—not Teck’s Trail Smelter—the correct analysis is whether “disposal” occurred at UCR Site. Court certified ruling for interlocutory appeal

Multiple Interested Parties on Appeal Appellant Teck Gov’t of Canada (amicus) National Mining Association, Chamber of Commerce, Nat’l Ass’n of Mnfr’s, American Chemistry Council (amici) Appellee Colville Tribe State of Washington DOJ (amicus) State of California (amicus)

Oral argument expected April, 2016