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Superfund Defense That The Government Hopes You Don’t Know About, Part 3 – Environment

The Comprehensive Environmental Response, Compensation, and
Liability Act (“CERCLA”),1 also known as the Superfund law,
imposes strict, joint and several, and retroactive liability. 
Over time, many companies and their legal counsel have concluded
that fighting a CERCLA claim, particularly one asserted by the
government, is in most instances a waste of time and resources, and
that therefore litigation resources are better allocated to
settlement.  While the CERCLA case law is indeed very
plaintiff-friendly, the scope of liability is not as limitless as
the government would like potential defendants to believe. 
There are certain types of activity that may contribute to the
contamination of a site, but nevertheless do not give rise to
CERCLA liability. 

This piece is the third in a series of three installments
focusing on little-known legal defenses to CERCLA allegations that
a defendant “arranged for the disposal or treatment” of a
hazardous substance at a site.  42 U.S.C.
§9607(a)(3).  Part 1 discussed the legal basis for
asserting that legitimate recycling transactions are not
arrangements for disposal.  Part 2 outlined the legal basis
for the argument that CERCLA liability does not attach to most
wastewater discharges subject to the Clean Water Act’s National
Pollutant Discharge Elimination System (“NPDES”) program,
including discharges that violate permit requirements.

This final installment will address the legal basis for the
defense that emission of airborne hazardous substances is not an
arrangement for disposal of those substances at the sites where
they ultimately land.  CERCLA plaintiffs have alleged such
liability for many years, particularly with respect to air
emissions from primary or secondary metal smelters.  However,
the legal strength of this liability theory was not squarely
addressed by a court until relatively recently.  As explained
below, in Pakootas v. Teck Cominco Metals, Ltd., 830 F.3d
975 (9th Cir. 2016), the U.S. Court of Appeals for the 9th Circuit
held that hazardous substances deposited at a Superfund site via
aerial deposition from a remote source have not been disposed of
within the meaning of CERCLA.

CERCLA “Disposal” is Based on Concepts of Hazardous
Waste Management

In determining whether a defendant “arranged for
disposal” of hazardous substances at a Superfund site, CERCLA
expressly directs the courts to apply the definition of
“disposal” that appears in Section 1004 of the Solid
Waste Disposal Act2 (aka the Resource Conservation and
Recovery Act or “RCRA”).3  RCRA is the primary federal
statute directed to the management of “solid wastes,”
including a subset deemed “hazardous wastes,” by both
waste generators and the facilities that treat, store or dispose of
such wastes.  The term “solid waste” is a misnomer,
as that term’s statutory definition encompasses “solid,
liquid, semisolid, or contained gaseous material. . . .”4 

Under RCRA, “‘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.”5  The legal
argument for CERCLA liability is that emission of hazardous
substances into the atmosphere is CERCLA disposal when it results
in such substances being “deposited . . . into or on the land
or water” of a Superfund site.  In practice, however, the
RCRA program generally does not regulate routine air emissions from
industrial operations as disposal, as such emissions are not
“contained gaseous materials.”

Pakootas v. Teck Cominco Metals, Ltd.

In Pakootas, Court of Appeals was called on to decide
whether a Canadian smelter located 10 miles north of the United
States’ border “arranged for disposal” of hazardous
substances by emitting those substances from its on-site
smokestacks, after which they allegedly traveled through the air
and were deposited at the Upper Columbia River Superfund Site in
Washington state.  The court characterized the plaintiff’s
argument, which was based on the inclusion of “deposit”
in the definition of “disposal,” to be “a reasonable
enough construction” of the statutory definition and one that
the court “might be persuaded to adopt,”6 but ultimately
concluded that the theory was incompatible with the 9th
Circuit’s prior CERCLA and RCRA precedents on the meaning of
“disposal.”

Specifically, the court found in Carson Harbor Village, Ltd.
v. Unocal Corp.
, 270 F.3d 863 (9th Cir. 2001) (en banc), the
holding that CERCLA “deposit” connotes the physical act
of putting down or placing a waste, and does not include the
passive environmental migration of the waste after it has been put
down or placed.  In Center for Community Action and
Environmental Justice v. BNSF Railway Co.
, 764 F.3d 1019 (9th
Cir. 2014), the court found the holding that emissions of waste
into the air only constitute RCRA “disposal” if the
emitted waste was first placed on land or water.

In Carson Harbor, the owner of a contaminated mobile
home park sued, among others, the preceding owner of the property
to recover cleanup costs under CERCLA.  Although the hazardous
substances were present on the site when the preceding owner
acquired the property, the current owner alleged that the
contamination’s subsurface migration during the prior
owner’s tenure constituted a new act of “disposal”
for purposes of CERCLA.  The 9th Circuit disagreed, holding
“that the gradual passive migration of contamination through
the soil . . . was not a ‘discharge, deposit, injection,
dumping, spilling, leaking, or placing’ and, therefore, was not
a ‘disposal'” within the term’s meaning for CERCLA
purposes.7 

With respect to the term “deposit,” the court noted
“the term is akin to ‘putting down,’ or
placement.  Nothing in the context of the statute or the term
‘disposal’ suggests that Congress meant to include
chemical or geologic processes or passive
migration
.  Indeed, where Congress intended such
a meaning, it employed specific terminology, such as
‘leaching’. . . .”8  The Pakootas court
apparently viewed the passive migration of contaminants in the air
as legally equivalent to the passive migration of contaminants
below the ground, which Carson Harbor held was not CERCLA
disposal.

In Center for Community Action, an environmental
advocacy organization brought a RCRA citizen suit against the
owners of railroad yards at which the exhaust from diesel-fueled
railroad engines included fine particulate matter.  The
plaintiff alleged that these particulates were “solid
wastes” that were “disposed of” when the defendants
permitted air currents to transport them to off-site land or
water. 

The 9th Circuit disagreed.  At the outset of its analysis,
the court noted that RCRA’s drafters had included
“emitting” in that statute’s definition of
“release,” but not in its definition of
“disposal,” indicating that Congress clearly knew how to
include air emissions within the scope RCRA disposal, but chose not
to do so.9  The court also found that its
textual interpretation was supported by RCRA’s legislative
history, as well as that of the Clean Air Act.  Therefore, the
court held that “by emitting diesel particulate matter from
their railyards and intermodal facilities, Defendants do not
‘dispose’ of solid waste in violation of RCRA.”10  To the Pakootas
court, Center for Community Action “involved
essentially the same facts” as its case.11

Pakootas treated the en banc decision in Carson
Harbor
as binding precedent and Center for Community
Action
as nonbinding, but persuasive, precedent.  Finding
nothing in CERCLA’s legislative history and no agency
interpretations that supported a different outcome,12
the court held that the defendant smelter was entitled to dismissal
of plaintiff’s CERCLA “arranged for disposal”
claim.

Is Pakootas Inconsistent With the “Federally
Permitted Release” Exemption?

As discussed in Part 2 of this series, CERCLA includes an
exemption from cleanup liability for contamination that arises from
one of eleven enumerated categories of “federally permitted
releases.” See 42 U.S.C. §9607(j).  One of
those exemptions addresses air emissions, namely:

any emission into the air subject to a permit or control
regulation under section 111, section 112, title I part C, title I
part D, or State implementation plans submitted in accordance with
section 110 of the Clean Air Act (and not disapproved by the
Administrator of the Environmental Protection Agency), including
any schedule or waiver granted, promulgated, or approved under
these section13

One might ask why, if Congress did not intend for aerial
deposition to constitute CERCLA disposal, the drafters bothered to
include any air emissions among the categories of federally
permitted releases.  While the Pakootas court found
no evidence in CERCLA’s legislative history that its drafters
had ever considered the issue of liability based on aerial
deposition,14 the inclusion of certain regulated
air emissions within the scope of federally permitted releases is
clearly neither surplusage, nor inconsistent with the court’s
holding. 

In addition to imposing cleanup liability based on
“disposal,” CERCLA imposes other enforceable obligations
related to “releases” of hazardous substances.  In
contrast to the definition of “disposal,” CERCLA’s
definition of “release” expressly encompasses
“emitting . . .into the environment. . . .”15  Release reporting
obligations are imposed under both CERCLA,16 and the Emergency
Planning and Community Right-to-Know Act,17 which was enacted
as part of the 1986 amendments to CERCLA.  However, both of
these reporting requirements include exemptions for federally
permitted releases.  Thus, the exemption for certain air
emissions regulated under the Clean Air Act serves a substantive
purpose in defining the scope of CERCLA’s reporting
requirements, even if such releases are not separately deemed
disposal.18

Practical Considerations

While Pakootas is binding precedent in the district
courts of the 9th Circuit, outside that circuit (and possibly the
Southern District of Ohio) the question of whether air emissions
constitute CERCLA disposal remains largely unaddressed.19  Given the federal
courts’ general inclination to construe CERCLA liberally to
facilitate the imposition of liability, the defense is far from
settled law.  Nevertheless, the issue clearly presents
litigation risk for potential plaintiffs and thus should, at a
minimum, provide potential defendants with a measure of settlement
leverage that they may not have known they had.

The air emission defense will likely have less value for
defendants who contributed to contamination at a Superfund site via
an indisputable form of CERCLA disposal (such as the dumping of
smelter slag) along with aerial deposition.  The CERCLA
disposal would be enough to render the emitter liable and a court
would likely impose on the emitter the substantial technical burden
of delineating where, if anywhere, site contamination was solely
attributable to aerial deposition.  Moreover, even if not
treated as the basis for liability, an otherwise liable
defendant’s aerial contributions could be deemed an
“equitable factor” considered by the court in allocating
liability among defendants.  See 42 U.S.C.
§9613(f)(1) (“In resolving contribution claims, the court
may allocate response costs among liable parties using such
equitable factors as the court determines are
appropriate.”).

Conclusion

Many Superfund cases are settled before they are even
filed.  The Pakootas case provides another example of
why potential CERCLA defendants should fully understand and
carefully review their alleged connection to a site in light of
CERCLA’s specific liability criteria before engaging in
settlement discussions.  Not all conduct that results in
contamination at a Superfund site falls within the statute’s
liability provisions.

Footnotes

1. 42
U.S.C. §9601, et seq.

2. 42
U.S.C. §6903.

3.
See 42 U.S.C. §9601(29).

4. See 42
U.S.C. §6903(27).

5.
Id. §6903(3) (emphasis added).

6. 830
F.3d at 983.

7. 270
F.3d at 879.

8.
Id. at 879 & n.7 (emphasis added).

9. 764
F.3d at 1024-25.

10.
Id. at 1030.  The court had no need to reach the
separate issue of whether diesel particulates even constituted
“solid waste” under RCRA.

11.
The U.S. District Court for the Southern District of Ohio declined
to adopt the 9th Circuit’s construction of RCRA disposal,
holding that the term encompassed the aerial deposition of
perfluorinated compounds emitted from stacks at a chemical
manufacturing facility.  See Little Hocking Water
Association, Inc. v. E.I. du Pont Nemours & Co.
, 91
F.Supp.3d 940, 964-65 (S.D. Ohio 2015).  There were no CERCLA
claims in the case, so the court did not opine on the scope of
CERCLA disposal.

12.
Notwithstanding CERCLA’s express direction that disposal
“shall have the meaning provided in” RCRA, see
42 U.S.C. §9601(29), the court treated this as only a
“presumption” that disposal would mean the same thing
under both statutes in all cases.  See 830 F.3d at
984 & n.9.  The court, however, found “no compelling
reason to override the presumption of consistent usage in this
case.”  Id.

13. 42
U.S.C. §9601(10)(H).

14.
830 F.3d at 985.

15. 42
U.S.C. §9601(22).

16.
See 42 U.S.C. §9603(a).

17.
See 42 U.S.C. §11004(a).

18.
See United States v. Gibson Wine Co., No.
1:15-cv-1900-AWI-SKO, 2017 WL 1064658 at *9 & n.9 (E.D. Cal.
March 20, 2017) (Pakootas did not address liability for failure to
report airborne releases).

19. In
Cyprus Amax Minerals Co. v. TCI Pacific Communications,
Inc.
, No. 11-cv-0252-CVE-PJC, 2017 WL 2662195 at *8 (N.D.
Okla. June 20, 2017), the court opined that the 10th Circuit would
follow Pakootas, but found that factual disputes precluded
summary judgment at that time.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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