Ninth Circuit CERCLA update

The Ninth Circuit in a 3-judge panel decision held that Teck Metal’s use of mining smelter stacks which allowed aerial dispersion of metal waste that ultimately ended up in Washington state was not the “disposal” of waste for purposes of CERCLA liability. Pakootas v. Teck Cominco Metals, Ltd., No. 15-35228, 2016 WL 4011196, ___ F.3d ___ (July 27, 2016).  The State and an affected native tribe, the Confederate Tribe of the Coville Reservation, filed separate petitions for rehearing or rehearing en banc arguing that the panel decision “distorts” prior Ninth Circuit CERCLA decisions, including a prior en banc decision involving passive migration of contaminants through sub-surface soils, Carson Harbor Village, Ltd. v. Unocal Corp., 279 F.3d 863 (9th Cir. 2001).  Not so, argued Teck Metals in an answer to the State’s petition for rehearing, noting that the Circuit Court in Carson Harbor construed the term “deposit” under CERCLA to require some human activity such as the putting down or placement of a waste by someone.  On October 11, 2016, the Ninth Circuit has denied a request to rehear the case either by the panel or on an en banc basis.  (Docket no. 94). The Ninth Circuit’s mandate is now final, but it remains to be seen whether one of the parties will now seek Supreme Court review.

The Teck Metals case poses an important question under CERCLA, i.e., whether an “aerial disposition” of a chemical classified as a hazardous substance can constitute the “deposit” or “disposal” of that hazardous substance.  In a typically circular fashion, CERCLA does not define the term “disposal” even though it imposes liability on certain classes of entities that “dispose” of hazardous waste.  Rather, CERCLA cross-references a separate environmental statute, the Resource Conservation Recovery Act (RCRA) which in turn defines disposal as: “the discharge, deposit, injection, dumping, spilling, leaking or placing of any solid waste . . . into or on any land or water. . .” (42 U.S.C. Section 6903(3)).  Other circuits have previously construed the RCRA definition of “dispose” to require some type of direct human activity evidenced by the words “discharge, deposit, injection, dumping, spilling, leaking, or placing.”  As the Second Circuit put it in ABB Indus. Systems v. Prime Technology, Inc., 120 F.3d 351, 309 (2nd Cir. 1997): “None of these terms is commonly used to refer to the gradual spreading of hazardous chemicals already in the ground. . .”

The Ninth Circuit largely accepted this interpretation of the “plain meaning” of the statutory term “disposal” and applied it to a CERCLA case involving the migration of hazardous substances in the subsurface soils in the Long Beach, California area. Carson Harbor Village, Lt. v. Unocal Corp. 270 F.3d 863, 877 (9th Cir. 2001) (en banc). Although disputing that the strict distinction between an “active” and a “passive” migration was necessarily mandated by the statutory definition, the Ninth Circuit held that: Instead of focusing solely on whether the terms are “active” or “passive,” we must examine each of the terms in relation to the facts of the case and determine whether the movement of contaminants is, under the plain meaning of the terms, a “disposal.” Put otherwise, do any of the terms fit the hazardous substance contamination at issue?” 270 F.3d at 879.  In that case, the gradual dispersion of tar-like and slag materials in the subsurface soils left there decades before by Unocal did not fall within the definition of “disposal.”

For more information on this case and on the Second Circuit’s decision in ABB Indus. System v. Prime Tech., Inc., contact Norm Dupont of the Irvine office.

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