Several years ago we reported on Community Action & Environmental Justice v. Union Pacific Corporation, in which a California District Court held the dispersion into the air of particulate matter that reaches the ground or water did not constitute a “disposal” subject to RCRA but, instead, was subject to regulation under the Clean Air Act.  That District Court opinion was affirmed in 2014, in Community Action & Environmental Justice v. Union Pacific Corporation, 764 F.3d 1019 (9^th Cir. 2014).  Yesterday, in the case of Pakootas v. Teck Cominco Metals, No. 15-35228 (9^th Cir. July 27, 2016), the Ninth Circuit expanded this analysis of the relative roles of our environmental laws by holding that a party who disperses air pollutants that eventually settle into the ground or water are not arrangers liable under CERCLA as they have not “disposed of” hazardous substances under the Act.

Initially, the Court noted the importance of its decision, which was the result of an interlocutory appeal of the lower court’s denial of a Motion to Dismiss.  Not only was this an issue not previously addressed by an appellate court, but because “the word ‘disposal’ appears in the definitions of ‘facility’ and ‘release,’ the definitions of three of the four PRP classes and the innocent landowner and bona fide prospective purchaser defenses,” the Court recognized that its decision would have consequences in interpretation of the entire statute, not simply whether the defendant was an “arranger.”  Id. at 10-15.

Next, the Court addressed Plaintiffs’ argument that a definition of disposal is to deposit something and the dispersal of pollutants into the air which then settle on the ground is just such a deposition.  While it found the argument “reasonable enough” in a vacuum, it rejected it in the context of the statute.  Rather, the Court held, “deposit” and “disposal” require actively placing the hazardous substance because, as prior cases have held, Congress did not intend to hold parties liable for passive migration that occurs “without human intervention.”  Id. at 17.

Finally, the Court held that there was no reason to deviate from these prior cases, or to interpret “deposit” differently than it had interpreted it in Community Action & Environmental Justice.  That is, the Court found nothing in the legislative history that would compel a distinction between the word as used in RCRA and in CERCLA, nor any agency interpretation to which Chevron deference would apply, nor any reason to question its prior decisions.  Thus, the Court reversed the trial court’s denial of the Motion to Dismiss Plaintiffs’ CERCLA claims and remanded the case “for the processing of Plaintiffs’ remaining claims.”  Id. at 23.     

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