A Ninth Circuit panel reversed a district court’s denial of a smelter owner’s motion to dismiss, holding that the owner/operator of a facility that emits airborne hazardous substances cannot be held liable as an arranger for disposal under CERCLA.

The case involves a smelter owned and operated by Teck Cominco Metals, Ltd., and located about ten miles north of the U.S.-Canada border. The plaintiffs alleged that the smelter had emitted hazardous substances into the air that later fell onto the cleanup site, leading to the incurrence of response costs. The decision hinged on whether this constitutes “disposal” under CERCLA. If so, the owner/operator would be liable as an arranger for disposal.

CERCLA does not include its own definition of “disposal” and instead references the definition in RCRA, which includes “discharge, deposit, injection, dumping, spilling, leaking, or placing” of hazardous waste. The plaintiffs argued that Teck “deposited” hazardous substances at the site by emitting airborne substances that later fell onto the cleanup site. Citing dictionary definitions of “deposit,” the court wrote that the plaintiffs’ interpretation appeared reasonable, but that it was bound by earlier Ninth Circuit decisions interpreting the terms “disposal” and “deposit.” Most important was the court’s analysis in Center for Community Action & Environmental Justice v. BNSF Railway Co., 764 F.3d 1019, 1023-24 (9th Cir. 2014), in which it determined that the RCRA definition of “disposal” did not include airborne emissions because the RCRA definition of “release” includes “emitting” but the RCRA definition of “disposal” does not. Because of this earlier decision, and because the CERCLA definition of “release” also includes the term “emitting,” the panel was bound by the reasoning of Center for Community Action. It seems likely that the plaintiffs will seek en banc review.

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