Federal Appellate Court Rules In CERCLA Air Emissions Case

On July 27, 2016, the U.S. Court of Appeals for the Ninth Circuit issued a decision in a novel air emissions case under the federal Comprehensive Environmental Response, Compensation & Liability Act (CERCLA).  In Joseph Pakootas, et al. v. Teck Cominco Metals, the Ninth Court of Appeals held that the defendant smelter operator was not liable as an "arranger" under CERCLA for  aerial emissions deposited on land or water.  The case involved air emissions from a lead/zinc smelter in Canada, which were transported by wind and deposited at a CERCLA site in the State of Washington.  The district court had denied a motion to dismiss filed by the defendant smelter, but in reversing the district court, the Ninth Circuit Court of Appeals concluded that the term "disposal" in CERCLA does not include "the gradual spread of contaminants without human intervention."