MTCA Liability For Smokestack Emissions

Last month, a federal court judge in the Eastern District of Washington concluded that deposition of aerial emissions from a smokestack could support a claim for arranger liability under Washington's cleanup statute, the Model Toxics Control Act (MTCA).

In a short unpublished decision, the court denied a motion to dismiss from Teck Cominco Metals, Ltd. (Teck Cominco) that sought to defeat MTCA natural resources damages claims by the State of Washington. In its complaint, the State alleged that Teck Cominco "deliberately discharged pollutants through its smokestack and made use of Columbia River Valley air currents to dispose of these wastes in Washington."

In contrast to a 2016 Ninth Circuit decision denying arranger liability under CERCLA based on aerial emissions for the same facility, the court found that under MTCA, "[t]he ordinary meaning of 'disposal' does not preclude [disposal by aerial emissions], and crucially, MTCA expressly contemplates cleanup sites