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Pakootas v. Teck Cominco Metals, Ltd.

ELR Citation: 46 ELR 20129
Nos. 15-35228, (9th Cir., 07/27/2016)

The Ninth Circuit held that a mining company that operates a smelter in Canada should not be held liable as an arranger under CERCLA for the release and threatened release of hazardous substances in the Upper Columbia River. The company could not be said to have "arranged" for the "disposal" of hazardous substances that were emitted by the smelter into the air and subsequently contaminated land and water downwind. The court relied in part on its decision in Center for Community Action & Environmental Justice v. BNSF Railway Co., 764 F.3d 1019, 44 ELR 20191 (9th Cir. 2014), where it held that emitting diesel particulate matter into the air and allowing it to be "transported by wind and air currents onto the land and water" did not constitute "disposal" of waste within the meaning of RCRA. The court also relied on Carson Harbor Village Ltd. v. Unocal Corp., 270 F.3d 863 (9th Cir. 2001), in which it rejected the passive migration theory and held that disposal warranting CERCLA liability requires a showing that hazardous substances were affirmatively introduced into the environment. As such, the company should not be held liable for cleanup costs and natural resource damages under CERCLA. The court therefore reversed and remanded a lower court decision that found the company liable under CERCLA.