Client Alert

Well, How Did It Get Here? Recent "Air Disposal" Cases Create Liability Uncertainty

April 21, 2015



On March 25, 2015, the U.S. Court of Appeals for the Ninth Circuit agreed to hear an interlocutory appeal of the U.S. District Court for the Eastern District of Washington decision in Pakootas v. Teck Cominco Metals, Ltd. (“Pakootas”).[1] The Ninth Circuit will consider the district court’s ruling that air emissions of hazardous substances that settle on land or water constitute “disposal” under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). Its decision to hear this appeal follows the Ninth Circuit’s decision in Center for Community Action and Environmental Justice v. BNSF Railway Company (“CCAEJ”),[2] which found that diesel particulate matter (“DPM”) emissions from railyard operations are not “disposal” of solid waste under the Resource Conservation and Recovery Act (“RCRA”). On March 10, 2015, just two weeks before the Ninth Circuit agreed to hear the Pakootas interlocutory appeal, the U.S. District Court for the Southern District of Ohio in The Little Hocking Water Association, Inc. v. DuPont (“Little Hocking”)[3] declined to follow CCAEJ and instead found that particulate emissions that enter land or water constitute “disposal” of solid waste under RCRA. Although the same definition of “disposal” appears in RCRA and CERCLA, the courts’ analyses in Pakootas, CCAEJ, and Little Hocking vary and, in certain aspects, are at odds. In light of these mixed outcomes, the Ninth Circuit in Pakootas will likely clarify its view of whether air emissions that enter land or water are subject to RCRA or CERCLA cleanup requirements.

“Disposal” of “Waste” Under RCRA and “Hazardous Substances” Under CERCLA

Enacted in 1976, RCRA regulates the generation, treatment, storage, and disposal of waste and hazardous waste.[4] In particular, RCRA regulates the “disposal” of “solid wastes” and “hazardous wastes.”[5] Under RCRA, “disposal” is defined as “the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.”[6] In a RCRA citizen suit, defendants may be liable where their disposal of a solid or hazardous waste presents “an imminent and substantial endangerment to health or the environment.”[7]

In 1980, CERCLA was enacted to effectuate the cleanup of contaminated sites. To establish a prima facie case under CERCLA, there must be a release or threatened release of a “hazardous substance” from a “facility”[8] that has caused the plaintiff to incur cleanup costs.[9] In particular, a plaintiff must also show that the defendant falls into at least one of the following classes of covered persons: (1) the owner and operator of the facility; (2) the owner or operator of the facility at the time that disposal of hazardous substances occurred; (3) persons who “arranged for disposal” or treatment of hazardous substances; and (4) certain transporters of hazardous substances.[10] While RCRA and CERCLA have different mandates, CERCLA defines “disposal” by referring to the definition of disposal in RCRA.[11]

CERCLA:  Pakootas v. Teck Cominco Metals, Ltd.—Order Denying Motion to Strike[12]

Teck Metals Ltd. (“Teck”) operates a smelter in Trail, British Columbia, Canada adjacent to the Columbia River, approximately ten miles north of the United States–Canadian border. In 2004, plaintiffs, the Confederated Tribes of the Colville Reservation and the State of Washington, sued Teck under CERCLA for the contamination of the Upper Columbia River (“UCR”) site, located above the Grand Coulee Dam in northeastern Washington State. Plaintiffs claimed that Teck was liable under CERCLA for contamination in the UCR site resulting from discharges of hazardous substances into the Columbia River in Canada. In 2010, plaintiffs amended their complaint to include an allegation that emissions from Teck’s smelter that travel through the air and enter the UCR site constitute “disposal” of hazardous substances under CERCLA. According to plaintiffs, Teck is a liable defendant under CERCLA because it “arranged for disposal” of hazardous substances.

Focusing on how hazardous substances entered the UCR Site from the smelter in Trail, Teck moved to strike the new 2010 allegations, arguing that under the definition of “disposal” defendants are liable for only air emissions that follow the initial placement of hazardous substances “into or on any land or water.” The Eastern District of Washington disagreed, finding that so long the hazardous substances were disposed of into or on any land or water of the UCR site—whether via the Columbia River or by air—Teck is potentially liable as an “arranger.” According to the court, if there is a causal link between Teck’s aerial emissions and a release of hazardous substances from the UCR site, it is irrelevant whether the discharges were first to the water or air.[13] In looking at the purpose of CERCLA, the court opined that had Congress intended to exclude air emissions, it would have done so.[14] It also concluded that, by including hazardous air pollutants (“HAPs”) regulated under section 112 of the Clean Air Act in the definition of “hazardous substances,” Congress intended for CERCLA to be used to remedy contamination that results from aerial emissions.[15]

RCRA:  Center for Community Action and Environmental Justice v. BNSF

Less than a month after the district court in Pakootas issued its order, in a RCRA citizen suit case, the Ninth Circuit ruled in CCAEJ that defendant railroad companies did not “dispose” of solid waste in violation of RCRA by emitting DPM from their railyard and intermodal facilities. Plaintiffs, environmental groups whose members live in the vicinity of such railyards, alleged that the defendants allowed DPM to be discharged into the air, which subsequently falls onto the nearby ground and water. In particular, plaintiffs alleged that the DPM, which is initially emitted into the air as diesel exhaust, is “inhaled by people both directly and after the particles have fallen to the earth and then have been re-entrained into the air by wind, air currents and passing vehicles.”[16] In ruling that the emission of DPM is not a disposal, the Ninth Circuit noted that “disposal” does not include the act of “emitting”, but instead includes only the acts of “discharging, depositing, injecting, dumping, spilling, leaking, and placing.”[17] Centering on the plain language of the statute, the court determined that, by its terms, “disposal” includes only conduct that results in the placement of solid waste into or on any land or water. According to the court, “that placement, in turn, must be ‘so that such solid waste . . . may enter the environment or be emitted into the air or discharged into any waters, including ground waters.’”[18] The court therefore concluded that “disposal” occurs “where the solid waste is first placed into or on any land or water and is thereafter emitted into the air.”[19]

The court detailed the scope of federal regulation of DPM emissions from locomotives and state regulation of “indirect sources”[20] under the Clean Air Act, and was unconvinced that it needed to address any “regulatory gap” between RCRA and the federal Clean Air Act. Rather, the Ninth Circuit concluded that RCRA is principally concerned with “land disposal” to reduce the volume of waste “that ends up in our nation’s landfills,” and, in light of the 1984 RCRA Amendments that provide for the regulation of only HAP emissions from hazardous waste treatment, storage and disposal (TSD) facilities, Congress “made a reasoned decision” in declining to create any regulatory overlap between the two statutes, which the Ninth Circuit “was not at liberty to disturb.”[21]

CERCLA:  Pakootas v. Teck Cominco Metals, Ltd.—Order Denying Motion For Reconsideration[22]

Following the Ninth Circuit’s decision in CCAEJ, the defendants in Pakootas asked the U.S. District Court for the Eastern District of Washington to reconsider its order finding that plaintiffs can bring a claim against Teck for “arranger liability” based on allegations that air emissions from Teck’s smelter in Trail, B.C. were “disposed of” at the UCR site in Washington State. Teck argued that the Ninth Circuit in CCAEJ reached an opposite result on the same legal issue, and therefore, plaintiffs’ allegations of arranger liability should be stricken or dismissed. The district court was unconvinced, focusing principally on CERCLA’s purpose to address contamination at a “facility” (i.e., an area where hazardous substances have come to be located). In particular, while RCRA and CERCLA use the same definition of “disposal,” the court concluded that Teck cannot rely on CCAEJ (a RCRA case) as being dispositive in Pakootas (a CERCLA case), because RCRA “is not concerned with cleanup of a ‘facility’ and that term is not defined in RCRA.”[23]

The court also made a distinction between the two cases, as the plaintiffs in CCAEJ sought to remedy the direct inhalation of DPM by humans, not necessarily the cleanup of DPM in the land or water at the railyards. Thus, according to the court, the Ninth Circuit had no reason to consider how its interpretation of “disposal” (for purposes of RCRA) relates to the additional definitions of the terms “facility” and “release” in CERCLA. However, the court acknowledged that no other court has “impliedly or expressly addressed” the issue of whether air emissions of hazardous substances that enter any land or water are “disposal” for purposes of CERCLA liability.[24] So while it was “confident in its analysis,” the district court certified its order for interlocutory appeal, which the Ninth Circuit has agreed to hear.[25]

RCRA:  The Little Hocking Water Association, Inc. v. DuPont

On March 10, 2015, the U.S. District Court for the Southeastern District of Ohio addressed on summary judgment whether a chemical company is liable under RCRA’s citizen suit provision for air emissions of perfluorooctanoic acid (known as C8) from its facility in Parkersburg, West Virginia that contaminated the soil and groundwater in plaintiff’s well field. The company did not dispute whether the C8 particulate matter was transported by air from its emission stacks to plaintiff’s well field, but argued that, as a matter of law, such emissions do not constitute “disposal” under RCRA.

The company urged the Little Hocking court to follow the Ninth Circuit’s reasoning in CCAEJ, but the court declined to do so, finding the case to be “factually distinguishable.” According to the court, unlike CCAEJ, in which plaintiffs sought redress for the harm allegedly caused by inhalation of DPM, the C8 particles that originated from the emissions stacks contaminated the soil and groundwater at plaintiff’s well field.[26] In addition, while the Ninth Circuit concluded that, with regard to locomotive and indirect DPM emissions, Congress left an intentional regulatory gap, the Little Hocking court did not find any intentional gap “over the type of aerial emissions of solid particulate matter in this case.”[27]

Further, unlike the CCAEJ court, the Little Hocking court did not consider passage of the 1984 RCRA Amendments as evidence that RCRA covers only pollutants that are directly placed onto land. Rather, it concluded that such amendments provide that RCRA does not regulate emissions that cause air pollution, unless the source of such emissions is a TSD facility. Because the C8 emissions caused soil and groundwater (not air) pollution, the court concluded that the regulation of such activity to be within the purview of RCRA. Contrary to CCAEJ, it found that how such waste enters soil or groundwater (either directly or via air emissions) to be “a distinction without a difference,” and that courts “should proceed on a case-by-case basis, keeping in mind as the guiding principle that RCRA is a remedial statute that is to be interpreted broadly.”[28] Based on such facts, the Little Hocking court concluded that the company’s C8 emissions, which contaminated the soil and groundwater on plaintiff’s well field, constitute “disposal” of solid waste under RCRA’s citizen suit provision.


The Pakootas and Little Hocking district courts concluded that aerial emissions of wastes or hazardous substances that first enter soil or groundwater come within RCRA’s and CERCLA’s statutory reach. The courts broadly construed CERCLA (Pakootas) and RCRA (Little Hocking) finding that, if there is a causal connection between the air emissions and waste or hazardous substances entering a site, defendants can be liable for any associated site cleanup. In CCAEJ, however, the Ninth Circuit strictly construed the definition of “disposal” finding that, for purposes of RCRA, “disposal” occurs where the waste is first placed on land or water and is thereafter emitted into the air. According to the Ninth Circuit, how such waste enters soil or groundwater is determinative for purposes of RCRA disposal liability.

The district courts in Pakootas and Little Hocking also observed that the plaintiffs in CCAEJ sought to address the harm from the inhalation of DPM, but not necessarily the cleanup of defendants’ railyard. As the Ninth Circuit considers whether emissions of hazardous substances that enter land or water constitute “disposal” under CERCLA, the decision may turn on whether the court finds this distinction relevant and whether it mirrors the textual analysis of “disposal” that it provided in CCAEJ. In any event, given the varied outcomes in these cases, the Ninth Circuit’s ruling in Pakootas will likely provide important clarification regarding the scope of CERCLA and RCRA liability associated with air emissions. For industries with air emissions of metals or other constituents likely to be deposited downwind, the potential for CERCLA and RCRA liability on this basis hinges on the outcome.


[1]  Case No. 15-80005, Docket Entry: 6 (March 25, 2015).

[2]  764 F.3d 1019 (9th Cir. 2014).

[3]  Case No. 2:09-CV-1081, Document No. 439 (March 10, 2015).

[4]  Meghrig v. KFC Western, Inc., 516 U.S. 479, 483 (1996).

[5]  A “hazardous waste” is solid waste “which because of its quantity, concentration, or physical, chemical or infectious characteristics” may cause, contribute to, or pose a potential hazard to human health or the environment. 42 U.S.C. § 6903(5)(B). “Solid waste” is any “discarded material” that is not excluded under 40 C.F.R. § 261.4(a). 40 C.F.R. § 261.2(a)(1). “Discarded material” in turn is any material which is “abandoned” or recycled. Id. at § 261.2(a)(2)(i). “Abandoned” includes being: (1) disposed of; (2) burned or incinerated; or (3) accumulated, stored, or treated (but not recycled) before or in lieu of being disposed of, burned or incinerated. Id. at § 261.2(b).

[6]  42 U.S.C. § 6903(3) (emphasis added).

[7]  Id. at § 6972(a)(1)(B).

[8]  A “facility” is “any site or area where a hazardous substance has been deposited, stored, disposed of, or placed or otherwise come to be located.”  42 U.S.C. § 9601(9)(B).

[9]  Id. at § 9607(a).

[10] Id. at § 9607(a)(1)-(4).

[11] Id. at § 9601(29).

[12] Case No. CV-04-256-LRS, Document No. 2115 (July 29, 2014).

[13] Id. at 6.

[14] Id. at 7.

[15] Id. (citing 42 U.S.C. § 9601(14)).

[16] CCAEJ, 764 F.3d at 1021.

[17] Id. at 1024.

[18] Id. at 1024.  While “disposal” does not including “emitting”, the court also noted that the definition of “release” in the section of RCRA governing underground storage tanks includes “emitting . . .into ground water, surface water or subsurface soils.” Id.

[19] Id.

[20] “Indirect sources” are facilities that attract mobile sources of air pollution.  42 U.S.C. § 7410(a)(5)(B), (C).

[21] CCAEJ, 764 F.3d at 1029-30.  Because the court concluded that the emissions of DPM did not meet the definition of “disposal,” it did not need to consider whether DPM was a “solid waste” under RCRA.  See id. at 1024.

[22] Case No. CV-04-256-LRS, Document 2149 (December 31, 2014).

[23] Id. at 4-5.

[24] Id. at 6.

[25] Id. at 7.

[26] Little Hocking, Document No. 439 at 32.

[27] Id.

[28] Id. at 33-34.

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