Since 1906, Teck Cominco Metals, Ltd., located ten miles north of the US-Canada border emitted…

Since 1906, Teck Cominco Metals, Ltd., located ten miles north of the US-Canada border emitted hazardous substances such as lead, arsenic, cadmium, and mercury compounds into the atmosphere from the stacks at the Teck smelter. Tecks metal smelting operation has been the target of legal disputes for nearly as long.This case began with plaintiffs the Confederated Tribes of the Colville Reservation and the State of Washington lodging a complaint under CERCLA concerning the dumping of slag into the Columbia River. However, after the Phase I trial was completed, the district court allowed the
Since 1906, Teck Cominco Metals, Ltd., located ten miles north of the US-Canada border emitted hazardous substances such as lead, arsenic, cadmium, and mercury compounds into the atmosphere from the stacks at the Teck smelter. Tecks metal smelting operation has been the target of legal disputes for nearly as long.This case began with plaintiffs the Confederated Tribes of the Colville Reservation and the State of Washington lodging a complaint under CERCLA concerning the dumping of slag into the Columbia River. However, after the Phase I trial was completed, the district court allowed the plaintiffs to amend their complaints to add claims for damages from Tecks atmospheric emissions. Teck moved to dismiss the new claims, arguing that CERCLA imposed no liability when hazardous waste traveled through the air but the district court rejected the argument. One month after the district courts decision, the Ninth Circuit issued a ruling in a separate case which held that emitting diesel particulate matter into the air before it touched land and water did not constitute disposal of waste under the RCRA. Because CERCLA cross-references the RCRAs definition of disposal, Teck moved for reconsideration and the Ninth Circuit granted permission to appeal. At the heart of this case is what disposal means in CERCLA. As mentioned earlier, CERCLA cross references the RCRAs definition of disposal. According to the RCRA, disposal is 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. For Teck to be held liable by a private party under CERCLA, the plaintiffs must show, inter alia, a release or threatened release of any hazardous substance from the facility, where the word disposal is included in the term release. Based on the definitions, do you think the plaintiff can show Teck disposed hazardous substances when it emitted dangerous metal particulate directly into the air? How did the Ninth Circuit decide? Summarize its multifaceted argument. Do you agree with the Ninth Circuits argument? [Pakootas v. Teck Cominco Metals, Ltd., 830 F. 3d 975 (2016).]