“The applicability of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) to environmental contamination or threatened contamination has consistently turned on the court’s interpretation of ‘disposal’ in conjunction with the manner in which the contamination occurred,” write Goldberg Segalla attorneys Joshua L. Milrad and Minning Yu of the firm’s Environmental and General Liability Practice Groups. “Then, in July 2016, the Ninth Circuit decided…that contamination through aerial emission does not constitute a ‘disposal’ under CERCLA — irrespective of the level of human interaction that caused the environmental contamination.”
In this comprehensive piece for Law360, Josh and Minning analyze a recent decision in the Ninth Circuit that “determined the definition of hazardous substance ‘disposal’ under CERCLA excluded ‘aerial emissions,’ specifically the emission of lead, arsenic, cadmium, and mercury compounds through a smokestack which then entered land and water downwind.” As they note, Pakootas v. Teck Cominco Metals Ltd. is the latest case “stemming from the legal dispute over damage caused in the state of Washington by Teck Cominco Metals’ smelter.”
Josh and Minning also take a closer look at a handful of decisions in the Second, Third, and Sixth Circuits that demonstrate the “definition of disposal continues to dictate the applicability of CERCLA to environmental contamination or threatened contamination.”
“Litigants involved with CERCLA should be aware of these concepts, the definition of disposal, and whether it is applicable to the alleged contamination,” they write.