Canadian Smelter Has Superfund Liability, DOJ Argues

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By Steven M. Sellers

Oct. 14 — The owner of a Canadian smelter is liable as an “arranger” for airborne pollutants it deposited on the Upper Columbia River Superfund Site in Washington, according to a Department of Justice brief filed Oct. 13 in a closely-watched Ninth Circuit appeal.

The amicus curiae brief disputes arguments made by Teck Cominco Metals, Ltd., the owner of the smelter, that a “disposal” under the Comprehensive Environmental Response, Compensation, and Liability Act extends only to emissions deposited directly on land or water.

CERCLA has a far greater reach, according to the government's brief in support of plaintiffs Joseph Pakootas and Donald Michel.

The U.S. District Court for the Eastern District of Washington got it right when it ruled last year that Teck was an arranger under 42 U.S.C. §9607(a)(3), the government argues.

DOJ discounts Teck's argument that an intervening Ninth Circuit decision giving a narrower construction of “disposal” under a related statute also dictated the term's meaning under CERCLA.

The brief also dismisses as irrelevant a 1935 treaty with Canada over pollution from the smelter in Trail, British Columbia. That nonbinding agreement—raised for the first time in an amicus brief filed by the Government of Canada—is inappropriate for appellate review, the government says.

Another amicus brief, filed Oct. 13 by the California Department of Toxic Substances Control, also supports the district court judgment. The state argues that a reversal of the trial court ruling would give polluters a loophole to avoid CERCLA liability.

The amici submissions counterbalance briefs filed by the National Mining Association, the U.S. Chamber of Commerce, the National Association of Manufacturers and the American Chemistry Council in September. Those briefs support Teck, and contend the district court ruling will expose “air emitting” industries to significant and unpredictable liability.

Defining ‘Disposal.'

Teck's appeal relies in part on a 2014 Ninth Circuit decision that limits a “disposal” under the Resource Conservation and Recovery Act (42 U.S.C. §6903(3)) to solid waste discharged on land or into water (Ctr. for Cmty. Action and Envtl. Justice, 764 F.3d 1019 (9th Cir. 2014)).

Teck contends the same definition applies to CERCLA because it cross-references RCRA's definition of disposal.

DOJ disputes that interpretation. “Teck cites no statutory language or CERCLA case law to support this requirement that waste immediately and directly hit land or water,” the government asserts. “Hundreds of smelter sites alone are contaminated by the aerial deposition of hazardous substances that are being or have been cleaned up under CERCLA.”

The company's “extreme” interpretation would place many such existing hazardous waste sites beyond CERCLA's reach, including the Omaha Lead Site, where a Nebraska smelter emitted lead from several smoke stacks for more than a century, according to the brief.

The government contends the district court was correct in holding that once the pollutants reached a “facility” (here the Superfund site), CERCLA makes no distinction between waste discharged from the smelter into the water or the air.

Canadian Conflict?

DOJ also took issue with Canada's argument that a treaty governed that dispute—not the federal courts. As an amicus party, Canada has no authority to raise an entirely new issue not raised by any party in the district court or on appeal, according to the government.

“At most, Canada has pointed to a binding arbitration that resolved a narrow set of questions, and a wholly discretionary process, based on the mutual consent of the Governments, that the United States potentially could use to raise additional damage claims arising from the Trail Smelter,” the brief states.

Even if the agreement were enforceable, DOJ asserts that CERCLA supersedes any inconsistent treaty provisions as a later-in-time federal law.

California Chimes In

The California Department of Toxic Substances Control hit a similar note in its amicus brief.

The state argues that Teck's definition of “disposal” would run roughshod over both CERCLA and its state counterpart, the California Hazardous Substances Account Act (Cal. Health & Safety Code §25301(a)).

“For instance, a company could pulverize its hazardous waste, release it into the air, and escape liability for the resulting soil and water contamination under CERCLA and HSAA simply because that waste went up into the air first before eventually falling onto land or water,” according to the brief.

The U.S. Department of Justice submitted the amicus brief on behalf of the federal government.

The California Attorney General's Office submitted the amicus brief for California.

To contact the reporter on this story: Steven M. Sellers in Washington at

To contact the editor responsible for this story: Peter Hayes at

The federal government's amicus brief is available at

The amicus brief of the State of California is available at