Joseph Pakootas v. Teck Cominco Metals, Ltd.
Opinion
Opinion
Hawkins, J.
When a smelter emits lead, arsenic, cadmium, and mercury compounds through a smokestack and those compounds contaminate land or water downwind, can the owner-operator of the smelter be held liable for cleanup costs and natural resource damages under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9607 (a)(3)? All parties agree the answer turns on whether the smelter owner-operator can be said to have arranged for the “disposal” of those hazardous substances within the meaning of CERCLA. Bound by a previous en banc case’s interpretation of “deposit” — the only theory of “disposal” urged by Plaintiffs in this interlocutory appeal — as not including the gradual spread of contaminants without human intervention, we must answer no.
I. Background
The history of legal disputes over damage caused in the State of Washington by emissions of toxic chemicals from Defendant Teck Comineo Metals, Ltd.’s (“Teck’s”) smelter, located ten miles north of the U.S.-Canada border in Trail, British Columbia, stretches back almost 100 years. The emissions-based claim in this lawsuit is only the latest chapter in the saga.