The U.S. Court of Appeals for the Ninth Circuit recently agreed to allow an interlocutory appeal of a novel air emissions case under the federal Comprehensive Environmental Response, Compensation & Liability Act (CERCLA). The Ninth Court of Appeals will review a decision from the U.S. District Court for the Eastern District of Washington in the case of Joseph Pakootas, et al. v. Teck Cominco Metals. In denying the defendant smelter’s motion to dismiss, the district court concluded that air emissions from a lead/zinc smelter in Canada, which were transported by wind and deposited at a CERCLA site in the State of Washington, subjected the smelter to liability under the “arranger” liability provisions of CERCLA. The smelter and numerous industry groups contend that the district court’s decision is contrary to a Ninth Circuit decision under the federal Resource Conservation & Recovery Act (RCRA) and would result in a vast expansion of potential liability under CERCLA.

For more information about CERCLA issues or contaminated sites litigation, please contact Andy Thompson.  For a copy of the district court decision, click here.