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9th Circ. Tosses Transborder Pollution Claims

SEATTLE (CN) — A Canadian mining company is not liable for environmental damage potentially caused by toxic chemicals released from its smelter that drifted over the U.S. border into Washington state, the Ninth Circuit ruled Wednesday.

A three-judge panel found that Teck Cominco Metals did not arrange for the "disposal" of hazardous substances downwind from where they were emitted from the company's smelter.

The lawsuit against the mining company was first brought 12 years ago by Washington state and the Confederated Tribes of the Colville Reservation, seeking to hold Teck liable for cleanup costs and natural resources damages under the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA.

Teck's smelter is located 10 miles north of the U.S.-Canada border in Trail, British Columbia. Washington claims that Teck emitted hazardous substances — including lead, arsenic and mercury compounds — into the atmosphere, which then traveled through the air into the United States and deposited into the Upper Columbia River Site.

The state and tribe claimed that Teck can be held liable under CERCLA for pollution that travels through the air and lands on their property. They cited dictionary definitions that refer to natural forces slowly depositing layers of dirt or mud over time.

While finding that these interpretations of "deposit" — one of the verbs used to define "disposal" — appear to be reasonable, the panel pointed out that it must follow two prior decisions issued by the Ninth Circuit regarding what constitutes "disposal" of hazardous waste.

The circuit's en banc decision in Carson Harbor Village v. Unocal Corp. held that the term "deposit" as used in CERCLA is akin to "putting down" or "placement" by someone, and that there was no reason to believe Congress meant to include the gradual spread of contaminants without human intervention in the definition of the word.

"While plaintiffs present an arguably plausible construction of 'deposit' and 'disposal,' Carson Harbor compels us to hold otherwise," Judge Michael Hawkins wrote on behalf of the panel.

In Center for Community Action v. BNSF Railway, a panel of the Ninth Circuit ruled that emitting diesel particulate matter into the air and allowing it to be transported by air onto the land and water did not constitute disposal of waste within the meaning of the Resource Conservation and Recovery Act.

"We agree with plaintiffs that Center for Community Action does not absolutely foreclose a different interpretation of 'disposal' for CERCLA purposes, but the reasoning behind Center for Community Action's textual analysis is persuasive," Hawkins said.

The panel reversed the district court's orders denying Teck's motion to strike, and remanded for the processing of the state and tribe's remaining claims.

Attorneys for the parties did not immediately respond to a request for comment Wednesday.

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