FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH A. PAKOOTAS, an No. 15-35228
individual and enrolled member
of the Confederated Tribes of the D.C. No.
Colville Reservation; DONALD R. 2:04-cv-00256-LRS
MICHEL, an individual and
enrolled member of the
Confederated Tribes of the OPINION
Colville Reservation;
CONFEDERATED TRIBES OF THE
COLVILLE RESERVATION,
Plaintiffs-Appellees,
STATE OF WASHINGTON,
Intervenor-Plaintiff-Appellee,
v.
TECK COMINCO METALS, LTD., a
Canadian corporation,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Argued and Submitted April 6, 2016
Seattle, Washington
2 PAKOOTAS V. TECK COMINCO METALS
Filed July 27, 2016
Before: Michael Daly Hawkins, Johnnie B. Rawlinson,
and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Hawkins
SUMMARY*
Environmental Law
The panel reversed the district court’s denial of a smelter
owner-operator’s motion to dismiss claims brought against it
under the Comprehensive Environmental Response,
Compensation, and Liability Act.
The panel held that the owner-operator could not be said
to have arranged for the “disposal” of hazardous substances
that were emitted by the smelter into the air, and
contaminated land and water downwind. The owner-operator
therefore could not be held liable for cleanup costs and
natural resource damages under 42 U.S.C. § 9607(a)(3). The
panel found persuasive Center for Community Action &
Environmental Justice v. BNSF Railway Co., 764 F.3d 1019
(9th Cir. 2014), which held that emitting diesel particulate
matter into the air and allowing it to be “transported by wind
and air currents onto the land and water” did not constitute
“disposal” of waste within the meaning of the Resource
Conservation and Recovery Act. In addition, the panel was
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PAKOOTAS V. TECK COMINCO METALS 3
bound by the interpretation of the terms “deposit” and
“disposal” in Carson Harbor Vill Ltd. v. Unocal Corp., 270
F.3d 863 (9th Cir. 2001) (en banc) (addressing former owner
liability under § 9607(a)(2), rather than arranger liability
under § 9607(a)(3)).
The panel remanded the case to the district court for the
processing of plaintiffs’ remaining claims.
COUNSEL
Kevin M. Fong (argued), Pillsbury Winthrop Shaw Pittman
LLP, San Francisco, California; Christopher J. McNevin,
Pillsbury Winthrop Shaw Pittman LLP, Austin, Texas; for
Defendant-Appellant.
Paul J. Dayton (argued) and Brian S. Epley, Short Cressman
& Burgess PLLC, Seattle, Washington, for Plaintiffs-
Appellees.
Andrew A. Fitz (argued), Senior Counsel; Robert W.
Ferguson, Attorney General of Washington; Washington
State Attorney General’s Office, Olympia, Washington, for
Intervenor-Plaintiff-Appellee.
Harold G. Bailey, Jr., Eldon V. C. Greenberg, and Richard A.
Wegman; Garvey Schubert Barer, P.C., Washington, D.C.;
Malcolm Seymour III, New York, New York; Matthew
Begbie and Dean Sherratt, Department of Foreign Affairs,
Trade and Development, Ottawa, Ontario, Canada; for
Amicus Curiae Government of Canada.
4 PAKOOTAS V. TECK COMINCO METALS
William M. Jay, Michael S. Giannotto and Andrew Kim,
Goodwin Procter LLP, Washington, D.C.; Jaime A. Santos,
Goodwin Procter LLP, Boston, Massachusetts; Leslie A.
Hulse, American Chemistry Council, Washington, D.C.;
Tawny A. Bridgeford, National Mining Association,
Washington, D.C.; Steven P. Lehotsky and Sheldon B.
Gilbert, U.S. Chamber Litigation Center, Washington, D.C.;
Quentin Riegel, Manufacturers’ Center for Legal Action,
Washington, D.C.; for Amici Curiae National Mining
Association, Chamber of Commerce of the United States of
America, National Association of Manufacturers and
American Chemistry Council.
David S. Gualtieri (argued); John C. Cruden, Assistant
Attorney General; Environment and Natural Resources
Division, United States Department of Justice, Washington,
D.C., for Amicus Curiae United States of America.
Kamala D. Harris, Attorney General of California; Sally
Magnani, Senior Assistant Attorney General; Margarita
Padilla, Supervising Deputy Attorney General; Timothy E.
Sullivan and Dennis L. Beck, Jr., Deputy Attorneys General;
Office of the California Attorney General, Sacramento,
California; for Amicus Curiae California Department of
Toxic Substances Control.
PAKOOTAS V. TECK COMINCO METALS 5
OPINION
HAWKINS, Circuit Judge:
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 Cominco 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.1 The
emissions-based claim in this lawsuit is only the latest chapter
in the saga.
1
See Michael J. Robinson-Dorn, The Trail Smelter: Is What’s Past
Prologue? EPA Blazes a New Trail for CERCLA, 14 N.Y.U. Envtl. L.J.
233 (2006).
6 PAKOOTAS V. TECK COMINCO METALS
This particular lawsuit initially focused on a different
form of waste disposal: Teck’s dumping of slag into the
Columbia River. The early procedural history of the “river
pathway” claims in this lawsuit was recounted in prior
appeals and is not repeated here. Pakootas v. Teck Cominco
Metals, Ltd., 646 F.3d 1214, 1216 (9th Cir. 2011) (“Pakootas
II”); Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066,
1069–71 (9th Cir. 2006) (“Pakootas I”). Since our last
published opinion in this case, some issues relevant to the
river pathway claims have proceeded to trial in the district
court (“Phase I”),2 while other issues remain to be tried.
While Phase I was ongoing, Plaintiff the Confederated
Tribes of the Colville Reservation and Plaintiff-Intervenor the
State of Washington (collectively, “Plaintiffs”) sought leave
to file a third amended complaint to add a new CERCLA
claim, alleging that, in addition to dumping hazardous
substances into the river, Teck also emitted hazardous
substances into the air. Those substances were carried by air
currents to the Upper Columbia River Site (“UCR Site”),
including “upland” areas of the UCR Site.3 The district court
2
At the Phase I trial, Teck stipulated that it had dumped slag into the
Columbia River in Canada, that some of the slag came to be located in the
United States, where it has leached and continues to leach hazardous
substances into the water and sediment of the Columbia River and Lake
Roosevelt in the United States, causing the Tribes and the State to incur
at least $1 each in response costs. After the Phase I trial, the district court
found Teck liable as an “arranger” because it had intentionally disposed
of waste into the Columbia River knowing that at least some of it would
flow across the border.
3
The UCR Site is the “areal extent of contamination in the United States
associated with the Upper Columbia River.” Pakootas I, 452 F.3d at 1069
n.3. The air pathway and injury to the upland areas of the UCR Site had
PAKOOTAS V. TECK COMINCO METALS 7
initially denied the motion as untimely. However, after the
Phase I trial was completed, the district court changed its
position and allowed Plaintiffs to amend their complaints to
add claims for cost recovery and natural resource damages
resulting from Teck’s aerial emissions.
Plaintiffs’ fourth amended complaints allege:
From approximately 1906 to the present time,
Teck Cominco emitted certain hazardous
substances, including, but not limited to, lead
compounds, arsenic compounds, cadmium
compounds and mercury compounds into the
atmosphere through the stacks at the Cominco
Smelter. The hazardous substances,
discharged into the atmosphere by the
Cominco Smelter travelled through the air
into the United States resulting in the
deposition of airborne hazardous substances
into the Upper Columbia River Site.
The environmental impact of the air emissions are described
thus:
Over time significant volumes of Teck
Cominco’s slag, liquid waste and air
emissions, and the hazardous substances
contained therein, have come to be located in,
and cause continuing impacts to, the surface
water and ground water, sediments, upland
apparently become a focus of Teck’s remedial investigation/feasibility
study for the Environmental Protection Agency.
8 PAKOOTAS V. TECK COMINCO METALS
areas, and biological resources which
comprise the Upper Columbia River Site.
....
Evidence shows that the physical and
chemical decay of slag, the settling of metals
associated with liquid waste, the deposition of
air emissions, and the subsequent release of
elements including, but not limited to, arsenic,
cadmium, copper, zinc, and lead, is an
ongoing process in the buried slag, sediment
and soils of the Upper Columbia River Site.
....
Humans are exposed to slag and contaminated
sediment by direct contact with slag on the
beaches of the Upper Columbia River and
Lake Roosevelt, contact with contaminated
sediment during low draw down periods,
inhalation of airborne particles, dermal
contact, and ingestion. In addition, humans
are exposed from ingestion of water from the
Upper Columbia River or Lake Roosevelt and
through consumption of fish, aquatic
resources, native plants, and agricultural
crops.
Environmental effects of slag include both
chemical (increased metal loads, potential
bioaccumulation, toxicity problems in biota)
and physical (scouring of plants and animals
PAKOOTAS V. TECK COMINCO METALS 9
in substrates, severe erosion of fish gills,
smothering of habitat) components.
(Paragraph numbers omitted.).
Teck moved to strike or dismiss these claims on the
ground that CERCLA imposes no liability when hazardous
substances travel through the air and then “into or on any land
or water” (as opposed to when hazardous substances are
directly deposited into or on land or water and are then
emitted into the air). The district court rejected Teck’s
argument and denied the motion.
One month later, the Ninth Circuit issued Center for
Community Action & Environmental Justice v. BNSF Railway
Co., 764 F.3d 1019, 1023–24 (9th Cir. 2014), which held that
emitting diesel particulate matter into the air and allowing it
to be “transported by wind and air currents onto the land and
water” did not constitute “disposal” of waste within the
meaning of the Resource Conservation and Recovery Act
(“RCRA”). Teck filed a motion for reconsideration, arguing
that Center for Community Action foreclosed Plaintiffs’ air
pathway claims because CERCLA cross-references RCRA’s
definition of “disposal.” The district court denied the motion
on the ground that the actionable CERCLA “disposal” in this
case occurred when the hazardous substances emitted by
Teck entered the land or water at the UCR Site, not when the
substances were initially released into the air. However,
recognizing that “[i]n over 30 years of CERCLA
jurisprudence, no court has impliedly or expressly addressed
the issue of whether aerial emissions leading to disposal of
hazardous substances ‘into or on any land or water’ are
actionable under CERCLA,” the district court certified the
10 PAKOOTAS V. TECK COMINCO METALS
question for interlocutory appeal. We granted permission to
appeal and now reverse and remand.
II. Standard of Review
A district court’s denial of a Federal Rule of Civil
Procedure 12(b)(6) motion to dismiss is reviewed de novo.
Dunn v. Castro, 621 F.3d 1196, 1198 (9th Cir. 2010).
“Similarly, the district court’s interpretation of a statute is a
question of law which we review de novo.” Carson Harbor
Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 870 (9th Cir. 2001)
(en banc) (alteration, emphasis, and internal quotation marks
omitted).
III. Discussion
A. Principles of Statutory Interpretation
Statutory interpretation begins with the text of the statute.
Unless a statute provides an explicit definition, we generally
give words “their ordinary, contemporary, common
meaning.” Chubb Custom Ins. Co. v. Space Sys./Loral, Inc.,
710 F.3d 946, 958 (9th Cir. 2013) (internal quotation marks
omitted). If the meaning of the text is unambiguous, the
statute must be enforced according to its terms. “[W]hen
deciding whether the language is plain, we must read the
words in their context and with a view to their place in the
overall statutory scheme.” King v. Burwell, 135 S. Ct. 2480,
2489 (2015) (internal quotation marks omitted). “Reviewing
the whole statutory scheme is particularly important for a law
such as CERCLA, which is a complex regulatory statute with
‘a web . . . of sections, subsections, definitions, exceptions,
defenses, and administrative provisions.’” Chubb Custom,
710 F.3d at 958 (quoting Carson Harbor, 270 F.3d at 880).
PAKOOTAS V. TECK COMINCO METALS 11
B. CERCLA: Statutory Text and Framework
“CERCLA sets forth a comprehensive scheme for the
cleanup of hazardous waste sites . . . .” Pakootas I, 452 F.3d
at 1072. The statute has two primary goals: “(1) to ensure the
prompt and effective cleanup of waste disposal sites, and
(2) to assure that parties responsible for hazardous substances
bear the cost of remedying the conditions they created.”
Chubb Custom, 710 F.3d at 968 (alteration omitted) (quoting
City of Los Angeles v. San Pedro Boat Works, 635 F.3d 440,
447 (9th Cir. 2011)).
CERCLA does not set forth its own definition of
“disposal,” the key word at issue in this case. Rather, it
cross-references RCRA’s. 42 U.S.C. § 9601(29) (“The term[]
‘disposal’ . . . shall have the meaning provided in [42 U.S.C.
§ 6903].”). RCRA defines “disposal” as
the discharge, deposit, injection, dumping,
spilling, leaking, or placing of any solid waste
or hazardous waste into or on any land or
water so that such solid waste or hazardous
waste or any constituent thereof may enter the
environment or be emitted into the air or
discharged into any waters, including ground
waters.
Id. § 6903(3).
The word “disposal” and derivations thereof (“disposing,”
“disposed”) appear in several places in CERCLA. In order to
prevail in a private action under CERCLA for response costs
or natural resource damages, a plaintiff must prove the
following elements, among others:
12 PAKOOTAS V. TECK COMINCO METALS
(1) the site on which the hazardous substances
are found is a “facility” within the meaning of
CERCLA, 42 U.S.C. § 9601(9);
(2) a “release” or “threatened release” of any
“hazardous substance” from the facility has
occurred, 42 U.S.C. § 9607(a)(4); and
(3) the defendant is within one of the four
broad classes of “potentially responsible
parties” (“PRPs”) listed in 42 U.S.C.
§ 9607(a)(1)–(4).
3550 Stevens Creek Assocs. v. Barclays Bank of Cal.,
915 F.2d 1355, 1358 (9th Cir. 1990).4
A “facility” is defined in relevant part as “any site or area
where a hazardous substance has been deposited, stored,
disposed of, or placed, or otherwise come to be located.”
42 U.S.C. § 9601(9) (emphasis added).
4
To obtain response costs, a plaintiff must also show that the release or
threatened release of the hazardous substances caused the plaintiff to incur
response costs that were “necessary” and “consistent with the national
contingency plan.” 42 U.S.C. § 9607(a)(4); 3550 Stevens Creek, 915 F.2d
at 1358. To win natural resource damages, a plaintiff need not incur
response costs, but must show that “natural resources within the
[plaintiff’s] trusteeship . . . have been injured” and “that the injury to
natural resources ‘resulted from’ a release of a hazardous substance.”
Coeur D’Alene Tribe v. Asarco Inc., 280 F. Supp. 2d 1094, 1102 (D.
Idaho 2003) (footnote omitted). CERCLA also allows recovery of “the
costs of any health assessment or health effects study carried out under
42 U.S.C. § 9604(i),” 42 U.S.C. § 9607(a)(4)(D), but there is no such
claim in this case.
PAKOOTAS V. TECK COMINCO METALS 13
A “release” is defined as
any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting,
escaping, leaching, dumping, or disposing into
the environment (including the abandonment
or discarding of barrels, containers, and other
closed receptacles containing any hazardous
substance or pollutant or contaminant) . . . .
Id. § 9601(22) (emphasis added).
The four PRP classes are:
(1) the owner and operator of a vessel or a
facility,
(2) any person who at the time of disposal of
any hazardous substance owned or operated
any facility at which such hazardous
substances were disposed of,
(3) any person who by contract, agreement, or
otherwise arranged for disposal or treatment,
or arranged with a transporter for transport for
disposal or treatment, of hazardous substances
owned or possessed by such person, by any
other party or entity, at any facility or
incineration vessel owned or operated by
another party or entity and containing such
hazardous substances, and
(4) any person who accepts or accepted any
hazardous substances for transport to disposal
14 PAKOOTAS V. TECK COMINCO METALS
or treatment facilities, incineration vessels or
sites selected by such person . . . .
Id. § 9607(a) (emphases added).
CERCLA allows a number of affirmative defenses. Two
of them, the “innocent landowner defense” and the “bona fide
prospective purchaser defense,” protect facility owners5 from
liability if they can prove, inter alia, that they did not acquire
the facility until after the “disposal” of hazardous substances
at the facility.6
5
There is a circuit split on whether the innocent landowner defense
applies to former as well as current facility owners. Compare United
States v. CDMG Realty Co., 96 F.3d 706, 716 (3d Cir. 1996) (referring to
“[t]he innocent owner defense’s apparent limitation to current owners”)
with ABB Indus. Sys., Inc. v. Prime Tech., Inc., 120 F.3d 351, 358 (2d Cir.
1997) (the defense is available to both current and past owners). Our
Circuit has not decided. Carson Harbor, 270 F.3d at 883 n.10.
6
The textual basis for these defenses is somewhat convoluted.
42 U.S.C. § 9607(b)(3) establishes the third-party defense. It allows any
PRP to escape liability if the release or threatened release was (1) “caused
solely by” (2) a third party, (3) the third party is not an employee or agent
of the PRP or in a direct or indirect contractual relationship with the PRP,
(4) the PRP exercised due care with respect to the hazardous substance
and (5) the PRP “took precautions against foreseeable acts or omissions
of any such third party and the consequences that could foreseeably result
from such acts or omissions.” In 1986, Congress passed the Superfund
Amendments and Reauthorization Act, which added the so-called
“innocent landowner” defense by defining the previously undefined term
“contractual relationship,” Pub. L. No. 99-499, § 101, 100 Stat. 1613,
1616–17. The new definition of “contractual relationship” exempted from
liability a defendant who can prove, inter alia, that “the real property on
which the facility concerned is located was acquired by the defendant after
the disposal or placement of the hazardous substance on, in, or at the
facility” and “[a]t the time the defendant acquired the facility the
defendant did not know and had no reason to know that any hazardous
PAKOOTAS V. TECK COMINCO METALS 15
In sum, the word “disposal” appears in the definitions of
“facility” and “release,” the definitions of three of the four
PRP classes, and the innocent landowner and bona fide
prospective purchaser defenses. Our interpretation of
“disposal” for purposes of determining whether Teck can be
held liable for arranging the disposal of hazardous substances
“has ripple effects” throughout the rest of the statute, even
though the only provision technically in dispute is
§ 9607(a)(3). See Carson Harbor, 270 F.3d at 880.
C. Whether Teck Arranged for “Disposal”
Plaintiffs argue that they have properly alleged the
“deposit” of hazardous substances into the land or water at
the UCR Site,7 one of the verbs used to define “disposal.”
42 U.S.C. § 6903(3).
Plaintiffs’ “aerial deposition” theory appears to depend on
Teck allowing hazardous substances to be “deposit[ed]” at the
UCR Site by the wind, as opposed to Teck directly depositing
substance which is the subject of the release or threatened release was
disposed of on, in, or at the facility.” 42 U.S.C. § 9601(35)(A)(i). In
2002, Congress amended CERCLA again. See Small Business Liability
Relief and Brownfields Revitalization Act, Pub. L. No. 107-118, 115 Stat.
2356 (2002). This time, it added a “bona fide prospective purchaser”
defense which exempted current landowners from liability if they could
show, inter alia, that they acquired the land after January 2002 and that
“[a]ll disposal of hazardous substances at the facility occurred before the
person acquired the facility.” See id. sec. 222 (codified at 42 U.S.C.
§§ 9601(40), 9607(r)).
7
Plaintiffs do not argue that Teck “discharge[d], . . . inject[ed],
dump[ed], spill[ed], leak[ed], or plac[ed]” hazardous substances into or on
any land or water. We therefore limit our analysis to the term “deposit.”
16 PAKOOTAS V. TECK COMINCO METALS
hazardous substances there.8 The dictionary definitions cited
by Plaintiffs all refer to natural forces slowly depositing
layers of dirt or mud over time. For example, American
Heritage Dictionary defines “deposit,” in relevant part, as
“[t]o put or set down; place” or “[t]o lay down or leave
behind by a natural process: layers of sediment that were
deposited on the ocean floor; glaciers that deposited their
debris as they melted.” Deposit, The American Heritage
Dictionary, https://www.ahdictionary.com/ (search for
“deposit”) (last visited Mar. 24, 2016). Merriam-Webster
defines “deposit” as “to lay down” or “to let fall (as
sediment),” as in “layers of mud deposited by flood waters.”
Deposit, Merriam-Webster, http://www.merriam-webster.com
(search for “deposit”) (last visited Mar. 24, 2016). Oxford
Dictionaries defines “deposit” as “(Of water, the wind,
or other natural agency) lay down (matter) gradually
as a layer or covering,” as in “beds where salt is
deposited by the tide.” Deposit, Oxford Dictionaries,
http://www.oxforddictionaries.com/us/definition/american_
english/deposit (last visited Mar. 24, 2016).
Plaintiffs’ interpretation appears a reasonable enough
construction of § 9607(a)(3), and if we were writing on a
8
We note that, if the statute imposed liability on someone who
“disposed” as opposed to someone who “arranged for disposal,” 42 U.S.C.
§ 9607(a)(3), it would be difficult to fit the fact pattern in this case into the
word “deposit.” When the subject depositing something is a person, the
action of “depositing” seems to be more discrete and the object being
deposited seems to be more concrete and specific, e.g., “Please deposit
your things in your room . . . .” or “The taxi deposited us at the train
station.” Deposit, Merriam-Webster, http://www.merriam-webster.com
(search for “deposit”) (last visited Mar. 24, 2016). The “arranged for
disposal” language, though, arguably allows a more indirect form of
deposit.
PAKOOTAS V. TECK COMINCO METALS 17
blank slate, we might be persuaded to adopt it. However, we
do not write on a blank slate. Our en banc court in Carson
Harbor and a prior panel in Center for Community Action
earlier interpreted the terms “deposit” and “disposal.” In
Carson Harbor, the majority held that the term “deposit,” as
used in CERCLA, “is akin to ‘putting down,’ or placement”
by someone and that “[n]othing in the context of the statute
or the term ‘disposal’ suggests that Congress meant to include
chemical or geologic processes or passive migration,” i.e., the
gradual spread of contaminants without human intervention.
270 F.3d at 879 & n.7. It reasoned, “where Congress
intended such a meaning, it employed specific terminology,
such as ‘leaching.’” Id. at 879 n.7.
Center for Community Action, which involved essentially
the same facts as this case, see 764 F.3d at 1021 (alleging
emission of hazardous substances into the air, some of which
was directly inhaled before they touched the ground, and
some of which touched the ground before being re-entrained
into the air by air currents), interpreted 42 U.S.C. § 6903(3)
as requiring solid or hazardous waste to “first [be] placed
‘into or on any land or water’ and [] thereafter [be] ‘emitted
into the air.’” Id. at 1024. It observed that Congress knew
how to use the word “emit” when it wanted to. Id. at
1024–25. The “disposal” definition itself uses the term
“emitted” in the second half of the sentence, but not the first.
42 U.S.C. § 6903(3). RCRA’s definition of “release” uses the
term “emitting” along with “disposing.” Id. § 6991(8).
CERCLA’s definition of “release” is similar. Id. § 9601(22).
These suggest that Congress did not imagine “emission” as
“disposal,” although it did allow that hazardous substances
could escape into the environment through emission after
they were disposed of, such as if a container of gas began to
leak.
18 PAKOOTAS V. TECK COMINCO METALS
Plaintiffs have offered no persuasive argument to
distinguish either Carson Harbor or Center for Community
Action. We agree with Plaintiffs that Center for Community
Action’s interpretation of “disposal” for RCRA purposes does
not absolutely foreclose a different interpretation of
“disposal” for CERCLA purposes,9 but the reasoning behind
9
The Supreme Court teaches that, even when the same word is used in
different provisions of the same statute, the word does not necessarily
have to be interpreted identically. Envtl. Def. v. Duke Energy Corp.,
549 U.S. 561, 575–76 (2007). Rather, “the presumption of consistent
usage ‘readily yields’ to context, and a statutory term—even one defined
in the statute—‘may take on distinct characters from association with
distinct statutory objects calling for different implementation strategies.’”
Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2441 (2014) (quoting
Duke Energy Corp., 549 U.S. at 574). Here, where the same word is used
in different statutes employing different strategies for protecting the
environment, “[c]ontext [also] counts.” Duke Energy Corp., 549 U.S. at
576. As the Supreme Court and this court have made clear, CERCLA and
RCRA both address hazardous waste disposal but in different ways.
RCRA regulates the generation of hazardous waste primarily by requiring
generators to comply with handling, record-keeping, storage, and
monitoring requirements. City of Chicago v. Envtl. Def. Fund, 511 U.S.
328, 332 (1994). CERCLA, on the other hand, “is not a regulatory
statute.” Pakootas I, 452 F.3d at 1073. Rather, it is concerned with
making waste generators pay for cleanup, even when the actual generation
of waste is otherwise legal under RCRA or other statutes. See id. at 1078.
The statutes provide different remedies. Both RCRA and CERCLA can
be used to compel prospective cleanup; however, only CERCLA allows
recovery of cleanup costs already incurred, Meghrig v. KFC W., Inc.,
516 U.S. 479, 484–85 (1996), a unique mechanism that facilitates prompt
cleanup by the government or any of several PRPs, with cost allocation
issues to be resolved later. Also, CERCLA, but not RCRA, allows federal
and state governments and tribes to be compensated for the lost use value
of natural resources damaged by the contamination and the cost of
assessing damages. See 42 U.S.C. § 6972(a); Meghrig, 516 U.S. at
484–85; Abreu v. United States, 468 F.3d 20, 32 (1st Cir. 2006) (RCRA
does not authorize suits for compensatory damages). Since liability under
these two statutes is not co-terminous, we hesitate to assume that Center
PAKOOTAS V. TECK COMINCO METALS 19
Center for Community Action’s textual analysis is persuasive.
Similarly, Carson Harbor addressed former owner liability
under § 9607(a)(2) and not arranger liability under
§ 9607(a)(3), but Plaintiffs offer no compelling reason to
interpret “deposit” differently for purposes of those two
subsections of CERCLA.
If interpreting “deposit” as not including Teck’s conduct
“would thwart the overall statutory scheme or lead to an
absurd result,” Chubb Custom, 710 F.3d at 958, in some way
not considered by those cases, there might be some basis for
deviating from them. However, the only inconsistencies with
the statutory scheme that Plaintiffs have pointed out is that
CERCLA has a broad remedial purpose and that Teck’s
interpretation might render CERCLA’s “federally permitted
release” exception surplusage. With regard to the first
argument, it is axiomatic that CERCLA should be construed
liberally to effectuate its remedial purpose, but statutory
interpretation must still be “grounded in the statute’s text and
structure.” CTS Corp. v. Waldburger, 134 S. Ct. 2175, 2185
(2014). As for the second argument, the “federally permitted
release” exception, see 42 U.S.C. §§ 9601(10)(H), 9607(j),
and the legislative history behind it10 hint that Congress might
for Community Action’s construction of “disposal” in the RCRA context
controls the construction of “disposal” in the CERCLA context in all
cases, although we see no compelling reason to override the presumption
of consistent usage in this case.
10
Senator Randolph, one of the key players who introduced the final
version of the bill that became CERCLA, stated on the Senate floor:
Congress has never said or suggested that a Federal
permit amounts to a license to create threats to public
health or the environment with legal immunity.
20 PAKOOTAS V. TECK COMINCO METALS
have intended CERCLA to apply to emissions of hazardous
substances up to the point where it ran into the Clean Air Act.
However, the federally permitted “release” exception could
also be read as addressing emissions as releases and not
emissions as a form of disposal. In contrast, Plaintiffs’
interpretation of “deposit” seems to be inconsistent with the
rest of CERCLA in the same way identified as problematic by
Carson Harbor—if “aerial depositions” are accepted as
“disposals,” “disposal” would be a never-ending process,
essentially eliminating the innocent landowner defense.
270 F.3d at 882–83.
Given that the language of CERCLA is not a model of
precise crafting, id. at 883 (“[N]either a logician nor a
grammarian will find comfort in the world of CERCLA.”),
we ordinarily would refer to legislative history to help us
interpret the statutory language. Tides v. The Boeing Co.,
However, in view of the large sums of money spent to
comply with specific regulatory programs, liability for
federally permitted releases ought to be determined
based on the facts of each individual case. Therefore,
the Stafford-Randolph substitute [bill] authorizes
response to federally permitted releases, but requires
costs to be assessed against the permit holder under the
liability provisions of other laws, not this bill.
....
While the exemptions from liability for federally
permitted releases are provided to give regulated parties
clarity in their legal duties and responsibilities, these
exemptions are not to operate to create gaps in actions
necessary to protect the public or the environment.
126 Cong. Rec. 30,897, 30,932–33 (Nov. 24, 1980) (statement of Sen.
Randolph).
PAKOOTAS V. TECK COMINCO METALS 21
644 F.3d 809, 814 (9th Cir. 2011) (“If the statutory language
is ambiguous . . . we may refer to legislative history to
discern congressional intent.”). However, the legislative
history of CERCLA is not particularly helpful in this case.
Although that history makes clear that CERCLA was
intended to be construed expansively, see United States v.
W.R. Grace & Co., 429 F.3d 1224, 1240–41 (9th Cir. 2005),
it sheds no light on the question before us because Congress
did not appear to consider a fact pattern like this one.11
Nor have we been presented with an agency interpretation
of “deposit” to which we might owe Chevron deference. See
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,
545 U.S. 967, 982–86 (2005) (Chevron deference may be due
to a reasonable agency interpretation of an ambiguous statute
even if it conflicts with a prior circuit court interpretation).
The EPA does not appear to have any regulations or sub-
regulatory guidance interpreting “disposal” or “deposit.”12
11
Plaintiffs offer a couple snippets of legislative history purportedly
showing Congress’s intention for CERCLA to cover emissions of
hazardous substances. 126 Cong. Rec. 30,897, 30,941 (Nov. 24, 1980)
(statement of Sen. Mitchell); id. at 30,948 (statement of Sen. Cohen).
However, as Teck points out, those snippets seem to refer to emissions of
hazardous substances released from facilities, not emissions as a form of
disposal.
12
Neither Plaintiffs nor amicus curiae the United States argued that
deference was due in their briefs. After oral argument, the United States
filed a Federal Rule of Appellate Procedure 28(j) letter of supplemental
authorities arguing that Skidmore deference may be due to the EPA’s
construction of “disposal” as encompassing “aerial depositions” in
previous consent orders involving factories that, like Teck, emitted
hazardous substances through their smokestacks which contaminated a
large area of land around the factory. See The Wilderness Society v. U.S.
Fish & Wildlife Serv., 353 F.3d 1051, 1068–69 (9th Cir. 2003) (en banc)
22 PAKOOTAS V. TECK COMINCO METALS
Neither has intervening en banc or Supreme Court
authority cast the reasoning behind Center for Community
Action or Carson Harbor in doubt. In this situation, “[a]n
appellate panel simply cannot modify an En banc decision,”
Osband v. Woodford, 290 F.3d 1036, 1043 (9th Cir. 2002)
(quoting Ewing v. Williams, 596 F.2d 391, 397 (9th Cir.
1979)), and there is no compelling reason to abandon a prior
panel’s construction, see Miller v. Gammie, 335 F.3d 889,
899–900 (9th Cir. 2003) (a three-judge panel ordinarily
cannot overrule a prior panel’s holding unless its reasoning is
inconsistent with the reasoning behind an intervening
decision by a court of last resort).
IV. Conclusion
While Plaintiffs present an arguably plausible
construction of “deposit” and “disposal,” Carson Harbor
compels us to hold otherwise, and while Center for
Community Action does not totally foreclose Plaintiffs’
(opinion letters regarding a specific case and not intended to have the
general force of law are not due Chevron deference, but may be due
Skidmore deference, depending on their thoroughness, rational validity,
consistency with prior and subsequent interpretations, the “expertness” of
the agency’s interpretation, and the care and formality used in reaching its
conclusion). Arguments raised for the first time in 28(j) letters are
ordinarily considered waived. United States v. McEnry, 659 F.3d 893,
902 (9th Cir. 2011). The merit of that principle is evident here, where,
even if Skidmore deference was due to the EPA’s consent orders, we
would have to determine whether an agency interpretation that is due
Skidmore deference but not Chevron deference can trump a previous
judicial interpretation, a question left open after Brand X. J. Lyn Entrikin
Goering, Tailoring Deference to Variety with a Wink and a Nod to
Chevron: The Roberts Court and the Amorphous Doctrine of Judicial
Review of Agency Interpretations of Law, 36 J. Legis. 18, 64 (2010). We
decline to reach such a complex issue on less than full briefing.
PAKOOTAS V. TECK COMINCO METALS 23
interpretation of CERCLA, its textual analysis of 42 U.S.C.
§ 6903(3) is persuasive. Thus, we reverse the district court’s
orders denying Teck’s motion to strike and/or dismiss and
motion for reconsideration, and remand for the processing of
Plaintiffs’ remaining claims.
REVERSED AND REMANDED.