As detailed in a new alert from B&D, the court later reversed the decision described below. 

Last month, a federal court judge in the Eastern District of Washington concluded that deposition of aerial emissions from a smokestack could support a claim for arranger liability under Washington’s cleanup statute, the Model Toxics Control Act (MTCA).

In a short unpublished decision, the court denied a motion to dismiss from Teck Cominco Metals, Ltd. (Teck Cominco) that sought to defeat MTCA natural resources damages claims by the State of Washington. In its complaint, the State alleged that Teck Cominco “deliberately discharged pollutants through its smokestack and made use of Columbia River Valley air currents to dispose of these wastes in Washington.” 

In contrast to a 2016 Ninth Circuit decision denying arranger liability under CERCLA based on aerial emissions for the same facility, the court found that under MTCA, “[t]he ordinary meaning of ‘disposal’ does not preclude [disposal by aerial emissions], and crucially, MTCA expressly contemplates cleanup sites created by aerial contamination.” The court’s differentiation between MTCA and CERCLA also may be in tension with a 2018 Washington Supreme Court decision that sought to harmonize MTCA and CERCLA standards of liability. But this interpretation can also be seen as a continuation of a line of cases distinguishing arranger liability under MTCA and CERCLA. In PacifiCorp Environmental Remediation Co. v. Washington State Department of Transportation, 162 Wash. App. 627, for example, a state appellate court held that intent is not required for arranger liability under MTCA.

The court also determined that the State’s claim against Teck Cominco did not violate the foreign affairs doctrine. Teck Cominco is a Canadian company. The facility alleged to be the source of the contamination is located in Canada. However, the court concluded that because “purported releases occurred within Washington, and the hazardous substances have come to be located in the same,” the claim was permissible. 

The court’s ruling will allow the State to move forward with discovery on Teck Cominco’s air emissions. The claim will be ripe for appeal after a judgment on the merits.

With an office in Seattle, WA, Beveridge & Diamond’s Superfund, Site Remediation, and Natural Resources Damages practice group assists clients in litigation and allocation of CERCLA sites, including complex, large-scale sites. We counsel clients on developing case law and requirements under CERCLA and state-equivalent hazardous waste laws, including Washington’s Model Toxics Control Act. For more information, please contact the authors.