ENVIRONMENTAL LAW—HOW IT GOT THERE MATTERS: TRAIL SMELTER EVADES CERCLA RESPONSIBILITY FOR THE AERIAL DEPOSITION OF HAZARDOUS WASTE

Authors

Ryan K. Sullivan

Abstract

The Trail Smelter, operated by Teck Cominco Metals, Ltd., is an integrated smelting and refining complex in Trail, British Columbia. It is situated approximately ten miles north of the United States-Canadian border. In the early 1900s, the smelter was at the center of an international lawsuit that led to a landmark decision of international environmental law. Now, almost a century later, the smelter, still in operation, is responsible for widespread contamination on tribal lands located within Washington State. Once again, the smelter is embroiled in a protracted legal battle, this time facing liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

While Teck Cominco, which operates the Trail Smelter, suffered several defeats throughout the legal proceedings, it recently scored a significant victory. In 2016, the Ninth Circuit ruled in favor of the smelter operator, holding that emissions of hazardous waste do not constitute “disposal” for the purposes of CERCLA liability. This Note will argue that despite the Ninth Circuit’s conclusion that it was bound by prior precedent, there were important factual differences that distinguished the Pakootas case from the preceding case law. Furthermore, the decision in Pakootas is incongruous with CERCLA’s legislative history and administrative enforcement. This Note will argue that a definition of disposal that includes the aerial deposition of hazardous waste is consistent with CERCLA’s statutory language and conducive to its broad, remedial purpose.

Recommended Citation

Ryan K. Sullivan, ENVIRONMENTAL LAW—HOW IT GOT THERE MATTERS: TRAIL SMELTER EVADES CERCLA RESPONSIBILITY FOR THE AERIAL DEPOSITION OF HAZARDOUS WASTE, 40 W. New Eng. L. Rev. 299 (2018), https://digitalcommons.law.wne.edu/lawreview/vol40/iss2/5