FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH A. PAKOOTAS, an

individual and enrolled member

of the Confederated Tribes of the

Colville Reservation; DONALD R.

MICHEL, an individual and

enrolled member of the

Confederated Tribes of the

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.

No. 15-35228

D.C. No.

2:04-cv-00256-LRS

OPINION

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 PlaintiffsAppellees.

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).

Theword “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 ofthe hazardous substances caused the plaintiffto 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 facilityowners5from

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 newdefinition 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,7one of the verbs used to define “disposal.” 

42 U.S.C. § 6903(3).

Plaintiffs’ “aerial deposition” theoryappearsto depend on

Teck allowing hazardous substances to be “deposit[ed]” atthe

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,9but 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 it10hint 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 agencyinterpretation

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 subregulatory 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.