Filling Holes in the Air: Why the Ninth Circuit in \u3ci\u3ePakootas v. Teck Cominco\u3c/i\u3e Should Decline to Open up a New Hole in Coverage That Would Circumvent CERLA Arranger Liability for Sites Contaminated by Aerial Emissions

In order to frame the legal controversy, Part II of this comment provides background information on the relevant provisions of CERCLA, RCRA, and the Clean Air Act, and presents a brief summary of the physical and legal history of the Teck Cominco smelter and the Upper Columbia River site. Part III of this comment analyzes the controversy by examining the statutes themselves, as well as recent developments in the case law regarding arranger liability. While the statutes and the case law establish liability on their own, Part III also looks to the legislative history and finds confirmation that Congress intended for entities such as Teck to face liability under CERCLA for their releases of hazardous substances. This comment develops the argument that aerial emissions of hazardous substances that contaminate sites should be subject to CERCLA’s remediation and liability provisions, in accordance with the language of the statutes, the overall statutory framework, the courts’ interpretation of the statutes, and congressional intent. Part IV concludes that proper construction of CERCLA arranger liability fills this potential hole in the law, allowing injured parties or the government to remediate sites contaminated by the otherwise legal emission of air pollutants, and placing the costs where they belong, on the responsible party