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.
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.
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
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.
Plaintiffs' fourth amended complaints allege:
The environmental impact of the air emissions are described thus:
(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 question for interlocutory appeal. We granted permission to appeal and now reverse and remand.
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).
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, ___ U.S. ___, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015) (internal quotation marks omitted). "Reviewing the whole statutory scheme is particularly important for a law such as CERCLA, which is a
"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
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:
3550 Stevens Creek Assocs. v. Barclays Bank of Cal., 915 F.2d 1355, 1358 (9th Cir.1990).
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).
Id. § 9601(22) (emphasis added).
The four PRP classes are:
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 owners
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
Plaintiffs argue that they have properly alleged the "deposit" of hazardous substances into the land or water at the UCR Site,
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 hazardous substances there.
Plaintiffs' interpretation appears a reasonable enough construction of § 9607(a)(3), and if we were writing on a 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
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,
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., 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.
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).
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' 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.
126 Cong. Rec. 30,897, 30,932-33 (Nov. 24, 1980) (statement of Sen. Randolph).