American (D) operated its copper smelting plant four miles from Bradley's (P) property. D operated since 1902. Various gasses such as sulfur dioxide and particulate matter including arsenic, cadmium and other metals are emitted from the process of smelting copper. The particulate matter is composed of distinct particles of matter other than water and cannot be detected by human senses. The emissions are subject to regulation under the Federal Clean Air Act, the Washington Clean Air Act (RCW 70.94) and the Puget Sound Air Pollution Control Agency (PSAPCA). D meets the National Ambient Air Quality Standards, both primary and secondary, for both sulfur dioxide and particulate matter. As a result of the variance granted by PSAPCA, D is also in compliance with PSAPCA Regulation I concerning particulate emissions. Particulate matter is composed of distinct particles of matter other than water, which cannot be detected by the human senses. These materials landed on P’s property. P brought an action against D for trespass to land; P claimed that the gasses and particulate matter were damaging his property. P moved for summary judgment on the issue of liability for the claimed trespass, the stated issues were certified to the court.

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