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A & W Smelter & Refiners, Inc. v. Clinton

Citation: 28 ELR 21341
No. 97-15596, 146 F.3d 1107/46 ERC 1918/(9th Cir., 06/24/1998)

The court holds that although ore from a smelter's processing facility is a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), denying the smelter reimbursement for its hazardous waste disposal costs on summary judgment is premature. The U.S. Environmental Protection Agency (EPA) ordered the smelter to dispose of ore containing small amounts of gold and silver, because it also contained small quantities of lead. The court first holds that CERCLA's definition of hazardous substance has no minimum level requirement. The court next holds that there was unquestionably a release of a hazardous substance from a shipment of ore that was left near a mine. It is undisputed that wind was blowing particles from the pile. However, the court then holds that there was no release into the environment from a shipment of ore that the government sent to a storage facility because the lead-bearing ore stayed safely within the shipping drums. The court further holds that EPA cannot deem this shipment abandoned (and therefore released) for purposes of CERCLA because the smelter failed to move it within the time allotted by EPA. Under common law, property is abandoned when the owner intends to divest him or herself of all interest in it. The EPA order, however, does not seem to have considered the smelter's intent; rather, EPA deemed the property abandoned just because the Agency said it was abandoned. In addition, there is no evidence that EPA considered the possible objections to its position. Therefore, the court sees no reason to defer to the agency's implausible interpretation of the statute under the circumstances. On remand, however, EPA is free to show that the trucks carrying the waste had to be moved quickly to avoid danger to health or the environment. The court then holds that the smelter is a liable party under CERCLA § 107(a)(3) only if it arranged for disposal or treatment of hazardous waste. Therefore, on remand, the district court shall consider whether the ore was a useful product or a waste. The court last holds that EPA's guidelines for issuing orders under CERCLA § 106(a) are not arbitrary and capricious. The court, however, notes that on remand the smelter could argue that the release was not a substantial endangerment to health or the environment. Because it is not clear that the ore was waste or that all of it was released, summary judgment is premature.

Counsel for Plaintiff
Matthew J. Nasuti
McQuaid, Metzler, McCormick & Van Zandt
The Penthouse
221 Main St., San Francisco CA 94105
(415) 905-0200

Counsel for Defendants
John T. Stahr
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Goodwin and Thompson, JJ.