ELR Citation: ELR 21358
No(s). 89-C-834 (E.D. Wis. Mar 28, 1995)

The court grants a hazardous waste generator's motion to join other generators and the past and current owners of a contaminated site as defendants in its citizen suit under §7002(a)(1)(B) of the Resource Conservation and Recovery Act (RCRA) and its action for contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Because defendants do not object, the court first grants plaintiff generator's motion to amend its complaint to update its request for relief to reflect all costs incurred, to add as a defendant the principal of a realty company defendant, to add the factual allegation that plaintiff was identified as a party potentially responsible for undertaking or paying for a remedial design and remedial action at the contaminated site, and to amend the complaint's caption. The court next denies plaintiff's motion to add a claim under RCRA §7002(a)(1)(A) against prospective defendants to allege violations of the Wisconsin Hazardous Waste Management Plan (WHWMP). Although a citizen suit may be brought to enforce WHWMP regulations, plaintiff's attempt to add this claim under RCRA §7002(a)(1)(A) would be futile because the site is not an operating hazardous waste facility and, therefore, is not subject to the WHWMP. The court holds, however, that plaintiff's attempt to assert a §7002(a)(1)(B) claim would not be futile. Even though the U.S. Environmental Protection Agency (EPA) has issued CERCLA §106 orders to various responsible parties in connection with the site and RCRA §7002(b)(2)(B)(iv) bars the commencement of §7002(a)(1)(B) actions if EPA has issued such orders, plaintiff's amendment adding new parties should relate back, if not to the time of the original complaint, at least to the time plaintiff filed the request to amend, which was before EPA issued the §106 orders. Plaintiff has satisfied the requirements of Fed. R. Civ. P. 15(c) for relation-back because the allegations plaintiff wishes to assert arose out of the same conduct as the allegations underlying its original complaint, prospective defendants received notice of plaintiff's request to amend almost two years before EPA issued its §106 orders, they should have known that they were likely defendants in this case, and §7002(b) would not have precluded the assertion of plaintiff's claims had the court not held plaintiff's motion in abeyance for so long. Based on the statutory language, legislative history, and case law interpreting §7002(b)(2), the court holds that Congress did not intend to prohibit the commencement of a citizen suit after §106 orders have been issued. Therefore, §7002(b)(2)(B)(iv) does not bar the joinder of additional defendants.

The court also grants plaintiff's motion to bring CERCLA contribution claims against additional defendants, because adding these parties would not be futile. The site is a "facility," there has been a release of a hazardous substance, and plaintiff has incurred response costs as a result of the release. The court rejects the objecting parties' argument that because they did not directly dispose of waste at the site, they are not responsible parties under CERCLA. CERCLA imposes strict liability on generators, subject only to the exclusive defenses enumerated in §107(b), and virtually every court to address this issue has concluded that a defendant cannot escape generator liability simply because it does not choose the ultimate destination of its waste. Addressing one objecting party's argument based on the "useful products" doctrine, the court holds that the used hydraulic oil that the party sold to the company that ultimately disposed of it was very likely waste that was of no further use. The sale of that oil was an attempt to get rid of it and was, thus, an arrangement for disposal under the statute. Finally, the court holds that CERCLA's petroleum exclusion does not provide a basis on which the prospective defendants can avoid CERCLA liability, because plaintiff's plausible allegation that the prospective defendants' wastes were contaminated with hazardous substances is enough to prove that plaintiff's amendment is not futile.

[Related decisions in this litigation are published at 23 ELR 21061 and 25 ELR 20784.]

Counsel for Plaintiff
William S. Roush Jr.
Davis & Kuelthau
111 E. Kilbourn Ave., Ste. 1400, Milwaukee WI 53202
(414) 276-0200

Counsel for Defendants
Robert W. Corey
Menard, Inc. Legal Department
4777 Menard Dr., Eau Claire WI 54703
(715) 876-5911