United States v. Wade

No. 79-1426 (E.D. Pa. April 27, 1984)

The court holds that waste fuel oil sludge and biological sludge are not, as a matter of law, excluded from the Comprehensive Environmental Response, Compensation, and Liability Act's (CERCLA's) definition of "hazardous substance" simply because, as to the former, CERCLA exempts petroleum, and as to the latter, the Environmental Protection Agency (EPA) has determined that it is not a hazardous waste under the Resource Conservation and Recovery Act (RCRA). Ruling on cross-motions for summary judgment on the liability of a third-party defendant, the court notes that defendants failed to establish any link between two of the third-party defendant's wastes and the Wade site. The court reiterates its conclusion that proving a party had dealings with a waste hauler that sometimes took wastes to the site is insufficient to prove CERCLA liability. The court rejects third-party defendant's motion for summary judgment, however, ruling it had failed to demonstrate that as a matter of law, its two remaining wastes were not hazardous substances under CERCLA. As to fuel oil sludge, which contains hazardous substances, the court notes the need for further evidence to determine the relationship between the hazardous constituents of the sludge and those normal to fuel oil. As to the biological sludge, the court finds that it too contains hazardous substances and it was listed as hazardous under RCRA when disposed. Therefore it might fall within CERCLA's coverage even though EPA had since delisted it under RCRA. Finally, the court rules that there is an issue of fact as to whether the sludges were in fact disposed of at the Wade site.

[Related decisions are published at 12 ELR 21051, 13 ELR 20815, 14 ELR 20096, 14 ELR 20435, 14 ELR 20436, 14 ELR 20437, 14 ELR 20439, and 14 ELR 20441 — Ed.]

Counsel are listed at 14 ELR 20096.

[14 ELR 20440]

Newcomer, J.:

Memorandum

Presently before me is the motion for summary judgment of third-party defendant Texaco, Inc. Four different types of waste are apparently at issue. For two of the wastes Texaco's sole argument is that no evidence links those wastes to the Wade site. Texaco contends that the remaining two wastes are not "hazardous substances" within the meaning of CERCLA, 42 U.S.C. § 9601(14), and that the site of their disposal is therefore irrelevant. For reasons discussed below the motion is denied.Also before me is the generators' cross motion for partial summary judgment against Texaco. That motion is also denied.

I need not review the persuasive details of Texaco's brief in which it establishes the lack of a link between its rust scale and poly/cumene reactor spent catalyst and the Wade site for the simple reason that the generators do not contest that they have no such direct evidence. Instead, they rely on the position previously advanced with respect to the Naval Air Development Center's (NADC) motion for summary judgment: [14 ELR 20441] Plaintiffs in this action still take the position that they may argue at trial that the absence of evidence concerning the location of disposal is sufficient to allow the factfinder to infer that wastes transferred to ABM were in fact disposed at the Wade site . . . As long as the United States takes the position with regard to the generator defendants that this inference is permissible . . . . the generators would be unfairly prejudiced by a ruling that releases third party defendants from the liability created by this inference.

Memorandum of Third Party Plaintiffs in Opposition to Texaco, Inc.'s Motion for Summary Judgment at 6-7. I rejected the argument then, and I reject it now, and my rejection will apply equally to all parties at all stages of this litigation. To establish liability plaintiffs and third-party plaintiffs each must establish that the hazardous wastes of their respective defendants were disposed of at the Wade site. Such proof may not be made out solely by evidence that wastes were transferred to ABM Disposal Company for the simple reason that ABM has admitted it used at least thirteen different disposal sites. A similar ruling would apply with respect to volume, should volume become an issue in this case.

I denied the NADC's motion for summary judgment simply to allow the generators some additional time to undertake additional discovery pertaining to disposal sites of NADC wastes. Such a procedure seemed fair in light of the fact that trial was still two months away and the NADC, by virture of its relationship with plaintiff United States, appeared to have played a part in fostering the misconception upon which the generators relied. If the sole issue before me were whether Texaco is entitled to summary judgment due to the absence of a link between its rust scale and poly/cumene reactor spent catalyst and the Wade site, I would enter summary judgment in Texaco's favor.

Nevertheless I must deny Texaco's motion for summary judgment if it fails to establish as a matter of law that its two remaining wastes — fuel oil sludge and biological sludge — which may or may not have been disposed of at the Wade site are not hazardous substances under CERCLA. Section 101(14) defines "hazardous substance" for purposes of CERCLA by reference to lists of hazardous substances and/or toxic pollutants promulgated under several other environmental protection laws and in addition authorizes the EPA Administrator to designate additional substances as hazardous for purposes of CERCLA alone. Specifically excluded from the definition is

Petroluem, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardoussubstance under [certain designated environmental protection laws].

Texaco argues that its fuel oil sludge falls within this exception.

I cannot on the present record make such a determination because, as the generators point out, Texaco's own analysis of its fuel oil sludge reveals that it also contained other substances, such as arsenic, nickel, and selenium, that fall within CERCLA's definition of "hazardous substance." Texaco suggests, by way of the affidavit of one of its senior research chemists, that fuel oil often contains trace amounts of those chemicals. If this is the case it may be that Texaco's fuel oil sludge is exempt. It would make little sense to exclude fuel oil from the definition of hazardous substance only to render the exclusion a nullity, in effect, by listing as hazardous certain essential ingredients of fuel oil. At a minimum I need clearer evidence on the content of Texaco's fuel oil sludge and the content, generally speaking, of fuel oil.¹ Judge Ditter's opinion in City of Philadelphia v. Stepan Chemical Company, C.A. No. 81-0851 [12 ELR 20915] (E.D. Pa. August 13, 1982), does not shed light on whether any of the contentions presently advanced were properly before him.

Finally, Texaco argues that its remaining waste, biological sludge, is not listed as a hazardous substance under any relevant statute. The generators respond that while "biological sludge" is not specifically designated a hazardous substance, certain substances that Texaco admits are present in its biological sludge are designated as hazardous within the meaning of CERCLA.

Texaco further relies on the fact that both the EPA and the New Jersey Department of Environmental Protection have accepted its contention that its biological sludge is not hazardous within the meaning of the Resource Conservation and Recovery Act (RCRA) or the New Jersey Hazardous Waste Management Regulations, respectively. I fail to see what bearing the New Jersey determination has on this litigation. Furthermore, the EPA delisting, dated July 12, 1983, is not retroactive to the dates at issue in this litigation. Finally, the EPA letter appears to exempt Texaco's biological sludge from further regulation under RCRA alone. For the foregoing reasons I cannot conclude as a matter of law that Texaco's fuel oil sludge and biological sludge are not hazardous substances within the meaning of CERCLA and I will therefore deny Texaco's motion for summary judgment.

The generators' cross-motion for summary judgment is based on wholly unwarranted inferences. I am first asked to infer that Texaco does not contest that its fuel oil sludge and biological sludge were disposed of at the Wade site. This inference is said to arise from the fact that with respect to these two wastes Texaco's motion was based solely on the allegedly unhazardous nature of the wastes. Assuming such an inference could arise in the face of silence, that is not what I am presented with. Instead, Texaco specifically states at page 11 of its brief that substantial evidence exists that its fuel oil sludge was transported to Baltimore. On page 19 Texaco makes clear that it is not conceding that its biological sludge was deposited at the Wade site. The fact that Texaco chose not to argue that its sludges were unquestionably disposed of at places other than the Wade site does not mean it has conceded the truth of the counter proposition — disposal at the Wade site. Clearly an issue of fact exists.

With respect to Texaco's rust scale and poly/cumene reactor spent catalyst the generators again advance the argument that delivery to ABM, without more, warrants an inference of disposal at the Wade site. I trust my ruling above has laid to rest all doubts about the validity of such an inference.

Order

AND NOW, this 27th day of April, 1984, upon consideration of the motion for summary judgment filed by Texaco, Inc. and the cross-motion of third party plaintiffs for partial summary judgment, it is hereby Ordered that both motions are DENIED.

AND IT IS SO ORDERED.

1. The affidavit of Texaco's Senior Research Chemist makes reference to an attached resume of his qualifications, but no such resume is attached.