United States v. Carolawn Co.

No. 83-2162-0 (D.S.C. June 15, 1984)

The court rules that a waste is a "hazardous substance" under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) if it contains substances listed as hazardous under any of the statutes referenced in CERCLA § 101(14) regardless of the volume or concentrations of those substances. Rejecting one defendant's motion for summary judgment in a CERCLA cost recovery action, the court rules that defendant's water-based paint wastes are hazardous substances under CERCLA. They contain trace amounts of substances listed as hazardous under § 307(a) of the Federal Water Pollution Control Act. Neither the statutory language, legislative history, nor precedent supports the argument that concentration or quantity is relevant to the issue.

Counsel for Plaintiff
Mary Slocum, Ass't U.S. Attorney
Fed. Bldg., P.O. Box 2266, Columbia SC 29202
(803) 765-5483

Counsel for Defendants
John W. Foard Jr.
1720 Main St., Suite 101, Columbia SC 29201
(803) 256-8516

Carl G. Ferguson
P.O. Box 2248, Greenville SC 29602
(803) 242-6440

Harold Himmelman
Beveridge & Diamond
1333 New Hampshire Ave. NW, Washington DC 20036
(202) 828-0200

[14 ELR 20696]

Anderson, J.:

Order

Introduction

This action was instituted by plaintiff United States pursuant to Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9607, to recover costs of removing hazardous substances from the surface of a hazardous waste site located near Fort Lawn, South Carolina (hereafter "the Fort Lawn site"). Named as defendants in this action are the owners and operators of the Fort Lawn site and twenty companies which generated the chemical wastes there were disposed of at the site. One of these generator defendants — Mobil Chemical Company (hereafter "Mobil") — has moved for summary judgment against the United States.

In its papers, Mobil readily admits that it generates waste materials at its High Point, North Carolina manufacturing facility, specifically, water-based paint wastes, and that at least 160 drums of these wastes were shipped to the Fort Lawn site for disposal. The sole basis for Mobil's motion is that its water-based paint wastes were not "hazardous substances" within the meaning of CERCLA and that, consequently, it cannot, as a matter of law, be held liable under CERCLA Section 107 for response cost incurred by the government at the site.

[14 ELR 20697]

The Federal Rules of Civil Procedure provide for the entry of summary judgment where the moving party establishes "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). See e.g., Bland v. Norfolk & Southern Railway Co., 406 F.2d 863 (4th Cir. 1969). Because this court concludes that Mobil's wastes are "hazardous substances" within the meaning of the express terms of CERCLA, Mobil is not entitled to judgment as a matter of law.

Liability Under CERCLA Section 107

CERCLA Section 107(a) provides in part:

Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section —

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility owned or operated by another party or entity and containing such hazardous substances . . . from which there is a release, or threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for —

(A) all costs of removal of remedial action incurred by the United States Government or a State not inconsistent with the national contingency plan. . . .

42 U.S.C. § 9607(a).

Mobil argues thatit is not subject to liability under this provision because its wastes were not "hazardous substances" within the meaning of CERCLA. Section 101(14) of CERCLA, 42 U.S.C. § 9601(14), defines "hazardous substance" to include:

(A) any substance designated pursuant to section 1321(b)(2)(A) of Title 33, (B) any elements, compound, mixture, solution, or substance designated pursuant to section 9602 of this title, (C) any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act (but not including any waste the regulation of which under the Solid Waste Disposal Act has been suspended by Act of Congress), (D) any toxic pollutant listed under Section 1317(a) of Title 33, (E) any hazardous air pollutant listed under Section 7412 of this title, and (F) any imminently hazardous chemical substance or mixture with respect to which the Administrator has taken action pursuant to section 2606 of Title 15.

42 U.S.C. § 9601(14) (emphasis added). By its express terms, Section 101(14) requires only that a substance be designated as hazardous or toxic under one of the referenced statutory provisions to be a hazardous substance under CERCLA.

Mobil admits that its wastes contained trace amounts of copper, lead, zin, chromium, cadmium, mercury, nickel, silver, arsenic, and selenium, all substances designated as toxic under 33 U.S.C. § 1317(a) (Section 307(a) of the Clean Water Act), but maintains that because "water-based paint waste" is not specifically listed as a hazardous substance under any of the statutory provisions referenced in CERCLA Section 101(14), it is not a hazardous substance under CERCLA. Mobil further argues that, in any event, the hazardous constituents of its water-based paint waste were not present in sufficient concentrations or quantities to make the waste a hazardous substance under CERCLA. Mobil's arguments not only run counter to the express language of CERCLA, but are also at odds with the statute's legislative history and recent caselaw on this issue.¹

With respect to Mobil's first contention, this court concludes that the fact that "water-based paint waste" is not specifically listed under any of statutory provisions referenced in CERCLA Section 101(14) is not dispositive — whether a material is hazardous under CERCLA depends on the character of its constituents. If a waste material contains hazardous substances, then the waste material is itself a hazardous substance for purposes of CERCLA. To distinguish a waste solution or mixture from its hazardous constituents defies reason. Clearly, if taken out of solution, the constituents would be "hazardous substances."² Thus, to the extent that Mobil's wastes contain substances which are hazardous under CERCLA, those wastes are hazardous substances for purposes of imposing CERCLA liability.

Mobil's argument that the hazardous constituents of its wastes were not present in sufficient amounts to make those wastes hazardous substances under CERCLA also must fail. The definition of "hazardous substance" in CERCLA Section 101(14) simply does not distinguish hazardous substances on the basis of quantity of concentration.³ Instead, the provision refers only to lists, such as the list of toxic pollutants promulgated pursuant to Section 307 of the Clean Water Act, 33 U.S.C. § 1317, which are also non-specific with respect to quantity or concentration.

CERCLA's legislative history further supports the conclusion that the listing of substance as hazardous, not its concentration or amount, was to control in identifying hazardous substance under CERCLA.

[S]ubstances listed as hazardous or toxic under certain other Federal laws are incorporated by reference and upon the date of enactment of this bill such substances become statutorily defined as hazardous substances for purposes of this bill. And the release of any of them or any constituent of them invokes the . . . response provisions and any costs of removal or remedial action or any damages are subject to the liability provision of the bill . . . . As substances are added to [the] lists they would be automatically designated as hazardous substances . . . .

Senate Rep. No. 96-848, 96th Cong., 2d Sess. at 24-27 (July 13, 1980) (emphasis added). See also 126 CONG. REC. S13365 (Sept. 24, 1980) (introduction of Cannot Amendments) ("[this bill] would define a hazardous substance as any substance designated under certain specified lists"). Conspicuously absent from the legislative history is any suggestion that in order to be hazardous, a substance must, apart from being listed, also be found in particular concentrations.

This court finds a recent decision by the district court for the Eastern District of Pennsylvania in United States v. Wade, No. 79-1426, Memorandum [14 ELR 20096] (December 20, 1983), the only decision to date directly on point, persuasive in this regard. As in the instant case, the court in Wade was confronted with the issue whether the "presence of any of the listed substances or pollutants in a generator's waste makes that waste a 'hazardous substance' for purposes of CERCLA liability without regard to concentration of quantity." Id. at 22-23. The court, noting the absence of limiting language in the definition of "hazardous substance," responded affirmatively holding as follows:

What the government must prove to establish that a defendant's [14 ELR 20698] wastes are hazardous is that the waste contains an unspecified quantity of substances identified as hazardous or toxic under the statutes specified in CERCLA's definition of "hazardous substance."

Id. at 23 (emphasis added). This court agrees with the conclusions of the court in Wade.

Conclusion

In summary, this court concludes that because the water-based paint wastes shipped by Mobil to the Fort Lawn site contained substances identified as toxic pollutants under the Clean Water Act, Mobil's wastes were hazardous substances within the meaning of CERCLA. Consequently, this court cannot rule that Mobil is entitled to judgment as a matter of law, and Mobil's motion for summary judgment is denied.

AND IT IS SO ORDERED.

1. Apparently, Mobil's water-based paint wastes are not presently regulated under either the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq., or the Clean Water Act, 33 U.S.C. § 1251, et seq., notwithstanding the fact that constituents of Mobil's wastes are listed as toxic pollutants under the Clean Water Act. Significantly, however, Congress enacted both of these laws and can be presumed to understand their operation, including the fact that the listing of a substance as hazardous or toxic does not necessarily subject that substance to regulation. This court can only conclude that Congress intended to cast an especially broad remedial net with CERCLA, designed to address the special concerns presented by hazardous wastes dumps. In enacting CERCLA, the congressional focal point was not so much the degree of existing regulation, but rather that certain substances have been identified as having hazardous propensities, and that these substances, if allowed to accumulate and comingle at poorly managed hazardous waste dumps, might threaten or destroy natural resources and ground water supplies. See, e.g., 126 CONG. REC. H9446 (Sept. 23, 1980) (remarks of Rep. Madigan) ("We are talking about hundreds of 55-gallon drums of these chemicals that are leaking into the underground water supplies in the United States of America. Certainly people use those chemicals, but they do not mix them in large quantities in their drinking water").

2. Mobil's argument would lead to an anomaly: a waste designated as "water-based paint waste containing hazardous constituents x, y, and z" would not be a hazardous substance, while a waste described as "hazardous substances x, y, and z in water-based paint solution" would be.

3. As evidenced by CERCLA Sections 102 and 103, which, in tandem, require facility operators to notify the government of the release of a "reportable quantity" of hazardous substance — usually one pound — Congress was well aware when enacting CERCLA how to make provisions specific with respect to quantity or concentration of a hazardous substance. Presumably, if Congress had intended the definition of hazardous substances to be contingent upon the presence of a certain amount or concentration of a hazardous substance, it would have so provided.