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21 ELR 20547 | Environmental Law Reporter | copyright © 1990 | All rights reserved Hassayampa Steering Committee v. Arizona (I)No. CIV 89-0188 PHX RCB (D. Ariz. October 30, 1990)In the first of two decisions in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) response action involving the Hassayampa landfill near Phoenix, Arizona, the court holds that Arizona's administration of its manifest system for hazardous waste disposal did not preclude transporters from selecting sites under CERCLA § 107(a)(4). Evidence showed that in 1979, the Arizona Department of Health Services (ADHS) issued a cease and desist order prohibiting the dumping of industrial wastes in Phoenix landfills, and thereafter agreed to use the Hassayampa landfill as the only site in Maricopa County eligible to receive industrial wastes. The court finds that although manifests were only used at Hassayampa and the Hassayampa landfill was the only ADHS-approved Maricopa County landfill for the disposal of industrial wastes, transporters and generators had other alternative sites available for disposal. Thus, the court holds that the enforceability of the manifests is irrelevant, since the transporters and generators, not the State of Arizona, selected Hassayampa for disposal of particular loads of waste. The court notes that the transporters and generators submittal of manifests evidences their selection of the Hassayampa site. The evidence supports this conclusion since the transporter and/or generator had to choose Hassayampa before it filled out a manifest form. Only after they made this choice would the ADHS be required to approve or deny the manifest and allow a transporter to dispose of the waste at Hassayampa. The submittal of a manifest evidences the selection of a site. Counsel for Plaintiffs Counsel for Defendants Order Defendant, Chemical Waste Management, Inc. ("Chemical Waste") moved for summary judgment. The following defendant transporters joined: Universal Waste Control, Inc.; Arizona Petroleum Contractors and Consultants, Inc.; Arizona Sewer Service, Inc.; Berset Cesspool Service; Best Way Sewer & Drain Service; Fred's Pumping Service, Inc.; Phil's Pumping & Electric Rooter Service, Inc.; Rick's Cesspool Service; The Rinchem Company; and Valley Steel & Supply Company. Both plaintiffs and the State of Arizona defendant responded. The Court heard oral argument on October 10, 1990. Plaintiffs also moved to strike Chemical Waste's reply memorandum, along with the replies of the joinder defendants. The Court heard the motions to strike on an expedited basis and took the motions under advisement. The Court now rules on these pending motions. This action involves hazardous waste contamination at the Hassayampa landfill, which occurred between April 1979 and October 1980. Plaintiffs sued various transporters of the hazardous waste, pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607(a)(4), for the response costs for the cleanup of Hassayampa. These transporters, or their predecessors in interest, allegedly transported a variety of hazardous wastes to Hassayampa between April 1979 and October 1980. A. Motions to Strike the Replies Plaintiffs are concerned that the reply addresses issues not raised in the original motions for summary judgment and not agreed to between the parties. Specifically, plaintiffs argue that the Court should not require plaintiffs to present evidence on each element of their claims against the transporters. Defendants, on the other hand, maintain that plaintiffs must meet their burden, pursuant to Fed. R.Civ. P. 56(c) and that their replies do no more than point out plaintiffs' deficiencies. The Court is unpersuaded that defendants' motions challenged plaintiffs to present evidence on each element of their prima facie claim. The original motions do not clearly present the larger question, but instead argue the more discreet issue of whether the State's manifest system precludes transporter liability. All parties agree that if the Court declines to grant summary judgment, the defendants may bring another motion for summary judgment, similar to the one decided for defendant Dave Fellars Dump Truck. See Order, June 6, 1990. Plaintiffs do have the burden pursuant to Fed.R. Civ. P. 56(c), but that burden is limited to the narrower issue. B. Transporters' Motions for Summary Judgment1 Section 9607(a)(4) of CERCLA provides for transporter liability. [A]ny person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a [21 ELR 20548] threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable. Id. (Supp. 1989) (emphasis added). The instant question is: Does the State's manifest system preclude transporters site selection? The transporters contend that the effect of the manifest system was to place total control over the disposal of hazardous waste with the State. Plaintiffs and the State maintain that the site selection was made by the transporters and/or generators prior to the submission of a manifest to the State. Again, the parties disagree over the standard the Court should apply to determine whether the transporter's activities constituted site selection. However, the Court again finds it unnecessary to decide the degree of participation necessary to impose liability. See Order June 6, 1990, at 9-10. The only question presented by defendants' motions is whether the State's administration of the manifest system equals site selection, thereby precluding transporters' site selection. The parties point to the same evidence, including Arizona Department of Health Services' ("ADHS") pronouncements, with differing interpretations, to support their arguments. First, after ADHS issued a Cease and Desist Order in February, 1979, prohibiting the dumping of industrial wastes in Phoenix landfills, ADHS and the County agreed to use Hassayampa. Dr. George Rowland, the Director of the Public Health Division of the County Health Department wrote Bruce Scott of ADHS on April 19, 1979. Exhibit 1 to Appendix 1, Chemical Waste's Motion for Summary Judgment ("CWMSJ"). Dr. Rowland states: 2. [T]he state will designate what site will handle the waste as follows: Out-of-state — extremely hazardous waste 3. If the county site is designated, the staff of Arizona Department of Health Services will fill out a hazardous waste report detailing the type of waste, quantity, characteristic, and composite of the waste. The state will designate which of the four designated disposal pits will be used and any special handling instructions necessary to protect the site and/or operator of the site. Second, on April 20, 1979, ADHS notified all generators (and presumably others) of the availability of Hassayampa. Please be advised that effective immediately there is only one sanitary landfill in Maricopa County which will accept delivery of industrial wastes for disposal. Maricopa County will allow industrial wastes to be received at its Hassayampa landfill provided that prior approval is given . . . Steps needed to gain approval are as follows: 1. Anyone desiring to transport industrial wastes to the Hassayampa site must submit a manifest form with the producer of waste section. . . 2. Within 24 hours after submittal, the Bureau of Sanitation will reject or approve disposal. [E]ach manifest will designate the particular disposal area at the Hassayampa site which is specifically approved for the disposal of each type of industrial waste. No vehicle transporting chemical waste will be allowed into Hassayampa landfill unless accompanied by a manifest issued by the ADHS. Please note that under Arizona's criminal littering or polluting statute (A.R.S. § 13-1603), the unlawful disposal of destructive or injurious materials, except at any place which is a lawfully designated site, may result in a fine. Id. at Exhibit 5 to Appendix 1 (emphasis added). Third, on April 27, 1979, Ted Williams, Deputy Director of ADHS, responded to Dr. Rowland: The following has been concluded by mutual agreement: 1. The use for a periodof 30 days as authorized by you of the Hassayampa landfill for disposal of industrial wastes is approved . . . 2. The Arizona Department of Health Services (ADHS) through the Bureau of Sanitation will utilize a manifest system to ascertain the composition of industrial wastes and approve of their disposal. 3. Based upon this determination, the waste will be directed by ADHS to one of the following sites: a. Non-toxic waste . . . — 27th Avenue landfill . . . b. Industrial waste . . . — Hassayampa . . . c. Hazardous waste . . . — approved sites in California, Nevada, and Texas. 4. If the County site is designated in paragraph 3.b above [Hassayampa], the manifest form will identify the type of waste. . . . The manifest will be completed by the generator and hauler of the waste, will be approved by ADHS, and will be submitted to the operator of the site prior to disposal. Id. at Exhibit 6 to Appendix I (emphasis added). Fourth, the manifest forms included a section for the site of the disposal, under the heading, "ADHS Approval." Illustration I, CWMSJ. Fifth, the State explained the mandates of the manifest system in a formal "Application for Interim Authorization to Administer A Hazardous Waste Management Program," sent to the United States Environmental Protection Agency, dated June 1980. Appendix 18, CWMSJ. The submittal states, in part: The Department will continue to monitor and evaluate all hazardous waste loads, and designate proper disposal options . . . The disposal or recycle options are mandated by the results of the evaluations. . . . [If the waste is such that it would be allowed in the designated interim hazardous waste disposal sites] it is directed to an interim site and one of the [disposal] pits in the site. If the waste is not in a form that can be accepted at these sites, it must be processed further. If this is not possible, or the processed waste or its residual is still too potentially hazardous to be accepted at the temporary sites, then long-term storage at the generating facility . . . or out-of-state disposal would be the designated disposal options. Sixth, defendants attempt to argue that Hassayampa's manifest system was akin to the federal manifest system subsequently mandated by the Resource Conservation and Recovery Act ("RCRA"). 42 U.S.C. § 6923. Finally, defendants point to the threat of criminal penalties to bolster their argument that the State, rather than the transporters, forced waste disposal at Hassayampa. The enforceability of the manifest system was explained in two Attorney General Opinions, dated February 8, 1979 and August 7, 1980. Appendixes 9 and 11, CWMSJ. The opinions concluded that Arizona "statutes provide express authority for the promulgation of standards regarding the handling of hazardous . . . wastes from their production to final treatment or disposal." Appendix 9, at 3. Defendants declare that these pronouncements, mandating the manifest system, preclude transporter selection of Hassayampa. The plaintiffs and the State, on the other hand, contend that the transporters and/or generators selected Hassayampa prior to filling out a manifest. The manifests were only necessary for those wishing to use Hassayampa. Generators and transporters had avariety of other sites to choose from. Furthermore, transporters were not compelled to use Hassayampa, but, if they choose to, the manifest system was mandatory to garner ADHS approval. The accompanying threats of criminal penalties were aimed at illegal dumping. Therefore, if the generators and transporters chose Hassayampa, a completed and approved manifest was required. First, the manifests were only required for disposal at Hassayampa. See, e.g., Deposition of William Williams, pp. 283, 246-47, Exhibit 3, Plaintiffs' Statement of Facts ("PSOF"). Other sites were not denoted on the manifests. Second, the State did not direct transporters to Hassayampa, but either approved or rejected the transporter's or generator's proposal to use Hassayampa. Plaintiffs maintain that when the State explained that they were directing transporters [21 ELR 20549] to Hassayampa, see April 1979 Memorandum, Exhibit to Appendix 1, CWMSJ, they were recommending Hassayampa as an alternative, less expensive site for disposal. See, e.g., Deposition of Tibaldo Canez, p. 239, Exhibit 1, PSOF. Third, the manifest system was not binding. Unlike the subsequent RCRA manifest system, Hassayampa manifests were a result of the agreement between the State and the County for the use of Hassayampa. In fact, the RCRA manifest system was not effective until after Hassayampa was closed and the State did not apply for RCRA authorization until October 1980. Furthermore, several State witnesses testified that the manifests were only necessary for those desiring to use Hassayampa. See, e.g., Depositions of Barry Abbott, p. 100, Exhibit 2; William Williams, p. 287, Exhibit 3, and Tibaldo Canez, p. 205, Exhibit 12, PSOF. Even after the manifests were submitted the generator or transporter could go elsewhere. See, e.g., Depositions of Tibaldo Canez, pp. 202-05, 240, Exhibit 1; William Williams, p. 88, Exhibit 3; Barry Abbott, p. 100-01, Exhibit 2, PSOF. Fourth, plaintiffs argue that defendants' contention that a transporter that violated the manifest would be subject to criminal penalties is in error. Plaintiffs clarify the April 1979 ADHS Memorandum to transporters. Exhibit 6 to Appendix 2, CWMSJ. Mr. Canez testified that other landfills could lawfully accept hazardous waste. Exhibit 1, p. 209, PSOF. Furthermore, the Memorandum did not place any restrictions on transporters taking the waste outside of Maricopa County. Id., pp. 203, 209 and 227. As the State points out, the April 1979 Memorandum, on its face, does not compel generators or transporters to use Hassayampa: Please be advised that effective immediately there is only one sanitary landfill in Maricopa County which will accept delivery of industrial wastes or disposal provided that certain prerequisities are met . . . Exhibit 6 to Appendix 1, CWMSJ (emphasis added). Finally, plaintiffs persuasively argue that the State's decision to open Hassayampa simply added to the available alternatives for disposal. Other Arizona landfills apparently were able to take and did accept industrial waste. See, e.g., Depositions of Barry Abbott, P. 78, Exhibit 2; Tibaldo Canez, p. 91, Exhibit 1, PSOF. Specifically, both the Tri-County landfill, near Phoenix, and the Apache Junction landfill accepted a variety of waste. Exhibit 2, pp. 89-91, PSOF. The Los Reales landfill in Tucson apparently included a hazardous waste disposal area. Exhibit 3, p. 156-57; Exhibit 1, pp. 90-91, PSOF. Furthermore, several out-of-state sites were available, "including the BKK facility in California, a site in Beatty, Nevada and others in Texas and Louisiana." Plaintiffs' Response, at 16; see Depositions of Barry Abbott, p. 99, Exhibit 2; Tibaldo Canez, p. 153, Exhibit 1; and Ted Williams, p. 21, Exhibit 4, PSOF. Plaintiffs also argue that defendants participated in site selection by participating in the process that resulted in Hassayampa being opened. But see supra, at 3-4 (The Court finds it unnecessary to decide whether participation in the site selection decision is enough to determine transporter liability). Plaintiffs maintain that by pressuring the State to open up an alternative to the 19th Avenue landfill, recently closed, the transporters affirmatively participated in choosing Hassayampa. The Court finds that even if various defendants pressured the State to do something after closing the Phoenix landfill, that does not conclude that those particular transporters selected Hassayampa to dispose of particular waste. The Court finds that the State's administration of the manifest system does not preclude transporter site selection. The enforceability of the manifests are irrelevant. The transporters and/or generators selected Hassayampa for disposal of particular loads of waste. Their submittal of the manifests evidences their selection of Hassayampa. The transporters and generators had other alternative sites available for disposal. The transporter and/or generator choose Hassayampa; the generator filled out a manifest form; ADHS approved the manifest; and the transporter then disposed of the waste at Hassayampa. Defendants' error is clear in their reasoning: Assuming alternative disposal sites were available, for example, does not change the fact that, as to every shipment of hazardous substances relevant here, ADHS actually designated Hassayampa, and a particular pit at Hassayampa, as the disposal site. Chemical Waste's Reply, at 21. Defendants essentially put the cart before the horse. The issue is not defined by the particular shipments taken to Hassayampa, but instead by the choice of shipments to be taken to Hassayampa. That choice was made by the generator and/or transporter. Defendants argued that "[o]nce a generator submitted a manifest, the site-selection decision was made by ADHS." CWMSJ, at 16. This statement is in error; in fact, it is the submittal of the manifest that evidences the selection of the site. A manifest was only submitted once the site, Hassayampa, had been chosen. IT IS ORDERED denying defendants' motions for summary judgment. (Doc. ##580, 585 and 604). IT IS FURTHER ORDERED granting in part, consistent with the instant order, plaintiffs' motions to strike defendants' replies. (Doc. ##650 and 660). 1. The parties are directed to the Court's earlier orders for a review of the legal standard for summary judgment motions. 21 ELR 20547 | Environmental Law Reporter | copyright © 1990 | All rights reserved |