Transportation Leasing Co. v. California

No. CV 89-7368-WMB (GHKx) (C.D. Cal. December 5, 1990)

The court holds that household waste is not exempt from inclusion as a "hazardous substance" under § 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). In an attempt to escape liability under CERCLA § 107(a)(3) for arranging to dispose of hazardous substances, 29 municipalities sought a ruling that rubbish generated by local residences and businesses is excluded from CERCLA's definition of hazardous substances. Based on congressional intent and the Environmental Protection Agency's interpretation of its regulations, the court holds that CERCLA § 101(14) does not expressly exempt from liability the disposal of household wastes. Although the Resource Conservation and Recovery Act (RCRA) contains an exclusion for household waste, and the list of substances deemed hazardous under RCRA is also expressly incorporated into the definition of hazardous substances under CERCLA, the exclusion of household waste under RCRA is not equivalent to an identical exclusion under CERCLA. CERCLA § 101(14) does not expressly include or exclude household waste from its definition of hazardous substances, and if Congress had intended to exempt household waste under CERCLA, it would have done so expressly. Because Congress expressly excluded petroleum from CERCLA's definition of hazardous substances, it is reasonable to concludethat Congress knew how to carve out an exemption for household waste.

Counsel for Plaintiffs
David A. Gianotti, Pierce O'Donnell
Kaye, Scholer, Feirman, Hays & Handler
2121 Ave. of the Stars, Ste. 2100, Los Angeles CA 90067
(213) 552-6400

Counsel for Defendants
DeWitt W. Clinton, Jonathan B. Crane
500 W. Temple St., Los Angeles CA 90012
(213) 974-1869

[21 ELR 20826]

Byrne, J.:

Order

Defendants' motion for an order specifying issues without substantial controversy sought to determine the scope of defendant Cities' liability under § 107(a)(3) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9607(a)(3). § 107(a)(3) provides:

any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, or hazardous substances owned or possessed by any such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances . . .

42 U.S.C. § 9607(a)(3). The 29 defendant Cities move the Court for an order specifying what the following four facts and issues are without substantial controversy and are deemed established:¹

1. The issuance of business licenses by defendant Cities to independent waste haulers to enable them to conduct business within the city limits does not constitute an "arrangement for disposal of hazardous substances" as contemplated by § 107(a)(3) of CERCLA;

2. Rubbish generated by residences and businesses within the city limits of defendant Cities that was collected by independent waste haulers operating pursuant to business licenses, franchises, or contracts issued by defendant Cities was not "owned or possessed" by defendant Cities within the contemplation of § 107(a)(3) of CERCLA;

3. The issuance of business licenses or franchises by defendant Cities to independent waste haulers to enable them to collect rubbish from residences and businesses located within the city limits constitutes an exercise of the police power to protect the public health and safety, and does not constitute an "arrangement for the disposal of hazardous substances" under § 107(a)(3) of CERCLA;

4. Rubbish generated by residences and businesses located within the city limits of defendant Cities is not a "hazardous substance" within the contemplation of CERCLA absent specific evidence that the particular rubbish generated by those residences and businesses that was disposed of at the OII landfill site contained "hazardous substances," as defined by § 101(14) of CERCLA.

The Court denies defendant Cities' motion for an order specifying issues without substantial controversy on issue numbers one through three. Defendants' motion with respect to issue numbers one through three is not in a posture now where they can be determined. Rather than tying the issues to the facts of the instant case, defendants have couched them as abstract, hypothetical propositions of law that will not adjudicate any part of any claim asserted against defendants. The issues presented by defendants will not resolve anything in the case or cut down discovery, because factual problems will still have to be determined. The court would have to revisit these issues when actually deciding whether the precise conduct of each city is sufficient for the imposition of liability under CERCLA. The Court, therefore, declines to issue what would be an advisory opinion on issue numbers one through three at this time.

In issue number 4, defendant Cities seek a ruling from the Court that rubbish generated by residences and businesses is not a "hazardous substance" within the contemplation of CERCLA absent specific evidence that the particular rubbish disposed of at the OII landfill site contained "hazardous substances," as defined by § 101(14) of CERCLA. By the express language of § 107(a)(3), liability can be imposed only on a person who arranged for disposal of "hazardous substances." 42 U.S.C. § 9607(a)(3). Defendants' argument, therefore, appears to be a tautology, one with which plaintiffs expressly concur.

Yet, in this section of their motion, defendants argue that household waste is excluded from the definition of hazardous substances under CERCLA. Defendants' argument is without merit. The RCRA contains an exclusion for household waste. The list of substances deemed hazardous under the RCRA is also expressly incorporated into the definition of hazardous substances contained in CERCLA. However, it does not necessarily follow that the RCRA exclusion for household waste compels the conclusion that household waste cannot be a "hazardous substance" under § 101(14) of CERCLA.

§ 101(14) of CERCLA neither expressly includes household waste in nor excludes household waste from its definition of hazardous substances.² Plaintiffs argue that if Congress had intended to exempt [21 ELR 20827] household waste under CERCLA, it would have done so expressly, in the definition of hazardous substances under § 101(14). Given the fact that Congress expressly excluded petroleum from the definition of hazardous substances, it is reasonable to conclude that Congress certainly knew how to carve out such an exemption.

Moreover, the EPA itself has rejected defendants' position that the "household waste" exemption under RCRA is incorporated as a limitation on the definition of "hazardous substances" under CERCLA:

CERCLA does not contain an exclusion from liability for household waste or an exclusion based on the amount of waste generated. Any waste that qualifies as a hazardous substance under CERCLA is subject to the liability provisions of Section 107. Hazardous substances are defined under Section 101(14) and designated under Section 102(a) of CERCLA. HHW [household hazardous waste] may qualify as a "hazardous substance" if it contains any substance listed in Table 302.4 of 40 CFR Part 302. If a household waste contains a substance that is covered under these CERCLA sections (whether or not it is a RCRA hazardous waste), potential CERCLA liability exits.

Communities should recognize that potential liability under CERCLA applies regardless of whether the HHW was picked up as part of a community's routine waste collection service and disposed of in a municipal waste landfill . . . or if the HHW was gathered as part of a special collection program and taken to a hazardous waste landfill. . . .

EPA Office of Solid Waste and Emergency Response Directive No. 9574.00-1, Clarification of Issues Pertaining to Household Hazardous Waste Collection Programs (Nov. 1, 1988 at 4) (emphasis in original) (Plaintiffs' Opposition, Exhibit F).

The Court grants defendant Cities' motion with respect to issue number 4, only to the extent that it seeks a ruling that for arranger liability, plaintiffs must prove that the waste disposed of at the OII landfill contained "hazardous substances" under CERCLA. The Court finds that § 101(14) of CERCLA does not expressly exempt from liability the disposal of household wastes.

1. Defendant County of Los Angeles joined in this motion. The County, however, did not submit its own moving papers.

2. § 101(14) provides, "The term "hazardous substance" means (A) any substance designated pursuant to [the Clean Water Act], (B) any element, compound, mixture, solution, or substance designated pursuant to [section 102 of CERCLA], (C) any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of [RCRA] (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 [the Clean Water Act], (E) any hazardous air pollutant listed under section 112 of the [Clean Air Act], and (F) any imminently hazardous chemical substance or mixture with respect to which the Administrator has taken action pursuant to section 2606 of [the Toxic Substances Control Act].["] The term does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of this paragraph, and the term does not include natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of naturalgas and such synthetic gas). 42 U.S.C. § 9601(14).