United States District Court, Southern District of Illinois
March 30, 1984
UNITED STATES OF AMERICA, PEOPLE OF THE STATE OF ILLINOIS, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, VILLAGE OF GREENUP, ILLINOIS, A MUNICIPAL CORPORATION, COUNTY OF CUMBERLAND, ILLINOIS, A MUNICIPAL CORPORATION, AND COUNTY OF RICHLAND, ILLINOIS, A MUNICIPAL CORPORATION, PLAINTIFFS,
A & F MATERIALS COMPANY, INC., KENNETH C. AULT, FRANK A. JONES, R.C.D. CHEMICALS, INC., GENET REFINING AND RECOVERY, ALVA RUNYON, MELVA RUNYON, KAYE L. AULT, ALUMINUM COMPANY OF AMERICA, INC., A-M INTERNATIONAL, MCDONNELL DOUGLAS CORPORATION, NORTHERN PETROCHEMICAL COMPANY, CAM-OR, INC., PETROLITE CORPORATION, CUMBERLAND LABORATORIES, INC., AND VELMA RUNYON, DEFENDANTS.
The opinion of the court was delivered by: Foreman, Chief Judge:
MEMORANDUM AND ORDER
Before the Court is a Motion for Summary Judgment filed by
defendant McDonnell Douglas Corporation (MDC). The government's
action against MDC is based on the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601
et seq. CERCLA imposes liability on generators of hazardous
wastes who arrange for the disposal or treatment of their waste
by a third party and the waste is posing an actual or threatened
harm to the environment. 42 U.S.C. § 9607(a)(3). The government
claims MDC arranged for the disposal of spent aluminum etch
caustic solution at A & F Material's site in Greenup, Illinois.
MDC moves for judgment in its favor arguing the caustic solution
is not a "waste," and that it did not "arrange for the disposal
or treatment" of the caustic etch solution.
The issues presented by the motion are framed by the following
scenario. MDC is engaged in the production of jet aircraft at
its St. Louis, Missouri facility. The manufacturing process
generates a spent caustic solution. On April 7, 1978, MDC issued
an invitation to bid for up to 500,000 gallons of its caustic
solution. On May 2, 1978, Mr. Kenneth Ault, acting as president
of A & F Materials Company, submitted the highest bid at $.072
per gallon and was awarded the contract. From June 20, 1978 to
November 20, 1978, A & F was invoiced on eleven occasions for
seventeen shipments of caustic solution transported to A & F's
Greenup facility at a total cost of approximately $6,000.
A & F Materials operated an oil reclamation process at the
Greenup site. A & F would purchase waste oil primarily for ALCOA
at two to four cents a gallon and treat it to obtain a portion of
reusable oil. However, A & F's process yielded an acidic oil
which had to be neutralized before it could be sold. MDC's
caustic solution was used to neutralize the acidic oil.
Section 9607(a)(3) of CERCLA imposes liability for the releases
of hazardous substances into the environment on
(3) any person who by contract, agreement, or
otherwise arranged 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,. . . .
Section 9601(14) of CERCLA defines "hazardous substance" as
anything which under the Resource Conservation & Recovery Act
(RCRA), 42 U.S.C. § 6903(5), is a "hazardous waste." MDC's first
argument is that the spent caustic solution is not a "waste"
since it was reused by A & F Materials. Secondly, MDC argues that
even if the solution is a waste under the statute and
regulations, it did not arrange for the disposal or treatment of
MDC has stipulated that the caustic solution is "hazardous" as
defined by RCRA. The crucial definition of "waste" can be found
at 40 C.F.R. § 261.2(b) which states:
An "other waste material" is any solid, liquid,
semi-solid or contained gaseous material resulting
from industrial, commercial, mining or agricultural
operations, or from community activities which:
(1) Is discarded or being accumulated, stored or
physically, chemically or biologically treated prior
to being discarded; or
(2) Has served its original intended purpose and
sometimes is discarded; or
(3) Is a manufacturing or mining by-product and
sometimes is discarded.
The government argues a material issue of fact remains in this
matter as to whether MDC's spent caustic is a waste under subpart
(2). The Court agrees. MDC does not dispute that the caustic
solution had served its intended purpose, and there is
conflicting evidence in the record as to whether the caustic was
sometimes discarded. Officials at MDC testified via deposition
that MDC pays to have other waste caustics hauled away. There is
no evidence in the record which distinguishes these discarded
caustics from the caustics sold to A & F Materials. Also after
MDC stopped doing business with A & F, it had to pay to have
spent caustic hauled away in January, 1979. Finally, it is
possible to characterize MDC's current practice as giving away
the spent caustic to anyone who would come and pick it up.
Therefore, construing the evidence in the light most favorable to
the government, the Court finds a material issue of fact remains
as to whether MDC sometimes discarded the spent caustic solution.
MDC argues that the spent caustic is not a waste because the
shipments to A & F were not discarded. This argument in effect
ignores the word "sometimes" in the definition of waste. The
Court finds that the definition of waste was intended to cover
those hazardous materials which are of nominal commercial value
and which were sometimes sold or reused and sometimes discarded.
The Court cannot find as a matter of law that MDC's spent caustic
falls outside this expansive definition of waste. Therefore, the
Court will assume for the purpose of the remaining issues in
MDC's motion that it was a generator of a hazardous waste.
Even if the spent caustic is a hazardous waste, MDC can prevail
on its motion if it did not arrange for the disposal or treatment
of the spent caustic. MDC argues CERCLA does not impose liability
on parties who merely arrange for the sale of a hazardous
Although initially appealing, the Court finds MDC's argument to
be without merit. The Court is impressed with the broad language
in § 9607(a)(3) which imposes liability on "any person who by
contract, agreement, or otherwise arranged for disposal or
treatment, of hazardous substances . . . at any facility . . .
containing such hazardous substances" (emphasis added). The Court
finds that MDC arranged to have its alleged waste disposed of at
A & F's site in Greenup, Illinois, which was a facility
containing hazardous substances. The fact that this arrangement
involved A & F promising to pay MDC seven cents a gallon is
irrelevant. Given the scope of the language "otherwise arranged"
in § 9607(a)(3), the relevant inquiry is who decided to place the
waste into the hands of a particular facility that contains
hazardous wastes. In this case, it was MDC who decided to place
its hazardous waste into the hands of A & F Materials to be used
and disposed of at A & F's Greenup site. The Court finds that it
is precisely this decision that CERCLA was intended to regulate.
The fact that MDC's decision to give the waste to A & F was
governed by the marketplace (i.e. the highest bidder) is of no
consequence. Indeed CERCLA was enacted to insure that
considerations far weightier than price dictate who is given the
task of disposing of hazardous waste.
MDC relies on the unreported case of United States v.
Westinghouse Electric Corporation, No. 83-9-C (S.D.Ind. 1983) for
the proposition that CERCLA does not impose liability upon one
who makes a bona fide sale of a hazardous material. In
Westinghouse, the government filed suit pursuant to CERCLA and
RCRA and Westinghouse filed a third party complaint against
Monsanto based in part on the same statutes. Monsanto
manufactured polychlorinated biphenyls (PCB's) which Westinghouse
utilized as a fluid in electrical equipment. The waste site at
issue contained PCB's from Westinghouse's factory. The court held
that Monsanto was not liable to Westinghouse because it did not
contract for the disposal of the PCB's.
The Westinghouse case is clearly distinguishable from the
present case and illustrates the limits to liability under
CERCLA. First of all, Monsanto did not generate "waste" as
defined above, because Monsanto manufactured the PCB's. Second,
unlike MDC, Monsanto did not arrange for the disposal of PCB's at
a facility containing hazardous wastes. Westinghouse is the party
that arranged to have the appliances containing PCB's placed in
the landfill. Thus, liability for releases under § 9607(a)(3) is
not endless; it ends with that party who both owned the hazardous
waste and made the crucial decision how it would be disposed of
or treated, and by whom. Thus, because the Court cannot say as a
matter of law that MDC's spent caustic is not a waste, and
because MDC arranged for the spent caustic to be disposed of at A
& F's facility in Greenup, Illinois, MDC is not entitled to
Accordingly, MDC's Motion for Summary Judgment is hereby
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