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UNITED STATES v. A & F MATERIALS CO.

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,
v.
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.

I

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.

II

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 the solution.

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 ...

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