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:
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
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