ELR Citation: ELR 20626
No(s). s. CIV 89-1700-PHX-CAM et al (D. Ariz. Sep 17, 1991)

The court holds that an aircraft manufacturer is liable as a generator of hazardous waste under §107(a)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for cleanup costs at a municipal landfill in Phoenix, Arizona. In producing metal engine components for commercial applications the manufacturer generated metal grinding sludge that contained metal grinding particles whose individual elements are designated as hazardous substances under CERCLA §102(a). The court first holds that the manufacturer's grinding sludge is a CERCLA hazardous waste because constituents of the sludge are listed hazardous substances in CERCLA regulations. Although the manufacturer's grinding sludge is not listed as a hazardous substance under CERCLA regulations at 40 C.F.R. §302.4, the determination of a CERCLA hazardous waste is evaluated on the basis of what it contains, regardless of the volume or concentration. Thus, the application of CERCLA regulations that incorporate the standards established under the Resource Conservation and Recovery Act (RCRA) for identifying characteristics of hazardous waste do not apply, since they are limited to a situation where the waste and its constituents are not listed in CERCLA's regulations. This view is consistent with CERCLA's broad remedial statutory scheme, its imposition of strict liability, and case law. However, use of RCRA toxicity tests for determining whether a waste contains a CERCLA hazardous substance is appropriate. While RCRA's toxicity characteristic tests are based on regulatory levels of hazardous wastes, the lack of a quantitative requirement under CERCLA does not preclude the use of the RCRA tests in making CERCLA determinations of hazardous substances. Moreover, the fact that a waste is not hazardous under RCRA does not prevent it from being hazardous under CERCLA. The court next holds that plaintiffs are not required to show that the manufacturer's grinding sludge is capable of generating or releasing hazardous substances at the 19th Avenue Landfill in Phoenix, Arizona. The RCRA toxic characteristic tests used to determine the existence of CERCLA hazardous substances in the sludge established that the sludge is capable of generating or releasing hazardous substances at the landfill. The court declines to second guess the Environmental Protection Agency's (EPA's) promulgation of the RCRA tests as not reflective of the specific conditions at the 19th Avenue Landfill or landfills located in the southwestern United States. The RCRA tests do not depend on geography and EPA's interpretation of RCRA and CERCLA must be accorded great deference.

Counsel for Plaintiff
Karen L. Peters, Christopher D. Thomas, Mark E. Freeze
Squire, Sanders & Dempsey
2200 Valley Bank Ctr., 201 N. Central Ave., Phoenix AZ 85073
(602) 254-4000

Linda J. Pollock, Ass't Attorney General
1275 W. Washington, Phoenix, AZ 85007
(602) 542-4266

Counsel for Defendant
Dan M. Durrant, G. Sonny Cave
Streich, Lang, Weeks & Cardon
2100 First Interstate Bank Plaza, 100 W. Washington, Phoenix AZ 85003
(602) 229-5200