ELR Citation: ELR 21261
No(s). C-89-3754 (N.D. Cal. Apr 15, 1993)

On reconsideration, the court holds that a substance does not have to be "hazardous waste" within the meaning of the Resource Conservation and Recovery Act (RCRA) for disposal or treatment liability to attach under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first holds that reconsideration of the court's prior order, in which it determined that a substance must be a RCRA hazardous waste for CERCLA cleanup liability to attach, is justified. The state set forth convincing case law and policy considerations to induce reconsideration. Next, the court finds that solder dross is a hazardous waste, holding that a substance need not be a RCRA hazardous waste for CERCLA liability to attach. The U.S. Environmental Protection Agency's conclusion that solder dross is not sufficiently dangerous to justify imposing stringent RCRA regulations does not imply that harm from improper disposal of the dross is also insufficient to justify CERCLA regulation. CERCLA's explicit language and legislative history and CERCLA and RCRA's distinct purposes, compel this conclusion, and case law does not dictate otherwise. The court also holds that inducing a change to the physical character of a hazardous substance, as defendant had done in heating solder dross to separate metals from nonmetal impurities, constitutes "treatment" within the meaning of CERCLA. The court holds that burial of the remaining unusable material, which contained high levels of lead and zinc, constitutes "disposal."

Addressing "arranger" liability, the court holds that in choosing to transfer the remaining hazardous substance to a third party, defendant arranged for treatment and disposal under CERCLA. The court rejects the "sale of a useful product" defense. This defense cannot be used in this case to attempt to characterize the transfer as a sale rather than an arrangement for disposal, because this defense applies only when the sale is of a new product or a product manufactured specifically for the purpose of sale. The sale of the solder dross was accomplished to dispose of or treat the byproduct of defendant's manufacturing process, and the transfer cannot be considered a sale rather than an arrangement for disposal.

[The court's prior decision is in this case is published at 23 ELR 20297.]

Counsel for Plaintiff
Susan Fiering, Deputy Attorney General
Attorney General's Office
2101 Webster St., 12th Fl., Oakland CA 94612
(510) 286-4200

Counsel for Defendants
James Meeder, James Wyatt
Beveridge & Diamond
One Sansome St., Ste. 3400, San Francisco CA 94104
(415) 397-0100