ELR Citation: ELR 21371
No(s). 93-16530 (9th Cir. Aug 10, 1994)

The court holds that a party that sold spent automotive batteries to a lead reclamation plant is liable under §107(a)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for costs of cleaning up property at which remnants of the batteries were eventually dumped. The court first holds that the Resource Conservation and Recovery Act's definition of "solid waste" informs interpretation of the term "disposal" under CERCLA. Applying the current federal regulations defining solid waste, rather than those in force at the time of the conduct at issue, the court holds that even though the batteries were destined for recycling, they were "waste" because they were "reclaimed" and, therefore, would not fall under the exception that removes some reprocessed recycled material from the definition of waste. Moreover, the battery casings retained their character as waste throughout. Unlike the lead plates within the casings, the casings were not the subject of recycling. The court rejects arguments that the seller did not arrange to dispose of the batteries because it did not control the eventual disposition of their remnants. The court has never required continued ownership or control of a hazardous substance to be evidence of arranging for disposal. Such a requirement would make it too easy for a party to escape by a sale its responsibility to see that a hazardous substance is safely disposed of. It is sufficient that the substance had the characteristic of waste at the point at which it was delivered to another party. The court also holds, however, that the seller cannot be held liable for arranging for the batteries' treatment. None of the treatment activity that the seller arranged for and which potentially caused contamination occurred at the facility that contains the hazardous substances that are the subject of the cleanup effort.

Counsel for Plaintiff
Sanford Svetcov
Landels, Ripley & Diamond
Hills Plaza
350 Steuart St., San Francisco CA 94105
(415) 788-5000

Counsel for Defendant
Earl Hagstrom
Sedgwick, Detert, Moran & Arnold
One Embarcadero Ctr., 16th Fl., San Francisco CA 94111
(415) 781-7900

Before Choy and McGovern,^* JJ.