ELR Citation: ELR 21335
No(s). 91-16575 (9th Cir. Aug 11, 1993)

The court holds that chrysene found in crude oil tank bottoms does not fall within the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §101(14) exclusion of petroleum from the definition of hazardous substance, and that the oil company that dumped the crude oil tank bottoms is liable for cleanup costs as a matter of law. Crude oil tank bottoms are sedimentary solids and water that settle out of crude oil and create a layer of waste at the bottom of crude oil storage tanks. The court first holds that a specifically listed hazardous substance, such as chrysene, which is indigenous to petroleum and is present as a result of the release of petroleum, will fall within the petroleum exclusion unless it is present at a concentration level exceeding that which naturally occurs in the petroleum product. The court holds that crude oil tank bottoms do not meet the definition of a "fraction" of petroleum or crude oil. They are not one of several portions separable by fractionation and consisting either of mixtures or pure chemical compounds. The court next holds that the bottoms are not petroleum. They are never subjected to refining processes as required by judicial definitions of petroleum, and are nonrecyclable waste materials that do not qualify as petroleum. CERCLA's purpose of ensuring the cleanup of hazardous waste sites such as the gravel pit where the defendant oil company dumped the bottoms supports a holding that the bottoms are not petroleum. The court next holds that two U.S. Environmental Protection Agency memoranda concerning hazardous substances inherent in petroleum are inapplicable because the bottoms are not petroleum. The court holds that the fact that leaded tank bottoms are specifically listed hazardous substances, while crude oil tank bottoms are not, does not preclude CERCLA's application. Leaded tank bottoms are waste generated from a refining process and thus meet the definition of petroleum. Leaded bottoms would therefore fall under the petroleum exclusion unless specifically listed as a hazardous substance, while crude oil tank bottoms, which are not petroleum to begin with, do not fall within the exclusion and thus do not require specific listing as a hazardous substance. Finally, the court holds that comments made by a senator six years after CERCLA's enactment that include crude oil tank bottoms as petroleum are due little weight.

Counsel for Plaintiffs
Robert Mehlhaff
Souza, Coats, McInnis & Mehlhaff
P.O. Box 1129, Tracy CA 95378
(209) 835-3232

Counsel for Defendants
Ward L. Benshoof
McClintock, Weston, Benshoof, Rochefort, Rubalcava & MacCuish
444 S. Flower St., 43d Fl., Los Angeles CA 90071
(213) 623-2322

Before Schroeder and Nelson, JJ.: