ELR Citation: ELR 21139
No(s). CV-F-91-518 OWW (E.D. Cal. Jun 17, 1993)

The court denies a summary judgment motion on the "arranger" liability under §107(a)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), of companies that contracted for the smelting of plastic-insulated copper wire. The smelter returned the recovered copper to the companies, but some of the hazardous ash accumulated in the furnace and a "baghouse" while the rest vented through a smokestack. None of the parties presented evidence of an explicit agreement pertaining to the disposition of the ash, but a commercial hazardous waste handler removed the "baghouse ash," and the wind allegedly blew the furnace and smokestack ash onto the plaintiff's adjacent property. The court first holds that the plain language of CERCLA belies the companies' argument that an arrangement need be in the form of a contract or explicit oral agreement. The court next holds that contradictory deposition testimony given by the owner of the smelting facility cannot be used to determine whether a contract or explicit oral agreement exists. The court holds that it cannot, as a matter of law, classify the transactions between the companies and the smelter as solely for reclamation purposes rather than as implied arrangements for disposal. The court also holds that the purpose of the "arranger" language in CERCLA is to ensure that companies cannot, as a matter of law, avoid liability by shifting the task of disposal, in this case to the smelter. By leaving the ash with the smelter, the companies rid themselves of the ash, and although the smelter arranged for the disposal of the "baghouse ash," the furnace and smokestack ash allegedly caused the contamination. The court, therefore, holds that the proper inquiry is not whether the companies' act in leaving the ash amounts to a "disposal," but whether the smelter's act in allowing the ash to be scattered by the wind amounts to a disposal. Finally, the court holds that the companies' assertion that they retained ownership of the ash during the reclamation process lacks any factual basis because they provide no authority for the proposition that, at the moment of incineration, the ash contained in the smoke came under the possession and control of the smelter, while they retained ownership of the wire.

Counsel for Plaintiff
Jeffrey D. Dintzer, Joel S. Moskowitz
Gibson, Dunn & Crutcher
333 S. Grand Ave., Los Angeles CA 90071
(213) 229-7000

Counsel for Defendant
Dale Dorfmeier
Borton, Petrini & Conron
T.W. Patterson Bldg.
2014 Tulare St., Ste. 830, Fresno CA 93721
(209) 268-0117