ELR Citation: ELR 20547
No(s). CIV 89-0188 PHX RCB (D. Ariz. Oct 30, 1990)

In the first of two decisions in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) response action involving the Hassayampa landfill near Phoenix, Arizona, the court holds that Arizona's administration of its manifest system for hazardous waste disposal did not preclude transporters from selecting sites under CERCLA §107(a)(4). Evidence showed that in 1979, the Arizona Department of Health Services (ADHS) issued a cease and desist order prohibiting the dumping of industrial wastes in Phoenix landfills, and thereafter agreed to use the Hassayampa landfill as the only site in Maricopa County eligible to receive industrial wastes. The court finds that although manifests were only used at Hassayampa and the Hassayampa landfill was the only ADHS-approved Maricopa County landfill for the disposal of industrial wastes, transporters and generators had other alternative sites available for disposal. Thus, the court holds that the enforceability of the manifests is irrelevant, since the transporters and generators, not the state of Arizona, selected Hassayampa for disposal of particular loads of waste. The court notes that the transporters and generators submittal of manifests evidences their selection of the Hassayampa site. The evidence supports this conclusion since the transporter and/or generator had to choose Hassayampa before it filled out a manifest form. Only after they made this choice would the ADHS be required to approve or deny the manifest and allow a transporter to dispose of the waste at Hassayampa. The submittal of a manifest evidences the selection of a site.

Counsel for Plaintiffs
Thomas W. McCann
Brown & Bain
P.O. Box 400, Phoenix AZ 85001
(602) 351-8000

Counsel for Defendants
Linda Pollock, Ass't Attorney
Civil Division
Department of Law, 1275 W. Washington, Phoenix, AZ 85007
(602) 542-1610