ELR Citation: ELR 20549
No(s). CIV 89-0188 PHX RCB (D. Ariz. Oct 30, 1990)

In the second 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 the state is liable under CERCLA as a generator but not as an operator of the Hassayampa site. The record reveals that although Maricopa County, Arizona, owned the actual site, the state of Arizona participated in a variety of management activities. After addressing numerous motions to strike language from affidavits, the court turns to the parties' motions for summary judgment as to the state's liability as a generator. The court first holds that plaintiffs presented sufficient evidence of the state's CERCLA generator liability for the court to grant summary judgment. The state disposed of dichlorodimethyl silane and containers that formerly held parathion, guthion, lannate, and ambush. Plaintiffs showed that dichlorodimethyl silane has ignitable characteristics under the Resource Conservation and Recovery Act; that the chemical is a "DOT flammable liquid"; that paration and guthion are listed hazardous substances; that lunnate contains a listed hazardous substance; and that the pesticide containers disposed at Hassayampa, although listed as empty, were not properly cleaned to qualify as empty. The state failed to rebut this evidence.

Turning to the state's CERCLA operator liability, the court holds that, for purposes of summary judgment, it is unable to unequivocally determine whether Arizona was an operator of Hassayampa within the meaning of CERCLA. The court finds that Arizona's participation at Hassayampa was significant. It conceptualized the use of Hassayampa for hazardous waste disposal, requested that Maricopa County agree to open Hassayampa and allow-dumping, co-developed the pit design to be used at Hassayampa, and received regular reports and conducted periodic on-site inspections. Through the use of the manifests at Hassayampa, the state controlled the actual disposal of the wastes. It determined the types of wastes to be disposed of in each of the particular pits, and had the ability to discover and abate any harm. Finally, the state derived a limited benefit from the opening of the site, since it averted a problem of alternative disposal sites after the closing of the other Phoenix landfills.

However, the court also finds that, although the state's participation was persuasive, many of the activities undertaken were regulatory in nature. The county absolutely controlled several important management activities, including designing and constructing the pit scheme, supervision of the facility, hiring and managing employees, and ultimate closure of the facility. Because plaintiffs have not presented sufficient evidence that the state controlled enough management activities for the state to be an operator under CERCLA, summary judgment is inappropriate. The question of whether Arizona is more appropriately considered the regulator or the operator of the Hassayampa landfill is best left to a trial on the merits.

Finally, the court holds that the state has presented adequate evidence that it did not share profits and losses with Maricopa County from operation of the site sufficient to establish a joint venture between the state and county. Rather, the state's conduct fell within its general authority and was valid.

Counsel located at 21 ELR 20547.