ELR Citation: ELR 21504
No(s). 92-35061 (9th Cir. Sep 23, 1993)

The court holds that slag waste is subject to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) if the slag is covered by any subsection of CERCLA §101(14)'s definition of "hazardous substance," notwithstanding §101(14)(C)'s incorporation of the Resource Conservation and Recovery Act's (RCRA's) Bevill Amendment. Owners and operators of logyards contaminated by slag, which was used as a gravel substitute, sued the slag's generator for cleanup costs under CERCLA and various Washington State statutes. The court first holds that slag can be a CERCLA hazardous substance despite §101(14)(C)'s incorporation of RCRA's Bevill Amendment. That amendment exempts slag and certain other mineral wastes (Bevill waste) from RCRA regulation. The court follows Eagle-Picher Industries v. EPA, 15 ELR 20460 (D.C. Cir. 1985), holding that the specific exemption for Bevill waste in subsection C of §101(14) applies only to that subsection and, thus, that those Bevill wastes included by other subsections of §101(14) are CERCLA hazardous substances. The slag at issue includes metals that are hazardous substances under §101(14)(A), (B), and (D) because the U.S. Environmental Protection Agency (EPA) has listed them pursuant to CERCLA at 40 C.F.R. §302.4, and listed them under pertinent sections of the Federal Water Pollution Control Act. The court holds that, even assuming §101(14) is ambiguous, the court must defer to EPA's interpretation that the Bevill Amendment exception in §101(14)(C) applies only to that subsection.

Next, the court holds that the slag, a byproduct of a metallurgical process, can be both a waste for purposes of CERCLA and a product for purposes of the Washington Products Liability Act (WPLA). At trial, the jury had concluded that the slag met the WPLA definition of "product." The slag had a nominal commercial value and its producer wanted to get rid of it whether it could be sold or not.

The court next affirms the district court's ruling that a plaintiff complied substantially with the national contingency plan's (NCP's) notice-and-comment provisions. The parties agreed that Ninth Circuit precedent requires substantial, rather than strict, compliance with the NCP. The court holds that its review of mixed questions of law and fact is de novo, but that specific district court factual findings will be reviewed for clear error. The district court did not clearly err in finding that the plaintiff did not make its final selection of a remedy until after the cleanup plan was discussed in at least two meetings that occurred after preparation of a feasibility study.

Next, the court reverses the district court's award of attorney fees under CERCLA, relying on Stanton Road Associates v. Lohrey Enterprises, 23 ELR 20540 (9th Cir. 1993). The court, however, affirms the district court's award of other litigation expenses, which are generally allowed to prevailing parties under Federal Rules of Civil Procedure 54(d).

The court next reverses the district court's award of attorneys fees and prejudgment interest under the Washington Hazardous Waste Management Act (WHWMA). The court holds that an amendment to the WHWMA that created a private right-of-action was not retroactive. Continued leaching from the slag is not actionable because "no court has allowed a recovery for an ongoing injury under the WHWMA." The provision of the WHWMA at issue is analogous to RCRA §7002.

Next, the court holds that the WPLA precludes recovery of damages for lost use of property. The court then reverses the district court's dismissal of the plaintiffs' claims under the Washington Model Toxics Control Act (WMTCA). The district court had correctly ruled that the WMTCA did not create a private cause of action. During the pendency of the appeal, however, the Washington legislature retroactively amended the WMTCA to provide a private cause of action and the court finds no logical reason not to apply the amendment to cases currently before the court. The plaintiffs did not waive the right to appeal dismissal of their WMTCA claims by failing to raise them in appellate briefs because, when the legislature changed the law, the plaintiffs promptly brought the change to the court's attention, and both sides had a full and fair opportunity for briefing.

The court rejects as moot plaintiffs' argument that the district court erred in dismissing their nuisance claims. Any damages recoverable under those claims are subsumed within the recovery the court upheld under CERCLA.

[A related decision in this action is published at 23 ELR 21503. A prior decision is published at 20 ELR 21452.]

Counsel for Plaintiff-Appellee
Russell C. Love
Thorsrud, Cane & Paulich
1325 Puget Sound Plaza, Ste. 1350, Seattle WA 98101
(206) 386-7755

Counsel for Defendant-Appellant
Peter A. Wald
Heller, Ehrman, White & McAuliffe
333 Bush St., San Francisco CA 94104
(415) 772-6000

Before Wright and Kleinfeld, JJ.