ELR Citation: ELR 21423
No(s). 93-CV-1005-J (D. Wyo. Apr 25, 1995)

The court holds that an oil field contractor, which sold oil skimmings to a reclamation company whose property poses an imminent and substantial endangerment to human health and the environment, is liable under §7003 of the Resource Conservation and Recovery Act (RCRA) as a solid waste transporter and generator. The U.S. Environmental Protection Agency (EPA) ordered the contractor to secure the reclamation site and prepare a workplan for waste removal, but the contractor refused to comply with the order. The court first rejects the contractor's argument that because it transported materials to the reclamation site pursuant to a contract with another company and because EPA's complaint was allegedly not sufficient to allege the contractor's liability as a generator, the contractor may not be found liable under RCRA. RCRA liability is not limited to generators and transporters of solid and hazardous wastes, but also includes persons who have contributed or are contributing to the handling, storage, treatment, transportation, or disposal of solid or hazardous waste. The court also rejects the contractor's argument that it may only be liable under RCRA if it actually selected the site or disposal facility. The court finds that the contractor was a contributor to the handling, storage, treatment, transportation, or disposal of solid or hazardous waste within the meaning of RCRA, but notes that the contractor will have an opportunity in the next phase of the litigation to pursue defenses that it was acting solely pursuant to the terms of a contract when it delivered materials to the site and that it lacked control or authority over waste disposal decisions. The court rejects the contractor's argument that the government's complaint did not sufficiently allege the contractor's RCRA generator liability. Furthermore, the court rejects the contractor's argument that the materials it sold to the reclamation company were not discarded materials, and thus not solid waste. The contractor clearly intended to rid itself of a disposal problem when it sold the oil skimmings to the reclamation company. The court notes that it has previously determined that wastes disposed of at the site contributed to the substantial and imminent endangerment of human health and the environment, and holds that the contractor is, therefore, liable under RCRA §7003 as a solid waste transporter and generator. The court, however, denies summary judgment on whether the contractor had an objectively reasonable good-faith belief that it was not required to comply with the EPA compliance order and whether a penalty is appropriate. Genuine issues of material fact exist on both these issues. Finally, the court rejects the contractor's argument that it was a common carrier covered by RCRA's rail exemption. The deposition testimony indicates that the contractor was a contract carrier.

[Related decisions are published at 24 ELR 21553 and 21555.]

Counsel for Plaintiff
Myles E. Flint
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
James W. Owens, James R. Bell
Murane & Bostwick
201 N. Wolcott, Casper WY 82601
(307) 234-9345