ELR Citation: ELR 20976
No(s). s. C89-214M et al (W.D. Wash. Mar 22, 1991)

The court holds that the petroleum exclusion in §101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not apply to defendant's tank bottom sludge, which is a contaminated waste product, not a petroleum fraction, under CERCLA. A defendant in this CERCLA contribution action, claiming that petroleum was the only waste it generated that was disposed of at the Western Processing facility, moved for summary judgment on the grounds that CERCLA's petroleum exclusion precludes contribution liability. The court first notes that finding defendant's tank bottom sludge a contaminated waste product not eligible for exclusion under CERCLA is consistent with Environmental Protection Agency (EPA) guidance on the subject of tank bottoms. According to EPA documents, oil to which listed CERCLA substances have been added that is cleaned up for eventual disposal is a waste not within the petroleum exclusion. The evidence shows that defendant's tank bottom material was being hauled away for disposal, not for reuse. The court next finds undisputed evidence that defendant's tank bottom material contains substances not added at the refinery as part of the process of fractional distillation of petroleum, including rust-like scale corrosion. Although no evidence was presented to establish that the sludge contained chromium or nickel, both listed hazardous substances under CERCLA, defendant did not offer rebuttal to evidence that the sludge contained occluded carbon with lead and polynuclear aromatic hydrocarbons, also listed hazardous substances under CERCLA. Moreover, the court holds that although defendant is in the best position to prove the composition of its steel tanks, it did not do so. Further, the concentrations of listed substances in the sludge exceed those normally found in refined petroleum products. The court also holds that because CERCLA does not impose any quantitative requirement on the term "hazardous substance," even the rinse water that results from cleaning the contaminated tank bottoms would contain small concentrations of the hazardous compounds in the sludge, making it exempt from the petroleum exclusion.

[Previous decisions in this litigation are published at 20 ELR 20986 and 20990, and 21 ELR 20975.]

Counsel are listed at 21 ELR 20975.