Louisiana-Pacific Corp. v. ASARCO Inc.
| Decision Date | 23 September 1993 |
| Docket Number | 92-35148,Nos. 92-35061,92-35145,LOUISIANA-PACIFIC,92-35144,92-35149 and 93-35152,s. 92-35061 |
| Citation | 6 F.3d 1332 |
| Parties | , 62 USLW 2188, 23 Envtl. L. Rep. 21,504 CORPORATION; Port of Tacoma, Plaintiffs-Appellees, v. ASARCO INCORPORATED, Defendant-Third-Party Plaintiff-Appellant, v. William FJETLAND; B & L Trucking and Construction Co., Inc.; Industrial Mineral Products, Inc.; Murray Pacific Corporation; Portac, Inc.; Cascade Timber Company; Executive Bark Inc.; Wasser & Winters Company; Eagle Trucking, Inc., Third-Party Defendants-Appellees.CORPORATION, Plaintiff, v. CASCADE TIMBER COMPANY, Third-Party Defendant-Counter-claimant-Appellant, v. ASARCO INCORPORATED, Defendant-Third-Party Plaintiff-Appellee, v. William FJETLAND; B & L Trucking and Construction Co., Inc.; Industrial Mineral Products, Inc.; Murray Pacific Corporation; Portac, Inc., Third-Party Defendants.CORPORATION; Port of Tacoma, Plaintiffs, Portac, Inc., Third-Party Defendant-Counter-Claimant-Appellant, v. ASARCO INCORPORATED, Defendant-Third-Party Plaintiff-Appellee, William Fjetland, et al., Third-Party Defendants.CORPORATION; Plaintiff, v. MURRAY PACIFIC CORPORATION, Third-Party Defendant-Counter-Claimant-Appellant, v. ASARCO INCORPORATED, Defendant-Third-Party Plaintiff-Appellee, William Fjetland, et al., Third-Party Defendants.CORPORATION; Port of Tacoma, Plaintiffs, Wasser & Winters Company, Third-Party Defendant-Counter-Claimant-Appellant, v. ASARCO INCORPORATED, Defendant-Third-Party Plaintiff-Appellee, William Fjetland, et al., Third-Party Defendants.CORPORATION, Plaintiff, and Port of Tacoma, Plaintiff-Appellant, v. ASARCO INCORPORATED, Defendant-Third-Party Plaintiff-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Peter A. Wald and M. Laurence Popofsky, Heller, Ehrman, White & McAuliffe, San Francisco, CA, for defendant-third-party plaintiff-appellant ASARCO, Inc. Jeffrey W. Leppo and Karen M. McGaffey, Bogle & Gates, Seattle, WA, for plaintiff-appellee Port of Tacoma.
Roger Clegg, Acting Asst. Atty. Gen. and Timothy J. Dowling, Environment and Natural Resources Div., U.S. Dept. of Justice, Washington, DC, for amicus curiae.
Appeal from the United States District Court for the Western District of Washington.
Before: WRIGHT, THOMPSON and KLEINFELD, Circuit Judges.
OVERVIEW
This suit arises from the pollution of several sites near the Port of Tacoma ("the Port") by heavy metal contaminants leached from a slag and woodwaste mixture. ASARCO, Inc. ("ASARCO") produced the slag as a by-product of its smelting operations. ASARCO was found liable to the site owners and operators under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Secs. 9601-9626 (1988) ("CERCLA"); the Washington Hazardous Waste Management Act, Wash.Rev.Code Ann. Sec. 70.105.005 et seq. (West 1992) ("the HWMA"); and the Washington Products Liability Act, Wash.Rev.Code Ann. Sec. 7.72.010 et seq. (West 1992) ("the WPLA").
On appeal, ASARCO contends slag is excluded from CERCLA's definition of hazardous substances under the Bevill Amendment, and the jury's finding that slag was a product for WPLA purposes precluded a finding that it was a hazardous substance under the HWMA and CERCLA. It also argues the state statute of limitations had expired on all the state law claims.
ASARCO further contends the district court erred in denying its motion for summary judgment on the HWMA claims because its sales of slag occurred before the HWMA allowed a private cause of action, and the slag sales occurred at a time when Washington regulations excluded "materials in commerce" from the HWMA.
ASARCO also argues that the district court erred by imposing response costs against it under CERCLA for the cleanup of the site known as the "Portac site" because the claimants failed to comply with the National Contingency Plan ("the NCP"); awarding attorney fees and costs under CERCLA which are not recoverable under that statute; awarding loss-of-use damages under the WPLA for loss of use of the Portac site; and making various awards of attorney fees, costs, and prejudgment interest under state law.
Finally, ASARCO argues that it is entitled to a new trial because the district court erred in making rulings that affected the jury's verdict on the question of comparative fault. In support of this argument it contends the district court erred by refusing to admit evidence of the plaintiffs' violations of the permit requirements of the Clean Water Act, 33 U.S.C. Sec. 1342(p) (1988); refusing to instruct the jury that evidence of violations of the Washington Water Pollution Control Act, Wash.Rev.Code Ann. Sec. 90.48.010 et seq. (West 1992) ("the WPCA"), was evidence of negligence; and giving erroneous jury instructions under the HWMA.
The plaintiffs cross-appeal. They contend the district court erred in reducing their attorney fees under CERCLA by the percentage of comparative fault assigned to them. In addition, they contend the district court erred in determining that their nuisance claims were preempted by the WPLA and in dismissing their claims under the Washington Model Toxics Control Act, Wash.Rev.Code Ann. Sec. 70.105D.010 et seq. (Amended 1993) ("the MTCA").
We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm the award of damages and costs under CERCLA. We reverse the award of attorney fees under CERCLA, the finding of liability under the HWMA, and the award of loss-of-use damages under the WPLA. Because the remaining WPLA damages and costs are less than the CERCLA damages and costs, which we uphold, and are subsumed within the CERCLA damage award, we do not decide ASARCO's challenges to the WPLA damage award. Because of a recent amendment to the MTCA We do not decide the other issues raised by the plaintiffs' cross-appeal because those issues are rendered moot by our decisions regarding CERCLA response costs, attorney fees and costs.
we reverse the district court's dismissal of the plaintiffs' claims under that statute. Although the damages recoverable under the MTCA might not exceed the damages recoverable under CERCLA, a question on which we express no opinion, attorney fees are recoverable under the MTCA. Accordingly, we remand the MTCA claims to the district court.
ASARCO has been smelting copper from copper ore at its smelter near Tacoma since 1905. Smelting separates copper out of copper ore and produces large amounts of a by-product called slag. For many years ASARCO dumped most of its slag into Commencement Bay. It had an agreement with the Metropolitan Park District of Tacoma to maintain a breakwater at that site.
In about 1973, ASARCO embarked on a plan to develop a market for its slag. It contracted with Black Knight, Inc. ("Black Knight") to take all of ASARCO's slag and resell what it could. Black Knight decided to market the slag for use as "ballast" in logyards. The logyards used the slag essentially like gravel, to provide firmer ground. This made the storage of logs and the operation of heavy equipment easier. The logyards would use a load of slag until it became too mixed together with woodwaste and other debris. They would then have it hauled away and put down a new load. Beginning in 1978, the six logyards involved in this suit hauled their slag/woodwaste to the B & L Landfill.
In 1980, the Environmental Protection Agency ("the EPA") found high concentrations of heavy metals in water runoff from one of the Murray-Pacific logyards. The EPA turned its findings over to the Washington Department of Ecology ("the WDOE"). The WDOE determined that slag was the likely cause of the contamination. Over the course of the next several years the WDOE sent letters, made phone calls, and held meetings with representatives of the affected sites, but it took no formal action. In 1986, WDOE began formally requiring cleanups. This case concerns who will bear the cost of these cleanups. 1
The first party to file suit was Louisiana-Pacific Corp. ("Louisiana-Pacific"). It sued ASARCO for response costs for the cleanup of its logyard and for contribution or indemnity for its liability for the cost of cleanup of the B & L Landfill. It brought the suit under CERCLA. ASARCO counterclaimed against Louisiana-Pacific under CERCLA and state law.
ASARCO also brought third-party claims against several other logyards that had disposed of slag/woodwaste mix at the B & L Landfill. It also sued William Fjetland, the owner and operator of B & L Landfill and B & L Trucking (which had transported the mix), and L-Bar Products, Inc. ("L-Bar"), which had bought assets of Industrial Mineral Products ("IMP"), the parent company of Black Knight. Some of these third-party defendants then counter-claimed against ASARCO asserting claims under CERCLA, the HWMA, the MTCA, and the WPLA. These parties also asserted common-law claims against ASARCO. The common-law claims included trespass, nuisance, negligence, negligent The Port, which owned some of the logyard sites, then sued ASARCO for response costs under CERCLA and state law, and for indemnity and contribution for cleaning up the B & L Landfill. ASARCO filed counter-claims and cross-claims. Later ASARCO amended its third-party complaint in the Louisiana-Pacific action to include claims against another Fjetland company and IMP. 2
misrepresentation, fraud and breach of warranty.
On ASARCO's motion, the district court dismissed all the state common-law claims except trespass, on the ground that they were preempted by the WPLA. It also dismissed the MTCA claims because at that time the MTCA did not provide for a private cause of action. 3 Finally, the court dismissed ASARCO's claims against IMP and L-Bar. 4 The remaining state law claims (HWMA, WPLA and trespass) were tried to a jury. The CERCLA...
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