United States v. A & F Materials Co., Inc.

• Decision Date: 30 March 1984
• Docket Number: Civ. No. 83-3123.
• Citation: 582 F. Supp. 842
• Parties: UNITED STATES of America, People of the State of Illinois, Illinois Environmental Protection Agency, Village of Greenup, Illinois, a municipal corporation, County of Cumberland, Illinois, a municipal corporation, and County of Richland, Illinois, a municipal corporation, Plaintiffs, v. A & F MATERIALS COMPANY, INC., Kenneth C. Ault, Frank A. Jones, R.C.D. Chemicals, Inc., Genet Refining and Recovery, Alva Runyon, Melva Runyon, Kaye L. Ault, Aluminum Company of America, Inc., A-M International, McDonnell Douglas Corporation, Northern Petrochemical Company, Cam-Or, Inc., Petrolite Corporation, Cumberland Laboratories, Inc., and Velma Runyon, Defendants.
• Court: U.S. District Court — Southern District of Illinois

582 F. Supp. 842

UNITED STATES of America, People of the State of Illinois, Illinois Environmental Protection Agency, Village of Greenup, Illinois, a municipal corporation, County of Cumberland, Illinois, a municipal corporation, and County of Richland, Illinois, a municipal corporation, Plaintiffs, v. A & F MATERIALS COMPANY, INC., Kenneth C. Ault, Frank A. Jones, R.C.D. Chemicals, Inc., Genet Refining and Recovery, Alva Runyon, Melva Runyon, Kaye L. Ault, Aluminum Company of America, Inc., A-M International, McDonnell Douglas Corporation, Northern Petrochemical Company, Cam-Or, Inc., Petrolite Corporation, Cumberland Laboratories, Inc., and Velma Runyon, Defendants.

Civ. No. 83-3123.

United States District Court, S.D. Illinois.

March 30, 1984.

Robert Van Heuvelen, Land & Natural Resources Div., Dept. of Justice, Washington, D.C., Bruce Reppert, Robert Simpkins, Asst. U.S. Attys., East St. Louis, Ill., Jane Schulteis, U.S. Environmental Protection Agency, Robert Mueller, Asst. Atty. Gen., State of Ill., Environmental Centrol Div., Chicago, Ill., for plaintiffs.

John P. Lynch, Laurence H. Levine, Mark A. Stegemoeller, Latham, Watkins, Hedlund, Hunter & Lynch, Chicago, Ill., John W. Leskera, Dunham, Boman & Leskera, East St. Louis, Ill., Burton M. Greenberg, London, Greenberg & Pleban, St. Louis, Mo., Max W. Hittle, Jr., Krieg, Devault, Alexander & Capehart, Indianapolis, Ind., S. Richard Heymann, Eric B. Rothenberg, Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., for defendants.

MEMORANDUM AND ORDER

FOREMAN, Chief Judge:

Before the Court is a Motion for Summary Judgment filed by defendant McDonnell Douglas Corporation (MDC). The government's action against MDC is based on the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq. CERCLA imposes liability on generators of hazardous wastes who arrange for the disposal or treatment of their waste by a third party and the waste is posing an actual or threatened harm to the environment. 42 U.S.C. § 9607(a)(3). The government claims MDC arranged for the disposal of spent aluminum etch caustic solution at A & F Material's site in Greenup, Illinois. MDC moves for judgment in its favor arguing the caustic solution is not a "waste," and that it did not "arrange for the disposal or treatment" of the caustic etch solution.

I

The issues presented by the motion are framed by the following scenario. MDC is engaged in the production of jet aircraft at its St. Louis, Missouri facility. The manufacturing process generates a spent caustic solution. On April 7, 1978, MDC issued an invitation to bid for up to 500,000 gallons of its caustic solution. On May 2, 1978, Mr. Kenneth Ault, acting as president of A & F Materials Company, submitted the highest bid at $.072 per gallon and was awarded the contract. From June 20, 1978 to November 20, 1978, A & F was invoiced on eleven occasions for seventeen shipments of caustic solution transported to A & F's Greenup facility at a total cost of approximately $6,000.

A & F Materials operated an oil reclamation process at the Greenup site. A & F would purchase waste oil primarily for ALCOA at two to four cents a gallon and treat it to obtain a portion of reusable oil. However, A & F's process yielded an acidic oil which had to be neutralized before it could be sold. MDC's caustic solution was used to neutralize the acidic oil.

II

Section 9607(a)(3) of CERCLA imposes liability for the releases of hazardous substances into the environment on

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, ... of hazardous substances owned or possessed by such person, by any other party or entity, at any facility owned or operated by another party or entity and containing such hazardous substances, ....

Section 9601(14) of CERCLA defines "hazardous substance" as anything which under the Resource Conservation & Recovery Act (RCRA), 42 U.S.C. § 6903(5), is a "hazardous waste." MDC's first argument is that the spent caustic solution is not a "waste" since it was reused by A & F Materials. Secondly, MDC argues that even if the solution is a waste under the statute and regulations, it did not arrange for the disposal or treatment of the solution.

MDC has stipulated that the caustic solution is "hazardous" as defined by RCRA. The crucial definition of "waste" can be found at 40 C.F.R. § 261.2(b) which states:

An "other waste material" is any solid, liquid, semi-solid or contained gaseous material resulting from industrial, commercial, mining or agricultural operations, or from community activities which:

(1) Is discarded or being accumulated, stored or physically, chemically or biologically treated prior to being discarded; or

(2) Has served its original intended purpose and sometimes is discarded; or

(3) Is a manufacturing or mining by-product and sometimes is discarded.

The government argues a material issue of fact remains in this matter as to whether MDC's spent caustic is a waste under subpart (2). The Court agrees. MDC does not dispute that the caustic solution had served its intended purpose, and there is conflicting evidence in the record as to whether the caustic was sometimes discarded. Officials at MDC testified via deposition that MDC pays to have other waste caustics hauled away. There is no evidence in the record which distinguishes these discarded caustics from the caustics sold to A & F Materials. Also after MDC stopped doing business with A & F, it had to pay to have spent caustic hauled away in January, 1979. Finally,...