Dept. Toxic Substance v. Interstate Non-Ferrous

• Decision Date: 25 May 2000
• Docket Number: No. CV-F-97-5016 OWW LJO.,CV-F-97-5016 OWW LJO.
• Citation: 99 F.Supp.2d 1123
• Court: U.S. District Court — Eastern District of California
• Parties: DEPARTMENT OF TOXIC SUBSTANCES CONTROL, Plaintiff, v. INTERSTATE NON-FERROUS CORPORATION, et al.; Barstow Truck Parts and Equipment Co., Inc.; Steinmeyer Corporation dba Silver Steel & Metal Company; Alpert & Alpert Iron & Metals, Inc.; G. Harris International, Inc.; San Fernando Motors; Socal Metals, Inc.; Augustine Metals, Inc.; Herman Berkovics; Metal Doctors, Inc. dba Harley Metals Co.; United States of America; and the Estate of William C. Huffman, deceased; Defendants. And Related Cross-Actions

99 F.Supp.2d 1123

DEPARTMENT OF TOXIC SUBSTANCES CONTROL, Plaintiff, v. INTERSTATE NON-FERROUS CORPORATION, et al.; Barstow Truck Parts and Equipment Co., Inc.; Steinmeyer Corporation dba Silver Steel & Metal Company; Alpert & Alpert Iron & Metals, Inc.; G. Harris International, Inc.; San Fernando Motors; Socal Metals, Inc.; Augustine Metals, Inc.; Herman Berkovics; Metal Doctors, Inc. dba Harley Metals Co.; United States of America; and the Estate of William C. Huffman, deceased; Defendants. And Related Cross-Actions

No. CV-F-97-5016 OWW LJO.

United States District Court, E.D. California.

May 25, 2000.

MEMORANDUM DECISION AND ORDER RE PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING APPLICATION OF CERCLA SECTION 127

WANGER, District Judge.

I. INTRODUCTION

Plaintiff, the State of California Department of Toxic Substances Control ("DTSC"), brings this motion for partial summary judgment that newly enacted CERCLA Section 127, the Superfund Recycling Equity Act ("the Act"), a rider to H.R. 3194, the 2000 Consolidated Appropriation Act, signed into law by the President November 29, 1999, see Pub.L. No. 106-113, 113 Stat. 1501A-598 (1999), does not apply to this pending action. The issue of the Act's application to pending cost-recovery actions for past transactions has not been decided in this Circuit. Three oppositions were filed on behalf of Defendants and Third Parties; the three lead defendants are: Augustine Metals, Inc., Certain Original Sellers ("Sellers"), and the Steinmeyer Corporation. The Institute of Scrap Recycling Industries, Inc. ("Amicus") filed an opposition as amicus curiae.

II. LEGAL STANDARD

Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." FED. R. CIV. P. 56(c); see Maffei v. Northern Ins. Co. of New York, 12 F.3d 892, 899 (9th Cir.1993). A genuine issue of fact exists when the nonmoving party produces evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir.1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-56, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Plaintiffs move for "partial summary judgment regarding application of Section 127." Such a request is more appropriately brought as a motion for summary adjudication:

If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court ... shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted.

FED. R. CIV. P. 56(d). An order under Rule 56(d) narrows the issues and enables the parties to recognize more fully their rights, yet it permits the court to retain full power to completely adjudicate all aspects of the case when the proper time arrives. See 10A CHARLES A. WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2737, at 455-56 (2d ed.1983).

The procedure under Rule 56(d) is designed to be ancillary to a summary judgment motion. Unlike Rule 56(c), which allows for interlocutory judgment on a question of liability, Rule 56(d) does not authorize the entry of a judgment on part of a claim or the granting of partial relief. Id., § 2737, at 457.

The obligation imposed on the court by Rule 56(d) to specify the uncontroverted material facts is technically compulsory. See Woods v. Mertes, 9 F.R.D. 318, 320 (D.Del.1949). However, if the court determines that identifying indisputable facts through partial summary judgment would not materially expedite the adjudicative process, it may decline to do so. See 10A CHARLES A. WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, supra, § 2737, at 460. Here, the inquiry does not depend on facts. The facts attending the enactment of Section 127 are not disputed.

The interpretation of legislation generally presents an issue of law appropriate for resolution by the Court as a matter of law. See City of St. Louis v. Department of Transportation, 936 F.2d 1528, 1535 (8th Cir.1991) (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 864-66, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)); United States v. Carr, 66 F.3d 981, 983 (8th Cir.1995); United States v. Moore, 38 F.3d 977, 979 (8th Cir.1994); Prudential Ins. Co. v. Rand & Reed Powers Partnership, 972 F.Supp. 1194, 1202 (N.D.Iowa 1997) (citing Carr and Moore for the principle: "[S]tatutory interpretation-particularly interpretation of the effect of a statute where facts are undisputed-is primarily a legal question amenable to summary judgment."). A motion that presents only a question of law is appropriately resolved on summary adjudication. See Hulmes v. Honda Motor Co., Ltd., 924 F.Supp. 673, 678 (D.N.J. 1996).

III. PROCEDURAL HISTORY

On January 13, 1997, DTSC filed this suit for cost recovery and declaratory relief under CERCLA sections 107(a) and 113(g) for response, removal and remedial costs resulting from a release or threat of release of hazardous substances, and for injunctive relief to abate conditions at or around the site at Mojave, California, known as the "Mobile Smelting Property." Of the eleven Defendants, ten are scrap metal dealers who brought scrap metal to the Mobile Smelting Site to have it burned or smelted in order to recover the metal. Two of the ten have settled with Plaintiff. The eleventh, the United States is alleged to have sold the scrap materials to the scrap metal dealers.

Two years after the suit was filed, Congress passed the Act. See Pub.L. No. 106-113, 113 Stat. 1501A-598 (1999). Section 127, "SUPERFUND RECYCLING EQUITY," is found in Title VI:

(a) PURPOSES.—The purposes of this section are -

(1) to promote the reuse and recycling of scrap material in furtherance of the goals of waste minimization and natural resource conservation while protecting human health and the environment;

(2) to create greater equity in the statutory treatment of recycled versus virgin materials; and

(3) to remove the disincentives and impediments to recycling created as an unintended consequence of the 1980 Superfund liability provisions.

§ 6001(a). To achieve these ends, Section 127 clarifies liability:

(b) CLARIFICATION OF LIABILITY UNDER CERCLA FOR RECYCLING TRANSACTIONS. -

(1) CLARIFICATION.—Title I of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. § 9601 et seq.) Is amended by adding at the end the following new section:

"SEC. 127 RECYCLING TRANSACTIONS."

"(a) LIABILITY CLARIFICATION. -"

"(1) As provided in subsections (b), (c), (d), and (e), a person who arranged for recycling of recyclable material shall not be liable under sections 107(a)(3) or section 107(a)(4) with respect to such material."

1501A-598-99 (emphasis added). The effect of Section 127 is to exempt from arranger liability and transporter liability under CERCLA §§ 107(a)(3) and (a)(4), set forth below, recyclers who arrange for or transport recyclable material.

In general, CERCLA liability attaches when a defendant is within one of the four classes of parties subject to CERCLA's liability provisions. See Long Beach Unified School Dist. v. Dorothy B. Godwin California Living Trust, 32 F.3d 1364, 1367 (9th Cir.1994).¹ One such "class" is an "arranger;" who:

by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances.

42 U.S.C. § 9607(a)(3). A second class is, a "transporter;" who:

accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance.

42 U.S.C. § 9607(a)(4).² The reason the four "classes" are listed is so that liability "reach[es] back through the causal chain from those who ultimately dispose of a hazardous substance to those who transport and generate it." Pneumo Abex Corp. v. High Point, Thomasville and Denton Railroad Co., 142 F.3d 769, 774 (4th Cir.1998).

Section 127(a)(1) exempts recyclers of "recyclable materials." "Recyclable material" is defined as:

scrap paper, scrap plastic, scrap glass, scrap textiles, scrap rubber (other than whole tires), scrap metal, or spent leadacid, spent nickel-cadmium, and other spent batteries, as well as minor amounts of material incident to or adhering to the scrap material as a result of its normal and customary use prior to becoming scrap.

See id. at § 127(b). Whether a transaction is "arranged for recycling" depends on the type of recyclable material: 1) scrap paper, plastic, glass, textiles, or rubber, see id. at § 127(c); 2) scrap metal, see id. at § 127(d); or 3) batteries, see id. at § 127(e). The burden is on the person who arranged for a transaction, by selling recyclable material or by otherwise arranging for the recycling of recyclable material, to demonstrate by a preponderance of the evidence that the statutory criteria are met. See id. §§ 127(c)-(e).

Title VI expressly addresses the temporal reach of Section 127:

EFFECT ON PENDING OR CONCLUDED ACTIONS.-The exemptions provided in this section shall not affect any concluded judicial or administrative action or any pending judicial action initiated by the United States prior to enactment of this section.

Id. § 127(i) at 113 Stat. 1501A-602. This provision does not expressly address pending judicial actions filed by par...