Kaiser Aluminum & Chemical Corp. v. Catellus Development Corp.

• Decision Date: 08 October 1992
• Docket Number: No. 92-15506,92-15506
• Citation: 976 F.2d 1338
• Parties: , 61 USLW 2226, 23 Envtl. L. Rep. 20,020 KAISER ALUMINUM & CHEMICAL CORPORATION, a Delaware Corporation; James L. Ferry & Son Inc., a California corporation, Third-Party Defendants-Appellees, v. CATELLUS DEVELOPMENT CORPORATION, Defendant-Third-Party-Plaintiff-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1338

976 F.2d 1338

35 ERC 1689, 61 USLW 2226, 23 Envtl.

L. Rep. 20,020

KAISER ALUMINUM & CHEMICAL CORPORATION, a Delaware Corporation; James L. Ferry & Son Inc., a California corporation, Third-Party Defendants-Appellees, v. CATELLUS DEVELOPMENT CORPORATION Defendant-Third-Party-Plaintiff-Appellant.

No. 92-15506.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 18, 1992.

Decided Oct. 8, 1992.

Howard M. Hoffman, Sacramento, Cal., for third-party-defendants-appellees.

Sanford Svetcov, Landels, Ripley & Diamond, San Francisco, Cal., for defendant-third-party-plaintiff-appellant.

Appeal from the United States District Court for the Northern District of California.

Before: KOZINSKI and THOMPSON, Circuit Judges, and REA, District Judge. ^*

DAVID R. THOMPSON, Circuit Judge:

Catellus Development Corporation ("Catellus") appeals the dismissal of its third-party complaint against James L. Ferry & Son ("Ferry"). In that complaint, Catellus sought contribution under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601 et seq., for costs incurred in cleaning up a contaminated construction site. We have jurisdiction under 28 U.S.C. § 1291, and we reverse.

FACTS

Catellus's predecessor, Santa Fe Land Improvement Company, sold 346 acres of land to the City of Richmond, California ("Richmond"). Richmond hired Ferry to excavate and grade a portion of the land for a proposed housing development. While excavating the development site, Ferry spread some of the displaced soil over other parts of the property. This soil Richmond sued Catellus to recover part of the cost of removing the contaminated soil from the property. ² Catellus filed a third-party complaint against Ferry for contribution under 42 U.S.C. § 9613(f)(1), alleging that Ferry exacerbated the extent of the contamination by extracting the contaminated soil from the excavation site and spreading it over uncontaminated areas of the property. ³ The district court concluded that Ferry was not a person who could be held liable under CERCLA section 9607(a) and thus dismissed Catellus's complaint for failure to state a claim on which relief could be granted. See Fed.R.Civ.P. 12(b)(6). This appeal followed.

contained hazardous chemical compounds, including paint thinner, lead, asbestos, and petroleum hydrocarbons. ¹

STANDARD OF REVIEW

We review de novo a dismissal under Rule 12(b)(6) for failure to state a claim under. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533 (9th Cir.1984). We take all allegations of material facts pleaded in the complaint as true and construe them in the light most favorable to the plaintiff. Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir.1991). We will affirm a dismissal under Rule 12(b)(6) only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).

DISCUSSION

CERCLA was enacted with two primary purposes in mind. First, Congress intended to provide the federal government with the means to effectively control the spread of hazardous materials from inactive and abandoned waste disposal sites. Anspec Co., Inc. v. Johnson Controls, Inc., 922 F.2d 1240, 1247 (6th Cir.1991). Second, it intended to affix the ultimate cost of cleaning up these disposal sites to the parties responsible for the contamination. Id. We construe CERCLA liberally to achieve these goals. 3550 Stevens Creek Assoc. v. Barclays Bank of Cal., 915 F.2d 1355, 1363 (9th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2014, 114 L.Ed.2d 101 (1991).

To prevail in an action for contribution under CERCLA, a plaintiff must show, among other things, that the defendant falls within one of four classes of persons subject to liability under 42 U.S.C. § 9607(a). See 42 U.S.C. § 9613(f)(1) ("[a]ny person may seek contribution from any other person who is liable or potentially liable under section 9607(a)"); Stevens Creek, 915 F.2d at 1358 (discussing the requirements for recovery in a contribution action under CERCLA). ⁴ This section imposes liability on:

(1) the owner and operator of a vessel or a facility,

(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment ... of hazardous substances owned or possessed by such person (4) any person who ... 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....

by any other party or entity, at any facility ... owned or operated by another ... entity and containing such hazardous substances, and

42 U.S.C. § 9607(a).

We agree with the district court that Catellus has failed to state a claim for contribution against Ferry under sections 9607(a)(1) and (3). Catellus has not alleged that Ferry currently owns or operates the development site. See United States v. Fleet Factors Corp., 901 F.2d 1550, 1554 (11th Cir.1990) (liability under section 9607(a)(1) only attaches to the present owner or operator of a facility), cert. denied, --- U.S. ----, 111 S.Ct. 752, 112 L.Ed.2d 772 (1991). Nor has it alleged that Ferry arranged for the contaminated soil to be disposed of "by any other party or entity" under 9607(a)(3). Ferry disposed of the soil itself by spreading it over the uncontaminated areas of the property. We conclude, however, that Catellus's allegations are sufficient to state a claim against Ferry under sections 9607(a)(2) and (4).

A. Liability Under Section 9607(a)(2)

A defendant may be liable under 9607(a)(2) for the cost of cleaning up a contaminated facility if, "at the time of disposal of any hazardous substance [he] owned or operated [the] facility at which [the] hazardous substances were disposed of." 42 U.S.C. § 9607(a)(2). ⁵

Ferry was not an owner of the facility. The question is whether the allegations of Catellus's complaint are sufficient to show that Ferry was an operator of the facility and that it disposed of a hazardous substance.

1. Operator

CERCLA defines an owner or operator as "any person owning or operating such facility...." 42 U.S.C. § 9601(20)(A). The circularity of this definition renders it useless. United States v. A & N Cleaners and Launderers, Inc., 788 F.Supp. 1317, 1331 (S.D.N.Y.1992). But see Edward Hines Lumber Co. v. Vulcan Materials Co., 861 F.2d 155, 156 (7th Cir.1988) ("The circularity strongly implies, however, that the statutory terms have their ordinary meanings rather than unusual or technical meanings.").

Relying on the Seventh Circuit's decision in Hines, Ferry argues that it cannot be considered an "operator" under section 9607(a)(2). In Hines, a contractor designed and built a wood treatment plant. After the plant was completed, the owner began processing wood for resale. During this process, hazardous materials were released on the site where the plant was located. The owner was forced to clean up the site, and then sued the contractor for contribution as an "operator" of the plant under section 9607(a)(2).

Although the Seventh Circuit affirmed a grant of summary judgment in favor of the contractor, Hines does not stand for the proposition that a contractor can never be liable as an operator under section 9607(a)(2). On the contrary, it is clear from the court's analysis in Hines that the contractor was not liable as an "operator" because, although he designed and built the wood treatment plant, he had no authority to control the day-to-day operation of the plant after it was built; and it was during the operation of the plant that the hazardous materials were released.

We read Hines as reiterating the well-settled rule that "operator" liability under section 9607(a)(2) only attaches if the defendant had authority to control the cause of the contamination at the time the hazardous substances were released into the environment. See Nurad, Inc. v. Hooper & Sons Co., 966 F.2d 837, 842 (4th Cir.1992) (the authority to control the source of Unlike Hines, the activity which produced the contamination in the present case--the excavation and grading of the development site--occurred during, not after, the construction process. We conclude that Catellus's allegations of Ferry's operations on the property tend to show that Ferry had sufficient control over this phase of the development to be an "operator" under section 9607(a)(2). ⁶

the contamination "is the definition of 'operator' that most courts have adopted"); CPC Int'l, Inc. v. Aerojet-General Corp., 731 F.Supp. 783, 788 (W.D.Mich.1989) ("The most commonly adopted yardstick for determining whether a party is an owner-operator under CERCLA is the degree of control that party is able to exert over the activity causing the pollution.").

2. Disposal of Hazardous Materials

Catellus alleges that Ferry excavated the tainted soil, moved it away from the excavation site, and spread it over uncontaminated portions of the property. These allegations are sufficient to support its claim that Ferry disposed of a hazardous substance as the term "disposed of" is used in 42 U.S.C. § 9607(a)(2).

CERCLA defines "disposal" as:

the discharge, deposit, injection, dumping, spilling, leaking, or placing of any ... hazardous waste into or on any land ... so that such ... waste ... may enter the environment ... or be discharged into any ground waters.

See 42 U.S.C. § 9601(29) (adopting the definition set forth in section 1004 of the Solid Waste Disposal Act, 42 U.S.C. § 6903(3)). This definition has been interpreted to include the dispersal of contaminated soil during the excavation and grading...