US v. Western Processing Co., Inc., C89-214M

• Decision Date: 22 March 1991
• Docket Number: No. C89-214M,C83-252M and C89-224M.,C89-214M
• Court: U.S. District Court — Western District of Washington
• Parties: UNITED STATES of America and the State of Washington, Plaintiffs, v. The WESTERN PROCESSING COMPANY, INC., et al.; the Boeing Company, et al., Defendants. The BOEING COMPANY, Third-Party Plaintiff, v. A & A ANDERSON TANK SERVICE, LTD., et al., Third-Party and Cross-Claim Defendants. AMERICAN TAR COMPANY, et al., Third-Party Plaintiffs, v. A & A ANDERSON TANK SERVICE, LTD., et al., Third-Party and Cross-Claim Defendants. Jack and Leah PINCHEV, Third-Party Defendants and Third-Party Plaintiffs, v. UNITED STATES of America, and State of Washington, Third-Party Defendants.

761 F. Supp. 713

UNITED STATES of America and the State of Washington, Plaintiffs, v. The WESTERN PROCESSING COMPANY, INC., et al.; the Boeing Company, et al., Defendants.

The BOEING COMPANY, Third-Party Plaintiff, v. A & A ANDERSON TANK SERVICE, LTD., et al., Third-Party and Cross-Claim Defendants.

AMERICAN TAR COMPANY, et al., Third-Party Plaintiffs, v. A & A ANDERSON TANK SERVICE, LTD., et al., Third-Party and Cross-Claim Defendants.

Jack and Leah PINCHEV, Third-Party Defendants and Third-Party Plaintiffs, v. UNITED STATES of America, and State of Washington, Third-Party Defendants.

Nos. C89-214M, C83-252M and C89-224M.

United States District Court, W.D. Washington, at Seattle.

March 22, 1991.

William A. Gould, Perkins Coie, Seattle, Wash., for Boeing Co.

Marcus B. Nash, Stafford, Frey, Cooper & Stewart, Seattle, Wash., for NW Steel Rolling Mills Inc., and NW Steel Rolling Mills Liquidating Trust.

Frederick O. Frederickson, Michael J. Swofford, Graham & Dunn, Seattle, Wash., for Security Pacific Bancorporation Northwest.

Ronald A. Franz, Carney, Stephenson, Badley, Smith & Spellman, Seattle, Wash., for Liquid Waste Disposal Co.

Garmt J. Nieuwenhuis, pro se.

Glen Andrew Anderson, Atty. General's Office, Torts, Olympia, Wash., J. Tanya Barnett, Laurie Sillers-Halvorson, Attorney General's Office, Ecology Div., Olympia, Wash., Jon Peter Ferguson, Atty. General's Office, Tort Claims Div., Seattle, Wash., for Washington State.

Susan L. Barnes, U.S. Attorney's Office, Seattle, Wash., David W. Zugschwerdt, U.S. Dept. of Justice, Environment and Natural Resources Div., Washington, D.C., for U.S.

Peter H. Haller, Ater, Wynne, Hewitt, Dodson & Skerritt, Seattle, Wash., for American Tar Co., Atlantic Richfield Co., Bethlehem Steel Corp., Chevron U.S.A., Inc., Flecto Coatings Ltd., John Fluke Mfg. Co. Inc., Heath Tecna Aerospace Co., Morton Thiokol Inc., Pacific Propellor Inc., Safety Kleen Inc., Seattle Times Inc., Pittsburgh & Midway Coal Mining Co., Western Pneumatic Tube Co., and Nortar Inc.

Jeffrey B. Wihtol, Portland, Or., Peter H. Haller, Ater, Wynne, Hewitt, Dodson & Skerritt, Seattle, Wash., for American Tar Co.

Larry Bruce Alexander, Seattle, Wash., for Widing Transp. Inc.

John R. Allison, Betts, Patterson & Mines, Seattle, Wash., for Crosby & Overton Inc.

Lisa M. Stone, Stoel, Rives, Boley, Jones & Grey, Seattle, Wash., Kevin Q. Davis, Stephen S. Walters, Stoel, Rives, Boley, Jones & Grey, Richard D. Bach, Portland, Or., for Precision Castparts Corp., International Controls Corp. and Radiation Intern.

Marc A. Bateman, Richard M. Barney, Jr., Barney & McAdams, Seattle, Wash., for Ace Galvanizing Co. and Pontius Trucking.

Richard John Watkins, Cable, Langenbach, Henry, Watkins & Kinerk, Seattle, Wash., for Ryan & Haworth Co.

James Morton Beecher, Hackett, Beecher & Hart, Seattle, Wash., RSR Corp. and Scott Galvanizing Co., Inc.

Robert Farnum Bakemeier, Jeffrey Wayne Leppo, Jeanette DiScala McGraw, Bogle & Gates, Seattle, Wash., for Lockheed Shipbuilding & Const. Co., and Davis Walker Corp.

Clark J. Davis, Davies Pearson P.C., Tacoma, Wash., for Bayside Waste Hauling & Transp. Co.

Robert Jerome Grenier, Seattle, Wash., for Amalgamated Services Inc. Victoria Jensen Bjorkman, Lawrence E. Hard, LeSourd & Patten, P.S., Seattle, Wash., for Union Oil Co. of Cal., GATX Tank Storage Terminal Corp., Northwest Tank Service, and Canadian Forest.

Jerry H. Kindinger, James M. Shaker, Sharon J. Bitcon, Ryan, Swanson & Cleveland, Seattle, Wash., for Lee & Eastes Tank Lines, Inc., Inland Transp. Co., Inc., Pay 'N Save Corp., and South Center Oil, Inc.

John P. Lycette, Jr., Seattle, Wash., for National Transfer, Inc.

Richard Lee Sessions, Seattle, Wash., for Scott Galvanizing Co., Inc.

Benjamin Gould Porter, George, Hull & Porter, Seattle, Wash., for Color Tech, Inc., and Asko Processing, Inc.

Joel Sherwood Summer, Univar Corp. Legal Dept., Seattle, Wash., for Univar Corp. and Pacific Resins & Chemicals, Inc.

Scott A. Smith, Short, Cressman & Burgess, Seattle, Wash., for Tree Island Steel Co., Ltd.

Terence K. McGee, Thomas Anderson Sherwood, McGee & Reno, Seattle, Wash., for Continental Can Co.

Robert J. Downey, Law Offices of John Lockie, Seattle, Wash., for Norfin, Inc.

Norfin Inc., Donald L. Sneelman, c/o Herb Lakefish, NF Corp., pro se.

C. Stan Webert, Seattle, Wash., for Coastal Tank Cleaning Services, Inc.

William D. Maer, Heller, Ehrman, White & McAuliffe, Seattle, Wash., for Anchor Post Products, Canron, Inc., and Westak-North.

Shane Cornelius Carew, Ronald A. Franz, Carney, Stephenson, Badley, Smith & Spellman, Seattle, Wash., for Quigg Bros-McDonald, Inc., Jack Pinchev and Leah Pinchev.

Preston Niemi, Seattle, Wash., for A J Zinda Co.

Dennis Smith, Janet E. McKinnon, Wilson, Smith, Cochran & Dickerson, Jeffrey Lynn Carey, Seattle, Wash., for Pozzi Bros., and Lumber Trucking Service.

James T. Johnson, Seattle, Wash., for Tacoma Hauling, Inc., Tacoma Hauler/Gunter Bros. and Tacoma Hauling/Jack Creager Trucking.

Gary Michael Abolofia, Bellevue, Wash., for Culligan Water Service.

Robert Farnum Bakemeier, Jeffrey Wayne Leppo, Jeanette DiScala McGraw, Seattle, Wash., for McMillan Bloedel.

William A. Helsell, Helsell, Fetterman, Martin, Todd & Hokanson, Seattle, Wash.

David Utevsky, Cynthia R. First, Foster Pepper & Shefelman, Seattle, Wash., for Hearst Corp.

ORDER DENYING GATX'S MOTION FOR SUMMARY JUDGMENT AND GRANTING BOEING'S MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST GATX

McGOVERN, District Judge.

INTRODUCTION

The issues addressed in this order arise from several motions.

First, GATX moved for summary judgment. Boeing then responded by filing its own cross-motion for partial summary judgment against GATX. GATX then filed its reply in support of its own motion and responding to the arguments made in Boeing's Response/Cross-Motion. Boeing then filed its reply.

GATX then filed its motion to strike exhibits to Boeing's reply brief, or alternatively for leave to file supplemental pleading, i.e., the memorandum in support of the motion to strike.

The Court will first summarize the arguments presented then proceed with its analysis and conclusion.

MOTION OF GATX

GATX seeks dismissal from this lawsuit, dismissal of the claims against it with prejudice, and judgment pursuant to Fed.R. Civ.P. 54(b). This summary judgment is sought based on GATX's contention that petroleum was the only GATX-generated waste that ended up at Western Processing, and the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) specifically excludes such waste from its coverage.

GATX contends that the sludge consisting of petroleum residue, sand, and rust from its petroleum storage tanks, which was removed by Ryan & Haworth, a tank cleaning company, and disposed of at Western Processing, is excluded from CERCLA coverage by the "petroleum exclusion."

The exclusion of petroleum is found in the definition section where the term "hazardous substance" is defined:

... The term hazardous substance does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance....

42 U.S.C. § 9601(14).

GATX argues that the petroleum exclusion applies to petroleum and all of its components and additives, citing Wilshire Westwood Associates v. Atlantic Richfield Corp., 881 F.2d 801 (9th Cir.1989). The Wilshire court analyzed the plain meaning of the statute, post-enactment legislative history, and the EPA's interpretation to arrive at its conclusion:

We rule that the petroleum exclusion in CERCLA does apply to unrefined and refined gasoline even though certain of its indigenous components and certain additives during the refining process have themselves been designated as hazardous substances within the meaning of CERCLA.

881 F.2d at 810. The Court reasoned that, pursuant to the standards of statutory construction,

the petroleum exclusion requires us to exclude gasoline, even leaded gasoline, from the term "hazardous substance" for purposes of CERCLA. Any other construction ignores the plain language of the statute and renders the petroleum exclusion a nullity.

881 F.2d at 804. The court also noted that the Superfund Amendments and Reauthorization Act of 1986 (SARA), created a separate response program for petroleum leaking from underground storage tanks.

Thus, under these authorities, argues GATX, since it only produced petroleum waste that was deposited at Western Processing, it should be dismissed from this case. After dismissing the federal claims, the court will then lack jurisdiction over the pending state claims, and they should be dismissed as well.

MOTION OF BOEING

Boeing argues that GATX's motion should be denied because GATX's wastes were sludge and rinse water containing hazardous substances, and not petroleum; GATX's wastes are thus not subject to the petroleum exclusion.

While the Wilshire Westwood court may have reasoned that gasoline was included in the petroleum exclusion, even though it contained components that are designated hazardous substances under CERCLA, Boeing argues that

neither the Ninth Circuit in Wilshire Westwood nor any other court has ever applied the petroleum exclusion to a substance that was not primarily a useable petroleum product such as fuel or oil. In fact, even useable petroleum products that have some market value, such as waste oil, have been found to fall outside of the exclusion. See Washington v. Time Oil Co., 687 F.Supp. 529, 532 (W.D. Wash.1988).

Boeing contends that GATX's wastes were not useable petroleum products and that they contained certain hazardous substances. Ken L. Haworth, the former president of the company that transported GATX's wastes to Western Processing testified that the sludge and washwater were not useable products. (Haworth dep. at 18, 28.)

Boeing points to an EPA interpretation in a Final Rule published April 4, 1985 stating:

EPA

...