ORDER DENYING MOTION FOR SUMMARY JUDGMENT BY THIRD-PARTY DEFENDANT USG INTERIORS, INC.
BRYAN, District Judge.
THIS MATTER comes before the court on the "Motion For Summary Judgment By Third-Party Defendant, USG Interiors, Inc." ("USGI"). USGI requests a judgment of dismissal. The court reviewed the file and the pleadings filed in support of and in opposition to the motion and heard oral argument.
I. STATEMENT OF THE CASE
This consolidated action was brought by Louisiana Pacific Corporation ("L-P") and the Port of Tacoma pursuant to section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9601-9657. The U.S. Environmental Protection Agency identified the plaintiffs as potentially liable for the clean up costs on a number of sites containing hazardous substances and plaintiffs are suing the American Smelting And Refining Company ("ASARCO") for allegedly contributing to this liability. Among other things, L-P alleges that slag from the ASARCO steel mill in Ruston, Washington contained a hazardous substance which was deposited as fill material in L-P's log sort yard at the terminus of Hylebos Creek at Commencement Bay. Later, log deck scrapings ("woodwastes") from the sort yard were dumped at the B & L Landfill in Milton, Washington ("B & L"). It is alleged that this woodwaste contained ASARCO slag that had been deposited in the sort yard, and that B & L was contaminated
L-P seeks to recover from ASARCO the cost of responding to the environmental hazard at B & L. Responding to L-P's action, ASARCO brought third-party actions against numerous other parties that, ASARCO alleges, contributed to the hazard at B & L. USGI is one of these parties.
USGI produces mineral wool used as insulation. The production process involves melting raw materials, including steel mill slag, in a cupola furnace. The molten material is then drawn from the cupola, struck with a blast of air, and the material is fiberized into mineral wool. The process produces a by-product called "shot," which USGI discards. The USGI plant in Tacoma, Washington discarded approximately 7,000 cubic yards of its shot at B & L between 1978 and 1980.
B & L covers 20 acres which was a disposal site for waste materials from log sort yards. USGI's shot was used primarily to build the road into the site, but the shot became inextricably mixed with other materials deposited at the site. Approximately 420,000 cubic yards of material from all sources were deposited at B & L.
There is no evidence that the shot deposited at B & L contained ASARCO slag. The evaluations of various samples show that the shot contains extremely small concentrations of hazardous material. Because a major claim in this case is that the combination of the woodwaste with the ASARCO slag caused the environmental hazard at B & L, USGI places great emphasis on the relative insignificance of its shot.
Nonetheless, it appears that USGI's shot does contain hazardous material concentrations which are in excess of levels permitted by state and federal standards for certain "clean up" purposes. Therefore, scrutiny of USGI's contribution to the hazard at B & L is important.
USGI contends that ASARCO has failed to establish that USGI's shot caused harm to the B & L site. ASARCO contends that CERCLA does not impose on ASARCO a requirement of proving proximate cause to recover response cost.
USGI also contends that its wastes do not contain sufficient concentrations of heavy metals to qualify as "hazardous substances" under CERCLA. ASARCO maintains that CERCLA does not establish a threshold concentration or volume of hazardous substances in order to establish liability.
USGI last argues that ASARCO's claim against USGI is barred by the statutory defense provided under CERCLA when a release is caused by a third party. 42 U.S.C. § 9607(b)(3). ASARCO responds that USGI has not stated a valid "third party" defense, since USGI contributed to the release.
The CERCLA statute is extensive and complicated and the language of the statute has been criticized by many courts.
Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 (5th Cir.1989).
Consequently, key issues in CERCLA cases can sometimes be obscured. The motion here centers on the elements of a cause of action in the CERCLA statute which was stated as follows in United States v. Wade, 577 F.Supp. 1326, 1333 (E.D.Penn.1983):
42 U.S.C. § 9607.
The parties do not, in this motion, contest the fact that the B & L site is a "facility" as defined in section 9601(9)
However, the parties do differ on whether USGI's shot constitutes a "hazardous substance," on what constitutes a "release" by USGI, and on how the word "causes" should be construed.
A. HAZARDOUS SUBSTANCE
Although USGI argues that its shot contains extremely small concentrations of hazardous material, CERCLA fails to impose any quantitative requirement on what constitutes a "hazardous substance." Amoco at 669. Therefore, since the shot contained some amount of hazardous material, under CERCLA the shot is a hazardous substance. Since USGI deposited its shot at B & L, two elements of the statute are satisfied: USGI "(1) disposed of its hazardous substances (2) at a facility which now contains hazardous substances of the sort disposed of by [USGI]." Wade at 1333.
CERCLA also imposes no quantitative requirement on the term "release." Amoco at 669. The DOE found that there was a release of a hazardous substance at B & L. Therefore, the third element of the statute is satisfied regardless of the amount of release and the type of hazardous
CERCLA, however, does appear to provide a threshold for liability when it comes to "cause." Section 9607(a)(4) attaches liability when a release "causes the incurrence of response costs." Interpretation of the term "causes" is therefore of central significance here.
CERCLA does not eliminate a common law causation standard, but rather it reduces the causation standard. This has been articulated as follows:
United States v. Bliss, 667 F.Supp. 1298, 1309 (E.D.Mo.1987).
There is a distinction between "causing a release" and "causing response costs." In other words, liability does not attach because the defendant caused "a release," but because it caused "response costs." While a defendant may often cause both, it is the causing of response costs that subjects a party to liability under CERCLA. 42 U.S.C. §§ 9607(a)(3) and (4).
A recent case dealing with the issue of causation is Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146 (1st Cir.1989). The Dedham court held that the only causation that is required is that the defendant's release, or threatened release, caused the plaintiff to incur response costs. Id. at 1152.
The latest authority on the causation issue is Amoco Oil v. Borden, 889 F.2d 664 (5th Cir.1989). The Amoco court addressed quantification and expressly rejected the notion that liability attaches upon the release of any specific quantity of hazardous substance. The court did so because otherwise it "would permit CERCLA's reach to exceed its statutory purposes by holding parties liable who have not posed any threat to the public or environment." Id. at 670.
The court went on to say:
Id. at 670.
Therefore, the relevant factual inquiry here should focus on whether the shot deposited by USGI at B & L justified any response actions. ASARCO provides evidence that the USGI shot found at B & L may have exceeded the concentration levels of the clean up standards set by the Safe Drinking Water Act, 42 U.S.C. § 300f, et seq., the Clean Water Act, 33 U.S.C. § 1251, and, possibly, some more stringent State standards. Such evidence, if proved at trial, would satisfy the fourth element of the statute. ASARCO has at least raised a fact question on whether USGI has "(4) ... cause[d] the incurrence of response costs." Wade at 1333.
The Amoco court held that "a plaintiff who has incurred response costs meets the liability requirement as a matter of law if it is shown that any release violates or any threatened release is likely to violate any applicable state or federal standard, including the most stringent." Id. at 671. USGI may not have caused the release of the hazardous substances at B & L that led to the instigation of this lawsuit. The concentration levels of hazardous materials in the shot that USGI deposited at B & L may be below what some government agencies consider to be hazardous. Nevertheless, since ASARCO has offered evidence that the
D. THIRD PARTY DEFENSE
CERCLA provides a defense if "the release or threat of release of a hazardous substance and damages resulting therefrom were caused solely by ... (3) an act or omission of a third party ..." 42 U.S.C. § 9607(b)(3). Since USGI deposited its shot at B & L, and that act may have contributed to the contamination at B & L, even minimally, the defense is unavailable to USGI. The release or threat of release must have resulted solely by the act of a third party for USGI to succeed with this defense.
Summary judgment is not appropriate under Fed.R.Civ.P. 56(c), unless the evidence in the record shows no genuine issue of material fact. T.W. Elec. Service v. Pacific Elec. Contractors, 809 F.2d 626 (9th Cir.1987); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1985). A genuine dispute over a material fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
ASARCO raises genuine issues of material fact on several issues. Evidence is provided that USGI (1) disposed of material that may be deemed a hazardous substance (2) at a facility which now contains material of the sort disposed of by USGI. There is evidence (3) that a release of some type of hazardous substance has occurred at the facility in question and that USGI has (4) caused the incurrence of response costs. Since a reasonable fact finder could find for ASARCO on this evidence, a summary judgment of dismissal is inappropriate.
It is, therefore,
ORDERED that third-party defendant United States Gypsum Interior's Motion for Summary Judgment is DENIED.