Cir. 1986). In keeping with that emphasis, this court will not impose limitations on the liability provisions absent indications of specific congressional intent to limit the statute's application.
It is undisputed that Montrose, and similarly Stauffer, supplied Heckathorn with an amount of DDT approximately 76% by weight of the amount of 75% DDT wettable powder to be produced. Levin alleges that, although there is no evidence of a written agreement, Montrose did "arrange" for disposal of part of the DDT in that it anticipated a loss of some of the DDT it provided to Heckathorn, which quantity of DDT Montrose considered a "spillage allowance." Thus, Levin claims, Montrose contemplated physical "losses" of DDT into the environment.
Deposition testimony on this claim is varied as to both Montrose and Stauffer. What exactly was contemplated during the negotiation of the formulating contracts between Montrose and Stauffer, and Heckathorn, is sufficiently unclear to defeat summary judgment alone. If it is shown at trial that the chemical companies affirmatively considered and provided for disposal of excess DDT by Heckathorn, the companies may be liable for the cleanup costs if they owned or possessed the DDT at the time. 42 U.S.C. § 9607(a)(3).
However, even if there were no issue as to whether the chemical companies contemplated and arranged for disposal of the released DDT, there would remain a genuine issue as to their arranger liability. At the very least, the chemical companies admit that they arranged by contract for something, namely the formulation of 75% DDT wettable powder. It is conceded by all parties that during the formulation process, DDT was discharged into the environment. At issue still is whether CERCLA arranger liability obtains if the chemical companies arranged for the formulation, and the formulation process resulted in disposal of hazardous substances, even if the chemical companies did not directly, affirmatively arrange for the disposal.
Resolution of this issue turns on the factual questions of whether generation of hazardous waste was inherent in the process and whether the chemical companies retained ownership of the chemicals and, therefore, authority to control the work in process at all times. See United States v. Aceto, 872 F.2d 1373 (8th Cir. 1989). In Aceto, a case involving allegations almost identical to those in this case, the court held that pesticide manufacturers who hired formulators to transform the manufacturers' technical grade pesticides into commercial grade pesticides could be subject to arranger liability under CERCLA.
The Aceto court looked beyond the manufacturers' characterization of their arrangement with the formulator as solely one to produce a valuable product to see if the transaction in fact involved an arrangement for the disposal of a hazardous substance. Id. at 1381. The court based its ruling on its findings that generation of hazardous waste was inherent in the process, and that the manufacturers retained ownership of the chemicals and, therefore, authority to control the work in process at all times. Id. at 1381-1382. The ambiguous terms of the agreement between Montrose and Heckathorn, discussed above, also indicate that a genuine issue of material fact remains as to whether Montrose retained ownership of the DDT and/or had authority to control the disposal of excess DDT during the formulation process.
Montrose argues that CERCLA arranger liability attaches only to arrangement for disposal of "waste," or hazardous substance, and that the DDT released into the environment at the Heckathorn site was not "waste" to Montrose because Montrose did not discard it. Montrose asserts that Heckathorn, not Montrose, chose to convert useful DDT into a "waste" by discarding it. Accordingly, Montrose claims it cannot be held liable for arranging for disposal of a "waste."
Montrose also uses this reasoning to support its claim that Heckathorn, not Montrose, owned the resulting waste. Montrose states in its brief, "If Heckathorn chose [to] convert useful DDT into a 'waste' by discarding it, such as by flushing DDT out of the airmills into the canal, such DDT belonged to Heckathorn; it was not a 'waste' owned by Montrose."
The court finds this argument to be circular and contrary to the legislative intent behind CERCLA. While recognizing the duty of the court "to give effect, if possible, to every clause and word of the statute," U.S. v. Menasche, 348 U.S. 528, 538-539, 99 L. Ed. 615, 75 S. Ct. 513 (1955), the court will not permit semantic games to obfuscate the true questions at issue and defeat the purposes of CERCLA. At issue here is not the DDT that was put to productive use, but rather the DDT that was released into the environment. The "disposal" alleged refers only to the released DDT.
The requisite affirmative act of discarding substance as waste is adequately alleged and supported; the issue raised is whether there is a nexus between the chemical companies' acts and the disposal sufficient to warrant imposing liability on the chemical companies. As discussed above, resolution of this issue will depend upon the facts of this case.
In assessing all the evidence presented, the court finds that a genuine issue of material fact remains as to whether the chemical companies arranged for the disposal of hazardous waste. The terms of the agreement between Montrose and Stauffer and the Heckathorn site are not sufficiently clear to resolve the questions that may determine whether the chemical companies have CERCLA arranger liability in this action. Issues of fact also remain as to whether loss of DDT and disposal of the lost DDT are inherent aspects of the process of formulating 75% DDT wettable powder, and whether the chemical manufacturers owned, possessed, or controlled the process involving the released DDT. Accordingly, the motions of Montrose and Stauffer for partial summary judgment are DENIED.
IT IS SO ORDERED.