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CALIFORNIA EX REL. STATE DEPT. OF TOXIC SUBSTANCES

April 14, 1993

THE STATE OF CALIFORNIA, on behalf of the State Department of Toxic Substances, Plaintiff,
v.
SUMMER DEL CARIBE, INC.; DALE E. SUMMER, an individual; LYNN J. RODICH, an individual; AMERICAN NATIONAL CAN CO.; BEATRICE HUNT/WESSON; CONTINENTAL CAN CO.; CROWN CORK AND SEAL CO., INC.; DEL MONTE CORP; CASTLE & COOKE; GENCAN PACKAGING, INC.; KERN FOODS LIQUIDATING TRUST; NESTLE FOOD CORP.; SILGAN CONTAINER CORP.; PAN PACIFIC FISHERIES, INC.; PACIFIC COAST PRODUCERS; PROGRESSO FOODS, INC.; STARKIST FOODS, INC.; THE SHERWYN-WILLIAMS CO.; TRI-VALLEY GROWERS CONTAINER DIVISION, INC.; UNITED STATES CAN CO.; TMA/NORACAL, Defendants.



The opinion of the court was delivered by: STANLEY A. WEIGEL

 BACKGROUND:

 Plaintiff sues Defendants for the cost of an environmental cleanup under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601 et seq. ("CERCLA"). Defendants are seventeen can companies, a metal reclamation facility, two individual officers of that facility, and a corporation that operated a site adjacent to the facility. The Court stayed the action against all Defendants except Summer del Caribe, Inc., Dale Summer, Lynn Rodich, and Castle & Cooke pending the results of an investigation into the nature and extent of contamination at the site. The parties stipulated to stay the action against Summer del Caribe and Dale Summer. *fn1" The remaining Defendant is Castle & Cook ("Defendant").

 Defendant manufactures cans. As a by-product of its can manufacturing process, Defendant generates "solder dross." One-third of the material comprising solder dross can be reclaimed and reused as solder. The remaining two-thirds are an unusable material containing high levels of lead and zinc compounds.

 From 1975 to mid-1982, Defendant sold its solder dross to Summer del Caribe ("Summer"), which operated a metal reclamation facility in Richmond, California. Summer melted the solder dross to reclaim and resell the reusable portion. The unusable remainder of the solder dross was placed in drums and stored at Summer's facility. The drums remained on the site from 1975 through 1982. By late 1982, the drums had corroded and solder dross was leaking onto Summer's site. Subsequently Summer buried some of the solder dross drums on its site.

 Plaintiff learned of Summer's storage and burial of the drums in late 1982. Test samples taken by Plaintiff in December 1982 showed that the buried and unburied solder dross drums contained hazardous levels of zinc and lead. Since that time Plaintiff has spent over $ 1.6 million to clean up the site. Plaintiff sues to recover these cleanup costs.

 In a motion for summary judgment, Plaintiff sought a determination that, by selling a manufacturing by-product containing hazardous material to the metal reclamation facility, Defendant arranged for the "disposal or treatment" of a "hazardous substance" within the meaning of CERCLA, and is therefore liable for the cleanup costs under CERCLA § 107(a)(3), 42 U.S.C. § 9607(a)(3). In a cross motion for summary judgment, Defendant sought a determination that it was not liable for cleanup costs under CERCLA.

 On June 30, 1992, the Court granted summary judgment for Defendant. Relying on its reading of 3550 Stevens Creek Associates v. Barclays Bank of California, 915 F.2d 1355 (9th Cir. 1990), cert. denied, 114 L. Ed. 2d 101, 111 S. Ct. 2014 (1991), the Court determined that a substance must be a "hazardous waste" under the Solid Waste Disposal Act ("SWDA") in order for "disposal" or "treatment" liability under CERCLA to attach. Because the Court concluded that the solder dross Defendant sold was not a hazardous waste within the meaning of the SWDA, it ruled that Defendant cannot be subject to disposal liability under CERCLA § 107(a)(3).

 Plaintiff now moves for reconsideration of the June 30, 1992 order.

 DISCUSSION:

 The Court has discretion to reconsider interlocutory orders at any time prior to final judgment. Nobell v. Sharper Image Corp., 1992 U.S. Dist. LEXIS 20114, at *1 (N.D. Cal. June 12, 1992); Combs v. Nick Garin Trucking Co., 263 U.S. App. D.C. 300, 825 F.2d 437, 441 (D.C. Cir. 1987). Such motions may be justified on the basis of an intervening change in the law, or the need to correct a clear error or prevent manifest injustice. Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364, 369 n.5 (9th Cir. 1989), discussing 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4478 at 790. To succeed in a motion to reconsider, a party must set forth "facts or law of a strongly convincing nature to induce the court to reverse its prior decision." Steiny and Co., Inc. v. Local Union 6, Int'l Brotherhood of Electrical Workers, 1991 U.S. Dist. LEXIS 18804, at *5 (N.D. Cal. Dec. 19, 1991) (citing Great Hawaiian Fin. Corp. v. Aiu, 116 F.R.D. 612, 616 (D. Haw. 1987)).

 In arguing for reconsideration, Plaintiff alleges that the Court's determination that a substance must be a "hazardous waste" under the SWDA in order for disposal liability under CERCLA to attach, is inconsistent with the decisions of the other courts that have addressed this issue and with the Congressional intent in enacting CERCLA. Plaintiff asserts that Stevens Creek does not require that a substance be a hazardous waste under the SWDA for CERCLA liability to attach. Plaintiff further contends that requiring a substance to be a hazardous waste under SWDA before imposing CERCLA liability will undermine both CERCLA's remedial purpose and the Congressional intent that CERCLA be broadly construed.

 Reconsideration is justified on the grounds suggested by Plaintiff. Accordingly, the Court revisits the question whether a substance must be a "hazardous waste" under the SWDA in order for a defendant to be liable for cleanup costs under CERCLA.

 I. CERCLA

 Congress passed CERCLA in an effort to address the threat to public health and the environment caused by the disposal of hazardous substances. United States v. Ward, 618 F. Supp. 884, 892 (E.D.N.C. 1985) (citing S. Rep. No. 848, 96th Cong., 2d Sess. 2 (1980)). A fund was created, commonly referred to as the "Superfund," to pay for the cleanup of the damages incurred at disposal sites and to ensure the recoupment of past and future response costs, so that no portion of the burden would fall on the public. United States v. Marvin Pesses, 794 F. Supp. 151, 1991 U.S. Dist. LEXIS 20277 (W.D. Pa. Dec. 30, 1991) and Order Adopting Magistrate's Decision, 1992, U.S. Dist. LEXIS 8101 (W.D. Pa., Mar. 30, 1992) (citing United States v. Shaner, 20 Chem. Waste Lit. Rep. 1130, 1132-33 (E.D. Pa. 1991)). Congress intended that responsible parties be held strictly liable for ...


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