A. "Hazardous Substances" under CERCLA
Under CERCLA "hazardous substances" include, inter alia, any substances so designated by the Environmental Protection Agency ("EPA") pursuant to § 9602 or by any of four other environmental statutes, and any waste having certain characteristics defined by the EPA. 42 U.S.C. § 9601(14); see 40 C.F.R. 261.20 et seq.
Defendant does not dispute that the solder dross stored at the Summer site contained hazardous material. Plaintiff's investigations of samples taken from the site showed that the dross exhibited the requisite degree of toxicity to be considered hazardous under the CERCLA definition of hazardous substance. Defendant contends, however, that CERCLA defines "disposal" and "treatment" by reference to the definitions of those terms in the SWDA and that solder dross is not regulated under the SWDA. CERCLA, 42 U.S.C. § 9601(29). The SWDA, notes Defendant, defines "disposal" and "treatment" in terms of "solid wastes" or "hazardous wastes," not in terms of "hazardous substances." Since the terms "disposal" and "treatment" are defined with reference to the SWDA, and not CERCLA, Defendant contends that only those substances qualifying as "solid waste" or "hazardous waste" under the SWDA can create disposal or treatment liability under CERCLA. In support of this argument, Defendant cites the Ninth Circuit decision in 3550 Stevens Creek Associates v. Barclays Bank of California, 915 F.2d 1355.
In Stevens Creek a building owner sued the previous owner who had installed asbestos in the building to recover costs incurred in removing that asbestos. The court ruled that the party who installed insulation that contained asbestos in a building was not liable under CERCLA for "disposal of a hazardous substance." While the court assumed that the insulation was a "hazardous substance" under CERCLA, in holding that the building owner was not liable, it stated that "on its face 'disposal' pertains to 'solid waste or hazardous waste,' not to building materials. . . ." Id. at 1361.
Defendant urges that given the Ninth Circuit's use of the terms "solid waste" and "hazardous waste" rather than "hazardous substance" to define the materials for which disposal or treatment liability attaches, under Stevens Creek only the disposal of those substances designated as SWDA-regulated "solid wastes" or "hazardous wastes" can create CERCLA liability. However, a close reading of Stevens Creek reveals that although it used the terms "solid waste" and "hazardous waste" rather than "hazardous substance," the Ninth Circuit did not intend its decision to be read as Defendant urges. The Stevens Creek court was not asked to decide whether a hazardous substance must be a "hazardous waste" under the SWDA for disposal liability under CERCLA to attach. Rather, it was deciding whether installation of insulation containing asbestos constitutes "disposal." The court explained its substitution of the term "hazardous waste" for "hazardous substance," noting that "in the context of CERCLA, hazardous substances are generally dealt with at the point when they are about to, or have become, wastes." Id. at 1362.
Furthermore, the reading of Stevens Creek that Defendant urges would contradict or render moot important portions of CERCLA. CP Holdings v. Goldberg-Zoino & Associates, 769 F. Supp. 432, 437 (D.N.H. 1991) (criticizing Stevens Creek). Section 9607(a) of CERCLA explicitly applies to the "disposal or treatment of hazardous substances," not merely to the disposal or treatment of hazardous waste. 42 U.S.C. § 9607(a)(3) (emphasis added). The drafters of CERCLA appear to have referred to sections 6903(3) and 6903(34) of the SWDA only to define the actions of "disposal" and "treatment," not to define the objects of those actions, the materials to be disposed of or treated. See State of California v. Verticare, No. C-92-1006 MHP, at 20 (N.D. Cal. Mar. 2, 1993). If the Court adopts the reading of Stevens Creek that Defendant urges, hazardous substances which are not hazardous wastes would be excluded from the statute's reach. Such a reading would be illogical in light of the use of the word "hazardous substance."
Finally, it is consistent with the purpose of CERCLA to impose liability under CERCLA for the disposal or treatment of substances which do not meet the definition of waste under the SWDA. CERCLA and the SWDA serve different purposes. Recognizing the distinct purposes, "Congress and the EPA have carefully distinguished between wastes, to which the [SWDA] applies, and substances, to which CERCLA applies. . . ." B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1202 (2d Cir. 1992) (emphasis added).
The SWDA is preventative and regulates routine handling of potentially hazardous materials. For SWDA regulations to apply, the site must meet "threshold quantity or concentration requirements -- considerations which are irrelevant in defining hazardous substances under CERCLA." Id. at 1202. CERCLA, on the other hand, is curative. It imposes liability when a release occurs that warrants a cleanup response -- regardless of the amount of hazardous substances present. Id. Given the distinct purposes of the acts, it follows that they cover different materials. An EPA determination that solder dross is not sufficiently dangerous to justify imposing the most stringent regulations to govern its day to day handling under the SWDA, does not imply that the harm caused by solder dross's improper disposal is also insufficient to justify regulation under CERCLA. Id.
In sum, the explicit language of CERCLA, the apparent intent of the drafters, and the distinct purposes of CERCLA and the SWDA compel the conclusion that a substance need not be a "hazardous waste" under the SWDA for liability under CERCLA to attach. Nor does Stevens Creek dictate a contrary result.
B. "Disposal" and "Treatment" under CERCLA
Defendant contends that even if solder dross can potentially give rise to disposal and treatment liability, no "treatment" occurred at the Summer reclamation site and Summer, alone, was responsible for the "disposal."
CERCLA defines "disposal" and "treatment" by reference to the definitions of those terms in the SWDA. 42 U.S.C. § 9601(29). "Disposal" is defined as:
the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.