# Appendix — ASARCO Inc. v. Louisiana-Pacific Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 1103

## Text

;

coprman (rar, 2.
No. 94 S33NOV 7196

“oan fy 1 itp
Oy FICE Ur PRE CLERK

In the Supreme Cou

OF THE

United States

OCTOBER TERM, 1994

ASARCO INCORPORATED,
Petitioner,

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LOUISIANA-PACIFIC CORPORATION, et al.,
Respondents.

APPENDICES TO
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

M. LAURENCE POPOFSKY
Counsel of Record

PETER A. WALD
STEVEN S. ANDERSON
HELLER, EHRMAN, WHITE &
McAULIFFE
333 Bush Street
San Francisco, California 94104-2878
(415) 772-6000
Attorneys for Petitioner

100

atew ate

=

TABLE OF CONTENTS
APPENDICES

(Bound Separately)

Appendix A: Findings of Fact and Conclusions of Law
of the United States District Court for the
Western District of Washington at
Tacoma:

Judgment, dated June 3, 1991;
Instructions to the Jury on Issue #1
dated January 23, 1991;

Special Verdict Form, Issue #1,
dated January 23, 1991:

Transcript of Trial, Oral Rulings by
the Honorable Robert J. Bryan,
dated February 25, 1991.

Appendix B: Order and Amended Opinion of the
United States Court of Appeals for the
Ninth Circuit, filed August 30, 1994.

Appendix C: Order of the United States Court of
Appeals for the Ninth Circuit denying
Petition for —s with Suggestion for
le En Banc, filed August 29,

Appendix D: Excerpts from the Comprehensive
Environmental Response, eee.
and Liability Act of 1980 ("CERCLA"),
42 U.S.C §§ 9601-9675

§ 9601. Definitions

§ 9605. National Contingency Plan;
preparation, contents, etc.

§ 9607. Liability

§ 9613. Civil Proceedings

Appendix E:

TABLE OF CONTENTS
APPENDICES
(cont’d)

Excerpts from the Solid Waste Di
ct ("“SWDA"), 42 U.S.C. §§ 6901-6992

§ 6901.
§ 6902.

§ 6903.
§ 6921.

§ 6982.

Congressional findings
Objectives and national
policy

Definitions

Identification and listing of
hazardous waste

Special Studies; plans for
research, development,
and demonstrations

APPENDIX A

UNITED STATES DISTRICT COURT
| WESTERN DISTRICT OF WASHINGTON
AT TACOMA

LOUISIANA-PACIFIC
CORPORATION,

| a Delaware Corporation,
NO. C88-217TB
Plaintiff, CONSOLIDATED
Vv.
JUDGMENT
ASARCO, INCORPORATED, a
New Jersey Corporation, et. al.

Defendants/Third
Party Plaintiffs,

PORT OF TACOMA, a municipal
corporation,

Plaintiff,
v.

ASARCO INC., a New Jersey
corporation, et. al.,

Defendants.

Nm ee ee ee ee ee ee ees ee”

THIS MATTER comes before the court for entry of
judgment. Federal law claims in this case were tried before the
court, the Honorable Robert J. Bryan presiding, from October 29,

A-2

1990 to March 1, 1991. State law claims were simultaneously
tried to a jury from October 31, 1990 to February 25, 1991.
It is hereby
ORDERED that judgment be and hereby is entered on both
federal law and state law claims in accordance with the jury
verdicts and the court’s oral decision as follows:
I. State Law Claims
A. On January 23, 1991, the jury found that ASARCO
copper reverbatory slag placed on plaintiffs’ log yards is a
product as defined by the Washington Products Liability Act.
B. On February 13, 1991, the jury found that

1. ASARCO did not trespass on Murray Pacific #1
site, Murray Pacific #2 site, Portac site, Cascade Timber site, or
Wasser & Winters site;

2. ASARCO violated the Washington State
Hazardous Waste Management Act at Murray Pacific #1 site,
Murray Pacific #2 site, Portac site, Cascade Timber site, and
Wasser & Winters site;

3. ASARCO supplied a product which was not
reasonably safe in its design to Murray Pacific #1 site, Murray
Pacific #2 site, Portac site, Cascade Timber site, and Wasser &
Winters site;

4. ASARCO supplied a product which was not
reasonably safe because adequate warnings were not provided with
the product to Murray Pacific #1 site, Murray Pacific #2 site,
Portac site, Cascade Timber site, and Wasser & Winters site;

5. ASARCO supplied a product which was not
reasonably safe because adequate warnings were not provided after
manufacture to Murray Pacific #1 site, Murray Pacific #2 site,
Portac site, Cascade Timber site, and Wasser & Winters site;

6. ASARCO supplied a product which was not
reasonably safe in construction to Murray Pacific #1 site, Murray
Pacific #2 site, Portac site, Cascade Timber site, and Wasser &
Winters site;

7. ASARCO supplied a product which was not
reasonably safe because it did not conform to manufacturer’s
express warranty to Murray Pacific #1 site, Murray Pacific #2
site, Portac site, Cascade Timber site, and Wasser & Winters site;

A-3

8. ASARCO supplied a product which was not
reasonably safe because it did not conform to manufacturer’s
implied warranty of fitness for a particular purpose to Murray
Pacific #1 site, Murray Pacific #2 site, Portac site, Cascade
Timber site, and Wasser & Winters site.

C. On February 25, 1991, the jury found contributory
negligence as to all state claims as follows:

1. On the Murray Pacific #1 site, the jury found
that Murray Pacific was negligent, and of the total combined
fault, 11% was attributed to Murray Pacific and 89% was
attributed to ASARCO.

2. On the Murray Pacific #2 site, the jury found
that Murray Pacific and the Port of Tacoma were negligent, and
of the total combined fault, 8% was attributed to the Port of
Tacoma, 8% was attributed to Murray Pacific and 84% was
attributed to ASARCO.

, 3. On the Cascade Timber #3 site, the jury found
that Cascade Timber was not negligent, that the Port of Tacoma
was negligent. Of the total combined fault, 21% was attributed
to the Port of Tacoma and 79% was attributed to ASARCO.

4. On the Portac site, the jury found that Portac,
Inc. and the Port of Tacoma were negligent. Of the total
combined fault, 13% was attributed to Portac, Inc., 12% was
attributed to the Port of Tacoma, and 75% was attributed to
ASARCO.

5. On the Wasser & Winters site, the jury found
that Wasser & Winters and the Port of Tacoma were not negligent
and that the total fault of 100% was attributed to ASARCO.

D. On February 25, 1991, the jury assessed damages
against ASARCO at the Portac site in favor of the Port of
Tacoma in the sum of Two Million Four Hundred Seventy-Four
Thousand Three Hundred Twenty-One Dollars ($2,474,321 .00);
and in favor of Portac, Inc. in the sum of Three Million One
Hundred Seventy-Nine Thousand One Hundred Fifty Dollars
($3,179, 150.00).

Il. Federal Law Claims

A. On February 26, 1991, and on March 1, 1991, the
court rendered its findings of fact and conclusions of law in its
oral decision, which is fully incorporated herein by this reference,

A-4

pursuant to Fed. R. Civ. P. 52(a). The court found that ASARCO
arranged for disposal of hazardous substances on the site and
there has been a release of those hazardous substance, in violation
of 42 U.S.C. Sec. 9607(a)(1).

B. The court assessed apportionment of liability for
necessary costs of response incurred or which may be incurred in
the future consistent with the national contingency plan
(hereinafter collectively "Response Costs") pursuant to 42 U.S.C.
§ 9607(a), 42 U.S.C. Sec. 9613(f)(1) and 42 U.S.C.
§ 9613(g)(2), as follows:

1. At the Portac site, the court assessed the amount
of Response Costs incurred at this site as $2,421,566.40 for
Portac, Inc. and $2,474,321.62 for the Port of Tacoma. The
court found that Portac, Inc. is responsible for payment of 10%
of its Response Costs and ASARCO is responsible for payment of
90% of Portac, Inc.’s Response Costs. The Port of Tacoma is
responsible for payment of 10% of its Response Costs and
ASARCO is responsible for payment of 90% of the Port of
Tacoma’s Response Costs.

2. At the Cascade Timber site, Cascade Timber has
no responsibility for any of the Response Costs, the Port of
Tacoma is responsible for payment of 10% of the Response
Costs, and ASARCO is responsible for payment of 90% of the
Response Costs.

3. At the Wasser & Winters site, ASARCO has
100% responsibility for payment of the Response Costs; Wasser
& Winters and the Port of Tacoma have no responsibility for the
Response Costs.

4. At the Murray Pacific #2 site, Murray Pacific
is responsible for payment of 4% of the Response Costs, the Port
of Tacoma is responsible for payment of 4% of the Response
Costs, and ASARCO is responsible for payment of 92% of the
Response Costs.

5. At the Murray Pacific #1 site, Murray Pacific
is responsible for payment of 5% of the Response Costs, and
ASARCO is responsible for payment of 95% of the Response
Costs.

A-5

6. At the Louisiana Pacific site, ASARCO has
100% responsibility for payment of the Response Costs and
Louisiana Pacific has no responsibility.

7. At the B & L Landfill site, Executive Bark,
Inc., Cascade Timber, Wasser & Winters, Portac, Inc., Louisiana
Pacific, and B & L Trucking & Construction have no
responsibility for Response Costs, William Fjetland is responsible
for payment of 7%.of the Response Costs, Murray Pacific is
responsible for payment of 7% of the Response Costs, Eagle
Trucking, Inc. is responsible for payment of 7% of the Response
Costs, and ASARCO is responsible for payment of 79% of the
Response Costs.

C. Prejudgment interest, attorney fees, and costs shall
be determined at a later date on motions by the parties. The
amounts awarded, if any, shall be incorporated in this judgment.

D. The court retains jurisdiction to adjudicate issues of
damages and/or Response costs which have not yet been
determined.

The Clerk of the Court shall send uncertified copies of this
Judgment to all counsel of record.

DATED this 3 day of June, 1991.

Robert Bryan
ROBERT J. BRYAN

United States District Judge

A4

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

LOUISIANA-PACIFIC
CORPORATION, PORT OF
TACOMA, a municipal corporation;
PORTAC, INCORPORATED;
MURRAY PACIFIC CORPORATION;
WASSER & WINTERS CO., a
corporation; CASCADE TIMBER
CO., a corporation,
NO. C88-217TB
Plaintiffs,
¥.

ASARCO, INCORPORATED,

Defendant,
Vv.

WILLIAM FJETLAND; B&L
TRUCKING, a corporation; EAGLE
TRUCKING, a corporation,

me ee ee eee Se”

Third Party Defendants.

INSTRUCTIONS TO THE JURY ON ISSUE #1

DATED this __23d__ day of __ January _, 1991.

Robert J, Bryan
ROBERT J. BRYAN
United States District Judge

A-7

INSTRUCTION NO. 1

A statute provides:

"Product" means any object possessing intrinsic value,
capable of delivery either as an assembled whole or as a
component part or parts, and produced for introduction into
trade or commerce.

Intrinsic value means a true, inherent and essential value of
the thing itself, not depending on place or person; that is,
value which comes from the object itself rather than from any
special features that make the value different from the value
of the object itself.

Produced means offered or presented and also means made
or manufactured.

The defendant, ASARCO, has the burden of proving that the
copper reverbatory slag placed on plaintiffs’ log yards is a
product as defined in this instruction.

A-8

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

AT TACOMA

LOUISIANA-PACIFIC
CORPORATION, PORT OF
TACOMA, a municipal
corporation; PORTAC,
INCORPORATED; MURRAY
PACIFIC CORPORATION;
WASSER & WINTERS CO., a
corporation; CASCADE TIMBER
CO., a corporation,

Plaintiffs,
Vv.
ASARCO, INCORPORATED,
Defendant,
v.
WILLIAM FJETLAND; B&L
TRUCKING, a corporation;
EAGLE TRUCKING, a

corporation,

Third Party Defendants.

Nem ee ee Nee ee ee ee”

We, the jury, make the following answer to the question

submitted by the court:

NO. (C88-217TB

VERDICT FORM
ISSUE #1

ee

A-9

Is ASARCO copper reverbatory slag placed on plaintiffs’ log
yards a product as defined by statute?
ANSWER: Yes_ (Yes or No)

DATED this 23rd day of January, 1991.

FOREPERSON

A-10

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

AT TACOMA

LOUISIANA-PACIFIC
CORPORATION, a Delaware
Corporation,

Plaintiff,
Vv.

ASARCO, INCORPORATED, a
New Jersey corporation, et al.,

Defendants.

le ee ee ee ee ee ee

Consolidated

Docket No.
C88-217TB

Tacoma, Washington
February 25, 1991
1:35 p.m.

A-i1

PORT OF TACOMA, a
Washington municipal corporation,

Plaintiff,
Vv.

ASARCO INCORPORATED, a
New Jersey corporation;
PORTAC, INC., a Delaware
corporation; MURRAY PACIFIC
CORPORATION, a Washington
corporation; WASSER &
WINTERS COMPANY, a
Washington corporation; and
CASCADE TIMBER COMPANY,
a Washington corporation,

Defendants.

lll ee ee re ee ee

VOLUME LII-B
TRANSCRIPT OF TRIAL
BEFORE THE HONORABLE ROBERT J. BRYAN
UNITED STATES DISTRICT JUDGE

(Following was reported by Julaine V. Ryen, Court
Reporter.)

(Court reconvened at 4:00 p.m.)

THE COURT: Well, I've been sitting here for four
months trying to absorb this case and the facts of it. You have
heard me on specific issues as they have come up, my view of
them, but you haven’t heard me, I guess, in regard to the overall
and basic issues involved in this case.

First, I think I should address the relationship of the jury
verdicts to court decisions, and in particular to findings of fact.
It seems to me that the appropriate way for me to approach any
decisions that I have to make on the merits of this case is
independently; to decide myself what the facts show. That should

A-12

be the ruling, unless whatever factual findings or conclusions that
I reach are inconsistent with the jury verdict. If they are
inconsistent, obviously, I have to be guided by the jury’s findings.
Obviously, many of the issues that I have to decide are not on all
fours with what the jury has decided, but I can’t make a finding
that is inconsistent to what the jury has done. But it seems to me
the proper and most intellectually honest way to approach this is
for me to make independent decisions in my own mind and then
balance them to see if there is anything in what the jury has done
that tells me I can’t do what I think I ought to do. That is the
approach I have taken with this.

I don’t want to oversimplify this case, but after four months,
it appears to me to be not a very complex case. I was urged to
apply common sense. In arguments here, I was urged to apply
common sense to this.

Let me look at the historical facts that lead us to this point
through my sense, which hopefully is common sense.

For nearly a hundred years, Asarco smelted copper ore here
in Tacoma, and I don’t know if they made a profit, but at least
they made enough to stay in business, and hopefully their
shareholders got an occasional dividend. They carried on that
business, and in doing so, a great amount of slag was created that
was treated essentially as a waste product, if you will. You can
call it what you want, but it was historically treated as a waste
and dumped into the bay, which fortunately was able to create a
landfill.

A time came in history when the dump site was no longer
available and Asarco had to find alternative ways to dispose of
their slag. It is at that point that we have a sharp divergence in
opinion here as to what went on. But it appears to me that at
that point what happens is that Asarco, along with others,
concocted a scheme to get rid of their slag, and they were so
intent on disposing of this slag so that they could stay in business,
they ignored the obvious risks. What they did was dispose of this
slag through this IMP, Black Knight outfit, in many ways, one of
which was to dispose of it on the log yards. It made a mess, and
the mess is partly Asarco’s mess. Common sense tells us that
Asarco should particIpate in cleaning up their own mess.

A-13

Now, they claim that they have no responsibility whatsoever
for that mess that was created, and I find that an unrealistic
approach from a common sense point of view.

That simple analysis of the facts here leaves out an essential
ingredient, and that is to compare the facts with the law, because
if the law doesn’t lead us to where common sense might lead us,
the law controls rather than common sense.

I guess the best recital of the law that we have now, outside
of the statutes themselves and the regulations, is this Stevens
Creek case. It is good law. I don’t think there is any question
but what it is good law. But the application of the law is always
based on the facts.

If we apply the rules of the statute as they are recited in
Stevens Creek, we find some interesting things.

The first thing that strikes me about that case is at what point
do we determine the question of whether this was a solid waste
disposal scheme or whether it was some sort of a useful product
sale? Stevens Creek Association is instructive on that. They say,
and Mr. Anderson agreed, that in the context of CERCLA,
hazardous substances are generally dealt with at the point when
they are about to, or have become wastes. Mr. Anderson said
when it is thrown away.

Now, before we go back to that moment in time -- well, |
guess you can’t say before you go back to that moment in time,
because all this comes at the same time and you have to consider
it together. But the time that we are primarily concerned with
here is when this slag left Asarco’s control. That, it seems to me,
is the point at which we must determine whether it was a waste,
and whether it was a solid waste or a hazardous substance.

Well, a solid waste is defined by statute, and it’s repeated in
the Stevens Creek case, as "any garbage, refuse, sludge, . . . and
other discarded material. . . ."

At the point when Asarco made this slag available to IMP,
in my view from the evidence in this case, it was other discarded
material. They were trying to get rid of it. That was the driving
factor in their actions.

Under solid waste comes the next question, which is referred
to as a subset in Stevens Creek, as to whether it’s a hazardous
solid waste, which may not be necessary to decide at this

A-14

moment, but it certainly appears clear in this case, for a number
of reasons, that it was hazardous and that it contained four metals
in substantial quantities, one of which was a carcinogen. It was
hazardous also from the standpoint that it leached these heavy
metals into the environment.

Now, the next question, of course, is was it disposed of by
Asarco or was there arrangement for disposal. Again, we can
look to the statute as it is set forth in Stevens Creek. The SWDA
they refer to, which I guess is RCRA, as we have been referring
to it here in court, and we see clearly from the evidence in this
case that Asarco arranged that at least part of the slag be
deposited, dumped, or placed on land, and in a way that the
constituents of the slag could enter the environment or be
discharged to the waters. That was done, it seems to me, quite
without any consideration of whatever additional effect the mixing
of the slag with woodwaste may have had on the degree of
leaching that occurred into the waterway.

I indicated a minute ago that I felt the evidence indicated here
that Asarco basically concocted a scheme to get rid of this slag,
and I think that’s what they did. Now, I want to talk a little bit
more about that and about the Stevens Creek case.

First, in applying the rules of Stevens Creek, we have to
apply them to the facts here. Stevens Creek was a building
materials case. It was not factually anything like this case. This
is a solid hazardous waste case, and this is a disposal case. The
same rules of law apply, but you’ve got to determine the facts in
order to apply those rules of law.

In my view, the slag in this case was never a product to
Asarco in such a way as to make it something other than a waste.
The product idea for log yard use was something that IMP and
Asarco dreamed up and tried to develop to further the disposal of
the slag from the site so that they could continue to operate the
smelter, and that was from Asarco’s point of view. They called
it a product in order to get rid of it, but it seems to me that that
was primarily Asarco’s label.

Now, this so-called product was so bad that it, in my view,
was never really a legitimate product. It was no more than a
hopeful idea that they hoped would develop into some sort of a
useful and harmless product, but it never did. As the jury found,

A-15

it was not designed reasonably safe; it was not constructed
reasonably safe. It was not reasonably safe because it didn’t have
adequate warnings either before or after it was delivered. It was
not as expressly warranted or as impliedly warranted. And that
leads up to the next question, which is was it a useful product or
put to a productive use by the buyers? The answer to that is that
it was only insofar as they thought it was something that it was
not.

I want to refer to page 1362, and in the second column of
the Stevens Creek case, where Judge Rymer indicated that there
was no meaningful difference for purposes of CERCLA between
a party who sells or transports a product containing or composed
of hazardous substances for a productive use and a party who
actually puts that product to its constructive use. She added, "we
see no reason to adopt a different definition in this case."

That’s not the facts we have here, because in this case
Asarco sold this product containing hazardous substance not for
a productive use but to get rid of it, to dispose of it. The idea
that it may also in some way, hopefully, in the future provide a
productive use was only a design for the disposal, based on the
evidence that I heard in this case over the last four months.

So Stevens Creek is good law, but that same law applies
differently to the facts in this case.

Now, counsel urged, and I think rightly so, that this should
be an objective test here insofar as that is possible under the
Statute and under the Stevens Creek case. But again, objective
tests depend on the facts. You have to take the facts and apply
the objective test to them. The facts here are that this was a
disposal of solid waste, not a sale of a useful product. You
simply, in my view, cannot torture the facts to get something into
a category in order to escape reasonable liability. 1 think that
that’s what has been attempted here, is to torture the real motive
and the real facts behind what was done in order to get this case,
or to try to get this case, out of the CERCLA umbrella. It is
clear to me from the evidence I heard that this issue is that
simple, and that Asarco, along with all the other people -- well,
at least along with some of the other people involved in this case
~ must share the responsibility and participate in the cleanup.

A-16

As to each of the plaintiffs in this case, and for that matter
as to the third parties, all of the elements of CERCLA liability
have been made out, and what remains to be done is to determine
the allocation of that responsibility.

I said I didn’t want to oversimplify. I hope that that isn’t an
oversimplification of this case, but that’s what I heard over the
last four months. It is just about that simple. At this point I can
only say that I wish that we had spent the money that this trial
cost to clean up some of these sites in Commencement Bay. But
I guess that’s the next issue that we must face, is how that
expense should be allocated. I guess we will start on that task
tomorrow morning at 9:30.

(Recessed at 4:17 p.m.)

CERTIFICATE

I certify that the foregoing is a correct transcript from the
record of proceedings in the above-entitled matter.

February 25, 1991 ©
JULAINE V. RYEN Date

—

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LOUISIANA-PACIFIC CORPORATION;
PORT OF TACOMA,
Plaintiffs-Appelilees,

ASARCO INCORPORATED,
Defendant-Third-Party
Plaintiff-Appellant.

WILLIAM FJETLAND; B & L
TRUCKING AND CONSTRUCTION Co.,
INC.; INDUSTRIAL MINERAL
PRODUCTS, INC.; MURRAY PACIFIC
CORPORATION; PORTAC, INC.;
CASCADE TIMBER COMPANY;
EXECUTIVE BARK INC.; WASSER &
WINTERS COMPANY; EAGLE
TRUCKING, INC.

Third-Party Defendants-

V.

Vv.

Ne Ne Ne Ne Ne re ae a ae a ae a Ne Nee i ee Ne ee” Ne ee” Nee” ee” Nee’ Nee”

Appellees.

No. 92-35061

D.C. No.
CV-88-00217-RJB

B-2

LOUISIANA-PACIFIC CORPORATION,
Plaintiff,

Vv. \

CASCADE TIMBER COMPANY,
Third-Party Defendant-
Counter-claimant-Appellant,

Vv.

ASARCO INCORPORATED,
Defendant-Third Party
Plaintiff-Appellee,

WILLIAM FJETLAND; B&L TRUCKING
AND CONSTRUCTION Co., INC.;
INDUSTRIAL MINERAL PRODUCTS,
INC.; MURRAY PACIFIC
CORPORATION; PORTAC, INC.,
Third-Party Defendants.

ed ee ee ee ee ey, ee tf

LOUISIANA-PACIFIC CORPORATION;
PORT OF TACOMA,
Plaintiffs,

PorTAC, INC.,
Third-Party Defendant-
Counter-Claimant-Appellant,

Vv.
ASARCO wre TED,
Defe t-Third Party
Plaintiff-Appellee,

WILLIAM FIJETLAND, ef al. .

Third-Party Defendants.

ee a ee ee ee __

No. 92-35144

D.C. No.
CV-88-00217-TB

No. 92-35145

D.C. No.
CV-88-00217-TB

athess phy Pa A oe Se ate
a Mee ee eee re te ee ee

.
.
|

B-3

LOUISIANA-PACIFIC CORPORATION,
Plaintiff,

Vv.

MURRAY PACIFIC CORPORATION,
Third-Party Defendant-
Counter-Claimant-Appellant,

V.

ASARCO INCORPORATED,
Defendant-Third-Party
Plaintiff-Appellee,

WILLIAM FJETLAND; B & L
TRUCKING AND CONSTRUCTION Co.,
INC.; INDUSTRIAL MINERAL
PRODUCTS, INC.;

Third-Party Defendants.

LOUISIANA-PACIFIC CORPORATION;
PORT OF TACOMA,
Plaintiffs,

WASSER & WINTERS COMPANY,
Third-Party Defendant-
Counter-Claimant-Appellant,

Vv.
ASARCO INCORPORATED,
Defendant-Third-Party
Plaintiff-Appellee,

WILLIAM FJETLAND, ef al.
Third-Party Defendants.

Ne ee ee ae ae ae ae ae ae ae ee ee ee ee ee ee ee es es

Ne Nm Nee ere Name are Nee Nee Saree” Stee” Nee” Nee” Nee” Nee” Nee” Nee” eee” Nee”

No. 92-35148

D.C. No.
CV-88-00217-TB

No. 92-35149

D.C. No.
CV-88-00217-RJB

B-4

Plaintiff-Appellee.

)
LOUISIANA-PACIFIC CORPORATION,

Plaintiff, } No. 92-35152

and D.C. No.
Port OF TACOMA, ) CV-88-00217-TB

Plaintiff-Appellant, )

‘ ) ORDER AND

; ) AMENDED OPINION

ASARCO INCORPORATED, )
Defendant-Third-Party
)

Appeals from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding

Argued and Submitted
April 7, 1993 - Seattle, Wasington

Opinion filed September 23, 1993
Amended January 13, 1994
Opinion withdrawn April 28, 1994
Opinion filed April 28, 1994
Amended August 30, 1994

Before: Eugene A. Wright, David R. Thompson and
Andrew J. Kleinfeld, Circuit Judges.

Opinion by Judge Thompson

SUMMARY

Environmental Law/Liability/Hazardous Waste
The court of appeals affirmed in part a district court

judgement, reversed in part, and remanded in part. The court
held that slag is regulated as a hazardous substance by the

B-5

Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (CERCLA).

Appellant ASARCO, Inc. ag con slag as a by-product of
its smelting operations. the slag was marketed for use in log
ards. After the Environmental Protection Agency (EPA) found
igh concentrations of heavy metals in water runoff from a
logyard, the Washington "Department of Ecology (WDOE)
determined that slag was the likely cause of the contamination.
Over the next several years, the WDOE sent letters, made calls,
and held meetings with representatives of the affected sites.
Later, the WDOE began formally requiring cleanups.

Appellee Louisiana-Pacific Corp. sued ASARCO under
CERCLA for response costs for the cleanup of its logyard and for
contribution of indemnity for its liability for the cost of cleanup
of the landfill to which it hauled the slag. ASARCO counter-
claimed against Louisiana-Pacific under CERCLA and state law.

ASARCO brought third-party claims against several other
logyards that disposed of slag at the landfill. It also sued the
owner and operator of the landfill and the trucking company that
transported the slag. Some of the third-party defendants counter-
claimed against ASARCO asserting claims under CERCLA, the
Washington Hazardous Waste Management Act (HWMA), the
Washington Model Toxics Control Act (MTCA), and the
Washington Products Liability Act (WPLA). The third-party
defendants also asserted common-law claims against ASARCO.

Appellee Port of Tacoma, which owned some of the logyard
sites, sued ASARCO for response costs under CERCLA and state
for indemnity and contribution for cleaning up the
andfill.

On ASARCO’s motion, the district court dismissed some of
the state common-law claims on the ground that they were
preempted by the WPLA. It also dismissed the MTCA claims
because at that time the MTCA did not provide for a private
cause of action. A jury found ASARCO liable to each plaintiff
on both the WPLA and HWMA claims. The district court found
ASARCO liable under CERCLA. The court awarded attorney’s
fees under both CERCLA and the HWMA, and costs under both
federal and state law.

ASARCO appealed, contending that 1) its liability under
CERCLA should be reversed because slag contamination is
excluded from CERCLA liability under the Bevill Amendment, 2)

B-6

the jury’s finding that slag is a product under the WPLA
precluded a finding by the court that it was a waste under
CERCLA, 3) it should not be liable for the cleanup costs incurred
in cleaning up a particular site, the Portac site, because the
cleanup of that site was not handled as required by the National
Contingency Plan (NCP), 4) the district court erred in awarding
attorney’s fees and costs under CERCLA, 5) the judgment
rendering it liable under the HWMA should be reversed because
the HWMA did not provide for a private cause of action at the
time of the slag sales, 6) the district court erred in rejecting its
motion to dismiss the WPLA claim on statute of limitations
grounds, and 7) loss-of-use damages were improperly awarded
under the WPLA.

[1] Slag is a material exempted from Resource Conservation
and Recovery Act of 1976 regulation under the Bevill
Amendment.- ASARCO contended that the incorporation of this
exemption into CERCLA operated to except slag from CERCLA
regulation as well. [2] However, the district court found that
slag’s components included copper, lead, arsenic and zinc, which
are hazardous substances under CERCLA. [3] The fact that slag
was excepted from a CERCLA subsection by the Bevill
Amendment had no bearing on whether slag in its component
forms was excepted from other CERCLA subsections.

[4] The sale of slag to the logyards could simultaneously be
both the sale of a product with intrinsic value in trade or
commerce under Washington law, and the disposal of a hazardous
substance under CERCLA. [5] Thus, the = finding that slag
was a product under the WPLA did not preclude the court from
finding that it was a waste under CERCLA.

[6] In regard to the Portac site, the issue of substantial
compliance with the NCP was a mixed ion of law and fact.
[7] Although compliance was not perfect, it was substantial.
After preparation of a feasibility y outlining cleanup options
for the site, the Port held meetings at which the cleanup of the
Portac site was on the agenda.

tied" to actual cleanup. [9] In ion, because the
private cost recovery action involved in this case not be
classified as an “enforcement activity” under the
district court exceeded its authority to the extent its award of

i
.
i
i
:
:
-
i
az

B-7

litigation costs exceeded those costs recoverable under 28 U.S.C.
§§ 1821(b) and 1920.

{10] The amendment to the HWMA that created a private
cause of action could not be applied mest manpag 5 {11] The
amendment contained no retroactivity provision. [12] In addition,
ASARCO did not own or control the properties from which the
slag mixture continued to leach hazardous substances. Thus,
ASARCO had no liability for an "ongoing violation" under the
HWMA.

[13] The WPLA precluded a recovery of damages for loss of
use of property.

[14] The WPLA claims accrued when the landowners became
aware, or should have become aware, of the contamination of
their properties. The question of when this occurred was left to
be addressed on remand. [15] The Port, however, acted in a
sovereign capacity in leasing the logyards; [16] therefore, the
statute of limitations did not run against it.

{17] The district court dismissed the MTCA claims because
it concluded that the MTCA did not create a private cause of
action. [18] An amended MTCA, however, clearly created a
private right of action, and made it retroactive to cover harms that
already occurred. The amended statute, therefore, provided a
private cause of action to the plaintiffs.

COUNSEL

Peter A. Wald and M. Laurence eo Heller, Ehrman,
White & McAuliffe, San Francisco, ifornia, for defendant-
third-party plaintiff-appellant ASARCO, Incorporated.

Jeffrey K. po and Karen McGaffey, Bogle & Gates, Seattle
Washington, for plaintiff-appellee Port of Tacoma.

Roger Clegg, Acting Assistant Attorney General, and Timothy J.
Dowling, Environment and Natural Resources Division, United
States of Justice, Washington, D.C., for amicus

B-8

ORDER
The opinion filed April 28, 1994 is amended as follows:

1. At page 4296 of the slip opinion, the third full paragraph
which begins "We have jurisdiction” is amended. The second and
third sentences are deleted and the following sentences are
inserted in their place:

We affirm the award of damages under CERCLA. We
reverse the award of attorney fees under CERCLA, and
the award of litigation expenses to the extent that award
included expenses not recoverable as costs under 28
U.S.C. §§ 1821(6) and 1920. We also reverse the
finding of liability under the HWMA, and the award of
loss-of-use damages under the WPLA.

2. At page 4297 of the slip opinion, the first full ——
which begins "We do not decide” is deleted and the following is
inserted in its place:

We reverse the district court’s dismissal of the
plaintiffs’ intentional common-law nuisance claim. We

negligence, it does not preempt the common-law
nuisance claim based on allegations of intentional
conduct, and we remand that claim to the district court.

3. At page 4311 of the slip opinion, part D is deleted and
the following is inserted in its place:

D. Did the district court err in awarding attorney fees
and litigation expenses under CER ?

atto’ fees and litigation expenses under CERCLA.
After appeal was filed, we held that attorney fees
are not recoverable under CERCLA. Stanton Road

B-9

Neither we nor the Supreme Court has decided the
question whether litigation expenses over and above the
expenses recoverable under 28 U.S.C. §§ 1821(b) and
1920 may be recovered in a CERCLA action. But see
Key Tronic, 114 S. Ct. at 1967 n.14. In the present
case, the district court’s award of litigation expenses
totalled $436,705.31. This award included such items as
travel, lodging, expert witness fees, long distance
telephone calls and meals.

"[T}he full extent of a federal court’s power to shift
litigation costs absent express statutory authority to go
further” is defined by 28 U.S.C. §§ 1821((b) and 1920.
West Virginia Univ. >. Inc. v. Casey, 499 U.S. 83,
86 (1991). Unless CERCLA permits the recovery of
| litigation expenses in excess of those recoverable under
28 U.S.C. §§ 1821(6) and 1920, the district court
exceeded its authority in making its litigation expense
award.

CERCLA authorizes private parties to recover

costs of response... ." 42 U.S.C. § 9607

(a)(4)(B). CERCLA defines “response” as including

“enforcement activities." id. at § 9601(25). The

plaintiffs argue that a private cost recovery action is an

enforcement activity, making litigation expenses
recoverable response costs. We disagree.

Key Tronic is instructive. There, in holding that
attorney fees are not recoverable for bringing a cost
recovery action under CERCLA, the Court stated that
the phrase “enforcement activities" should not be
construed “as ve my hy kind of private cost
recovery action at issue in [that] case." Key Tronic, 114
S. Ct. at 1967. As in Key Tronic, the present litigation
involves a pri cost recovery action under CERCLA.
Because ing this litigation cannot be classified as an
“enforcement activity” under CERCLA, the district court
exceeded its authority to the extent its award of litigation
costs exceeded those costs recoverable under 28 U.S.C.
$$ 1821(>) and 1920.

weft yp Aw te dy A, inion, the first paragraph
under part V which begins “In S eueee tien’ to ammeded.
eee eee ee in

B-10

Attorney fees for bringing a cost recovery action are not
recoverable under CERCLA. Key Tronic, 114 S. Ct. at
1967; Stanton Road, 984 F.2d at 1020.

5. At page 4326 of the slip opinion, the second paragraph
under part V which begins "The plaintiffs also contend" is deleted
and the following is inserted in its place:

The plaintiffs also contend the district court should
not have dismissed their common-law nuisance claims.
The plaintiffs base these claims on allegations of
negligent and intentional conduct. While WPLA broadly
preempts many common-law remedies, it 3 son
excludes claims based on “intentionally caused harm."
Wash. Rev. Code Ann. § 7.72.010(4) (West 1992).
This exclusion applies to the plaintiffs’ intentionally
caused nuisance claim. The WPLA preempts the
plaintiffs’ common-law nuisance claim based on
allegations of intentional conduct.

Nor are damages which may be recoverable on the
intentional nuisance claim subsumed within the CERCLA
recovery. Washington law provides for the recovery of
"the loss of use or of income [from the land] for a
reasonable time pending such restoration." Colella v.
King County, 433 P.2d 154, 158 (Wash. 1967). On
remand the district court should determine whether
ASARCO’s conduct constituted an intentional nuisance
under Washington law and, if so, what damages are
recoverable.

6. At page 4326 of the slip opinion, the first paragraph
under the heading CONCLUSION is amended. The first two
sentences are deleted and the following sentences are inserted in
their place:

We affirm the district court’s award of es
under CERCLA. We reverse the district court’s award
of attorney fees under CERCLA, and its award of

B-11

"CONCLUSION" and which ends on page 4327 with the words
“award which we uphold.", the following sentence is added at the
end of the paragraph: “We remand to the district court the issue
whether ASARCO’s conduct constituted an intentional nuisance
and, if so, what damages are recoverable."

OPINION
THOMPSON, Circuit Judge:
OVERVIEW

This suit arises from the pollution of several sites near the
Port of Tacoma ("the Port") by heavy metal contaminants leached
from a slag and woodwaste mixture. ASARCO, Inc.
("ASARCO") produced the slag as a by-product of its smelting
operations. ASARCO was found liable to the site owners and
operators under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601-9626
(1988) ("CERCLA"); the Washington Hazardous Waste
Management Act, Wash. Rev. Code Ann. § 70.105.005 et seq.
(West 1992) ("the HWMA"); and the Washington Products
Liability Act, Wash. Rev. Code Ann. § 7.72.010 et seq. (West
1992) ("the WPLA").

On appeal, ASARCO contends slag is excluded from
CERCLA’s definition of hazardous substances under the Bevill
Amendment, and the jury’s finding that slag was a product for
WPLA purposes precluded a finding that it was a hazardous
substance under the HWMA and CERCLA. It also argues the
State statute of limitations had expired on all the state law claims.

ASARCO further contends the district court erred in denying
its motion for summary judgment on the HWMA claims because
its sales of slag occurred before the HWMA allowed a private
— of ee the slag sales occurred at a time when

ington regulations excl “materials in commerce” from
the HWMA.

ASARCO also argues the district court erred by imposing
response costs against it under CERCLA for the of the
site known as the “Portac site" because the claimants failed to
comply with the National i Plan (“the NCP");
awarding attorney fees and costs CLA which are not

under the statute; awarding loss-of-use damages under

B-12

the WPLA for loss of use of the Portac site; and making various
awards of attorney fees, costs, prejudgment interest under
state law.

ont oni
Finally, ASARCO argues that it is entitled to

because the district court erred in making rulings that affected the
jury’s verdict on the question of comparative fault. In support of
this argument it contends the district court erred by refusing
admit evidence of the plaintiffs’ violations of the —
requirements of the Clean Water Act, 33 U.S.C. § 1342(p)
(1988); refusing to instruct the jury that evidence of violations of
the Washington Water Pollution Control Act, Wash. Rev. Code
Ann. § 90.48.010 et seq. (West 1992) ("the WPCA"), was
evidence of negligence; and giving erroneous jury instructions
under the HWMA.

The plaintiffs cross-appeal. They contend the district court
erred in reducing their attorney fees under CERCLA by the

their claims under the Washington Model Toxics Control Act,
Wash. Rev. Code Ann. § 70.105D.010 et seq. (Amended 1993)
("the MTCA").

We have jurisdiction under 28 U.S.C. § 1291. We affirm
the award of d under CERCLA. We reverse the award of

I

B-13

common-law nuisance claim based on allegations of intentional
conduct, and we remand that claim to the district court.

FACTS

ASARCO has been smelting copper ore at its smelter near
Tacoma since 1905. Smelting separates copper out of copper ore
and produces large amounts of a by-product called slag. For
many years ASARCO dumped most of its slag into
Commencement Bay. It had an agreement with the Metropolitan
Park District of Tacoma to maintain a breakwater at that site.

In about 1973, ASARCO embarked on a plan to develop a
market for its slag. It contracted with Black Knight, Inc.
("Black Knight") to take all of ASARCO’s slag and resell what
it could. Black Knight decided to market the slag for use as
"ballast" in logyards. The logyards used the slag essentially like
gravel, to provide firmer ground. This made the storage of logs
and the operation of heavy equipment easier. The logyards would
use a load of slag until it became too mixed together with
woodwaste and other debris. They would then have it hauled
away and put down a new load. Beginning in 1978, the six
ry PS involved in this suit hauled the slag/woodwaste to the B
& L Landfill.

In 1980, the Environmental Protection Agency ("the EPA")
found high concentrations of heavy metals in water runoff from
one of the Murray-Pacific logyards. The EPA turned its findings
over to the Washington Department of Ecology ("the WDOE").
The WDOE determined that slag was the likely cause of the
contamination. Over the course of the next several years the
WDOE sent letters, made phone calls, and held meetings with
representatives of the affected sites, but it took no formal action.
In 1986, WDOE began formally requiring cleanups. This case
concerns who will bear the cost of these cleanups.

' _ All of the sites listed below were contaminated by slag
produced by ASARCO:

Louisiana-Pacific site: Owned and operated by Louisiana-

Portac site: Owned by the Port of Tacoma; operated by

B-14

The first party to file suit was Louisiana-Pacific Corp.
("Louisiana-Pacific”). It sued ASARCO for response costs for the
cleanup of its logyard and for contribution or indemnity for its
liability for the cost of cleanup of the B & L Landfill. It brought
the suit under CERCLA. ASARCO counter-claimed against
Louisiana-Pacific under CERCLA and state law.

ASARCO also brought third-party claims against several other
logyards that had disposed of slag/woodwaste mix at the B & L
Landfill. It also sued William Fjetland, the owner and operator
of B & L Landfill and B & L Trucking (which had transported
the mix), and L-Bar Products, Inc. ("L-Bar"), which had bought
assets of Industrial Mineral Products ("IMP"), the parent company
of Black Knight. Some of these third-party ants then
counter-claimed against ASARCO asserting claims under
CERCLA, the HWMA, the MTCA, and the WPLA. These
parties also asserted common-law claims against ASARCO. The
common-law claims included trespass, nuisance, negligence,
negligent misrepresentation, fraud and breach of warranty.

The Port, which owned some of the logyard sites, then sued
ASARCO for response costs under CERCLA and state law, and
for indemnity and contribution for cleaning up the B & L

Wasser & Winters site: Owned by the Port of Tacoma;
operated by Wasser & Winters.

Cascade Timber site: Owned by the Port of Tacoma;
operated by Cascade Timber.

Murray-Pacific #1 Site: Owned and operated by Murray-
Pacific.

Murray-Pacific #2 Site: Owned by the Port of Tacoma;
operated by Murray-Pacific.

B & L Landfill site: Owned and operated by Fietland.
Contaminated by ASARACO slag dumped after use as ballast
by Louisiana-Pacific. Portac, Wasser & Winter, Cascade
imber and Murray-Pacific. Ren Fo EE
Trucking, both owned by Fjetl ; the slag to the

With the exception of the B & L Landfill, all the sites are
logyards.

WAN! 2

B-15

Landfill. ASARCO filed counter-claims and cross-claims. Later
ASARCO amended its third-party complaint in the Louisiana-
Pacific action to include claims against another Fjetland company
and IMP.

On ASARCO’s motion, the district court dismissed all the
state common-law claims except trespass, on the ground that they
were preempted by the WPLA. It also dismissed the MTCA
claims because at that time the MTCA did not provide for a
private cause of action.’ Finally, the court dismissed ASARCO’s
claims against IMP and L-Bar.” The remaining state law claims
(HWMA, WPLA and trespass) were tried to a jury. The
CERCLA claims were tried to the court.

The jury found ASARCO liable to each plaintiff on both the
WPLA and HWMA claims. The jury found no liability for
trespass. The district court found ASARCO liable under
CERCLA.

In the damage phase of the trial, the jury found ASARCO
between 75% and 100% liable under state law for the cleanup
costs at the various sites. The court found ASARCO between
79% and 100% liable for the cleanup costs at the sites under
CERCLA. The court’s assessment of comparative fault under
CERCLA was higher for each site than the jury’s state law
assessment. The court then used the respective percentages to
compute ASARCO’s liability under state law and CERCLA for
the Portac site, where remedial actions had been completed. It
also awarded attorney fees under both CERCLA and the HWMA,

? The suit begun by Louisiana-Pacific was consolidated
with the one begun by the Port. The six logyards and the Port
were realigned as plaintiffs with ASARCO as the only defendant.
Fjetland and his companies remained third-party defendants. For
the most part, the various plaintiffs act in concert in this appeal.

> As discussed in following Part IV, the district court's
holding on Ly ye polos) was eee ¢ Lee time. — oral
argument is , however, ington legislature
amended the MTCA to a private, and saldeasiive, cause
of action. Act of May 12, 1993 ch. 70.105D 1993 Wash. Laws
Reg. Sess., Subst. Senate Bill no. 5404, sec. 1.

* The claims against IMP and L-Bar are the subjects of
separate appeals.

B-16

and costs under both federal and state law. It reduced these fees
and costs by the relevant comparative fault percentages. This
appeal and cross-appeal followed.

I
CERCLA LIABILITY

ASARCO argues its liability to all plaintiffs under CERCLA
should be reversed because slag contamination is excluded from
CERCLA liability under the Bevill Amendment, and the jury’s
finding that slag is a product under the WPLA precluded a
finding by the court that it was a waste under CERCLA.
ASARCO further argues that the liability i on it for the
cleanup of the Portac site should be reversed the cleanup
did not comply with the NCP. Finally, ASARCO argues that
even if it is liable under CERCLA, the district court erred in
awarding the plaintiffs attorney fees and costs.

A. Is slag a hazardous substance under CERCLA despite the
Bevill Amendment reference in section 9601(14)(C)?

ASARCO contends that slag is excepted from the definition
of "hazardous substance” under CERCLA, 42 U.S.C. § 9601(14).
This section of the statute provides:

The term "hazardous substance” means (A) any substance
designated pursuant to Section 1321(b)(2)(A) of Title 33,
(B) any element, compound, mixture, solution, or
substance designated pursuant to section 9602 of this tile,
(C) any hazardous waste having the characteristics
identified under or listed pursuant to section 3001 of the
Solid Waste Disposal Act [42 U.S.C.A. § 6921] (but not
including any waste the regulation of which under the

has been suspended by Act of ress), (D)
pollutant listed under section 1317(a of Title 33, any
hazardous air pollutant listed under section 112 of the
Clean Air Act [42 U.S.C.A. § 7412], and (F) 7
imminently hazardous chemical substance or mixture

B-17

include natural gas, natural gas liquids, liquefied natural
gas, or synthetic gas usable for fuel (or mixtures of
natural gas and such synthetic gas).

42 U.S.C. § 9601(14) (1988) (emphasis added). It is the
italicized exception, which is a reference to the "Bevill
Amendment" to the Resource Conservation and Recovery Act of
1976, 42 U.S.C. § 6901 et seq. (1988) ("the RCRA"), on which
ASARCO relies.°

[1] It is undisputed that slag is a material exempted from
RCRA regulation under the Bevill Amendment. ASARCO
contends the incorporation of this exemption into section
9601(14)(C) of CERCLA operates to except slag from CERCLA
regulation as well. The EPA and the plaintiffs contend the
exception in CERCLA § 9601(14)(C) merely prevents slag from
being characterized as a hazardous substance under that particular
subsection. They argue that if slag releases substances
characterized as hazardous under subsections 9601(14)(A), (B),
(D), (E) or (F), slag is subject to CERCLA regulation.

This is a question of first impression in this circuit. The
D.C. Circuit in Eagle-Picher Indus., Inc. v. United States EPA,
759 F.2d 922 (D.C. Cir. 1985), concluded that the specific
exception in subsection (C) applied only to that subsection and
that mining wastes and fly ash were subject to CERCLA liability
as hazardous substances under other subsections of section
9601(14). We agree with this approach.

* The Bevill Amendment provides, in relevant part that

[nJotwithstanding the provisions of paragraph (1) of this
subsection, each ct an below shall, except as provided
in subparagraph (B) of this paragraph, be subj only to
regulation under other applicable provisions of Federal or
State law in lieu of this subchapter until at least six months
after the date of submission of the applicable study required
to be conducted . . . and after promulgation of regulations in
accordance with subparagraph (C) of this paragraph:

(i) Fly ash waste, bottom ash waste, slag waste, . . .
42 U.S.C. § 6921(6)(3)(A) (1988) (emphasis added).

B-18

[2] The district court found that slag’s ser, ase include
copper, lead, arsenic and zinc. These are h substances
under subsections (A), (B) and (D) of section 9601(14). See 40
C.F.R. § 302.4 (listing copper, arsenic, lead and zinc under
CERCLA § 102); 40 C.F.R. § 401.15 (listing , arsenic,
lead and zinc under Clean Water Act § 307); 40 C.F.R. § 116.4
(listing arsenic trioxide under Clean Water Act § 311).

[3] It is sufficient for CERCLA regulation that a substance
is covered by any of the subsections of section 9601(14). Eagle-
Picher, 759 F.2d at 930. The fact that slag is excepted from
subsection (C) by the Bevill Amendment has no bearing on
whether slag in its component forms is ex from the other
subsections. If it were to be so excepted, logically a more
general exception applicable to all of the subsections, or at least
to those that would encompass slag by including its components,
would have been used. This is what Congress did when it
excepted petroleum products from all of the subsections by the
general exception at the end of section 9601(14) which provides:

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 under subparagraphs (A) through
(F) of this paragraph, and the term not include
natural gas, natural gas liquids, liquefied natural gas, or
synthetic gas usable for fuel (or mixtures of natural gas
and such synthetic gas).

42 U.S.C. § 9601(14) (1988).

Had Congress intended to except slag from CERCLA
regulation as it did petroleum products, it easily could have done
so. It did not. It is clear from the plain language and structure
of section 9601 that the specific exception for slag in subsection
(C) applies only to that subsection and that slag is regulated by
CER to the extent that it falls under any subsection of
section 9601(14).

ASARCO argues the meaning of section 9601(14) is not plain
from its | , and that the legislative history demonstrates the
statute’s . It points to Senate Report 96-848, a report
on a draft of CLA. This report states in pertinent part:

REED os

B-19

Congress under the Solid Waste Disposal Act is excluded
from designation for the purpose of S. 1480,
notwithstanding the presence in such substance of any
hazardous or toxic chemical.

Sen. Rep. No. 96-848, reprinted in The Environmental Law
Institute, Superfund: A Legislative History, at 12 (emphasis
added).

Assuming arguendo that section 9601(14) is ambiguous as
ASARCO contends, any ambiguity has been laid to rest by the
interpretation of the statute by the EPA, the agency charged with
administering CERCLA.

When a court reviews an agency’s construction of [a]
Statute which it administers, it is confronted with two
uestions. First, always, is the question whether
ngress has directly spoken to the precise question at
issue. If the intent of Congress is clear, that is the end
of the matter; . . . . If, however, the court determines
Congress has not directly addressed the precise question
at issue, the court does not on impose its own
construction on the statute, as would be necessary in the
absence of an administrative interpretation. Rather, if
the statute is silent or ambiguous with respect to the
specific issue, the question for the court is whether the
agency’s answer is based on a permissible construction
of the statute.

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. ’
467 U.S. 837, 842-43 (1984).

ASARCO argues that under INS v. Cardoza-Fonseca, 480
U.S. 421, 445-49 (1987), a question of pure Statutory construction
entitles the an charged with ped
deference. i

it referred to both cases in determining the meaning of a statute
without noting any conflict. It suggested that the result in

B-20

for the proposition that if the first step failed, the agency’s
interpretation should be accepted if reasonable. /d.

The EPA has interpreted section 9601(14) to mean that the
Bevill Amendment exception in subsection (C) refers only to that
subsection. 48 Fed. Reg. 40663 (1983). The reasonableness of
this interpretation is demonstrated by our analysis of what we
have concluded to be the plain meaning of the statute. See supra.

ASARCO nonetheless argues we should hold that the EPA’s
interpretation of the statute is unreasonable because it would result
in the complete nullification of the Bevill Amendment exception
in subsection (C), an exception which specifically applies to slag.
It points to the uncontradicted trial testimony of Dr. Twidwell, a
doctor of metallurgical engineering with extensive experience.
Dr. Twidwell testified that the components of all or virtually all
Bevill Amendment wastes would fall under one of the other five
categories of hazardous substances in section 9601(14). ASARCO
argues Congress would not have enacted a meaningless provision
of the statute. According to ASARCO, unless slag is entirely
exempted from CERCLA by the Bevill Amendment exception in
subsection (C), that exception is meaningless, because what the
Bevill Amendment excepts from the statute in subsection (C)
would be cancelled out by the inclusion of slag components in
other subsection of section 9601. |

ASARCO’s argument is based on a false premise. It assumes
that Congress meant for the statute to say something other than
what it plainly says. What is clear is that Congress thought about
an exemption for petroleum products and about hazardous wastes,
including slag which is covered by the Bevill Amendment.
Congress expressly provided a general exemption for petroleum
products. It provided an exemption for slag only in subsection

(C).

We hold that the specific exception for slag in subsection (C)
of section 9601(14) of CERCLA applies only to that subsection
and that slag and its components are regulated to the extent they
fall within any of the other subsections of setion 9601(14).
Because the components slag leaches into the soil fall within at
least one of the other subsections of section 9601(14), slag is
regulated as a hazardous substance by CERCLA.

B. If slag is a “product” under the WPLA, may it also be a
“waste” under CERCLA?

B-21

ASARCO contends that the jury’s special verdict finding that
slag was a "product" for purposes of the Washington Products
Liability Act precludes the district court from finding that slag is
a "waste" under CERCLA.

[4] Washington law defines a product as “any object
possessing intrinsic value, capable of delivery either as an
assembled whole or as a component part or parts, and produced
for introduction into trade or commerce." Wash. Rev. Code
Ann. § 7.72.010(3) (West 1992). The uy. by it special verdict,
determined that slag fit this definition. CERCLA, on the other
hand, imposes liability on "any person who .. . arranged for
disposal or treatment . . . of hazardous substances owned or
possessed by such person... ." 42 U.S.C. § 9607(3) (1988).
The issue raised by ASARCO is whether the sale of slag to the
logyards can simultaneously be both the sale of a product with
intrinsic value in trade or commerce under Washington law, and
the disposal of a hazardous substance under CERCLA. We
conclude that it can.

The WPLA and CERCLA address different concerns. The
WPLA is a codification of the common law of products liability,
with such changes as the Washington legislature thought
appropriate. CERCLA is a federal law designed to facilitate the
cleanup of waste that threatens the environment. A by-product of
a metallurgical process, if sold, can be a product for purposes of
one and waste for purposes of the other. This is especially so
given that CERCLA is to be broadly interpreted to achieve its
remedial goals. 3550 Stevens Creek Assoc. v. Barclays Bank, 915
F.2d 1355, 1363 (9th Cir. 1990), cert. denied, 111 S. Ct. 2014
(1991).

District courts have concluded that CERCLA liability is
possible for the disposal of wastes that are also products. See,
e.g., United States v. Conservation Chem. Co., 619 F. Supp.
. 162, 240-41 (W.D. Mo. 1985) (sale of lime slurry and fly ash for
cleanup of environmental site); State of New York v. General
Elec. Co., 592 F. Supp. 291, 297 (N.D.N.Y. 1984) (sale of used
transformer oil to dragstrip for use in controlling dust); United
States v. A & F Materials Co., Inc., 582 F. Supp. 842, 844-45
(S.D. Ill. 1984) (sale of caustic solution to neutralize acidic oil).

In A & F Materials, the district court was faced with the
question whether the sale of spent “caustic solution,” a by-product
of the manufacture of jet aircraft, could subject McDonnell
Douglas to CERCLA liability. McDonnell Douglas was able to

B-22

sell the solution for 7.2¢ per gallon to A & F Materials which
used it to neutralize acidic oil. Jd. at 844. In deciding whether
this was a waste disposal for CERCLA purposes, the court said
"the definition of waste was intended to cover those hazardous
materials which are of nominal commercial value and which were
sometimes sold or reused and sometimes discarded." Id. The
court concluded that the question whether the solution was a waste
was a disputed issue of fact and that summary judgment was
inappropriate. Jd. at 845.

[5] Slag, like the caustic solution in A & F Materials, is at
best a by-product. ASARCO’s principal business is the smelting
of copper. McDonnell Douglas’s principal business is the
manufacture of aircraft. Both slag and the caustic solution are
by-products with a nominal commercial value. The logging
companies paid $3.50 per ton for slag, and preferred it to gravel
as a “ballast." Similarly, A & F paid 7.2¢ per gallon for the
caustic solution and used it to neutralize acidic oils. Both by-
products were materials their producers wanted to get rid of
whether they could sell them or not. ASARCO had dumped slag
in Commencement Bay for years before that means of disposal
became infeasible. McDonnell Douglas paid to have the caustic
solution hauled away after A & F stopped buying it. We
conclude that the jury’s finding that slag was a product under the
WPLA did not preclude the court from finding it was a waste
under CERCLA.°

* ASARCO points to a number of cases in which courts
have held that products were not waste for purposes of CERCLA
or that sales were not disposal. See, e.g., 3550 Stevens Creek
Assoc. v. Barclays Bank, 915 F.2d 1355 (9th Cir. 1990), cert.
denied, 111 S. Ct. 2014 (1991); Dayton Indep. School Dist. v.
U.S. Mineral Products Co., 906 F.2d 1059 (Sth Cir. 1990);
Florida Power & Light Co. v. Allis Chalmers ., 893 F.2d
= (11th Beeaine graben rinc however, i atte

at were as ucers’ any ipal bus .
at ee to get rid of. Here,
’s i ising

ASAR accounting manager responsible for devising a solution
to the problem of slag accumulation described the dilemma facing
ASARCO as follows: “Our life Pog There
was a limited area for disposing of the slag.

of the slag, you are out of business."

you can’t get rid

B-23
C. The Portac Site and Substantial Compliance under the NCP

Whatever ASARCO’s liability may be for cleanup costs at
other sites, it contends it should not be liable for the cleanup costs
that were incurred by the Port and Portac in cleaning up the
Portac site. ASARCO argues the cleanup of that site was not
handled as required by 42 U.S.C. § 9607(a)(4)(B) (1988), the
relevant portion of the NCP. Specifically, it contends that the
Port and Portac failed to con sly with the notice and comment
provisions of the NCP before choosing a 30-inch gravel cap
covered by 13 inches of compacted concrete spread over 30 acres,
at a cost of nearly $5 million as the remedy for the Portac site.

40 C.F.R. § 300.67(d) (1985) provided that

[ijn remedial actions . . . feasibility studies that
Outline alternative remedial measures must be
provided to the public for review and comment
for a period of not less than 21 calendar days.
Such review and comment shaii precede
selection of the remedial response. Public
meeting(s) shall, in most circumstances, be held
during the comment period.’

The district court found that the NCP was substantially complied
with. Both parties concede that under our decision in Wickland
and NL Indus., strict compliance is not required. Wickland, 792
F.2d at 891; NL Indus., 792 F.2d at 898-99.

[6] Initially, the parties disagree as to what standard of
review we should apply in determining whether the district court
erred in deciding that the Port and Portac substantially complied
with the NCP. We hold that the issue of substantial compliance
is a mixed question of law and fact. Its resolution involves the
application of the law to a set of facts. Our review is de novo.
Boone v. United States, 944 F.2d 1489, 1492 (9th Cir. 1991).
To the extent, however, that specific factual findings made by the
district court are in question, we review for clear error. Fed. R.
Civ. P. 52(a); SEC v. American Principals Holding, Inc. (In re

’ The NCP regulations applicable are those in effect at the

time costs are incurred. Wickland Oil Terminals v.
ASARCO, Inc., 792 F.2d 887, 891 (9th Cir. 1986); NL Indus. v.
A 898 (9th Cir. 1986). Here all parties

the 1985 regulations govern.

B-24

San Vicente Medical Partners Ltd.), 962 F.2d 1402, 1405 (9th
Cir.), cert. denied, 113 S. Ct. 210 (1992).

[7] Compliance here was not perfect, but it was substantial.
The Port held six Port Commission meetings at which the cleanup
of the Portac site was on the agenda. e fourth and fifth of
these meetings are the most important. They occurred after Hart
Crowser prepared a feasibility study outlining cleanup options for
the Portac site. The Port received the study on June 17, 1988.
The cleanup plan was on the agenda and discussed in at least two
later meetings, on August 11 and September 22, 1988. These
meetings and their agendas were well advertised, open to the
public, and more than 2! days apart. The Crowser study was
available for public examination at the Port’s office.

ASARCO contends the Port and Portac had already decided
on the paving option before the August 11th meeting, and
consequently they did not comply meaningfully with the notice
and comment provisions of the NCP. ASARCO points to
references to the “Portac Paving" in a request for Port
Commission action, and a reference to an agreement to pave the
site in a letter written by the Port’s chief engineer on August 2,
1988. The district court considered at some length the question
whether the decision to pave was made before September 22,
1988 and found:

The final remedy was not chosen until the
September meeting, as I understand what’s before me.
Certainly, from way back in the spring, the parties were
pointing at paving, but it seems to me they were pointing
at paving because that, from the beginning appeared to
be the most likely result of this study. The evidence
does not support the idea here, in my view, that all
other alternatives were rejected out of hand before they
were even made or when they were first made
unreasonably in some way. I think ASARCO reads into
some tentative decision and tentative conclusions
something that is not really there.

As I say, there is nothing wrong with focusing on
what appears to be the best remedy early on, so long as
don’t make the decision until the time for decision.

at decision was not finally made until the September
"88 Port meeting.

ee Se eee es _

B-25

The district court’s finding that the final decision on paving
was not made until September 22, 1988 is a finding of fact which
is not clearly erroneous. We have reviewed de novo the
applicable law and the question of substantial compliance. We
or that the Port and Portac substantially complied with the
NCP.

D. Did the district court err in awarding attorney fees and
litigation expenses under CERCLA?

[8] The district court awarded the plaintiffs their attorney
fees and litigation expenses under CERCLA. After this appeal
was filed, we held that attorney fees are not recoverable under
CERCLA. Stanton Road Ass’n v. Lohrey Enter., 984 F.2d 1015,
1020 (9th Cir. 1993). The Supreme Court recently held the
same, except for attorney fees "closely tied to the actual cleanup."
Key Tronic Corp. v. United States, 114 S. Ct. 1960, 1967 (1994).

Neither we nor the Supreme Court decided the question
whether litigation expenses over and above the expenses
recoverable under 28 U.S.C. §§ 1821(6) and 1920 may be
recovered in a CERCLA action. But see Key Tronic, 114 S. Ct.
at 1967 n.14. In the present case, the district court’s award of
litigation expenses totalled $436,705.31. This award included
such items as travel, lodging, expert witness fees, long distance
telephone calls and meals.

"(T]he full extent of a federal court’s power to shift litigation
costs absent express statutory authority to go further" is defined
by 28 U.S.C. §§ 1821(b) and 1920. West Virginia Univ. Hosp.,
Inc. v. Casey, 499 U.S. 83, 86 (1991). Unless CERCLA permits
the recovery of litigation expenses in excess of those recoverable
under 28 U.S.C. §§ 1821(b) and 1920, the district court exceeded
its authority in making its litigation expense award.

CERCLA authorizes private parties to recover “necessary
costs of response... . ." 42 U.S.C. § 9607(a)(4)(B). CERCLA
defines “response” as including “enforcement activities." Jd. at
§ 9601(25). The plaintiffs argue that a private cost recovery
action is an enforcement activity, making litigation expenses
recoverable response costs. We disagree.

[9] Key Tronic is instructive. There, in holding that attorney
fees are not recoverable for bringing a cost recovery action under
CERCLA, the court stated that the phrase “enforcement activities”
should not be construed “as encompassing the kind of private cost

B-26

recovery action at issue in [that] case." Key Tronic, 114 S. Ct.
at 1967. As in Key Tronic, the = litigation involves a
private cost recovery action under CERCLA. Because bringing
this litigation cannot be classified as an “enforcement activity"
under CERCLA, the district court exceeded its authority to the
extent its award of litigation costs exceeded those costs
recoverable under 28 U.S.C. §§ 1821(b) and 1920.

II
HWMaA LIABILITY

ASARCO challenges the imposition of liability under
Washington’s Hazardous Waste Management Act. While the
award of cleanup costs under the HWMA is no longer in issue,
because it is subsumed within the CERCLA award we have
upheld, both attorney fees and prejudgment interest were awarded
under the HWMA. ASARCO’s liability for these items, attorney
fees and prejudgment interest, is dependent on its liability under
the HWMA.

ASARCO contends the judgment rendering it liable under the
HWMaA should be reversed. It argues the district court erred in
refusing to grant its motion for summary judgment. The motion
was based on the ground the the HWMA did not provide for a
private cause of action at the time of the slag sales, and the
amendment creating the private cause of action is not retroactive.
It also argues the district court should have granted its motion for
summary judgment because the jury’s ing that slag was a
product under the WPLA preciuded a finding that it was also a
hazardous waste under the HWMA. ASARCO contends that even
if we reject the previous two arguments, we should reverse the
HWMaA awards and remand for new findings because the district
court erred by denying its motion for a directed verdict based on
the state statute of limitations; using Washington’s 1984
regulations to instruct the jury; refusing to admit evi that the
plaintiffs violated the federal Clean Water Act; refusing to instruct
the jury that the plaintiffs’ violation of the WPCA was evidence
- —_ igence; and giving erroneous jury instructions under the

A.

[10] Because we conclude the amendment to the HWMA that
created a private cause of action may not be applied retroactively,
we reverse the attorney fees and prejud interest awards
under the HWMA and do not reach the HWMaA issues.

B-27

In applying the amendment retroactively, the district court
relied on Haddenham v. State of Washington, 550 P.2d 9 (Wash.
1976). In Haddenham, the family of two murder victims sued the
State of Washington for negligently administering a sexual
psychopath program from which the murderer escaped. The
Washington Supreme court considered whether the statute applied
retroactively to preempt the plaintiffs’ tort suit. Jd. at 12. It
stated: Statutes normally will be construed to operate
prospectively only, unless a contrary intent appears ....
Where, however, a statute is remedial and its remedial purpose is
furthered by retroactive application, the presumption favoring
prospective application is reversed." Jd. at 12.

The HWMaA, and particularly the private-cause-of-action
amendment, Wash. Rev. Code Ann. § 70.105.097, are remedial.
Nevertheless, we decline to extend the Haddenham reasoning to
the HWMA.

{11] The statute at issue in Haddenham did not become
effective until approximately six months after the murder, but it
provided for benefits to victims of crimes "on or after January 1,
1972" which was well before the murders. Jd. The Washington
court was at least encouraged in its conclusion by this provision
of the statute. /d. There is no such retroactivity provision in the
private-cause-of-action amendment to the HWMA.

Moreover, by "remedial" we do not understand the
Washington Supreme Court to have meant that retroactive
application will be given to any statute that creates a remedy for
some harm. The statute at issue in Haddenham was remedial in
a different way from the amendment to the HWMA that created
a private cause of action. In Haddenham, the Crime Victims
Compensation Act, the statute in question, created "a
comprehensive compensation plan for victims of crime
incorporating the workmen’s compensation benefit schedule." /d.
at 11. The statute provided a public remedial scheme by which
a recovery could be made against the state.

The amendment to the HWMA created a private cause of
action for damages. Retroactive application of a public remedial
scheme for recovery of compensation from the state does not
affect private cbligations as does a statute that creates a private
liability for a private cause of action where none existed before.
When a public remedial scheme is made retroactive, the
legislature retroactively imposes liability on itself. When, in
contrast, a new private cause of action is made retroactive, the

B-28

legislature retroactively imposes liability on private parties. Thus,
a court’s inference that a public remedial scheme is intended to
apply retroactively is much more reasonable than its inference that
a new private cause of action is intended to apply retroactively.

Finally, we have held that the private cause of action under
the RCRA, a federal statute analogous to the HWMA which the
plaintiffs concede should be used to interpret the HWMA, does
not apply retroactively. Ascon Properties, Inc. v. Mobil Oil Co.,
866 F.2d 1149, 1159 (th Cir. 1989).

We conclude that the private-cause-of-action amendment to
the HWMA does not apply retroactively.

The plaintiffs argue nonetheless that slag continues to leach
hazardous substances into the soil, that this is an ongoing muy
and that judgment was appropriately entered against ASARC
under the HWMA for this injury. We reject this argument.

No court has allowed a recovery for an ongoing iniury under
the HWMA. Cases that have allowed a recovery for ongoing
contamination have done so under 42 U.S.C. § 6973(a) (1988),
the provision of RCRA that gives the EPA administrator the
power to enjoin persons from contributing to ongoing
contamination. See United States v. Northeastern Pharmaceutical
& Chemical Co., Inc., 810 F.2d 726, 740 (8th Cir. 1986), cert.
denied, 484 U.S. 848 (1987); United States v. Price, 523 F.
a 1055, 1070-71 (D.N.J. 1981), aff'd, 688 F.2d 204 (3d Cir.
1982).

The provision of the HWMA at issue here is the private
cause of action provision, more analogous to 42 U.S.C. § 6972
(1988). Cases addressing the ongoing violation theory under the
provision have required that to be an ongoing violator, a
defendant must own, or perhaps control, the property where
—- is taking place. Cf. Fallowfield Dev. Corp. v. Strunk,

U.S. Dist. 5 EXIS 4820 (E.D. Pa.) (allowing RCRA cause
of action where plaintiffs offered to show that defendants retained
equitable ownership of pro pay: its recent sale was
fraudulent); Coburn v. Sun , 1988 U.S. Dist. LEXIS
12548 (E.D. Pa.) mae RCRA” cause of action because
plaintiff no longer owned property).

[12] The plaintiffs cite no section 6972 case imposing
1 Fay wee for a nonowner, and we have found none.
ASARCO does not own or control the properties from which the

B-29

slag/woodwaste mixture continues to leach hazardous substances.
Because ASARCO would not be subject to a private RCRA suit
for an ongoing violation, and because we look to RCRA in
interpreting Washington’s HWMA, we conclude that ASARCO
has no liability for an “ongoing violation” under the HWMA, and
we reverse the judgment against it for attorney fees and
prejudgment interest under that statute.

Il
WPLA CLAIMS

ASARCO contends that we should reverse and remand the
award of damages under the Washington Products Liability Act
("the WPLA"). It argues that the district court erred by rejecting
its motion to dismiss on statute of limitations grounds; refusing to
admit evidence of the plaintiffs’ violation of the Clean Water Act;
refusing to instruct the jury that the plaintiffs’ violations of the
WP[LJA was evidence of negligence; and giving erroneous
HWMaA jury instructions which impacted the comparative fault
calculations. In addition, ASARCO contends that loss-of-use
damages were improperly awarded under the WPLA because they
are not available as a matter of law. We address the last of these
contentions first.

A. Did the district court err in allowing Portac to recover
damages for loss of use under the WPLA”

[13] We agree with ASARCO that the WPLA precludes a
recovery of damages for loss of use of property. Washington
Water Power Co. v. Graybar Elec. Co., 774 P.2d 1199, 1205
(Wash. 1989), amended 779 P.2d 697.

In Washington Water Power co., the Washington Supreme
Court analyzed the provision of the WPLA that defines “harm” as
"any damages recognized by the courts of this state: Provided,
That the term ‘harm’ does not include direct or consequential
economic loss under Title 62A RCW." Wash. Rev. Code Ann.
§ 7.72.010(6) (West 1992). While Washington Water Power Co.

* The plaintiffs argue that ASARCO waived this argument
by not raising it at trial. A review of the record shows, however,
that ASAR orally objected to loss-of-use damages. In
addition, in its briefs in the district court it argued that economic
damages were not recoverable under the WPLA.

B-30

is not directly on point because it dealt with what damages are
available when a defective product harms only itself, some of the
court’s dicta is instructive.

First, the court noted that the WPLA was intended to "restrict
product liabili - plaintiffs to contract remedies for economic loss."
Washington Water Power, 774 P.2d at 1205. The damages at
issue here, for loss of use of a site, resemble contract theory
consequential damages. See Wash. Rev. Code Ann. § 62.A.2-
715(2). More important, however, the Washington Spreme
Court noted approvingly that “[t}he common understanding of
Washington commentators is that the WPLA also. . . overrulfes]
this court’s decision in Berg v. General Motors Corp., 87 Wash.
2d 584, 555 P.2d 818 (1976)." Washington Water Power, 774
P.2d at 1205 (footnote omitted). Berg involved damages
indistinguishable in nature from the damages here. In Berg, a
fisherman had purchased an engine which broke down repeatedly.
Berg, 555 P.2d at 819. He sued requesting, among other things,
the profits he lost as a result of his boat’s downtime. The
Washington Supreme Court held that the fisherman had a product
liability cause of action for these loss-of-use damages. /d. at 822-
25.

If Berg is an example of the sort of damages the WPLA
made unrecoverable in a tort action, the loss-of-use damages here
are not recoverable under that statute. As in Berg, this case
involves (for WPLA purposes) the sale of a defective product,
slag. Also as in Berg, the harm that resulted prevented the
plaintiff from operating his normal business, here a logyard.
Berg allowed loss-of-use damages, essentially lost profits that
would have been earned if the boat had been running. Here
Portac asks for similar damages for loss of use of the site, lost
profits and costs associated with shifting operations to other sites.
The WPLA overruled Berg. It precludes the loss-of-use damages
awarded here.

B. Remaining Damages Under the WPLA

Except for the damages awarded to Portac for loss of use of
the Portac site, all d es awarded under the WPLA are
subsumed within the CERCLA award which we have upheld.
Nevertheless, Oe ane ase astiee
awards were proper, because the district court awarded
plaintiffs prejudgment interest on these awards at the state law
rate, which is greater than the federal rate.

B-31

ASARCO challenges the WPLA damage awards on the
ground that the WPLA claims are barred by the applicable three-
year statute of limitations.

The first lawsuit against ASARCO was filed by Louisiana-
Pacific on May 11, 1988. The district court determined that the
WPLA causes of action did not accrue until 1986, when the
Washington Department of Energy ("WDOE") notified the various
plaintiffs that they had to clean up their properties. The district
court concluded the WPLA claims were not barred by the statute
of limitations.

ASARCO argues the statute of limitations began to run when
the plaintiffs first discovered, or should have discovered, their
properties were damaged by ASARCO’s slag. There was
evidence the plaintiffs had meetings with, and calls and letters
from, the WDOE concerning the contamination of their properties
from slag as early as 1981.

We look to Washington state law to determine when the
statute of limitations began to run on the WPLA claims. In North
Coast Air Serv., Lid. v. Grumman Corp., 111 Wash. 2d 315, 759
P.2d 405 (1988), the Washington Supreme Court held that in
products liability actions, a cause of action accrues when a
claimant discovers, “or in the exercise of due diligence should
have discovered, a factual causal relationship of the product to the
harm." Jd. at 319, 759 P.2d at 407. Stated differently, the
Statute of limitations begins to run when a claimant first learns,
or should have learned, of the essential elements of the possible
cause of action. Rose v. A.C. & S., Inc., 796 F.2d 294, 296
(9th Cir. 1986); Ohler v. Tacoma General Hosp., 92 Wash. 2d
507, 511, 598 P.2d 1358, 1360 (1979). Where a claimant "has
notice of facts sufficient to prompt a person of average prudence
to inquire," the claimant "is deemed to have notice of all facts
which reasonable inquiry would disclose." Virgil v. Spokane
County, 42 Wash. App. 796, 800, 714 P.2d 692, 695 (1986).
Just when a claimant knows or should know the elements of its
cause of action is a question of fact. North Coast Air, 111 Wash.
2d at 319, 759 P.2d at 407.

The essential elements of a products liability claim under
Washington law are duty, breach of duty, causation, and damage
or injury. Rose, 796 F.2d at 296; Hibbard v. Gordon; Thomas,
Honeywell, Malanca, Peterson and O’Hearn, 118 Wash. 2d 737,
747, 826 P.2d 690, 695 (1992); Ohler, 92 Wash. 2d at 511, 598
P.2d at 1360. Here, the district court held that the statute of

B-32

limitations began to run when the DOE ordered the plaintiffs to
clean up their properties, not when they first learned their
properties were contaminated by ASARCO’s slag. The district
court reasoned that until the plaintiffs were required to incur
response costs, they were unaware of the damages they had
suffered under the WPLA and of the injury to their properties.
We disagree.

In assessing the damage element, the statute of limitations
begins to run when the claimant first discovers, or should have
discovered, some damage, not necessarily the full extent of the
damage:

"Where an injury, although slight, is sustained in
consequence of the wrongful act of another, and the law
affords a remedy therefor, the statute of limitations attaches
at once. It is not material that all the damages resulting from
the act shall have been sustained at that time, and the running
of the statute is not postponed by the fact that the actual or
substantial damages do not occur until a later date."
[citations omitted]

Steele v. Organon, Inc., 43 Wash. App. 230, 234, 716 P.2d 920,
922 (1986). See also Zaleck v. Everett Clinic, 60 Wash. App.
107, 802 P.2d 826 (i991).

The full extent of damage or loss need not be known, so long
as the claimant is aware of some injury; "it is uncertainty as to
the fact of damage, rather than its amount, which negatives the
existence of a cause of action. Moreover, neither the speculative
nor uncertain character of damages nor the difficulty of proof will
toll the period of limitation." Steele, 43 Wash. App. at 235, 716
P.2d at 923; see also Zaleck, 60 Wash. App. 107 (plaintiff
suffered damage sufficient to trigger the limitations period when
his thumb became numb following an injection, not when he later
learned he had suffered a permanent partial disability in his
thumb).

Although no Washington case has decided this issue in the
context of contaminated property, other courts have concluded that
an injury to property occurs when a landowner first learns its
pr is contaminated. In Edward Hines Lumber Co. v.
Vulcan Materials Co., 669 F.Supp. 854 (N.D. Ill., 1987), Hines
Lumber filed suit for CERCLA and common law negligence and
product liability damages against a variety of defendants. Jd. at
855. All defendants sold chemicals to Hines Lumber which it

B-33

used in wood treatment and processing. Jd. at 855-56. The
chemicals allegedly caused environmental damage and Hines sued
for its expected future damages. /d. Among other things, the
defendants contended Hines failed to file suit within the state law
statute of limitations. Although no costs of clean up had yet been
incurred, Hines had sold the property and suffered a diminution
of its value as a result of its contamination. The district court
ignored the fact that no response costs had been incurred, and
looked exclusively to the time Hines first learned its property had
been damaged, to determine when its state causes of action
accrued. See also Montana Pole & Treating Plant v. 1.F. Laucks
and Co., 755 F.Supp. 1339 (D. Mont. 1991) (statute of
limitations commenced when owners knew waste preservative
caused environmental damage, not when EPA seized the
property); CAMSI v. Hunter Technology Corp. 230 Cal. App. 3d
1525, 282 Cal. Rptr. 80 (1991).

We find the reasoning of these cases persuasive and apply it
to the WPLA claims of the landowners. Here, the iandowners
knew their properties were damaged when they first began
receiving notices from the WDOE. They obviously knew at that
time the values of their properties were likely diminished,
regardless of future clean up costs the WDOE might require.

[14] We conclude the landowners’ claims under the WPLA
accrued when they became aware, or should have become aware,
of the contamination of their properties. It is uncertain when this
occurred, although ASARCO contends it occurred as early as
1981. This is a factual question which should be addressed on
remand.

The statute of limitations analysis for the lessees’ ae
claims differs somewhat. Under Washington law, onl
and appreciable harm” triggers the limitations period. ie, 3
Wash. App. at 233, 716 P.2d at 922. Unlike landowners, lessees
do not necessarily suffer actual and appreciable harm when the
market value of the underlying fee is diminished
contamination. A ese of property maybe able to ejoy the fu

leasehold

propery and ober relevant considerations. We cannot determine
the record before us whether the lessees here suffered actual

B-34

and appreciable harm and if they did when that occurred.
Accordingly, we remand to the district court the question whether
the lessees suffered actual and appreciable harm as a result of the
contamination, and if so when the statute of limitations periods
began to run for each of the lessees who suffered such harm.

We do not reach the question whether the WPLA damages
sought by the plaintiffs are sufficiently liquidated to support an
award of prejudgment interest under Washington law.

ASARCO also argues that the district court erred in finding
the Port of Tacoma immune from the effect of the statute of
limitations by virtue of its status as a sovereign entity. ASARCO
contends the Port acted in a proprietary manner in leasing the
logyards. Under Washington law, a statute of limitations does not
run against a eg 4 entity when actions are "brought in the
name or for the benefit of the state... ." RCW 4.16.160.

"{MJunicipal actions are ‘brought for the benefit of the state’
when those actions arise out of the exercise of powers traceable
to the sovereign powers of the state which have been delegated to
the municipality." Washington Public Power Supply System v.
General Elec. Co., 113 Wash. 2d 288, 293, 778 P.2d 1047, 1049
(1989) (en banc). In determining whether the Port’s activity was
sovereign or proprietary, "we may look to constitutional or
statutory provisions indicating the sovereign nature of the power,
and we may consider our traditional notions of powers which are
inherent in the sovereign. Relevant to this analysis are the
general powers and duties under which the municipality acted, the
purpose of those powers, and whether the activity or its purpose
is normally associated with private or sovereign concerns." Id.
at 296, 778 P.2d 1051.

[15] Applying these criteria to the case at hand, we hold that
the Port of Tacoma acted in a sovereign capacity in leasing the
logyards. The Washington Constitution provides that areas
designated by the port commission, up to 2000 feet from the
harbor line, "shall be reserved for landings, wharves, streets, and
other conveniences of navigation and commerce." Wash. Const.
Art. XV, § 1 (emphasis added). The Constitution also
specifically provides for the leasing of these areas. Id. at § 2.
We read the — Rcrahey of me coo —
commerce" to inc ogyards. ington statutory law also
contemplates the development of “commercial transportation,
transfer, handling, storage and terminal facilities, and industrial
improvements” by the port districts. RCW 53.04.010. The port

B-35

districts may lease these properties "for such purposes and upon
such terms as the port commission deems proper." RCW
53.08.080.

[16] Furthermore, we find it important that in leasing the
property and Port did not act as a private party would act, leasing
the land to any party offering the best terms. Instead the Port
leased the property for logyards and subject to certain conditions
designed to further harbor development. In leasing the logyards,
the Port implemented part of its comprehensive harbor
improvement plan. Non-monetary concerns motivated the Port in
leasing the property, supporting the Port’s contention that the
action was more sovereign than proprietary. Because the Port
acted in its sovereign capacity in leasing the logyards, the statute
of limitations does not run against it.

IV
MTCA LIABILITY

[17] The plaintiffs, with the exception of Louisiana-Pacific,’
argue we should reverse the district court’s dismissal of their
claims under the Washington Model Toxics Control Act, Wash.
Rev. Code Ann. § 70.105D.010 et seq. (Amended 1993). The
district court dismissed the MTCA claims because it concluded the
MTCA did not crate a private cause of action, a holding which
was later confirmed by the Washington Supreme Court. See Bird-
Johnson Corp. v. Dana Corp., 833 P.2d 375 (Wash. 1992).
During the pendency of this appeal, the Washington legislature
amended the MTCA to overturn Bird-Johnson. The plaintiffs
brought this to our attention as authorized by Federal Rule of
Appellate Procedure 28(j). Pursuant to our order, the parties filed
supplemental briefs addressing the question whether the recent
amendment to the MTCA should be applied retroactively to
permit the plaintiffs to pursue their MTCA claims.

The amended statute provides that

Except as provided in RCW 70.105D.040(4)(d), a person
may bring a private right of action, including a claim for
contribution or for declaratory relief, against any other
person liable under RCW 70.105D.040 for the recovery

* Louisiana-Pacific did not allege a claim under the MTCA
in the district court.

a

of remedial action costs... . Remedial action costs
shall include reasonable attorneys’ fees and expenses . .
. . This section applies to all causes of action regardless
of when the cause of action may have arisen. To the
extent a cause of action has arisen prior to the effective
date of this act, this section applies retroactively, but in
all other respects it applies prospectively.

Act of May 12, 1993 ch. 70.105D 1993 Wash. Laws Reg. Sess.,
Subst. Senate Bill no. 5404, sec. 1.

[18] The amended MTCA clearly creates a private right of
action, and makes it retroactive to cover harms that have already
occurred. ASARCO argues that the MTCA amendment was not
intended to be retroactive to cases already decided by the trial
court and pending on appeal. We reject this argument. When
the legislature determines that the policy underlying a statute is so
important that the statute will be applied retroactively, there is no
logical reason not to apply the statute to cases currently before the
court. Moreover, the general rule in Washington is that statutes
that are retroactive apply to pending litigation. See, e¢.g., Seek
Sys., Inc. v. Scully-Walton, Inc., 777 P.2d 560, 562 (Wash. App.
1989), and the law applicable on appeal is the law at the time the
appellate court issues its decision. Bradley v. Richmond School
Bd., 416 U.S. 696, 711 (1974); DeGurules v. LN.S., 833 F.2d
861, 863 (9th Cir. 1987). The amended statute, therefore,
provides a private cause of action to the plaintiffs.

ASARCO contends the plaintiffs have waived any right to
assert claims under the MTCA because they failed to argue in
their appellate briefs (except in the supplemental briefing which
we ordered) that the district court erred in dismissing their MTCA
claims. We reject this argument.”

” ASARCO also argues that because the district court’s
dismissal of the MTCA claims was a "final" order, claim
preclusion applies and prevents the plaintiffs from re-raising these

claims on . This argument lacks merit. district court’s
dismissal order was "final" for of . The plaintiffs
timely filed notices of appeal from that . The question is
not one of claim preclusion but rather whether the plaintiffs
waived their right to appeal from the di of their MTCA

claims by not challenging that dismissal in their initial briefs filed
with this court.

B-37

In DeGurules, we considered substantially the same question.
There, the INS relied on N.S. v. Phinpathya, 464 U.S. 183
(1984), in ruling that petitioners were deportable because they had
not met 8 U.S.C. § 1254(a)(1)’s seven-year strictly continuous
physical presence requirement. Before we issued our decision in
DeGurules, however, Congress overturned Phinpathya by
amending section 1254 to provide that “brief, casual, and
innocent” absences from the United States would not prevent a
finding that a was continuous. 8 U.S.C. § 1254(b)(3).
Even thou € petitioners had not argued on appeal that they
could be i brief, casual, and innocent” absences, we held
that they had not waived this argument. DeGurules, 833 F.2d at
863. We applied the new law retroactively. Jd. at 864.

The DeGurules analysis applies with equal force here. The
plaintiffs filed timely notices of appeal from the district court’s
dismissal of their Mt CA claims, but when the propriety of the
district court’s ruling was confirmed by the Washington Supreme
Court in Bird-Johnson, they did not challenge the district court’s
ruling in their appellate briefs. At the time it would have been
foolish for them to do so. When the Washington legislature
changed the law, however, the plaintiffs promptly brought this to
our attention, we ordered supplemental briefing, and both sides
have now had a full and fair opportunity to brief the merits of
their respective positions.

In these circumstances, we conclude the plaintiffs have not
waived the right to challenge the dismissal of their MTCA claims.
The district court dismissed those claims on the sole ground that
the MTCA did not provide a private right of action. The district
court did not consider the merits of the claims or whether there
was any other impediment to the plaintiff's pursuing them. If the
plaintiffs are entitled to prevail on their MTCA claims, attorney
fees are recoverable.

We reverse the district court’s dismissal of the MTCA claims.
We remand to it the question whether the plaintiffs are oe to
prevail on those claims and, if so, what damages, attorne
prejudgment interest and other recovery they may be wr:

B-38
Vv

PLAINTIFFS’ OTHER CROSS-APPEALS

In their cross-appeal, the plaintiffs argue that the district court
erred in reducing the amount of attorney fees awarded to them
under CERCLA. Attorney fees for bringing a cost recovery
action are not recoverable under CERCLA. Key Tronic, 114 S.
Ct. at 1967; Stanton Road, 984 F.2d at 1020. This contention is
moot.

The plaintiffs also contend the district court should not have
dismissed their common-law nuisance claims. The plaintiffs base
these claims on allegations of negligent and intentional conduct.
While the WPLA broadly preempts many common-law remedies,
it expressly excludes claims based on "intentionally caused harm."
Wash. Rev. Code Ann. § 7.72.010(4) (West 1992). This
exclusion applies to the plaintiffs’ intentionally caused nuisance
claim. The WPLA preempts the plaintiffs’ common-law nuisance
claim based on allegations of negligent conduct, but it does not
preempt the common-law nuisance claim based on allegations of
intentional conduct.

Nor are damages which may be recoverable on the intentional
nuisance claim subsumed within the CERCLA recovery.
Washington law provides for the recovery of "the loss of use or
of income [from the land] for a reasonable time pending such
restoration." Colella v. King County, 433 P.2d 154, 158 (Wash.
1967). On remand the district court should determine whether
ASARCO’s conduct constituted an intentional nuisance under
Washington law and, if so, what damages are recoverable.

CONCLUSION

We affirm the district court’s awards of damages under
CERCLA. We reverse the district court’s awards of attorney fees
under CERCLA, and its award of litigation expenses to the extent
its award included items not recoverable as costs under 28 U.S.C.
$§ 1821(b) and 1920. We also reverse the finding of liability
under the HWMA, and the award under it of cleanup costs,
attorney fees, costs, and prejudgment interest. We remand to the
district court the question whether the plaintiffs’ claims under the
WPLA are barred by the statute limitations, and if not,
whether the plaintiffs’ claims under the WPLA are sufficiently

liquidated to support an award of pre-judgment interest under
ashington law. We affirm the district court’s ruling that the

B-39

statute of limitations does not run against the Port of Tacoma.
We reverse the district court’s dismissal of the MTCA claims and
remand those claims to the district court for further proceedings
consistent with this opinion. We reverse the award of loss-of-use
damages under the WPLA. We do not reach the award of
damages and costs under the WPLA because they are subsumed
within the CERCLA award which we uphold. We remand to the
district court the issue whether ASARCO’s conduct constituted an
intentional nuisance and, if so, what damages are recoverable.

The plaintiffs/appellees shall recover two-thirds of their costs
on appeal from ASARCO. The parties shall otherwise bear their
Own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED
in part.

APPENDIX C

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LOUISIANA-PACIFIC CORPORATION;
PORT OF TACOMA,

Plaintiffs-Appellees,
Vv.
ASARCO INCORPORATED,

Defendant-Third-Party

Plaintiff-Appellant. No. 92-35061

)
)
)
)
)
)
)
)
)
)
)
)
D.C. No.
™ CV-88-00217-RJB
WILLIAM FJETLAND; B & L )
TRUCKING AND CONSTRUCTION + ee
INC.; INDUSTRIAL MINERAL )
PRODUCTS, INC.; MURRAY PACIFIC )
CORPORATION: PoRTAC, INC.; )
CASCADE TIMBER COMPANY: )
EXECUTIVE BARK INC.; WASSER & )
WINTERS COMPANY; EAGLE )
TRUCKING, INC. )
Third-P Defendants/ .
)

Appellees

ORDER

C-2

LOUISIANA-PACIFIC CORPORATION,

Plaintiff,

Vv.

CASCADE TIMBER COMPANY,

Third-Party Defendant/

Counter-claimant/Appellant,
.. No. 92-35144
D.C. No.
ASARCO INCORPORATED, CV-88-00217-TB

Defendant-Third-Party
Plaintiff/Appellee,

WILLIAM FJETLAND; B & L
TRUCKING AND CONSTRUCTION CoO.,
INC.; INDUSTRIAL MINERAL
PRODUCTS, INC.; MURRAY PACIFIC
CORPORATION; PORTAC, INC.,

Third-Party Defendants,

i aa a a A a a a a _____-_A_2_,_ >_>, 44

C-3

LOUISIANA-PACIFIC CORPORATION;
PORT OF TACOMA,

Plaintiffs,
PoRTAC, INC.,

Third-Party Defendant/
Counter-Claimant/Appellant,

LP
ASARCO INCORPORATED,

Defendant-Third-Party
Plaintiff/Appellee,

WILLIAM FJETLAND, et al.,

Third-Party Defendants.

Ne me ee ee ae ae ae ae a a a a Nae et ee ee Ne Ne ee” Nee” See”

No. 92-35145

D.C. No.
CV-88-00217-TB

C4

LOUISIANA-PACIFIC CORPORATION;
Plaintiffs,
we
MuRRAY PACIFIC CORPORATION,

Third-Party Defendant/
Counter-Claimant/Appellant,

No. 92-35148

D.C. No.
CV-88-00217-TB

Vv.
ASARCO INCORPORATED,

Defendant/Third Party
Plaintiff/Appellee,

William Fjetland; B & L Trucking
and Construction Co., Inc.; Industrial
Mineral Products, Inc.,

Third-Party Defendants.

ee ee ee ee ee eee t,t

C-5

LOUISIANA-PACIFIC CORPORATION,
PORT OF TACOMA,

Plaintiffs,
WASSER & WINTERS COMPANY,

Third-Party Defendant/
Counter-Claimant/ Appellant,

Vv.
ASARCO INCORPORATED,

Defendant/Third-P
Plaintiff/Appellee,

WILLIAM FJETLAND, et al.,

Third-Party Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

No. 92-35149

D.C. No.
CV-88-00217-RJB

C+

ASARCO INCORPORATED,

Defendant/Third-Party
Plaintiff/Appellee.

)
LOUISIANA-PACIFIC CORPORATION, ;
Plaintiff,
and ; No. 92-35152
PoRT OF TACOMA, D.C. No.
Plaintiff-Appellant, sel

v. ORDER
)
)
)
)
)

Before. WRIGHT, THOMPSON and KLEINFELD, Circuit
Judges.

The panel has voted unanimously to deny all pending
petitions for rehearing. Judges Thompson and Kleinfeld have
voted to reject all pending suggestions for rehearing en banc, and
Judge Wright so recommends.

The full court was advised of the suggestion for rehearing en
banc, and no active judge of the court has requested a vote on
whether to rehear the matter en banc.

The panel has voted to amend the opinion filed April 28,
1994. An order amending the opinion and an amended opinion
are filed contemporaneously with the filing of this order.

ASARCO’s motion, filed July 26, 1994 for loave [sic] to file
a reply brief in support of its petition for rehearing it denied.

All pending petitions for rehearing are denied, and all
pending suggestions for rehearing en banc are rejected.

APPENDIX D

The Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA")

§ 9601. Definitions [CERCLA § 101]
For purpose of this subchapter —

(1) The term "act of God” means an unanticipated grave
natural disaster or other natural phenomenon of an
exceptional, inevitable, and irresistible character, the effects
of which could not have been prevented or avoided by the
exercise of due care or foresight.

(2) The term "Administrator" means the Administrator
of the United States Environmental Protection Agency.

(3) The term “barrel” means forty-two United States
gallons at sixty degrees Fahrenheit.

(4) The term "claim" means a demand in writing for a
sum certain.

(S) The term "claimant" means any person who presents
a claim for compensation under this chapter.

(6) The term "damages" means damages for injury or
loss of natural resources as set forth in section 9607(a) or
9611(b) of this title.

(7) The term "drinking water supply” means any raw or
finished water source that is or may be used by a public
water system (as defined in the Safe Drinking Water Act [42
U.S.C.A. § 300f et seq.]) or as drinking water by one or
more individuals.

(8) The term “environment” means (A) the navigable
waters, the waters of the contiguous zone, and the ocean
waters of which the natural resources are under the exclusive
management authority of the United States under the
Magnuson Fishery Conservation and Management Act [16
U.S.C.A. § 1801 et seq.], and (B) any other surface water,
ground water, drinking water ly, land surface or
subsurface strata, or ient air within the United States or
under the jurisdiction of the United States.

(9} The term “facility” means (A) any building,

D-2

(10) The term. "federally permitted release" means (A)
discharges in compliance with a permit under section 1342 of
Title 33, (B) discharges resulting from circumstances
identified and reviewed and made part of the public record
with respect to a permit issued or modified under section
1342 of Title 33 and subject to a condition of such permit,
(C) continuous or anticipated intermittent discharges from a
point source, identified in a permit or permit application
under section 1342 of Title 33, which are caused by events
occurring within the scope of relevant operating or treatment
systems, (D) discharges in compliance with a legally
enforceable permit under section 1344 of Title 33, (E)
releases in compliance with a legally enforceable final permit
issued pursuant to section 3005(a) through (d) of the Solid
Waste Disposal Act [42 U.S.C.A. § 6925(a) to (d) ] from a
hazardous waste treatment, storage, or disposal facility when
such permit specifically identifies the hazardous substances
and makes such substances subject to a standard of practice,
control procedure or bioassay limitation or condition, or other
control on the hazardous substances in such releases, (F) any
release in compliance with a legally enforceable permit issued
under section 1412 of Title 33 of fFN1] section 1413 of Title
33, (G) any injection of fluids authorized under Federal
underground injection control programs or State programs
submitted for Federal approval (and not disapproved by the
Administrator of the Environmental Protection Agency)
pursuant to part C of the Safe Drinking Water Act [42
U.S.C.A. § 300h et seq.], (H) any emission into the air
subject to a permit or control regulation under section 111
[42 U.S.C.A. § 7411], section 112 [42 U.S.C.A. § 7412],
Title I part C [42 U.S.C.A. § 7470 et seq.], Title I part D
[42 U.S.C.A. § 7501 et seq.], or State implementation plans
submitted in accordance with section 110 of the Clean Air
Act [42 U.S.C.A. § 7410] (and not disapproved by the
Administrator of the Environmental Protection Agency),
including any schedule or waiver granted, promulgated, or
approved under these sections, (I) injection of fluids or
other materials authorized under applicable State law (i) for
the eee! eg of stimulating or treating wells for the production
of crude oil, natural gas, or water, (ii) for the purpose of
secondary, tertiary, or other enhanced recovery of crude oil
or natural gas, or (iii) which are brought to the surface in
conjunction with the production of oil or natural gas
and which are reinjected, (J) the introduction of any pollutant
into a publicly owned treatment works when such pollutant
is specified in and in compliance with applicable pretreatment
standards of section 1317(6) or (c) of Title 33 and

ae” ee es es eee eS eee emer CU
an yar - > . » R

D-3

nuclear, or byproduct material, as those terms are defined in
the Atomic Energy Act of 1954 [42 U.S.C.A. § 2011 et
seq.], in compliance with a legally enforceable license,
permit, regulation, or order issued pursuant to the Atomic
Energy Act of 1954.

(11) The term "Fund" or "Trust Fund" means the
Hazardous Substance Superfund established by section 9507
of Title 26.

(12) The term "ground water" means water in a saturated
zone or stratum beneath the surface of land or water.

(13) The term "guarantor" means any person, other than
the owner or operator, who provides evidence of financial
responsibility for an owner or Operator under this chapter.

(14) The term “hazardous substance" means (A) any
Substance designated pursuant to section 1321(b)(2)(A) of
Title 33, (B) any element, compound, mixture, solution, or
substance designated pursuant to section 9602 of this title, (C)
any hazardous waste having the characteristics identified
under or listed pursuant to section 3001 of the Solid Waste
Disposal Act [42 U.S.C.A. § 6921] (but not including any
waste the regulation of which under the Solid Waste Disposal
Act [42 U.S.C.A. § 6901 et seq.] has been suspended by Act
of Congress), (D) any toxic pollutant listed under section
1317(a) of Title 33, (E) any hazardous air pollutant listed
under section 112 of the Clean Air Act [42 U.S.C.A. §
7412], and (F) any imminently hazardous chemical substance
or mixture with respect to which the Administrator has taken
action pursuant to section 2606 of Title 15. The term does
not include petroleum, including crude oil or any fraction
thereof which is not otherwise specifically listed or desi
as a hazardous substance under subparagraphs (A) through
(F) of this paragraph, and the term does not include natural
gas, natural gas liquids, liquefied natural gas, or synthetic gas
usable for fuel (or mixtures of natural gas and such synthetic
gas).

(29) The terms "disposal", “hazardous waste", and
"treatment" shall have the meaning provided in section 1004
of the Solid Waste Disposal Act [42 U.S.C.A. § 6903).

D-4

§ 9605. National contingency plan; preparation, contents, etc.
[CERCLA § 105]

(a) Revision and republication

Within one hundred and eighty days after December 11,
1980, the President shall, after notice and opportunity for public
comments, revise and republish the national contingency plan for
the removal of oil and hazardous substances, “oe prepared
and published pursuant to section 1321 of Title 33, to reflect and
effectuate the responsibilities and powers created by this chapter,
in addition to those matters specified in section 1321(c)(2) of Title
33. Such revision shall include a section of the plan to be known
as the national hazardous substance response plan which shall
establish procedures and standards for responding to releases of
hazardous -substances, pollutants, and contaminants, which shall
include at a minimum:

(1) methods for discovering and investigating facilities
at which hazardous substances have been disposed of or
otherwise come to be located;

(2) methods for evaluating, including analyses of relative
cost, and remedying any releases or threats of releases from
facilities which pose substantial danger to the public health or
the environment;

(3) methods and criteria for determining the appropriate
extent of removal, remedy, and other measures authorized by
this chapter;

(4) appropriate roles and responsibilities for the Federal,
State, and local governments and for interstate and

gnment
reporting the existence of such facilities which may be located

of hazardous substances from fac

Oe ee tt dl ee epee 0
cost-effective over re to
hazardous substances or cemeniaiall materials;

or threatened throughout nited States for the
purpose of ee th ep ee ee
practicable taking account potential

removal Criteria

D-5

relative risk or danger to public health or welfare or the
environment, in the judgment of the President, taking into

destruction of sensitive ecosystems, the damage to natural
resources which may affect the human food chain and which
is associated with any release or threatened release, the
contamination or potential contamination of the ambient air
which is associated with the release or threatened release.
State preparedness to assume State costs and responsibilities.
and other appropriate factors;

11, 1980, and annually thereafter, each State shall establish

remedial action among known releases and potential releases
in that State based upon the criteria set forth in subparagraph
(A) of this paragraph. In assembling or revising the national
list, the President shall consider any priorities established by
the States. To the extent practicable, the highest priority
facilities shall be designated individually and shall be referred
to as the “top priority among known respomse targets”. and.
to the extent practicable, shall include among the one hundred

Only once. Other priority facilities or incidents may be listed
singly or grow for response priority purposes:

D-6

The plan shall specify procedures, techniques, materials,
equipment, and methods to be employed in identifying, removing,
or remedying releases of hazardous substances comparable to
those required under section 1321(c)(2)(F) and (G) and (j)(1) of
Title 33. Following publication of the revised national
contingency plan, the response to and actions to minimize damage
from hazardous substances releases shall, to the greatest extent
possible, be in accordance with the provisions of the plan. The
President may, from time to time, revise and republish the
national contingency plan.

(b) Revision of plan

Not later than 18 months after the enactment of the Superfund
Amendments and Reauthorization Act of 1986 [October 17, 1986],
the President shall revise the National Contingency Plan to reflect
the requirements of such amendments. The portion of such Plan
known as “the National Hazardous Substance Response Plan" shall
be revised to provide procedures and standards for remedial
actions undertaken pursuant to this chapter which are consistent
with amendments made by the Superfund Amendments and
Reauthorization Act of 1986 relating to the selection of remedial
action.

(c) Hazard ranking system
(1) Revision

Not later than 18 months after October 17, 1986, and
after publication of notice and opportunity for submission of
comments in accordance with section 553 of Title 5, the
President shall by rule —— amendments to the hazard
ranking system in effect on September 1, 1984. Such
amendments shall assure, to the maximum extent feasible,
that the hazard ranking system accurately assesses the relative
degree of risk to human health and the environment posed b
sites and facilities subject to review. The President shall
establish an effective date for the amended hazard ranking
system which is not later than 24 months after October 17,
1986. Such amended hazard ranking system shall be applied
to any site or facility to be newly listed on the National
Priorities List after the effective date established by the
President. Until such effective date of the lations, the
hazard ranking system in effect on September 1, 1984, shall
continue in full force and effect.

D-7

(2) Health assessment of water contamination risks

In carrying out this subsection, the President shall ensure
that the human health risks associated with the contamination
or potential contamination (either directly or as a result of the
runoff of any hazardous substance or pollutant or contaminant
from sites or facilities) of surface water are appropriately
assessed where such surface water is, or can be, used for
recreation or potable water consumption. In making the
assessment required pursuant to the preceding sentence, the
President shall take into account the potential migration of
any hazardous substance or pollutant or contaminant through
Such surface water to downstream sources of drinking water.
(3) Reevaluation not required

The President shall not be required to reevaluate, after
October 17, 1986, the hazard ranking of any facility which
was evaluated in accordance with the criteria under this
section before the effective date of the amendments to the
hazard ranking system under this Subsection and which was
assigned a national priority under the National Contingency
Plan.
(4) New information

Nothing in paragraph (3) shall preclude the President
from taking new information into account in undertaking
response actions under this chapter.

(d) Petition for assessment of release

Any person who is, or may be, affected by a release or
threatened release of a hazardous Substance or pollutant or
contaminant, may petition the President to conduct a preliminary
assessment of the hazards to public health and the environment
which are associated with such release or threatened release. If
the President has not previously conducted a preliminary
assessment of such release, the President shall, within 12 months
after the receipt of any such petition, complete such assessment
Or provide an explanation of why the assessment is not
appropriate. If the preliminary assessment indicates that the
release or threatened release concerned may pose a threat to
human health or the environment, the President shall promptly
evaluate such release or threatened release in accordance with the
hazard ranking system referred to in paragraph (8)(A) of
subsection (a) of this section to determine the national priority of
such release or threatened release.

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(e) Releases from earlier sites

Whenever there has been, after January 1, 1985, a significant
release of hazardous substances or pollutants or contaminants from
a site which is listed by the President as a "Site Cleaned Up To
Date" on the National Priorities List (revised edition, December
1984) the site shall be restored to the National Priorities List,
without application of the hazard ranking system.

(f) Minority contractors

In awarding contracts under this chapter, the President shall
consider the availability of qualified minority firms. The
President shall describe, as part of any annual report submitted to
the Congress under this chapter, the participation of minority
firms in contracts carried out under this chapter. Such report
shall contain a brief description of the contracts which have been
awarded to minority firms under this chapter and of the efforts
made by the President to encourage the participation of such firms
in programs carried out under this chapter.

(g) Special study wastes
(1) Application

This subsection applies to facilities--

(A) which as of October 17, 1986, were not
included on, or proposed for inclusion on, the National
Priorities List; and

(B) at which special study wastes described in
paragraph (2), (3)(A)(ii) or (3)(A)(iii) of section 6921(b)
of this title are present in significant quantities, including
any such facility from which there has been a release of
a special study waste.

(2) Considerations in adding facilities to NPL

Pending revision of the hazard ranking s under
subsection (c) of this section, the President shall consider
each of the following factors in adding facilities covered by
this section to the National Priorities List:

D-9

posed by the release of such hazardous constituents at
such facility. This su aragraph refers only to available
information on actual concentrations of hazardous
substances and not on the total quantity of special study
waste at such facility.

(3) Savings provisions

Nothing in this subsection shall be construed to limit the
authority of the President to remove any facility which as of
October 17, 1986, is included on the National Priorities List
from such List, or not to list any facility which as of such
date is proposed for inclusion on such list.

(4) Information gathering and analysis

Nothing in this chapter shall be construed to preclude the
expenditure of monies from the Fund for gathering and
analysis of information which wili enable the President to
consider the specific factors required by paragraph (2).

D-10
$ 9607. Liability [CERCLA § 107]

(a) Covered persons; scope; recoverable costs and damages;
interest rate; "comparable maturity" date

Notwithstanding any other provision or rule of law, and
subject only to the defenses set forth in subsection (6) of this
section—

(1) the owner and operator of a vessel or a 1 &

(2) any person who at the time of disposal of an
hazardous substance owned or operated any facility at whic
such hazardous substances were disposed of,

(3) any person who by contract, agreement, or otherwise
arranged for disposal or treatment, or arranged with a
transporter for transport for disposal or treatment, of
hazardous substances owned or possessed by such person, by
any other party or entity, at any facility or incineration vesse!
owned or operated by another party or entity and containing
such hazardous substances, and

(4) any person who accepts or accepted any hazardous
substances for transport to disposal or treatment facilities,
incineration vessels or sites selected by such person, from
which there is a release, or a threatened release which causes
the incurrence of response costs, of a hazardous substance,
shall be liable for—

(A) all costs of removal or remedial action incurred
by the United States Government or a State or an Indian
tribe not inconsistent with the national contingency plan;

(B) any other necessary costs of response incurred
by any other person consistent with the national
contingency plan;

(C) dama

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0778%3A2. Public record. Not legal advice.