Opposition Brief — ASARCO Inc. v. Louisiana-Pacific Corp.

No. 94-833

Court

IN THE FILED

A

Us.

Supreme Court of the United Sthieg,. 9 «;

OCTOBER TERM, 1994

aArrinec fc

pit

Urrave .

—

ASARCO INCORPORATED,

V.

Petitioner,

LOUSIANA-PACIFIC CORPORATION, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Cireuit

RESPONDENTS’ BRIEF IN OPPOSITION

RONALD B. LEIGHTON

GORDON, THOMAS, HONEYWELL,

MALANCA, PETERSON & DAHEIM

2200 First Interstate Bldg.

P.O. Box 1157

Tacoma, Washington 98401

Attorneys for

Murray Pacific Corporation

JAMES C. HANKEN

SCHWABE, WILLIAMSON, FERGUSON

& BURDELL

1420 Fifth Avenue, #3500

Seattle, Washington 98101

WILLIAM L. DOWELL

WALKER & DOWELL

P.O. Box 867

Longview, Washington 98632

Attorneys for

Wasser & Winters Co.

WILLIAM H. BEAVER

KARR TUTTLE CAMPBELL

1201 Third Avenue

Seattle, Washington 98101

Attorneys for

Cascade Timber Company

JEFFREY W. LEPPO

Counsel of Record

KAREN M. McCGAFFEY

BoGLe & GATES

Two Union Square

601 Union Street

Seattle, Washington 98101

(206) 682-5151

Attorneys for

The Port of Tacoma

JAMES C. COLLINS

THELEN, MARRIN, JOHNSON

& BRIDGES

Two Embarcadaro Center

San Francisco, California 94111

Bert P. KRAGEs II

Attorneys for

Louisiana-Pacific Corp.

Nick S. VERWOLF

DAVis WRIGHT TREMAINE

1800 Bellevue Place

Bellevue, Washington, 98004

Attorneys for Portac, Inc.

WILSON - Eras Printing Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

Tr.

ee en ed

oe

ee

QUESTIONS PRESENTED

Respondents the Port of Tacoma, Louisiana-Pacific

Corporation, Portac, Inc., Cascade Timber Company,

Murray Pacific Corporation, and Wasser & Winters Com-

pany object to Asarco’s statement of the questions pre-

sented and restate them as follows:

1. Whether copper reverbatory slag, and its constitu-

ent heavy metals arsenic, lead, copper and zinc are

“hazardous substances” under CERCLA section 101(14),

42 U.S.C. § 9601(14), even though some wastes from

the extraction, benefication and processing of ores and

minerals are excluded from regulation under RCRA Sub-

title C, 42 U.S.C. § 6921(b)(3)(A).

2. Whether the district court’s factual finding that

Asarco had “arranged for disposal” of a hazardous sub-

stance within the meaning of CERCLA section 107

(a)(3), 42 U.S.C. § 9607(a) (3), was clearly erroneous.

(i)

ii

PARTIES TO THE PROCEEDING

Asarco Inc., Petitioner

B&L Trucking and Construction Co., Respondent

Cascade Timber Co., Respondent

Eagle Trucking, Inc., Respondent

Executive Bark, Inc., Respondent

Industrial Mineral Products, Inc., Respondent

Louisiana-Pacific Corp., Respondent

Murray Pacific Corp., Respondent

Port of Tacoma, Respondent

Portac, Inc., Respondent

Wasser & Winters Co., Respondent

William B. Fjetland, Respondent

RULE 29.1 LISTING

Pursuant to Rule 29.1, respondents the Port of Tacoma,

Louisiana-Pacific Corporation, Portac, Inc., Cascade Tim-

ber Company, Murray Pacific Corporation, and Wasser &

Winters Company disclose that none of them have sub-

sidiaries and affiliates that have issued shares to the public.

TABLE OF CONTENTS

Page

| ce i

PARTIES TO THE PROCEEDING ..............2..2.0.2:.:cccc000 ii

aa cirliaseocecntesininaasoéatessicnesenensmeotcrsmecsen ii

TE A MENON E BIEID cipecenscnsesiieossscnscvensnstnsenstaseusses Vv

OPINIONS BELOW AND JURISDICTION ................ 1

RELEVANT STATUTORY PROVISIONS ..................... 2

STATEMENT OF THE CASE. .....20......2..22.....-sc-scesscecceosee 2

AS aA) 4

SESSLER a 5

I. THE NINTH CIRCUIT’S CONCLUSION THAT

COPPER SLAG AND ITS CONSTITUTENT

HEAVY METALS MAY BE “HAZARDOUS

SUBSTANCES” IS CONSISTENT WITH

OTHER FEDERAL DECISIONS AND DOES

NOT PRESENT AN OPPORTUNITY FOR

THIS COURT TO SETTLE AN IMPORTANT

ISSUE OF FEDERAL LAW. ...............0...0.2.2...20000- 5

A. Without Conflict, Federal Courts Hold That

Bevill Mining Wastes May Be Hazardous

Substances If They Contain Or Release Sub-

stances That Are Themselves Defined As

Hazardous By CERCLA. .....................-.02-s20-0000 7

B. The Ninth Circuit’s Decision Does Not Con-

flict With Any Decisions Of This Court........ 10

C. This Court Need Not Grant Certiorari To

Settle An Important Issue Of Federal Law.... 12

(iii)

iv

TABLE OF CONTENTS—Continued

Page

II. THE NINTH CIRCUIT’S DECISION TO

AFFIRM THE TRIAL COURT’S FACTUAL

FINDING THAT ASARCO “ARRANGED

FOR THE DISPOSAL” OF SLAG IS NOT

INCONSISTENT WITH ANY OTHER FED-

ERAL APPELLATE DECISION AND DOES

NOT PRESENT AN OPPORTUNITY FOR

THIS COURT TO SETTLE AN IMPORTANT

pi tay Be ge i ES A | | ee 12

A. Federal Courts Agree That Sales May Con-

stitute Arrangements For Disposal Depend-

ing Upon The Facts Surrounding The Trans-

AE NESS MSC ae AM BIA TL Wile 2 RA eR 14

B. The Ninth Circuit’s Decision Does Not Con-

flict With American Mining Congress Or

Other Decisions Interpreting RCRA ............. 15

C. The Ninth Circuit’s Decision Affirming The

District Court’s Finding That Asarco Ar-

ranged For Disposal Of Slag Does Not Pre-

s sent An Opportunity To Settle An Important

SU SIE FOTN TIN ainecescvcveiciscecicticcsctctensocses 17

CCE icksdietivtinathecsaiamivapleniictiheddndibiabisttdidesesdtackonies 19

v

TABLE OF AUTHORITIES

Cases Page

American Mining Congress v. United States

E.P.A., 824 F.2d 1177 (D.C. Cir. 1987) ............. 15, 16

Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 (5th

CR . I cosets nnentstcado Getcechsoniosdanpebiniapsnsiacaiacaielinioess 6

B.F. Goodrich v. Murtha, 958 F.2d 1192 (2d Cir.

} |__| RR RE aC gee ec ek Mi oe cm 6

Catellus Dev. Corp. v. United States, 34 F.3d 748

1 CERI a RTS lei ate De 15

Chatham Steel Corp. v. Brown, 858 F. Supp. 1130

Ce Mis SE ke hictisndiscsctinabidsccipthestitbca licen 15

Chesapeake & Potomac Tel. Co. of Va. v. Peck

Iron & Metal Co., 814 F. Supp. 1269 (E.D. Va.

OE aatichicia tah i din acted bea Air baideisdaih nai ime dttisigndhs 15

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, 467 U.S. 887 (1984) ..........22.....ccc.e-ccccce-es 12

Commissioner of Internal Revenue v. Asphalt

FUE, Cig GE Ul BEE CIDE cccccticccnenccccstinnstionene 11

Dayton Indep. School Dist. v. U.S. Mineral Prod.,

906 F.2d 1059 (5th Cir. 1990) ........................... 14

Dedham Water Co. v. Cumberland Farms Dairy,

Inc., 889 F.2d 1146 (1st Cir. 1989) ..00002022 2. 6

Eagle-Picher Industries v. E.P.A., 759 F.2d 922

ie eH vinisiadediniaiciaianinisenptintasaiiietiancsonaitinets 7,8,10,11

Florida Power & Light Co. v. Allis Chalmers

Corp., 893 F.2d 1313 (11th Cir. 1990) ........... 14, 15, 17

Fretag v. Commissioner of Internal Revenue, 111

RR + SEER Rane nee 10

Johnson v. Transportation Agency, 480 U.S. 616

3: SCSI eS ae a a ee ae er 1]

K Mart Corp. v. Cartier, Inc., 486 U.S. 281

I PR acini sbhacabiai ictal 12

Kelly v. Arco Indus. Corp., 19 Chem. Waste Lit.

Rptr. 1842 (W.D. Mich. 1990) ............................... 14

Mallard v. United States Dist. Court for the

Southern Dist. of Iowa, 490 U.S. 296 (1989)... 10

New York v. General Elec. Co., 592 F. Supp. 291

rt + oy Ge: REPRE ve mere eee 15

Owen Electric Steel Company of South Carolina,

Inc. v. Browner, 37 F.3d 146 (4th Cir. 1994) .... 16

vi

TABLE OF AUTHORITIES—Continued

Page

Prudential Ins. Co. v. United States Gypsum, 711

Oe Bt =, Erm ee 14

Ratzlaf v. United States, 114 S. Ct. 655 (1994)... 11

Sedima S.P.R1I. v. Imrex Co., 473 U.S. 479

a 11

State of Ariz. v. Motorola, 774 F. Supp. 566 (D.

aire cana a aT 16

State of Idaho v. Bunker Hill Co., 685 F. Supp.

eee 8

State of Idaho v. Hanna Min. Co., 699 F. Supp.

827 (D. Idaho 1987), aff'd, 882 F.2d 392 (9th

es ii alin 8

States v. BFG Electroplating Corp., 31 Env’t Rep.

Cas. (BNA) 1174, 1183 (W.D. Pa. 1990) ........... 15

Stevens Creek Associates v. Barclays Bank of Cali-

fornia, 915 F.2d 1355 (9th Cir. 1990), cert. de-

Gg TH Tole EE CED witercceteccectentctneesecnesn esos 14

T & E Indus. Inc. v. Safety Light Corp., 680 F.

as GET Ile, SD ccc ncececnitesnieienotepcoemess 8

United States v. A&F Materials Co., Inc., 582

ie 4 + & | Bae eN Slee 15

United States v. Alcan, 964 F.2d 252 (3d Cir.

SIT calles cas sscoaiehaclettonsiettecatnbAeteeieiphcidininsasiaieaiadiedbabcapaiedahbiiianeian 6

United States v. Conservation Chem. Co., 619 F.

ny re i ict 8, 15

United States v. Farber, 27 Env’t Rep. Cas.

(BNA) 1978 (D.N.J. 1968) ................................... 16

United States v. Iron Mountain Mines, 812 F.

Supp. 1528 (E.D. Cal. 1992), overruled by Lou-

isiana-Pacific Corp. v. Asarco Inc., 24 F.3d 1565

I MPEPEND cc ciessaissadsdibidecsasigtpeniitanshiniaitnemasdilitabteimnes 8

United States v. James, 478 U.S. 597 (1986)........ 10

United States v. Metate Asbestos Corp., 584 F.

A A: | A 8

United States v. Monsanto, 491 U.S. 600 (1989) .... 11

United States v. Pesses, 794 F. Supp. 151 (W.D.

ER SEIT ce NG RNS Sit ee: ag A 15

United States v. Union Gas Co., 586 F. Supp. 1522

I I ia a a ee 8

vii

TABLE OF AUTHORITIES—Continued

Page

United States v. Ward, 618 F. Supp. 884 (E.D.N.C.

i iiscnnitlitcncinicccieinschseceipeiieceaiiatiiaabanspeiimcimaacenininirenene 15

United States v. Westinghouse Elec. Corp., 14

Envtl. L. Rep. 20483 (S.D. Ind. 1983) ................. 14

Federal Statutes

Comprehensive Environmental Response, Compen-

sation and Liability Act of 1980, 42 U.S.C.

$ O601-OG75 (“CIERCEAA") acne snnnceneonees passim

Section 101 (14), 42 U.S.C. § 9601 (14) -............. passim

Section 101 (29), 42 U.S.C. § 9601 (29) ............... 17

Section 107 (a) (3), 42 U.S.C. § 9607 (a) (3) -...i, 14, 16

Resource Conservation and Recovery Act of 1976,

42 U.S.C. §§ 6901-6992k (“RCRA”) ...................- passim

iinet icctrcininttpenrntaniciiemeniatenais 17

Washington Statutes

Washington Hazardous Waste Management Act,

Wash. Rev. Code § 7.105.005 e¢ seq. ..................-- 3

Washington Product Liability Act, Wash. Rev.

ee ne Oe CI act ciilclicicccttncerectinecintirnenne 3

Legislative Materials

Report of the House Committee on Energy and

Commerce, reprinted in SARA: The Legislative

History (S. Clarkson & J. LaMoreaux eds.,

DE ikisihscessincsisiahbicininicdiiaadithdiaeitindiereniunintenssninpennne 11

131 Cong. Rec. $11680 (Sept. 18, 1985) ....................- 11

132 Cong. Rec. S14896 (Oct. 3, 1986) ........................- 11

IN THE

Siywrene Cmut of the United States

OCTOBER TERM, 1994

No. 84-833

ASARCO INCORPORATED,

“ Petitioner,

LOUSIANA-PACIFIC CORPORATION, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents the Port of Tacoma, Louisiana-Pacific

Corporation, Portac, Inc., Cascade Timber Company,

Murray Pacific Corporation, and Wasser & Winters Com-

pany (collectively “the Plaintiffs”) oppose Asarco Incor-

porated’s (“Asarco’s”) petition for a writ of certiorari to

review the judgment of the United States Court of Appeals

for the Ninth Circuit.

OPINIONS BELOW AND JURISDICTION

In its petition, Asarco has properly identified the

opinions below, the basis for the district court’s and the

court of appeals’ jurisdiction, as well as Asarco’s basis

for invoking this Court’s jurisdiction.

2

RELEVANT STATUTORY PROVISIONS

Asarco has provided the full text of the statutory pro-

visions relevant to its petition.

STATEMENT OF THE CASE

For almost a hundred years, Asarco operated a copper

smelter in Tacoma, Washington, generating as much as

200,000 tons of copper reverbatory slag annually in the

process. The slag produced each year contained signifi-

cant quantities of hazardous heavy metals, including

thousands of tons of arsenic, lead, copper and zinc. For

decades, Asarco dumped its waste sleg directly into Com-

mencement Bay. When the Army Corps of Engineers

prohibited Asarco from putting slag into the bay in the

early 1970s, however, Asarco got rid of it by marketing

it as an inert and environmentally safe fill material, even

though Asarco knew that the slag, in fact, leached heavy

metals.

By disposing of its waste slag through a marketing

scheme, Asarco was able to continue smelting operations

until 1985. Meanwhile, heavy metals leached off of slag-

contaminated public and private lands located in and

around the Commencement Bay tideflats. The Washing-

ton Department of Ecology ultimately required cleanup

of the contamination, and EPA added many of the sites

at issue in this litigation to the Superfund National

Priorities List.

In 1988, the Plaintiffs brought claims against Asarco

in the United States District Court for the Western Dis-

trict of Washington, seeking to recover cleanup costs and

damages associated with seven sites contaminated with

Asarco’s slag and its constituent heavy metals. The Plain-

tiffs asserted claims under the Comprehensive Environ-

mental Response, Compensation and Liability Act

(“CERCLA”), 42 U.S.C. §§ 9601-75, and a variety of

state law theories. The Plaintiffs tried their CERCLA

Dineen

claims to the court, while trying their state law claims to

a jury.

In defense, Asarco argued, among other things, that it

was not liable under CERCLA because slag was not a

“hazardous substance,” and because Asarco had not

“arranged for the disposal” of the slag. The district court

rejected both arguments and found Asarco liable under

CERCLA. See Appendix to Asarco’s Petition (“Pet.

App.”) at A-3 to A-5, and A-10 to A-16. The court

concluded, as a matter of law, that the copper slag and

its constituent heavy metals were “hazardous substances”

under CERCLA, and it found, as a matter of fact, that

Asarco had arranged for the disposal of its slag. See id.

The jury also returned verdicts for the Plaintiffs on

claims brought pursuant to Washington’s Hazardous Waste

Management Act, Wash. Rev. Code § 70.105.005 et seq.,

and Washington’s Products Liability Act, Wash. Rev.

Code § 7.72.010 et seg. See Pet. App. at A-2 to A-3.

Asarco then appealed the district court’s CERCLA

judgment to the Ninth Circuit Court of Appeals.’ The

Ninth Circuit upheld the district court’s CERCLA judg-

ment, rejecting Asarco’s contentions that slag and its

constituent heavy metals were not “hazardous substances,”

and that Asarco had not “arranged for the disposal” of

the slag. See Pet. App. at B-16 to B-22. Asarco now

petitions this Court for a writ of certiorari regarding its

two principal challenges to the district court’s CERCLA

judgment.

1 Asarco also appealed the jury’s state law verdicts, and the

Plaintiffs cross-appealed the district court’s dismissal of certain

other state law claims. See Pet. App. B.

4

SUMMARY OF ARGUMENT

Asarco asks this Court to grant certiorari to review a

decision of the Ninth Circuit Court of Appeals affirming

both the district court’s legal ruling that slag containing

hazardous heavy metals is a hazardous substance under

CERCLA, and the district court’s factual finding that

Asarco had arranged for the disposal of its slag. These

issues do not present the Court with a conflict among the

federal courts of appeals, or an opportunity to settle a

significant matter of federal law.

First, federal courts have consistently held that mining

wastes, such as slag, may be hazardous substances under

CERCLA if they contain substances otherwise falling

within CERCLA’s definition of “hazardous substance.”

The Ninth Circuit’s decision and reasoning is also con-

sistent with this Court’s jurisprudence, as well as estab-

lished EPA policy. This Court need not provide further

guidance on this issue.

Second, federal courts have agreed that although sales

of hazardous substances do not always constitute arrange-

ments for disposal, characterizing a transaction as a sale

does not, by itself, preclude CERCLA liability. Whether

or not a particular sale is an arrangement for disposal

requires a case-specific factual inquiry. The Ninth Cir-

cuit’s decision to affirm the district court’s factual finding

that Asarco arranged for the disposal of its slag, is con-

sistent with this federal case law. In light of the fact-

specific nature of this issue, Asarco’s petition does not

present an opportunity for this Court to settle an important

issue of federal law.

Sanne:

5

ARGUMENT

According to Supreme Court Rule 10.1, this Court

considers granting certiorari (i) when decisions of the

federal courts of appeals conflict, (ii) when a federal

appellate decision conflicts with a decision of this Court,

or (iii) when a federal appellate decision poses “an

important question of federal law which has not been,

but should be, settled by this Court.” Asarco’s petition

for writ of certiorari does not present any of these

circumstances.

I. THE NINTH CIRCUIT'S CONCLUSION THAT

COPPER SLAG AND ITS CONSTITUENT HEAVY

METALS MAY BE “HAZARDOUS SUBSTANCES”

IS CONSISTENT WITH OTHER FEDERAL DECTI-

SIONS AND DOES NOT PRESENT AN OPPOR-

TUNITY FOR THIS COURT TO SETTLE AN IM-

PORTANT ISSUE OF FEDERAL LAW.

Asarco contends that mining wastes such as slag that

are exempt from regulation under the Resource Conser-

vation and Recovery Act (“RCRA”) subtitle C (also

known as “Bevill wastes”) and their constituents can

never be “hazardous substances” under CERCLA. With

the exception of a district court that was overruled,

every federal court that has addressed this contention

has rejected it. There is no confict among the circuits,

and the Ninth Circuit's decision in this case does not

conflict with the decisions of this Court. Consequently,

there is no need for this Court to settle the issue.

CERCLA section 101(14), 42 U.S.C. § 9601(14) de-

fines hazardous substances as:

(A) any substance designated pursuant to section

1321(b)(2)(C) of Title 33,

(B) any element, compound, mixture, solution, or

substance designated pursuant to section 9602 of this

title,

6

(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. § 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. § 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 other-

wise specifically listed or designated as a hazardous

substance under subparagraphs (A) through (F) of

this paragraph, and the term does not include natural

gas, natural gas liquids, liquified natural gas, or syn-

thetic gas usable for fuel (or mixtures of natural gas

and such synthetic gas).

(Emphasis added.) Courts agree that a substance need

only fall within one of this section’s subparagraphs to be

a “hazardous substance” under CERCLA. See, e.g.,

United States v. Alcan, 964 F.2d 252, 261 (3d Cir.

1992); B.F. Goodrich v. Murtha, 958 F.2d 1192, 1200

(2d Cir. 1992); Dedham Water Co. v. Cumberland

Farms Dairy, Inc., 889 F.2d 1146, 1151-52 n.6 (1st Cir.

1989); Amoco Oil Co. v. Borden, Inc., 889 F.2d 664,

669 (Sth Cir. 1989).

Asarco’s challenge to the Ninth Circuit’s decision

focuses on subparagraph (C), which designates all RCRA

hazardous wastes, except wastes (such as Bevill wastes)

that are excluded from regulation under RCRA, as

7

CERCLA hazardous substances. Asarco contends that

by excluding Bevill wastes from the hazardous substances

identified in subparagraph (C), Congress intended to ex-

clude all Bevill wastes and their constituents from the

definition of hazardous substances, even if some of them

would otherwise qualify as hazardous substances under

other subparagraphs of CERCLA’s hazardous substance

definition.

The Ninth Circuit rejected Asarco’s argument, reason-

ing that according to the statute’s unambiguous language,

the Bevill exclusion limits only the hazardous substances

identified in subparagraph (C), and has no effect on the

hazardous substances identified by other subparagraphs.

See Pet. App. at B-17 to B-18. Had Congress intended

to exclude Bevill wastes from CERCLA altogether, it

would have added a provision similar to the petroleum

exclusion, which is found at the end of the hazardous

substance definition. Jd. at B-18. The Ninth Circuit also

explained that if the statute were ambiguous, which it is

not, then the court would have reached the same result

by deferring to EPA’s interpretation of the statute. See

Pet. App. at B-19 to B-20.

A. Without Conflict, Federal Courts Hold That Bevill

Mining Wastes May Be Hazardous Substances If

They Contain Or Release Substances That Are

Themselves Defined As Hazardous By CERCLA.

There is no conflict among the circuits about the status

of Bevill wastes. In Eagle-Picher Industries v. E.P.A.,

759 F.2d 922, 927 (D.C. Cir. 1985), the D.C. Circuit

unambiguously held that:

a substance is a hazardous substance within the

meaning of CERCLA if it qualifies under any of the

several subparagraphs of section 101(14). The ex-

ception for mining wastes and fly ash is found only

in a parenthetical clause in subparagraph (C). The

ordinary, straightforward reading of that exception

8

is that it applies only to subparagraph (C), not to

any of the other five subparagraphs. Had Congress

intended to exempt mining wastes and fly ash from

the entirety of section 101(14), it obviously could

have placed the exemption at the beginning or end

of the section, not in one of the several subpara-

graphs.

Eagle-Picher, 759 F.2d at 927. With the exception of one

district court that the Ninth Circuit overruled,’ every fed-

eral court that has considered this issue has agreed with

the Ninth and the D.C. Circuits. See T & E Indus. Inc.

v. Safety Light Corp., 680 F. Supp. 696, 708 (D.N.J.

1988); State of Idaho v. Hanna Min. Co., 699 F. Supp.

827 (D. Idaho 1987), aff'd, 882 F.2d 392 (9th Cir.

1989); State of Idaho v. Bunker Hill Co., 635 F. Supp.

665, 673 (D. Idaho 1986); United States v. Conserva-

tion Chem. Co., 619 F. Supp. 162, 238 (D. Mo. 1985);

United States v. Union Gas Co., 586 F. Supp. 1522, 1524

(E.D. Pa. 1984); United States v. Metate Asbestos Corp.,

584 F. Supp. 1143 (D. Ariz. 1984).

In an attempt to find conflict in this consensus, Asarco

mischaracterizes a portion of the D.C. Circuit’s decision

in Eagle-Picher. The petitioners in Eagle-Picher, like

Asarco, argued that all Bevill wastes contain hazardous

constituents and that section 101(14) must be read to

exclude Bevill wastes from CERCLA entirely in order

for the parenthetical in subsection (C) to have any

meaning. The D.C. Circuit, like the Ninth Circuit, re-

jected this argument:

Unfortunately for petitioners, they have cited nothing

in CERCLA, its legislative history, or the record in

this case demonstrating that all or virtually all min-

ing wastes and fly ash have constituents which are

“hazardous substances.” We have nothing more than

2 See United States v. Iron Mountain Mines, 812 F. Supp. 1528

(E.D. Cal. 1992), overruled by Louisiana-Pacific Corp. v. Asarco

Inc., 24 F.3d 1565 (9th Cir. 1994).

9

petitioners’ bare assertions on this point. Likewise,

petitioners have presented nothing demonstrating

that Congress was of the view that all or almost all

mining wastes and fly ash contain hazardous sub-

stances. It is quite possible that Congress was un-

convinced that enough was known about mining

wastes and fly ash for EPA to decide that those sub-

stances, as a general rule, posed a threat to the en-

vironment, but at the same time Congress may have

- been willing to bring any mining wastes and fly ash

found to contain “hazardous substances” within the

ambit of section 101(14). Without showing that

Congress believed that the regulation of mining

wastes and fly ash under other subparagraphs of sec-

tion 101(14) would render the exception in subpara-

graph (C) meaningless, we are disinclined to reject

the plain meaning of section 101(14).

759 F.2d at 928 (italics added).

Asarco misconstrues the D.C. Circuit’s decision to

have hinged on the failure of the litigants to provide

expert testimony regarding the constituents of Bevill

wastes, and contends that the D.C. Circuit would have

reached a different result if it had seen Asarco’s affidavit

from Larry Twidwell claiming that all or virtually all

Bevill wastes contain hazardous constituents. See Asarco

Pet. at 14.* As the above-quoted passage indicates, how-

ever, the D.C. Circuit was concerned with Congress’

knowledge about Bevill wastes at the time it drafted

section 101(14). Asarco’s Twidwell affidavit sheds no

light on that issue. Accordingly, there is no reason to

believe that the D.C. Circuit would disagree with the

Ninth Circuit’s resolution of this case.

% Asarco’s Petition erroneously states that “[a]t trial, Asarco

introduced testimony from Dr. Twidwell.” Asarco Pet. at 14. In

fact, Asarco provided an affidavit from Twidwell in support of a

pre-trial motion. After the plaintiffs’ deposed Twidwell, Asarco

did not call him to testify at trial.

10

B. The Ninth Circuit’s Decision Does Not Conflict

With Any Decisions Of This Court.

Unable to find any disagreement among federal courts

regarding the interpretation of CERCLA’s hazardous

substance definition, Asarco contends that the reasoning

of the Ninth Circuit in this case conflicts with this Court’s

precedent on general issues of statutory interpretation.

No such conflict exists.

As explained above, the Ninth Circuit based its deci-

sion on the plain meaning of the statutory definition of

“hazardous substance.” The decision follows this Court’s

holdings that “[iJnterpretation of a statute must begin

with the statute’s language.” Mallard v. United States

Dist. Court for the Southern Dist. of Iowa, 490 U.S. 296,

300 (1989); accord United States v. James, 478 USS.

597, 604 (1986). Indeed, this Court has consistently

held that when statutory terms are clear, courts need not

inquire further. See Fretag v. Commissioner of Internal

Revenue, 111 S. Ct. 2631, 2636 (1991).

Asarco nonetheless argues that the Ninth Circuit should

have rejected the statute’s plain meaning. Asarco con-

tends that all Bevill wastes contain substances otherwise

classified as hazardous by CERCLA and, therefore, the

Ninth Circuit’s plain meaning of the statute would elim-

inate any practical effect of subparagraph (C)’s par-

enthetical excluding Bevill wastes. Even if all Bevill

wastes contained and released otherwise hazardous sub-

stances, the Ninth Circuit’s interpretation of section

101(14) would not render the parenthetical language

excluding Bevill wastes from subparagraph (C) meaning-

less. On the contrary, there simply would be no sub-

stances that actually satisfied the theoretical conditions

for which Congress provided an exclusion, a possibility

that the D.C. Circuit acknowledged when interpreting the

definition the same way. See Eagle-Picher, 759 F.2d at

928; see also 126 Cong. Rec. 3361 (Feb. 20, 1980)

(Rep. Beville emphasizing the lack of knowledge regard-

11

ing the composition of and hazard posed by mining

wastes ).*

Asarco also contends that the Ninth Circuit ignored

this Court’s precedent by failing to give sufficient con-

sideration to a Senate Report passage regarding Bevill

wastes. The statute’s language, not a committee report,

however, is the best evidence of Congress’ intent. United

States v. Monsanto, 491 U.S. 600, 610 (1989); Sedima

S.P.R.I. v. Imrex Co., 473 U.S. 479, 495 n.13 (1985).

This Court has refused to “resort to legislative history

to cloud a statutory text that is clear.” Ratzlar v. United

States, 114 §. Ct. 655, 662 (1994). Moreover, Asarco

conveniently overlooks legislative history supporting the

Ninth Circuit’s interpretation.®

Finally, Asarco contends that, by deferring to EPA’s

interpretation of CERCLA’s hazardous substance defi-

nition, the Ninth Circuit’s decision conflicts with this

Court’s precedent. In fact, the Ninth Circuit based its

decision on the language of the statute. See Pet. App.

at B-17 to B-18. The court then properly noted that if

* Asarco’s desire to abandon the unambiguous terms of the

statute if no Bevill wastes were excluded from CERCLA is con-

trary to this Court’s holding that the “[j]udicial perception that

a particular result would be unreasonable . . . cannot justify dis-

regard of what Congress has plainly and intentionally provided.”

Commissioner of Internal Revenue v. Asphalt Prod. Co., 482 U.S.

117, 121 (1987).

5 The legislative history indicates, for example, that Congress

was aware of the D.C. Circuit’s decision in Eagle-Picher when it

amended CERCLA in 1986, yet it did not amend the statute to

overrule the decision. See Report of House Committee on Energy

and Commerce, reprinted in SARA: The Legislative History 104-

52 (S. Clarkson & J. LaMoreaux eds., 1987) (confirming Eagle-

Picher decision) ; 132 Cong. Rec. $14896, S$14931 (Oct. 3, 1986)

(acknowledging the need to address thousands of contaminated

mining waste sites); 131 Cong. Rec. S11680-82 (Sept. 18, 1985)

(same). Congress’ decision not to act in the face of the Eagle-

Picher decision suggests that Congress agreed with the court’s

interpretation of the statute. See Johnson v. Transportation

Agency, 480 U.S. 616, 620 n.7 (1987).

. F.

12

Asarco were correct that the language were ambiguous

in light of the legislative history, then the court would

reach the same result by relying upon EPA’s interpre-

tation of the statutory provision. See Pet. App. at B-19

to B-20.° The Ninth Circuit’s reasoning is consistent

with this Court’s holdings that courts should defer to an

administrative agency’s reasonable interpretation when

a statute is ambiguous. See Chevron U.S.A., Inc. v.

Natural Resources Defense Council, 467 U.S. 837, 842-

43 (1984); K Mart Corp. vy. Cartier, Inc., 486 U.S.

281, 291-92 (1988).

C. This Court Need Not Grant Certiorari To Settle

An Important Issue Of Federal Law.

Although the status of Bevill mining wastes may have

some significance for the mining industry, there is no need

for this Court to grant certiorari in light of the existing

judicial consensus. The fact that EPA has consistently

interpreted CERCLA to treat mining wastes as hazardous

constituents, 48 Fed. Reg. 40,658-63 (1983), adds to

the consensus on this issue. Accordingly, this Court

need not grant certiorari to resolve this issue.

II. THE NINTH CIRCUIT’S DECISION TO AFFIRM

THE TRIAL COURT’S FACTUAL FINDING THAT

ASARCO “ARRANGED FOR THE DISPOSAL” OF

SLAG IS NOT INCONSISTENT WITH ANY OTHER

FEDERAL APPELLATE DECISION AND DOES

NOT PRESENT AN OPPORTUNITY FOR THIS

COURT TO SETTLE AN IMPORTANT iSSUE OF

FEDERAL LAW.

Overwhelming evidence at trial demonstrated that

Asarco’s scheme for selling its slag was an arrangement

* Asarco erroneously contends that EPA has changed its position

regarding the status of Bevill wastes by referencing passages from

testimony presented by particular EPA personnel to Congressional

committees regarding unrelated matters. Official EPA policy is

reflected in the preamble to its formally promulgated regulations,

the relevance of which the Ninth Circuit acknowledged. See Pet.

App. at B-20 (citing 48 Fed. Reg. 40663 (1983) ).

13

for disposal. A draft environment impact statement pre-

pared by Asarco described slag as a “waste product” and

explained that “[a]s long as the smelter operates there will

be a need to dispose of slag.” Asarco management con-

ceded that “the main purpose in marketing the slag was

simply to dispose of it, to get it off the site.” To stay

in business, Asarco needed to “get rid of the slag.”

Asarco considered selling the slag as one way of “dis-

posing of our slag production by some other means than

dumping it in the Puget Sound.” “[T]he objective [of

the marketing scheme] was to get rid of the slag.” Asarco

contracted with Black Knight, a subsidiary of industrial

Mineral Product, to “accept, process and sell, or other-

wise dispose of” virtually all of Asarco’s waste slag. The

contract obligated Industrial Mineral Products to get rid

of all of the slag, whether it sold it or not. Rather than

trying to make a profit marketing slag, Asarco ultimately

waived royalties and canceled debts to help keep Black

Knight in business so that it could continue to dispose

of its slag.

Based on these facts, the district court found that

Asarco had arranged for the disposal of its slag. See Pet.

App. at A-11 to A-15. Far from marketing a useful prod-

uct in good faith, the district court concluded that Asarco

“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.” The

Ninth Circuit affirmed the court’s factual finding, ex-

plaining that slag “is at best a by-product,” “with a nom-

inal commercial value.” Pet. App. at B-22. Asarco

“wanted to get rid of” the slag “whether [it] could sell

[it] or not.” Id. The Ninth Circuit also concluded that

the jury’s verdict that slag was a product for purposes

of the Washington Product Liability Act did not preclude

the district court from finding that it was also a waste

under CERCLA because the two statutes were enacted

for different purposes. Pet. App. at B-21.

14

Asarco now asks this Court to hear its challenge to

the district court’s factual finding. The federal courts

agree that the sale of hazardous substances may some-

times constitute an arrangement for disposal, depending

——upon the facts surrounding the transaction. Because this

issue is intensely factual in nature, it does not present

this Court with an opportunity to settle an important

issue of federal law.

A. Federal Courts Agree That Sales May Constitute

Arrangements For Disposal Depending Upon The

Facts Surrounding The Transactions.

Anyone arranging for the disposal of a hazardous sub-

stance is liable under CERCLA for the cost of responding

to the release of the hazardous substance. 42 U.S.C.

§ 9607(a)(3). When confronted with sales of a hazard-

ous substance, federal courts have refused to adopt either

a per se rule that all sales are arrangements for dis-

posal, or the contrary rule that sales are never arrange-

ments for disposal. See, e.g., Florida Power & Light Co.

v. Allis Chalmers Corp., 893 F.2d 1313, 1317 (11th Cir.

1990); Prudential Ins. Co. v. United States Gypsum, 711

F. Supp. 1244, 1254 (D.N.J. 1989). Courts have in-

stead held that CERCLA liability depends upon the spe-

cific facts of the case.

As a general matter, courts have not imposed liability

when a defendant merely sold a new product that it in-

tentionally manufactured to sell at a profit.’ On the

other hand, courts have imposed liability when the de-

fendant sold an unwanted industrial waste or by-product

7 See Stevens Creek Associates v. Barclays Bank of California,

915 F.2d 1355 (9th Cir. 1990), cert. denied, 500 U.S. 917 (1991);

Dayton Indep. School Dist. v. U.S. Mineral Prod., 906 F.2d 1059

(5th Cir. 1990); Kelly v. Arco Indus. Corp., 19 Chem. Waste Lit.

Rptr. 1342 (W.D. Mich. 1990); Prudential Ins. Co. v. United

States Gypsum Co., 711 F. Supp. 1244 (D.N.J. 1989); United

States v. Westinghouse Elec. Corp., 14 Envtl. L. Rep. 20483 (S.D.

Ind. 1983).

15

in order to get rid of it.* Determining which category any

particular transaction falls into requires a fundamentally

factual determination. See Florida Power, 893 F.2d at

1317.° The district court’s specific factual finding that

Asarco arranged for the disposal of its slag, and the

Ninth Circuit’s affirmance of it, therefore, does not con-

flict with any federal court decision.

B. The Ninth Circuit’s Decision Does Not Conflict

With American Mining Congress Or Other Deci-

sions Interpreting RCRA.

Asarco contends that the Ninth Circuit’s decision in

this case conflicts with various decisions construing RCRA,

including the D.C. Circuit’s decision in American Min-

ing Congress v. United States E.P.A., 824 F.2d 1177

(D.C. Cir. 1987). The Ninth Circuit’s decision is con-

sistent with these RCRA decisions when read properly,

although these cases are of limited relevance to Asarco’s

liability under CERCLA.

8 See, e.g., Catellus Dev. Corp. v. United States, 34 F.3d 748

(9th Cir. 1994) (selling used batteries to lead reclamation plant) ;

Chatham Steel Corp. v. Brown, 858 F. Supp. 1130 (N.D. Fila.

1994) (selling used batteries to salvage service); Chesapeake &

Potomac Tel. Co. of Va. v. Peck Iron & Metal Co., 814 F. Supp.

1269 (E.D. Va. 1992) (selling spent batteries to recycler) ; United

States v. Pesses, 794 F. Supp. 151 (W.D. Pa. 1992) (shipping and

selling scrap metal to refabricator) ; States v. BFG Electroplating

Corp., 31 Env’t Rep. Cas. (BNA) 1174, 1183 (W.D. Pa. 1990)

(sale of contaminated cinder blocks to homeowners for driveway

fill) ; United States v. Conservation Chemical Corp.; 619 F .Supp.

162, 234 (W.D. Mo. 1985) (sale of fly-ash) ; United States v. Ward,

618 F. Supp. &84 (E.D.N.C. 1985) (sale of contaminated oil for

road spreading) ; New York v. Genera’ Elec. Co., 592 F. Supp. 291

(N.D.N.Y. 1984) (sale of contaminated oil for use as dust suppres-

sant on drag strip) ; United States v. AGF Materials Co., Inc., 582

F, Supp. 842 (S.D. Ill. 1984) (sale of spent caustic solution).

® Contrary to Asarco’s assertions, courts have not interpreted

CERCLA to establish a “useful product defense,” excluding from

liability all sales of materials havirg any productive use.

16

In American Mining Congress, the D.C. Circuit held

that EPA lacked authority under RCRA to regulate ma-

terials “destined for beneficial reuse or recycling in a

continuous process by the generating industry itself.” 824

F.2d at 1190. RCRA authorizes EPA to regulate haz-

ardous wastes, which it defines to include “discarded ma-

terials.” The court concluded that materials “destined

for immediate reuse in another phase of the industry’s

ongoing production process” were not discarded. Id. at

1185. Such materials had “not yet become part of the

waste disposal problem.” /d. at 1186. EPA, therefore,

lacked authority to regulate those materials under RCRA.

In contrast to the materials at issue in American

Mining Congress, Asarco’s slag had become part of the

waste disposal problem. Asarco did not immediately re-

cycle its slag in its production process. On the contrary,

Asarco discarded the slag by contracting with Black

Knight to sell or otherwise dispose of it. In Owen Electric

Steel Company of South Carolina, Inc. v. Browner, 37

F.3d 146 (4th Cir. 1994), the Fourth Circuit considered

a remarkably similar chain of events under RCRA. In

that case, the defendant had generated slag as a by-product

of steel production and sold the slag to the construction

industry for use as a road base material, among other

things. The court concluded that the slag was a discarded

material under RCRA; it was “part of the waste disposal

problem.”

Although these RCRA cases are consistent with the

Ninth Circuit’s interpretation of CERCLA in this case,

it is worth emphasizing that RCRA cases are of limited

relevance to Asarco’s liability under CERCLA. While

RCRA regulates the disposal of solid and hazardous

wastes, CERCLA broadly imposes liability on those

who arrange for the disposal of hazardous substances.

See 42 U.S.C. § 9607(a)(3); see also State of Ariz. v.

Motorola, 774 F. Supp. 566, 571 (D. Ariz. 1991);

United States v. Farber, 27 Env’'t Rep. Cas. (BNA) 1978,

1980-1981 (D.N.J. 1988). Thus, although Congress de-

17

fined the term “disposal” in CERCLA by reference to

the definition of “disposal” found in RCRA,” there is

no reason to believe that Congress also intended to limit

CERCLA’s application to those hazardous substances

that are also RCRA “hazardous wastes.” Indeed, such an

interpretation would be contrary to the plain language of

CERCLA section 107, which imposes liability on those

who “arranged for disposal . . . of hazardous substances,”

not those who arrange for disposal of hazardous wastes.

C. The Ninth Circuit’s Decision Affirming The District

Court’s Finding That Asarco Arranged For Dis-

posal Of Slag Does Not Present An Opportunity

To Settle An Important Issue Of Federal Law.

In this case, the Ninth Circuit’s decision affirmed a

factual finding of the district court. Asarco’s challenge

focuses on that fact-specific determination and the unique

circumstances arising from the combination of claims

brought by the Plaintiffs in this case. Neither offers an

opportunity for this Court to settle an important issue of

federal law in a way that will help resolve future CERCLA

cases.

As explained above, the question of whether the sale

of a hazardous substance constitutes an arrangement for

disposal requires a fact-specific inquiry. See, e.g., Florida

Power, 893 F.2d at 1317. The district court has already

resolved that factual issue in this case, and the Ninth Cir-

cuit affirmed that decision. A further decision by this

Court holding that the district court’s ruling was or was

not supported by the record is unlikely to provide signifi-

cant assistance to lower courts deciding cases based upon

different sets of facts.

Asarco, however, also attempts to identify a purely

legal, indeed constitutional, issue in this factual dispute

by contending the district court’s conclusion that Asarco

10 See 42 U.S.C. 9601(29) (CERCLA disposal definition); 42

U.S.C. § 6903(3) (RCRA disposal definition).

18

had arranged for the disposal of slag, is inconsistent with

the jury’s verdict that the slag was a product. By con-

cluding that slag was a product for purposes of the Wash-

ington Product Liability Act, however, the jury merely

found that slag had some value and had been offered for

introduction in commerce. As explained above, these

facts are entirely consistent with the court’s conclusion

that the sale of slag was an arrangement for its disposal.

Moreover, Asarco conveniently neglects to mention that

the jury also found that slag was a waste for purposes

of the Washington Hazardous Waste Management Act.

When taken together the jury’s findings are consistent

with the district court’s finding that Asarco arranged for

the disposal of slag.

In any event, Asarco’s legal challenge to the district

court’s finding and the Ninth Circuit’s affirmance of it

does not pose a significant issue of federal law. Asarco’s

challenge to the consistency of the jury verdicts and judi-

cial rulings arises from the peculiar combination of federal

and state statutory claims brought in this case. A further

decision from this Court would be unlikely to provide

precedent useful in other cases.

19

CONCLUSION

For the foregoing reasons, this Court should deny

Asarco’s Petition for Writ of Certiorari.

Respectfully submitted this 8th day of December, 1994.

RONALD B. LEIGHTON

GORDON, THOMAS, HONEYWELL,

MALANCA, PETERSON & DAHEIM

2200 First Interstate Bldg.

P.O. Box 1157

Tacoma, Washington 98401

Attorneys for

Murray Pacific Corporation

JAMES C. HANKEN

SCHWABE, WILLIAMSON, FERGUSON

& BURDELL

1420 Fifth Avenue, #3500

Seattle, Washington 98101

WILLIAM L. DOWELL

WALKER & DOWELL

P.O. Box 867

Longview, Washington 98632

Attorneys for

Wasser & Winters Co.

WILLIAM H. BEAVER

KARR TUTTLE CAMPBELL

1201 Third Avenue

Seattle, Washington 98101

Attorneys for

Cascade Timber Company

Respectfully submitted,

JEFFREY W. LEPPO

Counsel of Record

KAREN M. MCGAFFEY

BOGLE & GATES

Two Union Square

601 Union Street

Seattle, Washington 98101

(206) 682-5151

Attorneys for

The Port of Tacoma

JAMES C. COLLINS

THELEN, MARRIN, JOHNSON

& BRIDGES

Two Embarcadaro Center

San Francisco, California 94111

BERT P. KRAGEs II

Attorneys for

Louisiana-Pacific Corp.

NICK S. VERWOLF

DAVIS WRIGHT TREMAINE

1800 Bellevue Place

Bellevue, Washington, 98004

Attorneys for Portac, Inc.