Sierra Club v. Seaboard Farms, Inc.

claims of court,” that the defendant’s §§ 7-8 “[were] NLRA

preemption first in- to be addressed

matters courts.” Id. at state Utah

stance

887, 890. argument no provides

Defendant preemp- find that NLRA

why we court. It to federal

tion removal permits analyze court to up to the state

bewill preemption applies. Garmon

whether

CONCLUSION reasons, RE- foregoing

For with instructions and REMAND

VERSE court. case to the state

to remand CLUB, Plaintiff-Appellant,

SIERRA and Seaboard FARMS INC.

SEABOARD corporations,

Corporation, Delaware Funding Limited Part

and Shawnee

nership, partnership, De a Delaware

fendants-Appellees. Amicus Curiae. Foods

No. 03-6104. Appeals, Court of States

United

Tenth Circuit. 28, 2004.

Oct.

here we focus on the ammonia emissions Appellee’s concentrated animal feed- ing operation located in western Okla- homa. CERCLA’s definition of turbid, but, this term is somewhat when read with other provisions nearby, is un- ambiguous. The district court found that “facility” the term narrowly should be con- strued so as to apply to each individual barn, lagoon, application and land area as facility. individual are led to contrary conclusion because another part of the statute’s text provides catch-all provision that encompasses Seaboard’s en- (Patrick Barclay Rogers B. Gallagher Therefore, tire production site. we re- Bookbinder him David with on the verse the district court order and remand briefs), Club, Francisco, CA, Sierra San for further proceedings.

for Appellant. I. BACKGROUND (Richard

Ellen B. Steen E. Schwartz L. and Kirsten Nathanson with her on the Corporation, Defendant Seaboard a pub- LLP, brief), Moring & Washing- Crowell licly traded corporation, wholly Delaware ton, DC, Appellee. Farms, Inc., owns Seaboard an Oklahoma Villines, Harbison, and, Judith A. & corporation, Stites two through single-mem- Frankfort, PLLC, Kentucky, and Laura D. ber liability limited corporations, owns Keller, Taylor, James W. and W. Blaine Shawnee Funding Limited Partnership Early, Harbison, PLLC, Stites & Lexing- “Seaboard”). (collectively, Seaboard owns ton, KY on the brief for Amicus Curiae. Farm, operates the Dorman in Beaver County Oklahoma, in western which com- HENRY, BRISCOE, Before prises two farms located on contiguous HARTZ, Judges. Circuit land, sections of Dorman North and Dor- man South. Each HENRY, farm includes eight Circuit Judge. buildings and uses a common waste man- Club, Sierra appeals Inc. from the dis- agement system. Together, Dorman grant summary trict judgment court’s North and Dorman South house approxi- defendants, Seaboard Farms Sea- mately 25,000 building swine. Each sep- board Corporation, and Shawnee Funding arated 40 to 100 feet. (together, Limited Partnership “Sea- board”), own operate pig-farm- who At issue are the emissions from Dorman ing operation in western Oklahoma. This system, Farm’s management waste which meaning case on the turns the word barns, lagoons, includes several and land used in Comprehensive application areas. alleges Sierra Club Response, Environmental Compensation, Seaboard knew of the Dorman Farm’s am- 103(a) (“CERC- and Liability Act’s section monia emissions and failed to them LA”), 9603(a). 42 U.S.C. as required under CERCLA. Arguing that 103(a) CERCLA’s Section sets out ammonia vari- emissions from the Dorman ous reporting requirements for the Farm release exceeded “reportable CERCLA’s of hazardous substances from a facility; quantity” (“RQ”) of pounds one hundred tion, primary that Sea- issue before us is wheth- day, Club maintains per Sierra 103(a)’s duty comply interpretation board had er or not district court’s requirements. See immediate of the term is correct. (designating reportable C.F.R. 302.4 substances). quantities of hazardous II. DISCUSSION that Sier- response, argues In Seaboard 103, In interpreting must first de- the of the

ra Club misconstrues plain language termine whether the “facility.” maintains that word Seaboard ambiguous. statute is Suspecting that the Farm houses numerous indi- the Dorman might opinion EPA have an toas what a facilities, in la- each of the various vidual “facility” means the we invited barns, goons, application and land areas. agency participate by submitting to theory, lagoon, each a Under this because declined, barn, sepa- is application area brief. It and land because insufficient obligated to re- facility, rate is Department Seaboard time to work with the of Jus- only under if the ammonia port tice and prepare brief before scheduled facility ex- for each individual emissions argument; it oral offered to consider our per day. pounds ceed hundred one post-argument. invitation Because we term unambiguous, hold the to be and we agreed initially district court interpretation, need not defer to the EPA’s reasoning, on an EPA Seaboard’s based no is necessary. further assistance Our district concluded that manual. The court is holding supported by the text of the separate to be “facilities intended [we]re statute, its lagoons,” Aplt’s purpose, ... remedial caselaw buildings, structures (Dist. II, Order, at Ct. App. vol. doc. construed the term 5, 2002), con- filed Feb. but nevertheless other contexts. “ag- required was to

cluded re- gregate being the amount of ammonia A. Standard Review at Sow Farm in order leased the Dorman grant the or denial of sum- “We review if required [it to determine to was] novo, judgment mary applying de the stan- the under Id. at 10. emissions CERCLA.” pursuant the applied dard district In recon- reviewing Seaboard’s motion to 56(c).” Oil, to Mesa Inc. v. Fed.R.Civ.P. sider, the court reexamined the district Am., Ins. N. Co. record, ruling regard- reversed its earlier Cir.1997). standard, Under ing aggregation, granted the reconsid- if summary judgment appropriate In so the court determined doing, eration. to inter- pleadings, depositions, answers required that Seaboard “should file, together rogatories ammonia and admissions on aggregate amounts of release affidavits, any, at which with if show that there separate facilities Dorman Id., RQ meet the limit.” genuine did not doc. is no issue of material fact and (Dist. 2002). Order, July filed Ct. moving party judg- entitled If the ment as matter of law. movant Subsequent ruling, parties to this showing the absence bears burden of that ad- entered into Consent Decree fact, non- genuine of a issue of material claims, with all of Sierra dressed Club’s pleadings movant not rest on its but ap- exception that Sierra Club could showing specific set forth facts must ques- on peal ruling the district court’s disposi- for those genuine issue trial liability tion of Seaboard’s failure to 103(a) bur- tive for which it carries the matters report ammonia emissions proof. Id. making this determina- den of CERCLA. 103(a) product B. include in con- Section consumer sumer use vessel. starting point every case in- “[T]he §§ (emphasis supplied). volving of a statute is the construction Greyhound language Corp. v. Mt. Unambiguous? itself.” C. Is the Statute Stages, Hood U.S. first determine whether (1978).(internal 2370, L.Ed.2d S.Ct. statutorily-defined omitted). marks quotation Section 103 of is, decide, unambiguous. That we must requires that analytic using the framework set out Chevron Inc. v. Natural Res. USA Any charge of vessel or an Def. Council, 467 U.S. 104 S.Ct. shall, facility an offshore or onshore as (1984), 81 L.Ed.2d 694 “whether any soon has of knowledge as he release Congress directly has spoken to pre the (other federally permitted than a re- cise question at issue.” Pharmanex lease) a hazardous substance of Shalala, Cir. quantities or facility equal such vessel 2000) (internal omitted). quotation marks to or than greater pur- those determined so, “If matter, that is the end the of title, suant to 9602 of section imme- Congress’ clear intent controls. If the diately notify the Response National ambiguous statute is silent or as to the the Center established under Clean Wa- specific us, issue before then we must de ter 1251 et seq.] Act U.S.C.A. of [33 agency’s fer to interpretation, the if it is Response such release. The National permissible based on a Id. construction.” convey Center shall the notification ex- peditiously to all appropriate Govern- agree We with the district court agencies, ment the including Governor clear, that the appears definition concise of affected State. and straightforward, delineating examples (A) of in subpart (“any building, facilities 9603(a) (emphasis supplied). structure, installation, equipment, or pipe (NH4) Ammonia is a hazardous substance well, pipeline ... pit, lagoon, im pond, 102 CERCLA. See 40 C.F.R. poundment, ditch, landfill, storage contain § 302.4. reportable The EPA-defined er, vehicle, stock, rolling motor or air quantity for ammonia is one hundred craft,” 9601(9)(A)). Thus, 42 U.S.C. pounds day. per (or argues la each barn As term “facility,” to the we will not goon) separate facility, is a the unless extrapolate a definition when one has been from each emissions barn exceed one hun provided in the text the statute. pounds per day, dred no re is CERCLA defines quired. But we also conclude that the statute provides provision a catch-all (A) structure, any building, installation, n (B) subpart (“any site or area where equipment, pipe or pipeline (including hazardous substance been deposited, any pipe into a publicly sewer or owned stored, of, disposed or or placed, works), well, pond, treatment pit, lagoon, 9601(9)(B)). located,” come to be id. ditch, landfill, impoundment, storage container, vehicle, stock, motor rolling or We note the district court did (B) aircraft, (B) site or area appear where a subpart to address or- its Although substance has been ders. we with the district of, (A) placed, clear, subpart other- court that it be located; wise to (B), come but subpart does not read with wherein we inter- Arguments “facility” to D. dictate Seaboard’s the definition pret to issue at hand. the unequivocal answer Having concluded that the term principles statuto- Applying normal encompasses en- unambiguous (B) construction, encompasses subpart ry site, tire Dorman we turn Seaboard’s sub- where a hazardous “any site or area counter-arguments that the term Giving located.” has “come stance” narrowly. should be construed We consid- unambiguously expressed in- to the “effect (1) (2) statute, pur- er the text of Chevron, Congress,” 467 U.S. tent (3) statute, pose of the federal courts’ 2778, we must hold that the 104 S.Ct. of the interpretations definition site thus in- contiguous Dorman entire (4) “facility,” the EPA’s various cluded. interpretations upon that touch the issue. District Court acknowledge Statutory of Kentucky District the Western statute, Turning plain text conclusion than did opposite reached the conjunction link- telling find here, sup- might the district court which (B) (A) “or,” ing subparts is thus finding ambiguity the statute. a of port two of what providing distinct definitions Quarrell, 310 F.3d United States See might facility. a “An area ful- constitute Cir.2002) (“A (10th am- statute is 669 requirements part A need filling the not being under- capable when it is biguous part B to requirements also meet reasonably persons well-informed by stood ‘facility,’ a and vice versa. considered If an different senses. in two or more B not be read Consequently, part found, guid- is a court seek ambiguity way any modifying part as in A.” United intent, a task aided Congress’s ance from Township Brighton, 153 F.3d States v. history. A reviewing legislative by Cir.1998) (Moore, J., concur- 322 look- ambiguities by court can also resolve ring). is as situation or “[t]he Site defined statute.”) behind the ing purpose at the town, etc., esp. position place, building, of a (internal quotation marks and citations surrounding to the district with reference omitted). Club, Tyson Inc. v. Sierra English Dic- locality.” or XV OxfoRd Foods, Inc., (W.D.Ky. 693 F.Supp.2d ed.1989). (2d addition, “In tionaRY 2003) (hereinafter Tyson), district the defi- satisfy do otherwise sites that not argument accepted court Sierra Club’s by purview swept nition are within its every included the term ‘any to site phrase applies or catch-all farm, litter at the poultry house or shed ... substance oth- area where hazardous proper farm is and that the “whole site ” Uniroyal comes to be located.’ erwise for regulated entity purposes Co., Corp., Deltech 160 F.3d Chem. Inc. v. requirements.” ... CERCLA (5th Cir.1998) (quoting U.S.C. Although the district court Id. at 708. 9601(9)(B)). § conclusion, a different its below reached disjunctive two-part entirely on We hold that reasoning based was 101(9)(B), 101(9)(A), means whatever § §on which definition and not only not the facts at hand: “any appropriate would include site or area where “(A) pond, lagoon, impound- ... pit, deposited.” has been hazardous substance “(B) 101(9)(B). ment, Thus, landfill ...but also divergent [or] views of sub- area where hazardous waste change our conclu- site or the two courts does placed, ... unambigu- deposited or “facility” is stance sion that the term located.” come to be ous. 9601(9). put, “Simply goals, the term To facilitate its U.S.C. remedial CERC- LA ‘facility’ every place includes where haz “establishes several mechanisms to re spond to come releases threatened ardous substances located.” releases powers the respective v. Conservation Chem. delineates United States (W.D.Mo.1985). 162, 185 rights governmental and private entities F.Supp. parties.” Id. A primary step holding interpretation supported by This parties responsible problems for disposal directly federal court only other address process provided the notification Tyson, 299 F.Supp.2d this issue. See provides the EPA CERCLA with acknowledged 708. The “a variety achieving of tools for the effi contrary District of Western Oklahoma’s cient cleanup and cost-effective of the na findings, concluded but tion’s hazardous waste sites.” United that a whole chicken farm site is a facili- States v. Corp., Occidental Chem. ty which reported releases must be (3d 143, 147 Cir.1999). First, Defendants are CERCLA. Sierra Club’s assertion 101(9)(A), correct CERCLA de- CERCLA, which was enacted “[i]n facility “any building, fines mean ” ... response to the serious envi- structure, installation, equipment,.... ronmental and health posed risks indus- 9601(9)(A). relying But in on pollution,” trial interpreted must be lib- ignore provision, they erally so to accomplish as its remedial (B) which defines a goals. Bestfoods, United States v. “any site area where 1876, U.S. 118 141 L.Ed.2d 43 S.Ct. substance (1998); Airlines, Atl. Am. Co. v. of, or placed, or Richfield ” (10th Cir.1996) 564, (‘We 98 F.3d 570 come to be located.... U.S.C. n note that because CERCLA remedial 9601(9)(A). § Under CERCLA legislation, it should be liberally construed 101(9)(B), site, § the entire includ- farm to carry purpose.”). out its The EPA ing on single all chicken houses major § states that “a purpose” of 103 is site, qualifies facility. as a “to alert appropriate government offi- supplied). Id. (emphasis cials to releases hazardous substances that subsection that may require rapid response protect 101(9)(B) § provides a catch-all alternative public health and welfare and the environ- provision capture spe- sites are not 1985) Fed.Reg. 13,456 4, ment.” (April (A). cifically identified subsection (final rule). Consistent awith liberal con- Purposes 2. Remedial of CERCLA struction to further purposes, CERCLA’s Court affirmed that “the Bestfoods broad purposes CERCLA’s remedial enjoys term ‘facility’ a broad and detailed holding. further our support See Uniroy- definition.” U.S. at 118 S.Ct. 1876 Co., (“Numerous al Chem. 160 F.3d at 257 § (citing in an brought action under courts ... have recognized CERCLA 9607). § CERCLA § statute.”) is a remedial broad (collecting cases). . “Congress enacted CERCLA argues Seaboard “[t]he expeditious cleanup facilitate the goal of envi- of immediate notification and' emer- by gency ronmental contamination caused response haz- by would not be served broad, ardous Daigle waste releases.” interpretation Shell site-wide of the term ” Oil ‘facility.’ Aple’s Cir. (emphasis Br. at 18 1992). supplied). emphasizes that the liability purposes con- another “facility” provided Planning statute, broadly Emergency cleanup to “maximize site strued (EPCRA), Act Community Righb-to-Know Rather, the efficiency.” Aple’s Br. at 20. EPCRA interpretation. a broad requires requirements notification defines by on dis- “best served a focus would be structures, and buildings, equipment, all locations,” “facility” for pur- crete and thus stationary which are located items other barn, individual poses of 103 means each contiguous site on single on a Id. lagoon, etc. at 28. are owned adjacent sites and which arguments uncon- We find Seaboard’s (or by any person operated same controls, language contains no by, vincing. controlled which with, 101(9)’s per- such limiting common control 103 or defini- limiting or under son). of section purposes For fact, way. tion of such vehi- title, term includes motor of violations of interpretation the EPA’s cles, stock, and aircraft. rolling In re appear quite strict. See this section added). 11049(4)(emphasis 42 U.S.C. 204414, at *4 Corp., 1992 WL Genicom (where (E.P.A. 16, 1992) July defendant requirements notification EPCRA’s accurate informa- citizens with “provide storage from the failed to releases of toxic releases [regarding] tion all plant treatment tank of the wastewater pur- a site for informational chemicals at facility, penalties EPA’s assessment add- (emphasis Br. at poses.” Aple’s require- §of 103’s notification violation ed). a framework of establishes “EPCRA affd, justified), In re Genicom ment was state, designed agencies regional local 4 E.A.D. Corp., WL public presence to inform the about (E.P.A. 15,1992). Dec. chemicals, and to and toxic response in the emergency provide for Treatment 3. The Federal Courts’ health-threatening releases.” event of “Facility” Env’t, Citizens Better Steel Co. v. 1003, 86, 88, 140 118 S.Ct. 523 U.S. the federal contends that Seaboard (1998). EPCRA’s hazardous L.Ed.2d 210 breadth of have considered the courts that hun- include more than two substances in the “facility” did not do so the term substances, in- dred EPCRA hazardous 103, thus, § are not instruc- context of and di- cluding hydrogen and sulfur peroxide that, recognize excep- tive. oxide, that are not CERCLA of these cases that Tyson, tion none 302.4, §§ 355.10. 40 C.F.R. substances. “facility” the definition of explored have that, contrast, maintains Seaboard requirements eases. reporting § were 103 103(a) contemplate § does CERCLA’s However, Tyson court agree with the but rather aggregated reporting, widescale rational reason “can find no that we notifi- immediate designed it was assure discussing these cases disregard RQs from a discrete cation of released ‘facility’in a Section of the term that contends location. Seaboard F.Supp.2d 299 103 case.” EPCRA adopting a broader definition ” (a) various federal First we consider etc.), buildings “all CERCLA’s (covering ” under interpretations courts’ building) (“any must narrower definition (b) next, CERCLA, and other sections argues meaning. given some Congress’s use the relevance 103, that, §§ 104 and § unlike CERCLA’s the statute. throughout “cleanup management” identical 107 address 1174 action, § sections of In a 107 Fourth

a. Circuit Other simply noted that “a property because Both that the circuits that sides multiple could be divided [into facilities] the defined term applied have not, however, does mean that it so must be have with a brush. done so broad See purposes.” divided for CERCLA Axel Co., Uniroyal 160 F.3d at 245 (ap Chem. Johnson, Co., v. Inc. Carroll Carolina Oil facility plying broad definition of in an (4th Cir.1999). There, 191 F.3d § stating action under and exam “[i]n the hazardous substances were not located 9601(9), ining § it appar the contours of only storage tanks their associ- facility ent that in the broadest defined areas; rather, they ated spill were located terms, possible far encompassing more court, throughout the property. The after than It expressly traditional waste sites. noting “untenability of the contention buildings, pipelines, includes motor vehi anything that designated could be aas cles, stock, wells, rolling and aircraft. 42 separate facility so designated,” must be 9601(9)(A).”) (emphasis supplied); applied facility, the broad definition of v. United States Rohm and Haas noted that ... “[n]o has held (3d Cir.1993) F.3d (examining qualify area that could as a liability noting under “we think under the definition considered evident the broad defini separate facility.” (emphasis Id. at 417-18 ‘facility’ tion of Congress did not in supplied); see Tyson, F.Supp.2d also tend straight-jacketed EPA to be in this (treating at 709 plant or “an area [that] involving manner in situations a release is managed as a ... single [as] whole boundaries”); property transcending S550 facility for CERCLA purposes”). Barclays Stevens Creek Assocs. v. Bank of Cal., n. action, 915 F.2d recognize Cir. We that in a 1990) (determining liability may under 107 hazardous substances have contami- and noting parts broad construction of the large plant, initially term nated of a while “facility,” “such that in being only order show that emitted from one tank. See Johnson, ‘facility,’ area plaintiff only However, need Axel 191 F.3d at 417. show that a is, hazardous substance the underlying purpose placed CERCLA is there or has alerting government officials of (internal there”) come potential to be located cita hazardous substance release that omitted); tions New York Shore Realty require federal local government (2d Corp,, assistance, n. 15 response Cir. through is best served 1985) (“CERCLA defines the term ‘facility’ treating the single Dorman Farm as a broadly to include property facility. Solely Seaboard, at which by owned it is hazardous managed operated substances have come to be lo facility, and as one with cated”); Quaker see also particular State Minit- one purpose (producing site Lube, Co., Inc. v. Fireman’s Fund Ins. 52 swine products). See also Akzo Coatings, (10th Cir.1995) (In 1522, F.3d 1525 1354, a Inc. v. Aigner Corp., F.Supp. 960 action, (N.D.Ind.1996) designated 9607 EPA “[t]he 1359 (rejecting the the argu- Ekotek [consisting Site of three ment surface that each contamination source is impoundments, piles of pits separate facility waste ma argument because such terial, tanks, underground and an “could consequences, under have disastrous for ground drain facility ultimately every field] separate instance of con- pursuant tamination, 42 to U.S.C. because down separate of to each barrel substances.”) waste, contamination hazardous of feasibly could be con- (emphasis supplied). strued to constitute a separate CERCLA

1175 by, meaning same under two different sections part vacated in facility”), part, in aff'd 1933). Cir.1999); (7th Quaker of Act of State the Securities 302 197 F.3d Minit-Lube, at Cir. F.3d 1525 52 Furthermore, recognize that “ 1995) (entire site, of sur which consisted statutory rule of ‘normal construction’ of waste piles pits impoundments, face applies particular force where Con tanks, material, an un underground term,” gress specifically defined the as considered a derground drain field States, USA Inc. v. here. SKF United 263 Indus, 9607); v. B.F. Goodrich Cytec (Fed.Cir.2001). F.3d 1381 Sor See (S.D.Ohio Co., F.Supp.2d 836 enson, 475 U.S. at S.Ct. 2002) (“This usually, concludes that court (rejecting taxpayer’s argument the that always, although perhaps not the “overpayment” the definition of term area, facility will the entire site of section of Internal one the Revenue Code including single contiguous properties, apply to the of the in a did use term depos have hazardous wastes where section); separate but related code see operation or man part of the same ited also, v. e.g., Estate Cowart Nicklos Props, Lake v. Rockwell agement.”); Clear 469, 479, Drilling U.S. 112 S.Ct. Corp., F.Supp. 767-68 Int’l (1992) 2589, 120 L.Ed.2d 379 (noting (S.D.Tex.1997) (rejecting attempt canon of construction “basic create unnatural boundaries between terms an Act identical within bear on which it is locat building the site meaning”); Stroop, v. same Sullivan ed). 478, 484, 2499, 110 110 S.Ct. L.Ed.2d U.S. (1990) (reaffirming presumption used in b. Identical words different that “identical words used different parts of CERCLA parts of the same act are intended to have emergency Little addresses the caselaw meaning”). same Despite purposes notification 103. notes, As the “CERCLA caselaw, point can this dearth ‘facility’ once in the definition sec- defines Congress intended for to no evidence that meaning and its tion of statute term statutorily defined consistently throughout the interpreted meaning used assume different when Accordingly, ‘facility’ for entire statute. different sections CERCLA. cleanup purposes, purposes statutory purpose other extend [sic] recognized Supreme Court has Tyson, the bounds the contamination.” statutory con it is a rule of “normal pre- at therefore F.Supp.2d 699. “We ... identical words used struction intended that Congress sume intend parts of the same act are different meaning in have the same each meaning.” to have same Sorenson ed or subsections of the pertinent sections Sec’y Treasury, U.S. SKF (1986) (in statute....” L.Ed.2d 855 106 S.Ct. USA omitted). quotation marks When ternal in a stat Congress a technical term uses Facility Interpretations EPA’s

ute, presumed it has intended EPA “inter- Both sides refer to various meaning the same term have support. § The 103 for pretations” or subsections. See each of sections in various has touched on this section v. EPA Alloyd U.S. Gustafson (a) (1995) (con publication including an EPA places, L.Ed.2d 1 115 S.Ct. Requirements “EPA Reporting had the titled cluding “prospectus” that the term HARTZ, Releases Hazardous Judge, Continuous Sub- Circuit concurring in stances, part and dissenting part: Compli- A Guide for Facilities on (b) 1997”; ance, preamble pro- to the I concur in reversal and remanding to rule, posed regarding and final notification court, the district join but I do not (c) requirements; the final rule regarding panel opinion. Athough there is much (d) releases; continuous various com- with which I in that opinion, I read controlling responses provision— ments and to the notification 9601(9)— 101(9), § § 42 U.S.C. requirements rulemaking procedure. To differently than does the majority. my regulatory the extent these materials do view, whether the Dorman Farm consti- “facility,” generally, address the term “facility” tutes a depends on whether a interpretation appears EPA’s to cut both substance,” “hazardous within the defini- ways. Tyson, See 299 F.Supp.2d at 710 tion of 101(14), § the term in CERCLA (noting parties regula- that “both cite EPA 9601(14), § has been deposited on guides support tions and of their respec- the farm. Perhaps hog waste is a positions finding] tive ... and arguable substance”; “hazardous or perhaps ammo- support for positions”). both their Be- nia within the waste fits the definition. 101(9) cause interpreted we have to be But this issue has not been briefed or unambiguous, need not consider the argued by parties and should be ad- ruminations. EPA’s We owe the EPA’s dressed on remand. interpretations no deference under Chev- allegedly violated CERCLA ron. Nat’l R.R. Passenger Corp. See 42 U.S.C. 9603. That section re- Boston and Corp., Maine 503 U.S. quires “[a]ny charge of a ... (1992) S.Ct. L.Ed.2d 52 facility” promptly “any release (concluding that unambiguous statute “is ... of a hazardous substance from [the] in light language history, of its and so facility” in quantities above certain estab- Chevron). no deference was due” under lished levels. “Facility” Id. is defined as 101(9):

follows CERCLA (A) The term “facility” III. any CONCLUSION means structure, building, installation, equip- We hold that the plain language of ment, pipe or pipeline (including any 101(9)(A) (B) CERCLA’s is unam- pipe into a publicly sewer or owned biguous unequivocal. Given this clear works), well, treatment pit, pond, lagoon, expression Congress’s intent, § 103’s ditch, impoundment, landfill, storage use of the encompasses the container, vehicle, stock, motor rolling Dorman disjunctive site as a whole. The (B) aircraft, any site or area where a 101(9), language §of CERCLA’s remedial hazardous substance has been purpose, and the federal courts’ broad in- of, or placed, or other- terpretation and application §of located; wise come to be but does not further include bolster definition of a consumer product in con- sumer use or vessel. encompasses the entire Dorman Farm site. Accordingly, we REVERSE and (B) At glance, part first of the definition REMAND to the district pro- court for appears to part (A) any subsume — ceedings opinion. consistent with this (A), part described in such as a building or Foods, motion of Inc. for leave to lagoon, is on a “site” or “area” and thus file an granted. (B) amicus brief is encompassed by is part of the definí- (B) opinions a or “area.” The- on “site” relied qualifier part a in But there is tion. (A). qualify opinion To in part by panel support not to the of an ex- apply that does (B) of the defini- part pansive interpretation as a of the definition of place must a tion, (B) site or area be the all of part relate to the defini- has been a hazardous substance “where tion. of, placed, 101(9) reading §of is also My consistent Thus, a located.” come to be EPA by with an statement relied on Sea- power say plant, building, 'a coal-fired to reporting The relates board. statement (A) by by part but not be covered could A requirements under CERCLA 103. (B) is not located if hazardous waste part charge facility a report might hazardous waste plant. in the The reportable quantity known release of a is by burning the' coal and produced be (RQ) of a substance from the hazardous atmosphere. Ler- emitted into the then facility. aggregated are over a Releases “has say could that such waste haps one they period 24-hour to determine whether the power plant ... come to be located” RQ. introductory In an reach the state- (briefly) the smoke- resides because rule “Noti- accompanying ment its. final on emitted; but being that would before stack Quanti- Requirements: Reportable fication as a of the me stretch strike Fed.Reg. ty Adjustments,” (April usage we would In common phrase. 4, 1985), if explained plant the EPA a placed or come that an item has been say “facilities,” plant several can contains passes in a conduit that it to be located report RQof prepare one releases Moreover, if in an through instant. whether plant, entire but there to located” or otherwise come “placed, RQ on a an release is determined interpreted to include such a transient words, facility-by-facility other basis. purpose wonders what passage, one by plant if the the entire even release (A) is; a hazardous sub- whenever part RQ, reporting there is no re- exceeds (other an item than is released from stance RQ if an quirement there was not release vehicle) (A), item part a listed If, however, any single facility. several (B). part be on site that satisfies would experienced plant facilities at each correct, my reading If release, single a' RQ plant submit on depends result in this case then the covering all the releases. (or animal waste ammonia whether The EPA wrote: it) Farm is “hazardous Dorman

within commenters discussed Several not a sub- If it is substance.” (A) that “for notification Agency’s statement stance, then of the definition only part. EPA will consider the entire way purposes, “facility” applies. And see no I plant or installation and con- components contiguous of the interpret of the (A) grounds the entire under common owner- encompass tiguous definition to part are ob- rather components farm. Those discrete to be ship pond, No pipe, etc. jects building, vent, piece equip- pipe, than each —a 23553). “building” (48 definition of the word liberal FR plant” at such a ment group of dis- reasonably could include appeared the commenters Some of buildings. persed intentions. misinterpret EPA’s the statement Agency intended if the animal waste hand, other On the (B) numerous concur- reflect its belief that substance,” part a “hazardous (releases occurring within rent releases it would “facility” applies, period) of the same farm as the same 24-hour to treat the entire appropriate substance from one contigu- location, i.e., releases are the same plant ous or installation need not be located on contiguous grounds under reported individually, but should be re- common ownership. single in a ported pol- notification. This added). (emphasis Id. at 13459 Although icy unnecessary will avoid and burden- this statement is not as clear as one would plant some calls where a is experiencing like, certainly assumes that a single release, reportable

more than one be- (such plant or installation as a “chemical regulated cause it community allows manufacturing plant refinery”) or an oil to consider multiple concurrent releases might not itself be a though even of the same substance as one release for it includes several “facilities.” See also reporting purposes. “Clarification of Notification CERCLA Re- The comments pol- received favored this quirements for Facilities” in Emergency icy, although a suggest- few commenters Preparedness and Community Right-to- ed that EPA expand the definition of Questions Know and Answers facility to include Act— outdoor areas within (Feb. 1999), at http://yosemite.epa.gov/ boundary addition, of a plant. oswer/ceppoweb.nsf/vwResourcesByFile- some questioned commenters whether a (stat- aggregate name/epcra-qa.txt/$File/epcra-qa.txt releaser must the total vol- ing ume of concurrent that releases releases order to from two facilities “on if reportable quantity determine contiguous ground has under common owner- been met or exceeded. ship” should not aggregated be to deter- reached). The from which a release has RQ mine whether has been This entered or enter into the environ- only makes sense if Apart of the definition ment does include outdoor areas. (B) (which of “facility” applies part could — Rather, the definition of “environment” encompass well a “site” including the en- (i.e., includes all outdoor not completely plant) tire being inapplicable because the enclosed) surrounding areas and within “hazardous substance” emitted given facility. All concurrent releases plant is not considered to “ha[ve] been of the same particular substance from a of, or placed, or facility into the environment otherwise come to be located” there even aggregated to if RQ determine though it through travels a smokestack or been exceeded. separate Releases from the like. facilities, however, aggre- need not be Having this, said all I add a note of gated. EPA multiple intends for con- caution. CERCLA is notorious as a com- current releases of the same substance plex, poorly crafted statute. ap- What from a single facility to reported in a pears to straightforward be a reading of single notification single as a release. statutory language may fail to Where take into multiple RQ concurrent releases account important are occurring at features of the parts various of a con- statute. tiguous plant An or installation on amicus brief from contigu- the EPA would have grounds ous ownership common helpful.

(e.g., at a chemical manufacturing plant

or an oil refinery), charge also multiple these concur-

rent single releases in a notification. policy of consolidating notifications applies

also to concurrent releases from facilities,

separate storage long so as the

Case Details

Case Name: Sierra Club v. Seaboard Farms, Inc.

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Oct 28, 2004

Citation: 387 F.3d 1167

Docket Number: 03-6104

Court Abbreviation: 10th Cir.