Uniroyal Chemical Co. v. Deltech Corp.

against disciplinary him proceeding (including public the federal defenders COMPANY, UNIROYAL CHEMICAL cases). propriety

these two of the Coun- INC., Plaintiff-Appellant, cil’s order is not an issue in these cases and v. majority’s should be basis for the deci- CORP.; al., Defendants, DELTECH et sion. But propriety, whatever the order’s it entirely is an different matter to “sanction” Safeway Transportation, Inc.; TMI Judge McBryde by enforced recusal after the Enterprise, Inc., Defendants- disciplinary proceedings have been conclud- Appellees. ed, than it tois use that sanction as a basis challenging for impartiality his in decisions No. 96-31226. he made proceed- the outcome of the before United States Appeals, Court ings Many had been determined. accusa- Fifth Circuit. charges tions and against were made Judge McBryde, the exact substance and nature of Nov. 1998. unclear, unspecified public in the Rehearing Order on Jan. 1999. record, even unknown most members Nevertheless, the Fifth Circuit.7 as far as aware, amI no one has questioned ever

Judge McBryde’s integrity ability or his impartial

render decisions to the parties be- anything,

fore him. If the substance of the

allegations against him alleged concerned lawyers

abuse of all appearing in his court.

Ironically, publie what is is that one of the charges

initial against Judge McBryde, later

apparently dropped, was that investigated he vigorously

too government actions of the

in regard to a criminal defendant and inter- protect

vened too actively the defendant’s

rights.

Our court would be better off and would

itself impartial look more if simply ap- we

plied pre-existing precedents our to these cases and appellants’ affirmed the sentences having imposed been well within the

guidelines set Congress through the Unit-

ed States Sentencing Commission.

I respectfully dissent. Judge McBryde the lawsuit has filed in the rulings cutting statements and his repetitive off Columbia, District Court for the District of questioning. he testimony against characterizes the ¶ 43, Complaint him as hav- McBrydev. Committee to Review ing following topics: focused on the Orders, Disability Circuit Council Conduct and Judge McBiyde’s imposition (D.D.C). of sanctions No. 1:98CV02457 misconduct; litigation reject his Judge McBryde's rulings decisions and Torres Satz plea agreements; practices respect his with genesis cases were at judicial conduct conferences; settlement neys his proceeding. of attor- Judge McBiyde’s criticisms authority to make good for lack compliance faith rulings upheld by those was this court in In re orders; denied, rules and rulings his McBryde, Cir.1997), Satz 117 F.3d 208 cert. cases; procedural Tones rulings U.S. -, and his 118 S.Ct. - L.Ed.2d trial, such as time opening allotted for

I. FACTS July working a driver for Safeway Transportation, (“Safeway”) Inc. picked up a (“VT”) Vinyl load of Toluene at an industrial owned Corporation Deltech in Ba- Rouge, ton Louisiana. The was VT taken in Hunt, O’Hara, D. truck, Michael Patrick Steven a tanker which Safeway was leasing Levine, Jay LA, Rouge, Baton TMI Enterprises, (“TMI”), for Plaintiff- from Inc. to a Appellant. facility by Uniroyal Bay Minette, owned There, Uniroyal Alabama. Naugaurd added McNamara, M. Thomas Carmen M. Rodri- (“1-5”) 1-5 to the VT load.2 The resulting Lewis, guez, LA, Lafayette, Lislcow & Mary mixture was transported then to Louisi- back Johnson, Lewis, S. Orleans, Liskow & New where, Allen, ana in Port the tanker truck LA, for Defendants-Appellees. parked night for the at a trucking TMI ter- minal. The mixture was VT/I-5 scheduled for delivery at the Deltech facility in Baton Rouge the following day.

Early the morning next tanker truck ruptured while parked at the TMI facility, MAGILL,1 Before DeMOSS, SMITH and releasing 21 tons of the mixture VT/I-5 into Judges. Circuit the surrounding environment. Environmen- tal officials from the State of Louisiana DeMOSS, Judge: Circuit promptly and, arrived at the scene after eval- litigation This arises rupture from the of a uating possible public threat safety tanker parked truck at a trucking terminal environment, and representatives advised Allen, Louisiana, Port resulting in the release Uniroyal, TMI, Safeway, and others that of a hazardous industrial chemical into the emergency Only action was Uniroy- needed. surrounding Uniroyal environment. Chemi- responded al request. part As of the cal Company, Inc. (“Uniroyal”), appel- clean-up process, nearby waterways were lant, responded blocked, to the release brought and removed, contaminated soil was and against suit parties other involved to recover hundreds of gallons thousands of of contami- its clean-up costs in accordance nated with the stormwater were collected and treated. Comprehensive all, Uniroyal Response, Environmental incurred response costs in Compensation, (“CERC- $2,300,000, Liability excess of Act for which it was refused LA”), reimbursement seq., by parties. 9600 et the other as amended by Superfund Amendments Reau- Uniroyal then filed suit in federal district (“SARA”), thorization Act of 1986 No. Pub.L. against court Safeway, TMI, and other in- 99-499, 100 Stat. 1613 Uniroyal now parties.3 volved In addition to state-law appeals the district grant court’s summary claims not at issue in this appeal, Uniroyal judgment in favor of the defendants. We against asserted claim TMI and Safeway vacate the district court’s judgment and re- (“defendants”) CERCLA, under seeking to mand action entry for judgment in recover the costs it incurred in responding to Uniroyal. favor of rupture.4 Uniroyal brought private Circuit, 1. Judge Circuit Eighth sitting by prod- mixture was a useful VT/I-5 industrial designation. uct, and process was not being disposed of as hazardous waste. 2. Deltech producer is the sole of VT. is used VT by component Deltech as a product aof resin defendant, 3. originally Deltech was named aas by manufactured and sold Deltech. 1-5 eventually but Uniroyal settled with hand, and is not a other is a by manufactured Uni- party present appeal. to the royal. Deltech polymeri- used 1-5 to inhibit the zation of VT. The mixture was destined VT/I-5 by production use Deltech in the Uniroyal specifically resin limited its CERCLA which would then be prod- used to make other Safeway. claims to TMI and It did not assert paint glue. ucts like There dispute is no against claims other defendants. that re not Uniroyal meet 9607(a)(1) could leged that recovery action cost 9601(9) §in exception due to quirement “owner liability on the statute, imposes the definition 42 that excludes “facility.”5 of a CERCLA operator” use.” in consumer any “consumer 9607(a)(1). U.S.C. argued The defendants the de- against claim Uniroyal’s CERCLA this case applicable in exception was court on district before the came fendants product” must “consumer the term because summary judgment; one motions for cross useful, non- including all construed as jointly filed Uniroyal and one filed by indi just goods used products, hearing on the subsequent aAt defendants. agreed. court The district consumers. vidual were agreed that there parties motions Day exclusively on our decision Relying that the court of fact issues no triable Mineral Prod. v. U.S. Indep. Dist. Sch. ton a matter Uniroyal’s claim decide could Cir.1990), (5th district Co., the F.2d 1059 court de- the order later written In a law. “all substances hazardous found that court judg- summary motion for Uniroyal’s nied activities purpose production useful with a of the de- in favor ment, judgment granted excep consumer under the qualify Uniroyal’s CERCLA fendants, and dismissed rea then The Court at Id. 1065-66. tion.” the result ruling was That claim. was a mixture the that because soned VT/I-5 sepa- the two court’s consideration district were en and the product, defendants useful that now statutory construction rate issues time the at the conduct in commercial gaged appeal. present the basis form the ex occurred, consumer the rupture by the court was addressed first issue The Uniroyal from precluding applied, ception that the had Uniroyal established whether requirement. satisfying the under persons” “responsible were defendants however, expressed con- court, district The of its CERC- statute, required element a the of its correctness about the doubt siderable Murphy Oil v. Licciardi See LA claim. finding itself bound Cir.1997) (5th Though decision. Inc., U.S.A., 111 F.3d our court warned Dayton, the district of a CERCLA elements the four (listing plain with the odds Dayton was at decision action). argued that The defendants cause court The district exception. wording of the showing make legally not Uniroyal could outside courts that several observed further 9607(a)(1), on which provision the because interpreted had Circuit of this based, must be read was Uniroyal’s claim only to con- applying exception as that condi requirement disposal a contain consumption. personal for goods used sumer hazardous disposal of a liability on the tions ruling aas its certified The court district express re no As there waste.6 54(b) of the Fed- Rule judgment final the defendants provision, in that quirement See Fed. Procedure. Rules of Civil eral one based to infer court urged the district 54(b). appeals district Uniroyal R.Civ.P. only to applies theory that CERCLA claim. of CERCLA court’s dismissal abandoned or inactive disposals ruling. jointly defend defendants rejected the defen court The district sites. fact contentions, simply on the relying dants’ 9607(a)(1) ex not does text of REVIEW OF II. STANDARD requirement. pressly contain of sum grant court’s a district review whether next considered court The district novo, same applying judgment de mary aof existence proven Uniroyal had district by the applied as those standards ele- required another “facility,” v. Evans Serve. Remediation OHM court. See claim. of its CERCLA ment (5th Inc., Co., Cooperage 9607(a)(1). al- 9601(9) The defendants §§ & case, an acciden- comparison, involves TMI, 6. This dispute whether parties do 5. The product. a useful commercial carrier, the tanker Safeway, owner of tal release terminal, qualify as own- trucking truck and 9607(a)(1) of the stat- operators under ers ute. Cir.1997). In typical summary-judgment Applicable A. Law appeal we look to whether genuine there are CERCLA was enacted 1980 as broad issues of material fact that pre would have remedial measure assuring aimed at “that judgment cluded as a matter of law. Fed. responsible those damage, environ 56(c); R.Civ.P. Coleman v. Houston Indep. harm, mental injury poisons from chemical Dist., Cir.1997). Sch. 113 F.3d bear the costs of their S.Rep. actions.” No. case, however, In this parties concede 96-848, (1980); at 13 see also OHM Remedi fact, there are no triable issues of and we Services, (acknowl ation 116 F.3d at 1578 accept stipulation. Accordingly, edging CERCLA’s broad purpose). remedial proper appeal focus in this is on whether the light In of that purpose obligated we are district court proper adhered to the legal provisions construe its liberally in order to principles in granting summary judgment to frustrating avoid Congress’ intent. See appellees. Pearce, (2d v. Schiavone 79 F.3d Cir.1996) (recognizing obligation). same III. DISCUSSION operates The statute through a bifurcated promote scheme to the cleanup of hazardous appeal we are faced with the same substances that have been released into the two issues of statutory construction that environment. See 3550 Stevens Creek Ass were argued raised and the before district ocs. v. Barclays California, Bank 915 court. We first must decide whether Uni- 1355, (9th Cir.1990) F.2d 1357 (explaining the royal established that the defendants are re- scheme), denied, bifurcated cert. 500 U.S. sponsible persons 9607(a)(1) § under of 917, 2014, 111 S.Ct. 114 L.Ed.2d 101 CERCLA. In deciding question that we First, through the creation of the Hazardous must consider the defendants’ claim that Response Fund, Substance Trust or Super 9607(a)(1) § must necessarily contain a dis- fund, § 42 U.S.C. provides CERCLA posal requirement because Congress explicit- money the government to federal for waste ly intended that only CERCLA apply to dis- site cleanup, 42 § U.S.C. or for com posals at inactive or waste abandoned sites. pensating governmental other or individual That is an issue impression of first in this parties who costs, have response incurred and, Circuit to our knowledge, United 9611(a)(2). Second, § U.S.C. CERCLA also States of Appeals. Court affords private parties the right bring to a cost-recovery against action per “responsible If we decide that CERCLA is not that sons” for costs associated with responding to narrow, we next must decide whether the an environmental threat. 42 U.S.C. product consumer exception precludes Uni- § 9607(a); Borden, Amoco Co. v. Inc., Oil royal proving the of a existence CERC- (5th Cir.1989). 889 F.2d LA facility, required another element of its cause of action. question, reached, That if To prima establish a pri- facie case for a will require us to our holding revisit in Day- action, vate cost-recovery plaintiff must ton to determine whether governs (1) it prove: our that question site in the is a application of the product consumer excep- “facility” 9601(9), § under see U.S.C. tion in appeal. the instant If Dayton (2) 9607(a); § is not the defendant is a “re- controlling, we will required to sponsible address person” 9607(a), § see 42 meaning the consumer excep- (3) 9607(a); § U.S.C. that a release or tion in considering whether applies it to all threatened release of a hazardous substance useful products, or to goods occurred, used for see 42 9607(a)(4); (4) U.S.C. personal individual or use. begin our that the release or threatened release caused analysis with an overview of CERCLA as plaintiff it the costs, response incur see 42 present relates to appeal. the 9607(a)(4).7 Licciardi, U.S.C. 111 F.3d at expressly CERCLAdoes not identify prima the "responsible persons,” 9607(a). 42 U.S.C. facie elements of a cost recovery action. In- It responsible persons from this list of stead, merely the statute lists four classes of courts have derived prima the elements aof facie potentially parties, commonly liable referred to case. removing a case the effect 668; it has plicable, Tan Co., at 889 F.2d 398; Amoco Oil liability. scope of CERCLA from the v. Charles-Thom East Homeowners glewood Cir.1988). as, Inc., F.2d matter preliminary noting as It is worth those successfully establishes plaintiff If toxic cases that involve is unable elements, defendant and the sites, exception the consumer waste 9607(b), §in listed the defenses one of prove pale of consideration beyond the is often summary judgm plaintiff is entitled definition, sites, by involve waste since 9607(b); Amoco Oil ent.8 See products. consumer not useful materials 668; Remedi Co., OHM see also F.2d at however, where present, like In eases (observing Services, ation of a useful unexpected release there is a strict CERCLA is that because substance, applicability of commercial required generally plaintiffs statute exception is less certain. causation). prove applicability of types of cases In these broadly fourth ele- on how exception depend third and will appeal, In this product.” are not at “consumer case reads the term prima facie court ments that there dispute do not parties issue. Uni- prima element that facie The second of a release or threatened was a release per- “responsible establish is royal must Uniroyal in- substance, hazardous 9607(a) of Section requirement. son” the accident. responding to costs curred “responsible classes of makes four appeal in this Accordingly, sole concern our response costs: liable for persons” first two Uniroyal satisfied whether (1) operator of [present] owner case. prima facie of its elements facility, ... a Uniroyal’s claim is The first element (2) the time of who at any person consti- question the site requirement oper- or owned any hazardous substance of is “facility.” That term a CERCLA tute which such hazardous any facility at ated as: in statute the defined of, disposed were substances installation, structure, (A) building, any contract, (3) agree- by any person who any (including pipeline pipe or equipment, disposal arranged for ment, or otherwise treat- publicly owned or into a sewer pipe treatment, a trans- arranged with or or im- works), well, pond, lagoon, pit, ment disposal or treat- transport for for porter landfill, ditch, storage contain- poundment, or ment, substances owned hazardous of aircraft, stock, vehicle, or er, rolling motor ..., any facili- at by person such possessed (B) a hazardous area site or where any or ..., ty stored, dis- deposited, has been substance accepted (4) accepts or any person who come to or otherwise of, placed, posed or transport for any substances hazardous located; consum- not include does but ... or sites facilities treatment disposal or any vessel. use or in consumer er person,.... such selected added). 9601(9) Of (emphasis § Kop 9607(a); Joslyn Mfg. v.Co. § 42 appeal is U.S.C. present to the particular relevance Cir.1995). Inc., Co., 40 F.3d pers That that definition. phrase of the final was case, Uniroyal’s claim CERCLA In this in CERCLA is defined phrase, which 9607(a)(1). That cause § brought under itself, from the definition excludes claim, owner-operator action, known as an consumer use.” in “any consumer present owner on the liability imposes strict of CERCLA “facili- existence a Because the facility from a operator of CERCLA aof CERCLA element ty” is an essential of a release or threatened a release the there is claim, referred exception, often that Home Tanglewood East on toxic substance. may exception, take Having forth set owners, ap- If found to be importance. considerable God; by (1) solely an 9607(b), act ages caused “were § de- a defense under — 8. To establish (3) war; aof (2) an act or omission [or] act of prove by preponderance of fendant must 9607(b). threat of release party....” release or U.S.C. third evidence that resulting dam- substance and a hazardous principles, disposal requirement). we turn to the lack of these basic merits Unlike the appeal. persons, responsible of the instant three other classes of “disposal” expressly where is the word em- Responsible Scope B. & the Persons 9607(a)(1) ployed text, § statutory sim- Liability ply [present] holds “the owner liable operator facility.” of a vessel or a Id. There is The for decision whether Uni- first issue slightest is in not the reference that section royal sufficiently that established the defen- disposal.9 to a “responsible persons” dants 9607(a)(1) appeal, On statute. acknowledge The defendants that the text allege Uniroyal that defendants failed to car- 9607(a)(1) §of expressly does not contain a ry is no that because there evidence burden disposal requirement, assert but we According of waste in this ease. to must Congress infer one nonetheless because defendants, of a hazardous only apply intended CERCLA to to inactive inherent

waste is an and unavoidable re- intent, That abandoned sites. quirement bringing for a claim under allege, defendants reflected overall 9607(a)(1). disagree. We CERCLA, statutory scheme of legisla- statute, history tive case law. point starting statutory in The basic thrust of argument their is that we terpretation is language of the statute frustrating expressed would be intent of Greyhound Corp. itself. Stages, v. Mt. Hood Congress by allowing imposition Inc., 322, 330, 437 U.S. 98 S.Ct. this case. review (1978) (citations quotations L.Ed.2d 239 purported each alleged source of this intent omitted). plain language When we in turn. it; may depart must we abide from its meaning avoid a “so result bizarre Statutory 1. The Text Congress ‘could not have intended’ it”. Manspeaker, 184, 191, Demarest v. 498 U.S. allege The defendants it is a (1991) S.Ct. (quot L.Ed.2d 608 9607(a)(1) mistake to read in isolation. Contractors, Inc., ing v. Oceanic Griffin They insist when conjunc it is viewed 564, 575, U.S. S.Ct. 73 L.Ed.2d 973 whole, tion with CERCLA as a it becomes (1982)). Accordingly, the intent of “[i]f Con evident that wanted to confine lia clear, gress matter; is that is the of the end bility under the statute to that cases involved for the ... give court must effect to the disposal waste disagree. sites. We CERC- unambiguously expressed intent of Con provisions LA’s suggest, quite core to the Chevron, gress.” U.S.A., Inc. v. Natural contrary, through that the statute Congress Council, Inc., Resources 467 U.S. Defense sought to gener address hazardous releases 837, 842-43, 2778, 104 81 S.Ct. L.Ed.2d 694 ally, just disposals not at hazardous waste sites. 9607(a), 9601(9) §In disposal requirement a provision Section is the in CERC- is in three four contained LA “facility.” classes of that defines the term It is a responsible persons, 42 see provision U.S.C. crucial because CERCLA 9607(a)(2)-(4). §§ requirement But that imposed is cannot question be unless site in present not in the first class. See 42 facility. 9607(a); § U.S.C. constitutes a 42 U.S.C. 9607(a)(1); Blech, § Licciardi, v. 976 F.2d see also 111 (listing F.3d 398 California (9th 525, Cir.1992) 526-27 (acknowledging facility prima as the first element facie 9. One arguments ly of the defendants' Congress that intentionally. assume that did so suggests requirement we must read a States, 16, 23, into Russello v. U.S. United 104 9607(a)(1) § in order to some maintain sort of (1983); S.Ct. L.Ed.2d see also United consistency provision. internal within the That Bo, Wong States v. Kim implies Congress contention include that merely forgot to Cir.1972) ("[W]here Congress carefully has em- language the word ployed place a in one term and excluded it in 9607(a)(1). § agree. We do not When another, implied it should not be where exclud- particular language statutory includes one ed.’’). another, provision, general- and excludes it in we way into the environment. finds its Therefore, substance case). in which Con- manner reinforced, think, by the fact point we provides criti- is the term That to define gress chose expressly scope “disposing” is listed intended that the word into the insight cal many differ- as one of the definition statute. qualify release under ent acts 9601(9), it §of examining the contours In 9601(22). § defined is apparent terms, encompassing far possible broadest Similarly, the definition “hazardous sub- It ex- sites. traditional waste more than 9601(14) § far more than covers stance” pipelines, motor buildings, includes pressly provision states: material. That mere wells, stock, vehicles, and aircraft. rolling (14) “hazardous substance” The term 9601(9)(A). addition, sites § U.S.C. (A) designated pur- any substance means satisfy definition not otherwise do 1821(b)(2)(A) of Title to section suant by a catch-all purview swept within its (B) mixture, element, compound, solu- any or area “any site applies phrase that tion, designated pursuant or substance ... otherwise hazardous substance where a (C) title, any hazard- section 9602 this 42 U.S.C. located.” comes iden- having the characteristics ous waste 9601(9)(B). expansive definition That pursuant or section under listed tified not intend Congress did strong evidence ..., Disposal Act the Solid Waste disposal sites. to waste to limit (D) any pollutant listed under section toxic provisions reflect key Other (E) 1317(a) any hazardous air of Title liability under the impose To same intent. 112 of pollutant listed under section statute, prove that there plaintiff also must (F) Act, any imminently ... Air Clean of a release” “release or threatened was a substance or mixture chemical hazardous 9601(22), Under substance.” “hazardous the Administrator respect to which as follows: “release” is defined the term pursuant to section taken action has (22) spill- any “release” means term not include 15. The term does of Title emitting, pouring, ing, leaking, pumping, any or frac- including crude oil petroleum, escaping, discharging, injecting, emptying, specifi- not otherwise tion thereof which is into the disposing or leaching, dumping, designated as hazardous cally listed or (including the abandonment environment (A) subparagraphs substance barrels, containers, and discarding of (F) paragraph, and the through of this containing receptacles other closed gas, natural natural does include term or con- pollutant substance hazardous syn- gas, or liquefied natural gas liquids, taminant) .... (or fuel mixtures gas usable for thetic added).10 9601(22) (emphasis synthetic gas). gas natural and such well reach listed in that definition The acts 960K22).11 Notice effectively 42 U.S.C. disposal, act of beyond the mere expressly is made hazardous waste a hazardous any definition reaching means which discarded contrast, and other ma- lution control '‘disposal,” is By term which the 10. terial .... of employed other classes in the text of three § 6903(5) 6903(27). Similarly, § of § 9607(a), 42 U.S.C. responsible persons in but waste” as follows: the SWDAdefines "hazardous 9607(a)(1), narrowly. Under § defined is more (5) means a waste" solid defined, The term "hazardous 9601(29), “disposal" reference to § wastes, waste, of solid combination Act, or Disposal 42 U.S.C. Waste the Solid § concentration, phys- or quantity, because of its 9603(3), as: chemical, ical, infectious characteristics or dumping, injection, discharge, deposit, [T]he may— any leaking placing solid waste spilling, or of cause, (A) to an significantly contribute or or on land waste into or or hazardous mortality an increase serious or increase in irreversible, water.... incapacitating ill- reversible or 6903(3) added). (emphasis § 42 U.S.C. ness; or 6903(27) § de- By comparison, potential of the SWDA (B) present 11. pose a substantial “solid waste” as follows: fines or the environment human hazard to health stored, treated, transported, improperly (27) any gar- when means The term “solid waste" of, managed. refuse, disposed or otherwise sludge a waste treatment bage, 6903(5). pol- plant, supply or air plant, treatment water 246 generally, subset of hazardous substances mise hastily measure that was enacted

strong disposal indication that waste is not the final days of the session of lame-duck only possible liability. Congress. Grad, basis for CERCLA the 96th generally, See A Furthermore, Legislative defining History Comprehensive term hazardous Response, Environmental Congress specifically Compensation substance excluded oil Liability 1980, (“Superfund”) Act of 8 gas. must Co- natural We assume that if (1982) lum.J.Env.L. 1 (summarizing and ana- wanted to exclude all useful sub- (here- lyzing legislative history) CERCLA’s stances it would have done so in like fashion. “Grad”). inafter passage, Due to its 9601(14) hurried Finally, we note that covers a widely it is recognized many of CERC- staggering array substances; of hazardous provisions LA’s clarity lack and conciseness. (B) pursuant 9601(14), to subsection A multitude of roundly courts have criticized designated EPA has over 700 hazardous sub- vague, statute as contradictory, and stances. 40 C.F.R. See 302.4 It is lacking See, a useful legislative history. e.g., telling indeed that some of those substances Sys., HRW v. Washington Light Inc. Gas generic listed their names, chemical Co., 318, (D.Md.1993) (“the F.Supp. whereas specifically others are more de- legislative history gives of CERCLA more products. scribed as waste insight into the ‘Alice-in-Wonderland’-like To accept the defendants’ claim that nature of particular the evolution of this applies only to waste statute than helpful it does hints on the sites, this Court would to ignore have legislature”); intent of the County Rhodes v. broadly stated “facility.” definition of Darlington, F.Supp. also accept that, would have to the notion (D.S.C.1992) (“CERCLA is paradigm not a case, the context of this there is no meaning- clarity or precision. It has been criticized ful difference between a dispos- release and a frequently inartful drafting ‘for and numer- al, or a hazardous substance and a hazardous ambiguities ous attributable to precipi- waste, though Congress even separate chose tous passage.’”) (quoting Artesian Water differing definitions for those terms. Co. v. New County, Castle 851 F.2d We cannot such a embrace tortured construc- (3d Cir.1988)); In re River Acushnet & New tion of the statute legislative without clear Harbor, F.Supp. 681 n. 6 Bedford history indicating that Congress intended to (D.Mass.1989) (complaining “difficulty restrict CERCLA to hazardous waste sites. being compassless left trackless CERCLA”); wastes of United States v. Legislative History Wade, F.Supp. (E.D.Pa.1983) The defendants leg contend that the (noting that legislative history of CERC- history islative of CERCLA demonstrates LA “unusually by self-serving riddled that the only legislative aim of the statute is statements”). contradictory We too have the clean up of waste Uniroy sites. sparse bemoaned the and often contradicto- al vigorously refutes that assertion. It in ry legislative history that to the led enact- although sists that begin found its Co., ment of CERCLA. See Amoco Oil nings in problems associated with toxic F.2d at 667 (stating that CERCLA has “ac- sites, emerged statute from the quired a notoriety vaguely- well-deserved legislative process as a broad remedial mea provisions drafted indefinite, and an if not designed sure to address releases of hazard contradictory, legislative history,” quoting ous generally. substances Uniroyal’s conten Mottolo, United 898, v. F.Supp. States 605 rings tion true. (D.N.H.1985)). In the 1970s the posed late by threat toxic Here, however, legislative the history of waste sites brought was to the forefront of remarkably CERCLA is respect clear with to public by well-publicized awareness the di- the legislative purposes core pas- the behind sasters at Love Valley Canal and the sage of the statute. In final version 96-848, S.Rep. Drums. (1980); at 96 compromise awas among three Cong.Reo. (1980). S7695 Congress respond- competing bills then under by consideration by ed in CERCLA, passing compro- Congress: Representatives House Bill Senate, Ran- addressing the Bill In Senator (“H.R. 85”), Representatives House of (“S. with H.R. 7020 dolph compared the new bill (“H.R. 7020”), Bill 1480 and Senate explained that H.R. 7020 H.R. 85. He and 1480”). 1; Grad, supra, at ENVIRONMEN- it ad- too narrow because Legisla- was considered Superfund: A Institute, Law TAL while only sites hazardous waste dressed (Helen History & C. Needham xiii tive 85, haz- spills on and H.R. its focus oil (hereinafter 1982) eds., “Su- Henefee Mark waters, navigable was on ardous substances the Oil Pol- was entitled H.R. 85 perfund”). Randolph ex- Senator also insufficient. Act, and Compensation Liability and lution plained: Represen- the House of into was introduced something that Senator say But let me Grad, 15,1979. supra, at January on tatives It is strongly I feel about. and Stafford targeted H.R. 85 suggests, its name 3. As provided in our response scope the comprehensive establishing a pollution oil H.R. 7020 amendment. We maintain compensation for oil- system of and only hazard- with abandoned which deals 3-4. clean-up costs. Id. at damage and spill narrow. We believe sites is too ous waste by Congressman 7020 was introduced hazardous coverage spills H.R. oil and 2, water, Entitled Id. at 4. April navigable into as embod- Florio on substances Act, enough. The the is also in H.R. 85 not Hazardous Waste Containment ied the scope bigger singular than the problem waste regulate inactive bill was intended to prob- those bills. The presented in each of monitoring reporting, by establishing sites and encompasses sites both waste bill, lem by its Id. This clean-up schemes. and into the envi- spills leaks of chemicals and sites, terms, hazardous waste applied to we must ad- what ronment —and all hazardous purport not to address did and neglect our duties We would dress here. Id. at 5. releases. problem. The only half a to deal with bill, 1480, was intro- final the third and S. from its greatly pared compromise, while 11, July on Senate duced version, does at least must and original Stafford, Chafee, Muskie, Ran- Senators problem scope of the the address bill, This Monyihan. Id. at 6. dolph, and faces.... Nation Emergency Re- Environmental entitled 5¡; ;f; # Act, most the broadest sponse bywas far liability for fed- exemptions from While the competing three measures. ambitious provided to releases erally permitted 7020, H.R. S. Id. at 6-7. contrast legal clarity in their parties give regulated chemicals “all releases of hazardous covered exemp- these responsibilities, duties and environment, merely spills or into gaps operate to create are not to tions from discharges abandoned public necessary protect actions (com- (1979) CongRec. S9173 sites.” 125 environment. Culver, co-sponsor of S. of Senator ments cause—which their Accidents —whatever 1480). expected to in, reasonably be or can result pollutants releases of hazardous result in passed the House and H.R. 7020 H.R. 85 require- exempt not be would However, reported were Senate. Thus of this bill. and liabilities ments apparent none 1980 was by the fall of it invoke fires, the like ruptures, wrecks and passed. Super the three bills would liability provisions of the response Thus, fund, supra, at November xviii. bill. coming to with the 96th Cong.Rec. S14964-65 close, Ran Stafford Senators imminent amendment, passed the Senate known dolph On November introduced an re- Stafford-Randolph bill and striking substitute Stafford-Randolph Compromise, House for back inserting measure ported the H.R. 7020 and provisions all De- concurrence, up on it was where taken mea the eviscerated compromise into debate, Congress- In the House cember 3.12 supra, at xviii. Superfund, sure. appar- passing H.R. and then substituting H.R. S. into legislative act Florio, eo-sponsor man original process Congress of the lative expanded the statute 7020, explained beyond version of H.R. how the original underpinnings so as to original. bill differed from the amended He address releases of hazardous substances stated: generally, just disposals at toxic waste way get immediately

In this we can sites. cleaning up

with the business of the thou- sands of hazardous waste sites which dot 3. Case Law country this and also insure that a mecha- The defendants contend that this Court place respond spills nism is in to acknowledged applies has that CERCLA dangerous substances.... only to abandoned inactive waste sites. In The Senate amendments to H.R. 7020 add support of argument rely the defendants response authority for hazardous sub- primarily Dayton Indepen on our decision stances which are not hazardous wastes. dent School District v. U.S. Mineral Prod Cong.ReC. H11787 Additional Co., (5th Cir.1990). ucts 906 F.2d 1059 Their by Representative comments made Dannem- misplaced. reliance is bill, eyer, opponent also reflect that Dayton In presented this Court Congress was intended H.R. 7020 to all address the narrow issue of spills pro- whether CERCLA of hazardous substances: remedy vided a in asbestos-removal cases. Admittedly, the supposed billion is $1.6 Dayton, See (“Appellants 906 F.2d at 1064 go for spills chemical as well as hazardous urge that the denying district court’s orders up, waste clean but since the version we their motions to dismiss should be reversed are about to vote on is broader than the pro- vacated because CERCLA does not House-passed bill, may version of the it right vide a of action to recover the costs of well take the whole billion and then $1.6 removal of asbestos containing just materials up some to clean the hazardous waste from the buildings.”). structure of In ad- sites. dressing question suggested, we pass- passed Id. The House the substituted form ing and any legislative without citation to H.R. day, 7020 later that very after limited history, that applies only to haz- debate, suspension and under a of the rules ardous waste sites. Surely Id. at 1066. Grad, for no allowed amendments. See reasonably dicta upon cannot be relied as a (“It supra, at 1 was passed, considered and holding very definitive on the significant is- very debate, after suspension limited under a sue of liability whether CERCLA extends rules, in a situation which allowed for beyond waste sites. no amendments. complicated Faced with a basis, bill on a take it-or-leave it the House The defendants also assert that we have it, took groaning way.”). all the President acknowledged a waste-site limitation on other signed Carter the bill into law on December Servs., Inc., occasions. In re Bell Petroleum 11, 1980. Id. at 35. (5th Cir.1993) (“[CERCLA’s] 3 F.3d Doubtless CERCLA found its purpose start in the is to prompt clean-up facilitate the publicity and concern that sites”); surrounded toxic Co., hazardous waste Amoco Oil waste sites. That through- theme resonated (“Congress F.2d at 667 enacted legislative process out the response well-publicized became the prob toxic waste moving lems”). force behind the creation of the Su- Even cursory the most review of perfund. Nevertheless, nothing in legis- those eases belies the argument. defendants’ lative record indicates that today, intend- Until squarely Court has never ed to restrict CERCLA to purpose. that sole addressed whether under CERCLA To contrary, legislative materials on is limited to Tangle sites. passage show, of the statute with reason- Charles-Thomas, wood East Homeowners v. clarity, Inc., able that over the legis- Cir.1988), course 849 F.2d 1568 we were ently occurred because S. 1480 contained tax originate Constitution in the House. and, bill, provisions required by as a revenue was

249 Compli- in Report A Remedies: question, but de a related with presented 301(e) Comprehen- of the East anee with Section Tanglewood it. See to address clined (“We Compensation, Response, Homeowners, Environmental at 1574 sive 849 F.2d by “Superfund peradventure Liability deter Act of 1980 the beyond and persuaded 301(e) Group,” reprinted and activi specific Study businesses Section mination pale beyond is on and Pub- ties covered CERCLA Committee Environment Senate motion”). 12(b)(6) pt. Works, Print No. 97-12 of a lic Committee (1982) (footnotes Cong., 97th 2d Sess. true, that a allege, as the defendants It is omitted). controlling sig- do not attach have outside of this Circuit of courts handful quotation. nificance to conception that under the apparently labored disposal only to waste applies far from as an initial matter it is clear CERCLA As See, Village, Inc. v. Gotti e.g., introductory quota- Vernon significance sites. to what (D.Conn.1990); 1142, 1150-51 er, F.Supp. study group report has with in a 1986 tion Chattanooga v. West Power Bd. legislative Electric intent regard to the actual of F.Supp. Corp., 716 inghouse Elec. in 1980. passage of CERCLA attended Inc., S, (E.D.Tenn.1988); v. AC & Knox assuming that importantly, even More see, (S.D.Ind.1988). But F.Supp. leg- considered report may appropriately be v. Unit Methodist Church e.g., First United quotation not history, that brief does islative Co., Gypsum ed States any certainty that is CERCLA establish Co., Cir.1989); Elec. New York v. General waste sites. to abandoned or inactive limited (N.D.N.Y.1984). But those F.Supp. 291 Indeed, only more lines one need read few persuasive. binding nor neither cases are following state- report to reach down ment: warranting case additional The such with hazardous substances CERCLA deals Bd. Chatta Power is Electric discussion of they the envi- point at which enter at the court broad In that case the district

nooga. spills during ronment is limited scope of CERCLA ly held that “the form of otherwise, or in the transportation or substances of hazardous to the release form Thus, wastes, during disposal. after and Bd. only.” Electric Power waste form of of report are in this the remedies discussed The dis F.Supp. at 1080. Chattanooga, injury, environ- personal legal remedies for large part that conclusion court based trict property damage mental and reduction as the Congress, known report aon spills hazard- 301(e) resulting by a com value compiled in 1986 Study, from hazardous and substances attorneys.13 quoted The ous mittee of twelve provides clean- wastes for which CERCLA in its intro report is contained portion of the activities. up and remedial duction, provides: may substances 301(e) when hazardous Instances Study may anything, If Id. i.e., waste in other than be released support conclusion form — tend regulated un- pesticides application of that covers re- statute a broad remedial is Insecticide, Fungicide and the Federal der generally. hazardous substances leases of (FIFRA) expressly Act Rodenticide —are Interpretation EPA’s provisions exempted from the enforcement [CERCLA], Thus, emphasis of this issue, by the raised A final emphasis of to the CERC- report, similar Pro the Environmental is whether parties, conse- LA, remedying the adverse (“EPA”) interpreted Agency has tection improper disposal, improper quences of just to more than applying improperly spills, transportation, concern It a relevant disposal sites. or closed sites. maintained EPA’s to the must defer a court because absent construction of CERCLA reasonable Hazardous Damages Injuries to the legislative purpose clearly expressed Legal Analysis Improvement Wastes — re- caused environment man and the report purpose was "to determine 13. The environ- into the substances lease of hazardous existing and statu- adequacy common law the tory 9651(e)(1). U.S.C. ment.” 42 legal harm providing redress for remedies Chevron, 842-45, court, contrary. Uniroyal at See U.S. did the district that success- agency charged 2778. As the fully S.Ct. that established the defendants are re- administration, 9607(a)(1) interpretation the EPA’s sponsible persons § under of long must be followed so it CERCLA as CERCLA. permissible “is based on a construction of the statute,” id. at 104 S.Ct. Exception C. The Consumer Product compelling “there are that it [no] indications The second issue for decision is whether FCC, wrong.” Red Lion Broad. v.Co. Uniroyal successfully proved the existence of 367, 381, U.S. 89 S.Ct. 23 L.Ed.2d 371 facility, prima a CERCLA the second facie (1969). element. The district court found that Uni- Here, appears it that the EPA has in fact royal satisfy failed requirement had that applying as construed CERCLA outside the rapture because the of the tanker track and disposal context of waste sites. In 1985 the resulting release fell within the consumer EPA issued an official adding rule a residen- product exception, which the district court duplex Pennsylvania tial to its National applicable found based this Court’s deci- Priorities List for remedial action.14 40 Dayton. sion in appeal Uniroyal On asserts (1985). pt. proposed C.F.R. The rale Dayton that is distinguishable pres- from the elicited several contending comments case, owner-operator ent which is founded on the addition would be inconsistent with the 9607(a)(1), liability § Dayton under because policy expending EPA’s funds on hazard- is an asbestos removal ease based on arran- disagreed, ous waste sites. The EPA declar- 9607(a)(3). ger-liability § Uniroyal under ing that the “EPA believes that neither argues further plain that under a reading of nor Ranking Sys- CERCLA the Hazardous exception impossible it is to conclude that response tem limits to hazardous waste....” a tanker track loaded with industrial chemi- Fed.Reg. 37631-32 The qualifies cals as consumer in con- EPA further observed that “CERCLA’s au- sumer use. turn Uniroyal’s con- first

thority very broad and can extend to tention that Dayton the district court read [household] residences.”15 Id. at 37632. broadly. too

5. Conclusion Holding Dayton Our 9607(a)(1) express language The im- poses liability operator on the owner or Dayton, of a In plaintiffs brought un suit CERCLA without requiring dispos- against der CERCLA several manufacturers al. The defendants legisla- suppliers contend that the seeking asbestos to recover tive intent passage behind the of CERCLA the removing cost of asbestos-containing requires depart plain us to meaning building buildings. materials from various statute, and infer a require- Dayton, 906 F.2d at 1061-63. In contrast to theory ment on the applies present case, which is founded on owner- Yet, to hazardous waste sites. nothing operator 9607(a)(1), scheme, statutory legislative 9607(a)(3) plaintiffs Dayton histo- sued under statute, ry CERCLA, the implementing regula- recovery which allows against tions, policies, or the EPA’s supports such “arranged those who for or treat reading fact, crabbed statute. ment ... of hazardous substances ... at demonstrate, those several sources facility....” 9607(a)(3); without U.S.C. Day exception, through ton, plaintiffs 1064. The claimed sought to address releases of hazardous sub- “arranged defendants had for the generally. conclude, stances We therefore disposal” hazardous substances manu- building’s case, 14. A chemist had used the distinguished basement 15. The EPA which in- sources, twenty years to make volved mosphere radium and the radioactive contamination of ambient at- general public, threatened the entire structure contained hazardous levels of from asbestos cases which are not treated EPA as radiation. coming within the ambit of CERCLA liability. transactions, asbestos-containing disposals tween and commercial selling facturing and we stated: building materials. prod- provision exempting resulting appeal we were asked to In the obviously protect ucts was meant to from properly- court whether district decide liability production engage those who in motions to dismiss for the defendants’ denied purpose, opposed activities with a useful as 9607(a)(3) of

failure to state a claim under engaged disposal to those in the of hazard- rested on the That determination CERCLA. Congress substances. It is ous clear provided narrow issue of whether CERCLA target legiti- did not intend CERCLA to private right of action to recover the costs “a mate manufacturers sellers of useful asbestos-containing of materials of removal context, Rather, taken in products. Dayton, buildings.” from the structures Congress’ provision reflects desire to hold question answered the 906 F.2d at 1064. We dispose attempt those who would liable the district negative in the and reversed of hazardous wastes or substances under upon language court. “Based in deceptive guises escape various order to statute, legislative history, and the rele- disposal. for their law, Congress did not vant case we hold legislative history [the reinforces de- contemplate recovery this statute of under argument intend- fendants’] to effect asbestos removal the costs incurred recovery only provide ed to for releases or buildings.” Id. at 1066. releases from inactive and threatened largely on the holding That was based sites, abandoned waste not releases from disposal requirement contained in products in useful consumer the structure 9607(a)(3). buildings. The sale of asbestos-contain- products consumption ing for useful dumping plaintiffs] undertake to turn [The “arranging disposal” of a hazardous disposal building into construction. 107(a) “facility,” substance at a Section reject [TJhere that contention.... CERCLA, designed that the statute is interpretation of possible no reasonable combat. “disposal” encompass the term that could asbestos-containing

the commercial sale of added). Id. at 1065-66 (emphasis The dis- building products by the defendant useful JJniroyal interpreted that court here in trict suppliers. The sale of manufacturers establishing bright-line a rule language as purpose for a other a hazardous substance production parties engaged if disposal expose does not defendant than its purpose, as with a useful distin- activities liability.... The record is to CERCLA disposal, then the con- guished from waste any substantive evidence that devoid of exception operates to bar sumer merely characterized defendants] [the liability. In court’s the district “sales” in order to cloak them activities as view, Dayton requires a stream of commerce Instead, disposal it is clear that activities. cases, ones analysis in all CERCLA even manufactured the asbes- defendants] [the 9607(a)(1). There are several based on tos-containing building materials for the reading of problems with the district court’s primary purpose creating a new useful Dayton. product for the construc- and marketable Dayton single, narrow issue: we faced industry. actions [The defendants’] tion whether CERC- we were asked to determine “disposal” therefore cannot be considered remedy in asbestos removal LA afforded meaning of within the CERCLA. holding that it did not was based cases. Our However, the commer- squarely on the conclusion that Id. at 1065. having determined possibly asbestos could not had not been sat- cial use of required that this element sub- isfied, of a hazardous proceeded express viewed as we then doubt stance, express requirement plaintiffs had satisfied the to whether the 9607(a)(3). subsequently ex- Although our light possible facility requirement facility require- pressed concerns about the product excep- application of the consumer ment, product exception, and the consumer Focusing still on the distinction be- tion. holding, they throughout opinion Dayton, to our were our where we added confidence necessary to it. Seminole continually distinguish no means See between those who Florida, 44, 67, activities, 517 U.S. 116 S.Ct. production Tribe v. engage useful (1996) (observing 134 L.Ed.2d 252 engage those who of waste. by holding of a case and all court is bound Dayton, Expected- See 906 F.2d at 1065-66. portions opinion necessary to that ly, that focus also colored our discussion of States, result); Kastigar v. United U.S. product exception. the consumer 454-55, 92 S.Ct. L.Ed.2d concerns, however, Those same have no (1972) opinion (finding language that broad place present appeal. This action is an unnecessary to court’s decision was owner-operator brought claim binding authority); be considered could not 9607(a)(1). § imposes liability It without re- Inc., Cajun Coop., In re Elec. Power gard disposal to a whether has occurred. (5th Cir.1997) (describing F.3d 248 dicta as: Dayton’s Consequently, focus on the “i.e., it could have been deleted without seri question, and the related distinction between ously impairing analytical foundations of production disposals, useful activities and is holding [and], being peripheral, may — germane question liability not of in not have received the consid full careful fact, product this case. In if the useful ver- (quoting eration the court that uttered it.” of Dayton sus waste distinction in were made Corp., v. American Home Prod. Sarnoff action, applicable present to the it would (7th Cir.1986) 1075, 1084 (emphasis F.2d add necessarily mean that CERCLA ed))). respect language Day In that our in 9607(a)(1) only § in could arise those eases regarding excep ton the consumer non-useful, products. involved tion is dicta. That, however, impermissible would have the Dayton Our comments in on the consumer adding disposal requirement effect of a product exception, expressed which we with- 9607(a)(1) § that does not otherwise exist. any specific legislative history, out citation to reasonably cannot be viewed as a definitive Dayton in language conclude our meaning exception statement on the of that regarding product exception the consumer is 9607(a)(1). true, § as it relates to It is of limited to the facts of that It case. does not course, that taken out of context our observa- application control our prod- of the consumer tions if could be made to seem as a new rule exception present uct action.16 As being regard is announced to CERCLA such, we next must determine whether the liability generally; a rule based on a useful- trucking tanker track or terminal constitute inquiry, ness or some form of stream of products “consumer in consumer use.” That analysis. only commerce But one need read requires meaning us to determine the Dayton from start finish to see that our product.” term “consumer product excep- comments on the consumer go tion were intended so far. 2. Ambiguity One Latent language Dayton Our in must be confined begin We cannot inquiry our into in Day- to the context which it was written. meaning product exception of the consumer arranger-liability brought ton is an case un- until grammatical ambigui we first resolve a 9607(a)(3). Dayton, der 906 F.2d at 1064. 9601(9). ty within point hidden As a In arranger-liability a cases is an 9601(9) reference, we restate as it defines express requirement imposition for the facility: 9607(a)(3); liability. (A) Thus, Dayton, “facility” any building, F.2d at 1064. term means those structure, necessary installation, cases it type equipment, to focus on pipe or activity permitted pipeline (including any pipe hazardous substances a into sewer or works), well, to enter the environment. publicly That focus is seen pit, owned treatment facts, limiting Dayton recovery Dayton, to its we no removal asbestos cases. See (“We suggest holding means intend to that our 906 F.2d at 1061 find that did not holds, Dayton wrong. Dayton correctly in our intend CERCLA to cover asbestos removal cost view, actions.”). provide right recovery that CERCLA does not a landfill, ditch, Conversely, interpre- under the alternative lagoon, impoundment, pond, vehicle, question tation the critical is whether there container, rolling storage motor (B) that “includes” a consumer stock, aircraft, exists any site or area or or product in consumer use. Since word substance has been de- where a hazardous containment under this inter- include denotes stored, of, disposed placed,' or posited, question in pretation, the our case would be located; but does not otherwise come to be trucking truck whether the tanker termi- product in consumer any consumer include nal “contain” consumer consum- any vessel. use Using approach use. the alternative our er reveals a reading provision A of that close focus is on whether the mixture is a VT/I-5 phrase significant question as to whether product in consumer consumer use. any consumer “but does not include knowledge, only To our the Seventh Cir use or vessel” modifies courts have cuit and handful district “facility,” it or whether overall definition recognized ambiguity. this latent See Am preceding language in sub- modifies Corp., 2 Corp. cast Indus. v. Detrex (A) (B). and, or, parts (7th Cir.1993) (recognizing ambiguity phrase modifying If is read as the adopting approach); the and the literal National facility, excep- Passenger Corp. City then the R.R. v. York overall definition Neiv (as Auth., in F.Supp. is limited to facilities defined tion Hous. (S.D.N.Y.1993) (A) (B)) (apparently

subparts recognizing which are themselves the If, ambiguity adopting ap products in consumer use. the alternative consumer hand, modify- proach); Village, F.Supp. at 1151 phrase the other the is read as Vernon (same); language, Chattanooga, Power Bd. ing just preceding subpart the then Electric (as (same). F.Supp. at 1080 exception is limited to facilities de- the (A) (B)) subparts in which contain fined case, In the Amcast the Seventh Circuit’s products in consumer use. Notice consumer defendant, manufacturer, shipped a chemical interpretation this the that under second plaintiff a chemical solvent to the with its “include,” phrase which “but word is trucks, own as well as those of a common any product in does not include consumer in After the solvent was discovered carrier. vessel,” any directly modi- consumer use adjacent pharmaceuti- groundwater the of an (A) (B), objects subparts in fies the listed facility, plaintiff the defendant to cal the sued meaning that and therefore takes on a de- response recover its costs based on evidence facts of storage or containment. The ultimately prod- became the consumer anywhere in use is not defined CERCLA. exception uct here. A issue committee Moreover, Court, appear it does not that this history print summarizing legislative of nor of court United States Court provides: the statute Appeals, opinion has authored a definitive on “facility” broadly S. 1480 defines the term excep- meaning product of the consumer things “any equipment” such as include Seventh, Though Eighth, tion. container,” “any storage which could question Ninth Circuits have addressed the easily products. include consumer Such cases, previous opinions dispose those interpretation of this term would lead to fashion, summary leaving very the issue in us liability coverage excessive notification and Amcast, 2 few bread crumbs to follow. See explic- Act. This amendment would explana- (concluding F.3d at 750-51 without itly clarify “facility” that the term does not that a tanker tion truck is not a consumer products pur- include consumer for the use); product in consumer Kane v. United poses of this Act. (8th Cir.1994) (con- States, 15 89-90 cluding, solely Dayton, based on our dicta The Environment and Natural Resouroes property prod- that residential is a consumer Policy Congressional Division of Re- use); Blech, uct in consumer 976 F.2d at 527 Library Congress search Service (concluding explanation n. 1 in a without the Committee on Environment containing footnote that structures asbestos Legis- Works, Cong., Sess, PubliC 97th 2d A building products material are not consumer History Comprehensive lative Envi- use). in consumer Response, Compensation, ronmental and Li- ability (Comm. Courts, (Superfund) Act of 182 The United District on the States 1983). Thus, hand, history Print legislative squarely other have de- addressed and exception phrase meaning product also indicates that the bated the of the consumer “any exception. separate presently consumer in consumer use” was Two views ex- qualify intended to the overall definition of ist. The first is that the consumer “facility,” subpart language. exception applies not the to all that are substances used, "every description capable being transpor- 17. CERCLA defines vessel as a means of as used, 9601(28). of watercraft or other artificial contrivance tation on water.” 42 U.S.C. See, useful, economically e.g., liability in involving useful. eases considered Knox, F.Supp. (stating at 756 that asbes- products, long non-waste so as there is no insulation, tos-containing busi- sold between product in consumer consumer use under the nesses, prod- be considered a consumer Thus, could phrase. ordinary meaning of that it uct); Chattanooga, Bd. Electric Power significantly scope does not restrict (holding that electrical trans- F.Supp. at 1080 liability. cooling formers that leaked dialectic fluid must, begin, by inquiring as we into (“PCBs”) biphenyl containing polychlorinated plain meaning of the term consumer use); products in consumer are consumer product. In Webster’s Interna- Third New Village, F.Supp. (holding at 1150 Vernon Dictionary, tional term “consumer drinking a con- that contaminated water is to, goods,” phrase closely that is if related product in on the sumer consumer use based with, synonymous products,” not “consumer apparent reasoning that water is a useful goods directly is defined as “economic product). exception acquires considera- satisfy human wants or desires.”18 Web- approach pre- ble breadth under this as it Dictionary ster’s Third New International every cludes CERCLA case (16th 1971). Dictionary Black’s Law ed. of- not involve a waste material. does description. fers a consistent It defines a approach purports rely The second product” “any tangible person- “consumer ordinary meaning of the term consumer property al which is distributed in commerce product, exception as cov and construes the normally personal, and which is used for personal, ering products used for house family, purposes.” or household Black’s Law See, hold, family consumption. e.g., Unit 1990). face, Dictionary 317 ed. itsOn I, F.Supp. ed States v. Santa Clara M/V therefore, the term consumer refers (D.S.C.1995) (holding that good to a that is used an individual for product exception applicable in case personal, family, purposes. or household shipping carrying where containers barrels of arsenic were lost from vessel trioxide significant We find it has seas); Energy heavy KN Inc. v. Rockwell very give chosen to the term similar defini- (D.Colo.1993) Corp., F.Supp. Int’l tions in other federal statutes. In the Con- (holding pipelines that sealed with substance Act, 2051, Safety § sumer Product 15 U.S.C. facilities, containing commercial PCBs were instance, seq., et the term consumer use); products in not consumer consumer product is defined as follows: Reading City Philadelphia, Co. v. of (1) product” The term “consumer means (E.D.Pa.1993) 1218, F.Supp. (holding 1232-34 article, thereof, any component part or that in railcars leaked PCBs while used (i) produced or distributed for sale a prod commuter train service not consumer perma- for use in or consumer around use); Holdings, ucts in consumer Inc. v. CP residence, temporary nent or household or Assocs., Inc., Goldberg-Zoino F.Supp. & (ii) school, recreation, otherwise, in or or (D.N.H.1991) 432, (holding that commer use, personal consumption or en- for the asbestos-containing cial hotel built with ma joyment of a consumer in or around a product terials not consumer in consumer permanent temporary or household or res- use); Corp., R.R. see also National idence, school, recreation, in or other- F.Supp. (holding prod consumer .... wise exception applicable in uct case where Comporting § support pillars 15 U.S.C. 2052. definitions building and understructures Packaging Fair and Label asbestos-containing materi are found the were coated al). 1451, Act, imposition seq.,19 Mag-nuson-Moss the permits ing This view of 15 U.S.C. et (a) commodity”, except goods,” by comparison, 18. are de- The term "consumer "Producer "goods provided by that are specifically scribed in Webster's as factors this sub- otherwise production satisfy device, goods food, and that section, of other any drug, means or cos- only indirectly." wants Webster’s Third New (as by defined the Feder- metic those terms are 1971). Dictionary International ed. Food, Drug, Act U.S.C.A. [21 al and Cosmetic article, any product, seq.]), 301 et and other part: pertinent 19. That definition states in intended, “facility” pres- as it is the term ty-Fe Trade Com Warran deral Act, consumer ently defined would include Improvement U.S.C. mission Policy any Energy report and Conservation does not seq.,20 products, and et Act, seq.,21 et and a statute clarify not include way term does tampering, 18 drug criminalizing food will products. An amendment consumer Each definition shares 1365.22 U.S.C. clarify this matter. be offered family, or household personal, of element Cong.ReC. (1980) (emphasis add- S12917 use. ed). Amend- then offered Senator Cannon history of the consumer legislative by following accompanied ment However, plentiful. exception is not product statement: sup- history exist legislative that does my of amendments would exclude [O]ne interpretation of term ordinary an ports products consumer definition Cannon, who product. consumer Senator any “facility,” precluding unintended thus ultimately which sponsored the amendment requirements application of notification exception, ad- became the consumer provisions to consumers. September dressed the Senate sweep- Expressing concern CERCLA’s CongReo. S13364 impose liability on ing language would ordi- That same view of the consumer consumers, nary he stated: exception expressed years later in was five no for consumer 1480 contains exclusion S. SARA, history legislative the 1986 Therefore, suggest- it has been products. statute reauthoiized and amended would mean that an individual ed that this considering CERCLA. an amendment strict, subject joint, requiring inventory sub- hazardous any liability for a “release” from several facilities, operators stances owners one of the numerous that contains the Senate Committee on the Environment pages listed on 24 to hazai’dous substances Works the consumer Environment and and Public addressed 28 of the Senate Public product exception. report report. has In its the commit- Committee While staff Works a result been informed that such was not tee observed: commodity personal kind or use or class is cus- distributed commerce for individuals; tomarily produced or distributed for sale consumption by regard without through agencies retail sales or instrumentali- type in fact whether such article of such individuals, consumption by or use ties for personal distributed in commerce for use or personal purposes care individuals for individual, consumption by except that such performance ordinarily of services ren- ballasts, lamp gener- term includes fluorescent household, usually dered within the and which lamps, re- al service fluorescent incandescent expended in the course of such is consumed or faucets, showerheads, lamps, water flector consumption or use. closets, and urinals distributed in commerce 1459(a). § 15 U.S.C. consump- personal for or commercial use or tion. provides pertinent part: 20. That in definition 6291(1). § 42 U.S.C. (1) product” any The term "consumer means tangible personal property which is distributed provides pertinent part: 22.That in definition normally in commerce and which is for used (in- personal, family, purposes or household (1) (A) product” the term "consumer means— any cluding property such intended to be at- "food”, "device”, “cosmetic”, any "drug”, or any property tached to or installed in real respectively as those terms are defined in sec- regard without installed). to whether it is so attached or Food, Drug, tion 201 of the Federal and Cos- 321); article, (21 (B) any metic Act U.S.C. or 2301(1). 15 U.S.C. product, commodity customarily which is consumption by produced or distributed for provides pertinent part:

21. That definition in individuals, purposes or use individuals for (1) product” any The term "consumer means personal performance or in the of ser- (other automobile, care article than an as defined in ordinarily 2001(1) 15) vices hold, rendered within the house- type (A) section of Title of a — consumes, designed and which is to be consumed or operation designed in or is to consume, or, expended consumption in the course of such energy respect with to shower- faucets, urinals, heads, closets, use. water wa- ter; (B) which, extent, 1365(g). any significant 18 U.S.C. own, recognized This use of the mixture rule the defini- have that CERCLA is a tion of “hazardous substance” not does ex- broad remedial statute. OHM Remediation Servs., 1578; coverage tend the of this amendment to at F.3d First United Church, 867; products consumer Methodist finished such as those 882 F.2d at B.F. store, Murtha, might Goodrich v. be found in a retail where (2d Cir.1992); products present such do not a Dedham threat of Water Co. v. Cum Inc., Dairy, berland Farms facility. release from a This is consistent 889 F.2d (1st Cir.1989). “facility” with the definition of It has been contained said that 101(9) through CERCLA, Congress “sought existing section to deal every with conceivable area products. its where hazard reference to consumer ous substances come to be located.” Gener (1985). 99-11,11 S.Rep. No. Co., al F.Supp. Elec. at 296. Were we interpretation The EPA’s of the consumer accept argument defendants’ that the product exception plain accords with the product exception consumer excludes from meaning exception. proposing In liability any product waste, which is not a relating reporting requirements rule for exception effectively would remove an radionuclides, spoke EPA meaning to the entire class of environmental threats from product exception of the consumer Any CERCLA’s reach. explo accidental following manner: sion, spill, or release of a useful industrial products A number of consumer such as chemical would be excluded from the statute may watches and smoke detectors contain regardless posed public of the threat to the (and release) point at some radionuclides. environment. CERCLA would ef “facility” spe- CERCLA definition of fectively nothing become more than a waste cifically any product excludes consumer dump statute. To accord CERCLA’s liabili use; any thus release of ra- ty provisions all, any meaning phrase products dionuclides from such when in “consumer in consumer use” must subject consumer use are not to the noti- given ordinary meaning. requirement fications discussed in this plain Based on language proposed rule. exception, applicable legislative history, Fed.Reg. Although 8172 n. and the purpose broad remedial of CERC- complete explanation this statement is not LA, we conclude that “consumer position prod- of the EPA’s on the consumer consumer use” good normally means exception, suggest uct it does that the EPA personal, family, pur used for or household exception applying goods construes the poses, being which was used in that manner individual, family, used for or household con- subject when the release occurred. In accor sumption. definition, dance we find that nei provisions Other suggest ther the tanker trucking truck nor terminal products specifically useful not excluded from qualifies as a consumer in consumer necessarily under the statute are Therefore, exception use. because that does CERCLA, example, included. apply, and because the tanker truck and definition of release excludes “the normal trucking plainly qualify terminal as facilities application products.” of fertilizer 9601(9), we find that the district 9601(22). It exempts also “emissions from concluding Uniroyal court erred in had engine exhaust from a motor vehicle.” Id. not established this element. Hence, except when wanted from CERCLA a useful commercial IV. CONCLUSION product, byproduct produc- or the of a useful foregoing, Based on the we VACATE activity, through express tion it did so judgment granting of the district court sum- exclusion. defendants, mary judgment to the and RE- Finally, we cannot construe consumer entry MAND to the district court for products products to mean all useful with- judgment Uniroyal in favor of as to CERC- frustrating purposes out liability, proceedings basic of LA for and such further courts, including may CERCLA. Numerous damages required. our as to as be DeMOSS, MAGILL,1 SMITH Before Judges.

Circuit AND REHEARING PETITION FOR

ON REHEARING FOR

SUGGESTION

EN BANC 8, 1999

Jan.

DeMOSS, Judge: Circuit Rehearing Suggestion for

Construing the Defendants-Appellees Safeway Banc of

en Inc., Enterprises, and TMI Transportation, we

Inc., Rehearing, for Panel as a Petition petition is due to be

conclude follows. The last as

GRANTED-IN-PART introduction is revised sentence judgment and the district court’s “We vacate entry judgment this action for

remand Uniroyal,” to ‘We vacate the favor of read judgment and remand this court’s district proceedings consistent with

action for further Also, opinion.” the last sentence this is revised from “Based

opinion’s conclusion judgment foregoing, we on the VACATE judg- granting summary court of the district defendants, REMAND to ment to the entry judgment court for the district Uniroyal liability,

favor of as to CERCLA proceedings damages as to

and such further may required,” “Based on the to read

foregoing, judgment we VACATE summary granting judgment to district court defendants, REMAND to the district proceedings further consistent with

court for opinion.” than two modifi- Other those cations, opinion unchanged. our remains Bartá, Watson,

Mark Blair Delonia Anita Dallas, TX, Plaintiff-Appellee. for TX, Crooks, Worth, Timothy William Fort Defendant-Appellant. America, UNITED STATES Plaintiff-Appellee, v. AVILEZ-REYES,

Ricardo Defendant-Appellant. GARZA, Before REYNALDO G. JONES No. 97-11392. DeMOSS, Judges. Circuit Appeals, States United Court Fifth Circuit. DeMOSS, Judge: Circuit

Nov. (“Avilez-Reyes”) ap- Avilez-Reyes

Ricardo imprison- months peals his sentence of 180 ment, judge arguing that the district com- by failing to recuse mitted reversible error Circuit, designation. Judge Eighth sitting 1. Circuit notes carrier that the defendant and the both this case this distinction and underscore plaintiffs premises spilled the solvent on the analysis. how it affects our demonstrate filling storage tanks. during process appeal, Circuit had occa- On the Seventh Here, initially there are two sites products the consumer ex- sion to construe as defined qualify as CERCLA facilities ception applied to the defendant’s tank- as it subpart language. tanker truck The rejected claim that The court er trucks. (A) subpart as a motor vehi- qualifies under that con- exception applied to facilities trucking qualifies terminal cle. The products. consumer tained (B) subpart a site or area where a hazard- as literally, consumer If it is read ous substance has come to be located. Un- 9601(9), exempted by statute is the possible reading product §of the first der facility. product is a The there consumer question the critical is whether exists exemption as in is to read the a consumer alternative which is itself Thus, consum- ques- referring to facilities that contain in our ease the consumer use. ap- products.... [alternative] er This be whether the tanker truck and tion would terminal, violence to the certainly qualify proach does excessive trucking exception is for statutory language. The subpart language, consti- facilities under the in products facilities that are consumer products in use.” tute “consumer consumer use, so, products not for contained excepted consumer they If from the definition in facilities. facility. reading of literal In accordance with a literal agree with the Seventh Circuit’s 9601(9), inquiry in proper we that the exception. Syntactically, the find reading of the appeal is whether the tanker present product in consumer use” phrase “consumer “con- trucking terminal constitute truck and reasonably interpreted under the cannot be That products sumer in consumer use.” alternative, approach. non-literal This so appeal, takes us to the final issue this phrase merely exclude because the does exception. meaning consumer “any product in consumer use.” It consumer “any product in consumer excludes consumer Meaning The of the Consumer use and vessel.” Under the alternative Exception Product 9601(9) interpretation, § would thus have to establishing an exclusion be read as Uniroyal the district contends (sub- buildings, equipment, pipelines, aircraft wrongly court the tanker concluded (A)), (subpart part trucking or waste sites constitute con truck and terminal (B)), products the defi- It that contain a “vessel.” Given sumer consumer use. asserts vessel,17 impossible exception interpreted that is an con- nition of cannot doing this without violence struction. manner excessive plain meaning of the term “consumer history legislative The statute’s accord product.” Uniroyal urges give that we 9601(9). reading with a literal Before product exception consumer a definition one passage, its final 1480 did not contain an S. have; ordinarily expect would it to defini products in exclusion for consumer consumer good personal, tion that describes a used for remedy perceived deficiency use. To family, or household use. proposed Senator Cannon Amendment phrase consumer

Case Details

Case Name: Uniroyal Chemical Co. v. Deltech Corp.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Dec 3, 1998

Citation: 160 F.3d 238

Docket Number: 96-31226

Court Abbreviation: 5th Cir.