Filed: Sep. 12, 1994
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 1994 Decisions States Court of Appeals for the Third Circuit 9-12-1994 Tippins, Inc. v. USX Corp. Precedential or Non-Precedential: Docket 93-3587 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994 Recommended Citation "Tippins, Inc. v. USX Corp." (1994). 1994 Decisions. Paper 131. http://digitalcommons.law.villanova.edu/thirdcircuit_1994/131 This decision is brought to you for free and open access by the Opinions of the United S
Summary: Opinions of the United 1994 Decisions States Court of Appeals for the Third Circuit 9-12-1994 Tippins, Inc. v. USX Corp. Precedential or Non-Precedential: Docket 93-3587 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994 Recommended Citation "Tippins, Inc. v. USX Corp." (1994). 1994 Decisions. Paper 131. http://digitalcommons.law.villanova.edu/thirdcircuit_1994/131 This decision is brought to you for free and open access by the Opinions of the United St..
More
Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
9-12-1994
Tippins, Inc. v. USX Corp.
Precedential or Non-Precedential:
Docket 93-3587
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994
Recommended Citation
"Tippins, Inc. v. USX Corp." (1994). 1994 Decisions. Paper 131.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/131
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1994 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________________________________
NOS. 93-3587, 93-3599, 93-3609
______________________________________
TIPPINS INCORPORATED, a Pennsylvania corporation; and
INTERNATIONAL MILL CONSTRUCTION, INC.,
a Pennsylvania Corporation
v.
USX CORPORATION; a Pennsylvania corporation and
PETROCLEAN INC., a Pennsylvania corporation
USX CORPORATION,
Appellant in No. 93-3587
PETROCLEAN, INC.,
Appellant in No. 93-3599
TIPPINS INCORPORATED and
INTERNATIONAL MILL CONSTRUCTION,
INC.,
Appellants in No. 93-3609
___________________________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 92-cv-01799)
___________________________________________________
Argued: June 22, 1994
Before: BECKER and HUTCHINSON, Circuit Judges, and
JOYNER, District Judge.*
(Filed: September 12, 1994)
DAVID L. SMIGA, ESQUIRE (ARGUED)
USX Corporation
*. The Honorable J. Curtis Joyner, United States District
Judge for the Eastern District of Pennsylvania, sitting by
designation.
600 Grant Street, Room 1538
Pittsburgh, PA 15219-4776
Attorney for Appellant/Cross-
Appellee USX Corporation
CAROLYN M. BRANTHOOVER, ESQUIRE (ARGUED)
SCOTT E. WESTWOOD, ESQUIRE
Kirkpatrick & Lockhart
1500 Oliver Building
Pittsburgh, PA 15222
Attorneys for Appellees/Cross-
Appellants Tippins Incorporated
and
International Mill Construction,
Inc.
ROBERT S. ADAMS, ESQUIRE (ARGUED)
Wittlin, Goldston, Caputo & Pollock
213 Smithfield Street
200 Pitt Building
Pittsburgh, PA 15222-2224
Attorney for Appellees/Cross-
Appellants Petroclean, Inc.
_____________________________________
OPINION OF THE COURT
_____________________________________
BECKER, Circuit Judge.
These appeals from two orders of the district court in a
contribution action involving the allocation of response costs under
the Comprehensive Environmental Response, Compensation, and
Liability Act ("CERCLA"), 42 U.S.C.A. §§ 9601-75 (1983 & Supp.
1994), present an interesting question of first impression in the
courts of appeals concerning transporter liability under CERCLA §
107(a)(4), 42 U.S.C.A. § 9607(a)(4). The first order granted
summary judgment in favor of the plaintiffs/cross-appellants,
Tippins Inc. and International Mill Construction, Inc. ("IMC"),1 and
1
. IMC is a wholly-owned subsidiary of Tippins Inc. Refer-
ences to Tippins in this opinion include IMC.
held the defendants/appellants, USX Corporation and Petroclean Inc.,
liable for CERCLA response costs arising from the remedial action
instituted by the United States Environmental Protection Agency
("EPA") and the Indiana Department of Environmental Management at
the Four County Landfill ("Four County") in Rochester, Indiana. The
court found USX liable as an arranger and Petroclean liable as a
transporter. The second order allocated among Tippins, Petroclean,
and USX all past and future response costs.
Appellants raise a number of issues. We write solely on
Tippins' argument that a transporter is liable even if it does not
select the facility at which the waste was disposed, and on Petro-
clean's argument that it cannot be held liable as a transporter
unless the court finds that it made the ultimate decision to select
Four County as the disposal facility. We find no error in the
district court's treatment of any of the other issues (described
infra at pp. 6-8), and as they are straightforward they will be
affirmed without discussion.
We reject Tippins' argument that under section 107(a)(4) a
transporter is liable as a responsible party even if it does not
"select" the disposal "facility" (in contrast to a "site"). We also
reject Petroclean's assertion that it cannot be liable unless the
court finds that it made the ultimate selection of the facility as
the disposal location regardless of whether it contributed to the
selection of the facility ultimately utilized. We basically agree
with Tippins that § 107(a)(4) applies if the transporter's advice
was a substantial contributing factor in the decision to dispose of
the hazardous waste at a particular facility. As we interpret that
section, a transporter selects the disposal facility when it
actively and substantially participates in the decision-making
process which ultimately identifies a facility for disposal. Since
there is no dispute that Petroclean did so -- Petroclean had
considerable input into the selection process and, importantly,
Tippins relied upon Petroclean's expertise in hazardous waste
management when making its disposal decision -- Petroclean is liable
as a transporter. Accordingly, we will also affirm the grant of
summary judgment against Petroclean on transporter liability.
I. FACTS AND PROCEDURAL HISTORY
In September 1987, Tippins signed an agreement with Sydney
Steel Corporation of Nova Scotia to provide equipment for electric
arc furnace ("EAF") steelmaking. Included in this agreement was a
provision that required Tippins to furnish and install an EAF
baghouse.2 Tippins thereupon contacted a representative of U.S.
Realty Development, a division of USX, and inquired about the
availability of a baghouse. In October 1987, a purchase agreement
was executed whereby USX agreed to sell, and Tippins agreed to
purchase, a used EAF baghouse which was located at the USX Duquesne
Works for $300,000. Under the purchase agreement, Tippins was
responsible for the dismantling and load-out of the baghouse.
2
. EAF dust is a byproduct of the manufacture of steel using
electric furnaces. A baghouse, a large, fabricated structure,
vaccuums contaminated air inside to filter out the EAF dust. The
dust is collected inside a hopper or dumpster, and clean air is
exhausted from the structure. The EPA listed EAF dust as a hazard-
As a result of USX's manufacturing and processing of steel
at the Duquesne Works, EAF dust was present in and around the
baghouse. To effect cleanup of the EAF dust, Tippins solicited bids
from contractors to pick up and transport the dust for disposal.
Tippins eventually contracted with Petroclean, which is licensed to
haul hazardous waste and specializes in the transport and disposal
of hazardous substances, to transport the dust for disposal. The
transportation agreement provided that Petroclean would supply the
labor, equipment, and material for removal and transport of the EAF
dust as well as obtain a provisional EPA identification number for
the generation of the hazardous waste.
The CECOS International facility in Williamsburg, Ohio was
chosen after Petroclean gathered information on the site and
submitted a proposal to Tippins based on certain cost parameters.
Those cost parameters involved the use of a certain type of
container for the dust known as a bulk lift disposal bag. The
parties subsequently learned that the CECOS site would accept EAF
dust only if packaged in its own containers. Since those containers
were "prohibitively" expensive, Tippins and Petroclean agreed to
transport the dust to another disposal site. Petroclean, having
surveyed substitute disposal sites, identified two landfills that
would accept the dust, the Four County Landfill in Rochester,
Indiana and Wayne Disposal, Inc. in Detroit, Michigan. Petroclean
contacted each site, gathered financial information as to disposal
(..continued)
ous substance in 1980, designating it as K061. See 40 C.F.R. §
261.32.
costs, and offered Tippins both sites as possible disposal locations
from which Tippins could choose. Tippins subsequently picked Four
County, where Petroclean disposed of the EAF dust.3
Later, both the EPA and the Indiana Department of
Environmental Management requested the owner of Four County to
participate in a program to monitor and close the landfill. The EPA
thereafter notified Tippins that it was a potentially responsible
party for environmental contamination at Four County. Tippins then
made written demands upon Petroclean and USX, advising them of their
potential liability under CERCLA for remedial investigation and
response costs incurred by Tippins arising from the monitoring and
closing of the landfill. Petroclean and USX denied CERCLA liabili-
ty.
In August 1992, Tippins filed an action in the District
Court for the Western District of Pennsylvania against Petroclean
and USX pursuant to CERCLA §§ 107(a) and 113(f), 42 U.S.C.A. §§
9607(a), 9613(f), and the Declaratory Judgment Act, 28 U.S.C.A. §
2201 (1994), seeking indemnity and contribution for past response
costs and a declaratory judgment apportioning future response costs
arising from the remedial action at Four County. Tippins alleged
3
. Petroclean subcontracted with another transporter, Dart
Trucking Company, Inc., to transport at least a portion of the dust
to Four County. This contractual arrangement might have rendered
Petroclean liable as an arranger under § 107(a)(3). See, e.g., New
York v. SCA Servs., Inc., 844 F. Supp. 926, 928-29 (S.D.N.Y. 1994).
The issue of Petroclean's liability as an arranger under § 107(a)(3)
is not before us, however, because Tippins moved for summary judg-
ment under § 107(a)(4) and the district court found Petroclean
liable as a transporter.
that USX had arranged by contract for the disposal of the EAF dust
and was liable as an arranger under § 107(a)(3) of CERCLA. Tippins
also alleged that Petroclean was liable as a transporter under §
107(a)(4).
On cross-motions for summary judgment by Tippins and USX,
the district court granted Tippins' motion, but denied that of USX.
The court determined that USX was liable as an arranger under §
107(a)(3), rejecting USX's claim that the purchase agreement with
respect to the EAF dust was for the sale of a useful commodity in
contrast to a contract arranging for the disposal of a hazardous
substance. The court also declined to find that Tippins was
contractually bound to assume all potential CERCLA liability arising
from the disposal of the dust by virtue of an indemnification clause
in the purchase agreement. As for Petroclean, the court summarily
concluded that it was liable as a transporter under § 107(a)(4). In
a footnote, the court stated that, "[d]espite defendant Petroclean's
attempt to characterize itself as merely the transporter who did not
select the site . . ., it is a responsible party under CERCLA, as
one who caused or contributed to a release or threatened release of
hazardous waste." Mem. Op. at 11 n.5 (May 25, 1993) (quotations and
citations omitted). The district court subsequently entered an
order on October 19, 1993 allocating among the parties the past and
future response costs associated with the remedial action at Four
County, 50 percent to USX and 25 percent each to Tippins and
Petroclean.
Every party filed a timely notice of appeal raising the
same issues that were before the district court. The district court
exercised subject matter jurisdiction pursuant to 28 U.S.C.A. § 1331
(1993), as the cause of action arose under CERCLA. We have appel-
late jurisdiction pursuant to 28 U.S.C.A. § 1291 (1993). Our scope
of review of summary judgment rulings is plenary. Black v. Indiana
Area Sch. Dist., 985 F.2d 707, 709 (3d Cir. 1993). Summary judgment
should be granted under Rule 56 of the Federal Rules of Civil
Procedure only "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affida-
vits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter
of law." FED. R. CIV. P. 56(c); see Celotex Corp. v. Catrett,
477
U.S. 317,
106 S. Ct. 2548,
91 L. Ed. 2d 265 (1986). As noted above,
we think the other grounds for appeal lack merit, but will discuss
the scope of transporter liability under § 107(a)(4).4
4
. We do note that our rejection of the indemnity claim is
informed by our decision in Beazer East, Inc. v. Mead Corp., No. 93-
3372, 1994 WL ________ (3d Cir. Aug. ??, 1994), filed this day. In
Beazer East, we hold that the question whether an indemnification
clause shifts CERCLA liability is one of state law. See id., 1994
WL _____, at *__. Under any conflicts of law analysis the governing
law here is that of Pennsylvania, as the question is one of the
interpretation of a purchase agreement for real property located in
Pennsylvania, the purchase agreement was entered into in Pennsylva-
nia, and two of the three parties are residents of Pennsylvania.
See, e.g., REST.2D CONFLICT OF LAWS §§ 222, 224(2) (1971).
Under Pennsylvania law, while a party may contract for
indemnification for its own torts, "the language in the indemnity
provision must be clear and unequivocal, and the burden of proof
falls on the party seeking such relief; the burden is even greater
where such party drafted the agreement." DiPietro v. City of
Philadelphia, 496 A.2d 407, 410 (Pa. Super. 1985). Here neither the
hold harmless clause contained in USX's sales agreement, nor the
other provisions spread through various documents that USX points
II. DISCUSSION
Congress enacted CERCLA to facilitate the cleanup of
potentially dangerous hazardous waste sites, with a view to the
preservation of the environment and human health. CERCLA, a strict
liability statute, has its "bite" in holding responsible parties
financially accountable for the costs associated with a remedial or
removal action at hazardous waste facilities. See United States v.
Alcan Aluminum Corp., 964 F.2d 252, 258-59 (3d Cir. 1992). Section
107(a)(4)(B) provides that a responsible party, as defined in
subsections 107(a)(1)-(4), shall be liable for "any other necessary
costs of response incurred by any other person consistent with the
national contingency plan." Section 113(f)(1), as amended by the
Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Pub.
L. No. 99-499, 100 Stat. 1613 (Oct. 17, 1986), provides for an
express right of contribution "from any other person who is liable
or potentially liable" under § 107(a). To succeed under either
section, a plaintiff must establish that the defendant is a
responsible party. See Lansford-Coaldale Water Auth. v. Tonolli
Corp., 4 F.3d 1209, 1219 (3d Cir. 1993). One basis for establishing
a party's responsibility is transporter liability.
(..continued)
to, clearly and unequivocably encompass liability for USX's pre-
transfer torts, under CERCLA or otherwise.
Petroclean contends that the district court erred when it
concluded that Petroclean was liable as a transporter under §
107(a)(4),5 which provides that
§§any person who accepts or accepted any hazardous
substances for transport to disposal or treatment
facilities, incineration vessels or sites selected by such
person, from which there is a release, or a threatened
release which causes the incurrence of response costs, of
a hazardous substance, shall be liable . . . .
Specifically, Petroclean asserts that it cannot be liable unless the
court finds that Petroclean made the ultimate selection of Four
County as the disposal location. Petroclean further submits that
the record is "vague at best" regarding its role in site selection,
and thus that a genuine issue of material fact exists as to this
issue.
In response, Tippins argues that § 107(a)(4) does not
mandate that a transporter make the ultimate decision to select the
disposal facility. Tippins claims that the phrase "selected by such
person" found in § 107(a)(4) only modifies the term "sites," but not
"facilities." Since Four County is a "facility,"6 under Tippins'
construction, Petroclean need not have participated in the selection
of Four County as the disposal location at all for CERCLA liability
to attach; its act of transportation would, standing alone,
5
. CERCLA states that "[t]he terms `transport' or `transpor-
tation' means the movement of a hazardous substance by any mode
. . . ." 42 U.S.C.A. § 9601(26).
6
. The parties agree that Four County is a "facility" as that
term is defined in § 101(9).
suffice.7 Tippins alternatively contends that, even if liability
attaches only to transporters who "select" a facility, the record
demonstrates that, as a matter of fact, Petroclean did select the
Four County facility.
7
. This is apparently a controversy of first impression in
the courts of appeals. The Ninth Circuit has declared that a
plaintiff states a claim under § 107(a) for recovery of response
costs against a transporter where the complaint contains allegations
that the property subject to the cleanup is a "facility" and that
the defendant-transporter "`selected' the property for disposal."
Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1153 (1989).
Since the parties did not dispute that issue, however, the court
provided no reasoning for its construction of § 107(a)(4).
A. Application of the Phrase "Selected by Such Person"
It is axiomatic that the starting point for interpreting a
statute is the language of the statute itself. See Consumer Prod.
Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108,
100 S. Ct.
2051, 2056,
64 L. Ed. 2d 766 (1980). Thus, to determine whether the
phrase "selected by such person" just modifies "sites," or also
applies to "facilities," we turn to the language of § 107(a)(4),
quoted supra at Error! Bookmark not defined.. Under any parsing of
the statute, a person who transports a hazardous substance to a
"site" is liable under § 107(a)(4) only if it selected that disposal
location. But there abides within an ambiguity as to whether
selection is a necessary prerequisite to transporter liability where
the hazardous waste is deposited at a "facility." Namely, in view
of the absence of a comma after "sites," the phrase "selected by
such person" can be interpreted to modify only "sites," as opposed
to also modifying "facilities" and "incineration vessels." The fact
that two divergent interpretations of § 107(a)(4) are plausible
underscores the oft repeated notion that "CERCLA is not a paradigm
of clarity or precision," Artesian Water Co. v. Government of New
Castle County,
851 F.2d 643, 648 (3d Cir. 1988), but "is riddled
with inconsistencies and redundancies," Alcan
Aluminum, 964 F.2d at
258 n.5 (citation omitted).
A general canon of statutory construction holds that,
absent a clear intention to the contrary, a modifier's reference is
to the closest noun. See NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION
§ 47.33 (4th ed. 1985) (stating that "referential and qualifying
words and phrases, where no contrary intention appears, refer solely
to the last antecedent"). Because of the inartful crafting of
CERCLA in general, however, reliance solely upon general canons of
statutory construction must be more tempered than usual; such canons
are more appropriately applied to divine intent from statutes
carefully worded and assiduously compiled than from the imprecise
statutory language such as that found in § 107(a)(4). We believe
that, notwithstanding the canon, the phrase "selected by such
person" can, as the statute is grammatically constructed, also be
construed to refer to "facilities" and "incineration vessels." A
number of district courts have adopted such a construction, along
with several commentators. See United States v. Petersen Sand &
Gravel, Inc., 806 F. Supp. 1346, 1356 (N.D. Ill. 1992); Alcatel
Info. Sys. v. Arizona,
778 F. Supp. 1092, 1095-96 (D. Ariz. 1991);
United States v. Western Processing Co., Inc.,
756 F. Supp. 1416,
1419-20 (W.D. Wash. 1991); United States v. Hardage,
750 F. Supp.
1444, 1458 (W.D. Okl. 1990); United States v. South Carolina Recy-
cling & Disposal, Inc., 653 F. Supp. 984, 1005 (D.S.C. 1984),
judgment modified on other grounds sub nom. United States v. Monsan-
to Co.,
858 F.2d 160 (4th Cir. 1988), cert. denied,
490 U.S. 1106,
109 S. Ct. 3156,
104 L. Ed. 2d 1019 (1989); SUSAN M. COOKE, THE LAW OF
HAZARDOUS WASTE § 14.01[4][e], at 14-139 (1987); 4 WILLIAM H. RODGERS,
JR., ENVIRONMENTAL LAW: HAZARDOUS WASTES AND SUBSTANCES § 8.12[D], at 680-82
(1992); DONALD W. STEVER, LAW OF CHEMICAL REGULATION & HAZARDOUS WASTE §
607[2][f][iii], at 6-164 (1989); cf. Joslyn Mfg. Co. v. T.L. James &
Co., 836 F. Supp. 1264, 1272-73 (W.D. La. 1993) (informing
construction of an analogous provision under the Louisiana Environ-
mental Quality Act by reference to Western Processing).
The distinction Tippins advances would be illusory at best
and nonsensical at worst, as CERCLA broadly defines "facility" to
include any "site" containing a hazardous substance. See 42
U.S.C.A. § 9601(9).8 Thus, Tippins' reading would lead to a curious
result. On the one hand, a transporter would be liable if it
transported the waste to a virgin site (one containing no hazardous
substances) only if it selected that site. On the other hand, a
transporter would be liable if it transported the waste to a site
containing hazardous substances (thereby a "facility") whether or
not it selected that location. The oddness of this result is
aggravated by the fact that the very first shipment to a virgin site
would deflower it, and the transporter would be liable for any
subsequent shipments even if it had not selected that site. Tippins
has advanced no reason why Congress might have intended such a
peculiar result. As we read CERCLA, the terms site and facility
substantially overlap -- they may even be equivalent, an issue we
8
. CERCLA defines "facility" as:
(A) any building, structure, installation, equipment, pipe
or pipeline (including any pipe into a sewer or publicly
owned treatment works), well, pit, pond, lagoon, impound-
ment, ditch, landfill, storage container, motor vehicle,
rolling stock, or aircraft, or (B) any site or area where
a hazardous substance has been deposited, stored, disposed
of, or placed, or otherwise come to be located; but does
not include any consumer product in consumer use or any
vessel.
42 U.S.C.A. § 9601(9).
need not decide -- and therefore "there can be little sense in
holding the transporter liable for deliveries made to facilities
designated by others, but holding him liable for deliveries to
`sites' only if the transporter chose the site." Western Process-
ing, 756 F. Supp. at 1420.
We conclude then that a transporter must select the
disposal facility to be held liable under § 107(a)(4). This
conclusion is based on our finding that the subordinate clause
"selected by such person" modifies the referents "facilities" and
"incineration vessels" along with the referent "sites." We must now
consider what acts by a transporter constitute selection of the
disposal facility.
B. The Meaning of "Selection"
Since a transporter must select the disposal location to
be liable under § 107(a)(4), we must determine whether Petroclean
selected Four County as the disposal facility. Tippins argues that
Petroclean selected the site because it was actively involved in the
selection process. Not surprisingly, Petroclean counters this
contention and would construe § 107(a)(4) narrowly to hold a
transporter liable only when it made the final decision to select
the disposal facility. CERCLA does not unequivocally resolve the
question of what particular acts by a transporter constitute
selection, as it does not define the term "select." Nor did the
drafters of CERCLA or SARA provide any explanation for the site
selection language.
Apparently no court of appeals has yet considered this
issue, but at least one district court has. In United States v.
Hardage, 750 F. Supp. 1444 (W.D. Okla. 1990), the United States
claimed that United States Pollution Control, Inc. ("USPCI") was
liable as a transporter under § 107(a)(4). In support of its
argument, the government asserted that liability attaches when a
transporter actively participates or assists in the site selection.
USPCI urged the court to reject the government's argument and to
hold that a transporter can be liable only if it acted alone in
selecting the disposal site. The district court declined the
invitation to "define the outer limits of transporter liability."
Id. at 1459. The court, instead, held that under the circumstances
presented in that case, the government had clearly met its burden of
proof under § 107(a):
Here, USPCI[] contracted with Mr. Hardage to use the
Hardage Site for hazardous waste disposal prior to
approaching any of the customers in question; proposed the
Hardage Site to its customers as a location for hazardous
waste disposal; determined whether certain customers'
waste would be sent to injection wells as opposed to the
Hardage Site; sent hazardous waste to the Hardage Site
without the knowledge of, or instructions from, certain
customers; and represented itself to at least one customer
as the owner/operator of the Hardage Site. Finally,
members of USPCI's senior management admitted under oath
that USPCI did indeed select the Hardage Site for disposal
of hazardous wastes on certain occasions.
Id.
The facts in Hardage are stronger for imposition of
liability than those at bar. This distinction turns out to be one
without a difference, though, for we believe that a person is liable
as a transporter not only if it ultimately selects the disposal
facility, but also when it actively participates in the disposal
decision to the extent of having had substantial input into which
facility was ultimately chosen.9 The substantiality of the input
will be a function, in part, of whether the decisionmaker relied
upon the transporter's special expertise in reaching its final
decision. In other words, the selection process is a continuum and,
in the circumstances we have described, the selection is done
jointly.
Construing the term "selected" to encompass those persons
whose participation in the selection process is as described takes
no liberties with the statute. In Justice Holmes' oft quoted words,
"[a] word is not a crystal, transparent and unchanged, it is the
skin of a living thought and may vary greatly in color and content
according to the circumstances and the time in which it is used."
Towne v. Eisner, 245 U.S. 418, 425,
38 S. Ct. 158, 159,
62 L. Ed. 2d
372 (1918). In a case such as this, where the statute does not
define the term at issue and the legislative history is unavailing,
we must define the term "selected" in light of its ordinary use and
the overall policies and objectives of CERCLA.
First, we note that our construction of "selected" is
within the term's ordinary meaning. To "select" is "to choose from
9
. Two district courts appear to have adopted this standard.
See Western Processing, 756 F. Supp. at 1420 ("As one who actively
selected a disposal site, the transporter may more equitably be
subject to liability."); South Carolina Recycling, 653 F. Supp. at
1006 (holding a company liable as a transporter under § 107(a)(4)
where it "participated in the selection of [the facility].").
Neither court provided any rationale for its construction.
a number or group usu[ally] by fitness, excellence, or other
distinguishing feature." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2058
(Philip B. Gove ed. 1966). When a transporter with a knowledge and
understanding of the industry superior to its customer's
investigates a number of potential disposal sites and suggests
several to the customer from which it may pick, and the customer
relies upon the transporter's knowledge and experience by choosing
one of the winnowed sites, the transporter has performed a
selection. Although the transporter has not made the ultimate
decision, it has made the penultimate one; for all intents and
purposes, the transporter has selected the facility by presenting it
as one of a few disposal alternatives. In such cases of
cooperation, the customer and transporter have jointly selected an
appropriate disposal facility.
The "active participation" standard advances the
objectives of CERCLA by recognizing the reality that transporters
often play an influential role in the decision to dispose waste at a
given facility. Generators undoubtedly regularly rely upon a
transporter's expertise in hazardous waste management when
considering disposal alternatives. A sophisticated transporter
specializing in the transportion of hazardous material is
accordingly frequently in the best position to ensure safe and
proper disposal of the waste. There is no sound reason for such
parties to escape CERCLA liability while the generators, owners, and
operators are held liable, when they essentially determined the
disposal location subjected to the remedial actions and incurring
the response costs. This approach also comports with the need to
interpret a remedial statute such as CERCLA liberally. See Alcan
Aluminum, 964 F.2d at 258.
We emphasize that for liability to attach, a transporter
must be so involved in the selection process that it has substantial
input into the disposal decision. A transporter clearly does not
select the disposal site merely by following the directions of the
party with which it contracts. See supra Part II.A. In such cases,
the transporter is no more than a conduit of the waste and its
"connection with the material is the most attenuated among poten-
tially responsible parties." Western Process
ing, 756 F. Supp. at
1420. Congress intended such transporters to avoid liability. To
be held liable under § 107(a)(4), the transporter must be so engaged
in the selection process that holding it liable furthers one of
CERCLA's central objectives: to hold all persons actively involved
in the storage or disposal of hazardous waste financially
accountable for the cost of remedying resulting harm to the human
health or environment.
C. Petroclean's Putative Selection of the Four County Landfill
Applying this standard to the instant case, we conclude
that the district court appropriately granted summary judgment
against Petroclean since there is no genuine issue of material fact
as to Petroclean's active participation in the decision to dispose
of the EAF dust at Four County. Petroclean admits that it did more
than merely pick up the dust and transport it to the landfill. As a
company specializing in site remediation and hazardous waste and
transportation services, Petroclean had substantial input into the
selection process, and Tippins clearly relied on its special
expertise in ultimately choosing Four County.
Petroclean first identified the CECOS facility as the
disposal site for the EAF dust, and subsequently contracted with
Tippins to dispose of the waste there. Later, after discussions
with CECOS about disposal costs, Petroclean learned that CECOS
accepted waste only if packaged in special disposal bags which
Petroclean considered "prohibitively" expensive. Petroclean
thereafter surveyed alternative landfills, and completed
applications for two possible disposal locations, Wayne Disposal and
Four County. After receiving estimated disposal costs for the EAF
dust from those sites, Petroclean forwarded the financial
information to Tippins, which relied upon it to make its final
selection of Four County as the disposal facility.10
10
. Tippins also relied on Petroclean to complete the neces-
sary forms for Tippins to receive an EPA waste identification
number, to contact the State of Indiana and EPA Region 5 concerning
Four County, and to inquire whether the landfill had insurance
protection.
Although Petroclean did not make the final decision to
dispose of the dust at Four County, it substantially contributed to
and shared in that decision by locating and submitting a limited
number of potential disposal sites from which Tippins could select.
Moreover, it is evident from the record that Tippins at all times
relied upon Petroclean's expertise in the field of hazardous waste
management when deciding the appropriate means and location to
dispose of the EAF dust. On these facts, Petroclean was far more
than a mere conduit of the hazardous waste; rather, it actively
participated in the site selection decision, such that Petroclean
and Tippins, working together, selected Four County as the disposal
site. Consequently, Petroclean is liable under CERCLA § 107(a)(4)
as a transporter which selected the disposal facility.
The judgment of the district court will be affirmed.
