1994 Ninth Circuit Environmental Review.

• Position: Includes index of cases and statutes

1. Clean Air Act

   1. McCarthy v. Thomas, 27 F. 3d 1363 (9th Cir. 1994).

      The plaintiffs requested injunctive relief ordering the cities of Tucson and Phoenix to expand their mass transit systems in accordance with the approved portions of Arizona's state implementation plan (SIP). The Ninth Circuit reversed the district court's dismissal of the claims and remanded with an order to formulate a remedy.

      The State of Arizona submitted proposed SIP revisions to EPA to comply with Clean Air Act (CAA) requirements for national ambient air quality standards for carbon monoxide. EPA granted conditional approval to the, revisions due to deficiencies unrelated to mass transit. When Arizona failed to correct the SIP deficiencies, EPA formally disapproved the attainment demonstrations. Arizona then submitted sufficient attainment demonstrations, and EPA granted final SIP approval. In Delany v. EPA,(1) the Ninth Circuit vacated that approval and ordered EPA to promulgate a federal implementation plan (FIP). In its FIP proposal, EPA noted that it did not intend to vacate the previously approved transportation control measures in the SIP. EPA included similar language in the final FIP approval.

      When Tucson and Phoenix failed to meet the SIP's mass transit improvement requirements? the plaintiffs filed the current suit seeking an injunction requiring implementation of those improvements. The district court dismissed the claims, finding that EPA did not expressly adopt the earlier mass transit provisions into "any final SIP or FEP."

      The Ninth Circuit reversed the district court and held that the mass transit provisions were included as part of the EPA-approved SIP provisions. The court found the holding in Kamp V. Hernandez(2) to be controlling. Kamp held that a substantially complete SIP can be approved by EPA if the state provides adequate assurances of prompt completion. The court also held that the deficiencies in the earlier plans were minor and that those plans became binding when EPA gave its final overall approval.

      The Ninth Circuit found that the district court's interpretation would have required EPA "to re-approve all previously approved provisions each time it approves another portion of a SEP." The court noted that its decision was in accord with decisions in the Second and Sixth Circuits. However, the court declined the invitation to fashion an injunctive remedy and remanded that issue to the district court.

   2. Trustees for Alaska v. Fink, 1 7 F. 3d 1209 (9th Cir. 1994).

      Plaintiffs Med suit to force the City of Anchorage to comply with its mass transit expansion plan under its state implementation plan (SIP). The Ninth Circuit found that the city conditioned its commitment to the plan upon funding availability. However, the court held that the plaintiffs had not met their burden of showing the city's attempt to obtain funding to be unreasonable.

      Anchorage developed a mass transit expansion plan (Anchorage Plan) in order to comply with the Clean Air Act's (CAA) national ambient air quality standards for carbon monoxide. The State of Alaska incorporated the Anchorage Plan into its SIP, which the EPA subsequently approved.

      Plaintiffs argued that the plain meaning of the 1977 CAA Amendments required Anchorage to "identify and commit the financial . . . resources necessary to carry out" the Anchorage Plan. However, the Ninth Circuit held that EPA's CAA interpretation to allow conditional commitments was reasonable based upon the CAA's legislative history, and the court deferred to that interpretation.

      The Ninth Circuit noted that transportation control measures must be enforceable in order to comply with the CAA and that Anchorage had met this enforceability requirement because Anchorage had made reasonable attempts to locate funding. Anchorage made grant requests, but found the grants would be insufficient to overcome the city transit authority's budget deficit. The city was unable to obtain voter approval for a gas tax or bond proposals, and the city charter barred the city from raising taxes. The Ninth Circuit then affirmed the district court's finding that the plaintiffs had failed to carry their burden of proving the city's funding location attempts to be unreasonable.

2. Hazardous Waste

   1. Cadillac Fairview/California, Inc. v. Dow Chemical Co., 41 F.3d 562 (9th Cir. 1994).

      During World War II, the United States contracted with Dow Chemical and several rubber companies to construct, lease, and operate synthetic rubber manufacturing facilities on land owned by the United States. The synthetic rubber process produced large quantities of contaminated styrene. Dow Chemical removed and stored contaminants, known as "sulfur tar bottoms," in pits on the property.

      The plaintiff, who eventually purchased the land for development, brought this cost-recovery action under 42 U.S.C. [sections] 9607(a) of the Comprehensive Environmental Response, Compensation, and Liability Act against Dow Chemical and the United States. Dow Chemical sought contribution under [sections] 9613(f) from the rubber companies as persons who "arranged for disposal or treatment" of a hazardous substance, because the rubber companies had sent the contaminated styrene back to Dow Chemical for redistillation. The rubber companies denied liability because they did not control the re-distillation process and the United States had retained official ownership of all the materials. The district court granted the rubber companies' motion for summary judgment.

      The Ninth Circuit refused to accept the rubber companies' restrictive reading of [sections] 9607(a)(3). Referring to several other Ninth Circuit cases, the court noted that this section does not limit liability to those who own or control the hazardous substances. The rubber companies argued that they were not liable, because their return of the contaminated styrene was a sale of a useful product. However, the Ninth Circuit held that sufficient questions of fact remained as to whether the rubber companies had arranged for disposal or treatment and whether the transaction was a sale of a useful product. Thus, the court reversed the summary judgment finding and remanded to the lower court.

   2. Price v. United States Navy, 39 F.3d 1011 (9th Cir. 1994).

      Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), a homeowner incurred cleanup costs for removal of contaminated soil from her property. The soil contamination resulted from the dumping of toxic materials by the Navy in the 1930s. In an attempt to recover her cleanup costs, attorneys' fees, and medical monitoring costs, the plaintiff brought a CERCLA action against the Navy, the former property owner, and the swimming pool company that had originally discovered the contamination. The plaintiff also requested an injunction under the Resource Conservation and Recovery Act (RCRA) requiring the defendants to remove contaminants that the plaintiff asserted remained on the property. The plaintiff settled the claims against the pool company prior to trial.

      The district court held that CERCLA private "response costs" under 42 U.S.C. [sections] 9607(a)(4)(B) do not include medical monitoring costs. The court also granted the Navy's motion for judgment on partial findings and dismissed the RCRA claims, because the plaintiff had not carried her burden of proof on those claims. Next, the district court held that the plaintiff was not entitled to recover her attorneys' fees. Finally, the court found that the plaintiff could receive nothing on her request for reimbursement under CERCLA's response cost provisions because, although the defendants were liable, the plaintiff had already received adequate compensation for her expenses from the state and the pool company.

      On appeal, the Ninth Circuit affirmed the district court's ruling that medical monitoring costs are not recoverable response costs under CERCLA. In making this holding, the Ninth Circuit relied extensively upon Daigle v. Shell Oil Co.,(3) the first circuit court decision addressing this issue.

      The Ninth Circuit remanded the case for reconsideration of the attorneys' fees issue, due to the prior Supreme Court decision in Key Tronic Corp. v. United States.(4) In Key Tronic, the Court held that attorneys' fees related to identification of potentially responsible parties were recoverable under CERCLA response costs, but that attorneys'fees related to settlement agreement preparations and prosecution of litigation were not recoverable. Since the district court had not broken down its analysis of the plaintiffs fees into those categories, the Ninth Circuit remanded for determination of that categorization.

      Finally, the Ninth Circuit affirmed the lower court's ruling that the plaintiff had failed to carry her burden of proof on her RCRA claims and, thus, dismissed those claims.

   3. Catellus Development Corp. v. United States, 34 F.3d 748 (9th Cir. 1994).

      The Ninth Circuit reversed the district court's grant of summary judgment that held that a company's sale of used automotive batteries to a lead reclamation plant was not an arrangement for disposal or treatment of a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

      Defendant General Automotive (General) operated automobile parts stores and accepted used automotive batteries as trade-ins. General sold the spent batteries to Morris P. Kirk & Sons, Inc. (Kirk), a company that extracted and smelted the lead. Kirk then disposed of the leftover battery casings on the plaintiffs property, contaminating the property with lead. The plaintiff sought recovery of its CERCLA response costs from General as a party who had "arranged for disposal or treatment" of hazardous wastes under 42 U.S.C. [sections] 9607(a)(3). The district court granted General's motion for summary judgment, finding that, as a matter of law, General did not arrange for disposal or treatment of hazardous...