Advisories & Insights

Biodegrading solid waste held to give rise to superfund liability

March, 2007

A federal district court recently imposed CERCLA liability on a forest products company because it "disposed" of logs that sank in the water and biodegraded, causing microorganisms to excrete hazardous substances such as ammonia, hydrogen sulfide, and 4-methylphenol.[i]

In an unpublished opinion in Arkema v. Asarco et al, ("Arkema")[ii] federal district court judge Ronald B. Leighton found the Weyerhaeuser Co. ("Weyerhaeuser") liable for a "release," even though the logs it "disposed" of were not a hazardous substance. The court premised the company's liability on the by-products of the degrading wood, not the wood disposal itself,[iii] in a departure from landfill cases from the 1990s that found no liability attached to the disposal of materials that became hazardous only upon the intervention of another force.[iv]

Background

Arkema involved contamination in the Hylebos Waterway, an urban waterway in Tacoma, Washington that is part of the Commencement Bay/Near Shore Tideflats Superfund Site.[v] The Hylebos Waterway historically has been used for cargo, shipping and industrial manufacturing.[vi] Sediments in the waterway and intertidal area were contaminated with a variety of hazardous substances, including chlorinated organic chemicals such as PCBs, pesticides and hexachlorobenzene, polycyclic aromatic hydrocarbons (PAHs), and a variety of metals.[vii]

During the course of pre-remedial design and site investigation work, responsible parties conducting cleanup of the waterway discovered large areas of sediment with low exceedences of non-wood waste chemicals that were allegedly impacted by wood waste.[viii] Weyerhaeuser has operated a log sort yard on the Hylebos Waterway since 1971.[ix] The yard does not treat, paint or stain logs and, with the exception of de-barking and occasional minor trimming, does no processing.[x] Raw logs are stored temporarily, either on land or as log rafts in the water adjacent to the facility.[xi]

The Environmental Protection Agency ("EPA") determined in a 1996 Issue Paper that it was "not aware of any precedents for using Superfund authorities to clean up wood waste in sediments."[xii] Still, EPA concluded that because the extensive organic loading and oxygen demand had caused high levels in the affected sediments of sulfides and ammonia (a hazardous substance under 40 C.F.R. Part 302.4), EPA had authority under CERCLA to order Weyerhaeuser and similar log yards to perform a cleanup.[xiii] The following year, the United States Army Corps of Engineers and the Washington State Department of Ecology ("Ecology") concluded in a joint memorandum[xiv] that Ecology had authority under Washington's Sediment Management Standards[xv] to regulate wood waste in the aquatic environment.[xvi]

Remedial Actions

In 1998, Weyerhaeuser and other forest products companies (the "Wood Debris Group") entered into an Agreed Order with Ecology under which they agreed to conduct an investigation and dredge certain impacted sediments. Thereafter, under the terms of a 2001 Consent Decree with Ecology, Weyerhaeuser and the others dredged wood debris and some chemically-contaminated sediments from an area adjacent to their yards.

In 2004, under the terms of a consent decree with EPA, plaintiffs Arkema and General Metals of Tacoma, Inc. ("General Metals") began performing cleanup of other portions of the waterway, including areas where chemicals discharged by industrial operations were commingled with wood debris. Arkema and General Metals dredged over 400,000 yds³ of chemically-contaminated sediments mixed with some wood debris that had not been cleaned up by the Wood Debris Group.[xvii]

Arkema and General Metals' Contribution Action

The following year, Arkema and General Metals filed this lawsuit against Weyerhaeuser, seeking contribution for the response costs they had incurred. They contended, among other things, that Weyerhaeuser's wood waste was a hazardous substance giving rise to CERCLA liability under the theory that wood waste degraded in the water, generating ammonia and sulfides, constituting a "release" of hazardous substances.

The court agreed with Weyerhaeuser that raw wood that has not been treated, painted, or stained is not a hazardous substance. But the court struggled with the fact that when the logs decomposed, microorganisms associated with that process released hazardous substances into the environment. The court noted during closing arguments that it was trying to "avoid naming the alfalfa farmer a PRP because ultimately that alfalfa gets turned into methane."[xviii] Nonetheless, the court concluded that when significant volumes of wood degraded in still water, attracting microorganisms that excrete hazardous substances such as ammonia, hydrogen sulfide, and 4-methylphenol from Weyerhaeuser's property and those hazardous substances "came to be located" at the facility Weyerhaeuser became liable under CERCLA.[xix]

Departure from Municipal Landfill Cases

Wood is not a hazardous substance, nor, according to the Arkema court, does raw wood contain hazardous substances. It is only when raw wood is acted upon by another force, in this case, microbes in an anaerobic environment, that it causes the release of a hazardous substance. In a series of cases decided in the early 1990s, courts in other districts concluded that CERCLA liability does not lie if the material disposed of – in those cases, materials including tires, PVC pipe, construction and site preparation debris including tree stumps, limbs, and other vegetation, and municipal solid waste – would release a hazardous substance only on the intervention of a chemical reaction or other force.[xx]

For example, in Serafini, Motorola, New Castle County, and Tri-County Business Campus Joint Venture,[xxi] four cases involving PVC, courts concluded that parties who disposed of PVC in municipal landfills were not liable for cleanup costs under CERCLA because a chemical reaction would be required to cause the PVC to generate a hazardous substance, and the evidence there failed to demonstrate that such a reaction would occur under the conditions at the landfills. PVC is produced when thousands of vinyl chloride monomers are chemically linked together. When it is disposed of, it is a non-hazardous solid waste which does not depolymerize or decompose to form vinyl chloride, a hazardous substance, under normal landfill conditions.[xxii]

Similarly, in Gallagher v. T.V. Spano Bldg. Corp., a case involving wood debris, the court held that homeowners in a residential real estate development had no CERCLA cost recovery claim against their developer and its subcontractors because they did not "release" a "hazardous substance" when they buried construction and site preparation debris (including stumps, tree limbs and other vegetation) on site. Relying in part on Serafini, a PVC case, the Gallagher court concluded that tree debris was not a hazardous substance under CERCLA, even if it released methane gas when it later biodegraded, and thus the developer was not liable under CERCLA for the homeowners' response costs.[xxiii]

The court did note that while methane gas is not a "hazardous substance" under CERCLA, EPA has authority under CERCLA §104(a)(1) to respond to actual or potential releases of "pollutants or contaminants" and thus releases of methane gas emanating from a landfill may be eligible for a CERCLA removal action – but the responsible party would not be liable for removal action costs under CERCLA §107 because liability under that section is limited to releases of hazardous substances.[xxiv]

Conclusion

This decision is the first to address the issue of CERCLA liability resulting from naturally-occurring biodegradation of wood in a marine environment.[xxv] It remains to be seen whether the case signals a departure from the precedent of the earlier landfill cases and a new trend for managing mixed waste cleanup sites where materials that were inert when disposed become hazardous sometime later, through a chemical reaction.

For more information about hazardous substance cleanups under CERCLA and its state- and tribal-law equivalents, please contact Connie Sue Martin.