Disposal Intent Key In Drum Dispute

Returning used drums of solvent to get credit for the drum deposit could amount to an "arrangement for" the disposal of the drums' residual substances, according to a federal appeals court ruling (United States v. Cello-Foil Products, Inc.. et al., No. 94-1568, 6th Cir., Nov. 22, 1996).

Thomas Solvent - located in Battle Creek, Mich., before it closed - sold virgin solvents in re-usable 55 gallon drums and charged its customers a deposit. Routinely, the company's employees would retrieve used drums when delivering new, full drums, and credit the customers for the amount of the drum deposit.

The returned drums' contents varied. Some drums were emptied as much as possible, while others contained up to several gallons of unused solvents that were emptied onto the ground by Thomas employees. The empty drums then were refilled or cleaned with a rinsing solution that also was dumped onto the ground.

In 1992, federal and state authorities filed suit against former customers of the then-defunct Thomas Solvent un-der the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) for response costs at the company's facility. The plaintiffs al-leged that the defendants had ar-ranged for disposal of their hazardous substances through the drum deposit and return system.

Hearing no testimony, the district court summarily ruled for the defendants on the issue of arranger liability under CERCLA. The plaintiffs appealed.

The Court of Appeals for the Sixth Circuit overturned the ruling and sent the case back to the district court. This time, the court must decide "upon the merits" wheth-er the defendants "intended to enter into a transaction that included an 'arrangement for' the disposal of hazardous substances."

Without a contract or agreement, "a court must look to the totality of the circumstances, including any 'affirmative acts to dispose' to determine whether the defendants in-tended to enter into an arrangement for disposal," according to the appellate panel.

Once a party possesses "the requisite intent to be an ar-ranger," the party is strictly liable for damages caused by the disposal. It makes no difference whether the party intended that the waste be "disposed in a particular manner or at a particular site," the court added.

The three-judge panel criticized the lower court for its "overly restrictive review of what is necessary to prove intent, state of mind, or purpose, by assuming that intent cannot be inferred from the indirect action of the parties." The opinion referred to deposition testimony about scenarios from which a judge or jury could conclude that the defendants intended to arrange for disposal of leftover solvents in the drums. Such "interpretive issues" should be resolved on a case-by-case basis, the court ruled.

Whether a CERCLA plaintiff must prove intent in order to establish arranger liability, remains a thorny issue. The Sixth Court de-cision simply fuels the debate. Meanwhile, more than just money is at stake. A ruling against the drum-deposit customers could discourage the beneficial aspects of drum re-use and recycling.

Book Review As director of solid waste management for Ventura Coun-ty, Calif., Kay Martin confronts the matter-of-fact comings and goings of her community's trash and recyclables daily.

By itself, such activity would not distinguish her from other hard-working public sector solid waste officials throughout the country. However, she brings to her job more than just practical know-how. With a master's degree in public administration and a doctorate in cultural anthropology, she has a refreshingly unfettered outlook. She asks tough, penetrating questions about how society manages its wastes.

She has gathered some of her most thought-provoking and controversial notions into a book that will annoy or elate local government officials, public and private sector solid waste managers, and anyone else who is concerned about the present and future of waste management.

Strategic Recycling: Necessary Revolutions in Local Government Policy (1996) is Martin's wake-up call to local lawmakers. It challenges public officials to reject conventional command-and-control solid waste stewardship (what she calls "supply-side" management systems) and to substitute market-driven policies ("demand-side" management) for waste services.

Although brimming with provocative concepts and ideas, the book is short on cases or examples of success stories in communities that have adopted the market-based approaches she encourages. Nevertheless, Strategic Recycling is an important contribution to thought and action on public stewardship of waste management.

For more information or to order a copy of the book, contact: Darkhorse Press, 4227 E. Main St., Ste. 116, Ven-tura, Calif. 93003. Softbound, 260 p. $29.99 plus $2.00 for shipping (Calif. residents add 7.25 percent sales tax).