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Hazardous Waste Classification Overly Broad
Description Appeals court ordered EPA to demonstrate that ore containing small amounts of lead does, in fact, constitute a hazard that would fall under CERCLA. Furthermore, not moving the ore within three days of EPA order might not constitute abandonment.
Topic Environmental Law
Key Words CERCLA, Hazardous Substance, Abandonment
C A S E   S U M M A R Y
Facts EPA ordered A&W to dispose of ore it had piled up which contained small amounts of lead. A&W shipped the ore to Mexico for processing, but Mexico refused to allow the ore into the country because, by EPA definition, it was hazardous. EPA ordered A&W to take the ore back within three days. A&W could not move that quickly, so EPA declared the ore abandoned, impounded it, and ordered it disposed of in a landfill. A&W complied but sued for reimbursement of its compliance costs. District court granted EPA summary judgment; A&W appealed.
Decision Reversed. Under CERCLA, firms may petition for reimbursement of cleanup of hazardous substances ordered by EPA when firms believe the EPA is unreasonable. EPA claims that any level of lead is hazardous, which would include much of nature. "Read as the EPA suggests, CERCLA seems to give the agency carte blanche to hold liable anyone who disposes of just about anything. Drop an old nickel that actually contains nickel? A CERCLA violation. Throw out an old lemon? It's full of citric acid, another hazardous substance." "CERCLA's definition of hazardous substance has no minimum level requirement." Further, it is not clear that not moving the ore within three days constituted abandonment. For EPA to prevail, under the statute it must show "imminent and substantial endangerment to the public health." It has yet to do so.
Citation A&W Smelter and Refiners v. Clinton, 146 F.3d 1107 (9th Cir., 1998)

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