                                                                                                                           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Precedential or Non-Precedential: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




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                 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 Processing, 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.
