dissenting. The majority opinion affirms the dismissal of the Arkansas Department of Environmental Quality’s complaint brought against twelve Arkansas corporations. The Department’s complaint sought to declare those corporations in violation of the Arkansas Remedial Action Trust Fund Act for disposing of hazardous substances, specifically polychlorinatedbiphenyls (PCBs), in violation of the Act. The majority goes farther and dismisses the Environmental Quality Department’s complaint “with prejudice,” thus foreclosing it from bringing the same complaint against these business corporations in an amended form. I disagree that the Department failed to allege facts sufficient to state a cause of action under the Act. I further am convinced that the limited interpretation placed on the Act by the majority, requiring the defendant corporations to actively participate in the dumping of hazardous substances, eviscerates much of what the Act was intended to correct.
I. Facts Alleged
To decide whether the Department has pled a cause of action, we must turn to the complaint itself. What follows are the factual allegations set out in the complaint, and the alleged violations of the Remedial Action Trust Fund Act:
IV. Factual Allegations
22. Beginning in or about 1975, Utility Services, Inc. (“USI”) operated a business on a site of approximately thirty (30) acres in Jefferson County, Arkansas (“the site” or “the USI property”).
23. USI continued its business operations until 1984 or 1985.
24. USI is no longer in operation and has no assets.
25. During the time it was in business, USI engaged in the repair and maintenance of various electrical equipment and components.
26. In conducting its business, USI provided some or all of the following services:
(a) treating and filtering spent oil containing polychlorinatedbiphenyls (“PCB-containing oil”) from electrical transformers and other electrical equipment at the site for the purpose of reclaiming the oil or restoring it to or near its original properties;
(b) testing PCB-containing transformer oil, which included the disposal of the oil after sampling;
(c) re-gasketing and repairing transformer bushings, which includes draining and disposing of the old PCB-containing oil from the bushing and refilling it with new oil;
(d) buying or otherwise acquiring used PCB-containing oil from other facilities that wished to dispose of the oil and treating or filtering it as described in (a) above to use in its operations or to sell to other facilities; and
(e) salvaging and reclaiming component parts of used electrical equipment, including disposing of and reclaiming used PCB-containing oil from that equipment.
27. The treating, filtering and reclaiming process, as described in paragraph 26, removed hazardous substances and hazardous wastes from the oil.
28. These hazardous substances and hazardous wastes were then disposed of at the site.
29. In addition to those business operations described in paragraph 26, USI conducted a wood treating operation at the site.
30. In this process, the PCB-containing oil and pentachlorophenol were used to preserve wood products.
31. The Defendants were individual USI customers who generated and/or transported hazardous substances and hazardous wastes, including, but not limited to, PCB-containing oil, to the site for disposal.
32. The disposal of these hazardous substances and hazardous wastes was conducted in such a manner as to constitute unsound disposal and management practices.
33. On information and belief, USI used oil disposed of by Defendants at the site to conduct wood treating operations.
34. As a result of these processes, hazardous substances and hazardous wastes were spilled on the ground.
35. As a result of this spillage, the surface and subsurface waters around the site were contaminated.
36. On or about November 2, 1990, ADEQ personnel conducted an investigation on the USI property.
37. This investigation revealed a number of drums and tanks, some of which were deteriorating, that contained high levels of PCB-containing oils, trichloroethene, and tetrachloroethene.
38. In addition, the investigation revealed that the soil in and around the site was contaminated with oil, polychlorinatedbiphenyls (“PCBs”), and pentachlorophenol.
39. ADEQ’s investigation was limited, and other hazardous substances and hazardous wastes, including, but not limited to, trichloroethene, and tetrachloroethene, are also likely to be present at the site.
40. On February 21, 1991, ADEQ entered into a Consent Administrative Order (“CAO”) with EAI to perform certain preliminary actions to stabilize and secure the site and reduce the potential for further release of hazardous substances and hazardous wastes. (This CAO is attached hereto as “Exhibit A”.)
41. The CAO referenced in paragraph 40 further provided that the stabilization actions undertaken by EAI would not constitute final action at the site and that a final remedial action would be negotiated.
42. ON May 12, 1993, ADEQ entered a second CAO with the “Utility Services PRP Committee,” primarily for the purpose of removing drums of hazardous substances and hazardous materials from the site. (This CAO is attached hereto as “Exhibit B”.)
43. On May 12, 1993, in accordance with Ark. Code Ann. § 8-7-508(a)(l) and Ark. Code Ann. § 8-7-511, an Administrative Notice of Liability and Request for Information was issued to a number of entities, including the Defendants, and an opportunity for a hearing was provided. (A sample Administrative Notice of Liability and Request for Information is attached hereto as “Exhibit C”.)
44. None of the parties notified of responsibility accepted responsibility for final remediation of the site.
45. Although remedial actions to date have resulted in the removal of all of the drums and tanks from the site, the soil and groundwater of the site remain contaminated with hazardous substances and hazardous wastes that continue to threaten public health and the environment.
V. Violations of Law
A. Violations of the Remedial Action Trust Fund Act
46. Plaintiff incorporates by reference the allegations set forth in paragraphs 1 through 45 above.
47. Ark. Code Ann. §§ 8-7-501, etseq., otherwise known as the Remedial Action Trust Fund Act, sets forth the State regulatory program governing the liability for and the remediation of hazardous substance sites.
48. Under Ark. Code Ann. § 8-7-512(a)(3), any generator of hazardous substances who, at the time of disposal, caused such substance to be disposed of at a hazardous substance site or who causes a release or threatened release or [sic] the hazardous substances, shall be liable to the State for all costs of remedial actions.
49. Likewise, under Ark. Code Ann. § 8-7-512(a)(4), any transporter of hazardous substances who causes a release or threatened release of hazardous substances or who, at the time of disposal, selected a hazardous substance site for disposal of the hazardous substances, shall be liable to the State for all costs of remedial actions.
50. A “person” is defined as any individual, corporation, company, firm, partnership, association, trust, joint-stock company or trust, venture, state or federal government agency, or any other legal entity, however organized. Ark. Code Ann. § 8-7-503(8).
51. The term “hazardous substance” includes a variety of substances, elements, compounds, mixtures, solutions, and pollutants as designated pursuant to any of the following laws: (1) the Federal Water Pollution Control Act, (2) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, (3) the Arkansas Hazardous Waste Management Act of 1979, (4) the federal Clean Air Act, or (5) the federal Toxic Substances Control Act. Ark. Code Ann. § 8-7-503(6).
52. As defined in paragraph 51, the term hazardous substance includes PCBs, pentachlorophenol, trichloroethene, tetrachloroethene, and petroleum based products.
53. As used in RATFA, “hazardous substance sites” are any sites or facilities where hazardous substances have been disposed of or from which there is a release or threatened release of hazardous substances. Ark. Code Ann. § 8-7-503(7).
54. The term “releases of hazardous substances” means any spilling, leaking, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing of hazardous substances into the environment. Ark. Code Ann. § 8-7-503(9).
55. A “threatened release” is any situation where a nonsudden release of hazardous substances can be reasonably expected, unless prevented by change of operation or installation or construction or [sic] containment or treatment devices or by removal or other remedial action. Aric. Code Ann. § 8-7-503(11).
56. As defined by RATFA, the term “remedial action’” means action necessary to effect permanent control, abatement, prevention, treatment, or containment of releases and threatened releases, including the removal of hazardous substances from the environment where removal is necessary to protect public health and the environment. Aric. Code Ann. § 8-7-503(10).
57. The Defendants are “persons” that generated or transported “hazardous substances,” and who disposed of such substances at a “hazardous substance site,” or otherwise selected a “hazardous substance site” for disposal, where a “release of hazardous substances” or a “threatened release” occurred, and are therefore liable to the State for all costs of “remedial action.”
Without question, the complaint alleges that :
• USI operated a site for disposal of hazardous substances from 1975 to 1984 or 1985;
• During this time frame the defendant corporations were generators and transporters of hazardous substances to the site;
• The defendant corporations, at the time of disposal (1) caused disposal of hazardous substances at the site, or (2) caused a release of hazardous substances, or (3) selected a hazardous substance site for disposal of the substances.
These allegations track the liability provisions of the Remedial Action Trust Fund Act, which reads:
(a) Any of the following shall be liable to the state for all costs of remedial actions under this subchapter:
(1) The owner and operator of a facility;
(2) Any person who, at the time of disposal of any hazardous substance, owned or operated a hazardous substance site;
(3) Any generator of hazardous substances who, at the time of disposal, caused such substance to be disposed of at a hazardous substance site or who causes a release or threatened release of the hazardous substances; or
(4) Any transporter of hazardous substances who causes a release or threatened release of the hazardous substances or who, at the time of disposal, selected a hazardous substance site for disposal of the hazardous substances.
Ark. Code Ann. § 8-7-512(a) (Repl. 2000).
And what constitutes “disposal”? According to the Hazardous Substances subchapter of the Environmental Law Code, “disposal” means: “the discharge, deposit, injection, dumping, spilling, leaking, or placing of any hazardous waste into or on any land or water in whatever manner so that such hazardous waste or any constituent thereof might or might not enter the environment or be emitted into the air or discharged into any waters including groundwaters; ...” Ark. Code Ann. § 8-7-203 (Repl. 2000).1 The definition of “disposal” could not be broader. Without question, the defendant corporations caused hazardous substances to be placed at the USI site which constitutes a disposal under § 8-7-203(4).
I frankly do not know what additional allegations needed to have been made by the Department of Environmental Quality to state a viable cause of action. The Department specified the time frame for the alleged violation: 1975 to 1984-1985. It specified where the hazardous substances were disposed of — ■ the USI treatment facility. It specified what hazardous substances were involved — PCBs.
We are indeed a fact-pleading state, but filing a complaint is the first step in litigation. Discovery will ensue, and additional facts will be developed. What the majority has required in the way of fact-pleading is simply too restrictive and severely hampers the ability of the Department to enforce the Act.
The allegations are clear. The defendant corporations are alleged to have disposed of PCB-contaminated oil by generating it, transporting, and placing it with USI for elimination. Accordingly, they are liable under the Act, according to the Department, for any resulting damage to the environment.
II. Limited Liability
The majority also severely limits corporate liability by interpreting “at the time of disposal” in the Act to mean that generators and transporters of hazardous substances must actively participate in the specific disposal of hazardous substances, such as, the dumping or spillage, which results in damage to the environment. This reading is completely at odds with the broad “disposal” definition in § 8-7-203, which speaks of placing such substances on land in whatever manner so that the waste might or might not enter the environment. Any placement violates the Act, if damage to the environment occurs. The majority fails to confront this broad definition of disposal in its opinion.
Again the two relevant subsections are these:
(a) Any of the following shall be liable to the state for all costs of remedial actions under this subchapter:
(3) Any generator of hazardous substances who, at the time of disposal, caused such substance to be disposed of at a hazardous substance site or who causes a release or threatened release of the hazardous substances; or
(4) Any transporter of hazardous substances who causes a release or threatened release of the hazardous substances or who, at the time of disposal, selected a hazardous substance site for disposal of the hazardous substances.
Ark. Code Ann. § 8-7-512 (a) (Repl. 2000).
The majority reads “at the time of disposal” to mean disposal by the generator or transporter corporation. The Department reads the phrase to refer to disposal by USI. The Department is correct; otherwise, subsections (3) and (4) would make no sense. Generators and transporters are liable if they cause hazardous substances to be placed at a hazardous-substance site, which substances are then improperly treated by the operator of the site, in this case USI. Placement at the site by generators or transporters like the appellant corporations and improper treatment by USI are two separate acts that occur in different time frames, not simultaneously. The majority’s limiting interpretation undercuts much of what the Act was intended to rectify.
The majority also wanders far afield when it suggests that the instant case compares to one where a person having a tuneup for his car could be in violation of the Act, if the service station improperly dumps the used oil. That analogy is far from apt. Individual persons do not take their used oil laced with PCBs to service stations for disposal. The Department has alleged that the defendant corporations in the case before us did exactly that. The allegation is that they took their PCB-contaminated oil to USI for elimination.
According to the Department, the onus was on those businesses to assure that proper treatment and elimination of those hazardous substances later transpired, or else they would be liable under the Act. The Department alleges that pollution did occur. That is sufficient, in my judgment, to mount a complaint under the Act. I respectfully dissent.
Imber and Hannah, JJ., join.The definition of “disposal” is contained within the Hazardous Waste Management Act, but is the definition to be used for the entire Hazardous Substances subchapter. See 8-7-203 (Repl. 2000).