dissenting. I respectfully dissent. I believe that. DEQ’s complaint was legally sufficient. “A pleading which sets forth a claim for relief. . . shall contain ... a statement in ordinary and concise language of facts showing that the court has jurisdiction of the claim and is the proper venue and that the pleader is entitled to relief.” Ark. R. Civ. P. 8(a) (2002). Rule 12(b)(6) provides for dismissal of a complaint for “failure to state facts upon which relief can be granted.” Ark. R. Civ. P. 12(b)(6) (2002). We have stated that the two rules must be read together in testing the sufficiency of a complaint; facts, not mere conclusions must be alleged. Malone v. Trans-States, Lines, Inc., 325 Ark. 383, 926 S.W.2d 659 (1996); Hollingsworth v. First Nat’l Bank & Trust Co., 311 Ark. 637, 846 S.W.2d 176 (1993).
The court recently outlined its standard of review of motions to dismiss under Ark. R. Civ. P. 12(b)(6) in Clayborn v. Bankers Standard Insurance Co., 348 Ark. 557, 75 S.W.3d 174 (2002). The court wrote:
In reviewing the trial court’s decision on a motion to dismiss under Ark. R. Civ. P. 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. We look to the underlying facts supporting an alleged cause of action to determine whether the matter has been sufficiendy pled.
Clayborn, 348 Ark. at 561-62 (citations omitted).
The appellees argue that DEQ’s complaint contains only one factual allegation, which is contained in Paragraph 31, related to the conduct of the appellees. Paragraph 31 states:
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.
In Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985), the court reversed the lower court’s finding that the appellants had failed to state a claim upon which relief could be granted. In Rabalaias, the appellants sued church members for breach of contract and for the tort of outrage. This court held that the allegations regarding the tort of outrage were meritless; however, the court held that the appellants had stated sufficient facts in the complaint for the breach-of-contract claim. The court held that
the trial court was treating the motion to dismiss like a motion to make more definite and certain rather than testing the sufficiency of the complaint as required by our rules. In this case the complaint stated a cause of action for breach of contract. The Rabalaises did not explain in detail all of the reasons for the disagreement, but that is not required. The appellants should not be denied their right to the claim.
Rabalaias, 284 Ark. at 529. In addition, the court stated that “[p]leadings ... are sufficient if they advise a defendant of his obligations and allege a breach of them.” Id. at 528 (citing Allied Chem. Corp. v. Van Buren Sch. Dist., 264 Ark. 810, 575 S.W.2d 445 (1979)).
In the present case, DEQ’s complaint advised the appellees that transporters and generators of hazardous substances are responsible for remedial clean-up of hazardous sites. The complaint also alleged that the appellees, as customers of USI, were either transporters or generators from which the State could seek funds for clean-up purposes.
I disagree with the majority’s statement that “the General Assembly never intended an innocent customer to be found liable resulting from unlawful conduct by an owner/operator like USI.” We must look no further than Ark. Code Ann. § 8-7-502 (Repl. 2000) to determine the legislative intent of RATFA. Ark. Code Ann. § 8-7-502 provides, in part:
(a) It is the intent of the General Assembly to provide the state with the necessary authority and funds to investigate, control, prevent, abate, treat, or contain releases of hazardous substances necessary to protect the public health and the environment, including funds required to assure payment of the state’s participation in response actions pursuant to the federal Comprehensive Environment Response, Compensation and Liability Act of 1980, and to encourage the reduction of hazardous waste generation.
(b) The purpose of this subchapter is to encourage privately funded remedial action and to clarify that persons who have undertaken remedial action at a hazardous substance site in response to an action initiated by the Arkansas Department of Environmental Quality pursuant to § 8-7-508 may obtain contribution from any other person who is liable for remediation of the hazardous substance site.
(c) A further purpose of this subchapter is to clarify the General Assembly’s intent to provide the department with the necessary funds for remedial action at a hazardous substance site, recognizing that both public and private funds must be expended to implement remedial action at the hazardous substance sites which exist in this state.....
The General Assembly has determined that it is the policy of this State that the hazardous-waste sites shall be cleaned up. RATFA was promulgated, in part, to fund response actions pursuant to Comprehensive Environment Response, Compensation and Liability Act of 1980 (“CERCLA”). This court has stated that the federal courts’ construction of federal statutes upon which state statutes have been patterned should be accorded “great weight” in our own construction of those state statutes. Gurley v. Mathis, 313 Ark. 412, 856 S.W.2d 616 (1993); Dicken v. Missouri Pac. R.R. Co., 188 Ark. 1035, 69 S.W.2d 277 (1934). CERCLA, also known as “Superfund,” was enacted by Congress in 1980 “to ensure prompt and efficient cleanup of hazardous waste cites and to place the costs of those cleanups on the [responsible parties].” United States v. Azko Coatings of America, Inc., 949 F.2d 1409, 1416-17 (6th Cir. 1991). The provisions of RATFA provide that generators and transporters of hazardous substances who cause disposal of those substances are liable for clean-up costs.
Liability to Generators and Transporters Who Cause Disposal
DEQ argues that its complaint should be deemed legally sufficient and that it should not be required to aver facts of actual disposal. The appellees argue that they did not cause a disposal and that DEQ failed to allege facts supporting any such claim. DEQ contends that the trial court “incorrectly believed that in order for liability to attach under RATFA, DEQ would have to present evidence that the Appellees actively participated in hazardous substance disposal at the USI site.” DEQ argues that active participation in hazardous substance disposal at a hazardous-substance disposal site is not a prerequisite to liability. The appellees argue that direct involvement is required for liability.
Arkansas Code Annotated § 8-7-512 (Repl. 2000) provides, in part:
(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.
“ ‘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) (Repl. 2000).
“ ‘Threatened release’ means . . . any situation where a nonsudden release of hazardous substances can be reasonably expected, unless prevented by change of operation or installation or construction of containment or treatment devices or by removal or other remedial action.”
Ark. Code Ann. § 8-7-503(11) (Repl. 2000).
“Disposal” is defined as:
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(4) (Repl. 2000).
The issue is whether the appellees caused disposal of hazardous wastes and hazardous substances. The appellees argue that all of the factual allegations in the complaint that could be construed as “causing” a disposal apply only to USI. In addition, the appellees argue that there is a “temporal requirement” for liability under RATFA because a party’s actions that cause “disposal” must take place at the same time the disposal occurs. The appellees state that “ [t]o prevail, DEQ must allege and prove that Defendants at the time of disposal, caused the disposal, or at the time of disposal, selected the hazardous substance site for disposal.” DEQ argues that the appellees can be liable if DEQ shows that the appellees “‘caused’ disposal or otherwise ‘selected a hazardous substance site for disposal’ by sending waste oil to the USI site.”
The problem with the “temporal requirement” argument is that it ignores the fact that the statute imposes liability for generators or transporters that cause the disposal or select the site for disposal. The statute does not require that generators or transporters be the proximate cause of disposal. “Cause” is defined as “[s]omething that produces an effect or result,” whereas “proximate cause” is defined as “[a] cause that directly produces an event and without which event would not have occurred.” Black’s Law Dictionary 212-13 (7th ed. 1999).
The appellees state that they “have no quarrel with DEQ’s apparent position that USI, and the individuals operating USI, might have handled materials in a manner violative of these statutes.” However, the appellees contend that the statutes upon which DEQ relies specifically prohibit imputation of liability to a third party. RATFA contains a provision which provides:
No person, including the state, may recover under the authority of this section for any remedial action costs or damages resulting solely from an act or omission of a third party or from an act of God or an act of war.
Ark. Code Ann. § 8-7-515(b) (Repl. 2000) (emphasis added). Similarly, AHWMA contains a provision which provides:
No person, including the state, may recover under the authority of this section for any response costs or damages resulting solely from an act or omission of a third party or from an act of God or an act of war.
Ark. Code Ann. § 8-7-416(b) (Repl. 2000) (emphasis added). The appellees argue that these provisions clearly express the General Assembly’s intent to exclude liability for the acts of third parties under both RATFA and AHWMA, and that the General Assembly never intended an “innocent customer” to be saddled with liabilities resulting from conduct resulting from an owner or operator like USI. These statutes do not automatically exclude customers from liability; rather, customers will not be liable for costs or damages resulting solely from an act or omission of a third party. The alleged disposal of hazardous substances did not result solely from an act or omission of USI. Before USI could dispose of a hazardous substance, it had to be in possession of a hazardous substance. The complaint alleges that USI acquired hazardous substances from the appellees — the alleged generators and transporters.
In the present case, the issue of whether Ark. Code Ann. § 8-2-416(b) bars the appellees’ liability is a question that should be developed by discovery or proof at trial. The appellees generated hazardous wastes or hazardous substances or transported hazardous substances or hazardous wastes. While USI actually disposed of the used oil, but for the delivery of the used oil to USI from the appellees, there would be no disposal) Surely the General Assembly did not intend for customers of hazardous waste sites, upon delivering used oil to the hazardous waste sites, to be able to wash their hands of responsibility for the used oil.
The majority focuses on the statutory language which provides that in order to be subject to liability under RATFA, a generator or transporter must cause disposal “at the time of disposal.” The majority states that “we cannot so lightly dispose of language that the General Assembly must have inserted to serve some purpose.” While it is true that we must construe a statute just as it reads, we do not engage in interpretations that defy common sense and produce absurd results. See Green v. Mills, 339 Ark. 200, 205, 4 S.W.3d 493 (1999). Moreover, in construing statutes, we look to the language under discussion in the context of the statute as a whole. Id.
The majority’s interpretation of the statute would create an absurd result and frustrate the intent of the General Assembly. Under the majority’s interpretation, customers of hazardous waste sites would bear no responsibility in cleaning up the hazardous substances that they helped create. According to the majority, a customer may wash its hands of any responsibility for clean-up the moment it delivers the hazardous substance to the owner or operator of a hazardous waste site unless there is specific proof that the customer knew how the hazardous substance was to be disposed of or was present and participated in the disposal of the hazardous substance. Again, the purpose of the statute is “to protect the public health and the environment. . . .” Ark. Code Ann. § 8-7-502.
Flazardous-waste sites become hazardous-waste sites after the disposal of hazardous substances. DEQ’s complaint is legally sufficient to withstand a Rule 12(b)(6) challenge. Whether the appellees should be responsible as generators or transporters of hazardous substances to a hazardous-waste site is a question of fact that should be developed by discovery or proof at trial.
For the above reasons, I respectfully dissent.
Brown and Imber, JJ., join this dissent.