Opposition Brief — Detrex Corp. v. Amcast Industrial Corp.

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| ry

Sigmrenw Court of the United States

. j

On Petition for Writ of Certiorari

United States Court of Appeal

for the Seventh Circuit

RESPONDENTS BRIE] IN OPPOSITION

BEST AVAILABLE COPY

;

3

:

:

QUESTIONS PRESENTED FOR REVIEW

I. Whether the definition of a “facility” in the Compre-

hensive Environmental Response, Compensation, and

Liability Act (“CERCLA”), 42 U.S.C. § 9601(9),

encompasses the tanker trucks that Petitioner Detrex

Corporation (“Detrex”) used to make deliveries of

trichlorethylene (“TCE”), a hazardous substance

under CERCLA, to Respondent Elkhart Products

Corporations’ plant where (1) a “motor vehicle” is

expressly included in CERCLA’s definition of a facil-

ity, (2) TCE was spilled from Detrex’s tanker trucks

during TCE deliveries, and (3) neither the tanker

truck itself, nor the TCE spilled from it, constitute

consumer products in consumer use.

II. Whether in this CERCLA private cost recovery action

brought solely under 42 U.S.C. § 9607(a), where

Petitioner Detrex never pled a right to contribution

under CERLCA, 42 U.S.C. § 9613(f)(1), but in-

Stead brought a separate contribution action effec-

tively rendering the issue moot, the Seventh Circuit

Court of Appeals correctly held that Detrex is not

entitled to an equitable apportionment of damages

under CERCLA’s statutory scheme in this action,

but that Detrex may pursue its contribution claim in

the separate action.

(i)

ii

we on

PARENT AND SUBSIDIARY COMPANIES

OF THE RESPONDENTS

Respondent Elkhart Products Corporation (“Elkhart

Products”), an Indiana corporation, is a wholly-owned

subsidiary of Respondent Amcast Industrial Corporation

(“Amcast”), an Ohio corporation. The stock of Amcast

is traded on the New York Stock Exchange. Elkhart

Products has no subsidiary companies. Ameast has no

non-wholly owned subsidiary companies.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ............... i

PARENT AND SUBSIDIARY COMPANIES OF THE

a phathercosedomebeniol ii

se SP Shy 6 fy) ae Vv

STATEMENT OF THE CASE ....................................... 1

SUMMARY OF THE ARGUMENT ..................... 8

ARGUMENT .................... Cea iabiid aieicdalbadiincddaisnaisichinaumaes 10

I. THE SEVENTH CIRCUIT’S CONSTRUCTION

OF THE CONSUMER PRODUCT EXCEPTION

TO CERCLA’S DEFINITION OF A FACILITY

DOES NOT MERIT THIS COURT’S REVIEW.. 10

A. The Seventh Circuit Correctly Interpreted

the Consumer Product Exception to

CERCLA’s Definition of a Facility —............. 10

B. The Cases Upon Which Detrex Relies to

Assert a Split of Authorities Among the

Lower Courts Interpreting the Consumer

Product Exception are Factually and Legally

Distinguishable from the Case at Bar _.......... 17

Il. THE SEVENTH CIRCUIT’S PROPER RUL-

ING ON THE ISSUE OF EQUITABLE AP-

PORTIONMENT DOES NOT MERIT THIS

eS SS a 21

A. Detrex’s Separate Contribution Action Makes

it Unnecessary for this Court to Address

Whether Response Costs Should be Appor-

tioned Under CERCLA Absent a Contribu-

RENE Ua a ee Oe 21

iv

TABLE OF CONTENTS—Continued

Page

B. The Seventh Circuit Correctly Determined

that an Equitable Apportionment of Re

sponse Costs Should Not Occur in this Ac-

tion Absent a CERCLA Contribution Claim.. 23

C. The Cases Upon Which Detrex Relies to

Assert a Split of Authorities Among Lower

Courts in Regard to Equitable Apportion-

ment are Factually and Legally Distinguish-

able from the Case at Bar ......000000000000oooo.. 27

NNER ca Uo ncn cs seiotecd cece rn ichirasudbe ck ancaneenaabsaoeanaes 28

Vv

TABLE OF AUTHORITIES

CASES Page

8550 Stevens Creek Assoc. v. Barclay’s Bank of

California, 915 F.2d 1355 (9th Cir. 1990), cert.

denied, US. , 111 S. Ct. 2014 (1991).. 18

Amcast Indus. Corp. v. Detrex Corp., 779 F. Supp.

1519 (N.D. Ind. 1991) and 822 F. Supp. 545

(N.D. Ind. 1992), aff'd in part, and rev'd in part

on other grounds, and remanded, 2 F.3d 746

Ce Mit MII ncn dbsszaiicsiatasdacananmineis tence 2, 4, 6, 27

Amcast Indus. Corp. v. Detrex Corp., 2 F.3d 746

Ce es ED hee passim

Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 (5th

OF I vecacucactioninc eietetecdee eae eee 27

Avnet, Inc. v. Allied-Signal, Inc., 825 F. Supp. 1132

ERA Iibsiis UPIIED : cicsintoncecssdaichcesensecoguada cnn eee 28

B.F. Goodrich Co. v. Murtha, 958 F.2d 1192 (2d

CORR UII. eiscsecnstciccodeaentcaneoeetnacees tinct ensaiee nncmnr ae 10, 11

Braxton v. United States, US. —-, 111

me SR Se CD ooicceeteleee cee 17

CP Holdings, Inc. v. Goldberg-Zoino & Assoc., 769

F’. Supp. 482 (DNB. 1001) .....nnccn. 200-22. osccccas..- 20-21

Chevron, U.S.A., Inc. v. Natural Resources De-

fense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778

CO I sina kiniekis de sesseen'novcnandn dececccnaae idee 14

County Line Inv. Co. v. Tinney, 933 F.2d 1508

OR a BR cic aeree ee eee 28

Estate of Cowart v. Nichlos Drilling Co., USS.

Si: ' Be SB Fs. | Le 13

Crandon v. United States, 494 U.S. 152, 110 S. Ct.

SEE CRD heviscwonte oie 15

In re Dant & Russell, Inc., 951 F.2d 246 (9th Cir.

BEE D she skintcacascakin cen asudeencaaie eee eee 27

Dayton Indep. School Dist. v. United States Min-

eral Prod. Co., 906 F.2d 1059 (5th Cir. 1990) ....8-9, 17,

18, 19, 21

DeFunis v. Odegarrd, 416 U.S. 312, 94 S. Ct. 1704

CED naskicchcacicn tock ctcucdnumeiateean a ae ae 22

Electric Power Bd. v. Westinghouse Elec. Corp.,

716 F. Supp. 1069 (E.D. Tenn. 1988) _.........-..... 20

Environmental Transp. Sys., Inc. v. Ensco, Inc.,

969 F.2d 503 (7th Cir. 1992) -.......... : 11

vi

TABLE OF AUTHORITIES—Continued

Page

First United Methodist Church v. United States

Gypsum Co., 882 F.2d 862 (4th Cir. 1989), cert.

denied, 493 U.S. 1070, 110 S. Ct. 1113 (1990)... 18

General Elec. Co. v. Litton Indus. Automation Sys.,

Inc., 920 F.2d 1415 (8th Cir. 1990), cert. denied,

499 U.S. 987, 111 S. Ct. 1890 (1991) ................... 10-11

Gomez v. Toledo, 446 U.S. 635, 100 S. Ct. 1920

(1980) ...... siiihcesieeiligtac i cS a celtieneges cana ie ee 11

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564,

Sf See oF Pe 14, 16

National R.R. Passenger_Corp. v. New York City

Housing Auth., 819 F. Supp. 1271 (S.D.N-Y.

TIFIED cnsenccnencenscsccacesmmesscessenaiieniaaenae 12, 13, 13-14

Negonsott v. Samuels, —— U.S. ——, 118 S. Ct.

REED CEI? cccccccctecctescsstetintaaniaanenane nas 14

O’Neil v. Picollo, 682 F. Supp. 706 (D.R.I. 1988),

aff'd, 883 F.2d 176 (1st Cir. 1989), cert. denied,

493 U.S. 1071, 110 S. Ct. 115 (1990)...... ee =

Reading Co. v. Philadelphia, & F. Supp. 1218

CH FR, BOOP censncnnstsenciaiabieneon 12, 18-19, 20

Russello v. United States, 464 U.S. 16, 104 S. Ct.

SG CRGBD ececccntinccctstccitihnitctiniaene nee 25

Shapiro v. Alexanderson, 741 F. Supp. 472 (S.D.

Peels ROG ccccrcetttecsnsecdiitetaanieam are 27

United States v. Asarco, Inc., 814 F. Supp. 951

CED. CHRO. TIGED vccinccscscovcccstaceationsicsaanmiamanmnas 27

United States v. Chem-Dyne Corp., 572 F. Supp.

802 (S.D. Cue pS ES Be 26

United States v. Conservation Chem. Co., 619 F.

Supp. 162 (WD. Mo. 1985) ........ REORDER 26

United States v. Kramer, 757 F. Supp. 397 (D. NJ.

BOE D nnncoococcnscscoccccsscnnccssscsudensdudinesnasinmianenaaaaaniaete 23, 25

United States v. Monsanto Co., 858 F.2d 160 (4th

Cir. 1988), cert. denied, 490 U.S. 1106, 109 S. Ct. |

$156 (1989) 0... sunshidiisaaddeiadaadaie aT alia 11, 26

United States v. Nordic Village Inc., —— U.S.

Si 7 f- 3 +f). | eee 15

L ‘ited States v. R.W. Meyer, Inc., 889 F.2d 1497

(6th Cir. 1989), cert. denied, 494 U.S. 1057, 110

S. Ct. 1527 (1990) ...... cetcitaiadenemeaiaiaaaiae 11, 26

Pen

vii

TABLE OF AUTHORITIES—Continued

Page

United States v. South Carolina Recycling and

Disposal, Inc., 653 F. Supp. 984 (D.S.C. 1986),

aff'd in part, vacated in part on other grounds

sub nom. United States v. Monsanto Co., 858

F.2d 160 (4th Cir. 1988), cert. denied, 490 U.S.

1106, 109 S. Ct. 3156 (1989) ..................0200.. 26

United States v. Stringfellow, 661 F. Supp. 1053

CU y Gs BOBO vccecntninsics sasnsaetinacieiiiesasniieimiedieseiog 25

United States v. Wong Kim Po, 472 F.2d 720 (5th

inh MII cos chshecsiansvcasadecon ss lecesdeasonenbenseienmadessbeimacaieiiand 25

Vernon Village, Inc. v. Gottier, 755 F. Supp. 1142

ees CR I sae chieeemeeaiaeaaieesenes 19, 20

Weyerhaeuser Co. v. Koppers Co., 7 F. Supp.

1420 (D. Md. 1991) . 7 27

Whirlpool Corp. v. Marshall, 445 US. 1, 100 S. Ct.

Be CI ain cccceeccecnccspdinainenenchecaidinsessasenauetaasne 11

Youakim v. Miller, 425 U.S. 231, 96 S. Ct. 1399

(| See RR eet Reus URANO Pan MRRPAP Re 12, 22

STATUTES

I kee . 16

26 U.S.C. § 9507 _..... dass suincieniiikesdabaaddataaien eae 16

42 U.S.C. § 9601(9) ee i, 8,11

ae is Be ED nacre cnescncbcinncskccucasuaksssnnabinsiocecsans 1,14

A rn I a 15

EE SR ea es ID ae Sane as 21, 28

42 U.S.C. § 9607 (a) ...... SEAR LARGER A AEA E SREE Nk passim

42 U.S.C. § 9607 (a) (1) acne a enone 3, 4, 11

42 U.S.C. § 9607 (a) (2) Sette 14

42 U.S.C. § 9607(a) (3) 18

42 U.S.C. § 9608(b) (1). pe RA Rta SAEED a 16

42 U.S.C. § 9611... 16

42 U.S.C. § 9613... 21, 29, 25, 27, 28

42 U.S.C. § 9613(f) (1) _...... passim

REGULATIONS

40 C.F.R. §§ 300.1-300.68 (1988) 3

40 C.F.R. §§ 300.01-300.920 (1991) 3

40 C.F.R. § 302.4 (1992) PUR) ALP eines aceeeeidiaaden 1

Vili

TABLE QF AUTHORITIES—Continued

LEGISLATIVE HISTORY

H.R. Rep. No. 1016, 96th Cong., 1st Sess., pt. I, at

1, 17 (1980), reprinted in 1980 U.S.C.C.A.N.

I III va nisnctaciedasnsticeccdoninastidadccdetdciienndestakessucs ebaasie

H.R. Rep. No. 253, 99th Cong., Ist Sess., pt. I, at

59, 80 (1986), reprinted in 1986 U.S.C.C.A.N.

SU MINIT sic Jaca. cece acter cats suelbhe niestpacnidicomsadetietseapoain

H.R. Rep. No. 253, 99th Cong., 1st Sess., pt. III,

at 15 (1986), reprinted in 1986 U.S.C.C.A.N.

SII - cies tocisabuanauidaouehetecatpaunieaeaseeasasaantaidecateteiiectats

H.R. Rep. No. 253, 99th Cong., 1st Sess., pt. V, at

2, 58, reprinted in 1986 U.S.C.C.A.N. 3125,

RAE DARE eA A INS a OE EN

OTHER AUTHORITY

138A Charles A. Wright et al., Federal Practice and

Preceaure $3638 (1964) .....................................

Page

2-3

22

IN THE

Suprene Court of the United States

OCTOBER TERM, 1993

No. 93-722

DETREX CORPORATION,

" Petitioner,

AMCAST INDUSTRIAL CORPORATION and

ELKHART PRODUCTS CORPORATION.

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

STATEMENT OF THE CASE

In July 1983, Amcast acquired Elkhart Products, a

manufacturer of copper pipes and fittings, located in

Elkhart, Indiana. Record (“R.”) 11, 38.’ In the fall of

1984, Elkhart Products learned that a neighboring land-

owner, Miles Laboratories, Inc. (“Miles”), had detected

TCE contamination in groundwater beneath its property.

Id. at 102.* Miles’ environmental consultants implicated

Elkhart Products as a possible source of the TCE ground-

water pollution. /d.

1 Respondents’ record cites refer to Appellees’ Supplemental Ap-

pendix filed with the Seventh Circuit on October 2, 1992.

* It is undisputed that TCE is a listed hazardous substance under

CERCLA. 42 U.S.C. § 9601(14) ;-40 C.F.R. § 302.4 (1992).

2

Elkhart Products immediately began investigating

whether activities on its property had caused TCE con-

tamination. 7d. at 102-03. Elkhart Products also hired

environmental consultants to investigate whether its own

property had TCE contamination. /d. The consultants

concluded, in a report completed in March 1986, that

TCE contamination existed in the soil and groundwater

beneath Elkhart Products’ property. /d. at 103. Elkhart

Products and its consultants, in cooperation with state and

local officials, began evaluating various methods to clean

up the TCE contamination. /d. at 103-04. Ultimately,

Amceast and Elkhart- Products voluntarily installed a

groundwater treatment system and a soil vapor extraction

system, at a cost of over $1.1 million, to clean up the

TCE contamination on Elkhart Products’ property. /d.

at 103-04, 576.

The voluntary and proactive steps taken by Amcast

and Elkhart Products to clean up and protect the environ-

ment contrast starkly with Detrex’s behavior. After dis-

covering that Detrex had spilled TCE on Elkhart Prod-

ucts’ property for many years, in 1986 Amcast and Elk-

hart Products asked Detrex to pay for the cleanup. See

Aimcast Indus. Corp. v. Detrex Corp., 779 F. Supp. 1519,

1541 (N.D. Ind. 1991), aff'd in part, and rev'd in part

on other grounds, and remanded, 2 F.3d 746 (7th Cir.

1993). From that notice to the present, Detrex stridently

has refused to pay a single cent for the cleanup. While

Amcast’s and Elkhart Products’ voluntary cleanup of en-

vironmental contamination was the exact conduct Con-

gress intended CERCLA to foster, Detrex’s recalcitrance

is the very conduct that CERCLA seeks to remedy.”

3 H.R. Rep. No. 1016, 96th Cong., Ist Sess., pt. I, at 1, 17 (1980),

reprinted in 1980 U.S.C.C.A.N. 6119, 6120 (CERCLA’s purpose is

“to provide for liability of persons responsible for releases of haz-

ardous waste”; the purpose of CERCLA’s strict liability provision

is to provide “rapid recovery of the costs incurred . .. from persons

liable therefor and to induce such persons voluntarily to pursue

appropriate environmental response actions”); H.R. Rep. No. 253,

99th Cong., Ist Sess., pt. I, at 59, 80 (1986), reprinted in 1986

U.S.C.C.A.N. 2841, 2862 (amendments to CERCLA during reauthor-

3

In the district court, Amcast and Elkhart Products, at

the close of discovery, initially moved for partial sum-

mary judgment on Detrex’s liability under CERCLA,

42 U.S.C. § 9607(a)(1), as an owner and operator of

a facility—namely, Detrex’s tanker trucks—from which

there was a release of a hazardous substance, TCE, into

the environment which caused the incurrence of response

costs necessary and consistent with the National Con-

tingency Plan (“NCP”), 40 C.F.R. §§ 300.1-.68 (1988);

40 C.F.R. §§ 300.01-.920 (1991). R. 47. The district

court, affirmed by the Seventh Circuit Court of Appeals,

properly granted Amicast and Elkhart Products summary

judgment as to Detrex’s CERCLA liability as an owner

and operator on the following undisputed material facts.

Elkhart Products used TCE to remove grease from its

copper products. Jd. at 59, 202-03, 217-18, 261-62.

From 1978 until 1986, Detrex was Elkhart Products’ sole

supplier of TCE, making nineteen TCE deliveries, amount-

ing to thousands of gallons, in tanker trucks owned and

operated by Detrex. Id. at 59-60, 324-26, 323-35. When

Detrex’s trucks were unavailable to deliver TCE to Elk-

hart Products, Detrex arranged for transportation and de-

livery by an independent contract carrier, Transport Serv-

ice Co. (“Transport Service”). Jd. at 59 n.5, 323-35.

Transport Service made fifteen TCE deliveries to Elkhart

Products. Id. at 323-25, 367.

During deliveries, Detrex spilled or released pure TCE

onto the ground at Elkhart Products’ plant from the

ization “should encourage quicker, more equitable settlements, de-

crease litigation and thus facilitate cleanups”; counterclaims should

be managed carefully by courts “to insure that the litigation is con-

ducted in an expeditious manner and is not unduly delayed”) ;

H.R. Rep. No. 258, 99th Cong., 1st Sess., pt. V, at 2, 58 (1986),

reprinted in 1986 U.S.C.C.A.N. 3125, 3181 (“those responsible for

creating ... contamination, including those who generate, transport,

treat, store, or dispose cf hazardous wastes ... are required to

[pay for] ... clean[up] costs”; “Voluntary cleanups are essential

to a successful program for cleanup of the Nation’s hazardous

substance pollution problem.”).

4

tanker trucks in three ways: (1) routinely spilling small

quantities (two to five gallons) of TCE during delivery

(the “delivery spills”); (2) overfilling a TCE storage

tank, allowing 200 to 300 gallons of TCE to wash across

the ground, destroying a large section of asphalt paving

(the “overfill spill”);* and (3) driving away from the

TCE storage tank area without closing the delivery truck’s

valve, permitting a two-inch stream of TCE, totalling

twenty-five to fifty gallons, to splash across the length of

Elkhart Products’ property (the “open-valve spill”). R.

60-73, 663.° As the Seventh Circuit aptly noted, “[t]here :

is evidence that both Detrex’s and Transport Services’

drivers sometimes spilled TCE accidentally on Elkhart’s

premises while trying to fill Elkhart’s storage tanks and

that some of this spillage found its way into the ground-

water ....” Amcast Indus. Corp. v. Detrex Corp., 2

F.3d 746, 748 (7th Cir. 1993).° Detrex does not contest

this finding.

Following partial summary judgment holding Detrex

liable as an owner and operator under CERCLA, 42

U.S.C. § 9607(a)(1), Amcast and Elkhart Products filed

* Respondents presented a wealth of testimony regarding the

overfill incident, but they were unable to locate any eyewitnesses

to that spill. Detrex successfully objected on hearsay grounds to

Respondents’ overfill spill evidence. The lower courts, therefore, did

not consider the overfill spill in making their rulings. See Amcast

Indus. Corp., 779 F. Supp. at 1532.

5In addition to the undisputed proof that TCE spills occurred

from Detrex’s tanker trucks, uncontroverted evidence also showed

that spills or releases of TCE caused Amcast and Elkhart Products

to incur response costs that were necessary and consistent with the

NCP. R. 122-23; Amcast Indus. Corp., 779 F. Supp. at 1539.

6 Detrex contested Respondents’ entitlement to partial summary

judgment on owner and operator liability on three grounds: (1)

lack of NCP compliance; (2) unclean hands; (3) and no competent

evidence of spills by Detrex. Significantly, Detrex never raised with

the district court the issue of whether its tanker trucks were exempt

from CERCLA’s definition of a facility. See Amcast Indus. Corp.,

2 F.3d at 749.

EE

a second summary judgment motion seeking, among other

things, a determination that Detrex was jointly and sev-

erally liable for all of the response costs incurred in clean-

ing up the TCE contamination. R. 541. Detrex sought

to avoid the imposition of joint and several liability under

CERCLA by arguing that (1) none of Amcast’s and

Elkhart Products’ response costs were attributable to

Detrex’s delivery spills, and (2) Amcast’s and Elkhart

Products’ response costs could be apportioned based on

the estimated volume of Detrex’s TCE spills. Jd. at

586-90.

In an effort to avoid the result of joint and several

liability, Detrex argued, alternatively, that the district

court should equitably apportion response costs even

though neither Respondents nor Detrex had ever requested

or pled contribution under 42 U.S.C. § 9613(f)(1).

Detrex conceded that if its equitable apportionment argu-

ment were accepted, then CERCLA’s strict joint and sev-

eral liability scheme would be transformed, by judicial

action, into a comparative fault analysis. See R. 594.

Shortly after filing its answer brief to Plaintiffs’ second

motion for partial summary judgment, Detrex sought leave

to amend its answer for the purpose of filing a counter-

claim. Jd. at 632. For the first time, in a suit pending

for over four and a half years, after years of discovery,

the filing of serial summary judgment motions (one of

which had been ruled upon) and a mere three months

before trial, Detrex sought to assert contribution against

Respondents under 42 U.S.C. § 9613(f)(1). Amcast

and Elkhart Products opposed Detrex’s motion to amend

by showing, among other things, that Detrex’s failure to

file a contribution counterclaim earlier was not an ex-

cusable technical oversight as claimed by Detrex, but

rather a deliberate litigation strategy that backfired.

Detrex believed that asserting a contribution claim would

be inconsistent with its strategy of denying any liability

under CERCLA; when its initial strategy failed, Detrex

scrambled, at a prejudicially late date, for a way to reduce

its liability.

6

The district court, properly exercising its discretion,

denied Detrex’s motion to amend and, after a thorough

analysis, imposed joint and several liability upon Detrex.

Amcast Indus. Corp. v. Detrex Corp., 822 F. Supp. 545,

553 (N.D. Ind. 1992), aff'd in part, and rev'd in part on

other grounds, and remanded, 2 F.3d 746 (7th Cir.

1993). Hence, Amecast and Elkhart Products were

awarded their response costs incurred in cleaning up the

TCE contamination on Elkhart Products’ property, as

well as declaratory relief for future response costs.

As noted by the Seventh Circuit, Detrex proceeded to

file a separate action against Amcast, Elkhart Products

(and certain of its current or former employees and share-

holders) and Transport Service seeking contribution un-

der 42 U.S.C. § 9613(f)(1), for the response costs

awarded to Amcast and Elkhart Products. Amcast Indus.

Corp., 2 F.3d at 748. Detrex’s separate contribution suit

is proceeding with discovery and is scheduled for trial in

1994. Detrex, therefore, has not been deprived of an

apportionment of response costs—its contribution action

goes forward. In the meantime, however, Amcast and

Elkhart Products have yet to receive a single cent from

Detrex towards the substantial expenses they began in-

curring in 1986 to clean up the environment. Amcast

and Elkhart Products acted as responsible corporate citi-

zens, voluntarily cleaning up environmental contamination

at great expense, whereas Detrex, the commercial supplier

and distributor of TCE that spilled TCE on Elkhart Prod-

ucts’ property, disclaims any liability. If any unfairness

exists in this action, the inequity has penalized Amcast

and Elkhart Products, not Detrex.

In an effort to cloak Amcast and Elkhart Products in

a veil of wrongdoing, Detrex’s statement of the case in-

accurately portrays the facts of record.’ For instance,

7 Detrex accomplishes its inaccurate portrayal of the facts by,

among other things, omitting any reference to the record before

the Seventh Circuit.

7

Detrex refers to three companies besides Detrex that sup-

plied solvent to Elkhart Products, insinuating that those

other companies could be responsible for some of the

TCE spillage. Petition, pp. 3-4. Detrex fails to mention,

however, that there is no evidence in the record that these

companies spilled TCE on Elkhart Products’ property,

whereas the record is replete with proof of Detrex’s spills.

Indeed, Detrex did not even name the other companies as

defendants in Detrex’s own contribution suit.

Further, Detrex’s conclusory assertion that “Respond-

ents are responsible for the vast majority of TCE and all

of the TCA contamination at the manufacturing facility,”

id. at 4, simply has no factual foundation. Since Detrex

never claimed a right to contribution under CERCLA,

the courts below never addressed Respondents’ responsi-

bility for any contamination, and there is no reason to do

so in this action, given Detrex’s pending contribution suit.

Detrex’s hyperbolic claims also fail to mention that most

of the incidents it references involved “stillbottoms” and

not the pure, fluid TCE spilled by Detrex. R. 660-61.

Stillbottoms are a thick, viscous mixture of oil with

seven to fifteen percent TCE (as opposed to the 100%

pure TCE spilled by Detrex). Jd. Many of these inci-

dents occurred inside Elkhart Products’ plant and were

properly cleaned up, preventing any environmental con-

tamination. 7d. This Court should not be swayed by

Detrex’s effort to paint Amcast and Elkhart Products as

“reckless” polluters; Detrex’s claims are factually un-

founded and procedurally immaterial.

Detrex’s exaggeration about spills by Elkhart Products

mirrors Detrex’s past denials that it ever spilled TCE on

Elkhart Products’ property. Both are without merit:

Detrex finally now concedes that it spilled TCE on Elk-

hart Products’ property. Petition, pp. 2, 4. In all prior

proceedings, Detrex vehemently denied spilling TCE on

Elkhart Products’ property, despite uncontroverted proof

to the contrary. See R. 383-84; Appellant’s Amended

Brief, p. 39. Notwithstanding Detrex’s belated admission,

8

Detrex continues to resist CERCLA liability. The Seventh

Circuit, however, correctly ruled on the issues that Detrex

seeks to have reviewed. No valid grounds exist for this

Court to grant Detrex’s petition for a writ of certiorari.

SUMMARY OF ARGUMENT

The Seventh Circuit fully considered and correctly re-

solved the first issue that Detrex asks this Court to re-

view—whether CERCLA’s definition of a “facility”, 42

U.S.C. § 9601(9), encompasses Detrex’s tanker-style de-

livery trucks from which TCE was spilled. CERCLA

defines “facility” to mean““motor vehicle”, i.e., a truck.

Detrex’s argument that its tanker trucks, or the TCE it

spilled, constitute “a consumer product in consumer use

or in a vessel”, Petition, p. 12, and as such are exempt

from CERCLA’s definition of a facility, is without merit.

Detrex’s argument ignores the plain meaning of the stat-

ute and would read the term “motor vehicle” out of

CERCLA’s definition of a facility. If accepted, Detrex’s

interpretation of the consumer product exemption would

defeat Congressional intent behind CERCLA—holding

those who spill responsible for the cost of cleanup. As

the Seventh Circuit noted in regard to the consumer prod-

uct exception, the proper “literal interpretation that fur-

thers the statute’s purpose is hard to beat.” Amcast

Indus. Corp. ve Detrex Corp., 2 F.3d 746, 750 (7th Cir.

1993).

The cases upon which Detrex relies to show a split of

authority among circuits on this issue are factually and

legally distinguishable from the case at bar. None of the

cases upon which Detrex relies involved motor vehicles

specifically defined under CERCLA as facilities; none of

Detrex’s case law involves active participation by a de-

fendant in hazardous substance spills. Insofar as the cases

relied upon by Detrex apply to the present case, they are

consistent with the result reached by the Seventh Circuit.

Indeed, the Seventh Circuit referred approvingly (2 F.3d

at 750) to the result reached in Dayton Indep. School

9

Dist. v. United States Mineral Prods. Co., 906 F.2d i059

(Sth Cir. 1990), the main authority upon which Detrex

relies.

The consumer product exception has no application to

this case. Neither the tanker trucks nor the spilled TCE

plausibly can be viewed as consumer products as to

Amcast and Elkhart Products and neither item—the truck

or the spilled TCE—was in consumer use. Lacking merit,

the question raised by Detrex is not an important issue

of federal law. Even if the issue raised was significant, it

should be addressed in Congress’ upcoming 1994 reauthor-

ization review of CERCLA, rather than by this tribunal.

Similarly, the second question Detrex raises for possible

review—whether Detrex should receive an equitable ap-

portionment of response costs in this 42 U.S.C. § 9607(a)

action, despite the absence of any CERCLA contribution

claim under 42 U.S.C. § 9613(f)(1)—does not merit

the invocation of this Court’s discretionary jurisdiction for

several reasons. First, Detrex’s apportionment argument is

moot. As the Seventh Circuit noted, Detrex has brought

a separate action against Amcast, Elkhart Products,

Transport Service and certain of Elkhart Products’ cur-

rent and former employees or shareholders. Thus, the

relief that Detrex seeks, an apportionment of response

costs, is underway, and this Court should not unnecessar-

ily address the apportionment issue sought to be raised

by Detrex.

Second, Detrex’s argument that an apportionment of

damages should occur in a § 9607(a) action, absent a

contribution counterclaim under § 9613(f)(1), was prop-

erly rejected by the district court and the Seventh Circuit.

Detrex’s argument would render § 9613(f)(1) (which

creates a private cause of action for contribution in

CERCLA cases) meaningless surplusage—a result at odds

with Congressional intent and well-established rules of

statutory construction. Moreover, the case law upon which

Detrex relies is factually and legally distinguishable from

10

the case at bar. No split of authority exists and, since the

issue raised lacks merit, no significant issues of federal

law warrant the exercise of this Court’s jurisdiction.

Finally, the result reached by the Seventh Circuit—

about which Detrex complains—was fair. Detrex, as part

of its litigation strategy, chose not to assert a contribution

claim in this action, believing that it could escape

CERCLA liability. Detrex’s litigation strategy backfired;

it now complains about a supposed unfairness that it engi-

neered. Detrex’s entreaties to equity and fairness, there-

fore, ring hollow. Detrex’s arguments should be addressed,

if at all, by Congress and not this Court. Detrex’s petition

should be denied.

ARGUMENT

I. THE SEVENTH CIRCUIT'S CONSTRUCTION OF

THE CONSUMER PRODUCT EXCEPTION TO

CERCLA’S DEFINITION OF A FACILITY DOES

NOT MERIT THIS COURT’S REVIEW.

A. The Seventh Circuit Correctly Interpreted the Con-

sumer Product Exception to CERCLA’s Definition

of a Facility

Congress enacted CERCLA, a remedial statute entitled

to broad construction furthering its purpose, to encourage

the cleanup of environmental contamination and place the

financial burden of cleanups upon those who spill haz-

ardous pollutants into the environment. B.F. Goodrich

Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992)

(“Because it is a remedial statute, CERCLA must be con-

strued liberally to effectuate its two primary goals: (1)

enabling the EPA to respond efficiently and expeditiously

to toxic spills, and (2) holding those parties responsib!e

for the releases liable for the costs of the cleanup.”); Gen-

eral Elec. Co. v. Litton Indus. Automation Sys., Inc., 920

F.2d 1415, 1418 (8th Cir. 1990), cert. denied, 499 U.S.

937, 111 S. Ct. 1390 (1991) (“The purpose of allowing

11

a private party to recover its response costs is to encour-

age timely cleanup of hazardous waste sites.” )*

CERCLA, 42 U.S.C. § 9607(a}, imposes strict liability

if the following elements are met: (1) defendant fits one

of the four classes of responsible parties outlined in

§ 9607(a); (2) there is a release or a threatened release

of a hazardous substance from a facility into the environ-

ment; (3) plaintiff incurred costs responding to the re-

lease or threatened release; and (4) the costs and re-

sponse actions conform to the NCP. B.F. Goodrich Co.,

958 F.2d at 1198; Environmental Transp. Sys., Inc. v.

Ensco, Inc., 969 F.2d 503, 506 (7th Cir. 1992). Where

the environmental harm is indivisible and lacks reasonable

basis for apportionment, CERCLA liability is joint and

several. B.F. Goodrich Co., 958 F.2d at 1198; United

States v. R.W. Meyer, Inc., 889 F.2d 1497, 1507 (6th

Cir. 1989), cert. denied, 494 U.S. 1057, 110 S. Ct. 1527

(1990); United States v. Monsanto Co., 858 F.2d 160,

171 n.23 (4th Cir. 1988), cert. denied, 490 U.S. 1106,

109 S. Ct. 3156 (1989).

Responsible parties under CERCLA include an owner

and operator of a facility. 42 U.S.C. § 9607(a)(1).

CERCLA defines facility to mean a “motor vehicle”, i.e.,

a truck:

“(A) any building, structure, installation, equipment,

pipe or pipeline (including any pipe into a sewer

or publicly owned treatment works), well, pit, pond,

lagoon, impoundment, ditch, landfill, storage con-

tainer, 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 in-

clude any consumer product in consumer use or any

vessel.” 42 U.S.C. § 9601(9) (emphasis added).

8 Accord: Whirlpool Corp. v. Marshall, 445 U.S. 1, 14, 100 S. Ct.

883, 891 (1980) (safety legislation); Gomez v. Toledo, 446 U.S.

635, 639, 100 S. Ct. 1920, 1923 (1980) (civil rights legislation).

12

Detrex argued to the Seventh Circuit that the district

court erred in holding Detrex liable as an owner or oper-

ator of a facility, contending that its tanker trucks, or the

TCE they delivered, constituted a “consumer product in

consumer use” exempt from CERCLA’s definition of a

facility. Appellant's Amended Brief, pp. 28-32.’ The

Seventh Circuit properly rejected Detrex’s argument be-

cause Detrex’s argument collapses the hazardous sub-

stance it spilled, TCE, into an exemption meant for con-

tainers from which such substances might escape or be

released into the environment. Amcast Indus. Corp. v.

Detrex Corp., 2 F.3d 746, 750 (7th Cir. 1993).”°

CERCLA expressly includes “motor vehicle” in the

definition of a facility. Hence, the statute’s plain mean-

ing encompasses Detrex’s delivery trucks. Reading Co.

v. Philadelphia, 823 F. Supp. 1218, 1232 (E.D. Pa.

1993) (“Since the definition of facility specifically men-

tions [motor vehicles], there must be a strong presump-

tion in favor of the conclusion that [motor vehicles] are

not consumer products in consumer use.”). When a stat-

ute is unambiguous, its plain meaning should be applied.

® The Seventh Circuit considered this ground for appeal although

it was not raised with the district court. “But Detrex tacitly con-

ceded in the district court that it was, though not an arranger for

disposal, an owner of a facility, within the meaning of the statute.

Detrex thus conceded a ground that it now seeks to raise with us,

that it was not an owner of a facility.” Amcast Indus. Corp., 2

F.3d at 749. Detrex’s petition should be denied on the ground that

it waived its consumer product argument by not presenting it to

the district court. Youakim v. Miller, 425 U.S. 231, 234, 96 S. Ct.

1399, 1401 (1976) (“Ordinarily, this Court does not decide ques-

tions not raised or resolved in the lower court.”).

10 Accord: National R.R. Passenger Corp. v. New York City

Housing Auth., 819 F. Supp. 1271, 1276 (S.D.N.Y. 1993) (“Thus,

the proper approach is to construe the ‘consumer product in con-

sumer use’ exclusion from the broad definition of ‘facility’ to mean

the term does not encompass consumer products in consumer use

which are, in effect, containers of hazardous substances, such as

transformers which contain PCB’s.’”’).

13

Estate of Cowart v. Nichlos Drilling Co., USS. .

112 S. Ct. 2589, 2594 (1992) (“[Wjhen a statute speaks

with clarity to an issue judicial inquiry into the statute’s

meaning, in all but the most extraordinary [cases] is

finished.”). The Seventh Circuit knows a truck when

it sees one, and a truck is a facility under CERCLA.

Under its plain meaning, then, the “consumer product

in consumer use” exception is inapplicable to Detrex’s

delivery trucks. Detrex’s tanker trucks were not “con-

sumer products” as between Detrex and Elkhart Products.

Detrex was not in the business of selling trucks and like-

wise, Elkhart Products was not a consumer of tanker

trucks from Detrex or anyone else. The first prong of the

exception, “consumer products”, thus has no application

here. Similarly, Detrex never placed its trucks in Elkhart

Products’ control, eliminating the second prong of the

exception, “in consumer use”. The Seventh Circuit, there-

fore, correctly rejected Detrex’s argument that its tanker

trucks, from which TCE was spilled onto Elkhart Prod-

ucts’ property, are exempt from CERCLA’s definition of

a facility. Amcast Indus. Corp., 2 F.3d at 750.

Detrex argues, nonetheless, that the TCE it delivered

to Elkhart Products falls within the consumer product

exception. Detrex’s argument that the consumer product

exception refers to facilities that contain consumer prod-

ucts, and not simply facilities that are consumer products,

contains three separate fatal flaws. First, Detrex’s argu-

ment fails because it addresses only the pure TCE in

Detrex’s tanker, ignoring the TCE that spilled on the.

ground. Had Detrex safely delivered TCE to Elkhart

Products’ storage tanks without spillage, then this would

be a different case. Detrex, however, spiiled TCE from

its trucks onto Elkhart Products’ property. Sp‘lled TCE

cannot plausib'y be deemed a consumer product.” Elk-

11 National R.R. Passenger Corp., 819 F. Supp. at 1276 (“In this

case, the support pillars and the undersides of the buildings were

14

hart Products did not order waste TCE from Detrex, nor

did Elkhart Products have any use for a batch of soil and

groundwater pollution. When Detrex spilled TCE onto

Elkhart Products’ soil, the consumer product exception,

but not the TCE, evaporated.’ Similarly, the spilled

TCE was never put to “consumer use”; Elkhart Products

could not use TCE that seeped into the groundwater and

soil. In short, the consumer product exception has no

application to the many gallons of TCE that Detrex

spilled.”

Second, Detrex’s interpretation of the consumer prod-

uct exception, if accepted, would turn other sections of

themselves coated with ACM [a hazardous substance]. The ACM

was not, for instance, contained in drums waiting to be put to a

consumer use, in which case the drums would not be facilities.

Therefore, the consumer products exception does not apply.”).

12 Detrex cannot legitimately sever its CERCLA liability by as-

serting that, once the TCE spilled, Detrex was no longer the owner

or operator of the property where the TCE was spilled. If the TCE

were the facility, as claimed by Detrex, then Detrex would remain

a responsible party under CERCLA for the spilled TCE (which is

not a consumer product when spilled) as a past owner or operator

of a facility, 42 U.S.C. § 9607(a) (2).

13 Detrex’s petition cites to a host of exceptions contained in

CERCLA (none of which apply to this suit), such as the exclusion

for petroleum, 42 U.S.C. § 9601(14). Petition, pp. 8-9. These clear

exceptions to CERCLA’s scope show that, if Congress had interided

to exempt spills of pure hazardous substances from CERCLA’s

operation, it could have, and would have, done so. Additional excep-

tions to CERCLA’s scope should not be grafted onto the statutory

framework through judicial decision. Negonsott v. Samuels,

U.S. , 113 S. Ct. 1119, 1122-23 (1993) (quoting Griffin v.

Oceanic Contractors, Inc., 458 U.S. 564, 570, 102 S. Ct. 3245, 3250

(1982)) (“ ‘Our task is to give effect to the will of Congress, and

where its will has been expressed in reasonably plain terms, that

language must ordinarily be regarded as conclusive.’”’) ; Chevron,

U.S.A., Ine. v. Natural Resources Defense Council, Inc., 467 U.S.

837, 842-43, 104 S. Ct. 2778, 2781 (1984) (“If the intent of Con-

gress is clear, that is the end of the matter; for the court . . . must

give effect to the unambiguously expressed intent of Congress.”).

a ernie aie

15

CERCLA into nonsensical babble. For instance, 42

U.S.C. § 9607(a) refers to “the owner and operator of a

vessel or a facility”, “any facility at which such hazardous

substances were disposed of”, “disposal or treatment of

hazardous susbtances . . . at any facility”, and “transport

to disposal or treatment facilities’. Each of these refer-

ences make sense when the consumer product exception

is interpreted literally to mean facilities that are consumer

products, such as containers. Reading the exception to

mean consumer products contained in facilities, however,

renders § 9607(a)’s statutory language meaningless. One

can operate a truck or a container, but how does one

operate TCE? Who would qualify as a past owner or

operator of “any [TCE] at which such hazardous sub-

stances were disposed of?” Detrex’s interpretation of the

consumer product exception, which renders CERCLA’s

key liability provision a tangled web of nonsense and

doublespeak, was properly rejected by the Seventh Cir-

cuit. United States v. Nordic Village Inc., US. '

112 S. Ct. 1011, 1015 (1992) (it is a well “settled rule

that a statute must, if possible, be construed in such fash-

ion that every word has some operative effect.”); Crandon

v. United States, US. , 110 S. Ct. 997, 1001

(1990) (“In determining the meaning of the statute, we

look not only to the particular statutory language, but to

the . . . statute as a whole and to its object and policy.” ).

Detrex’s argument that the Seventh Circuit ignored the

“any vessel” language of the exception is without merit

for two reasons. First, CERCLA defines “vessel” to mean

“every description of watercraft or other artificial con-

trivance used, or capable of being used, as a means of

transportation on water.” 42 U.S.C. § 9601(28). Trucks

are not boats. Second, Detrex admitted to the Seventh

Circuit that its trucks were not vessels: “it is clear that

the Detrex trucks were not vessels as defined in § 9601(28)

at the time of the alleged spill.” Appellant’s Amended

16

Brief, p. 26. Hence, Detrex cannot now legitimately argue,

factually or legally, that its trucks constitute vessels.’

Detrex’s interpretation of the “consumer product” ex-

ception subverts Congressional intent behind CERCLA.

Congress intended CERCLA to force those responsible

for spilling hazardous substances to bear the financial

responsibility of cleanup. H.R. Rep. No. 253, 99th Cong.,

Ist Sess., pt. [II, at 15 (1986), reprinted in 1986

U.S.C.C.A.N. 3038 (CERCLA’s goal is “to hold respon-

sible parties liable for the costs of these clean-ups”; a

“responsible party may be held liable for the entire cost

of clean-up, even if that party’s contribution to the waste

site was minimal.”). Detrex’s interpretation of the con-

sumer product exception would decimate CERCLA’s pur-

pose by creating a wholesale exception for spills by man-

ufacturers and distributors of hazardous substances. Con-

gress did not intend such a result; to the contrary, Con-

gress specifically included producers and transporters of

hazardous substances within CERCLA’s scope. See 42

U.S.C. § 9608(b)(1). Indeed, the governmental Super-

fund created under CERCLA is funded by taxing chem-

ical manufacturers. 42 U.S.C. § 9611; 26 U.S.C. §§ 4661,

9507.

Acceptance of Detrex’s strained interpretation of the

consumer product exception would also lead to absurd

results. Take, for example, a distributor’s truck hauling

poly-chlorinated biphenols (“PCBs”), a hazardous sub-

stance under CERCLA. Under Detrex’s argument, if a

truck was hauling newly-manufactured PCBs, the distrib-

utor could spill, splash and spew PCBs across public road-

ways and private property without risk of paying for the

14 Petrex’s argument, moreover, would wreak havoc in CERCLA’s

main liability section, contrary to settled principles of statutory

construction. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575,

102 S. Ct. 3245, 3252 (1982) (“[I]nterpretations of a statute which

would produce absurd results are to be avoided if alternative inter-

pretations consistent with the legislative purpose are available.”).

17

needed cleanup of environmental damage. Once the PCB

fluid was used, however, the truck carrying waste PCBs

would be strictly liable under CERCLA for the slightest

drip. CERCLA does not create this strange dichotomy

advocated by Detrex, and it should not be grafted onto

the statutory language under the guise of the consumer

product exception.

The Seventh Circuit gave careful analysis to Detrex’s

arguments and correctly found them without merit. Since

the Seventh Circuit correctly resolved this issue in favor

of Amcast and Elkhart Products, an exercise of this

Court’s discretionary jurisdiction to review that issue is

unnecessary. No important question of federal law is

presented for this Court’s review and resolution given

the Seventh Circuit’s correct ruling and the lack of merit

in Detrex’s argument. Moreover, Detrex is not asking

merely for review of an issue of statutory construction;

Detrex is asking this Court to rewrite CERCLA and re-

vise its policy underpinnings, a task best left to Congress

in its upcoming 1994 reauthorization review of CERCLA.”

Detrex’s petition for a writ of certiorari should be denied.

B. The Cases Upon Which Detrex Relies to Assert a

Split of Authorities Among the Lower Courts Inter-

preting the Consumer Product Exception are Fac-

tually and Legally Distinguishable from the Case

at Bar

Detrex’s main argument is that the Seventh Circuit’s

decision conflicts with Dayton Indep. School Dist. v.

United States Mineral Prods. Co., 906 F.2d 1059 (5th

Cir. 1990). Dayton Indep. Schoel Dist., however, is

factually and legally distinguishable from the case at bar.

Insofar as Dayton Indep. School Dist. is analogous to

the present case, the Fifth Circuit’s reasoning and holding

are entirely consistent with the Seventh Circuit’s decision

15 See Braxton v. United States, U.S. ——, 111 S. Ct. 1854,

1858 (1991).

18

and the Seventh Circuit so held. Amcast Indus. Corp., 2

F.3d at 750.

Dayton Indep. School Dist. involved claims by various

school districts and others against asbestos manufacturers

and suppliers to recover the costs of removing asbestos-

containing ceiling and fire-proofing products from various

buildings. The asbestos manufacturers moved to dismiss

plaintiffs’ claim under 42 U.S.C. § 9607(a)(3) for failure

to state a claim upon which relief could be granted. Plain-

tiffs countered that the defendants were liable under

CERCLA for disposing of a hazardous substance, asbes-

tos, “by placing it in the building materials installed in

their building.” 906 F.2d at 1064. The Fifth Circuit

rejected plaintiffs’ argument reasoning that CERCLA’s

definition of “disposal” did not “encompass the commer-

cial sale of asbestos-containing useful building products

by the defendant manufacturers and suppliers.” Jd. at

1065.

The Fifth Circuit additionally analyzed whether a dis-

posal of asbestos “at a facility” had occurred. Jd. Apply-

ing the consumer product exception, the Fifth Circuit

held that “[s]ince the building materials are without a

doubt consumer products, they [the defendants] cannot

be held liable for disposing of asbestos ‘at a facility’.”

Id. The Fifth Circuit rejected plaintiffs’ argument that

the facilities at issue were “the buildings in which the

asbestos-containing materials were installed, and not the

materials themselves.” /d.

Dayton Indep. School Dist. is legally distinguishable

from the case at hand because, under a variety of ration-

ales, asbestos removal has been held beyond CERCLA’s

scope. 3550 Stevens Creek_ Assoc. v. Barclay’s Bank of

California, 915 F.2d 1355, 1362-65 (9th Cir. 1990),

cert. denied, U.S. ——, 111 S. Ct. 2014 (1991);

First United Methodist Church v. United States Gypsum

Co., 882 F.2d 862. 869 (4th Cir. 1989), cert. denied,

493 U.S. 1070, 110 S. Ct. 1113 (1990); Reading Co.,

19

823 F. Supp. at 1234. More importantly, Dayton Indep.

School Dist. is factually distinguishable from this action

because, not only was no truck involved, but also the

asbestos manufacturers and suppliers did not release as-

bestos contamination into the environment. Detrex, on

the other hand, actively caused TCE contamination on

Elkhart Products’ property. Detrex’s active releases dis-

tinguish this case from the asbestos manufacturers’ and

suppliers’ passive involvement in the claimed release.

The Fifth Circuit’s decision, insofar as it is analogous

to the case at bar, is consistent with the Seventh Circuit’s

reasoning and holding. Indeed, the Seventh Circuit ex-

pressly approved of the Fifth Circuit’s holding and used

the Fifth Circuit’s reasoning to guide its own analysis. In

Dayton Indep. School Dist., the exempted materials were

building products—facilities that are consumer products.

The Fifth Circuit ruled that plaintiffs failed to state a

claim, not merely because the building products contained

asbestos, a useful consumer product, but also because the

building products themselves were consumer products.

This result is consistent with the Seventh Circuit’s holding

that “[t]he exception is for facilities that are consumer

products in consumer use, not for consumer products con-

tained in facilities.” Amcast Indus. Corp., 2 F.3d at 750.

The other decisions upon which Detrex relies are like-

wise unavailing. Vernon Village, Inc. v. Gottier, 755

F. Supp. 1142 (D. Conn. 1990) exempted drinking water

containing hazardous substances from CERCLA’s defini-

tion of a facility under the consumer product exception.

In doing so, the court relied heavily on the defendant's

innocence in causing the contamination: “[t]hey have in

no way caused or contributed to the release of the hazard-

ous substances into the drinking water supply.” /d. at

1151. Detrex, in contrast, actively polluted Elkhart Prod-

ucts’ property. Vernon Village’s CERCLA analysis has

never been cited by another court. Detrex’s contention

that Vernon Village creates a split of authority lacks

20

credence when other courts have ignored its analysis and

holding.

Detrex’s reliance on Electric Power Bd. v. Westing-

house Elec. Corp., 716 F. Supp. 1069 (E.D. Tenn. 1988)

is similarly misplaced. Electric Power was a state law

product liability suit, and the court addressed CERCLA,

with little analysis, to determine whether federal law pre-

empted a state law statute of repose for the action. Un-

like the case at bar, the defendants in Electric Power had

no involvement in the release of hazardous substances.

Moreover, Electric Power has not created any confusion

among lower courts as to the consumer product exception

—only Vernon Village has ever favorably cited to Elec-

tric Power’s analysis.

In contrast to the cases upon which Detrex relies, which -

applied the consumer product exception with scant analy-

sis and discussion, more recent and better reasoned deci-

sions conclude, after thoroughly reviewing the exception’s

legislative history, that the exception applies to facilities

that are consumer products. The court in Reading Co.,

823 F. Supp. at 1232-35, extensively reviewed the legis-

lative history behind the consumer product exception and

rejected the argument that Detrex makes. Reading held

that “CERCLA’s legislative history indicates that the con-

sumer products exception was meant to cover individual

consumers”, such as those who might purchase a can of

drain cleaner in a retail store. Jd. at 1233. Reading fur-

ther noted that Detrex’s argument, “[t]aken to its logical

conclusion, . . . becomes absurd.” /d. at 1235. “Under

this rationale, things defined as facilities by CERCLA,

such as buildings, motor vehicles, and aircraft would be

transformed into consumer products in consumer use, sim-

ply by virtue of the fact that people use them.” Jd. (em-

phasis added). Reading rejected this result as it would

effectively nullify private actions under CERCLA. 7d.

Accord: CP Holdings, Inc. v. Goldberg-Zoino & Assoc.,

769 F. Supp. 432, 439 (D.N.H. 1991) (rejecting inter-

21

pretation of consumer product exception that would ex-

clude CERCLA actions against landowners “despite the

fact that section 9607 clearly provides for such actions.”).

Simply put, no split of authority warranting this Court’s

review exists in the lower courts. No cases have addressed

the consumer product exception under facts like those at

bar. The cases upon which Detrex relies are factually or

legally dissimilar to this action. Even if analogous to the

facts at hand, the main authority upon which Detrex

relies, Dayton Indep. School Dist., reached a result con-

sistent with the Seventh Circuit’s conclusion. This Court

should deny Detrex’s petition.

Il. THE SEVENTH CIRCUIT’S PROPER RULING ON

THE ISSUE OF EQUITABLE APPORTIONMENT

DOES NOT MERIT THIS COURT’S REVIEW

A. Detrex’s Separate Contribution Action Makes it

Unnecessary for this Court to Address Whether

Response Costs Should be Apportioned Under

CERCLA Absent a Contribution Claim

This Court need not determine whether Detrex is en-

titled to an equitable apportionment of response costs in

this action absent a contribution claim under 42 U.S.C.

§ 9613(f)(1), because Detrex has filed a § 9613 suit

against Aricast, Elkhart Products, certain of Elkhart

Products’ current and former employees or shareholders,

and Transport Service. Amcast Indus. Corp. v. Detrex

Corp., 2 F.3d 746, 748 (7th Cir. 1993) (“Eventually

Detrex filed a separate action for contribution from Elk-

hart; that suit is pending in the district court.”). Detrex’s

contribution suit, slated for trial in 1994, seeks an equita-

ble apportionment of the response costs for which Detrex

was held liable in this proceeding. This Court should

decline Detrex’s invitation to review an issue on which

Detrex will receive, in the near future, the full and com-

plete relief it requests in this action—an equitable appor-

tionment of response costs. The judicial resources of this

22

Court would be wasted addressing an issue that Detrex

has, for all intents and purposes, rendered moot. De-

Funis v. Odegarrd, 416 U.S. 312, 317, 94 S. Ct. 1704,

1706 (1974) (“A determination .. . of the legal issues

tendered by the parties is no longer necessary to compel

[the remedy requested.]”). Accord: 13A Charles A.

Wright et al., Federal Practice and Procedure § 3533

(1984) (“Courts do not wish to make law, nor to waste

their limited resources, simply to satisfy curiosity or a

naked desire for vindication.” ).

No unfair prejudice results from deferring an equitable

apportionment of response costs to Detrex’s separately-

pending contribution action. As the Seventh Circuit cor-

rectly noted, Detrex could have timely asserted a counter-

claim for contribution in this action, but it did not do so.

Amcast Indus. Corp., 2 F.3d at 748. Accord: 42 U.S.C.

§ 9613(f)(1). Such a counterclaim would have been

corollary to Detrex’s claimed defenses of unclean hands

and contributory negligence.

Detrex’s litigation strategy in the district court, how-

ever, disclaimed any CERCLA liability. Detrex did not

assert a contribution counterclaim so as to prevent in-

consistency with its denial of any liability. When Detrex’s

strategy gamble backfired, Detrex unsuccessfully sought to

assert a contribution counterclaim, raising the issue for

the first time in a suit pending for four and a half years,

after years of discovery, serial summary judgment motions

(one of which was ruled upon), the close of discovery,

and within three months of the scheduled trial date. The

district court properly exercised its discretion in denying

Detrex’s prejudicially tardy effort to introduce contribu-

tion into this suit, as § 9613 was available to Detrex in a

separate action.”®

16 Indeed, Detrex does not raise denial of its belated motion to

assert a contribution counterclaim as an issue for this Court’s

possible review and Detrex, therefore, has waived that argument.

Youakim, 425 U.S. at 234, 96 S. Ct. at 1401.

23

The district court and the Seventh Circuit did not rule

that Detrex could not receive an equitable apportionment.

Rather, the courts below merely required that an equita-

ble contribution claim be timely pled, else be pursued

in a subsequent action. Such a requirement is hardly the

extraordinary and technical procedural pitfall that Detrex

attempts to portray. Rather than creating a hyper-tech-

nical conundrum, the district court and the Seventh Cir-

cuit sought, within CERCLA’s framework, minimal com-

pliance with the fair standards of notice pleading to

achieve justice—goals that every federal court would

pursue and accomplish by reaching the same result.”

Detrex’s petition for a writ of certiorari to the Seventh

Circuit should be denied.

B. The Seventh Circuit Correctly Determined that an

Equitable Apportionment of Response Costs Should

Not Occur in this Action Absent a CERCLA Con-

tribution Claim

The Seventh Circuit correctly rejected Detrex’s argu-

ment that the district court was required to apportion

response costs in this action, absent a § 9613(f)(1) con-

tribution claim:

“The argument that the judge had to apportion lia-

bility between Detrex and Elkhart in Elkhart’s suit

makes no sense, so we dispatch it at the outset. The

statute is clear that whoever (like Elkhart) incurs

17 Detrex cannot credibly complain about being subject to the

district court’s judgment until response costs are apportioned, a

likely delay of less than a year, when Amcast and Elkhart Products

have been out of pocket over a million dollars for over seven years

due to Detrex’s recalcitrance. The possible brief delay between

enforceability of the district court’s judgment and an apportionment

of response costs is not a windfall to Amcast and Elkhart Products.

Assuming, arguendo, that the delay did occasion a windfall to

Respondents, CERCLA contemplates such a temporary advantage

to provide an incentive for voluntary cleanups. United States v.

Kramer, 757 F. Supp. 397, 416-17 (D.N.J. 1991).

24

costs in cleaning up a contaminated site can seek to

recover them from any responsible person, and if

the responsible person believes as Detrex does that

his contribution to the mess was trivial and wants

the point established promptly he can counterclaim

for as large a percentage of the costs as he thinks

he can prove was due to the plaintiff’s own conduct.”

Amcast Indus. Corp., 2 F.3d at 748 (emphasis

added).

Detrex’s argument that $§ 9607(a) and 9613(f)(1) do

not require separately-pled claims is contrary to the stat-

ute’s plain language, well-settled rules of statutory con-

struction, congressional intent, and the great weight of

authority.

CERCLA creates a cause of action for contribution:

“Any person may seek contribution from any other

person who is liable or potentially liable under sec-

tion 9607(a) of this title, during or following any

civil action under section 9606 of this title or under

section 9607(a) of this title. Such claims shall be

brought in accordance with this section and the Fed-

eral Rules of Civil Procedure, and shall be gov-

erned by Federal law. In resolving contribution

claims, the court may allocate response costs among

liable parties using such equitable factors as the court

determines are appropriate. Nothing in this sub-

section shall diminish the right of any person to bring

an action for contribution in the absence of a civil

action under section 9606 or section 9607 of this

title.” 42 U.S.C. § 9613(f)(1).

The codification of the right to contribution apart from

§ 9607(a) suggests that contribution is not an automatic

incident of a cost recovery action, but that it is a separate

claim. Section 9613(f)(1) ‘s replete with references to

contribution requiring an affirmative claim, rather than

being an automatic component of a § 9607(a) claim.

Detrex’s argument ignores the statute’s direct mandate

ee

25

that “[iJn resolving contribution claims” the court may

equitably allocate response costs. This language means

that in non-contribution cases, such as the case at bar,

equitable allocation is not permissible. Russello v. United

States, 464 U.S. 16, 23, 104 S. Ct. 296, 300 (1983)

(quoting United States v. Wong Kim Bo, 472 F.2d 720,

722 (Sth Cir. 1972)) (‘“ ‘[W]here Congress includes par-

ticular language in one section of a statute but omits it

in another section of the same Act, it is generally pre-

sumed that Congress acts intentionally and purposely in

the disparate inclusion or exclusion.’”). Under Detrex’s

argument, § 9613 is entirely surplusage, a proposition

presumptively invalid under settled statutory construction

rules. Given the statute’s plain language and import, the

Seventh Circuit aptly described Detrex’s argument as mak-

ing “no sense”. Amcast Indus. Corp., 2 F.3d at 748.”*

Contrary to Detrex’s representation that the Seventh

Circuit stands alone in reserving the allocation of response

18 On the basis of Congressional intent and CERCLA’s statutory

structure, United States v. Kramer, 757 F. Supp. 397, 416-17 (D.N.J.

1991) soundly rejected the same argument that Detrex seeks to

raise with this Court:

“Collapsing the distinction between section 107 and section 113

ignores the clear language and structure of the statute... .

Congress enacted section 113 as a separate section to address

contribution.

* * * *

“(T]he structure of CERCLA does not preclude consideration

of equitable factors, including the liability of a PRP who was

(or is) [a] plaintiff in a section 107 action. Rather, CERCLA

separates those equitable factors from section 107 and con-

siders them in a section 113 contribution action.” (Emphasis

added. )

In this case, where no contribution claim was pled, the Seventh

Circuit properly rejected “apportioning clean-up costs in a section

107 action (absent proof that the harm is divisible); CERCLA

clearly provides that such apportionment is to be accomplished

through a section 113 contribution action.” Id. at 417. Accord:

United States v. Stringfellow, 661 F. Supp. 1053, 1060 (C.D. Cal.

1987).

26

costs to contribution suits, numerous circuit and district

courts maintain the distinction between CERCLA’s

liability and contribution provisions—a division that De-

trex seeks to collapse. O’Neil v. Picollo, 682 F. Supp.

706, 725-26 (D.R.I. 1988) (“[I]ssues of fairness and

equitable apportionment may be more properly ad-

dressed in a subsequent contribution action... .”), aff'd,

883 F.2d 176, 183 (1st Cir. 1989) (“Appellants should

now move on to their contribution action where their

burden will be reduced and the district court will be free

to allocate responsibility according to any combination

of equitable factors it deems appropriate.”), cert. denied,

493 U.S. 1071, 110 S. Ct. 115 (1990); United States v.

South Carolina Recycling and Disposal, Inc., 653 F. Supp.

984, 995 n.8 (D.S.C. 1986), aff'd in part, vacated in part

on other grounds sub nom. United States v. Monsanto

Co., 858 F.2d 160 (4th Cir. 1988), cert. denied, 490

U.S. 1106, 109 S. Ct. 3156 (1989).”

Since the Seventh Circuit correctly resolved the issue

sought to be raised, this Court should not undertake an

additional review of Detrex’s argument. No important

question of federal law is presented for this Court’s re-

19 Detrex’s argument does not simply run counter to precedent,

it would work a drastic re-write of CERCLA liability. The scope

of CERCLA liability is determined under common law principles

of joint and several liability. United States v. Chem-Dyne Corp.,

572 F. Supp. 802, 810-11 (S.D. Ohio 1983). In enacting the Super-

fund Amendments and Reauthorization Act of 1986, Congress ex-

pressly endorsed a common law joint and several liability approach

to CERCLA. United States v. R.W. Meyer, Inc., 889 F.2d 1497,

1507 (6th Cir. 1989), cert. denied, 494 U.S. 1057, 110 S. Ct. 1527

(1990); United States v. Monsanto Co., 858 F.2d 160, 171 n.23

(4th Cir. 1988), cert. denied, 490 U.S. 1106, 109 S. Ct. 3156 (1989).

Detrex’s interpretation of the statutory scheme, however, renders

CERCLA liability several—not joint and several—because contribu-

tion liability is necessarily several. United States v. Conservation

Chem. Co., 619 F. Supp. 162, 229 (W.D. Mo. 1985). Such a drastic

change in the scope and nature of CERCLA’s liability is best ad-

dressed by Congress, not this Court.

ee

27

view, given the absence of merit in Detrex’s contentions.

Moreover, any review of CERCLA at this time is un-

necessary, since Congress will reexamine CERCLA’s

framework in 1994. Detrex’s petition should be denied.

C. The Cases Upon Which Detrex Relies to Assert a

Split of Authorities Among Lower Courts in Regard

to Equitable Apportionment are Factually and

Legally Distinguishable from the Case at Bar

The cases upon which Detrex relies are distinguishable

from the case at bar because they expressly involved

§ 9613 claims or counterclaims. The district court cor-

rectly discounted the weight of Detrex’s authorities given

this crucial legal and factual distinction:

“Many of the cases upon which Detrex relies an-

alyzed contribution claims under § 9613, e.g., Amoco

Oil v. Borden, Inc., 889 F.2d [664, 672 (Sth Cir.

1989)]; Shapiro v. Alexanderson, 741 F. Supp. [472,

479 n.5 (S.D.N.Y. 1990)]. In Jn re Dant & Russell,

Inc., 951 F.2d 246 (9th Cir. 1991), the Court ap-

plied § 9613 to apportion liability in a § 9607 ac-

tion, but relied in part on the fact that the party

seeking response costs had admitted CERCLA lia-

bility. Amecast has made no such admission. Fur-

ther, the Dant & Russell court apportioned liability

within the context of a proof of claim in a bank-

ruptcy case.”

Amcast Indus. Corp., 822 F. Supp. 545, 553 (N.D. Ind.

1992), aff'd in part, rev'd in part on other grounds, and

remanded, 2 F.3d 746 (7th Cir. 1993).”

20 Similarly, Weyerhaeuser Co. v. Koppers Co., 771 F. Supp. 1420,

1426-27 (D. Md. 1991) relied upon § 9613 for its reasoning and is,

therefore, inapposite because no § 9613 claim is at issue in the case

at bar. United States v. Asarco, Inc., 814 F. Supp. 951, 956 n.3

(D. Colo. 1993) not only specifically relied on the presence of a

§ 9613 claim, it also noted that Amoco Oil Co. and Dant & Russell

“are of limited persuasive value because the courts did not consider

whether there is a distinction . . . between contribution claims and

cost recovery claims.”

28

Avnet, Inc. v. Allied-Signal, Inc., 825 F. Supp. 1132,

1141 (D.R.I. 1992) is inapposite to this action as the

court’s holding expressly exempted § 9607(a) actions to

recover response costs voluntarily incurred, as opposed to

a wholly derivative action seeking to limit the plaintiff's

exposure to another PRP. County Line Inv. Co. v.

Tinney, 933 F.2d 1508 (10th Cir. 1991) (per curiam)

involved whether a party seeking contribution under

§ 9613 must establish the requisite liability elements of

§$ 9607(a). The Tenth Circuit, in holding that § 9613

creates a contribution claim resting on an underlying

CERLCA liability created by § 9607, provided no sup-

port for Detrex’s equitable apportionment argument.

Simply put, Detrex has no cases on point supporting its

argument that, despite no pending contribution claim,

CERCLA nonetheless permits an equitable apportion-

ment of response costs. Specifically, none of the cases

upon which Detrex relies involve a voluntary private party

cleanup where no § 9613 has been pled. As the cases

cited by Detrex are inapposite, Detrex’s petition should be

denied.

CONCLUSION

No good reasons exist for this Court to review the

Seventh Circuit’s proper resolution of the issues proposed

by Detrex. Detrex’s petition for a writ of certiorari to

the Seventh Circuit Court of Appeals should be denied.

Respectfully submitted,

ANN WIGHTMAN *

D. JEFFREY IRELAND

Mary L. WISEMAN

ROBERT J. PALMER FARUKI GILLIAM & IRELAND

MAY OBERFELL & LORBER 600 Courthouse Plaza, S.W.

300 North Michigan 10 North Ludlow Street

South Bend, Indiana 46601 Dayton, Ohio 45402-1818

(219) 232-2031 (5138) 227-3700

Of Counsel Attorneys for Respondents

* Counsel of Record