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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1044

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0724%3A2. Public record. Not legal advice.