Opposition Brief — Cooper v. Armstrong Rubber Co.

No. 93-1048 (9) Buprana Court, U.S,

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In The , JAM 2 @ 1994

Supreme Court of the Huriteh"Sopiewe ome

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October Term, 1993

J. WESLEY COOPER, MARGARET COOPER and JAMES

CARTER,

Petitioners,

VS.

THE ARMSTRONG RUBBER COMPANY,

Respondent.

On Petition for Writ of Certiorari to the United States Court

of Appeals for the Fifth Circuit

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RESPONDENT’S BRIEF IN OPPOSITION

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|BEST AVAILABLE COPY

ROBERT H. WEAVER

Counsel of Record

ERNEST G. TAYLOR, JR.

MICHAEL T. DAWKINS

WATKINS LUDLAM & STENNIS

Attorneys for Respondent

633 North State Street

P.O. Box 427

Jackson, Mississippi 39205

(601) 949-4900

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QUESTIONS PRESENTED

I. Do the Federal Rules of Evidence allow a district court to

exclude expert testimony on grounds that the opinion lacked a

reliable foundation?

II. In an action to recover response costs, does CERCLA

require a plaintiff to present proof that a release or threatened

release of ahazardous substance by a defendant caused the plaintiff

to incur the costs?

Ill. Under Mississippi law, is a market stigma acompensable

damage absent a confirmed physical property damage or a

confirmed threat of physical property damage?

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TABLE OF CONTENTS

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I. The Federal Rules of Evidence allow adistrict court

judge to exclude expert testimony if the opinion lacks

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A. Daubert Recognizes The Trial Court’s Duty

To Ensure That An Expert’s Opinion Has A

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B. The Dissent In Christophersen Is Not

PrOmMets OF DUMIOTE. bc cecctccceseeees 9

II. InaCERCLA action to recover response costs, the

plaintiff must present proof that a release or

threatened release of a hazardous substance by the

defendant caused the plaintiff to incur response

COD coc cevdeciandscesedevensesevusseen 10

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Contents

Page

A. In This Case, The Fifth Circuit Acted

Consistent With Amoco and Dedham By

Requiring That The Petitioners Have Proof

That A Release Or Threatened Release By

Armstrong Caused Them To Incur Response

UME Cae e uk Ce uCe6ee béecoees os 1]

B. A Party Has Not Been Caused To Incur

Response Costs Unless The Hazardous

Substance Is Present In A Concentration

Exceeding Some Applicable Federal Or State

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EE, ooo ses cccevone cence = 16

i ccc ew eceveseeeees 18

C. An Examination Of Mr. Cooper’s Alleged

“Response Costs” Of Itself Proves That He

Has Not Acted “To Contain A Release

Threatening Health Or The Environment.” . . 18

l. InvoiceofDr. Ralph Pike ............ 19

2. InvoiceofSubraCompany .......... 19

D. The Petitioners Were Properly Denied A

Declaratory Judgment .................. 21

Contents

Page

III. Under Mississippi law, a market stigma is not a

compensable damage, absent a confirmed physical

property damage or a confirmed threat of physical

PGS, ceciccvececdinectenececes 23

Conclusion rere r rey Tere paneadetass 25

TABLE OF CITATIONS

Cases Cited:

Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 (Sth Cir. 1989)

Per ere rT ee rr rrr 8 Fie: ee SL

Artesian Water Co. v. Government of New Castle County,

659 F. Supp. 1269 (D. Del. 1987), aff’d, 851 F.2d 643

SE EE ov euves)o 0066 buuiadenkecereseeers i2

Bynum v. Mandrel Indus., Inc., 241 So. 2d 629 (Miss.

\ SD ccerxevevctess eV SOCCRERRERROREAEEEORS EO 24

Central Oil Co. v. Shows, 246 Miss. 300, 149 So. 2d 306

Pt 4ccheatsvnbeWensae eee eeedee. tavnnen due 24

Christophersen v. Allied-Signal Corp., 939 F.2d 1106 (Sth

Cir. 1991), cert. denied, 112S. Ct. 1280(1992) ...... 9,10

City of Jackson v. Filtrol Corp., 624 F.2d 1384 (5th Cir.

DEE ease heat cenedinncetusedbedeteenstacwess 24

City of Oxford v. Spears, 228 Miss. 433, 87 So. 2d 914

SE scot nceuedeess aaabmueceesa sateen densa 24

Contents

Page

Daubert v. Merrell Dow Pharmaceuticals, Inc.. 113 §. Ct.

EE cad te eet ee ee 5, 7,8,9, 10, 11

Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889

F.2d 1146 (1stCir. 1989) ........ ua wees cae seeeeio ta

Dennery v. Hughes, 214 Miss. 687, 59 So. 2d 316 (1952) . 23

Edge v. City of Booneville, 226 Miss. 108, 83 So. 2d 801

GEES okeenbcksk less cetiviee ee 24

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) ..... 7

In re Bell Petroleum Services, -inc.,-3 F.3d 889 (Sth Cir

1993) eek ‘wWheseeeaceavureete.. 13

Kelly v. Thomas Solvent Co., 727 F. Supp. 1532 (W.D.

NE cil aneverdsacdccckiver tele 22

Lansford-Coaldale Joint Water Authority v. Tonolli Corp.,

SPIO BAO CIBC 1GG8) oink ov vik cc ovccecccecence, 12

Love Petroleum Co. v. Jones, 205 So. 2d 274 (Miss. 1967)

LS CERCT CUES CPM CLO REDE eC aR bere eee 24

Maryland Casualty Co. v. Pacific Coal & Oil Co..61S. Ct.

|, ENE er Ra AiG ABEL Ala mye see 41,22

Masonite Corp. v. Dennis, 175 Miss. 855, 168 So. 613

PE 6 Se rivbivdrcledes diet ee 25

vi

Contents

Masonite Corp. v. Steede, 198 Miss. 530, 23 So. 2d 756

1945)

Phillips v. Davis Timber Co, 468 So. 2d 72 (Miss. 1985)

Porter v. Whitehall Laboratories. Inc. 9 F.3d 607 (7th Cir

1993)

Redland Soccer Club v. Department ofthe Army, 801 F

Supp. 1432 (M.D. Pa. 1992)

State ex rel. Brown v. Georgeoff, 562 F. Supp. L300XN.D

Ohio 1983

United States v. Hardage, 733 F. Supp. 1424 (W.D. Okla.

1989) | | WrITTTTTrTT rir T re

United States v. Hardage, 982 F.2d 1436 (10th Cir. 1992),

cert. denied, 114S.Ct. 300(1993) ............0055.

Wellesley Hills Realty Trust v. Mobil Oil Corp., 747 F

ee, He ca es BOE 0:6 6 664 cs ceeneudetesiuces

White v. County of Newberry, 984 F.2d 168 (4th Cir. 1993)

Statutes Cited:

42 U.S.C. §6901-92 2... cece eect ee eees

Seen SOOUED svccscccesevcccuses woreTT TTS

Page

vu

Contents

Page

42 U.S.C. § 9601(14)

42 U.S.C. § 9607(a)

Rules Cited:

Federal Rule of Evidence 702 5,7,8

Federal Rule of Evidence 703

Other Authorities Cited:

40 C.F.R. § 141 16

40 C.F.R. $141.2 6

40 C.F.R.§ 141.2 6

40 C.F.R. § 141.32(e) 6

40 C.F.R. § 141.63 6

ets > Oe eee | a5 16

57 Fed. Reg. 30798 (July 27, 1990) 17

OSWER Directive No. 9355.4-02 (Sept. 7, 1989) 17

APPENDIX

a a Statutory Provisions ...... | la

Appendix B — Federal RulesofEvidence ............ 4a

Appendix C — Oswer Directive #9355.4-02 .......... Sa

No. 93-1048

In The

Supreme Court of the United States

wry sh

October Term, 1993

l

J. WESLEY COOPER, MARGARET COOPER and JAMES

CARTER,

Petitioners.

THE ARMSTRONG RUBBER COMPANY.

Respondent.

On Petition for Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

STATUTES INVOLVED

The following statutes and rules are involved in the present

case and set forth in the appendices; 42 U.S.C. §§ 9601(9).

160 1(14), 9607(a); Fed. R. Evid. 702, 703

STATEMENT OF THE CASE

The Respondent, Armstrong Rubber Company

(““Armstrong”)' manufactured tires at its Natchez, Mississippi

plant from 1939 until 1987. Until the early 1970s, Armstrong

disposed of plant wastes, principally, at a rural location known as

the “Cain site.” Armstrong's waste stream consisted of reject tires,

packing crates, sweepings from the plant floor and other common

industrial wastes. (R. Vol. 2, p. 1010). Arelatively small portion of

Armstrong's waste stream consisted of liquids containing

hazardous wastes in trace amounts. These liquids were often

burned on site. (R. Vol. 10, p. 4077).

Because of the hilly terrain and highly erodible soil in the

Natchez area, landowners requested Armstrong io dispose of its

wastes on their properties to assist them in filling and reclaiming

gullies and ravines. Petitioner James Carter was one of those

landowners. His property, known as the “Carter” site and an

adjoining piece of property called the “Batieste” site were disposal

sites also at issue in this case. (R. Vol. 2, p. 1002).

The Mississippi Bureau of Pollution Control (“BPC”) began

its investigation of the Cain site in November 1986. This

investigation expanded to the Carter and Batieste sites. Armstrong

was ordered to remove drummed wastes from the Batieste site and

to conduct testing at all three sites.

Independent testing of the three sites was conducted by the

BPC and the United States Environmental Protection Agency

(“EPA”). The BPC concluded that, according to the data collected,

“there is no imminent threat to human health at these sites.” (R. Vol.

1. Pursuant to Supreme Court Rules 24.1(b) and 29.1, Armstrong states

that Armstrong has since sold its assets to Condere Corporation and its stock to

Pirelli Enterprises Corporation.

3

1, p. 0045).? The BPC tested the drinking water wells of area

landowners, including that of petitioner J. Wesley Cooper

(“Cooper”). Chemicals found in the water were within naturally

occurring background levels. (R. Vol. 6, P. 2207): The EPA agreed:

“In summary, this data review does not indicate that a public health

threat exists from the use and consumption of area groundwater.”

(R.Vol. 1, p.0051).

During this investigation by Armstrong and the regulators, the

petitioners, in September 1988, filed this lawsuit alleging that

wastes at the three sites caused them personal injury and property

damage. Cooper maintained that his stomach cancer was caused

by contamination which reached the groundwater below the

disposal sites, flowed to and polluted his well water. The nearest

disposal site to the Cooper property is the Cain site, two-thirds ofa

mile away. The petitioners also sought recovery for “response

costs,” under the Comprehensive Environmental Response,

Compensation, and Liability Act (“CERCLA”), and for property

damage under Mississippi common law.

After discovery ended in early 1991, Armstrong filed a motion

for summary judgment. By that time, the EPA, BPC and even

Cooper’s own toxicologist and medical doctor agreed that the

extensive testing done at the site established that the groundwater

beneath the waste sites flowed away from, instead of toward,

Cooper’s well. Testing also revealed that the groundwater was not

contaminated. The investigations had determined that in order for

the waste sites to have a causal connection to Cooper’s stomach

cancer, (a) the contaminants on the surface of the sites would have

to work their way through 100-150 feet of soil and into the

2. The petitioners mistate that the three sites met “superfund category

status.” Petition at 4. BPC did not determine that the three sites were “superfund”

sites deserving federal funds fora cleanup. BPC only stated that the sites should

be studied using superfund standards. (R. Vol. 9, p. 3455).

4

subsurface groundwater (b) and then the contaminants would have

to defy gravity and travel 3500 feet uphill, against the natural water

flow, to his private well. (R. Vol. 6, p. 2189). Cooper’s defense to

summary judgment depended on the opinion of geologist Dr.

Nolan Augenbaugh that this aquifer could have reversed direction,

sending contaminated groundwater uphill to the Cooper well.’

The district court rejected Augenbaugh’s testimony as

inadmissible because it had no basis in fact; instead, his opinion,

that groundwater had reversed direction and that the groundwater

was polluted, had no factual support and was based solely on

speculation. Likewise, the district court dismissed the petitioners’

CERCLA claim finding that “chemicals at the site do not pose an

imminent hazard to human health.” The petitioners’ property

damage claims were dismissed because the only “damage” was

purported stigma which had allegedly depressed the properties’

value. The Fifth Circuit affirmed.

SUMMARY OF THE ARGUMENT

Cooper’s personal injury claim is whoily dependent on the

expert testimony of Dr. Augenbaugh. Without Dr. Augenbaugh’s

testimony. the petitioners have no proof that Armstrong's wastes

contaminated Cooper’s well-water. Cooper was the only plaintiff

who pursued a personal injury claim through the summary

judgment stage of the case.

The district court properly ruled Dr. Augenbaugh’s testimony

inadmissible because his opinions lacked a reliable foundation. In

3. The petitioners refer to their toxicologist, Dr. William George, who

opined that wastes from the Cain, Carter and Batieste sites had reached the

groundwater beneath those sites and flowed to and contaminated the Cooper

well. Petition at 8-9 n.1. The district court recognized that Dr. George’s opinion

was dependent on Dr. Augenbaugh’s flow reversal theory.

j

5

Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786

(1993), this Court preserved the district court’s duty to screen out

expert testimony which lacks a reliable basis. If the expert seeks to

impart scientific knowledge to the jury, the proposed testimony

must be founded on scientific method.

This Court should deny the petition for writ of certiorari

because although this case was decided by the Fifth Circuit and

district court before Daubert, the ruling on Dr. Augenbaugh’s

testimony is consistent with Rule 702 of the Federal Rules of

Evidence, as interpreted in Daubert. Expert opinions lacking a

reliable foundation are inadmissible under Daubert.

Dr. Augenbaugh sought to opine that (a) the groundwater

beneath the disposal sites was contaminated and (b) this

groundwater had reversed its normal direction of flow, moved

toward and contaminated Cooper’s well. Dr. Augenbaugh

performed no site specific study of his own. He merely second

guessed work and conclusions of other experts. His opinions were

based on speculation and were properly excluded.

CERCLA allows a private party to recover costs incurred in

“response” to a release or threatened release of a hazardous

substance. Cooper is the only petitioner who presented proof of

purported response costs.

Because many hazardous substances are naturally occurring,

the detection of a hazardous substance on property, of itself, is

insufficient to justify a private party’s incurrence of costs of

response. The hazardous substance must be present in a

concentration exceeding some applicable and relevant federal or

state standard. If such a concentration does not exist, the private

party cannot successfully claim that he or she has been caused to

incur response costs. Amoco Oil Co. v. Borden, Inc., 889 F.2d 664

(Sth Cir. 1989).

6

The petitioners claim that the Fifth Circuit modified Amoco in

this case, thereby placing the Fifth Circuit in conflict with other

circuits. The case was decided on an interpretation of CERCLA

consistent with the other circuits. Both the district court and the

Fifth Circuit reviewed the record and determined that the disposal

sites where Cooper incurred costs posed no threat of release onto

Cooper’s property over two-thirds of a mile away. Cooper’s

property was never used as a disposal site by Armstrong. The

petitioners have no admissible proof to establish that Armstrong

caused hazardous substances to be released into the Cooper water

well.

Finally, the petitioners were unable to establish any physical

property camage or threat of physical property damage sustained

by their properties. In response to Armstrong’s motion for

summary judgment, the petitioners presented the testimony of real

estate appraiser Douglas Upchurch. Mr. Upchurch testified that a

“stigma” was attached to the petitioners’ properties because of the

perception that the properties were polluted. The district court

properly dismissed the petitioners’ property damage claims

because Mississippi law does not recognize market stigma as a

compensable property damage.

REASONS FOR DENYING THE WRIT

I.

THE FEDERAL RULES OF EVIDENCE ALLOW A

DISTRICT COURT JUDGE TO EXCLUDE EXPERT

TESTIMONY IF THE OPINION LACKS RELIABLE

FOUNDATION.

The petitioners present their case as an opportunity for the

Court to strike down what the petitioners regard as the Fifth

Circuit’s “result-oriented reinterpretation of the federal rules of

civil procedure and the federal rules of evidence.” Petition at 16.

>

According to the petitioners, the “underpinnings” of the Fifth

Circuit’s prejudice against toxic tort cases were erased by Daubert

v. Merreil Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993).

However, both the district court and the Fifth Circuit founded their

exclusion of expert testimony on a legal and factual basis

consistent with Daubert.

A. Daubert Recognizes The Trial Court’s Duty To Ensure

That An Expert’s Opinion Has A Reliable Basis.

Fundamentally, Daubert deems the Frye test superseded by

the adoption of the Federal Rules of Evidence. Daubert, 113 S. Ct.

at 2793. Under Frye, “the thing from which the [expert’s]

deduction is made must be sufficiently established to have gained

general acceptance in the particular field in which it belongs.” Frve

v. United States, 293 F. 1013. 1014(D.°. Cir. 1923). This Court, in

Daubert, removed “general acceptance” of the expert’s technique

as a necessary prerequisite to the admissibility of the expert's

opinion. Daubert, 113 S.Ct. at 2794.

Daubert does not, however, eliminate the trial judge’s

authority and duty to screen expert opinions: “To the contrary,

under the ([Federalj Rules (of Evidence] the trial judge must ensure

that any and all scientific testimony or evidence admitted is not

only relevant, but reliable.” Id. at 2795 (emphasis added).

Daubert reads Rule 702 to require that the “knowledge” a

scientist seeks to impart to the jury be based on more than

conjecture.

The adjective ‘scientific’ implies a grounding

in the methods and procedures of science.

Similarly, the word ‘knowledge’ connotes

more than subjective belief or unsupported

speculation....[I]n order to qualify as

‘scientific knowledge,’ an inference or

8

assertion must be derived by the scientific

method. Proposed testimony must be

supported by appropriate validation — i.e.,

‘good grounds,’ based on what is known. In

short, the requirement that an expert’s

testimony pertain to ‘scientific knowledge’

establishes a standard of evidentiary reliability.

Daubert, 113 S. Ct. at2795 (quoting Fed. R. Evid. 702).

Here, as the district court noted, Cooper’s toxicologist, Dr.

William George, and medical doctor, Dr. Lawrence Miller,

conceded that the suspect chemicals could not have caused

Cooper’s cancer unless they were in the drinking water at

concentrations significantly exceeding background levels. (A26 -

27).* Dr. George went further by acknowledging that the chemical

concentrations in Cooper’s well water were insufficient to have

caused his cancer. (A27). Nevertheless, Dr. Miller opined that the

causal link existed because the requisite concentrations existed

from 1950 through the 1970s. Dr. Miller assumed that these

concentrations existed because Dr. Nolan Augenbaugh, Cooper’s

geologist, had so opined. (A27).

The district court, consistent with Daubert’s reading of Rule

702, ruled Dr. Augenbaugh’s testimony inadmissible because it

was not founded on scientific methodology; it was based on

speculation. Dr. Augeubaugh’s opinion was founded on only a

cursory review of studies performed by Armstrong’s consulting

engineers. He performed no site specific study of his own, had no

facts to support his opinion and he rejected the field data reported

in the engineering studies of the site: “Speculation followed by

speculation, unlinked to the case-specific facts, should be

rejected.” (A28).

4. Reference to the Petitioners’ Appendix.

9

The district court also found that Dr. Augenbaugh speculated

that the Natchez aquifer beneath the disposal sites is polluted.

(A31). This is a huge assumption because, as stated above, (a) it

assumes contaminants have descended through 100-150 feet of

soil to reach the aquifer and (b) that this aquifer reversed its natural

flow and polluted the Cooper well at sufficient concentrations over

a sufficient period of time to cause Cooper's cancer. The district

court noted that this was countered by hard scientific data to the

contrary. Likewise, Augenbaugh’s flow reversal theory was met

with geological facts to the contrary. “The court observes that

[Augenbaugh’s theory] is sheer speculation about the possible, not

a study of the data or application of any scientific methodology.”

(A32). See also Porter v. Whitehall Laboratories, Inc., 9 F.3d 607,

614 (7th Cir. 1993) (Applying Daubert: “If experts cannot tie their

assessment of data to known scientific conclusions, based on

research or studies, then there is no comparison for the jury to

evaluate and the expert’s testimony is not helpful to the jury”).

B. The Dissent In Christophersen Is Not Prophetic of

Daubert.

At the time that this case was briefed and argued before the

Fifth Circuit, the governing case on the admissibility of expert

testimony was Christophersen v. Allied-Signal Corp., 939 F.2d

1106 (Sth Cir. 1991), cert. denied, 112 S. Ct. 1280 (1992). The

petitioners complain that the Fifth Circuit committed error by

refusing to remand or rehear the case after this court released

Daubert. This Court noted in Daubert, however, that under

Christophersen, the Fifth Circuit regarded the Frye test and the

Federal Rules of Evidence as co-existing. Daubert, 113 S. Ct. at

2793 n.5. Therefore, since the district court excluded Dr.

Augenbaugh’s testimony based on an interpretation of the Federal

Rules of Evidence consistent with Daubert and untainted by Frve,

this case is not a proper case for the Court to review

Christophersen’s alleged inconsistency with Dauber’.

10

The petitioners rely on the Christophersen dissent as if it

predicted the rule in Daubert. Petition at 17. According to the

dissent, a district court may not analyze the expert’s

“methodology.” Christophersen, 939 F.2d at 1129 (Reavley, C.J.,

dissenting). This is exactly contrary to the point of Daubert that

the district court judge has a duty to ensure that the expert’s opinion

is founded on scientific methodology and not speculation.

II.

IN A CERCLA ACTION TO RECOVER RESPONSE

COSTS, THE PLAINTIFF MUST PRESENT PROOF

THAT A RELEASE OR THREATENED RELEASE OF A

HAZARDOUS SUBSTANCE BY THE DEFENDANT

CAUSED THE PLAINTIFF. TO INCUR RESPONSE

COSTS.

The petitioners urge this Court to grant certiorari to correct the

Fifth Circuit’s criteria for a prima facie CERCLA cost recovery

action. According to the petitioners, in this case, the Fifth Circuit

stepped out of line with other circuits by modifying the elements

set out in Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 (Sth Cir.

1989), to require “that the contaminants be on plaintiffs’ property

for the site to constitute a facility under [CERCLA].” Petition at 18

(citing Al3). In this alleged departure from Amoco, according to

the petitioners, the Fifth Circuit now requires “that response costs,

to be recoverable, must be incurred in the testing or cleaning of the

plaintiffs’ property.” Petition at 19. The petitioners contend that

this supposed amendment to Amoco puts the Fifth Circuit at odds

with Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889

F.2d 1146 (1st Cir. 1989), which allows a plaintiff to recover

CERCLA response costs even if the plaintiff did not own the land

where the contaminants were released. Petition at 19-20.

li

A. In This Case, The Fifth Circuit Acted Consistent With

Amoco and Dedham By Requiring That The Petitioners Have

Proof That A Release Or Threatened Release By Armstrong

Caused Them To Incur Response Costs.

The Fifth Circuit’s ruling in this case is consistent with

Dedham. While Dedham does not require that the plaintiff’s

property be contaminated as a prerequisite to CERCLA liability,

Dedham does require, consistent with Amoco, that the release or

threatened release of a hazardous substance caused the plaintiff to

incur response costs. Dedham, 889 F.2d at 1153 (“{T]he question is

whether the release or the threatened release by a defendant has

caused a plaintiff to incur response costs); Amoco 889 F.2d at 668

(A CERCLA cost recovery action requires “that the release or

threatened release has caused the plaintiff to incur response

costs’).

In this case, the Fifth Circuit focused on whether the Cain.

Carter or Batieste sites posed any threat of contaminating Cooper's

property. After reviewing the record, the Fifth Circuit agreed with

the district court that there was no evidence that the three sites had

contaminated or that they posed an imminent threat to the Cooper

property.’ (A6-8). Because there was no hazardous waste disposal

directly on the Cooper property, the Court had to review whether

purported wastes from the three sites could be transported to the

Cooper property via groundwater. (A8). Consistent with Daubert.

the Fifth Circuit concluded that Dr. Augenbaugh’s Opinion, the

only possible evidence of this route of transportation of wastes,

lacked a scientific foundation, was pure speculation and, therefore,

was inadmissible. (A9-11). Since no evidence existed to establish

that the three disposal sites posed a threat to pollute Cooper’s

property, the only remaining way to establish CERCLA liability

was for Cooper to establish that the hazardous substances were, in

5. Cooper is the only plaintiff submitting any proof that he incurred

alleged response costs.

12

fact, on his property, thus making his property a “facility.” The

Fifth Circuit found that this evidence was also lacking. (A12).

This analysis is consistent with Dedham. Dedham Water was

a regulated public water utility whose primary water supply was

the White Lodge Well Field. The defendant, Cumberland Farms,

discharged pollutants which eventually drained into the White

Lodge Well Field. /d. at 1148. While Dedham Water’s property

was not contaminated, its water supply source was. Therefore,

Dedham Waiter, by Cumberland Farms’ actions, had been caused to

incur response costs. /d. at 1148, 1152-53. See Dedham, 889 F.2d

at 1154 n.8 (recognizing that under Artesian Water Co. yv.

Government of New Castle County, 659 F.Supp. 1269 (D. Del.

1987), aff’d, 851 F.2d 643 (3d Cir. 1988), “there must be a causal

connection between the defendant’s conduct and the plaintiff's

incurrence of costs”) (emphasis original).

Likewise, the present case is inappropriate for the granting of

certiorari because its ruling on CERCLA liability is consistent

with other circuits. Lansford-Coaldale Joint Water Authority v.

Tonolli Corp., 4 F.3d 1209 (3d Cir. 1993), is particularly significant

because of its factual similarity to this case. The plaintiff Water

Authority sued Tonolli, the owner of an adjacent lead smelting

plant, for response costs under CERCLA. Tonolli established, as

did Armstrong in this case, that the plant was “hydrogeologically

isolated from the Authority’s water production wells so that

contamination on the Tonolli property would not migrate to the

Authority’s water supply.” /d. at 1216. The Third Circuit

determined that the district court’s finding of hydrogeological

isolation was not clearly erroneous. There being no threat of

contamination, the plaintiff was not entitled to future costs that the

authority expected it would incur if such a threat existed. /d.° See

6. The Authority was entitled to recovery of monitoring costs it had

already incurred because there was evidence that there was a “reasonable risk”

that the Tonolli plant, next to the Authority's property, would contaminate the

Authority's property. Lansford, 4 F.3d at 1218-19. Here, the record contains no

evidence that such a risk ever existed.

13

also, White v. County of Newberry, 985 F.2d 168, 174 (4th Cir.

1993) (The plaintiffs could not recover under CERCLA because

they could not show that the defendant would release the TCE so

that it would flow into the plaintiff’s well “or that the topography

of the surrounding land even would allow drainage to flow from

the County's property to the White’s well’”).’

B. A Party Has Not Been Caused To Incur Response Costs

Unless The Hazardous Substance Is Present In A

Concentration Exceeding Some Applicable Federal Or State

Standard.

The district court subdivided Amoco’s fourth element of a

prima facie CERCLA case into two parts. The plaintiff must

submit proof that the hazardous substance found at the site is “(4)

in a quantity which exceeds some federal or state standard . . . (6)

[and] the presence of the hazardous substance on the site poses an

imminent and substantial threat to health or the environment.”

(A37).

Response costs are recoverable only if the plaintiff has acted

to contain a release that threatened the public health or the

environment. Amoco, 889 F.2d at 669. Many of the suspect

substances (arsenic, cadmium, chromium and lead) complained of

by petitioners occur naturally in the environment. Thus, as noted in

Amoco, “[rjemedial actions taken in response to hazardous

substances as they occur naturally are specifically excluded from

the NCP (National Contingency Plan] and are therefore not

recoverable.” /d. The threshold issue plainly stated is “whether the

7. The petitioners further argue that /n re Beil Petroleum Services, Inc., 3

F.3d 889 (Sth Cir. 1993) is evidence that the Fifth Circuit is out of line with other

circuits on CERCLA law. Petition at 20. In Beil, the Fifth Circuit addressed the

question of joint and several liability under CERCLA. Joint and several liability

is not an issue in this case and, therefore, this case is an inappropriate vehicle for

the review of Beil.

14

particular hazard justified any response actions.” A response

action is only justified where a “legally applicable or relevant and

appropriate . . . requirement [ARAR)]” has or is threatened to be

violated by release. /d. at 671.

We hold that a plaintiff who has incurred

response costs meets the liability requirement

as a matter of law if it is shown that any release

violates, or any threatened release is likely to

violate, any applicable state or federal

standard, including the most stringent.

Amoco, 889 F.2d at 671.

1. Cooper's Well

Beginning at page 5 of the Petition, the petitioners have

reproduced a chart they presented to the Fifth Circuit which

purports to show that hazardous substance concentration levels in

Mr. Cooper’s well currently exceed the drinking water standard or

maximum contaminant level (MCL). Closer examination of the

record reveals that the chart distorts the truth.

a. Cadmium - The petitioners cite cadmium

concentrations of 10 and 20 ppb.* The petitioners selected the three

oldest samples and two of these samples were at 10 ppb, equal to,

but not exgeeding, the MCL for cadmium. In seven subsequent

samples, including one sample taken and analyzed by the

plaintiffs’ chemist, Wilma Subra, cadmium was analyzed for but

not detected. (R. Vol. 6, pp. 1979, 1981, 1992).

b. Mercury - Tests by Armstrong’s successor, Fidelity

8. The concentration measurement of ug/1 approximately equates to parts

per billion (ppb).

15

Tire Corporation (“Fidelity”), showed high concentrations of

mercury in the Cooper well and two other wells on the same date.

When these mercury levels were not repeaied in subsequent tests,

the Mississippi Department of Environmental Quality (“DEQ”)

concluded that the detection of mercury was lab error. (R. Vol. 8, p.

3132).

c. Selenium - The Cooper well was tested for selenium

On nine occasions and concentrations never exceeded the MCL of

50 ppb. (R. Vol. 9, p. 3414).?

d. Arsenic - The petitioners’ chart reports three samples

where arsenic was detected, at 3 ppb, 12.6 ppb and 12 ppb

respectively. Each result is well below the MCL of 50 ppb. On

eight other occasions, including a test by the petitioners’ chemist,

Wilma Subra, arsenic was analyzed for and not detected. (R. Vol. 6,

pp. 1979, 1981, 1991).

e. Phenol - The petitioners’ chart shows phenol detected

at 100 ppb and 1.2 ppb. The chart does not report a drinking water

standard or MCL for phenol because there is none. (R.Vol. 9. p.

3534). The petitioners had the burden of proving to the district

court that phenol exceeds a relevant standard.

f. Benzene - DEQ’s first test of Cooper’s well showed a

very high concentration of benzene (2,480 ppb). DEQ suspected

that the high benzene level was caused by lab contamination. Two

later tests confirmed that lab error occurred on the first test. The

results of the second and third tests were less than the detection

limits of 10 ppb and 5 ppb, respectively, meaning that on both

9. The selenium graph the petitioners cite to is misleading because it

appears to show MCL at about 30 ppb. Nevertheless, the only sampling result

which appears to exceed 30 ppb is “ND @ 40,” meaning that selenium was not

detected when a 40 ppb detection limit was used.

16

occasions, the benzene level was too low to detect. (R. Vol. 8,pp.

3127,3178).

2. “Cooper Stream”

The petitioners’ chart lists testing results on Cemetery Bayou

which they have renamed “Cooper Stream” for purposes of their

petition. (R. Vol. 6, p. 2016).

The petitioners’ chart alleges that the ARAR is located at 40

C.F.R. § 141.32(e) and § 141.63. Neither section provides ARARs

for fresh water streams. Part 141 of 40 C.F.R. applies only to

public water systems” that sell water. 40 C.F.R. § 141.3. There is

scant information about Cemetery Bayou in the record. One fact is

clear — the bayou is not a public water system governed by the

drinking water standards of 40 C.F.R. § 141.

Moreover, the record does not indicate that the sample was

taken on or even adjacent to Mr. Cooper’s property (Vol. 9, R.

3391); nor does it establish that the chemicals came from an

Armstrong disposal site.

3. Carter Soil

The petitioners‘ chart on page 6 of their petition purports to

establish that certain metals in the Carter soil are “above

background .. . [and] above EPA standards.” The petitioners have

not, however, cited to the Court an ARAR for these substances.

The section cited, 40 C.F.R. § 261.24, describes toxicity

characteristics used by EPA to determine whether a solid waste is a

10. To meet the definition of a “public water system,” the system must

provide piped water to the public for human consumption “if such system has at

least 15 service connections or regularly serves an average of at least 25

individuals. .. . 40C.F_.R. § 141.2.

17

hazardous substance. It is not a standard used to determine whether

a release requires a cleanup. The correct substance-to-ARAR

comparison is as follows:

Carter Soil

Substance Concentration ARAR"

Arsenic 50 ppm"? 80 ppm

Bariurn 910 ppm 4,000-6,000 ppm

Cadmium 1.69 ppm 40 ppm

Chromium 134 ppm 400 ppm

Lead 294 ppm —'"

On page 7 of their petition, the petitioners’ chart avers that

acetone is present in the Carter soil. The petitioners do not provide

the Court with the citation of a regulatory standard violated by the

concentrations cited. The petitioners’ chemist Wilma Subra’s chart

lists acetone at 7.0, 2.3 and 0.49 ppm. (R. Vol. 8, p. 3029). This is

well below the RCRA (Resource Conservation & Recovery Act 42,

U.S.C. §§ 6901-92) corrective action standard of 8000 ppm. Also

on page 7, the petitioners list ethyl benzene as a hazardous

substance present in the Carter soil. The Wilma Subra chart

referred to lists ethyl benzene at 0.22 and 0.21 ppm. (R. Vol. 8, p.

3009). This, too, is well below the RCRA corrective action

standard of 8,000 ppm.

11. The ARAR for soils is published at 57 Fed. Reg. 30798 (July 27, 1990)

(hereinafter “RCRA corrective action standard”).

12. Concentrations reported at mg/kg (for solids) and mg/1 (for liquids)

approximately equate to parts per million (ppm).

13. There is no RCRA corrective action level for lead in soils. However.

the current position on lead held by the EPA Office of Solid Waste and

Emergency Response (“OS WER”) is to allow soil concentrations of 500-1,000

ppm to remain in place in residential soils at Superfund sites. OSWER Directive

No. 9355.4-02 (Sept. 7, 1989) is reprinted in the Appendix at C.

18

4. Carter Drums

The drums at the Carter-Batieste sites were removed by

Armstrong pursuant to a BPC administrative order. (R. Vol. 6, pp. ©

2025-27; Vol. 6, p. 2015). Originally, BPC assumed that the

Batieste site was located on the Carter Property. Even if the

petitioners could establish that the Carter drums contained

hazardous substances in violative concentrations, there was and is

no remedial action left to be taken.

C. An Examination Of Mr. Cooper’s Alleged “Response

Costs” Of Itself Proves That He Has Not Acted “To ContainA

Release Threatening Health Or The Environment.”

Even without reviewing acomparison of hazardous substance

concentrations to ARARs, it is apparent that Mr. Cooper has not

incurred costs “to contain a release threatening the public health or

environment.”'* Amoco, 889 F.2d at 669-70. Mr. Cooper has not

taken the initiative to stop the spread of hazardous chemicals. The

activities of his experts were cumulative of the ongoing state and

federal site investigations and were performed to support his

common-law claims for personal injury and property devaluation,

not to protect people or the environment. The BPC began its

investigation of the Cain site on November 6, 1986 — two years

before the lawsuit was filed. The BPC and EPA concluded that no

threat to health or the environment was posed by conditions at

Cain, Carter or Batieste. (A7-8).

Nevertheless, Mr. Cooper engaged in second guessing of the

regulatory authorities and, ultimately, in the payment of expert

fees to attempt to survive summary judgment. These efforts do not

14. Wesley Cooper is the only petitioner who has presented proof in the

record of amounts expended. M:. Carter has not submitted evidence that he has

incurred response costs.

19

meet the Amoco legal standard for a CERCLA cost recovery

action.

1. Invoice of Dr. Ralph Pike

Dr. Pike’s invoice for $5,475.00 is dated on December 31,

1990, the eve of the plaintiffs’ response to Armstrong’s motion for

summary judgment. The invoice evidences second guessing by Dr.

Pike of BPC’s evaluation of environmental conditions “near the

home of Mr. Wesley Cooper.” Dr Pike reviewed documents and

prepared an affidavit in response to the motion for summary

judgment. (R.Vol. 10, pp, 4015-16). Mr. Cooper, by filing this

lawsuit, may have caused himself to incur a liability to Dr. Pike.

No environmental hazard justified Mr. Cooper’s incurring this

liability; rather, any liability to Dr. Pike was the result of Cooper’s

unsuccessful effort to maintain common-law claims for personal

injury and property devaluation. See Redland Soccer Club vy,

Department of the Army, 801 F. Supp. 1432, 1437 (M.D. Pa. 1992)

(Fees for expert witnesses are not CERCLA response costs). It is

also important to note that there is no evidence in the record that

Mr. Cooper has paid Dr. Pike anything.

2. Invoice of Subra Company

The record contains one statement from Wilma Subra for

$4,105.00. (R. Vol. 10, pp. 3035). Below is an item by item review

of this invoice.

a. August 18, 1987. Subra sampled and analyzed well

water which by this time had been tested three times by BPC and

once each by Fidelity, EPA and the State Board of Health. BPC

found no benzene present on its first retest and EPA concluded

from its tests that no contaminants “approach a level of concern”

nor do they “indicate that a public health threat exists from the use

and consumption of the area groundwater.” (R.Vol. 6, pp. 2039-

20

40). BPC’s study of the Carter drums had been ongoing for over

eight months and had not yet found a hazard to human health posed

by the site. (R. Vol. 6, pp. 2017A, 2039-41).

b. February 12, 1988. Subra analyzed a “split” sample

which was also being analyzed by BPC and Fidelity’s consultant,

Malcolm Pirnie, Inc. (R. Vol. 6, p. 2042).

c. May 31, 1988. Subra sampled and analyzed material

from a drum at the Batieste site. At the time of this sampling,

Fidelity was already proceeding under an administrative order

issued by BPC to investigate Batieste. (R. Vol. 6, p.2017A)

d. June 28, 1988. Subra sampled and analyzed a water

well of Geeva Monk and a drum at Carter. By this time, Fidelity

was investigating Carter under a second adminstrative order issued

by BPC. (R. Vol. 6, pp. 2044-46).

e. August 29, 1988. Subra sampled and analyzed drums

and soil at Carter. At this point, BPC had been investigating Carter

for over twenty months (R.Vol. 6, p. 2039), drums had been

sampled by BPC twice, the Carter soil had been sampled by both

BPC and EPA (R. Vol. 6, pp. 2040-41), Fidelity completed its first

investigation of Carter pursuant to a BPC administrative order and

was working on the Phase II investigation (R. Vol. 6, pp. 2043-47).

f. September 23, 1988. Subra took more well water

samples after 1) the extensive sampling referred to in no. 1, above,

and 2) an additional round of well sampling by BPC in August

1988. (R. Vol. 6, p. 2047).

g. September 19, 25, 1989. This effort by Subra

consisted of ground water testing and soil borings at the Cain site.

At this time, BPC’s investigation of Cain had been ongoing for

nearly three years. (R. Vol. 6, p. 2039). BPC had tested sediment

21

and drum samples at Cain in April 1987. EPA had taken a round of

samples and had determined there was no health threat posed by

the site. (R. Vol. 6, p. 2040). BPC had collected a third round of

drum samples (R. Vol. 6, pp. 2040-41). BPC had issued and Fidelity

had complied with an administrative order for further investigation

of Cain. (R. Vol. 6, pp. 2041-43). As part of its compliance with the

first administrative order, Fidelity’s consultant had tested and

analyzed more drum samples and monitoring well samples.

(R.Vol. 6, pp. 2042-43). Fidelity had also conducted further

investigation of Cain under administrative orders issued in June

1988 and August 1989. (R, Vol. 6, pp. 2017A, 2044-47).

h. October 16, 1989. On this date, Subra tested two

water discharge points at the Armstrong tire plant site. This testing

has no apparent link to Cain, Carter or Batieste sites which are

several miles away.

A second bill, for $6,940.00, reflects partial payment and

covers the “collection and analysis of monitoring wells and water

well samples and soil borings” in September 1989. (R. Vol. 10, p.

3036). This bill also contains $2,640.00 in billings dated

December 1990, apparently for preparing a response to

Armstrong’s motion for summary judgment.

D. The Petitioners Were Properly Denied A Declaratory

Judgment.

Petitioners assert that CERCLA requires that parties only

sustain some response costs to be entitled to a declaratory

judgment on liability. Petition at 21. However, declaratory

judgments are governed by 28 U.S.C. § 2201 and as explained in

Maryland Casualty Co. v. Pacific Coal & Oil Co., 61 S. Ct. 510

(1941), in order for a case to be justiciable under the Declaratory

Judgment Act, it must present “a substantial controversy, between

parties having adverse legal interests, of sufficient immediacy and

reality to warrant the issuance of a declaratory judgment.” /d. 61 S.

22

Ct. at 512. In this case, after more than five years, petitioners have

not removed or remediated anything and have not incurred

recognizable response costs. Hence, declaratory judgment on

liability was not an appropriate option for the district court.

The cases relied on by the petitioners are not authority for the

proposition that merely incurring “some response costs” entitles a

private party to declaratory judgment on the issue of liability. In

State ex rel. Brown v. Georgeoff, 562 F. Supp. 1300 (N.D. Ohio

1983), it was the State of Ohio and not private parties which

brought the action to collect costs related to cleaning up a dump

from former owners, operators, generators and transporters. As

noted by the district court, “the controversy has advanced to a very

‘real’ level. Ohio alleges that it has already sustained at least

$825,000.00 in damages ....” Jd. at 1316. In Kelly v. Thomas

Solvent Co., 727 F. Supp. 1532 (W.D. Mich. 1989). tue State of

Michigan and nota private party, brought an action ir: ;“gonse to

established groundwater contamination. United States v. rlardage,

733 F. Supp. 1424 (W.D. Okla. 1989) was an action by the United

States which sought partial summary judgment for response costs

incurred in cleaning up the Hardage site. The district court found

that the United States had incurred $5,441,201.25 of response

costs and granted judgment for that amount and, in addition,

granted a declaratory judgment for liability for future response

costs associated with the site. Moreover, the declaratory judgment

in the government’s favor was reversed on appeal. United States v.

Hardage, 982 F.2d 1436 (10th Cir. 1992), cert. denied, 1145S. Ct.

300 (1993). Wellesley Hills Realty Trust v. Mobil Oil Corp., 747 F.

Supp. 93 (D.Mass. 1990) was not a CERCLA case but, instead, an

action under Massachusetts law by acurrent landowner against the

former landowner who had contaminated the site.

There is no authority for the proposition that costs expended in

furtherance of common law tort claims demand that the trial court

23

grant declaratory judgment adjudicating liability for future

CERCLA removal or remediation costs.

ITI.

UNDER MISSISSIPPI LAW, A MARKET STIGMA IS

NOT A COMPENSABLE DAMAGE, ABSENT A

CONFIRMED PHYSICAL PROPERTY DAMAGE OR A

CONFIRMED THREAT OF PHYSICAL PROPERTY

DAMAGE.

The petitioners argue that the district court ignored

Mississippi law that “monetary damages include decreased market

value caused by the stigma associated with the public discovery

that hazardous wastes were placed on the property.” Petition at 25.

As the district court noted, however, the petitioners’ expert

discerned that their property values declined because of a

perception that hazardous wastes were presently on the property,

not because proof confirmed that such wastes were present.

Petitioners’ real estate expert Douglas Upchurch opined that

because of a stigma Cooper’s property would be depreciated bv 28

to 33 percent of its otherwise fair market value. (R. Vol. 6, p. 2408).

As for the Carter property, he opined a fair market value of $50,000

and a zero value due to the stigma associated with the property.

(R.Vol. 6, p. 2412). Upchurch’s opinions were founded on the

erroneous premise that the properties were contaminated and that

Mr. Cooper’s well was polluted. (R. Vol. 6, pp. 2405, 2410).

In rejecting Upchurch’s opinion of damage arising from

stigma, the district court determined that under Mississippi law “a

market stigma is not a compensable damage absent a confirmed

physical property damage or a confirmed threat of physical

property damage.” (R.Vol. 10, pp. 4147-48) (citing Dennery vy.

Hughes, 214 Miss. 687, 59 So.2d 316 (1952)). In Dennery,

24

plaintiffs sought to enjoin the establishment of a cemetery in the

vicinity of their homes. They alleged that the cemetery would

cause them to suffer irreparable damage in their property values.

The Mississippi Supreme Court refused to regard the cemetery’s

supposed effect on perceived property values as an actionable

harm.

The petitioners attack the district court’s stigma ruling

contending “that the presence of hazardous substances under a

citizen’s home, in a citizen's well, or in a citizen's stream” is

“ ‘confirmed physical property damage.’ ” Petition at 25. As the

district court recognized, based on the record, the petitioners have

failed to create an issue of fact about stream pollution, well

pollution, or hazardous substances under or on petitioners,

properties. Case law relied on by the petitioners does not excuse

the absence of confirmed physical property damage or interference

with the plaintiff's enjoyment of his property. See City of Jackson

v. Filtrol Corp., 624 F.2d 1384 (Sth Cir. 1980) (PCP from the

defendant’s plant polluted the plaintiff's lake in sublethal

concentrations); Phillips v. Davis Timber Co., 468 So. 2d 72 (Miss.

1985) (PCP from the defendant’s wood treatment plant polluted

plaintiff’s lake); Bynum v. Mandrel Indus., Inc., 241 So.2d 629,

631 (Miss. 1970) (The defendant exploded dynamite on the

plaintiff's property, damaging plaintiff’s ponds); Love Petroleum

Co. v. Jones, 205 So.2d 274 (Miss. 1967) (Oil and salt water from

the defendant’s oil well fed into a creek running across plaintiff's

land, killing trees and fish); Central Oil Co. v. Shows, 246 Miss.

300, 149 So.2d 306 (1963) (Chemicals from defendant’s slush pit

escaped onto the surface of plaintiff’s property); City of Oxford v.

Spears, 228 Miss. 433, 87 So.2d 914(1956) (City discharged raw

sewage into a creek running across plaintiff's land); Edge v. City of

Booneville, 226 Miss. 108, 83 So.2d 801 (1955) (Obnoxious odors

and popping noises from the defendant’s natural gas reduction

station fifty feet away from the plaintiff's property reduced the

plaintiff’s property value); Masonite Corp. v. Steede, 198 Miss.

25

530, 23 So.2d 756 (1945) (Defendant’s plant polluted the river,

causing fish kills. Plaintiff’s fishery, located on the river, went out

of business); Masonite Corp. v. Dennis, 175 Miss. 855, 168 So. 613

(1936) (Plaintiff's case was dismissed for lack of evidence).

[t follows that the district court’s rejection of appraiser

Upchurch’s opinion and the plaintiffs’ claims for property damage

based on market stigma was properly sustained by the Fifth

Circuit.

CONCLUSION

For the reasons stated, Respondent respectfully requests this

Court to deny the petition for writ of certiorari.

Respectfully submitted,

ROBERT H. WEAVER

Counsel of Record

ERNEST G. TAYLOR, JR.

MICHAEL T. DAWKINS

WATKINS LUDLAM & STENNIS

Attorneys for Respondent

633 North Stat Street

Post Office Box 427

Jackson, Mississippi 39205

(601) 949-4900

la

APPENDIX A — FEDERAL STATUTORY PROVISIONS

42 U.S.C. § 9601(9) (1993).

The term “facility” means (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 container, motor vehicle,

rolling stock, or aircraft, or (B) any site or area where a hazardous

substance has been deposited, stored, disposed of, or placed, or

otherwise come to be located; but does not include any consumer

product in consumer use or any vessel.

42 U.S.C. § 9601(14) (1993).

The term “hazardous substance” means (A) any substance

designated pursuant to section 1321(b)(2)(A) of Title 33, (B) any

element, compound, mixture, solution, or substance designated

pursuant to section 9602 of this title, (C) any hazardous waste

having the characteristics identified under or listed pursuant to

section 3001 of the Solid Waste Disposal Act (42 U.S.C.A. § 6921

(but not including any waste the regulation of which under the

Solid Waste Disposal Act [42 U.S.C.A. § 6901 et seq.}] has been

suspended by Act of Congress), (D) any toxic pollutant listed

under section 1317(a) of Title 33, (E) any hazardous air pollutant

listed under section 112 of the Clean Air Act [42 U.S.C.A. § 7412],

and (F) any imminently hazardous chemical substance or mixture

with respect to which the Administrator has taken action pursuant

to section 2606 of Title 15. The term does not include petroleum,

including crude oil or any fraction thereof which is not otherwise

specifically listed or designated as a hazardous substance under

subparagraphs (A) through (F) of this paragraph, and the term does

not include natural gas, natural gas liquids, liquefied natural gas, or

synthetic gas usable for fuel (or mixtures of natural gas and such

synthetic gas).

2a

Appendix A

42 U.S.C. § 9607(a) (1993).

(a) Notwithstanding any other provision or rule of law, and

subject only to the defenses set forth in subsection (b) of this

section—

(1) the owner and operator of a vessel or a facility,

(2) any person who at the time of disposal of any hazardous

substance owned or operated any facility at which such hazardous

substances were disposed of,

(3) any person who by contract, agreement, or otherwise

arranged for disposal or treatment, or arranged with a transporter

for transport for disposal or treatment, of hazardous substances

owned or possessed by such person, by any other party or entity, at

any facility or incineration vessel owned or operated by another

party or entity and containing such hazardous substances, and

(4) any person who accepts or accepted any hazardous

substances for transport to disposal or treatment facilities,

incineration vessels or sites selected by such person, from which

there is a release, or a threatened release which. causes the

incurrence of response costs, of a hazardous substance, shall be

liable for —

(A) all costs of removal or remedial action

incurred by the United States government or a

State or an Indian tribe not inconsistent with

national contingency plan;

(B) any other necessary costs of response

incurred by any other person consistent with

the national contingency plan;

3a

Appendix A

(C) damages for injury to, destruction of,

or loss of natural resources, including the

reasonable costs of assessing such injury,

destruction, or loss resulting from such a

release; and

(D) the costs of any health assessment or

health effects study carried out under section

9604(1) of this title.

The amounts recoverable in an action under this section shall

include interest on the amounts recoverable under subparagraphs

(A) through (D). Such interest shall accrue from the later of (i) the

date payment of a specified amount is demanded in writing, or (ii)

the date of the expenditure concerned. The rate of interest on the

outstanding unpaid balance of the amounts recoverable under this

section shall be the same rate as is specified for interest on

investments of the Hazardous Substance Superfund established

under subchapter A of chapter 98 of Title 26. For purposes of

applying such amendments to interest under this subsection, the

term “comparable maturity” shall be determined with reference to

the date on which interest accruing under this subsection

commences.

4a

APPENDIX B — FEDERAL RULES OF EVIDENCE

Fed. R. Evid. 702.

If scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to determine a

fact in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in the form

of an opinion or otherwise.

Fed. R. Evid. 703.

The facts or data in the particular case upon which an expert

bases an opinion or inference may be those perceived by or made

known to the expert at or before the hearing. If of a type reasonably

relied upon by experts in the particular field in forming opinions or

inferences upon the subject, the facts or data need not be

admissible in evidence.

Sa

APPENDIX C — OSWER DIRECTIVE # 9355.4-02

PURPOSE

The purpose of this directive is to set forth an interim soil

cleanup level for total lead, at 500 to 1000 ppm, which the Office of

Emergency and Remedial Response and the Office of Waste

Programs Enforcement consider protective for direct contact at

residential settings. This range is to be used at both Fund-lead and

Enforcement-lead CERCLA sites. Further guidance will be

developed after the Agency has developed a verified Cancer

Potency Factor and/or a Reference Dose for lead.

BACKGROUND

Lead is commonly found at hazardous waste sites and is a

contaminant of concern at approximately one-third of the sites on

the National Priorities List (NPL). Applicable or relevant and

appropriate requirements (ARARS) are available to provide

cleanup levels for lead in air and water but not in soil. The current

National Ambient Air Quality Standard for lead is 1.5 ug/m?.

While the existing Maximum Contaminant Level (MCL) for lead

is 50 ppb, the Agency has proposed lowering the MCL for lead to

10 ppb at the tap and to 5 ppb at the treatment plant”. AMaximum

Contaminant Level Goal (MCLG) for lead of zero was proposed in

1988. At the present time, there are no Agency-verified

toxicological values (Reference Dose and Cancer Potency Factor,

i.¢., slope factor), that can be used to perform a risk assessment and

to develop protective soil cleanup levels for lead.

Efforts are underway by the Agency to develop a Cancer

Potency Factor (CPF) and Reference Dose (RfD), (or similar

approach), for lead. Recently, the Science Advisory board strongly

suggested that the Human Health Assessment Group (HHAG) of

the Office of Research and Development (ORD) develop a CPF for

6a

Appendix C

lead, which was designated by the Agency as a B2 carcinogen in

1988. The HHAG is in the process of selecting studies to derive

such a level. The level and documentation package will then be

sent to the Agency’s Carcinogen Risk Assessment Verification

Exercise (CRAVE) workgroup for verification. It is expected that

the documentation package will be sent to CRAVE by the end of

1989. The Office of Emergency and Remedial Response, the

Office of Waste Programs Enforcement and other Agency

programs are working with ORD in conjunction with the Office of

Air Quality Planning and Standards (OAQPS) to develop an RfD,

(or similar approach), for lead. The Office of Research and

Development and OAQRS will develop a level to protect the most

sensitive populations, namely young children and pregnant

women, and submit a documentation package to the Reference

Dose workgroup for verification. It is anticipated that the

documentation package will be available for review by the fall of

1989.

IMPLEMENTATION

The following guidance is to be implemented for remedial

actions until further guidance can be developed based on an agency

verified Cancer Potency Factor and/or Reference Dose for lead.

Guidance

This guidance adopts the recomendation contained in the

1985 Centers for Disease Control (CDC) statement on childhood

lead poisoning” and is to be followed when the current or

predicted land use is residential. The CDC recommendation states

that “.. . lead in soil and dust appears to be responsible for blood

levels in children increasing above background levels when the

ooncentration in the soil or dust exceeds 500 to 1000 ppm.” Site-

Se on

7a

Appendix C

specific conditions may warrant the use of soil cleanup levels

below the 500 ppm level or somewhat above the 1000 ppm level.

The administrative record should include background documents

on the toxicology of lead and information related to site-specific

conditions.

The range of 500 to 1000 ppm refers to levels for total lead, as

measured by protocols developed by the Superfund Contract

Laboratory Program. Issues have been raised concerning the role

that the bioavailability of lead in various chemical forms and

particle sizes should pay in assessing the health risks posed by

exposure to lead in soil. At this time, the Agency has not developed

a position regarding the bioavailability issue and believes that

additional information is needed to develop a position. This

guidance may be revised as additional information becomes

available regarding the bioavailability of lead in soil.

Blood-lead testing should not be used as the sole criterion for

evaluating the need for long-term remedial action at sites that do

not already have an extensive, long-term blood-lead data base",

EFFECTIVE DATE OF THIS GUIDANCE

This interim guidance shall take effect immediately. The

guidance does not require that cleanup levels already entered into

Records of Decisions, prior to this date, be revised to conform with

this guidance.

8a

Appendix C

1. In one case, a biokinetic uptake model developed by the

Office of Air Quality Planning and Standards was used for a site-

specific risk assessment. This approach was reviewed and

approved by Headquarters for use at the site, based on the

adequacy of data (due to continuing CDC studies conducted over

many years). These data included all children’s blood-lead levels

collected over a period of several years, as well as family socio-

economic status, dietary conditions, conditions of homes and ©

extensive environmental lead data, also collected over several

years. This amount of data allowed the Agency to use the model

without a need for extensive default values. Use of the model thus

allowed a more precise calculation of the level of cleanup needed

to reduce risk to children based on the amount of contamination

from all other sources, and the effect of contamination levels on

blood-lead levels of children.

REFERENCES

1. 53 FR31516, August 18, 1988.

2. 53 FR31521, August 18, 1988.

3. Preventing Lead Poisoning in Young Children, January

1985, U.S. Department of Health and Human Services, Centers for

Disease Control, 99-2230.