Petition for Writ of Certiorari — Alcan Aluminum Corp. v. United States
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Supreme Court, U.S
‘
'
FILED
b ae 49 4 WAR 14 1997
oFFICE OF THE CLERK
NO.
IN THE
Supreme Court of the United States
October Term, 1997
ALCAN ALUMINUM CORPORATION,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Lawrence A. Salibra, II
Counsel of Record
William S. Sessions
Thomas D. Lambros
Susan H. Abramson
Alcan Aluminum Corporation
6060 Parkland Boulevard
Mayfield Heights, Oh 44124-4185
(216) 423-6918
Attorneys for Petitioner Alcan
Aluminum Corporation
I].
If.
IV.
i
QUESTIONS PRESENTED
Whether The United States Court Of Appeals
For The Third Circuit Erred In Holding That
Causation Is Not An Element Of CERCLA
Section 107(a) Liability.
Whether the United States Court of Appeals
For The Third Circuit Erred In Holding That
Concentration Thresholds Are Not Implicit In
The Definition of Hazardous Substances In
CERCLA Section 101(14), Thereby Expanding
The Definition To Encompass Everything In
The Universe.
Whether The United States Court Of Appeals
For The Third Circuit Erred In Shifting The
Burden To Alcan To Prove The Absence Of
Causation In Order To Limit Or Avoid
CERCLA Section 107(a) Liability And Ease
Government Enforcement Efforts.
Whether The United States Court Of Appeals
For The Third Circuit Erred In Requiring
Alcan To Prove Its Emulsion As A Whole Was
Environmentally Harmless In Order To Limit
Or Avoid CERCLA Section 107(a) Liability,
Even Though The Emulsion Contained None
Of The Hazardous Substances Which
Triggered EPA’s CERCLA Response.
SS
ii
V. Whether The United States Court Of Appeals
For The Third Circuit Erred In Ignoring
Alcan’s Motion To Dismiss For Lack Of
Subject Matter Jurisdiction And Thus Failing
To Apply To CERCLA The _ Strong
Presumption Against Retroactivity In The
Manner Articulated By This Court In
Landgraf v. USI Film Productions, 511 U.S.
244 (1994).
ill
RULE 29.6 STATEMENT
Petitioner, .*lcan Aluminum Corporation, is a
wholly owned subsidiary of Alcan Aluminium Limited,
a corporation organized and existing under the laws of
Canada.
iv
TABLE OF CONTENTS
QUESTIONS PRESENTED.......ccccccccssssccessocevecs i
RULE 29.6 STATEMENT 5 ccicscicccssisecssisceeseostess iii
SAE CFF CIPS INES snsitnnnicncibuchacvesinsnevnanccerce iv
TABLE OF AUTHORITICG. ..ccccsccsscncsssvsscerssceesss Vili
PP aR IPERE PRON s cscacyrcrcaasscsouseussbaaias ccceacnmai ]
STi GPTRED TORO, civ icesiogs Ségveibuasavncaecicinawasausesiaaais 2
CONSTITUTIONAL PROVISIONS
AND STATUTES INVOLVED. ...............0..0000.
STATEMENT OF THE CASE...........cccccccsssssseees
REASONS FOR GRANTING THE
WIRES GON Scteeed PROAUEE avscsiedsncadseasaseendscrdeuceeuce 9
I. THIS COURT SHOULD GRANT ALCAN'S
PETITION FOR CERTIORARI TO RESOLVE
A CONFLICT AMONG THE COURTS OF
APPEALS AND AT THE SAME TIME
SETTLE AN IMPORTANT QUESTION OF
FEDERAL LAW CONCERNING THE SCOPE
OF LIABILITY UNDER SECTION 107(A) OF
CMMs ci aksck vecrvccababnaietarededieaeesaeciibaees ies 9
A. This Court Should Settle The
Important Question Of Whether
Causation Is An Element Of
CERCLA’S Liability Scheme ............... 11
B. This Court Should Resolve The
Conflict Among The Courts Of
Appeals For The Second, Third,
And Fifth Circuits Concerning
The Standard For Proving
Divisibility OF Hariri ........c.scsesccsscneseess 15
II.
Vv
C. The Failure Of The Three-Judge
Panel In Alcan-Butler ITTo Follow
The Law Of The Case In Alcan-
Butler I So Far Departs From
The Accepted And Usual Course
Of Judicial Proceedings That It
Calls For An Exercise Of This
Court's Supervisory Power...............+++ 17
THIS COURT SHOULD GRANT ALCAN'S
PETITION FOR CERTIORARI BECAUSE
THE LOWER COURT'S CONSTRUCTION
OF THE DEFINITION OF “HAZARDOUS
SUBSTANCE” IN SECTION 101(14) OF
CERCLA TO ENCOMPASS EVERYTHING
IN THE UNIVERSE CONFLICTS WITH
RELEVANT DECISIONS OF THIS COURT
REGARDING STATUTORY CONSTRUCTION,
RAISES SIGNIFICANT CONSTITUTIONAL
ISSUES AND REQUIRES GENERATORS
OF INNOCUOUS WASTE TO SUBSIDIZE
THOSE WHOSE WASTE CAUSED THE
TYPE OF INJURY WHICH CERCLA WAS
TRULY MEANT TO ADDRESS. ............0:000808 18
A. This Court Should Grant Alcan's
Petition For Certiorari To Restore
Common Sense To The Meaning
Of Hazardous Substances Under
CERCLA Section 101(14)...........00s0ee0 18
vi
B. This Court Should Grant Alcan's
Petition For Certiorari Because The
Construction Given Section 107(A)
Of CERCLA By The Court Below
Renders The Statute Void For
Vagueness And Violates The Due
Process Clause Of The United States
Constitution Because Such Construction
Provides No Rational Basis For
Distinguishing Between Potential
Responsible Parties Who May Be
Held Liable And Those
WEN SN PHRIE css ccs benbosadienss Vasdoneeh dos esses 23
C. This Court Should Grant Certiorari
Because The Decision By The Alcan-
Butler IT Panel To Uphold CERCLA
Liability When The Hazardous
Substances That Triggered Liability
Are Irrelevant To The Response Action
Is An Exercise Of Legislative Power
And Effectively Amends The Statute
To Delete The Definition Of Hazardous
Substances; It Violates Article III Of
The Constitution Defining The
Separation Of Powe .............scccesssccseeees 24
D. The Court Should Grant Certiorari
Since The Court Of Appeals Failed
To Acknowledge The Legal Standard
Articulated By This Court In Landgraf
v. USI Film Products On The Issue
Ae, SN isaac nist cis aenccpesiece ican 26
CAAA APTIUIIN Velbas daleounrcivicede fescchitbvhstawcarecacaioes 30
APPENDIX:
United States v. Alcan Aluminum Corp.,
Memorandum Opinion and Order,
Mary &, 1991 ...c.cseccssccservevscsrscccsccesscnsceesssaees
United States v. Alcan Aluminum Corp.,
Order, May 8, 1991..........c..coscssscossesssscreees
United States v. Alcan Aluminum Corp.
064 F.2d 252 (Sd Cir, 2991) .....ccccccorsvcvsvcees
United States v. Alcan Aluminum Corp.
892 F. Supp. 648 (M.D. Pa. 1995)..............
United States v. Alcan Aluminum Corp.
755 F. Supp. 531 (N.D.N.Y 1991)...............
United States v. Alcan Aluminum Corp.
Judgment Order, Aug. 22, 1996 ..............4.
United States v. Alcan Aluminum Corp.
Sur Petition for Rehearing, Dec. 16, 1996..
United States v. Alcan Aluminum Corp.
96 F.3d 1434 (3d Cir. 1996)...........:eceeereee
United States v. J.B. Stringfellow,
Transcript of Proceedings, Nov. 13, 1996...
ee S, © LPR NE Re oe Ot teat eNO ENTE
i a See ee
RPT POs casein
ee a ey em Renae ey ane e pea
OTE ii ic. onsiansncgavactons
SPU OC 00607 ook. a ee.
Viii
TABLE OF AUTHORITIES
Cases
Acushnet Company v. Coaters, Inc.,
937 F.Supp. 988 (D. Mass. 1996)............. 12-15,20-23
Amoco v. Borden, Inc.,
889 F.2d 664 (Sth Cir. 1989) .........cccccccecssesses 21
Brockert v. Skormika,
TIL B.2d 3376. C7tr Cir, 19GB) o. icciecsvcdvevccesse 23
Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc.
RAD UG FE GAGES os ecitnceccersthainddincvcvslavinsas 19
Dedham Water Co. v. Cumberland Farms Dairy,
889 F.2d 1146 (let Cir. 1989) ..................0008 12-14
Farmland Indus. v. Morrison-Quirk Grain Corp.,
987 F.2d. 1335 (Sth Cir. 1993)......cccccccocscoess, 12
Landgraf v. USI Film Products,
Eh Week eee CATT siniccrechiecssuksacenoinivenstents 8,26,28,30
Smith v. Goguen, 415 U.S. 566(1974)............. 23
United States v. Alcan Aluminum Corp.,
1996 U.S. Dist. LEXIS 16351
CIN. ED.ES. EF « GR, Bale AONE Acbinecdnssscadaiesusarssdnacees 17
United States v. Alcan Aluminum Corp.,
755 F. Supp. 531 (N.D.N.Y. 1991)................. 1,17
United States v. Alcan Aluminum Corp,
892 F. Supp. 648 (M.D. Pa. 1995)................... passim
ee ee
tick amee tribal. tes aire: “ig D4 da *
ix
United States v. Alcan Aluminum Corp.,
96 F.3d 1434 (34 Cir. 1996) viciscsecsscccccnscorecees 1,8
United States v. Alcan Aluminum Corp.,
964 FP. 24 252 (S60 Cir. TGGS) ....sccccccsccvsescssess passim
United States v. Alcan Aluminum Corp.,
O90 Fie FEE Ae Ca (TSS) iii ecectvenrccscereeese 1,11-16
United States v. Anderson, Greenwood & Co.,
1996 LEXIS 6206 (S.D. Tex. 1996)........... ee os 22
United States v. Bell Petroleum Services,
G4 FSG BOD FB CAE. DIGS a ssciscccssccssssesceses 16,17,21
United States v. Knote,
818 F. Supp. 1280 (E.D. Mo. 1993).............+ AY
United States v. Olin Corp.,
927 F.Supp. 1502 (S.D. Al. 1996)...............46 8,26-28
United States v. Sequa Corp. (In Re Bell Petroleum
Services), 3 F.3d 389 (Sth Cir. 1993) ............. 16,21
United States v. Standard Oil Co.,
OR EES a ee ack eens i i iis eed 19
United States v. Stringfellow,
661 F. Supp. 1053 (C.D: Cal. 1987) .............. 21
United States v. Stringfellow,
Transcript of Proceedings, Nov. 13, 1996..... 28-30
Constitutional Provisions
U. 8S, Conatitution Articie TIL ......0.ccccccocccscsovenss 3,24
Statutes
~ ENR Cok Bi | SNES Etec Orn 3,9
eS Ele Dt 2 Rxeeaeteaeds seeps rig epee eet oe 2
y RIE Re FS. Ree reer een Ver rer eae 2,9
BF UT De vices cnissncch sins olaktinnnepentiedonans 3,4
ED UF a aa hak inas foceiceactincciabiniinieeanandenes 3,4,8,12
0B UGC. © OG Be iin Bhi 2,3,9
Other Authorities
Restatement (Second) of Torts, § 433A............. 6
Rule 10 of the Supreme Court
CE Cie VIRIGE TIGIE: vcscsacénvsccccicckscksccnasssciaeansi 3
Joseph F. Weis Jr., Disconnecting the Overloaded
Circuits—A Plug for a Unified Court of Appeals,
39 St. Louis LJ. 455 (1995) .........5....0....00..0005. 10,17
William H. Rehnquist,
The Changing Role of the Supreme Court,
14 Fia. St. U.L. Rev. 1 (1966) «...........05....8.5. ae)
NO.
IN THE
Supreme Court of the United States
October Term, 1997
ALCAN ALUMINUM CORPORATION,
Petitioner,
Vv.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT
PETITION FOR WRIT OF CERTIORARI
1
OPINIONS BELOW
The Memorandum Opinion and Order of the United
States District Court for the Middle District of
Pennsylvania adopting the Report and Recommendation
of the Magistrate Judge which relied on the decision of
the United States District Court for the Northern District
of New York in United States v. Alcan Aluminum Corp.,
755 F. Supp. 531 (N.D.N.Y. 1991), printed in the
Appendix at A-75, granting summary judgment in favor
of the United States, was issued on May 8, 1991. That
Memorandum Opinion is unreported and is printed in
the Appendix at A-1; the Order dated May 8, 1991 is
printed in the Appendix at A-3.
The Opinion of the United States Court of Appeals
for the Third Circuit reversing the grant of summary
judgment and remanding the case for a hearing on
apportionment of harm is reported at 964 F.2d 252
(3d Cir. 1992), and printed in the Appendix at A-4.
The Memorandum Opinion and Order of the
United States District Court for the Middle District of
Pennsylvania granting summary judgment in favor of
the United States and denying petitioner’s motion for
summary judgment is reported at 892 F. Supp. 648
(M.D. Pa. 1995), and printed in the Appendix at A-5O.
Petitioner’s Motion for Reconsideration or to Alter or
Amend the Judgment was denied by Memorandum
Opinion and Order and Order dated October 4, 1995.
The Memorandum Opinion and Order is unreported
and is printed in the Appendix at A-103.
The Judgment Order of the United States Court of
Appeals for the Third Circuit affirming the decision of
the district court without opinion is reported at 96 F.3d
1434 (3d Cir. 1996), and is printed in the Appendix at
A-102.
2
The Order denying Petitioner’s Request for
Rehearing with Suggestion for Rehearing In Banc was
entered December 16, 1996. The Order is unreported
and is printed in the Appendix at A-105.
JURISDICTION
Subject matter jurisdiction in the United States
District Court for the Middle District of Pennsylvania
was predicated on § 113(b) of CERCLA, 42 U.S.C. §
9613(b) and 28 U.S.C. § 1345. A Memorandum
Opinion and Order was issued by the district court on
May 8, 1991 adopting the Magistrate Judge’s Report,
granting the United States’ motion for summary
judgment and entering judgment in favor of the
United States in the amount of $473,790.18.
Petitioner timely appealed to the United States
Court of Appeals for the Third Circuit in accordance
with 28 U.S.C. § 1291 on June 5, 1991. The Court of
Appeals remanded the case to the district court for a
hearing on the issue of the apportionment of harm in
an Opinion dated May 14, 1992.
The United States District Court for the Middle
District of Pennsylvania granted the United States’
Motion for Summary Judgment on remand in a
Memorandum Opinion and Order dated June 28,
1995. Petitioner filed a Motion for Reconsideration or
to Alter or Amend the Judgment on July 13, 1995,
which was denied by Memorandum Opinion and
Order dated October 4, 1995.
Petitioner filed a timely Notice of Appeal to the
United States Court of Appeals for the Third Circuit
on October 24, 1995. The Court of Appeals affirmed
the district court without opinion in a Judgment
Order dated August 22, 1996. Petitioner filed a
3
Petition for Rehearing with Suggestion for Rehearing
In Banc on October 7, 1996. That Petition was denied
by Order dated December 16, 1996.
The jurisdiction of the Supreme Court of the
United States is invoked pursuant to 28 U.S.C.
§1254(1), and in accordance with Rule 10 of the Rules
of the Supreme Court of the United States.
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED
U. S. Constitution art. III.
Section 101(14) of CERCLA, 42 U.S.C. 9601(14).
Section 107(a) of CERCLA, 42 U.S.C. 9607(a).
STATEMENT OF THE CASE
In the late 1970's petitioner Alcan Aluminum
Corporation (“Alcan”) produced a waste rolling oil
emulsion which consisted of 95% water and 5%
mineral oil (a biodegradable organic material similar
to petroleum jelly) (the “Emulsion”). From mid-1978
through late 1979, Alcan paid a state licensed oil
recycler to treat the Emulsion and reclaim the oil.
Instead, unknown to Alcan, the recycler disposed of
the Emulsion, along with the wastes of other
customers, by dumping it into an abandoned coal
mine adjacent to the Susquehanna River known as
Butler Tunnel (the “Tunnel”).
In September 1985, Hurricane Gloria swept
through the area. As a result of excessive rainfall
associated with the hurricane, wastes that had been
deposited in the Tunnel during the late 1970's were
released into the Susquehanna River (“the Release”).
4
The United States Environmental Protection Agency
(“EPA”) responded to the Release under the
Comprehensive Environmental Response,
Compensation and Liability Act , 42 U.S.C. § 9607 et
seq. (“CERCLA”) (the “Response”) after having
identified certain “hazardous substances”, as that
term is defined in section 101(14) of CERCLA, 42
U.S.C. § 9601 (14) (“CERCLA Hazardous Substances”).
In November 1989, respondent the United States
of America (the “Government”) sued 20 defendants,
including Alcan, under section 107(a) of CERCLA, 42
U.S.C. § 9607(a), to recover $1,302,290.18 in
remediation costs. Section 107(a) imposes liability for
response costs caused by an actual or threatened
release of CERCLA Hazardous Substances. The
evidence is uncontroverted that neither the water nor
the mineral oil of the Emulsion is a CERCLA
Hazardous Substance. It is also uncontroverted that
the Emulsion contained none of the CERCLA
Hazardous Substances identified by EPA as having
necessitated the Response.’
The Government recovered a disproportionately
small percentage of EPA's response costs from other
defendants whose wastes did contain the CERCLA
Hazardous Substances which triggered the Response.
The Government then moved for summary judgment
against Alcan seeking the imposition of joint and
several liability for $473,790.18 in unreimbursed
response costs.
‘The Response was driven by 17 “hazardous substances”
which were identified as “Consent Order Constituents” and
ranged from benzene to xylene. Joint Appendix on Remand
in the District Court at 170.
Seite Pale i pre Mit ty Ri aie
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Dad ee
Pe Ria SR Tn werd e
)
The Government's case rested exclusively on the
presence of low-level (“trace”) heavy metal compounds
(“Trace Metals”) in the Emulsion. These Trace Metals
are ubiquitous. They occur virtually everywhere,
including air, water and soil, in higher concentrations
than in the Emulsion. Moreover, EPA had identified
no metals problem in the Release. In fact, neither the
Emulsion as a whole nor any constituent of the
Emulsion corresponded to any of the CERCLA
Hazardous Substances which triggered the Response.
Furthermore, the remediation method employed by
EPA was technically incapable of even addressing the
Emulsion. Despite these undisputed facts and based
solely on the presence of below-background levels of
Trace Metals in the Emulsion, the United States
District Court for the Middle District of Pennsylvania
imposed joint and several liability and in May 1991,
entered judgment against Alcan in the amount of
$470,790.18. Alcan appealed.
The Court of Appeals for the Third Circuit held
that the Trace Metals in the Emulsion--without regard
to concentration levels--met the definition of CERCLA
Hazardous Substances. The Court went on to hold
that “a CERCLA plaintiff need not establish a causal
connection between a_ generator's hazardous
substances and the release or incurrence of response
costs.” United States v. Alcan Aluminum Corp., 964 F.
2d 252, 271 (3d Cir. 1992) [“Alcan-Butler P’]. Under
this formula, the mere presence of the Emulsion (with
its Trace Metal constituents) among the wastes
released from the Tunnel and the fact that EPA
incurred remediation costs in responding to the
Release, sufficed to establish the Government's prima
facie case. See Alcan-Butler I, 964 F.2d at 264-266.
However, the Court of Appeals recognized that
“there must be some reason for the imposition of
6
CERCLA liability.” Alcan-Butler I, 964 F.2d at 270.
The court observed:
The foregoing conclusions that (1) there is
no quantitative threshold in the definition of
hazardous substances and (2) the plaintiff need
not establish a causal connection between a
given defendant's waste and the release or the
incurrence of response costs would initially
appear to lead to unfair imposition of liability.
As Alcan asserts, this definition of “hazardous
substances” effectively renders everything in
the universe hazardous, including, for example,
federally approved drinking water. When this
definition is read in conjunction with the rule
that specific causation is not required, CERCLA
seemingly would impose liability on every
generator of hazardous waste, although that
generator could not, on its own, have caused
any environmental harm.
Alcan-Butler I, 964 F.2d at 267. Consequently, the
Court of Appeals adopted a modified version of the
“divisibility of harm” approach’ to the liability of joint
tortfeasors set forth in section 433A of the
Restatement (Second) of Torts, and shifted the burden
to Alcan to rebut the presumption that it caused or
contributed to the release and the resultant response
costs. Alcan-Butler I, 964 F.2d at 267-270. The court
remanded the case for a hearing, holding:
If Alcan can establish . . . that the harm is
capable of reasonable apportionment, then it
° The Court of Appeals suggested that this approach “should
assuage Alcan's fear that liability under CERCLA will be as
far-reaching as the definition of hazardous substances.”
Alcan-Butler I, 964 F.2d at 261 n.13.
OS has SNS a gh Di ne ee eae ee
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;
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7
should be held liable only for the response costs
relating to that portion of harm to which it
contributed. Further, if Alcan can establish that
the hazardous substances in its emulsion could
not, when added to other hazardous substances,
have caused or contributed to the release or the
resultant response costs, then it should not be
liable for any of the response costs.
Alcan-Butler I, 964 F.2d at 271 (emphasis added).°
On remand both Alcan and the Government again
moved for summary judgment. The district court
granted the Government's motion and reimposed joint
and several liability on Alcan without a hearing. The
district court accepted as true Alcan's factual
assertion that there was absolutely no connection
between the constituents of the Emulsion, including
the CERCLA Hazardous Substances (Trace Metals),
and the substances necessitating EPA's CERCLA
response to the Release. United States v. Alcan
Aluminum Corp., 892 F. Supp. 648, 654 & n.9 (M.D.
Pa. 1995) [Alcan-Butler II]. However, the district court
agreed with the Government that the presence of
*Earlier in its opinion the Court of Appeals phrased this
inquiry as whether “the emulsion did not or could not, when
mixed with other hazardous wastes, contribute to the release
and the resultant response costs.” Alcan-Butler I, 964 F.2d at
270. The Government seized upon this language to urge on
remand that this was the Court of Appeals’ “true” holding,
and that it required Alcan to prove that its “emulsion as a
whole” was incapable of causing any harm to the
environment. United States v. Alcan Aluminum Corp., 892 F.
Supp. 648, 650, 653 (M.D. Pa. 1995). This led the district
court on remand to adopt the “environmentally harmless”
standard in lieu of the standard articulated by the Court of
Appeals in the emphasized portion of the quotation above.
8
constituent Trace Metals transformed the “entire
emulsion” into a hazardous substance. Because
Alcan failed to prove that its Emulsion “as a whole” :
was “environmentally harmless”, the district court 4
denied its motion for summary judgment, granted the
Government's motion and on October 4, 1995,
entered judgment against Alcan for the entire
$470,790.18 balance of EPA's unreimbursed response
costs. Alcan-Butler II, 892 F. Supp. at 655, 656.
Alcan again appealed. While the appeal was being
briefed, the United States District Court for the
Southern District of Alabama rendered a decision
based on this Court’s opinion in Landgraf_ v. USI Film
Products, 511 U.S. 244 (1994). United States v. Olin
Corp., 927 F. Supp. 1502 (S.D. Ala. 1996). The Olin
court concluded that the holding of Landgraf
precluded the application of liability under CERCLA
section 107(a), 42 U.S.C. § 9607(a), to disposals that
took place before CERCLA was enacted. All of the
Emulsion was disposed of before CERCLA was
enacted. Alcan consequently filed a motion in the
Court of Appeals for the Third Circuit seeking
dismissal of this case for lack of subject matter
jurisdiction. Alcan based the motion on this Court’s
retroactivity test set forth in Landgraf, as applied to
CERCLA in Olin.
On August 12, 1996, a three-judge panel of the
Court of Appeals affirmed the judgment of the district
court without opinion. See United States v. Alcan
Aluminum Corp., 96 F. 3d 1434 (3d Cir. 1996). Alcan's
motion to dismiss for lack of subject matter
jurisdiction was neither acknowledged nor addressed.
At oral argument, the Alcan-Butler I panel had
conceded that Alcan established beyond dispute that
the Hazardous Substances in its Emulsion did not
9
cause or contribute to the response costs for which it
was held jointly and severally liable. The Alcan-Butler
II panel also comceded that Alcan complied with the
following directive in Alcan-Butler I:
[I]f Alcan can establish that the hazardous
substances in its emulsion could not, when
added to other hazardous substances, have
caused or contributed to the release or the
resultant response costs, then it shouid not be
liable for any of the response costs.
Alcan-Butler I, 964 F.2d at 271. However, the Alcan-Butler
IT panel declined to follow that holding, characterizing it at
oral argument as a “slip-up” in the Alcan-Butler I opinion.
Instead, the Alcan-Butler IT panel stated that Alcan could
not avoid liability because it failed to satisfy the district
court's standard on remand: that the “emulsion as
whole” was “environmentally harmless.”
The basis for federal jurisdiction in the court of first
instance is 28 U.S.C. § 1345 and 42 U.S.C. § 9613(b).
This Petition is filed pursuant to 28 U.S.C. § 1254/(1).
REASONS FOR GRANTING THE
WRIT OF CERTIORARI
I. THIS COURT SHOULD GRANT ALCAN'S
PETITION FOR CERTIORARI TO RESOLVE A
CONFLICT AMONG THE COURTS OF APPEALS
AND AT THE SAME TIME SETTLE AN
IMPORTANT QUESTION OF FEDERAL LAW
CONCERNING THE SCOPE OF LIABILITY UNDER
SECTION 107(A) OF CERCLA.
This case presents the Court with a unique
opportunity to focus on and resolve seminal issues in
10
the Superfund liability scheme. The enactment of
Superfund has created a governmentally driven
program to clean up past hazardous substances
estimated to cost $500 billion to $1 trillion. The law
establishes standards for making those responsible
pay these costs. But EPA, in an effort to maximize its
power and its cost recovery revenues, has advanced a
construction of the statute that Congress could not
possibly have intended and that cannot possibly be
consistent with the Constitution. Accepting EPA’s
lead, the court below held that a release of virtually
any substance triggers Superfund liability, and
consequently a party whose waste had no causal
connection whatsoever to the harm which was
remedied was held strictly liable for a massive and
disproportionate share of response costs. This result
exposes a serious problem in our judicial system
caused by the lack of uniformity in legal doctrine.*
Decisions of the various courts of appeals are in
hopeless disarray with respect to these issues. For
example, is liability automatic for disposing of anything
in the universe? Or does the statute require a showing
of causation between the waste at issue and the
response costs? Can joint and several liability be
avoided if there is “any” reasonable basis for divisibility
of the harm? Or can liability be avoided only upon a
* [TJhe importance of uniformity in the application of law
is an important part of our jurisprudence. Justice
Ginzberg once wrote: Uniformity promotes the twin
goals of equity and judicial integrity .. . . Judge
Friendly considered uniformity the most basic principle
of jurisprudence.’
Joseph F. Weis Jr., Disconnecting the Overloaded Circuits—-A
Plug for a Unified Court of Appeals, 39 St. Louis L.J. 455, 458
and nn.10-11 (1995) [hereinafter “Weis”]. Judge Weis is the
former chairman of the Federal Courts Study Committee.
11
showing that the waste as a whole is environmentally
harmless? Who bears the burden of making such a
showing? Resolution of the these issues requires the
immediate attention of this Court.®
A. This Court Should Settle The Important
Question Of Whether Causation Is An
Element Of CERCLA’s Liability Scheme.
There is perhaps no more fundamental element of
American jurisprudence than the concept that liability
should not be imposed on someone unless they are in
some way connected with the damages for which they
are being held liable. This notion of fairness has been
enshrined in the concept of causation. There is sharp
disagreement between the First Circuit on the one
hand and the Second and Third Circuits on the other,
as to whether section 107(a) liability may be imposed
without a finding of causation. The Second and Third
Circuits have flatly declared that causation is not part
of the CERCLA liability scheme.° United States v. Alcan
Aluminum Corp., 990 F.2d 711, 721 (2d Cir. 1993)
> ‘If we were talking about laboratory cultures or seedlings,
the concept of issues ‘percolating’ in the courts of appeals
for many years before they are really ready to be decided
by the Supreme Court might make some sense. But it
makes very little sense in the legal world in which we live
.... It is of little solace to a litigant who lost years ago in
a court of appeals to learn that his case was part of the
‘percolation’ process which ultimately allowed the
Supreme Court to vindicate his position.
Weis at 462, n.33, quoting William H. Rehnquist, The
Changing Role of the Supreme Court, 14 Fla. St. U.L. Rev. i
11 (1986).
These courts have responded to the repeated requests by the
government to ease its enforcement burden--it is, of course,
easier to impose liability if you do not have to prove anything.
Pen er eee orien enter nents aros ee weer
12
[“Alcan-PAS"); Alcan-Butler I, 964° F.2d at 265. The
Third Circuit’s motivation for concluding that the
statute requires no showing of causation is the proof
problems plaintiffs would face if they were required to
trace the cause of the response costs to each
responsible party. Alcan-Butler I, 964 F.2d at 267. The
Second Circuit agreed. Alcan-PAS, 990 F.2d at 721. |
The First and Eighth Circuits take a wholly
different approach and require that plaintiffs show a
causal connection between the release and the
defendant’s waste. As Judge Robert E. Keeton,
summarizing the First Circuit’s position, states:
Thus, Dedham I, rather than supporting ~
Plaintiff's argument that there is no causation
element in a CERCLA case, holds, exactly to
the contrary, that a causal connection between
the waste discharged and the need for the
response costs must be proved.
Acushnet Company v. Coaters, Inc., 937 F. Supp. 988,
997 (D. Mass. 1996) [Acushnet I] (construing Dedham ;
Water Co. v. Cumberland Farms Dairy, 889 F.2d 1146
(1st Cir. 1989); see Farmland Indus. v. Morrison-Quirk
Grain Corp., 987 F.2d. 1335, 1340 (8th Cir. 1993) (“a
private party cannot predicate a claim for contribution
or indemnity solely upon section 9607(a) liability to :
the government, but must also prove causation’).
In Acushnet I, Judge Keeton held that a plaintiff must
show causation to establish section 107(a) liability. In
Acushnet I, one of the problems identified at the site was
PAHs (polycyclic aromatic hydrocarbons). The defendant,
New England Telephone and Telegraph (“NETT”), had
disposed of telephone pole butts that were saturated
with creosote containing PAHs. Acushnet I, 937 F. Supp. :
at 990-991. However, PAHs in used creosote-treated
eyo Pe ok eee ee ee ee
13
utility pole butts could not have leached into the
surrounding soil to create a level of PAHs in the soil
greater than the pre-existing background levels.
Acushnet I, 937 F. Supp. at 992-993.
Similarly, in this case none of the chemicals that
required remediation at the site was found in the
Emulsion, which was primarily water. Moreover, the
mineral oil in the emulsion was in a highly stable
state and would not float. Thus, the remedy, oil
booms which collected materials floating on the top of
the water, was totally ineffective in even collecting the
Emulsion, which passed under the booms.
The plaintiffs in Acushnet I argued that they did
not need to prove:
... any connection between any toxic substance
in NETT’s waste and the response costs being
incurred by a plaintiff. Under Plaintiffs’ legal
theory, as long as any response costs are being
incurred by a plaintiff, any party that disposed
of any hazardous substance is liable to
compensate that plaintiff. Ii does not matter
what type or amount of hazardous substance
was disposed of by the party. Any hazardous
substance in any quantity will open the
floodgates of liability, and will do so even if the
hazardous substance disposed of by the party is
not causing any harm, is not threatening to
cause any harm, and is not any part of the
reason a response is needed and the costs of
that response are incurred.
Acushnet I, 937 F. Supp. at 993.
Judge Keeton concluded “that Plaintiffs’ argument
regarding causation under section 107 of CERCLA is
14
unsupported in law.” Acushnet I, 937 F. Supp. at
1001. He relied upon Alcan-PAS and Alcan-Butler I, as
well as Dedham I, in reaching this conclusion.
Remarkably, he focused on the Aican-Butler I test for
causation--the same test which was later eviscerated
by the Alcan-Butler IT panel's endorsement of the
“environmentally harmless” test:’
After the government has established a
prima facie case, without proof of causal
connection between a defendant’s waste and
response costs, the framework established by
the Third Circuit shifts the burden to the
defendant to show that its waste was not a
cause of the response costs.
* * *
In another case that the United States
initiated against Alcan Aluminum Corp., the
Second Circuit adopted the burden-shifting
methodology used by the Third Circuit in its
Alcan case.... Thus, under the formulations
employed by both the Second and Third
Circuits, causal connection between a
defendant’s waste and_ the government’s
response costs is an element of liability. . . .
Acushnet I, 937 F. Supp. at 998-999 (emphasis
added). In this case Judge Keeton would undoubtedly
have concluded, based on his review of the standards
7The Alcan-Butler II panel affirmed a district court which
had construed Alcan-Butler I in an altogether different
manner than Judge Keeton construed it in Acushnet I.
Causation was irrelevant; the court, in effect, held that
Alcan was required to demonstrate that its waste met some
platonic ideal of environmental harmlessness.
15
in Alcan-Butler Iand Alcan PAS, that because of the
absence of any causal connection between the
incurrence of response costs and the toxic
constituents of the Emulsion, Alcan would not be
liable for any response costs.
The “environmentally harmless” standard which
the Third Circuit affirmed in Alcan-Butler II is utterly
meaningless. No one, including the Third Circuit, can
explain what environmentally harmless means. Too
much molasses in a stream will remove the dissolved
oxygen and kill the fish. Environmental problems are
relative issues, not absolute issues. The Third Circuit
in Alcan-Butler II has applied a standard that is the
substantive equivalent of saying that it is perfectly
proper to incarcerate someone who happened to be in
the bank at the time it was robbed--even though there
is no dispute that the person did not rob the bank--
because the person could not prove his or her own
inherent goodness.°*
B. This Court Should Resolve The Conflict
Among The Courts Of Appeals For The Second,
Third, And Fifth Circuits Concerning The
Standard For Proving Divisibility Of Harm
Subsequent to the decision in Alcan-Butler I, the
Court of Appeals for the Fifth Circuit held that joint
*In addition, no court has offered a plausible explanation
why there should be disparate treatment between
government plaintiffs and private plaintiffs. The statutory
language makes no such distinction. This unexplained
quirk of judicial interpretation has led to a loophole that has
effectively allowed private plaintiffs to avoid their burden of
proof by entering into favorable settlements with the
government and leaving the contribution action to the
government.
16
and several liability could be avoided under CERCLA
if there is “a reasonable basis for apportionment” of
the harm. United States v. Sequa Corp. (In Re Bell
Petroleum Services), 3 F.3d 389 (5th Cir. 1993), affd
in part, rev’d and remanded in part on other grounds
sub nom United States v. Bell Petroleum Services, 64
F.3d 202 (5th Cir. 1995). In Bell Petroleum the
problems at the site involved elevated levels of
chromium in the groundwater. EPA sought to impose
joint and several liability against Sequa, one of the
three defendants which had disposed of the chrome
plating waste containing chromium at the site. Unlike
the Emulsion, Sequa’s waste was, in fact, a “real”
hazardous substance which actually caused the
response costs. Recognizing that Sequa had shown a
reasonable basis for apportioning the harm based on
the volume of plating waste it had contributed, the
Fifth Circuit refused to hold Sequa jointly and
severally liable for EPA’s response costs.
The divisibility standard adopted by the Second
Circuit in United States v. Alcan Aluminum Corp., 990
F.2d 711 (2d Cir. 1993) (“Alcan-PAS”’) was the same
standard promulgated in Alcan-Butler I. However, the
interpretation of the standard adopted by the district
court in Alcan-Butler Ton remand and by the district
court in Alcan-PAS on remand are contradictory. Ina
recent order the district court in Alcan-PAS made it
clear that its inquiry was limited to the nature of the
hazardous substances in the Emulsion and their
connection to the response actions at the site. United
States v. Alcan Aluminum Corporation, 1996 U.S. Dist
LEXIS 16351 at *2, 26-27 (N.D.N.Y. Oct. 25, i996).
The conflict between Alcan-PAS and Alcan-Butler II is
blatant, since both cases involve the Emulsion.
|
17
The clear split among the Circuits produces a
result that defies common sense--it enables a
generator of a clearly hazardous material causing
response costs (Sequa in Bell Petroleum) to escape
from joint and several liability, while the generator of
an innocuous waste (Alcan) is held jointly and
severally liable for all unreimbursed response costs.
C. The Failure Of The Three-Judge Panel In
Alcan-Butler II To Follow The Law Of The
Case In Alcan-Butler I So Far Departs From
The Accepted And Usual Course of Judicial
Proceedings That It Calls For An Exercise Of
This Court's Supervisory Power.
Perhaps as a result of the “percolation” doctrine,
different panels of the same circuit have come to feel
free simply to disregard holdings of prior panels,
sometimes even where, as here, the same case is
involved. The percolation doctrine creates enough
confusion for the litigant who must guess at the
applicable law when conflicts exist among the circuits
and its circuit has not ruled.? Even more disturbing
is the confusion created in a case where, as here, the
litigant must guess at the applicable legal standard
even after the circuit court has ruled in its case.
The Alcan-Butler II panel is using silence to escape
detection for effectively “overruling” Alcan-Butler I.
Litigants should be not be required to guess at the
appropriate legal standard, particularly if one has been
articulated as it was in Alcan-Butler I Even if a court
makes a “slip-up” in articulating a standard, if a litigant
complies with that standard in good faith, the court
should not subsequently redefine the standard as the
° See Weis, supra, at 461-463.
18
court did in Alcan-Butler I This deprives litigants of
effective appellate review and procedural due process.
ll. THIS COURT SHOULD GRANT ALCAN'S PETITION
FOR CERTIORARI BECAUSE THE LOWER
COURT'S CONSTRUCTION OF THE DEFINITION
OF “HAZARDOUS SUBSTANCE” IN SECTION
101114) OF CERCLA TO ENCOMPASS
EVERYTHING IN THE UNIVERSE CONFLICTS
WITH RELEVANT DECISIONS OF THIS COURT
REGARDING STATUTORY CONSTRUCTION,
RAISES SIGNIFICANT CONSTITUTIONAL ISSUES
AND REQUIRES GENERATORS OF INNOCUOUS
WASTE TO SUBSIDIZE THOSE WHOSE WASTE
CAUSED THE TYPE OF INJURY WHICH CERCLA
WAS TRULY MEANT TO ADDRESS.
A. This Court Should Grant Alcan's Petition For
Certiorari To Restore Common Sense To The
Meaning Of Hazardous Substances Under
CERCLA Section 101(14).
This case raises the compelling issue whether
Congress intended to treat everything in the universe
as a hazardous substance for purposes of imposing
joint and several liability under CERCLA. What this
means is that if substances as innocuous as federally
approved drinking water, milk and corn flakes--which
contain below-background concentrations of heavy
metals--happen to have been deposited at the samc
site as pernicious chemicals such as benzene, the
party responsible for generating the innocuous
substances may be jointly and severally liable for all
of the environmental problems caused by the
pernicious chemicals. Interpreting CERCLA to permit
this unintended imposition of liability is inconsistent
with one of the fundamental tenets articulated by this
Court as the basis for statutory interpretation--
19
“common sense.” See United States v. Standard Oil
Co., 384 U.S. 224, 225 (1966); cf Brunswick Corp. v.
Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 486-489 (1977)
(remedial provision cannot be interpreted to make
recovery entirely fortuitous and authorize damages for
losses which are not of the type the statute was
intended to forestall).
In Alcan-Butler I the Third Circuit found no implied
concentration thresholds in the CERCLA section
101(14) definition of hazardous substances. The court’s
rationale was that Congress did not expressly impose
threshold limitations as to concentrations or quantity.
Moreover, the Third Circuit in Alcan-Butler I construed
CERCLA to have no causation requirement. The
expansive definition of “hazardous substances” which
the Third Circuit upheld in Alcan-Butler Ibecomes even
more senseless when read in tandem with the court's
holding that causation is not part of the statutory
liability scheme. Under such a construction, CERCLA
joint and several liability may be imposed for the
deposition of garden soil, and yes, even mcther’s milk,
both of which have far higher concentrations of metals
compounds than the Emulsion.
What is so troubling is the fact that the Third
Circuit seemingly is willing to interpret statutes in a
vacuum, ignoring the _ scientific and _ practical
underpinnings which may not have been explicitly
stated by Congress but are required by cormmon
sense. Common sense dictates that there are certain
implied limitations in definitions that need not be
specified. The fact that Congress did not intend its
definition to extend to the semartic limits of the
language and thereby automatically trigger joint and
several liability for garden soil or milk seems obvious,
and certainly not a limitation one would think would
be necessary to include in a definition. It is also
20
impractical to define these limitations in advance,
making it more likely that Congress left it to the EPA
and the courts to make these highly factual
determinations on a case-by-case basis.
The silence of Congress cannot logically be viewed
as a bar to importing common sense limitations into
CERCLA. Judge Keeton stated in Acushnet I:
There are many requirements in CERCLA
that, without a doubt, exist yet are not stated
in the plain language of § 107. Silence of a
statute on a particular matter is not conclusive
as to the meaning of the statute in relation to
that matter. Silence does not, itself, speak.
Something more than silence, associated
with and helping to explain, is essential to
manifesting meaning. More often than not
uilence remains ambiguous with respect to most
meanings asserted to be material. A litigant’s
argument that silence of one section or clause of
a statute unambiguously manifests a particular
meaning asserted by that litigant is usually
insupportable. Plaintiffs’ argument in this case,
based on the asserted silence of § 107(a) on
causation, is no exception. Viewing the matter
most favorably to Plaintiffs, one can reasonably
say no more than that the asserted silence is
ambiguous, and for that reason, it is not alone
conclusive against Plaintiffs’ argument that no
causation need be proved under CERCLA.
In fact, however, reading § 107 as if it were
completely silent as to whether some limit is
placed on the scope of liability under CERCLA is
not even a plausibly reasonable interpretation.
The text of subsection 107(a}(4) explicitly
7
q
|
%
al
21
declares one kind of limit. It limits liability to
response costs that are caused by a “release or a
threatened release.”
Acushnet I, 937 F. Supp. at 944 (emphasis in original).
Courts have long acknowledged “CERCLA’s ‘well-
deserved notoriety for vaguely drafted provisions and an
indefinite, if not contradictory legislative history.” Bell
Petroleum, 3 F.3d at 992 n.13, quoting Amoco v. Borden,
Inc., 889 F.2d 664, 667 (Sth Cir. 1989). However, there
appears to be some consensus that CERCLA was
intended to be a “polluters pay” statute--that is, those
parties whose waste streams caused the problem should
pay for the problem.’® In sum, Congress cannot have
intended that the presence of elemental metals at levels
below naturally occurring background levels is a basis
for defining a substance as “hazardous.” If indeed
Congress intended that liability be imposed only on
those persons whose wastes caused the problem being
addressed, what the Third Circuit permitted in this case
is not even remotely consistent with the “polluters pay”
concept. Not only did the court hold Alcan responsible
for all the remediation costs associated with CERCLA
problems totally unrelated to its waste stream, but it did
so to the benefit of those who actually caused the
'° See, e.g., United States v. Chem-Dyne Corp., 572 F.Supp. 802,
805-806 (S.D. Ohio 1983); United States v. Sequa Corp. (In Re
Bell Petroleum Services), 3 F.3d 889, 897 (1993). There are
many who dispute even that premise and argue, as the did
defendants successfully in United States v. Stringfellow, 661
F.Supp. 1053 (C.D. Cal. 1987), under common law notions of
fault that it was not their waste that was the operative cause of
the problem, but the government’s mismanagement of a site
which it designated as appropriate for their use.
pa enn recreate eon SL OES RTO
22
problem but escaped responsibility for their fair share of
liability.
Courts are beginning to recognize that the
government has used the threat of utterly fortuitous
CERCLA liability as a means of transferring
governmental authority to private parties--the very
defendants who were major causes of the problem.
See, e.g., United States v. Anderson Greenwood & Co.,
1996 LEXIS 6206 at *28-29 (S.D. Tex. April 10, 1996).
One court has described EPA as “willing to sacrifice
justice in favor of expediency” and condemned its
conduct as agency “duplicity” because it simply
rubber stamped the determinations of those
defendants comprising the Site Committee. Id. at *15-
16, *32. That court could have been describing what
happened in this case. The Government had settled
with those defendants whose waste actually contained
the substances at which the response action was
directed for far less than the remediation costs. The
Third Circuit itself acknowledged in Alcan-Butler I the
disproportionate amount of liability being imposed on
Alcan and the “strong-arm” tactics inherent in the
process. Alcan-Butler I, 964 F.2d at 270 n.29; see also
United States v. Knote, 818 F.Supp. 1280, 1282-1284
(E.D. Mo. 1993) (“EPA’s . . . vigorous protection of the
environment does not make it an administrative deity
. . . [with] unfettered authority to deceive and bully
people into submission.”).
Holding that a potentially responsible party can
become jointly and severally liable for all remediation
costs at a site simply because its waste is there--even
though there is no causal connection between that
waste and the chemicals that created the need for a
response action--is not only inconsistent with common
sense notions of how liability must be imposed in our
legal system, it is, as Judge Keeton held in Acushnet IJ, in
eo Te eee TES TO Tn NTE
ge et fn ee eee Se Oe ee eae
23
conflict with the explicit language of CERCLA. To go
further, as the Alcan-Butler IIT panel did, and effectively
hold that this liability can only be avoided if one can
establish some platcaic ideal of environmental goodness,
does not merely deprive those who are innocent of any
remedy, but also supports the notion that the EPA have
“unfettered authority to deceive and bully people into
submission.” Knote, 818 F. Supp. at 1284.
B. This Court Should Grant Alcan's Petition For
Certiorari Because The Construction Given
Section 107(a) of CERCLA By The Court
Below Renders The Statute Void For
Vagueness And Violates The Due Process
Clause Of The United States Constitution
Because Such Construction Provides No
Rational Basis For Distinguishing Between
Potential Responsible Parties Who May Be
Held Liable And Those Who May Not.
Statutes are void for vagueness if they do not give fair
and accurate warning of the actions which subject one
to liability. See Smith v. Goguen, 415 U.S. 566, 572
(1974). A statute which includes virtually everything
under its regulatory framework and fails to provide
reasonable notice as to what is and what is not included
under its regulation is unconstitutionally vague and
therefore void. See, e.g., Brockert v. Skormika, 711 F.2d
1376 (7th Cir. 1983). The Third Circuit’s construction of
§ 101(14) of CERCLA suffers from this deficiency, as is
illustrated by comparing the facts in Acushnet I, where
the district court found no liability, and this case, where
Alcan was held jointly and severally liable.
Under the Third Circuit’s construction, the
irnposition of liability is virtually random. There is no
way of making a rational distinction between the result
24
that NETT escaped liability and the result that Alcan is
liable for a lion’s share of the entire remediation.
Under the current state of CERCLA liability law,
liability could extend from liability for the whole site to
none at all on precisely the same facts, depending on
which court a particular case is assigned to.
C. This Court Should Grant Certiorari Because
The Decision By The Alcan-Butler II Panel To
Uphold CERCLA Liability When The Hazardous
Substances That Triggered Liability Are
Irrelevant To The Response Action Is An
Exercise Of Legislative Power And Effectively
Amends The Statute To Delete The Definition
Of Hazardous Substances; It Violates Article
mm Of The Constitution Defining The
Separation Of Powers.
Although the court in Alcan-Butler I came close to
rendering the definitional section of CERCLA
meaningless by expanding its meaning to potentially
include everything in the universe, it retained an
important element by eliminating liability in situations
where it was established that the hazardous
substances did not contribute to the response costs.
Under this logic, only the hazardous substances
bearing some relationship to response costs became
the basis for liability. Once the hazardous substances
(trace metals) were proven to be irrelevant to the
problems at the site, the remaining constituents of the
Emulsion (water and mineral oil) were irrelevant to the
CERCLA liability scheme. Congress’ clear intention to
exclude certain materials such as water and mineral oil
from the scope of liability still had meaning. Excessive
water can be environmentally detrimental--we know
that many hardwood trees die in flooded areas.
sancti
25
Clearly, CERCLA was not intended to respond to
environmental problems created solely by water.
However, the decision by the Alcan-Butler IT panel
affirming the application of the “environmentally
harmless” standard eviscerates the meaning of the
definition. Though the district court found the
undisputed facts to be that the Trace Metals that
triggered CERCLA liability in the first instance were
wholly irrelevant to the problems at the site (as were
the remaining constituents of the emulsion),
nonetheless the district court held that joint and
several liability applied because Alcan had not shown
that water and mineral oil--substances clearly outside
the CERCLA definition--were harmless.
Since nothing is always harmless liability can
never be avoided. Since everything in the universe is
captured by the definition, then CERCLA liability
applies to everything. The court has simply amended
the statute to delete the word “hazardous” from the
legislated definition. As a practical matter,
notwithstanding the district court’s attempts to
characterize what it did as statutory interpretation, it
has simply substituted its judgment for that of
Congress as to how to apply the liability scheme. The
district court and the Alcan-Butler IJ panel have
determined to apply joint and several liability to
everyone whose waste reaches a site regardless or
whether or not that waste is related to the
environmental problems to which CERCLA is
responding. This is the economic equivalent of
imposing a remediation tax on former disposers. In
doing so, the Alcan Butler II panel and the district
court have overstepped their judicial authority,
violated the principle of separation of powers, and
usurped legislative prerogative. Courts are ill
equipped to make the complex decisions and balance
26
or even identify the numerous issues involved in
forming the policy behind CERCLA applicability. This
Court should exercise its power to review this case to
insure that courts limit themselves to activities to
which their institution is suited and to which the
Constitution relegates them.
D. The Court Should Grant Certiorari Since The
Court Of Appeals Failed To Acknowledge The
Legal Standard Articulated By This Court In
Landgraf v. USI Film Products On The Issue
of Retroactivity
In Landgraf v. USI Film Products, 511 U.S. 244
(1994), this Court attempted to eliminate confusion in
the lower courts with respect to the presumption
against retroactivity. The Court stated that the strong
presumption against retroactivity applied absent clear
evidence that Congress intended a statute be applied
retroactively. Jd. at 262. The Court rejected virtually
every form of extrinsic evidence as satisfying the
“clear congressional intent” requirement, including
arguments based on verb tense, negative inference
and legislative history. Id. at 248-251.
In United States v. Olin Corp., 927 F.Supp. 1502
(S.D. Al. 1996), a case presently on appeal in the
Eleventh Circuit, the district court applied the
Landgraf test and concluded that CERCLA’s confused
legislative history, verb tenses and negative inferences
were insufficient to rebut the strong presumption
against retroactive application of legislation.
Alcan-Butler presents a more compelling case than
Olin for this Court to evaluate the fairness of the
retroactive application of CERCLA. Unlike Olin, the
problems in this case did not arise on Alcan’s property.
27
Instead, Alcan paid to have the oil in its Emulsion
properly recovered and recycled by a state licensed
recycler. However, unbeknownst to Alcan, the recycler
elected to dispose of the Emulsion and other wastes in
Butler Tunnel rather than to properly recycle the oil. In
addition, unlike Olin which was held liable for its own
waste on its own site, Alcan is being held liable for
problems caused by other defendants’ wastes in an area
far removed from Alcan’s property. Whereas Olin may
be subject to nuisance liability, there is absolutely no
basis upon which liability could be imposed on Alcan
absent CERCLA. Moreover, Alcan is being held liable for
environmental problems that are wholly unrelated to the
nature of its waste. Simply put, Alcan is being held fully
responsible for problems caused by third parties at a
remote location years after Alcan had concluded an
entirely legal, governmentally sanctioned transaction.
Alcan’s motion to dismiss in Alcan-Butler I
challenged the subject matter jurisdiction of the court
below, inasmuch as it was predicated exclusively on
CERCLA. Simultaneously, the Olin case was being
appealed to the Court of Appeals for the Eleventh
Circuit by the Government, which sought an
expedited hearing and stated in its moving papers
that Alcan’s motion to dismiss in Alcan-Butler was in
large part responsible for the request. Olin’s position
on appeal was widely supported by numerous amici,
including a number of present and former members of
Congress. The importance of the proper resolution of
the CERCLA retroactivity issue could not be
reasonably ignored. Yet, the Third Circuit chose to do
just that. The court would not dismiss the case, nor
could it plausibly claim that Alcan’s motion was
meritless, so it simply ignored it.
Courts which have held that CERCLA is retroactive
subsequent to Olin have relied upon inconsistent
28
rationales. This lack of consistency suggests that their
stated rationales are not the real reasons for the courts’
actions. By refusing to follow this Court's directive in
Landgraf and continuing to apply CERCLA retroactively,
the courts are trying to accomplish what Congress could
not. If Congress had explicitly stated that it intended for
the statute to apply retroactively, CERCLA probably
would never have become law. The Third Circuit’s
failure to even address Alcan’s motion to dismiss
suggests that it is unwilling to follow this Court’s
directive in Landgraf, at least as it applies to CERCLA.
This suspicion has been confirmed by recent
comments of a Special Master. Alcan filed a similar
motion on the issue of retroactivity in another pending
Superfund case, United States v. Stringfellow, Case No.
CIV-83-2501 JMI (Mx), United States District Court for
the Central District of California. The Special Master
has issued a tentative ruling to deny the motion.
Comments made at the hearing by the Special Master
confirm the suspicion that lower courts are simply
refusing to comply with this Court’s directive. The
Special Master acknowledged what is already common
knowledge--Superfund would not have passed if the
statute was to be applied retroactively:
THE COURT: You know, you're touching on
exactly what the Supreme Court didn’t want to
comment on, is that in order to get legislation
passed --
MR. MULLIKEN: Yes.
THE COURT: -- and get it by the public --
MR. MULLIKEN: Yes.
THE COURT: -- they can’t say what they're
doing; so they have to drop the term
[retroactivity] in order to get it signed.
29
MR. MULLIKEN: Yes.
THE COURT: Because if there term
[retroactively] is in there, it will never pass
muster. But then what the courts have been
doing is, being realistic, knowing Congress is
doing that, what did Congress intend? And they
look at these things.
Now we're going to throw out legislative
[history] and the Supreme Court wants the
courts to throw out legislative history, purpose
and [on] down the line?
MR. MULLIKEN: Yes.
THE COURT: None of them count in
determining what the statute means. Do they
{the Supreme Court] really mean that?
a * ~
Congress doesn’t put legal labels on the things
they're doing because the public won't digest it.
It’s like Medicare, what they’re doing to Medicare.
I mean, they have thousands of people scared
about it and it’s ludicrous; so the courts have to
be realistic when they're looking there.
* * *
MR SALIBRA: Now, you asked the question, let
me answer it directly. . . . If Congress, for
political reasons, doesn’t want to make a
decision, then the decision doesn’t get made and
it doesn’t get made by the courts. Now that’s
not a novel notion. For a long time the Courts
have expressed the notion that we are not going
to legislate for the Congress. It is their job and it
is our job to do something different.
30
United States v. Stringfellow, Transcript of Proceedings
dated 11/13/96 pp.61-63, 71. See A-108. The lower
courts are attempting to accomplish what they believe
Congress should have done but found it politically
impossible to do. Sadly, these courts believe that they
know better than the public and are willing to impose
their will under the guise of statutory interpretation.
In announcing Landgraf, this Court declared that
under our legal system, retroactive liability is
repugnant. It cautioned courts about the certainty of
Congressional intent required before such an
interpretation can be placed on a statute that is silent
on that issue. The lower courts have paid lipservice
to Landgraf at best and have ignored it at worst.
CONCLUSION
For all of the foregoing reasons, Petitioner Alcan
Aluminum Corporation respectfully requests that this
Honorable Court grant its Petition for Writ of Certiorari.
Respectfully submitted,
Lawrence Anthony Salibra, II
Counsel of Record
William S. Sessions, On Brief
Thomas D. Lambros, On Brief
Susan H. Abramson, On Brief
Alcan Aluminum Corporation
6060 Parkland Boulevard
Mayfield Heights, OH 44124-4185
(216) 423-6918
Attorneys for Petitioner
Alcan Aluminum Corporation
A-1
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
Plaintiff : CIVIL NO. 89-1657
(Judge Kosik)
vs.
ALCAN ALUMINUM CORPORATION:
Defendant
MEMORANDUM
Currently pending before the court is a motion for
summary judgment filed by the plaintiff and a cross-
motion for summary judgment filed by the defendant.
After appropriate briefing by the parties, this matter is
now ripe for disposition.
On April 12, 1991, United States Magistrate Judge
Raymond J. Durkin filed a report in which he
recommended that the plaintiffs motion for summary
judgment be granted and that the defendant’s cross-
motion for summary judgment be denied. On April 25,
1991, the defendant filed objections to the Magistrate
Judge’s report.
When objections are filed to a Magistrate Judge’s
report, we must make a de novo determination of
those portions of the report to which the objections are
made. In so doing, we may accept, reject or modify, in
whole or in part, the findings or recommendations
made by the Magistrate Judge. 28 U.S.C. §636(b)(1);
Local Rule 904.2.
A-2
We have reviewed the report of the Magistrate
Judge in light of the defendant’s objections, and we
find said report to be without error. In his report, the
Magistrate Judge concluded that the plaintiff is
entitled to summary judgment on the basis of the
recent decision in United States v. Alcan Aluminum
Corp., Civil No. 87-920 (N.D.N.Y. January 15, 1991).
The Magistrate Judge concluded that the Alcan waste
emulsion at issue in the above case was the same kind
of waste emulsion at issue in the instant case, and
further concluded that the court’s opinion addressed
the relevant legal issues presented in the instant case.
As a result, the Magistrate Judge concluded that the
court’s decision in the Northern District of New York
case should be applied to the instant case and is
dispositive of the motions presented in this action in
favor of the plaintiff.
The defendant agrees that the legal issues
presented in the Northern District of New York case
are similar to those presented here. The sole basis for
the defendant’s objections to the Magistrate Judge’s
report is the defendant’s assertion that the decision in
United States _v. Alcan, supra, was erroneously
decided. We disagree. We find the reasoning
contained in the Northern District of New York case to
be persuasive, and we find said case to be dispositive
of the issues presented here.
Accordingly, we shall adopt the report of the
Magistrate Judge over the objections of the defendant.
An appropriate order shall issue.
A-3
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
Plaintiff : CIVIL NO. 89-1657
(Judge Kosik)
vs.
ALCAN ALUMINUM CORPORATION
Defendant
ORDER
AND NOW, this _ 8th day of May, 1991, IT IS
HEREBY ORDERED THAT:
[1] the Magistrate Judge’s April 12, 1991 report is
adopted;
[2] the plaintiffs motion for summary judgment is
granted;
(3] the defendant’s cross-motion for summary
judgment is denied;
[4] judgment is entered in favor of the plaintiff in
the amount of $473,790.18; and
(S] the Clerk of Court is directed to close this case
and forward a copy of this Memorandum and Order to
United States Magistrate Judge Raymond J. Durkin.
/S/ Edwin M. Kosik
United States District Judge
A-4
964 F.2d 252
UNITED STATES of America
v.
ALCAN ALUMINUM CORP., BASF Corp.; Beazer
Materials and Services, Inc.; Borg-Warner Corp.; Carrier
Corp.; Chemical Leaman Tank Lines, Inc.; Chemical
Management, Inc.; Chrysler Motors Corp.; Dana Corp.;
Dart Industries, Inc.; Exxon Corp.; Ford Motor Company,
Goulds Pumps, Inc.; Hitchcock Gas Engine Company,
Inc.; Ingersoll-Rand; Neapco, Inc.; Rome Strip Steel Co.,
Inc.; the Stanley Works, Inc.; TRW, Inc.; United
Technologies Chemical Management, Inc., Counter-
claimant.
CHEMICAL MANAGEMENT, INC. Cross-claimant,
v.
UNITED STATES of America Counter-defendant, Alcan
Aluminum Corp.; BASF Corp.; Beazer Materials and
Services, Inc.; Borg-Warner Corp.; Carrier Corp.; Chemical
Leaman Tank Lines, Inc.; Chrysler Motors Corp.; Dana
Corp.; Dart Industries, Inc.; Exxon Corp.; Ford Motor
Company; Goulds Pumps, Inc.; Hitchcock Gas Engine
Company, Inc.; Ingersoll-Rand; Neapco, Inc.; Rome Strip
Steel Co., Inc.; the Stanley Works, Inc.; TRW, Inc. UNITED
TECHNOLOGIES; Cross-defendants, Neapco, Inc.;
Counter-claimant. Neapco, Inc.; Cross-claimant,
v.
UNITED STATES of America, Counter-defendant, Alcan
Aluminum Corp.; Basf Corp.; Beazer Materials and
Services, Inc.; Borg-Warner Corp.; Carrier Corp.;
Chemical Leaman Tank Lines, Inc.; Chemical
Management, Inc.; Chrysler Motors Corp.; Dana Corp.;
Dart Industries, Inc.; Exxon Corp.; Ford Motor Company;
Goulds Pumps, Inc.; Hitchcock Gas Engine Company,
Inc.; Ingersoll-Rand; Rome Strip Steel Co.; Inc.; the
Stanley Works, Inc.; TRW, Inc.; United Technologies
Cross-defendants,
Alcan Aluminum Corporation, Appellant.
A-5
No. 91-5481.
United States Court of Appeals,
Third Circuit.
Argued April 6, 1992.
Decided May 14, 1992.
Rehearing and Rehearing In Banc
Denied July 27, 1992.
*254 Lawrence A. Salibra, II (argued), Cleveland,
Ohio, for appellant Alcan Aluminum Corp.
Barry M. Hartman, Acting Asst. Atty. Gen., Michael
D. Mcintyre, J. Carol Williams, Elizabeth Ann
Peterson, John T. Stahr (argued), Attys., U.S. Dept. of
Justice, Washington, D.C., for appellee U.S.
Norman W. Bernstein (argued), David L. Anderson,
Laurel A. Bedig, Shea & Gould, Washington, D.C., for
appellees BASF Corp., Beazer Materials and Services,
Inc., Exxon Corp., and Ford Motor Co.
Stuart W. Axe, Lester, Schwab, Katz & Dwyer, New
York City, for appellee Chrysler Motors Corp.
John B. Lewis, Arter & Hadden, Cleveland, Ohio,
for amici curiae Operation Oswego County, Inc.,
County of Oswego, Greater Oswego Chamber of
Commerce, Inc., City of Oswego, Mohawk Cent. School
Dist., Richfield Springs Cent. School Dist., Mount
Markham Cent. School Dist., and New Hartford Cent.
School Dist.
Hosmer Culkin, Operation Oswego County, Inc.,
Oswego, N.Y., for amicus curiae Operation Oswego
County, Inc.
Bruce N. Clark, Oswego, N.Y., for amicus curiae
County of Oswego.
A-6
*255 Michael Stanley, Oswego, N.Y., for amicus
curiae Greater Oswego Chamber of Commerce, Inc.
Gay Williams, Sullivan & Williams, Oswego, N.Y.,
for amicus curiae City of Oswego.
Alan S. Burstein, Scolaro, Shulman, Cohen, Lawler
& Burstein, Syracuse, N.Y., for amici curiae Mohawk
Cent. School Dist., Richfield Springs Cent. School
Dist., Mount Markham Cent. School Dist., and New
Hartford Cent. School Dist.
James R. Griffith, Felt, Hubbard, & Bogan, Utica,
N.Y., for amici curiae Russell Blackstone, Feminine
Touch Fabrics, Clinton Auto Ser., True Value Hardware,
Brandy Keg Kennels, and Herkimer Elks Club.
Constantine L. Trela, Laura L. Leonard, Carolyn K.
Gerwin, Sidley & Austin, Chicago, Ill., Robin S. Conrad,
National Chamber Litigation Center, Inc., Washington,
D.C., for amicus curiae U.S. Chamber of Commerce.
Before. GREENBERG and SCIRICA, Circuit
Judges, and DEBEVOISE, District Judge. (FN*)
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter is before the court on appeal by Alcan
Aluminum Corporation (“Alcan”) from a summary
judgment entered in favor of the United States (the
“Government”) for response costs incurred by the
Government in cleaning the Susquehanna River.
On November 24, 1989, the Government filed a
complaint in the United States District Court for the
A-7
Middle District of Pennsylvania under section 107(a) of
the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. § 9607{(a)
(“CERCLA”) against 20 defendants, including Alcan, for
the recovery of clean-up costs it incurred in response
to a release of hazardous substances into the
Susquehanna River. On October 11, 1990, the
Government moved for summary judgment against
Alcan, the only non-settling defendant, and on
November 13, 1990, Alcan cross-moved for summary
judgment.
The district court, after receiving a report and
recommendation from a magistrate judge, issued a
memorandum and order granting the Government’s
motion for the reasons set forth in United States v.
Alcan Aluminum Corp., 755 F.Supp. 531 (N.D.N.Y.
1991) (hereinafter called “Alcan New York”), another
CERCLA case involving the release of hazardous
substances generated by Alcan but at a different
location. Accordingly, on May 8, 1991, the court
entered judgment against Alcan in the amount of
$473,790.18, which was the difference between the
full response costs the Government had incurred in
cleaning the Susquehanna River and the amount the
Government had recovered from the settling
defendants.
For reasons that follow, even though we largely
agree with the district court’s interpretation of the
relevant provisions of CERCLA, we will vacate the
judgment of May 8, 1991, and will remand the case for
further factual development concerning the scope of
Alcan’s liability.
I.
FACTS AND PROCEDURAL HISTORY
A-8
Virtually all of the facts in this case to the extent
developed at this point are undisputed. The Butler
Tunnel Site (the “Site”) is listed on the National
Priorities List established by the Environmental
Protection Agency (“EPA”) under section 105 of
CERCLA, 42 U.S.C. § 9605. See 52 Fed.Reg. 27,620
(July 22, 1987). The Site includes a network of
approximately five square miles of deep underground
mines and related tunnels, caverns, pools and
waterways bordering the east bank of the
Susquehanna River in Pittston, Pennsylvania. The
mine workings at the Site are drained by the Butler
Tunnel (the “Tunnel”), a 7500 foot tunnel which feeds
directly into the Susquehanna River.
*256 The mines are accessible from the surface
by numerous air shafts or boreholes. One borehole
(the “Borehole”) is located on the premises of Hi-Way
Auto Service, an automobile fuel and repair station
situated above the Tunnel. The Borehole leads directly
into the mine workings at the Site.
In the late 1970’s, the owner of Hi-Way Auto
Service permitted various liquid waste transport
companies, including those owned and controlled by
Russell Mahler (the “Mahler Companies”), to deposit
oily liquid wastes containing hazardous substances
into the Borehole. (FN1) The Mahler Companies
collected the liquid wastes from numerous industrial
facilities located in the northeastern United States
and, in total, disposed of approximately 2,000,000
gallons of oily wastes containing hazardous
substances through the Borehole. (FN2) Apparently, it
was contemplated that the waste would remain at the
Site indefinitely.
Alcan is an Ohio corporation which manufactures
|
A-9
aluminum sheet and plate products in Oswego, New
York. From 1965 through at least 1989, Alcan’s
manufacturing process involved the hot-rolling of
aluminum ingots. To keep the rolls cool and
lubricated during the hot-rolling process, Alcan
circulated an emulsion through the rolls, consisting of
95% deionized water and 5% mineral oil. At the end of
the hot-rolling process, Alcan removed the used
emulsion and replaced it with unused emulsion.
During the rolling process, fragments of the
aluminum ingots, which also contained copper,
chromium, cadmium, lead and zinc, hazardous
substances under CERCLA, broke off into the
emulsion. In an effort to remove those fragments,
Alcan then filtered the used emulsion prior to
disposing of it, but the filtering process was imperfect
and hence some fragments remained. According to
Alcan, however, the level of these compounds in the
post-filtered, used emulsion was “far below the EP
toxic or TCLP toxic levels and, indeed, orders of
magnitude below ambient or naturally occurring
background levels. Moreover, the trace quantities of
metal compounds in the emulsion [were] immobile....”
Appellant’s Br. at 4. The Government does not
specifically challenge Alcan’s assertion that the used
emulsion contained only low levels of these metallic
compounds, as it contends that this fact is irrelevant
to Alcan’s liability under CERCLA.
From mid-1978 to late 1979, Alcan contracted
with the Mahler Companies to dispose of at least
2,300,950 gallons of used emulsion from its Oswego,
New York, facility. During that period, the Mahler
Companies disposed of approximately 32,500-37,500
gallons (or five 6500-7500 gallon loads) of Alcan’s
liquid waste through the Borehole into the Site. (FN3)
A-10
In September 1985, approximately 100,000 gallons
of water contaminated with hazardous substances
were released from the Site into the Susquehanna
River. It appears that this discharge was composed of
the wastes deposited into the Borehole in the late
1970s. Between September 28, 1985, and January 7,
1987, EPA incurred significant response costs due to
the release and the threatened release of hazardous
substances from the Site. According to the
Government, EPA’s response actions included
“containing an oily material on the river through the
use of absorbent booms; immediately removing and
disposing of 161,000 pounds (over 80 tons) of oil and
chemical-soaked debris and soil, monitoring, sampling
and analysis of air and water, *257 and co ducting
hydrogeologic studies.” Government’s Br. at 10-11.
On December 27, 1985, EPA issued written
information requests to potentially responsible parties
(“PRPs”), (FN4) including Alcan, concerning their
responsibility for the presence of hazardous
substances at the Site. In May and June of 1986, EPA
issued letters to the PRPs informing them of their
potential liability under CERCLA. Those letters invited
the PRPs to conduct a remedial
investigation /feasibility study and to enter into an
agreement with EPA for the issuance of an
administrative order governing the study. Several
PRPs conducted these negotiations with EPA in an
attempt to settle their liability for removal costs
incurred by the Government, but Alcan did not
participate in this process.
In November 1989, the Government filed a
complaint against 20 defendants, including Alcan, for
the recovery of costs incurred as a result of the release
of hazardous wastes from the Site into the
Susquehanna River. In response, 17 of the 20
a eee
A-11
defendants executed a consent decree, reimbursing
the Government for certain removal costs, and the
district court entered that decree on January 17,
1990. On June 8, 1990, two of the three remaining
defendants entered into a second consent decree with
the Government, which the district court approved on
July 25, 1990.
The Government then moved for summary
judgment against Alcan, the only non-settling
defendant, to collect the balance of its response costs.
Alcan cross-moved for summary judgment, arguing
that its emulsion did not constitute a “hazardous
substance” as defined by CERCLA due to its below-
ambient levels of copper, cadmium, chromium, lead
and zinc, and further contending that its emulsion
could not have caused the release or any response
costs incurred by the Government.
On January 9, 1991, the district court referred
this case to a magistrate judge who recommended that
the court grant the Government’s motion for summary
judgment for the reasons set forth by the United
States District Court for the Northern District of New
York in Alcan New York. On the basis of that
recommendation, the district court granted the
Government’s motion for summary judgment on May
8, 1991. Accordingly, it held that Alcan was jointly
and severally liable for the removal costs because
Alcan’s waste contained identifiable levels of
hazardous substances and was present at the Site
from which there was a release. By following Alcan
New York, the court also concluded that Alcan’s waste
did not fall within the “petroleum exclusion” under 42
U.S.C. § 9601(14).
Alcan filed a timely notice of appeal on June 5,
1991, and we have jurisdiction to review the district
A-12
court’s final order pursuant to 28 U.S.C. § 1291. Our
standard of review is plenary. Carlson v. Amot-Ogden
Memorial Hospital, 918 F.2d 411, 413 (3d Cir.1990).
II.
DISCUSSION
A. CERCLA FRAMEWORK
[1] In response te widespread concern over the
improper disposal of hazardous *258 wastes, Congress
enacted CERCLA, a complex piece of legislation designed
to force polluters to pay for costs associated with
remedying their pollution. A Legislative History of the
Comprehensive Environmental Response, Compensation
and Liability Act of 1980, Senate Committee of
Environment and Public Works (“A Legislative History > *
S.Doc. No. 97-14, 97th Cong., 2d Sess.1983, Vol. I, p.
320 (one of the statute’s principal goals is “assuring that
those who caused chemical harm bear the costs of that
harm....”) As numerous courts have observed, CERCLA
is a remedial statute which should be construed liberally
to effectuate its goals. See, e.g., BF. Goodrich v. Murtha,
958 F.2d 1192, 1197 (2d Cir.1992) (“In CERCLA
Congress enacted a broad remedial statute designed to
enhance the authority of the EPA to respond effectively
and promptly to toxic pollutant spills that threaten{ ] the
environment and human health.”); Dedham Water Co. v.
Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1150 (1st
Cir.1989) (CERCLA is a “broad response and
reimbursement statute”). (FNS)
CERCLA, as amended by the Superfund
Amendments and Reauthorization Act of 1986, Pub.L.
No. 99-499, 100 Stat. 1613 (Oct. 17, 1986), grants broad
authority to the executive branch of the federal
A-13
government to provide for the clean-up of hazardous
substance sites. Specifically, section 104 authorizes the
President to respond to a release or substantial threat of
a release of hazardous substances into the environment
by: (1) removing or arranging for the removal of
hazardous substances; (2) providing for remedial action
relating to such hazardous substances; and (3) taking
any other response measure consistent with the National
Contingency Plan that the President deems necessary to
protect the public health or welfare or the environment.
42 U.S.C. § 9604(a). The President has delegated most of
his authority under CERCLA to EPA. (FN6)
CERCLA’s bite lies in its requirement that
responsible parties pay for actions undertaken
pursuant to section 104. Under section 107, CERCLA
lability is imposed where the plaintiff establishes the
following four elements:
(1) the defendant falls within one of the four
categories of “responsible parties”; (FN7)
(2) the hazardous substances are disposed at a
“facility”; (FN8)
(3) there is a “release” or threatened release of
hazardous substances from the facility into the
environment; (FN9)
*259 (4) the release causes the incurrence of
“response costs”. (FN 10)
42 U.S.C. § 9607. See also B.F. Goodrich, at 1198;
United States v. Serafin, 750 F.Supp. 168, 170
(M.D.Pa. 1990); United States v. Wade, 577 F.Supp. 1326,
1333 (E.D.Pa.1983).
A-14
Reimbursement for response costs can be obtained
in a variety of ways. For example, the Government can
clean the sites itself using monies in the Hazardous
Substance Response Trust Fund established by section
221 of CERCLA, 42 U.S.C. § 9631 and now the
Hazardous Substance Superfund or “Superfund” (see 26
U.S.C. § 9507); EPA can then seek reimbursement from
responsible parties, as it has done in this case. In
addition, section 106(a) permits EPA to request the
Attorney General to “secure such relief as may be
necessary to abate such danger or threat” by filing a civil
action in federal district court. That section also permits
EPA to issue administrative orders “as may be necessary
to protect public health and _ welfare and the
environment.”
Finally, and of great significance in this case,
CERCLA imposes strict liability on responsible parties.
42 U.S.C. § 9601(32). (FN11) See Dedham Water Co. v.
Cumberland Farms Dairy, Inc., 889 F.2d at 1150; New
York v. Shore Realty Corp., 759 F.2d 1032, 1042 (2d
Cir.1985) (“Congress intended that responsible parties
be held strictly liable, even though an explicit provision
for strict liability was not included in_ the
compromise....”)
B. CERCLA CONTAINS NO QUANTITATIVE
REQUIREMENT IN ITS DEFINITION OF “HAZARDOUS
SUBSTANCE”
[2] Alcan argues that it should not be held liable for
response costs incurred by the Government in cleaning
the Susquehanna River because the level of hazardous
substances in its emulsion was below that which
naturally occurs and thus could not have contributed to
the environmental injury. It asserts that we must read a
threshold concentration requirement into the definition
A-15
of “hazardous substances” for the term “hazardous” to
have any meaning. The United States Chamber of
Commerce (the “Chamber”) as amicus curiae agrees,
observing that “Congress took pains to define ‘hazardous
substance’... Congress clearly never intended to
abandon altogether the requirement that the substance
at issue be hazardous.” Chamber Br. at 20-21 (footnote
omitted). The Chamber further states that “the
uncontested facts show that Alcan’s waste contained less
of these [hazardous] elements than can be found in clean
dirt.” Chamber Br. at 18. For these reasons it too claims
that Alcan should not be held liable for any
environmental injury to the Susquehanna River.
The Government responds that under a plain reading
of the statute, there is no quantitative requirement in the
definition of “hazardous substance.” Therefore, the
Government asserts that Alcan’s argument that
substances containing below-ambient levels of hazardous
substances are not really “hazardous” is properly
directed at Congress, not the judiciary.
By adopting the reasoning of Alcan New York, the
district court in this case agreed with the Government.
Quoting Amoco Oil *260 Co. v. Borden, Inc., 889 F.2d
664, 669 (Sth Cir.1989), the district court in Alcan New
York observed, “ ‘the plain statutory language fails to
impose any quantitative requirement on the term
hazardous substance,’ “ 755 F.Supp. at 537, and
concluded that “there is no principled basis upon which
to deviate from the ... rule that the mere listing of a
substance by EPA renders that substance hazardous.”
Id. at 537-38. In response to Alcan’s argument that
virtually everything in the universe would constitute a
hazardous substance under this reading of the statute,
the court in Alcan New York held:
A-16
[T]he corporate generator, a non-natural person, has
added to what nature has already seen fit to provide
for the continued existence of various life forms on
this planet; that Congress has enacted laws to limit,
and perhaps limit quite severely, additions to nature
for the sake of the environment and of life on this
planet seems eminently reasonable.
Id. at 538.
For the reasons that follow, we are satisfied that the
court was correct in that conclusion.
1. Plain Meaning
Section 9601(14) sets forth CERCLA’s definition of
“hazardous substance” as:
thhazardous 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
A-17
otherwise specifically listed or designated as a
hazardous substance under subparagraphs (A)
through (F) of this paragraph....
Hence, the statute does not, on its face, impose any
quantitative requirement or concentration level on the
definition of “hazardous substances.” Rather, the
substance under consideration must simply fall within
one of the designated categories.
2. Legislative History
Since the statute is plain on its face, we need not
resort to legislative history to uncover its meaning.
Sacred Heart Medical Center v. Sullivan, 958 F.2d 937,
945 (3d Cir.1992); Velis v. Kardanis, 949 F.2d 78, 81 (3d
Cir.1991). In any event, the legislative history is barren
of any remarks directly revealing Congress’ intent vis-a-
vis a threshold requirement on the definition of
hazardous substances. Significantly, however, the
available legislative history of CERCLA does indicate that
Congress created the statute to force all polluters to pay
for their pollution. A Legislative History, Vol. I, p. 320. It
is difficult to imagine that Congress intended to impose a
quantitative requirement on the definition of hazardous
substances and thereby permit a polluter to add to the
total pollution but avoid liability because the amount of
its own pollution was minimal.
3. Jurisprudence
In addition, courts that have addressed this issue
have almost uniformly held that CERCLA liability does
not depend on the existence of a threshold quantity of a
hazardous substance. See, e.g., Amoco Oil Co. v. Borden,
Inc., 889 F.2d at 669 (“The plain statutory language fails
to impose any quantitative requirement on the term
A-18
hazardous substance and we decline to imply that any is
necessary.”); (FN12) Eagle-Picher*261 Industries, Inc. v.
United States EPA, 759 F.2d 922, 927 (D.C.Cir.1985) (“a
substance is a ‘hazardous substance’ within the meaning
of CERCLA if it qualifies under any of the several
subparagraphs of section 101(14)”) (emphasis in original);
City of New York v. Exxon Corp., 744 F.Supp. 474, 483
(S.D.N.Y.1990) (“liability under CERCLA attaches
regardless of the concentration of the hazardous
substances present in a defendant’s waste so long as the
defendant’s waste and/or the contaminants in it are
listed hazardous substances’....”); United States v.
Western Processing Co., 734 F.Supp. 930, 936
(W.D.Wash.1990) (“The concentration or amount of
hazardous substance is irrelevant as the statutory
definition contains no threshold requirement.”); United
States v. Conservation Chemical Co., 619 F.Supp. 162,
238 (W.D.Mo.1985) (“A waste is a ‘hazardous substance’
under CERCLA if it contains substances listed as
hazardous under any of the statutes referenced in
CERCLA section 101(14) regardless of the volumes or
concentration of those substances; presumably, if
Congress intended the definition of hazardous
substances to be contingent upon the presence of a
certain amount or concentration of a hazardous
substance, it would have so provided.”); United States v.
Carolawn Co., 21 Envt.Rep. Cas. (BNA) 2124, 2126
(D.S.C.1984) (CERCLA “simply does not distinguish
hazardous substances on the basis of quantity of
concentration”) (footnote omitted); United States v. Wade,
577 F.Supp. 1326, 1340 (E.D.Pa.1983) (CERCLA imposes
no concentration requirement on the definition of
hazardous substances). But see United States v. Ottati &
Goss, Inc., 22 E.R.C. 1736, 1739 (D.N.H.1984) (granting
defendant’s motion to dismiss on the ground that it “did
not cause or contribute to cause the disposal of any
hazardous wastes ... which exceeded the threshold
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established by the EPA for hazardous wastes“) (emphasis
supplied).
4. Congressional Matter
It may be that Congress did not intend such an all-
encompassing definition of “hazardous substances,” but
this argument is best directed at Congress itself. If
Congress had intended to impose a_ threshold
requirement, it could easily have so indicated. We
should not rewrite the statute simply because the
definition of one of its terms is broad in scope. (FN 13)
C. THE DISTRICT COURT’S DEFINITION OF
“HAZARDOUS SUBSTANCE” IS NOT INCONSISTENT
WITH EPA REGULATIONS AND POLICY
1. RQs and CASRNs
[3] Alcan asserts that the district court’s decision is
erroneous because it bases Alcan’s liability on the
ground that the used emulsion contains trace levels of
certain generic compounds listed in 40 C.F.R. § 302.4,
Table 302.4, which is a consolidation of the lists
promulgated pursuant to the Clean Water Act, the
Clean Air Act and the Resource Conservation and
Recovery Act. (FN14) According to Alcan, substances
listed under Table 302.4 must have _ reportable
quantities (“RQs”) (FN15) and Chemical Abstract *262
Service Registry Numbers (“CASRNs”) in order to be
considered hazardous under CERCLA. Since Table
302.4 does not provide RQs or CASRNs for the generic
compounds in Alcan’s used emulsion, it is Alcan’s view
that they are therefore not “listed” hazardous
substances under the meaning of section 302.4(a), 40
C.F.R. § 302.4(a). (FN16) The Government disagrees,
and contends that the generic designations are not
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mere headings inserted by the drafters of Table 302.4,
but are substantive categories of hazardous substances
that trigger CERCLA liability. In addition, the
Government notes that CERCLA does not require a
substance to have an RQ or a CASRN number to be
considered hazardous. The district court, by adopting
the reasoning in Alcan New York, properly endorsed the
Government’s position.
First, section 101(14) of CERCLA defines a
hazardous substance to include “any toxic pollutant
listed under section 1317(a) of Title 33 [the Clean Water
Act].” 42 U.S.C. § 9601(14). The generic compounds
contained in Alcan’s emulsion are “listed” under 40
C.F.R. § 401.15, the list of toxic pollutants promulgated
pursuant to section 1317(a). Thus, there is no need to
reach the significance of RQs or CASRNs under Table
302.4 to determine whether generic compounds are
“hazardous” by virtue of their listing under that Table.
Second, the fact that Table 302.4 does not provide
CASRNs for generic categories is irrelevant, as CASRNs
are “for convenience of the user only.” 40 C.F.R. §
116.4. Accord, City of New York v. Exxon, 766 F.Supp.
177, 182 (S.D.N.Y.1991) (“the fact that the generic
headings have no ... [CASRNs] assigned to them is of no
significance”). Further, cadmium, chromium, lead and
zinc do have CASRNs listed in the regulations. See 40
C.F.R. 302.4 Appendix A. It also appears that the
absence of RQ numbers for generic categories is
irrelevant to CERCLA liability. Indeed, EPA has
explained why it decided not to establish RQs for the
many broad generic classes of organic and metallic
compounds designated as toxic pollutants under
section 307(a) of the Clean Water Act:
It was recognized that to establish a single RQ for
A-21
broad classes of hazardous substances would be
inappropriate for many of the compounds within
each class. Many of the generic classes of
compounds encompass hundreds or even thousands
of specific compounds. It would be virtually
impossible for the Agency to develop a reportable
quantity for a generic class of compounds that would
take into account the varying characteristics of all of
the specific compounds in the class.
90 Fed.Reg. 13,461.
EPA has further stated that generic categories of
substances are nonetheless considered “hazardous
substances”:
Several commentators were unsure of the Agency’s
position on reporting and liability for generic
classes.... EPA has determined that the notification
requirements need apply only to those specific
compounds for which RQs are listed in Table 302.4,
rather than to the generic classes of compounds.
However, as the Agency indicated in the NPRM
preamble, this does not preclude liability with
respect to releases of specific compounds which are
within one of these generic listings but which are
not listed in Table 302.4. In other words, a releaser
is liable for the cleanup of releases of hazardous
substances which fall under any of the broad,
generic classes, but does not have to report such
releases when the specific compounds, and hence
the RQs, are not listed in Table 302.4.
Id. at 13,461. (FN17)
[4] EPA’s interpretation of the statute it is charged
with enforcing is entitled to *263 considerable
deference, and must be adhered to where it is
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reasonable and consistent with the language of the
statute. See Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct.
2778, 2781-83, 81 L.Ed.2d 694 (1984); see also Sacred
Heart, 958 F.2d at 543-45. Moreover, an EPA
Administrator’s interpretation of his own regulations is
entitled to even greater deference. Sacred Heart, 958
F.2d at 543-45; Vermont v. Thomas, 850 F.2d 99, 102
(2d Cir.1988). For these reasons the district court, by
adopting Alcan New York, correctly concluded that the
absence of an RQ or CASRN number does not signify
that the substance is not “hazardous.” Accord, City of
New York v. Exxon Corp., 766 F.Supp. at 182. (FN18)
In sum, the only question before us in this regard is
whether the substances Alcan admits existed in its used
emulsion are listed in any of the statutory and
regulatory schemes incorporated by section 101(14), 42
U.S.C. § 9601(14). Alcan has conceded that its
emulsion contained trace quantities of cadmium,
chromium, copper, lead and zinc. App. at 43. Those
compounds are listed as hazardous under 40 C.F.R. §
401.15, promulgated pursuant to the Clean Water Act,
33 U.S.C. § 1317(a). Further, these compounds are
“listed” under Table 302.4 because the absence of
CASRN or RQ numbers is irrelevant. Hence, they are
hazardous substances.
2. Section 302.4(b)
The foregoing determination that the generic
compounds in Alcan’s emulsion are “listed” under the
meaning of section 302.4(a) (40 C.F.R. § 302.4(a)) also
disposes of Alcan’s contention that the district court
erred in failing to determine whether the compounds
exhibit the characteristics of hazardous substances
pursuant to section 302.4(b). Section 302.4(b) provides:
A-23
Unlisted hazardous substances. A solid waste, as
defined in 40 CFR 261.2, which is not excluded
from regulation as a hazardous waste under 40 CFR
261.4(b), is a hazardous substance under section
101(14) of the Act if it exhibits any of the
characteristics identified in 40 CFR 261.20 through
261.24. (emphasis supplied).
However, because generic compounds are “listed”
hazardous substances under Table 302.4, we need not
determine whether they exhibit the characteristics set
forth in 40 C.F.R. ss 261.20 through 261.24. In addition,
as the district court observed, the compounds in Alcan’s
emulsion are hazardous by virtue of their designation as
toxic pollutants under the Clean Water Act. (FN19)
3. May, Not Shall
Alcan also deems it significant that EPA has
explained that “CERCLA liability may still attach to
releases of specific compounds that are within one of
the generic listings but not specifically listed in Table
302.4.” 50 Fed.Reg. 13,472-73 (emphasis supplied). In
Alcan’s view, if EPA intended generic categories to
constitute hazardous substances in every instance, it
would have used the word “shall.” However, as the
court in City of New York v. Exxon Corp. pointed out,
“(t]he use of the word ‘may’ simply reflects EPA’s
recognition that CERCLA liability attaches only if all
elements of a CERCLA cause of action are established.”
766 F.Supp. at 183 n. 1.
*264 4. Environmental Policy
In Alcan’s view, the district court’s construction of
the statute is at odds with environmental policy
A-24
because it imposes liability on generators of allegedly
“hazardous” substances although the substances pose
no real threat to the environment. (FN20) Alcan’s
argument, though superficially appealing, is flawed.
First, as noted above, the Government responds to
“releases” that threaten environmental safety. Thus, it
is the release alone that must justify the response costs,
not the particular waste generated by one given
defendant. Here, there is no question but that a release
occurred. Second, the fact that a single generator’s
waste would not in itself justify a response is irrelevant
in the multi-generator context, as this would permit a
generator to escape liability where the amount of harm
it engendered to the environment was minimal, though
it was significant when added to other generators’
waste. Accordingly, we find that the district court’s
construction of the _ statute furthers important
environmental goals. (FN21)
D. CAUSATION
[5] Alcan maintains that, if we decline to construe
the determination of “hazardous substance” to
encompass a concentration threshold, we must at least
require the Government to prove that Alcan’s emulsion
caused or contributed to the release or the
Government’s incurrence of response costs. The
Government contends, and the district court by
adopting the reasoning of Alcan New York agreed, that
the statute imposes no such causation requirement,
but rather requires that the plaintiff in a CERCLA
proceeding establish that the release or threatened
release caused the incurrence of response costs; it
underscores the difficulty CERCLA plaintiffs would face
in the multi-generator context if required to trace the
cause of the response costs to each responsible party.
(FN22)
1. Plain Meaning
The plain meaning of the statute supports the
Government’s position. As noted above, section 107
imposes liability upon a generator of hazardous
substances who contracts with another party to dispose
of the hazardous substances at a facility “from which
there is a release, or threatened release which causes the
incurrence of response costs.” 42 U.S.C. § 9607
(emphasis supplied). The statute does not, on its face.
require the plaintiff to prove that the generator’s
hazardous substances themselves caused the release or
caused the incurrence of response costs; rather, it
requires the plaintiff to prove that the release or
threatened release caused the incurrence of response
costs, and that the defendant is a generator of
hazardous substances at the facility.
2. Legislative History
The legislative history also supports. the
Government's position that CERCLA does not require the
plaintiff to establish a specific causal relationship
between a generator’s waste and the release or the
plaintiffs incurrence of response costs. It appears that
the early House of Representatives’ version of CERCLA
imposed liability *265 upon those persons who “caused
or contributed to the release or threatened release.”
H.R. 7020, 96th Cong., 2d Sess. § 307 l(a)(D), 126
Cong.Rec. 26,779. However, the version ultimately
passed by Congress deleted the causation requirement
) and instead imposed liability upon a class of responsible
persons without regard to whether the person specifically
caused or contributed to the release and the resultant
response costs. See 126 Cong.Rec. 31,981-82.
Moreover, Congress added three limited defenses to
liability based on causation which are contained in 42
A-26
U.S.C. § 9607(b): acts of God, acts of war, and acts or
omissions of a contractually unrelated third party when
the defendant exercised due care and took appropriate
responses. Imputing a specific causation requirement
would render these defenses superfluous.
In sum, the legislative history indicates that
Congress considered and rejected a requirement that
the plaintiff establish that the defendant’s waste caused
or contributed to the release or the incurrence of
response costs.
3. Jurisprudence
Further, virtually every court that has considered
this question has held that a CERCLA plaintiff need not
establish a direct causal connection between the
defendant’s hazardous substances and the release or the
plaintiffs incurrence of response costs. For example, in
New York v. Shore Realty Corp., the defendant, an owner
of a facility, asked the Court of Appeals for the Second
Circuit to read this “causation” requirement into section
107(a). The court declined that invitation and held,
“section 9607(a)(1) unequivocally imposes strict liability
on the current owner of a facility from which there is a
release or threat of release without regard to causation.”
759 F.2d at 1044 (footnote omitted). The court observed
that “there are defenses for causation solely by an act of
God, an act of war, or acts or omissions of a third party
other than an employee or agent of the defendant or one
whose act or omission occurs in connection with a
contractual relationship with the defendant,” id. at 1042,
and it found that these defenses would be superfluous if
the statute imposed a causation requirement. It
concluded, “[wjithout a clear congressional command
otherwise, we will not construe a statute in any way that
makes some of its provisions surplusage.” Id. at 1044.
A-27
The court of appeals in United States v. Monsanto Co.,
858 F.2d 160 (4th Cir. 1988), cert. denied, 490 U.S. 1106,
109 S.Ct. 3156, 104 L.Ed.2d 1019 (1989), extended
Shore Realty ‘s analysis to generators of hazardous waste.
The court of appeals there rejected a similar argument
that the CERCLA plaintiff was required to establish that
the waste the defendant generator sent to the facility
caused or contributed to the environmental harm,
observing that Congress deleted the causation language
from CERCLA precisely because it was aware of the
difficulties plaintiffs would confront in the multi-
generator context if required to prove such a connection.
It held, “fiJn deleting causation language from section
107(a), we assume as have many other courts, that
Congress knew of the synergistic and migratory
capacities of leaking chemical waste, and the
technological infeasibility of tracing improperly disposed
waste to its source.” Id. at 170 (footnote omitted).
Other cases are in accord. See, e.g., Dedham Water
Co. v. Cumberland Farms Dairy, Inc., 889 F.2d at 1152-
94 (the only causation required under CERCLA is that
the release or threatened release cause the response
costs; plaintiff need not establish that the defendant’s
waste caused or contributed to the response costs);
United States v. Bliss, 667 F.Supp. 1298, 1309
(E.D.Mo.1987) (“traditional tort notions, such as
proximate cause, do not apply”); United States v. Wade,
977 F.Supp. at 1333 (“the release which results in the
incurrence of response costs and lability need only be
of ‘a’ hazardous substance and not necessarily one
contained in the defendant’s waste. The only required
nexus between the defendant and the site is that the
defendant have dumped his waste there and that the
hazardous substances found in the defendant’s waste
are also found at the site.”)
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Despite Alcan’s assertion, Amoco Oil Co. v. Borden,
Inc., 889 F.2d 664, is not to *266 the contrary. There,
the Court of Appeals for the Fifth Circuit held that the
plaintiff may not recover response costs unless the
release posed a threat to the public or the environment.
In the court’s view, “the question of whether a release
has caused the incurrence of response costs should rest
upon a factual inquiry into the circumstances of a case
and the relevant factual inquiry should focus on whether
the particular hazard justified any response actions.” Id.
at 670. The court did not hold, as Alcan suggests, that
the factual investigation would concern whether the
defendant’s waste caused the incurrence of response
costs. Moreover, the environmental injury at issue in
Amoco resulted from one generator’s pollution, and the
court expressly noted that other courts have concluded
that, “in cases involving multiple sources of
contamination, a plaintiff need not prove a specific causal
link between costs incurred and an individual generator’s
waste.” Id. at 670 n. 8. This distinction is significant for,
in the single generator context, if the response costs were
justified, the defendant necessarily caused the
incurrence of those costs. However, in the multi-
generator context, the fact that the response costs were
justified would not per force signify that each generator’s
waste caused the release and the resultant response
costs. See also City of New York v. Exxon Corp., 766
F.Supp. at 194. (FN23)
Decisions rejecting a causation requirement
between the defendant’s waste and the release or the
incurrence of response costs are well-reasoned,
consistent with the plain language of the statute and
consistent with the legislative history of CERCLA.
Accordingly, we reject Alcan’s argument that the
Government must prove that Alcan’s emulsion
aS i aan
A-29
deposited in the Borehole caused the release or caused
the Government to incur response costs. Rather, the
Government must simply prove that the defendant’s
hazardous substances were deposited at the site from
which there was a reiease and that the release caused
the incurrence of response costs.
E. PETROLEUM EXCLUSION
(6) Alcan further argues that its emulsion
constitutes “petroleum” within the meaning of 42 U.S.C.
§ 9601 and is thus excluded from CERCLA liability.
Section 9601(14) provides: “{t]he term [hazardous
substance] 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....” (emphasis supplied). According to Alcan,
EPA has interpreted the petroleum exclusion to extend
to “used oil” containing concentrations of hazardous
substances at levels equal to or less than that found in
virgin oil. Alcan contends that its emulsion is “used oil”
with concentration levels of cadmium, chromium,
copper, lead and zinc that are lower than the levels of
these compounds in virgin oil and therefore falls within
the petroleum exclusion. Although this argument has
superficial appeal, it cannot withstand close scrutiny.
First, and most importantly, EPA has distinguished
between oil that naturally contains low levels of
hazardous substances and oil to which hazardous
substances have been added through use. Although
EPA has extended the petroleum exclusion to the
former category of oily substances, it has specifically
declined to extend such protection to the latter
category. In EPA’s words: “EPA does not consider
materials such as waste oil to which listed CERCLA
A-30
substances have been added to be within the petroleum
exclusion.” 50 Fed.Reg. 13,460 (1985). Thus, the
conclusion of the district court in Alcan New York that
“a plain reading of the ‘exclusionary’ provision does not
warrant the inclusion of oil which has become
contaminated with hazardous substances through use;
rather what does come within the ambit of the
‘petroleum exclusion’ is the oil *267 or oil fraction
which naturally contains the hazardous substance(s)
unless the fraction itself is specifically listed or
designated as a hazardous substance,” is in harmony
with EPA’s interpretation. 755 F.Supp. at 539.
Moreover, EPA’s interpretation of the petroleum
exclusion comports with the relevant legislative history
which indicates that the exclusion was intended for oil
spills, not for releases of oil which has become infused
with hazardous substances through use. See S.Rep.
No. 848, 96th Cong., 2d Sess. 30-31 (1980), reprinted in
A Legislative History, Vol. I, at 405.
Alcan has admitted that the hot-rolling process adds
hazardous substances to the emulsion. Thus, it has
effectively conceded that its emulsion does not fall within
the scope of the petroleum exclusion as construed by
EPA. (FN24)
F. DIVISIBILITY OF HARM
[7] The foregoing conclusions that (1) there is no
quantitative threshold in the definition of hazardous
substances and (2) the plaintiff need not establish a
causal connection between a given defendant’s waste
and the release or the incurrence of response costs
would initially appear to lead to unfair imposition of
liability. As Alcan asserts, this definition of “hazardous
substances” effectively renders everything in the
universe hazardous, including, for example, federally
approved drinking water. When this definition is read
A-31
in conjunction with the rule that specific causation is
not required, CERCLA seemingly would impose liability
on every generator of hazardous waste, although that
generator could not, on its own, have caused any
environmental harm. (FN25)
While Alcan’s assertion is of considerable strength,
the Government’s rebuttal is equally forceful. It notes
that individual defendants must be held responsible for
environmental injury brought about by the actions of
multiple defendants, even if no single defendant itself
could have produced the harm, for otherwise “each
defendant in a multi-defendant case could avoid liability
by relying on the low concentrations of hazardous
substances in its waste, while the plaintiff is left with
the substantial clean-up costs associated with the
defendant’s accumulated wastes.” Government’s Br. at
32. The Government reasons that this strong public
interest in forcing polluters in the multi-generator
context to pay outweighs a defendant’s interest in
avoiding liability even if that defendant has not acted in
an environmentally unsound fashion when its actions
are viewed without regard to the actions of others. The
court in United States v. Western Processing Co.,
adopting the position advanced by the Government in
this case, observed:
it is entirely possible for a hazardous waste facility to
be comprised of entirely small amounts from many
contributors. If each PRP could make [Alcan’s]
argument, i.e., that its particular contribution did not
warrant remediation and thus that it should not be
liable for any costs, no party would be liable, despite
the fact *268 that the site, as a whole, needed to be
cleaned up and the government incurred costs in
doing so.
734 F.Supp. at 937 (emphasis in original).
A-32
We find some merit in the arguments advanced by
both the Government and Alcan. Accordingly, in our
view, the common law principles of joint and several
liability provide the only means to achieve the proper
balance between Alcan’s and the Government’s
conflicting interests and to infuse fairness into the
statutory scheme without distorting its plain meaning
or disregarding congressional intent.
CERCLA does not specifically provide for joint and
several liability in a case involving multiple defendants.
Further, both the House and Senate deleted provisions
imposing joint and several liability from their respective
versions of the statute before its enactment. However, as
the court explained in United States v. Chem-Dyne Corp.,
572 F.Supp. 802, 808 (S.D. Ohio 1983), at the conclusion
of an exhaustive review of statements made by the
legislation’s sponsors concerning the deletion of joint and
several liability,
the scope of liability and term joint and several
liability were deleted to avoid a mandatory
legislative standard applicable in all situations
which might produce inequitable results in some
cases. 126 Cong.Rec. at $14964, S15004, H11787,
H11799, 126 Cong.Rec. H9465 (Sept. 23, 1980)
(remarks of Rep. Madigan), H9466 (Remarks of
Rep. Stockman). The deletion was not intended as
a rejection of joint and several liability. 126
Cong.Rec. $14964, H11787, H11799 (Nov. 24,
1980). Rather, the term was omitted in order to
have the scope of liability determined under
common law principles, where a court performing a
case by case evaluation of the complex factual
scenarios associated with multiple-generator waste
sites will assess the propriety of applying joint and
several liability on an individual basis.
A-33
Other courts have agreed that Congress’ deletion of
joint and several liability from the final version of the
statute signalled its intent to have the courts determine,
in accordance with traditional common law principles,
whether such liability is proper under the circumstances.
See, eg., O'Neil v. Picillo, 883 F.2d 176, 178 (1st
Cir.1989), cert. denied, 493 U.S. 1071, 110 S.Ct. 1115,
107 L.Ed.2d 1022 (1990); United States v. Monsanto Co.,
858 F.2d at 171 n.3. Accord, B.F. Goodrich, 958 F.2d
1192, 1198 (2d Cir.1992). In determining whether the
imposition of joint and several liability upon Alcan is
proper, so that it may be held liable for the Government’s
full response costs less what had been recovered from
the settling defendants, we turn to the Restatement
(Second) of Torts for guidance. (FN26)
Section 433A of the Restatement provides that,
when two or more joint tortfeasors acting independently
cause a distinct or single harm for which there is a
reasonable basis for division according to the
contribution of each, each is subject to hability only for
the portion of the harm that the individual tortfeasor
has caused. It states,
(1) Damages for harm are to be apportioned among
two or more causes where ;
(a) there are distinct harms, or
(b) there is a reasonable basis for determining the
contribution of each cause to a single harm.
(2) Damages for any other harm cannot be
apportioned among two or more causes.
Similarly, section 881 sets forth the affirmative
defense based upon the divisibility of harm rule in
A-34
section 433A:
If two or more persons, acting independently,
tortiously cause distuict harms or a single harm for
which there is a reasonable basis for division
according to the contribution of each, each is
subject to liability only for the portion of the total
harm that he has himself caused.
However, where joint tortfeasors cause a single and
indivisible harm for which there is no reasonable basis
for division according *269 to the contribution of each,
each tortfeasor is subject to liability for the entire harm.
Section 875 recites:
Each of two or more persons whose tortious
conduct is a legal cause of a single and indivisible
harm to the injured party is subject to liability to
the injured party for the entire harm.
Obviously, of critical importance in this analysis is
whether a harm is divisible and reasonably capable of
apportionment, or indivisible, thereby subjecting the
tortfeasor to potentially far-reaching liability. (FN27)
Under the Restatement, where a joint tortfeasor
seeks to apportion the full amount of a plaintiffs
damages according to that tortfeasor’s own contribution
to the harm, it is the tortfeasor’s burden to establish that
the damages are capable of such apportionment. (FN28)
As the comments concerning this issue explain, the
burden of proving that the harm is capable of
apportionment is placed on the tortfeasor to avoid:
the injustice of allowing a proved wrongdoer who
has in fact caused harm to the plaintiff to escape
liability merely because the harm which he has
inflicted has combined with similar harm inflicted
A-35
by other wrongdoers, and the nature of the harm
itself has made it necessary that evidence be
produced before is can be apportioned. In such a
case the defendant may justly be required to
assume the burden of producing that evidence, or if
he is not able to do so, of bearing full responsibility.
As between the proved tortfeasor who has clearly
caused some harm, and the entirely innocent
plaintiff, any hardship due to lack of evidence as to
the extent of the harm should fall upon the former.
Comment on Section 433 B subsection (2).
These provisions underscore the intensely factual
nature of the “divisibility” issue and thus highlight the
district court’s error in granting summary judgment for
the full claim in favor of EPA without conducting a
hearing. For this reason, we will remand this case for
the court to determine whether there is a reasonable
basis for limiting Alcan’s liability based on its personal
contribution to the harm to the Susquehanna River.
Our conclusions on this point are completely
consistent with our previous discussion on causation,
as there we were concerned with the Government’s
burden in demonstrating liability in the first instance.
Here we are dealing with Alcan’s effort to avoid liability
otherwise established. We observe in this regard that
Alcan’s burden in attempting to prove the divisibility of
harm to the Susquehanna River is substantial, and the
analysis will be factually complex as it will require an
assessment of the relative toxicity, migratory potential
and synergistic capacity of the hazardous waste at
issue. United States v. Monsanto Co., 858 F.2d at 172 n.
26. See also United States v. Chem-Dyne Corp., 572
F.Supp. at 811. But Alcan should be permitted this
opportunity to limit or avoid liability. If Alcan succeeds
in this endeavor, it should only be liable for that portion
A-36
of the harm fairly attributable to it. Accord, United
States v. Marisol, Inc., 725 F.Supp. 833, 843
(M.D.Pa.1989) (“the question of the relative contribution
of a particular defendant to a waste site may impact
upon the issue of joint and several liability”).
Alcan maintains that there is no need for a hearing
because, not only is the harm divisible, but its relative
contribution to the *270 injury to the Susquehanna
River is zero. According to Alcan, “[ijt is technically
impossible to have a release or threatened release such
that a clean-up would be authorized or justified under
the National Contingency Plan as a result of the addition
of the metal compounds in the Alcan emulsion to the
Butler Site. When one adds two materials that have the
same concentrations of an element or compound, the net
result is the same concentration. It can never result in a
higher concentration.” Appellant’s Br. at 18 (emphasis
in original). Alcan’s Reply Brief similarly asserts that
“below ambient levels of any substance can never cause
or contribute to a release or response costs.” Appellant’s
Reply Br. at 10-11.
[8] The district court did not specifically address
this argument. Indeed, in light of their belief that Alcan
New York was dispositive of the arguments advanced by
Alcan in this case, neither the magistrate judge nor the
district court engaged in any factual investigation
concerning the divisibility of the environmental harm
caused to the Susquehanna River as a result of the
release of hazardous substances from the Borehole.
However, we are not the proper forum to consider
Alcan’s argument as we have no way of determining
whether the trace levels of metallic compounds in
Alcan’s used emulsion became concentrated and
thereby posed an environmental threat. Furthermore,
there may be other circumstances bearing on this issue
of which we are not even aware. Thus, the district court
A-37
should re-evaluate Alcan’s contention in light of the
facts developed in the hearing on this issue. (FN29)
In sum, on remand, the district court must permit
Alcan to attempt to prove that the harm is divisible and
that the damages are capable of some reasonable
apportionment. We note that the Government need not
prove that Alcan’s emulsion caused the release or the
response costs. On the other hand, if Alcan proves that
the emulsion did not or could not, when mixed with
other hazardous wastes, contribute to the release and
the resultant response costs, then Alcan should not be
responsible for any response costs. In this sense, our
result thus injects causation into the equation but, as
we have already pointed out, places the burden of proof
on the defendant instead of the plaintiff. We think that
this result is consistent with the statutory scheme and
yet recognizes that there must be some reason for the
imposition of CERCLA liability. Our result seems
particularly appropriate in light of the expansive *271.
meaning of “hazardous substance.” (FN30) Of course, if
Alcan cannot prove that it should not de liable for any
response costs or cannot prove that the harm is
divisible and that the damages are capable of some
reasonable apportionment, it will be liable for the full
claim of $473,790.18.
lil.
CONCLUSION
In conclusion, the district court correctly determined
that CERCLA’s definition of “hazardous substance” does
not include a threshold requirement. This interpretation
is fully consistent with the plain language of the statute,
the legislative history, EPA regulations and EPA policy.
In addition, the court correctly determined that a
CERCLA plaintiff need not establish a causal connection
ee ee
i
A-38
between a generator’s hazardous substances and the
release or the incurrence of response costs. The district
court was also correct in determining that Alcan’s used
emulsion does not fall within the petroleum exclusion
under 42 U.S.C. § 9601(14), and it properly rejected
Alcan’s constitutional challenges.
[9][10] However, we find that the court should have
conducted a hearing to determine the divisibility of
harm to the Susquehanna River, and will remand the
case for the court to do so. If Alcan can establish in
that hearing that the harm is capable of reasonable
apportionment, then it should be held liable only for the
response costs relating to that portion of harm to which
it contributed. Further, if Alcan can establish that the
hazardous substances in its emulsion could not, when
added to other hazardous substances, have ci used or
contributed to the release or the resultant response
costs, then it should not be liable for any of the
response costs. Accordingly, we will vacate the
judgment of the district court of May 8, 1991, and will
remand the matter for further proceedings consistent
with this opinion.
SUR PETITION FOR REHEARING
July 27, 1992.
PRESENT: SLOVITER, Chief Judge, and STAPLETON,
MANSMANN, GREENBERG, HUTCHINSON, SCIRICA,
NYGAARD, and ALITO, Circuit Judges, and DEBEVOISE,
District Judge. (FN**)
The petition for rehearing filed by the appellee in
the above captioned matter having been sumitted to the
judges who participated in the decision of this court
and to all the other available circuit judges of the court
A-39
in regular active service, and no judge who concurred in
the decision having asked for rehearing, and a majority
of the circuit judges of the circuit in regular active
service not having voted for rehearing by the court in
banc, the petition for rehearing is denied.
FN* Honorable Dickinson R. Debevoise, United States
District Judge for the District of New Jersey, sitting
by designation.
FN1. The Mahler Companies are said to b= government-
licensed waste processors. Amicus Curiae the
United States Chamber of Commerce Br. at 6.
FN2. On occasion, the Mahler Companies commingled
Alcan’s oily waste with other waste at Mahler’s
recycling facilities located in Syracuse, New York,
and Edgewater, New Jersey, before disposing of the
waste through the Borehole.
FN3. Although Alcan has argued that the Government
did not prove that its emulsion was actually at the
Site because it did not establish the presence of
chromium, this does not preclude Alcan’s liability
under CERCLA, for even assuming arguendo that
there was no chromium at the Site, Alcan has
admitted that “the Mahler companies disposed of ...
the Alcan emulsion through the Borehole into the
Site.” App. at 36. Alcan asserts that it was not
aware that Mahler was disposing of the oily waste in
this fashion, but the Government does not contend
otherwise, and in any event Alcan does not contend
that this should affect our result.
FN4. Under 42 U.S.C. § 9607(a), “responsible parties”
include:
(1) the owner and operator of a vessel or a facility,
A-40
(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....
(emphasis supplied).
As courts have observed, Congress intended that
the underscored language relate not only to §
9607(a)(4), but also to § 9607(a)(1)-(3), but
apparently misdrafted the language. See, e.g.,
Dedham Water Co. v. Cumberland Farms Dairy, Inc.,
889 F.2d 1146, 1151 n. 4 (lst Cir.1989); New York
v. Shore Realty Corp., 759 F.2d 1032, 1043 n. 16
(2d Cir.1985).
*271 FN5. Unfortunately, CERCLA was passed in great
haste during the waning days of the 96th Congress.
As a result, the statute is riddled with
A-41
inconsistencies and redundancies. See A
Legislative History, Vol. 1, pp. 785-87.
FN6. See, e.g., Exec. Order No. 12,580 (January 23,
1987).
FN7. See supra n. 4.
FN8. A facility is defined as:
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(a).
The parties have agreed that the Site is a “facility”
within the meaning of CERCLA.
FN9. A release is defined as:
any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching,
dumping, or disposing into the environment
(including the abandonment or discarding of
barrels, containers, and other closed receptacles
containing any hazardous substance or pollutant or
contaminant), but excludes (A) any release which
results in exposure to persons solely within a
workplace, with respect to a claim which such
A-42
persons may assert against the employer of such
persons, (B) emissions from the engine exhaust of a
motor vehicle, rolling stock, aircraft, vessel, or
pipeline pumping station engine, (C) release of
source, byproduct, or special nuclear material from
a nuclear incident, as those terms are defined in the
Atomic Energy Act of 1954 [42 U.S.C. § 2011 et
seq.] if such release is subject to requirements with
respect to financial protection established by the
Nuclear Regulatory Commission under section 170
of such Act [42 U.S.C. § 2210], or, for the purposes
of section 9604 of this title or any other response
action, any release of source byproduct, or special
nuclear material from any processing site
designated under section 7912(a)(1) or 7942(a) of
this title, and (D) the normal application of fertilizer.
42 U.S.C. § 9601.
The parties in this suit have also agreed that a
“release” has occurred.
- FN10. Section 9601 provides that the terms “respond”
and “response” mean “remove, removal, remedy,
and remedial action, all such terms (including the
terms ‘removal’ and ‘remedial action) include
enforcement actions related thereto.” Typically, a
“removal” action is an action intended to remove the
hazardous waste from the area, whereas a
“remedial” action involves a long-term effort to
remedy the damaged environment. See
Government’s Br. at 4 n. 4.
FN11. That section provides that CERCLA liability “shall
be construed to be the standard of liability” under
section 311 of the Clean Water Act, 33 U.S.C. §
1321; section 1321 liability is strict. See, e.g.,
A-43
Steuart Transportation Co. v. Allied Towing Corp.,
996 F.2d 609, 613 (4th Cir. 1979).
FN12. As we discuss below, the court of appeals in
Amoco effectively built back into the statute a
threshold requirement under the causation prong of
liability in the single-generator context.
FN13. EPA’s statement that it does not consider a waste
to be “hazardous” for purposes of the Resource
Conservation and Recovery Act (“RCRA”) unless
that waste exists in a form “capable of causing
substantial harm if mismanaged,” 57 Fed.Reg. 1, 12
(January 2, 1992), does not alter our conclusion.
As we discuss infra at n.19, RCRA’s goals differ from
CERCLA’s, and we do not construe EPA’s comments
as indicating that the Agency also imputes a
threshold concentration requirement into the
definition of hazardous substance under section
101(14) of CERCLA, especially in the face of plain
Statutory language indicating otherwise.
There is some force-to Alcan’s argument that this
definition of “hazardous substances” is so broad
that it encompasses virtually everything and
thereby eviscerates the meaning of “hazardous.”
However, our holding with respect to divisibility of
harm as discussed below should assuage Alcan’s
fear that liability under CERCLA will be as far-
reaching as the definition of hazardous substances.
FN14. We agree with the district court in Alcan New
York regarding the origin of the table.
*271 FN1S. “Reportable quantity” is defined in EPA’s
regulations as “that quantity, as set forth in this
part, the release of which requires notification
pursuant to this part.” 40 C.F.R. 302.3. Under 42
A-44
U.S.C. § 9603, the person in charge of a facility is
required to notify EPA immediately of any release of
a hazardous substance in a quantity equal to or
exceeding the RQ for that substance.
FN16. Section 302.4(a) provides, “Listed hazardous
substances. The elements and compounds and
hazardous wastes appearing in Table 302.4 are
designated as hazardous substances under section
102(a) of the Act.”
FN17. It is also significant that Table 302.4 does not
include a_ generic category for all related
substances. Thus, EPA chose to deem hazardous
only certain broad categories of substances, not all.
FN18. While reading the statute to include generic
compounds within the meaning of hazardous
substances leads to a duplicative listing of wastes
containing generic compounds, this is not a fatal
flaw and, moreover, is not the only place in which
the statute is duplicative. This duplication stems
from the fact that section 101(14) of CERCLA
incorporates various statutory schemes and the
regulatory lists promulgated pursuant to those
statutes.
FN19. In any event, as the district court noted in City of
New York v. Exxon Corp., “the solubility test
{pursuant to 40 C.F-.R. § 261.20-261.24] is designed
to determine the mobility of particular constituents
in waste and their potential to contaminate
groundwater after leaking from a landfill... This
particular concern--the protection of groundwater--
addressed by the EP test is based upon RCRA’s
regulatory objectives, not on CERCLA’s broad,
remedial concern for releases into any
A-45
environmental media.” 766 F.Supp. at 185
(emphasis in original). Thus we agree with the
Government’s contention that RCRA’s gvals differ
from those of CERCLA.
FN20. As we discuss below, whether Alcan is correct
that its emulsion poses no threat to the
environment, even when added to other hazardous
substances, should be thoroughly investigated on
remand in the factual hearing concerning the
divisibility of harm.
FN21. Alcan’s argument that the district court’s
decision is inconsistent with prior EPA actions is
without merit. The facts in this case are not
identical to those in cases cited by Alcan where EPA
did not seek to impose CERCLA liability. Further, it
is far from clear that EPA took the action it did in
those cases because it determined that materials
containing only trace elements of listed hazardous
substances were not hazardous under CERCLA.
Equally unavailing is Alcan’s assertion that the
district court’s opinion conflicts with EPA’s recently
promulgated national policy concerning household
waste. The fact that EPA has determined that
liability should not be imposed on homeowners for
household waste does not indicate that household
waste is not hazardous, but rather evinces EPA’s
understanding that household waste does include
hazardous substances, for otherwise there would be
no need to create an exception. Obviously, there
are significant policy reasons to _ exclude
homeowners from CERCLA liability.
FN22. Of course, if the defendant is not a responsible
party with respect to the facility, then it cannot be
liable.
A-46
FN23. Alcan is correct that the court in Louisiana-Pacific
Corp. v. Asarco, Inc., 735 F.Supp. 358, 362
(W.D.Wash. 1990), imposed the causation
requirement that Alcan requests. The court there
held: “liability does not attach because the
defendant caused ‘a release,’ but because it caused
‘response costs.” With all due respect, we believe
that the court reached its conclusion based on an
incorrect analysis of Dedham Water Co. uv.
Cumberland Farms Dairy, Inc., 889 F.2d 1146, and
Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, and we
decline to follow it.
FN24. Alcan raises other challenges, but they are
without merit. It asserts that the statute is
impermissibly vague, but the district court by
following Alcan New York correctly rejected that
challenge because the statute provides fair notice of
what is considered a CERCLA hazardous
substance. Moreover, it has long been established
that civil enactments are reviewed with greater
leniency than criminal statutes. See Hoffman
Estates v. Flipside, Hoffman Estates, 455 U.S. 489,
498-99, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362
(1982); Kreimer v. Bureau of Police of Morristown,
958 F.2d 1242, 1266-70 (3d Cir.1992), to be
reported at 958 F.2d 1242. In addition, Alcan
alleges that it has been subjected to unfair
prosecution in violation of the equal protection
clause, but it has not put forward any evidence to
support that assertion. Thus, the district court’s
rejection of this claim was correct.
*2'71 FN25. Dean Prosser’s hornbook highlights the
paradox of liability where acts harmless in
themselves together cause damage, observing:
PEE CER RE TE ee
SRN RAE PASE
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A-47
A very troublesome question arises where the acts of
each of two or more parties, standing alone, would
not be wrongful, but together they cause harm to the
plaintiff. If several defendants independently pollute
a stream, the impurities traceable to each may be
negligible and harmless, but all together may render
the water entirely unfit for use. The difficulty lies in
the fact that each defendant alone would have
committed no tort. There would have been no
negligence, and no nuisance, since the individual
use of the stream would have been a reasonable use,
and no harm would have resulted. William L.
Prosser, Law of Torts, § 52, at 322 (4th ed.1971).
FN26. By adhering to the mules set forth in the
Restatement, we also further the interest in achieving
uniformity in the articulation of federal common law
that governs CERCLA’s interstices. Accord, United
States v. Monsanto, 858 F.2d at 171-72.
FN27. Interestingly, the drafters of the Restatement
found that joint pollution of water is typically
subject to the divisibility rule. They write:
There are other kinds of harm which, while not so
clearly marked out as severable into distinct parts, are
still capable of division upon a reasonable and rational
basis, and of fair apportionment among the causes
responsible.... Such apportionment is commonly made
in cases of private nuisance, where the pollution of a
Stream ... has interfered with the plaintiffs use and
enjoyment of his land.
Section 433 A, Comment d (emphasis supplied).
See, e.g., Somerset Villa, Inc. v. Lee’s Summit, 436
S.W.2d 658 (Mo. 1968).
A-48
FN28. Section 433 B(2) provides, “Where the tortious
conduct of two or more actors has combined to
bring about harm to the plaintiff, and one or more
of the actors seeks to limit his liability on the
ground that the harm is capable of apportionment
among them, the burden of proof as to the
apportionment is upon each such actor.”
FN29. In this vein, we also reject the Government’s
argument that a hearing is unnecessary because
Alcan has admitted that its emulsion was
“commingled” with the other generators’ waste:
“commingled” waste is not synonymous with
“indivisible” harm. We observe that some courts have
held that a generator may present evidence that it has
paid more than its “fair share” in a contribution
proceeding, expressly permitted under 42 U.S.C. §
9613(f(2). See, e.g., 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, 108 L.Ed.2d 767 (1990);
United States v. Monsanto, 858 F.2d at 173. Ina
sense, the “contribution” inquiry involves an analysis
similar to the “divisibility” inquiry, as both focus on
what harm the defendant caused. However, we
believe that this inquiry, to the extent that it is the
same as that discussed in above-noted cases, is best
resolved at the initial liability phase and not at the
contribution phase since it involves precisely relative
degrees of liability. Thus, if the defendant can prove
that the harm is divisible and that it only caused some
portion of the injury, it should only be held liable for
that amount. In our view, the logical consequence of
delaying the apportionment determination may well
be drastic, for it seems clear that a defendant could
easily be strong-armed into settling where other
defendants have settled in order to avoid being held
A-49
liable for the remainder of the response costs. Indeed,
in this case the court determined that Alcan, one of 20
defendants, was liable for $473,790.18 in response
costs, although the total response costs amounted to
$1,302,290.18. Thus, although Alcan comprised only
5% of the defendant pool, it was required by the court
to absorb over 36% of the costs. Furthermore, Alcan’s
share of the liability seems to be disproportionate on a
volume basis as well. We also point out that
contribution will probably not be available from a
settling defendant in an action by the United States.
42 U.S.C. § 9613(f(2).
We note, of course, that a determination in a given
case that harm is indivisible will not negate a
defendant’s right to seek contribution from other
non-settling defendants, as the contribution
proceeding is an equitable one in which a court is
permitted to allocate response costs based on factors
it deems appropriate, whereas the court is not vested
with such discretion in the divisibility determination.
*271 FN30. In addition, our approach is consistent with
that in O’Neil v. Picillo, 883 F.2d at 182, and United
States v. Monsanto Co., 858 F.2d at 166, in which
the courts approved the imposition of joint and
several liability after determining that the harm was
in fact indivisible.
FN** Honorable Dickinson R. Debevoise, United States
District Judge for the District of New Jersey, sitting
by designation.
A-50
892 F.Supp. 648
UNITED STATES of America, Plaintiff,
v.
ALCAN ALUMINUM CORPORATION, Defendant.
Civ. A. No. 89-CV 1657.
United States District Court,
M.D. Pennsylvania.
June 28, 1995.
*650 Margaret Kane Harrington, Land and Natural
Resources Div., Environmental Defense Section, U.S.
Dept. of Justice, Michael D. Mcintyre, Environmental
Enforcement Section, U.S. Dept. of Justice, Richard B.
Stewart, Asst. Atty. Gen., Land and Natural Resources
Div., U.S. Dept. of Justice, Washington, DC, Robert R.
Long, Jr., Asst. U.S. Atty., Lewisburg, PA, John A.
Morano, Jr., U.S. Atty’s Office, Scranton, PA, Michael J.
McNulty, Dept. of Justice, Environment & Natural
Resource Div., Environmental Enforcement Section,
Washington, DC, for plaintiff.
Gerry J. Elman, Frederic M. Wilf, Elman Associates,
P.C., Media, PA, Lawrence A. Salibra, II, Cleveland, OH,
for defendant.
MEMORANDUM
VANASKIE, District Judge.
This cost recovery action by the United States (the
“Government”) under Section 107(a) of the
Comprehensive Environmental Response, Compensation
and Liability Act (“CERCLA”), 42 U.S.C. Sec. 9607(a), is
before this Court on remand from the United States
Court of Appeals for the Third Circuit. This Court was
A-51
directed to determine whether defendant Alcan
Aluminum Corporation (“Alcan”) can avoid or limit
liability that otherwise may be imposed as a result of the
fact that its used oil emulsion had been commingled with
other oily wastes containing hazardous substances
which discharged from a mine tunnel into the
Susquehanna River in 1985 in the wake of Hurricane
Gloria. See United States v. Alcan Aluminum Corp., 964
F.2d 252, 270-71 (3rd Cir.1992) (“Alcan-Butler”). Our
Court of Appeals indicated that if Alcan established that
its used “emulsion did not or could not, when mixed with
other hazardous wastes, contribute to the release and
the resultant response costs, then Alcan should not be
responsible for any response costs.” Id. at 270 (emphasis
in original). In remanding this matter, the Third Circuit
plainly contemplated that an evidentiary hearing would
be conducted on the “intensely factual” issue of “whether
there is a reasonable basis for limiting Alcan’s liability
based on its personal contribution to the harm to the
Susquehanna River.” Id. at 269.
Contrary to the expectations of the Third Circuit
that an evidentiary hearing would be conducted on
such complex matters as the relative toxicity, migratory
potential, and synergistic capacity of the hazardous
waste at issue, Alcan has reiterated its previously
articulated argument that, as a matter of law, it cannot
be heid liable for any of the costs incurred by the
Government in responding to the release of oily wastes
into the Susquehanna River. (Docket Entry 135.) The
crux of Alcan’s argument is that those constituents of
its oily waste that are defined to be “hazardous
substances” under CERCLA (metals such as lead,
cadmium, chromium, copper and zinc) are present in
the used emulsion at concentrations below the
naturally-occurring levels of those metals so that the
presence of those metals in its used emulsion could not
have caused any environmental harm. Alcan also
A-52
asserts that liability may not be imposed against it
because the Environmental Protection Agency (“EPA”)
did not direct any response efforts to the removal of
metals following the 1985 discharge. Alcan
acknowledges that the arguments presented in its
summary judgment motion are very similar to
arguments it pursued before the Third Circuit, i.e., that
its used emulsion did not cause any injury to the
Susquehanna River because “below ambient levels of
any substance can never cause OF contribute to a
release or response costs.” Id. at 270.
The Government has also moved for summary
judgment on the remanded issue. (Docket Entry 131.)
The gist of the government’s argument is that this
Court’s inquiry is not to be restricted to the below
ambient level of metals in the emulsion. According to the
Government, “it was the emulsion as a whole, not just
the individual constituents in the emulsion, which
contributed to the harm....”. (Brief in Support of
Government’s Summary Judgment Motion (Docket Entry
131) at 35.) Asserting that Alcan has failed to present
any evidence on matters germane to a determination that
its liability should not be joint and several, such as the
percentage of the volume of total waste represented by
Alcan’s waste, the relative toxicity of Alcan’s waste
compared to other constituents *651 of the oily mass,
etc., the government maintains that it is entitled to
summary judgment.
It is the law of this case that the addition of metals
below ambient levels to Alcan’s emulsion during the
manufacturing processes brings the used emulsion
within CERCLA’s purview. 964 F.2d at 266-67. In
assessing relative responsibility for environmental
harm, therefore, the focus must be on the emulsion as a
whole, and not its individual constituents. Because
there is no evidence that the used emulsion was
A-53
environmentally safe, and in view of Alcan’s failure to
offer any other evidence on the question of whether
there is a reasonable basis for deterwining the
contribution of its used emulsion to the polluuv.. of the
Susquehanna River, Alcan’s summary judgment motion
will be denied and the Government’s summary
judgment motion will be granted. (FN 1)
I.
FACTS AND PROCEDURAL HISTORY
A. STATEMENT OF THE FACTS
The factual background of this case is set forth in
the Third Circuit’s Opinion, 964 F.2d at 255-57, and
familiarity with that Opinion is assumed. It is sufficient
for purposes of this Memorandum to recite only the
following salient facts:
In its manufacturing processes, Alcan used an
emulsion consisting of 95% deionized water and 5%
mineral oil. (FN2)
During the manufacturing process, trace levels of
copper, chromium, cadmium, zinc and lead were
added to the emulsion. (FN3)
Copper, chromium, cadmium, lead and zinc are
hazardous substances under CERCLA. 964 F.2d at
256.
The level of concentration of these hazardous
substances in Alcan’s used emulsion was below the
naturally-occurring, or ambient, levels of these
hazardous substances.
In the late 1970’s, approximately 2 million gallons
A-54
of oily wastes containing hazardous substances
were dumped down an air shaft or “borehole”
leading to a network of coal mines and related
tunnels, caverns, pools and waterways bordering
the east bank of the Susquehanna River in Pittston,
Pennsylvania. ‘Hereinafter referred to as the “Site.”)
The mine workings are drained by the Butler
Tunnel, which discharges directly into the
Susquehanna River.
From mid-1978 to late 1979, approximutely 32,500
to 37,500 gallons of Alcan’s used emulsion was
dumped down the borehole leading to the mine
workings serviced by the Butler Tunnel. (FN4)
In September of 1985, in the wake of Hurricane
Gloria, approximately 100,000 gallons of oily waste
contaminated with hazardous substances were
discharged from the Butler Tunnel into the
Susquehanna River.
EPA’s response costs in addressing this release
totalled $1,302,290.18. Response actions included
“containing an oily material on the river through
the use of absorbent booms; immediately removing
and disposing of 161,000 pounds (over 80 tons) of
oil and chemical-soaked debris and soil,
monitoring, sampling and analysis of air and water,
and conducting hydrogeologic studies.” 964 F.2d
at 256-57.
*652 Alcan’s used emulsion was commingled in
the waste materials discharged into the
Susquehanna River in September of 1985. (FNS)
The waste oils removed from the Susquehanna
River contained cadmium, chromium, copper, lead
and zinc. (FN6)
A-55
B. PROCEDURAL HISTORY
In November, 1989, the Government brought this
action against 20 defendants who purportedly
generated the waste materials dumped into the
borehole and which discharged into the Susquehanna
River. Included among the defendants was Alcan. The
government settled with 19 of the defendants, and then
moved for summary judgment against Alcan, the lone
non-settling defendant. The government sought a
determination that Alcan was jointly and severally liable
for the remaining unreimbursed response costs of
$473,790.18, or more than 35% of the total response
costs of $1,300,000. Alcan cross moved for summary
judgment, contending that its waste emulsion was not a
“hazardous substance” as defined by CERCLA because
levels of copper, cadmium, chromium, lead and zinc
were below naturally-occurring levels.
Adopting the reasoning set forth in United States v.
Alcan Aluminum Corp., 755 F.Supp. 531 (N.D.N.Y.
1991), affd in part and rev'd in part, 990 F.2d 711 (2nd
Cir.1993), this Court found that Alcan’s used emulsion
was a hazardous substance under CERCLA and that
Alcan was jointly and severally liable for the
Government’s unreimbursed response costs because
the environmental harm caused by the commingled
wastes was indivisible. Accordingly, judgment was
entered against Alcan for $473,790.18.
On appeal, the Third Circuit affirmed this Court’s
holding that there is no_ threshold quantitative
requirement for a waste to be defined as a “hazardous
substance.” Thus, because Alcan’s used emulsion
admittedly contained elements that fall within the
definition of “hazardous substances” in CERCLA, see 42
U.S.C. Sec. 9601(14), the presence of its used emulsion
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in the commingled mass of waste exposed Alcan to
liability. In this regard, the appellate court rejected
Alcan’s argument that the Government must prove that
Alcan’s oily waste caused or contributed to the “release”
or the government’s incurrence of response costs. (FN7)
Instead, as our Court of Appeals explained, “the
Government must simply prove that the defendant's
hazardous substances were deposited at the site from
which there was a release and that the release caused
the incurrence of response costs.” 964 F.2d at 266
(emphasis in original).
The Third Circuit also rejected Alcan’s contention
that its used emulsion was excluded from CERCLA
liability because it constituted “petroleum,” which is
exempted from the definition of hazardous substances
in 42 U.S.C. Sec. 9601(14). Specifically, the court ruled
that because Alcan’s manufacturing processes added
hazardous substances such as cadmium, chromium,
copper, lead and zinc to the emulsion, albeit at below-
ambient levels, the petroleum exclusion was
inapplicable. In this regard, the court noted that “the
relevant legislative history ... indicates that the
exclusion was intended for oil spills, not for releases of
oil which has become infused with hazardous
substances through use.” 964 F.2d at 267.
Responding to Alcan’s assertion that extending
CERCLA to materials that contained only ambient levels
of hazardous substances would subject parties to joint
and several liability even if the materials posed no threat
to the environment, the Third Circuit held that the
divisibility of harm rule set forth in Section 433A of the
Restatement (Second) of Torts was applicable. The court
explained that a party could avoid or limit liability by
showing that its material could not cause any harm or by
establishing a *653 reasonable basis for apportioning
liability. 964 F.2d at 267-71.
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Alcan urged that there was no need for an
evidentiary hearing on the divisibility of harm issue,
asserting that in this case “not only is the harm divisible,
but [Alcan’s] relevant contribution to the injury to the
Susquehanna River is zero.” Id. at 269-70. The Third
Circuit, however, determined that it was not the
appropriate forum to decide this issue in the first
instance, observing that “whether Alcan is correct that its
emulsion poses no threat to the environment, even when
added to other hazardous substances, should be
thoroughly investigated on remand in the factual hearing
concerning the divisibility of harm.” Id. at 264 n. 20.
Thus, this matter was remanded to reconsider “Alcan’s
effort to avoid liability otherwise established.” Id. at 269.
Following remand, the parties engaged in some
discovery. Both the Government and Alcan then moved
for summary judgment. Following the filing of briefs, oral
argument was conducted. This matter is ripe for
disposition. (FN8)
II.
DISCUSSION
A. Summary Judgment Standards
Summary judgment should be granted when “there
is no genuine issue as to any material fact and ... the
moving party is entitled to a judgment as a matter of
law.” Fed.R.Civ.P. 56(c). A fact is “material” if proof of
its existence or non-existence might affect the outcome
of the suit under the applicable law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
2510, 91 L.Ed.2d 202 (1986). “Facts that could alter
the outcome are material facts.” Charlton v. Paramus
Board of Education, 25 F.3d 194, 197 (Srd Cir.), cert.
A-58
denied, --- U.S. ---, 115 S.Ct. 590, 130 L.Ed.2d 503
(1994). “Summary judgment will not lie if the dispute
about a material fact is ‘genuine,’ that is, if the evidence
is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson, 477 U.S. at 248, 106
S.Ct. at 2510. There is no issue for trial unless
sufficient evidence favors the nonmoving party so that a
jury could return a verdict for that party. Id., at 249,
106 S.Ct. at 2510-11. Rule 56 requires the entry of
summary judgment where a party “fails to make a
showing sufficient to establish the existence of an
element essential to that party’s case, and on which
that party will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,
2552, 91 L.Ed.2d 265 (1986).
B. Alcan’s Summary Judgment Motion on the
Divisibility of Harm issue
[1] The crux of the parties’ dispute pertains to
whether Alcan’s potential contribution to _ the
environmental harm to the Susquehanna River is limited
to an assessment of the impact of the trace-level metals
found in its used emulsion or should encompass the
environmental significance of the used emulsion as a
whole. Alcan insists that its potential liability can only
be determined in the context of those constituents of its
used emulsion that are defined to be “hazardous
substances” and which render inapplicable CERCLA’s
petroleum exclusion--the heavy metals added in trace
levels to its emulsion as a consequence of the
manufacturing process. According to Alcan, the below
background levels of the metal constituents of its used
emulsion could not have caused an environmental
problem relating to metals at the Site. Alcan also asserts
that the Government’s response actions were unrelated
to the presence of metals. Thus, argues Alcan, it cannot
be held liable for any of the Government’s response costs.
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The Government responds by contending that the
absence of environmental problems and response actions
related to metals at the Site are immaterial. According to
the Government, “it was the emulsion as a whole, not
just the individual constituents in the emulsion, which
contributed to the harm at the Site.” (Brief in support of
the Government’s Summary Judgment Motion (Docket
Entry 131) at 35.)
*654 During oral argument, Alcan conceded that it
cannot prevail on its summary judgment motion if the
hazardous substance of concern is the used emulsion
itself. (Tr. at 10.) Thus, the dispositive question here is
whether the focus of the divisibility of harm issue should
be on the emulsion as a whole or should be limited to its
constituents. (FN9)
Alcan draws support for its position from the
concluding paragraph of the Third Circuit Opinion, in
which it is stated that “if Alcan can establish that the
hazardous substances in its emulsion could not, when
added to other hazardous substances, have caused or
contributed to the release or the resultant response
costs, then it should not be liable for any of the response
costs.” 964 F.2d at 271 (emphasis added). But
elsewhere in its Opinion the Court of Appeals indicated
that the inquiry should be directed to whether “the
emulsion did not or could not, when mixed with other
hazardous wastes, contribute to the release and
resultant response costs....” Id. at 270 (emphasis in
original and added). The court also Stated that it would
be Alcan’s burden to show that “its emulsion poses no
threat to the environment, even when added to other
hazardous substances....” 964 F.2d at 264 n. 20. Thus,
the question of whether this Court’s iriquiry should be
limited to the “hazardous substances” found in the used
emulsion is not answered by the Third Circuit opinion.
A-60
Essentially, Alcan is arguing that even if its used
emulsion, as a whole, is environmentally harmful, it
should not be subject to any liability because the
constituents that remove the used emulsion from
CERCLA’s petroleum exclusion could not be the cause
for that environmental harm. This effort to dissect its
waste material into components regulated by CERCLA
and those not regulated by CERCLA is not consistent
with the remedial purposes sought to be advanced by
this legislation. (FN10) Furthermore, a holding that the
dumping of a petroleum-based liquid that falls outside
CERCLA’s petroleum exclusion because of the addition
of heavy metals in the manufacturing process is not
subject to CERCLA liability because the metals did not
cause any environmental harm cannot be reconciled
with “the legislative history which indicates that the
[petroleum] exclusion was intended for oil spills, not for
releases of oil which has become infused with
hazardous substances through use.” 964 F.2d at 267.
As the Government pointed out during oral argument:
[O]Jnce you add metals or any other foreign
substance to the petroleum, if it doesn’t exist in the
state Congress and EPA recognize as the regulated
state under other statutes, then it’s a hazardous
substance.... That’s what makes it a hazardous
substance.
And it doesn’t mean that you're allowed to then focus
on each of the individual constituents or any
threshold level with respect to those constituents. lt
means that the entire emulsion oil is a hazardous
substance.
*655 Tr. at 31-32.] (FN11)
In short, the environmental harm posed by the
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medium that contains CERCLA-defined “hazardous
substances” cannot be ignored. If the medium, with its
“hazardous substance” constituents at ambient or below
ambient levels, is environmental benign, even when
mixed with other hazardous wastes, then liability should
not be imposed. Thus, for example, if Alcan had
generated federally-approved drinking water that was
dumped into the borehole it would not be subject to
lability because that drinking water, even though it
contains naturally-occurring levels of chromium and
other metals, could not have caused any environmental
harm. (FN12)
In this case, Alcan has presented neither evidence
nor argument that its used emulsion is environmentally
benign. While the constituents of the used emulsion
which bring it within CERCLA’s ambit may not have
contributed to the harm, Alcan has not contended that
it. used emulsion itself was harmless.
In this regard, Alcan’s analogy to commingling sand
(hazardous because it is an abrasive) and an explosive
is inapt. The logical consequence of the Governme
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