# Petition for Writ of Certiorari — Alcan Aluminum Corp. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0449%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1997 - **Citation:** 521 U.S. 1103 ## Text 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 it na taeh Sone A aoa 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 4 j é 2 ; ; : a 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 A-19 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 A-20 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 A-22 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.”) A-28 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 c [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0449%3A1. Public record. Not legal advice.