Supplemental Appendix — Alcan Aluminum Corp. v. United States

MAR 14 1997

NO. 96-1494

Ciroy

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

SUPPLEMENTAL APPENDIX

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

LIST OF PARTIES

United States of America, Plaintiff.

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, Ingersoll-Rand; NEAPCO, Inc.;

Rome Strip Steel Co., Inc.; Stanley Works, Inc.; TRW,

Inc.; United Technologies, Defendants.

SUPPLEMENTAL APPENDIX

Attached hereto as a Supplemental Appendix to the

Petition for Writ of Certiorar’ of Petitioner Alcan

Aluminum Corporation is United States v. Alcan

Aluminum Corp., Memorandum Opinion and Order

dated October 4, 1995. This Memorandum Opinion

and Order was inadvertently omitted from Petitioner’s

Petition for Writ of Certiorari and erroneously referred

to in Opinions Below as printed at A-103.

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 (Supp)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA,

: CIVIL ACTION

Plaintiff, : NO. 89-1657

vs. : (J. VANASKIE)

ALCAN ALUMINUM CORPORATION,

Defendant.

MEMORANDUM AND ORDER

In reversing and remanding this Court’s

determination that Alcan Aluminum Corp. (“Alcan”)

was jointly and severally liable for the costs of

remediating a release of hazardous substances into

the Susquehanna River, our Court of Appeals

indicated that if Alcan could establish that its used

“emulsion did not or could not, when mixed with other

hazardous wastes, contribute to the release [of

hazardous substances into the Susquehanna River]

and the resultant response costs, then Alcan should

not be responsible for any response costs [incurred by

the United States under the Comprehensive

Environmental Response, Compensation and Liability

Act (CERCLA) 42 U.S.C. 9601, et seq.}” (Emphasis in

original.) United States v. Alcan Aluminum Corp., 964

F.2d 252, 270 (3d Cir. 1992). Alcan had the burden

of proving that its emulsion did not contribute to the

pollution of the Susquehanna River or that there was

a factual basis for the apportionment among

A-2 (Supp)

responsible parties of the costs incurred to remediate

the Site.’

On remand, Alcan did not present any evidence

relating to the “intensely factual” matters of relative

toxicity, migratory potential or synergistic capacity of its

emulsion when mixed with other hazardous substances

at issue, nor did Alcan attempt to demonstrate the

volume of waste disposed of at the Site or the percentage

of that volume represented by Alcan’s wastes. Instead,

both Alcan and the United States moved for summary

judgment, essentially relying on the record that had

formed the predicate for the initial summary judgment

ruling in this case and the Court of Appeals’ decision

referenced above. Because Alcan had failed to present

an evidentiary basis for its contention that its used

emulsion was not part of the chemical soup that was

removed from the Susquehanna River and did not

otherwise pursue a request for apportionment of

damages on some volumetric or other basis, Alcan was

held jointly and severally liable for the costs incurred by

the United States in cleaning up the polluted

Susquehanna River. (Memorandum and Order dated

June 28, 1995 (Dkt. Entry 161).)

On July 13, 1995, Alcan filed a motion for

reconsideration of the decision granting summary

judgment in favor of the United States. (Dkt. Entry

163.) To warrant consideration, the movant must

show that there is some clear error of law or evident

misapplication of the facts. Harso Corp. v. Zlotnicki,

779 F.2d 906, 909 (3rd Cir. 1985), cert. denied, 476

U.S. 1171 (1986). Because Alcan has not shown clear

‘The Site was a network of coal mines and related tunnels,

caverns, pools and waterways bordering the east bank of

the Susquehanna River in Pittston, Pennsylvania.

ee eS en eee -—

A-3 (Supp)

error of law or a misapprehension of the facts, Alcan’s

motion will be denied.

In its motion for reconsideration and at oral

argument Alcan argued that I overlooked “record

evidence” which demonstrated that the response action

was not directed at Alcan’s emulsion. (Dkt. Entry 163

at 2.) It is undisputed, however, that Alcan’s emulsion

was part of the commingled oily waste that polluted the

Susquehanna River. Alcan failed to present evidence

showing that its emulsion was not part of the oily scum

that was skimmed from the Susquehanna River.

Because it is undisputed that the entire “hazardous

soup” that discharged into the Susquehanna River was

remediated, and Alcan’s emulsion was one of the

ingredients of this oily stew, it is incorrect to say that

the response action was not directed at the emulsion.’

Alcan alleges that its emulsion did not float on the

surface and, in effect, “passed under” the “Harvard

booms” which were used to skim the oily waste from

the Susquehanna River. (Dkt. Entry 163 at 7.) This

argument considers Alcan’s waste emulsion in

isolation, and not as a constituent of the mass of oily

waste that flowed into the Susquehanna River.’ Alcan

?Alcan’s “dioxin-in-milk” argument misses the point. Alcan’s

emulsion alone may have necessitated response action, but

the milk alone may not. It thus does not follow that the

generator of milk contaminated by some other party’s dioxin

would bear some liability. Because Alcan’s discharge of

emulsion into a river may warrant some clean-up action and

its hazardous constituents bring it within CERCLA’s ambit, it

is subject to liability even if the response action did not

specifically target the hazardous constituents of its waste.

*For example, David. J. Lagoe, quoted in Alcan’s motion,

considered the Alcan emulsion in isolation and did not

consider the outcome of it mixing with other substances.

Dkt. Entry 133, Exh. 2 at 75.

A-4 (Supp)

did not present evidence that its emulsion was not part

of the waste removed from the Susquehanna River. As

the United States observes, “Alcan’s argument ignores

the directive to demonstrate what happens when

Alcan’s waste is mixed with other wastes at the sites.”

(Dkt. Entry 164 at 5.)

In arguing that its emulsion is not a hazardous

substance subject to remediation, Alcan infers that

because the substance is biodegradable, it is benign.’

Alcan’s assertion begs the question of why Alcan paid

a waste hauler to remove the emulsion and why the

waste hauler surreptitiously dumped the emulsion

into a mine borehole. Clearly, the emulsion could not

be discharged into a river. The emulsion is a

pollutant. As our Court of Appeals held, the fact that

this pollutant contains some hazardous substances,

even below ambient levels, brings it within CERCLA’s

broad reach. The presence of this pollutant in the oily

stew that was remediated subjected Alcan to joint and

several liability, unless Alcan presented evidence

showing that its pollutant did not contribute to the

release and resultant response costs. Alcan’s failure

to address the issue of the interaction of its pollutant

with other pollutants thus warranted imposition of

joint and several liability.°

*As evidence of the emulsion’s biodegradability Alcan points

to David J. Lagoe’s affidavit from United States v. Alcan

Aluminum Corp., 990 F.2d 771 (2nd Cir. 1993), filed

January 4, 1991. In that affidavit Lagoe stated that the

used emulsion from another facility is used to irrigate lawns

in Kentucky pursuant to a government permit. (Dkt. Entry

93, Alcan’s Supplemental Brief in Opposition to Plaintiff's

Summary Judgment Motion, Exh. “D,” at ¢ 13.)

SAlcan was essentially invited to present evidence that

would have permitted apportionment of liability on a

volumetric basis. The record suggests that if liability was

A-5 (Supp)

The premise for Alcan’s liability is that its

emulsion is classified as hazardous under CERCLA.

Alcan’s perceived unfairness in having to contribute

to the cost of remediating the Site at which thousands

of gallons of its emulsion was dumped must therefore

be remedied by the creators of this liability scheme,

Congress.°

Alcan was charged with proving that “its waste oil

emulsion did not or could not, when mixed with other

hazardous wastes, contribute to the release and

resultant response costs.” Alcan, 964 F.2d at 270

(emphasis in original). Alcan has not met its burden

of proof.

divided on this basis, Alcan’s share of the response cost

would be approximately $65,000 (5% of $1,302,290.18), as

opposed to $473,790.10 (the difference between the

government’s response cost of $1,302,290.18 and the

amount paid by the settling defendants). Alcan, however,

has adamantly refused to pursue this approach, contending

that it should bear no liability for the discharge of

thousands of gallons of its waste into the Susquehanna

River.

°Alcan’s strident rhetoric and its repeated assertion that its

emulsion is like milk ignore the fact that Congress

conditioned liability on the release of hazardous substances.

Alcan’s emulsion contains hazardous substances and was

released into the environment at the Site. Under the

statutory scheme, a release of a hazardous substance may

lead to liability, even joint and several liability, for a polluter

whose contaminants do not have chronic adverse

consequences for the environment. Common law principles

of apportionment of liability can ameliorate the

consequences and counter the “strong-arm” settlement

tactics that joint and several liability may permit, but Alcan

has eschewed that opportunity to minimize its liability.

A-6 (Supp)

NOW, THEREFORE, IT IS NOW HEREBY

ORDERED THAT Alcan’s Motion for Reconsideration

(Dkt. Entry 163) is DENIED.

/s/ Thomas I. Vanaskie

U.S. District Judge