# Opposition Brief — Alcan Aluminum Corp. v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0449%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 521 U.S. 1103

## Text

No. 96-1494 CLERK

Jn the Supreme Court of the Giited States

OCTOBER TERM, 1996

ALCAN ALUMINUM CORPORATION, PETITIONER

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WALTER DELLINGER
Acting Solicitor General
LOIS J. SCHIFFER
Assistant Atto Hey (re hi¢ ral
DAVID C. SHILTON
MICHAEL J. MCNULTY
JOHN T. STAHR
Attorneys
De partment of Justice
Washington, D.C. 20530-0001
(202) 514-2217

~ i

QUESTIONS PRESENTED

1. Whether Congress’s definition of “hazardous
substance” in the Comprehensive Environmental Re-
sponse, Compensation, and Liability Act of 1980
(CERCLA), 42 U.S.C. 9601(14), should be interpret-
ed to include a minimum threshold concentration
requirement.

2. Whether CERCLA’s requirement that the
release of waste at a disposal site “cause[] the incur-
rence of response costs,” 42 U.S.C. 9607(a), should be
interpreted to require an additional showing that
each individual company’s hazardous substances inde-
pendently caused the response costs to be incurred.

3. Whether the court of appeals correctly held that
petitioner had failed to demonstrate that the harm
from the release is capable of reasonable apportion-
ment, where petitioner declined to introduce any evi-
dence regarding that factual inquiry.

4. Whether the court of appeals erred in applying
CERCLA’s liability provision, 42 U.S.C. 9607(a),
retroactively to petitioner’s conduct.

(I)

TABLE OF CONTENTS

Page
IIIs oc/suinbcindeciabncnsanbuksreinbeahensbadiidinceeiatipicanansa 1
IIL: sii Sita cnaclashchssnlalbimbininaiadoumenkensiihcunebekteoekecies 1
ERT RETR EE iS SO Si or0 ay Se oR 2
NINE AidtsicaurncdthcsinenGukdbicdsseamuinans nlehtiiadnebirehinsenaes ores 7
eM IIIIIIS Sicu ads sairicti cosine csnaeniegniaiohacapuniahied Mabubetabeaavieminandiogies 20

TABLE OF AUTHORITIES
Cases:
Acushnet Co. v. Coaters, Inc., 937 F. Supp. 988

I ee sestuens ll
Amland Properties Corp. v. Aluminum Co. of

America, 711 F. Supp. 784 (D.N.J. 1989) ............. 16-17
Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 (5th

RAR REESE NSE IS Shh: PSOE LS OL TEN 9
Bailey v. United States, 1168S. Ct. 501 (1995) ......... 12
Bell v. Hood, 327 U.S. 678 (1946) ...........0cccccssssceeeees 16
Bell Petroleum Servs., Inc. (EPA v. Sequa Corp.),

In re, 3 F.3d 889 (Sth Cir. 1998) ...............cceccscesceess 14
City of New York v. Exxon Corp., 744 F. Supp.

474 (1990), on reconsideration, 766 F. Supp. 177

NN SUPET Jclaedohaiin ooudinbeidesbapiunas turomcenanensnastniys 9
Cooper Indus., Inc. v. Agway, Inc., No. 92-CV-0748,

1996 WL 550128 (N.D.N.Y. Sept. 23, 1996) .............. 17
Davis v. United States, 417 U.S. 333 (1974) ............ 14
Dedham Water Co. v. Cumberland Farms Dairy,

Inc., 889 F.2d 1146 (1989), decision clarified, 901

ee A, SE dss viieyerissdusndsnndbaatiotnevidiunninese 11-12 |
Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 922

Se Cm BIE io clinsih \cnihdapecd otha bapeinstaudiunininictasiientes 9
Farmland Indus., Inc. v. Morrison-Quirk Grain

Corp., 987 F.2d 1335 (8th Cir. 1998) ..............seccseees 12
Gould Inc. v. A & M Battery & Tire Serv.,

933 F. Supp. 431 (M.D. Pa. 1996) ..............cccccssscceses 17

(IIT)

IV

Cases—Continued: Page
John Hancock Mutual Life Ins. Co. v. Harris
Trust & Sav. Bank, 510 U.S. 86 (1998) .............0000. 13
Keiley v. Thomas Solvent Co., 714 F. Supp. 1439
CO Sas Bs SE innavidgsinviinanlatniaieistevaiseninieionas 16
Laborers’ Int'l Union v. Foster Wheeler Corp.,
26 F.3d 375 (3d Cir.), cert. denied, 513 U.S.
RI CRIS wes iieisnicinsncisdncincisesiancasseviteiitembianioustviness 15
Landgraf v. USI Film Prods., 511 U.S. 244
CUDIPED ss ssxickcvevccssilabinienuniersiepeaabaviaveeerassneceaiinnd 15, 16
Louisiana-Pacific Corp. v. ASARCO, Inc.,
735 F. Supp. 358 (W.D. Wash. 1990) ..............ccsscesses ll
Nevada ex rel. Dep't of Transp. v. United States,
925 F, Supp. 691 (D. Nev. 1996) .......ccscocossoneseseee 16, 19
New York v. Shore Realty Corp., 759 F.2d 1032
COR SA; FORD sinkscesmcesinnrapintioeinaiaeasseanabiotcs 13
Nova Chems., Inc. v. GAF Corp., 945 F. Supp. 1098
CET, FU, BO wccccteinccincish eiaccinkestbsiteetnn 17
Ohio ex rel. Brown v. Georgeoff, 562 F. Supp. 1300
COE De CI FID sectssicsesscnosstiiessnsatthlitininedassmeuniienasipioaes 17
O’Neil v. Picillo, 883 F.2d 176 (1st Cir. 1989),
cert. denied, 493 U.S. 1071 (1990) ...........0ccccsccscescees 12
Pavelic & LeFlore v. Marvel Entertainment Group,
OE UGE, BID CII ieinsiaiinintcchinsisciqrvsnbonssiniticpeiavienren 9
Tennessee Valley Auth. v. Hill, 487 U.S. 153
CSTGD: ssvecesjecktsinintnincscebicinaaindbicmiienihianaiaiiieds 9
The Ninth Ave. Remedial Group v. Fiberbond
Corp., 946 F. Supp. 651 (N.D. Ind. 1996) ........... 17, 19
United States v. Alcan Aluminum Corp.:
755 F. Supp. 531 (N.D.N.Y. 1991), aff’d in part,
rev'd in part, 990 F.2d 711 (2d Cir. 1993) ............ 10
900 F.2el T11 (ld Cir. FOGG) ccocssccsissonsscrcecseses 8-9, 11, 14
Nos. 87-CV-920, 91-CV-1132, 1996 WL 637559
(.E.T . Oek. TE, TARE sssiccctcinvrcsongamise 15, 17
United States v. Bliss, 667 F. Supp. 1298 (E.D.
BO, BIREP sisicccisccisanchecvausiacssyeteenvieiainiadseavenitielpanins 11

Cases—Continued: Page

United States v. Conservation Chem. Co.,

619 F’. Supp. 162 (W.D. Mo. 196B) .......cccrcssscossssvecs 9,17
United States v. Dickerson, 640 F. Supp. 448

CED, Sieiis SIGUE ickccevhctcipneaecediuhdusnceansianbetibinientaidadvniadéien 17
United States v. Harriss, 347 U.S. 612 (1954) ........ 10
United States v. Hooker Chems. & Plastics Corp.,

G60 F. Supp. B66 CWLD.IN.Y,, TUBB) cccssvcscnseccccssescsnnc 17
United States v. Johnston, 268 U.S. 220 (1925) ...... 13

United States v. Miami Drum Servs. Inc.,

No. 85-0038-CIV-ARONOVITZ, 1986 WL 15327

CTE FO, TE: SB. CO widicccoitdsicctchiinertdiepaoncteiceinves 17
United States v. Monsanto Co., 858 F.2d 160

(4th Cir. 1988), cert. denied, 490 U.S. 1106

CEDIED accciavciaticaimcissasetinsiedarniiaasslaebacs ouabain $3, 37
Uniied States v. Mottolo, 695 F. Supp. 615 (D.N.H.

SOD <sacivsintiocesncsusecsenbdedeap aiirenemeneinncgs aaciamonandaitainn 17
United States v. Noland, 1168S. Ct. 1524 (1996) ...... 9

United States v. Northeastern Pharmaceutical

& Chem. Co., 810 F.2d 726 (8th Cir. 1986), cert.

denied, 484 U.S. 848 (1987) ...........ccccccsrscsscenes 16, 18, 19
United States v. Olin Corp.:

927 F. Supp. 1502 (S.D. Ala. 1996), rev’d, 107 F.3d

BOE CRO CA. SID hvcctisssicscciperssiaticnmennmapiacies 17

107 F.3d 1506 (11th Cir. 1997) ...............000 16, 17, 18, 19
United States v. Ottati & Goss, Inc., 630 F. Supp.

1361 (D.N.H. 1985) ..... at nithacieinancedicalusiditeikamaduaae yes 17
United States v. Shell Oil Co., 605 F. Supp. 1064

CE, SIRO TORS sinsscinsiavvinanstececnsitnimevbineintteiveriavions 17, 19
United States v. Tyson, No. CIV.A. 84-2663,

1986 WL 9250 (E.D. Pa. Aug. 22, 1986) .............00 17
United States v. Wade, 577 F. Supp. 13826 (E.D.

Pte SO vai mnisccainsinsecinipeiseipessinemnns 9, 11

United States v. Western Processing Co.,
734 F. Supp. 930 (W.D. Wash. 1990) ..........ccecceeeeeeees 9

Cases—Continued: Page
Village of Hoffman Estates v. The Flipside, Hoff-
man Estates, Inc., 455 US. 489 (1982) ............00000 10
Walters v. Metropolitan Educ. Enters., Inc.,
RET B. Ce, CRE ERE) vevscaceccvenntiveivencensscstoasntankvisemsste 16
Constitution, statutes, regulations and rule:
UB. Gotamt. Babs BEE wccincessteccvvesnstitccavsvisnsevionisinemteneans 9
Clean Air Act, § 112, 4B UB.C. TAD cccosescccccsccosezeescess 8
Clean Water Act, 33 U.S.C. 1251 et seq.:
§ DOTia), BO TIES. TOTTI) ccissvcescnsctesnaveernecsssnssssece 8, 10
5 GED, BE CEES. SIE ccectascevicsssasiscanensetsavepeiahereextoons 19
§ 311(b)(2)(A), 33 U.S.C. 1821(b)(2)(A) .........ceeeee sees 8

Comprehensive Environmental Response, Compen-
sation, and Liability Act of 1980, 42 U.S.C. 9601

Ob BOD. cisrcsocceessinnarsersoncsesncossdortvavantantenvbvoteunsaticuentagens 2
4B UBC. FR TEIGD cniccnccsicccssvssascsasensvasustninetinaes 3, 8, 10
BE UTES). FID xcicccsensccacsavateincssesabincatervnteoneys 3, 19
AD UD, GOURD BOR) cccsccrsceneescssictsievincssencanssacs 8, 10
4B UA), BEG) niet sicavscrsicnscsetsinsisivabisntunanddinvens 18
QS TEE, DEBRA seisieccscassivnvinsimenicseiisinnsnictemanies 2
4B UF BSC, FED vicssncvscsscntsinvesniaverdvraneinioncinpnnieias 2
GB UE A. TGF isinesncsnissncornsaontionnbananareies 10, 11, 12, 16
AB VE, DIE seini nisin ciercinvoanonons 2, 12, 18, 20 |
4B UBC. GRIT) ccccoscsicsnsccesncccinissosexsmsonmnpsases 18
AZ UW BAS. GRIF AMED cerericrcrrcicsisccciovenssitsesitavintessen 18
EB UBS. SORTA cniicissiesscususssintvisiocsidecrecnnns 3, 18
4S UBL, GRTGMDD criscccicecsnerccsesersevccsnedeeversaivg 3, 18 |
4B UB.C, QORTCAMAMA) -rescsvesesecosccncssenecocassoesscisss 3
GB UE BE. BET wasvisssdcnicsnrrienvealeceienincaiint 3 |
AS UGG. BROT) siincccccssosatsininssenscusvenbiotsraneninanane 19
BS UTE. DERBI vevicsctccvivtabantasevnscieticnvesaseuamndaasien 16
Solid Waste Disposal Act, § 3001, 42 U.S.C. 6921 ........ 8
Superfund Amendments and Reauthorization Act of
1986, Pub. L. No. 99-499, 100 Stat. 1613 ............0cce00 2
Toxic Substances Control Act, § 7, 15 U.S.C. 2606 ..... 8 F
D6 UF B.C. BOOT ccnsivcissenessascenceensscetnningincabonentiaemasisonins 2 |

VII

Regulations and rule—Continued: Page
40 C.F.R.:
BE RRR eer RR Re ton yircell x arya pereen Be ot eg CR Oe NE epOrR 3
Pt. 302:
NR TD cocisviscapesccacsdasivseievedecovesssconnisduvoesense 10
Pt. 401:
RG GIT BIE i ciaiss ni ceccndienaunssuvambinesisaregbentansonsisontnd 10
ae, Fe, Cae Fi. TID ccscccncicncsvtensscevnsctesecsorsatcszenness 15
Miscellaneous:
126 Cong. Rec. 26,779 (1980) ..........scccrssssseesenerssseeeees 13
Exec. Order No. 12,580, 52 Fed. Reg. 2923 (1987) ..... 12
H.R. 7020, 96th Cong., 2d Sess. (1980) .......::eeeeceeeneeees 13
H.R. Rep. No. 1016, 96th Cong., 2d Sess., Pt. I
CRIT... cn Linstcnidanrovaseicnnsah ase cudadeaduntiniaes veniunansintneset 2, 19
Restatement (Second) of Torts (1977) ..........ccceceeeseees 5
S. 1480, 96th Cong., 2d Sess. (1980) .......ccceseeeereeeeeeeeees 19
S. Rep. No. 848, 96th Cong., 2d Sess. (1980) ...........00 19

R. Stern, E. Gressman, S. Shapiro & K. Geller,
Supreme Court Practice (7th ed. 1993) .........:.eeeeeee 15

In the Supreme Court of the Giited States

OCTOBER TERM, 1996

No. 96-1494

ALCAN ALUMINUM CORPORATION, PETITIONER
v.

UNITED STATES OF AMERICA, ET AL.

io

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The judgment order of the court of appeals (Pet.
App. A102-A104) is unpublished, but the decision
is noted at 96 F.3d 1434 (Table). The opinion of
the district court (Pet. App. A50-A74) is reported at
892 F. Supp. 648. The earlier opinion of the court of
appeals remanding the case to the district court (Pet.
App. A4-A49) is reported at 964 F.2d 252. The initial
decision of the district court (Pet. App. A1l-A3) is
unreported.

JURISDICTION

The court of appeals entered its judgment on
August 22, 1996. Pet. App. A104. A petition for re-
hearing was denied on December 16, 1996. Pet. App.

(1)

2

A105-A106. The petition for a writ of certiorari was
filed on March 14, 1997. The jurisdiction of this Court
is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. In 1980, Congress enacted the Comprehensive
Environmental Response, Compensation, and Liabil-
ity Act (CERCLA), 42 U.S.C. 9601 et seq., to address
the severe environmental and public health effects
caused by releases of hazardous substances, espe-
cially at abandoned and inactive waste disposal sites.
H.R. Rep. No. 1016, 96th Cong., 2d Sess., Pt. I, at 22
(1980). As amended by the Superfund Amendments
and Reauthorization Act of 1986, Pub. L. No. 99-499,
100 Stat. 16183, CERCLA empowers the Environ-
mental Protection Agency (EPA) to undertake re-
sponse actions to clean up hazardous substance sites.
42 U.S.C. 9604(a); 26 U.S.C. 9507.1 EPA can then re-
cover the response costs it incurred from the parties
responsible for the hazardous waste disposal through
a cost recovery action. 42 U.S.C. 9607(a).? Responsi-
ble parties include

any person who by contract, agreement, or other-
wise arranged for disposal or treatment * * * of
hazardous substances owned or possessed by such
person, by any other party or entity, at any facil-
ity or incineration vessel owned or operated by
another party or entity and * * * from which

! CERCLA grants authority to the President, who has dele-
gated various powers to the Administrator of EPA. See Exec.
Order No. 12,580, 52 Fed. Reg. 2923 (1987).

2 Alternatively, EPA can seek an administrative or judicial

order requiring the responsible parties to undertake response
actions themselves. 42 U.S.C. 9606(a).

there is a release, or a threatened release which
causes the incurrence of response costs, of a haz-
ardous substance.

42 U.S.C. 9607(a)(3) and (4).

Under CERCLA, responsible parties are liable for
“all costs of removal or remedial action incurred by
the United States Government * * * not inconsis-
tent with the national contingency plan.” 42 U.S.C.
9607(a)(4)(A).2 CERCLA thus imposes strict liability
on responsible parties, subject only to three limited
defenses. See 42 U.S.C. 9601(82), 9607(b); Pet. App.
Al4. Where there are multiple responsible parties
who contribute hazardous waste to a site, courts have
held that joint and several liability applies. See id. at
A32-A33.

2. This litigation arises from EPA’s cleanup of
contamination at the Butler Tunnel site, located on
the east bank of the Susquehanna River in Pittston,
Pennsylvania. Pet. App. A7-A8. From 1978 to 1979,
several liquid waste transport companies collected
oily liquid wastes from industrial facilities and dis-
posed of them at the Butler Tunnel site. Jd. at A8.

Petitioner manufactures aluminum sheet and plate
products. Petitioner’s production process for alumi-
num ingots created an emulsion consisting of approxi-
mately 95% deionized water and 5% mineral oil. The
emulsion also contained fragments of aluminum in-
gots, which are comprised of various metals such as
copper, chromium, cadmium, lead, and zinc. Those
metals are hazardous substances under CERCLA.
Pet. App. A8-A9; 42 U.S.C. 9601(14). From 1978 to
1979, petitioner contracted with a liquid waste trans-

3 The national contingency plan prescribes methods for un-
dertaking removal and remedial actions. See 40 C.F.R. Pt. 300.

port company to dispose of 2.3 million gallons of the
emulsion. Pet. App. A9. At least 32,500 gallons of
petitioner’s emulsion were dumped at the Butler Tun-
nel site. bid. Petitioner’s emulsion was commingled
with other oily liquid wastes disposed of at the same
site. See id. at A54; C.A. App. 49, 51, 58, 59.

In September 1985, in the wake of Hurricane Gloria,
approximately 100,000 gallons of waste contaminated
with hazardous substances were released from the
Butler Tunnel site into the Susquehanna River,
creating a 50-mile long oily sheen on the River. Pet.
App. Al0. EPA’s response efforts resulted in the
removal and disposal of more than 80 tons of oil and
chemical-soaked debris and soil from the River. Jd. at
A54. The waste oils that EPA removed included the
hazardous substances cadmium, chromium, copper,
lead, and zine. Ibid.

3. In November 1989, the United States filed
suit under CERCLA against twenty defendants, in-
cluding petitioner, to recover response costs totaling
$1,302,290. The United States subsequently entered
into consent decrees with all of the defendants except
petitioner. Pet. App. A54-A55. The settling defen-
dants agreed to pay $828,500 in response costs and to
conduct further response actions, including a reme-
dial investigation/feasibility study to identify addi-
tional cleanup actions. See id. at A10-A11, A55; Towle
Decl. 44 21-22, 31-32 (C.A. App. 210, 213).

The United States moved for summary judgment
against petitioner to recover the remainder of its
response costs. Petitioner cross-moved for summary
judgment, asserting that its emulsion did not consti-
tute a “hazardous substance” because the metals in
the emulsion were at below-ambient levels. Pet. App.
All. Petitioner also asserted that its emulsion could

5

not have “caused” the release or the incurrence of
any response costs. /bid. On May 8, 1991, the district
court granted the United States’ motion for summary
judgment, holding petitioner jointly and severally
liable. Id. at A1-A3.

The court of appeals affirmed in almost all respects.
Pet. App. A4-A38. The court held that CERCLA’s
definition of “hazardous substance,” by its plain lan-
guage, contains no quantitative threshold require-
ment. Id. at Al4-A19. The court also rejected peti-
tioner’s causation argument, holding that the United
States need demonstrate only that a particular defen-
dant’s hazardous substances were deposited at a site
from which there was a release or threatened release,
and that the release or threatened release caused the
incurrence of response costs. Id. at A24-A29.

The court of appeals remanded, however, to provide
petitioner the opportunity to limit its liability by
showing that the harm from its emulsion, although
commingled with the other wastes disposed of at the
site, is capable of reasonable apportionment. Pet. App.
A30-A37. Applying the Restatement (Second) of
Torts, the court ruled that petitioner could “avoid
liability otherwise established” by demonstrating
that there are distinct harms or that there is a
reasonable basis for determining the contribution of
each cause to a single harm. /d. at A33-A35. The
court stated that “the analysis will be factually com-
plex as it will require an assessment of the relative
toxicity, migratory potential and synergistic capacity
of the hazardous waste at issue.” Jd. at A35. The
court concluded that “if [petitioner] 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 [petitioner] should not
be responsible for any response costs.” Id. at A37.

4. On remand, petitioner presented no evidence and
declined an opportunity for a hearing on whether its
emulsion, when mixed with other hazardous sub-
tances at the site, contributed to the release and the
resultant response costs. Nor did petitioner address
the factual inquiries identified by the court of ap-
peals regarding the characteristics of its emulsion
when commingled with other wastes. Pet. App. A5l.
Rather, petitioner reiterated its argument that it is
not liable because its emulsion with below-ambient
levels of metals could not cause environmental harm
and because EPA did not direct its response actions
specifically toward metals. Jd. at A51-A52.

In June 1995, the district court granted summary
judgment to the United States. Pet. App. A50-A74.
The court rejected petitioner’s contention that its
liability should be determined by looking at the metal
constituents alone, rather than at the emulsion as a
whole. Jd. at A58-A61. The court found that peti-
tioner “has presented neither evidence nor argument
that its used emulsion is environmentally benign,” 7d.
at A6l1, and, in fact, “conceded that it cannot prevail
on its summary judgment motion if the hazardous
substance of concern is the used emulsion itself,” zd.
at A59. The district court further found that peti-
tioner “has not compared the chemical composition of
its used emulsion to other wastes dumped into the
[site]”; has not addressed “whether its used emulsion
could have reacted with the other oily wastes”; and
has not addressed “the likely products of any chemi-
cal reactions.” Jd. at A64-A65. Instead, petitioner
premised its entire argument on its “all or nothing”
contention that its emulsion contains below-ambient

levels of metals, which allegedly could not cause envi-
ronmental harm and which allegedly were not specifi-
cally targeted by EPA’s response actions here. Jd. at
A65.'

5. Petitioner appealed. Following the completion
of briefing and shortly before oral argument, peti-
tioner filed a motion in the court of appeals to dismiss
EPA’s action for lack of jurisdiction. Petitioner con-
tended for the first time that CERCLA cannot be
applied retroactively to require it to pay for the
cleanup of hazardous substances that were disposed of
prior to CERCLA’s enactment in December 1980.
The United States opposed the motion on the grounds
that petitioner had waived the argument and that, in
any event, CERCLA’s response cost liability provi-
sion is retroactive. On August 22, 1996, the court of
appeals, “[a]fter considering the contentions raised by
[petitioner],” issued a judgment order affirming the
district court. Pet. App. A102-A104.

ARGUMENT

Petitioner seeks review of issues of statutory in-
terpretation under CERCLA and of factual deter-
minations regarding petitioner’s contribution to the
harm at the Butler Tunnel site. The rulings of the
court of appeals are correct, do not conflict with any
decision of this Court or any other court of appeals,
and raise no issue warranting review by this Court.

4 In the course of denying petitioner’s motion for recon-
sideration, the district court observed that, “[bJecause it is un-
disputed that the entire ‘hazardous soup’ that discharged into
the Susquehanna River was remediated, and [petitioner’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.” Pet. Supp. App. A3.

8

l. a. Petitioner asserts (Pet. 18-23) that the defi-
nition of “hazardous substance” under CERCLA, 42
U.S.C. 9601(14), should be interpreted to impose a
threshold concentration requirement. According to
petitioner, this Court should read into the statute
“scientific and practical underpinnings which may
not have been explicitly stated by Congress but are
required by common sense.” Pet. 19.

CERCLA defines a covered “hazardous substance”
as: (A) “any substance” designated pursuant to Sec-
tion 311(b)(2)(A) of the Clean Water Act, 33 U.S.C.
1321(b)(2)(A); (B) “any element, compound, mixture,
solution, or substance” designated pursuant to
CERCLA Section 102, 42 U.S.C. 9602; (C) “any haz-
ardous waste having the characteristics identified
under or listed” pursuant to Section 3001 of the Solid
Waste Disposal Act, 42 U.S.C. 6921; (D) “any toxic
pollutant” listed under Section 307(a) of the Clean
Water Act, 33 U.S.C. 1317(a); (E) “any hazardous air
pollutant” listed under Section 112 of the Clean Air
Act, 42 U.S.C. 7412; and (F) “any imminently hazard-
ous chemical substance or mixture” for which EPA
has taken action pursuant to Section 7 of the Toxic
Substances Control Act, 15 U.S.C. 2606. 42 U.S.C.
9601(14).°

Relying on the statute’s unambiguous and unquali-
fied language, every court of appeals that has ad-
dressed the issue has held that CERCLA’s definition
of “hazardous substance” contains no minimum con-
centration level. Pet. App. A14-A19; United States v.
Alcan Aluminum Corp., 990 F.2d 711, 720-721 (2d

5 Petitioner concedes that its emulsion contained compounds
(cadmium, chromium, copper, lead, and zinc) that are listed as
“hazardous substances” under this definition. Pet. App. A22.

ee

Cir. 1993); Amoco Oil Co. v. Borden, Inc., 889 F.2d
664, 669 (5th Cir. 1989) (as amended on rehearing).°
As the court of appeals correctly held here, “the
statute does not, on its face, impose any quantitative
requirement or concentration level on the defini-
tion of ‘hazardous substances.’” Pet. App. A17.
CERCLA’s text requires only that the “substances
under consideration must simply fall within one of
the designated categories.” Jbid. Thus, petitioner’s
attempt to impose its own “scientific and practical”
(Pet. 19) limitation on Congress’s language must fail.
The court of appeals’ task was “to apply the text, not
to improve upon it.” Pavelic & LeFlore v. Marvel
Entertainment Group, 493 U.S. 120, 126 (1989).’

6 See also Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 922,
927 (D.C. Cir. 1985); City of New York v. Exxon Corp., 744 F.
Supp. 474, 483 (1990), adhered to on reconsideration, 766 F.
Supp. 177 (S.D.N.Y. 1991); United States v. Western Pro-
cessing Co., 734 F. Supp. 930, 9836 (W.D. Wash. 1990); United
States v. Conservation Chem. Co., 619 F. Supp. 162, 238 (W.D.
Mo. 1985); United States v. Wade, 577 F. Supp. 1326, 1340
(E.D. Pa. 1983).

7 For similar reasons, petitioner’s contention (Pet. 24-26)
that the court of appeals transgressed the bounds of Article III
by enforcing the statutory language as written is without
merit. The separation of powers doctrine dictates that peti-
tioner’s policy arguments be directed to Congress, not this
Court. United States v. Noland, 116 S. Ct. 1524, 1528 n.3
(1996) (a party “may or may not have a valid policy argument,
but it is up to Congress, not this Court, to revise the [statutory]
determination if it so chooses”); see also Tennessee Valley Auth.
v. Hill, 487 U.S. 153, 194 (1978) (“{I)]ndividual appraisal[s] of the
wisdom or unwisdom of a particular course consciously selected
by the Congress [are] to be put aside in the process of inter-
preting a statute.”).

10

b. Petitioner errs in asserting (Pet. 23) that
CERCLA’s definition of “hazardous substance” is un- |
constitutionally vague. A statute is void for vague- 2
ness only if it “fails to give a person of ordinary intel-
ligence fair notice that his contemplated conduct is
forbidden by the statute.” United States v. Harriss,
347 U.S. 612, 617 (1954); see also Village of Hoffman
Estates v. The Flipside, Hoffman Estates, Inc., 455
U.S. 489, 498 (1982) (“economic regulation is subject
to a less strict vagueness test” than criminal laws).
CERCLA’s text plainly provides that a substance is
hazardous if it has been listed under any of five speci-
fied statutory provisions. 42 U.S.C. 9601(14). The
five hazardous metals in petitioner’s oil emulsion are
listed both under Section 307(a) of the Clean Water
Act, 33 U.S.C. 1317(a); see 40 C.F.R. 401.15, and under
CERCLA Section 102, 42 U.S.C. 9602; see 40 C.F.R.
302.4 (Table).

Because a substance’s hazardous character is !
readily discernible by consulting the specified lists, .
the courts of appeals have agreed that CERCLA’s )
definition is not unconstitutionally vague. Pet. App.
A46 n.24; United States v. Alcan Aluminum Corp.,
755 F. Supp. 531, 539 (N.D.N.Y. 1991), aff’d in part,
rev'd in part on other grounds, 990 F.2d 711 (2d Cir.
1993). This Court’s review is thus not warranted.

2. Petitioner also asserts (Pet. 11-15) that the
court of appeals’ construction of CERCLA’s causa-
tion requirement, 42 U.S.C. 9607, is incorrect and
conflicts with decisions of the First and Eighth
Circuits. Section 9607 provides that a generator
of hazardous substances is liable for response costs
if its hazardous waste is disposed of at a facility
“from which there is a release, or a threatened re-
lease which causes the incurrence of response costs.”

et ee So el rn ee a A RAE Hs NA Iiclng

oieeeieinnaiettaiiiaieaiasiasiilitiieiiiiiail

11

Petitioner argues that Section 9607 requires a di-
rect causal connection between petitioner’s hazard-
ous substances and the government’s incurrence of
response costs. That contention does not merit fur-
ther review.

a. Every court of appeals that has addressed the
question has rejected petitioner’s proposed construc-
tion. Pet. App. A24-A29; Alcan, 990 F.2d at 721;
United States v. Monsanto Co., 858 F.2d 160, 170 (4th
Cir. 1988), cert. denied, 490 U.S. 1106 (1989).°

Petitioner’s purported circuit conflict (Pet. 12-14)
relies almost entirely on a district court decision,
Acushnet Co. v. Coaters Inc., 937 F. Supp. 988 (D.
Mass. 1996), rather than contrary court of appeals
authority. Acushnet, moreover, expressly eschews
addressing the circumstances at issue in the instant
case, because the plaintiffs in that case sought “a
more sweeping elimination of causation as an element
of the legal test for liability” than the Third Circuit
adopted here and because the case involved a private
plaintiff rather than an action brought by the gov-
ernment for its response costs. Jd. at 998-999. In
addition, the First Circuit has recognized that “strict
liability was intended for releases or threatened
releases which cause response costs” and that
this strict liability attaches “without reference to
whether [the responsible party] caused or contributed
to the release or threat of release.” Dedham Water
Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146,
1152-1153 (1989), decision clarified on other grounds,

8 See also United States v. Bliss, 667 F. Supp. 1298, 1309
(E.D. Mo. 1987); Wade, 577 F. Supp. at 1333. But see
Louisiana-Pacific Corp. v. ASARCO, Inc., 735 F. Supp. 358,
362 (W.D. Wash. 1990).

12

$91 F.2d 3 (ist Cir. 1990); see also O’Neil v. Picillo,
883 F.2d 176, 178-179 (1st Cir. 1989) (where defendant
seeks to avoid joint and several liability, it bears the
burden of showing that the harm is divisible), cert.
denied, 493 U.S. 1071 (1990).

Likewise, the Eighth Circuit decision cited by
petitioner (Pet. 12) actually reaffirms that liability to
the United States for response costs under CERCLA
“is a matter of strict liability,” and, “therefore, is not
dependent on any showing of causation or fault.”
Farmland Indus., Inc. v. Morrison-Quirk Grain
Corp., 987 F.2d 1335, 13839 (1993). Accordingly, the
courts of appeals’ decisions give no indication that the
outcome of the present case would change if it were
litigated in a different circuit.

b. The courts of appeals’ consistent rejection
of petitioner’s construction, moreover, is correct.
CERCLA’s text imposes strict liability upon a person
that arranges for disposal of a hazardous substance at
a facility “from which there is a release, or a threat-
ened release which causes the incurrence of response
costs.” 42 U.S.C. 9607. There is no further statutory
requirement that the disposal or individual hazardous
substance directly cause the release. Petitioner’s
contention thus cannot be reconciled with Section
9607’s language. Bailey v. United States, 116 8S. Ct.
501, 506 (1995) (starting point for statutory construc-
tion must be the statute’s text).”

® The Eighth Circuit went on to hold that a private party in
a contribution action cannot predicate liability “solely upon sec-
tion 9607(a) liability to the government, but must also prove
causation.” Farmland, 987 F.2d at 1340.

0 The legislative history supports Section 9607’s plain mean-
ing. Congress specifically rejected an earlier draft of the Sec-
tion that would have imposed liability on “any person who

13

c. Finally, petitioner premises its causation argu-
ment (Pet. 4, 13) on the factual claim that its emulsion
“contained none of the CERCLA Hazardous Sub-
stances identified by EPA as having necessitated the
Response.” The district court found as a factual mat-
ter, however, that petitioner’s emulsion “was com-
mingled in the waste materials discharged into the
Susquehanna River” and that the waste oils removed
from the River by EPA “contained cadmium, chro-
mium, copper, lead and zine.” Pet. App. A54. This
Court “dofes] not grant a certiorari to review evi-
dence and discuss specific facts.” United States v.
Johnston, 268 U.S. 220, 227 (1925).

3. Petitioner asserts (Pet. 17-18) that the court of
appeals deviated from its own mandate regarding the
standard for proving divisibility of harm, and that the
court’s “us[e] [of] silence to escape detection” for ef-
fectively overruling its prior decision “so far departs
from the accepted and usual course of judicial pro-
ceedings that it calls for an exercise of this Court’s
supervisory power.” Pet. 17." An alleged intra-

caused or contributed to the release or threatened release.”
H.R. 7020, 96th Cong., 2d Sess. § 3071(a)(1)(D) (1980), repro-
duced at 126 Cong. Rec. 26,779 (1980). See New York v.
Shore Realty Corp., 759 F.2d 1032, 1044 (2d Cir. 1985). Con-
gress deleted the causation language “precisely because it was
aware of the difficulties plaintiffs would confront in the multi-
generator context if required to prove such a connection.”
Pet. App. A27. See also John Hancock Mutual Life Ins. Co. v.
Harris Trust & Sav. Bank, 510 U.S. 86, 101 (1993) (with
respect to limiting language in a statute, the Court is “directed
by those words [that Congress enacted], and not by the
discarded draft”).

1 Petitioner asserted the existence of this intra-circuit con-
flict in its petition for rehearing and suggestion for rehearing

14

circuit conflict, however, does not ordinarily warrant
a grant of certiorari. See Davis v. United States, 417
U.S. 333, 340 (1974). There is no basis for departing
from that rule here. This case presents a fundamen-
tal and deliberate failure of factual proof by petitioner,
not an intra-circuit conflict regarding the appropriate
legal standard. Petitioner elected not to present any
evidence on remand to meet the standard for divisi-
bility articulated by the court of appeals.- Rather,
petitioner informed the district court that “all of
the issues which the Third Circuit stated should be
addressed on remand such as the metals’ ability to
concentrate and cause a problem are irrelevant to this
case.” Pet. App. A65.

Petitioner also alleges (Pet. 15-17) that the court
of appeals’ decision conflicts with decisions of the
Second and Fifth Circuits. The court of appeals held,
in the initial appeal, that, “if [petitioner] 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 petitioner should
not be responsible for any costs. Pet. App. A87. The
Second Circuit, in a companion case addressing peti-
tioner’s same emulsion, applied the identical standard.
Alcan, 990 F.2d at 722. The Fifth Circuit has adopted
a similar approach. In re Bell Petroleum Servs., Inc.
(EPA v. Sequa Corp.), 3 F.3d 889, 894-902 (1993).”
This case thus presents no conflict in legal standards

en bane. The court of appeals declined to grant rehearing.
Pet. App. A105-A106.

2 The Fifth Circuit also noted that the applicability of the
Third Circuit’s precise divisibility standard was not directly
implicated by the facts of its case. Bell Petroleum, 3 F.3d at
902.

a

15

for this Court to review, and petitioner’s charge that
the court of appeals silently disregarded this legal
standard in its judgment order does not merit further
review.”

4. Finally, petitioner asserts (Pet. 26) that certio-
rari should be granted because, in applying CERCLA
retroactively to petitioner’s hazardous waste dispos-
al, the court of appeals failed to apply this Court’s
decision in Landgraf v. USI Film Products, 511 U.S.
244 (1994). That contention does not merit further
review.

First, petitioner failed to raise the retroactivity
issue until after briefing was completed on the second
appeal in the case. Thus, nearly seven years of litiga-
tion had elapsed, two district court grants of sum-
mary judgment had issued, one appeal was completed,
and the second appeal was ready for oral argument
before petitioner raised the retroactivity issue for the
first time. Petitioner has thus waived any retro-
activity argument. See Laborers’ Int'l Union v.
Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.) (“An
issue is waived unless a party raises it in its opening
brief.”), cert. denied, 513 U.S. 946 (1994); see also Fed.
R. Civ. P. 12(h)(2) (defense of failure to state a claim

8 Petitioner also claims (Pet. 16) that the court of appeals’
decision is inconsistent with a recent New York district court
ruling on remand from the Second Circuit. See United States
v. Alcan Aluminum Corp., Nos. 87-CV-920, 91-CV-1132, 1996
WL 637559 (N.D.N.Y. Oct. 28, 1996). The district court’s al-
leged departure from Second Circuit precedent, however, can
be addressed by the Second Circuit. See R. Stern, E. Gress-
man, S. Shapiro & K. Geller, Supreme Court Practice 178 (7th
ed. 1993).

4 Petitioner also failed to raise the retroactivity issue at oral
argument. See C.A. Oral Arg. Tr. (Aug. 7, 1996).

16

is waived unless made prior to the district court’s
disposition of the case on the merits). The court
of appeals’ application of that waiver rule, which
parallels this Court’s own practice, see Walters v.
Metropolitan Educ. Enters., Inc., 117 S. Ct. 660, 663
n.* (1997), does not present an issue meriting this
Court’s review.

Petitioner’s assertion that the retroactivity ques-
tion affects the court’s subject matter jurisdiction,
and thus may be raised at any time, is incorrect. The
retroactivity of CERCLA’s liability provision, 42
U.S.C. 9607, is an issue of statutory construction gov-
erning what law the court should apply, Landgraf, 511
U.S. at 250, not the court’s power to adjudicate the
ease in the first instance. See Bell v. Hood, 327 U.S.
678, 684-685 (1946); cf. 42 U.S.C. 9613(b) (CERCLA’s
jurisdictional provision). |

Nor can petitioner contend that it was unaware of
the potential retroactivity claim until after Landgraf.
The presumption against retroactive legislation that
petitioner invokes “is deeply rooted in our jurispru-
dence, and embodies a legal doctrine centuries older
than our Republic.” Landgraf, 511 U.S. at 265. In
any event, petitioner delayed an additional two years
after Landgraf was decided to raise its argument.

Second, with the excepticn of one district court,
courts consistently have held that CERCLA’s liabil-
ity provision, 42 U.S.C. 9607, applies retroactively.”

6 See, e.g., United States v. Olin Corp., 107 F.3d 1506, 1511-
1514 (11th Cir. 1997); United States v. Northeastern Phar-
maceutical & Chem. Co., 810 F.2d 726, 732-737 (8th Cir. 1986),
cert. denied, 484 U.S. 848 (1987); Nevada ex rel. Dep’t of
Transp. v. United States, 925 F. Supp. 691, 696 (D. Nev. 1996);
Kelley v. Thomas Solvent Co., 714 F. Supp. 14389 (W.D. Mich.
1989); Amland Properties Corp. v. Aluminum Co. of America,

17

Petitioner relies on United States v. Olin Corp., 927
F’. Supp. 1502 (S.D. Ala. 1996), but that decision has
since been reversed by the Eleventh Circuit. United
States v. Olin Corp., 107 F.3d 1506, 1511-1514 (1997).
No other court has followed the Olin district court.”
Because there is no conflict in the law and because
there is presently only one court of appeals decision
applying Landgraf to CERCLA’s liability provision
(and in a manner contrary to petitioner’s contention),
review by this Court of petitioner’s waived retroactiv-
ity argument is not warranted.

Third, CERCLA properly applies retroactively to
petitioner’s conduct. While CERCLA contains no ex-
press statement addressing the retroactive applica-
tion of its cleanup provisions, the statute’s language
manifests a clear congressional intent to apply the

711 F. Supp. 784, 790-791 (D.N.J. 1989); United States v. Mot-
tolo, 695 F. Supp. 615, 621-622 (D.N.H. 1988); United States v.
Hooker Chems. & Plastics Corp., 680 F. Supp. 546, 556-558
(W.D.N.Y. 1988); United States v. Dickerson, 640 F. Supp. 448,
451-452 (D. Md. 1986); United States v. Miami Drum Servs.
Inc., No. 85-0038-CIV-ARONOVITZ, 1986 WL 15327 (S.D. Fla.
Dec. 12, 1986); United States v. Tyson, No. CIV.A. 84-2663,
1986 WL 9250 (E.D. Pa. Aug. 22, 1986); United States v. Ottati
& Goss, Inc., 630 F. Supp. 1361, 1897-1399 (D.N.H. 1985); Con-
servation Chem. Co., 619 F. Supp. at 217-220; United States v.
Shell Oil Co., 605 F. Supp. 1064, 1072, 1075-1076 (D. Colo. 1985);
Ohio ex rel. Brown v. Georgeoff, 562 F. Supp. 1300, 1302-1314
(N.D. Ohio 1983); see also Monsanto Co., 858 F.2d at 173-175.

16 See The Ninth Ave. Remedial Group v. Fiberbond Corp.,
946 F. Supp. 651, 654-664 (N.D. Ind. 1996); Nova Chems., Inc.
v. GAF Corp., 945 F. Supp. 1098, 1100-1105 (E.D. Tenn. 1996);
Alcan, 1996 WL 637559, at *2-*5; Cooper Indus., Inc. v. Agway,
Inc., No. 92-CV-0748, 1996 WL 550128, at *6-*10 (N.D.N.Y.
Sept. 23, 1996); Gould Inc. v. A & M Battery & Tire Serv., 933
F. Supp. 421, 488 (M.D. Pa. 1996).

18

liability provision retroactively. Sections 9607(a)(1)
and (a)(2) impose liability not only on the current
owner or operator of a facility where there has been a
release or threat of release, but also on “any person
who at the time of disposal of any hazardous sub-
stances owned or operated any facility.” The lan-
guage thus reveals Congress’s intent to reach per-
sons engaged in hazardous waste disposal prior to
CERCLA’s enactment. The phrase “at the time of
disposal” is clear on its face and is not limited in time.
See Olin, 107 F.3d at 1513; United States v. North-
eastern Pharmaceutical & Chem. Co., 810 F.2d 726,
732 (8th Cir. 1986), cert. deined, 484 U.S. 848 (1987).

Likewise, Section 9607(a)(3) imposes liability on
“any person who * * * arranged for disposal or
treatment, or arranged with a transporter for trans-
port for disposal or treatment, of hazardous sub-
stances.” Section 9607(a)(4) imposes liability on “any
person who * * * accepted any hazardous substances
for transport to disposal or treatment facilities.”
Congress’s use of the past tense for liability, coupled
with Section 9607(a)(2)’s language indicating that the
resulting disposal is not time-limited, further evi-
dences Congress’s intent to impose liability retro-
actively. See also 42 U.S.C. 9603(c) (within 180 days
of CERCLA’s passage, “any person who owns or
operates or who at the time of disposal owned or
operated, or who accepted hazardous substances for
transport and selected, a facility at which hazardous
substances * * * are or have been stored, treated, or
disposed of,” shall notify EPA of the existence of such
facility).”

In contrast to the cost recovery provisions of Section
9607(a), Congress subjected liability for natural resource dam-

19

CERCLA’s legislative history also reveals Con-
gress’s intent to have CERCLA’s liability provision
apply retroactively. See H.R. Rep. No. 1016, 96th
Cong., 2d Sess., Pt. I, at 17 (1980) (identifying exist-
ing, notorious dump sites, such as Love Canal, to
which CERCLA will apply); S. Rep. No. 848, 96th
Cong., 2d Sess. 2, 13 (1980) (statute targets “[{tJhe
legacy of past haphazard disposal of chemical wastes,”
and its goal is “assuring that those who caused chem-
ical harm bear the costs of that harm”); see also The
Ninth Ave. Remedial Group v. Fiberbond Corp., 946
F’. Supp. 651, 660-661 (N.D. Ind. 1996) (quoting floor
statements).”

ages to an express limitation on retroactivity. 42 U.S.C.
9607(f ).

8 The response brief filed by three settling defendants in
this action, Beazer Materials and Services, Inc., et al. (Beazer),
advances an elaborate theory as to the compromise that re-
sulted in the passage of CERCLA in the Senate (Resp. Br. 17-
24). That theory, however, would require the Court to draw
inference after inference about purported legislative trade-offs
that no court, in nearly 12 years of CERCLA retroactivity
litigation, has been willing to draw. See Olin, 107 F.3d at 1515
n.20 (Olin’s legislative history trade-off arguments “contain
what can be described, most charitably, as misstatements
of the record”); Northeastern Pharmaceutical, 810 F.2d at
736-737; Ninth Avenue, 946 F. Supp. at 660-664; Nevada,
925 F. Supp. at 695-696; Shell Oil, 605 F. Supp. at 1077-1079.
Similarly, Beazer’s assertion that the Senate compromise bill
changed the nature of liability from retrospective to purely
prospective overlooks that the cleanup liability provisions from
S. 1480 were directly incorporated into the compromise bill.
Finally, the fact that the definition of liability under Section
9601(32) refers to the standard of liability under Section 311 of
the Clean Water Act, 33 U.S.C. 1321, has no bearing on the
question of retroactive liability. Section 9601(32) does not alter

20

CONCLUSION

The petition for a writ of certiorari should be
denied.

..espectfully submitted.

WALTER DELLINGER

Acting Solicitor General
LoIs J. SCHIFFER

Assistant Attorney General
DAVID C. SHILTON
MICHAEL J. MCNULTY
JOHN T. STAHR

Attorneys

MAY 1997

the four categories of liable persons under Section 9607(a), or
address retroactive liability at all.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0449%3A5. Public record. Not legal advice.