Supplemental Brief — Alcan Aluminum Corp. v. United States

————

Supreme Court, US,

FILED

6 MAY 21 1997

NO. 96-1494 OFFICE OF THE CLERK

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

SUPPLEMENTAL BRIEF

ON NEW AUTHORITY

Lawrence A. Salibra, II

Counsel of Record

Alcan Aluminum Corporation

6060 Parkland Boulevard

Mayfield Heights, OH 44124-4185

(216) 423-6918

Attorney for Petitioner

Alcan Aluminum Corporation

a nh at te treet ee Be et oa

ARGUMENT

On March 14, 1997, Alcan Aluminum Corporation

filed a petition with this Court requesting a Writ of

Certiorari to the United States Court of Appeals for

the Third Circuit, seeking the resolution of pivotal

issues of CERCLA liability. Alcan’s petition asserted,

inter alia, a clear conflict between the First and Eighth

Circuits on the one hand and the Second and Third

Circuits on the other, as to whether a CERCLA

plaintiff must demonstrate a causal connection

between a defendant’s waste and the incurrence of

response costs as a predicate to § 107(a) liability. On

April 21, 1997, the Court of Appeals for the Fifth

Circuit sided with the position taken by the First and

Eighth Circuits in Licciardi v. Murphy Oil USA, Inc., No.

96-30202, 1997 U.S. App. LEXIS 7920, printed in the

Appendix at A-1. Because Licciardi sharply conflicts

with the Third Circuit’s decision in this case, and

exacerbates the conflict among the circuits regarding

CERCLA causation, we call it to the Court’s attention

in this Supplemental Brief.

As we noted in our petition, in Dedham Water Co.

v. Cumberland Farms Dairy, 889 F.2d 1146 (1st Cir.

1989) and Farmland Indus. v. Morrison-Quirk Grain

Corp., 987 F.2d 1335, 1340 (8th Cir. 1993), the First

and Eighth Circuits respectively coicluded that a

prerequisite to CERCLA liability was that the plaintiff

demonstrate a causal connection between the

CERCLA hazardous substances and the response

costs. The Second and Third Circuits, however, do

not require a causal connection between the CERCLA

hazardous substances and the response costs

because they believe that the plaintiffs burden of

proof would be too difficult. See United States v. Alcan

Aluminum Corp., 990 F.2d 711, 721 (2d Cir. 1993) and

2

United States v. Alcan Aluminum Corp., 964 F.2d 252,

265 (3d Cir. 1991) (the present case).

In Licciardi, the Fifth Circuit joined the First and

Eighth Circuits by requiring a showing of causation

between the CERCLA hazardous substances and the

response costs as a prerequisite to CERCLA liability.

The Fifth Circuit’s decision in Licciardi is in

irreconcilable conflict with the decision of the Third

Circuit in the present case, which imposed joint and

several liability on Alcan for the release of below

background metal compounds notwithstanding the

fact that the undisputed evidence established that

there were no metal problems of any kind at the

Butler Tunnel site and there were no CERCLA

hazardous substances in the Alcan Emulsion which

were identified as a basis for a CERCLA response

action.

Licciardi is particularly relevant to the present

petition because it involved lead, one of the same

elemental metals contained in the Emulsion. Like

the lead in the Emulsion--in fact, like all of the metal

compounds in the Emulsion--the lead in Licciardi did

not breach the toxic concentration leaching

procedure (“TCLP”) standard. As the Fifth Circuit

pointed out, EPA does not consider such metal

hazardous because it is not capable of leaching out

of the soil. Id. at *5. Moreover, the lead level in the

Emulsion was far below background levels, whereas

the lead level in Licciardi was above background

levels. Id. at *6.

The district court in Licciardi had imposed

CERCLA liability on the defendant in the same

manner that the Third Circuit imposed liability on

Alcan--exclusively based on that fact that hazardous

substances were released without any proof that the

|

3

release did or could cause response costs. The

district court in Licciardi concluded that liability could

be imposed under CERCLA provided there was a

release of hazardous substances above background

levels.' Id. at *4.

The Fifth Circuit reversed. It effectively rejected

the view of the Second and Third Circuits that the

causation element of CERCLA § 107(a) simply relates

to causation of a release and not to causation of

response costs. The Fifth Circuit also refused to

adopt the position of the Second and Third Circuits

that liability automatically attaches to the release of

any amount of hazardous substances:

While Amoco [Oil Co. v. Borden, Inc.] allows a

CERCLA plaintiff to prove that response costs

were caused by a release without resort to an

applicable standard of justification, bare proof

that there was a release is not enough; as we

have explained, liability does not attach to the

release of ‘any quantity of a hazardous

substance.’

Id. at *6 quoting Amoco Oil Co. v. Borden, Inc., 889

F.2d 664, 670-71 (5th Cir. 1989). The Fifth Circuit

opined that the hazardous substances released must

pose a “threat te the public or the environment.” Id.

Noting that the defendant’s lead was not TCLP toxic

and that no expert had attempted to link the lead with

groundwater tests that demonstrated contamination,

‘Even the district court appears to have limited its

imposition of liability to the release of above background

hazardous substances, whereas the Second and Third

Circuits would impose CERCLA liability for the disposal of a

substance like garden soil containing metal compounds at

background levels.

4

the Fifth Circuit concluded that the plaintiffs had not

made a prima facie case for liability. Id. at *5-6.

Hence, the Licciardi decision tips the balance in favor

of Alcan on this fundamental issue and we ask that

the Court give it due consideration.

CONCLUSION

For all of the reasons contained in this

Supplemental Brief as well as the reasons contained

in the Petition of Writ of Certiorari, Petitioner Alcan

Aluminum Corporation respectfully requests that this

Honorable Court grant its Petition for Wnt of

Certiorari.

Respectfully submitted,

Lawrence Anthony Salibra, II

Counsel of Record

Alcan Aluminum Corporation

6060 Parkland Boulevard

Mayfield Heights, OH 44124-4185

(216) 423-6918

Attorney for Petitioner

Alcan Aluminum Corporation

A-1

JAMES J LICCIARDI; AGATHA LICCIARDI SPERA;

MARY ANN DISALVO LICCIARDI, wife of James J.

Licciardi; MARY ANN LICCIARDI NAVO, wife of and;

BENJAMIN NAVO,

Plaintiffs-Appellants-Cross-Appellees,

V.

MURPHY OIL USA INC..,

Defendant-Appellee-Cross-Appellant.

No. 96-30202

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

1997 U.S. App. LEXIS 7920

April 21, 1997, Decided

PRIOR HISTORY: [*1] Appeal from the United States

District Court for the Eastern District of Louisiana. 93-

CV-490-N. Edith Brown Clement, U.S. District Judge.

DISPOSITION: REVERSED.

COUNSEL: For AGATHA LICCARDI SPERA,

BENJAMIN NAVO, JAMES J LICCIARDI, MARY ANN

DISALVO LICCIARDI, wife of James J Licciardi, MARY

ANN LICCIARDI NAVO, wife of and Plaintiffs-

Appellants-Cross-Appellees: Michael A Fenasci, New

Orleans, LA. Manuel A Fernandez, New Orleans, LA.

For MURPHY OIL USA INC, Murphy Oi USA

Incorporated, Defendant-Appellee-Cross-Appellant:

James F Shuey, Frilot, Partridge, Kohnke & Clements,

New Orleans, LA. George A Frilot, III, Robert Beattie

McNeal, Frilot, Partridge, Kohnke and Clements, New

Orleans, LA.

A-2

JUDGES: Before HIGGINBOTHAM, SMITH, and

BARKSDALE, Circuit Judges.

OPINION: PER CURIAM:

I

From 1991 through 1993, the Licciardis hired a

number of environmental testing and consulting firms to

take and test environmental samples from their property

located adjacent to Murphy Oil’s Meraux refinery in

Louisiana. Armed with results of these tests, the

Licciardis filed suit under § 107 of the Comprehensive

Environmental Response, Compensation, and Liability

Act, 42 U.S.C. § 9607, alleging that the samples

demonstrate that Murphy contaminated their property

with leaded tank bottoms and refinery sludge in

violation of environmental law. !

[*2]

The bench trial was bifurcated into lability and

damages phases. Following the liability phase, the

district court entered its findings. The court found that

a certain “black tarry substance” from a sample taken

from the Licciardis’ property came from Murphy’s

refinery, finding that the level of lead concentration in

the soil at the testing site exceeded background levels.

The court held that defendant’s release of the substance

caused plaintiffs’ response costs. The district court

observed that the “presence of any hazardous

substances [above background levels] on plaintiffs’

property is sufficient to justify their incurring response

costs.” After ordering briefs from the parties on

1The Licciardis also made certain state law claims in their

complaint. The district court was unable to find sufficient

support for these state-law lost profit claims, and decided

that portion of the case for Murphy. The Licciardis have not

appealed, so we do not revisit that decision here.

A-3

damages, the trial court awarded the Licciardis $12,337,

the amount which Murphy stipulated to as the

Licciardis’ expense for testing for substances defined as

“hazardous” under CERCLA. Both sides appeal. Murphy

contests any finding of liability while the Licciardis

assert that all of their expenses on sampling and testing

should have been awarded as damages.

I

There are four elements to a CERCLA cost-recovery

action, such as the one here: (1) the site must be a

“facility” under § 9609(9); (2) [*3] the defendant

must be a “responsible person” under § 9607(a); (3) a

release or threatened release of a hazardous

substance must have occurred; and (4) the release or

threatened release must have caused the plaintiff to

incur response costs. Amoco Oil Co. v. Borden, Inc.,

889 F.2d 664, 668 (5th Cir. 1989). The first and

second of these elements are not in issue here.

Murphy is a “responsible person” and its refinery is a

“facility.” The district court correctly noted that lead

is a “hazardous substance” under 40 C.F.R. § 302.4.

In Amoco, we rejected the proposition that CERCLA

“liability attaches upon release of any quantity of a

hazardous substance.” 889 F.2d at 670 (emphasis

original). We explained that the question of whether a

release has “caused” or justified response costs is

tempered by the purpose of the Act. Id. Although we

acknowledged that it is “not the exclusive means of

justifying response costs, [ ] a plaintiff who has

incurred response costs meets the liability requirement

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

violates . . . any applicable state or federai standard,

including the most stringent.” Id. at 671 (emphasis

original). [*4] However, the district court’s reliance

upon a violation of a standard and Amoco was

misplaced, as we will explain.

A-4

The district court concluded that any lead found in

the sample “exceeding background levels” constituted

a release that caused the Licciardis’ response costs

under CERCLA if the lead came from Murphy’s

refinery. Although the district court did not specify,

the record reflects that its reference to “background

levels” refers to the 1984 U.S. Geological Survey.

The U.S. Geological Survey measures empirical

evidence relating certain topological and geological facts

for a point on the globe. It is not a legal standard. We

are aware of no environmental law, state or federal,

that establishes the U.S. Geological Survey

“background level” as a standard, requirement, or

criterion. Relatedly, it is not clear that the Survey

figure used by the district court was relevant; according

to an expert who testified at trial, the “background

level” relied upon by the district court was established

“30 to 50 miles away from the Meraux refinery.”

The trial court also considered the drinking water

standard and the toxic concentration leaching

procedure (or “TCLP”) standard. According [*5] to

plaintiffs’ expert, the drinking water standard

establishes a legally acceptable limit for lead “at the

tap,” but none of the experts at trial attempted to link

the standard to groundwater tests. Moreover,

plaintiffs’ expert admitted at trial that she had not

carried out any groundwater testing, and that there

was insufficient data to form any opinion that the

Licciardis’ property had been affected by groundwater

migration from the refinery. As for the TCLP standard,

plaintiffs’ expert explained that even if a material

contains lead, EPA does not consider it “hazardous”

unless the lead is capable of “leaching” out of the

taaterial. The TCLP standard, she explained, is an

extraction procedure under which a _ scientist

simulates a landfill environment with rainfall and

acidity controls, then tests for lead in the resulting

A-5

leachate. Plaintiffs admitted in their Supplemental

Post-Trial Memorandum that the “TCLP analysis was

below regulatory levels.” Thus, even though they have

expended significant effort and resources testing their

property and hiring experts, plaintiffs have been

unable to offer any evidence that any regulatory

standard has been breached.

Without the Geological Survey, [*6] the drinking

water standard, or the TCLP standard as possible

bases for finding that Murphy’s release caused

response costs, we ask whether, in the absence of any

other evidence, a finding of hazardous substance

“above background levels” is sufficient to support a

finding that the release caused response costs. As we

explained in Amoco, responsible parties are not liable

unless there is evidence that they “posed [a] threat to

the public or the environment.” While Amoco allows a

CERCLA plaintiff to prove that response costs were

caused by a release without resort to an applicable

legal standard of justification, bare proof that there was

a release is not enough; as we have explained, liability

does not attach to the release of “any quantity of a

hazardous substance.” Id. at 670-71. “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. We have

been pointed to no evidence that the found “release”

justified the response costs. We cannot sustain the

district [*7] court’s finding of liability.

We do not reach the issues regarding the proper

calculation of damages under CERCI.A.

REVERSED.