Petition for Writ of Certiorari — Alcan Aluminum Corporation v. In re (No. 01-492)

Wd ego BE

‘4 ED

NO.__} 4°? SEP 2% 2001

IN THE

Supreme Court of the United States

IN RE: ALCAN ALUMINUM CORPORATION,

PETITION FOR WRIT OF MANDAMUS TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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

ere ve inn Picci Mis int a i A NA Net PN NE re ee ee ee

1

QUESTIONS PRESENTED

Whether the United States Court of Appeals for

the Third Circuit usurped its appellate authority by

denying Alcan Aluminum Corporation’s Petition for a

Writ of Mandamus to vacate an Order denying a

Motion for Recusal of the district court trial judge

where the petitioner demonstrated facts sufficient to

show a fundamental lack of impartiality and an

apparent bias in violation of 28 U.S.C. §455(b).

ee

1]

RULE 29.6 STATEMENT

Petitioner, Alcan Aluminum Corporation, is a

wholly owned subsidiary of Alcan, Inc., a Canadian

company formerly known as Alcan Aluminium

Limited.

RULE 14.1(b) STATEMENT

The parties to the proceedings before the United

States District Court for the Middle District of

Pennsylvania and the United States Court of Appeals

for the Third Circuit include:

e The United States of America, Plaintiff

e Alcan Aluminum Corporation, Defendant

Honorable Thomas I. Vanaskie, Chief Judge

Middle District of Pennsylvania

il

TABLE OF CONTENTS

QUESTIONS PRESENTED ..........---.20:0eeeeeeeeeeeees i

RULE 29.6 STATEMENT..............0.eeceeeeeseeeeeeees il

TABLE OF CONTENTS ...........:.:eceeeeeeeeeeeeeeeeeees ill

TABLE OF AUTHORITIES ................ceeeeeeeeeeeeees vi

OPINIONS BELOW .............:cceeeeeeeneneeeeeeeeeeeeeees ]

JURISDICTION ..........:..cccsesecseteeeeeeeeeeeeeceeeeneeees 1

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED .............--.2++0+ 2

STATEMENT OF THE FACTS..............-:0200ee2ee00+ 2

STATEMENT OF THE CASE .............:0c0eeeeeeeeees 4

REASONS FOR GRANTING THE

WRIT OF MANDAMUG ..............:sceeeeeeeeeeeeeeeeeees 6

I. THIS COURT SHOULD GRANT THIS WRIT

TO ENSURE INTEGRITY OF THE JUDICIAL

PRROCEESS. .ncccccccccsccesccesccsccccccsccscssscessccccsscees 6

Il. FAILURE OF THIS COURT TO GRANT THIS

WRIT WILL PUT THE IMPRIMATOR OF THIS

COURT ON CONDUCT THAT CONSTITUTES

A CLEAR VIOLATION OF THE EQUAL

PROTECTION CLAUSE .............cceceeeeeeeeeeeeees 8

Ill. JUDGE VANASKIE’S PARTIALITY IS CLEARLY

ILLUSTRATED BY HIS COMMENTS IN THE

REMAND CASE THAT EXPLICITY REJECT

CHEMICAL CHARACTERISTICS OF THE

WASTE AS RELEVANT AND THAT INSTEAD

INJECT THE SUBJECTIVE INTENTION OF

HIS FORMER CLIENT AS A BASIS FOR THE

IMPOSITION OF LIABILITY .............--.222-20++ 10

iV

IV. THE THIRD CIRCUIT HAS STEADFASTLY

VI.

REFUSED TO EXPLAIN ITS CONDUCT IN

THIS CASE WHICH CLEARLY SUGGESTS

THAT IS CONDUCT IS BEYOND LEGITIMATE

EXPLANATION ......cccsccccoscccccesccssccccsscsseseveses 12

A. The More Facts That Are Disclosed The

More Extreme The Position Of The Third

CE TI vivctsanccriitestniisaneicaccenne 13

B. The Third Circuit Has Steadfastly

Refused To Explain Its Refusal To Follow

Its Own Precedent And Is Another Example

Of The Growing Belief Among Federal Jurists

That Silence Relieves Them Of Their Duty

To Follow Precedent And To Be Accountable

ss scebsquedanudenmsennséedeniansaiiiamenadieadsuasaniien 15

THE CASES RELIED UPON BY THE DISTRICT

COURT DO NOT EVEN ARGUABLY OBVIATE

THE REQUIREMENT FOR RECUSAL UNDER

455(B), BUT REATHER SUPPORT ALCAN’S

POTN scctisccnsncdntacncsnecsocdsesssasesencsasansssoosses 19

COMMENTS BY THE DISTRICT COURT IN

ITS RULING IMPLIED THAT IT INCORPORATED

VIEWS DEVELOPED IN THE CONTEXT

OF ITS PREVIOUS DEFENSE OF THE

CULPABLE PARRIT wccccccccssscccsscsocsessecsoserccccess 20

VII.THE THIRD CIRCUIT PUBLCLY INDICATED

THAT ITS FAILURE TO EXPLAIN ITS

DECISION IN THE PRIOR CASE WAS AN

ERROR SINCE IT OWED THE BAR MORE;

NOW WHEN THE FAIRNESS OF THE

PROCESS OF THAT CASE IS PUT INTO

ISSUE, IT APPEARS TO REVERT TO THE

SAME BEHAVIOR TO AVOID EXPLAINING

NT COIS ccccconcsccrcaccscrecconcsaccsasacsesccnsnnce 22

CONCLUSION wcccsscsrccscessssersscssssccrcccssccssesssasesanes 25

APPENDIX:

United States v. Alcan Aluminum Corp.,

Memorandum Opinion and Order,

(M.D. Pa. Feb. 7, 2001)...........:::esseeeeeeeeeeeees A-1

In Re: Alcan Aluminum Corporation,

Order dated Apr. 3, 2001

No. 99-1160, (34. Cir.) .............cccccccccsceeceees A-26

In Re: Alcan Aluminum Corp.

Order dated, June 22, 2001

No. 01-1590 (3r. Cir.)

(Petition for rehearing en banc) .................. A-27

Deposition Transcript of Kenneth W.

Mansfield, Alcan Aluminum Corp. v.

Butler Aviation-Boston, No. 98-cv-11062

(D. Mass. Dec. 21, 1999) ..........:seeeeeeeeeee enone A-29

Transcript of Trial Testimony of Robert Nunez,

United States v. Alcan Aluminum Corp.,

No. 87-cv-920 & 91-cv-1132

(N.D.N.Y. Oct. 5S, 1999)............cceeesceessseereees A-33

Transcript of Trial Testimony of Eugene

Meyer, United States v. Alcan Aluminum

Corp., No. 87-cv-920 & 91-cv-1132

(N.D.N.Y. Oct. 7, 1999) ...........cceeseeeeeeseceeeees A-37

vi

TABLE OF AUTHORITIES

Cases

Acushnet Company, et al v. Mohasco Corp., et al

191 F.3d 69 (1% Cir. 1999) ...........cceeeeeeees 10, 11

Liljeberg v. Health Services ee Group

486 U.S. 847 (1998) .........ccccceeeeeeeeeceeeeee eee 16, 17

Little Rock School District v. Pulaski County

Special School district No. 1,

839 F2d. 1296 (8 Cir. 1988) ................ 19

In Re: School Asbestos Litigation

O77 F.2d 764 (3d Cir. 1992) ........c.cceeseeees 18

United States v. Alcan Aluminum Corporation.,

990 F.2d 711 (2"4 Cir. 1993)...........ccceeeeees 11, 24

United States v. Alcan Aluminum Corporation.,

97 F. Supp. 2d. 248 (N.D.N.Y. 2000) ........ 13

United States v. Alcan Aluminum Corporation.,

964 F.2d 252 (37 Cir. 1992) ...........cecceeneeeeeees passim

United States v. Alcan Aluminum Corporation.,

892 F. Supp. 648 (M.D. Pa. 1995) .............+++ passim

United States v. Alcan Aluminum Corporation.,

No. 89-1657, (M.D. Pa.) Memorandum and Order

(Oct. 4, 1994) ..........cecccecsceeecsssseeeseesssnsaseeeeees 11,21

United States v. Cleveland, No. Crim 96-207

1997 U.S. Dist. LEXIS 6384 (E.D. La. 1997) . 20

United States v. Hercules, Inc.,

247 F.3d 706 (8th Cir. 2001) ...............ceeeeeeees 9, 24

United States v. J.B. Stringfellow, et al.

No. CV83-2501 (C.D. Ca.) ..........ccceceeeeeeeeeeenees 16-18

vil

Statutes

2B U.BC. § SES .cccrcccccscccccscccccscceseees Liaenetaidionte 17, 18

BB U.B.C. © 1B46G .cccccccccccccccccscccsccsscesscscccssceceee 2

BB UBC. © 21GB .nccccecccscccccccscescscsscsscscssosssceese 2

43 U.B.C. 8 DGG ..cccrccrccscccscsccsssccosccccccccccccesese 3

2

4B UBC. 8 DGGT crcccrccccccccccccsccccsssccscccsccccccssceses

Other Authorities

Restatement (Second) of Torts, § 433A............. 14

BRIGID MCMENAMIN, Justice In the Dark, FORBES

CR, BD, BBD vncoccceccccccceccenccccccsscnsececsescncnesccess 7

BRUCE RUBENSTEIN, Controversial Cases Disappear,

CORPORATE LEGAL TIMES, Nov, 1999................. 7,12

SALEM M. KATSH & ALEX V. CHACHKES,

Examining The Constitutionality Of No Citation Rules,

NEw YORK LAW JOURNAL, Apr. 2, 2001 ............. 15

l

OPINIONS BELOW

On Recusal

On February 7, 2001, Judge Vanaskie denied

Alcan’s Motion for Recusal in the above case.

Reprinted at A-1. On April 3, 2001, the United States

Court of Appeals for the Third Circuit denied Alcan’s

Petition for Writ of Mandamus seeking recusal of the

Honorable Thomas I. Vanaskie in Civil Action No. 99-

CV-1160, United States District Court, Middle District

of Pennsylvania. Reprinted at A-26 On June 22,

2001, the United States Court of Appeals for the Third

Circuit denied petitioner Alcan Aluminum

Corporation’s Petition for Panel Rehearing / Rehearing

En Banc. Reprinted at A-27.

On Remand

On June 28, 1995, the United States District

Court for the Middle District of Pennsylvania issued

its Memorandum and Order holding Alcan jointly and

severally liable for the costs incurred by the United

States in cleaning-up the Susquehanna River. On

October 4, 1995, the United States District Court for

the Middle District of Pennsylvania issued its

Memorandum and Order denying Alcan’s motion for

reconsideration. On August 22, 1996, the United

States Court of Appeals for the Third Circuit affirmed

the trial court’s finding on remand. Subsequently, the

United States Court of Appeals for the Third Circuit

denied Alcan’s request for rehearing en banc.

JURISDICTION

Subject matter jurisdiction in the United States

District Court for the Middle District of Pennsylvania

2

was predicated on 28 U.S.C. §1345 and 42 U.S.C.

§9607 (a).

Petitioner Alcan Aluminum Corporation timely

filed a Petition for Writ of Mandamus with the United

States Court of Appeals for the Third Circuit pursuant

to 28 U.S.C. §1651(a) and Rule 21(a) of the Federal

Rules of Appellate Procedure. The Court of Appeals

denied the Petition by Order dated April 3, 2001.

Petitioner’s request for panel rehearing or rehearing en

banc was subsequently denied June 22, 2001.

The jurisdiction of the Supreme Court of the

United States is invoked pursuant to 28 U.S.C.

§1651(a) and in accordance with Rule 20 of the Rules

of the Supreme Court of the United States.

THE STATUTE INVOLVED

Title 28, §1651(a) of the United States Code

provides that:

The Supreme Court and all other courts

established by Act of Congress may issue all

writs necessary or appropriate in aid of their

respective jurisdiction and applicable to the

usages and principles of law.

STATEMENT OF THE FACTS

This case was filed by the United States against

the petitioner, Alcan Aluminum Corporation (“Alcan”)

under §107 of the Comprehensive Environmental

Response, Compensation and Liability Act, 42 U.S.C.

§9607 (“CERCLA”, commonly known as “Superfund”).

The government sought to have Alcan held jointly and

severally liable for those costs of remediation not

collected from other parties whose wastes were

3

disposed at the Butler Tunnel Superfund Site (the

“Site”).

The Site was a series of abandoned mine

tunnels adjacent to the Susquehanna River. During

the 1980s, a state licensed waste oil recycler operated

by one Russell Mahler (“Mahler”) under various

corporate identities contracted with the owner of a gas

station for the disposal of waste materials down a

bore-hole to an abandoned coal mine located under

his property. The bore-hole was a vertical shaft that

provided air to the coal mine tunnels located below.

Alcan, along with a number of other companies

and numerous Federal facilities, including, but not

limited to, National Airport, Dulles International

Airport, Andrews Air Force Base and Griffiss Air Force

’ Base also had waste products handled by Mahler.

Mahler disposed various wastes from these parties by

dumping it down the bore-hole illegally.

As a result of two unusual hurricanes, the

waste deposited in the mine tunnels was twice washed

into the Susquehanna River. These releases prompted

government response actions to contain the floating oil

by means of booms and then its removal. After the

second release, the EPA was able to _ identify

“hazardous substances” in the oil floating on the river

as that term was defined by the then recently enacted

Superfund, 42 U.S.C §9601 et seg. The government

was able to use Superfund in its response to the

second release. The response action was essentially

limited to installing floating oil booms and collecting

the floating oil for disposal. Substances that were not

contained in the floating materials went

unremediated.

De GSE en

4

STATEMENT OF THE CASE

In 1989, the United States brought a CERCLA

cost recovery action against a number of the

generators at the Site, including various federal

entities and Alcan. It settled with the federal entities

and all third party generators with the exception of

Alcan. The government sought to impose joint and

several liability for all of the remaining costs at the

Site, which vastly exceeded what Alcan’s share would

have been on a pure volumetric basis alone. No effort

was made to assign responsibility to potentially

responsible parties (“PRPs”) based on toxicity. In fact,

Alcan’s waste was a non-hazardous water-mineral oil

emulsion that contained none of the chemicals

identified by the EPA as hazardous substances under

CERCLA that necessitated remediation. The district

court entered judgement against Alcan on May 8,

1991 and Alcan appealed to the Court of Appeals for

the Third Circuit. The Third Circuit vacated

judgement and remanded the case.

Upon remand, the case was assigned to then

newly appointed Judge Thomas _Vanaskie, who,

peculiarly enough, had formerly served as defense

counsel for the very operator (Mahler) accused of

illegally dumping waste, including Alcan’s, down the

bore-hole into the mine. Judge Vanaskie neither

disqualified himself from presiding over the cost

recovery case against Alcan, nor did he fully disclose

his conflict of interest to the parties. It is important

for this Court to note that at the time of Mahler’s

criminal prosecution, Alcan presented testimony that

was clearly adverse to Judge Vanaskie’s then client.

During proceedings on remand, Judge

Vaniaskie’s partiality and bias became more and more

apparent by comments made by him in opinions that

aaa

5

suggested he had_ specific personal knowledge

concerning the motivations and conduct of Mahler.

The only impact of the Alcan waste at the Site was the

substantive equivalent of homogenized milk, a fact

which the United States now candidly admits it has

never disputed.

In its appeal on the recusal issue, Alcan

suggested to the Third Circuit that Judge Vanaskie’s

impartiality was highly suspect and that the Alcan

emulsion was innocuous. The Third Circuit panel

refused address these issues explicitly, instead

choosing to attempt to avoid accountability through

its use of an unpublished, non-precedential, single

word affirmance.

Meanwhile, a case involving the exact same

waste was proceeding in U.S. District Court for the

Northern District of New York. In that case, the

government expert testified that the Alcan emulsion,

like that disposed at the Butler Site, had the

functional equivalent impact on the New York site as

homogenized milk. In addition, media attention was

being drawn to the questionable judicial conduct in

the Butler Site case.

The United States then filed this second cost

recovery case before Judge Vanaskie alleging the need

for additional funds for an early warning system to

detect future releases of potential waste from the

Butler Site.! Alcan requested that Judge Vanaskie

disclose his prior connection to any representation in

1 The government made this decision with respect to the

Butler tunnel while offering testimony in the New York

litigation that all the waste had already been washed out of

the tunnel.

i

6

connection with the Site. This was the first time that

Judge Vanaskie had made disclosure of his role on the

record. Only as a result of these disclosures was

Alcan able to determine that Judge Vanaskie had been

actively engaged in prior legal representation of client

interests at the Butler Site--interests that were

adverse to Alcan’s own. Under the prevailing and

explicit law of the Third Circuit, it is clear that Judge

Vanaskie was obligated to recuse himself on his own

motion. He steadfastly refused to acknowledge both

his legal obligation and ethical obligations under the

Canons of Judicial Ethics to do so. Alcan moved for

recusal. Recusal was denied.

‘Alcan subsequently filed a writ of mandamus to

the Third Circuit on the recusal issue. The writ was

denied on a vote of two to one. The appellate panel,

again like the prior single-word affirmance, provided

no explanation as to why the Third Circuit was

refusing to apply the law. Alcan sought a rehearing

and ae rehearing en banc seeking not only

reconsideration, but asking, at the very least, for an

explanation from the appellate court why Alcan’s

understanding of the law was incorrect.

Alcan’s motion was denied upon an undisclosed vote.

This petition now follows.

REASONS FOR GRANTING THE WRIT OF

MANDAMUS

I. THIS COURT SHOULD GRANT THIS WRIT TO

ENSURE INTEGRITY OF THE JUDICIAL

PROCESS

The viability of the judicial functions of our

nation absolutely depends on the integrity of the

7

judicial process. The foremost foundation of our

judicial process is the impartiality of the elected or

appointed judiciary. No greater attack on that

integrity and that foundation exists than the unethical

bias or partiality of judges. The only greater attack on

judicial integrity is the failure of the appellate process |

in its duty to enforce recusal when faced with the bias

and partiality of a trial judge under its supervision.

Public attention has already been focused to

this case because of the suspicious conduct of the

judiciary.2 Alcan was never given its day in court on

remand despite the fact that none of the hazardous

substances that were driving the Butler Site

remediation were in its waste emulsion. Instead, the

trial court granted the government’s motion for

summary judgment based on their specious assertion

that Alcan was unwilling to litigate the merits of its

divisibility claim. That assertion was patently false,

since Alcan was in fact litigating similar claims about

the exact substance before the Northern District of

New York involving many of the same witnesses

deposed in connection with the remand in the Butler

Site case.

Indeed, the case on the Butler Site was a

simpler case to litigate. The nature of the wastes

requiring remediation at Butler rendered impossible

any attempt by the United States to obscure the

essential fact that the government was _ seeking

imposition of joint and_ several liability under

Superfund for the exclusive impact of water. Although

attempting to disguise the basis for his ruling on

remand in legal jargon, Judge Vanaskie totally

? Brigid McMenamin, Justice in the Dark, FORBES, Oct. 30,

2000, at 72-3; Bruce Rubenstein, Controversial Cases

Disappear, CORPORATE LEGAL TIMES, Nov. 1999, at 30.

8

disregarded the requirement hazardous substances be

the basis for CERCLA liability instead imposing

liability for water.

The first appellate panel to review the decision

made on remand by Judge Vanaskie was comprised of

Circuit Judges Nygaard, Lewis and McKee. This panel

attempted to avoid the mandate of the original holding

of the Third Circuit (without recourse to an en banc

review) by hiding the substance of their deliberation

and decision-making in an “unpublished, non-

precedential” single word opinion that affirmed Judge

Vanaskie.

The attempt by Judge Vanaskie and the Third

Circuit panel in United States v. Alcan Aluminum

Corp., 892 F. Supp. 648 (M.D. Pa. 1995), aff'd 96 F.3d

1434 (3 Cir. 1996), cert. denied 521 U.S. 1103

(1997)(“Butler II”) to cloak the basis for their opinion

has now been exposed. With the decision of the

District Court in the Northern District of New York

explicitly holding Alcan liable for water, now reveals

water as the only possible basis for liability since it

was the only characteristic of the emulsion at issue at

the Butler Site.

II. FAILURE OF THIS COURT TO GRANT THIS

WRIT WILL PUT THE IMPRIMATUR OF THIS

COURT ON CONDUCT THAT CONSTITUTES A

CLEAR VIOLATION OF THE EQUAL

PROTECTION CLAUSE

Judge Vanaskie permitted the imposition of

liability against Alcan for water in what can only be an

apparent retaliation for Alcan’s previous adverse

testimony against his former client, Russell Mahler.

The Third Circuit’s failure to require Judge Vanaskie’s

recusal has created the peculiar situation whereby

9

other litigants with far higher toxic wastes can now

rely on Alcan precedent.on divisibility of harm and

apportionment of damages to avoid joint and several

liability under CERLCA. Yet, bizarrely enough, the

effect of the same precedent results in the imposition

of joint and several liability under CERCLA against

Alcan for the disposal of innocuous waste that is

essentially water.

In United States v. Hercules, Inc., 247 F.3d 706

(8 Cir. 2001), the Eighth Circuit recently relied upon

the Alcan precedent from United States v. Alcan

Aluminum Corp., 964 F.2d 252, 269 (34 Cir.

1992)(“Butler I”) to overturn the imposition of joint and

several liability on a PRP who disposed of PCBs. The

Eighth Circuit stated this about the divisibility

doctrine:

...[W]e find it to be both compatible with

the text and the overall statutory scheme

of CERCLA (footnote omitted) and a

sensible way to avoid imposing on parties

excessive liability for harm that is not fairly

attributable to them.

It also cited the unpublished, non-cite-able opinion in

Butler II for the proposition as to when divisibility is

inappropriate. Hercules at 718. However, the Eighth

Circuit was not aware of the actual facts in Butler II

which are now undisputed, that is, that neither party

disputed that the emulsion was the substantive

equivalent of homogenized milk. 3 Thus, as the law is

being applied in the United States today, if you have a

3 “The United States has never disputed that Alcan’s waste

oil emulsion may share some of the same characteristics as

milk.” United States’ Response to Defendant’s Motion for

Relief from Judgement”, p. 10.

Se ee ee ee od

10

serious hazardous waste, Alcan’s precedent in Butler J

can protect you from the automatic imposition of joint

and several liability and, in fact, in most cases joint

and several liability can thereby be avoided. However, -

if you are Alcan and disposed something substantively

equivalent to homogenized milk you are automatically

held jointly and severally liable. Only a perversion in

the judicial process could create such anomalous and

contradictory results.

Il. JUDGE VANASKIE’S PARTIALITY IS

CLEARLY ILLUSTRATED BY HIS COMMENTS

IN THE REMAND CASE THAT EXPLICITLY

REJECT CHEMICAL CHARACTERISTICS OF

THE WASTE AS RELEVANT AND THAT

INSTEAD INJECT THE SUBJECTIVE

INTENTION OF HIS FORMER CLIENT AS A

BASIS FOR THE IMPOSITION OF LIABILITY

In Butler I, the Third Circuit explicitly focused

on the role of hazardous substances in determining

the extent of Alcan’s or any PRP’s liability. It stated in

this respect:

...[I]Jf 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 cost.

Butler I, 964 F. 2d at 271

Moreover, the recent Acushnet Company, et al v.

Mohasco Corp., et al, 191 F.3d 69 (1st Cir. 1999)

decision in the First Circuit applies the same principle

first articulated in Butler I by the Third Circuit and

which was adopted by the Second Circuit in United

11

States v. Alcan Aluminum Corporation, 990 F. 2d 711

(2-¢ Cir. 1993) involving the same _ waste.

Consequently, the First Circuit not only flatly rejects

the notion that CERCLA liability can attach for non-

hazardous substances, but clearly holds that CERCLA

liability cannot attach for minimal amounts of

hazardous substances that have no _ practical

relationship to the remediation:

...a defendant may avoid joint and several

liability for response costs in a contribution

action under §9613(f) if it demonstrates

that its share of hazardous waste deposited

at the site constitutes no more than

background amounts of such substances in

the environment and cannot concentrate

with other wastes to produce higher

amounts. Acushnet, 191 F.3d at 77.

However, Judge Vanaskie explicitly rejected the nature

of the waste as relevant to any consideration of

liability, instead holding that one’s payment for waste

disposal and the subjective intentions of the disposal

company alone are the determinants of liability:

Alcan’s assertion [that the waste is benign]

begs the questions of why Alcan paid to

have a waste hauler to remove the

emulsion and why the waste hauler

surreptitiously dumped the emulsion into

a mine borehole.

United States v. Alcan Aluminum Corporation, No 89-

1657, (M.D. Pa. Oct. 4, 1995), Memorandum and

Order, p. 4.

Judge Vanaskie is inferring the nature of the waste

from his client’s conduct or perhaps his refusal to

* ek al i!

12

address the benign nature of Alcan’s waste cloaks a

more questionable agenda. Two points. are

undisputed. Judge Vanaskie is clearly intent upon

imposing liability and the object of that liability is the

substantive equivalent of homogenized milk.

IV. THE THIRD CIRCUIT HAS STEADFASTLY

REFUSED TO EXPLAIN ITS CONDUCT IN

THIS CASE WHICH CLEARLY SUGGESTS

THAT ITS CONDUCT IS BEYOND

LEGITIMATE EXPLANATION

In an interview with Corporate Legal Times, the

Chief Judge of the Third Circuit, who argues forcefully

in favor of unpublished opinions, concedes that

opinions without explanation are problematic:

Judge Becker argues forcefully in favor of

unpublished opinions but concedes that

one-word judgment orders such as the

one issued by the Alcan panel are a

mistake...[W]e owe the bar more than

that.4

This case appears to be imbedded with one-word

opinions even though the propriety of judicial conduct

is clearly at issue. In Butler II, the appellate panel

appeared intent on not following the mandate of Butler

I and used the single word “affirmed” to circumvent an

explanation that would have likely disclosed the extent

of Judge Vanaskie’s prior involvement in the defense

of Mahler. It would also have highlighted the fact that

the panel was imposing CERCLA liability for the

substantive equivalent of disposing of homogenized

milk rather than actually considering the role of

4 RUBENSTEIN, Supra, at 30.

13

hazardous substances as the panel in Butler /

required.

A. The More Facts That Are Dis: losed The

More Extreme The Position Of The Third

Circuit Becomes.

Time has not been kind to the Third Circuit.

The more facts are revealed, the more controversial

the conduct of the Third Circuit appears. The Amicus

brief filed by the Washington Legal Foundation (WLF)

and numerous public officials as well as private

institutions demonstrates the extreme distortion of

established legal doctrine required to reach the

decision adopted by Judge Vanaskie and then

approved by the panel in Butler II. As the brief points

out, the effect of the decision of the second panel in

approving the action of Judge Vanaskie is a wholesale

rejection of the Third Circuit’s clear recognition that

divisibility would almost certainly apply. United States

v. Alcan Aluminum Corp., 964 F. 2d 252, 269, n. 27

(3d Cir. 1992) (“the drafters of the Restatement found

that joint pollution of water is typically subject to the

divisibility rule.”) Judge McAvoy’s decision in the

Northern District of New York adopts the legal

standard of Judge Vanaskie and contains a more

detailed look at the legal justification for Vanaskie’s

doctrine. United States v. Alcan Aluminum Corporation,

97 F. Supp 2d 248, 269. The Amicus brief filed by the

WLF reveals McAvoy’s analysis to be a wholesale

distortion of the divisibility doctrine:

The district court took a crabbed view of

the divisibility concept in order to avoid

...[the Second Circuit’s] admonition that

“commingling does not mean indivisibility.”

The error of the court can be found by

analyzing its faulty reasoning from the

14

following key passages in the district

court’s opinion:

The Second Circuit adopted the

Restatement (Second) of § Torts

definition of divisibility, which states

that harm is divisible where “joint

tortfeasors act independently and

cause distinct harm, for which there is

a reasonable basis of division

according to the contribution of each.”

Prosser and Keeton explain that

where two or more causes combine to

produce a single indivisible result,

liability cannot be apportioned. 97 F.

Supp. 2d at 271 (emphasis added).

Unfortunately, the district court was only

half right. Its quotation of the

Restatement omitted a key passage, as a

cursory look at section 433A reveals:

§ 433A. Apportionment of Harm to

Causes

(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. /d.

(emphasis added).

The WLF brief concludes that the district court

in New York constructed faulty major and minor

premises to leap “to a wholly unsound conclusion.”

Desperately trying to conceal the fact that Judge

15

Vanaskie’s reasoning would fare no better, the Third

Circuit cloaks it in the shroud of a single word

affirmance. Unless remedied by this Court, the Third

Circuit’s stubborn refusal to acknowledge any

irregularities in the manner in which this case has

been handled will continue to erode the prestige and

credibility of the judicial system:

It is submitted that the federal appellate

courts have blinded themselves [by use of

unpublished nonprecedential opinions]

from hundreds of snapshots from their

own history in violation of the First

Amendment. The negative implications for

judicial accountability and for the prestige

and credibility of the judicial system seem

clear beyond dispute.5

B. The Third Circuit Has Steadfastly

Refused to Explain Its Refusal to Follow

Its Own Precedent And Is Another

Example Of The Growing Belief Among

Federal Jurists That Silence Relieves

Them Of Their Duty To Follow Precedent

And To Be Accountable

Both controlling precedent and the conduct of

other federal judges demonstrates beyond dispute that

recusal was required in this case. Alcan has

specifically asked both the members of the Third

Circuit panel who voted not to require recusal and the

Third Circuit, en banc, to explain the basis for why

they disagreed with Alcan. Such explanation has not

been forthcoming. Alcan believes that an explanation

has not been forthcoming, not because Alcan is

° SALEM M. KATSH & ALEX V. CHACHKES, Examining the

Constitutionality of No Citation Rules, N.Y.L. J., Apr. 2, 2001.

16

obviously wrong, the widespread Amicus support in

the corresponding case in New York certainly makes

that position untenable, but rather because the Third

Circuit has no justifiable explanation for its conduct.

A judge must disqualify himself where his

‘impartiality might reasonably be questioned or where

he has a personal bias or prejudice concerning a

party, or personal knowledge of disputed evidentiary

facts concerning the proceeding. 28 U.S.C. §455

Two cases clearly demonstrate that automatic

recusal is required under facts far less compelling

than those in this case. The first case involved an

automatic recusal even though the judge’s recollection

of the involvement was far more tentative than that of

the trial court’s involvement in this case. Liljeberg v.

Health Services Acquisition Group, 486 U.S. 847

(1988). The second case was based exclusively on

association with an office that represented a party

even though the judge apparently had no involvement

with the case at all. United States v. Stringfellow, et

al., CV83-2501, United States District Court for the

Central District of California.

This Court set out the standard for recusal in

Liljeberg v. Health Services Acquisition Corp, 486 U.S.

847, 860-61 (1988) as follows:

If it would appear to a reasonable person that

a judge has knowledge of facts that would give

him an interest in the litigation then an

appearance of partiality is created even

though no actual partiality exists because the

judge does not recall the facts, because the

judge’s actually has no interest in the case or

because the judge is pure in heart and

incorruptible.

17

There is no dispute that Judge Vanaskie meets

the “personal and extrajudicial” requirements since he

testified that he remembered representing Russell

Mahler, and it was, of course, in his capacity as an

attorney that he did so. How direct Judge Vanaskie’s

involvement was in the representation remains in

question due to the weak recollections of Judge

Vanaskie, Mr. Morey, and Mr. Warren of the precise

facts surrounding the Judge’s involvement with

Mahler and the Mahler related companies.

Nonetheless, it is clear he was present during the

entire criminal trial of Mahler’s associates. However,

this failure to recall the level of involvement in such a

case is not a basis to preclude recusal. Id.

Judge Vanaskie served as defense counsel for

one or more of the directly responsible parties who

illegally contaminated the Butler Site. Therefore, in

addition to the “impartiality” shown under the

Lijeberg standard noted above, Section 455 (b)(2)

makes it clear that once a party serves as a lawyer in

the matter in controversy, the extent or degree of

representation is irrelevant, and recusal is therefore

mandated. There is no dispute that Judge Vanaskie

served as a lawyer in the matter in controversy and

that his client or clients would have had interests

adverse to Alcan’s due to the fact that Alcan appeared

in the criminal action as a witness adverse to the

former client’s interest.®.

6 Notably, the United States did not bring a cost recovery

action against Hudson Oil as an owner operator or

transporter for cost recovery. This is an interesting contrast

with United States v. J. B. Stringfellow et. al where the

United States sued the owner operator and transporters.

The fact that an interested plaintiff chose not to name

Mahler or his companies in the cost recovery action does

18

Under the established facts, recusal is not only

required in this case it is mandated. This conclusion

not only derives from the facts of this case, but from

the actions of other federal judges in disqualifying

themselves under less compelling circumstances in

connection with other Superfund actions.

The automatic operation of this rule of recusal

is well-illustrated in the ongoing Superfund recovery

action entitled United States v. J.B. Stringfellow’.

Judge Nora M. Manella automatically recused herself

from the litigation simply because she was in the US

Attorney’s Office while it represented the United States

in the action. There is no mention that she was

actually involved in the litigation at all. Recusal was

automatically ordered by Judge S. W. Lett because

one of the parties to the litigation was a former

employer, and the judge “believed” he worked on some

aspect of the case. Moreover, as noted previously,

recusal under these circumstances cannot be waived.8

not change the reality that they were PRPs and that

involvement in litigation involving accountability for the Site

would have been adverse to Alcan.

7 United States District Court for the Central District Of

California, CV 83-2501.

8 98 U.S.C. §455(b); See also, In Re School Asbestos

Litigation, 977 F.2d 764 (3d Cir. 1992) stating “Most

relevantly, disqualification is required when there is ‘a

personal bias or prejudice concerning a party, or personal

knowledge of disputed evidentiary facts concerning the

proceeding.’ 28 U.S.C. §455(b)(1). While the parties may,

after full disclosure on the record, waive the grounds of

disqualification under subsection (a), a judge may not

accept a waiver of the grounds listed in subsection (b).” Id.

at 775.

19

V. THE CASES RELIED UPON BY THE

DISTRICT COURT DO NOT EVEN ARGUABLY

OBVIATE THE REQUIREMENT FOR

RECUSAL UNDER 455(b), BUT RATHER

SUPPORT ALCAN’S POSITION

In its Memorandum Decision, the trial court

cited two cases to support the propositions that

recusal is not required. These cases do not support

the proposition for which they are offered and, in fact,

support Alcan’s position that the trial court should

have recused himself in this case.

In the first case, Little Rock School District v.

Pulaski County Special School District No. 1, 839 F.2d

1296 (8 Cir. 1988), the judge did not recuse himself.

However, the facts in Little Rock are clearly

distinguishable. In that case, the judge was a member

of a firm which filed an amicus brief on behalf of

another party in a civil rights case that was not before

him. The party seeking recusal claimed that since

there was an attempt to consolidate that third party in

the case before the judge that constituted the same

matter. The case was not consolidated. The appellate

court disagreed and although it mentioned the

differences in the case numbers, it was clear that the

decision fundamentally relied upon the fact that the

judge’s prior firm did not represent the third party and

that there was no evidence that the legal issue arose

from the same set of facts.

In this case, Judge Vanaskie defended Mahler

in the companion criminal case for the very actions

(hauling and dumping into the Butler Mine Tunnel

bore-hole) that created Alcan’s liability at the Site.

Crucially, Alcan participated in those proceedings in a

manner that was directly adverse to the interests of

Judge Vanaskie’s former client.

20

In United States v. Cleveland, No. Crim. 96-207,

1997 U.S. Dist. LEXIS 6348 (E.D. La. 1997), the judge

wrote a memorandum on legal issues which the firm

used to evaluate whether or not to represent the

client. The firm ultimately did not represent the client

involved in the purported conflict, and rather than

relying on the legal memorandum as the basis for

holding that recusal was not required, the court relied

upon the lack of representation.

Judge Vanaskie relied on Cleveland to support

an argument that §455(b) does not require recusal

when a judge’s role is limited to simply legal research

and brief writing which he claims is all he can recall.?

The rule does not carve out such an exception.

Moreover, Judge Vanaskie did not simply engage in

brief writing as the Judge in Cleveland did. Judge

Vanaskie engaged in active legal representation for the

same person whose activities are central to the case

he was trying on remand. What Mahler hauled and

where he hauled it are the main items of proof in this

case. Again, Alcan’s testimony in those proceedings,

which Judge Vanaskie admittedly attended as counsel

for Mahler, contributed to the criminal conviction of

that client. The clear conflict in this case cannot be

explained away.

VI. COMMENTS BY THE DISTRICT COURT IN

ITS RULING IMPLIED THAT IT

INCORPORATED VIEWS DEVELOPED IN THE

CONTEXT OF ITS PREVIOUS

REPRESENTATION OF THE CULPABLE

PARTY

The fact that Judge Vanaskie’s evaluations of

purely technical issues were infected with views about

9 In many respects the absence of a firm recollection is more

troubling than an affirmative recollection.

21

the conduct of his former client are blatant. In

addressing what should have been a simple technical

issue ie., the benign biodegradable characteristics of

Alcan’s waste emulsion, Judge Vanaskie injects into

that analysis the motivation of his former client:

Alcan’s assertion [that the waste is benign]

begs the questions of why Alcan paid the

waste hauler to remove the emulsion and

why the waste hauler surreptitiously

dumped the emulsion into the borehole. !°

Clearly, Judge Vanaskie is not focusing on the

technical characteristics of the waste in an objective

manner, but inferring its character from the conduct

of his former client. We will never know the extent his

opinion was tainted by his knowledge of unsavory

conduct of his client, like the fraud at the Brooklyn

Navy Yard.!! What Alcan does know, as undisputed

fact, is that vastly higher quantities of the emulsion

disposed at the Butler Site was land-spread at the

Sealand Site in upstate New York where the United

10 United States v. Alcan Aluminum Corporation, No. 89-

1657, Memorandum and Order at p. 4. (M.D. Pa. Oct. 4,

1995).

11 In the deposition of Kenneth Mansfield, a Mahler

employee, testified that the United States routinely sent out

purchase orders for disposal of materials from the bilge of

destroyers at the Brooklyn Naval Yard he characterized as

“diesel fuel”. He stated he was under instructions to stay

and make believe he was pumping so that no one would

suspect that the government was paying Mahler for

purchase order volumes far in excess of the volume actually

pumped. A-31.

22

States Environmental Protection Agency conceded

there was no adverse environmental impact. !2

VII. THE THIRD CIRCUIT HAS PUBLICLY

INDICATED THAT ITS FAILURE TO EXPLAIN

ITS DECISION IN THE PRIOR CASE WAS AN

ERROR SINCE IT OWED THE BAR MORE;

NOW WHEN THE FAIRNESS OF THE

PROCESS OF THAT CASE IS PUT INTO

ISSUE, IT APPEARS TO REVERT TO THE

SAME COVERT BEHAVIOR TO AVOID

EXPLAINING ITS CONDUCT

In New York, Alcan was also held jointly and

severely liable for disposing a water emulsion whose

impact on a waste site was no different than if it had

disposed homogenized milk. In a Motion for Relief

From Judgment before Judge Vanaskie stemming

from the testimony of an EPA witness (taken in the

corresponding remand ‘case before the Northern

District of New York involving the same waste), the

government’s expert, Dr. Meyer, conceded that the

impact of the emulsion was no different than that of

milk. A-41. Furthermore, the United States also

conceded that the emulsion was no different than

homogenized milk:

Alcan contends that the United States

misled this Court in Alcan-Butler Tunnel I,

because both Alcan’s waste oil emulsion

and milk cause’. other hazardous

substances to migrate. Indeed, it is the

quality of milk and other bulk liquids to

make more environmentally harmful

substances migrate that constitutes one of

the principal bases for the United States

claims. The crucial distinction, however, is

12 See testimony of government witness, Mr. Nunez. A-33.

23

that milk is not a hazardous substance

actionable under CERCLA while Alcan’s

emulsion is.!3

It is remarkable that the United States concedes

that milk is not a hazardous substance actionable

under CERCLA even though it contains higher

concentrations of similar metal compounds that

triggered liability for the Alcan emulsion than were

actually contained in that emulsion. As the Third

Circuit noted in Butler I:

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.

United States v. Alcan Aluminum Corporation, 964 F.2d

252, 267 (3d Cir. 1992).

Second, Dr. Meyer’s deposition referenced

during Meyer’s cross-examination in the New York

case, was taken in connection with this case. This

undisputed evidence is precisely what Alcan put

before Judge Vanaskie to support the theory that

Alcan’s waste was nothing more than the substantive

equivalent of milk and therefore no liability for

13 United States v. Alcan Aluminum Corporation, (D.C.Pa.)

No. 99-CV-1160) United States Response to Defendant’s

Motion For Relief From Judgment, pp. 11-12.

24

remediation costs should attach. Why then did this

undisputed testimony that joint and several liability

was being imposed for something whose impact on the

Site was substantially equivalent to milk appear

nowhere in the published court opinions in that case?

Certainly, this would have been of interest to the

Eighth Circuit who recently reversed a district court

decision in United States v. Hercules, Inc., et al., 247

F.3d 706 (8 Cir. 2001) permitting divisibility for

dioxin, citing United States v. Alcan, 990 F.2d 711, 722

(2d Cir. 1993) (Alcan Il). The 8t» Circuit also cited

Alcan III (United States v. Alcan, 892 F. Supp. 648 (M.D.

Penn. 1995) for the statement by Judge Vanaskie that

Alcan took an “all or nothing approach” and therefore

construing the Judge’s opinion to indicate that Alcan

had not offered any compelling evidence with respect

to its waste and the divisibility issue. Hercules at 718.

In fact, what Alcan did was offer very

compelling testimony given by the government’s own

expert witness. Judge Vanaskie chose to ignore the

relevant evidence and facts and simply to make a

ruling without reference to Alcan’s waste being the

equivalent of milk. Therefore, the Eighth Circuit

Court of Appeals did not know that it was undisputed

in Alcan III that the emulsion was just like

homogenized milk. Thus, the Eighth Circuit effectively

held in its opinion that it would permit divisibility of

harm for dioxin while not being permitted to

understand that divisibility of harm for a substance

like milk was actually being denied by the Third

Circuit.

In a site composed of 1,100 gallons of waste—

1,000 gallons of milk from Party A, 50 gallons of

dioxin from Party B, and 50 gallons of dioxin from

Party C, the liability of B and C would never be more

than 50 percent, but the liability of A would be 100

25

percent. Using such a volumetric assessment, the

liability of B and C would never be more than 4.5

percent each. The Eight Circuit would never have

intended such a result had it known the facts. Yet,

that is the consequence of lack of candid disclosure by

the district court in Alcan III. Nor did the Eight

Circuit in relying upon Alcan III know that the district

court judge who wrote the opinion never admitted to

the fact that he was imposing liability and ignored

divisibility for something as benign as milk and was

the former defense counsel for the party who illegally

dumped the waste and against whom Alcan provided

adverse testimony.

If the United States’ assertion in this case that

it never misled the district court, and openly agreed

that Alcan’s emulsion was just like milk, then Judge

Vanaskie had to intentionally distort the facts to

render his opinion in that case (Alcan II]}—that alone

should be sufficient evidence of bias to require

disqualification.

This Writ is required not only because of

fairness to Alcan, but because the present state of

affairs impairs the credibility and integrity of the

entire legal process.

CONCLUSION

For the foregoing reasons, this Writ of

Mandamus should be granted.

Dated: September 18, 2001

a wi su

Lawrence A.Salibra, II

Pg

i

a

26

Mark D. Kindt ~

Alcan Aluminum

Corporation

6060 Parkland Boulevard

Mayfield Heights, Ohio

44124-4185

(440) 423-6918

Attorneys for Petitioner

Alcan Aluminum

Corporation

A-1

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

(Filed Feb. 07, 2001)

UNITED STATES OF AMERICA NO 3 CV 99-1160

Plaintiff

V. Chief Judge

Vanaskie

ALCAN ALUMINUM

CORPORATION

Defendant.

MEMORANDUM

In this cost recovery action under sections 107

and 113 of the Comprehensive. Environmental

Response; Compensation and Liability Act of 1980

(“CERCLA”), 42 U.S.C. §§9607, 9613, defendant Alcan

Aluminum Corporation (“Alcan”) has moved for my

disqualification under 28 U.S.C §455(a) and (b)(2).

Alcan’s motion is based upon the fact that, as an

associate in a Philadelphia law firm approximately

twenty (20) years ago, I participated in the firm’s

representation of an entity that disposed of hazardous

waste at the site at issue in this case. Specifically, at

the direction of the partner in charge of the waste

hauler client, I performed some work in connection

with state criminal proceedings pertaining to the

waste haulers activities at the site. Alcan presents

this motion notwithstanding the fact that in a prior

cost recovery action against Alcan involving the same

site and over which I presided, United States v. Alcan

Aluminum Corp., 892 F.Supp. 648 (M.D.Pa. 1995),

aff'd mem., 96 F.3d 1434 (3d Cir. 1996), cert. denied,

521 U.S. 1103 (1997), I informed the parties of my

A-2

knowledge of the site and the basis for that

knowledge, and Alcan did not take any action at that

time to ask that I step aside.! Because (a) the waste

hauler in question is not a party to this case, (b) my

limited work on behalf of the waste hauler did not

concern the matter in controversy here, (c) the long

passage of time since I did any work on behalf of the

waste hauler, and (d) Alcan voiced no objection to my

presiding in a related case decided almost five years

ago, Alcan’s motion for disqualification will be denied.

I. BACKGROUND

As indicated above, this is the second action

commenced by the United States against Alcan to

recover environmental remediation costs incurred by

the United States Environmental Protection Agency

(“EPA”) at the Butler Mine Tunnel Superfund Site (“the

Site”) located in Pittston Township, Luzerne County,

Pennsylvania. As stated by the Third Circuit on the

first occasion that it addressed this matter, United

States v. Alcan Aluminum Corp., 964 F.2d 252, -255-

97 (3d Cir. 1992), the pertinent facts are as follows:

The Butler Tunnel 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. The mines are accessible

from the surface by numerous air shafts or

boreholes. One borehole (the “Borehole”) is

! The first action will at times be referred to herein as

“Alcan I.”

A-3

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.

FNI. The Mahler Companies are said to

be government-licensed waste

processors. Amicus Curiae the United

States Chamber of Commerce. Br. at 6.

FN2. On occasion, the Mahler Companies

commingled Alcan’s oily waste with other

waste at Mahler’s recycling facilities

located in Syracuse, New York, and

Edgewater, New Jersey, before disposing

of the waste through the Borehole.

Alcan is an Ohio’ corporation which

manufactures 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

A-4

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

A-5

6500-7500 gallon loads) of Alcan’s liquid waste

through the Borehole into the Site. [FN3]

FN3. Although Alcan has argued

that the Government did not prove

that its emulsion was actually at

the Site because it did not

establish the presence of

chromium, this does not preclude

Alcan’s liability under CERCLA, for

even assuming arguendo that

there was no chromium at the

Site, Alcan has admitted that “the

Mahler companies disposed of. . .

the Alcan emulsion through the

Borehole into the Site.” App. at

36. Alcan asserts that it was not

aware that Mahler was disposing

of the oily waste in this fashion,

but the Government does not

contend otherwise, and in any

event Alcan does not contend that

this should affect our result.

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 1970's.

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;

A-6

immediately removing and disposing of 161,000

pounds (over 80 tons) of oil and chemical-

soaked debris and soil, monitoring, sampling

and analysis of air and water, and conducting

hydrogeologic studies.” Government’s Br. at 10-

11.

On December 27, 1985, EPA issued written

information requests to potentially responsible

parties (“PRPs”), 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 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

A-7

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.

In Alcan I, the Third Circuit rejected Alcan’s

arguments that it had no liability under. 42 U.S.C.

§9607(a), but remanded the matter to determine

whether Alcan could avoid or limit its liability as a

result of the fact that its used oil emulsion had been

commingled with other oily waste containing

hazardous substances discharged from the Butler

Mine Tunnel. The Court of Appeals indicated that if

Alcan established that its used “emulsion did not or

could not, when mixed with other hazardous waste,

contribute to the release and the resultant response

costs, then Alcan should not be responsible for any

response costs.” Id. at 270.

On remand, the matter was re-assigned to me.

As Alcan concedes, I informed the parties that in the

early 1980’s the firm with which I was associated

represented Russell Mahler and Hudson Oil Company

(one of the Mahler Companies), and I had done some

work in connection with criminal proceedings that had

been brought against the owners of Hi Way Auto

Service (which was not a firm client and for whom I

did not render any services), as well as criminal

proceedings brought against Mahler and/or Hudson

A-8

Oil.2 Neither the United States nor Alcan raised any

question as to the propriety of my handling the matter

based upon this limited representation that had

occurred more than a decade before I became a federal

judge.

Ultimately, I found that Alcan had not carried its

burden of proof on the question of apportionment of

liability and awarded the government the full amount

of its cost-recovery claim, $473,790.18. 892 F.Supp.

648. The Court of Appeals for the Third Circuit

affirmed, without opinion, 96 F.3d 1434 (3d ‘ir.

1996), and the Supreme Court denied certiorari. 521

U.S. 1103 (1997).

: On June 2, 1998, Alcan filed a complaint in

the United States District Court for the District of

Massachusetts, seeking contribution for costs it has

incurred and naming as defendants, inter alia, various

agencies of the United States government. On July 1,

1999, the United States filed this action (“Alcan II’),

seeking approximately $600,000 in unreimbursed

costs incurred from June, 1989 through February,

1999 in connection with the Site. The government

claims that these costs were incurred by EPA for such

activities as searches for potentially responsible

parties (“PRPs”), preparation of the record of decision

(“ROD”) and proposed remedial plan, community

relations activities, supervision of the remedial

investigation/feasibility study (’RI/FS”), and an

assessment by the Agency for Toxic Substances

Disease Registry (“ATSDR’).

Alcan has moved for dismissal of this action,

*I did not make this disclosure on the record: because I did

not perceive that my prior limited involvement with a client

that was’ not a party to Alcan I warranted my

disqualification under 28 U.S.C. § 455.

A-9

claiming that its action in the District of

Massachusetts take precedence. The government has

moved for partial summary judgment, contending that

Alcan’s liability has been established by virtue of the

rulings in Alcan I. Alcan contests the preclusive effect

of the final judgment in Alcan I, contending, inter alia

that it was procured by fraud.

In the course of addressing the issues, Alcan

suggested that my disqualification as the presiding

judge may be warranted on the basis of my

participation as an associate in my former firm’s

representation of Russell Mahler and/or one of his

companies approximately twenty years ago. . In light

of this development, I placed on the record at a case

management conference conducted on November 4,

1999, my recollection of my limited participation in

that representation of the waste hauler. (Transcript of

November 4, 1999, Case Management Conference,

(Dkt. Entry #17, at 2). Specifically, I recounted that |

attended a criminal trial against the owners of Hi Way

Auto Service and reported on the public proceedings

to the partner representing Mr. Mahler and/or his

waste hauling company. In that regard, I went to the

outfall of the Butler Mine Tunnel on a jury view. I also

related that I performed legal research in connection

with efforts to extradite Mr Mahler and/or Hudson Oil

from New Jersey to Pennsylvania. I informed counsel

that the partner in charge was Attorney Morey Myers;

that I had not attended any meetings with Mr. Mahler

or any other representative of Hudson Oil Company;

and that I was not involved in any factual

investigation undertaken in connection with the

representation of Mr. Mahler and/or his company.

On December 15, 1999, Alcan filed its motion

for recusal. (Dkt. Entry #21). In this motion, Alcan’s

A-10

counsel represents that he conferred with Attorney

Myers and with another attorney, William Warren,

whom Mr. Myers identified as having “primary

responsibility” for the client. According to counsel for

Alcan, Mr. Myers had little recollection of the matter

and Mr. Warren had confirmed that my participation

was not extensive and that the firm’s representation

was limited to the corporate entity. While Mr. Warren

could not confirm the fact that I attended the state

court criminal trial of the owners of Hi Way Auto

Service, he did confirm that, otherwise, my

involvement in the matter was exclusively for legal

research.4

Il. DISCUSSION

Alcan seeks my disqualification under 28

* Alcan did not submit an affidavit in support of its

motion for disqualification, instead, it has relied upon

the unsworn representations of Alcan’s counsel as to his

conversations with Attorneys Myers and Warren. Such

unsworn averments are, of course, inappropriate on such a

serious matter as a request for disqualification of the

presiding judge.

During the November 4, 1999 case management

conference, I recollected that our firm represented Mr.

Mahler and/or Hudson Oil Company. I also recollected that

there were efforts made to prevent the extradition of Mr.

Mahler. As noted above, Mr. Warren has indicated that the

firm represented only the corporate entity, thereby revealing

my faulty memory of a matter that occurred nearly two

decades ago and in which my participation was limited. The

absence of a clear recall is, of course, understandable given

the passage of time. What is undisputed is that I did not

directly represent Mr. Mahler and/or his Companies, and

undertook no investigation with respect to the facts

concerning the Mahler Companies’ involvement with the

Site.

A-11

U.S.C. § 455(a) on the basis of an appearance of

partiality, and under § 455(b)(2) on the ground that as

an attorney in private practice I was involved as a

lawyer “in the matter in controversy....” Each basis for

disqualification will be addressed separately.

A. Disqualification Under § 455(a)

Section 455(a) provides:

Any justice, judge, or magistrate of the

United States shall

disqualify himself in any proceeding in

which his impartiality

might reasonably be questioned.

The standards for determining whether disqualification

under § 455(a) is warranted were articulated in

Alexander v. Primerica Holdings. Inc., 10 F.3d 155,

162 (3d Cir. 1993):

For purposes of § 455(a) disqualification, it

does not matter whether the district court

judge actually harbors any bias against a

party or the party’s counsel. This is so

because §455(a) concerns not only fairness

to individual litigants, but, equally

important, it concerns the _ public’s

confidence in the judiciary, which may be

irreparably harmed if a case is allowed to

proceed before a judge who appears to be

tainted. To achieve its highest function,

“Sustice must satisfy the appearance of

justice.”

The instruction to which we adhere “is

designed to promote public confidence in

A-12

the impartiality of the judicial process by

saying, in effect, if there is a reasonable

factual basis for doubting the judge’s

impartiality, he should disqualify himself

and let another judge preside over the

case.” At the same time,

In assessing . . . [the judge’s]

impartiality, [the] judge. . . must be

alert to avoid the possibility that those

who would question [the judge’s]

impartiality are in fact seeking to avoid

the consequences of his expected

-adverse decision. Disqualification for

lack of impartiality must have a

reasonable basis.... Litigants ought not

have to face a judge where there is a

reasonable question of impartiality,

but they are not entitled to judges of

their own choice. [Emphasis in.

original.

The essential premise of § 455(a) is “public

confidence in the judicial system, both in the

particular case and in general” In re School Asbestos

Litig., 977 F.2d 764, 788 (3d Cir. 1992). “The very

purpose of § 455(a) is to promote confidence in the

judiciary by avoiding even the appearance of

impropriety whenever possible.” Liljeberg v. Health

Servs. Acquisition Corp., 486 U.S. 847, 864(1988).

But the fact that a litigant questions, in good

faith, a judge’s impartiality does not mean that

recuSal is warranted. As stated in Varela v. Jones, 746

F.2d 1413, 1416(10th Cir. 1984):

‘Although we acknowledge that the

A-13

intent in amending § 455 was to negate

even the appearance of partiality in

judicial proceedings, § 455 (a) must not

be so broadly construed that it

becomes, in effect, presumptive, so that

recusal is mandated upon the merest

unsubstantiated suggestion of personal

bias or prejudice.’

The test for disqualification is an objective one. The

question is whether a reasonable person “‘knowing all

the circumstances would harbor doubts concerning

the judge’s impartiality.” Edelstein _v. Wilentz, 812

F.2d 128, 130 (3d Cir. 1987). “[T]he standard requires

that the court consider the audience — ‘the

reasonable person’ — as individuals tutored in the

facts, ‘knowing all the circumstances.” Rosenberg .v.

Merrill Lynch, Pierce, Fenner & Smith, Inc., 976

F.Supp.84, 86 (D. Mass. 1997). “Just as a judge

should remove him or herself from a case if the

moving party raises sufficient allegations regarding

the judge’s bias, a judge has an affirmative duty not to

recuse him or herself if the movant fails I to establish

a reasonable doubt concerning his or _ her

impartiality.” Vangarelli v. Witco Corp., 808 F. Supp

387, 389 (D.N.J. 1992)(emphasis added). Accord

Welch v. Board of Dirs. of Wildwood Golf Club, 918 F.

Supp. 134, 138 (W.D. Pa. 1996).

Accordingly, the factual submissions of the

parties should be scrutinized to assure that there is

indeed an adequate foundation upon which to premise

a reasonable doubt as to the judge’s impartiality. See

Vangarelli, 808 F.Supp. at 389. In_ short, a

disqualification motion under §455(a) presents “a

sensitive question of assessing all the facts and

circumstances in order to determine whether” the

A-14

sound exercise of judicial discretion calls for recusal.

In this case, sound judicial discretion, exercised

in the context of the need to preserve the appearance

of impartiality as well as “‘the dignity of the bench, the

judge’s respect for the fulfillment of his judicial duties,

and a proper concern for his judicial colleagues,”

Duke v. Pfizer, Inc., 668 F.Supp. 1031, 1035 (E.D.

Mich. 1987), affd, 867 F.2d 611 (6th Cir. 1989)

(quoting Advisory Comm. on Judicial Activitiés, Op

52(1977)), militates against disqualification.

Specifically, the following facts are such that a

reasonable person would not question my impartiality

here:

e Neither Russell Mahler nor Hudson Oil

Company were parties to Alcan I, and they

are not parties to this case.5 :

e Alcan knew of my involvement with

respect to Mahler and/or Hudson Oil

Company in Alcan I and did not contest

my participation as presiding judge at that

° Alcan asserts that “[t]his cost recovery action by

the United States will inevitably involve facts concerning the

relationship between the plaintiff, Hudson Oil and related

companies and Russell Mahler and the extent to which the

plaintiff through its relabonship with Mahler may have been

in reality the most significant contributor to the problems at

the Butler Site.” (Mot. for Recusal at 3.) Alcan does not

explain why such facts may become important in this

litigation. Alcan eschewed the opportunity to apportion

harm in Alcan IJ, and it is not clear that Alcan should be

accorded the opportunity to apportion harm in this case. In

any event, the relationship between agencies of the United

States and Mahler’s Companies was not a matter within the

purview of the work that I did at the direction of the lawyers

responsible for representing Hudson Oil.

A-15

time.®

e My participation in my prior firm’s

representation of Hudson Oil Company

was limited to observing a state court

criminal trial of the owners of Hi Way Auto

Service and legal research in connection

with state court criminal charges:

e My limited participation in my prior firm’s

representation of Hudson Oil ended in the

early 1980's.

e The incident giving rise to Alcan | and this

lawsuit, the discharge of approximately

100,000 gallons of contaminated water

into the Susquehanna River, occurred in

1985, after any involvement I had in

connection with my former firm's

representation of Hudson Oil.

e At no time was | involved in efforts to seek

“enforcement concessions” from

government agencies? ”

6 Alcan concedes that I raised the issue of my participation

in my former form’s representation of Mahler and/or his

Companies off the record in Alcan 1, but contends that any

waiver of disqualification under §455(a) was ineffective

because my limited recall “would operate as inadequate

disclosure as a basis for informed waiver.” This assertion is

without merit. Alcan was placed on notice in 1994 of the

same grounds for disqualification on which it now relies.

Alcan does not contend that it lacked the ability to

investigate whether disqualification was warranted at that

lime. Alcan cannot simply ignore the disclosure previously

made, having failed to undertake any inquiry at that time,

and now assert that its decision not to seek disqualification

in Alcan I was uninformed.

7 Alcan suggests that a basis for recusal is “(t]he possibility

that the Court may have been involved on behalf of its

former client or clients in seeking enforcement concessions

from governments who might have granted those

A-16

Although each disqualification motion is

necessarily sui generis, and thus to be decided on the

basis of the peculiar facts and circumstances that

undergird the disqualification motion, support for

denial of Alcan’s motion in this case can be found in

the reported decisions of other courts. For example, in

Cipollone v. Liggett Group, Inc., 802 F.2d 658 (3d Cir.

1986), the plaintiff, after suffering an adverse decision,

moved to vacate the Third Circuit ruling on the

ground that one member of the panel should have

recused himself. As in this case, the ground {or

disqualification was the alleged appearance of

partiality arising from the fact that a member of the

panel, while in private practice, represented a tobacco

company in a case involving a similar liability claim.

As in this case, the former client was not a party to

the action pending before the court. As in this case,

the assailed judge’s representation of the party in

question had terminated long before the judge had

assumed the Bench and before the occurrence of the

events giving rise to the lawsuit in question. Judge

Gibbons, writing for the Third Circuit, found no basis

for disqualification, observing:

Even if American Tobacco Company were a

party to the Cipollone case, the long passage

of time since Judge Hunter’s last

representation of that Company requires the

conclusion that no reasonable person could

question his impartiality. See, e.g.

concessions to avoid further implicating their activities in

connection with the site....” (Motion for Recusal, at 3.) There

is no evidence to support this speculative assertion, and

disqualification may not be based on such pure

speculation. See Mitchael v. Intracorp, Inc., 179 F.3d 847,

861 (10th Cir. 1999).

A-17 ~

Chitimacha Tribe of Louisiana v. Harry L.

Laws Company, Inc., 690 F.2d 1157, 1166

(Sth Cir. 1982), cert. denied, 464 U.S. 814, 106

S.Ct. 69, 78 L.Ed.2d 83(1983) recusal not

warranted where judge had represented the

defendant in unrelated matters at least six

years earlier); Jenkins v. Bordenkircher, 611

F.2d 162, 165-67 (6th Cir.1979), cert. denied,

446 US. 943, 100 S.Ct. 2169, 64 L.Ed.2d 798

(1980) (recusal not required where trial judge

had prosecuted defendant for several

unrelated crimes during the period four to

thirteen years prior to the time of trial);

Gravenmier v. United States, 469 F2d 66, 67

(9th Cir.1972) (where trial judge was of

counsel in prior prosecution six years before

present unrelated prosecution, recusal not

required); Darlington _v. Studebaker-Packard

Corp., 261 F.2d 903, 906 (7th Cir.), cert.

denied, 359 U.S. 992, 79 S.Ct. 1121, 3

L.Ed.2d 980 (1959) (recusal not warranted

where trial judge had represented defendant

in unrelated matters for a period of four to five

years which ended three to four years before

judge’s decision); Royal Air Maroc v. Servair,

Inc., 603 F.Supp. 836 (S.D.N.Y. 1985) (prior

representation by trial judge of defendant’s

parent corporation in unrelated matter twelve

years earlier no basis for recusal).

Id. at 659 (emphasis added). See also, Schurz

Communications, Inc. v. Federal Communications

Commission, 982 F.2d 1057 (7th Cir. 1992) (lapse of

time is a factor militating against an appearance of

partiality based upon judge’s work as an expert

witness while in private practice). In short, the work I

did as a junior associate in a law firm more than 20

A-18

years ago in connection with firm’s representation

Mahler and/or Hudson Oil in connection with a state

criminal prosecution “is too remote and too innocuous

to warrant disqualification under § 455(a)....”

Chitimacha Tribe of Louisianna, 690 F.2d at 1166.

Also militating against disqualification is the

fact that Alcan did not seek disqualification in Alcan I

even though it was made aware of the same facts on

which it now relies to seek disqualification. In this

regard, although timeliness in submitting a motion to

recuse is not explicitly required under § 455(a), a

number of courts have interpreted §455(a) to require it

implicitly. Those courts have determined that once a

party seeking recusal knows of the facts on which

recusal is based, it must move promptly to disqualify

under § 455(a) or lose the right to do so. See United

States v. Anderson, 160 F.3d 231, 234 (5th Cir. 1998)

(“Section 455 also obligates a party to raise the

disqualification argument at a reasonable time in the

litigation.... [W]hen a party seeking recusal knows or

should know the facts on which recusal is based he

must make a timely motion to disqualify or lose the

right to do so.”); Hollywood Fantasy Corp. v. Gabor,

151 F.3d 203, 216 (Sth Cir. 1998) (same); Summers v.

Singletary, 119 F.3d 917, 920 (11th Cir. 1997) (finding

a § 455(a) motion untimely where counsel was aware

of pertinent facts prior to hearing but failed to move),

cert. denied, 523 U.S. 1005 (1998); United States v.

Barrett, 111 F.3d 947, 951 (D.C. Cir.) (“Thus, while

section 455(a) contains no express timeliness

provision, most circuits considering the matter have

concluded that a_ litigant must raise’ the

disqualification issue within a reasonable time after

the grounds for it are known.”), cert. denied, 522 U.S.

867 (1997); United States v Kimball, 73 F.3d 269,

273(10th Cir. 1995) (same); United States v.

A-19

Brinkworth, 68 F.3d .633 639 (2nd Cir. 1995)

(“Although §455 does not specify a time limit for

application, a timeliness provision has been judicially

implied.”); Travelers Ins. Co. v. Liljeberg Enters., Inc.,

38 F.3d 1404, 1410 (Sth Cir. 1994) (“Furthermore, it

is well-settled that — for obvious reason — one

seeking disqualification must do so at the earliest

moment after knowledge of the facts demonstrating

the basis for such disqualification.”); United States v.

Slay, 714 F.2d 1093, 1094 (11th Cir. 1983) ("A motion

to disqualify... under § 455(a) must be timely.”), cert.

denied, 464 U.S. 1050(1984). This judicially-imposed

timeliness requirement under § 455(a) arises from the

concern that a party will use § 455(a) as a tactical

weapon only to be used if needed. See United States v.

Vadner, 160 F.3d 263, 264 (Sth Cir. 1998) (“The most

egregious delay — the. closest thing to per se

untimeliness — occurs when a party already knows

the facts purportedly showing an appearance of

impropriety but waits until after an adverse decision

has been made by the judge before raising the issue of

recusal.”); Rabuska v. Crane Co., 122 F.3d 559, 566

(8th Cir. 1997) (finding that where party waited until

after summary judgment was entered against it, a

recusal motion under § 455(a) was untimely), cert.

denied, 523 U.S. 1040 (1998); United States v. Rogers,

119 F.3d 1377, 1380 (9% Cir. 1997) (“As we have often

stated, a party having information that raises a

possible ground for disqualification cannot wait until

after an unfavorable judgment before bringing the

information to the courts attention.”); In_re Kansas

Public Employees Retirement Sys., 85 F.3d 1353,

1360(8th Cir. 1996) (‘We subscribe to the view that

motions to recuse should not ‘be viewed, aS an

additional arrow in the quiver of advocates in the face

of [anticipated] adverse rulings.” (quoting. TV

Communications Network, Inc. v. ESPN, Inc., 767 F.

A-20

Supp. 1077, 1081 (D. Colo. 1991)); Brinkworth, 68

F.3d at 639 (“We have noted that ‘prompt application

avoids the risk that a party is holding back a recusal

application as a fall-back position in the event of

adverse rulings on pending matters.” (quoting In re

IBM, 618 F.2d 923, 932 (2d Cir. 1980)); United States

v. York, 888 F.2d 1050, 1055(5th Cir. 1989) (“A

timeliness requirement forces the parties to raise the

disqualification issue at a reasonable time in the

litigation. It prohibits knowing concealment of an

ethical issue for strategic purposes... . [A] timeliness

requirement will proscribe motions that would have

invalidated a fully completed trial.”); United States v.

Branco, 798 F.2d 1302, 1304 (9th Cir. 1986) (“A

defendant cannot take his chances with a judge and

then, if he thinks that the sentence is too severe,

secure a disqualification and a hearing before another

judge.”); In re Garofalo’s Finer Foods, Inc., 186 B.R.

414, 440 (Bankr. N.D. IIll.-1995) (“The purpose of the

court imposed timeliness requirement is to foreclose a

litigant from purposely waiting ‘to learn whether the

judge has ruled in its favor on the merits of the case

before seeking disqualification as a means to defeat an

unfavorable ruling.”).

The Second Circuit has set forth a four factor

test for determining whether a §455(a) motion is

untimely: (1) the movant has participated in a

substantial manner in trial or pretrial proceedings; (2)

granting the motion would represent a waste of

judicial resources; (3) the motion was made after the

entry of judgment; and (4) the movant cannot

demonstrate good cause for delay in filing the motion.

Brinkworth, 68 F.3d at 639. In this case, Alcan is

moving for disqualification on the basis of facts

disclosed about five years ago in Alcan I. Alcan does

not contend that it learned of additional facts since

A-21

Alcan I that suggested an appearance of partiality on

my part. The fact that Alcan did not move for

disqualification in the first case indicates that it

perceived no appearance of partiality based upon the

same facts on which it now rests, its recusal motion..

In this regard; the limited investigation recently

conducted by Alcan disclosed no material facts at

variance with the disclosure I made in this case and in

Alcan I. The fact that Alcan has now moved for

disqualification, after the judgment in Alcan I became

final, raises suspicions as to its motivation. Finally,

Alcan has failed to ‘demonstrate good cause for its

delay in moving under § 455(a).

“The judicial process can hardly tolerate the

practice of a litigant with knowledge of circumstances

suggesting possible bias or prejudice holding back,

while calling upon the court for hopefully favorable

rulings, and then seeking recusal when they are not

forthcoming.” Smith v. Danyo, 585 F.2d 83, 86 (3d

Cir. 1978). “After a massive proceeding..., when the

court has invested substantial juridical resources and

there is indisputably no evidence of prejudice, a

motion for recusal of a trial judge should be supported

by substantial justification, not fanciful illusion.”

Martin v. Monumental Life Ins. Co., No. 00-3307,

2001 WL 52547, *11 (3d Cir. Jan.’23, 2001). In this

case, Alcan’s motion is not supported by substantial

justification. Thus, disqualification under § 455(a) is

not warranted.

B. Disqualification Under § 455(b)(2)

Section 455(b)(2) provides that a judge is

disqualified:

where in private practice he served as a

A-22

lawyer in the matter in controversy, or a

lawyer with whom he previously

practiced law served during such

association as a lawyer concerning the

matter, or the judge or such lawyer has

been a material witness concerning it... .

[Emphasis added. ]

Without citing any authority, Alcan asserts that

“[t]here i is no dispute that the Court served as a lawyer

in the matter in controversy and that his client or

clients would have had interests adverse to Alcan’ Ss,

and would have benefitted from the imposition of

liability on Alcan.” (Motion for Recusal at 4-5.) As an

initial matter, the fact that a former client of a judge is

a party to a case over which that judge is presiding

does not warrant disqualification, even if the former

client’s interests are adverse to the party requesting

disqualification. See National Auto Brokers Corp. v.

General Motors Corp., 572 F.2d 953, 958 (2d Cir.

1978), cert. denied, 439 U.S. 1072 (1979). The

question of disqualification turns not on the mere

presence of a former client of a firm with which the

judge had been associated, but on whether the judge

served as a lawyer “in the matter in controversy” in

the litigation over which the judge is presiding.

As noted above, Alcan offers no support for its

capacious reading of the phrase “matter in

controversy,” and no support for Alcan’s view can be

found. Clearly, the phrase does not embrace any

related case. See Schurz Communications, 982 F.2d

at 1061. Otherwise, a judge who had an active private

practice before coming to the Bench would find him or

herself constantly disqualified in a wide variety of

cases. Indeed, the Eighth Circuit has rejected the

contention that “the ‘matter in controversy’

ccc eae ame:

A-23

contemplated by the recusal statute may extend

beyond the litigation conducted under the same

docket number where the issues in dispute are

sufficiently related.” Little Rock School District _v.

Pulaski County Special School District No. 1, 839 F.2d

1296, 1302 (8t Cir.), cert. denied, 488 U.S. 869

(1988). See also, Patterson v. Masem, 774 F.2d 251,

254 n.2 (8 Cir. 1985). Another court has suggested a

somewhat broader reading of the phrase, explaining:

[A] former representation should trigger

the ‘matter in controversy’ requirement if

the issues with which [the judge] dealt

are put ‘in issue’ in the subsequent case

in the sense that they need to be resolved

by the judge who is presiding over the

subsequent case. If the judge need not

resolve an issue that either she or her

former partners were involved in, then

there is no appearance of impartiality

and the purpose of Section 455(b)(2) is

satisfied.

United States v. Cleveland, No. Crim. A. 96-207, 1997

WL 222533, at * 11 (E.D. La. May 5, 1997).

Under this interpretation of § 455(b)(2),

disqualification is not warranted. The matter involved

in the former representation did not concern CERCLA

liability; it concerned state law criminal responsibility.

Alcan has not shown how the issues to be litigated in

this cost recovery case are at all related to the issues

adjudicated nearly 20 years ago for alleged criminal

violations of state law. The fact that both cases

involved the same Site does not mean they involved

the same “matter in controversy.” Whether Mahler

and/or Hudson Oil Company is responsible for all or

sha Staci aah at Mase eand A abeationet

A-24

some of the response costs that the government seeks

to recover from Alcan is wholly separate from whether

Mahler and/or Hudson Oil violated Pennsylvania

criminal law. Because I did not serve as a lawyer in

the matter in controversy here, and no lawyer with

whom I previously practiced law served during such

association as a lawyer concerning the matter in

controversy here, disqualification under § 455(b)(2) is

not required.

II. CONCLUSION

For the foregoing reasons, Alcan’s motion for

disqualification will be denied. An appropriate Order is

attached.

/s/ Thomas I. Vanaskie,

Chief Judge

Middle District of Pennsylvania

A-25

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

(Filed Feb. 07, 2001, Deputy Clerk)

UNITED STATES OF AMERICA NO3 CV 99-1160

Plaintiff

V. Chief Judge

Vanaskie

ALCAN ALUMINUM

CORPORATION

Defendant.

ORDER

NOW, THIS 7th DAY OF FEBRUARY, 2001, for

the reasons set forth in the foregoing Memorandum, IT

IS HEREBY ORDERED THAT defendants’ motion for

recusal (Dkt. Entry 21) is DENIED

/s/ Thomas I. Vanaskie,

“ Chief Judge

Middle District of Pennsylvania

A-26

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

March 9, 2001

*March 22, 2001

C-73

No. 01-1590

IN RE: ALCAN ALUMINUM CORPORTATION

(D.C. Civil No. 99-1160 Middle District (Scranton)

(TIV)

Present: MANSMANN, RENDELL and STAPLETON,

Circuit Judges

1. Petition for Writ of Mandamus.

*2. Clarification To Brief In Support of Petition

For Writ of Mandamus which the Court may construe

as a Supplement to Petition for Writ of Mandamus.

/S/ Tika L. Parks (267) 299-

4929

Case Manager

ORDER

The foregoing

Petition for Writ of Mandamus is denied. Judge

Stapleton would have required an answer before

resolving the issue raised by the petition.

By the Court

/S/ Circuit Judge

Dated: APR 03 2001

/CC: JJB, RL, LAS

A-27

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 01-1590

IN RE: ALCAN ALUMINUM CORPORATION,

Petitioner

On Appeal From the United States District Court

For the Middle District of Pennsylvania

(D.C. Civil No. 99-cv-01160)

District Judge: Honorable Thomas I. Vanaskie

Present: BECKER, SLOVITER, MANSMANN, SCIRICA,

NYGAARD, ALITO, ROTH, McKEE, RENDELL, BARRY,

AMBRO, FUENTES, and STAPLETON,* Circuit Judges

SUR PETITION FOR PANEL REHEARING

WITH SUGGESTION FOR

REHEARING IN BANC

*Hon. Walter K. Stapleton, Senior Judge of the United

States Court of Appeals for the Third Circuit; vote

limited to panel hearing only.

ick HOR AL SI ib AIL ENR Bal EN aN

A-28

The petition for rehearing filed by appellant

having been submitted to all judges -who participated

in the decision of this court, and to all the other

available circuit judges in active service, and no judge

who concurred in the decision having asked for

rehearing, and a majority of the circuit judges of the

circuit in regular active service not having voted for

rehearing by the court in banc, the petition for

rehearing is hereby DENIED.

BY THE COURT:

/S/ Circuit Judge

Dated: June 22 2001

GF/CC: Hon. Thomas I. Vanaskie

LAS

GSG

TSA

A-29

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ALCAN ALUMINUM CORPORATION, Civil Action

Plaintiff, No. 98-11062-JLT

VS

BUTLER AVIATION-BOSTON, INC. Judge Joseph L.

ET AL Tauro

Defendants. December 21, 1999

DEPOSITION OF KENNETH W. MANSFIELD, JR.

APPEARANCES:

ALCAN ALUMINUM CORPORATION

Attorneys for the Plaintiff

6060 Parkland Boulevard

Mayfield Heights, Ohio 44124-4185

BY: LAWRENCE A. SALIBRA, ESQ.

(440) 423-6918

PATTON BOGGS, L.L.P.

Attorneys for the Defendants

2550 M Street N.W.

Washington, D.C. 20037

BY: RUSSELL VANCE RANDLE, ESQ.

(202) 454-5282

AIR FORCE ENVIRONMENTAL LAW &

LITIGATION DIVISION

Attorneys for the United States

1501 Wilson Boulevard, Suite 629

Arlington, Virginia 22209

BY: MAJOR THOMAS F.

ZIMMERMAN, ESQ.

(703) 696-8751

Also present: Sandra Hutchinson

DONALD E. HUBBARD, LSR #00007

REGISTERED PROFESSIONAL REPORTER

A-30

Pg. 17

A. That’s correct.

Q. And you were under instructions to do that;

is that correct?

A. That’s correct.

Q. Do you have any idea as to when that was

the case?

A. If they called in 15,000 gallons and there

was only six there, then obviously somebody

was going to be the wiser and nobody knew who

was watching us.

Q. Now, do you know whether the government was

paying Russell Mahler for the oil pickups, or

you were paying the government for those

pickups?

A. To my knowledge, the government was paying

us for those pickups. Why else would I be

sitting there wasting his money?

Q. So that - so, is it my understanding from your

testimony you were sitting there because there

was an expectation that if there was a purchase

order for a particular amount of oil and there

was, in fact, less oil delivered or pumped from

it, the government would nonetheless pay on

the volume of the purchase order, the volume

that was stated on the purchase order; is that

correct?

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A. That’s correct.

Q.

A-31

And you were under instructions from your

superiors to stay there and have it appear that you

were pumping the oil, as I understand your testimony,

because that would make no one else the wiser that,

in fact, the volume you were pumping was not, in fact,

an accurate number; is that correct?

A.

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That’s correct.

Now, do you know who was issuing the

purchase orders for the government?

No.

Do you know who would know?

I would think Edith Gilman would know.

Do you know if she is around?

I have no idea.

Do you know her last address or location?

Regal Park, New York.

What was it?

Regal Park, New York.

Regal Park, New York. Now, did you ever

take anything from the Brooklyn Navy Yard to

any other -- where did you take them? Let me

ask that. Where did you take the loads that you

picked up at Brooklyn Navy Yard?

Those were taken, to the best I can remember,

back to the plant in Long Island City.

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A-32

‘ Q. Were any loads taken to any other location :

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A-33

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA and THE STATE OF

NEW YORK,

87-CV-920

-versus-

91-CV-1132

ALCAN ALUMINUM CORPORATION, —

-versus-

CORNELL UNIVERSITY.

TRANSCRIPT OF PROCEEDINGS held in and

for the United States District Court, Northern District

of New York, at the Federal Building and Courthouse,

15 Henry Street, Binghamton, New York, on

TUESDAY, October 5, 1999, before the HON. THOMAS

J. MCAVOY, Chief United States District Court Judge,

PRESIDING. ~

A-34

Robert Nunez — Cross

Page 349

A. Yes.

Q. And you said to the best of your knowledge

about two million gallons of the Alcan oil

emulsion was land spread at the Sealand site?

Yes

And you also said that Dames & Moore did an

intensive PCB investigation on the land spread

area?

I’m sorry. Dames & Moore did what?

Did an intensive PCB investigation on the land

spread area?

They did. Investigated the land spreading area

as part of their investigation of the whole site.

Okay. All of the samples that you were asked

about as to PCBs, there was one sample, one

test analysis that actually was above the

detection limit for PCBs, is that correct?

Well, there was one sample that was not

qualified. There were other — other detections

above the detection limit, but those data points

were qualified.

They were all qualified. I’m referring to page 7-

2 of the Dames & Moore report, and it indicates

that the levels observed at the SRI are less than

one order of magnitude lower than the 10 ppm

A-35

PCB level suspected to be due to past farming

and other activities at the site. Are you familiar

with that statement in the report?

I don’t remember the statement.

Were other materials from different companies

disposed of on the land spread area at Sealand

to your knowledge?

Yes.

You also indicated that a portion of the Alcan

oil emulsion may have went to the 20,000-

gallon storage tank, is that true?

Yes.

Now, Alcan’s material wasn’t the only material

that was stored in that tank, correct?

I don’t know that.

Do you know whether material from other

entities was disposed of in the cell area?

Yes.

Referring again to page 7-2 of the Dames &

Moore report there’s a statement that says, no

public health threat is readily apparent with

respect to the wastes disposed in the land

spreading area.

Are you familiar with that statement?

Yes, I am.

A-36

Page 350

Q. ro do you agree with that statement?

A. Yes, I do.

Q. Mr. Gallagher had asked you about the table

4.2 and had you explain the J moniker and

what it meant. All.......

A-37

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA and THE STATE OF

NEW YORK,

87-CV-920

-versus-

91-CV-1132

ALCAN ALUMINUM CORPORATION,

-versus-

CORNELL UNIVERSITY.

TRANSCRIPT OF PROCEEDINGS held in and

for the United States District Court, Northern District

of New York, at the Federal Building and Courthouse,

15 Henry Street, Binghamton, New York, on

TUESDAY, October 7, 1999, before the HON. THOMAS

J. MCAVOY, Chief United States District Court Judge,

PRESIDING.

UNITED STATES DISTRICT COURT

VICKY ANN THELEMAN, RPR, CRR

Page 795

Q.

A-38

Eugene Meyer - Cross

don’t have answers to. This isn’t a controlled

environment setup. The fact that we found

PCBs at the site is what is important, because

somehow - and again, we can’t sample every

little part of a million-gallon lagoon, you know,

the samples that were taken did not show

PCBs. That did not mean the PCBs were

absent.

Okay. I'd like to go back and just, if I could, to

the previous question concerning the nickel.

My colleagues just brought up the Kate

Donnelly report, which is in evidence. Can you

take a look at page —-I can’t read these. These

are not very clear, but isn’t it clear that, in fact,

you did look for nickel?

Apparently.

Thank you very much. Now, I’d like to move on

to the second part of your opinion. The moving

mixtures part. Isn’t it really the fundamental

basis of your opinion that the reason this

happens as things are commingled?

Isn't it true what happens?

That the reason, for example, that the rain

moves the contaminants is because the rain

becomes commingled with the contaminants?

Well, it certainly is true that when it rains the

rain fills the lagoon. The lagoon overtops.

A-39

Whatever oil overflows from the top of the

lagoon will now be mixed with rainwater, which

will increase the surficial flow to other

locations. And, yes, rainwater will also

percolate through the soil and carry hazardous

substances with it into the subsurface,

including into the underlying ground water

aquifer.

Page 796

Q. Do you recall in your deposition when I asked

you, when you were describing the impact of

the Alcan emulsion, particularly with respect to

the water phase, if you were describing a

phenomenon just like rain and you answered

yes?

a * Would you read the question and answer that

you gave?

Q. I'd be delighted to, yes.

MR. BAER: Your Honor, I'd ask the witness be

allowed to see his answer.

THE COURT: He can read it to him. As long as

the witness knows what he’s alleged to have said, he

can confirm or deny if he said it.

MR. SALIBRA: It’s on page 50.

“QUESTION: Okay. I’d like to go back, if I can,

and consider each one of these. The first indication

of increased migratory potential was because | think

you described as a fact that the water in the

emulsion could cause things to become water

soluble, is that correct?”

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A-40

A. Yes.

Q. Your answer was yes.

“QUESTION: And that you indicated

would cause certain materials at the site that

were water soluble to become more easily

migratory underground?

Page 797

“ANSWER: Yes.”

A. Yes.

Q. “QUESTION: How does that differ from water

coming from rain, for example?

“ANSWER: It doesn’t.”

A. And I agree with that. It doesn’t make any

difference what the source of the water is,

whether it’s rainwater, tap water, ocean water.

Water is water. And water will perform the

same way on each and every occasion in which

it distributes hazardous substances.

Q. And do you recall we discussed the similar

phenomena with respect to the oil phase?

A. Yes.

Q. And I asked you if it was similar to, for

example, the buttermilk content of milk?

A. Yes.

Q. And you said it’s the same?

‘

A.

A-41

I indicated that the butterfat in milk will cause

the dispersion of hazardous substances just

like oil, wastes would cause the dispersion.

And then I asked you: Is it possible for you to

come - divide the harm from these migratory

phenomena and you said, no, once it’s

commingled, you really can't. Isn’t that true?

By the “it” you mean milk and emulsion; Alcan

emulsion?

Page 798

Q.

A.

Yes.

That’s true.

And so you said — basically what you said is

once these are commingled, be they water and

milk and the hazardous substances or the

emulsion and the hazardous substances, that

migratory impact is fundamentally indivisible

because they’re commingled?

That’s right.

MR. SALIBRA: Thank you very much.

THE COURT: Redirect?

MR. BAER: Yes, your Honor.

REDIRECT EXAMINATION

BY MR. BAER:

A-42

Dr. Meyer, is there a difference between an

emulsion on one side and water and oil not in

the form of an emulsion on the other?

Not in the form of an emulsion.

In other words, if I were to give you water and

give you an oil and put it in a container and put

in another container an emulsion of water and

oil, is the fact that one is an emulsion and the

_ other is merely water and oil in any way

different?