Opposition Brief — Alcan Aluminum Corp. v. United States

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Supreme Court, US.

FILED

DEC 8 - 2003

OFFICE OF THE CLERK

}

No. 03-433

In the Supreme Court of the United States

ALCAN ALUMINUM CORPORATION, PETITIONER

Vv.

UNITED STATES OF AMERICA AND

STATE OF NEW YORK

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

THOMAS L. SANSONETTI

Assistant Attorney General

GREER S. GOLDMAN

LISA E. JONES

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

BEST AVAILABLE COPY &

QUESTION PRESENTED

Petitioner was found jointly and severally liable

under Section 107(a) of the Comprehensive Environ-

mental Response, Compensation, and Liability Act of

1989 (CERCLA), 42 U.S.C. 9607(a), for the federal and

state governments’ unreimbursed costs in responding

to the release of hazardous substances at two waste

sites. The question presented is:

Whether the court of appeals properly affirmed the

district court’s finding that the harm caused by peti-

tioner’s waste oil emulsion was not divisible from the

harm caused by other hazardous substances at the same

sites.

(I)

TABLE OF CONTENTS

Page

IIIT i. adoesissiininasshoitinanedsdderenebnnieabernernnennniietousnninnninnenns 1

Jurisdiction ............. Scuissiiabeincneiaabiaieinntuis <adecaionieniietmanetaiitienctininittiiinns 1

I UITITITIITITIT "sss decane snc apniinescahaeiinenbtseenenennanenenpinmnenniinienennneneene 2

ITITIIIIIIIID ciatstiiedensinnsiesveiscsiabsintnanbeensivehansanieanitanseseninentatahennermeesmyeinennne 11

IITITTTTTIITTITTIL nicahinviedisianssenichabobndenctienteccesinairtaiiacueineveeehineunmnenimmnennninneceones 22

TABLE OF AUTHORITIES

Cases:

Alcan Aluminum Corp. v. United States, cert. denied,

SE ED CITY cnsceeicuniesisanesiisitabannantiacetisiinnaiiainntantioninenne 12

Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 ...h

CI. TIED csi ncsnerncssyecvsnovernssnesnnsoniinnnsctnieonoranennennosogeesanenmennsoes 4,12

B.F. Goodrich v. Betoski, 99 F.3d 55 (2d Cir. 1996) ......... 3-4

B.F. Goodrich v. Murtha, 958 F.2d 1192 (2d Cir.

SE siisiasdiinaninii doshenhansioiienonnionnniameciinniinnmmneenmeiantinas 4,13

Centerior Serv. Co. v. Acme Scrap Iron, 153 F.3d 344

IN CIEE sctciedlintuiissimnabiininianintnihdenestiionnbintnnnennmennunenee 5

City of New York v. Exxon Corp., 744 F. Supp. 474

ies © + RED sesecneecenonsnnonnenenensionsngsvnennnenineunennsconnssansaiamnens 4,13

Dedham Water Co. v. Cumberland Farms Dairy, Inc.,

Se a re OO Ce Gr FOI) coiicscseecirnccessosernsirrenevininesnerernnsen 5

Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 922

Ge Ss BTID: ssisentesiracsenccrnvonsinvivadoninnsnennesesiomenensinaduneneensiesan 4,13

Graver Tank & Mfg. Co. v. Linde Air Prods. Co.,

Se a I IE sanievenstrtanesdiliatehasinnhemehiniiavineninionpioniientinaein 18

Key Tronic Corp. v. United States, 511 U.S. 809

SII celine ilianeabciagaipebnlbeenindinesinteis 3

Licciardi v. Murphy Oil U.S.A., Sao. 111 F.3d 396

rs EP sinconicesncessnineresnennncinnewinsietninaneonninnsnsenicoenmemanssnnes 16,17

Massachusetts v. Blackstone Valley Elec. Co.,

Be Ne CG Gals IID xtccssemsisicintinncinsssinanennrniontinemnmesninnse 16, 17

Pennsylvania v. Union Gas Co., 491 U.S. 1

SE SE a ae ee ee TN nT 3,5

(IIT)

Cases—Continued: Page

United States v. Aceto Agr. Chems. Corp., 872

F.2d 1978 (Sth Cir. 19BD) ......cceseseeceesssvsoecesevenevevsvserecesosonenses 5

Unitd States v. Alcan Aluminum Corp.:

755 F. Supp. 531 (N.D.N.Y. 1991) .....esscssssssssesessseseseesenenes 2,6

892 F. Supp. 648 (M.D. Pa. 1995), aff’d, 96 F.3d 1434

(3d Cir. 1996), cert. denied, 521 U.S. 1103 (1997) .. 11, 12, 18

964 F.2d 252 (3d Cir. 1994) .......scssscessscsesenesseneesnesensens 4,5, 12,13

990 F.2d 711 (2d Cir. 1993) ............. 2,4, 5, 6, 7, 12, 14, 16, 21

United States v. Bestfoods, 524 U.S. 51 (1998) ............ 3,4,5

United States v. Conservation Chem. Co., 619

FP. Supp. 162 (W.D. Mo. 1985) .......sssssesssseesesseseesssesnsensseees 4,13

United States v. Kayser-Roth Corp., 910 F.2d 24

(1st Cir. 1990), cert. denied, 498 U.S. 1084 (1991) ............ 5

United States v. Monsanto Co., 858 F.2d 160 (4th

Cir. 1988), cert. denied, 490 U.S. 1106 (1989) «0.0... essen 5

United States v. R.W. Meyer, Inc., 889 F.2d 1497

(6th Cir. 1989), cert. denied, 494 U.S. 1057 (1990) ........... 5

United Staies v. Wade, 577 F. Supp. 1326 (E.D.

Pin, ROUIB) evacscsvveereersrsensserionsonreenpescoovononanemvesscenenonnsmetnotoraeseeens 4,13

United States v. Western Processing Co., 734

F. Supp. 930 (W.D. Wash. 1990) .......scssecssseseeseseseeressseensees 4,13

Statutes, regulation and rules:

Act of Jan. 11, 2002, Pub. L. No. 107-118, 115 Stat.

2356:

§ 102(a), 115 Stat. 2B56-2IG57 .........carscesecesesvonsvevsesconsveveves 14

§ 221, 115 Stat. OGG ....cecnsesescsescovoscoverscnsessnesssessnsonseveonenves 14

Fe SES. ® - 5 © 1) Senne 14

Comprehensive Environmental Response, Compensa-

tion, and Liability Act of 1980, 42 U.S.C. 9601 et seq. ..... 2

§ 101(14), 42 U.S.C. 9G601(14) ...........cccscrcsrseeseeeceees 3, 12,17

§ 102, 42 U.S.C. 9602 ..........crcsscsovccrsvrevesecceeceenseccsserenesssense 3

ET I iscsi icetsccncnensvenceieneesncinscnninnnnnnnte 4

§ ROPE a), SE UBC. GODT). oneccnesiresseserccnesiencnvsvsvsnensvsnnnrocane 4

§ 107(0), 42 U.S.C. 9607(0) (to be codified) ......... 14

Statutes, regulation and rules—Continued:

§ 107(0)-(r), 42 U.S.C. 9607(0)-(r) (to be codified) ........

§ 107(p), 42 U.S.C. 9607(p) (to be codified) ..........s0+

§ 107(q), 42 U.S.C. 9607(q) (to be codified) ..........0

§ 107(r), 42 U.S.C. 9607(r) (to be codified) .........sesese

§ 122(g), 42 U.S.C. QG22(g) ....-nercsssrvsesserssserereesereserseenssesnre

Superfund Amendments and Reauthorization Act

of 1986, Pub. L. No. 99-499, 100 Stat. 1613 ........cseseeeeees

Exec. Order No. 12,580, 3 C.F.R. 192 (1987) .......ecessseseseseees

21 C.F. IOD.BO(E) ....<cccescccrcescesevsesovoresensovossovssneccssunseronsosanosees

Pak, BR. Cate, FGI) csnssetscincvsnciceietecessecsssininseseninsinniabannmsesmantinens

Sup. Ct. BR. 10 ........-senvocsscsseosssosoveresesseresensosssenssovensonsnoessssosseesose

Miscellaneous:

Office of Solid Waste and Emergency Response, EPA,

Role of Background in the CERCLA Cleanup

Program, OSWER 9285.6-07P (Apr. 26, 2002) ........+00

In the Supreme Court of the Gnited States

No. 03-433

ALCAN ALUMINUM CORPORATION, PETITIONER

Vv.

UNITED STATES OF AMERICA AND

STATE OF NEW YORK

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 2a-17a)

is reported at 315 F.3d 179. The opinion of the district

court (Pet. App. 18a-64a) is reported at 97 F. Supp. 2d

248.

JURISDICTION

The judgment of the court of appeals was entered on

January 7, 2003. The court of appeals denied a petition

for rehearing on April 21, 2003. On June 12, 2003,

Justice Ginsburg extended the time within which to file

a petition for a writ of certiorari to and including

September 18, 2003, and the petition was filed on that

date. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

(1)

STATEMENT

The Comprehensive Environmental Response, Com-

pensation, and Liability Act of 1980 (CERCLA), 42

U.S.C. 9601 et seqg., authorizes the United States to pro-

tect the public and the environment, from the harm

caused by the release or threat of release of hazardous

substances and to recover the government’s cleanup

expenses from the parties responsible for the contami-

nation. The United States brought a CERCLA action

against petitioner Alean Aluminum Corporation (Alcan)

and 82 other responsible parties to recover the costs of

responding to releases of hazardous substances at two

waste disposal sites, the Pollution Abatement Services

(PAS) site in Oswego, New York, and the Fulton

Terminals (Fulton) site in Fulton, New York. The

State of New York brought a parallel action against

petitioner respecting the PAS site. All viable responsi-

ble parties other than petitioner reached settlements

with the federal and state governments. The federal

and state governments thereafter sought cost recovery

from petitioner for the remaining unreimbursed costs.

In the case of the PAS site, the district court held

petitioner jointly and severally liable for the govern-

ments’ remaining response costs. United States v.

Alcan Aluminum Corp., 755 F. Supp. 531 (N.D.N.Y.

1991). The court of appeals affirmed petitioner’s liabil-

ity as a responsible party under CERCLA, but vacated

the imposition of joint and several liability and re-

manded the action to give petitioner an opportunity to

prove that it contributed at most only to a divisible

portion of the harm. United States v. Alcan Aluminum

Corp., 990 F.2d 711, 722 (2d Cir. 1993) (Alcan (PAS)).

On remand, the district court consolidated the PAS

action with the United States’ cost recovery action for

the Fulton site and granted summary judgment in favor

of the United States on the issue of petitioner’s liability

for response costs at that site. After a five-day bench

trial, the district court concluded that petitioner failed

to satisfy its burden of proof on divisibility and ap-

portionment and held petitioner jointly and severally

liable for approximately $13.6 million, which reflected

those federal and state response costs not recovered

from other responsible parties at the sites. Pet. App.

5a, 64a. The court of appeals affirmed. Jd. at 17a.

1. Congress enacted CERCLA “in response to the

serious environmental and health risks posed by in-

dustrial polluticn.” United States v. Bestfoods, 524 U.S.

51, 55 (1998). CERCLA, as amended and expanded

through the Superfund Amendments and Reauthori-

zation Act of 1986 (SARA), Pub. L. No. 99-499, 100 Stat.

1613, “grants the President broad power to command

government agencies and private parties to clean up

hazardous waste sites.” Key Tronic Corp. v. United

States, 511 U.S. 809, 814 (1994). It “both provides a

mechanism for cleaning up hazardous-waste sites, and

imposes the costs of the cleanup on those responsible

for the contamination.” Pennsylvania v. Union Gas

Co., 491 U.S. 1, 7 (1989) (citations omitted); Bestfoods,

524 U.S. at 55-56 n.1.

CERCLA focuses on the release or threatened

release of “hazardous substances” into the environ-

ment, 42 U.S.C. 9601(14). It defines “hazardous sub-

stance” to include “any element, compound, mixture,

solution, or substances designated pursuant to”

CERCLA Section 102, 42 U.S.C. 9602, or five other

environmental statutes. “{[Wjhen a mixture or waste

solution contains hazardous substances, that mixture is

itself hazardous for purposes of determining CERCLA

liability.” B.F. Goodrich v. Betoski, 99 F.3d 505, 515 (2d

Cir. 1996) (quoting B.F. Goodrich v. Murtha, 958 F.2d

1192, 1201 (2d Cir. 1992)). Courts have consistently

held that CERCLA’s definition of hazardous substance

does not include a “[q]uantity or concentration” re-

quirement. Alcan (PAS), 990 F.2d at 720; B.F. Good-

rich v. Murtha, 958 F.2d at 1202; United States v.

Alcan Aluminum Corp., 964 F.2d 252, 261 (3d Cir.

1992) (Alcan (Butler)).'

CERCLA provides the President (acting primarily

through the Environmental Protection Agency (EPA),

see Exec. Order No. 12,580, 3 C.F.R. 193 (1987)), with

alternatives for. cleaning up hazardous substance sites.

Under Section 104, EPA can itself undertake response

actions, using the Hazardous Substance Superfund.

See 42 U.S.C. 9604; see also Bestfoods, 524 U.S. at 55.

Alternatively, under Section 106(a) EPA can seek,

through an administrative order or a request for judi-

cial relief, to compel the responsible parties to under-

take response actions, which the government then

monitors. See 42 U.S.C. 9606(a). Whichever route is

followed, the United States may recover response costs

it incurs from responsible parties through a cost

recovery action under Section 107(a). 42 U.S.C. 9607(a).

1 See also Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 669 (5th

Cir. 1989) (the “plain statutory language fails to impose any quan-

titative requirement”); City of New York v. Exxon Corp., 744 F.

Supp. 474, 483 (S.D.N.Y. 1990) (liability “attaches regardless of the

concentration of the hazardous substances present in a defendant’s

waste so long as the defendant’s waste and/or the contaminants in

it are ‘listed hazardous substances’”); Eagle-Picher Indus., Inc. v.

EPA, 759 F.2d 922, 927 (D.C. Cir. 1985); United States v. Western

Processing Co., 734 F. Supp. 930, 936 (W.D. Wash. 1990); United

States v. Conservation Chem. Co., 619 F. Supp. 162, 238 (W.D. Mo.

1985); United States v. Wade, 577 F. Supp. 1326, 1340 (E.D. Pa.

1983).

CERCLA accordingly “places the ultimate responsi-

bility for cleanup on those responsible for problems

caused by the disposal of chemical poisons.” United

States v. Aceto Agr. Chems. Corp., 872 F.2d 1373, 1377

(8th Cir. 1989) (quoting Dedham Water Co. v. Cum-

berland Farms Dairy, Inc., 805 F.2d 1074, 1081 (1st

Cir. 1986) (internal quotation marks omitted)). “The

remedy that Congress felt it needed * * * is

sweeping: everyone who is potentially responsible for

hazardous-waste contamination may be forced to contri-

bute to the costs of cleanup.” Bestfoods, 524 U.S. at 56

n.1 (quoting Union Gas, 491 U.S. at 21 (plurality

opinion of Brennan, J.)).

Courts have consistently ruled that, once the United

States has established the elements of CERCLA

liability, the responsible party is strictly liable for the

government’s response costs and is jointly and

severally liable for the entire harm if the harm from the

release of hazardous substances is not divisible. E.g.,

Centerior Serv. Co. v. Acme Scrap Iron & Metal Co.,

153 F.3d 344 (6th Cir. 1998); Alcan (PAS), 990 F.2d at

721-722; Alcan (Butler), 964 F.2d at 268-269; United

States v. Kayser-Roth Corp., 910 F.2d 24, 26-27 (1st Cir.

1990), cert. denied, 498 U.S. 1084 (1991); United States

v. R.W. Meyer, Inc., 889 F.2d 1497, 1507 (6th Cir. 1989),

cert. denied, 494 U.S. 1057 (1990); Aceto, 872 F.2d at

1377; United States v. Monsanto Co., 858 F.2d 160, 167,

172 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989).

In analyzing divisibility of harm, courts have followed

common law principles, which provide that damages

may be apportioned where: (1) “there are distinct

harms,” or (2) “there is a reasonable basis for deter-

mining the contribution of each cause to a single harm.”

Alcan (Butler), 964 F.2d at 268. The burden of proving

divisibility rests upon the responsible party and in-

eS ee

volves an “intensely factual determination.” Alcan

(PAS), 990 F.2d at 722.

2. The United States and the State of New York

sucd petitioner and 82 other responsible parties to re-

cover federal and state response costs associated with

the remediation of surface water, groundwater, and

soils at the PAS site. The United States brought a

parallel suit respecting contamination at the Fulton

site. All of the financially solvent parties responsible

for contamination at the sites, except petitioner, en-

tered into settlements providing for remediation of

conditions at the PAS and Fulton sites and reimburse-

- ment of the federal and state governments for most of

their response costs. Petitioner, which had disposed of

more than 4.6 million gallons of waste oil emulsion at

the PAS site and approximately 70,000 gallons of the

emulsion at the Fulton site, declined to settle on terms

comparable to the other settling parties. Pet. App.

3a-4a.

In the case of the PAS site, the district court granted

summary judgment in favor of the United States and

New York, finding petitioner jointly and severally

liable for their response costs. Pet. App. 4a; see Alcan,

755 F. Supp. 531 (N.D.N.Y. 1991). The court of appeals

affirmed that judgment with respect to petitioner's

liability as a responsible party under CERCLA. Pet.

App. 4a, 7a; see Alcan (PAS), 990 F.2d at 722. The

court of appeals specifically rejected petitioner’s argu-

ment that a polluter should not be held liable unless the

concentration of hazardous substances exceeds some

minimum threshold. Jd. at 720-721. That court, how-

ever, vacated the district court’s imposition of joint and

several liability and remanded the action to give peti-

tioner an opportunity to prove either “that its oil emul-

sion, when mixed with other hazardous [substances],

did not contribute to the release and clean-up costs that

followed” or that it “contributed at most only to a

divisible portion of the harm.” Pet. App. 8a (quoting

Alcan (PAS), 990 F.2d at 722).

In reaching that disposition, the court of appeals

recognized a “special exception” that would allow peti-

tioner to escape liability for naturally-occurring sub-

stances if petitioner could prove that “its pollutants did

not contribute more than background contamination

and also cannot concentrate.” Pet. App. 8a (quoting

Alcan (PAS), 990 F.2d at 722). In the event petitioner

could not prove that it qualified for the special excep-

tion, the court of appeals ruled, petitioner could present

“evidence relevant to establishing divisibility of harm,”

ibid., including proof disclosing the relative “toxicity,

migratory potential, and synergistic capacities of the

hazardous substances at the site.” Jd. at 8a-9a (quoting

Alcan (PAS), 990 F.2d at 722). The court of appeals

made clear that, because petitioner had been found

liable as a responsible party under CERCLA, it bore

“the ultimate burden of establishing a reasonable basis

for apportioning liability,” while the federal and state

governments bore no burden on that “intensely factual”

issue. Id. at 9a.

Following the consolidation of the PAS and Fulton

actions, the district court granted summary judgment

in favor of the United States on the issue of petitioner’s

liability for releases at the Fulton site, but denied sum-

mary judgment on the issue of divisibility of harm. Pet.

App. 4a-6a. The district court then conducted a five-

day bench trial to allow petitioner to prove that the

harm from release of its waste oil emulsion mixture was

divisible. Jd. at 5a. Based on the resulting record, the

district court entered findings of fact and conclusions of

law holding petitioner jointly and severally liable for

the governments’ response costs at the PAS and Fulton

sites. Id. at 18a-64a.

In finding petitioner jointly and severally liable, the

district court concluded that petitioner failed to satisfy

its burden of proof on divisibility and apportionment.

Pet. App. 61a, 64a. Petitioner presented only one fact

witness, an Alean employee, who was not qualified as

an expert in any critical areas including concrete tech-

nology (which related to the presence of polychlori-

nated biphenyls (PCBs) in the emulsion), risk assess-

ments, remedial measures taken at the sites, and

whether petitioner’s emulsion caused or contributed to

the response costs or remedies at the PAS and Fulton

sites or at other sites where petitioner disposed of its

emulsion. C.A. App. 289, 329-330, 348-351, 358, 396-399,

404. Petitioner presented no evidence whatsoever with

respect to certain factors found relevant by the court of

appeals in its 1993 Alcan (PAS) decision—namely,

relative toxicity, migratory potential, degree of migra-

tion, and synergistic capacities of the waste oil emulsion

mixture. See Pet. App. 23a, 50a-51a, 52a-53a, 55a.

Although not required to do so, the federal and state

governments presented affirmative scientific and

factual evidence respecting the contamination of peti-

tioner’s waste oil emulsion mixture with PCBs and

nickel. Pet. App. 35a-45a. They also presented evi-

dence showing the migratory potential and synergistic

capacities of the waste oil emulsion mixture. Id. at 48a-

49a. The federal and state governments additionally

presented evidence showing that petitioner’s waste oil

emulsion as a whole contributed to releases and

response costs at the sites and was not divisible. Jd.

48a-49a, 53a, 55a. The district court based its ruling on

the extensive scientific evidence that the federal and

state governments presented at trial. See, e.g., id. at

49a-56a.

With respect to PCBs, the district court’s findings of

fact describe petitioner’s use of PCBs at its Oswego

plant and resulting contamination of petitioner’s plant

and of its waste oil emulsion, and the scientific evidence

linking the disposal of petitioner’s waste oil emulsion at

the PAS and Fulton sites with the PCB contamination

at those sites. Pet.-App. 36a-45a. Based on those

findings, the district court concluded that PCBs con-

taminated the emulsion petitioner sent to PAS and

Fulton and led to the incurrence of response costs at

the sites. Jd. at 45a. The court also found that it was

more likely than not that petitioner’s waste oil emulsion

contained nickel. Jd. at 35a-36a.

Based on the evidence at trial, the district court

described the physical characteristics and interaction of

petitioner’s emulsion with other wastes at the sites.

Pet. App. 48a-49a. The court concluded that, after dis-

posal, petitioner’s emulsion remained in a single emulsi-

fied phase that was able to dissolve larger concentra-

tions of substances than either oil or water alone and,

therefore, “increase[d] the migratory potential of

hazardous substances more than either water or oil.”

Id. at 48a-49a. Petitioner did not present evidence to

negate the governments’ scientific proof that the

emulsion had a mobilizing effect on other hazardous

substances and thus contributed to the breadth of con-

tamination at the sites. Jd. at 52a-53a.

Applying the court of appeals’ divisibility standard to

the facts before it, the district court concluded that

“Alcan did not satisfy its burden of proof on divisibility

or provide this Court with a reasonable basis of

apportionment of costs.” Pet. App. 64a. The court

accordingly held petitioner jointly and severally liable

————__——_____|__ LLL

for response costs at the PAS and Fulton sites. Ibid.

Based upon post-trial submissions, the court entered

judgment in favor of the United States in the amount of

$12,201,929.30 and in favor of New York in the amount

of $1,422,155.39, and also provided declaratory relief for

future costs. See id. at 5a.

3. The court of appeals affirmed the district court’s

rulings on joint and several liability in their entirety,

Pet App. 2a-17a, unanimously rejecting all of peti-

tioner’s numerous challenges to the district court’s

decision. Only two of the court of appeals’ rulings are

relevant to the petition for writ of certiorari.

First, the court of appeals held, based upon the

district court’s factual findings regarding the presence

of PCBs in petitioner’s waste oil emulsion, that peti-

tioner did not qualify for the “special exception” from

CERCLA liability that the court created in its Alcan

(PAS) decision. Pet. App. 9a-10a. The court of appeals

explained that its exception was expressly created

“based on an awareness that some CERCLA hazardous

substances, like metals, occur in the environment

naturally” and that the exception was not intended to

encompass man-made substances such as PCBs. Jd.

at 10a. :

Second, the court of appeals held that peti-

tioner failed to demonstrate that the harm at the PAS

and Fulton sites was divisible, rejecting petitioner’s

analysis of its waste oil emulsion which focused in-

dividually on each constituent of the waste without

regard to the effects of the emulsion as a whole. Pet.

App. 10a-13a. The court correctly found that “Alcan

does nut claim that the harm caused by its emulsion was

somehow distinct from the harm caused by other

hazardous substances at the site, nor does the company

make any real effort to identify the extent to which its

waste contributed to a single harm,” and it also speci-

fically rejected petitioner’s contention that its waste

emulsion was benign and just like homogenized milk.

Id. at lla. The court concluded:

Because Alcan, which carried the burden of proof,

did not comprehensively and persuasively address

the effects of its waste emulsion at PAS and Fulton,

it cannot be said that the company either estab-

lished that the harm caused by its emulsion was

distinct or proffered a reasonable basis for dividing

the harm and apportioning liability. Stated another

way, [Alcan] did not satisfy its substantial burden

with respect to divisibility because it failed to ad-

dress the totality of the impact of its waste at each

of the sites; it ignored the likelihood that the cumu-

lative impact of its waste emulsion exceeded the

impact of the emulsion’s constituents considered

individually, and neglected to account for the emul-

sion’s chemical and physical interaction with other

hazardous substances already at the site.

Id. at 12a. The court also noted that its conclusion was

consistent with United States v. Alcan Aluminum

Corp., 892 F. Supp. 648, 651 (M.D. Pa. 1995), aff'd,

Alcan (Butler), 96 F.3d 1434 (3d Cir. 1996), cert.

denied, 521 U.S. 1103 (1997), which “similarly found

Alcan jointly and severally liable for cleanup costs in-

curred at a site where waste emulsion from the com-

pany’s Oswego, New York facility was discharged.”

Pet. App. 18a.

ARGUMENT

The court of appeals correctly concluded that peti-

tioner is subject to joint and several liability for un-

reimbursed costs that the United States and New York

incurred in responding to the release and threatened

release of hazardous substances from the PAS and

Fulton sites. That court properly affirmed the district

court’s determination that petitioner’s disposal of

millions of gallons of industrial waste at those sites con-

tributed to the release and threatened release of

hazardous substances and that petitioner’s contribution

to the harm was not divisible. The court of appeals’

affirmance of the district court’s “intensely factual

determination” (Pet. App. 9a) does not conflict with any

decision of this Court or any other court of appeals.”

1. Petitioner claims (Pet. 6-11) that the court of ap-

peals erred by failing to impose a quantity requirement

upon CERCLA’s definition of a “hazardous sub-

stances.” See CERCLA § 101(14), 42 U.S.C. 9601(14).

According to petitioner (Pet. 7) it is “illogical” to define

“hazardous substances” to include products which con-

tain trace amounts of potentially harmful substances.

The courts of appeals, however, have consistently held

that CERCLA’s definition of “hazardous substance” im-

poses no minimum-quantity requirement. Petitioner’s

contention provides no basis for further review.

a. As a result of CERCLA’s carefully formulated

definition, the identification of a “hazardous substance”

depends primarily on the characteristics, rather than

the concentration, of the substance at issue. See, €.9.,

Alcan (PAS), 990 F.2d at 720-721, Alcan ( Butler), 964

F.2d at 261. The “plain statutory language fails to im-

pose any quantitative requirement.” Amoco Oil Co. v.

Borden, Inc., 889 F.2° 664, 669 (5th Cir. 1989). Con-

2 The court denid a prior petition for writ of certiorari in which

petitioner presented essentially the same issues in the factually

similar Alcan (Butler) litigation. See Alcan Aluminum Corp. Vv.

United States, cert. denied, 521 U.S. 1103 (1997) (No. 96-1494).

gress properly recognized that even dilute concentra-

tions of a dangerous substance can pose serious threats

to public health and the environment, and it therefore

defined the term “hazardous substance” through terms

that encompassed that possibility. The courts have

correspondingly concluded, without exception, that

CERCLA liability may arise from the improper dis-

posal of wastes containing small amounts of hazardous

substances. See B.F. Goodrich, 958 F.2d at 1202;

Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 922, 927

(D.C. Cir. 1985); City of New York v. Exxon Corp., 744

F. Supp. 474, 483 (S.D.N.Y. 1990); United States v.

Western Processing Co., 734 F. Supp. 930, 936 (W.D.

Wash. 1990); United States v. Conservation Chem. Co.,

619 F. Supp. 162, 238 (W.D. Mo. 1985); United States v.

Wade, 577 F. Supp. 1826, 1340 (E.D. Pa. 1983).

Petitioner nevertheless asserts (Pet. 6-8) that the

courts should create an extra-textual concentration re-

quirement to avoid the possibility of “absurd” imposi-

tions of liability. Notwithstanding petitioner’s specula-

tion and unsubstantiated anecdotes, such as “a reported

threat to prosecute Girl Scouts for disposing of trash

that included pizza boxes” (Pet. 6), this case presents no

occasion for addressing that question. Petitioner can-

not plausibly contend that the federal and state govern-

ments’ response to the release or threatened release of

hazardous substances in this case was unjustified. As

the court below correctly recognized, the issue here,

instead, is whether petitioner’s contribution to that

harm was divisible, and both courts below concluded, as

a matter of fact, it was not. That “intensely factual

determination” does not warrant further review.’

3 Significantly, Congress has been attentive to the theoretical

breadth of CERCLA liability and has periodically amended

i Ee ee

a |

b. Petitioner additionally argues (Pet. 8-9) that the

court of appeals erred in interpreting the “special

exception” it created in the 1993 Alcan (PAS) decision,

which permits a polluter to avoid liability altogether if

it can prove that “its pollutants did not contribute more

than background contamination and also cannot concen-

trate.” 990 F.2d at 722. The court of appeals, which

created the “special exception,” affirmed the district

court’s application of its principle to the facts of this

case. The court’s affirmance of the district court’s

application of a narrew legal principle to particular facts

plainly provides no basis for this Court’s review. See

Sup. Ct. R. 10.

Petitioner asserts (Pet. 8-9) that the court of appeals

erred in refusing to extend its special exception for

CERCLA to limit its application to situations that could con-

ceivably reach more broadly than Congress intended. For ex-

ample, in January 2002, Congress enacted carefully tailored re-

visions to CERCLA’s liability provisions, including the de mi-

cromis provision, CERCLA § 107(0), which exempts from liability

at National Priority List (NPL) sites those persons who sent less

than 110 gallons of liquid materials or less than 200 pounds of solid

materials to the site; the municipal solid waste (MSW) provision,

CERCLA § 107(p), which exempts certain categories of persons

from liability at NPL sites for disposing of MSW; CERCLA

§ 1U7(q), which provides a defense to liability for certain owners of

property located contiguous to, and contaminated by, hazardous

waste sites; and CERCLA § 107(r), which provides a defense to

liability for bona fide prospective purchasers of conteminated

property. Pub. L. No. 107-118, §§ 102(a), 221, 222(b), 115 Stat.

2356-2357, 2368, 2371-2372 (to be codified at 42 U.S.C. 9607(0)-(r)).

In addition, those who do not qualify for the de micromis

exemption, but who sent a relatively small amount of hazardous

substances to a site, may enter into a de minimis settlement, under

which they make a limited cash payment to EPA in exchange for

an immediate release from past and future liability at the site.

CERCLA § 122(g), 42 U.S.C. 9622(g).

naturally occurring hazardous substances to manmade

pollutants, such as highly toxic PCBs. Petitioner

argues that the exception should apply to manmade

chemicals because they are also present, in small

amounts, throughout the environment. The court

refused to se hold, stating that “(w]e created this ex-

ception based on an awareness that some CERCLA

hazardous substances, like metals, occur in the environ-

ment naturally.” Pet. App. 10a (emphasis added).’

Petitioner’s argument, in any event, is without fac-

tual foundation. Petitioner presented no evidence at

trial on the pre-disposal background levels of PCBs at

4 Petitioner mistakenly suggests (Pet. 9) that an EPA internal

guidance document on remediation supports extension of the

court’s extra-textual “speci! exception.” See Office of Solid Waste

and Emergency Response, EPA, Role of Background in the

CERCLA Cleanup Program, OSWER 9285.6-07P (Apr. 26, 2002).

The EPA document acknowledges that manmade pollutants may

exist in trace amounts in soil or rainwater and indicates that EPA

does not normally require cleanup for below-background levels of

potentially harmful substances, even manmade ones. Id. at 7. The

document, however, does not address the scope of CERCLA liabil-

ity. It merely indicates, in the context of addressing remediation

and risk assessment of hazardous sites, that EPA generally takes

into account any background constituents (both natural and an-

thropogenic substances-i.e., those which are present as a result of

human activity but not specifically related to the CERCLA release

in question) and may, where conditions warrant, clean up back-

ground constituents in the context of responding to a release or

threatened release of hazardous substances. Petitioner’s citation

(Pet. 9) to a Food and Drug Administration (FDA) regulation (21

C.F.R. 109.30(a)) that establishes temporary tolerances for PCB

residues in foods and characterizes PCBs as “a persistent and

ubiquitous contaminant” also sheds no light here. The FDA

regulation does not purport to establish permissible “background”

levels of PCBs for purposes of CERCLA response actions.

the PAS or Fulton sites or in the general geographic

vicinity of the sites, and petitioner failed to present any

proof that the levels of PCBs in its waste emulsion fell

below any alleged “background” levels for PCBs in the

area. By contrast, the federal and state governments

presented evidence, based on tests done by Alcan’s own

contractors when remediating the PCB contamination

at Alcan’s Oswego plant, that the concrete at Alcan’s

plant contained levels of PCBs from 1200 parts per

million to 64,000 parts per million and that the PCB-

contaminated concrete, in turn, contaminated the oil

emulsion. See Pet. App. 38a-39a; C.A. App. 225-226,

228 (Stipulations 4 20-38, { 61). The district court

correspondingly found that “the government proved, by

a preponderance of the evidence, that PCBs con-

taminated the emulsion Alcan sent to PAS and Fulton.”

Pet. App. 45a.°

c. Petitioner mistakenly argues (Pet. 9-10) that the

court of appeals’ decision is in tension with the First

Circuit’s decision in Massachusetts v. Blackstone

Valley Electric Co., 67 F.3d 981 (1995), and the Fifth

Circuit’s decision in Licciardi v. Murphy Oil U.S.A.,

Inc., 111 F.3d 396 (1997). Those decisions, however, are

plainly inapposite to the issue presented here.

5 Furthermore, because petitioner presented no proof that the

PCBs or nickel in its emulsion could not concentrate (through, for

example, evaporation of water), petitioner could not, in any event,

qualify for the court of appeals’ “special exception.” See 990 F.2d

at 722 (holding that petitioner can escape liability “where its

pollutants did not contribute more than background contamination

and also cannot concentrate”) (emphasis added); see also C.A. App.

191-192 n.5 (denying petitioner’s motion under Rule 60(b) of the

Federal Rules of Civil Procedure and explaining that “(t]he burden

was on Alcan to prove that the metals in its emulsion could not

concentrate and Alcan did not satisfy this burden”).

In Blackstone, the First Circuit ruled that a parti-

cular substance—ferric ferrocyanide—is not a “hazard-

ous substance” because it does not meet CERCLA’s

specific statutory definition of a hazardous substance.

See CERCLA § 101(14), 42 U.S.C. 9601(14). The court

ruled that it was not sufficient that the substance falls

within a general category of “eyanides” listed under the

Clean Water Act; rather, the court ruled, the substance

must be more specifically identified in one of the lists of

hazardous substances that Section 101(14) of CERCLA

incorporates by reference. 67 F.3d at 984-985. Because

each of the substances at issue in this case undeniably

qualifies as a hazardous substance under CERCLA, the

First Circuit’s decision is irrelevant.

In Licciardi, the Fifth Circuit addressed whether a

private party presented sufficient evidence to prove

that the incurrence of response costs was actually

caused by the release of hazardous substances. 111

F.3d at 398-399. That court reversed a district court’s

finding of CERCLA liability because the party pre-

sented “no evidence that the found ‘release’ justified

the response costs.” Id. at 399. By contrast, there is no

question in this case that the federal and state govern-

ments incurred response costs at the PAS and Fulton

sites on account of the release and threatened release of

hazardous substances that included petitioner’s con-

taminated waste oil emulsion. See Pet. App. 6a-7a.

Contrary to petitioner’s suggestion (Pet. 10), the Fifth

Circuit did not hold that a company could not be liable

under CERCLA for disposing of de minimis amounts of

hazardous substances. Licciardi has no bearing here.

2 Petitioner challenges (Pet. 11-15) the court of

appeals’ divisibility ruling, but it does not contend that

the court of appeals’ standard conflicts with any de-

cision of this Court or another court of appeals. Rather,

petitioner primarily contends (Pet. 12-13) that the court

of appeals erred in ruling that, to prove divisibility,

petitioner could not meet its burden by focusing in-

dividually on each constituent of the waste in isolation

without analyzing the impact of the waste oil emulsion

mixture as a whole.

a. The court of appeals correctly recognized that

petitioner “failed to address the totality of the impact of

its waste at each of the sites; it ignored the likelihood

that the cumulative impact of its waste emulsion ex-

ceeded the impact of the emulsion’s constituents con-

sidered individually, and neglected to account for the

emulsion’s chemical and physical interaction with other

hazardous substances already at the site.” Pet. App.

12a. Petitioner’s fact-specific challenge to the court of

appeals’ conclusion that petitioner failed to meet its

burden of proof plainly does not present an issue of

general importance warranting review by this Court.

See Graver Tank & Mfg. Co. v. Linde Air Prods. Co.,

336 U.S. 271, 275 (1949) (This Court “cannot undertake

to review concurrent findings of fact by two courts

below in the absence of a very obvious and exceptional

showing of error.”).

The court of appeals’ decision is consistent with the

only other decision to address this issue, which squarely

rejected petitioner’s identical arguments regarding the

disposal of the same waste oil emulsion at the Butler

Tunnel site in Pennsylvania. See Pet. App. 18a. The

district court in Alcan (Butler) rejected petitioner’s

attempts to “dissect its waste material into components

regulated by CERCLA and those not regulated by

CERCLA,” and it expressly held that, to prove divisi-

bility, “the focus of any effort must be on the emulsion

itself, and not on the constituents of that emulsion.” 892

F. Supp. at 654-655 & n.11.

b. Even if petitioner were correct in insisting that

analyzing constituents of its waste oil emulsion, rather

than its emulsion as a whole, may suffice to prove

divisibility, petitioner has not accurately characterized

the evidence it presented at trial. Petitioner asserts

(Pet. 12) that the court of appeals ignored its “evidence

as to the relative amount of pollutants contained in

Alean’s waste emulsion.” Specifically, petitioner con-

tends that it presented “uncontested evidence” showing

that any PCBs in its waste oil emulsion “constituted no

more than 0.01% of all of the known PCBs sent to the

PAS site, and that those known PCBs in turn, consti-

tuted only 0.24% of all the waste at the site.” Pet. 12

(citing C.A. App. 1196). Neither the court of appeals

nor the district court could have credited such an asser-

tion, because petitioner did not introduce any evidence

substantiating that claim. See Pet. App. 52a (“neither

the parties nor the Court know exactly what was dis-

posed of at either PAS or Fulton or what was in Alcan’s

emulsion”).°

c. Petitioner also mistakenly faults the court of

appeals (Pet. 13-14) for imposing joint and several

liability based upon the mobilizing effect of the waste

6 Petitioner’s citation to C.A. App. 1196 refers to a pie chart

purporting to show “alleged quantity of PCBs in Alcan waste vs.

known quantities of PCBs sent to PAS.” Petitioner’s sole witness

at trial, however, presented no relevant testimony or other direct

evidence establishing the quantities of PCBs sent to the PAS site

from other sources or the concentrations of these PCBs or other-

wise substantiating the conclusions contained in the pie chart.

Thus, contrary to its suggestion, petitioner presented no evidence

regarding any quantities of PCBs disposed of at the PAS site,

whether by petitioner or other sources. Petitioner’s wholly unsup-

ported and unexplained pie chart plainly does not provide a “more

than sufficient basis on which to apportion liability” (Pet. 12).

ELLER A LEE LL LLL ELLE LTE TT TN a

oil emulsion as a whole. Petitioner essentially contends

that the court should not have attributed any mobiliz-

ing effects to the waste oil emulsion because, in its

view, only the water and oil components of the emulsion

were responsible for spreading other hazardous sub-

stances present at the site. Petitioner overlooks the

fact that it did not send a pure oil-water emulsion to the

PAS and Fulton sites; rather, it sent a mixed industrial

waste stream, consisting of water, oil, PCBs and other

hazardous substances that, in itself, qualified as a haz-

ardous substance. The court of appeals properly con-

sidered the characteristics of the mixed industrial

waste stream the petitioner actually sent to the PAS

and Fulton sites in affirming (Pet. App. 12a-13a) the

district court’s findings that the waste product “in-

creased the migratory potential of hazardous sub-

stances at PAS and Fulton,” “absorbed the contami-

nants at the sites and facilitated their transport,” and

“eontributed to the breadth of contamination at both

PAS and Fulton” (id. at 53a).

d. Petitioner challenges the lower court’s assess-

ment of the migratory potential of its waste product,

but petitioner presented no affirmative evidence at trial

to rebut the government showing that the waste oil

emulsion interacted with other wastes at the sites and

increased the migratory potential of other hazardous

substances. Rather, petitioner argued at trial that

rainfall caused migration of the wastes at the PAS site,

and the only evidence petitioner presented on migra-

tion of its emulsion when mixed with other substances

was testimony regarding the average rainfall in the

Oswego area. Refuting that theory, the federal and

state governments presented expert testimony es-

tablishing that petitioner’s waste oil emulsion would

dissolve and mobilize other hazardous substances and

facilitate the transport of those contaminants through-

out the PAS and Fulton sites. The district court

credited that testimony and the court of appeals

properly affirmed the district court’s factual findings.

See Pet. App. 12a, 52a-d3a.

e. Petitioner suggests (Pet. 14) that the court of

appeals’ decision unfairly holds petitioner “entirely”

liable for the cleanup costs for two sites and all of the

PCBs, while the settling defendants were permitted to

pay a “disproportionately low share.” That suggestion

is inaccurate. Petitioner concedes that it disposed of 4.6

million gallons of its waste oil emulsion at the PAS site,

which constitutes approximately 25 percent of the total

volume of waste material sent to that location. C.A.

App. 494. The federal and state governments re-

covered approximately 75 percent of the response costs

from responsible parties that, unlike petitioner, agreed

to a settlement of the dispute. See 990 F.2d at 717. The

federal and state governments sought recovery of only

their remaining unreimbursed costs, and the amount

they sought from petitioner corresponds to petitioner’s

volumetric contribution. The federal and state govern-

ments have also sought interest on unreimbursed re-

mediation costs and enforcement costs that have

accrued, as a consequence of this litigation, since 1987.

In short, petitioner has been assessed a fair share of the

response costs at the PAS and Fulton sites.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.