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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2004
- **Citation:** 540 U.S. 1103

## Text

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)

IV
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
© BOGE), AE UC. CII arecsnsecessscseinccereesessncnevenseovonenivonn 4
§ ROPE a), SE UBC. GODT). oneccnesiresseserccnesiencnvsvsvsnensvsnnnrocane 4
§ 107(0), 42 U.S.C. 9607(0) (to be codified) ......... 14

V

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

15

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)

2

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

3

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

4

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).

5

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

EE

6

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],

7

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

8

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

9

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

10

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

11

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

12

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).

13

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 |

14

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).

15

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.

ee

16

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”).

17

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,

18

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.

19

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

20

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

21

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.

22

CONCLUSION
The petition for a writ of certiorari should be denied.

Respectfully submitted.

THEODORE B. OLSON
Solicitor General

THOMAS L. SANSONETTI
Assistant Attorney General

GREER S. GOLDMAN
LISA E. JONES
Attorneys

DECEMBER 2003

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2153%3A3. Public record. Not legal advice.