Amicus Curiae Brief — Alcan Aluminum Corp. v. United States

Supreme Court, U.S.

FILED

“ 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

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

BRIEF AMICUS CURIAE

OF ATLANTIC STATES LEGAL FOUNDATION, INC.

IN SUPPORT OF PETITIONER

Susan Hajda Brock

Counsel of Record

306 East State Street, Suite 230

Ithaca, New York 14850

TEL: (607) 277-3995

Counsel for Amicus Curiae

Atlantic States Legal Foundation, Inc.

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TABLE OF CONTENTS

STATEMENT OF INTEREST OF

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INTRODUCTION AND SUMMARY OF

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THE SECOND CIRCUIT ERRED BY

SUBJECTING A COMPANY TO CERCLA

LIABILITY WHERE SUCH LIABILITY COULD

BE FOUND ONLY IF THE COURT

DISREGARDED, FOR NO SOUND REASON,

SCIENTIFIC MODELS AND LABORATORY

TEST RESULTS.

A. The Second Circuit Erred By Concluding

That A Company Is Subject To CERCLA

Liability Where Such A Conclusion Could

Be Made Only If The Court Ignored, For No

Sound Reason, Scientific Models That Bear

Directly On The Presence Or Absence Of

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B. The Second Circuit Erred By Concluding

That A Company Is Subject To CERCLA

Liability Where Such A Conclusion Could

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Be Made Only If The Court Ignored, For No

Sound Reason, Unambiguous Testing

TABLE OF AUTHORITIES

CASES

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STATUTES

42 US.C. §§ 9601-9675...

FEDERAL RULES OF EVIDENCE

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STATEMENT OF INTEREST OF AMICUS CURIAE

Atlantic States Legal Foundation, Inc. (the

"Foundation") is a not-for-profit corporation established in

1982 to promote and protect the environment. The

Foundation is a membership organization headquartered in

Syracuse, New York, and it is active throughout the United

States and abroad.

The Foundation provides legal, technical and

organizational assistance on environmental issues to citizen

organizations, individuals and local governments. The

Foundation is active in projects involving watershed

restoration, - pollution control, environmental policy,

environmental justice, and community education. The

Foundation also brings lawsuits against corporate polluters

under the citizen suit provisions of the major federal

environmental statutes. In addition, the Foundation regularly

files amicus briefs in cases that . address important

environmental issues.

The Foundation has a strong interest in this case

because the Second Circuit failed to apply sound scientific

principles in ruling on the Petitioner's environmental

liability. The failure of courts to apply the most basic

scientific principles can undermine efforts of the

environmental advocacy community and be detrimental to

the environment. The Foundation and other environmental

advocates often rely on scientific models and laboratory

testing to prove contamination exists and to determine the

success of remediation efforts. If courts do not apply sound

scientific principles, polluters may escape liability and site

remediation efforts may fall short. While in this case

Petitioner is an alleged polluter that is trying to escape or

limit its liability, the Foundation nonetheless supports the

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petition for a writ of certiorari because of its strong interest

in the federal courts’ use of sound scientific principles in all

environmental cases. !

INTRODUCTION AND SUMMARY OF ARGUMENT

The Foundation believes it is vitally important for the

Court to grant the writ of certiorari to supply needed

guidance to the courts on how to apply scientific principles

to environmental issues. The Court has addressed the

admissibility of scientific and other expert opinions in

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137

(1999). Once such opinions are admitted or otherwise made

part of the record, courts must apply the expert opinions

properly to assure their decisions are based on sound

scientific evidence. The integrity of court decisions is

threatened if courts disregard valid scientific models or

ignore laboratory test results without sound reasons. This

case provides the Court with the ideal opportunity to provide

needed guidance on the role of scientific models and

laboratory test results in decisions that turn on the presence

or absence of chemical substances.

This case involves the liability of Petitioner Alcan

Aluminum Corporation (“Alcan”) under the Comprehensive

Environmental Response, Compensation, and Liability Act

(CERCLA), 42 U.S.C. §§ 9601-9675. During the 1970s,

Alcan sent waste emulsion to a site operated by Pollution

Abatement Services (PAS) and to another site operated by

Fulton Terminals, Inc. See Pet. App. 34a.

' Letters of consent from all parties have been filed with the Clerk of the

Court. No counsel for any party authored this brief in whole or in part.

Petitioner Alcan Aluminum Corporation made a monetary contribution to

the preparation of this brief.

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The Second Circuit stated Alcan can escape joint and

several liability under CERCLA “if it either succeeds in

proving that its oil emulsion, when mixed with other

hazardous wastes, did not contribute to the release and clean-

up costs that followed, or contributed at most to only a

divisible portion of the harm.” United States v. Alcan

Aluminum Corp., 315 F.3d 179, 185 (2d Cir. 2003) (citations

omitted), reprinted at Pet. App. 2a-17a, 8a. If Alcan can

show its emulsion did not contribute to the release and clean-

up costs, it escapes all liability. If Alcan cannot make this

showing, it can nonetheless limit its liability by showing its

emulsion contributed to only a divisible portion of the harm.

See id. at Pet. App. 8a, 10a.

The Second Circuit elaborated on what Alcan needs

to show to escape all liability. The court stated that the

avoidance of all liability is a “special exception” available

only if “the company could prove that its pollutants did not

contribute more than background contamination and also

cannot concentrate.” Jd. at Pet. App. 8a (citations omitted).

If Alcan does not qualify for the special exception, it

can still limit its liability by presenting “evidence relevant to

establishing divisibility of harm.” Jd. If it makes this

showing, Alcan is liable for an apportioned share of

outstanding costs.

After a bench trial, the district court gave two

independent reasons why Alcan could not escape all liability.

First, the district court found Alcan’s waste emulsion

contained polychlorinated biphenyls (PCBs). The court

stated there are no naturally occurring background levels of

PCBs, so the special exception was not available to Alcan.

See United States v. Alcan Aluminum Corp., 97 F. Supp. 2d

248, 268-69 (N.D.N.Y. 2000), reprinted at Pet. App. 18a-

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64a, 50a. Second, the court found that Alcan did not meet its

burden of showing that metals in its emulsion could not

concentrate. The court predicated this decision in part on a

finding that Alcan’s emulsion contained nickel, which was

detected at above background levels at the PAS and Fulton

sites. See id.

The Second Circuit held, without elaboration, that the

record contained “ample evidence” to support the district

court’s finding that Alcan’s waste emulsion contained nickel

and PCBs. Pet. App. 10a. The Second Circuit then stated

the special exception was not available to Alcan because of

the presence of PCBs in Alcan’s emulsion. See id. The

Second Circuit did not reach the issue of whether its nickel

ruling would provide an independent ground for making the

special exception unavailable.

The Second Circuit’s decision does not set forth the

specific evidence it relied on for its ruling about the presence

of PCBs and nickel. However, to find PCBs in the emulsion,

the Second Circuit would have had to disregard scientific

models about PCB behavior in Alcan’s emulsion at the two

sites. These models were provided by a court-appointed

expert, and the court had no basis to disregard them. To find

nickel in the emulsion, the Second Circuit would have had to

accept a hypothesis by two experts about the presence of

nickel in Alcan’s emulsion. However, the hypothesis was

invalidated by numerous laboratory test results showing

nickel was not detected in the emulsion. The court had no

basis to ignore the test results. Where unambiguous testing

data proved a scientific hypothesis was wrong, the Second

Circuit should have thrown out the hypothesis, not the data.

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ARGUMENT

THE SECOND CIRCUIT ERRED BY SUBJECTING A

COMPANY TO CERCLA LIABILITY WHERE SUCH

LIABILITY COULD BE FOUND ONLY IF THE

COURT DISREGARDED, FOR NO SOUND REASON,

SCIENTIFIC MODELS AND LABORATORY TEST

RESULTS.

A. The Second Circuit Erred By Concluding That

A Company Is Subject To CERCLA Liability

Where Such A Conclusion Could Be Made Only If

The Court Ignored, For No Sound Reason,

Scientific Models That Bear Directly On The

Presence Or Absence Of Hazardous Substances.

The Second Circuit should not have the discretion to

disregard, for no sound reason, scientific models that bear

directly on the question of the presence or absence of

hazardous substances. In this case, the court-appointed

expert’s models described how PCBs in Alcan’s emulsion

would have behaved at the PAS and Fulton sites if the

emulsion had contained PCBs. See C.A. App. 1070, 1077.

These models are in the expert’s report that is part of the

record in this case. See Pet. App. 22a n.3.

The government tested for the presence of PCBs at

the locations where the models said they should be present if

they had been in Alcan’s emulsion. When one considers the

undisputed test results at the sites, the only conclusion that is

consistent with these models is that Alcan’s emulsion did not

contain PCBs. These models should have been dispositive,

but the Second Circuit apparently relied instead on indirect,

circumstantial evidence that was not supported by the test

results at the sites.

1. PAS Site

At the PAS site, Alcan’s waste emulsion, together

with wastes from many other entities, was deposited into a

large lagoon. The lagoon was stratified into three layers: a

top oily layer, a middle aqueous layer, and a bottom sludge

layer. See Pet. App. 29a. The district court found that

Alcan’s emulsion initially occupied the middle aqueous layer

and eventually broke down so some of the waste likely

would have ended up in the top oily layer. See Pet. App.

43a.

The court-appointed expert provided a scientific

model for how PCBs in Alcan’s emulsion would behave in

the lagoon. He stated PCBs from Alcan’s emulsion would

largely associate with the top oily layer and the bottom

sludge layer. See C.A. App. 1070, 1077.

Government testing of the lagoon found PCBs only

in the top oily layer, not in the bottom layer. See Pet. App.

43a. The model says if PCBs had been in the emulsion,

some would have accumulated in the bottom sludge layer.

Since none were in the bottom layer, the conclusion from the

model is that no PCBs had been in Alcan’s emulsion.

The Second Circuit did not elaborate on its finding

that the emulsion contained PCBs, so we do not know why

the Second Circuit disregarded the model. The district court,

however, provided the reasons for its own finding. The

court-appointed expert’s model was about PCB behavior in

the emulsion in the lagoon, but the district court apparently

thought the model was about PCB behavior anywhere in the

lagoon. Because PCBs unquestionably resided in the top

oily layer, the court reasoned, the expert’s opinion that PCBs

would also concentrate in the bottom layer had to be wrong,

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because no PCBs in fact were found in the bottom layer. See

the district court’s August 8, 2000 Decision and Order

denying Alcan’s motion for reconsideration, C.A. App. 196-

97 n. 9 & 10. However, the model did not address how

PCBs in the top oily layer would behave, because the court-

appointed expert was not asked to address this. See C.A.

App. 1077, 1070. The district court judge thus wrongly

threw out the model and the conclusion that PCBs were not

present in Alcan’s emulsion.

The district court also stated that variability in the

lagoon’s layers cast doubt on the conclusiveness of the PCB

testing. See Pet. App. 43a-44a. However, there is no

evidence that PCBs would have accumulated as discrete

deposits that would be easily missed by sampling.

Moreover, sludge variability was not an issue at the Fulton

site, discussed infra. In light of the sludge test results at both

the PAS and Fulton sites, the district court judge should not

have concluded its own expert’s model was wrong.

2. Fulton Site

The parties stipulated that the Fulton site was

contaminated by leaks and spills from various tanks,

including Tank One. See C.A. App. 236-37. They also

stipulated Alcan’s emulsion had been stored in Tank One at

the Fulton site. See id. at 236. When the government tested

the contents of Tank One, the tank was empty except for

sludge in the bottom. See Pet. App. 44a. PCBs were not

detected in the sludge. See id. Nor were PCBs detected in

the soils surrounding Tank One. See C.A. App. 197.

The court-appointed expert provided a scientific

model for how any PCBs in Alcan’s emulsion would have

behaved in the tank at Fulton. He stated he would have

expected PCBs to accumulate in the sludge layer at the

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bottom of the tank. See C.A. App. 1070, 1077. Since PCBs

were not found in the sludge, the conclusion from the model

is that no PCBs had been in Alcan’s emulsion.

Again, the Second Circuit does not elaborate on why

it found PCBs in Alcan’s emulsion, so we do not know why

the Second Circuit disregarded this model. The district

court’s opinion shows the district court simply ignored the

model:

While no PCBs were found in the sludge-like

material remaining in the bottom of the tank,

Alcan’s emulsion was not present either.

Neither Alcan nor the government suggests

that in the face of evidence that Alcan

disposed of emulsion and a stipulation that

this emulsion was stored in Tank One, the

Court should conclude that the absence of the

emulsion at the time of testing suggests that

the emulsion was never there. Accordingly,

the Court will not conclude based on the

absence of PCBs in Tank One’s sludge that

the tank never contained PCBs.

Pet. App. 44a.

The district court does not provide any scientific

explanation of why it completely ignores its expert’s model.

The court says the absence of emulsion at the time of testing

does not prove the emulsion had never been there. That is

certainly true and no one disputed the emulsion’s presence,

but it is irrelevant to the model and the question of whether

PCBs had been present in the emulsion. The only other

evidence in the record about whether PCBs in Alcan’s

emulsion would concentrate in sludge supports the model.

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See C.A. App. 515. Again, the district court wrongly threw

out the model, which predicted how any PCBs in Alcan’s

emulsion would have behaved in the Fulton tank, and which

should have been dispositive absent evidence the model or

test results were flawed.

The Second Circuit failed to give credence, for no

sound reason, to the court-appointed expert’s model and

apparently relied on indirect, circumstantial evidence that is

not supported by the tank’s sludge test results (nor by the soil

test results for the area surrounding Tank One). The Second

Circuit’s failure to apply sound scientific principles was in

error. The integrity of the federal courts in environmental

cases is threatened if this type of failure is not addressed.

B. The Second Circuit Erred By Concluding That

A Company Is Subject To CERCLA Liability

Where Such A Conclusion Could Be Made Only If

The Court Ignored, For No Sound Reason,

Unambiguous Testing Data.

The Second Circuit upheld the district court’s finding

that nickel was present in Alcan’s emulsion. See Pet. App.

10a. In light of its PCB ruling, the Second Circuit did not

reach the question of whether its nickel ruling (or the

presence of other metals) would provide an independent

ground for making the special exception unavailable.’ The

Second Circuit did state, however, that its review of the

district court’s divisibility analysis is “predicated on” the fact

that Alcan’s waste emulsion contained nickel, other metals,

and PCBs. Id. The presence or absence of nickel thus was a

factor in the Second Circuit’s divisibility analysis—an

? As discussed supra, the district court used the presence of nickel as one

of the grounds to support its finding that the special exception was

unavailable to Alcan. See Pet. App. 50a.

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analysis that should never have been reached, because Alcan

should have qualified for the special exception.

Laboratory tests exist to determine the types and

concentrations of nickel and other metals in Alcan’s

emulsion. These tests unequivocally show whether nickel is

present above the detection limit. In 1989, the US.

Environmental Protection Agency (USEPA) took a number

of emulsion samples at Alcan’s Oswego plant, and two

laboratories performed laboratory analyses on the samples.’

See C.A. App. 1438-44. Nickel was not detected in any of

the nineteen (19) validated laboratory analyses. See C.A.

App. 1443-44, 1448-51, 1457-88. This should have ended

the inquiry.

The Second Circuit’s decision does not mention these

laboratory tests or how the court could nonetheless conclude

nickel was present. The district court judge initially said he

was “not aware of any sampling results that indicate nickel

was not in the emulsion.” Pet. App. 36a. In his decision on

Alcan’s motion for reconsideration, the district court judge

stated that the nickel test results were not conclusive because

of poor laboratory quality assurance and control. See C.A.

App. 190-91. While it is true the USEPA did not accept the

results from one of the laboratories for quality control

reasons, the USEPA did accept the metals results from the

second laboratory, including the nineteen results showing no

> The USEPA’s report about the laboratory analyses states the metal

constituents in the emulsion likely did not change between the period

when Alcan sent its emulsion to the PAS and Fulton sites and 1989,

when the USEPA took the samples at Alcan’s factory. See C.A. App.

1444; see also id. at 543, 1012. The government introduced this report as

Government Exhibit G-36 and relied on it for evidence as to what metals

Alcan sent to the sites. See C.A. App. 545-48.

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nickel was detected in the emulsion.’ See C.A. App. 552,

557-58, 1443-44, 1448-51, 1457-88.

The district court found that nickel likely was present

in Alcan’s emulsion because of a hypothesis of both the

court-appointed expert and a government expert. These

experts noted that other metals had made their way into the

emulsion during Alcan’s manufacturing process and there

was no reason to expect that nickel would not have done the

same thing. See Pet. App. 35a-36a.

While this hypothesis may appear reasonable on its

face, the Second Circuit and district court should not have

accepted it. Rule 702 of the Federal Rules of Evidence states

that an expert opinion can be considered only if, among other

things, “the witness has applied the principles and methods

reliably to the facts of the case.” As this Court stated in

* The USEPA sent the samples to two laboratories. One of the

laboratories had poor quality control measures, and the USEPA threw out

that laboratory’s results as unreliable. The USEPA accepted the other

laboratory’s results. See C.A. App. 552, 557-58, 1443. That laboratory

ran three (3) different types of analytical tests on each of its ten (10)

samples, for thirty (30) tests in all. See C.A. App. 1443, 1448-51, 1457-

88. Nineteen (19) of those results list the detection limit and

unequivocally show nickel was not detected (“U” means “not detected.”

See C.A. App. 558. See id. at 603-04 for a definition of the term

“detection limit”). Ten (10) results are invalid because of trip blank

contamination, which meant those ten emulsion samples might also have

been accidentally contaminated by outside sources (“B” means trip blank

contamination—see id. at 559). No laboratory data sheet is provided in

the USEPA report for one of the test methods for one sample. The

district court mistakenly thought one data sheet found at C.A. App. 1456

showed nickel in Alcan’s emulsion. See C.A. App. 191 n. 4. That data

sheet, however, was for an analysis of a control sample (not the

emulsion) containing known quantities of various metals and that

analysis was performed to show the laboratory’s procedures were

properly calibrated.

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Daubert, 509 U.S. at 590, “Proposed testimony must be

supported by appropriate validation—i.e., ‘good grounds,’

based on what is known.” But the court-appointed expert

and government expert relied on a hypothesis that is at odds

with the measured data. This may be because neither

seemed aware of the relevant data. When the government

expert was cross-examined at trial, he maintained no

analyses for nickel had been performed on the emulsion

samples. See C.A. App. 1051-53. He acknowledged such

analyses had been done only after he was shown the USEPA

report. See C.A. App. 1055. The court-appointed expert

stated in his letter to the district court that the concentrations

of certain metals such as nickel had not been measured.

C.A. App. 1071. This was incorrect, as the nickel

concentrations were measured and were found to be below

the detection limit.

This Court stated in Daubert, “Scientific

methodology today is based on generating hypotheses and

testing them to see if they can be falsified...” 509 U.S. at

593 (citation omitted). Unlike many areas of the law where

there are no clear right or wrong answers, the laboratory tests

in this case do inform the courts whether this particular

hypothesis is right or wrong. The hypothesis is incorrect

because the data (the 19 laboratory analyses) do not support

it. Instead of throwing out the uncontroverted data, the

Second Circuit should have thrown out the hypothesis,

unless there is an independent reason to think the

measurements were flawed.

The Second Circuit’s failure to find the laboratory

tests dispositive was in error and counter to the principles in

Daubert. In light of the Second Circuit’s errors regarding

scientific models and laboratory testing, this Court needs to

provide guidance on the use of such models and test results

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to assure the integrity of future federal court decisions in

environmental cases.

CONCLUSION

For the foregoing reasons, the Court should grant the

petition for a writ of certiorari.

Dated: October 23, 2003

Respectfully submitted,

Susan Hajda Brock

Counsel of Record

306 East State Street, Suite 230

Ithaca, New York 14850

TEL.: (607) 277-3995

Counsel for Amicus Curiae

Atlantic States Legal Foundation, Inc.

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