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UNITED STATES v. ALCAN ALUMINUM CORP.

June 28, 1995

UNITED STATES OF AMERICA, Plaintiff,
v.
ALCAN ALUMINUM CORPORATION, Defendant.



The opinion of the court was delivered by: THOMAS I. VANASKIE

 This cost recovery action by the United States (the "Government") under Section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607(a), is before this Court on remand from the United States Court of Appeals for the Third Circuit. This Court was directed to determine whether defendant Alcan Aluminum Corporation ("Alcan") can avoid or limit liability that otherwise may be imposed as a result of the fact that its used oil emulsion had been commingled with other oily wastes containing hazardous substances which discharged from a mine tunnel into the Susquehanna River in 1985 in the wake of Hurricane Gloria. See United States v. Alcan Aluminum Corp., 964 F.2d 252, 270-71 (3rd Cir. 1992) ("Alcan-Butler"). Our Court of Appeals indicated that if Alcan established that its used "emulsion did not or could not, when mixed with other hazardous wastes, contribute to the release and the resultant response costs, then Alcan should not be responsible for any response costs." Id. at 270 (emphasis in original). In remanding this matter, the Third Circuit plainly contemplated that an evidentiary hearing would be conducted on the "intensely factual" issue of "whether there is a reasonable basis for limiting Alcan's liability based on its personal contribution to the harm to the Susquehanna River." Id. at 269.

 Contrary to the expectations of the Third Circuit that an evidentiary hearing would be conducted on such complex matters as the relative toxicity, migratory potential, and synergistic capacity of the hazardous waste at issue, Alcan has reiterated its previously articulated argument that, as a matter of law, it cannot be held liable for any of the costs incurred by the Government in responding to the release of oily wastes into the Susquehanna River. (Docket Entry 135.) The crux of Alcan's argument is that those constituents of its oily waste that are defined to be "hazardous substances" under CERCLA (metals such as lead, cadmium, chromium, copper and zinc) are present in the used emulsion at concentrations below the naturally-occurring levels of those metals so that the presence, of those metals in its used emulsion could not have caused any environmental harm. Alcan also asserts that liability may not be imposed against it because the Environmental Protection Agency ("EPA") did not direct any response efforts to the removal of metals following the 1985 discharge. Alcan acknowledges that the arguments presented in its summary judgment motion are very similar to arguments it pursued before the Third Circuit, i.e., that its used emulsion did not cause any injury to the Susquehanna River because "'below ambient levels of any substance can never cause or contribute to a release or response costs.'" Id. at 270.

 The Government has also moved for summary judgment on the remanded issue. (Docket Entry 131.) The gist of the government's argument is that this Court's inquiry is not to be restricted to the below ambient level of metals in the emulsion. According to the Government, "it was the emulsion as a whole, not just the individual constituents in the emulsion, which contributed to the harm . . . ." (Brief in Support of Government's Summary Judgment Motion (Docket Entry 131) at 35.) Asserting that Alcan has failed to present any evidence on matters germane to a determination that its liability should not be joint and several, such as the percentage of the volume of total waste represented by Alcan's waste, the relative toxicity of Alcan's waste compared to other constituents of the oily mass, etc., the government maintains that it is entitled to summary judgment.

 It is the law of this case that the addition of metals below ambient levels to Alcan's emulsion during the manufacturing processes brings the used emulsion within CERCLA's purview. 964 F.2d at 266-67. In assessing relative responsibility for environmental harm, therefore, the focus must be on the emulsion as a whole, and not its individual constituents. Because there is no evidence that the used emulsion was environmentally safe, and in view of Alcan's failure to offer any other evidence on the question of whether there is a reasonable basis for determining the contribution of its used emulsion to the pollution of the Susquehanna River, Alcan's summary judgment motion will be denied and the Government's summary judgment motion will be granted. *fn1"

 I.

 FACTS AND PROCEDURAL HISTORY

 A. Statement of the Facts

 The factual background of this case is set forth in the Third Circuit's Opinion, 964 F.2d at 255-57, and familiarity with that Opinion is assumed. It is sufficient for purposes of this Memorandum to recite only the following salient facts:

 . In its manufacturing processes, Alcan used an emulsion consisting of 95% deionized water and 5% mineral oil. *fn2"

 . During the manufacturing process, trace levels of copper, chromium, cadmium, zinc and lead were added to the emulsion. *fn3"

 . Copper, chromium, cadmium, lead and zinc are hazardous substances under CERCLA. 964 F.2d at 256.

 . The level of concentration of these hazardous substances in Alcan's used emulsion was below the naturally-occurring, or ambient, levels of these hazardous substances.

 . In the late 1970's, approximately 2 million gallons of oily wastes containing hazardous substances were dumped down an air shaft or "borehole" leading to a network of coal mines and related tunnels, caverns, pools and waterways bordering the east bank of the Susquehanna River in Pittston, Pennsylvania. (Hereinafter referred to as the "Site.") The mine workings are drained by the Butler Tunnel, which discharges directly into the Susquehanna River.

 . From mid-1978 to late 1979, approximately 32,500 to 37,500 gallons of Alcan's used emulsion was dumped down the borehole leading to the mine workings serviced by the Butler Tunnel. *fn4"

 . In September of 1985, in the wake of Hurricane Gloria, approximately 100,000 gallons of oily waste contaminated with hazardous substances were discharged from the Butler Tunnel into the Susquehanna River.

 . EPA's response costs in addressing this release totalled $ 1,302,290.18. Response actions, included "'containing an oily material on the river through the use of absorbent booms; immediately removing and disposing of 161,000 pounds (over 80 tons) of oil and chemical-soaked debris and soil, monitoring, sampling and analysis of air and water, and conducting hydrogeologic studies.'" 964 F.2d at 256-57.

 . Alcan's used emulsion was commingled in the waste materials discharged into the Susquehanna River in September of 1985. *fn5"

 . The waste oils removed from the Susquehanna River contained cadmium, chromium, copper, lead and zinc. *fn6"

 B. PROCEDURAL HISTORY

 In November, 1989, the Government brought this action against 20 defendants who purportedly generated the waste materials dumped into the borehole and which discharged into the Susquehanna River. Included among the defendants was Alcan. The government settled with 19 of the defendants, and then moved for summary judgment against Alcan, the lone non-settling defendant. The government sought a determination that Alcan was jointly and severally liable for the remaining unreimbursed response costs of $ 473,790.18, or more than 35% of the total response costs of $ 1,300,000. Alcan cross moved for summary judgment, contending that its waste emulsion was not a "hazardous substance" as defined by CERCLA because levels of copper, cadmium, chromium, lead and zinc were below naturally-occurring levels.

 Adopting the reasoning set forth in United States . Alcan Aluminum Corp., 755 F. Supp. 531 (N.D.N.Y. 1991), aff'd in part and rev'd in part, 990 F.2d 711 (2nd Cir. 1993), this Court found that Alcan's used emulsion was a hazardous substance under CERCLA and that Alcan was jointly and severally liable for the Government's unreimbursed response costs because the environmental harm caused by the commingled wastes was indivisible. Accordingly, judgment was entered against Alcan for $ 473,790.18.

 On appeal, the Third Circuit affirmed this Court's holding that there is no threshold quantitative requirement for a waste to be defined as a "hazardous substance." Thus, because Alcan's used emulsion admittedly contained elements that fall within the definition of "hazardous substances" in CERCLA, see 42 U.S.C. §§ 9601(14), the presence of its used emulsion in the commingled mass of waste exposed Alcan to liability. In this regard, the appellate court rejected Alcan's argument that the Government must prove that Alcan's oily waste caused or contributed to the "release" or the government's incurrence of response costs. *fn7" Instead, as our Court of Appeals explained, "the Government must simply prove that the defendant's hazardous substances were deposited at the site from which there was a release and that the release caused the incurrence of response costs." 964 F.2d at 266 (emphasis in original).

 The Third Circuit also rejected Alcan's contention that its used emulsion was excluded from CERCLA liability because it constituted "petroleum," which is exempted from the definition of hazardous substances in 42 U.S.C. § 9601(14). Specifically, the court ruled that because Alcan's manufacturing processes added hazardous substances such as cadmium, chromium, copper, lead and zinc to the emulsion, albeit at below-ambient levels, the petroleum exclusion was inapplicable. In this regard, the court noted that "the relevant legislative history . . . indicates that the exclusion was intended for oil spills, not for releases of oil which has become infused with hazardous substances through use." 964 F.2d at 267.

 Responding to Alcan's assertion that extending CERCLA to materials that contained only ambient levels of hazardous substances would subject parties to joint and several liability even if the materials posed no threat to the environment, the Third Circuit held that the divisibility of harm rule set forth in Section 433A of the Restatement (Second) of Torts was applicable. The court explained that a party could avoid or limit liability by showing that its ...


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