reasonable basis for apportioning liability. 964 F.2d at 267-71.
Alcan urged that there was no need for an evidentiary hearing on the divisibility of harm issue, asserting that in this case "not only is the harm divisible, but [Alcan's] relevant contribution to the injury to the Susquehanna River is zero." Id. at 269-70. The Third Circuit, however, determined that it was not the appropriate forum to decide this issue in the first instance, observing that "whether Alcan is correct that its emulsion poses no threat to the environment, even when added to other hazardous substances, should be thoroughly investigated on remand in the factual hearing concerning the divisibility of harm." Id. at 264 n. 20. Thus, this matter was remanded to reconsider "Alcan's effort to avoid liability otherwise established." Id. at 269.
Following remand, the parties engaged in some discovery. Both the Government and Alcan then moved for summary judgment. Following the filing of briefs, oral argument was conducted. This matter is ripe for disposition.
A. Summary Judgment Standards
Summary judgment should be granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is "material" if proof of its existence or non-existence might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). "Facts that could alter the outcome are material facts." Charlton v. Paramus Board of Education, 25 F.3d 194, 197 (3rd Cir.), cert. denied, 130 L. Ed. 2d 503, 115 S. Ct. 590 (1994). "Summary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. There is no issue for trial unless sufficient evidence favors the nonmoving party so that a jury could return a verdict for that party. Id., at 249. Rule 56 requires the entry of summary judgment where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
B. Alcan's Summary Judgment Motion on the Divisibility of Harm Issue
The crux of the parties' dispute pertains to whether Alcan's potential contribution to the environmental harm to the Susquehanna River is limited to an assessment of the impact of the trace-level metals found in its used emulsion or should encompass the environmental significance of the used emulsion as a whole. Alcan insists that its potential liability can only be determined in the context of those constituents of its used emulsion that are defined to be "hazardous substances" and which render inapplicable CERCLA's petroleum exclusion -- the heavy metals added in trace levels to its emulsion as a consequence of the manufacturing process. According to Alcan, the below background levels of the metal constituents of its used emulsion could not have, caused an environmental problem relating to metals at the Site. Alcan also asserts that the Government's response actions were unrelated to the presence of metals. Thus, argues Alcan, it cannot be held liable for any of the Government's response costs.
The Government responds by contending that the absence of environmental problems and response actions related to metals at the Site are immaterial. According to the Government, "it was the emulsion as a whole, not just the individual constituents in the emulsion, which contributed to the harm at the Site." (Brief in support of the Government's Summary Judgment Motion (Docket Entry 131) at 35.)
During oral argument, Alcan conceded that it cannot prevail on its summary judgment motion if the hazardous substance of concern is the used emulsion itself. (Tr. at 10.) Thus, the dispositive question here is whether the focus of the divisibility of harm issue should be on the emulsion as a whole or should be limited to its constituents.
Alcan draws support for its position from the concluding paragraph of the Third Circuit Opinion, in which it is stated that "if Alcan can establish that the hazardous substances in its emulsion could not, when added to other hazardous substances, have caused or contributed to the release or the resultant response costs, then it should not be liable for any of the response costs." 964 F.2d at 271 (emphasis added). But elsewhere it its Opinion the Court of Appeals indicated that the inquiry should be directed to whether "the emulsion did not or could not, when mixed with other hazardous wastes, contribute to the release and resultant response costs . . . ." Id. at 270 (emphasis in original and added). The court also stated that it would be Alcan's burden to show that "its emulsion poses no threat to the environment, even when added to other hazardous substances . . . ." 964 F.2d at 264 n. 20. Thus, the question of whether this Court's inquiry should be limited to the "hazardous substances" found in the used emulsion is not answered by the Third Circuit opinion.
Essentially, Alcan is arguing that even if its used emulsion, as a whole, is environmentally harmful, it should not be subject to any liability because the constituents that remove the used emulsion from CERCLA's petroleum exclusion could not be the cause for that environmental harm. This effort to dissect its waste material into components regulated by CERCLA and those not regulated by CERCLA is not consistent with the remedial purposes sought to be advanced by this legislation.
Furthermore, a holding that the dumping of a petroleum-based liquid that falls outside CERCLA's petroleum exclusion because of the addition of heavy metals in the manufacturing process is not subject to CERCLA liability because the metals did not cause any environmental harm cannot be reconciled with "the legislative history which indicates that the [petroleum] 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. As the Government pointed out during oral argument:
Once you add metals or any other foreign substance to the petroleum, if it doesn't exist in the state Congress and EPA recognize as the regulated state under other statutes, then it's a hazardous substance . . . . That's what makes it a hazardous substance.