The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge, District
This action under Sections 107 and 113 of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), 42 U.S.C. §§ 9607 and 9613, is a sequel to United
States v. Alcan Aluminum Corporation, Civ. A. No. 89-CV-1657, in
which this Court determined that Defendant Alcan Aluminum
Corporation ("Alcan") was jointly and severally liable for
response costs incurred by the United States Environmental
Protection Agency ("EPA") as a result of a release of hazardous
substances at the Butler Mine Tunnel Superfund Site ("the Butler
Tunnel Site"), located in Pittston Township, Pennsylvania. See
United States v. Alcan Aluminum Corp., 892 F.Supp. 648 (M.D.
Pa. 1995), aff'd, 96 F.3d 1434 (3d Cir. 1996) (Table)
(Alcan-Butler I). In this action (sometimes referred to as
"Alcan-Butler II"), the United States seeks to recover the
costs incurred since the entry of judgment against Alcan and in
favor of the United States in Alcan-Butler I. Pending before the Court is the United States' motion for
partial summary judgment based upon the preclusive effect of the
prior judgment in Alcan-Butler I. Alcan does not dispute that
the ordinary prerequisites for issue preclusion are satisfied
here, but argues against summary judgment on the ground that it
would be manifestly unjust to continue to hold Alcan liable when
the hazardous substances found in its waste product present at
the Butler Tunnel Site were below naturally-occurring levels.
This argument is essentially the same one that was rejected in
Alcan-Butler I, as well as by the Second Circuit in United
States v. Alcan Aluminum Corp., 315 F.3d 179 (2d Cir. 2003),
cert. denied, 540 U.S. 1103 (2004). Having once again
carefully considered Alcan's contentions, and concluding that no
manifest injustice is caused by adhering to the prior
determination of this Court, affirmed by the Third Circuit, and
supported as well by the Second Circuit ruling, the United
States' motion for partial summary judgment will be granted.
The pertinent facts are not in dispute. Alcan, an Ohio
corporation, manufactured aluminum sheet and plate products in
Oswego, New York, from 1965 through at least 1989. See United
States v. Alcan Aluminum Corp., 964 F.2d 252, 256 (3d Cir.
1992). In the manufacturing process, Alcan used an emulsion,
consisting of 95 percent deionized water and 5 percent mineral
oil. Id. During the manufacturing process, trace levels of
copper, chromium, cadmium, zinc and lead, "hazardous substances"
under CERCLA, were added to the emulsion. Id.
In the late 1970's, Alcan contracted with a waste hauler to
dispose of the used emulsion. Id. From mid-1978 to late 1979,
the waste hauler dumped approximately 32,500 to 37,500 gallons of
Alcan's used emulsion down a borehole located on property
operated by Hi-Way Auto Service. Other generators of waste
containing hazardous substances also use the borehole as an
illegal disposal site.
The borehole led to a network of deep underground mines and
related tunnels, pools and waterways bordering the east bank of
the Susquehanna River in Pittston, Pennsylvania. Id. at 255. The
mine workings were drained by the Butler Mine Tunnel, which fed
directly into the Susquehanna River. Id.
In September of 1985, approximately 100,000 gallons of oily
waste contaminated with hazardous substances were discharged from
the Butler Mine Tunnel into the Susquehanna River. To address
this release, EPA incurred response costs in excess of $1.3
million. Alcan's used emulsion was commingled with the waste
materials that were the subject of the response action.
In November, 1989, the United States brought Alcan-Butler I
against Alcan and 19 other defendants who purportedly generated
the waste materials dumped into the borehole and which made their
way into the Susquehanna River. The government settled with 19 of
the defendants, and then moved for summary judgment against
Alcan, the lone non-settling generator defendant. The United States asserted that Alcan was
jointly and severally liable for the remaining unreimbursed
response costs of $473,790.18, or more than 35 percent of the
total response costs. Alcan cross-moved for summary judgment,
contending that its waste emulsion was not a "hazardous
substance," as that term is defined by CERCLA, because the levels
of copper, cadmium, chromium, lead and zinc found in the emulsion
were below naturally-occurring levels.
By Memorandum and Order dated May 8, 1991, this Court ruled in
favor of the United States, and Alcan appealed. The Third Circuit
concluded that Alcan was subject to liability because its used
emulsion contained elements defined as "hazardous substances" in
42 U.S.C. § 9601(14). 964 F.2d at 259-64. The Court of Appeals
specifically rejected Alcan's argument that "it should not be
held liable for response costs incurred by the Government in
cleaning the Susquehanna River because the level of hazardous
substances in its emulsion was below that which naturally occurs
and thus could not have contributed to the environmental injury."
Id. at 259. The Third Circuit reached this conclusion based
upon the plain language of CERCLA, its legislative history, EPA
regulations and EPA policy. Id. at 271.
The Third Circuit also rejected Alcan's contention that the
United States must "prove that Alcan's emulsion caused or
contributed to the release or the Government's incurrence of
response costs." Id. at 264 (italics in original). Once again,
the Third Circuit relied upon the clear terms of the statute and legislative history, as well
as a consistent line of cases. Id. at 264-66.
The Third Circuit, however, declined to affirm the entry of
judgment in favor of Alcan at that time. Instead, the court
concluded that Alcan should be given an opportunity "to avoid
liability otherwise established" by showing "that the emulsion
did not or could not, when mixed with other hazardous waste,
contribute to the release and the resultant response
costs. . . ." Id. at 269, 270 (italics in original). If such a
showing was made, Alcan would not be responsible for any response
costs. Id. Alcan was also afforded the opportunity to limit its
liability by showing that the harm in question was divisible and
that the damages were capable of some reasonable apportionment.
Id. at 271.
On remand, both Alcan and the United States again moved for
summary judgment. Alcan reiterated its argument that its
liability could be determined only in the context of the
constituents of its used emulsion that are defined to be
"hazardous substances," and because the heavy metals found in its
hazardous substance were below background levels, no liability
could be imposed. In this regard, Alcan conceded that it could
not prevail "if the hazardous substance of concern is the used
emulsion itself." 892 F. Supp. at 654. By opinion dated June 28,
1995, this Court rejected Alcan's position, finding that "the
environmental harm posed by the medium that contains
CERCLA-defined `hazardous substances' cannot be ignored." Id.
at 655. Because Alcan had presented neither evidence nor argument that its used emulsion was environmentally benign,
Alcan's summary judgment motion was denied. Id. at 655-56.
This Court then turned to the question of divisibility of harm.
Again, Alcan relied exclusively on its position that there can be
no liability because its emulsion did not contain hazardous
substances at levels above those found in nature. Alcan, although
certainly accorded the opportunity to do so, did not present
evidence on such pertinent matters as the "relative toxicity,
migratory potential and synergistic capacity" of the emulsion.
964 F.2d at 269. Accordingly, the United States' motion for
summary judgment was granted; Alcan was determined to be jointly
and severally liable for all response costs; and judgment was
entered in favor of the United States for the full amount of its
unreimbursed response costs, i.e., $473,790.18.
Alcan then moved for reconsideration. Alcan asserted, inter
alia, that it could not be held liable at all because the EPA
response action did not specifically target Alcan's emulsion.
Because this fact was not pertinent to CERCLA liability, the
motion for reconsideration was denied. (United States v. Alcan
Aluminum Corp., Civ. A. No. 89-1657 (M.D. Pa. Oct. 4, 1995).) In
denying Alcan's motion for reconsideration, this Court observed:
Alcan's strident rhetoric . . . ignore[s] the fact
that Congress conditioned liability on the release of
hazardous substances. Alcan's emulsion contains
hazardous substances and was released into the
environment at the Site. Under the statutory scheme, a release of a hazardous substance may lead
to liability, even joint and several liability, for a
polluter whose contaminants do not have chronic
adverse consequences for the environment. Common law
principles of ...