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September 16, 2005.


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 ...

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