Dеfendant Alcan Aluminum Corporation (Alcan, company or appellant) appeals from a judgment of the United States District Court for the Northern District of New York (McAvoy, J.) entered on November 14, 2000, finding the company jointly and severally liable to plaintiffs United States of America and the State of New York (collectively, the government), for response costs incurred at two hazardous waste sites. It might be said that in writing this opinion we cover ground we have already worked. On a prior occasion we thought that we had thoroughly plowed the field of CERCLA liability, which is the subject of this appeal. But, on reading the briefs of the parties and those filed by amici supporting appellant’s arguments urging reversal, we think it is obviously necessary to plow the same field again.
BACKGROUND
This appeal is the latest round of litigation to result from the efforts of the United States and the State of New York to recover response costs incurred in remedying environmental contamination at two hazardous waste disposal sites in Oswego County, in central New York. This case has had a long litigation history, detailed in numerous judicial opinions. 1 Because we assume the readers’ familiarity with the facts and procedural history set out in those opinions, our recounting of what has been earlier explained will be brief.
This litigation began in 1987 when the government filed suit against 83 business entities to recover response costs under § 107 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9607 (as amended), in connection with the cleanup of an inactive hazardous waste site formerly owned by Pollution Abatement Services of Oswego, Inc. From 1970 to 1977, Pollution Abatement Services operated a waste disposal and treatment facility on 15 acres of land in Oswego County, New York. Chemical wastes from a variety of sources were stored, processed, and disposed of there. Unfortunately, owing to liquid waste spills, waste lagoon overflows, and structural deterioration, the site became contaminated. Heavy metals and poly-chlorinated biphenyls (PCBs) are two of the several contaminants detected there. In 1976 the government began response and cleanup activities at the Pollution Abatement Services site (PAS).
Alcan, a manufacturer of aluminum sheet and plate products in Oswego, New York, used PAS during the 1970s and arranged for disposal or treatment of 4.6 *183 million gallons of its waste emulsion at the PAS site. Although this emulsion, which rеsulted from Alcan’s manufacturing processes, consisted mainly of water and oil, it also contained aluminum, cadmium, chromium, copper, lead, and zinc, substances designated as “hazardous” under CERC-LA.
Of the 83 entities charged as potentially responsible parties in the government’s 1987 lawsuit, only defendant Alcan declined to become a party to the consent decree proposed by the government. On January 15, 1991 the district court granted summary judgment in favor of the government against Alcan, finding Alcan jointly and severally liable for the balance of the government’s response costs that had not been reimbursed to it by the other 82 parties to the consent decree.
See United States v. Alcan Aluminum Corp.,
At the time we decided Alcan another case, United States v. Alcan Aluminum Corp., 91-CV-1132 {Mcan-Fulton), was pending before the district court. At issue were cleanup costs incurred by the government at a Superfund site in Fulton, New York. The Fulton Terminal operated from 1972 to 1977 as a staging and storage area for hazardous waste scheduled for incineration at PAS. Approximately 70,000 gallons of Alcan’s waste emulsion were shipped directly to the Fulton site from Alcan’s Oswego manufacturing plant during 1972 and 1973. On December 1, 1993 the district court- consolidated Mcan-PAS and Alcan-Fulton.
Following consolidation of the PAS аnd Fulton cases, the district court granted the government’s summary judgment motion only on the issue of Alcan’s liability to the government for its response costs at Fulton.
See United States v. Alcan Aluminum Corp.,
DISCUSSION
On appeal Alcan challenges essentially every’ aspect of the district court’s many rulings. After carefully reviewing Alcan’s arguments we are not persuaded that any of them warrant reversal of the judgment. In the following discussion we address the two we consider the most important issues raised on appeal, namely, the divisibility of the harm at PAS and Fulton and the constitutionality of retroactive CERCLA liability. We think it unnecessary to address the remainder of Alcan’s arguments either because they have been sufficiently addressed in the district court’s decisions or *184 because we find them to be wholly without merit. 2
I Divisibility of Harm
A. Statutory Threshold for Liability
CERCLA § 9607 is a strict liability statute. It imposes liability on “any person who by contract, agreement, or otherwise arranged for disposal or treatment” of hazardous substances “from which there is а release, or a threatened release which causes the incurrence of response costs.” § 9607(a)(3) and (4). As we have explained previously, the plain meaning of this provision permits the government to recover response costs from a defendant like Alcan if the government proves “(1) there was a release or threatened release, which (2) caused incurrence of response costs, and (3) ... the defendant generated hazardous waste аt the clean-up site.”
Al-can,
At this juncture in the instant litigation it has been established that Alcan is liable to the government under the clear language of CERCLA § 9607 for response costs incurred at both PAS and Fulton. Alcan and the government have stipulated that there was a release of contaminants at PAS, that the govеrnment incurred costs in response to this release, and that Alcan generated a waste emulsion that was disposed of at the site. The parties have also stipulated that Alcan’s waste emulsion contained cadmium, chromium, copper, lead, and zinc. Alcan does not dispute that these elements and their respective compounds are identified as “hazardous substances” under CERCLA. The district court — ruling on summary judgment motions of the United States and the State of New York morе than a decade ago — found Alcan liable for response costs at PAS.
Alcan-PAS,
With respect to Fulton, Alcan and the government have similarly stipulated that a release occurred there, that this release resulted in the incurrence of government response costs, and that Alcan generated waste that was delivered to the site. Because the Alcan waste emulsion shipped to Fulton was identical to thе waste emulsion shipped to PAS — and thus contained the hazardous substances cadmium, chromium, copper, lead, and zinc— Alcan is also liable pursuant to CERCLA § 9607 for the government’s response costs incurred at Fulton.
B. Divisibility Standard
A determination holding Alcan liable under CERCLA § 9607 for response costs incurred by the government at PAS and Fulton does not resolve the issue of liability completely. As we explained previously, courts have added a “common law gloss” to the statutory framework of CERCLA.
Alcan,
The
Restatement (Second) of Torts
§ 433A (1965), is frequently cited by-.those courts endeavoring to determine whether a party that has contributed hazardous substances to a multi-party waste site should be held jointly and severally liable for the remediation costs incurred there.
See, e.g., United States v. Alcan Aluminum Corp.,
Based upon the common law principles of divisibility and apportionment embodied in the Restatement, we identified in our previous decision precisely how the issue of Alcan’s liability was to be resolved. We stated that Alcan may escape joint and several liability “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.”
Alcan,
Our previous decision presented two additional qualifications material to the district court’s liability determination. First, although we declared that it would be possible for Alcan to avoid liability entirely, we specified that such would be a “special exception” that would permit Alcan to escape payment only if the company could prove that “its pollutants did not contribute more than background contаmination and also cannot, concentrate.”
Id.
Second, in the . event that Alcan did not qualify for the special exception,' .we ruled that the company could nonetheless “present evidence relevant to establishing divisibility of harm.”
Id.
We identified several types of proof that would be relevant to such a showing of divisibility, including “relative toxicity, migratory potential, and synergistic capacities of the hazardous substances at the site.” .
Id.
(citing
Alcan-Butler,
Further, our previous
Alcan
opinion made it clear that Alсan bears the ultimate burden of establishing -a reasonable basis for apportioning liability and that the government has no burden of proof with respect to what caused the release of hazardous waste and triggered response costs.
C. Alcan Standard Applied
Alcan’s divisibility burden has grown heavier as this- litigation has progressed. In this case’s earliest stages Alcan’s liability wаs premised on the presence of metals in the company’s waste emulsion, specifically cadmium, chromium, copper, lead and zinc.
See Alcan-PAS;
Although Alcan strongly disputes the district court’s findings of fact with respect to the presence of nickel and PCBs in its waste emulsion, we review the district court’s findings of fact for clear error and a finding of fact is only “clearly erroneous” when “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.”
United States v. United States Gypsum Co.,
The finding that Alcan’s waste emulsion contained PCBs is particularly significant because — as the district court properly ruled — it disqualifies Alcan from escaping all CERCLA liability.
See Alcan-Consolidated,
Even though the company is not permitted to escape liability altogether, we have also recognized that Alcan can nonetheless limit its liability by demonstrating that the harm incurred at PAS or Fulton was divisible.
Alcan,
We agree with the district court that Alcan failed to demonstrate that the harm done at PAS and Fulton was divisible. Alcan does not claim that the harm caused by its emulsion was somehow distinct from the harm caused by other hazardous substances at the sites, nor does the company make any real effort to identify the extent to which its waste contributed to a single harm. Rather, both at trial and again on appeal, Alcаn simply contends that its *187 waste emulsion was benign and “really ... just like homogenized milk.” It argues therefore that its contribution to the harm and appropriate portion of the damages is readily identifiable; and that its portion is zero. Appellant also presents this argument in an alternative form, analyzing the properties, of the constituents of its waste emulsion separately and contending that such analysis similarly supports a conclusion that its emulsion did not contribute to the harm at PAS or Fultоn.
In our view appellant’s argument on the divisibility of the harm at PAS and Fulton is untenable in two critical respects. First, in light of the district court’s conclusion that the waste emulsion contained PCBs, it is unreasonable for Alcan to continue to insist that its waste emulsion was harmless. Second, appellant’s analysis— focusing individually on each constituent of its waste — does not provide an acceptable basis for establishing divisibility. CERC-LA cases typically involve numerous hazardous substance generators аnd the disposal of a variety of wastes at a single site. Because the various wastes frequently commingle and interact, “the fact that a single generator’s waste would not in itself justify a response is irrelevant ... as this would permit a generator to escape liability where the amount of harm it engendered to the environment was minimal, though it was significant when added to other generators’ waste.”
Alcan-Butler,
The same logic that prevents a polluter from considering the effects of its wastе in isolation from the other contaminants at a site also prevents the company from analyzing the constituents of its waste individually without regard to the effects of the “emulsion as a whole.”
See Alcan-Consolidated,
Our conclusion that Alcan is jointly and severally liable for the harm caused at PAS and Fulton, is based upon the district court’s finding that
[t]he evidence suggested that Alcan’s emulsion was a more aggressive solvent than either water ... or oil ... because, in an emulsion phase, oil and water have a greater capacity to absorb contaminants than either water or oil alone. Alcan’s emulsion,, therefore, absorbed the contaminants at the sites and facilitated their transport throughout. In so doing, Alcan’s emulsion contributed to the breadth of contamination at both PAS and Fulton. In other words, even if the hazardous substances in Alcan’s emulsion themselves did not contribute to the response costs at the sites (which the PCBs and nickel did), the emulsion as a whole contributed to both the release and response costs.
Alcan-Consolidated,
*188
cleanup costs incurred at a site where waste emulsion from the company’s Oswe-go, New York facility was discharged.
See United States v. Alcan Aluminum Corp.,
II Constitutionality of CERCLA
Before this case went to trial on the issue of divisibility, Alcan moved to dismiss the government’s complaint pursuant to Fed.R.Civ.P. 12(b)(6) asserting that, in light of the Supreme Court’s decision in
Eastern Enterprises v. Apfel,
In
Eastern Enterprises
a deeply divided Supreme Court struck down retroactive application of the Coal Industry Retiree Health Benefit Act of 1992 (Coal Act), 26 U.S.C. §§ 9701-22.
Alcan’s invocation of the
Eastern Enterprises
decision puts a new spin on an old argument: many potentially responsible parties have challenged the constitutionality of retroactive CERCLA liability. A review of the case law reveals that, historically, this has not been a winning argument. Prior to the decision in
Eastern Enterprises,
a number of courts held that CERCLA applies retroactively, and that such construction did not violate the Constitution.
See, e.g., United States v. Olin Corp.,
Given the extensive case law addressing and upholding the constitutionality of retroactive CERCLA liability, the question is whether
Eastern Enterprises
has changed the constitutional terrain and effectively overruled prevailing authority. The district court thought not,
see United States
*189
v. Alcan Aluminum Corp.,
Although a majority in
Eastern Enterprises
was willing to declare the retroactive liability scheme of the Coal Act unconstitutional, no single rationale commanded а majority. Only four justices voted to strike down the statute as unconstitutional based upon a takings clause analysis.
See E. Enter.,
With respect to the Supreme Court’s analysis in Eastern Enterprises, it is difficult to discern a general principle of law that supports appellant’s claim that retroactive CERCLA liability is unconstitutional. Because the substantive due process reasoning presented in Justice Kennedy’s concurrence is not a logical subset of the plurality’s tаkings analysis, no “common denominator” can be said to exist among the Court’s opinions. The only binding aspect of such a splintered decision is its specific result, and so the authority of Eastern Enterprises is confined to its holding that the Coal Act is unconstitutional as applied to Eastern Enterprises.
Significantly, two appellate courts have failed to hold the Coal Act unconstitutional as it applies to other coal mining corporations.
See Anker Energy Corp. v. Consolidation Coal Co.,
As noted, courts considering the issue prior to the
Eastern Enterprises
decision consistently agreed that the retroactive liability scheme of CERCLA is constitutional. Like this Court, several other courts have been asked to reconsider this precedent in light of
Eastern Enterprises.
Those courts have uniformly held that CERCLA continues to pass constitutional muster.
See United States v. Dico, Inc.,
We are in accord with this consistent authority that both pre- and postdates Eastern Enterprises. As a consequence, holding Alcan jointly and severally liable under CERCLA for the cleanup costs incurred at PAS and Fulton does not result in an unconstitutional taking adverse to Alcan, or a deprivation of its right to duе process.
CONCLUSION
For the reasons stated, the judgment of the district court is affirmed.
Notes
.
See, e.g., United States v. Alcan Aluminum Corp.,
. Those arguments are: (1) that expert testimony was improperly admitted; (2) that res judicata barred the government from introducing on remand evidence that Alcan’s emulsion contained additional hazardous substances; (3) that the district court applied an incorrect standard in deciding the motion for reconsideration; and (4) that the district court erred in not considering its contention that the government's response measures were inconsistent with the National Contingency Plan.