United States v. Alcan Aluminum Corp.United States v. Alcan Aluminum Corp.
MEMORANDUM-DECISION AND ORDER
Introduction
By this action, the United States of America and the State of New York initially sought to recover from some 83 business entities response costs under section 107 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9607 (as amended), in connection with the clean-up of an inactive hazardous waste site formerly owned by Pollution Abatement Services of Oswe-go, Inc. (PAS) and currently owned by the County of Oswego. At the time the action was commenced, those costs exceeded $12 million. Shortly after commencement, plaintiffs entered into a consent decree with 82 of the defendants recovering some $9,105,308.17; Alcan Aluminum Corp. was the lone holdout and the suit continued as against it for the difference between the stipulated amount of incurred costs ($12,-319,551.04) and the amount recovered in the partial settlement. Additional costs have been incurred since then and currently total in excess of $13 million. Discovery having been concluded, the parties’ dispute (in the main action) is before the court on cross motions for summary judgment. The third-party action is also before the court on cross motions for summary judgment. For the reasons that follow, the court grants the motions of the United States and the State of New York as against Alcan Aluminum Corp. in their entirety in the main action and thereby denies Alcan’s motion; insofar as the third-party action is concerned, the court grants Alcan’s motion to the extent of declaring that third-party defendant Cornell University is also liable for its fair share of response costs incurred by the United States and the State of New York and accordingly denies the motion of Cornell University. A hearing is necessary to determine the amount of that fair share.
Background
A. Historical
From approximately 1970 until 1977, various chemical waste materials were received for disposal or treatment at the PAS site. As a result of PAS operations, the site’s surface became contaminated by hazardous substances because of wastes leaching from drums, lagoons being overtopped and surface runoff.
In 1976 and 1977, the United States began undertaking response measures at the PAS site; in 1978, the State, in conjunction with the United States, conducted a surfi-cial cleanup which included removing 4,000 drums from the site; in 1982, the United States and the State entered into a formal cooperative agreement to address the environmental problem posed by the PAS site. This lawsuit followed.
B. Statutory
Through CERCLA, enacted in 1980 as a comprehensive response to the environmental threat posed by the disposal of hazardous substances, Congress has provided the federal government and the States, through cooperative agreements with the Environmental Protection Agency, with an effective means to clean up toxic waste sites around the country and with the authority to force those persons responsible for creating the hazardous conditions to bear the cost of the cleanups.
See United States v. Monsanto Co.,
Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section—
(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment ... of hazardous substances owned or possessed by such person ... at any facility ... owned or operated by another party or entity and containing such hazardous substances
... from which there is a release, or threatened release which causes the in-currence of response costs, of a hazardous substance, shall be liable for—
(A) all costs of removal or remedial action incurred by the United States Government or a State ... not inconsistent with the national contingency plan[.]
42 U.S.C. § 9607(a)(3) (Supp.1990);
see also Shore Realty,
As various courts have noted, liability under CERCLA, which is strict,
Shore Realty,
1) the PAS site is a “facility” within the meaning of 42 U.S.C. § 9601(9)(B);
2) a “release”, see 42 U.S.C. § 9601(22), or “threatened release” of hazardous substances, see 42 U.S.C. § 9601(14), has occurred at the PAS site;
3) the release or threatened release has caused the United States and the State of New York to incur response costs, see 42 U.S.C. § 9607; and
4) Alcan falls with at least one of the four classes of responsible persons described in 42 U.S.C. § 9607(a),
see United States v. Aceto Agricultural Chemicals Corp.,
Discussion
A. Alcan’s liability
Much of what plaintiffs need to prove in order for liability to be imposed on Alcan is not in dispute. In its attempt to resist liability, Alcan argues essentially that the concentrations of cadmium, chromium, copper, lead and zinc in its emulsion are less than background levels and, therefore, do not constitute hazardous substances under CERCLA. Slightly more specifically, Al-can seeks to have this court read into the statutory and regulatory scheme (1) a requirement that in order for the listed substances to be deemed “hazardous” these substances must be present in a certain amount or concentration and (2) a requirement that the listed substance be present in a “harmful” form, after all, defendant argues, several of these substances and many listed by the EPA occur naturally and are even essential to the continued existence of life. Underlying defendant’s position, however, is, perhaps, the more fundamental argument, related to its argument that substances must be in a specific form in order to be deemed “hazardous,” that its waste oil emulsion and the substances it concedes were contained therein are not specifically listed in the 40 C.F.R. § 302.4 Table of Hazardous Substances and, therefore, the court must apply the provisions of 40 C.F.R. § 302.4(b) pertaining to unlisted substances in order to determine whether its waste oil emulsion and the cadmium, chromium, copper, lead and zinc contained therein are “hazardous substances” under CERCLA. This is so, defendant argues, because the “generic headings” in the Table 302.4 list do not have a Chemical Abstract Service Registry Number, a Reportable Quantity or a Resource Conservation and Recovery Act number. For the reasons that follow, defendant’s position is rejected as meritless; suffice it to say that the court will not rewrite the statutory and regulatory scheme to suit defendant’s needs and desires. Congress and the EPA, through a congressional grant of authority, have spoken; the court’s task is to apply the law in as straightforward a manner as possible, consistent with the dictates of the Constitution, so as to give full effect to the policy underlying CERCLA.
A “hazardous substance” is defined in CERCLA by reference to its provisions and to that of other environmental statutes. Specifically, Congress has provided that
[t]he term “hazardous substance” means (A) any substance designated pursuant to section 1321(b)(2)(A) of Title 33, (B) any element, compound, mixture, solution, or [t]he term “hazardous substance” means (A) any substance designated pursuant to section 1321(b)(2)(A) of Title 33, (B) any element, compound, mixture, solution, or substance designated pursuant to section 9602 of this title, (C) any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act (but not including any waste the regulation of which under the Solid Waste Disposal Act has been suspended by Act of Congress), (D) any toxic pollutant listed under section 1317(a) of Title 33, (E) any hazardous air pollutant listed under section 112 of the Clean Air Act, and (F) any imminently hazardous chemical substance or mixture with respect to which the Administrator hastaken action pursuant to section 2606 of Title 15. The term does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of this paragraph, and the term does not include natural gas, natural gas liquids, liquified natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas).
42 U.S.C. § 9601(14) (Supp.1990);
see also id.
§ 9602(a) (Supp.1990) (authorizing the Administrator to designate additional substances which, when released into the environment, may present substantial danger to the public health or welfare or the environment). Hazardous substances under CERCLA, then, include all substances so designated under other statutes pursuant to the grant of authority contained therein in addition to substances so designated by the EPA pursuant to the grant of authority under 42 U.S.C. § 9602(a).
See United States v. Monsanto Co.,
In response to defendant’s argument, suffice it to say that “[t]he plain statutory language fails to impose any quantitative requirement on the term hazardous substance,”
Amoco Oil,
The court notes in passing its disagreement with the court in
City of New York v. Exxon Corporation
to the extent that that court appears to have held, at least preliminarily, that 40 C.F.R. § 302(b) and not section 302(a) is applicable to determining whether Alcan’s waste oil emulsion or the specific compounds in it are hazardous substances under CERCLA because the waste oil emulsion and the specific compounds found therein are not squarely listed in Table 302.4.
See
The court also notes its disagreement with the court in
Amoco Oil
to the extent that that court has seemingly read into the language of 42 U.S.C. § 9607(a)(4) the re
As part of its effort to resist liability, defendant also argues that the “petroleum exception” to the term “hazardous substance” is applicable here. The pertinent CERCLA provision, 42 U.S.C. § 9601(14) (defining “hazardous substance”) (quoted above), states that “[hazardous substance] does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of this paragraph_” Specifically, defendant argues that its emulsion contains levels of metals designated as hazardous substances well below that found in virgin oil and, therefore, its “waste is clearly within the petroleum exclusion.” Defendant’s Memo of Law at 11. Disposing of this argument need not detain the court for long.
Suffice it to say that a plain reading of this “exclusionary” provision does not warrant inclusion of oil which has become contaminated with hazardous substances through use; rather, what does come within the ambit of the “petroleum exclusion” is the oil or oil fraction which naturally contains the hazardous substance(s) unless the fraction itself is specifically listed or designated as a hazardous substance. This interpretation of the “petroleum exclusion” appears to be in line with the legislative history, scant as it is, which indicates that the “petroleum exclusion” is an exclusion from CERCLA for “oil spills” themselves and not for releases of oil which through use has become contaminated with (hazardous) substances not naturally found in oil. See, e.g., S.Rep. No. 848, 96th Cong., 2d Sess. 30-31 (1980); 126 Cong.Rec. H11787, H11790, H11792, H11793, H11795, H11796, H11798 (daily ed. December 3, 1980); 126 Cong.Rec. S10578 (daily ed. August 1, 1980); id. at S10845 (daily ed. August 5, 1980); id. at S14963, S14967, S14974, S14980 (daily ed. November 24, 1980).
Lastly, defendant advances two constitutional challenges to imposition of liability: first, that the statute is void for vagueness because it does not adequately define “hazardous substance”; second, that the “selective” enforcement of CERCLA against it, the government choosing not to name other, allegedly more culpable entities — e.g., Cornell University — as defendants, violates the principle of equal protection of the laws.
Neither challenge has merit. The void for vagueness challenge fails because, in the court’s view, the statute and regulations do not fail to give a person of ordinary intelligence fair notice of what is required and forbidden.
See Papachristou v. City of Jacksonville,
As for defendant's other constitutional challenge, putting aside the broad discretion the government has regarding the exercise of its power to prosecute,
see Wayte v. United States,
In sum, the cadmium, chromium, copper, lead and zinc which defendant admits were in its emulsion are hazardous substances under CERCLA — regardless of the form in which these metals were present and notwithstanding the very low levels of concentration — by virtue of their designation as toxic pollutants under the Clean Water Act and their appearance on the Table 302.4 List of Hazardous Substances. In the court’s view, the statutory language is clear, rendering resort to legislative history, which in any way comports with the court’s understanding of the statutory scheme,
see
S.Rep. No. 848, 96th Cong., 2d Sess. 24-27 (1980) (“[Sjubstanees listed as hazardous or toxic under certain other Federal laws are incorporated by reference and upon enactment of this bill such substances become statutorily defined as hazardous substances for the purposes of this bill. And the release of any of them or any constituent of them invokes the ... response provisions and any costs of removal or remedial action or any damages are subject to the liability provision of the bill.”), entirely unnecessary,
see United States v. Monsanto,
Hazardous substances, released by defendant, were present at the PAS site, and the government responded by cleaning up the site, see Declaration of Raymond E. Lupe with RI/FS attached as exhibit (establishing a nexus between defendant’s release of the hazardous substances at the PAS site and the government’s response thereto); defendant has not established any of the limited statutory defenses and its constitutional challenges are without merit. Accordingly, plaintiffs are entitled to summary judgment as to defendants’ liability. The court now turns its attention to the matter of recovery of response costs.
B. Recovery of incurred costs
Under section 9607(a), Alcan is liable for “all costs of removal or remedial action incurred by the United States Government or a State ... not inconsistent with the national contingency plan[.J” 42 U.S.C. § 9607(a)(4)(A); 40 C.F.R. §§ 300.1-300.71 (1989) (national contingency plan) (promulgated pursuant to 42 U.S.C. § 9605). The burden lies with the defendant to demonstrate that the costs incurred by the respective governments were inconsistent with the national contingency plan.
See United States v. Northeastern Pharmaceutical & Chemical Co., Inc.,
In view of the statutory provisions defining the terms “remove” and “removal,”
see
42 U.S.C. § 9601(23), “remedy” and “remedial action,”
see id.
§ 9601(24), “respond” and “response,”
see id.
§ 9601(25), remedial or removal action, for which the federal and state governments are entitled to recover from the party found liable, necessarily includes such activities as (a) investigations, monitoring and testing to identify the extent of danger to public health or welfare or the environment, (b) investigations, monitoring and testing to identify the extent of the release of hazardous substances, and (c) planning and implementation of a response action; also recoverable are “indirect” costs associated with the foregoing and with enforcement of the provisions of CERCLA, including administrative costs incurred by the staffs of the regulatory agencies involved and for the Department of Justice.
See United States v. Northeastern Pharmaceutical and Chemical Co.,
Defendant does not challenge the legality of any of the costs plaintiffs seek to recover; that is, defendant does not argue that the costs which plaintiff seeks to recover are not within the scope of the pertinent statutory provisions. And, ample documentation of the costs, direct and indirect, incurred by the EPA, the Department of Justice and the State of New York has been submitted to the court. Defendant’s opposition to plaintiffs’ summary judgment motion on incurred costs, aside from blanket denials to assertions of fact, is essentially three-fold: (1) plaintiffs have not demonstrated that any of the claimed costs were associated with metals contamination and it has not so stipulated; (2) discovery is needed for it to respond to the costs incurred since April 1,1987; and (3) its liability is severable. None of these arguments has merit. The court will address the sev-erability argument first.
Alcan rather summarily contends that it cannot be held jointly and severally liable because the harm caused by it is severable. In this regard, Alcan points out that whatever harm its hazardous substances may have caused would be limited to soil contamination, but, because the EPA’s RI/FS appears to indicate that the concentration of metals in the soil was not high enough to warrant concern, “no remediation of soils was necessary [and] the harm from metal is clearly divisible.” Alcan’s Memo of Law at 29.
Only, brief comment is called for. First, defendant bears the burden of proof on the issue of severability,
see O’Neil,
Alcan’s argument that plaintiffs have failed to demonstrate that any of the costs incurred were associated with metals contamination can be viewed as a challenge to the appropriateness of a portion of plaintiffs’ response (i.e., that there was no contamination from metals), as a challenge to plaintiffs’ response generally (i.e., that, if there was contamination from metals, plaintiffs have not itemized this expense), or as an argument that a nexus must be demonstrated between the response and an individual generator’s contamination. However viewed, defendant’s argument has no merit.
All that section 9607(a) requires is that there be a release or threatened release of a hazardous substance which causes the incurrence of response costs in order for a statutorily-defined generator of a hazardous substance to be held liable for all costs incurred so long as such costs are not inconsistent with the National Conti-gency Plan. 42 U.S.C. § 9607(a)(4)(A). As an initial matter, there is absolutely no requirement that a plaintiff demonstrate a causal nexus between a defendant’s conduct and the contamination of the property involved.
See, e.g., Dedham Water Co.,
Additionally, defendant has not argued, much less demonstrated, that the plaintiffs’ response to the presence of hazardous substance at the site was inconsistent with the national contingency plan,
see Northeastern Pharmaceutical and Chemical Co.,
The court notes that defendant has not offered any evidence to raise a genuine dispute of fact regarding the specific dollars amounts claimed. Also, as for a response to plaintiffs’ incurred costs since April 1, 1987, defendant, as plaintiffs point out, has not demonstrated its entitlement to relief under Rule 56(f) — simply put, defendant has not explained what efforts were made at obtaining discovery and why those efforts were unsuccessful; moreover, discovery closed as of November 30, 1989; apparently, defendant never bothered with discovery regarding costs incurred after April 1, 1987.
Accordingly, defendant having failed to establish that the governments’ response costs were inconsistent with the National Contingency Plan, all the incurred costs are conclusively presumed reasonable,
see Northeastern Pharmaceutical and Chemical Co.,
Additionally, in recognition of the ongoing nature of response costs, pursuant to the authority granted the court under 42 U.S.C. § 9613(g)(2) (Supp.1990), the court enters a declaratory judgment in plaintiffs’ favor that defendant is liable to plaintiffs for future response costs associated with the PAS site “which will be binding on any subsequent action or actions to recover further response costs”. Both plaintiffs are also entitled to recover prejudgment interest under 42 U.S.C. § 9607(a) (Supp.1990) on the total response costs recovered by each of them. As requested by plaintiffs, they are granted leave to file declarations, within 20 days of the date of this memorandum-decision, setting forth the amount of such interest supported by the appropriate computations. Defendant will be allowed 10 days after such declarations are filed with the court to submit a response in opposition thereto if defendant feels the need to do so.
C. Cornell University’s liability
As a protective measure, to hopefully ameliorate the potentially harsh effects of a judgment against it, Alcan commenced a third-party action naming Cornell University as defendant. By this third-party action, Alcan seeks a declaration that Cornell is jointly and severally liable for the response costs incurred by the United States and the State of New York relative to the PAS site and an order directing Cornell to contribute its fair share. According to the third-party complaint, Cornell has contributed waste to the PAS site in the form of processed coal pile leachate which contains compounds composed of materials of the same character but of greater concentration than the waste contributed by Alcan. Cornell answered the third-party pleading, denying certain allegations and asserting eight affirmative defenses. Alcan has moved for summary judgment against Cornell on the basis that Cornell sent treated coal pile leachate containing certain amounts of chromium, copper and zinc to the PAS site. In response, Cornell has cross-moved for summary judgment dismissing the third-party complaint essentially on the ground that, because the EPA decided not to name it as a potentially responsible party in the main lawsuit, Cornell is not a party from whom Alcan may seek contribution.
In 1986, Congress enacted the Superfund Amendments and Reauthorization Act, legislation initially prompted by concern over the joint and several liability rule that had been judicially-grafted on to CERCLA.
In part, section 9613(f) provides as follows:
Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under ... section 9607(a) of this title_ In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.
42 U.S.C. § 9613(f)(1). Alcan does not expressly state what equitable factors ought to be considered by the court; underlying its motion, however, is the argument that, since Cornell contributed metals to the PAS site which were the same as those contributed by it and which were identified by EPA and judicially determined by the court to be hazardous substances, fairness requires that Cornell shoulder some of the financial burden. For its part, Cornell admits that it “sen[t] treated coal pile run off to the PAS site,” Attorney Thomas Mead Santoro’s Affid. at 114, but that it should not be held jointly and severally liable because, by being removed from the list of potentially responsible parties (PRP) just before commencement of the main action, its liability has been resolved. (The court notes that initially Alcan had also been dropped from the list; Alcan was “placed back on the list apparently after the EPA discovered some documents that suggested that Alcan’s emulsion was E.P. toxic.” Al-can’s Response to Cornell’s Cross Motion at 4 n. 1.) Cornell asserts that “the last waste-in list prepared for PAS provided to Cornell before its removal from the list of PRP’s by the EPA [in March 1986] discloses a volume which, if it had been considered hazardous by the EPA, would have made Cornell a de minimus contributor (i.e. less than 1%).” Attorney Thomas Mead Santoro’s Affid. at 11 5. As support for its argument that it has resolved its liability with the EPA and, therefore, may not, or should not, be held liable for contribution, Cornell relies on 42 U.S.C. §§ 9613(f)(2) and 9622(g). A careful reading of these two sections reveals quite readily that Cornell’s reliance on them is sorely misplaced.
Section 9613(f)(2) provides that [a] person who has resolved its liability to the United States ... in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement. Such settlement does not discharge any of the other potentially liable persons unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement.
Section 9622(g), relating to de minimus settlements, provides in part as follows:
(1) Whenever practicable and in the public interest, as determined by the President, the President shall as promptly as possible reach a final settlement with a potentially responsible party in an administrative or civil action under section ... 9607 of this title if such settlement involves only a minor portion of the response costs at the facility concerned and, in the judgment of the President, [certain other conditions are met][.]
(4) A settlement under this subsection shall be entered as a consent decree or embodied in an administrative order setting forth the terms of the settlement.
(5) A party who has resolved its liability to the United States under this subsection shall not be liable for calims for contribution regarding matters addressed in the settlement.
42 U.S.C. § 9622(g)(1), (4), and (5) (Supp. 1990). Suffice it to say that no settlement was entered into at the administrative or judicial level between Cornell and the United States; Cornell was merely dropped as a potentially responsible party; in other words, the United States chose, for whatever reasons and in its discretion, not to pursue any legal action against Cornell. As such, Cornell’s liability has not been resolved within the meaning of the foregoing statutes.
Cornell’s cross motion, then, rises or falls based on the application of equitable factors deemed appropriate. Cornell’s argument in this regard is tortured. First it argues that it would be unfair for the court to subject it to liability because it never had the opportunity to participate in the judicial settlement, having been “relieved” from responsibility prior thereto, but then argues that, because its responsibility has been determined to be less than that of certain de minimus parties, its liability can, at most, be less than that paid by the de minimus parties. Suffice it to say that Cornell’s cross motion must be denied. In the court’s view, there is no question that Alcan is entitled to summary judgment on its motion to the extent of declaring that Cornell University is liable for contribution. The amount for which Cornell is liable is, however, another matter. A hearing needs to be held to determine its fair share.
Conclusion
For the reasons stated above, plaintiffs’ motions for summary judgment are granted in their entirety. In short, plaintiffs are entitled to recover from defendant the response costs sought by them, with prejudgment interest thereon to be calculated by plaintiffs and subject to review and acceptance by the court, and to a declaration that defendant is liable for future response costs. Defendant's motion for summary judgment seeking a declaration that third-party defendant Cornell University is jointly and severally liable for the response costs incurred by the governments relative to the PAS site is also granted; a hearing is necessary, however, to determine the extent of Cornell’s fair share unless, of course, Alcan and Cornell resolve the matter themselves. The Clerk is directed to enter judgment accordingly which judgment shall thereafter be amended to include the appropriate interest.