U.S. v. Alcan Aluminum Corp.
| Decision Date | 07 January 2003 |
| Docket Number | Docket No. 01-6008. |
| Parties | UNITED STATES of America, State of New York, Plaintiffs-Appellees, v. ALCAN ALUMINUM CORPORATION, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Lawrence A. Salibra, II, Mayfield Heights, OH (John C. Tillman, Mark D. Kindt, Alean Aluminum Corporation, Mayfield Heights, OH, of counsel), for Defendant-Appellant.
Lisa E. Jones, Washington, DC (John C. Cruden, Acting Assistant Attorney General, Greer S. Goldman, John T. Stahr, Henry C. Friedman, Steven R. Baer, Peter M. Flynn, Mark Gallagher, U.S. Department of Justice, Washington, DC; Carol Berns, Beverly Kolenberg, U.S. Environmental Protection Agency, Region II, New York, NY, of counsel), for Plaintiff-Appellee United States of America.
David A. Munro, Assistant Attorney General, Albany, NY, for Plaintiff-Appellee State of New York. Martin S. Kaufman, Atlantic Legal Foundation, Inc., New York, NY, filed a brief on behalf of The Atlantic Legal Foundation, Inc. as Amicus Curiae.
Daniel J. Popeo, Washington, DC (Paul D. Kamenar, Washington Legal Foundation, Washington, DC, of counsel), filed a brief on behalf of The Washington Legal Foundation; U.S. Senator Larry E. Craig; U.S. Representatives John E. Peterson, John M. McHugh, and Michael G. Oxley; N.Y. State Senator James W. Wright; N.Y. State Assemblywoman Frances T. Sullivan; John J. Gosek, Mayor of the City of Oswego, New York; N.Y. State Conference of Mayors and Municipal Officials; Chamber of Commerce of the United States of America; National Association of Manufacturers; National Restaurant Association; National Food Processors Association; Manufacturers Association of Central New York; Operation Oswego County, Inc.; The Business Council of New York State, Inc.; and The Allied Educational Foundation as Amici Curiae.
Before CARDAMONE, STRAUB and KATZMANN, Circuit Judges.
Defendant 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.
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 polychlorinated 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 million gallons of its waste emulsion at the PAS site. Although this emulsion, which resulted 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 CERCLA.
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., 755 F.Supp. 531 (N.D.N.Y.1991) (Alcan-PAS). On appeal before this Court in 1993, we affirmed the grant of summary judgment with respect to Alcan's liability, but reversed the finding on the joint and several scope of Alcan's liability and remanded to the district court for further proceedings relating to the potential divisibility of harm and the apportionment of damages. United States v. Alcan Aluminum Corp., 990 F.2d 711 (2d Cir.1993) (Alcan).
At the time we decided Alcan another case, United States v. Alcan Aluminum Corp., 91-CV-1132 (Alcan-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 Alcan-PAS and Alcan-Fulton.
Following consolidation of the PAS and 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., 1996 WL 637559 (N.D.N.Y. Oct.28, 1996). The trial court refused to rule on the divisibility of harm and the apportionment of damages with respect to either site at the summary judgment stage. To decide these issues it held a five-day bench trial beginning on October 4, 1999. With the assistance of a court-appointed expert the district court found Alcan jointly and severally liable for response costs at both PAS and Fulton. See United States v. Alcan Aluminum Corp., 97 F.Supp.2d 248 (N.D.N.Y.2000) (Alcan-Consolidated). On the basis of post-trial submissions the district court entered a final judgment in favor of the United States in the amount of $12,201,929.30 and in favor of the State of New York in the amount of $1,422,155.39. Alcan appeals from this judgment. We affirm.
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 because we find them to be wholly without merit.2
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 a 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 at the clean-up site." Alcan, 990 F.2d at 721. The government is not required to show that a specific defendant's waste caused the incurrence of cleanup costs in order for strict liability to attach to that defendant. Id.
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 government 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 more than a decade ago — found Alcan liable for response costs at PAS. Alcan-PAS, 755 F.Supp. 531. We affirmed this ruling when the case came before us the first time. Alcan, 990 F.2d at 719-21.
With respect to Fulton, Alcan and the government have similarly stipulated that a release occurred there, that this release...
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