755 F.Supp. 531 (N.D.N.Y. 1991), 87-CV-920, United States v. Alcan Aluminum Corp.

Docket Nº:87-CV-920.
Citation:755 F.Supp. 531
Party Name:UNITED STATES of America and State of New York, Plaintiffs, v. ALCAN ALUMINUM CORP., et al., Defendants. ALCAN ALUMINUM CORP., Third-Party Plaintiff, v. CORNELL UNIVERSITY, Third-Party Defendant.
Case Date:January 15, 1991
Court:United States District Courts, 2nd Circuit, Northern District of New York

Page 531

755 F.Supp. 531 (N.D.N.Y. 1991)

UNITED STATES of America and State of New York, Plaintiffs,

v.

ALCAN ALUMINUM CORP., et al., Defendants.

ALCAN ALUMINUM CORP., Third-Party Plaintiff,

v.

CORNELL UNIVERSITY, Third-Party Defendant.

No. 87-CV-920.

United States District Court, N.D. New York.

Jan. 15, 1991

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[Copyrighted Material Omitted]

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Frederick J. Scullin, Jr., U.S. Atty. (Craig A. Benedict, of counsel), Syracuse, N.Y., and Richard B. Stewart, Asst. Atty. Gen. Land and Natural Resources Div., Environmental Enforcement Section (Michael Bardee, Henry Friedman, of counsel), Washington, D.C., for plaintiff U.S.

Robert Abrams, Atty. Gen. State of N.Y. (David A. Munro, Karen Kimball, of counsel), Albany, N.Y., for plaintiff State of N.Y.

Lawrence A. Salibra, II, Cleveland, Ohio, for defendant Alcan Aluminum Corp.

Thomas Mead Santoro, Patricia McClary, Cornell University, Office of University Counsel, Ithaca, N.Y., for third-party defendant Cornell University.

MEMORANDUM-DECISION AND ORDER

McAVOY, District Judge.

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 Oswego, 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.

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During the 1970 through 1977 period, Alcan, by contract, agreement or otherwise, arranged for the disposal or treatment at the PAS facility 4,607,380 gallons of an emulsion generated at its plant in Oswego, New York in conjunction with the hot rolling of aluminum ingots. (In addition to aluminum, the ingots used by Alcan contained chromium, copper, lead and zinc.) The Alcan emulsion, basically a mixture of water (primarily) and mineral oil, was circulated and recirculated through the rolls, picking up fragments of ingots containing aluminum, chromium, copper, lead and zinc in the process, until removed from the manufacturing process and sent to the PAS facility. (In addition to aluminum, chromium, copper, lead and zinc, defendant concedes that its emulsion contained cadmium.) During this period, Alcan, by contract, agreement or otherwise also arranged for the disposal at the PAS facility of 200 gallons of polychlorinated biphenyls.

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 surficial 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., 858 F.2d 160, 167 and n. 8 (4th Cir.1988), cert. denied, 490 U.S. 1106, 109 S.Ct. 3156, 104 L.Ed.2d 1019 (1989); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1081 (1st Cir.1986); State of New York v. Shore Realty, 759 F.2d 1032, 1040-1041 (2d Cir.1985); 42 U.S.C. §§ 9604(d)(1) and 9607(a) (1983 and Supp.1990). In pertinent part, CERCLA provides as follows:

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 incurrence 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, 759 F.2d at 1043, 1043 n. 16 (commenting on the correct construction of section 9607(a)).

As various courts have noted, liability under CERCLA, which is strict, Shore Realty, 759 F.2d at 1044, and joint and several unless the defendant demonstrates that the harm is divisible, O'Neil v. Picillo, 883 F.2d 176, 178-179 (1st Cir.1989), cert. denied sub nom. American Cyanamid Co. v. O'Neil, 493 U.S. 1071, 110 S.Ct. 1115, 107 L.Ed.2d 1022 (1990), would be established in this "cost recovery" action if the plaintiffs prove each of the following:

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

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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., 872 F.2d 1373, 1378-1379 (8th Cir.1989); see also Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 668 (5th Cir.1989); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1150 (1st Cir.1989); Shore Realty, 759 F.2d at 1043-1045, and if Alcan fails to establish by a preponderance of the evidence one of the three narrow defenses provided by 42 U.S.C. § 9607(b), Amoco Oil, 889 F.2d at 668; Shore Realty, 759 F.2d at 1042, 1044. Liability under CERCLA in a "cost recovery" action presents an issue separate and distinct from that posed by the issue regarding which incurred response costs defendant is obligated to pay. Amoco Oil, 889 F.2d at 668.

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, Alcan 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...

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