U.S. v. Alcan Aluminum Corp.

• Decision Date: 06 April 1993
• Docket Number: 530,D,Nos. 403,s. 403
• Citation: 990 F.2d 711
• Parties: , 61 USLW 2635, 82 Ed. Law Rep. 321, 23 Envtl. L. Rep. 20,706 UNITED STATES of America; State of New York, Plaintiffs-Appellees, v. ALCAN ALUMINUM CORPORATION, Defendant-Third-Party-Plaintiff-Appellee-Cross-Appellant, v. CORNELL UNIVERSITY, Third-Party-Defendant-Appellant-Cross-Appellee. ockets 92-6158, 92-6160.
• Court: U.S. Court of Appeals — Second Circuit

Page 711

990 F.2d 711

36 ERC 1321, 61 USLW 2635, 82 Ed. Law

Rep. 321,

23 Envtl. L. Rep. 20,706

UNITED STATES of America; State of New York, Plaintiffs-Appellees, v. ALCAN ALUMINUM CORPORATION, Defendant-Third-Party-Plaintiff-Appellee-Cross-Appellant, v. CORNELL UNIVERSITY, Third-Party-Defendant-Appellant-Cross-Appellee.

Nos. 403, 530, Dockets 92-6158, 92-6160.

United States Court of Appeals Second Circuit.

Argued Nov. 9, 1992.

Decided April 6, 1993.

Lawrence A. Salibra, II, Cleveland, OH (John C. Tillman, of counsel), for defendant-third-party-plaintiff-appellee-cross-appellant Alcan Aluminum Corp.

Thomas Mead Santoro, Ithaca, NY (Patricia A. McClary, on the brief), for third-party-defendant-appellant-cross-appellee Cornell University.

John T. Stahr, Washington, DC (Anne S. Almy, Henry Friedman, Dept. of Justice, Environment and Natural Resources Division, Bernice Corman, Carol Berns, Joan Gillespie, Charles De Saillan, Charles Breece, U.S. E.P.A., David A. Munro, Asst. Atty. Gen., Vicki A. O'Meara, Acting Asst. Atty. Gen., State of New York, of counsel), for plaintiffs-appellees U.S., State of NY.

O. Peter Sherwood, Corp. Counsel, New York City (Peter H. Lehner, Christopher A. Amato, Environmental Law Div., of counsel), filed a brief on behalf of the City of New York as amicus curiae.

Norman W. Bernstein, Washington, DC (Donald B. Mitchell, Jr., Lawrence E. Blatnik, Arent Fox Kintner Plotkin & Kahn, of counsel), filed a brief on behalf of Exxon Chemical Co., Ford Motor Co., Allied-Signal, Inc., Carrier Corp., General Motors Corp., Pratt & Whitney, and USX Corp. as amicus curiae.

Robert B. Weintraub, New York City (Michael Stanley, Oswego, NY, of counsel), filed a brief on behalf of the Greater Oswego Chamber of Commerce, Inc. as amicus curiae.

Robert B. Weintraub, New York City (Robin S. Conrad, National Chamber Litigation Center, Inc., Washington, DC, of counsel), filed a brief on behalf of the Chamber of Commerce of the U.S. of America as amicus curiae.

Robert B. Weintraub, New York City, filed a brief on behalf of New York State Ins. Ass'n as amicus curiae.

Austin V. Campriello, Werner & Kennedy, New York City (Mahlon C. Schneider, Austin, MN, Kevin Montano, Bethesda, MD, of counsel), filed a brief on behalf of Geo. A. Hormel & Co., Marriott Corporation's Food Service Div., The National Food Processors Ass'n and Burger King Corp. as amici curiae.

Doren P. Norfleet, Oswego, NY, filed a brief on behalf of Operation Oswego County, Inc. as amicus curiae.

Thomas O'Brien, Jeffrey & O'Brien, P.C., Clinton, NY, filed a brief on behalf of Various Individuals Who Represent a Cross-Section of the Metropolitan Area of Utica, New York as amicus curiae.

James R. Griffith, Felt, Hubbard & Bogan, Utica, NY, filed a brief on behalf of New York State Conference of Mayors and Mun. Officials as amicus curiae.

Alan S. Burstein, Scolaro, Shulman, Cohen, Lawler & Burstein, P.C., Syracuse, NY, filed a brief on behalf of School Districts as amici curiae.

Robert B. Weintraub, New York City (Gay Williams, Sullivan & Williams, Oswego, NY, of counsel), filed a brief on behalf of City of Oswego as amicus curiae.

Robert B. Weintraub, New York City (Bruce N. Clark, Oswego, NY, of counsel), filed a brief on behalf of County of Oswego as amicus curiae.

Before NEWMAN, CARDAMONE, and MAHONEY, Circuit Judges.

CARDAMONE, Circuit Judge:

Alcan Aluminum Corporation (Alcan) and Cornell University appeal from an order of the United States District Court for the Northern District of New York, (McAvoy, J.), granting summary judgment in favor of appellees, United States and New York State, holding Alcan jointly and severally liable for cleanup of a hazardous waste site, and allowing Alcan to obtain contribution from Cornell. United States v. Alcan Aluminum Corp., 755 F.Supp. 531 (N.D.N.Y.1991).

Alcan and a host of amicus briefs have presented us with a parade of horribles predicated on their view that under the district court opinion, hazardous substances include breakfast cereal, the soil, and nearly everything else upon which life depends, and that such an approach will make liable for response costs the butcher, the baker and the candlestick maker. They posit that to avoid such an absurd result, liability under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601 et seq. (1988, Supp. I 1989 & Supp. II 1990), should not be imposed unless a responsible party has contributed some minimum concentration of a hazardous element or compound.

Admittedly, there is some force to this argument; yet, the government's response is also compelling. It notes that were we to limit liability in the manner Alcan and amici suggest, each potential defendant in a multi-defendant CERCLA case would be able to escape liability simply by relying on the low concentration of hazardous substances in its wastes, and the government would be left to absorb the clean-up costs. Several courts have already held such was not the aim of Congress.

In passing CERCLA Congress faced the unenviable choice of enacting a legislative scheme that would be somewhat unfair to generators of hazardous substances or one that would unfairly burden the taxpaying public. The financial burdens of toxic clean-up had been vastly underestimated--in 1980 when CERCLA was enacted $1.8 billion was thought to be enough. In 1986 when the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub.L. No. 99-499, 100 Stat. 1613 (1986), was passed, $100 billion was held to be needed. It may well be more today. It is of course the public-at-large that is already bearing the economic brunt of this enormous national problem. There may be unfairness in the legislative plan, but we think Congress imposed responsibility on generators of hazardous substances advisedly. And, even were it not advisedly, we still must take this statute as it is.

Having assessed CERCLA's plain meaning, its legislative history, and the case law construing it, we think the tension may be resolved by allowing a responsible party, like Alcan, to pay nothing if it can demonstrate that its pollutants, when mixed with other hazardous wastes, did not contribute to the release or the resulting response costs. In this respect we essentially adopt the Third Circuit's reasoning in United States v. Alcan Aluminum Corp., 964 F.2d 252, 267-71 (3d Cir.1992) (Alcan-Butler ). This approach is not intended to provide an escape hatch for CERCLA defendants; rather, it will permit such a defendant to avoid liability only when its pollutants contribute no more than background contamination.

BACKGROUND

A. Facts

From 1970 to 1977 Pollution Abatement Services (PAS) operated a waste disposal and treatment center on 15 acres of land in Oswego County, New York. The PAS facility there stored, processed, and disposed of chemical wastes from a number of sources; as a result the site became contaminated with hazardous substances. In 1977 the Environmental Protection Agency (EPA) and New York State undertook response and clean-up measures and spent over $12 million in the ensuing ten years on remedial actions.

Alcan used PAS during the 1970s and arranged for disposal or treatment there of 4.6 million gallons of oil emulsion. This emulsion--used in Alcan's manufacturing process--consisted mostly of water and mineral oil, along with small aluminum ingot shavings containing lead, copper, chromium, zinc, and cadmium compounds.

In 1974, a stock-pile of coal caught fire at Cornell University's Ithaca, New York campus. The local fire department extinguished it with water, and some of the run-off from the coal pile flowed into area streams. After consultation with New York environmental officials, Cornell collected this coal run-off water and neutralized it. For two years following the fire, Cornell sent 551,000 gallons of the neutralized run-off water to the Oswego PAS site. When in 1983 Cornell was notified of hazardous waste problems at the PAS site, it explained to the EPA what waste it had sent there for disposal. In March 1986 Cornell purportedly resolved any question of its liability with the EPA, which thereupon removed the University from its list of those parties potentially responsible for response costs at PAS.

B. Present Suit

Ten years after the 1977 commencement of clean-up efforts, in 1987 the United States and New York (collectively the government) brought a CERCLA § 107(a), 42 U.S.C. § 9607(a), action to recover response costs against 83 of the parties potentially responsible for the environmental problems at the Oswego site. The government entered into a consent decree with 82 of these defendants, recovering 74 percent or $9.1 million of the clean-up costs it had incurred. Alcan was the lone holdout. The government sued it for the $3.2 million of unrecovered costs. In 1988 Alcan served a third-party complaint against Cornell seeking contribution from it for a share of the clean-up costs.

After discovery had been completed, the government moved for summary judgment against Alcan contending that Alcan's disposal of hazardous substances at PAS had been conceded. Alcan cross-moved for summary judgment against the United States and New York State, asserting principally that CERCLA's definition of "hazardous substance" requires a minimum concentration level of specific compounds and that under the statute causation needed to be demonstrated. Alcan also asserted that the harm caused by its waste was divisible and that the government claim improperly subjected it to joint and several liability. Alcan also moved for summary judgment against Cornell University, as a third-party defendant, and Cornell cross-moved in turn for summary judgment against Alcan.

The district court granted summary judgment for the government against Alcan, and for Alcan against Cornell on January 15, 1991. It rejected Alcan's arguments concerning minimum concentration requirements and causation. It...