City of New York v. Exxon Corp.
| Decision Date | 19 June 1991 |
| Docket Number | No. 85 CIV 1939.,85 CIV 1939. |
| Parties | The CITY OF NEW YORK, Plaintiff, v. EXXON CORPORATION, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
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Victor A. Kovner, Corp. Counsel, Environmental Prosecution Unit, of the City of New York, New York City (Christopher A. Amato and Peter H. Lehner, of counsel), for plaintiff City of New York.
Lawrence A. Salibra, II, Sr. Counsel, Cleveland, Ohio and Joseph DiBenedetto, Winston & Strawn, New York City, for defendant Alcan Aluminum Corp.
On August 6, 1990, this Court issued an opinion and order ("Opinion"), reported at 744 F.Supp. 474, familiarity with which is presumed, granting in part the motion of the City of New York ("the City") for partial summary judgment against defendant Alcan Aluminum Corporation ("Alcan"). The Court determined that Alcan's waste was disposed of at the City's landfills; that "listed hazardous substances" need not be present in any particular concentration to be considered hazardous under the Comprehensive Environmental Response, Compensation and Liability Act, as amended by the Superfund Amendment and Reauthorization Act of 1986 ("CERCLA"), 42 U.S.C. §§ 9601 et seq. (West 1983 & Supp.1991); and that Alcan's waste does not qualify for the "petroleum exclusion" of Section 101(14) of CERCLA, 42 U.S.C. § 9601(14). 744 F.Supp. at 490.
The Court reserved decision on the remaining issues presented by the parties' cross-motions for summary judgment and requested further briefing on the question of whether, under 40 C.F.R. § 302.4(b), Alcan's waste is an "unlisted hazardous waste" that exhibits Extraction Procedure ("EP") toxicity for chromium, cadmium, and lead. Id. The parties have submitted the requested briefs, and the United States, on behalf of the Environmental Protection Agency ("EPA"), has submitted a brief as amicus curiae on this question.
In addition, Alcan has moved, pursuant to Fed.R.Civ.P. 60(b) and Local Rule 3(j), for reconsideration of the issues resolved in the Court's Opinion. Alcan argues (1) that the Court erroneously concluded that Alcan's waste is not covered by the petroleum exclusion, (2) that factual issues remain on the question of whether Alcan's waste was deposited in the City landfills, and (3) that the Court did not consider the question of causation, i.e., whether or not Alcan's waste caused the incurrence of response costs at the City landfills. The City opposes the motion and moves for sanctions pursuant to Fed.R.Civ.P. 11.
The issue left unresolved by our prior Opinion concerned one of Alcan's arguments, based on its interpretation of EPA's regulations, 40 C.F.R. § 302.4 ("the Rule"), in support of its contention that not all forms or compounds of lead, chromium and cadmium are considered to be hazardous substances under CERCLA. Alcan asserted that, because Section 302.4(b) of the Rule contains specific provisions for determining whether a waste is a CERCLA hazardous substance due to its chromium, lead or cadmium content, not all compounds containing these elements can be hazardous substances. Section 302.4(b) provides:
Unlisted hazardous substances. A solid waste, as defined in 40 C.F.R. 261.2, which is not excluded from regulation as a hazardous waste under 40 C.F.R. 261.4(b), is a hazardous substance under section 101(14) of the Act if it exhibits any of the characteristics identified in 40 C.F.R. 261.20 through 261.24.
40 C.F.R. § 302.4(b). Alcan contended that, because neither its waste oil emulsion nor the specific compounds in it are listed in Table 302.4, the Court should apply Section 302.4(b) to determine whether or not Alcan's waste is hazardous.
Our preliminary analysis of Section 302.4(b) led us to agree. 744 F.Supp. at 487-88. We reasoned as follows: Applying Section 302.4(b) leads to a consideration of whether a waste exhibits EP toxicity for, among other metals, cadmium, chromium, and lead. This reference to, for example, EP toxicity for chromium, in the EPA's provision for "unlisted hazardous substances" in Section 302.4(b) appeared inconsistent with the City's position, that the generic category "chromium and compounds" in Table 302.4 includes all chromium compounds, so that all chromium compounds are "listed hazardous substances" under Section 302.4(a). If "chromium and compounds" included all chromium compounds, it would never be necessary to apply Section 302.4(b) to determine whether or not a waste is EP toxic for chromium. In other words, we suggested, the reference in Section 302.4(b) to 40 C.F.R. § 261.24 would be meaningless for any chromium-containing waste, as well as for lead- and cadmium-containing wastes. Thus, we thought it reasonable to infer that not all chromium, lead, and cadmium compounds are "listed hazardous substances" under Section 302.4(a), and that the categories "chromium and compounds", "cadmium and compounds", and "lead and compounds" are simply generic headings for groupings of metal compounds included for the convenience of the reader.
Based upon the supplemental briefs submitted by the parties and the EPA, the Court is now satisfied that the metals in Alcan's waste are "listed hazardous substances" under 40 C.F.R. § 302.4(a) because they fall within the generic categories listed in Table 302.4 of "cadmium and compounds", "chromium and compounds", and "lead and compounds". These generic categories are not mere headings inserted by the drafters of Table 302.4, but are a substantive listing of hazardous substances, identical to the listing in 40 C.F.R. § 401.15, the list of toxic pollutants designated by the EPA pursuant to Section 307(a)(1) of the Clean Water Act ("CWA"), 33 U.S.C. § 1317(a)(1). Section 101(14) of CERCLA, 42 U.S.C. § 9601(14)(D), specifically defines hazardous substances to include "any toxic pollutant listed under section 1317(a) of Title 33". Any compound of cadmium, chromium and lead — a toxic pollutant under the Clean Water Act — is therefore a hazardous substance under CERCLA.
A close examination of Table 302.4 confirms that the generic categories are not simply headings. First, as we concluded in our prior Opinion, 744 F.Supp. at 486, the fact that the generic headings have no Chemical Abstract Service Registry Numbers ("CASRN's") assigned to them is of no significance. Second, where the table includes a group of related substances, such as benzene, benzyl chloride, and benzene sulfonic acid chloride, the table does not uniformly include organizational generic headings, such as "benzene and compounds". See 40 C.F.R. Table 302.4. Third, some metals and metal compounds are listed prior to the general heading for that metal. For example, cadmium and cadmium acetate are listed in the table before "cadmium and compounds", chromium is listed before "chromium and compounds", and lead and lead acetate are listed before "lead and compounds". Id. Thus, rather than being mere organizational tools, the generic categories represent broad classes of hazardous substances derived from the list of toxic pollutants promulgated pursuant to Section 307(a) of the CWA, which are included, in alphabetical order, along with all the other hazardous substances listed in the table.
The EPA's own interpretation of the 40 C.F.R. § 302.4, as set forth in its preamble to the Rule in the Federal Register at the time the Rule was promulgated, further supports the conclusion that CERCLA imposes liability for the cleanup of releases of hazardous substances that are within any of the generic categories promulgated under the statutes identified in Section 101(14) and incorporated in 40 C.F.R. § 302.4. See 50 Fed.Reg. 13456 et seq. (April 5, 1985). The preamble explains that Section 102(a) of CERCLA authorizes EPA to adjust reportable quantities ("RQ's") for hazardous substances and that the Final Rule adjusts many of the RQ's established in Section 102(a). 50 Fed.Reg. 13456.
The preamble also describes the reason that the generic categories were not given RQ's:
EPA decided not to establish RQs for the many broad generic classes of organic and metallic compounds designated as toxic pollutants under section 307(a) of the Clean Water Act, such as "chlorinated phenols," "phthalate esters," "polynuclear aromatic hydrocarbons," and "zinc and compounds" .... It was recognized that to establish a single RQ for broad classes of hazardous substances would be inappropriate for many of the compounds within each class. Many of the generic classes of compounds encompass hundreds or even thousands of specific compounds. It would be virtually impossible for the Agency to develop a reportable quantity for a generic class of compounds that would take into account the varying characteristics of all of the specific compounds in that class.
Id. at 13461 (emphasis added). Nevertheless, the preamble continues, substances that are within the generic categories of compounds, but not specifically listed for RQ purposes, are "listed" as CERCLA hazardous substances pursuant to Section 302.4(a):
EPA has determined that the notification requirements need apply only to those specific compounds for which RQs are listed in Table 302.4, rather than to the generic classes of compounds. However, as the Agency indicated in the NPRM preamble, this does not preclude liability with respect to releases of specific compounds which are within one of these generic listings but which are not listed in Table 302.4. In other words, a releaser is liable for the cleanup of releases of hazardous substances which fall under any of the broad, generic classes, but does not have to report such releases when the specific compounds, and hence the RQs are not listed in Table 302.4.
Id. (emphasis added). EPA reiterated...
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