U.S. v. Alcan Aluminum Corp., 91-5481

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation964 F.2d 252
Docket NumberNo. 91-5481,91-5481
Parties, 22 Envtl. L. Rep. 21,124 UNITED STATES of America v. ALCAN ALUMINUM CORP., BASF Corp.; Beazer Materials and Services, Inc.; Borg-Warner Corp.; Carrier Corp.; Chemical Leaman Tank Lines, Inc.; Chemical Management, Inc.; Chrysler Motors Corp.; Dana Corp.; Dart Industries, Inc.; Exxon Corp.; Ford Motor Company; Goulds Pumps, Inc.; Hitchcock Gas Engine Company, Inc.; Ingersoll-Rand; Neapco, Inc.; Rome Strip Steel Co., Inc.; the Stanley Works, Inc.; TRW, Inc.; United Technologies Chemical Management, Inc., Counter-claimant. CHEMICAL MANAGEMENT, INC. Cross-claimant, v. UNITED STATES of America Counter-defendant, Alcan Aluminum Corp.; BASF Corp.; Beazer Materials and Services, Inc.; Borg-Warner Corp.; Carrier Corp.; Chemical Leaman Tank Lines, Inc.; Chrysler Motors Corp.; Dana Corp.; Dart Industries, Inc.; Exxon Corp.; Ford Motor Company; Goulds Pumps, Inc.; Hitchcock Gas Engine Company, Inc.; Ingersoll-Rand; Neapco, Inc.; Rome Strip Steel Co., Inc.; the Stanley Works, Inc.; TRW, Inc. UNITED TECHNOLOGIES; Cross-defendants, Neapco, Inc.; Counter-claimant. Neapco, Inc.; Cross-claimant, v. UNITED STATES of America Counter-defendant, Alcan Aluminum Corp.; Basf Corp.; Beazer Materials and Services, Inc.; Borg-Warner Corp.; Carrier Corp.; Chemical Leaman Tank Lines, Inc.; Chemical Management, Inc.; Chrysler Motors Corp.; Dana Corp.; Dart Industries, Inc.; Exxon Corp.; Ford Motor Company; Goulds Pumps, Inc.; Hitchcock Gas Engine Company, Inc.; Ingersoll-Rand; Rome Strip Steel Co.; Inc.; the Stanley Works, Inc.; TRW, Inc.; United Technologies Cross-defendants, Alcan Aluminum Corporation Appellant.
Decision Date27 July 1992

Lawrence A. Salibra, II (argued), Cleveland, Ohio, for appellant Alcan Aluminum Corp.

Barry M. Hartman, Acting Asst. Atty. Gen., Michael D. McIntyre, J. Carol Williams, Elizabeth Ann Peterson, John T. Stahr (argued), Attys., U.S. Dept. of Justice, Washington, D.C., for appellee U.S.

Norman W. Bernstein (argued), David L. Anderson, Laurel A. Bedig, Shea & Gould, Washington, D.C., for appellees BASF Corp., Beazer Materials and Services, Inc., Exxon Corp., and Ford Motor Co.

Stuart W. Axe, Lester, Schwab, Katz & Dwyer, New York City, for appellee Chrysler Motors Corp.

John B. Lewis, Arter & Hadden, Cleveland, Ohio, for amici curiae Operation Oswego County, Inc., County of Oswego, Greater Oswego Chamber of Commerce, Inc., City of Oswego, Mohawk Cent. School Dist., Richfield Springs Cent. School Dist., Mount Markham Cent. School Dist., and New Hartford Cent. School Dist.

Hosmer Culkin, Operation Oswego County, Inc., Oswego, N.Y., for amicus curiae Operation Oswego County, Inc.

Bruce N. Clark, Oswego, N.Y., for amicus curiae County of Oswego.

Michael Stanley, Oswego, N.Y., for amicus curiae Greater Oswego Chamber of Commerce, Inc.

Gay Williams, Sullivan & Williams, Oswego, N.Y., for amicus curiae City of Oswego.

Alan S. Burstein, Scolaro, Shulman, Cohen, Lawler & Burstein, Syracuse, N.Y., for amici curiae Mohawk Cent. School Dist., Richfield Springs Cent. School Dist., Mount Markham Cent. School Dist., and New Hartford Cent. School Dist.

James R. Griffith, Felt, Hubbard, & Bogan, Utica, N.Y., for amici curiae Russell Blackstone, Feminine Touch Fabrics, Clinton Auto Ser., True Value Hardware, Brandy Keg Kennels, and Herkimer Elks Club.

Constantine L. Trela, Laura L. Leonard, Carolyn K. Gerwin, Sidley & Austin, Chicago, Ill., Robin S. Conrad, National Chamber Litigation Center, Inc., Washington, D.C., for amicus curiae U.S. Chamber of Commerce.

Before: GREENBERG and SCIRICA, Circuit Judges, and DEBEVOISE, District Judge. *

OPINION OF THE COURT

GREENBERG, Circuit Judge.

This matter is before the court on appeal by Alcan Aluminum Corporation ("Alcan") from a summary judgment entered in favor of the United States (the "Government") for response costs incurred by the Government in cleaning the Susquehanna River.

On November 24, 1989, the Government filed a complaint in the United States District Court for the Middle District of Pennsylvania under section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9607(a) ("CERCLA") against 20 defendants, including Alcan, for the recovery of clean-up costs it incurred in response to a release of hazardous substances into the Susquehanna River. On October 11, 1990, the Government moved for summary judgment against Alcan, the only non-settling defendant, and on November 13, 1990, Alcan cross-moved for summary judgment.

The district court, after receiving a report and recommendation from a magistrate judge, issued a memorandum and order granting the Government's motion for the reasons set forth in United States v. Alcan Aluminum Corp., 755 F.Supp. 531 (N.D.N.Y.1991) (hereinafter called "Alcan New York "), another CERCLA case involving the release of hazardous substances generated by Alcan but at a different location. Accordingly, on May 8, 1991, the court entered judgment against Alcan in the amount of $473,790.18, which was the difference between the full response costs the Government had incurred in cleaning the Susquehanna River and the amount the Government had recovered from the settling defendants.

For reasons that follow, even though we largely agree with the district court's interpretation of the relevant provisions of CERCLA, we will vacate the judgment of May 8, 1991, and will remand the case for further factual development concerning the scope of Alcan's liability.

I. FACTS AND PROCEDURAL HISTORY

Virtually all of the facts in this case to the extent developed at this point are undisputed. The Butler Tunnel Site (the "Site") is listed on the National Priorities List established by the Environmental Protection Agency ("EPA") under section 105 of CERCLA, 42 U.S.C. § 9605. See 52 Fed.Reg. 27,620 (July 22, 1987). The Site includes a network of approximately five square miles of deep underground mines and related tunnels, caverns, pools and waterways bordering the east bank of the Susquehanna River in Pittston, Pennsylvania. The mine workings at the Site are drained by the Butler Tunnel (the "Tunnel"), a 7500 foot tunnel which feeds directly into the Susquehanna River.

The mines are accessible from the surface by numerous air shafts or boreholes. One borehole (the "Borehole") is located on the premises of Hi-Way Auto Service, an automobile fuel and repair station situated above the Tunnel. The Borehole leads directly into the mine workings at the Site.

In the late 1970's, the owner of Hi-Way Auto Service permitted various liquid waste transport companies, including those owned and controlled by Russell Mahler (the "Mahler Companies"), to deposit oily liquid wastes containing hazardous substances into the Borehole. 1 The Mahler Companies collected the liquid wastes from numerous industrial facilities located in the northeastern United States and, in total, disposed of approximately 2,000,000 gallons of oily wastes containing hazardous substances through the Borehole. 2 Apparently, it was contemplated that the waste would remain at the Site indefinitely.

Alcan is an Ohio corporation which manufactures aluminum sheet and plate products in Oswego, New York. From 1965 through at least 1989, Alcan's manufacturing process involved the hot-rolling of aluminum ingots. To keep the rolls cool and lubricated during the hot-rolling process, Alcan circulated an emulsion through the rolls, consisting of 95% deionized water and 5% mineral oil. At the end of the hot-rolling process, Alcan removed the used emulsion and replaced it with unused emulsion.

During the rolling process, fragments of the aluminum ingots, which also contained copper, chromium, cadmium, lead and zinc, hazardous substances under CERCLA, broke off into the emulsion. In an effort to remove those fragments, Alcan then filtered the used emulsion prior to disposing of it, but the filtering process was imperfect and hence some fragments remained. According to Alcan, however, the level of these compounds in the post-filtered, used emulsion was "far below the EP toxic or TCLP toxic levels and, indeed, orders of magnitude below ambient or naturally occurring background levels. Moreover, the trace quantities of metal compounds in the emulsion [were] immobile...." Appellant's Br. at 4. The Government does not specifically challenge Alcan's assertion that the used emulsion contained only low levels of these metallic compounds, as it contends that this fact is irrelevant to Alcan's liability under CERCLA.

From mid-1978 to late 1979, Alcan contracted with the Mahler Companies to dispose of at least 2,300,950 gallons of used emulsion from its Oswego, New York, facility. During that period, the Mahler Companies disposed of approximately 32,500-37,500 gallons (or five 6500-7500 gallon loads) of Alcan's liquid waste through the Borehole into the Site. 3

In September 1985, approximately 100,000 gallons of water contaminated with hazardous substances were released from the Site into the Susquehanna River. It appears that this discharge was composed of the wastes deposited into the Borehole in the late 1970's. Between September 28, 1985, and January 7, 1987, EPA incurred significant response costs due to the release and the threatened release of hazardous substances from the Site. According to the Government, EPA's response actions included "containing an oily material on the river through the use of absorbent booms; immediately removing and disposing of 161,000 pounds (over 80 tons) of oil and chemical-soaked debris and soil, monitoring, sampling and analysis of air and water,

and conducting hydrogeologic studies." Government's Br. at 10-11

On December 27, 1985, EPA issued written information requests to potentially responsible parties ("PRPs"), 4 including Alcan, concerning their responsibility...

To continue reading

Request your trial
246 cases
  • Public Interest Research Group v. FEDERAL HY. ADMIN., Civ.A. No. 94-4292 (AJL).
    • United States
    • U.S. District Court — District of New Jersey
    • 20 Marzo 1995
    ...of Labor, 987 F.2d 206, 213 (3d Cir.1993), cert. denied ___ U.S. ___, 114 S.Ct. 80, 126 L.Ed.2d 48 (1993); United States v. Alcan Aluminum Corp., 964 F.2d 252, 253 (3d Cir.1992); Criger v. Becton, 902 F.2d 1348, 1351 (8th Cir.1990); City of Alexandria v. FHWA, 756 F.2d 1014, 1020 (4th Cir.1......
  • City of Wichita, Ks v. Trustees of Apco Oil Corp.
    • United States
    • U.S. District Court — District of Kansas
    • 31 Diciembre 2003
    ...causal link between the costs incurred and an individual PRP's waste. See Tosco, 216 F.3d at 891 (citing United States v. Alcan Aluminum Corp., 964 F.2d 252, 264-66 (3d Cir.1992)). Rather, § 113(f) only requires a plaintiff to prove liability or potential liability under § 107(a) and the pl......
  • Carson Harbor Village, Ltd. v. Unocal Corporation, Case No. CV 96-3281 MMM (RCx) (C.D. Cal. 10/29/2003)
    • United States
    • U.S. District Court — Central District of California
    • 29 Octubre 2003
    ...share of the clean-up costs"). The standard is relatively easy to apply in "single-generator" cases. See United States v. Alcan Aluminum Corp., 964 F.2d 252, 266 (3d Cir. 1992) (". . . in the single generator context, if the response costs were justified, the defendant necessarily caused th......
  • United States v. Manzo, Civil Action No. 97-289 (MLC) (D. N.J. 12/29/2000)
    • United States
    • U.S. District Court — District of New Jersey
    • 29 Diciembre 2000
    ...liability only for the portion of the harm that the individual tortfeasor has caused." Id. at 1155 (quoting United States v. Alcan Aluminum Corp., 964 F.2d 252, 268 (3d Cir. 1992)). In order to seek apportionment under the doctrine, the defendant must prove that the harm is both divisible a......
  • Request a trial to view additional results
6 books & journal articles
  • Restatement for Joint and Several Liability Under CERCLA After Burlington Northern
    • United States
    • Environmental Law Reporter No. 39-11, November 2009
    • 1 Noviembre 2009
    ...contests the credentials of A’s expert and the facts upon which he relied in developing 42. See United States v. Alcan Aluminum Corp., 964 F.2d 252, 268-69, 22 ELR 21124 (3d Cir. 1992) (cited in Burlington , 129 S. Ct. at 1881). 43. In re Bell Petroleum Servs., Inc., 3 F.3d 889, 902-04, 23 ......
  • Unresolved CERCLA Issues After Atlantic Research and Burlington Northern
    • United States
    • Environmental Law Reporter No. 40-12, December 2010
    • 1 Diciembre 2010
    ...Ohio 1983); see also United States v. Brighton, 153 F.3d 307, 318; 32 ELR 20530 (6th Cir. 1998); United States v. Alcan Aluminum Corp., 964 F.2d 252, 268, 22 ELR 21124 (3d Cir. 1992); O’Neil v. Picillo, 883 F.2d 176, 178, 20 ELR 20115 (1st Cir. 1989). 99. See Brighton , 153 F.3d at 319; Alc......
  • Department of Defense affirmative cost recovery against private third parties.
    • United States
    • Air Force Law Review No. 58, March 2006
    • 22 Marzo 2006
    ...2006). (27) For a list of NCP costs that are recoverable, see 40 C.F.R. pt. 300 (2005). (28) See United States v. Alcan Aluminum Corp., 964 F.2d 252, 258-59 (3d Cir. 1992); 40 C.F.R. pt. 300 (2005). Although the Code of Federal Regulations provides that the agency should document why its ac......
  • Environmental crimes.
    • United States
    • American Criminal Law Review Vol. 49 No. 2, March 2012
    • 22 Marzo 2012
    ...is remedial legislation its damages should be construed broadly in the nature of restitution); United States v. Alcan Aluminum Corp., 964 F.2d 252, 263 n. 19 (3d Cir. 1992) (noting that CERCLA is remedial while the Research Conservation and Recovery Act is regulatory); New York v. Shore Rea......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT