Alcan can be briefly summarized. In May of 1985, Alcan moved to
dismiss the complaint as against it on the ground that the
cadmium, chromium, and lead in its waste were present only in
"trace quantities," and that the lead constituent in its waste
was not any lead compound listed as a hazardous substance in
the EPA regulations. Exxon I, 633 F. Supp. at 619-20. The City
opposed Alcan's motion on the ground that the quantity or
concentration of a particular contaminant in a generator's
waste is irrelevant to a determination as to whether that waste
is a hazardous substance for purposes of CERCLA. The City
further argued that it was irrelevant which particular
compounds of cadmium, chromium and lead were present in the
Alcan waste, since EPA regulations list all compounds of those
elements as hazardous substances. Id. Without reaching the
legal issue of what constitutes a hazardous substance under
CERCLA, the late Judge Edward Weinfeld denied the motion in a
decision dated April 24, 1986, which also decided motions to
dismiss, on various grounds, by other defendants. Id. at 620.
Most of the defendants, but not Alcan, then filed three
third-party complaints impleading approximately 300 third-party
defendants. By order dated January 23, 1987, Judge Weinfeld
severed and stayed the third-party actions pending completion
of the main action.
On November 23, 1988, this Court approved a Judgment on
Consent settling the City's claims against seven of the
defendants in this action.*fn6 City of New York v. Exxon Corp.
(Exxon II), 697 F. Supp. 677 (S.D.N.Y. 1988). Subsequently, on
May 22, 1989, the Court approved two more Judgments on Consent
settling the City's claims against an additional six
defendants.*fn7 Since the November 23 and May 22 Judgments
eliminate from this action all thirteen defendants that filed
third-party complaints and the Judgments explicitly provide for
dismissal of the third-party claims, the only remaining
defendants in this action, as explained earlier, see footnote
1, supra, are Refinemet and Alcan.
The City now moves for partial summary judgment, pursuant to
Rule 56 of the Federal Rules of Civil Procedure, against Alcan
as to liability, pursuant to Section 107(a) of CERCLA,
42 U.S.C. § 9607(a), on the ground that (i) Alcan generated a
waste oil emulsion at its Oswego facility and arranged for the
Mahler companies to transport and dispose of its waste; (ii)
the waste oil emulsion contained hazardous substances, as
defined under CERCLA; (iii) the Mahler companies disposed of
Alcan's waste, along with wastes generated by other companies,
in the City landfills; (iv) hazardous substances of the type
generated by Alcan and disposed of in the City landfills by the
Mahler companies have been detected at the City landfills and
are being released, and pose a threat of further release, at
these sites; and (v) the City has incurred, and will continue
to incur, response costs at these sites. Specifically, then,
the City seeks an order adjudging Alcan strictly, jointly and
severally liable for the response costs incurred by the City to
date at the five landfills, totalling $2,404,407, as well as
all future response costs at these sites, and for damages for
injury to, destruction and loss of natural resources.
Alcan opposes the City's motion on two main grounds. First,
Alcan asserts that a genuine issue of fact exists as to whether
its waste oil emulsion was ever delivered to Mahler's Review
Avenue and Edgewater facilities for reprocessing, which in turn
raises an issue as to whether the waste oil emulsion was
actually disposed of in the City landfills. Second, Alcan
raises a two-pronged question of law as to whether, assuming
that its waste did actually wind-up in the City landfills,
Alcan's waste is "hazardous" within the meaning of CERCLA.
Alcan asserts (i) that both under CERCLA"s statutory definition
of hazardous substances and under "common sense" principles of
statutory construction, CERCLA does not contemplate classifying
either low concentrations or inert forms of otherwise hazardous
substances as hazardous, and (ii) that Alcan's waste oil
emulsion falls within CERCLA's oil exclusion.
In addition, Alcan cross-moves for summary judgment, on the
ground that "the Alcan waste emulsion involved in this action
did not contain concentrations of [cadmium], chromium or lead
which exceeded .9 ppm, and that the compounds associated with
these ions cannot be identified." Defendant Alcan Aluminum
Corporation's Statement Pursuant to Local Rule 3(g) on
Cross-Motion for Summary Judgment ("Def. 3(g) Stmt. in
Support"), ¶ 1. Alcan thus seeks summary judgment in its favor,
based on the allegedly established facts concerning the
concentration and form of the three substances present in
Alcan's waste, and on the necessarily antecedent legal
questions of whether CERCLA requires that substances, to be
hazardous, must be present at waste disposal sites in a
particular concentration or form. Def. Mem. at 6 (summary
judgment sought on the "fact" that trace elements did not
exceed .9 ppm "and were not hazardous under CERCLA").
Section 107(a) of CERCLA imposes liability for response
costs*fn8 incurred by the government or private parties and
for damages to natural resources on, inter alia, "generators"
of hazardous wastes, defined as
any person who by contract, agreement, or
otherwise arranged for disposal or treatment, or
arranged with a transporter for transport for
disposal or treatment, of hazardous substances
owned or possessed by such person, by any other
party or entity, at any facility or incineration
vessel owned or operated by another party or
entity and containing such hazardous substances.
Section 107(a)(3), 42 U.S.C. § 9607(a)(3). To hold a party
liable as a generator of hazardous wastes under this Section, a
plaintiff must establish that the defendant
(1) disposed of its hazardous substances (2) at a
facility which now contains hazardous substances
of the sort disposed of by the generator [and] (3)
[that] there is a release of that or some other
type of hazardous substance (4) which causes the
incurrence of response costs.
United States v. Wade, 577 F. Supp. 1326, 1333 (E.D.Pa. 1983).
See also Violet v. Picillo, 648 F. Supp. 1283, 1289-90 (D.R.I.
1986) (citing, inter alia, Wade); United States v. Conservation
Chemical Co., 619 F. Supp. 162, 235 (W.D.Mo. 1985) (quoting
Wade). Of these four elements, only the first and second are
any event, that its wastes are not hazardous substances within
the meaning of CERCLA.
Turning first to the factual question of whether Alcan's
wastes were actually disposed of in City landfills, we note
that summary judgment may be granted only when the moving party
can establish, based on "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits . . . that there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court
must first look to the substantive law of the case to determine
which facts are material. Only disputes over material facts
will preclude the entry of summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510,
91 L.Ed.2d 202 (1986). The moving party bears the initial
burden of establishing that no genuine dispute as to material
facts exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The burden then
shifts to the opposing party to show that a genuine issue of
fact exists. See Matsushita Electric Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 1355, 89
L.Ed.2d 538 (1986). Ultimately, "[i]n considering the motion,
the court's responsibility is not to resolve disputed issues of
fact but to assess whether there are any factual issues to be
tried, while resolving ambiguities and drawing reasonable
inferences against the moving party." Knight v. U.S. Fire Ins.
Co., 804 F.2d 9, 11 (2d Cir. 1986) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 2509-11, 91
L.Ed.2d 202 (1986)), cert. denied, 480 U.S. 932, 107 S.Ct.
1570, 94 L.Ed.2d 762 (1987).
As explained above, see pages 477-478, supra, the City
asserts, relying on the affidavits of Mahler and Mansfield and
the exhibits attached thereto, that the waste emulsion
generated by Alcan was disposed of in the City landfills by the
Mahler companies. As described in the Mahler and Mansfield
affidavits, Alcan's waste emulsion was trucked from Alcan's
Oswego facility to Mahler's Review Avenue and Edgewater
facilities. There the Alcan waste, along with oily wastes from
other generators, was tested for BS & W content. Mansfield Aff.
¶ 8; Mahler Aff. ¶ 3. Loads of oily waste with low BS & W
values were put into the oil recovery process, while loads with
high BS & W values were disposed of in the City landfills and
other locations. Id. Because the Alcan waste had a consistently
high BS & W value, it was unsuitable for processing, and was
therefore routinely disposed of in City landfills. Mansfield
Aff. ¶¶ 13-16; Mahler Aff. ¶ 6. From 1978 to 1980,
approximately 30 truckloads of Alcan's waste — totalling
approximately 200,000 gallons — were disposed of in City
landfills. Mansfield Aff. ¶ 15.
As we indicated earlier, see page 478, supra, Alcan responds
that its waste was neither trucked to Mahler's Review Avenue
and Edgewater facilities, nor eventually disposed of in the
City landfills. The evidence Alcan offers in support of this
allegation is not, however, sufficient to meet Alcan's burden
of setting forth specific facts, based on personal knowledge,
which create a genuine of issue of fact as to the final
destination of Alcan's wastes. See, e.g., United States v.
Monsanto Co., 858 F.2d 160, 170-71, n. 20 (4th Cir. 1988)
(defendant-generators' conclusory, unsupported allegations that
their waste had never been shipped to or subsequently removed
from site insufficient to withstand summary judgment), cert.
denied, ___ U.S. ___, 109 S.Ct. 3156, 104 L.Ed.2d 1019 (1989).
First, the letter, discussed supra at 478, from Russell Mahler
to Alcan indicates that Alcan's "liquid waste" is transported
to Edgewater for "final processing." Letter, dated May 9, 1979,
from Russell W. Mahler to Larry Carroll (attached as Exhibit L
to Notice of Cross Motion). The letter obviously does not
refute the City's allegation that Alcan's waste was eventually
transported to City landfills.*fn11 Second, the
affidavit of Walter Holst, in which he asserts that "at no time
was any Alcan waste transported to the Edgewater, New Jersey
hazardous waste disposal site," is, as indicated earlier, not
based on his personal knowledge. Holst Decl. ¶¶ 3, 5.
Alcan also suggests that the mere fact that Mahler is a
convicted felon raises a question as to his credibility, which
precludes a finding, based on Mahler's affidavit, that Alcan's
wastes were disposed of in the City's landfills. We recognize
that, where the only evidence of dumping at a particular site
was the affidavit of an owner of a waste-hauler who was a
convicted felon and a defendant, to the effect that he directed
the dumping, such evidence was not sufficient to establish the
fact of dumping on a motion for summary judgment.
Wade, 577 F. Supp. at 1331-32. Yet, Mahler's testimony is not
the only evidence linking Alcan's waste to the City landfills;
it is supported by the affidavit of Kenneth Mansfield and the
documents attached thereto, including Mansfield's logbook.
Accordingly, we find that Alcan's wastes were deposited in the
Turning next to the legal issue of whether Alcan disposed of
wastes which contained hazardous substances, as defined by
CERCLA, we note that Alcan does not dispute that the laboratory
tests performed on its waste emulsion in the course of
discovery establish that the waste contained, among other
things, certain amounts of cadmium, chromium and lead. Alcan
does, however, dispute that these "trace amounts" were of a
sufficient quantity or form so as to be considered "hazardous."
"Hazardous substances" are defined under CERCLA to include:
(A) any substance designated pursuant to section
311(b)(2)(A) of [the Federal Water Pollution
Control Act, also known as the Clean Water Act
("CWA")], (B) any element, compound, mixture,
solution, or substance designated pursuant to
section 9602 of this title, (C) any hazardous
waste having the characteristics identified under
or listed pursuant to section 3001 of the Solid
Waste Disposal Act [also known as the Resource
Conservation and Recovery Act ("RCRA")] . . ., (D)
any toxic pollutant listed under section 307(a) of
[the CWA], (E) any hazardous air pollutant listed
under section 112 of the Clean Air Act, and (F)
any imminently hazardous chemical substance or
mixture with respect to which the Administrator
[of EPA] has taken action pursuant to section 7 of
the Toxic Substances Control Act.
Section 101(14), 42 U.S.C. § 9601(14). Thus, CERCLA both
incorporates definitions of hazardous substances from other
statutes and empowers the EPA to designate "such elements,
compounds, mixtures, solutions, and substances which, when
released into the environment may present substantial danger to
the public health or welfare or the environment. . . ." Section
102, 42 U.S.C. § 9602.
Each of the four environmental statutes referenced in
subparts (A), (C), (D), (E) and (F) of the CERCLA definition
delegates to EPA the authority to designate substances as toxic
or hazardous. Pursuant to those grants of authority, EPA has
promulgated a list of "hazardous substances" pursuant to
Section 311(b)(2)(A) of the CWA, which is codified at 40 C.F.R.
Table 116.4; a list of "toxic pollutants" pursuant to Section
307(a) of the CWA, codified at 40 C.F.R. § 401.15; a list of
"hazardous wastes" pursuant to Section 3001 of RCRA, which
appears at 40 C.F.R. §§ 261.30-261.33; and a list of "hazardous
air pollutants" pursuant to Section 112 of the Clean Air Act,
which appears at 40 C.F.R. § 61.01(a).
In addition, pursuant to Section 102, the EPA has promulgated
including a table entitled "List of Hazardous Substances and
Reportable Quantities" ("Table 302.4"), which identify
hazardous substances for purposes of CERCLA. See 40 C.F.R.
Table 302.4 (1988). According to the regulations, "[t]he
elements and compounds and hazardous wastes appearing in Table
302.4 are designated as hazardous substances under section
102(a) of [CERCLA]." 40 C.F.R. § 302.4(a). Included in the
table are "cadmium and compounds," "chromium and compounds,"
and "lead and compounds."*fn12 Based on this listing, and the
listings in the other referenced statutes, the City argues that
the "trace amounts," as Alcan characterizes them, of cadmium,
chromium and lead found in Alcan's waste are hazardous
substances, regardless of their concentration or form.
Alcan responds first that the concentrations of cadmium,
chromium and lead were insufficient to constitute hazardous
substances under CERCLA. At the same time, Alcan asks us to
find, as a matter of fact, that "the Alcan waste emulsion
involved in this action did not contain concentrations of
[cadmium], chromium or lead which exceeded .9 ppm." Def. 3(g)
Stmt. in Support, ¶ 1. While we accept this statement as a
concession that the concentrations of the chemicals were as
high as .9 ppm, we cannot find, based on the evidence before
us, that the concentrations did not exceed .9 ppm. Laboratory
tests conducted on Alcan's wastes in 1980 showed concentrations
of cadmium ranging from .08 to .26 ppm, and averaging at .19
ppm; chromium at consistently less than .1 ppm; and lead
ranging from 4.0 to 14.2 ppm, averaging at 9.2 ppm. Affidavit
of Christopher A. Amato, sworn to on March 8, 1989 ("Amato
Aff."), Exhibit A.*fn13 December 1983 test results indicated
concentrations of cadmium at .05 ppm, chromium at .08 ppm, and
lead at .9 ppm. Id.*fn14 Three more laboratory reports are
attached to a document entitled "Characterization of Alcan:
Oswego's Waste Oil (Emulsion) Disposed of by: PAS," prepared by
David J. Lagoe, Supervisor of Laboratories and Environmental
Management at Alcan's Oswego facility ("Lagoe Report"). Notice
of Cross Motion, Exhibit A, Attachment C. These reports
indicate varying levels of cadmium, ranging from less than .1
to less than .01; chromium, ranging from .4 to less than .01;
and lead, ranging from less than .1 to less than .01. Faced
with all these test results apparently obtained with differing
testing procedures, we are obviously in no position to
determine the level of contaminants in Alcan's waste.
Nevertheless, we are satisfied that liability under CERCLA
attaches regardless of the concentration of the hazardous
substances present in a defendant's waste, so long as the
defendant's waste and/or the contaminants in it are "listed
hazardous substances" pursuant to 40 C.F.R. § Section 302.4(a).
Numerous courts have held that Section 101(14) of CERCLA
"requires only that a substance be designated as hazardous or
toxic under one of the referenced statutory provisions to be a
hazardous substance under CERCLA." United
States v. Carolawn Co., 21 Env't Rep. Cas. (BNA) 2124, 2125
(D.S.C. 1984); see also Amoco Oil Co. v. Borden, Inc.,
889 F.2d 664, 669 (5th Cir. 1989); Dedham Water Co. v. Cumberland Farms
Dairy, Inc., 889 F.2d 1146, 1151, n. 6 (1st Cir. 1989) (quoting
Carolawn), clarified by 901 F.2d 3 (1st Cir. 1990);
Louisiana-Pacific Corp. v. Asarco, Inc., 735 F. Supp. 358, 361
(W.D. Wash.) (citing Amoco Oil), aff'd, 909 F.2d 1260, 1990 WL
89735 (9th Cir. July 3, 1990); United States v. Conservation
Chemical Co., 619 F. Supp. at 238. As the court in Carolawn
[t]he definition of "hazardous substance" in
CERCLA Section 101(14) simply does not distinguish
hazardous substances on the basis of quantity of
concentration. Instead, the provision refers only
to lists, such as the list of toxic pollutants
promulgated pursuant to Section 307 of the Clean
Water Act, . . . which are also nonspecific with
respect to quantity or concentration.
Carolawn, 21 Env't Rep.Cas. at 2126.