The opinion of the court was delivered by: Conboy, District Judge:
This is an action brought pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act, as
amended by the Superfund Amendments and Reauthorization Act of
1986 ("CERCLA"), 42 U.S.C. § 9601 et seq. (West 1983 & Supp.
1990), enacted by Congress in 1980 "as a legislative response
to the growing problem of toxic industrial wastes, many of
which, having been disposed of before their toxicity was widely
known, had contaminated the land and water resources of
American towns and cities." City of New York v. Exxon Corp.
(Exxon I), 633 F. Supp. 609, 613 (S.D.N.Y. 1986) (Weinfeld, J.).
Currently pending before the Court are cross-motions for
summary judgment by plaintiff the City of New York ("the City")
and defendant Alcan Aluminum Corporation ("Alcan").*fn1 For
the reasons set forth below, the City's motion for partial
summary judgment is granted in part, and decision is reserved
on the remaining issues presented in the papers.
The City commenced this action in March of 1985, under
CERCLA, together with various state law claims, against fifteen
corporate defendants, seeking to recover from defendants the
cost of responding to a grave threat to public health and the
environment caused by the illegal disposal of defendants'
industrial and chemical wastes at five City landfills.*fn2 The
wastes were transported to the landfills by certain
waste-hauling companies owned or operated by Russell Mahler
("the Mahler companies"). Mahler gained access to the City
landfills for the purpose of dumping the waste by bribing an
employee of the City's Department of Sanitation. The complaint
seeks (i) recovery of the costs incurred to date for evaluating
the nature and extent of chemical contamination at the five
sites and for emergency measures taken to control the off-site
migration of hazardous substances; (ii) a declaratory judgment
that defendants are liable for the future
costs of investigations and remedial actions at the sites; and
(iii) damages for injury to natural resources caused by
From 1970 through 1980, Alcan owned and operated a facility
located in Oswego, New York ("the Oswego facility") where
various aluminum sheet and plate products were manufactured.
Part of the manufacturing process at the Oswego facility
included the hot rolling of aluminum ingots, during which an
oil/water emulsion was used to cool and lubricate the rolls.
According to Alcan, the oil in the emulsion averaged roughly
5%, and, after circulation through the rolls, concededly
contained lead, cadmium, and chromium ions, see Defendant Alcan
Aluminum Corporation's Memorandum in Opposition to Plaintiff's
Motion for Partial Summary Judgment and in Support of
Defendant's Cross Motion for Summary Judgment Against Plaintiff
("Def. Mem.") at 1, all of which, the City contends, are listed
as "hazardous substances" in regulations promulgated by the
Environmental Protection Agency ("EPA") pursuant to Section 102
of CERCLA, 42 U.S.C. § 9602, see 40 C.F.R. Table 302.4.*fn3
The emulsion was circulated through the rolls until the
oil/water suspension broke down, at which time the used
emulsion was removed from the manufacturing process and a new
emulsion was substituted.
After circulation, the used emulsion was pumped to a waste
oil storage tank. From March 1975 through March 1980,*fn4
Alcan contracted with three of the Mahler companies for the
removal, transportation and disposal of 3.9 million gallons of
the waste oil/water emulsion. Affidavit of Russell W. Mahler,
sworn to on April 24, 1989 ("Mahler Aff."), ¶ 5. According to
Kenneth W. Mansfield, a former Mahler company driver,
dispatcher and plant supervisor in charge of assigning trucks
and drivers to various pick-up and disposal points, Affidavit
of Kenneth W. Mansfield, sworn to on February 6, 1989
("Mansfield Aff."), ¶ 5, the Mahler companies trucked the waste
emulsion from the Oswego facility either directly or via a
Mahler company facility located in Syracuse, New York, to a
Mahler Company facility located at 37-80 Review Avenue, Long
Island City, New York ("the Review Avenue facility"), id. ¶ 14,
or to another Mahler Company facility located at One River
Road, Edgewater, New Jersey ("the Edgewater facility").
Affidavit of Kenneth W. Mansfield, sworn to February 6, 1988
("Mansfield 1988 Aff."), ¶ 14.
At the Review Avenue and Edgewater facilities, the waste oils
from Alcan's Oswego facility, as well as oily wastes from other
generators were tested for bottom sediment and water ("BS & W")
content. Mansfield Aff. ¶ 8. A high BS & W value indicated a
low proportion of recoverable oil in the load, and vice versa.
As a general rule, loads with a BS & W value of 50% or less
were put into the oil recovery process, and loads with a BS & W
value of 50%, or higher were not. Id. Loads of oily waste that
were not put into the oil recovery process because of high BS &
W values were routinely disposed of in the City landfills. Id.;
Mahler Aff. ¶ 3. According to Mahler, the principal officer of
the Mahler companies, and Mansfield, the used emulsion
generated by Alcan had a consistently high BS & W value, and
was therefore unsuitable for processing. Mahler Aff. ¶ 6;
Mansfield Aff. ¶¶ 15-16. Consequently, most of the Alcan waste
was disposed of in City landfills and other locations. Id.
According to Mansfield, who makes reference in his affidavit to
his logbook, from 1978 to 1980, approximately 30 truckloads —
or approximately 200,000 gallons — of Alcan's waste were
disposed of in City landfills. Mansfield Aff. ¶ 15.
Questioning the credibility of Mahler, a convicted
felon,*fn5 Alcan asserts that none of Alcan's wastes were
disposed of in City landfills. In support, Alcan offers a
letter it received in May 1979 from Russell Mahler, which
Please be informed that the liquid waste we remove
from your plant is trucked to our plant in
Syracuse, N Y
It is preprocessed in Syracuse, N.Y. and then
transported to Edgewater Terminals Inc.,
Edgewater, N.J. for final processing.
This involves removal of the solids, water, and
oil into their proper categories, by a process of
centrifuging and other steps.
Letter, dated May 9, 1979, from Russell W. Mahler to Larry
Carroll (attached as Exhibit L to Notice of Cross Motion for
Summary Judgment by Defendant Alcan Aluminum Corporation
("Notice of Cross Motion")). This letter does not deny that
Alcan's wastes were disposed of in City landfills.
Alcan also offers the affidavit of Walter Holst, a former
Mahler company plant superintendent, who avers that all the
Alcan's emulsion was processed in Syracuse, re-refined, and
resold to other companies. Affidavit of Walter Holst, sworn to
on December 19, 1988 ("Holst Aff.") (attached as Exhibit M to
Notice of Cross Motion), ¶¶ 9, 10. Thus, according to Holst,
"at no time was any Alcan waste transported [from the Syracuse
facility] to the Edgewater, New Jersey hazardous waste disposal
site." Id. ¶ 8. In a subsequent declaration obtained by the
City, however, Holst admits that he has "no direct personal
knowledge of the final destination of every truck which was
dispatched to Alcan's Oswego facility for waste pick-ups."
Declaration of Walter Holst, executed on August 13, 1989
("Holst Decl.") (attached as Exhibit A to Supplemental
Affidavit of Christopher A. Amato, sworn to on September 14,
1989 ("Amato Supp. Aff.")), ¶¶ 3, 5. The affidavits of Mahler
and Mansfield, in contrast, are based on direct personal
knowledge, and thus stand unrefuted, except for the conclusory
challenge to Mahler's credibility.
To complete the chain of evidence linking Alcan's waste to
the City landfills, the City offers the testimony of Phillip J.
Gleason, the City's Director of Landfill Engineering. Gleason
testifies that preliminary site investigations at each of the
five landfills have revealed that hazardous substances of the
type generated by Alcan and disposed of in the City landfills
by the Mahler companies are present in the groundwater at each
of the five sites, and in the oil leachate at the Pennsylvania
Avenue landfill. Affidavit of Phillip J. Gleason, sworn to on
March 9, 1989 ("Gleason Aff."), ¶ 9, Exhibits C and D.
Moreover, groundwater containing some or all of these
substances is migrating from the landfills into nearby surface
waters at each of the sites; oil leachate containing some or
all of these substances is being discharged into Jamaica Bay
from the Pennsylvania Avenue landfill; and there is a threat of
substantial future releases of hazardous substances from these
sites. Id. ¶¶ 5-8. To date, the City has expended more than $2
million in responding to the release of toxic wastes at these
sites, and it is anticipated that substantial additional
expenditures will need to be made to remediate fully the
environmental contamination at these sites. Id. ¶¶ 3-4, 10.
Although the procedural history of this case is lengthy, that
part relevant to defendant
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.
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, ...