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August 6, 1990


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 defendants' wastes.

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 reads:

  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.


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, ...

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