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June 19, 1991


The opinion of the court was delivered by: Conboy, District Judge:


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

I. Interpretation of 40 C.F.R. § 302.4

A. Our Prior Opinion

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.

  B.  CERCLA's Inclusion of the Clean Water Act's List of
      Hazardous Substances

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.

C. EPA's Own Interpretation of the Rule

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 this explanation in a subsequent portion of the preamble:

    The generic groups of chemicals designated under
  [CWA] section 307(A), such as "SILVER AND
  COMPOUNDS," are printed in capital letters and
  have no RQ [reportable quantity] assigned to them.
  These generic groups of chemicals could
  potentially encompass hundreds of specific
  compounds with varying toxicities; it is therefore
  not appropriate to establish a single RQ for each
  generic group. Although CERCLA notification
  requirements apply only to specific compounds for
  which RQ's are listed in Table 302.4, CERCLA
  liability may*fn1 still attach to releases of
  specific compounds that are within one of the
  generic listings but not specifically listed in
  Table 302.4.

50 Fed.Reg. 13472-73 (emphasis added). Consequently, according to the EPA, substances that fall within the generic classes listed pursuant to Section 302.4(a) are hazardous substances under Section 101(14) of CERCLA.

Where the EPA's interpretation of a statute is reasonable and consistent with the language of a statute, it is entitled to considerable deference. E.g., Chemical Mfrs. Ass'n v. Natural Resources Defense Council, 470 U.S. 116, 125, 105 S.Ct. 1102, 1107, 84 L.Ed.2d 90 (1985) (EPA's interpretation of Clean Water Act is entitled to "considerable deference"); Chevron, USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984) (court may not substitute its own construction for a reasonable agency interpretation); Wilshire Westwood Assocs. v. Atlantic Richfield, 881 F.2d 801, 808-10 (9th Cir. 1989) (considerable weight should be accorded to EPA's interpretation of CERCLA); Vermont v. Thomas, 850 F.2d 99, 102 (2d Cir. 1988) (a court must give great deference to EPA's interpretation of Clean Air Act). Moreover, when the EPA Administrator's interpretation of his own regulations is at issue, deference is even more clearly in order. E.g., Vermont v. Thomas, 850 F.2d at 102; Soler v. G & U, Inc., 833 F.2d 1104, 1108 (2d Cir. 1987), cert. denied, 488 U.S. 832, 109 S.Ct. 88, 102 L.Ed.2d 64 (1988).

Thus, where, as here, EPA is interpreting its own regulations, as it has done in the preamble of Section 302.4, EPA's interpretation is entitled to considerable deference. EPA expressly states in the preamble to the Rule that any substance that falls within any of the broad generic classes is a hazardous substance under Section 101(14) of CERCLA. EPA's interpretation is reasonable and consistent with the plain words of Section 101(14), and therefore is entitled to deference.

D. RCRA's Two-Prong Approach

The fact that the reference in Section 302.4(b) to Table 1 and 40 C.F.R. § 261.24 is redundant for any chromium-containing waste, as it is for lead- and cadmium-containing wastes, is, as the City points out, simply the result of overlap between the various statutes which form the basis of CERCLA's definition of hazardous substance. Section 302.4, the list of hazardous substances designated pursuant to CERCLA, 42 U.S.C. § 9602, incorporates designations of hazardous substances pursuant to CWA, RCRA, the Clean Air Act, and the Toxic Substances Control Act. 42 U.S.C. § 9601(14). Whereas the generic categories listed in Table 302.4 of "cadmium and compounds", "chromium and compounds", and "lead and compounds" are taken from the list of toxic pollutants designated pursuant to CWA (see 42 U.S.C. § 9601(14)(D)), Section 302.4(b) is derived directly from Subpart C of the EPA regulations promulgated pursuant to Section 3001 of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq. (see 42 U.S.C. § 9601(14)((C)). Although the designations or listings of toxic pollutants and hazardous wastes pursuant to the CWA and RCRA are not identical, the coverage of the two regulatory schemes does coincide to some extent. Thus, incorporating the two schemes into 40 C.F.R. § 302.4 inevitably results in some overlap.

The RCRA regulations create two separate and independent standards for determining whether a substance is a hazardous waste. Subpart C of the RCRA regulations provides that a waste is hazardous if it exhibits any of the characteristics of ignitability, corrosivity, reactivity, or EP toxicity. See 40 C.F.R. §§ 261.20-261.24. Subpart D, on the other hand, is a list of both specific wastes (e.g., endrin, nickel cyanide, DDT, mercury) and general waste categories (e.g., wastewater treatment sludges, filter solids) which are considered RCRA hazardous wastes. See 40 C.F.R. §§ 261.30-261.33. Thus a waste which falls within none of the listed specific or generic hazardous waste categories in Subpart D will nevertheless be regulated as an unlisted hazardous substance if it exhibits any of the four characteristics set forth in Subpart C.

As indicated by the definition of hazardous waste set forth in the regulation, the Subpart C characteristics are intended to broaden the category of wastes regulated, not to be an additional or modifying standard to be met by wastes listed in Subpart D:

  (a) A solid waste, as defined in § 261.2, is a
  hazardous waste if:

(2) It meets any of the following criteria:

      (i) It exhibits any of the characteristics of
    hazardous waste identified in Subpart C.

(ii) It is listed in Subpart D. . . .

40 C.F.R. § 261.3(a) (emphasis added). The use of the word "any" in the definition makes clear that a waste will be regulated as a hazardous waste under RCRA if it either is listed in Subpart D or exhibits any of the Subpart C characteristics.

There is no requirement that a waste qualify under both Subpart C and Subpart D. For example, Subpart D includes among its generic categories of hazardous waste "surface impoundment solids contained in and dredged from surface impoundments at primary lead smelting facilities," "API separator sludge from the petroleum refining industry" and "tank bottoms (leaded) from the petroleum refining industry." See 40 C.F.R. § 261.32. All three of these generic categories of waste contain lead, yet they are regulated as hazardous wastes even it the amount of lead is below the EP toxicity limit for lead in Subpart C. See 40 C.F.R. § 261.24.

Similarly, there is no requirement that a hazardous waste listed in Table 302.4(a) exhibit any of the characteristics, identified in 40 C.F.R. 261.20 through 261.24, of corrosivity, ignitability, reactivity, or EP toxicity. Under CERCLA's definition of "hazardous substance," hazardous substances include any wastes which fall under any one of the various definitions and listings of hazardous wastes under other statutes, including RCRA and CWA. 42 U.S.C. § 9601(14). Thus, a waste like Alcan's is hazardous if it contains any of the toxic pollutants "listed under section 307(a)" of the CWA, 42 U.S.C. § 9601(14)(D); there is no requirement that it also qualify as a hazardous waste under RCRA, 42 U.S.C. § 9601(14)(C). In other words, there is no requirement that Alcan's waste also exhibit a certain level of EP toxicity or any of the other characteristics derived from Subpart C of RCRA and incorporated into Section 302.4(b). Because the constituents of Alcan's waste are "listed hazardous substances" under 40 C.F.R. § 302.4(a), it is not necessary to consider Section 302.4(b) and its provisions for determining whether an unlisted hazardous waste is hazardous.

Alcan's suggestion that only soluble metals, i.e., those that exhibit EP toxicity, should be hazardous substances is therefore without support in the statute or the regulations. Congress determined that the definition of hazardous substance in Section 101(14), 42 U.S.C. § 9601(14), would be broad, and nowhere required EPA to limit the definition of CERCLA hazardous substance for metals and their compounds to RCRA characteristic wastes. Indeed, insoluble waste may combine with other materials at a site to become a health hazard. Moreover, the solubility test is designed to determine the mobility of particular constituents in waste and their potential to contaminate groundwater after leaking from a landfill. See 55 Fed.Reg. 11798, 11800 (March 28, 1990) ("The Extraction Procedure Toxicity Characteristic (EPTC) defines the toxicity of a waste by measuring the potential for the toxic constituents in the waste . . . to leach out and contaminate groundwater at levels of health or environmental concern."). This particular concern — the protection of groundwater — addressed by the EP test is based upon RCRA's regulatory objectives, not on CERCLA's broad, remedial concern for releases into any environmental media. See Section 101(8) of CERCLA, 42 U.S.C. § 9601(8) ("The term `environment' means . . . surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air within the United States or under the jurisdiction of the United States.").*fn2 Thus, it is not appropriate to engraft onto the definition of hazardous substance under CERCLA a solubility requirement derived from RCRA, especially because CERCLA was enacted, in large part, to correct the "[d]eficiencies in [RCRA]" which had "left important regulatory gaps." H.R.Rep. No. 1016, Part I, 96th Cong., 2d Sess. 22, reprinted in 1980 U.S.Code Cong. & Admin.News 6119, 6125.

E. 1990 Clean Air Act Amendments

Our conclusion that Congress designated all cadmium, chromium and lead compounds as CERCLA hazardous substances is bolstered by the 1990 amendments to the Clean Air Act, which establish, inter alia, a list of "hazardous air pollutants" for which EPA must establish emission standards. Among the listed hazardous air pollutants are "cadmium compounds", "chromium compounds" and "lead compounds". See Section 112(b)(1) of the Clean Air Act, 42 U.S.C.A. § 7412(b)(1) (West 1983 and Supp. 1991). The following note appears at the bottom of the list: "For all listings above which contain the word "compounds" . . . the following applies: Unless otherwise specified, these listings are defined as including any unique chemical substance that contains the named chemical (i.e., antimony, arsenic, etc.) as part of that chemical's infrastructure." Id. By virtue of their listing as hazardous air pollutants under Section 112 of the Clean Air Act, all cadmium, chromium and lead compounds are also hazardous substances under CERCLA. See 42 U.S.C. § 9601(14)(E) ("any hazardous pollutant" listed under section 112 of the Clean Air Act). Consequently, the presence of cadmium, chromium, and lead compounds in Alcan's waste oil emulsion renders that waste a hazardous substance under CERCLA § 101(14)(E).

We conclude that Alcan's waste, because it contains cadmium, chromium, and lead compounds, qualifies as a hazardous substance pursuant to Section ...

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