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U.S. v. ALCAN ALUMINUM CORP.

May 11, 1999

UNITED STATES OF AMERICA AND THE STATE OF NEW YORK, PLAINTIFFS,
v.
ALCAN ALUMINUM CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: McAVOY, Chief Judge.

MEMORANDUM — DECISION & ORDER

I. BACKGROUND

A. Procedural History

The United States of America and the State of New York (collectively, the "government") initiated this action on July 10, 1987, against 83 business entities to recover response costs pursuant to section 107 of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607 (as amended), in connection with the clean-up costs of a hazardous waste site formerly owned by Pollution Abatement Services of Oswego, Inc. ("PAS"). Shortly after commencement, the government entered into a consent decree with 82 of these defendants, recovering $9.1 million. The suit proceeded against the lone holdout, Alcan Aluminum Corporation ("Alcan"), for the remaining $3.2 million of unrecovered costs. Alcan thereafter filed a third-party complaint seeking contribution from Cornell University ("Cornell").

Following discovery, the Court granted summary judgment in favor of the government, holding Alcan jointly and severally liable for cleanup costs at PAS. The Court further held that Alcan had failed to meet its burden to establish that the harm at PAS was divisible, and awarded the government approximately $4 million in accumulated response costs. The Court also granted Alcan's motion for summary judgment seeking contribution from Cornell. The Court then held a hearing to determine the fair share of Cornell's liability to Alcan. Adopting the six-factor fair share allocation test set forth in United States v. R.W. Meyer, Inc., 932 F.2d 568 (6th Cir. 1991), the Court ruled that Cornell was responsible for six percent of the response cost recovered by the government from Alcan and therefore awarded Alcan $310,540.92. An amended final judgment was entered on May 29, 1992.

On appeal, the Second Circuit affirmed the granting of summary judgment with respect to the imposition of liability against Alcan for response costs at PAS, and the finding that Alcan was entitled to contribution from Cornell at PAS. But it reversed the Court's finding that the government was entitled to summary judgment against Alcan on the question of the divisibility of the harm, holding that Alcan had put forth sufficient evidence to establish a factual issue whether the harm caused at the PAS was capable of apportionment of liability. United States v. Alcan Aluminum Corp., 990 F.2d 711 (2d Cir. 1993) ("Alcan").

On remand, the government moved for summary judgment against Alcan on the issues of (1) liability in the so-called Alcan-Fulton case (91-CV-1132), and (2) apportionment of liability with regards to the Alcan-PAS case (87-CV-920).*fn1 Alcan opposed the government's motion for summary judgment, and cross-moved for summary judgment on the same issues.

In a Memorandum — Decision & Order dated October 28, 1996, this Court granted the government's motion for summary judgment with respect to liability in Alcan-Fulton, but reserved decision on the issue of apportionment of liability pending a rebriefing by the parties. United States v. Alcan Aluminum Corp., 1996 WL 637559, at *2-*4 (N.D.N.Y. Oct.28, 1996). After rebriefing, the Court denied the cross-motions for summary judgment, finding that apportionment of liability could not be made because questions of material fact remained as to what hazardous substances were contained in Alcan's oil emulsion and whether the metals could have concentrated. United States v. Alcan Aluminum Corp., 1997 WL 727506 (N.D.N.Y. Aug.20, 1997).

Alcan now moves to dismiss the Complaint pursuant to FED.R.CIV.P. 12(b)(6), asserting that the retroactive application of CERCLA is unconstitutional in light of the Supreme Court's decision in Eastern Enterprises v. Kenneth S. Apfel, 524 U.S. 498, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998).

B. Facts

From 1970 to 1977, various chemical waste materials were received for disposal or treatment at PAS. As a result of PAS operations, the site's surface became contaminated by hazardous substances because of wastes leaching from drums, lagoons being overtopped and surface runoff. During the 1970 through 1977 period, Alcan used PAS for the disposal or treatment of 4.6 million gallons of oil emulsion.

In the late 1970s, the government began undertaking response measures at PAS. In 1989, the United States also undertook response measures at Fulton. This lawsuit followed to recover the response costs incurred in connection with the clean-up of both sites.

II. DISCUSSION

Presently before the Court is Alcan's motion to dismiss pursuant to FED. R.CIV.P. 12(b)(6). When deciding a motion to dismiss, a court must accept as true all factual allegations in the complaint and construe them favorably to plaintiff. LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). The court should not dismiss on a Rule 12(b)(6) motion unless it appears clear that the plaintiff cannot in any way establish a set of facts to sustain her claim which would ...


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