ELR Citation: ELR 20248
No(s). 85 Civ. 1939 (EW) (S.D.N.Y. Aug 6, 1990)

The court holds that an aluminum manufacturer that generated an oil/water waste emulsion containing lead, cadmium, and chromium is liable to New York City under §107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Defendant Alcan, one of two remaining defendants in this ongoing CERCLA cost recovery action, contracted to have its used emulsion removed, transported, and disposed of by transporters, which ultimately disposed of oil wastes in New York City landfills. After the city entered into consent agreements with 13 of the original 15 named defendants, Alcan refused to settle and the city moved for partial summary judgment as to Alcan's CERCLA liability. The court first finds that Alcan's emulsion wastes were disposed of in New York City landfills. Evidence reveals that Alcan's emulsion wastes were trucked to the transporters' facilities for oil recovery separation and routinely disposed of in city landfills. Alcan's evidence is insufficient to meet its burden of setting forth specific facts, based on personal knowledge, that create a genuine issue of fact as to the final destination of Alcan's waste. neither the transporter's letter to Alcan, stating that Alcan's liquid waste was transported to the transporter's facility for final processing, nor a former transporter plant superintendent's affidavit, stating that Alcan's emulsion waste was processed at the transporter's facility and resold, is based on personal knowledge sufficient to meet Alcan's burden. Moreover, the effect this evidence had on Alcan's knowledge that its wastes were eventually disposed of in city landfills is irrelevant, since liability under CERCLA is strict, without regard to knowledge or intent.

The court next finds as a matter of law that hazardous substances under CERCLA need not be present in any particular concentration to be considered hazardous, and that Alcan's emulsion wastes thus contained hazardous substances. Although CERCLA defines "hazardous substances" by referencing substances designated in the Federal Water Pollution Control Act, the Resource Conservation and Recovery Act, the Clean Air Act, and the Toxic Substances Control Act, some of which set forth reportable quantities or effluent standards, numerous courts have held that CERCLA §101(14) 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. There is no indication in CERCLA that liability does not attach to concentrations below the reportable quantities. The court notes that while this conclusion exposes companies to broad CERCLA liability for disposing of certain substances in its waste in concentrations that occur naturally, a finding that liability should not attach to low concentrations of hazardous substances would lead to the absurd result that each defendant could avoid liability by relying on the low concentrations of hazardous substances in its waste. Congress enacted CERCLA in response to well-publicized toxic waste problems and intended responsible parties to bear the costs and responsibilities for remedying the harmful conditions they created.

The court next holds that because the record fails to provide an adequate basis to determine how EPA's CERCLA regulation at 40 C.F.R. §302.4(b), which lists hazardous wastes, should be interpreted or applied, the court requests further briefing. Finally, the court holds that Alcan's waste emulsion is not subject to CERCLA's petroleum exclusion. An EPA regulation provides that materials such as waste oil to which listed CERCLA substances have been added are not within the petroleum exclusion. Because the hazardous substances present in Alcan's waste emulsion were added during the aluminum production process, the petroleum exclusion does not apply. The petroleum exclusion was intended to exclude from CERCLA's coverage only spills of crude oil and other releases of crude oil.

[Prior decisions in this litigation are published at 16 ELR 20850, 19 ELR 20332, and 20 ELR 21321.]

Counsel for Plaintiff
Victor A. Kovner, Christopher A. Amato, Peter H. Lehner
City of New York Legal Department
100 Church St., New York NY 10007
(212) 566 -0745

Counsel for Defendants
Lawrence A. Salibra II
Alcan Aluminum Corp.
100 Erieview Plaza, 29th Fl., Cleveland OH 44114
(216) 523-6865

Joseph DiBenedetto
Winston, Strawn, Cole & Deitz
175 Water St., New York NY 10038