ELR Citation: ELR 20145
No(s). 85 CIV 1939 (S.D.N.Y. Jun 19, 1991)

The court holds that any compound of cadmium, chromium, and lead is a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and a hazardous waste generator is liable under CERCLA for response costs and natural resource damages incurred at New York City landfills. On a motion for reconsideration of a hazardous waste generator's liability under CERCLA, the court adheres to its rulings in a prior decision that the generator's waste does not qualify for CERCLA's petroleum exclusion and that the generator caused response costs, which were not divisible, at city landfills. The court had reserved judgment on whether under U.S. Environmental Protection Agency (EPA) regulations the generator's waste is an unlisted hazardous waste that exhibits extraction procedure (EP) toxicity for chromium, cadmium, and lead. The court now holds that the metals in the generator's waste are listed hazardous substances under EPA regulations because they fall within the generic categories listed in the 40 C.F.R. §302.4(a) table of "cadmium and compounds," "chromium and compounds," and "lead and compounds." The court concludes that these generic categories are not mere organizational tools, but instead represent broad classes of hazardous substances, derived from the list of toxic pollutants promulgated under §307(a) of the Federal Water Pollution Control Act (FWPCA). The court defers to EPA's interpretation that any substance that falls within any of the broad generic classes is a hazardous substance as defined by CERCLA §101(14). The court holds that CERCLA's definition of hazardous substance includes any wastes that fall under any one of the various definitions and listings of hazardous waste under other statutes, including the FWPCA and the Resource Conservation and Recovery Act (RCRA). The court holds that no additional requirement exists that the generator's waste must exhibit a certain level of EP toxicity or any of the other characteristics derived from the RCRA regulations. The court also holds that the by virtue of their listing as hazardous air pollutants under §112 of the Clean Air Act, all cadmium, chromium, and lead compounds are also hazardous substances under CERCLA.

Turning to matters for reconsideration, the court next holds that the generator cannot escape liability for its waste oil emulsion by relying on CERCLA's petroleum exclusion. Even though the generator did not intentionally add contaminants to the oil it used, EPA has stated that only unadulterated waste oils are excluded from the definition of hazardous substance under CERCLA §101(14). The court hold that the generator is liable for waste disposed of in city landfills. The probative evidence is undisputed and an additional affidavit submitted on behalf of the generator is not new or contradictory evidence. The court holds that the city has met its burden on the elements of CERCLA liability, and the generator cannot meet its burden in establishing a third-party affirmative defense under CERCLA §107(b)(3). The court holds that the generator is also liable to the city for natural resource damages under CERCLA §107(a)(4)(C). That hazardous substances of the type the generator uses have contaminated soil, groundwater, and surface waters near the landfills is sufficient ground to impose liability for natural resource damages. The city has also established that it is the authorized representative of the state of New York for purposes of pursuing a claim for natural resource damages. Finally, the court holds that the generator has not established a prima facie case of selective enforcement in violation of the Fourteenth Amendment's Equal Protection Clause, and the city is not entitled to sanctions under Federal Rule of Civil Procedure 11 for the generator's motion for reconsideration.

[The court's prior decision is published at 21 ELR 21248. Other related decisions are published at 16 ELR 20850, 19 ELR 20332, 20 ELR 21321, and 21 ELR 21051.]

Counsel for Plaintiff
Victor A. Kovner, Corporate Counsel
New York City Law Department
100 Church St., New York NY 10007
(212) 788-0808

Counsel for Defendant
Lawrence A. Salibra II
Alcan Aluminum Corp.
100 Erieview Plaza, Cleveland OH 44114
(216) 523-6800

Joseph DiBenedetto
Winston & Strawn
175 Water St., New York NY 10038
(212) 269-2500