ELR Citation: ELR 20767
No(s). 87-CV-920 (N.D.N.Y. Jan 15, 1991)

The court holds that a defendant that arranged for disposal or treatment of an emulsion generated in the hot rolling of aluminum ingots is liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for response costs not covered in a settlement agreement among 82 other defendants, the United States, and the state of New York. The court first holds that hazardous substances under CERCLA include all substances so designated by the Environmental Protection Agency and under other environmental statutes. The court holds that the plain statutory language fails to impose any quantitative requirement on the term hazardous substance, and the mere listing of an element, compound, or hazardous waste establishes that a substance is hazardous as a matter of law. That various listed substances are naturally found in the environment does not stand in the way of imposing liability against a generator of that substance. Furthermore, the defendant has conceded that its waste oil emulsion contained cadmium, chromium, copper, lead, and zinc, and that these elements and all of their respective compounds are hazardous substances under CERCLA by virtue of their designation as toxic pollutants under the Federal Water Pollution Control Act. The court holds that the petroleum exclusion is an exclusion from CERCLA for "oil spills" themselves and not for releases of oil that through use has become contaminated with hazardous substances not naturally found in oil. The court also holds that the defendant's void-for-vagueness and equal protection challenges are without merit.

The court next holds that the defendant bears the burden of proof on the issue of severability, and that it has not demonstrated that the harm inflicted at the site was indivisible, because the contaminants found in the soil and water were commingled. The court further holds that the defendant has not demonstrated that the plaintiffs' response to the presence of hazardous substances at the site was inconsistent with the CERCLA national contingency plan. The court notes that CERCLA does not require that a plaintiff demonstrate a causal nexus between a defendant's conduct and the contamination of the property involved, and the government need not trace releases of hazardous substances to a particular defendant. The court also concludes that under CERCLA, contrary to the defendant's argument, low concentration levels do not mean that no contamination of the soil occurred. The court thus holds that the defendant is liable for future response costs in excess of $13 million at the Pollution Abatement Services site in the county of Oswego, New York. Finally, the court holds that Cornell University is also liable as a third party for its share of response costs incurred by the United States and the state of New York.

Counsel for Plaintiffs
Craig A. Benedict
Office of the U.S. Attorney
James F. Handley Federal Bldg., 100 S. Clinton St., Rm. 900, Syracuse NY 13260-0039
(315) 423-5165

Michael Bardee, Henry Friedman
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

David A. Munro, Karen Kimball
Office of the Attorney General
State Capitol, Albany NY 12224
(518) 474-2121

Counsel for Defendant
Lawrence A. Salibra II
100 Erie View Plaza, P.O. Box 6977, Cleveland OH 44141-1977
(216) 523-6918