ELR Citation: ELR 21124
No(s). 91-5481 (3d Cir. May 14, 1992)

The court vacates a district court decision requiring one of 20 generators of hazardous waste released from a Pennsylvania disposal site into the Susquehanna River to pay $473,790 in U.S. response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and remands the case to the district court for a hearing on the divisibility of harm to the river. An aluminum manufacturing company contracted for the disposal of used aluminum rolling emulsion, which was transported to a Pennsylvania mining borehole and disposed of with approximately two million gallons of oil wastes. The company argued that CERCLA's definition of "hazardous substance" must be construed as having a threshold concentration requirement for the term "hazardous" to have any meaning. The court first holds that the district court correctly determined that CERCLA's definition of "hazardous substances" does not include a threshold concentration or quantitative requirement. The statute, on its face, does not impose any quantitative requirement or concentration level on the definition, and the legislative history is barren of any remarks directly revealing Congress' intent to impose a threshold requirement. Additionally, courts that have addressed this issue have almost uniformly held that CERCLA liability does not depend on the existence of a threshold quantity of a hazardous substance. Finally, Congress could easily have imposed a threshold requirement, if it had so intended. The court further holds that the district court's definition of "hazardous substance" is consistent with the regulations and policy of the U.S. Environmental Protection Agency.

The court next holds that a CERCLA plaintiff need not establish that a generator's hazardous substances caused the release and the resulting incurrence of response costs. The plain meaning of the statute, the Act's legislative history, and case law all support this conclusion. The court holds that the district court correctly determined that the generator's used emulsion does not fall within CERCLA §101(14)'s petroleum exclusion, because the generator added hazardous substances to the emulsion. The court holds that applying common law joint and several liability principles infuses fairness into the statutory scheme without distorting its plain meaning or disregarding congressional intent. Finally, the court directs the district court to allow the generator to prove the divisibility of harm caused by the hazardous substance release and the possibility of reasonably apportioning damages.

[Related pleadings and briefs are digested at ELR PEND. LIT. 66164.]

Counsel for Appellant
Lawrence A. Salibra II
100 Erieview Plaza, 17th Fl., Cleveland OH 44114
(216) 523-6800

Counsel for Appellee
John T. Stahr
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Scirica and Debevoise,^* JJ.