ELR Citation: ELR 20706
No(s). s. 92-6158, -6160 (2d Cir. Apr 6, 1993)

The court holds that a generator of an oil emulsion may escape liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) by proving its wastes did not contribute more than background contamination to the release and that the wastes cannot concentrate. The court first holds that the doctrine of collateral estoppel did not obligate the district court to follow a decision by the U.S. Court of Appeals for the Third Circuit in a similar case between the government and the generator defendant. The court next notes that CERCLA does not impose quantitative thresholds below which a substance would be exempt from the definition of "hazardous substance," and that CERCLA does not require proof that a specific defendant's waste caused the incurrence of cleanup costs. However, based on the common-law exception to joint and several liability for divisible harm, the court holds that the generator defendant may escape liability for response costs if it succeeds in proving that its oil emulsion disposed of at the contaminated site, when mixed with other hazardous wastes, did not contribute to the release and the cleanup costs that followed, or contributed at most only to a divisible portion of the harm. Commingling of waste is not synonymous with indivisible harm and defendant bears the burden of establishing a reasonable basis for apportioning liability. The court adopts a special exception to CERCLA's absence of a causation requirement, applicable where background levels are not exceeded and the U.S. Environmental Protection Agency (EPA) has not set any thresholds.

Turning to the liability of a university that disposed of contaminated water at the same site, the court holds that the university is a potentially liable party under CERCLA §107(a)(3), because it arranged for the disposal of waste at the site. The court holds that the university may be liable for contribution under CERCLA without applying the Superfund Amendments and Reauthorization Act (SARA) retroactively. Federal common law provided a right of contribution under CERCLA before SARA's enactment. The court affirms the district court's ruling that EPA's negotiated removal of the university from the list of potential defendants does not protect the university from CERCLA's contribution actions regardless of whether CERCLA §122, added by SARA, or pre-SARA federal common law applies.

[The district court's opinion is published at 21 ELR 20767. Briefs for the generator, the university, and the government are published at ELR Pend. Lit. 66230.]

Counsel for Plaintiffs-Appellees
Anne S. Almy, Henry Friedman
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Charles De Saillan, Charles Breece
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090

Counsel for Defendant and Third-Party Plaintiff
John C. Tillman
Arter & Hadden
1100 Huntington Bldg., 925 Euclid Ave., Cleveland OH 44115
(216) 696-1100