ELR Citation: ELR 21556
No(s). 89-CV-1657 (M.D. Pa. Jun 28, 1995)

The court holds that the focus of the divisibility of harm inquiry in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cost recovery action should be on the waste as a whole, not on its individual constituents. The manufacturer used an emulsion in its manufacturing process that contained five percent mineral oil and into which trace amounts of hazardous substances were added during the manufacturing process. The process wastes were deposited in an abandoned mine. In 1985, a hurricane led to the release of oily waste containing manufacturer's used emulsion into the Susquehanna River. The manufacturer contended that its potential contribution to the environmental harm is limited to an assessment of the impact of the trace-level metals found in its used emulsion, which it argued were below background levels and, therefore, could not have caused the metals-related environmental problem. Moreover, it argued, when the hazardous substances are removed from the analysis, the mineral oil falls within CERCLA's petroleum exclusion. The court holds, however, that the used emulsion falls with CERCLA's liability scheme. The effort to dissect its waste material into components regulated by CERCLA and those not regulated by CERCLA is not consistent with the Act's remedial purposes. Moreover, although the constituents of the used emulsion that bring it within CERCLA's ambit may not have contributed to the harm, the manufacturer has not contended that the used emulsion was itself harmless. The court also holds that the manufacturer's failure to present any evidence on matters germane to apportionment of liability entitles the government to recover the full amount of its unreimbursed response costs. The manufacturer failed to present objective evidence relating to the relative toxicity, migratory potential, volume of waste disposed of at the site, or the percentage of that volume represented by its wastes. Finally, the court holds that the manufacturer failed to prove that the release of hazardous substances was caused by an act of God, a CERCLA §107(b) defense to liability. The hurricane that led to the release was not the sole cause of the release and resulting response costs. Also, the effects of the hurricane could have been avoided with the exercise of due care or foresight, and heavy rainfall is not the kind of exceptional natural phenomenon to which the act-of-God defense applies.

[An earlier decision remanding this action is published at 22 ELR 21124.]

Counsel for Plaintiff
Margaret K. Harrington
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Gerry J. Elman, Frederic M. Wilf
Elman, Wilf & Fried
20 W. Third St., P.O. Box 1969, Media PA 19063
(610) 892-9580