Morton Ira Greenberg

“ While Alcan's assertion is of considerable strength, the Government's rebuttal is equally forceful. It notes that individual defendants must be held responsible for environmental injury brought about by the actions of multiple defendants, even if no single defendant itself could have produced the harm, for otherwise "each defendant in a multi-defendant case could avoid liability by relying on the low concentrations of hazardous substances in its waste, while the plaintiff is left with the substantial clean-up costs associated with the defendant's accumulated wastes." ”

“ Equally unavailing is Alcan's assertion that the district court's opinion conflicts with EPA's recently promulgated national policy concerning household waste. The fact that EPA has determined that liability should not be imposed on homeowners for household waste does not indicate that household waste is not hazardous, but rather evinces EPA's understanding that household waste does include hazardous substances, for otherwise there would be no need to create an exception. ”

“ The Government reasons that this strong public interest in forcing polluters in the multi-generator context to pay outweighs a defendant's interest in avoiding liability even if that defendant has not acted in an environmentally unsound fashion when its actions are viewed without regard to the actions of others. The court in United States v. Western Processing Co., adopting the position advanced by the Government in this case, observed:
it is entirely possible for a hazardous waste facility to be comprised of entirely small amounts from many contributors. ”

“ Second, the fact that a single generator's waste would not in itself justify a response is irrelevant in the multi-generator context, as this would permit a generator to escape liability where the amount of harm it engendered to the environment was minimal, though it was significant when added to other generators' waste. ”

“ The court declined that invitation and held, "section 9607 (a) (1) unequivocally imposes strict liability on the current owner of a facility from which there is a release or threat of release without regard to causation." 759 F.2d at 1044 (footnote omitted) . The court observed that "there are defenses for causation solely by an act of God, an act of war, or acts or omissions of a third party other than an employee or agent of the defendant or one whose act or omission occurs in connection with a contractual relationship with the defendant," id. ”

“ We observe that some courts have held that a generator may present evidence that it has paid more than its "fair share" in a contribution proceeding, expressly permitted under 42 U.S.C. § 9613 (f) (2) . See, e.g., United States v. R.W. Meyer, Inc., 889 F.2d 1497, 1507 (6th Cir. 1989) cert. denied, 494 U.S. 1057, 110 S.Ct. 1527, 108 L. Ed. 2d 767 (1990) ; United States v. Monsanto, 858 F.2d at 173. In a sense, the "contribution" inquiry involves an analysis similar to the "divisibility" inquiry, as both focus on what harm the defendant caused. ”

“ As the comments concerning this issue explain, the burden of proving that the harm is capable of apportionment is placed on the tortfeasor to avoid: the injustice of allowing a proved wrongdoer who has in fact caused harm to the plaintiff to escape liability merely because the harm which he has inflicted has combined with similar harm inflicted by other wrongdoers, and the nature of the harm itself has made it necessary that evidence be produced before is can be apportioned. ”

“ According to Alcan, "it is technically impossible to have a release or threatened release such that a clean-up would be authorized or justified under the National Contingency Plan as a result of the addition of the metal compounds in the Alcan emulsion to the Butler Site. When one adds two materials that have the same concentrations of an element or compound, the net result is the same concentration. It can never result in a higher concentration." ”

“ Similarly, section 881 sets forth the affirmative defense based upon the divisibility of harm rule in section 433A:
If two or more persons, acting independently, tortiously cause distinct harms or a single harm for which there is a reasonable basis for division according to the contribution of each, each is subject to liability only for the portion of the total harm that he has himself caused. ”

“ Further, cadmium, chromium, lead and zinc do have CASRNs listed in the regulations. See 40 C.F.R. 302.4 Appendix A. It also appears that the absence of RQ numbers for generic categories is irrelevant to CERCLA liability. Indeed, EPA has explained why it decided not to establish RQs for the many broad generic classes of organic and metallic compounds designated as toxic pollutants under section 307 (a) of the Clean Water Act:
It was recognized that to establish a single RQ for broad classes of hazardous substances would be inappropriate for many of the compounds within each class. ”

“ The mines are accessible from the surface by numerous air shafts or boreholes. One borehole (the "Borehole") is located on the premises of Hi-Way Auto Service, an automobile fuel and repair station situated above the Tunnel. The Borehole leads directly into the mine workings at the Site.
In the late 1970's, the owner of Hi-Way Auto Service permitted various liquid waste transport companies, including those owned and controlled by Russell Mahler (the "Mahler Companies") , to deposit oily liquid wastes containing hazardous substances into the Borehole. ”

“ As numerous courts have observed, CERCLA is a remedial statute which should be construed liberally to effectuate its goals. See, e.g., B.F. Goodrich v. Murtha, 958 F.2d 1192 (2d Cir. 1992) ("In CERCLA Congress enacted a broad remedial statute designed to enhance the authority of the EPA to respond effectively and promptly to toxic pollutant spills that threaten [] the environment and human health.") ; Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1150 (1st Cir. 1989) (CERCLA is a "broad response and reimbursement statute") . ”

“ The parties in this suit have also agreed that a "release" has occurred.↑ Section 9601 provides that the terms "respond" and "response" mean "remove, removal, remedy, and remedial action, all such terms (including the terms 'removal' and 'remedial action') include enforcement actions related thereto." Typically, a "removal" action is an action intended to remove the hazardous waste from the area, whereas a "remedial" action involves a long-term effort to remedy the damaged environment. ”

“ In addition, Alcan alleges that it has been subjected to unfair prosecution in violation of the equal protection clause, but it has not put forward any evidence to support that assertion. Thus, the district court's rejection of this claim was correct.↑ Dean Prosser's hornbook highlights the paradox of liability where acts harmless in themselves together cause damage, observing: A very troublesome question arises where the acts of each of two or more parties, standing alone, would not be wrongful, but together they cause harm to the plaintiff. ”

“ The Site includes a network of approximately five square miles of deep underground mines and related tunnels, caverns, pools and waterways bordering the east bank of the Susquehanna River in Pittston, Pennsylvania. The mine workings at the Site are drained by the Butler Tunnel (the "Tunnel") , a 7500 foot tunnel which feeds directly into the Susquehanna River. ”

“ CERCLA, as amended by the [ [Superfund Amendments and Reauthorization Act of 1986] ] , Pub. L. No. 99-499, 100 Stat. 1613 (Oct. 17, 1986) , grants broad authority to the executive branch of the federal government to provide for the clean-up of hazardous substance sites. ”

“ Allied Towing Corp., 596 F.2d 609, 613 (4th Cir. 1979) .↑ As we discuss below, the court of appeals in Amoco effectively built back into the statute a threshold requirement under the causation prong of liability in the single-generator context.↑ EPA's statement that it does not consider a waste to be "hazardous" for purposes of the Resource Conservation and Recovery Act ("RCRA") unless that waste exists in a form "capable of causing substantial harm if mismanaged," 57 Fed. Reg. ”