Uniroyal Chemical Co. v. Deltech Corp. , 160 F.3d 238 ( 1998 )

Revised December 3, 1998
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-31226
UNIROYAL CHEMICAL COMPANY, INC.,
Plaintiff-Appellant,
VERSUS
DELTECH CORP.; ET AL.,
Defendants,
SAFEWAY TRANSPORTATION, INC.; TMI ENTERPRISE, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
November 10, 1998
Before MAGILL,1 SMITH, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
This litigation arises from the rupture of a tanker truck
parked at a trucking terminal in Port Allen, Louisiana, resulting
in the release of a hazardous industrial chemical into the
surrounding environment. Uniroyal Chemical Company, Inc.
1
Circuit Judge of the Eighth Circuit, sitting by
designation.
(“Uniroyal”), the appellant, responded to the release and brought
suit against other involved parties to recover its clean-up costs
in accordance with the Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9600 et
seq., as amended by the Superfund Amendments and Reauthorization
Act of 1986 (“SARA”), Pub. L. No. 99-499, 100 Stat. 1613 (1986).
Uniroyal now appeals the district court’s grant of summary judgment
in favor of the defendants. We vacate the district court’s
judgment and remand this action for entry of judgment in favor of
Uniroyal.
I. FACTS
In July 1993, a driver working for Safeway Transportation,
Inc. (“Safeway”) picked up a load of Vinyl Toluene (“VT”) at an
industrial facility owned by Deltech Corporation in Baton Rouge,
Louisiana. The VT was taken in a tanker truck, which Safeway was
leasing from TMI Enterprises, Inc. (“TMI”), to a facility owned by
Uniroyal in Bay Minette, Alabama. There, Uniroyal added Naugaurd
I-5 (“I-5") to the VT load.2 The resulting mixture was then
2
Deltech is the sole producer of VT. VT is used by
Deltech as a component of a resin product manufactured and sold by
Deltech. I-5 on the other hand, is a product manufactured by
Uniroyal. Deltech used I-5 to inhibit the polymerization of VT.
The VT/I-5 mixture was destined for use by Deltech in the
production of a resin which would then be used to make other
products like paint and glue. There is no dispute that the VT/I-5
mixture was a useful industrial product, and was not in the process
of being disposed of as a hazardous waste.
2
transported back to Louisiana where, in Port Allen, the tanker
truck parked for the night at a TMI trucking terminal. The VT/I-5
mixture was scheduled for delivery at the Deltech facility in Baton
Rouge the following day.
Early the next morning the tanker truck ruptured while parked
at the TMI facility, releasing 21 tons of the VT/I-5 mixture into
the surrounding environment. Environmental officials from the
State of Louisiana promptly arrived at the scene and, after
evaluating the possible threat to public safety and the
environment, advised representatives of Uniroyal, Safeway, TMI, and
others that emergency action was needed. Only Uniroyal responded
to the request. As part of the clean-up process, nearby waterways
were blocked, contaminated soil was removed, and hundreds of
thousands of gallons of contaminated stormwater were collected and
treated. In all, Uniroyal incurred response costs in excess of
$2,300,000, for which it was refused reimbursement by the other
parties.
Uniroyal then filed suit in federal district court against
Safeway, TMI, and other involved parties.3 In addition to state-
law claims not at issue in this appeal, Uniroyal asserted a claim
against TMI and Safeway (“defendants”) under CERCLA, seeking to
3
Deltech was originally named as a defendant, but
eventually settled with Uniroyal and is not a party to the present
appeal.
3
recover the costs it incurred in responding to the rupture.4
Uniroyal brought its private cost recovery action under
§ 9607(a)(1) of the statute, which imposes liability on the “owner
or operator” of a CERCLA “facility.”5 42 U.S.C. § 9607(a)(1).
Uniroyal’s CERCLA claim against the defendants came before the
district court on cross motions for summary judgment; one filed by
Uniroyal and one filed jointly by the defendants. At a subsequent
hearing on the motions the parties agreed that there were no
triable issues of fact and that the court could decide Uniroyal’s
claim as a matter of law. In a later written order the court
denied Uniroyal’s motion for summary judgment, granted judgment in
favor of the defendants, and dismissed Uniroyal’s CERCLA claim.
That ruling was the result of the district court’s consideration of
the two separate issues of statutory construction that now form the
basis of the present appeal.
The first issue addressed by the court was whether Uniroyal
had established that the defendants were “responsible persons”
under the statute, a required element of its CERCLA claim. See
Licciardi v. Murphy Oil U.S.A., Inc., 111 F.3d 396, 398 (5th Cir.
1997) (listing the four elements of a CERCLA cause of action). The
4
Uniroyal specifically limited its CERCLA claims to TMI
and Safeway. It did not assert CERCLA claims against any other
defendants.
5
The parties do not dispute whether TMI, the carrier, and
Safeway, the owner of the tanker truck and the trucking terminal,
qualify as owners or operators under § 9607(a)(1) of the statute.
4
defendants argued that Uniroyal could not legally make that showing
because § 9607(a)(1), the provision on which Uniroyal’s claim was
based, must be read to contain a disposal requirement that
conditions liability on the disposal of a hazardous waste.6 As
there is no express disposal requirement in that provision, the
defendants urged the district court to infer one based on the
theory that CERCLA applies only to disposals at inactive or
abandoned waste sites. The district court rejected the defendants’
contentions, relying simply on the fact that the text of
§ 9607(a)(1) does not expressly contain a disposal requirement.
The district court next considered whether Uniroyal had proven
the existence of a CERCLA “facility,” another required element of
its CERCLA claim. See 42 U.S.C. §§ 9601(9) & 9607(a)(1). The
defendants alleged that Uniroyal could not meet that requirement
due to an exception in § 9601(9) that excludes from the definition
of facility any “consumer product in consumer use.” The defendants
argued that the consumer product exception was applicable in this
case because the term “consumer product” must be construed as
including all useful, non-waste products, not just goods used by
individual consumers. The district court agreed. Relying
exclusively on our decision in Dayton Indep. Sch. Dist. v. U.S.
Mineral Prods. Co., 906 F.2d 1059 (5th Cir. 1990), the district
6
This case, by comparison, involves an accidental release
of a useful commercial product.
5
court found that “all hazardous substances with a useful purpose in
production activities qualify under the consumer product
exception.” Id. at 1065-66. The Court then reasoned that because
the VT/I-5 mixture was a useful product, and the defendants were
engaged in commercial conduct at the time the rupture occurred, the
consumer product exception applied, precluding Uniroyal from
satisfying the facility requirement.
The district court, however, expressed considerable doubt
about the correctness of its decision. Though finding itself bound
by Dayton, the district court warned that our decision in Dayton
was at odds with the plain wording of the exception. The district
court further observed that several courts outside of this Circuit
had interpreted the consumer product exception as applying only to
consumer goods used for personal consumption. The district court
certified its ruling as a final judgment under Rule 54(b) of the
Federal Rules of Civil Procedure. See Fed. R. Civ. P. 54(b).
Uniroyal appeals the district court’s dismissal of its CERCLA
claim. The defendants jointly defend that ruling.
II. STANDARD OF REVIEW
We review a district court's grant of summary judgment de
novo, applying the same standards as those applied by the district
court. OHM Remediation Servs. v. Evans Cooperage Co., Inc., 116
F.3d 1574, 1579 (5th Cir. 1997). In a typical summary-judgment
6
appeal we look to whether there are genuine issues of material fact
that would have precluded judgment as a matter of law. Fed. R.
Civ. P. 56(c); Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528,
533 (5th Cir. 1997). In this case, however, the parties concede
there are no triable issues of fact, and we accept that
stipulation. Accordingly, the proper focus in this appeal is on
whether the district court adhered to the proper legal principles
in granting summary judgment to the appellees.
III. DISCUSSION
In this appeal we are faced with the same two issues of
statutory construction that were raised and argued before the
district court. We first must decide whether Uniroyal established
that the defendants are responsible persons under § 9607(a)(1) of
CERCLA. In deciding that question we must consider the defendants’
claim that § 9607(a)(1) must necessarily contain a disposal
requirement because Congress explicitly intended that CERCLA apply
only to disposals at inactive or abandoned waste sites. That is an
issue of first impression in this Circuit and, to our knowledge, in
any United States Court of Appeals.
If we decide that CERCLA is not that narrow, we next must
decide whether the consumer product exception precludes Uniroyal
from proving the existence of a CERCLA facility, another required
element of its cause of action. That question, if reached, will
7
require us to revisit our holding in Dayton to determine whether it
governs our application of the consumer product exception in the
instant appeal. If Dayton is not controlling, we will be required
to address the meaning of the consumer product exception in
considering whether it applies to all useful products, or to only
goods used for individual or personal use. We begin our analysis
with an overview of CERCLA as it relates to the present appeal.
A. Applicable Law
CERCLA was enacted in 1980 as a broad remedial measure aimed
at assuring “that those responsible for any damage, environmental
harm, or injury from chemical poisons bear the costs of their
actions." S. Rep. No. 96-848, at 13 (1980); see also OHM
Remediation Services, 116 F.3d at 1578 (acknowledging CERCLA’s
broad remedial purpose). In light of that purpose we are obligated
to construe its provisions liberally in order to avoid frustrating
Congress’ intent. See Schiavone v. Pearce, 79 F.3d 248, 253 (2d
Cir. 1996) (recognizing same obligation).
The statute operates through a bifurcated scheme to promote
the cleanup of hazardous substances that have been released into
the environment. See 3550 Stevens Creek Assocs. v. Barclays Bank
of California, 915 F.2d 1355, 1357 (9th Cir. 1990) (explaining the
bifurcated scheme), cert. denied, 500 U.S. 917 (1991). First,
through the creation of the Hazardous Substance Response Trust
8
Fund, or Superfund, 42 U.S.C. § 9631, CERCLA provides money to the
federal government for waste site cleanup, 42 U.S.C. § 9604, or for
compensating other governmental or individual parties who have
incurred response costs, 42 U.S.C. § 9611(a)(2). Second, CERCLA
also affords private parties the right to bring a cost-recovery
action against “responsible persons” for costs associated with
responding to an environmental threat. 42 U.S.C. § 9607(a); Amoco
Oil Co. v. Borden, Inc., 889 F.2d 664, 667 (5th Cir. 1989).
To establish a prima facie case for a private cost-recovery
action, a plaintiff must prove: (1) that the site in question is a
"facility" under § 9601(9), see 42 U.S.C. § 9607(a); (2) that the
defendant is a “responsible person” under § 9607(a), see 42 U.S.C.
§ 9607(a); (3) that a release or threatened release of a hazardous
substance occurred, see 42 U.S.C. § 9607(a)(4); and (4) that the
release or threatened release caused the plaintiff to incur
response costs, see 42 U.S.C. § 9607(a)(4).7 Licciardi, 111 F.3d
at 398; Amoco Oil Co., 889 F.2d at 668; Tanglewood East Homeowners
v. Charles-Thomas, Inc., 849 F.2d 1568, 1572 (5th Cir. 1988). If
the plaintiff successfully establishes those elements, and the
defendant is unable to prove one of the defenses listed in
7
CERCLA does not expressly identify the prima facie
elements of a cost recovery action. Instead, the statute merely
lists four classes of potentially liable parties, commonly referred
to as “responsible persons,” 42 U.S.C. § 9607(a). It is from this
list of responsible persons that courts have derived the elements
of a prima facie case.
9
§ 9607(b), the plaintiff is entitled to summary judgment.8 See 42
U.S.C. § 9607(b); Amoco Oil Co., 889 F.2d at 668; see also OHM
Remediation Services, 116 F.3d at 1578 (observing that because
CERCLA is a strict liability statute plaintiffs generally are not
required to prove causation).
In this appeal, the third and fourth elements of the prima
facie case are not at issue. The parties do not dispute that there
was a release or threatened release of a hazardous substance, and
that Uniroyal incurred costs in responding to the accident.
Accordingly, our sole concern in this appeal is whether Uniroyal
satisfied the first two elements of its prima facie case.
The first element of Uniroyal’s claim is the requirement that
the site in question constitute a CERCLA “facility.” That term is
defined in the statute as:
(A) any building, structure, installation,
equipment, pipe or pipeline (including any
pipe into a sewer or publicly owned treatment
works), well, pit, pond, lagoon, impoundment,
ditch, landfill, storage container, motor
vehicle, rolling stock, or aircraft, or (B)
any site or area where a hazardous substance
has been deposited, stored, disposed of, or
placed, or otherwise come to be located; but
does not include any consumer product in
consumer use or any vessel.
8
To establish a defense under § 9607(b), a defendant must
prove by a preponderance of the evidence that the release or threat
of a release of a hazardous substance and the resulting damages
"were caused solely by--(1) an act of God; (2) an act of war; [or]
(3) an act or omission of a third party . . . ." 42 U.S.C. §
9607(b).
10
42 U.S.C. § 9601(9) (emphasis added). Of particular relevance to
the present appeal is the final phrase of that definition. That
phrase, which is not defined in CERCLA itself, excludes from the
definition of facility “any consumer product in consumer use.”
Because the existence of a CERCLA “facility” is an essential
element of a CERCLA claim, that exception, often referred to as the
consumer product exception, may take on considerable importance.
If found to be applicable, it has the effect of removing a case
from the scope of CERCLA liability.
It is worth noting as a preliminary matter that in CERCLA
cases that involve toxic waste sites, the consumer product
exception is often beyond the pale of consideration since waste
sites, by definition, involve waste materials and not useful
consumer products. In cases like the present, however, where there
is an unexpected release of a useful commercial substance, the
applicability of the consumer product exception is less certain.
In these types of cases the applicability of the exception will
depend on how broadly a court reads the term “consumer product.”
The second prima facie element that Uniroyal must establish is
the “responsible person” requirement. Section 9607(a) of CERCLA
makes four classes of "responsible persons" liable for response
costs:
(1) the [present] owner and operator of . . .
a facility,
(2) any person who at the time of disposal of
any hazardous substance owned or operated any
11
facility at which such hazardous substances
were disposed of,
(3) any person who by contract, agreement, or
otherwise arranged for disposal or treatment,
or arranged with a transporter for transport
for disposal or treatment, of hazardous
substances owned or possessed by such person
. . . , at any facility . . ., and
(4) any person who accepts or accepted any
hazardous substances for transport to disposal
or treatment facilities . . . or sites
selected by such person, . . . .
42 U.S.C. § 9607(a); Joslyn Mfg. Co. v. Koppers Co., Inc., 40 F.3d
750, 760 (5th Cir. 1995). In this case, Uniroyal’s CERCLA claim
was brought under § 9607(a)(1). That cause of action, known as an
owner-operator claim, imposes strict liability on the present owner
or operator of a CERCLA facility from which there is a release or
threatened release of a toxic substance. Tanglewood East
Homeowners, 849 F.2d at 1572. Having set forth these basic
principles, we turn to the merits of the instant appeal.
B. Responsible Persons & the Scope of CERCLA Liability
The first issue for decision is whether Uniroyal sufficiently
established that the defendants are "responsible persons" under
§ 9607(a)(1) of the statute. On appeal, the defendants allege that
Uniroyal failed to carry that burden because there is no evidence
of waste disposal in this case. According to the defendants, the
disposal of a hazardous waste is an inherent and unavoidable
requirement for bringing a claim under § 9607(a)(1). We disagree.
12
The starting point for statutory interpretation is the
language of the statute itself. Greyhound Corp. v. Mt. Hood
Stages, Inc., 437 U.S. 322, 330 (1978) (citations and quotations
omitted). When that language is plain we must abide by it; we may
depart from its meaning only to avoid a result "so bizarre that
Congress ‘could not have intended’ it". Demarest v. Manspeaker,
498 U.S. 184, 191 (1991) (quoting Griffin v. Oceanic Contractors,
Inc., 458 U.S. 564, 575 (1982). Accordingly, "[i]f the intent of
Congress is clear, that is the end of the matter; for the court
. . . must give effect to the unambiguously expressed intent of
Congress." Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842-43 (1984).
In § 9607(a), a disposal requirement is contained in three of
the four classes of responsible persons, see 42 U.S.C.
§§ 9607(a)(2) - (4). But that requirement is not present in the
first class. See 42 U.S.C. § 9607(a)(1); California v. Blech, 976
F.2d 525, 526-27 (9th Cir. 1992) (acknowledging lack of disposal
requirement). Unlike the three other classes of responsible
persons, where the word “disposal” is expressly employed in the
13
statutory text, § 9607(a)(1) simply holds liable “the [present]
owner and operator of a vessel or a facility.” Id. There is not
the slightest reference in that section to a disposal.9
The defendants acknowledge that the text of § 9607(a)(1) does
not expressly contain a disposal requirement, but assert that we
must infer one nonetheless because Congress intended CERCLA to
apply only to inactive or abandoned waste sites. That intent, the
defendants allege, is reflected in the overall statutory scheme of
CERCLA, in the legislative history of the statute, and in case law.
The basic thrust of their argument is that we would be frustrating
the expressed intent of Congress by allowing the imposition of
CERCLA liability in this case. We review each purported source of
this alleged intent in turn.
1. The Statutory Text
The defendants allege that it is a mistake to read
§ 9607(a)(1) in isolation. They insist that when it is viewed in
9
One of the defendants’ arguments suggests that we must
read a disposal requirement into § 9607(a)(1) in order to maintain
some sort of internal consistency within the provision. That
contention implies that Congress merely forgot to include the word
disposal in the language of § 9607(a)(1). We do not agree. When
Congress includes particular language in one statutory provision,
and excludes it in another, we generally assume that Congress did
so intentionally. Russello v. United States, 464 U.S. 16, 23
(1983); see also United States v. Wong Kim Bo, 472 F.2d 720, 722
(5th Cir. 1972) (“[W]here Congress has carefully employed a term in
one place and excluded it in another, it should not be implied
where excluded.”).
14
conjunction with CERCLA as a whole, it becomes evident that
Congress wanted to confine liability under the statute to cases
that involved waste disposal sites. We disagree. CERCLA’s core
provisions suggest, quite to the contrary, that through the statute
Congress sought to address hazardous releases generally, not just
disposals at hazardous waste sites.
Section 9601(9) is the provision in CERCLA that defines the
term “facility.” It is a crucial provision because CERCLA
liability cannot be imposed unless the site in question constitutes
a facility. 42 U.S.C. § 9607(a); see also Licciardi, 111 F.3d at
398 (listing facility as the first element of the prima facie
case). Therefore, the manner in which Congress chose to define the
term provides critical insight into the intended scope of the
statute.
In examining the contours of § 9601(9), it is apparent that
facility is defined in the broadest possible terms, encompassing
far more than traditional waste sites. It expressly includes
buildings, pipelines, motor vehicles, rolling stock, wells, and
aircraft. 42 U.S.C. § 9601(9)(A). In addition, sites that do not
otherwise satisfy the definition are swept within its purview by a
catch-all phrase that applies to “any site or area where a
hazardous substance . . . otherwise comes to be located.” 42
U.S.C. § 9601(9)(B). That expansive definition is strong evidence
that Congress did not intend to limit CERCLA to waste disposal
15
sites.
Other key CERCLA provisions reflect the same intent. To
impose liability under the statute, a plaintiff must also prove
that there was a “release or threatened release” of a “hazardous
substance.” Under § 9601(22), the term “release” is defined as
follows:
(22) The term “release” means any spilling,
leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching,
dumping, or disposing into the environment
(including the abandonment or discarding of
barrels, containers, and other closed
receptacles containing any hazardous substance
or pollutant or contaminant) . . . .
42 U.S.C. § 9601(22) (emphasis added).10 The acts listed in that
definition reach well beyond the mere act of disposal, effectively
reaching any means by which a hazardous substance finds its way
into the environment. That point is reinforced, we think, by the
fact that the word “disposing” is expressly listed in the
definition as only one of many different acts that qualify as a
release under § 9601(22).
10
By contrast, the term “disposal,” which is employed in
the text of the three other classes of responsible persons in §
9607(a), but not § 9607(a)(1), is defined more narrowly. Under §
9601(29), “disposal” is defined, by reference to the Solid Waste
Disposal Act, 42 U.S.C. § 9603(3), as:
[T]he discharge, deposit, injection, dumping,
spilling, leaking or placing of any solid
waste or hazardous waste into or on any land
or water . . . .
42 U.S.C. § 6903(3) (emphasis added).
16
Similarly, the definition of “hazardous substance” in
§ 9601(14) covers far more than mere waste material. That
provision states:
(14) The term “hazardous substance” means (A)
any substance designated pursuant to section
1321(b)(2)(A) of Title 33, (B) any element,
compound, mixture, solution, or substance
designated pursuant to section 9602 of this
title, (C) any hazardous waste having the
characteristics identified under or listed
pursuant to section 3001 of the Solid Waste
Disposal Act . . . , (D) any toxic pollutant
listed under section 1317(a) of Title 33, (E)
any hazardous air pollutant listed under
section 112 of the Clean Air Act, . . . and
(F) any imminently hazardous chemical
substance or mixture with respect to which the
Administrator has taken action pursuant to
section 2606 of Title 15. The term does not
include petroleum, including crude oil or any
fraction thereof which is not otherwise
specifically listed or designated as a
hazardous substance under subparagraphs (A)
through (F) of this paragraph, and the term
does not include natural gas, natural gas
liquids, liquefied natural gas, or synthetic
gas usable for fuel (or mixtures of natural
gas and such synthetic gas).
42 U.S.C. § 9601(22).11 Notice that in this definition hazardous
11
By comparison, § 6903(27) of the SWDA defines “solid
waste” as follows:
(27) The term “solid waste” means any garbage,
refuse, sludge from a waste treatment plant,
water supply treatment plant, or air pollution
control facility and other discarded material
. . . .
42 U.S.C. § 6903(27). Similarly, § 6903(5) of the SWDA defines
“hazardous waste” as follows:
(5) The term “hazardous waste” means a solid
17
waste is expressly made a subset of hazardous substances generally,
a strong indication that waste disposal is not the only possible
basis for CERCLA liability. Furthermore, in defining the term
hazardous substance Congress specifically excluded oil and natural
gas. We must assume that if Congress wanted to exclude all useful
substances it would have done so in like fashion. Finally, we note
that § 9601(14) covers a staggering array of hazardous substances;
pursuant to subsection (B) of § 9601(14), the EPA has designated
over 700 hazardous substances. See 40 C.F.R. § 302.4 (1998). It
is telling indeed that some of those substances are listed in their
generic chemical names, whereas others are more specifically
described as waste products.
To accept the defendants’ claim that CERCLA applies only to
waste disposal sites, this Court would have to ignore the broadly
stated definition of "facility." We also would have to accept the
waste, or combination of solid wastes, which
because of its quantity, concentration, or
physical, chemical, or infectious character-
istics may --
(A) cause, or significantly contribute
to an increase in mortality or an increase in
serious irreversible, or incapacitating
reversible illness; or
(B) pose a substantial present or
potential hazard to human health or the
environment when improperly treated, stored,
transported, or disposed of, or otherwise
managed.
42 U.S.C. § 6903(5).
18
notion that, in the context of this case, there is no meaningful
difference between a release and a disposal, or a hazardous
substance and a hazardous waste, even though Congress chose
separate and differing definitions for those terms. We cannot
embrace such a tortured construction of the statute without clear
legislative history indicating that Congress intended to restrict
CERCLA to hazardous waste sites.
2. The Legislative History
The defendants contend that the legislative history of CERCLA
demonstrates that the only legislative aim of the statute is the
clean up of waste disposal sites. Uniroyal vigorously refutes that
assertion. It insists that although CERCLA found its beginnings in
the problems associated with toxic waste sites, the statute emerged
from the legislative process as a broad remedial measure designed
to address releases of hazardous substances generally. Uniroyal’s
contention rings true.
In the late 1970s the threat posed by toxic waste sites was
brought to the forefront of public awareness by the well-publicized
disasters at Love Canal and Valley of the Drums. S. Rep. 96-848,
at 96 (1980); 125 CONG. REC. S7695 (1980). Congress responded in
1980 by passing CERCLA, a compromise measure that was hastily
enacted in the final days of the lame-duck session of the 96th
Congress. See generally, Grad, A Legislative History of the
19
Comprehensive Environmental Response, Compensation and Liability
("Superfund") Act of 1980, 8 COLUM. J. ENV. L. 1 (1982) (summarizing
and analyzing CERCLA’s legislative history) (hereinafter “Grad”).
Due to its hurried passage, it is widely recognized that many of
CERCLA’s provisions lack clarity and conciseness. A multitude of
courts have roundly criticized the statute as vague, contradictory,
and lacking a useful legislative history. See, e.g., HRW Sys.,
Inc. v. Washington Gas Light Co., 823 F. Supp. 318, 327 (D. Md.
1993) ("the legislative history of CERCLA gives more insight into
the ‘Alice-in-Wonderland’-like nature of the evolution of this
particular statute than it does helpful hints on the intent of the
legislature"); Rhodes v. County of Darlington, 833 F. Supp. 1163,
1174 (D.S.C. 1992) ("CERCLA is not a paradigm of clarity or
precision. It has been criticized frequently ‘for inartful
drafting and numerous ambiguities attributable to its precipitous
passage.’") (quoting Artesian Water Co. v. New Castle County, 851
F.2d 643, 648 (3d Cir.1988)); In re Acushnet River & New Bedford
Harbor, 716 F. Supp. 676, 681 n.6 (D. Mass. 1989) (complaining of
the "difficulty of being left compassless on the trackless wastes
of CERCLA"); United States v. Wade, 577 F. Supp. 1326, 1331 (E.D.
Pa. 1983) (noting that the legislative history of CERCLA is
"unusually riddled by self-serving and contradictory statements").
We too have bemoaned the sparse and often contradictory legislative
history that led to the enactment of CERCLA. See Amoco Oil Co.,
20
889 F.2d at 677 (stating that CERCLA has "acquired a well-deserved
notoriety for vaguely-drafted provisions and an indefinite, if not
contradictory, legislative history," quoting United States v.
Mottolo, 605 F. Supp. 898, 902 (D.N.H. 1985)).
Here, however, the legislative history of CERCLA is remarkably
clear with respect to the core legislative purposes behind the
passage of the statute. In its final version CERCLA was a
compromise among three competing bills then under consideration by
Congress: House of Representatives Bill 85 (“H.R. 85"), House of
Representatives Bill 7020 (“H.R. 7020"), and Senate Bill 1480 ("S.
1480"). Grad, supra, at 1; THE ENVIRONMENTAL LAW INSTITUTE, SUPERFUND:
A LEGISLATIVE HISTORY xiii (Helen C. Needham & Mark Henefee eds., 1982)
(hereinafter “Superfund”). H.R. 85 was entitled the Oil Pollution
Liability and Compensation Act, and was introduced into the House
of Representatives on January 15, 1979. Grad, supra, at 3. As its
name suggests, H.R. 85 targeted oil pollution by establishing a
comprehensive system of liability and compensation for oil-spill
damage and clean-up costs. Id. at 3-4.
H.R. 7020 was introduced by Congressman Florio on April 2,
1980. Id. at 4. Entitled the Hazardous Waste Containment Act, the
bill was intended to regulate inactive waste sites by establishing
reporting, monitoring and clean-up schemes. Id. This bill, by its
terms, applied only to hazardous waste sites, and did not purport
to address all hazardous releases. Id. at 5.
21
S. 1480, the third and final bill, was introduced in the
Senate on July 11, 1979 by Senators Muskie, Stafford, Chafee,
Randolph, and Monyihan. Id. at 6. This bill, entitled the
Environmental Emergency Response Act, was by far the broadest and
most ambitious of the three competing measures. Id. at 6-7. In
contrast to H.R. 7020, S. 1480 covered “all releases of hazardous
chemicals into the environment, not merely spills or discharges
from abandoned waste disposal sites.” 125 CONG. REC. S9173 (1979)
(comments of Senator Culver, co-sponsor of S. 1480).
H.R. 85 and H.R. 7020 passed the House and were reported to
the Senate. However, by the fall of 1980 it was apparent that none
of the three bills would be passed. Superfund, supra, at xviii.
Thus, on November 24, 1980, with the 96th Congress coming to an
imminent close, Senators Stafford and Randolph introduced an
amendment, known as the Stafford-Randolph Compromise, striking all
the provisions of H.R. 7020 and inserting the compromise into the
eviscerated measure. Superfund, supra, at xviii.
In addressing the Senate, Senator Randolph compared the new
bill with H.R. 7020 and H.R. 85. He explained that H.R. 7020 was
considered too narrow because it addressed only hazardous waste
sites while H.R. 85, with its focus on oil spills and hazardous
substances on navigable waters, was also insufficient. Senator
Randolph explained:
But let me say something that Senator Stafford
and I feel strongly about. It is the scope of
22
the response provided in our amendment. We
maintain that H.R. 7020 which deals only with
abandoned hazardous waste sites is too narrow.
We believe that coverage of spills of oil and
hazardous substances into navigable water, as
embodied in H.R. 85 is also not enough. The
problem is bigger than the singular scope
presented in each of those bills. The problem
encompasses both waste sites and spills and
leaks of chemicals into the environment--and
that is what we must address here. We would
neglect our duties to deal with only half a
problem. The compromise, while greatly pared
from its original version, must and does at
least address the scope of the problem that
this Nation faces . . . .
. . . .
While the exemptions from liability for
federally permitted releases are provided to
give regulated parties clarity in their legal
duties and responsibilities, these exemptions
are not to operate to create gaps in actions
necessary to protect the public or the
environment.
Accidents--whatever their cause--which result
in, or can reasonably be expected to result in
releases of hazardous pollutants would not be
exempt from the requirements and liabilities
of this bill. Thus fires, ruptures, wrecks and
the like invoke the response and liability
provisions of the bill.
126 CONG. REC. S14964-65 (1980).
On November 24, 1980, the Senate passed the Stafford-Randolph
substitute bill and reported the measure back to the House for
concurrence, where it was taken up on December 3.12 In the House
12
The legislative act of substituting S. 1480 into H.R.
7020, and then passing H.R. 7020, apparently occurred because S.
1480 contained tax provisions and, as a revenue bill, was required
by the Constitution to originate in the House.
23
debate, Congressman Florio, the co-sponsor of the original version
of H.R. 7020, explained how the amended bill differed from the
original. He stated:
In this way we can get on immediately with the
business of cleaning up the thousands of
hazardous waste sites which dot this country
and also insure that a mechanism is in place
to respond to spills of dangerous substances
. . . .
The Senate amendments to H.R. 7020 add
response authority for hazardous substances
which are not hazardous wastes.
126 CONG. REC. H11787 (1980). Additional comments made by
Representative Dannemeyer, an opponent of the bill, also reflect
that Congress intended H.R. 7020 to address all spills of hazardous
substances:
Admittedly, the $1.6 billion is supposed to go
for chemical spills as well as hazardous waste
clean up, but since the version we are about
to vote on is broader than the House-passed
version of the bill, it may well take the
whole $1.6 billion and then some just to clean
up the hazardous waste sites.
Id. The House passed the substituted form of H.R. 7020 later that
day, after very limited debate, and under a suspension of the rules
that allowed for no amendments. See Grad, supra, at 1 ("It was
considered and passed, after very limited debate, under a
suspension of the rules, in a situation which allowed for no
amendments. Faced with a complicated bill on a take it-or-leave it
basis, the House took it, groaning all the way."). President
Carter signed the bill into law on December 11, 1980. Id. at 35.
24
Doubtless CERCLA found its start in the publicity and concern
that surrounded toxic waste sites. That theme resonated throughout
the legislative process and became the moving force behind the
creation of the Superfund. Nevertheless, nothing in the
legislative record indicates that Congress intended to restrict
CERCLA to that sole purpose. To the contrary, the legislative
materials on the passage of the statute show, with reasonable
clarity, that over the course of the legislative process Congress
expanded the statute beyond its original underpinnings so as to
address releases of hazardous substances generally, not just
disposals at toxic waste sites.
3. Case Law
The defendants contend that this Court has acknowledged that
CERCLA applies only to abandoned or inactive waste sites. In
support of that argument the defendants rely primarily on our
decision in Dayton Independent School District v. U.S. Mineral
Products Co., 906 F.2d 1059 (5th Cir. 1990). Their reliance is
misplaced.
In Dayton this Court was presented with the narrow issue of
whether CERCLA provided a remedy in asbestos-removal cases. See
Dayton, 906 F.2d at 1064 ("Appellants urge that the district
court’s orders denying their motions to dismiss should be reversed
or vacated because CERCLA does not provide a right of action to
25
recover the costs of removal of asbestos containing materials from
the structure of buildings."). In addressing that question we
suggested, in passing and without citation to any legislative
history, that CERCLA applies only to hazardous waste sites. Id. at
1066. Surely that dicta cannot reasonably be relied upon as a
definitive holding on the very significant issue of whether CERCLA
liability extends beyond waste disposal sites.
The defendants also assert that we have acknowledged a waste-
site limitation on other occasions. In re Bell Petroleum Servs.,
Inc., 3 F.3d 889, 894 (5th Cir. 1993) (“[CERCLA’s] purpose is to
facilitate the prompt clean-up of hazardous waste sites”); Amoco
Oil Co., 889 F.2d at 667 (“Congress enacted CERCLA in response to
well-publicized toxic waste problems”). Even the most cursory
review of those cases belies the defendants’ argument. Until
today, this Court has never squarely addressed whether liability
under CERCLA is limited to waste disposal sites. In Tanglewood
East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568 (5th Cir.
1988), we were presented with a related question, but declined to
address it. See Tanglewood East Homeowners, 849 F.2d at 1574 (“We
are persuaded beyond peradventure that a determination of the
specific businesses and activities covered by CERCLA is beyond the
pale of a 12(b)(6) motion.”).
26
It is true, as the defendants allege, that a handful of courts
outside of this Circuit have apparently labored under the
conception that CERCLA applies only to waste disposal sites. See,
e.g., Vernon Village, Inc. v. Gottier, 755 F. Supp. 1142, 1150-51
(D. Conn. 1990); Electric Power Bd. of Chattanooga v. Westinghouse
Elec. Corp., 716 F. Supp. 1069, 1080 (E.D. Tenn. 1988); Knox v.
AC & S, Inc., 690 F. Supp. 752, 757 (S.D. Ind. 1988). But see,
e.g., First United Methodist Church v. United States Gypsum Co.,
882 F.2d 862, 866 (4th Cir. 1989); New York v. General Elec. Co.,
592 F. Supp. 291 (N.D.N.Y. 1994). But those cases are neither
binding nor persuasive.
The only such case warranting additional discussion is
Electric Power Bd. of Chattanooga. In that case the district court
broadly held that “the scope of CERCLA is limited to the release of
hazardous substances in waste form only.” Electric Power Bd. of
Chattanooga, 716 F. Supp. at 1080. The district court based that
conclusion in large part on a report to Congress, known as the
§ 301(e) Study, compiled in 1986 by a committee of twelve
attorneys.13 The quoted portion of the report is contained in its
introduction, and provides:
13
The purpose of the report was "to determine the adequacy
of existing common law and statutory remedies in providing legal
redress for harm to man and the environment caused by the release
of hazardous substances into the environment." 42 U.S.C.
§ 9651(e)(1).
27
Instances when hazardous substances may be
released in other than waste form--i.e., the
application of pesticides regulated under the
Federal Insecticide, Fungicide and Rodenticide
Act (FIFRA)--are expressly exempted from the
enforcement provisions of [CERCLA]. Thus, the
emphasis of this report, similar to the
emphasis of CERCLA, is on remedying the
adverse consequences of improper disposal,
improper transportation, spills, and
improperly maintained or closed disposal
sites.
Injuries and Damages from Hazardous Wastes--Analysis and
Improvement of Legal Remedies: A Report to Congress in Compliance
with Section 301(e) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 by the ‘Superfund Section
301(e) Study Group,’ reprinted in Senate Committee on Environment
and Public Works, Committee Print No. 97-12 pt. 1, 97th Cong., 2d
Sess. 26 (1982) (footnotes omitted). We do not attach controlling
significance to that quotation.
As an initial matter it is far from clear as to what
significance an introductory quotation in a 1986 study group report
has with regard to the actual legislative intent that attended the
passage of CERCLA in 1980. More importantly, even assuming that
the report may appropriately be considered legislative history,
that brief quotation does not establish with any certainty that
CERCLA is limited to abandoned or inactive waste sites. Indeed,
one need only read a few more lines down the report to reach the
following statement:
CERCLA deals with hazardous substances at the
28
point at which they enter the environment in
the form of spills during transportation or
otherwise, or in the form of wastes, during
and after disposal. Thus, the remedies
discussed in this report are legal remedies
for personal injury, environmental damage and
reduction of property value resulting from the
spills of hazardous substances and disposal of
hazardous wastes for which CERCLA provides
cleanup and remedial activities.
Id. If anything, the § 301(e) Study may tend to support the
conclusion that CERCLA is a broad remedial statute that covers
releases of hazardous substances generally.
4. The EPA’s Interpretation
A final issue, not raised by the parties, is whether the
Environmental Protection Agency (“EPA”) has interpreted CERCLA as
applying to more than just waste disposal sites. It is a relevant
concern because a court must defer to the EPA’s reasonable
construction of CERCLA absent a clearly expressed legislative
purpose to the contrary. See Chevron, 467 U.S. at 842-45. As the
agency charged with its administration, the EPA's interpretation of
CERCLA must be followed so long as it "is based on a permissible
construction of the statute," id. at 843, and "there are [no]
compelling indications that it is wrong." Red Lion Broad. Co. v.
FCC, 395 U.S. 367, 381 (1969).
Here, it appears that the EPA has in fact construed CERCLA as
applying outside the context of waste disposal sites. In 1985 the
29
EPA issued an official rule adding a residential duplex in
Pennsylvania to its National Priorities List for remedial action.14
40 C.F.R. pt. 300 (1985). The proposed rule elicited several
comments contending that the addition would be inconsistent with
the EPA's policy of expending funds on hazardous waste sites. The
EPA disagreed, declaring that the “EPA believes that neither CERCLA
nor the Hazardous Ranking System limits response to hazardous waste
. . . .” 50 Fed. Reg. 37630, 37631-32 (1985). The EPA further
observed that “CERCLA's authority is very broad and can extend to
[household] residences.”15 Id. at 37632.
5. Conclusion
The express language of § 9607(a)(1) imposes liability on the
owner or operator of a CERCLA facility without requiring a
disposal. The defendants contend that the legislative intent
behind the passage of CERCLA requires us to depart from the plain
meaning of the statute, and infer a disposal requirement on the
theory that CERCLA applies only to hazardous waste sites. Yet,
nothing in the statutory scheme, the legislative history of the
14
A chemist had used the building’s basement for twenty
years to make radium sources, and the entire structure contained
hazardous levels of radiation.
15
The EPA distinguished this case, which involved
radioactive contamination of ambient atmosphere that threatened the
general public, from asbestos cases which are not treated by the
EPA as coming within the ambit of CERCLA liability.
30
statute, the implementing regulations, or the EPA’s policies,
supports such a crabbed reading of the statute. In fact, those
several sources demonstrate, without exception, that through CERCLA
Congress sought to address releases of hazardous substances
generally. We therefore conclude, as did the district court, that
Uniroyal successfully established that the defendants are
responsible persons under § 9607(a)(1) of CERCLA.
C. The Consumer Product Exception
The second issue for decision is whether Uniroyal successfully
proved the existence of a CERCLA facility, the second prima facie
element. The district court found that Uniroyal had failed to
satisfy that requirement because the rupture of the tanker truck
and resulting release fell within the consumer product exception,
which the district court found applicable based on this Court’s
decision in Dayton. On appeal Uniroyal asserts that Dayton is
distinguishable from the present case, which is founded on owner-
operator liability under § 9607(a)(1), because Dayton is an
asbestos removal case based on arranger-liability under
§ 9607(a)(3). Uniroyal further argues that under a plain reading
of the exception it is impossible to conclude that a tanker truck
loaded with industrial chemicals qualifies as a consumer product in
consumer use. We turn to Uniroyal’s first contention that the
district court read Dayton too broadly.
31
1. Our Holding in Dayton
In Dayton, the plaintiffs brought suit under CERCLA against
several manufacturers and suppliers of asbestos seeking to recover
the cost of removing asbestos-containing building materials from
various buildings. Dayton, 906 F.2d at 1061-63. In contrast to
the present case, which is founded on owner-operator liability
under § 9607(a)(1), the plaintiffs in Dayton sued under §
9607(a)(3) CERCLA, which allows recovery against those who
“arranged for disposal or treatment . . . of hazardous substances
. . . at any facility . . . .” 42 U.S.C. § 9607(a)(3); Dayton, 906
F.2d at 1064. The plaintiffs claimed that the defendants had
“arranged for the disposal” of hazardous substances by
manufacturing and selling asbestos-containing building materials.
In the resulting appeal we were asked to decide whether the
district court properly denied the defendants’ motions to dismiss
for failure to state a claim under § 9607(a)(3) of CERCLA. That
determination rested on the narrow issue of whether CERCLA provided
“a private right of action to recover the costs of removal of
asbestos-containing materials from the structures of buildings.”
Dayton, 906 F.2d at 1064. We answered the question in the negative
and reversed the district court. “Based upon the language of the
statute, its legislative history, and the relevant case law, we
hold that Congress did not contemplate recovery under this statute
of the costs incurred to effect asbestos removal from buildings.”
32
Id. at 1066.
That holding was based largely on the disposal requirement
contained in § 9607(a)(3).
[The plaintiffs] undertake to turn dumping and
disposal into building construction. We
reject that contention . . . . [T]here is no
possible reasonable interpretation of the term
“disposal” that could encompass the commercial
sale of asbestos-containing useful building
products by the defendant manufacturers and
suppliers. The sale of a hazardous substance
for a purpose other than its disposal does not
expose defendant to CERCLA liability . . . .
The record is devoid of any substantive
evidence that [the defendants] merely
characterized their activities as "sales" in
order to cloak disposal activities. Instead,
it is clear that [the defendants] manufactured
the asbestos-containing building materials for
the primary purpose of creating a new useful
and marketable product for the construction
industry. [The defendants’] actions therefore
cannot be considered "disposal" within the
meaning of CERCLA.
Id. at 1065. However, having determined that this required element
had not been satisfied, we then proceeded to express doubt as to
whether the plaintiffs had satisfied the facility requirement in
light of the possible application of the consumer product
exception. Focusing still on the distinction between disposals and
commercial transactions, we stated:
The provision exempting consumer products
obviously was meant to protect from liability
those who engage in production activities with
a useful purpose, as opposed to those engaged
in the disposal of hazardous substances. It
is clear that Congress did not intend CERCLA
to target legitimate manufacturers or sellers
of useful products. Rather, taken in context,
33
the provision reflects Congress’ desire to
hold liable those who would attempt to dispose
of hazardous wastes or substances under
various deceptive guises in order to escape
liability for their disposal.
The legislative history reinforces [the
defendants’] argument that Congress intended
to provide recovery only for releases or
threatened releases from inactive and
abandoned waste sites, not releases from
useful consumer products in the structure of
buildings. The sale of asbestos-containing
products for useful consumption is not the
“arranging for disposal” of a hazardous
substance at a “facility,” Section 107(a) of
CERCLA, that the statute is designed to
combat.
Id. at 1065-66 (emphasis added). The district court here in
Uniroyal interpreted that language as establishing a bright-line
rule that if parties are engaged in production activities with a
useful purpose, as distinguished from waste disposal, then the
consumer product exception operates to bar CERCLA liability. In
the district court’s view, Dayton requires a stream of commerce
analysis in all CERCLA cases, even ones based on § 9607(a)(1).
There are several problems with the district court’s reading of
Dayton.
In Dayton we faced a single, narrow issue: we were asked to
determine whether CERCLA afforded a remedy in asbestos removal
cases. Our holding that it did not was based squarely on the
conclusion that the commercial use of asbestos could not possibly
be viewed as a disposal of a hazardous substance, an express
requirement under § 9607(a)(3). Although our subsequently
34
expressed concerns about the facility requirement, and the consumer
product exception, added confidence to our holding, they were by no
means necessary to it. See Seminole Tribe v. Florida, 517 U.S.
44, 67 (1996) (observing that court is bound by holding of a case
and all portions of the opinion necessary to that result); Kastigar
v. United States, 406 U.S. 441, 454-55 (1972) (finding that broad
language of opinion which was unnecessary to court's decision could
not be considered binding authority); In re Cajun Elec. Power
Coop., Inc., 109 F.3d 248 (5th Cir. 1997) (describing dicta as:
"i.e., it could have been deleted without seriously impairing the
analytical foundations of the holding--[and], being peripheral, may
not have received the full and careful consideration of the court
that uttered it.” (quoting Sarnoff v. American Home Prod. Corp.,
798 F.2d 1075, 1084 (7th Cir. 1986) (emphasis added))). In that
respect our language in Dayton regarding the consumer product
exception is dicta.
Our comments in Dayton on the consumer product exception,
which we expressed without citation to any specific legislative
history, cannot reasonably be viewed as a definitive statement on
the meaning of that exception as it relates to § 9607(a)(1). It is
true, of course, that taken out of context our observations could
be made to seem as if a new rule is being announced with regard to
CERCLA liability generally; a rule based on a usefulness inquiry,
or some form of stream of commerce analysis. But one need only
35
read Dayton from start to finish to see that our comments on the
consumer product exception were not intended to go so far.
Our language in Dayton must be confined to the context in
which it was written. Dayton is an arranger-liability case brought
under § 9607(a)(3). Dayton, 906 F.2d at 1064. In arranger-
liability cases a disposal is an express requirement for the
imposition of CERCLA liability. 42 U.S.C. § 9607(a)(3); Dayton,
906 F.2d at 1064. Thus, in those cases it is necessary to focus on
the type of activity that permitted hazardous substances to enter
the environment. That focus is seen throughout our opinion in
Dayton, where we continually distinguish between those who engage
in useful production activities, and those who engage in the
disposal of waste. See Dayton, 906 F.2d at 1065-66. Expectedly,
that focus also colored our discussion of the consumer product
exception.
Those same concerns, however, have no place in the present
appeal. This action is an owner-operator claim brought under
§ 9607(a)(1). It imposes liability without regard to whether a
disposal has occurred. Consequently, Dayton’s focus on the
disposal question, and the related distinction between useful
production activities and disposals, is not germane to the question
of liability in this case. In fact, if the useful product versus
waste distinction in Dayton were made applicable to the present
action, it would necessarily mean that CERCLA liability could only
36
arise in those § 9607(a)(1) cases that involved non-useful, waste
products. That, however, would have the impermissible effect of
adding a disposal requirement to § 9607(a)(1) that does not
otherwise exist.
We conclude that our language in Dayton regarding the consumer
product exception is limited to the facts of that case. It does
not control our application of the consumer product exception in
the present action.16 As such, we next must determine whether the
tanker truck or trucking terminal constitute “consumer products in
consumer use.” That requires us to determine the meaning of the
term “consumer product.”
2. One Latent Ambiguity
We cannot begin our inquiry into meaning of the consumer
product exception until we first resolve a grammatical ambiguity
hidden within § 9601(9). As a point of reference, we restate
§ 9601(9) as it defines facility:
The term “facility” means (A) any building,
structure, installation, equipment, pipe or
pipeline (including any pipe into a sewer or
publicly owned treatment works), well, pit, pond,
lagoon, impoundment, ditch, landfill, storage
container, motor vehicle, rolling stock, or
16
In limiting Dayton to its facts, we by no means intend to
suggest that our holding in Dayton is wrong. Dayton holds,
correctly in our view, that CERCLA does not provide a right of
recovery in asbestos removal cases. See Dayton, 906 F.2d at 1061(“We find that Congress did not intend CERCLA to cover asbestos
removal cost recovery actions.”).
37
aircraft, or (B) any site or area where a hazardous
substance has been deposited, stored, disposed of,
or placed, or otherwise come to be located; but
does not include any consumer product in consumer
use or any vessel.
A close reading of that provision reveals a significant question as
to whether the phrase “but does not include any consumer product in
consumer use or any vessel” modifies the overall definition of
“facility,” or whether it only modifies the preceding language in
subparts (A) and, or, (B).
If the phrase is read as modifying the overall definition of
facility, then the exception is limited to facilities (as defined
in subparts (A) and (B)) which are themselves consumer products in
consumer use. If, on the other hand, the phrase is read as
modifying just the preceding subpart language, then the exception
is limited to facilities (as defined in subparts (A) and (B)) which
contain consumer products in consumer use. Notice that under this
second interpretation the word “include,” which is in the phrase
“but does not include any consumer product in consumer use or any
vessel,” directly modifies the objects listed in subparts (A) and
(B), and therefore takes on a meaning that denotes storage or
containment. The facts of this case underscore this distinction
and demonstrate how it affects our analysis.
Here, there are two sites that initially qualify as CERCLA
facilities as defined by the subpart language. The tanker truck
qualifies under subpart (A) as a motor vehicle. The trucking
terminal qualifies under subpart (B) as a site or area where a
38
hazardous substance has come to be located. Under the first
possible reading of § 9601(9), the critical question is whether
there exists a facility which is itself a consumer product in
consumer use. Thus, in our case the question would be whether the
tanker truck and trucking terminal, which certainly qualify as
facilities under the subpart language, constitute “consumer
products in consumer use.” If so, they are excepted from the
definition of facility.
Conversely, under the alternative interpretation the critical
question is whether there exists a facility that “includes” a
consumer product in consumer use. Since the word include denotes
containment under this interpretation, the question in our case
would be whether the tanker truck and trucking terminal “contain”
a consumer product in consumer use. Using the alternative approach
our focus is on whether the VT/I-5 mixture is a consumer product in
consumer use.
To our knowledge, only the Seventh Circuit and a handful of
district courts have recognized this latent ambiguity. See Amcast
Indus. Corp. v. Detrex Corp., 2 F.3d 746, 750 (7th Cir. 1993)
(recognizing the ambiguity and adopting the literal approach);
National R.R. Passenger Corp. v. New York City Hous. Auth., 819 F.
Supp. 1271, 1276 (S.D.N.Y. 1993) (apparently recognizing the
ambiguity and adopting the alternative approach); Vernon Village,
755 F. Supp. at 1151 (same); Electrical Power Bd. of Chattanooga,
39
716 F. Supp. at 1080 (same).
In the Seventh Circuit’s Amcast case, the defendant, a
chemical manufacturer, shipped a chemical solvent to the plaintiff
with its own trucks, as well as those of a common carrier. After
the solvent was discovered in the groundwater of an adjacent
pharmaceutical facility, the plaintiff sued the defendant to
recover its response costs based on evidence that both the
defendant and the carrier spilled the solvent on the plaintiff's
premises during the process of filling its storage tanks.
On appeal, the Seventh Circuit had occasion to construe the
consumer products exception as it applied to the defendant's tanker
trucks. The court rejected the claim that the exception applied to
facilities that contained consumer products.
If it is read literally, the only consumer
product exempted by the statute is the
consumer product that is a facility. The
alternative is to read the exemption as
referring to facilities that contain consumer
products . . . . This [alternative] approach
does excessive violence to the statutory
language. The exception is for facilities
that are consumer products in consumer use,
not for products contained in facilities.
We agree with the Seventh Circuit’s literal reading of the
exception. Syntactically, the phrase “consumer product in consumer
use” cannot reasonably be interpreted under the alternative, non-
literal approach. This is so because the phrase does not merely
exclude “any consumer product in consumer use.” It excludes “any
consumer product in consumer use and any vessel.” Under the
40
alternative interpretation, § 9601(9) would thus have to be read as
establishing an exclusion for buildings, equipment, pipelines,
aircraft (subpart (A)), or waste disposal sites (subpart (B)), that
contain a “vessel.” Given the definition of vessel,17 that is an
impossible construction.
The statute’s legislative history is in accord with a literal
reading of § 9601(9). Before its final passage, S. 1480 did not
contain an exclusion for consumer products in consumer use. To
remedy this perceived deficiency Senator Cannon proposed Amendment
2378, which ultimately became the consumer product exception at
issue here. A committee print summarizing the legislative history
of the statute provides:
S. 1480 defines the term "facility" broadly to
include such things as "any equipment" and
"any storage container," which could easily
include consumer products. Such an
interpretation of this term would lead to
excessive notification and liability coverage
by the Act. This amendment would explicitly
clarify that the term "facility" does not
include consumer products for the purposes of
this Act.
THE ENVIRONMENT AND NATURAL RESOURCES POLICY DIVISION OF THE CONGRESSIONAL
RESEARCH SERVICE OF THE LIBRARY OF CONGRESS FOR THE COMMITTEE ON ENVIRONMENT AND
PUBLIC WORKS, 97TH CONG., 2D SESS., A LEGISLATIVE HISTORY OF THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980 (SUPERFUND) 182
(Comm. Print 1983). Thus, the legislative history of the exception
17
CERCLA defines vessel as “every description of watercraft
or other artificial contrivance used, or capable of being used, as
a means of transportation on water.” 42 U.S.C. § 9601(28).
41
also indicates that the phrase “any consumer product in consumer
use” was intended to qualify the overall definition of “facility,”
not the subpart language.
In accordance with a literal reading of § 9601(9), we find
that the proper inquiry in the present appeal is whether the tanker
truck and trucking terminal constitute “consumer products in
consumer use.” That takes us to the final issue in this appeal,
the meaning of the consumer product exception.
3. The Meaning of the Consumer Product Exception
Uniroyal contends that the district court wrongly concluded
that the tanker truck and trucking terminal constitute consumer
products in consumer use. It asserts that the exception cannot be
interpreted in this manner without doing excessive violence to the
plain meaning of the term "consumer product." Uniroyal urges that
we give the consumer product exception a definition one would
ordinarily expect it to have; a definition that describes a good
used for personal, family, or household use.
The phrase consumer product in consumer use is not defined
anywhere in CERCLA. Moreover, it does not appear that this Court,
nor any court in the United States Court of Appeals, has authored
a definitive opinion on the meaning of the consumer product
exception. Though the Seventh, Eighth, and Ninth Circuits have
addressed the question in previous cases, those opinions dispose of
42
the issue in summary fashion, leaving us very few bread crumbs to
follow. See Amcast, 2 F.3d at 750-51 (concluding without
explanation that a tanker truck is not a consumer product in
consumer use); Kane v. United States, 15 F.3d 87, 89-90 (8th Cir.
1993) (concluding, based solely on our dicta in Dayton, that
residential property is a consumer product in consumer use); Blech,
976 F.2d at 527 n.1 (concluding without explanation in a footnote
that structures containing asbestos building material are not
consumer products in consumer use).
The United States District Courts, on the other hand, have
squarely addressed and debated the meaning of the consumer product
exception. Two separate views presently exist. The first is that
the consumer product exception applies to all substances that are
considered economically useful. See, e.g., Knox, 690 F. Supp. at
756 (stating that asbestos-containing insulation, sold between
businesses, could be considered a consumer product); Electrical
Power Bd. of Chattanooga, 716, F. Supp. at 1080 (holding that
electrical transformers that leaked dialectric cooling fluid
containing polychlorinated biphenyl (“PCBs”) are consumer products
in consumer use); Vernon Village, 755 F. Supp. at 1150 (holding
that contaminated drinking water is a consumer product in consumer
use based on the apparent reasoning that water is a useful
43
product). The exception acquires considerable breadth under this
approach as it precludes CERCLA liability in every case that does
not involve a waste material.
The second approach purports to rely on the ordinary meaning
of the term consumer product, and construes the exception as
covering only products used for personal, household, or family
consumption. See, e.g., United States v. M/V Santa Clara I, 887 F.
Supp. 825, 842 (D.S.C. 1995) (holding that consumer product
exception not applicable in case where shipping containers carrying
barrels of arsenic trioxide were lost from vessel in heavy seas);
KN Energy Inc. v. Rockwell Int’l Corp., 840 F. Supp. 95, 99
(D. Colo. 1993) (holding that pipelines sealed with substance
containing PCBs were commercial facilities, not consumer products
in consumer use); Reading Co. v. City of Philadelphia, 823 F. Supp.
1218, 1232-34 (E.D. Pa. 1993) (holding that railcars that leaked
PCBs while used in commuter train service not consumer products in
consumer use); CP Holdings, Inc. v. Goldberg-Zoino & Assocs., Inc.,
769 F. Supp. 432, 438 (D.N.H. 1991) (holding that commercial hotel
built with asbestos-containing materials not consumer product in
consumer use); see also National R.R. Corp., 819 F. Supp. at 1276(holding that consumer product exception not applicable in case
where support pillars and building understructures were coated with
asbestos-containing material). This view permits the imposition of
CERCLA liability in cases involving useful, non-waste products, so
44
long as there is no consumer product in consumer use under the
ordinary meaning of that phrase. Thus, it does not significantly
restrict the scope of CERCLA liability.
We begin, as we must, by inquiring into the plain meaning of
the term consumer product. In Webster’s Third New International
Dictionary, the term “consumer goods,” a phrase that is closely
related to, if not synonymous with, “consumer products,” is defined
as “economic goods that directly satisfy human wants or desires.”18
Webster’s Third New International Dictionary (16th ed. 1971).
Black’s Law Dictionary offers a consistent description. It defines
a “consumer product” as “any tangible personal property which is
distributed in commerce and which is normally used for personal,
family, or household purposes.” Black’s Law Dictionary 317 (6th
ed. 1990). On its face, therefore, the term consumer product
refers to a good that is used by an individual for personal,
family, or household purposes.
We find it significant that Congress has chosen to give the
term very similar definitions in other federal statutes. In the
Consumer Product Safety Act, 15 U.S.C. § 2051, et seq., for
instance, the term consumer product is defined as follows:
(1) The term "consumer product" means any
article, or component part thereof, produced
or distributed (i) for sale to a consumer for
18
“Producer goods,” by comparison, are described in
Webster’s as “goods that are factors in the production of other
goods and that satisfy wants only indirectly.” Webster’s Third New
International Dictionary (16th ed. 1971).
45
use in or around a permanent or temporary
household or residence, a school, in
recreation, or otherwise, or (ii) for the
personal use, consumption or enjoyment of a
consumer in or around a permanent or temporary
household or residence, a school, in
recreation, or otherwise . . . .
15 U.S.C. § 2052. Comporting definitions are found in the Fair
Packaging and Labeling Act, 15 U.S.C. § 1451, et seq.,19 the
Magnuson-Moss Warranty--Federal Trade Commission Improvement Act,
15 U.S.C. § 2301, et seq.,20 the Energy Policy and Conservation Act,
19
That definition states in pertinent part:
(a) The term "consumer commodity", except as
otherwise specifically provided by this
subsection, means any food, drug, device, or
cosmetic (as those terms are defined by the
Federal Food, Drug, and Cosmetic Act [21
U.S.C.A. 301 et seq.]), and any other article,
product, or commodity of any kind or class
which is customarily produced or distributed
for sale through retail sales agencies or
instrumentalities for consumption by
individuals, or use by individuals for
purposes of personal care or in the
performance of services ordinarily rendered
within the household, and which usually is
consumed or expended in the course of such
consumption or use.
15 U.S.C. § 1459(a).
20
That definition provides in pertinent part:
(1) The term "consumer product" means any
tangible personal property which is
distributed in commerce and which is normally
used for personal, family, or household
purposes (including any such property intended
to be attached to or installed in any real
property without regard to whether it is so
attached or installed).
46
42 U.S.C. § 6291, et seq.,21 and a statute criminalizing food and
drug tampering, 18 U.S.C. § 1365.22 Each definition shares the
element of personal, family, or household use.
15 U.S.C. § 2301(1).
21
That definition provides in pertinent part:
(1) The term "consumer product" means any
article (other than an automobile, as defined
in section 2001(1) of Title 15) of a type--(A)
which in operation consumes, or is designed to
consume, energy or, with respect to
showerheads, faucets, water closets, and
urinals, water; and (B) which, to any
significant extent, is distributed in commerce
for personal use or consumption by
individuals; without regard to whether such
article of such type is in fact distributed in
commerce for personal use or consumption by an
individual, except that such term includes
fluorescent lamp ballasts, general service
fluorescent lamps, incandescent reflector
lamps, showerheads, faucets, water closets,
and urinals distributed in commerce for
personal or commercial use or consumption.
42 U.S.C. § 6291(1).
22
That definition provides in pertinent part:
(1) the term "consumer product" means--(A) any
"food", "drug", "device", or "cosmetic", as
those terms are respectively defined in
section 201 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 321); or (B) any
article, product, or commodity which is
customarily produced or distributed for
consumption by individuals, or use by
individuals for purposes of personal care or
in the performance of services ordinarily
rendered within the household, and which is
designed to be consumed or expended in the
course of such consumption or use.
18 U.S.C. § 1365(g).
47
The legislative history of the consumer product exception is
not plentiful. However, the legislative history that does exist
supports an ordinary interpretation of the term consumer product.
Senator Cannon, who sponsored the amendment which ultimately became
the consumer product exception, addressed the Senate on September
18, 1980. Expressing concern that CERCLA’s sweeping language would
impose liability on ordinary consumers, he stated:
S. 1480 contains no exclusion for consumer
products. Therefore, it has been suggested
that this would mean that an individual
consumer is subject to strict, joint, and
several liability for a “release” from any
product that contains one of the numerous
hazardous substances listed on pages 24 to 28
of the Senate Environment and Public Works
Committee report. While staff has been
informed that such a result was not intended,
the term “facility” as it is presently defined
would include consumer products, and the
report does not in any way clarify that this
term does not include consumer products. An
amendment will be offered to clarify this
matter.
126 CONG. REC. S12917 (1980) (emphasis added). Senator Cannon then
offered Amendment 2378, accompanied by the following statement:
[O]ne of my amendments would exclude consumer
products from the definition of ‘facility,’
thus precluding any unintended application of
notification requirements and liability
provisions to consumers.
126 CONG. REC. S13364 (1980).
That same view of the consumer product exception was expressed
five years later in the legislative history of SARA, the 1986
statute that reauthorized and amended CERCLA. In considering an
48
amendment requiring the inventory of hazardous substances by owners
and operators of facilities, the Senate Committee on the
Environment and Public Works addressed the consumer product
exception. In its report the committee observed:
This use of the mixture rule in the definition
of “hazardous substance” does not extend the
coverage of this amendment to finished
consumer products such as those that might be
found in a retail store, where such products
do not present a threat of release from a
facility. This is consistent with the
definition of a “facility" contained in
existing section 101(9) of CERCLA, and its
reference to consumer products.
S. Rep. No. 99-11, 11 (1985).
The EPA’s interpretation of the consumer product exception
accords with the plain meaning of the exception. In proposing a
rule relating to reporting requirements for radionuclides, the EPA
spoke to the meaning of the consumer product exception in the
following manner:
A number of consumer products such as watches
and smoke detectors may contain (and at some
point release) radionuclides. The CERCLA
definition of “facility” specifically excludes
any consumer product in consumer use; thus any
release of radionuclides from such products
when in consumer use are not subject to the
notifications requirement discussed in this
proposed rule.
52 Fed. Reg. 8172, 8172 n.1 (1987). Although this statement is not
a complete explanation of the EPA’s position on the consumer
product exception, it does suggest that the EPA construes the
exception as applying to goods used for individual, family, or
49
household consumption.
Other provisions in CERCLA suggest that useful products not
specifically excluded from liability under the statute are
necessarily included. In CERCLA, for example, the definition of
release excludes “the normal application of fertilizer products.”
42 U.S.C. § 9601(22). It also exempts “emissions from engine
exhaust from a motor vehicle.” Id. Hence, when Congress wanted to
except from CERCLA liability a useful commercial product, or the
byproduct of a useful production activity, it did so through an
express exclusion.
Finally, we cannot construe consumer products to mean all
useful products without frustrating the basic purposes of CERCLA.
Numerous courts, including our own, have recognized that CERCLA is
a broad remedial statute. OHM Remediation Servs., 116 F.3d at
1578; First United Methodist Church, 882 F.2d at 867; B.F. Goodrich
v. Murtha, 958 F.2d 1192, 1197 (2d Cir. 1992); Dedham Water Co. v.
Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1150 (1st Cir. 1989).
It has been said that through CERCLA Congress “sought to deal with
every conceivable area where hazardous substances come to be
located.” General Elect. Co., 592 F. Supp. at 296. Were we to
accept the defendants’ argument that the consumer product exception
excludes from liability any product which is not a waste, the
exception would effectively remove an entire class of environmental
threats from CERCLA’s reach. Any accidental explosion, spill, or
50
release of a useful industrial chemical would be excluded from the
statute regardless of the threat posed to the public and the
environment. CERCLA would effectively become nothing more than a
waste dump statute. To accord CERCLA’s liability provisions any
meaning at all, the phrase “consumer product in consumer use” must
be given its ordinary meaning.
Based on the plain language of the exception, the applicable
legislative history, and the broad remedial purpose of CERCLA, we
conclude that “consumer product in consumer use” means any good
normally used for personal, family, or household purposes, which
was being used in that manner when the subject release occurred.
In accordance with that definition, we find that neither the tanker
truck nor trucking terminal qualifies as a consumer product in
consumer use. Therefore, because that exception does not apply,
and because the tanker truck and trucking terminal plainly qualify
as facilities under § 9601(9), we find that the district court
erred in concluding that Uniroyal had not established this element.
IV. CONCLUSION
Based on the foregoing, we vacate the judgment of the district
court granting summary judgment to the defendants, and remand to
the district court for entry of judgment in favor of Uniroyal as to
CERCLA liability, and for such further proceedings as to damages as
may be required.
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