United States v. Alcan Aluminum Corp., Basf Corp. Beazer Materials and Services, Inc. Borg-Warner Corp. Carrier Corp. Chemical Leaman Tank Lines, Inc. Chemical Management, Inc. Chrysler Motors Corp. Dana Corp. Dart Industries, Inc. Exxon Corp. Ford Motor Company Goulds Pumps, Inc. Hitchcock Gas Engine Company, Inc. Ingersoll-Rand Neapco, Inc. Rome Strip Steel Co., Inc. The Stanley Works, Inc. Trw, Inc. United Technologies Chemical Management, Inc., Counter-Claimant. Chemical Management, Inc. Cross-Claimant v. United States of America Counter-Defendant, Alcan Aluminum Corp. Basf Corp. Beazer Materials and Services, Inc. Borg-Warner Corp. Carrier Corp. Chemical Leaman Tank Lines, Inc. Chrysler Motors Corp. Dana Corp. Dart Industries, Inc. Exxon Corp. Ford Motor Company Goulds Pumps, Inc. Hitchcock Gas Engine Company, Inc. Ingersoll-Rand Neapco, Inc. Rome Strip Steel Co., Inc. The Stanley Works, Inc. Trw, Inc. United Technologies Cross-Defendants, Neapco, Inc. Counter-Claimant. Neapco, Inc. Cross-Claimant v. United States of America Counter-Defendant, Alcan Aluminum Corp. Basf Corp. Beazer Materials and Services, Inc. Borg-Warner Corp. Carrier Corp. Chemical Leaman Tank Lines, Inc. Chemical Management, Inc. Chrysler Motors Corp. Dana Corp. Dart Industries, Inc. Exxon Corp. Ford Motor Company Goulds Pumps, Inc. Hitchcock Gas Engine Company, Inc. Ingersoll-Rand Rome Strip Steel Co. Inc. The Stanley Works, Inc. Trw, Inc. United Technologies Cross-Defendants, Alcan Aluminum Corporation

Norman W. Bernstein (argued), David L. Anderson, Laurel A. Bedig, Shea & Gould, Washington, D.C., for appellees BASF Corp., Beazer Materials and Services, Inc., Exxon Corp., and Ford Motor Co.

Stuart W. Axe, Lester, Schwab, Katz & Dwyer, New York City, for appellee Chrysler Motors Corp.

John B. Lewis, Arter & Hadden, Cleveland, Ohio, for amici curiae Operation Oswego County, Inc., County of Oswego, Greater Oswego Chamber of Commerce, Inc., City of Oswego, Mohawk Cent. School Dist., Richfield Springs Cent. School Dist., Mount Markham Cent. School Dist., and New Hartford Cent. School Dist.

Hosmer Culkin, Operation Oswego County, Inc., Oswego, N.Y., for amicus curiae Operation Oswego County, Inc.

Bruce N. Clark, Oswego, N.Y., for amicus curiae County of Oswego.

Michael Stanley, Oswego, N.Y., for amicus curiae Greater Oswego Chamber of Commerce, Inc.

Gay Williams, Sullivan & Williams, Oswego, N.Y., for amicus curiae City of Oswego.

Alan S. Burstein, Scolaro, Shulman, Cohen, Lawler & Burstein, Syracuse, N.Y., for amici curiae Mohawk Cent. School Dist., Richfield Springs Cent. School Dist., Mount Markham Cent. School Dist., and New Hartford Cent. School Dist.

James R. Griffith, Felt, Hubbard, & Bogan, Utica, N.Y., for amici curiae Russell Blackstone, Feminine Touch Fabrics, Clinton Auto Ser., True Value Hardware, Brandy Keg Kennels, and Herkimer Elks Club.

Constantine L. Trela, Laura L. Leonard, Carolyn K. Gerwin, Sidley & Austin, Chicago, Ill., Robin S. Conrad, National Chamber Litigation Center, Inc., Washington, D.C., for amicus curiae U.S. Chamber of Commerce.

Before: GREENBERG and SCIRICA, Circuit Judges, and DEBEVOISE, District Judge.*

GREENBERG, Circuit Judge.

This matter is before the court on appeal by Alcan Aluminum Corporation ("Alcan") from a summary judgment entered in favor of the United States (the "Government") for response costs incurred by the Government in cleaning the Susquehanna River.

On November 24, 1989, the Government filed a complaint in the United States District Court for the Middle District of Pennsylvania under section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9607(a) ("CERCLA") against 20 defendants, including Alcan, for the recovery of clean-up costs it incurred in response to a release of hazardous substances into the Susquehanna River. On October 11, 1990, the Government moved for summary judgment against Alcan, the only non-settling defendant, and on November 13, 1990, Alcan cross-moved for summary judgment.

The district court, after receiving a report and recommendation from a magistrate judge, issued a memorandum and order granting the Government's motion for the reasons set forth in United States v. Alcan Aluminum Corp., 755 F.Supp. 531 (N.D.N.Y.1991) (hereinafter called "Alcan New York "), another CERCLA case involving the release of hazardous substances generated by Alcan but at a different location. Accordingly, on May 8, 1991, the court entered judgment against Alcan in the amount of $473,790.18, which was the difference between the full response costs the Government had incurred in cleaning the Susquehanna River and the amount the Government had recovered from the settling defendants.

For reasons that follow, even though we largely agree with the district court's interpretation of the relevant provisions of CERCLA, we will vacate the judgment of May 8, 1991, and will remand the case for further factual development concerning the scope of Alcan's liability.

Virtually all of the facts in this case to the extent developed at this point are undisputed. The Butler Tunnel Site (the "Site") is listed on the National Priorities List established by the Environmental Protection Agency ("EPA") under section 105 of CERCLA, 42 U.S.C. § 9605. See 52 Fed.Reg. 27,620 (July 22, 1987). 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.

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.1 The Mahler Companies collected the liquid wastes from numerous industrial facilities located in the northeastern United States and, in total, disposed of approximately 2,000,000 gallons of oily wastes containing hazardous substances through the Borehole.2 Apparently, it was contemplated that the waste would remain at the Site indefinitely.

Alcan is an Ohio corporation which manufactures aluminum sheet and plate products in Oswego, New York. From 1965 through at least 1989, Alcan's manufacturing process involved the hot-rolling of aluminum ingots. To keep the rolls cool and lubricated during the hot-rolling process, Alcan circulated an emulsion through the rolls, consisting of 95% deionized water and 5% mineral oil. At the end of the hot-rolling process, Alcan removed the used emulsion and replaced it with unused emulsion.

During the rolling process, fragments of the aluminum ingots, which also contained copper, chromium, cadmium, lead and zinc, hazardous substances under CERCLA, broke off into the emulsion. In an effort to remove those fragments, Alcan then filtered the used emulsion prior to disposing of it, but the filtering process was imperfect and hence some fragments remained. According to Alcan, however, the level of these compounds in the post-filtered, used emulsion was "far below the EP toxic or TCLP toxic levels and, indeed, orders of magnitude below ambient or naturally occurring background levels. Moreover, the trace quantities of metal compounds in the emulsion [were] immobile...." Appellant's Br. at 4. The Government does not specifically challenge Alcan's assertion that the used emulsion contained only low levels of these metallic compounds, as it contends that this fact is irrelevant to Alcan's liability under CERCLA.

From mid-1978 to late 1979, Alcan contracted with the Mahler Companies to dispose of at least 2,300,950 gallons of used emulsion from its Oswego, New York, facility. During that period, the Mahler Companies disposed of approximately 32,500-37,500 gallons (or five 6500-7500 gallon loads) of Alcan's liquid waste through the Borehole into the Site.3

In September 1985, approximately 100,000 gallons of water contaminated with hazardous substances were released from the Site into the Susquehanna River. It appears that this discharge was composed of the wastes deposited into the Borehole in the late 1970's. Between September 28, 1985, and January 7, 1987, EPA incurred significant response costs due to the release and the threatened release of hazardous substances from the Site. According to the Government, EPA's response actions included "containing an oily material on the river through the use of absorbent booms; immediately removing and disposing of 161,000 pounds (over 80 tons) of oil and chemical-soaked debris and soil, monitoring, sampling and analysis of air and water, and conducting hydrogeologic studies." Government's Br. at 10-11.

On December 27, 1985, EPA issued written information requests to potentially responsible parties ("PRPs"),4 including Alcan, concerning their responsibility for the presence of hazardous substances at the Site. In May and June of 1986, EPA issued letters to the PRPs informing them of their potential liability under CERCLA. Those letters invited the PRPs to conduct a remedial investigation/feasibility study and to enter into an agreement with EPA for the issuance of an administrative order governing the study. Several PRPs conducted these negotiations with EPA in an attempt to settle their liability for removal costs incurred by the Government, but Alcan did not participate in this process.

In November 1989, the Government filed a complaint against 20 defendants, including Alcan, for the recovery of costs incurred as a result of the release of hazardous wastes from the Site into the Susquehanna River. In response, 17 of the 20 defendants executed a consent decree, reimbursing the Government for certain removal costs, and the district court entered that decree on January 17, 1990. On June 8, 1990, two of the three remaining defendants entered into a second consent decree with the Government, which the district court approved on July 25, 1990.

The Government then moved for summary judgment against Alcan, the only non-settling defendant, to collect the balance of its response costs. Alcan cross-moved for summary judgment, arguing that its emulsion did not constitute a "hazardous substance" as defined by CERCLA due to its below-ambient levels of copper, cadmium, chromium, lead and zinc, and further contending that its emulsion could not have caused the release or any response costs incurred by the Government.

On January 9, 1991, the district court referred this case to a magistrate judge who recommended that the court grant the Government's motion for summary judgment for the reasons set forth by the United States District Court for the Northern District of New York in Alcan New York. On the basis of that recommendation, the district court granted the Government's motion for summary judgment on May 8, 1991. Accordingly, it held that Alcan was jointly and severally liable for the removal costs because Alcan's waste contained identifiable levels of hazardous substances and was present at the Site from which there was a release. By following Alcan New York, the court also concluded that Alcan's waste did not fall within the "petroleum exclusion" under 42 U.S.C. § 9601(14).

Alcan filed a timely notice of appeal on June 5, 1991, and we have jurisdiction to review the district court's final order pursuant to 28 U.S.C. § 1291. Our standard of review is plenary. Carlson v. Arnot-Ogden Memorial Hospital, 918 F.2d 411, 413 (3d Cir.1990).

In response to widespread concern over the improper disposal of hazardous wastes, Congress enacted CERCLA, a complex piece of legislation designed to force polluters to pay for costs associated with remedying their pollution. A Legislative History of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, Senate Committee of Environment and Public Works ("A Legislative History "), S.Doc. No. 97-14, 97th Cong., 2d Sess.1983, Vol. I, p. 320 (one of the statute's principal goals is "assuring that those who caused chemical harm bear the costs of that harm....") 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, 1197 (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").5

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. Specifically, section 104 authorizes the President to respond to a release or substantial threat of a release of hazardous substances into the environment by: (1) removing or arranging for the removal of hazardous substances; (2) providing for remedial action relating to such hazardous substances; and (3) taking any other response measure consistent with the National Contingency Plan that the President deems necessary to protect the public health or welfare or the environment. 42 U.S.C. § 9604(a). The President has delegated most of his authority under CERCLA to EPA.6

CERCLA's bite lies in its requirement that responsible parties pay for actions undertaken pursuant to section 104. Under section 107, CERCLA liability is imposed where the plaintiff establishes the following four elements:

(1) the defendant falls within one of the four categories of "responsible parties";7

(2) the hazardous substances are disposed at a "facility";8

(3) there is a "release" or threatened release of hazardous substances from the facility into the environment;9(4) the release causes the incurrence of "response costs".10

42 U.S.C. § 9607. See also B.F. Goodrich, at 1198; United States v. Serafini, 750 F.Supp. 168, 170 (M.D.Pa.1990); United States v. Wade, 577 F.Supp. 1326, 1333 (E.D.Pa.1983).

Reimbursement for response costs can be obtained in a variety of ways. For example, the Government can clean the sites itself using monies in the Hazardous Substance Response Trust Fund established by section 221 of CERCLA, 42 U.S.C. § 9631 and now the Hazardous Substance Superfund or "Superfund" (see 26 U.S.C. § 9507); EPA can then seek reimbursement from responsible parties, as it has done in this case. In addition, section 106(a) permits EPA to request the Attorney General to "secure such relief as may be necessary to abate such danger or threat" by filing a civil action in federal district court. That section also permits EPA to issue administrative orders "as may be necessary to protect public health and welfare and the environment."

Finally, and of great significance in this case, CERCLA imposes strict liability on responsible parties. 42 U.S.C. § 9601(32).11 See Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d at 1150; New York v. Shore Realty Corp., 759 F.2d 1032, 1042 (2d Cir.1985) ("Congress intended that responsible parties be held strictly liable, even though an explicit provision for strict liability was not included in the compromise....")

B. CERCLA CONTAINS NO QUANTITATIVE REQUIREMENT IN ITS DEFINITION OF "HAZARDOUS SUBSTANCE":

Alcan argues that it should not be held liable for response costs incurred by the Government in cleaning the Susquehanna River because the level of hazardous substances in its emulsion was below that which naturally occurs and thus could not have contributed to the environmental injury. It asserts that we must read a threshold concentration requirement into the definition of "hazardous substances" for the term "hazardous" to have any meaning. The United States Chamber of Commerce (the "Chamber") as amicus curiae agrees, observing that "Congress took pains to define 'hazardous substance'.... Congress clearly never intended to abandon altogether the requirement that the substance at issue be hazardous." Chamber Br. at 20-21 (footnote omitted). The Chamber further states that "the uncontested facts show that Alcan's waste contained less of these [hazardous] elements than can be found in clean dirt." Chamber Br. at 18. For these reasons it too claims that Alcan should not be held liable for any environmental injury to the Susquehanna River.

The Government responds that under a plain reading of the statute, there is no quantitative requirement in the definition of "hazardous substance." Therefore, the Government asserts that Alcan's argument that substances containing below-ambient levels of hazardous substances are not really "hazardous" is properly directed at Congress, not the judiciary.

By adopting the reasoning of Alcan New York, the district court in this case agreed with the Government. Quoting Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 669 (5th Cir.1989), the district court in Alcan New York observed, " 'the plain statutory language fails to impose any quantitative requirement on the term hazardous substance,' " 755 F.Supp. at 537, and concluded that "there is no principled basis upon which to deviate from the ... rule that the mere listing of a substance by EPA renders that substance hazardous." Id. at 537-38. In response to Alcan's argument that virtually everything in the universe would constitute a hazardous substance under this reading of the statute, the court in Alcan New York held:

[T]he corporate generator, a non-natural person, has added to what nature has already seen fit to provide for the continued existence of various life forms on this planet; that Congress has enacted laws to limit, and perhaps limit quite severely, additions to nature for the sake of the environment and of life on this planet seems eminently reasonable.

Id. at 538.

For the reasons that follow, we are satisfied that the court was correct in that conclusion.

Section 9601(14) sets forth CERCLA's definition of "hazardous substance" as:

'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 [42 U.S.C.A. § 6921] (but not including any waste the regulation of which under the Solid Waste Disposal Act [42 U.S.C.A. § 6901 et seq.] has been suspended by Act of Congress), (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 [42 U.S.C.A. § 7412], 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....

Hence, the statute does not, on its face, impose any quantitative requirement or concentration level on the definition of "hazardous substances." Rather, the substance under consideration must simply fall within one of the designated categories.

Since the statute is plain on its face, we need not resort to legislative history to uncover its meaning. Sacred Heart Medical Center v. Sullivan, 958 F.2d 537, 545 (3d Cir.1992); Velis v. Kardanis, 949 F.2d 78, 81 (3d Cir.1991). In any event, the legislative history is barren of any remarks directly revealing Congress' intent vis-a-vis a threshold requirement on the definition of hazardous substances. Significantly, however, the available legislative history of CERCLA does indicate that Congress created the statute to force all polluters to pay for their pollution. A Legislative History, Vol. I, p. 320. It is difficult to imagine that Congress intended to impose a quantitative requirement on the definition of hazardous substances and thereby permit a polluter to add to the total pollution but avoid liability because the amount of its own pollution was minimal.

In addition, 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. See, e.g., Amoco Oil Co. v. Borden, Inc., 889 F.2d at 669 ("The plain statutory language fails to impose any quantitative requirement on the term hazardous substance and we decline to imply that any is necessary.");12 Eagle-Picher Industries, Inc. v. United States EPA, 759 F.2d 922, 927 (D.C.Cir.1985) ("a substance is a 'hazardous substance' within the meaning of CERCLA if it qualifies under any of the several subparagraphs of section 101(14)") (emphasis in original); City of New York v. Exxon Corp., 744 F.Supp. 474, 483 (S.D.N.Y.1990) ("liability under CERCLA attaches regardless of the concentration of the hazardous substances present in a defendant's waste so long as the defendant's waste and/or the contaminants in it are 'listed hazardous substances'...."); United States v. Western Processing Co., 734 F.Supp. 930, 936 (W.D.Wash.1990) ("The concentration or amount of hazardous substance is irrelevant as the statutory definition contains no threshold requirement."); United States v. Conservation Chemical Co., 619 F.Supp. 162, 238 (W.D.Mo.1985) ("A waste is a 'hazardous substance' under CERCLA if it contains substances listed as hazardous under any of the statutes referenced in CERCLA section 101(14) regardless of the volumes or concentration of those substances; presumably, if Congress intended the definition of hazardous substances to be contingent upon the presence of a certain amount or concentration of a hazardous substance, it would have so provided."); United States v. Carolawn Co., 21 Envt.Rep.CCas. (BNA) 2124, 2126 (D.S.C.1984) (CERCLA "simply does not distinguish hazardous substances on the basis of quantity of concentration") (footnote omitted); United States v. Wade, 577 F.Supp. 1326, 1340 (E.D.Pa.1983) (CERCLA imposes no concentration requirement on the definition of hazardous substances). But see United States v. Ottati & Goss, Inc., 22 E.R.C. 1736, 1739 (D.N.H.1984) (granting defendant's motion to dismiss on the ground that it "did not cause or contribute to cause the disposal of any hazardous wastes ... which exceeded the threshold established by the EPA for hazardous wastes ") (emphasis supplied).

It may be that Congress did not intend such an all-encompassing definition of "hazardous substances," but this argument is best directed at Congress itself. If Congress had intended to impose a threshold requirement, it could easily have so indicated. We should not rewrite the statute simply because the definition of one of its terms is broad in scope.13

C. THE DISTRICT COURT'S DEFINITION OF "HAZARDOUS SUBSTANCE" IS NOT INCONSISTENT WITH EPA REGULATIONS AND POLICY:

Alcan asserts that the district court's decision is erroneous because it bases Alcan's liability on the ground that the used emulsion contains trace levels of certain generic compounds listed in 40 C.F.R. § 302.4, Table 302.4, which is a consolidation of the lists promulgated pursuant to the Clean Water Act, the Clean Air Act and the Resource Conservation and Recovery Act.14 According to Alcan, substances listed under Table 302.4 must have reportable quantities ("RQs")15 and Chemical Abstract Service Registry Numbers ("CASRNs") in order to be considered hazardous under CERCLA. Since Table 302.4 does not provide RQs or CASRNs for the generic compounds in Alcan's used emulsion, it is Alcan's view that they are therefore not "listed" hazardous substances under the meaning of section 302.4(a), 40 C.F.R. § 302.4(a).16 The Government disagrees, and contends that the generic designations are not mere headings inserted by the drafters of Table 302.4, but are substantive categories of hazardous substances that trigger CERCLA liability. In addition, the Government notes that CERCLA does not require a substance to have an RQ or a CASRN number to be considered hazardous. The district court, by adopting the reasoning in Alcan New York, properly endorsed the Government's position.

First, section 101(14) of CERCLA defines a hazardous substance to include "any toxic pollutant listed under section 1317(a) of Title 33 [the Clean Water Act]." 42 U.S.C. § 9601(14). The generic compounds contained in Alcan's emulsion are "listed" under 40 C.F.R. § 401.15, the list of toxic pollutants promulgated pursuant to section 1317(a). Thus, there is no need to reach the significance of RQs or CASRNs under Table 302.4 to determine whether generic compounds are "hazardous" by virtue of their listing under that Table.

Second, the fact that Table 302.4 does not provide CASRNs for generic categories is irrelevant, as CASRNs are "for convenience of the user only." 40 C.F.R. § 116.4. Accord, City of New York v. Exxon, 766 F.Supp. 177, 182 (S.D.N.Y.1991) ("the fact that the generic headings have no ... [CASRNs] assigned to them is of no significance"). 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. Many of the generic classes of compounds encompass hundreds or even thousands of specific compounds. It would be virtually impossible for the Agency to develop a reportable quantity for a generic class of compounds that would take into account the varying characteristics of all of the specific compounds in the class.

50 Fed.Reg. 13,461.

EPA has further stated that generic categories of substances are nonetheless considered "hazardous substances":

Several commentators were unsure of the Agency's position on reporting and liability for generic classes.... EPA has determined that the notification requirements need apply only to those specific compounds for which RQs are listed in Table 302.4, rather than to the generic classes of compounds. However, as the Agency indicated in the NPRM preamble, this does not preclude liability with respect to releases of specific compounds which are within one of these generic listings but which are not listed in Table 302.4. In other words, a releaser is liable for the cleanup of releases of hazardous substances which fall under any of the broad, generic classes, but does not have to report such releases when the specific compounds, and hence the RQs, are not listed in Table 302.4.

EPA's interpretation of the statute it is charged with enforcing is entitled to considerable deference, and must be adhered to where it is reasonable and consistent with the language of the statute. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984); see also Sacred Heart, 958 F.2d at 543-45. Moreover, an EPA Administrator's interpretation of his own regulations is entitled to even greater deference. Sacred Heart, 958 F.2d at 543-45; Vermont v. Thomas, 850 F.2d 99, 102 (2d Cir.1988). For these reasons the district court, by adopting Alcan New York, correctly concluded that the absence of an RQ or CASRN number does not signify that the substance is not "hazardous." Accord, City of New York v. Exxon Corp., 766 F.Supp. at 182.18

In sum, the only question before us in this regard is whether the substances Alcan admits existed in its used emulsion are listed in any of the statutory and regulatory schemes incorporated by section 101(14), 42 U.S.C. § 9601(14). Alcan has conceded that its emulsion contained trace quantities of cadmium, chromium, copper, lead and zinc. App. at 43. Those compounds are listed as hazardous under 40 C.F.R. § 401.15, promulgated pursuant to the Clean Water Act, 33 U.S.C. § 1317(a). Further, these compounds are "listed" under Table 302.4 because the absence of CASRN or RQ numbers is irrelevant. Hence, they are hazardous substances.

The foregoing determination that the generic compounds in Alcan's emulsion are "listed" under the meaning of section 302.4(a) (40 C.F.R. § 302.4(a)) also disposes of Alcan's contention that the district court erred in failing to determine whether the compounds exhibit the characteristics of hazardous substances pursuant to section 302.4(b). Section 302.4(b) provides:

Unlisted hazardous substances. A solid waste, as defined in 40 CFR 261.2, which is not excluded from regulation as a hazardous waste under 40 CFR 261.4(b), is a hazardous substance under section 101(14) of the Act if it exhibits any of the characteristics identified in 40 CFR 261.20 through 261.24. (emphasis supplied).

However, because generic compounds are "listed" hazardous substances under Table 302.4, we need not determine whether they exhibit the characteristics set forth in 40 C.F.R. §§ 261.20 through 261.24. In addition, as the district court observed, the compounds in Alcan's emulsion are hazardous by virtue of their designation as toxic pollutants under the Clean Water Act.19

Alcan also deems it significant that EPA has explained that "CERCLA liability may still attach to releases of specific compounds that are within one of the generic listings but not specifically listed in Table 302.4." 50 Fed.Reg. 13,472-73 (emphasis supplied). In Alcan's view, if EPA intended generic categories to constitute hazardous substances in every instance, it would have used the word "shall." However, as the court in City of New York v. Exxon Corp. pointed out, "[t]he use of the word 'may' simply reflects EPA's recognition that CERCLA liability attaches only if all elements of a CERCLA cause of action are established." 766 F.Supp. at 183 n. 1.

In Alcan's view, the district court's construction of the statute is at odds with environmental policy because it imposes liability on generators of allegedly "hazardous" substances although the substances pose no real threat to the environment.20 Alcan's argument, though superficially appealing, is flawed. First, as noted above, the Government responds to "releases" that threaten environmental safety. Thus, it is the release alone that must justify the response costs, not the particular waste generated by one given defendant. Here, there is no question but that a release occurred. 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. Accordingly, we find that the district court's construction of the statute furthers important environmental goals.21

Alcan maintains that, if we decline to construe the determination of "hazardous substance" to encompass a concentration threshold, we must at least require the Government to prove that Alcan's emulsion caused or contributed to the release or the Government's incurrence of response costs. The Government contends, and the district court by adopting the reasoning of Alcan New York agreed, that the statute imposes no such causation requirement, but rather requires that the plaintiff in a CERCLA proceeding establish that the release or threatened release caused the incurrence of response costs; it underscores the difficulty CERCLA plaintiffs would face in the multi-generator context if required to trace the cause of the response costs to each responsible party.22

The plain meaning of the statute supports the Government's position. As noted above, section 107 imposes liability upon a generator of hazardous substances who contracts with another party to dispose of the hazardous substances at a facility "from which there is a release, or threatened release which causes the incurrence of response costs." 42 U.S.C. § 9607 (emphasis supplied). The statute does not, on its face, require the plaintiff to prove that the generator's hazardous substances themselves caused the release or caused the incurrence of response costs; rather, it requires the plaintiff to prove that the release or threatened release caused the incurrence of response costs, and that the defendant is a generator of hazardous substances at the facility.