Uniroyal Chemical Co. v. Deltech Corp.

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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