1 Circuit Judge of the Eighth Circuit, sitting by

designation. 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.2 Deltech i s 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 wh ich 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 (“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 Amend ments and Reauthorization

Act of 1986 (“SAR A”), 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 facili ty 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 then3 Deltech was originally named as a defendant, but

eventually settled with Uniroyal and is not a party to the present

appeal.

3 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

ev aluating 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 hu ndreds 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.

Uniro yal then filed suit in federal district court against

Safeway, TMI , and other involved parties. 3 In addition to statelaw claims not at issue in this appeal, Uniroyal asserted a claim

against TMI and Safeway (“defendants”) under CERCL A, seeking to4 Uniroy al 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 recover the costs it incurred in responding to the rupture. 4

Uniroyal brought its private c ost 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 a s 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 Un iroyal’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 whe ther Uniroyal

had established that the defendants were “responsible persons”

under the statute, a required element of its CERCL A claim. S ee

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). The6 This case, by comparison, involves an accidental release

of a useful commercial product.

5 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 dispos al requirement that

conditions l iability on the disposal of a hazardous waste. 6 As

there is no express disposal requirement in that provis ion, 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. S ee 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 be cause 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 district6

court found that “all hazardous substances with a useful purpose in

production activities qualify under the consumer product

exception.” I d

. 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 f inal judgment under Rule 54(b) of the

Federal Rules of Civil Procedure. S ee 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. O

HM Remediation Servs. v. Evans Cooperage Co., Inc.

, 116

F.3d 1574, 1579 (5th Cir. 1997). In a typical summary-judgment7

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’

c laim 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

d ecide whether the consumer product exception precludes Uniroya l

from proving the existence of a CERCLA facility, another required

element of its caus e of action. That question, if reached, will8

require us to revisit our holding in Dayton to determine whether it

governs our application of the consumer product e xception in the

instant appeal. If D ayton 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); s ee also O H M

Reme diation 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. S ee 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 Substan ce Response Trust7 CERCLA does not ex pressly 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 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

i ncurred 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 associ ated 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 c ase 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 cau sed the plaintiff to incur

response costs, see 42 U.S.C. § 9607(a)(4). 7 L icciardi

, 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

t he plaintiff successfully establishes those elements, and the

defendant is unable to prove one of the defenses listed in8 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 omiss ion of a third party . . . ." 42 U.S.C. §

9607(b).

10 § 9607(b), the plaintiff is entitled to summary judgment. 8 S ee 42

U.S.C. § 9 607(b); A moco 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 re sponding to the accident.

Accordingly, ou r 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 com e to be located ; but

does not include any consumer product in

consumer use or any vessel.11

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 import ance.

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 involv e toxic waste sites, the consumer product

exception is often beyond the pale of con sideration since waste

sites, by definition, involve waste materials and n ot 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 le ss 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” requ irement. 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 any12 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 (5t h 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. T anglewood 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 "responsibl e 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

d isposal of a hazardous waste is an inherent and unavo idable

requirement for bringing a claim under § 9607(a)(1). We disagree.13

The starting point for statutory interpretati on is the

language of the statute itself. G reyhound Corp. v. Mt. Hood

Stages, Inc.

, 437 U.S. 322, 33 0 (1978) (citations and quotations

omitted). When that language is plain we must abide by it; we may

depart f rom its meaning only to avoid a result "so bizarre that

Congress ‘could not have intended’ i t". D emarest 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

Congre ss." C

hevron, 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 resp onsible persons, s ee 42 U.S.C.

§§ 9607(a )(2) - (4). But that requirement is not present in the

first class. S ee 42 U.S.C. § 9607(a)(1); California v. Blech

, 976

F.2d 525, 526-27 (9th Cir. 1992) (ack nowledging lack of disposal

requirement). Unlike the three other classes of responsible

persons, where the word “disposal” is expressly employed in the9 One of the defendants’ arguments suggests that we must

read a disposal requirement into § 9607(a)(1) in order to maintain

some sort of i nternal 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. R ussello v. United States

, 464 U.S. 16, 23

(1983); see als o 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 a nother, it should not be implied

where excluded.”).

14 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, b ut assert that we

m ust infer one nonetheless because Congress intended CERCLA t o

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 in15

conjunction with CERCLA as a whole, it becomes evident that

Congress wanted to confine liability under the statu te 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 insig ht 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, we lls, 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 disposal10 By contrast, the term “disposal,” which is employed in

t he text of the three other classes of responsible persons in §

9607(a), but not § 9607(a)(1), is defined more narrowly. Under §

9 601(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 sites.

Other key CERCLA provisions reflect the same intent. To

impose liability under the statu te, 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). 1 0 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).11 B y comparison, § 6903(27) of the SWDA defines “soli d

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 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

pur suant 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 n atural

gas and such synthetic gas).

42 U.S. C. § 9601(22). 1 1 Notice that in this definition hazardouswaste, or combination of solid wastes, which

because of its quantity, concentration, or

physical, che mical, or infectious characteristics 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 whe n improperly treated, stored,

transported, or disposed of, or otherwise

managed.

42 U.S.C. § 6903(5).

18 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, w hereas others are more specifically

described as waste products.

To accept the defendants’ cla im 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 the19

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 C ONG

. R EC

. S7695 (1980). Congress responded in

1980 by passing CERCLA, a compromise measure that was hastily

e nacted in the final days of the lame-duck session of the 96th

Congress. S ee generally

, Grad, A Legislative History of the20

Comprehensive Environmental Response, Compensation and Liability

("Superfund") Act of 1980, 8 C OLUM

. J. E NV

. 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. S ee

, 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)); I n 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. S ee Amoco Oil Co.

,21

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 Representati ves Bill 85 (“H.R. 85"), House of

Representatives Bill 7020 (“H.R. 7020"), and Senate Bill 1480 ("S.

1480"). Grad, supra , at 1; T H E E NVIRONMENTAL L AW I NSTITUTE

, S UPERFUND :

A L EGISLATIVE H ISTORY 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, s upra

, at 3. As its

name suggests, H.R. 85 targeted oil pollution by est ablishing 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 Con gressman Florio on April 2,

1980. I d. 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 5.22

S. 1480, the third and final bill, was introduced in the

Senate on Jul y 11, 1979 by Senators Muskie, Stafford, Chafee,

Randolph, and Monyihan. I d. 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 C ONG

. R EC

. 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 pass ed. Superfund, s upra

, at xviii.

Thus, on November 24, 1980, with the 96th C ongress 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 compare d the new

bill with H.R. 7020 and H.R. 85. He explained that H.R. 7020 was

considered too narrow because it ad dressed 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 of12 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 the response provided in our amendme nt. 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 dutie s to deal with only half a

problem. The compromise, while greatly pared

from its original version, must and d oes at

leas t 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

ar e 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 C ONG

. R EC . 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 House24

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 C ONG

. R EC

. 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

c lean up, but since the version we are about

to vote on is b roader 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. S ee 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 35.25

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

creat ion 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 reas onable

clarity, that over the course of the legislative process Congress

expanded the statute beyond its origin al underpinnings so as to

address releases of hazardous sub stances 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

P roducts 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 asbe stos-removal cases. S ee

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 to26

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. I d

. 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 wastesite limitation on other occasions. In re Bell Petroleum Servs.,

Inc.

, 3 F.3d 889, 894 (5th Cir. 1993) (“[CERCLA’s] purpose is to

faci litate the prompt clean-up of hazardous waste sites”); A moco

Oil Co. , 889 F.2d at 667 (“Congress enacted CERCLA in response to

well-publicized toxic waste problem s”). Even the most cursory

review of those cases belies the defendants’ argum ent. Until

today, this Court has never squarely addressed whether li ability

under CERCLA is limited to waste disposal sites. In T anglewood

East Homeowners v. Charl es-Thomas, Inc. , 849 F.2d 1568 (5th Cir.

1988), we were presented with a related question, but declined to

address it. S ee 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.”).13 The purpose of the report was "to determine the adequacy

of existing comm on 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 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. S ee

,

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); K nox v.

AC & S, Inc.

, 690 F. Supp. 752, 757 (S.D. Ind. 1 988). But see

,

e.g.

, First Un ited 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 warr anting 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.” E lectric Power Bd. of

Chattanooga , 716 F. Supp. at 1080. The district court based that

conclusion in large part on a report to Congress, known a s 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:28 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 consequence s of improper disposal,

improper transportation, spills, and

improperly maintained or clos ed 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 appropri ately be considered legislative history,

tha t 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 the29 point at which the y enter the environment in

the form of spills during transportation or

otherwise, or in the f orm 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 becaus e a court must defer to the EPA’s reasonable

construction of CERCLA absent a clearly expressed legislative

purpose to the contrary. S ee 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 the14 A chem ist had used the building’s basement for twenty

years to make radium sources, and the entire structu re 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 E PA 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

o wner 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 legi slative history of the31

statute, the implementing reg u lations, 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 soug ht 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

s atisfy that requirement because the rupture of the tanker tr uck

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 D ayton is

distinguishable from the present case, which is founded on owneroperator liability under § 9607(a)(1), because D ayton 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.32 1. Our Holding in Dayton

In Dayton

, the plaintiffs brought suit under CER CLA against

several manufacturers and suppliers of asbestos seeking to recover

the cost of r emoving asbestos-containing building materials from

various buildings. D ayton

, 906 F.2d at 1061-63. In contrast to

the present cas e, which is founded on owner-operator liability

under § 9607(a)(1), the plaintiffs in Dayton sue d 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); D ayton

, 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 claimunder § 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 le gislative 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.”33

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

t he 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 n ot been satisfied, we then proceeded to express doubt as to

whether the plaintiffs had satisfied the facili ty 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 su bstances. It

is clear that Congress did not intend CE RCLA

to target legitimate manufacturers or sellers

of useful products. Rather, t aken in context

,34 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 Congres s 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 o f 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 subsequently35

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 b e considered binding authority); I n 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 Da yton on the consumer product exception,

whi ch 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 only36

re ad 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. D ayton is an arranger-liability case brought

under § 96 07(a)(3). D ayton

, 906 F.2d at 1064. In arrangerl iability cases a disposal is an express requirement for the

imposition of CERCLA liability . 42 U.S.C. § 9607(a)(3); D ayton

,

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 occ urred. Consequently, D ayton’s focus on the

disposal question, and the related dist i nction 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 only16 In limiting Dayton to its facts, we by no means intend to

suggest that our holding in Dayton is wrong. D ayton 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 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 limi ted 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

c onsumer 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 w e 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, in stallation, equipment, pipe or

p ipeline (including any pipe into a sewer or

publicly owned treatment works), well, pit, pond,

lagoon, impoundment, ditch, landfill, stor age

container, motor vehicle, rolling stock, or38 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 sit es 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 un der subpart (B) as a site or area where a39

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 tr uck 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

questio n is whether there exists a facility that “includes” a

consumer product in consumer use. Since the word include denotes

containment under this interpretation, th e 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. S ee Amcast

Indus. Corp. v. Detrex Corp. , 2 F.3d 746, 750 (7th Cir. 1993)

(re cognizing the ambiguity and adopting the literal approach);

National R.R. Passenger Corp. v. New York City Hous. Auth

. , 819 F.

Supp. 127 1, 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

,40

716 F. Supp. at 1080 (same).

In the Seventh Circuit’s Amcast case, the defe ndant, 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 plaintif f 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 appea l, 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 l iterally, the only consumer

product exempted by the statute is the

consumer pro d uct 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, nonliteral 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 the17 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 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, 1 7 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 ultima tely 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.

T HE E NVIRONMENT AND N ATURAL R ESOURCES P OLICY D IVISION OF T HE C ONGRESSIONAL

R ESEARCH S ERVICE OF THE L IBRARY OF C ONGRESS FOR THE C OMMITTEE ON E NVIRONMENT AND

P UBLIC W ORKS

, 97 TH C ONG

., 2 D S ESS

., A L EGISLATIVE H ISTORY OF THE C OMPREHENSIVE

E NVIRONMENTAL R ESPONSE

, C OMPENSATION

, AND L IABILITY A CT OF 1980 (S UPERFUND ) 182

(Comm. Print 1983). Thus, the legislative history of the exception42

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 c onstitute “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 con cluded

that the tanker truck and trucking terminal con stitute 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.

T he 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 of43

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.

19 93) (concluding, based solely on our d icta 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 struc t ures containing asbestos building material are not

consumer products in consumer use).

T he 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. S ee

, e.g.

, Knox

, 690 F. Supp. at

756 (stating that asbestos-containing insulation, sold between

busi nesses, could be considered a consumer product); E lectrical

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 useful44

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. S ee, e.g., United States v. M/V Santa Clara I

, 887 F.

Supp. 825, 842 (D.S.C. 1995) (ho lding 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) (hold ing 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 prod uct 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, so18 “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 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 good s,” 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 Int e rnational Dictionary (16th ed. 1971).

Black’s Law Dictionary offers a consistent description. It defines

a “consumer product” as “any tangib le personal property which is

distributed i n 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 i s 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 for19 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

c osmetic (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 reta il 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

con sumed 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 use in or around a permanent or tempo r ary

household or residence, a school, in

recreation, or otherwise, or (ii) for the

p ersonal 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, e t 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,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 cl osets, 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, gen eral 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

se ction 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

design ed to be consumed or expended in the

course of such consumption or use.

18 U.S.C. § 1365(g).

47 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.48

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 C ONG

. R EC

. 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 C ONG

. R EC . 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 an49

amendment requiring the inventory of hazardous substances by owners

and operators of facilities, the Senate Committee on the

Environment and Public Wo rks 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 in terpretation of the consumer product exception

ac cords 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 us e 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 po sition on the consumer

product exception, it does suggest that the EPA construes the

exception as applying to goods used for individual, family, or50

household consumption.

Other provisions in CERCLA suggest th at useful products not

specifically excluded from liability under the statute are

n ecessarily 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.” I d. Hence, when Congress wanted to

except from CERCLA liability a useful commerc ial 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. O HM 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 c onceivable area where hazardous substances come to be

located.” G eneral 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, or51 g:\opin\96-31226.opn 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

w aste 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 con sumer 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 grantin g 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.