2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-31-2000

Gould Inc v. A&M Battery

Precedential or Non-Precedential:

Docket 99-3294

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Recommended Citation

"Gould Inc v. A&M Battery" (2000). 2000 Decisions. Paper 229.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/229
Filed October 31, 2000 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 99-3294 

GOULD INC. 

v. 

A & M BATTERY & TIRE SERVICE; ALBER T NIVERT & 

CO.; ALEXANDRIA SCRAP CORPORATION; BEN 

WEITSMAN & SON, INC. OF OSWEGO, NY; ALL STA TE 

METAL COMPANY; AMERICAN SCRAP CO.; AMSOURCE 

(PENN IRON & METAL); B. MILLENS & SONS, INC.; 

BARNEY SNYDER, INC.; BRISTOL METAL CO., INC.; 

BROCK'S SCRAP & SALVAGE; BROOKFIELD AUTO 

WRECKERS, INC.; BROOKFIELD METAL CO.; BUFFERED 

JUNK CO.; CAPITOL IRON & STEEL CO., INC.; CAPITOL 

SCRAP IRON & METALS; CHARLES BLUESTONE CO., 

INC.; CLAREMONT METAL & PAPER STOCK; CLINTON 

METAL CO.; COMMERCIAL IRON & METAL CO.; 

CONSERVIT, INC.; COOPER METALLURGICAL CORP.; 

COUSINS METAL; CRESTWOOD METAL CORP .; DAVIS 

BROS. SCRAP CO., INC.; DAVIS INDUSTRIES; ELMAN 

RECYCLING CO.; EMPIRE RECYCLING CORP.; EXETER 

METALS CO.; F. SCHANERMAN; FAIRFIELD SCRAP CO.; 

FREDERICK JUNK CO.; FULTON IRON & STEEL CO.; 

GARBOSE METAL; GELB & CO., INC.; GIORDANO 

WASTE MATERIAL CO., in its own capacity and as the 

successor to Halpern Metals Company; GREENBLOTT 

METAL CO., INC.; GUTTERMAN IRON & METAL CORP.; 

H. & D. METAL CO.; H. SHAKESPEARE & SONS, INC.; 

HARRY GOLDBERG & SONS; HURWITZ BROS. IRON & 

METAL CO.; I. SHULMAN & SON CO., INC.; I. SOLOMON 

METAL CO., INC.; INDEPENDENT IRON & MET AL; 

INTERSTATE BURLAP & BAG CO.; ITHACA SCRAP 

PROCESSORS; J & J METALS, INC.; J. BROOMFIELD & 

SON, INC.; J. SEPENUK & SONS, INC.; JAMES 

BURROWS COMPANY, INC.; JOE KRENTZMAN & SONS; 
JOSEPH FREEDMAN CO., INC.; JOSH STEEL CO.; 

KELLEHER BATTERY; KLEIN METAL CO., INC.; 

KLIONSKY SCRAP IRON & METAL CO.; LAKE ERIE 

RECYCLING; LARAMI METAL CO.; LIBERTY IRON & 

METAL CO., INC.; LOUIS COHEN & SON, INC.; LOUIS 

KUTZ & SON; LYELL METAL; M. HARTMAN, CO.; 

MARLEY'S DIVISION OF ABE COOPER, Liverpool, NY; 

MAXNOR META/M. SCHIPPER & SON; MEYER-SABA 

METAL, CO.; MID-CITY SCRAP IRON & SALV AGE, CO., 

INC.; MODERN JUNK & SALVAGE, CO.; MONTGOMERY 

IRON & METAL CO.; MORGAN HIGHWAY AUTO PARTS; 

NEWBURGH SCRAP CO.; OLEAN STEEL SALES & 

SERVICE; P. JACOBSON, INC.; P. K. SCRAP METAL CO.; 

PASCAP CO., INC.; PENN HARRIS METALS CORP .; PENN 

JERSEY RUBBER & WASTE CO.; R & R SALV AGE INC.; 

R. L. POETH SCRAPYARD; RIEGEL SCRAP & SAL VAGE; 

ROTH BROTHERS SMELTING CORP.; ROTH STEEL 

CORPORATION; S & J GENERATORS & ST ARTER CO.; S. 

KASOWITZ & SONS, INC.; SAM KAUFMAN & SON 

METALS CO.; SEGAL & SONS, INC.; SQUARE DEAL 

METAL RECYCLING; STATE LINE SCRAP CO., INC.; 

SUISMAN & BLUMENTHAL; TIMPSON SALVAGE CO.; 

TWIN CITIES WASTE & METAL; UNITED MET AL 

TRADERS, INC.; V. VACCARO SCRAP CO.; W ALDORF 

METAL CO.; WALLACE STEEL, INC.; WEINER 

BROKERAGE CORP.; WEINER IRON & METAL CORP.; 

WEINSTEIN & CO.; WILLIAM F. SULLIVAN & CO.; WIMCO 

METALS, INC.; JOINT DEFENSE GROUP; PETTINELI 

USED AUTO PARTS; DE MICROMIS GROUP; MARJOL 

SITE RETAILERS' JOINT DEFESNE GROUP; MICRO 

GROUP; WHITE & WILLIAMS DEFENSE GROUP; MARJOL 

SITE DE MINIMUS SCRAPDEALERS GROUP; MARJOL 

SITE PRP GROUP; EXXON, INC.; BODOW RECYCLING 

CO.; KASSAB BROTHERS STEEL; CHARLES MEYER & 

SON; ALLAN INDUSTRIES; ATTONITO RECYCLING 

CORPORATION; CRASH'S AUTO PARTS & AUTO 

SALES/CAP SURPLUS SCRAP METAL; CHARLES 

EFFRON; CHAUNCEY SCRAP METALS; COATSVILLE 

SCRAP; H. BIXON & SONS SCRAP & METAL; DA VIS 

INDUSTRIES OF ARLINGTON, VA; 

 2 
FRANK H. NOTT, INC.; G. CARLOMANGO, INC.; GEORGE 

MARS MKM BUILDERS; HUDSON SCRAP CO.; 

JACOBSON METAL CO.; ENOS METALS; KREIGER 

WASTE; FIEGLEMAN RECYCLING CO.; LOUIS MACK & 

CO. SCRAP METAL; LUKENS METAL CO.; M & M SCRAP 

METAL CO.; M. LEVENSON CO., INC.; MARSON MET ALS, 

INC.; N. BANTIVOLGLIO SONS PAPER & MET ALS, INC.; 

NORWITZ, INC.; P. LEWIS & SONS; P ATCHOGUE SHEET 

METAL SHOP; RICHARDSON GRAPHICS; 

BLADENSBURG/RIVER ROAD METALS CO.; ST. MARY'S 

IRON & STEEL CORP.; ZUCKERMAN SCRAP CO., INC.; 

KEARNEY SCRAP CO.; MARLEY'S DIVISION OF ABE 

COOPER; RIVERSIDE IRON & STEEL CORP.; A. ALLAN 

INDUSTRIES, INC., t/a Allan Industries; A. SHAPIRO & 

SONS; ABE COOPER SYRACUSE; ABE 

COOPER-WATERTOWN CORP.; ABE E. NATHAN & SONS; 

ABE N. SOLOMON, INC.; ACADEMY IRON & METAL CO.; 

ACME METALS & RECYCLING, INC.; ACTION MET AL 

COMPANY, INC.; ADVANCE AUTO STORES; AMERICAN 

BAG & METAL CO., INC.; AMERICAN SCRAP & W ASTE 

REMOVAL CO.; AMERICAN SCRAP PROCESSING, INC., 

d/b/a Riverside Iron & Steel; ANNADALE SCRAP 

COMPANY; ANNE PIRCHESKY, former shareholder of 

Eric's Iron & Steel Corp., a dissolved corporation f/d/b/a 

Riverside Iron & Steel Corp.; ARCHBALD WRECKING CO.; 

ATLANTIC BATTERY CORPORATION; B. ZEFF COMPANY, 

INC.; N. BANTIVOLGLIO METALS, INC., renamed as 

Bantivoglio Metal Company a/k/a Bantivolgio Metals and 

f/k/a N. Bantivoglio's Sons, Inc.; BEAVER SMELTING 

AND REFINING CORP.; BLADENSBURG RIVER ROAD 

METALS COMPANY, INC.; CAMBRIDGE IRON AND METAL 

CO., INC.; CAPITOL SCRAPYARD; CASH AUTOMOTIVE 

PARTS; CHAPIN & FAGIN DIVISION OF GCF INC.; 

CHARLES MEYERS & SONS; CHAUNCEY METAL 

PROCESSORS, INC.; CLIMAX MANUFACTURING 

COMPANY, a/k/a Spevak's Waste Material Company; 

COATESVILLE SCRAP IRON & METAL CO., INC.; 

COLONIAL METALS; CONTINENTAL METALS 

CORPORATION; CROPSEY SCRAP IRON AND METAL; 

 3 
D. KATZ & SONS, INC.; DANIELS & MILLER, INC.; 

DECKER BROTHERS, INC.; DENAPLES AUTO PARTS; 

DENVER CONSTRUCTION CORP., f/d/b/a Lukens Metal 

Co.; DOUGLAS BATTERY MFG., INC.; E. EFFRON & SON; 

EISNER BROTHERS; ERIC'S IRON & STEEL 

CORPORATION, f/k/a Riverside Iron & Steel Corp; ERIC 

PIRCHESKY, former shareholder of Eric's Iron & Steel 

Corp., a dissolved corporation f/d/b/a Riverside Ir on & 

Steel Corp.; FRANCIS WHITE SCRAP IRON & METAL; 

GLICK IRON & METAL CO., INC.; G. CARLOMAGNO 

SCRAP; G.M. HONKUS & SONS, INC.; GENERAL 

BATTERY CORP.; GENERAL MET ALS & SMELTING CO.; 

GEORGE MOSS; HARRY KAUFMAN; GORDON STEEL 

CO.; GORDON WASTE CO.; H&B METAL CO., INC.; 

HAROLD STRAUSS, in his own capacity and as 

distributee of the assets of Denver Construction 

Corporation f/d/b/a Lukens Metal Co.; HARRY'S 

SCRAPYARD; HUDSON SCRAP METAL, INC.; I. KRAMER 

AND SONS, INC.; I. RICHMOND & COMPANY, INC.; 

INDUSTRIAL & MILL SUPPLIERS, INC.; IRVING RUBBER 

& METAL COMPANY; J.C. PENNEY COMP ANY, INC.; 

JACOB SHER, f/d/b/a Hudson Scrap; JEM METAL, INC.; 

JULIAN C. COHEN SALVAGE CO.; K MAR T CORP.; 

KASMAR METALS, INC.; KASSAB BROS.; KEARNY SCRAP 

CO.; KREIGER WASTE PAPER CO.; LANCASTER BATTERY 

CO., INC.; LANCASTER IRON & METAL CO., INC., a 

former division of Lancaster Steel Co., Inc.; LEVENE'S 

SON, INC.; LEVINE'S IRON & METAL, INC.; LEWIS 

RAPHAELSON & SON, INC.; LONI-JO METALS, f/t/a 

Attonito Recycling Corporation; LOUIS FIEGLEMAN & 

CO.; LOUIS LEVIN & CO., INC.; LOUIS MACK CO., INC.;

LUKENS METAL CORP., d/b/a Lukens Metal Co.; M&M 

SCRAP CORPORATION; M&P SCRAP IRON & MET AL 

CORP.; M.C. CANFIELD SONS, f/k/a and f/t/a Lukens 

Metal Corp.; M.H. BRENNER'S INC.; M. BURNSTEIN AND 

COMPANY, INC.; M. ROSENBERG & SON, INC.; M. 

WILDER & SON, INCORPORATED; METAL BANK OF 

AMERICA; NOLTS AUTO PARTS, /Nolt's Factory 

Warehouse; NORFOLK RECYCLING CORPORA TION; 

NORTHEAST INDUSTRIAL BATTERIES, INC.; NOTT 

ENTERPRISES, INC., f/k/a Frank H. Nott, Inc.; 

 4 
NOVEY METAL CO.; PAVONIA SCRAP IRON & METAL 

COMPANY, INC.; PEDDLERS JUNK CO.; PERLMAN & 

SONS; PHILIP LEWIS & SONS; RIVER ROAD PRODUCTS, 

INC.; ROSEN BROTHERS; S. KLEIN METALS CO., INC.; 

S. ROME & CO., INC.; S.E.L. METAL CORPORA TION; ST.

MARY'S AUTO WRECKERS; SAMUEL GORDON & SONS, 

INC.; SCHIAVONE & SON, INC.; renamed as Schiavone 

Corp.; SCHILBERG INTERGRATED METALS, INC., 

f/d/b/a Schilberg Iron & Metal Co., Inc.; SEABOARD 

SALVAGE; SITKIN METAL TRADING, INC.; STIKIN 

SMELTING & REFINING, INC.; SMITH IRON & MET AL 

CO.; SOLA METAL; SONE' ALLOYS, INC., d/b/a Enos 

Metals; STAGER WRECKING CO.; STAIMAN INDUSTRIES, 

INC.; SYRACUSE MATERIALS RECOVERY CORP .; TED 

SCHWEEN; TEPLITZ'S MIDDLETOWN SCRAP, f/t/a 

Middletown Scrap Iron, Inc.; THE BEST BA TTERY 

COMPANY, INC.; TOWANDA IRON & METAL, INC.; UNION 

CORPORATION, f/t/a Jacobson Metal Co.; UNITED 

HOLDING CO., INC., a/k/a United Iron & Metal 

Company, Inc.; UNITED SCRAP IRON & METAL CO.; 

USA; UNIVERSAL WASTE, INC.; VINCENT A. P ACE 

SCRAP METALS; VIRGINIA IRON & METAL COMP ANY, 

INC., renamed as Virginia Ir on & Metal Company of 

Portsmouth, Inc.; VIRGINIA SCRAP IRON & METAL CO., 

INC.; WILLIAM R. SULLENBERGER CO.; WILSON 

BATTERY COMPANY, renamed as Wilson Battery & Oil 

Company; WM. PORT'S SONS, INC.; ZUCKERMAN 

COMPANY, INC.; ZUCKERMAN STEEL COMP ANY, INC.; 

MEADVILLE METAL COMPANY; S. KAPLAN & SONS; 

BATAVIA WASTE MATERIAL CO., INC.; BATTERY 

MARKETING CORPORATION (BMC); BRIDGEPORT AUTO 

PARTS, INC. f/d/b/a GREAT LAKES BA TTERY; BUFF & 

BUFF, INC.; CAL'S AUTO SERVICE, INC.; CHEMUNG 

SUPPLY CORP., d/b/a Otsego Iron & Metal; CHEVRON 

CORPORATION, f/t/a Gulf Tire & Supply Co.; CHIDNESE

SCRAP METAL; CORNING MATERIALS, INC.; EXIDE 

CORP., f/t/a Bay State Battery and Mid-Atlantic 

Distributors; THE GOODYEAR TIRE & RUBBER 

 5 
COMPANY, f/t/a Ameron Auto Centers; HODES 

INDUSTRIES, INC.; J. SAX & CO.; JOHN BRUNSES & 

SON; KOVALCHICK SALVAGE CO.; MAX BROCK CO., 

INC.; MICHIGAN LEAD BATTERY CO.; MORRIS J. 

RADOV, f/d/b/a Meadville Waste Company; N. 

BANTIVOLGLIO'S SONS, INC., a/k/a Bantivolglio 

Investment Co.; NEW CASTLE JUNK; PETTINELLI IRON & 

METAL; QUALITY STORES, INC., d/b/a Quality Far m & 

Fleet; SAM KASSAB; SHELL OIL CO., INC.; TEXTRON, 

INC.; UNIVERSAL COOPERATIVES, INC.; WESTERN AUTO 

SUPPLY CO.; WM. KUGLER & BROS., INC., WORCESTER 

METAL & BATTERY; YATES BATTERY CO.; FEDERAL 

GOVERNMENT GROUP; THE FIEGLEMAN GROUP; 

NAPORANO IRON & METAL CO.; PHILIP MAY CO. 

v. 

MODERN JUNK & SALVAGE CO.; ALEXANDRIA SCRAP 

CORPORATION; BRISTOL METAL CO., INC., HUDSON 

SCRAP METAL, INC.; JACOB SHER; BLADENSBURG 

RIVER ROAD METALS COMPANY, INC.; JOINT DEFENSE 

GROUP; WIMCO METALS, INC., 

 Third Party Plaintiffs 

v. 

PHILLIP A. WEINSTEIN; ESTATE OF JOSEPH WEINSTEIN; 

LAWRENCE FIEGLEMAN; UNITED STATES AIR FORCE; 

UNITED STATES DEPARTMENT OF THE NAVY; 

DEPARTMENT OF DEFENSE; UNITED ST ATES 

DEPARTMENT OF THE ARMY; RICHARD B. CHENEY (in 

his capacity as Secretary of Defense); H. LA WRENCE

GARRETT, III (in his capacity as Secr etary of the Navy); 

DONALD B. RICE (in his capacity as Secretary of the Air 

Force); MICHAEL P.W. STONE (in his capacity as 

Secretary of the Army); DEFENSE REUTILIZA TION AND 

MARKETING SERVICE; JOHN STEWART , COLONEL (in 

his capacity as the Director of the Defense Reutilization 

and Marketing Service); UNITED STATES DEFENSE 

LOGISTICS AGENCY; CHARLES MCCLAUSAND, GENERAL 

(in his capacity as head of the Defense Logistics Agency); 

RAY ATKINSON; BUFF & BUFF, INC.; 

 6 
BURLINGTON WASTE & METAL; CAPITOL BAG & WASTE 

CO., INC.; CAPITOL SCRAP METAL CO.; RAY 

CARDAMONE; R. COHEN & SON OF GLENS FALLS, INC.; 

ROBERT DAVIS; EASCO WAREHOUSE; FERRO SCRAP 

IRON & METAL, INC.; I. FIGELMAN & SON; S. 

GARBOWITZ & SON, INC.; ARNOLD GROWICK; NATHAN 

H. KELMAN, INC.; NATHAN'S WASTE & P APER STOCK 

CO., INC.; NEW YORK TELEPHONE COMPANY; ONT ARIO 

SCRAP METAL INC.; LOUIS PERLMAN & SONS, INC.; T .A.

PREDEL & CO., INC.; SAM T. ROSEN, INC., for merly 

known as Otsego Iron & Metal Corporation; V ALLEY 

STEEL, INC.; WILLIAM ANSETT WASTE CO., INC.; ZEKE'S

ENTERPRISES; LARRY TEITEL; TFCFINANCIAL 

CORPORATION; JOHN DOE; JANE DOE; LAWRENCE 

FIEGLEMAN; JOSEPH FIEGLEMAN; MARC A. ROBIN; 

ANTHONY BONADIO; JOHN DELEO; JOSEPH STRAUB; 

ROBERT MCANDREW; WILLIAM SULLENBERGER; M.N. 

ADELSON & SONS, INC.; M. BERKOWITZ & COMPANY , 

INC.; GEORGE BERMAN & SON, INC.; JAMES BURROWS 

COMPANY; PETER CLAIM; P.J. GRECO & SON, INC.; 

JOE'S JUNK COMPANY; MEADVILLE METAL COMP ANY; 

MENZOCK SCRAP COMPANY; MILLER ROOT & FUR 

COMPANY; BERNARD PIRCHESKY; OSCAR PLATT; MAX 

SILVER & SONS; BARNEY SNYDER OF OHIO, INC., 

 Third Party Defendants 

American Scrap Company; Lake Erie Recycling; 

Alexandria Scrap Corporation; R&R Salvage, Inc., 

 Appellants 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

(D.C. No. 91-cv-01714) 

District Judge: The Honorable Richard P . Conaboy 

ARGUED July 19, 2000 

BEFORE: SLOVITER, NYGAARD, and FUENTES, 

Circuit Judges. 

(Filed October 31, 2000) 

 7 
 Donald B. Mitchell, Jr., Esq. 

 (Argued) 

 Rachel G. Lattimore, Esq. 

 Arent, Fox, Kintner, Plotkin & Kahn 

 1050 Connecticut Avenue, N.W. 

 Washington, DC 20036-5339 

 Attorneys for Appellants 

 Dennis R. Suplee, Esq. (Argued) 

 Schnader, Harrison, Segal & Lewis 

 1600 Market Street, Suite 3600 

 Philadelphia, PA 19103 

 John M. Armstrong, Esq. 

 Schnader, Harrison, Segal & Lewis 

 220 Lake Drive East, Suite 200 

 Cherry Hill, NJ 08002-1165 

 Attorneys for Appellee 

OPINION OF THE COURT 

NYGAARD, Circuit Judge. 

This case arises from a contribution action initiated by 

appellee, Gould, Inc., under S 113 of the Comprehensive 

Environmental Response, Compensation and Liability 

Act, 42 U.S.C. S 9613. Appellants, Alexandria Scrap

Corporation, R&R Salvage Company, Lake Erie Recycling, 

and American Scrap Company, appeal from several District 

Court orders in favor of Gould. Although appellants denied 

liability on several bases below, the sole issue they raise on 

appeal is whether the post-judgment enactment of the 

Superfund Recycling Equity Act, Pub. L. No. 106-113, 113 

Stat. 1536 (November 29, 1999), requires r eversal of the 

judgments entered against them. We conclude that it does, 

and will, therefore, vacate the judgment of the District 

Court, and remand the cause for further pr oceedings. 

I. Background Facts 

From 1961 to 1980, the Marjol Battery and Equipment

Company operated a battery breaking (i.e., r ecycling) facility 

 8 
in the Borough of Throop, Lackawana County, 

Pennsylvania. Appellants, all scrap metal dealers, each sold 

spent lead-acid batteries to Marjol during the 1960s and 

1970s for recycling. One appellant, Alexandria Scrap 

Corporation, also sold non-battery, or "soft" lead to Marjol. 

The lead-acid battery recycling process is referred to as 

"breaking" because it literally r equires the recycler to break 

open the battery's outer casing and remove its lead and 

other recyclable components. Until the 1970s, the battery 

casings themselves, which were then made of har d rubber, 

were not recyclable. As a consequence, the casings were 

simply discarded, often contaminated with various amounts 

of residual lead and other toxic substances. Each of the 

appellants, like all of Marjol's suppliers at the time, sold 

spent lead-acid batteries to Marjol manufactur ed with hard 

rubber casings. The vast majority, if not all, of such casings 

were eventually dumped into old mine shafts located on 

Marjol's property, or otherwise buried on site. 

Beginning in the late 1970s, battery manufactur ers

began producing lead-acid batteries with casings made of 

polypropylene plastic rather than rubber . Eventually, 

battery recyclers such as Marjol found ways to recycle the 

plastic casings as well as other components fr om spent 

batteries. While trying to develop processes for recycling the 

plastic casings, however, Marjol simply stockpiled 

innumerable, broken, plastic casings on its pr operty. Like 

their hard rubber predecessors, these plastic casings were 

contaminated with lead and other toxic substances, and 

Marjol made virtually no effort to keep those substances 

from migrating through the environment. 

As early as the 1960s, the Pennsylvania Department of 

Environmental Resources ("DER") began receiving 

complaints about emissions from the Marjol site. There is 

no question that Marjol's operations contaminated both its 

own property and its neighbors'. At the time, however, 

environmental law was largely undeveloped, and 

enforcement was generally lax. 

On March 7, 1967, the DER's Bureau of Air Pollution

Control entered an order requiring Marjol to reduce

emissions from its site to the point that no emissions would 

 9 
be detectable beyond its property line. Marjol repeatedly 

violated that order, first by failing to install the necessary 

equipment, and then by rendering it inef fective because it 

had slowed the speed of battery processing. Between 1975 

and 1977, the DER issued a cease operations r equest that 

Marjol refused, and several remedial or ders that it generally 

ignored. 

In early 1980, Gould, Inc., of Ohio, agreed to acquire 

Marjol. When the DER learned of the planned acquisition, 

it conducted further investigations at the Marjol site and 

ultimately issued an "end of the line" or der. That order 

essentially required Marjol to comply with the DER's 

remedial demands or cease operations. Gould, which was 

generally aware of Marjol's history with the DER, went 

ahead with the acquisition, and initiated measur es to 

comply with the DER's remedial demands. Ultimately,

however, Gould agreed to shut down the Marjol site.

Thereafter, the DER advised Gould that no further 

remediation of the Marjol site would be r equired, and no 

further enforcement actions taken, unless battery-breaking 

operations resumed. Gould performed various forms of 

maintenance and "housekeeping" at the Marjol site, but 

otherwise generally conducted no activities ther e. Later, the 

federal Environmental Protection Agency ("EPA") initiated 

investigations of the Marjol site, ultimately deter mining 

"that hazardous substances had been r eleased, and that 

there was an `imminent and substantial endangerment' to 

the public health, welfare, or the envir onment." Appellee's 

Br. at 5-6. 

II. Procedural History 

In April 1988, Gould entered into a Consent Agr eement 

and Order with the EPA under S 106(a) of CERCLA, 42

U.S.C. S 9606. That agreement requir ed Gould to conduct 

site stabilization activities relating to lead and other 

hazardous substances at and around the Marjol site. In 

May 1990, Gould entered into a second consent order, this 

time with both the EPA and the Pennsylvania DER. This 

second order under the Resource Conservation and 

Recovery Act, 42 U.S.C. S 6928(h), requir ed Gould to 

 10 
perform a Facility Investigation and Corrective Measure 

Study at the Marjol site. 

In December 1991, Gould initiated a civil action seeking 

cost recovery from approximately 240 Potentially 

Responsible Parties ("PRP's") pursuant toS 107(a)(4)(B) of 

CERCLA, or, alternatively, contribution pursuant to S 113. 

The defendants moved for partial summary judgment, 

arguing that because Gould was a responsible party who 

had entered into a consent agreement r esolving its liability 

to the government, it was limited to asserting a 

contribution claim only. The District Court agr eed, and 

granted partial summary judgment in favor of the 

defendants. See Gould, Inc. v. A&M Battery & T ire Serv., 

901 F. Supp. 906, 910 (M.D. Pa. 1995). 

The District Court held a bench trial on the issue of 

allocating response costs among those defendants held 

liable to Gould for contribution and held "that Gould 

should bear 75% of the clean-up costs and that the 

Defendants should bear the remaining 25% . . . ." Gould, 

Inc. v. A&M Battery & Tire Serv., 987 F. Supp. 353, 372 

(M.D. Pa. 1997). The court then apportioned the 

defendants' 25% share according to the amount of waste 

each contributed to the Marjol site. See id. 

With the exception of the four appellants, Gould 

eventually settled with all defendants. After appellants filed 

their notice of appeal, Congress passed, and the President 

signed, the Superfund Recycling Equity Act . Appellants are 

pursuing only their claim that this Act shields them from 

contribution liability to Gould. Gould counters that the Act 

does not apply to materials that contain non-r ecyclable 

components, that it does not apply retr oactively to this 

case, and that if it does apply retroactively, it violates the 

Fifth Amendment's due process guarantee. 

III. Background Law 

Under CERCLA: 

 Notwithstanding any other provision or rule of law, and 

 subject only to the defenses set forth in subsection (b) 

 of [42 U.S.C. S 9607] -- 

 11 
 (3) any person who by contract, agreement, or 

 otherwise arranged for disposal or treatment . . . of 

 hazardous substances owned or possessed by such 

 person, [shall be liable for] 

 (A) all costs of removal or remedial act ion incurred by 

 the United States Government or a State or an Indian 

 tribe not inconsistent with the national contingency 

 plan; 

 (B) any other necessary costs of response inc urred by 

 any other person consistent with the national 

 contingency plan; 

 (C) damages for injury to, destruction of, or loss of 

 natural resources, including the r easonable costs of 

 assessing such injury, destruction, or loss r esulting 

 from such a release; and 

 (D) the costs of any health assessment or health e ffects 

 study carried out under [42 U.S.C. S 9604(i)]. 

42 U.S.C. S 9607(a). 

After failing to pass several earlier versions, Congress 

passed, and on November 29, 1999, the President signed 

into law, the Superfund Recycling Equity Act, Pub. L. No. 

106-113, Div. B, S 1000(a)(9) [S. 1948, T itle VII, 6001(b)(1)], 

113 Stat. 1536 (November 29, 1999). The Act, intended to 

clarify liability under CERCLA, provides that a person who 

meets certain specified criteria, and "who arranged for 

recycling of a recyclable material shall not be liable under 

sections 9607(a)(3) and 9607(a)(4) of [42 U.S.C.] with 

respect to such material." 42 U.S.C. S 9627(a)(1). The Act 

defines a "recyclable material" to include, inter alia, "spent 

lead-acid, spent nickel-cadmium, and other spent batteries 

. . . ." Id. S 9627(b). 

In transactions involving spent lead-acid batteries, the 

transaction: 

 shall be deemed to be arranging for recycling if the 

 person who arranged for the transaction (by selling 

 recyclable material or otherwise arranging for the 

 recycling of recyclable material) can demonstrate by a 

 preponderance of the evidence that at the time of the 

 transaction-- 

 12 
 (1) the person met the criteria set forth in[S 9627(c)] 

 with respect to the spent lead-acid batteries; and 

 (2)(A) [t]he person was in compliance with a pplicable 

 Federal environmental regulations or standards, and 

 any amendments thereto, regarding the storage, 

 transport, management, or other activities associated 

 with the recycling of spent lead-acid batteries[.]" 

Id. S 9627(e)(1) & (2)(A). 

Although the Act does contain several exclusions, see id. 

S 9627(f), only one is at issue here. Mor e a limitation than 

an exclusion, S 9627(i) provides that the recycling

exemptions established by the Act "shall not af fect any 

concluded judicial or administrative action or any pending 

judicial action initiated by the United States prior to 

[November 29, 1999]." (emphasis added). 

IV. Discussion 

A. Retroactivity 

By its express language, the Act has no ef fect on "any 

concluded judicial or administrative action or any pending 

judicial action initiated by the United States prior" to its 

enactment. 42 U.S.C. S 9627(i). This section exempts two 

categories of action from retroactive application of the Act. 

One category exempts all actions concluded as of November 

29, 1999, whether administrative or judicial in nature. The 

second category exempts pending actions initiated by the 

United States prior to November 29, 1999, but only if they 

are judicial in nature. By implication or negative inference, 

then, Congress intended the Act to apply r etroactively to all 

other types of actions. One District Court case, Morton Int'l 

Inc. v. A.E. Staley Mfg. Co., 2000 WL 1038176, at *9 (D. 

N.J. July 19, 2000) has held that the language of the Act 

reflects Congress' intent that the r ecycling exemption apply 

to pending private party actions, thus applying retroactively 

to, inter alia, judicial and administrative actions that were: 

(1) initiated prior to November 29, 1999; (2) initiated by a 

party other than the United States; and (3) still pending as 

of November 29, 1999. We agree. This case is a judicial 

 13 
action, initiated by a private party, and was pending on 

appeal as of November 29, 1999. 

Gould argues that whenever a private party initiates a 

judicial action following a related federal administrative 

action, the causal link between the two requir es the court 

to deem the judicial action to have been initiated by the 

United States. Gould's proffered construction of S 9627(i) is 

belied not only by the Act's plain language, but also by its 

legislative history. Beginning in 1994, legislators

introduced, and the two houses of Congr ess considered, 

various versions of the Act before finally succeeding in 

passing it in November 1999. See, e.g. , 145 Cong. Rec. 

S10391-01, S10433 (August 5, 1999) ("The language of this 

bill is the culmination of a process that we have been 

working on since the 103rd Congress."). Though broadly 

supported, congressional approval eluded the Act for 

several years because it was attached to lar ger, and far 

more controversial, attempts to refor m CERCLA as a whole. 

As a consequence of its protracted gestation, much of the 

Act's relevant legislative history was cr eated in connection 

with its failed predecessors. Nevertheless, the history of 

prior bills is not entirely irrelevant to our interpretation of 

their enacted successors. In the case of the Super fund 

Recycling Equity Act, the history associated with prior 

versions is all the more relevant because the proposed 

statutory language, as well as the intent of its drafters, 

remained consistent throughout the pr otracted effort to 

pass it. 

The 106th Congress passed the Act as part of an 

omnibus legislation package approved near the end of its 

1999 Session. See Consolidated Appropriations Act, 2000, 

106-113, 113 Stat. 1501, 1501A-598 (November 29, 1999). 

The version of the Act ultimately enacted was first

introduced as a stand-alone bill in the Senate, see S. 1528, 

reprinted in 145 Cong. Rec. S10391-01, S10432 (August 5, 

1999), which ultimately attached it to a lar ger bill pending 

before that legislative chamber. See S. 1948, as enacted at 

113 Stat. 1501A-521. During discussions of that lar ger bill, 

Senator Lott obtained unanimous consent to insert the 

 14 
Act's legislative history into the recor d. See 145 Cong. Rec. 

S14986-03, S15048 (November 19, 1999).1 

According to that history, the Act "pr ovides for relief from 

liability for both retroactive and pr ospective transactions," 

id. at S15049, and "[a]ny pending judicial action, whether 

it was brought in a trial or appellate court, by a private 

party shall be subject to the grant of relief from liability." 

Id. at S15050. The same history further explains that 

"Congress intends that any third party action or joinder of 

defendants brought by a private party shall be considered 

a private party action, regardless of whether or not the 

original lawsuit was brought by the United States." Id. 

(emphasis added). 

If the Act applies retroactively even to private-party 

actions prompted by exempted federal judicial actions, it 

makes no sense to conclude that it does not apply 

retroactively to private actions pr ompted by non-exempt 

administrative actions. Thus, these expressions of 

congressional intent and others found thr oughout the Act's 

legislative history, even if not controlling, clearly support a 

common-sense construction of the Act that applies it 

retroactively to private judicial actions such as this. 

B. Due Process 

Gould argues that if the Act applies r etroactively, then it 

violates the Fifth Amendment's due process guarantee 

because it lacks a rational basis. More specifically, Gould 

argues, the Act: 

 creates an arbitrary classification which r ewards a 

 recalcitrant PRP who forced the United States to 

 expend effort and its resources tofile suit, but 

 penalizes a responsible PRP, like Gould, which agreed 

 to clean up a battery-breaking site. 

_________________________________________________________________ 

1. Although there might be some question about reliance on a History 

prepared by one senator and thereafter inserted with unanimous consent 

because it does not appear to have been appr oved in substance by either 

a Committee or a majority of the Senate, in this case we rely on Senator 

Lott's History because Gould has not objected. 

 15 
Appellee's Br. at 33. 

To pass rational-basis review, however , the Act need only 

be justifiable on some rational basis. Mor eover, it is not 

necessary that Congress have actually articulated a

particular rational basis. Instead, " `the burden is on the 

one attacking the legislative arrangement to negative every 

conceivable basis which might support it, whether or not 

the basis has a foundation in the recor d.' " Contractors 

Ass'n v. City of Philadelphia, 6 F.3d 990, 1011 (3d Cir. 

1993) (quoting Heller v. Doe, 509 U.S. 312 (1993)). Here, 

the distinction between privately and federally initiated 

judicial actions is rationally related to pr eserving the public 

fisc. For instance, the distinction ensures that once the 

United States has expended public funds to initiate a 

judicial action, the Act does not render that expenditure 

wasted by exempting an otherwise covered person from 

liability. In affording such fiscal pr otection, the Act 

rationally distinguishes between the United States, a nonculpable party, and a party such as Gould who actually 

contributed to the contamination underlying its claim for 

contribution. That rationale is enough to pass 

constitutional muster. Thus, the Act can and does apply 

retroactively without violating due pr ocess. 

C. The Act's Effect on The Summary Judgment 

Having concluded that the Superfund Recycling Equity 

Act applies retroactively, the next issue is whether the Act 

exempts appellants from liability. Under the Act, a person 

who arranged for recycling of a recycling material is exempt 

from CERCLA liability with respect to that material. See 42 

U.S.C. S 9627(a)(1). The Act defines a "r ecyclable material" 

to include, inter alia, spent lead-acid batteries. See id. 

S 9627(b). That definition is not limited to the lead 

contained in spent lead-acid batteries, nor to its casing, nor 

to any other individual or combination of individual 

components. The Act plainly and unambiguously defines 

the entire spent lead-acid battery as a "r ecyclable material." 

See id. 

 [A] transaction involving spent lead-acid batteries . . . 

 shall be deemed to be arranging for recycling if the 

 16 
 person who arranged for the transaction (by selling[the 

 lead-acid batteries] or otherwise arranging the r ecycling 

 of [the lead-acid batteries]) can demonstrate by a 

 preponderance of the evidence that at the time of the 

 transaction: 

 (1) The [spent lead-acid battery] met a comm ercial 

 specification grade. 

 (2) A market existed for the [spent lead-acid b attery]. 

 (3) A substantial portion of the [spent lead-ac id 

 battery] was made available for use as feedstock for 

 the manufacture of a new saleable product. 

 (4) The [spent lead-acid battery] could have been a 

 replacement or substitute for a virgin raw material, 

 or the product to be made from the [spent lead-acid 

 battery] could have been a replacement or substitute 

 for a product made, in whole or in part, fr om a virgin 

 raw material. 

Id. S 9627(c), incorporated by reference into S 9627(e)(1).2 

The parties' primary disagreement on this issue concerns 

whether the spent lead-acid batteries in question could 

have been a replacement or substitute for a vir gin raw 

material as the fourth element requires. Appellants argue 

that the requirement applies only to those portions of a 

spent lead-acid battery that are recyclable. Gould, on the 

other hand, argues that the "replacement or substitute 

provision" applies to the whole battery and that the Act 

does not apply unless every component of the spent leadacid battery at issue is recyclable, and each component can 

be "a replacement or substitute for a vir gin material." 

Appellee's Br. at 38-54. 

Stated differently, Gould concedes the third element 

requires only that "a `substantial portion' of the recyclable 

material was in fact made available for use as a feedstock 

in a manufacturing process." Appellee's Br . at 38 (emphasis 

added). But Gould argues that the fourth "element requires 

_________________________________________________________________ 

2. The Act's additional requirements for exemption from liability are not 

at issue in this case. See 42 U.S.C. S 9627(c), incorporated by reference 

in S 9627(e)(1); id. S 9627(i)(e)(2)(A). 

 17 
a purported recycler seeking the protection of the statute to 

show that all, not just a `substantial portion' as in element 

3, of the recyclable material `could have been' either a 

direct or indirect replacement for a raw material." Id. 

(emphasis added). Thus, Gould concludes, appellants are 

not covered by the Act because they sold Marjol spent leadacid batteries made with non-recyclable rubber casings. 

Gould's argument, and therefore its conclusion, fail for 

several reasons. First, the language of the Act itself belies 

Gould's argument. As previously noted, the Act defines a 

recyclable material to include the entir e "spent lead-acid 

battery." It makes no distinction between spent lead-acid 

batteries that are wholly recyclable, and those that contain 

non-recyclable components. This lack of distinction is all 

the more significant when considered in light of the Act's 

purposes, and the context in which it was passed. For 

instance, one of the Act's purposes is "to r emove the 

disincentives and impediments to recycling cr eated as an 

unintended consequence of the 1980 Superfund liability 

provisions." S. 1948 S 6001(a)(3), as enacted at 113 Stat. 

1501A-598-99. In other words, Congress intended the Act 

to overrule court decisions holding bona fide sellers of 

recyclable materials liable under CERCLA. See, e.g., 145 

Cong. Rec. S10391-01, S10431 (August 5, 1999) (Statement 

of Senator Lott) (noting that the Act was intended to 

"remove[ ] an unintended consequence of the Superfund 

statute" including court decisions holding "that recyclables 

are materials that have been disposed of and ar e therefore 

subject to Superfund liability"). 

Second, it is clear from the Act's legislative history that 

Congress realized not all components of"recyclable 

materials," including spent lead-acid batteries, are 

recyclable. For instance, the legislative history placed on 

the record for S. 1528 explains that: 

 for a transaction to be deemed arranging for r ecycling, 

 a substantial portion, but not all, of the r ecyclable 

 material [e.g., a spent lead-acid battery] must have 

 been sold with the intention that the material would be 

 used as a raw material, in place of a virgin material, in 

 the manufacture of a new product. 

 18 
145 Cong. Rec. S14986-03, S15049 (November 19, 1999) 

(emphasis added). 

Other unequivocal evidence that Congress did not intend 

to require that a "recyclable material" be 100% recyclable 

can be found throughout the Act's six-year legislative 

history. According to that history: 

 The first part of [the fourth element] acknowledges 

 the fact that modern technology has developed to the 

 point where some consuming facilities exclusively 

 utilize recyclable materials as their raw material 

 feedstock and manufacture a product that, had it been 

 made at another facility, may have been manufactur ed 

 using virgin materials. Thus, the fact that the 

 recyclable material did not directly displace a virgin 

 material as the raw material feedstock should not be 

 evidence that the requirements of [S 9627(c)] were not 

 met. 

 Secondary feedstocks may compete both dir ectly and 

 indirectly with virgin or primary feedstocks. In some 

 cases a secondary feedstock can directly substitute for 

 a virgin material in the same manufacturing pr ocess. 

 In other cases, however, a secondary feedstock used at 

 a particular manufacturing plant may not be a dir ect 

 substitute for a virgin feedstock, but the pr oduct of 

 that plant competes with a product made elsewhere 

 from virgin material. For example aluminum may be 

 utilized at a given facility using either vir gin or 

 secondary feedstocks meeting certain specifications. In 

 this case, the virgin and secondary feedstock materials 

 compete directly. A particular steel mill, however, may 

 only utilize scrap iron and steel as a feedstock because 

 of the design restrictions of the facility. If that mill 

 makes a steel product that competes with the steel 

 product of another mill, which utilizes a vir gin 

 feedstock, the conditions of this paragraph have been 

 met. In this example, the two streams of feedstock 

 materials do not directly compete, but the pr oduct 

 made from them do. It is the intent of this paragraph 

 that the person be able to demonstrate the general use 

 for which the feedstock material was utilized. It is not 

 19 
 the intent that the person show that a specific unit was 

 incorporated into a new product 

Id. Thus, the language of the fourth element is intended to 

explain when a recycling transaction is deemed to displace 

the use of virgin raw materials, not to r estrict the Act's 

coverage to materials that are 100% recyclable. 

V. Conclusions 

In summary, we hold that Congress intended the 

Superfund Recycling Equity Act to apply r etroactively to 

judicial actions initiated by private parties prior to 

November 29, 1999, if still pending on that date. Gould's 

contribution claims against Appellants meet those criteria. 

Thus, the Act applies to Gould's claims, and the District 

Court's order granting summary judgment to Gould on the 

issue of contribution liability, as well as its judgment 

allocating liability, will be vacated. We will remand the 

cause to the District Court for it to determine whether 

Appellants satisfy the Act's requirements for exemption 

from liability. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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