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. e du/thir dc ir c uit_2000/229Filed 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;

2FRANK 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;

3D. 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; ERI C PIRCHESKY, former shareholder of Eric's Iron & Stee l 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.; LEVEN E'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.;

4NOVEY 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

5COMPANY, 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 Reutili zation and Marketing Service); UNITED STATES DEFENSE LOGISTICS AGENCY; CHARLES MCCLAUSAND, GENERAL (in his capacity as head of the Defense Logistics A gency); RAY ATKINSON; BUFF & BUFF, INC.;

6BURLINGTON 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)

7Donald 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 initiat ed by appellee, Gould, Inc., under S 113 of the Comprehen sive Environmental Response, Compensation and Liability Act, 42 U.S.C. S 9613. Appellants, Alexandria Scrap Corporation, R&R Salvage Company, Lake Erie Recycli ng, and American Scrap Company, appeal from several Dis trict Court orders in favor of Gould. Although appellants denied liability on several bases below, the sole issue th ey raise on appeal is whether the post-judgment enactment of th e 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 Dis trict Court, and remand the cause for further pr oceeding s.

I. Background Facts

From 1961 to 1980, the Marjol Battery and Equipment Company operated a battery breaking (i.e., r ecycli ng) facility

8in the Borough of Throop, Lackawana County,

Pennsylvania. Appellants, all scrap metal dealers, each sold spent lead-acid batteries to Marjol during the 1960 s and 1970s for recycling. One appellant, Alexandria Scra p 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 recyc ler to break open the battery's outer casing and remove its lead and other recyclable components. Until the 1970s, the b attery casings themselves, which were then made of har d r ubber, were not recyclable. As a consequence, the casings were simply discarded, often contaminated with various a mounts of residual lead and other toxic substances. Each o f the appellants, like all of Marjol's suppliers at the t ime, sold spent lead-acid batteries to Marjol manufactur ed w ith hard rubber casings. The vast majority, if not all, of s uch 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 ma de of polypropylene plastic rather than rubber . Eventual ly, battery recyclers such as Marjol found ways to recy cle the plastic casings as well as other components fr om s pent batteries. While trying to develop processes for re cycling the plastic casings, however, Marjol simply stockpiled innumerable, broken, plastic casings on its pr oper ty. Like their hard rubber predecessors, these plastic casin gs were contaminated with lead and other toxic substances, and Marjol made virtually no effort to keep those subst ances 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. Th ere is no question that Marjol's operations contaminated b oth its own property and its neighbors'. At the time, howev er, 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 emissi ons would

9be detectable beyond its property line. Marjol repe atedly

violated that order, first by failing to install th e necessary equipment, and then by rendering it inef fective be cause it had slowed the speed of battery processing. Between 1975 and 1977, the DER issued a cease operations r eques t that Marjol refused, and several remedial or ders that i t generally ignored.

In early 1980, Gould, Inc., of Ohio, agreed to acqu ire Marjol. When the DER learned of the planned acquisi tion, it conducted further investigations at the Marjol s ite 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, w ent 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-b reaking operations resumed. Gould performed various forms o f maintenance and "housekeeping" at the Marjol site, but otherwise generally conducted no activities ther e. Later, the federal Environmental Protection Agency ("EPA") ini tiated 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." A ppellee's

Br. at 5-6.

II. Procedural History

In April 1988, Gould entered into a Consent Agr eem ent and Order with the EPA under S 106(a) of CERCLA, 42 U.S.C. S 9606. That agreement requir ed Gould to co nduct 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. Th is

second order under the Resource Conservation and Recovery Act, 42 U.S.C. S 6928(h), requir ed Gould to

10perform a Facility Investigation and Corrective Mea sure

Study at the Marjol site.

In December 1991, Gould initiated a civil action se eking 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 he ld liable to Gould for contribution and held "that Gou ld should bear 75% of the clean-up costs and that the Defendants should bear the remaining 25% . . . ." G ould, 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 wa ste each contributed to the Marjol site. See id.

With the exception of the four appellants, Gould eventually settled with all defendants. After appel lants filed their notice of appeal, Congress passed, and the Pr esident signed, the Superfund Recycling Equity Act . Appell ants are pursuing only their claim that this Act shields the m from contribution liability to Gould. Gould counters tha t the Act does not apply to materials that contain non-r ecyc lable components, that it does not apply retr oactively t o this case, and that if it does apply retroactively, it v iolates 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 su bsection (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 s uch person, [shall be liable for]

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

the United States Government or a State or a n Indian

tribe not inconsistent with the national con tingency plan;

(B) any other necessary costs of response in c urred by any other person consistent with the nationa l contingency plan;

(C) damages for injury to, destruction of, o r 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 he alth 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, Con gress passed, and on November 29, 1999, the President sig ned 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, intend ed to clarify liability under CERCLA, provides that a per son who meets certain specified criteria, and "who arranged for recycling of a recyclable material shall not be lia ble under sections 9607(a)(3) and 9607(a)(4) of [42 U.S.C.] w ith respect to such material." 42 U.S.C. S 9627(a)(1). The Act defines a "recyclable material" to include, inter a lia, "spent lead-acid, spent nickel-cadmium, and other spent ba tteries . . . ." Id. S 9627(b).

In transactions involving spent lead-acid batteries , the transaction:

shall be deemed to be arranging for recyclin g if the person who arranged for the transaction (by selling recyclable material or otherwise arranging f or the recycling of recyclable material) can demons trate by a preponderance of the evidence that at the ti me of the transaction--

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

with respect to the spent lead-acid batterie s; and

(2)(A) [t]he person was in compliance with a pplicable Federal environmental regulations or standar ds, and any amendments thereto, regarding the storag e, transport, management, or other activities a ssociated with the recycling of spent lead-acid batter ies[.]"

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

Although the Act does contain several exclusions, s ee id. S 9627(f), only one is at issue here. Mor e a limit ation than an exclusion, S 9627(i) provides that the recycling exemptions established by the Act "shall not af fec t any concluded judicial or administrative action or any pending judicial action initiated by the United States pri or 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 prio r" to its enactment. 42 U.S.C. S 9627(i). This section exempt s two categories of action from retroactive application o f the Act. One category exempts all actions concluded as of No vember 29, 1999, whether administrative or judicial in nat ure. The second category exempts pending actions initiated b y 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 etroacti vely to all other types of actions. One District Court case, Mo rton 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 t he Act reflects Congress' intent that the r ecycling exemp tion apply to pending private party actions, thus applying ret roactively to, inter alia, judicial and administrative actions that were: (1) initiated prior to November 29, 1999; (2) initi ated by a party other than the United States; and (3) still p ending as of November 29, 1999. We agree. This case is a judi cial

13action, initiated by a private party, and was pendi ng on

appeal as of November 29, 1999.

Gould argues that whenever a private party initiate s a judicial action following a related federal adminis trative action, the causal link between the two requir es t he 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 al so by its legislative history. Beginning in 1994, legislators introduced, and the two houses of Congr ess conside red, various versions of the Act before finally succeedi ng in passing it in November 1999. See, e.g. , 145 Cong. Rec. S10391-01, S10433 (August 5, 1999) ("The language o f this bill is the culmination of a process that we have b een working on since the 103rd Congress."). Though broa dly supported, congressional approval eluded the Act fo r several years because it was attached to lar ger, a nd 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 his tory of prior bills is not entirely irrelevant to our inter pretation of their enacted successors. In the case of the Super fund Recycling Equity Act, the history associated with p rior versions is all the more relevant because the propo sed statutory language, as well as the intent of its dr afters, remained consistent throughout the pr otracted effo rt to pass it.

The 106th Congress passed the Act as part of an omnibus legislation package approved near the end o f its 1999 Session. See Consolidated Appropriations Act, 2000, 106-113, 113 Stat. 1501, 1501A-598 (November 29, 19 99). 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 (Augu st 5, 1999), which ultimately attached it to a lar ger bi ll pending before that legislative chamber. See S. 1948, as e nacted at 113 Stat. 1501A-521. During discussions of that lar ger bill,

Senator Lott obtained unanimous consent to insert t he

14Act'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 r elief from liability for both retroactive and pr ospective tra nsactions," 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 th at "Congress intends that any third party action or jo inder of defendants brought by a private party shall be cons idered a private party action, regardless of whether or no t the original lawsuit was brought by the United States." Id. (emphasis added).

If the Act applies retroactively even to private-pa rty actions prompted by exempted federal judicial actio ns, it makes no sense to conclude that it does not apply retroactively to private actions pr ompted by non-e xempt administrative actions. Thus, these expressions of congressional intent and others found thr oughout t he Act's legislative history, even if not controlling, clear ly support a common-sense construction of the Act that applies i t retroactively to private judicial actions such as t his.

B. Due Process

Gould argues that if the Act applies r etroactively , then it violates the Fifth Amendment's due process guarante e because it lacks a rational basis. More specificall y, Gould argues, the Act:

creates an arbitrary classification which r ewards a recalcitrant PRP who forced the United State s to expend effort and its resources tofile suit, but penalizes a responsible PRP, like Gould, whi ch agreed to clean up a battery-breaking site.

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1. Although there might be some question about reli ance on a History prepared by one senator and thereafter inserted wit h unanimous consent because it does not appear to have been appr oved i n substance by either a Committee or a majority of the Senate, in this ca se we rely on Senator Lott's History because Gould has not objected.

15Appellee's Br. at 33.

To pass rational-basis review, however , the Act ne ed only be justifiable on some rational basis. Mor eover, i t is not necessary that Congress have actually articulated a particular rational basis. Instead, " `the burden i s on the one attacking the legislative arrangement to negati ve every conceivable basis which might support it, whether o r not the basis has a foundation in the recor d.' " Contr actors 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 ini tiated judicial actions is rationally related to pr eservi ng the public fisc. For instance, the distinction ensures that on ce the United States has expended public funds to initiate a judicial action, the Act does not render that expen diture wasted by exempting an otherwise covered person fro m liability. In affording such fiscal pr otection, th e Act rationally distinguishes between the United States, a nonculpable party, and a party such as Gould who actua lly contributed to the contamination underlying its cla im for contribution. That rationale is enough to pass constitutional muster. Thus, the Act can and does a pply retroactively without violating due pr ocess.

C. The Act's Effect on The Summary Judgment

Having concluded that the Superfund Recycling Equit y Act applies retroactively, the next issue is whethe r 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 le ad contained in spent lead-acid batteries, nor to its casing, nor to any other individual or combination of individua l components. The Act plainly and unambiguously defin es the entire spent lead-acid battery as a "r ecyclabl e material."

See id.

[A] transaction involving spent lead-acid ba tteries . . . shall be deemed to be arranging for recyclin g if the

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

lead-acid batteries] or otherwise arranging the r ecycling of [the lead-acid batteries]) can demonstrat e by a preponderance of the evidence that at the ti me of the transaction:

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

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

(3) A substantial portion of the [spent lead -ac id battery] was made available for use as feeds tock 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 m aterial, or the product to be made from the [spent le ad-acid battery] could have been a replacement or su bstitute for a product made, in whole or in part, fr om a virgin

raw material.

Id. S 9627(c), incorporated by reference into S 962 7(e)(1).2

The parties' primary disagreement on this issue con cerns whether the spent lead-acid batteries in question c ould 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 substit ute provision" applies to the whole battery and that th e Act does not apply unless every component of the spent leadacid battery at issue is recyclable, and each compo nent can be "a replacement or substitute for a vir gin mater ial." Appellee's Br. at 38-54.

Stated differently, Gould concedes the third elemen t requires only that "a `substantial portion' of the recyclable material was in fact made available for use as a fe edstock in a manufacturing process." Appellee's Br . at 38 (emphasis added). But Gould argues that the fourth "element r equires

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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), inc orporated by reference in S 9627(e)(1); id. S 9627(i)(e)(2)(A).

17a 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' eit her 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 spe nt leadacid batteries made with non-recyclable rubber casi ngs.

Gould's argument, and therefore its conclusion, fai l for several reasons. First, the language of the Act its elf belies Gould's argument. As previously noted, the Act defi nes a recyclable material to include the entir e "spent l ead-acid battery." It makes no distinction between spent lea d-acid batteries that are wholly recyclable, and those tha t contain non-recyclable components. This lack of distinction is all the more significant when considered in light of th e Act's purposes, and the context in which it was passed. F or 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 liabil ity provisions." S. 1948 S 6001(a)(3), as enacted at 11 3 Stat. 1501A-598-99. In other words, Congress intended the Act to overrule court decisions holding bona fide selle rs of recyclable materials liable under CERCLA. See, e.g. , 145 Cong. Rec. S10391-01, S10431 (August 5, 1999) (Stat ement of Senator Lott) (noting that the Act was intended to "remove[ ] an unintended consequence of the Superfu nd statute" including court decisions holding "that re cyclables are materials that have been disposed of and ar e t herefore subject to Superfund liability").

Second, it is clear from the Act's legislative hist ory that Congress realized not all components of"recyclable materials," including spent lead-acid batteries, ar e recyclable. For instance, the legislative history p laced 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] m ust have been sold with the intention that the materi al would be used as a raw material, in place of a virgin material, in the manufacture of a new product.

18145 Cong. Rec. S14986-03, S15049 (November 19, 1999 )

(emphasis added).

Other unequivocal evidence that Congress did not in tend to require that a "recyclable material" be 100% rec yclable can be found throughout the Act's six-year legislat ive history. According to that history:

The first part of [the fourth element] ackn owledges the fact that modern technology has develope d to the point where some consuming facilities exclus ively utilize recyclable materials as their raw ma terial feedstock and manufacture a product that, ha d it been made at another facility, may have been manu factur ed using virgin materials. Thus, the fact that the recyclable material did not directly displac e a virgin

material as the raw material feedstock shoul d not be evidence that the requirements of [S 9627(c) ] were not

met.

Secondary feedstocks may compete both dir e ctly and indirectly with virgin or primary feedstocks . In some cases a secondary feedstock can directly sub stitute for a virgin material in the same manufacturing pr ocess. In other cases, however, a secondary feedsto ck used at a particular manufacturing plant may not be a dir ect substitute for a virgin feedstock, but the p r oduct of that plant competes with a product made else where from virgin material. For example aluminum m ay be utilized at a given facility using either vi r gin or secondary feedstocks meeting certain specifi cations. In this case, the virgin and secondary feedstoc k materials compete directly. A particular steel mill, h owever, may only utilize scrap iron and steel as a feeds tock 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 vi r gin feedstock, the conditions of this paragraph have been met. In this example, the two streams of fee dstock materials do not directly compete, but the p r oduct made from them do. It is the intent of this paragraph that the person be able to demonstrate the g eneral use for which the feedstock material was utilize d. It is not

19the intent that the person show that a speci fic unit was

incorporated into a new product

Id. Thus, the language of the fourth element is int ended to explain when a recycling transaction is deemed to d isplace the use of virgin raw materials, not to r estrict t he 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 etroactiv ely to judicial actions initiated by private parties prior to November 29, 1999, if still pending on that date. G ould's contribution claims against Appellants meet those c riteria. Thus, the Act applies to Gould's claims, and the Di strict Court's order granting summary judgment to Gould on the issue of contribution liability, as well as its jud gment allocating liability, will be vacated. We will rema nd the cause to the District Court for it to determine whe ther Appellants satisfy the Act's requirements for exemp tion from liability.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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