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
`
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`

`
`
`
`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
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`

`
`
`
`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
`
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`
`

`
`
`
`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 non-
`culpable 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