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United States v. Alcan Aluminum Corp./Opinion of the Court

[p255]

GREENBERG, Circuit Judge.

This matter is before the court on appeal by Alcan Aluminum Corporation ("Alcan") from a summary judgment entered in favor of the United States (the "Government") for response costs incurred by the Government in cleaning the Susquehanna River.

On November 24, 1989, the Government filed a complaint in the United States District Court for the Middle District of Pennsylvania under section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9607(a) ("CERCLA") against 20 defendants, including Alcan, for the recovery of clean-up costs it incurred in response to a release of hazardous substances into the Susquehanna River. On October 11, 1990, the Government moved for summary judgment against Alcan, the only non-settling defendant, and on November 13, 1990, Alcan cross-moved for summary judgment.

The district court, after receiving a report and recommendation from a magistrate judge, issued a memorandum and order granting the Government's motion for the reasons set forth in United States v. Alcan Aluminum Corp., 755 F. Supp. 531 (N.D.N.Y. 1991) (hereinafter called "Alcan New York"), another CERCLA case involving the release of hazardous substances generated by Alcan but at a different location. Accordingly, on May 8, 1991, the court entered judgment against Alcan in the amount of $ 473,790.18, which was the difference between the full response costs the Government had incurred in cleaning the Susquehanna River and the amount the Government had recovered from the settling defendants.

For reasons that follow, even though we largely agree with the district court's interpretation of the relevant provisions of CERCLA, we will vacate the judgment of May 8, 1991, and will remand the case for further factual development concerning the scope of Alcan's liability.

I. FACTS AND PROCEDURAL HISTORY
Virtually all of the facts in this case to the extent developed at this point are undisputed. The Butler Tunnel Site (the "Site") is listed on the National Priorities List established by the Environmental Protection Agency ("EPA") under section 105 of CERCLA, 42 U.S.C. § 9605. See 52 Fed. Reg. 27,620 (July 22, 1987). The Site includes a network of approximately five square miles of deep underground mines and related tunnels, caverns, pools and waterways bordering the east bank of the Susquehanna River in Pittston, Pennsylvania. The mine workings at the Site are drained by the Butler Tunnel (the "Tunnel"), a 7500 foot tunnel which feeds directly into the Susquehanna River.

[p256] The mines are accessible from the surface by numerous air shafts or boreholes. One borehole (the "Borehole") is located on the premises of Hi-Way Auto Service, an automobile fuel and repair station situated above the Tunnel. The Borehole leads directly into the mine workings at the Site.

In the late 1970's, the owner of Hi-Way Auto Service permitted various liquid waste transport companies, including those owned and controlled by Russell Mahler (the "Mahler Companies"), to deposit oily liquid wastes containing hazardous substances into the Borehole. The Mahler Companies collected the liquid wastes from numerous industrial facilities located in the northeastern United States and, in total, disposed of approximately 2,000,000 gallons of oily wastes containing hazardous substances through the Borehole. Apparently, it was contemplated that the waste would remain at the Site indefinitely.

Alcan is an Ohio corporation which manufactures aluminum sheet and plate products in Oswego, New York. From 1965 through at least 1989, Alcan's manufacturing process involved the hot-rolling of aluminum ingots. To keep the rolls cool and lubricated during the hot-rolling process, Alcan circulated an emulsion through the rolls, consisting of 95% deionized water and 5% mineral oil. At the end of the hot-rolling process, Alcan removed the used emulsion and replaced it with unused emulsion.

During the rolling process, fragments of the aluminum ingots, which also contained copper, chromium, cadmium, lead and zinc, hazardous substances under CERCLA, broke off into the emulsion. In an effort to remove those fragments, Alcan then filtered the used emulsion prior to disposing of it, but the filtering process was imperfect and hence some fragments remained. According to Alcan, however, the level of these compounds in the post-filtered, used emulsion was "far below the EP toxic or TCLP toxic levels and, indeed, orders of magnitude below ambient or naturally occurring background levels. Moreover, the trace quantities of metal compounds in the emulsion [were] immobile. . . ." Appellant's Br. at 4. The Government does not specifically challenge Alcan's assertion that the used emulsion contained only low levels of these metallic compounds, as it contends that this fact is irrelevant to Alcan's liability under CERCLA.

From mid-1978 to late 1979, Alcan contracted with the Mahler Companies to dispose of at least 2,300,950 gallons of used emulsion from its Oswego, New York, facility. During that period, the Mahler Companies disposed of approximately 32,500-37,500 gallons (or five 6500-7500 gallon loads) of Alcan's liquid waste through the Borehole into the Site.

In September 1985, approximately 100,000 gallons of water contaminated with hazardous substances were released from the Site into the Susquehanna River. It appears that this discharge was composed of the wastes deposited into the Borehole in the late 1970's. Between September 28, 1985, and January 7, 1987, EPA incurred significant response costs due to the release and the threatened release of hazardous substances from the Site. According to the Government, EPA's response actions included "containing an oily material on the river through the use of absorbent booms; immediately removing and disposing of 161,000 pounds (over 80 tons) of oil and chemical-soaked debris and soil, monitoring, sampling and analysis of air and water, [p257]  and conducting hydrogeologic studies." Government's Br. at 10-11.

On December 27, 1985, EPA issued written information requests to potentially responsible parties ("PRPs"), including Alcan, concerning their responsibility for the presence of hazardous substances at the Site. In May and June of 1986, EPA issued letters to the PRPs informing them of their potential liability under CERCLA. Those letters invited the PRPs to conduct a remedial investigation/feasibility study and to enter into an agreement with EPA for the issuance of an administrative order governing the study. Several PRPs conducted these negotiations with EPA in an attempt to settle their liability for removal costs incurred by the Government, but Alcan did not participate in this process.

As courts have observed, Congress intended that the underscored language relate not only to § 9607(a)(4), but also to § 9607 (a)(1)-(3), but apparently misdrafted the language. See, e.g., Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1151 n.4 (1st Cir. 1989); New York v. Shore Realty Corp., 759 F.2d 1032, 1043 n.16 (2d Cir. 1985).

In November 1989, the Government filed a complaint against 20 defendants, including Alcan, for the recovery of costs incurred as a result of the release of hazardous wastes from the Site into the Susquehanna River. In response, 17 of the 20 defendants executed a consent decree, reimbursing the Government for certain removal costs, and the district court entered that decree on January 17, 1990. On June 8, 1990, two of the three remaining defendants entered into a second consent decree with the Government, which the district court approved on July 25, 1990.

The Government then moved for summary judgment against Alcan, the only non-settling defendant, to collect the balance of its response costs. Alcan cross-moved for summary judgment, arguing that its emulsion did not constitute a "hazardous substance" as defined by CERCLA due to its below-ambient levels of copper, cadmium, chromium, lead and zinc, and further contending that its emulsion could not have caused the release or any response costs incurred by the Government.

On January 9, 1991, the district court referred this case to a magistrate judge who recommended that the court grant the Government's motion for summary judgment for the reasons set forth by the United States District Court for the Northern District of New York in Alcan New York. On the basis of that recommendation, the district court granted the Government's motion for summary judgment on May 8, 1991. Accordingly, it held that Alcan was jointly and severally liable for the removal costs because Alcan's waste contained identifiable levels of hazardous substances and was present at the Site from which there was a release. By following Alcan New York, the court also concluded that Alcan's waste did not fall within the "petroleum exclusion" under 42 U.S.C. § 9601(14).

Alcan filed a timely notice of appeal on June 5, 1991, and we have jurisdiction to review the district court's final order pursuant to 28 U.S.C. § 1291. Our standard of review is plenary. Carlson v. Arnot-Ogden Memorial Hospital, 918 F.2d 411, 413 (3d Cir. 1990).

A. CERCLA FRAMEWORK:
In response to widespread concern over the improper disposal of hazardous [p258]  wastes, Congress enacted CERCLA, a complex piece of legislation designed to force polluters to pay for costs associated with remedying their pollution. A Legislative History of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, Senate Committee of Environment and Public Works ("A Legislative History"), S. Doc. No. 97-14, 97th Cong., 2d Sess. 1983, Vol. I, p. 320 (one of the statute's principal goals is "assuring that those who caused chemical harm bear the costs of that harm. . . .") As numerous courts have observed, CERCLA is a remedial statute which should be construed liberally to effectuate its goals. See, e.g., B.F. Goodrich v. Murtha, 958 F.2d 1192 (2d Cir. 1992) ("In CERCLA Congress enacted a broad remedial statute designed to enhance the authority of the EPA to respond effectively and promptly to toxic pollutant spills that threaten[] the environment and human health."); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1150 (1st Cir. 1989) (CERCLA is a "broad response and reimbursement statute").

CERCLA, as amended by the [[Superfund Amendments and Reauthorization Act of 1986]], Pub. L. No. 99-499, 100 Stat. 1613 (Oct. 17, 1986), grants broad authority to the executive branch of the federal government to provide for the clean-up of hazardous substance sites. Specifically, section 104 authorizes the President to respond to a release or substantial threat of a release of hazardous substances into the environment by: (1) removing or arranging for the removal of hazardous substances; (2) providing for remedial action relating to such hazardous substances; and (3) taking any other response measure consistent with the National Contingency Plan that the President deems necessary to protect the public health or welfare or the environment. 42 U.S.C. § 9604(a). The President has delegated most of his authority under CERCLA to EPA.

CERCLA's bite lies in its requirement that responsible parties pay for actions undertaken pursuant to section 104. Under section 107, CERCLA liability is imposed where the plaintiff establishes the following four elements:

(1) the defendant falls within one of the four categories of "responsible parties";

(2) the hazardous substances are disposed at a "facility";

(3) there is a "release" or threatened release of hazardous substances from the facility into the environment;

[p259] (4) the release causes the incurrence of "response costs". 42 U.S.C. § 9607. See also B.F. Goodrich, slip op. at 8; United States v. Serafini, 750 F. Supp. 168, 170 (M.D. Pa. 1990); United States v. Wade, 577 F. Supp. 1326, 1333 (E.D. Pa. 1983).

Reimbursement for response costs can be obtained in a variety of ways. For example, the Government can clean the sites itself using monies in the Hazardous Substance Response Trust Fund established by section 221 of CERCLA, 42 U.S.C. § 9631 and now the Hazardous Substance Superfund or "Superfund" (see 26 U.S.C. § 9507); EPA can then seek reimbursement from responsible parties, as it has done in this case. In addition, section 106(a) permits EPA to request the Attorney General to "secure such relief as may be necessary to abate such danger or threat" by filing a civil action in federal district court. That section also permits EPA to issue administrative orders "as may be necessary to protect public health and welfare and the environment."

Finally, and of great significance in this case, CERCLA imposes strict liability on responsible parties. 42 U.S.C. § 9601(32). See Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d at 1150; New York v. Shore Realty Corp., 759 F.2d 1032, 1042 (2d Cir. 1985) ("Congress intended that responsible parties be held strictly liable, even though an explicit provision for strict liability was not included in the compromise . . . .")

B. CERCLA CONTAINS NO QUANTITATIVE REQUIREMENT IN ITS DEFINITION OF "HAZARDOUS SUBSTANCE":
Alcan argues that it should not be held liable for response costs incurred by the Government in cleaning the Susquehanna River because the level of hazardous substances in its emulsion was below that which naturally occurs and thus could not have contributed to the environmental injury. It asserts that we must read a threshold concentration requirement into the definition of "hazardous substances" for the term "hazardous" to have any meaning. The United States Chamber of Commerce (the "Chamber") as amicus curiae agrees, observing that "Congress took pains to define 'hazardous substance' . . . . Congress clearly never intended to abandon altogether the requirement that the substance at issue be hazardous." Chamber Br. at 20-21 (footnote omitted). The Chamber further states that "the uncontested facts show that Alcan's waste contained less of these [hazardous] elements than can be found in clean dirt." Chamber Br. at 18. For these reasons it too claims that Alcan should not be held liable for any environmental injury to the Susquehanna River.

The Government responds that under a plain reading of the statute, there is no quantitative requirement in the definition of "hazardous substance." Therefore, the Government asserts that Alcan's argument that substances containing below-ambient levels of hazardous substances are not really "hazardous" is properly directed at Congress, not the judiciary.

By adopting the reasoning of Alcan New York, the district court in this case agreed with the Government. Quoting [p260] Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 669 (5th Cir. 1989), the district court in Alcan New York observed, "'the plain statutory language fails to impose any quantitative requirement on the term hazardous substance,'" 755 F. Supp. at 537, and concluded that "there is no principled basis upon which to deviate from the . . . rule that the mere listing of a substance by EPA renders that substance hazardous." Id. at 537-38. In response to Alcan's argument that virtually everything in the universe would constitute a hazardous substance under this reading of the statute, the court in Alcan New York held: "The corporate generator, a non-natural person, has added to what nature has already seen fit to provide for the continued existence of various life forms on this planet; that Congress has enacted laws to limit, and perhaps limit quite severely, additions to nature for the sake of the environment and of life on this planet seems eminently reasonable." Id. at 538. For the reasons that follow, we are satisfied that the court was correct in that conclusion.

1. Plain Meaning:
Section 9601(14) sets forth CERCLA's definition of "hazardous substance" as:

'hazardous substance' means (A) any substance designated pursuant to section 1321(b)(2)(A) of Title 33, (B) any element, compound, mixture, solution, or substance designated pursuant to section 9602 of this title, (C) any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act [42 U.S.C.A. § 6921] (but not including any waste the regulation of which under the Solid Waste Disposal Act [42 U.S.C.A. § 6901 et seq.] has been suspended by Act of Congress), (D) any toxic pollutant listed under section 1317(a) of Title 33, (E) any hazardous air pollutant listed under section 112 of the Clean Air Act [42 U.S.C.A. § 7412], and (F) any imminently hazardous chemical substance or mixture with respect to which the Administrator has taken action pursuant to section 2606 of Title 15. The term does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of this paragraph. . ..

Hence, the statute does not, on its face, impose any quantitative requirement or concentration level on the definition of "hazardous substances." Rather, the substance under consideration must simply fall within one of the designated categories.

2. Legislative History:
Since the statute is plain on its face, we need not resort to legislative history to uncover its meaning. Sacred Heart Medical Center v. Sullivan, 958 F.2d 537, 545 (3d Cir. 1992); Velis v. Kardanis, 949 F.2d 78, 81 (3d Cir. 1991). In any event, the legislative history is barren of any remarks directly revealing Congress' intent vis-a-vis a threshold requirement on the definition of hazardous substances. Significantly, however, the available legislative history of CERCLA does indicate that Congress created the statute to force all polluters to pay for their pollution. A Legislative History, Vol. I, p. 320. It is difficult to imagine that Congress intended to impose a quantitative requirement on the definition of hazardous substances and thereby permit a polluter to add to the total pollution but avoid liability because the amount of its own pollution was minimal.

3. Jurisprudence:
In addition, courts that have addressed this issue have almost uniformly held that CERCLA liability does not depend on the existence of a threshold quantity of a hazardous substance. See, e.g., Amoco Oil Co. v. Borden, Inc., 889 F.2d at 669 ("The plain statutory language fails to impose any quantitative requirement on the term hazardous substance and we decline to imply that any is necessary."); Eagle-Picher [p261] Industries, Inc. v. United States EPA, 245 App. D.C. 196, 759 F.2d 922, 927 (D.C. Cir. 1985) ("a substance is a 'hazardous substance' within the meaning of CERCLA if it qualifies under any of the several subparagraphs of section 101(14)") (emphasis in original); City of New York v. Exxon Corp., 744 F. Supp. 474, 483 (S.D.N.Y. 1990) ("liability under CERCLA attaches regardless of the concentration of the hazardous substances present in a defendant's waste so long as the defendant's waste and/or the contaminants in it are 'listed hazardous substances' . . . ."); United States v. Western Processing Co., 734 F. Supp. 930, 936 (W.D. Wash. 1990) ("The concentration or amount of hazardous substance is irrelevant as the statutory definition contains no threshold requirement."); United States v. Conservation Chemical Co., 619 F. Supp. 162, 238 (W.D. Mo. 1985) ("A waste is a 'hazardous substance' under CERCLA if it contains substances listed as hazardous under any of the statutes referenced in CERCLA section 101(14) regardless of the volumes or concentration of those substances; presumably, if Congress intended the definition of hazardous substances to be contingent upon the presence of a certain amount or concentration of a hazardous substance, it would have so provided."); United States v. Carolawn Co., 21 Envt. Rep. Cas. (BNA) 2124, 2126 (D.S.C. 1984) (CERCLA "simply does not distinguish hazardous substances on the basis of quantity of concentration") (footnote omitted); United States v. Wade, 577 F. Supp. 1326, 1340 (E.D. Pa. 1983) (CERCLA imposes no concentration requirement on the definition of hazardous substances). But see United States v. Ottati & Goss, Inc., 22 E.R.C. 1736, 1739 (D.N.H. 1984) (granting defendant's motion to dismiss on the ground that it "did not cause or contribute to cause the disposal of any hazardous wastes . . . which exceeded the threshold established by the EPA for hazardous wastes") (emphasis supplied).

4. Congressional Matter:
It may be that Congress did not intend such an all-encompassing definition of "hazardous substances," but this argument is best directed at Congress itself. If Congress had intended to impose a threshold requirement, it could easily have so indicated. We should not rewrite the statute simply because the definition of one of its terms is broad in scope.

There is some force to Alcan's argument that this definition of "hazardous substances" is so broad that it encompasses virtually everything and thereby eviscerates the meaning of "hazardous." However, our holding with respect to divisibility of harm as discussed below should assuage Alcan's fear that liability under CERCLA will be as far-reaching as the definition of hazardous substances.

1. RQs and CASRNs
Alcan asserts that the district court's decision is erroneous because it bases Alcan's liability on the ground that the used emulsion contains trace levels of certain generic compounds listed in 40 C.F.R. § 302.4, Table 302.4, which is a consolidation of the lists promulgated pursuant to the Clean Water Act, the Clean Air Act and the Resource Conservation and Recovery Act. According to Alcan, substances listed under Table 302.4 must have reportable quantities ("RQs") and Chemical Abstract [p262]  Service Registry Numbers ("CASRNs") in order to be considered hazardous under CERCLA. Since Table 302.4 does not provide RQs or CASRNs for the generic compounds in Alcan's used emulsion, it is Alcan's view that they are therefore not "listed" hazardous substances under the meaning of section 302.4(a), 40 C.F.R. § 302.4(a). The Government disagrees, and contends that the generic designations are not mere headings inserted by the drafters of Table 302.4, but are substantive categories of hazardous substances that trigger CERCLA liability. In addition, the Government notes that CERCLA does not require a substance to have an RQ or a CASRN number to be considered hazardous. The district court, by adopting the reasoning in Alcan New York, properly endorsed the Government's position.

First, section 101(14) of CERCLA defines a hazardous substance to include "any toxic pollutant listed under section 1317(a) of Title 33 [the Clean Water Act]." 42 U.S.C. § 9601(14). The generic compounds contained in Alcan's emulsion are "listed" under 40 C.F.R. § 401.15, the list of toxic pollutants promulgated pursuant to section 1317(a). Thus, there is no need to reach the significance of RQs or CASRNs under Table 302.4 to determine whether generic compounds are "hazardous" by virtue of their listing under that Table.

Second, the fact that Table 302.4 does not provide CASRNs for generic categories is irrelevant, as CASRNs are "for convenience of the user only." 40 C.F.R. § 116.4. Accord, City of New York v. Exxon, 766 F. Supp. 177, 182 (S.D.N.Y. 1991) ("the fact that the generic headings have no . . . [CASRNs] assigned to them is of no significance"). Further, cadmium, chromium, lead and zinc do have CASRNs listed in the regulations. See 40 C.F.R. 302.4 Appendix A. It also appears that the absence of RQ numbers for generic categories is irrelevant to CERCLA liability. Indeed, EPA has explained why it decided not to establish RQs for the many broad generic classes of organic and metallic compounds designated as toxic pollutants under section 307(a) of the Clean Water Act: It was recognized that to establish a single RQ for broad classes of hazardous substances would be inappropriate for many of the compounds within each class. Many of the generic classes of compounds encompass hundreds or even thousands of specific compounds. It would be virtually impossible for the Agency to develop a reportable quantity for a generic class of compounds that would take into account the varying characteristics of all of the specific compounds in the class. 50 Fed. Reg. 13,461. EPA has further stated that generic categories of substances are nonetheless considered "hazardous substances": "Several commentators were unsure of the Agency's position on reporting and liability for generic classes. . . . EPA has determined that the notification requirements need apply only to those specific compounds for which RQs are listed in Table 302.4, rather than to the generic classes of compounds. However, as the Agency indicated in the NPRM preamble, this does not preclude liability with respect to releases of specific compounds which are within one of these generic listings but which are not listed in Table 302.4. In other words, a releaser is liable for the cleanup of releases of hazardous substances which fall under any of the broad, generic classes, but does not have to report such releases when the specific compounds, and hence the RQs, are not listed in Table 302.4." Id. at 13,461.

EPA's interpretation of the statute it is charged with enforcing is entitled to [p263]  considerable deference, and must be adhered to where it is reasonable and consistent with the language of the statute. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L. Ed. 2d 694 (1984); see also Sacred Heart, 958 F.2d at 543-45. Moreover, an EPA Administrator's interpretation of his own regulations is entitled to even greater deference. Sacred Heart, 958 F.2d at 543-45; Vermont v. Thomas, 850 F.2d 99, 102 (2d Cir. 1988). For these reasons the district court, by adopting Alcan New York, correctly concluded that the absence of an RQ or CASRN number does not signify that the substance is not "hazardous." Accord, City of New York v. Exxon Corp., 766 F. Supp. at 182. In sum, the only question before us in this regard is whether the substances Alcan admits existed in its used emulsion are listed in any of the statutory and regulatory schemes incorporated by section 101(14), 42 U.S.C. § 9601(14). Alcan has conceded that its emulsion contained trace quantities of cadmium, chromium, copper, lead and zinc. App. at 43. Those compounds are listed as hazardous under 40 C.F.R. § 401.15, promulgated pursuant to the Clean Water Act, 33 U.S.C. § 1317(a). Further, these compounds are "listed" under Table 302.4 because the absence of CASRN or RQ numbers is irrelevant. Hence, they are hazardous substances.

2. Section 302.4(b):
The foregoing determination that the generic compounds in Alcan's emulsion are "listed" under the meaning of section 302.4(a) ( 40 C.F.R. § 302.4(a)) also disposes of Alcan's contention that the district court erred in failing to determine whether the compounds exhibit the characteristics of hazardous substances pursuant to section 302.4(b). Section 302.4(b) provides:

Unlisted hazardous substances. A solid waste, as defined in 40 CFR 261.2, which is not excluded from regulation as a hazardous waste under 40 CFR 261.4(b), is a hazardous substance under section 101(14) of the Act if it exhibits any of the characteristics identified in 40 CFR 261.20 through 261.24. (emphasis supplied).

However, because generic compounds are "listed" hazardous substances under Table 302.4, we need not determine whether they exhibit the characteristics set forth in 40 C.F.R. §§ 261.20 through 261.24. In addition, as the district court observed, the compounds in Alcan's emulsion are hazardous by virtue of their designation as toxic pollutants under the Clean Water Act.

3. May, Not Shall:
Alcan also deems it significant that EPA has explained that "CERCLA liability may still attach to releases of specific compounds that are within one of the generic listings but not specifically listed in Table 302.4." 50 Fed. Reg. 13,472-73 (emphasis supplied). In Alcan's view, if EPA intended generic categories to constitute hazardous substances in every instance, it would have used the word "shall." However, as the court in City of New York v. Exxon Corp. pointed out, "the use of the word 'may' simply reflects EPA's recognition that CERCLA liability attaches only if all elements of a CERCLA cause of action are established." 766 F. Supp. at 183 n.1.

[p264]

4. Environmental Policy:
In Alcan's view, the district court's construction of the statute is at odds with environmental policy because it imposes liability on generators of allegedly "hazardous" substances although the substances pose no real threat to the environment. Alcan's argument, though superficially appealing, is flawed. First, as noted above, the Government responds to "releases" that threaten environmental safety. Thus, it is the release alone that must justify the response costs, not the particular waste generated by one given defendant. Here, there is no question but that a release occurred. Second, the fact that a single generator's waste would not in itself justify a response is irrelevant in the multi-generator context, as this would permit a generator to escape liability where the amount of harm it engendered to the environment was minimal, though it was significant when added to other generators' waste. Accordingly, we find that the district court's construction of the statute furthers important environmental goals.

Equally unavailing is Alcan's assertion that the district court's opinion conflicts with EPA's recently promulgated national policy concerning household waste. The fact that EPA has determined that liability should not be imposed on homeowners for household waste does not indicate that household waste is not hazardous, but rather evinces EPA's understanding that household waste does include hazardous substances, for otherwise there would be no need to create an exception. Obviously, there are significant policy reasons to exclude homeowners from CERCLA liability.

D. CAUSATION:
Alcan maintains that, if we decline to construe the determination of "hazardous substance" to encompass a concentration threshold, we must at least require the Government to prove that Alcan's emulsion caused or contributed to the release or the Government's incurrence of response costs. The Government contends, and the district court by adopting the reasoning of Alcan New York agreed, that the statute imposes no such causation requirement, but rather requires that the plaintiff in a CERCLA proceeding establish that the release or threatened release caused the incurrence of response costs; it underscores the difficulty CERCLA plaintiffs would face in the multi-generator context if required to trace the cause of the response costs to each responsible party.

1. Plain Meaning:
The plain meaning of the statute supports the Government's position. As noted above, section 107 imposes liability upon a generator of hazardous substances who contracts with another party to dispose of the hazardous substances at a facility "from which there is a release, or threatened release which causes the incurrence of response costs." 42 U.S.C. § 9607 (emphasis supplied). The statute does not, on its face, require the plaintiff to prove that the generator's hazardous substances themselves caused the release or caused the incurrence of response costs; rather, it requires the plaintiff to prove that the release or threatened release caused the incurrence of response costs, and that the defendant is a generator of hazardous substances at the facility.

2. Legislative History:
The legislative history also supports the Government's position that CERCLA does not require the plaintiff to establish a specific causal relationship between a generator's waste and the release or the plaintiff's incurrence of response costs. It appears that the early House of Representatives' version of CERCLA imposed liability [p265] upon those persons who "caused or contributed to the release or threatened release." H.R. 7020, 96th Cong., 2d Sess. § 3071(a)(D), 126 Cong. Rec. 26,779. However, the version ultimately passed by Congress deleted the causation requirement and instead imposed liability upon a class of responsible persons without regard to whether the person specifically caused or contributed to the release and the resultant response costs. See 126 Cong. Rec. 31,981-82. Moreover, Congress added three limited defenses to liability based on causation which are contained in 42 U.S.C. § 9607(b): acts of God, acts of war, and acts or omissions of a contractually unrelated third party when the defendant exercised due care and took appropriate responses. Imputing a specific causation requirement would render these defenses superfluous.

In sum, the legislative history indicates that Congress considered and rejected a requirement that the plaintiff establish that the defendant's waste caused or contributed to the release or the incurrence of response costs.

3. Jurisprudence:
Further, virtually every court that has considered this question has held that a CERCLA plaintiff need not establish a direct causal connection between the defendant's hazardous substances and the release or the plaintiff's incurrence of response costs. For example, in New York v. Shore Realty Corp., the defendant, an owner of a facility, asked the Court of Appeals for the Second Circuit to read this "causation" requirement into section 107(a). The court declined that invitation and held, "section 9607(a)(1) unequivocally imposes strict liability on the current owner of a facility from which there is a release or threat of release without regard to causation." 759 F.2d at 1044 (footnote omitted). The court observed that "there are defenses for causation solely by an act of God, an act of war, or acts or omissions of a third party other than an employee or agent of the defendant or one whose act or omission occurs in connection with a contractual relationship with the defendant," id. at 1042, and it found that these defenses would be superfluous if the statute imposed a causation requirement. It concluded, "without a clear congressional command otherwise, we will not construe a statute in any way that makes some of its provisions surplusage." Id. at 1044.

The court of appeals in United States v. Monsanto Co., 858 F.2d 160 (4th Cir. 1988), cert. denied, 490 U.S. 1106, 109 S.Ct. 3156 (1989), extended Shore Realty's analysis to generators of hazardous waste. The court of appeals there rejected a similar argument that the CERCLA plaintiff was required to establish that the waste the defendant generator sent to the facility caused or contributed to the environmental harm, observing that Congress deleted the causation language from CERCLA precisely because it was aware of the difficulties plaintiffs would confront in the multi-generator context if required to prove such a connection. It held, "in deleting causation language from section 107(a), we assume as have many other courts, that Congress knew of the synergistic and migratory capacities of leaking chemical waste, and the technological infeasibility of tracing improperly disposed waste to its source." Id. at 170 (footnote omitted).

Other cases are in accord. See, e.g., Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d at 1152-54 (the only causation required under CERCLA is that the release or threatened release cause the response costs; plaintiff need not establish that the defendant's waste caused or contributed to the response costs); United States v. Bliss, 667 F. Supp. 1298, 1309 (E.D. Mo. 1987) ("traditional tort notions, such as proximate cause, do not apply"); United States v. Wade, 577 F. Supp. at 1333 ("the release which results in the incurrence of response costs and liability need only be of 'a' hazardous substance and not necessarily one contained in the defendant's waste. The only required nexus between the defendant and the site is that the defendant have dumped his waste there and that the hazardous substances found in the defendant's waste are also found at the site.")

Despite Alcan's assertion, Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, is not to [p266] the contrary. There, the Court of Appeals for the Fifth Circuit held that the plaintiff may not recover response costs unless the release posed a threat to the public or the environment. In the court's view, "the question of whether a release has caused the incurrence of response costs should rest upon a factual inquiry into the circumstances of a case and the relevant factual inquiry should focus on whether the particular hazard justified any response actions." Id. at 670. The court did not hold, as Alcan suggests, that the factual investigation would concern whether the defendant's waste caused the incurrence of response costs. Moreover, the environmental injury at issue in Amoco resulted from one generator's pollution, and the court expressly noted that other courts have concluded that, "in cases involving multiple sources of contamination, a plaintiff need not prove a specific causal link between costs incurred and an individual generator's waste." Id. at 670 n.8. This distinction is significant for, in the single generator context, if the response costs were justified, the defendant necessarily caused the incurrence of those costs. However, in the multi-generator context, the fact that the response costs were justified would not per force signify that each generator's waste caused the release and the resultant response costs. See also City of New York v. Exxon Corp., 766 F. Supp. at 194.

Decisions rejecting a causation requirement between the defendant's waste and the release or the incurrence of response costs are well-reasoned, consistent with the plain language of the statute and consistent with the legislative history of CERCLA. Accordingly, we reject Alcan's argument that the Government must prove that Alcan's emulsion deposited in the Borehole caused the release or caused the Government to incur response costs. Rather, the Government must simply prove that the defendant's hazardous substances were deposited at the site from which there was a release and that the release caused the incurrence of response costs.

E. PETROLEUM EXCLUSION:
Alcan further argues that its emulsion constitutes "petroleum" within the meaning of 42 U.S.C. § 9601 and is thus excluded from CERCLA liability. Section 9601(14) provides: "the term [hazardous substance] does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of this paragraph . . . ." (emphasis supplied). According to Alcan, EPA has interpreted the petroleum exclusion to extend to "used oil" containing concentrations of hazardous substances at levels equal to or less than that found in virgin oil. Alcan contends that its emulsion is "used oil" with concentration levels of cadmium, chromium, copper, lead and zinc that are lower than the levels of these compounds in virgin oil and therefore falls within the petroleum exclusion. Although this argument has superficial appeal, it cannot withstand close scrutiny.

First, and most importantly, EPA has distinguished between oil that naturally contains low levels of hazardous substances and oil to which hazardous substances have been added through use. Although EPA has extended the petroleum exclusion to the former category of oily substances, it has specifically declined to extend such protection to the latter category. In EPA's words: "EPA does not consider materials such as waste oil to which listed CERCLA substances have been added to be within the petroleum exclusion." 50 Fed. Reg. 13,460 (1985). Thus, the conclusion of the district court in Alcan New York that "a plain reading of the 'exclusionary' provision does not warrant the inclusion of oil which has become contaminated with hazardous substances through use; rather what does come within the ambit of the 'petroleum exclusion' is the oil [p267] or oil fraction which naturally contains the hazardous substance(s) unless the fraction itself is specifically listed or designated as a hazardous substance," is in harmony with EPA's interpretation. 755 F. Supp. at 539. Moreover, EPA's interpretation of the petroleum exclusion comports with the relevant legislative history which indicates that the exclusion was intended for oil spills, not for releases of oil which has become infused with hazardous substances through use. See S. Rep. No. 848, 96th Cong., 2d Sess. 30-31 (1980), reprinted in A Legislative History, Vol.I, at 405.

Alcan has admitted that the hot-rolling process adds hazardous substances to the emulsion. Thus, it has effectively conceded that its emulsion does not fall within the scope of the petroleum exclusion as construed by EPA.

F. DIVISIBILITY OF HARM:
The foregoing conclusions that (1) there is no quantitative threshold in the definition of hazardous substances and (2) the plaintiff need not establish a causal connection between a given defendant's waste and the release or the incurrence of response costs would initially appear to lead to unfair imposition of liability. As Alcan asserts, this definition of "hazardous substances" effectively renders everything in the universe hazardous, including, for example, federally approved drinking water. When this definition is read in conjunction with the rule that specific causation is not required, CERCLA seemingly would impose liability on every generator of hazardous waste, although that generator could not, on its own, have caused any environmental harm.

While Alcan's assertion is of considerable strength, the Government's rebuttal is equally forceful. It notes that individual defendants must be held responsible for environmental injury brought about by the actions of multiple defendants, even if no single defendant itself could have produced the harm, for otherwise "each defendant in a multi-defendant case could avoid liability by relying on the low concentrations of hazardous substances in its waste, while the plaintiff is left with the substantial clean-up costs associated with the defendant's accumulated wastes." Government's Br. at 32. The Government reasons that this strong public interest in forcing polluters in the multi-generator context to pay outweighs a defendant's interest in avoiding liability even if that defendant has not acted in an environmentally unsound fashion when its actions are viewed without regard to the actions of others. The court in United States v. Western Processing Co., adopting the position advanced by the Government in this case, observed: "it is entirely possible for a hazardous waste facility to be comprised of entirely small amounts from many contributors. If each PRP could make [Alcan's] argument, i.e., that its particular contribution did not warrant remediation and thus that it should not be liable for any costs, no party would be liable, despite the fact [p268] that the site, as a whole, needed to be cleaned up and the government incurred costs in doing so." 734 F. Supp. at 937 (emphasis in original).

We find some merit in the arguments advanced by both the Government and Alcan. Accordingly, in our view, the common law principles of joint and several liability provide the only means to achieve the proper balance between Alcan's and the Government's conflicting interests and to infuse fairness into the statutory scheme without distorting its plain meaning or disregarding congressional intent.

CERCLA does not specifically provide for joint and several liability in a case involving multiple defendants. Further, both the House and Senate deleted provisions imposing joint and several liability from their respective versions of the statute before its enactment. However, as the court explained in United States v. Chem-Dyne Corp., 572 F. Supp. 802, 808 (S.D. Ohio 1983), at the conclusion of an exhaustive review of statements made by the legislation's sponsors concerning the deletion of joint and several liability, "the scope of liability and term joint and several liability were deleted to avoid a mandatory legislative standard applicable in all situations which might produce inequitable results in some cases. 126 Cong. Rec. at S14964, S15004, H11787, H11799, 126 Cong. Rec. H9465 (Sept. 23, 1980) (remarks of Rep. Madigan), H9466 (Remarks of Rep. Stockman). The deletion was not intended as a rejection of joint and several liability. 126 Cong.Rec. S14964, H11787, H11799 (Nov. 24, 1980). Rather, the term was omitted in order to have the scope of liability determined under common law principles, where a court performing a case by case evaluation of the complex factual scenarios associated with multiple-generator waste sites will assess the propriety of applying joint and several liability on an individual basis." Other courts have agreed that Congress' deletion of joint and several liability from the final version of the statute signalled its intent to have the courts determine, in accordance with traditional common law principles, whether such liability is proper under the circumstances. See, e.g., O'Neil v. Picillo, 883 F.2d 176, 178 (1st Cir. 1989), cert. denied, 493 U.S. 1071, 110 S.Ct. 1115 (1990); United States v. Monsanto Co., 858 F.2d at 171 n.3. Accord, B.F. Goodrich, No. 91-7450, slip. op. at 6 (2d Cir. March 12, 1992). In determining whether the imposition of joint and several liability upon Alcan is proper, so that it may be held liable for the Government's full response costs less what had been recovered from the settling defendants, we turn to the Restatement (Second) of Torts for guidance.

Section 433A of the Restatement provides that, when two or more joint tortfeasors acting independently cause a distinct or single harm for which there is a reasonable basis for division according to the contribution of each, each is subject to liability only for the portion of the harm that the individual tortfeasor has caused. It states,

(1) Damages for harm are to be apportioned among two or more causes where

(a) there are distinct harms, or

(b) there is a reasonable basis for determining the contribution of each cause to a single harm.

(2) Damages for any other harm cannot be apportioned among two or more causes.

Similarly, section 881 sets forth the affirmative defense based upon the divisibility of harm rule in section 433A:

"If two or more persons, acting independently, tortiously cause distinct harms or a single harm for which there is a reasonable basis for division according to the contribution of each, each is subject to liability only for the portion of the total harm that he has himself caused."

However, where joint tortfeasors cause a single and indivisible harm for which there is no reasonable basis for division according [p269] to the contribution of each, each tortfeasor is subject to liability for the entire harm. Section 875 recites:

"Each of two or more persons whose tortious conduct is a legal cause of a single and indivisible harm to the injured party is subject to liability to the injured party for the entire harm."

Obviously, of critical importance in this analysis is whether a harm is divisible and reasonably capable of apportionment, or indivisible, thereby subjecting the tortfeasor to potentially far-reaching liability.

Under the Restatement, where a joint tortfeasor seeks to apportion the full amount of a plaintiff's damages according to that tortfeasor's own contribution to the harm, it is the tortfeasor's burden to establish that the damages are capable of such apportionment.

These provisions underscore the intensely factual nature of the "divisibility" issue and thus highlight the district court's error in granting summary judgment for the full claim in favor of EPA without conducting a hearing. For this reason, we will remand this case for the court to determine whether there is a reasonable basis for limiting Alcan 's liability based on its personal contribution to the harm to the Susquehanna River.

Our conclusions on this point are completely consistent with our previous discussion on causation, as there we were concerned with the Government's burden in demonstrating liability in the first instance. Here we are dealing with Alcan's effort to avoid liability otherwise established. We observe in this regard that Alcan's burden in attempting to prove the divisibility of harm to the Susquehanna River is substantial, and the analysis will be factually complex as it will require an assessment of the relative toxicity, migratory potential and synergistic capacity of the hazardous waste at issue. United States v. Monsanto Co., 858 F.2d at 172 n.26. See also United States v. Chem-Dyne Corp., 572 F. Supp. at 811. But Alcan should be permitted this opportunity to limit or avoid liability. If Alcan succeeds in this endeavor, it should only be liable for that portion of the harm fairly attributable to it. Accord, United States v. Marisol, Inc., 725 F. Supp. 833, 843 (M.D. Pa. 1989) ("the question of the relative contribution of a particular defendant to a waste site may impact upon the issue of joint and several liability").

Alcan maintains that there is no need for a hearing because, not only is the harm divisible, but its relative contribution to the [p270] injury to the Susquehanna River is zero. According to Alcan, "it is technically impossible to have a release or threatened release such that a clean-up would be authorized or justified under the National Contingency Plan as a result of the addition of the metal compounds in the Alcan emulsion to the Butler Site. When one adds two materials that have the same concentrations of an element or compound, the net result is the same concentration. It can never result in a higher concentration." Appellant's Br. at 18 (emphasis in original). Alcan's Reply Brief similarly asserts that "below ambient levels of any substance can never cause or contribute to a release or response costs." Appellant's Reply Br. at 10-11.

The district court did not specifically address this argument. Indeed, in light of their belief that Alcan New York was dispositive of the arguments advanced by Alcan in this case, neither the magistrate judge nor the district court engaged in any factual investigation concerning the divisibility of the environmental harm caused to the Susquehanna River as a result of the release of hazardous substances from the Borehole. However, we are not the proper forum to consider Alcan's argument as we have no way of determining whether the trace levels of metallic compounds in Alcan's used emulsion became concentrated and thereby posed an environmental threat. Furthermore, there may be other circumstances bearing on this issue of which we are not even aware. Thus, the district court should re-evaluate Alcan's contention in light of the facts developed in the hearing on this issue. In this vein, we also reject the Government's argument that a hearing is unnecessary because Alcan has admitted that its emulsion was "commingled" with the other generators' waste: "commingled" waste is not synonymous with "indivisible" harm. We observe that some courts have held that a generator may present evidence that it has paid more than its "fair share" in a contribution proceeding, expressly permitted under 42 U.S.C. § 9613(f)(2). See, e.g., United States v. R.W. Meyer, Inc., 889 F.2d 1497, 1507 (6th Cir. 1989) cert. denied, 494 U.S. 1057, 110 S.Ct. 1527, 108 L. Ed. 2d 767 (1990); United States v. Monsanto, 858 F.2d at 173. In a sense, the "contribution" inquiry involves an analysis similar to the "divisibility" inquiry, as both focus on what harm the defendant caused. However, we believe that this inquiry, to the extent that it is the same as that discussed in above-noted cases, is best resolved at the initial liability phase and not at the contribution phase since it involves precisely relative degrees of liability. Thus, if the defendant can prove that the harm is divisible and that it only caused some portion of the injury, it should only be held liable for that amount. In our view, the logical consequence of delaying the apportionment determination may well be drastic, for it seems clear that a defendant could easily be strong-armed into settling where other defendants have settled in order to avoid being held liable for the remainder of the response costs. Indeed, in this case the court determined that Alcan, one of 20 defendants, was liable for $ 473,790.18 in response costs, although the total response costs amounted to $ 1,302,290.18. Thus, although Alcan comprised only 5% of the defendant pool, it was required by the court to absorb over 36% of the costs. Furthermore, Alcan's share of the liability seems to be disproportionate on a volume basis as well. We also point out that contribution will probably not be available from a settling defendant in an action by the United States. 42 U.S.C. § 9613(f)(2).

We note, of course, that a determination in a given case that harm is indivisible will not negate a defendant's right to seek contribution from other non-settling defendants, as the contribution proceeding is an equitable one in which a court is permitted to allocate response costs based on factors it deems appropriate, whereas the court is not vested with such discretion in the divisibility determination.

In sum, on remand, the district court must permit Alcan to attempt to prove that the harm is divisible and that the damages are capable of some reasonable apportionment. We note that the Government need not prove that Alcan's emulsion caused the release or the response costs. On the other hand, if Alcan proves that the emulsion did not or could not, when mixed with other hazardous wastes, contribute to the release and the resultant response costs, then Alcan should not be responsible for any response costs. In this sense, our result thus injects causation into the equation but, as we have already pointed out, places the burden of proof on the defendant instead of the plaintiff. We think that this result is consistent with the statutory scheme and yet recognizes that there must be some reason for the imposition of CERCLA liability. Our result seems particularly appropriate in light of the expansive [p271] meaning of "hazardous substance." Of course, if Alcan cannot prove that it should not be liable for any response costs or cannot prove that the harm is divisible and that the damages are capable of some reasonable apportionment, it will be liable for the full claim of $ 473,790.18.

III. CONCLUSION
In conclusion, the district court correctly determined that CERCLA's definition of "hazardous substance" does not include a threshold requirement. This interpretation is fully consistent with the plain language of the statute, the legislative history, EPA regulations and EPA policy. In addition, the court correctly determined that a CERCLA plaintiff need not establish a causal connection between a generator's hazardous substances and the release or the incurrence of response costs. The district court was also correct in determining that Alcan's used emulsion does not fall within the petroleum exclusion under 42 U.S.C. § 9601(14), and it properly rejected Alcan's constitutional challenges.

However, we find that the court should have conducted a hearing to determine the divisibility of harm to the Susquehanna River, and will remand the case for the court to do so. If Alcan can establish in that hearing that the harm is capable of reasonable apportionment, then it should be held liable only for the response costs relating to that portion of harm to which it contributed. Further, if Alcan can establish that the hazardous substances in its emulsion could not, when added to other hazardous substances, have caused or contributed to the release or the resultant response costs, then it should not be liable for any of the response costs. Accordingly, we will vacate the judgment of the district court of May 8, 1991, and will remand the matter for further proceedings consistent with this opinion.


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76 at the first appearance, should dabble in stocks and that sort of thing?"

"There are certain sophomorean errors in the world," drawled the sophomore, deliberately adjusting his shirt-collar, "not the least of which is the popular notion touching the nature of the modern scholar, and the nature of the modern scholastic sedateness."

"So it seems, so it seems. Really, this is quite a new leaf in my experience."

"Experience, sir," originally observed the sophomore, "is the only teacher."

"Hence am I your pupil; for it's only when experience speaks, that I can endure to listen to speculation."

"My speculations, sir," dryly drawing himself up, "have been chiefly governed by the maxim of Lord Bacon; I speculate in those philosophies which come home to my business and bosom—pray, do you know of any other good stocks?"

"You wouldn't like to be concerned in the New Jerusalem, would you?"

"New Jerusalem?"

"Yes, the new and thriving city, so called, in northern Minnesota. It was originally founded by certain fugitive Mormons. Hence the name. It stands on the Mississippi. Here, here is the map," producing a roll. "There—there, you see are the public buildings—here the landing—there the park—yonder the botanic gardens—and this, this little dot here, is a perpetual fountain, you understand. You observe there are twenty

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Rh asterisks. Those are for the lyceums. They have lignum-vitae rostrums."

"And are all these buildings now standing?"

"All standing—bona fide."

"These marginal squares here, are they the water-lots?"

"Water-lots in the city of New Jerusalem? All terra firma—you don't seem to care about investing, though?" "Hardly think I should read my title clear, as the law students say," yawned the collegian.

"Prudent—you are prudent. Don't know that you are wholly out, either. At any rate, I would rather have one of your shares of coal stock than two of this other. Still, considering that the first settlement was by two fugitives, who had swum over naked from the opposite shore—it's a surprising place. It is, bona fide.—But dear me, I must go. Oh, if by possibility you should come across that unfortunate man—"

"—In that case," with drawling impatience, "I will send for the steward, and have him and his misfortunes consigned overboard."

"Ha ha!—now were some gloomy philosopher here, some theological bear, forever taking occasion to growl down the stock of human nature (with ulterior views, d'ye see, to a fat benefice in the the gift of the worshipers of Ariamius), he would pronounce that the sign of a hardening heart and a softening brain. Yes, that would be his sinister construction. But it's nothing more than the oddity of a genial humor—genial but dry. Confess it. Good-bye."

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 , settees, sofas, divans, ottomans; occupying them are clusters of men, old and young, wise and simple; in their hands are cards spotted with diamonds, spades, clubs, hearts; the favorite games are whist, cribbage, and brag. Lounging in arm-chairs or sauntering among the marble-topped tables, amused with the scene, are the comparatively few, who, instead of having hands in the games, for the most part keep their hands in their pockets. These may be the philosophes. But here and there, with a curious expression, one is reading a small sort of handbill of anonymous poetry, rather wordily entitled:— "ODE ON THE INTIMATIONS OF DISTRUST IN MAN, UNWILLINGLY INFERRED FROM REPEATED REPULSES, IN DISINTERESTED ENDEAVORS TO PROCURE HIS CONFIDENCE." On the floor are many copies, looking as if fluttered down from a balloon. The way they came there was this: A somewhat elderly person, in the quaker dress,

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Rh had quietly passed through the cabin, and, much in the manner of those railway book-peddlers who precede their proffers of sale by a distribution of puffs, direct or indirect, of the volumes to follow, had, without speaking, handed about the odes, which, for the most part, after a cursory glance, had been disrespectfully tossed aside, as no doubt, the moonstruck production of some wandering rhapsodist.

In due time, book under arm, in trips the ruddy man with the traveling-cap, who, lightly moving to and fro, looks animatedly about him, with a yearning sort of gratulatory affinity and longing, expressive of the very soul of sociality; as much as to say, "Oh, boys, would that I were personally acquainted with each mother's son of you, since what a sweet world, to make sweet acquaintance in, is ours, my brothers; yea, and what dear, happy dogs are we all!"

And just as if he had really warbled it forth, he makes fraternally up to one lounging stranger or another, exchanging with him some pleasant remark.

"Pray, what have you there?" he asked of one newly accosted, a little, dried-up man, who looked as if he never dined.

"A little ode, rather queer, too," was the reply, "of the same sort you see strewn on the floor here."

"I did not observe them. Let me see;" picking one up and looking it over. " Well now, this is pretty; plaintive, especially the opening:—

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80 —If it be so, alas for him, indeed. Runs off very smoothly, sir. Beautiful pathos. But do you think the sentiment just?"

"As to that," said the little dried-up man, "I think it a kind of queer thing altogether, and yet I am almost ashamed to add, it really has set me to thinking; yes and to feeling. Just now, somehow, I feel as it were trustful and genial. I don't know that ever I felt so much so before. I am naturally numb in my sensibilities; but this ode, in its way, works on my numbness not unlike a sermon, which, by lamenting over my lying dead in trespasses and sins, thereby stirs me up to be all alive in well-doing."

"Glad to hear it, and hope you will do well, as the doctors say. But who snowed the odes about here?"

"I cannot say; I have not been here long."

"Wasn't an angel, was it? Come, you say you feel genial, let us do as the rest, and have cards."

"Thank you, I never play cards."

"A bottle of wine?"

"Thank you, I never drink wine."

"Cigars?"

"Thank you, I never smoke cigars."

"Tell stories?"

"To speak truly, I hardly think I know one worth telling."

"Seems to me, then, this geniality you say you feel waked in you, is as water-power in a land without mills. Come, you had better take a genial hand at the

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Rh cards. To begin, we will play for as small a sum as you please; just enough to make it interesting."

"Indeed, you must excuse me. Somehow I distrust cards."

"What, distrust cards? Genial cards? Then for once I join with our sad Philomel here:— Good-bye!"

Sauntering and chatting here and there, again, he with the book at length seems fatigued, looks round for a seat, and spying a partly-vacant settee drawn up against the side, drops down there; soon, like his chance neighbor, who happens to be the good merchant, becoming not a little interested in the scene more immediately before him; a party at whist; two cream-faced, giddy, unpolished youths, the one in a red cravat, the other in a green, opposed to two bland, grave, handsome, self-possessed men of middle age, decorously dressed in a sort of professional black, and apparently doctors of some eminence in the civil law.

By-and-by, after a preliminary scanning of the new comer next him the good merchant, sideways leaning over, whispers behind a crumpled copy of the Ode which he holds: "Sir, I don't like the looks of those two, do you?"

"Hardly," was the whispered reply; "those colored cravats are not in the best taste, at least not to mine; but my taste is no rule for all."

"You mistake; I mean the other two, and I don't

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82 refer to dress, but countenance. I confess I am not familiar with such gentry any further than reading about them in the papers—but those two are—are s, aint they?" "Far be from us the captious and fault-finding spirit, my dear sir."

"Indeed, sir, I would not find fault; I am little given that way; but certainly, to say the least, these two youths can hardly be adepts, while the opposed couple may be even more."

"You would not hint that the colored cravats would be so bungling as to lose, and the dark cravats so dextrous as to cheat?—Sour imaginations, my dear sir. Dismiss them. To little purpose have you read the Ode you have there. Years and experience, I trust, have not sophisticated you. A fresh and liberal construction would teach us to regard those four players—indeed, this whole cabin-full of players—as playing at games in which every player plays fair, and not a player but shall win."

"Now, you hardly mean that; because games in which all may win, such games remain as yet in this world uninvented, I think."

"Come, come," luxuriously laying himself back, and casting a free glance upon the players, "fares all paid; digestion sound; care, toil, penury, grief, unknown; lounging on this sofa, with waistband relaxed, why not be cheerfully resigned to one's fate, nor peevishly pick holes in the blessed fate of the world?"

Upon this, the good merchant, after staring long and

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Rh hard, and then rubbing his forehead, fell into meditation, at first uneasy, but at last composed, and in the end, once more addressed his companion: "Well, I see it's good to out with one's private thoughts now and then. Somehow, I don't know why, a certain misty suspiciousness seems inseparable from most of one's private notions about some men and some things; but once out with these misty notions, and their mere contact with other men's soon dissipates, or, at least, modifies them."

"You think I have done you good, then? maybe, I have. But don't thank me, don't thank me. If by words, casually delivered in the social hour, I do any good to right or left, it is but involuntary influence—locust-tree sweetening the herbage under it; no merit at all; mere wholesome accident, of a wholesome nature.—Don't you see?" Another stare from the good merchant, and both were silent again.

Finding his book, hitherto resting on his lap, rather irksome there, the owner now places it edgewise on the settee, between himself and neighbor; in so doing, chancing to expose the lettering on the back—"Black Rapids Coal Company"—which the good merchant, scrupulously honorable, had much ado to avoid reading, so directly would it have fallen under his eye, had he not conscientiously averted it. On a sudden, as if just reminded of something, the stranger starts up, and moves away, in his haste leaving his book; which the merchant observing, without delay takes it up, and,

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84 hurrying after, civilly returns it; in which act he could not avoid catching sight by an involuntary glance of part of the lettering.

"Thank you, thank you, my good sir," said the other, receiving the volume, and was resuming his retreat, when the merchant spoke: "Excuse me, but are you not in some way connected with the—the Coal Company I have heard of?"

"There is more than one Coal Company that may be heard of, my good sir," smiled the other, pausing with an expression of painful impatience, disinterestedly mastered.

"But you are connected with one in particular.—The 'Black Rapids,' are you not?"

"How did you find that out?"

"Well, sir, I have heard rather tempting information of your Company." "Who is your informant, pray," somewhat coldly.

"A—a person by the name of Ringman."

"Don't know him. But, doubtless, there are plenty who know our Company, whom our Company does not know; in the same way that one may know an individual, yet be unknown to him.—Known this Ringman long? Old friend, I suppose.—But pardon, I must leave you."

"Stay, sir, that—that stock."

"Stock?"

"Yes, it's a little irregular, perhaps, but—"

"Dear me, you don't think of doing any business with me, do you? In my official capacity I have not

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Rh been authenticated to you. This transfer-book, now," holding it up so as to bring the lettering in sight, "how do you know that it may not be a bogus one? And I, being personally a stranger to you, how can you have confidence in me?"

"Because," knowingly smiled the good merchant, "if you were other than I have confidence that you are, hardly would you challenge distrust that way."

"But you have not examined my book."

"What need to, if already I believe that it is what it is lettered to be?"

"But you had better. It might suggest doubts."

"Doubts, may be, it might suggest, but not knowledge; for how, by examining the book, should I think I knew any more than I now think I do; since, if it be the true book, I think it so already; and since if it be otherwise, then I have never seen the true one, and don't know what that ought to look like."

"Your logic I will not criticize, but your confidence I admire, and earnestly, too, jocose as was the method I took to draw it out. Enough, we will go to yonder table, and if there be any business which, either in my private or official capacity, I can help you do, pray command me."

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transaction concluded, the two still remained seated, falling into familiar conversation, by degrees verging into that confidential sort of sympathetic silence, the last refinement and luxury of unaffected good feeling. A kind of social superstition, to suppose that to be truly friendly one must be saying friendly words all the time, any more than be doing friendly deeds continually. True friendliness, like true religion, being in a sort independent of works. At length, the good merchant, whose eyes were pensively resting upon the gay tables in the distance, broke the spell by saying that, from the spectacle before them, one would little divine what other quarters of the boat might reveal. He cited the case, accidentally encountered but an hour or two previous, of a shrunken old miser, clad in shrunken old moleskin, stretched out, an invalid, on a bare plank in the emigrants' quarters, eagerly clinging to life and lucre, though the one was gasping for outlet, and about the other he was in torment lest death, or some other unprincipled cut-purse, should be the means of his losing it; by like feeble

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Rh tenure holding lungs and pouch, and yet knowing and desiring nothing beyond them; for his mind, never raised above mould, was now all but mouldered away. To such a degree, indeed, that he had no trust in anything, not even in his parchment bonds, which, the better to preserve from the tooth of time, he had packed down and sealed up, like brandy peaches, in a tin case of spirits.

The worthy man proceeded at some length with these dispiriting particulars. Nor would his cheery companion wholly deny that there might be a point of view from which such a case of extreme want of confidence might, to the humane mind, present features not altogether welcome as wine and olives after dinner. Still, he was not without compensatory considerations, and, upon the whole, took his companion to task for evincing what, in a good-natured, round-about way, he hinted to be a somewhat jaundiced sentimentality. Nature, he added, in Shakespeare's words, had meal and bran; and, rightly regarded, the bran in its way was not to be condemned.

The other was not disposed to question the justice of Shakespeare's thought, but would hardly admit the propriety of the application in this instance, much less of the comment. So, after some further temperate discussion of the pitiable miser, finding that they could not entirely harmonize, the merchant cited another case, that of the negro cripple. But his companion suggested whether the alleged hardships of that alleged unfortunate might not exist more in the pity of the

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88 than the experience of the observed. He knew nothing about the cripple, nor had seen him, but ventured to surmise that, could one but get at the real state of his heart, he would be found about as happy as most men, if not, in fact, full as happy as the speaker himself. He added that negroes were by nature a singularly cheerful race; no one ever heard of a native-born African Zimmermann or Torquemada; that even from religion they dismissed all gloom ; in their hilarious rituals they danced, so to speak, and, as it were, cut pigeon-wings. It was improbable, therefore, that a negro, however reduced to his stumps by fortune, could be ever thrown off the legs of a laughing philosophy.

Foiled again, the good merchant would not desist, but ventured still a third case, that of the man with the weed, whose story, as narrated by himself, and confirm ed and filled out by the testimony of a certain man in a gray coat, whom the merchant had afterwards met, he now proceeded to give; and that, without holding back those particulars disclosed by the second informant, but which delicacy had prevented the unfortunate man himself from touching upon.

But as the good merchant could, perhaps, do better justice to the man than the story, we shall venture to tell it in other words than his, though not to any other effect.

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appeared that the unfortunate man had had for a wife one of those natures, anomalously vicious, which would almost tempt a metaphysical lover of our species to doubt whether the human form be, in all cases, conclusive evidence of humanity, whether, sometimes, it may not be a kind of unpledged and indifferent tabernacle, and whether, once for all to crush the saying of Thrasea, (an unaccountable one, considering that he himself was so good a man) that "he who hates vice, hates humanity," it should not, in self-defense, be held for a reasonable maxim, that none but the good are human. Goneril was young, in person lithe and straight, too straight, indeed, for a woman, a complexion naturally rosy, and which would have been charmingly so, but for a certain hardness and bakedness, like that of the glazed colors on stone-ware. Her hair was of a deep, rich chestnut, but worn in close, short curls all round her head. Her Indian figure was not without its impairing effect on her bust, while her mouth would have been pretty but for a trace of moustache. Upon the whole,

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90 aided by the resources of the toilet, her appearance at distance was such, that some might have thought her, if anything, rather beautiful, though of a style of beauty rather peculiar and cactus-like. It was happy for Groneril that her more striking peculiarities were less of the person than of temper and taste. One hardly knows how to reveal, that, while having a natural antipathy to such things as the breast of chicken, or custard, or peach, or grape, Goneril could yet in private make a satisfactory lunch on hard crackers and brawn of ham. She liked lemons, and the only kind of candy she loved were little dried sticks of blue clay, secretly carried in her pocket. Withal she had hard, steady health like a squaw's, with as firm a spirit and resolution. Some other points about her were likewise such as pertain to the women of savage life. Lithe though she was, she loved supineness, but upon occasion could endure like a stoic. She was taciturn, too. From early morning till about three o'clock in the afternoon she would seldom speak—it taking that time to thaw her, by all accounts, into but talking terms with humanity. During the interval she did little but look, and keep looking out of her large, metallic eyes, which her enemies called cold as a cuttle-fish's, but which by her were esteemed gazelle-like; for Goneril was not without vanity. Those who thought they best knew her, often wondered what happiness such a being could take in life, not considering the happiness which is to be had by some natures in the very easy way of simply causing pain to those around them. Those who suffered from

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Farrar v. United States

 * Farrar v. United States (28 U.S. 459), ( 7 L.Ed. 741 ), ( 3 Pet. 459 )
 * Farrar v. United States (30 U.S. 373), ( 8 L.Ed. 159 ), ( 5 Pet. 373 )

title: Farrar v. United States


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Rh Goneril's strange nature, might, with one of those hyberboles to which the resentful incline, have pronounced her some kind of toad; but her worst slanderers could never, with any show of justice, have accused her of being a. In a large sense she possessed the virtue of independence of mind. Goneril held it flattery to hint praise even of the absent, and even if merited; but honesty, to fling people's imputed faults into their faces. This was thought malice, but it certainly was not passion. Passion is human. Like an icicle-dagger, Goneril at once stabbed and froze; so at least they said; and when she saw frankness and innocence tyrannized into sad nervousness under her spell, according to the same authority, inly [sic] she chewed her blue clay, and you could mark that she chuckled. These peculiarities were strange and unpleasing; but another was alleged, one really incomprehensible. In company she had a strange way of touching, as by accident, the arm or hand of comely young men, and seemed to reap a secret delight from it, but whether from the humane satisfaction of having given the evil-touch, as it is called, or whether it was something else in her, not equally wonderful, but quite as deplorable, remained an enigma. Needless to say what distress was the unfortunate man's, when, engaged in conversation with company, he would suddenly perceive his Goneril bestowing her mysterious touches, especially in such cases where the strangeness of the thing seemed to strike upon the touched person, notwithstanding good-breeding forbade his proposing the mystery, on the spot, as a subject of discussion for

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92 the company. In these cases, too, the unfortunate man could never endure so much as to look upon the touched young gentleman afterwards, fearful of the mortification of meeting in his countenance some kind of more or less quizzingly-knowing expression. He would shudderingly shun the young gentleman. So that here, to the husband, Goneril's touch had the dread operation of the heathen taboo. Now Goneril brooked no chiding. So, at favorable times, he, in a wary manner, and not indelicately, would venture in private interviews gently to make distant allusions to this questionable propensity. She divined him. But, in her cold loveless way, said it was witless to be telling one's dreams, especially foolish ones; but if the unfortunate man liked connubially to rejoice his soul with such chimeras, much connubial joy might they give him. All this was sad—a touching case—but all might, perhaps, have been borne by the unfortunate man—conscientiously mindful of his vow—for better or for worse—to love and cherish his dear Goneril so long as kind heaven might spare her to him—but when, after all that had happened, the devil of jealousy entered her, a calm, clayey, cakey devil, for none other could possess her, and the object of that deranged jealousy, her own child, a little girl of seven, her father's consolation and pet; when he saw Goneril artfully torment the little innocent, and then play the maternal hypocrite with it, the unfortunate man's patient long-suffering gave way. Knowing that she would neither confess nor amend, and might, possibly, become even worse than she was, he thought it but duty as a

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Rh father, to withdraw the child from her; but, loving it as he did, he could not do so without accompanying it into domestic exile himself. Which, hard though it was, he did. Whereupon the whole female neighborhood, who till now had little enough admired dame Groneril, broke out in indignation against a husband, who, without assigning a cause, could deliberately abandon the wife of his bosom, and sharpen the sting to her, too, by depriving her of the solace of retaining her offspring. To all this, self-respect, with Christian charity towards Goneril, long kept the unfortunate man dumb. And well had it been had he continued so; for when, driven to desperation, he hinted something of the truth of the case, not a soul would credit it; while for Groneril, she pronounced all he said to be a malicious invention. Ere long, at the suggestion of some woman's-rights women, the injured wife began a suit, and, thanks to able counsel and accommodating testimony, succeeded in such a way, as not only to recover custody of the child, but to get such a settlement awarded upon a separation, as to make penniless the unfortunate man (so he averred), besides, through the legal sympathy she enlisted, effecting a judicial blasting of his private reputation. What made it yet more lamentable was, that the unfortunate man, thinking that, before the court, his wisest plan, as well as the most Christian besides, being, as he deemed, not at variance with the truth of the matter, would be to put forth the plea of the mental derangement of Goneril, which done, he could, with less of mortification to himself, and odium to her, reveal in self-defense those

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94 eccentricities which had led to his retirement from the joys of wedlock, had much ado in the end to prevent this charge of derangement from fatally recoiling upon him self—especially, when, among other things, he alleged her mysterious touchings. In vain did his counsel, striving to make out the derangement to be where, in fact, if anywhere, it was, urge that, to hold otherwise, to hold that such a being as Goneril was sane, this was constructively a libel upon womankind. Libel be it. And all ended by the unfortunate man's subsequently getting wind of Goneril's intention to procure him to be permanently committed for a lunatic. Upon which he fled, and was now an innocent outcast, wandering forlorn in the great valley of the Mississippi, with a weed on his hat for the loss of his Goneril; for he had lately seen by the papers that she was dead, and thought it but proper to comply with the prescribed form of mourning in such cases. For some days past he had been trying to get money enough to return to his child, and was but now started with inadequate funds.

Now all of this, from the beginning, the good merchant could not but consider rather hard for the unfortunate man.

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ago, a grave American savan, being in London, observed at an evening party there, a certain ical fellow, as he thought, an absurd ribbon in his lapel, and full of smart persiflage, whisking about to the admiration of as many as were disposed to admire. Great was the savan's disdain; but, chancing ere long to find himself in a corner with the s, got into conversation with him, when he was somewhat ill-prepared for the good sense of the jackanapes, but was altogether thrown aback, upon subsequently being whispered by a friend that the jackanapes was almost as great a savan as himself, being no less a personage than Sir Humphrey Davy.

The above anecdote is given just here by way of an anticipative reminder to such readers as, from the kind of jaunty levity, or what may have passed for such, hitherto for the most part appearing in the man with the traveling-cap, may have been tempted into a more or less hasty estimate of him; that such readers, when

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96 they find the same person, as they presently will, capable of philosophic and humanitarian discourse—no mere casual sentence or two as heretofore at times, but solidly sustained throughout an almost entire sitting; that they may not, like the American savan, be thereupon betrayed into any surprise incompatible with their own good opinion of their previous penetration.

The merchant's narration being ended, the other would not deny but that it did in some degree affect him. He hoped he was not without proper feeling for the unfortunate man. But he begged to know in what spirit he bore his alleged calamities. Did he despond or have confidence?

The merchant did not, perhaps, take the exact import of the last member of the question; but answered, that, if whether the unfortunate man was becomingly resigned under his affliction or no, was the point, he could say for him that resigned he was, and to an exemplary degree: for not only, so far as known, did he refrain from any one-sided reflections upon human goodness and human justice, but there was observable in him an air of chastened reliance, and at times tempered cheerfulness.

Upon which the other observed, that since the unfortunate man's alleged experience could not be deemed very conciliatory towards a view of human nature better than human nature was, it largely redounded to his fair-mindedness, as well as piety, that under the alleged dissuasives, apparently so, from philanthropy, he had not, in a moment of excitement, been warped over to the ranks of the misanthropes. He doubted not, also,

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text: Portal:Supreme Court of the United States/Taney Court


text:
New Jersey v. New York

 * New Jersey v. New York (28 U.S. 461), (7 L.Ed. 741), (3 Pet. 461)
 * New Jersey v. New York (30 U.S. 284), (8 L.Ed. 127), (5 Pet. 284)
 * New Jersey v. New York (31 U.S. 323)
 * New Jersey v. New York (283 U.S. 336)
 * New Jersey v. New York (283 U.S. 805)
 * New Jersey v. New York (345 U.S. 369)
 * New Jersey v. New York (347 U.S. 995)
 * New Jersey v. New York (523 U.S. 767), (140 L.Ed.2d 993), (118 S.Ct. 1726)

See also New York v. New Jersey

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 12 the risk of his life that the man could get hold of the latch of the house door through the stream of broth. When he got the door open, he ran out and set off down the road, with the stream of herrings and broth at his heels, roaring like a waterfall over the whole farm.

Now, his old dame, who was in the field tossing hay, thought it a long time to dinner, and at last she said—

"Well! though the master doesn't call us home, we may as well go. Maybe he finds it hard work to boil the broth, and will be glad of my help."

The men were willing enough, so they sauntered homewards; but just as they had got a little way up the hill, what should they meet but herrings, and broth, and bread, all running and dashing, and splashing together in a stream, and the master himself running before them for his life, and as he passed them he bawled out,—"Would to heaven each of you had a hundred throats! but take care you're not drowned in the broth."

Away he went, as though the Evil One were at his heels, to his brother's house, and begged him for God's sake to take back the quern that instant; for, said he—

"If it grinds only one hour more, the whole parish will be swallowed up by herrings and broth."

But his brother wouldn't hear of taking it back till the other paid him down three hundred dollars more.

So the poor brother got both the money and the quern, and it wasn't long before he set up a farm-house far finer than the one in which his brother lived, and with the quern he ground so much gold that he covered it with plates of gold; and as the farm lay by the sea-side, the golden house gleamed and glistened far away over the sea.


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 14 THE OLD DAME AND HER HEN

on a time there was an old widow who lived far away from the rest of the world, up under a hill-side, with her three daughters. She was so poor that she had no stock but one single hen, which she prized as the apple of her eye; in short, it was always cackling at her heels, and she was always running to look after it. Well! one day, all at once, the hen was missing. The old wife went out, and round and round the cottage, looking and calling for her hen, but it was gone, and there was no getting it back.

So the woman said to her eldest daughter, "You must just go out and see if you can find our hen, for have it back we must, even if we have to fetch it out of the hill."

Well! the daughter was ready enough to go, so she set off and walked up and down, and looked and called, but no hen could she find. But all at once, just as she was about to give up the hunt, she heard some one calling out in a cleft in the rock—

So she went into the cleft to see what it was, but she had scarce set her foot inside the cleft, before she fell through a trap-door, deep, deep down, into a vault under ground. When she got to the bottom she went through many rooms, each finer than the other; but in the


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 Rh room of all, a great ugly man of the hill-folk came up to her and asked, "Will you be my sweetheart?"

"No! I will not," she said. She wouldn't have him at any price! not she; all she wanted was to get above ground again as fast as ever she could, and to look after her hen which was lost. Then the Man o' the Hill got so angry that he took her up and wrung her head off, and threw both head and trunk down into the cellar.

While this was going on, her mother sat at home waiting and waiting, but no daughter came. So, after she had waited a bit longer, and neither heard nor saw anything of her daughter, she said to her midmost daughter, that she must go out and see after her sister, and she added—

"You can just give our hen a call at the same time."

Well! the second sister had to set off, and the very same thing befell her; she went about looking and calling, and all at once she too heard a voice away in the cleft of the rock saying—

She thought this strange, and went to see what it could be; and so she too fell through the trap-door, deep, deep down, into the vault. There she went from room to room, and in the innermost one the Man o' the Hill came to her and asked if she would be his sweetheart? No! that she wouldn't; all she wanted was to get above ground again, and hunt for her hen which was lost. So the Man o' the Hill got angry, and took her up and wrung her head off, and threw both head and trunk down into the cellar.


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 16 Now, when the old dame had sat and waited seven lengths and seven breadths for her second daughter, and could neither see nor hear anything of her, she said to the youngest—

"Now, you really must set off and see after your sisters. 'Twas silly to lose the hen, but 'twill be sillier still if we lose both your sisters; and you can give the hen a call at the same time"—for the old dame's heart was still set on her hen.

Yes! the youngest was ready enough to go; so she walked up and down, hunting for her sisters and calling the hen, but she could neither see nor hear anything of them. So at last she too came up to the cleft in the rock, and heard how something said

She thought this strange, so she too went to see what it was, and fell through the trap-door too, deep, deep down, into a vault. When she reached the bottom she went from one room to another, each grander than the other; but she wasn't at all afraid, and took good time to look about her. So, as she was peeping into this and that, she cast her eye on the trap-door into the cellar, and looked down it, and what should she see there but her sisters, who lay dead. She had scarce time to slam to the trap-door before the Man o' the Hill came to her and asked—

"Will you be my sweetheart?"

"With all my heart." answered the girl, for she saw very well how it had gone with her sisters. So, when the Man o' the Hill heard that, he got her the finest


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 Rh clothes in the world; she had only to ask for them, or for anything else she had a mind to, and she got what she wanted, so glad was the Man o' the Hill that any one would be his sweetheart.

But when she had been there a little while, she was one day even more doleful and downcast than was her wont. So the Man o' the Hill asked her what was the matter, and why she was in such dumps.

"Ah!" said the girl, "it's because I can't get home to my mother. She's hard pinched, I know, for meat and drink, and has no one with her."

" Well!" said the Man o' the Hill, "I can't let you go to see her; but just stuff some meat and drink into a sack, and I'll carry it to her."

Yes! she would do so, she said, with many thanks; but at the bottom of the sack she stuffed a lot of gold and silver, and afterwards she laid a little food on the top of the gold and silver. Then she told the ogre the sack was ready, but he must be sure not to look into it. So he gave his word he wouldn't, and set off. Now, as the Man o' the Hill walked off, she peeped out after him through a chink in the trap-door; but when he had gone a bit on the way, he said—

"This sack is so heavy, I'll just see what there is inside it."

And so he was about to untie the mouth of the sack, but the girl called out to him—

"The deuce you do!" said the Man o' the Hill;


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 18 "then you must have plaguy sharp eyes in your head, that's all!"

So he threw the sack over his shoulder, and dared not try to look into it again. When he reached the widow's cottage, he threw the sack in through the cottage door, and said—

"Here you have meat and drink from your daughter; she doesn't want for anything."

So, when the girl had been in the hill a good bit longer, one day a billy-goat fell down the trap-door.

"Who sent for you, I should like to know? you long-bearded beast!" said the Man o' the Hill, who was in an awful rage, and with that he whipped up the goat, and wrung his head off, and threw him down into the cellar.

"Oh!" said the girl, "why did you do that? I might have had the goat to play with down here."

"Well!" said the Man o' the Hill, "you needn't be so down in the mouth about it, I should think, for I can soon put life into the billy-goat again."

So saying, he took a flask which hung up against the wall, put the billy-goat's head on his body again, and smeared it with some ointment out of the flask, and he was as well and as lively as ever again.

"Ho! ho!" said the girl to herself; "that flask is worth something—that it is."

So when she had been some time longer in the hill, she watched for a day when the Man o' the Hill was away, took her eldest sister, and putting her head on her shoulders, smeared her with some of the ointment out of the flask, just as she had seen the Man o' the Hill do with the


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 Rh and in a trice her sister came to life again. Then the girl stuffed her into a sack, laid a little food over her, and as soon as the Man o' the Hill came home, she said to him—

"Dear friend! Now do go home to my mother with a morsel of food again; poor thing! she's both hungry and thirsty I'll be bound; and besides that, she's all alone in the world. But you must mind and not look into the sack."

Well! he said he would carry the sack; and he said, too, that he would not look into it; but when he had gone a little way, he thought the sack got awfully heavy; and when he had gone a bit farther he said to himself—

"Come what will, I must see what's inside this sack, for however sharp her eyes may be, she can't see me all this way off."

But just as he was about to untie the sack, the girl who sat inside the sack called out—

"The deuce you do!" said the ogre; "then you must have plaguy sharp eyes;" for he thought all the while it was the girl inside the hill who was speaking. So he didn't care so much as to peep into the sack again, but carried it straight to her mother as fast as he could, and when he got to the cottage door he threw it in through the door, and bawled out—

"Here you have meat and drink from your daughter; she wants for nothing."

Now, when the girl had been in the hill a while longer,


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 20 she did the very same thing with her other sister. She put her head on her shoulders, smeared her with ointment out of the flask, brought her to life, and stuffed her into the sack; but this time she crammed in also as much gold and silver as the sack would hold, and over all laid a very little food.

"Dear friend," she said to the Man o' the Hill, "you really must run home to my mother with a little food again; and mind you don't look into the sack."

Yes! the Man o' the Hill was ready enough to do as she wished, and he gave his word too that he wouldn't look into the sack; but when he had gone a bit of the way he began to think the sack got awfully heavy, and when he had gone a bit further, he could scarce stagger along under it, so he set it down, and was just about to untie the string and look into it, when the girl inside the sack bawled out—

"The deuce you do," said the Man o' the Hill, "then you must have plaguy sharp eyes of your own."

Well, he dared not try to look into the sack, but made all the haste he could, and carried the sack straight to the girl's mother. When he got to the cottage door he threw the sack in through the door, and roared out—

"Here you have food from your daughter; she wants for nothing."

So when the girl had been there a good while longer, the Man o' the Hill made up his mind to go out for the day; then the girl shammed to be sick and sorry, and pouted and fretted.


text:
Talk:The Coming of the Fairies

scan
There is a scan at comingoffairies00doylrich, which also includes the images. I linked the wikipedia article on the topic. cygnis insignis 09:27, 24 September 2010 (UTC)
 * That's it. Sorry for my bad english. We need this text for the "Wikiconcours" on fr Wikipédia, but I don't know the rules of en wikisource, we haven't the same in french. Text is from public domain, first published in 1922 in United States, but not public domain in England, it seems. --Tsaag Valren (talk) 10:59, 24 September 2010 (UTC)

title: Talk:The Coming of the Fairies


text:
User talk:Tsaag Valren

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'''That's OK. Please, post on my user talk page on french wp : w:fr:Discussion utilisateur:Tsaag Valren for any question or other (translations en => fr, etc...). Thanks.''' --Tsaag Valren (talk) 11:01, 24 September 2010 (UTC)

title: User talk:Tsaag Valren