O'Neil v. Picillo
30 ERC (BNA) 1137, 20 Envtl. L. Rep. (Envtl. Law Inst.) 20115, 883 F.2d 176 (1989)
Rule of Law:
Under CERCLA, joint and several liability is imposed on parties responsible for hazardous waste cleanup unless the defendant can demonstrate, with the burden of proof resting on them, that the environmental harm is divisible and that there is a reasonable basis for apportioning damages.
Facts:
- In July 1977, the Picillos agreed to allow part of their pig farm in Coventry, Rhode Island, to be used as a disposal site for drummed and bulk waste.
- Thousands of barrels of hazardous waste were dumped on the farm, culminating later that year in a monstrous fire ripping through the site.
- In 1979, the State of Rhode Island and the Environmental Protection Agency (EPA) jointly undertook to clean up the area, finding massive trenches and pits "filled with free-flowing, multi-colored, pungent liquid wastes" and thousands of "dented and corroded drums containing a veritable potpourri of toxic fluids."
- American Cyanamid and Rohm and Haas were identified as "generators" whose waste made its way to the Picillo site.
- Out of approximately 10,000 barrels excavated during the cleanup, only "three to four hundred of the drums contained markings which could potentially be traced" due to the fire, exposure to elements, and leakage.
- John Leo, an engineer overseeing the cleanup, testified that only 10 barrels of waste could be positively attributed to American Cyanamid and 49 drums and 303 five-gallon pails to Rohm and Haas.
- Rohm and Haas's laboratory generated over two thousand drums of waste during the relevant years, all of which were consigned to a single transporter.
Procedural Posture:
- The State of Rhode Island filed a complaint in the District Court for the District of Rhode Island, naming thirty-five defendants to recover clean-up costs under CERCLA.
- All but five defendants entered into settlements totaling $5.8 million, to be shared by the state and EPA.
- A month-long bench trial was held in the District Court for the District of Rhode Island for the remaining five defendants.
- The district court found three of the remaining five companies (American Cyanamid, Rohm and Haas, and one other) jointly and severally liable under CERCLA for past clean-up costs not covered by settlements, and for all future costs.
- The district court entered judgments in favor of the other two defendants, concluding that the state had failed to prove their waste was "hazardous."
- American Cyanamid and Rohm and Haas appealed the district court's judgment to the United States Court of Appeals for the First Circuit, arguing against joint and several liability and other issues.
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Issue:
Does CERCLA impose joint and several liability on waste generators for cleanup costs when the environmental harm at a disposal site, though caused by multiple parties, cannot be reasonably apportioned among them, even if a defendant's positively identified waste volume is small?
Opinions:
Majority - Coffin, Senior Circuit Judge
Yes, CERCLA imposes joint and several liability on waste generators for cleanup costs when the environmental harm at a disposal site cannot be reasonably apportioned, and the defendant bears the burden of proving divisibility. The court adopted the Restatement (Second) of Torts approach, which dictates that damages should be apportioned only if the defendant can demonstrate the harm is divisible. This principle leads to frequent imposition of joint and several liability because it is often impossible to determine each party's precise contribution when wastes of varying toxicity and migratory potential commingle. Congress, in enacting the Superfund Amendments and Reauthorization Act of 1986 (SARA), endorsed this case-by-case divisibility rule, while adding provisions for de minimis settlements and contribution actions to mitigate its harshness, not to alter the initial liability standard. Appellants American Cyanamid and Rohm and Haas failed to meet their burden of proving the harm was divisible. While they argued that past removal costs could be apportioned based on the small number of barrels positively traced to them, the court found this argument insufficient. The court noted that only a small fraction of the 10,000 excavated barrels could be identified, and that the appellants, not the government, bore the burden of accounting for this uncertainty. The court clarified that the identified barrels did not necessarily represent the entirety of appellants' contributions. Given that Rohm and Haas had entrusted over two thousand drums of waste to a single, unreliable transporter, the court could not conclude that only a handful reached the site. The court affirmed the district court's holding of joint and several liability for both past and future cleanup costs, allowing for future challenges to the necessity and cost-efficiency of remedial measures. The court declined to rule on the EPA's "averted harm" theory, which would consider the indivisible harm that would have occurred if not cleaned up, because the appellants had not even met the threshold burden of showing that the costs actually incurred by the state were capable of apportionment.
Analysis:
This case significantly clarifies the application of joint and several liability under CERCLA, firmly placing the burden of proving divisibility of harm on the defendant. The practical consequence is that it is exceedingly difficult for defendants to escape joint and several liability in situations where hazardous wastes from multiple sources have commingled, thereby preventing a precise determination of individual contribution. This approach reflects Congress's intent to prioritize prompt and effective environmental remediation by ensuring that cleanup efforts are not stalled by complex evidentiary burdens on the government. The decision encourages potentially responsible parties to engage in early settlements or pursue contribution actions among themselves to reallocate costs, rather than attempting to avoid initial liability to the government, thus streamlining the cleanup process for polluted sites.
