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Acushnet Co. v. Coaters, Inc.

Citation: 28 ELR 20367
No. 93-11219-REK, 972 F. Supp. 41/(D. Mass., 07/30/1997)

The court holds that a nonsettling potentially responsible party (PRP) must pay a portion of past and future remediation costs incurred by settling PRPs at the Sullivan's Ledge site in New Bedford, Massachusetts. Relying on the jury's findings, the court first holds that the nonsettling party must pay 7 percent of the remediation costs incurred and paid by the settling parties in connection with the area known as operable unit (OU) No. 1. The jury's findings concerning cause in fact among multiple contributors of hazardous waste were supported by the jury instructions and by the evidence. In addition, the jury's conclusion with respect to the allocation of remediation costs was well supported by the evidence. Because the jury found that there was no preponderance of the evidence, it was required to estimate how shares were to be allocated. Acting as a finder of fact to avoid leaving the matter unresolved, the court agrees with the jury's findings that there is no preponderance of the evidence with respect to the allocation of remediation costs. The court next holds that with respect to future remediation costs incurred by the settling parties at OU No. 1, the non-settling party is legally responsible for 7 percent of the remediation costs, unless this percentage determination is modified by later order of this or a higher court. Statutory mandates and analogies in precedent lead the court to conclude that the rulings reflected in the verdict form and charge in this case were appropriate, and that the verdict was sensible, fair, and supported by the evidence. The court also concludes that the judgment should be in a form consistent with the concept of awarding compensation provisionally and with reasonable opportunity for any interested party to initiate later proceedings to modify the provisional allocation of equitable shares of legal responsibility for future remediation costs for good cause shown on the basis of evidence not now accessible.

The court then holds that the nonsettling party's deposits of waste materials containing polychlorinated biphenyls (PCBs) in OU No. 1 were a cause in fact of the presenceof PCBs in OU No. 2, and were a substantial factor in producing a need for remediation at OU No. 2. The court also holds that the deposit of waste materials containing PCBs at OU No. 1 by two groups of corporate entities separate from the settling and nonsettling parties were a cause in fact of the presence of PCBs at OU No. 2, and were a substantial factor in producing a need for remediation at OU No. 2. The court next rejects the settling parties' assertion that the trial court should allocate shares of responsibility among the settling parties, with respect to past and future remediation costs at OUs No. 1 and No. 2. The settling parties voluntarily chose to join together in bringing this civil action against the nonsettling party and other defendants. In view of their choice for common representation, the court finds that the attorneys they have chosen are disabled from arguing for any judicial allocation of shares among settling parties themselves; the attorneys would inevitably be preferring one client's interest over another client's interest in attempting to do so. Further, the settlements reached among various groups of interested persons and entities, not including the nonsettling party, make it both inappropriate and unnecessary for the court to adjudicate any of the disputes of law and fact between the settling parties. The issues resolved by the settlement are no longer genuine cases or controversies.

The court next holds that the nonsettling party is legally responsible for 15 percent of past and future remediation costs incurred by the settling parties at OU No. 2. Weighing all the relevant factors identified in orally stated findings and conclusions, the court finds that the nonsettling party's share of OU No. 2 remediation costs should be more than a magnitude higher than its share of OU No. 1 remediation costs. The court also holds that the nonsettling party cannot challenge the U.S. Environmental Protection Agency's (EPA's) remediation plan for OU No. 2 as being arbitrary and capricious. EPA is not a party. The fact that the nonsettling party is a party, and would have a right to intervene if it were not, does not make EPA a party to this civil action. Nevertheless, the court finds that EPA's remediation plan is consistent with the national contingency plan and that its decision was not arbitrary and capricious. Last, the court rejects the nonsettling party's contention that additional comment periods should have been required.

[Decisions related to this litigation are published at 27 ELR 20311 and 20652.]

Counsel for Plaintiffs
Stephen J. Brake
Nutter, McClennen & Fish
One International Pl., Boston MA 02110
(617) 439-2000

Counsel for Defendants
Arthur J. Caron Jr., City Solicitor
City Solicitor's Office
Government Center
119 School St., Waltham MA 02154
(617) 893-4040