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Violet v. Picillo

Citation: 17 ELR 20629
No. No. 83-0787P, 648 F. Supp. 1283/25 ERC 1319/(D.R.I., 11/20/1986) Motions for partial summary judgment denied

The court rules that a generator need not have chosen the site at which its wastes were disposed to be subject to strict liability under § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), a waste removal company's unauthorized diversion of a generator's waste to the site is not a valid defense under § 107(b), and defendants may assert equitable defenses. The court first declines to impose liability on a generator defendant on motions for summary judgment since factual questions remain concerning the contents of drums found at the Picillo farm site in Rhode Island. The court next sets out the CERCLA liability standards it will apply. The court rules that generators are subject to strict liability under CERCLA § 107. The generator need not have chosen the site where the wastes were disposed, nor must the plaintiff prove that the generator's waste actually caused the harm at the site. CERCLA requires only that plaintiff show that the defendant deposited its hazardous waste at the site and that the hazardous substances contained in the defendant's waste are also found at the site. The court holds that the unauthorized diversion of the generator's waste to the site does not qualify as a third-party defense under § 107(b). Moreover, the generator's argument that the diversion constituted a superseding, intervening cause is a defense to proximate causation, which does not apply to CERCLA. The court rules that equitable defenses may be asserted to § 107 liability, but laches may not be asserted against a governmental plaintiff.

[Earlier opinions in this action are published at 15 ELR 20426 and 16 ELR 20331.]

Counsel for Plaintiff
Susan B. Squires
Office of the Attorney General
72 Pine St., Providence RI 02903
(401) 274-4400

Counsel for Defendants
John F. Dolan
Rice, Dolan & Kershaw
Suite 3-A, 101 Dyer St., Providence RI 02903
(401) 272-8800

James Russell
Baker & Hostetler
13th Fl., Barnett Plaza, P.O. Box 112, Orlando FL 32802
(305) 841-1111

John F. Bomster
Adler, Pollack & Sheehan
One Hospital Trust Plaza, Providence RI 02903
(401) 274-7200

Alden C. Harrington
Boyajian, Coleman & Harrington
182 Waterman St., Providence RI 02906
(401) 273-9600