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O'Neil v. Picillo

Citation: 20 ELR 20115
No. No. 88-1551, 883 F.2d 176/30 ERC 1137/(1st Cir., 08/21/1989) Aff'd

The court holds that nonsettling hazardous waste generators are jointly and severally liable under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 107 for past cleanup costs not covered by settlement agreements and for future costs. Rhode Island had filed a CERCLA cost recovery action for hazardous waste disposal at a pig farm site in Coventry, Rhode Island. The court first holds that joint and several liability applies and that damages should be apportioned only if the generators can demonstrate that the harm is divisible. The court observes in a footnote that the government need not first show that the generators were substantial contributors. Costs of removal already incurred are not divisible, because the removal costs cannot be apportioned based on number of barrels traced to each defendant or amount of contaminated soil traceable to each generator. Costs of future cleanup must be cost-efficient to be recoverable, and generators can challenge this after the state has completed its planning for remedial action. Finally, the court holds in a footnote that CERCLA may constitutionally apply to pre-enactment costs incurred by the government.

[Prioropinions in this case appear at 15 ELR 20426, 16 ELR 20331, 17 ELR 20629, and 18 ELR 20893. A related opinion appears at 16 ELR 20262.]

Counsel for Appellants
Deming E. Sherman, Mark A. Pogue
Edwards & Angell
2700 Hospital Trust Tower, Providence RI 02903
(401) 274-9200

Counsel for Appellees
James E. O'Neil, Attorney General; Gary Powers, Special Ass't Attorney General
72 Pine St., Providence RI 02903
(401) 274-4400

William G. Ballaine, Maria J. Litman
Siff, Rosen & Parker
233 Broadway, New York NY 10279
(212) 238-8400

Before CAMPBELL, Chief Judge, COFFIN, Senior Circuit Judge, and FUSTE,* District Judge.