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O'Neil v. Picillo

ELR Citation: 18 ELR 20893
Nos. No. 83-0787P, 682 F. Supp. 706/(D.R.I., 03/08/1988) Ruling on merits

The court holds three of five generator defendants jointly and severally liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for state response costs at a hazardous waste disposal site. The court first holds that it has jurisdiction over nonresident defendants because those defendants have the requisite minimum contacts with Rhode Island. Shipments of hazardous wastes into Rhode Island by transporters were sufficient contacts because the defendants placed their hazardous wastes in a stream of commerce that they should have known could include Rhode Island. The court holds that jurisdiction does not require any additional conduct because Rhode Island's interest in adjudicating this case is compelling. The injury occurred to land within the state, the state has spent money to protect that land, and the state has a strong interest in adjudicating injuries caused by inherently dangerous substances. The defendants also must reasonably anticipate being sued in any state in which their hazardous substances are found, because their industry is nationally regulated. Finally, the state can only obtain convenient and effective relief if it sues all the defendants in one forum.

Turning to the liability issues, the court holds defendant Rohm & Haas Company jointly and severally liable. Although Rohm & Haas took numerous precautions regarding its waste disposal and never consigned any waste to Rhode Island, some of its hazardous waste was nevertheless found at the site. The court holds Exxon Research and Engineering Company not liable because the state failed to prove that the Exxon materials found at the site were hazardous under CERCLA. The court holds American Cyanamid Company jointly and severally liable. Although American Cyanamid took numerous precautions regarding its waste disposal, some of its hazardous waste was nevertheless found at the site. The court holds Olin Corporation not liable because the state failed to prove that the Olin materials found at the site were hazardous under CERCLA. The court holds Hydron Laboratories, Inc., jointly and severally liable. Its hazardous wastes have not contributed to the existing contamination, because most of its barrels are intact and the others have leaked only a few drops through pin holes. However, these barrels still pose a threat of release.

The court next refuses to apportion liability, holding that the injury is indivisible. Although the site cleanup proceeded in four stages, this does not make the underlying injury divisible into four parts. In addition, defendants' liability is not limited to those injuries caused by their own hazardous substances. The harm also cannot be apportioned on a volumetric basis. The wastes at the site have different toxicity and migration potentials, so it is impossible to determine which wastes contributed in what ways to the existing and threatened releases. The court holds that issues of fairness and equitable apportionment of damages may properly be considered in a separate action for contribution. The government's immediate recovery of response costs will further prompt response action.

The court rejects several proffered defenses. It holds that the doctrine of unclean hands does not bar the state from recovering its response costs. Although the state's contractor for the first stage of cleanup may have kept inadequate records and used improper removal methods that caused excess spillage, this does not soil the state's hands enough to bar its action. The court bases this holding both on a balancing of the equities between the parties and on the principle that a plaintiff's mere negligence is insufficient to bar relief on grounds of unclean hands. The court next holds that CERCLA's third-party defense does not apply. The defendants have not proven that a totally unrelated third party was the sole cause of the release; the disposers with whom the defendants contracted may have been responsible. The court next holds that the defendants have not proven that the state's cleanup actions were inconsistent with the National Contingency Plan (NCP). The defendants have not shown that specific state actions were not cost-effective or that those actions resulted in identifiable excess costs. Finally, the court holds that due process allows liability for response costs incurred prior to CERCLA's enactment.

The court next holds that the total liability for past response costs must be reduced by the amount of the state's cash settlements with other parties. However, the court holds that this liability may not be reduced by the value of the settlors' commitments to conduct future remedial actions, because this settlement is irrelevant to past remedial costs. Finally, the court issues a declaratory judgment that the three liable defendants are also jointly and severally liable for all future state response costs not inconsistent with the NCP.

[Related opinions are published at 15 ELR 20426, 16 ELR 20331, and 17 ELR 20629.]

Counsel for Plaintiff
Gary Powers, Ass't Attorney General
72 Pine St., Providence RI 02903
(401) 274-4400

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