Acushnet Co. v. Mohasco Corp.

United States Court of Appeals
For the First Circuit

No. 97-2138

ACUSHNET COMPANY, AMTEL INCORPORATED, AVX CORPORATION,
BERKSHIRE HATHAWAY INC., BRIDGESTONE/FIRESTONE, INC.,
CHAMBERLAIN MANUFACTURING CORP.,
COMMONWEALTH ELECTRICAL COMPANY, COMMONWEALTH GAS COMPANY,
EMHART INDUSTRIES, INC., GOODYEAR TIRE & RUBBER CO.,
PARAMOUNT COMMUNICATIONS INCORPORATED,
TELEDYNE RODNEY METALS A DIVISION OF TELEDYNE INDUSTRIES
INCORPORATED, AND UNITED DOMINION INDUSTRIES, INC.,

Plaintiffs, Appellants,

v.

MOHASCO CORPORATION, MONOGRAM INDUSTRIES INC. D/B/A
AMERICAN FLEXIBLE CONDUIT, NEW ENGLAND TELEPHONE &
TELEGRAPH COMPANY, NORTEK, INC., AND OTTAWAY NEWSPAPERS, INC.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Bownes and Cyr, Senior Circuit Judges,

and O'Toole*, District Judge.

Stephen J. Brake, with whom David L. Ferrera and Nutter,
McClennen & Fish, LLP were on brief, for appellants.

Gerald J. Petros, with whom Charles D. Blackman and Hinckley,
Allen & Snyder were on brief, for Monogram Industries and Nortek,
Inc., d/b/a American Flexible Conduit, appellees.

George W. House, with whom V. Randall Tinsley and Brooks,
Pierce, McLendon, Humphrey & Leonard, L.L.P. were on brief, for
Mohasco Corporation, appellee.

Deming E. Sherman, with whom Edwards & Angell, LLP, were on
brief, for Ottaway Newspapers, Inc., appellee.

Seth D. Jaffe, with whom Robert S. Sanoff, Jeffrey L. Roelofs,
and Foley, Hoag & Eliot, LLP were on brief, for New England
Telephone & Telegraph Company, appellee.

September 15, 1999

*Of the District of Massachusetts, sitting by designation. BOWNES, Senior Circuit Judge. This appeal stems from the
contamination and subsequent clean up of an area popularly known as
Sullivan's Ledge, located in New Bedford, Massachusetts.
Plaintiffs-appellants, collectively known as the Sullivan's Ledge
Group, are thirteen corporations which received notices from the
U.S. Environmental Protection Agency ("EPA") advising that the
government considered them responsible for the pollution of
Sullivan's Ledge under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 ("CERCLA"). In the early
1990's, the group entered into consent decrees with EPA in which it
agreed to perform remediation at the site.
Invoking 9613(f) of CERCLA, the Sullivan's Ledge Group
thereafter filed the present action in federal court seeking
contribution from several parties not targeted by the EPA,
including defendants-appellees: Mohasco Corporation; Monogram
Industries Inc. and Nortek Inc., doing business as American
Flexible Coduit ("AFC"); New England Telephone & Telegraph Company
("NETT"); and Ottaway Newspapers, Inc.
The district court dismissed these contribution claims,
granting NETT's motion for summary judgment before trial, and
entering judgment as a matter of law for Mohasco, AFC, and Ottaway
at the close of plaintiffs' case-in-chief. We affirm, but on
somewhat different grounds than the district court. As we
understand it, the district court ruled principally that the
defendants deposited so little waste at the site that it could not
reasonably be said that they caused plaintiffs to incur response
costs. To the extent that the court's ruling may be interpreted to
incorporate into CERCLA a causation standard that would require a
polluter's waste to meet a minimum quantitative threshold, we
disagree. Nevertheless, we conclude that the record was
insufficient to permit a meaningful equitable allocation of
remediation costs against any of these defendants under 9613(f).
I.
Once a pristine and picturesque area well-suited for
swimming, hiking, and impromptu gatherings by local residents, over
the years Sullivan's Ledge became little more than an industrial
dumping ground for scrap rubber, waste oils, gas, combustion ash,
and old telephone poles. Sullivan's Ledge was the source of smoke
dense enough periodically to obscure the visibility of drivers on
nearby roads; residents in the surrounding region commonly blamed
the pollution for diminished air quality. The sludge became so
toxic, the refuse so thick, and the stench so overwhelming, that
city officials closed down the area in the 1970's.
Eventually, the EPA identified a number of business
entities, or their successors-in-interest, which it believed were
legally responsible for the decades-long pollution at the site. In
1991 and 1992, after lengthy negotiations, members of the
Sullivan's Ledge Group entered into two separate consent decrees
with the United States. The decrees required them to implement a
remediation plan and, to some extent, shoulder the costs of
restoring the contaminated site to its non-hazardous state, without
foreclosing their right to seek contribution from any other
responsible parties. They duly commenced clean up efforts in
compliance with the consent decrees, and, in turn, brought this
contribution action to recover some portion of the realized and
anticipated costs.
Plaintiffs accused NETT of dumping the butts of old
telephone poles that had been treated with liquid creosote chock-
full of Polycyclic Aromatic Hydrocarbons ("PAHs"). They alleged
that Nortek and Monogram d/b/a AFC, a manufacturer of conduit and
lead-based cable, generated and discarded scrap cable containing
lead, copper, and zinc. According to the complaint, New Bedford
Rayon, the predecessor-in-interest to Mohasco, deposited waste from
the manufacture of rayon filament thread containing, inter alia,
sodium hydroxide, copper, and sulfuric acid. In rounding out the
cast of defendants, plaintiffs alleged that The New Bedford
Standard Times, the predecessor to Ottaway, generated and disposed
of ink sludge bursting with sulfuric acid, nitric acids, and
various metals.
In due course, NETT moved for summary judgment. Although
NETT conceded for purposes of the motion that it had discarded
utility pole butts containing PAHs at the site, NETT argued that
its waste added so few PAHs to the mix compared to the overall
quantity of PAHs found at Sullivan's Ledge that NETT could not
fairly be said to have contributed to the environmental harm or
"caused" any of the remediation expenses.
The district court granted the motion during a hearing on
June 11, 1996, (followed by a more extensive opinion issued
July 24), ruling that NETT had proffered "uncontradicted expert
testimony asserting that NETT did not cause, and, in fact, could
not have caused the plaintiffs to incur any 'response costs.'"
Acushnet Co. v. Coaters Inc., 937 F. Supp. 988, 992 (D. Mass. 1996)
("Acushnet I"). Specifically, the district court stated that this
scientific evidence showed that the creosote-treated pole butts
could not have leached PAHs into the soil in an amount greater than
pre-existing background PAH levels and that other sources provided
the overwhelming proportion of PAH found at Sullivan's Ledge.
Because, according to the court, plaintiffs failed to adduce any
evidence directly challenging this expert testimony, the court
found no triable issue of fact as to causation and entered summary
judgment in favor of NETT.
The remaining defendants proceeded to trial. Upon the
completion of plaintiffs' case-in-chief, the district court
entertained dispositive motions. Mohasco, AFC, and Ottaway moved
for judgment as a matter of law, arguing in substance that the
environmental harm at Sullivan's Ledge was divisible and that the
evidence was insufficient to permit a finding that the material the
defendants dumped at the site caused any response costs. Ottaway
also argued that plaintiffs had failed to establish that its wastes
had actually been transported to Sullivan's Ledge.
Ruling from the bench on December 2, 1996, the court
determined that, viewed in the light most favorable to plaintiffs,
the case against each of the three defendants suffered "primarily
from insufficiency of the evidence." It found that "the evidence
the plaintiffs proferred against these three defendants . . . is so
dramatically below any conceivable appropriate formulation of the
[applicable legal] standard, that the outcome of judgment for these
defendants at this time is clear without resolving just where those
guidelines will ultimately leave the formulation."
The court explained that, at most, plaintiffs had
succeeded in showing that two cubic yards of solid cable waste was
attributable to AFC, comprising no more than a fraction of the lead
and zinc found at Sullivan's Ledge:
Looking at AFC as perhaps plaintiffs' best
shot among the three, . . . at best, . . . a
jury could not find that on an equitable
basis, consistent with the Gore factors and
with preceden[ts] interpreting the statute,
AFC would not be responsible for more than one
in 500,000th -- one in 500,000 share, and that
that would translate . . . into one hundred
dollars. That demonstrates that we're so far
below anything that could be classified as an
equitable standard of determining shares of
legal accountability, that anybody that low,
any entity that low, ought to be kept out
. . . .

For this reason, it concluded that the evidence at trial against
AFC "fails every version one might conceive of an 'equitable
factors' test." Acushnet Co. v. Coaters, Inc., 948 F. Supp. 128,
139 (D. Mass. 1996) ("Acushnet II").
As for Mohasco, the court found plaintiffs' evidence
against Mohasco even weaker than that against AFC. Not only was
Mohasco's apparent share of the hazardous waste far smaller than
plaintiffs' contribution, plaintiffs' own witnesses conceded that
the types of hazardous substances attributable to Mohasco would not
"persist in the environment," and "would not have even reached the
site because of chemical reactions with other materials." Id.
In dismissing Ottaway from the litigation, the court said
little other than that the case against Ottaway was "obviously
weaker than plaintiffs' case against . . . either of these [other]
two defendants."
Lest there be any doubt, the trial judge reiterated that
the Sullivan's Ledge Group's claims against these three defendants
failed "on two independent grounds": first, the evidence was
insufficient to bring AFC, Mohasco, and Ottaway within the group
for which "the calculus of appropriate proportional shares" of
liability for response costs could be made "and, secondly, on
grounds of a lack of showing of causal connection with respect to
remediation costs." See also Acushnet II, 948 F. Supp. at 139.
The district court entered judgment accordingly.
Plaintiffs now appeal from each of the court's rulings.
II.
CERCLA, as we have said on other occasions, sketches the
contours of a strict liability regime. See, e.g., Millipore Corp.
v. Travelers Indem. Corp., 115 F.3d 21, 24 (1st Cir. 1997). Broad
categories of persons are swept within its ambit, including the
current owner and operator of a vessel or facility; the owner or
operator of a facility at the time hazardous waste was disposed of;
any person who arranged for the transportation of hazardous
substances for disposal or treatment; and anyone who accepted
hazardous waste for transportation. See 42 U.S.C. 9607(a)(1)-
(4). There are a few affirmative defenses available, see
9607(b), but they are generally difficult to satisfy (they
include showing that the release or threat of release was caused
solely by an act of God or an act of war). By and large, a person
who falls within one of the four categories defined in 9607(a) is
exposed to CERCLA liability.
While CERCLA casts the widest possible net over
responsible parties, there are some limits to its reach. The
courts of appeals have generally recognized that "although joint
and several liability is commonly imposed in CERCLA cases, it is
not mandatory in all such cases." In re Bell Petroleum Servs.,
Inc., 3 F.3d 889, 895 (5th Cir. 1993) (discussing import of
deletion of joint and several liability language from final version
of bill); see United States v. Alcan Aluminum Corp., 964 F.2d 252,
268 (3d Cir. 1992) ("Alcan I").
In O'Neil v. Picillo, 883 F.2d 176 (1st Cir. 1989), we
embraced the Restatement (Second) of Torts approach in construing
the statute, stating that a defendant may avoid joint and several
liability if the defendant demonstrates that the harm is divisible.
In that event, damages should be apportioned according to the harm
to the environment caused by that particular tortfeasor. Id. at
178-79; accord Dent v. Beazer Materials and Servs., 156 F.3d 523,
529 (4th Cir. 1998); United States v. Township of Brighton, 153
F.3d 307, 317-18 (6th Cir. 1998); United States v. Alcan Aluminum
Corp., 990 F.2d 711, 722 (2d Cir. 1993) ("Alcan II"); Alcan I, 964
F.2d at 268-70. See generally Restatement (Second) of Torts 433A
(1965).
A responsible party, in turn, may bring an action for
contribution under 9613(f) to recover a portion of costs from
"any other person who is liable or potentially liable under
9607(a)." The standard for contribution liability is the same as
that under 9607(a), see Prisco v. A&D Carting Corp., 168 F.3d
593, 603 (2d Cir. 1999), but in resolving contribution claims, a
court may, in its discretion, "allocate response costs among liable
parties using such equitable factors as the court determines are
appropriate." 9613(f)(1).
A plaintiff seeking contribution must prove that:
1. The defendant must fall within one of four
categories of covered persons. 42 U.S.C.
9607(a).

2. There must have been a "release or
threatened release" of a hazardous substance
from defendant's facility. 42 U.S.C.
9607(a)(4); 9601(14), (22).

3. The release or threatened release must
"cause[] the incurrence of response costs" by
the plaintiff. 42 U.S.C. 9607(a)(4).

4. The plaintiff's costs must be "necessary
costs of response . . . consistent with the
national contingency plan." 42 U.S.C.
9607(a)(4)(B); 9601(23)-(25).

Dedham Water Co. v. Cumberland Farms Dairy, 889 F.2d 1146, 1150
(1st Cir. 1989) ("Dedham I").
Generators whose waste has been deposited in the facility
from which there has been a release are presumptively responsible
for the response costs, subject to the opportunity to prove
(i) that the harm was solely caused by someone (or something) else
(see 9607(b)) or (ii) that the harm they caused is divisible (see
O'Neil, 883 F.2d at 179), and subject further to the equitable
allocation of relative shares of responsibility in an action for
contribution (see 9613(f)(1)).
The parties do not dispute that Sullivan's Ledge is a
"facility" or that each of the defendants was a responsible person
within the meaning of 9607(a). Instead, they hotly contest the
correct legal standard by which one could be said to have "caused"
plaintiffs to incur remediation expenditures, and whether the
record was adequate to allow any meaningful award of response
costs.
III.
The Sullivan's Ledge Group mounts a three-fold attack on
the district court's reasoning in resolving the respective motions.
Its arguments on appeal are broad-brushed in nature, focusing
almost entirely on the legal meaning of "causation" and CERCLA's
underlying policy goals. First, plaintiffs insist that reading any
causal element into CERCLA is inconsistent with the principle of
strict liability. Second, they contend that doing so would run
counter to the remedial purpose of CERCLA because, among other
things, it will let smaller polluters off the hook and discourage
responsible parties from entering into consent agreements with the
government. Third, to the extent the district court may have
considered equitable factors in ruling in favor of Mohasco,
Ottaway, and AFC, plaintiffs claim that the court did so without
providing a "full and fair allocation trial" within the meaning of
section 9613(f).
Defendants-appellees, for their part, contend that it
makes sense to say that a de minimis polluter has not caused a
responsible party to incur clean up costs; and that, in all events,
plaintiffs' contribution claims against them founder for a more
fundamental reason: the record did not permit a finding that each
should bear a meaningful share of the costs associated with
restoring Sullivan's Ledge. In their view, these fatal weaknesses
in the plaintiffs' case justified judgment as a matter of law in
their favor.
Each of the defendants stands on slightly different
terrain, having been dismissed from the action at various stages in
the proceedings. We therefore proceed to analyze plaintiffs'
arguments within the context of addressing the trial court's
disposition of the claims lodged against each defendant.
We affirm the district court's handling of NETT's summary
judgment motion, albeit based on a slightly different rationale than
the court's own. Although the court initially framed it in terms
of causation (erroneously, we believe), a finding of no liability
on the part of NETT is nevertheless justified under the principle
of equitable allocation under 9613(f).
We have strong reservations about interpreting the
statute's causation element to require that a defendant be
responsible for a minimum quantity of hazardous waste before
liability may be imposed. The text of the statute does not support
such a construction -- CERCLA itself does not expressly distinguish
between releases (or threats of releases) by the quantity of
hazardous waste attributable to a particular party. At least on its
face, any reasonable danger of release, however insignificant, would
seem to give rise to liability. On this point, the courts of
appeals are in unison. See, e.g., A&W Smelter and Refiners, Inc.
v. Clinton, 146 F.3d 1107, 1110 (9th Cir. 1998); Alcan II, 990 F.2d
at 720; Alcan I, 964 F.2d at 260-63; Amoco Oil Co. v. Borden, Inc.,
889 F.2d 664, 669 (5th Cir. 1990); see also 42 U.S.C. 9601(14)
(defining "hazardous substance" without mentioning minimum levels);
9607(a) (employing broad "any person" language).
To read a quantitative threshold into the language "causes
the incurrence of response costs" would cast the plaintiff in the
impossible role of tracing chemical waste to particular sources in
particular amounts, a task that is often technologically infeasible
due to the fluctuating quantity and varied nature of the pollution
at a site over the course of many years.
Moreover, it would be extremely difficult, if not
impossible, to articulate a workable numerical threshold in defining
causation. How low would a polluter's contribution to the mix have
to be before a judge could find, with equanimity, that the polluter
was not a but-for "cause" of the clean up efforts? Less than 0.5%
or 1%? We do not see how such a line, based on the quantity or
concentration of the hazardous substance at issue, can be drawn on
a principled basis in defining causation. To even begin down that
path, we feel, is to invite endless confusion.
Our own decisions provide no basis for such an approach.
There is only one case in which we held that clean up efforts were
not carried out because of a defendant's dumping: where a water
treatment plant had been designed well before its planners acquired
knowledge that the defendant might have released hazardous waste
into the environment. We found that, to the extent that the
plaintiff incurred costs in connection with the planning and design
of the treatment facility before it became aware of possible
pollution by the defendant, it had not responded to any threatened
future releases, but had only spent money to address the actual
contamination of the site. Accordingly, we held in Dedham II that
such expenditures were not "caused" by a threatened release from the
defendant's facility. See 972 F.2d at 460-61.
That, however, is the only situation in which we have
found an insufficient causal nexus between a defendant and the
remediation expenditures. And we have never discussed CERCLA
causation in quantitative terms. To satisfy the causal element, it
is usually enough to show that a defendant was a responsible party
within the meaning of 9607(a); that clean up efforts were undertaken
because of the presence of one or more hazardous substances
identified in CERCLA; and that reasonable costs were expended during
the operation. To the extent that the district court held that
some minimal quantity of hazardous waste must be involved before a
defendant may be held to have "caused" the expenditure of response
costs, it was mistaken. See O'Neil, 883 F.2d at 179 n.4 (expressly
rejecting, in a related context, the argument that one must
demonstrate that defendant was a "substantial" cause of the
contamination before CERCLA liability attaches).
This does not mean, however, that the de minimis polluter
must necessarily be held liable for all response costs. The
approach taken by the Second Circuit is instructive. In Alcan II,
990 F.2d 711 (2d Cir. 1993), the Second Circuit reaffirmed the
Restatement (Second) of Torts approach to fleshing out the scope of
CERCLA liability, holding that where environmental harms are
divisible, a defendant may be held responsible only for his
proportional share of the response costs. In extending the
principle a half-step, the Second Circuit went on to say that:
[A defendant] may escape any liability for
response costs if it either succeeds in proving
that its [waste], when mixed with other
hazardous wastes, did not contribute to the
release and cleanup costs that followed, or
contributed at most to only a divisible portion
of the harm.

Id. at 722. The court emphasized that this particular defense was
limited to situations where a defendant's "pollutants did not
contribute more than background contamination and also cannot
concentrate." Id. It acknowledged that causation was, in some
sense, "being brought back into the case through the backdoor,
after being denied entry at the frontdoor at the apportionment
stage." Id. Nevertheless, the court concluded that a defendant who
successfully meets its burden can "avoid liability or contribution."
Id. at 725. The Alcan II panel took great pains to leave questions
of liability, including the divisibility of environmental harm, and
equitable apportionment of clean up expenses, to the sound
discretion of the trial judge to be handled in the manner and order
he or she deems best. Id. at 723. We think the Second Circuit had
it right.
We therefore hold that a defendant may avoid joint and
several liability for response costs in a contribution action under
9613(f) if it demonstrates that its share of hazardous waste
deposited at the site constitutes no more than background amounts
of such substances in the environment and cannot concentrate with
other wastes to produce higher amounts. This rule is not based on
CERCLA's causation requirement, but is logically derived from
9613(f)'s express authorization that a court take equity into
account when fixing each defendant's fair share of response costs.
We caution, however, that not every de minimis polluter will elude
liability in this way. As always, an equitable determination must
be justified by the record.
There are several reasons why, after all is said and done,
an otherwise responsible party may be liable for only a fraction of
the total response costs or escape liability altogether. In the
first place, 9613(f) expressly contemplates that courts will take
equity into account in resolving contribution claims. We have in
the past suggested that while a defendant in a direct EPA
enforcement action invoking the divisibility of harm defense bears
an "especially heavy burden," a defendant in a contribution
proceeding seeking to limit his liability has a "less demanding
burden of proof" by virtue of the equitable considerations that come
immediately into play. In re Hemingway Transp., Inc., 993 F.2d 915,
921 n.4 (1st Cir. 1993); see also O'Neil, 883 F.2d at 183 (stating
that a defendant's burden is "reduced" in a contribution action).
A court, in evaluating contribution claims under 9613(f), is "free
to allocate responsibility according to any combination of equitable
factors it deems appropriate." O'Neil, 883 F.2d at 183. Accord FMC
Corp. v. Aero Indus., Inc., 998 F.2d 842, 846-47 (10th Cir. 1993);
Environmental Transp. Sys., Inc. v. ENSCO, Inc., 969 F.2d 503, 509
(7th Cir. 1992). In an appropriate set of circumstances, a
tortfeasor's fair share of the response costs may even be zero. See
PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 616 (7th Cir. 1998)
(a party's "spills may have been too inconsequential to affect the
cost of cleaning up significantly, and in that event a zero
allocation would be appropriate") (Posner, J.), cert. denied, 119
S. Ct. 871 (1999); O'Neil, 883 F.2d at 183 (same).
In the second place, there is nothing to suggest that
Congress intended to impose far-reaching liability on every party
who is responsible for only trace levels of waste. Several courts,
albeit taking different paths to a similar result, have rejected the
notion that CERCLA liability "attaches upon release of any quantity
of a hazardous substance." Licciardi v. Murphy Oil USA, 111 F.3d
396, 398 (5th Cir. 1997) (quoting Amoco Oil, 889 F.2d at 670)
(emphasis in original; see e.g., PMC, 151 F.3d at 616; Gopher Oil
Co. v. Union Oil Co. of Cal., 955 F.2d 519, 527 (8th Cir. 1992).
Third, allowing a CERCLA defendant to prevail on issues
of fair apportionment, even at the summary judgment stage, is
consistent with Congress's intent that joint and several liability
not be imposed mechanically in all cases. Permitting a result that
is tantamount to a no-liability finding is in keeping with the
legislative goal that clean up efforts begin in a speedy fashion and
that litigation over the details of actual responsibility follow.
In fact, to require an inconsequential polluter to litigate until
the bitter end, we believe, would run counter to Congress's mandate
that CERCLA actions be resolved as fairly and efficiently as
possible. On the whole, the costs and inherent unfairness in
saddling a party who has contributed only trace amounts of hazardous
waste with joint and several liability for all costs incurred
outweigh the public interest in requiring full contribution from de
minimis polluters.
Plaintiffs complain that any consideration of causation
is at odds with CERCLA's objectives and would discourage responsible
parties from entering into consent decrees. Because we ground the
quantum inquiry solidly in 9613(f), we are satisfied their
prophesy will not come to pass. The ultimate failure of a
contribution claim because someone did only a negligible amount of
harm does not impede enforcement by the EPA or frustrate any of
CERCLA's objectives.
A.
Relying on favorable case law from the Second and Third
Circuits, NETT attempted to prove that it contributed only trace
amounts of hazardous waste to Sullivan's Ledge. At the summary
judgment stage, once a movant has offered evidence showing that
there is no dispute as to any material fact and that he is entitled
to judgment as a matter of law, the non-moving party must come
forward with sufficient evidence to create a triable issue of fact;
if he fails to do so, that is the end of the matter. See Fed. R.
Civ. P. 56.
In its motion for summary judgment, NETT contended that
"it is beyond material dispute that no wastes disposed of by [NETT]
. . ., even when considered with wastes disposed by other persons,
could have contributed to the environmental harm at the Site or to
the incurrence of response costs" and therefore "such wastes cannot
be the basis for the imposition of any liability" upon it. As the
moving party, NETT undertook the burden of satisfying the court that
its motion ought to be granted.
It offered extensive expert evidence to the effect that
the concentration of PAHs from NETT telephone poles, if in fact such
poles were left at the site, was negligible. In a series of
reports, Dr. John Tewhey estimated that some 335,000 pounds of PAHs
were disposed of at Sullivan's Ledge, confirmed that the Sullivan's
Ledge Group was responsible for most of this pollution, and stated
that PAHs from telephone pole butts could have added no more than
negligible amounts to existing PAHs in the surrounding region. He
stated that PAH levels in soil samples from areas near where utility
poles were located revealed the same amount of PAH found in many
popular foods.
We have already rejected the district court's reasoning
inasmuch as it may have been rooted in a theory of causation that
required some quantitative threshold. But even if NETT may be said
to have caused plaintiffs to incur response costs, plaintiffs failed
to rebut NETT's evidence showing that it should bear no more than
a de minimis share of the remediation expenditures under 9613(f).
NETT essentially offered evidence tending to show that its equitable
share would amount to zero; plaintiffs gave only a non-responsive
rejoinder, mostly by insisting (wrongly) that causation is
irrelevant.
Questions of causation and appropriate equitable
allocation of response costs involve quintessential issues of fact.
See Dedham II, 972 F.2d at 457. But we see nothing especially
onerous about requiring the Sullivan's Ledge Group to come forward
with admissible evidence where a defendant has fairly raised the
issues. See Amoco Oil, 889 F.2d at 667-68 (approving use of summary
judgment to hone trial-worthy issues in multi-defendant CERCLA
cases). All that need be done to survive that stage is to submit
admissible evidence sufficient to point up a factual dispute. It
is no different than asking a plaintiff to proffer some evidence as
to damages where a defendant has claimed in summary judgment papers
that the plaintiff has, in fact, suffered no compensable harm.
Given the Sullivan's Ledge Group's failure to meet its burden in
this regard, the trial court properly entered judgment for NETT.
We turn now to the district court's rulings in favor of
AFC, Mohasco, and Ottaway.
B.
As a threshold matter, there is some slight confusion as
to whether the trial judge's decision for these defendants was based
on Rule 50 (judgment as a matter of law) or Rule 52 (findings of
fact and conclusions of law after a bench trial). On the one hand,
he explicitly stated that he was viewing the evidence in the light
most favorable to the plaintiffs, the usual standard for Rule 50
motions; he also impaneled a jury to resolve certain factual
matters, raising the added question whether Rule 52 would even be
appropriate. See Fed. R. Civ. P. 52(a) (applicable to actions
"tried upon the facts without a jury or with an advisory jury").
On the other hand, the judge also spoke in terms of making "findings
of fact and conclusions of law."
Although the court flirted with the prospect of entering
judgment by way of Rule 52 (saying, "whichever way I went about it,
it would come about the same"), we think it sufficiently clear that
the court intended to employ judgment as a matter of law as its
principal lens for viewing plaintiffs' claims. See App. at 05812
("I am calling them Rule 50 judgments."). Because we conclude that
the trial judge engaged the gears of Rule 50, we scrutinize his
legal conclusions de novo. Plaintiffs' evidence must be viewed in
the light most favorable to them, and all reasonable inferences from
the record must be drawn to their advantage. See Koster v. Trans
World Airlines, Inc., F.3d , No. 98-1757, 1999 WL 396023, at
*2 (1st Cir. June 21, 1999).
We affirm the judgment on the basis that the evidence was
inadequate to permit a rational factfinder to make a quantifiable
allocation of response costs to AFC, Mohasco, or Ottaway under
9613(f). See Hodgens v. General Dynamics Corp., 144 F.3d 151,
173 (1st Cir. 1998) ("We will affirm a correct result reached by the
court below on any independently sufficient ground made manifest by
the record.").
While no precise allocations were made in this case, a
trial court's perspective is nevertheless instructive as to the
equitable considerations most relevant to the dispute at hand.
Here, the court found the respective quantities of hazardous
materials attributable to each defendant, the toxicity of the
respective wastes, and their durability to be highly relevant to
fixing an equitable share. Within this general framework, the court
assessed the Sullivan's Ledge Group's evidence and found it
inadequate. We agree.
Plaintiffs' evidence at trial tended to show that AFC was
responsible for hazardous waste at Sullivan's Ledge on a scale
"thousands of times less than the remaining contribution of others";
that, in terms of sheer mass, the two cubic yards of solid waste
attributable to AFC constituted an insignificant amount of pollution
when compared to over one million cubic yards of waste found at
Sullivan's Ledge; that the remediation plan was largely driven by
the presence of hazardous substances other than copper and zinc; and
that the materials attributable to AFC was not as toxic as the other
substances discovered at the site, namely, PAHs, Volatile Organic
Compounds, and Polychlorinated Biphenyls. Taking at face value
plaintiffs' own estimates of the costs of remediation, AFC's share
of response costs, in the most generous formulation, would amount
to no more than 1/500,000 of $50 million amounting to less than
$100.
Two main factors underlay the trial court's ruling in
favor of Mohasco: (1) Plaintiffs' evidence against Mohasco was far
weaker than that against AFC; and (2) undisputed scientific
testimony by plaintiffs' own experts that hazardous substances
attributed to Mohasco "would not persist in the environment."
As for Ottaway, beyond the small amount of material
attributable to its predecessor-in-interest, The New Bedford
Standard Times, plaintiffs' evidence actually linking The New
Bedford Standard Times to the ink waste at Sullivan's Ledge was thin
at best.
On appeal, plaintiffs make no real effort to challenge the
court's characterization of their evidence or of each defendant's
apparent equitable share of the clean up expenditures. Eschewing
a direct attack on the factual bases for the court's ruling, they
instead make a series of arguments aimed at the court's legal
reasoning and the general format of the proceedings.
They first suggest that equitable determinations played
no role in the court's decision and therefore provide an inadequate
ground for affirmance. Even a cursory examination of the record
puts this argument to rest. The court repeatedly referred to the
equitable factors it found most salient, and discussed the weight
of the evidence as to each of these factors. While the judge was
not making specific allocations, it is plain to us he was holding
that, in light of the equitable factors he would apply should he
make explicit findings, plaintiffs' evidence showed too little
pollution to justify compelling defendants to take on any meaningful
share of the response costs. We read him to say that if he had to
make an allocation for AFC, Mohasco, and Ottaway, the evidence
dictated that each of their shares for response costs would be zero.
The court's reasoning is therefore sufficiently transparent as to
provide a basis for affirmance. We add that, even if the trial
court's explanations were less than lucid (which they are not), we
would still have the power to affirm on any ground apparent on the
face of the record. See Mesnick v. General Elec. Co., 950 F.2d 816,
822 (1st Cir. 1991) ("An appellate panel is not restricted to the
district court's reasoning but can affirm a summary judgment on any
independently sufficient ground.").
Plaintiffs next argue that the trial court erroneously
presumed them liable for response costs in violation of 42 U.S.C.
9622(d)(1)(B) (providing that execution of consent decree in
connection with CERCLA enforcement "shall not be considered an
admission of liability"). This, they argue, improperly imposed on
plaintiffs a burden they should not have been required to bear,
namely, that of proving their own non-liability. This argument,
too, is easily rejected. The judge made it perfectly clear that all
of the parties were starting "on equal ground," that he "was not
assuming that anybody has any special burdens in this case," and
that he was "not drawing [an adverse] inference" from the consent
decrees. Although the court did mention the "fundamental principle"
that injuries be left where they lie unless judicial intervention
is warranted, that is simply another way of saying that plaintiffs
at all times had the burden of proving their contribution claims.
There is one final matter to be untangled. The Sullivan's
Ledge Group suggests that insofar as the trial judge purported to
make equitable findings under 9613(f), it did so prematurely.
Plaintiffs insist that a remand is warranted so that a full and fair
hearing may be held before the court can accurately allocate the
response costs among each of the liable parties.
We are aware that a specific allocation cannot logically
be made until a defendant has been deemed liable as a responsible
party, for contribution may only be obtained from joint tortfeasors.
Nevertheless, we are mindful of the complex nature of these kinds
of lawsuits. District courts have considerable latitude to deal
with issues of liability and apportionment in the order they see fit
to bring the proceedings to a just and speedy conclusion. See Alcan
II, 990 F.2d at 723. CERCLA does not demand a bifurcated trial on
this score, nor have we insisted that the many knotty issues that
arise in the typical CERCLA action be resolved in any particular
chronological order.
On this record, we find no abuse of discretion in the
court's failure to make more detailed findings or to hold a separate
allocation hearing. Nothing in the record suggests that plaintiffs
complained about the unified nature of the 9613(f) proceedings.
If plaintiffs felt truly hampered by the structure of the trial,
they should have interposed a timely objection. We also think it
telling that they make no effort to describe the additional material
it would present to the trial judge were we to order a remand. We
will not order a remand when it is likely to be an empty exercise.
Finally, the fact that the court received the Sullivan's Ledge
Group's evidence over the course of seventeen days convinces us that
plaintiffs had every opportunity to submit any and all relevant
evidence at its disposal on the issues of liability and equitable
apportionment.
Affirmed. Costs awarded to defendants-appellees.