United States v. Mottolo

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1729
UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

RICHARD A. MOTTOLO, ET AL.,

Defendants, Appellants.

No. 93-2078

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

RICHARD A. MOTTOLO, ET AL.,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Robert J. Kelleher,* Senior U.S. District Judge]

Before

Torruella, Selya and Cyr,

Circuit Judges.

July 18, 1994

*Of the District of Central California, sitting by designation.

James H. Gambrill, with whom Engel, Gearreald & Gardner, P.A. was

on brief for appellants.
Andrea Nervi Ward, Attorney, Department of Justice, with whom

Jeffrey R. Howard, Attorney General, Anne E. Renner, Assistant

Attorney General, Lois J. Schiffer, Acting Assistant Attorney General,

Beth Tomasello, Attorney, EPA, David C. Shilton and Elizabeth Yu,

Attorneys, Department of Justice, were on brief for appellee.

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CYR, Circuit Judge. Defendants Richard A. Mottolo and
CYR, Circuit Judge.

Service Pumping & Drain Co., Inc. (collectively, "Mottolo")

appeal from a district court judgment declaring them jointly and

severally liable under the Comprehensive Environmental Response,

Compensation and Liability Act (CERCLA), 42 U.S.C. 9601-9675,

9607 (1993), for all past and future response costs incurred by

plaintiffs-appellees, the United States and the State of New

Hampshire ("State"), in remediating hazardous waste contamination

on property owned by Mottolo. Finding no error, we affirm.

I

BACKGROUND

Mottolo acquired a 65-acre parcel of farmland in

Raymond, New Hampshire ("Property") in 1964. In 1975, Service

Pumping & Drain Co., Inc. began operations at the Property. In

1979, the State discovered "hazardous [chemical] substances" on

the Property, see id. 9601(14); 40 C.F.R. pt. 261 (1993), and

determined that the contaminants had been discharged directly

onto the surface or deposited in leaching barrels buried beneath

the surface. The State determined that the waste threatened a

groundwater aquifer feeding nearby wells, and requested the

United States Environmental Protection Agency ("EPA") to take

removal and remediation measures. During the EPA cleanup,

alleges Mottolo, EPA moved drums from the contaminated northern

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sector of the Property for temporary storage at a staging area on

the southern boundary pending removal from the Property.

The United States and the State filed suit in federal

district court to recover past and future cleanup costs, see 42

U.S.C. 9607(a)(4)(A), naming as defendants, inter alia:

Mottolo, as "owner" and "operator" of the Property and "trans-

porter" of waste to the site; and K.J. Quinn and Company

("Quinn"), as an alleged "generator" of the waste who contracted

with Mottolo for its on-site disposal. See id. 9607(a)(1)-(4)

(listing "potentially responsible parties," who are jointly,

severally, and strictly liable for all CERCLA response costs);

Juniper Dev. Group v. Kahn (In re Hemingway Trans., Inc.), 993

F.2d 915, 921 (1st Cir.), cert. denied, 114 S. Ct. 303 (1993).

Mottolo and Quinn interposed several statutory and equitable

defenses to CERCLA liability.

In August 1988, plaintiffs-appellees successfully moved

for partial summary judgment as to Mottolo's and Quinn's joint

and several liability for response costs. United States v.

Mottolo, 695 F. Supp. 615, 631-32 (D.N.H. 1988); see Fed. R. Civ.

P. 56(c) ("A summary judgment . . . may be rendered on the issue

of liability alone though there is a genuine issue as to the

amount of damages."). In 1990, the parties stipulated to the

amount of past response costs incurred by the appellees "not

inconsistent with the national contingency plan" ($601,961), see

42 U.S.C. 9607(a)(4)(A), and the district court subsequently

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entered judgment declaring Mottolo liable for those response

costs, as well as for any future cleanup costs appellees might

incur at the Property. United States v. Mottolo, Nos. 83-547-D,

84-90-D (D.N.H. Dec. 17, 1992); see 42 U.S.C. 9613(g)(2).

After the district court certified its declaratory judgment,

pursuant to Fed. R. Civ. P. 54(b), Mottolo brought these appeals

challenging its liability for past and future cleanup costs.

II

DISCUSSION

Mottolo asserts two challenges to the district court

judgment declaring him "jointly and severally" liable to the

State and the United States for all past and future response

costs at the Property. First, Mottolo contends that a

trialworthy issue remained with respect to his entitlement to a

"third party" affirmative defense under CERCLA which permits an

otherwise potentially responsible party to escape strict liabili-

ty if he proves by a preponderance of the evidence that the

contamination was "caused solely by . . . an act or omission of

[an unrelated] third party." 42 U.S.C. 9607(b)(3) (emphasis

added). Mottolo argues that even if he were to concede strict

liability for the contamination in the northern sector of the

Property, the "sole" cause of contamination in the pristine

southern boundary area of the Property was EPA's gross negligence

in removing leaching barrels of waste to the latter area for

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temporary storage. Second, Mottolo attempts to employ this same

partitioning approach to establish that legal responsibility for

environmental harm to the Property is likewise "divisible" since

partitioning would permit a reasonable apportionment of costs

between himself and EPA. See O'Neil v. Picillo, 883 F.2d 176,

178 (1st Cir. 1989), cert. denied, 493 U.S. 1071 (1990). We

decline to address these claims because they were not preserved

in the district court.

Section 9607(b)(3) and the O'Neil "divisibility"

doctrine constitute affirmative defenses which would preclude

CERCLA liability. See United States v. Monsanto Co., 858 F.2d

160, 168 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989).

Yet neither defense was raised in Mottolo's answers to appellees'

complaints, see Fed. R. Civ. P. 8(c) (in its responsive pleading,

"a party shall set forth . . . any other matter constituting an

avoidance or affirmative defense"), nor did Mottolo advance

either contention in response to appellees' motions for partial

summary judgment in 1988.1

By contrast, codefendant Quinn squarely raised the

"third party" defense albeit premised on unsupported allega-

tions of a "negligent" EPA cleanup both in its answer and

1In an August 1986 memorandum opposing partial summary
judgment (Docket # 176), Mottolo raised two matters: (1) a claim
that CERCLA could not be given retroactive effect to permit
recovery of pre-enactment response costs; and (2) an estoppel
claim based on an EPA representative's alleged statement that EPA
would not seek reimbursement from Mottolo.

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responsive memoranda. Indeed, the district court specifically

noted in its August 1988 summary judgment decision that this

defense had been presented by Quinn alone, not by Mottolo. See

Mottolo, 695 F. Supp. at 625 ("Quinn asserts that . . . EPA's

allegedly negligent supervision of cleanup operations . . . .")

(emphasis added); id. at 626, 626 n.9 ("Quinn also asserts it

exercised due care in its dealings . . . .") (emphasis added).

But cf. id. at 627-28 (addressing Mottolo's distinct equitable

defenses, including estoppel, waiver, and release). At summary

judgment on the issue of liability, unproffered affirmative

defenses to liability normally are deemed abandoned. See, e.g.,

United Mine Workers 1974 Pension v. Pittston Co., 984 F.2d 469,

478 (D.C. Cir.), cert. denied, 113 S. Ct. 3039 (1993); Pantry

Inc. v. Stop-n-Go Foods, Inc., 796 F. Supp. 1164, 1167 (S.D. Ind.

1992).

Mottolo's failure to preserve these affirmative defens-

es was neither technical in nature nor inadvertent. Mottolo was

not entitled to rely on codefendant Quinn's "third party" de-

fense, because such a defense is personal to the defendant who

raises it.2 But even if the rule were otherwise, Mottolo could

not claim the benefit of a codefendant's proffer that a third

party (EPA) was the sole cause of the contamination, without

2The district court expressly noted, moreover, that the
codefendants would be treated as a group only where their "indiv-
idual arguments . . . apply to and benefit all . . . defendants."
Mottolo, 695 F. Supp. at 618 n.1.

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first establishing that "(a) [Mottolo himself] exercised due care

with respect to the hazardous substance concerned, taking into

consideration the characteristics of such hazardous substance, in

light of all relevant facts and circumstances, and (b) [Mottolo

himself] took precautions against foreseeable acts or omissions

of any such third party and the consequences that could

foreseeably result from such acts or omissions." 42 U.S.C.

9607(b)(3)(a)-(b) (emphasis added). At the very least, there-

fore, Mottolo would have been required to present developed

argumentation and competent evidence that he exercised "due care"

as an "owner," "operator," and "transporter," see Pahlavi v.

Palandjian, 809 F.2d 938, 943 (1st Cir. 1987); see also Celotex

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986), factual issues

wholly distinct from codefendant Quinn's due care as a "genera-

tor." Even as late as December 1992, however, the district

court re-examined Quinn's third-party defense but observed that

Mottolo had yet to "articulate[] [a 'due care' argument] on his

own behalf." Mottolo, Nos. 83-547-D, 84-90-D, slip op. at 10 n.6

(emphasis added).3

3Even if these defenses had not been abandoned irretrievably
in 1988, and could have been raised for the first time in re-
sponse to the request for declaratory relief, Mottolo has not
included any of his later responsive memoranda in the appellate
record. These memoranda are the only means by which appellate
review of the district court ruling that Mottolo failed to
"articulate" the "due care" contention critical to his defense
might conceivably have been rendered practicable. See Silva v.

Witschen, 19 F.3d 725, 728 n.4 (1st Cir. 1994) (appellant must

bear responsibility for omitting material items from appellate
record) (citing Fed. R. App. P. 10(b), 11(a)); see also 1st Cir.

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Finally, and most importantly, there is no suggestion

or indication that Mottolo was unable to assert these defenses in

a timely manner in 1988, after Mottolo's pre-cleanup handling of

the hazardous waste and EPA's cleanup activities had become

matters of historical fact. Nor did Mottolo ever request an

extension of time for discovery relating to these matters. See

Fed. R. Civ. P. 56(f). Moreover, Quinn's synchronous pleadings

and summary judgment memoranda put Mottolo on clear notice of

these very affirmative defenses. To hold that a defendant in

these circumstances may bide his time by withholding such

liability-negating affirmative defenses until after summary

judgment has been entered against him in the district court, and

then assert them years later only after an appeal has been taken,

would make a mockery of the summary judgment process and do

incalculable injustice to opposing parties who have played by the

rules.

Accordingly, the district court judgment declaring

Mottolo jointly and severally liable for appellees' CERCLA

response costs must be affirmed.

The judgment is affirmed; double costs to appellees.

R. 11(c).

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