United States v. Mottolo

Opinion

USCA1 Opinion

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.

2

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
                                          I

                                      BACKGROUND
                                      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

4

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
                                          II

                                      DISCUSSION
                                      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

5

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. 

                                          6

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.
          _______

                                          7

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.
                                                          ___ ____

                                          8

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.
                    The judgment is affirmed; double costs to appellees.
                    ___ ________ __ ________  ______ _____ __ _________

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          R. 11(c). 

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