O'Neil v. Picillo
883 F.2d 176 (1st Cir. 1989)

  • Picillo owned a pig farm in Rhode Island. Thirty-five companies contracted with Picillo to dump their hazardous wastes on his farm. The result was a huge environmental disaster.
  • Rhode Island and the EPA began cleaning up the site and sued Picillo to recover costs under Comprehensive Environmental Response, Compensation, and Recovery Act (CERCLA).
    • 30 companies settled for a total of $5.8M, the other five companies decided to fight.
  • The Trial Court held three of the five companies to be jointly and severally liable, and were held accountable for all past expenses not covered by the settlement (about $1.4M), as well as all future costs yet to be incurred. Two companies (American Cyanamid and Rohm & Haas) appealed.
    • Cyanamid and Rohm both agreed that their wastes were dumped on Picillo's farm, but argued that their contribution to the disaster was insubstantial.
    • Under the concept of joint and several liability, any person held partially responsible can be charged for the entire costs of remediation. Cyanamid and Rohm felt that this was unfair since they were only responsible for a small percentage of the hazardous wastes on Picillo's farm.
  • The Appellate Court affirmed.
    • The Appellate Court looked to the Restatement of Torts, which said that damages should only be apportioned if the defendant can demonstrate that the harm is divisible.
    • The Appellate Court found that with regards to past liability, Cyanamid and Rohm had not met their burden of showing what costs actually incurred by the State were capable of apportionment. Therefore the costs were not divisible and Cyanamid and Rohm were jointly and severally liable for the whole thing.
      • Cyanamid and Rohm unsuccessfully argued that the past cleanup costs were divisible because you could simply count the number of barrels at the site and apportion costs based on an estimate of the cost of excavating a single barrel.
      • EPA argued that it was not possible to determine how many barrels were traceable to Cyanamid and Rohm.
        • Out of 10,000 barrels found at the site, only 300-400 could be positively traced.
      • In addition, EPA argued that joint and several liability was still proper because the "harm to be apportioned is not the cost but the environmental contamination that prompts the response action."
    • The Appellate Court found that with regards to future liability, Cyanamid and Rohm were still jointly and severally liable.
      • Cyanamid and Rohm unsuccessfully argued that it was not clear that any future remediation costs would be incurred, and even if there were, there was no evidence that their wastes would contribute to the damage.
    • Btw, Under CERCLA 122(g), EPA is authorized to offer settlements to defendants they believe are only responsible for a small portion of the harm. Cyanamid and Rohm chose not to take the settlement offer.