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
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
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
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