Acushnet Co. v. Mohasco Corp.

• Decision Date: 06 May 1999
• Docket Number: No. 97-2138,97-2138
• Citation: 191 F.3d 69
• Parties: (1st Cir. 1999) 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. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 69

191 F.3d 69 (1st Cir. 1999)

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.

No. 97-2138.

United States Court of Appeals for the First Circuit.

Heard May 6, 1999.

Decided Sept. 15, 1999.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Copyrighted Material Omitted] 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.

Before Bownes and Cyr, Senior Circuit Judges, and O'Toole^*, District Judge.

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").¹ 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.²

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).³

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 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.⁴

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, 1996,⁵ 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...