USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1729
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
RICHARD A. MOTTOLO, ET AL.,
Defendants, Appellants.
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No. 93-2078
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
RICHARD A. MOTTOLO, ET AL.,
Defendants, Appellants.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Robert J. Kelleher,* Senior U.S. District Judge]
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Before
Torruella, Selya and Cyr,
Circuit Judges.
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July 18, 1994
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*Of the District of Central California, sitting by designation.
James H. Gambrill, with whom Engel, Gearreald & Gardner, P.A. was
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on brief for appellants.
Andrea Nervi Ward, Attorney, Department of Justice, with whom
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Jeffrey R. Howard, Attorney General, Anne E. Renner, Assistant
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Attorney General, Lois J. Schiffer, Acting Assistant Attorney General,
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Beth Tomasello, Attorney, EPA, David C. Shilton and Elizabeth Yu,
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Attorneys, Department of Justice, were on brief for appellee.
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CYR, Circuit Judge. Defendants Richard A. Mottolo and
CYR, Circuit Judge.
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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
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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
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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
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U.S.C. 9607(a)(4)(A), naming as defendants, inter alia:
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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)
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(listing "potentially responsible parties," who are jointly,
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severally, and strictly liable for all CERCLA response costs);
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Juniper Dev. Group v. Kahn (In re Hemingway Trans., Inc.), 993
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F.2d 915, 921 (1st Cir.), cert. denied, 114 S. Ct. 303 (1993).
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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.
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Mottolo, 695 F. Supp. 615, 631-32 (D.N.H. 1988); see Fed. R. Civ.
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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
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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,
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84-90-D (D.N.H. Dec. 17, 1992); see 42 U.S.C. 9613(g)(2).
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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
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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
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[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
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Property, the "sole" cause of contamination in the pristine
southern boundary area of the Property was EPA's gross negligence
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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,
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178 (1st Cir. 1989), cert. denied, 493 U.S. 1071 (1990). We
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decline to address these claims because they were not preserved
in the district court.
Section 9607(b)(3) and the O'Neil "divisibility"
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doctrine constitute affirmative defenses which would preclude
CERCLA liability. See United States v. Monsanto Co., 858 F.2d
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160, 168 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989).
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Yet neither defense was raised in Mottolo's answers to appellees'
complaints, see Fed. R. Civ. P. 8(c) (in its responsive pleading,
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"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
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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
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Mottolo, 695 F. Supp. at 625 ("Quinn asserts that . . . EPA's
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allegedly negligent supervision of cleanup operations . . . .")
(emphasis added); id. at 626, 626 n.9 ("Quinn also asserts it
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exercised due care in its dealings . . . .") (emphasis added).
But cf. id. at 627-28 (addressing Mottolo's distinct equitable
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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.,
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United Mine Workers 1974 Pension v. Pittston Co., 984 F.2d 469,
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478 (D.C. Cir.), cert. denied, 113 S. Ct. 3039 (1993); Pantry
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Inc. v. Stop-n-Go Foods, Inc., 796 F. Supp. 1164, 1167 (S.D. Ind.
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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
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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
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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
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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
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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"
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as an "owner," "operator," and "transporter," see Pahlavi v.
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Palandjian, 809 F.2d 938, 943 (1st Cir. 1987); see also Celotex
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Corp. v. Catrett, 477 U.S. 317, 322-23 (1986), factual issues
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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
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Mottolo had yet to "articulate[] [a 'due care' argument] on his
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own behalf." Mottolo, Nos. 83-547-D, 84-90-D, slip op. at 10 n.6
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(emphasis added).3
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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.
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Witschen, 19 F.3d 725, 728 n.4 (1st Cir. 1994) (appellant must
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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
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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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