
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1721                     ST. PAUL FIRE AND MARINE INSURANCE COMPANY,                                 Plaintiff-Appellee,                                          v.                             WARWICK DYEING CORPORATION,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                _____________________               Thomas  M. Reiter with whom David M. Jones, John M. Edwards,               _________________           ______________  _______________          Linda  E.  Presson,  Kirkpatrick  &  Lockhart,  Nicholas  Gorham,          __________________   ________________________   ________________          Edmund L.  Alves II  and  Gorham  &  Gorham  were  on  brief  for          ___________________       _________________          appellant.               Michael Rubin, Assistant Attorney General  and Environmental               _____________          Advocate, Office of  the Attorney General,  and Jeffrey B.  Pine,                                                          ________________          Attorney General of  Rhode Island,  on brief for  State of  Rhode          Island, amicus curiae.               Louis V. Jackvony III on brief for Town of North Smithfield,               _____________________          amicus curiae.               John  F.  Bomster,  John   A.  Tarantino,  W.  James  McKay,               _________________   ____________________   ________________          Victoria M. Almeida,  W. Mark  Russo, Sherry A.  Giarrusso, Adler          ___________________   ______________  ____________________  _____          Pollock & Sheehan Incorporated and Andrew C. Spacone on brief for          ______________________________     _________________          Textron, Inc., amicus curiae.               Kimball  Ann Lane with whom Craig R. Brown, Anne T. Turilli,               _________________           ______________  _______________          Julie  B. Pollack,  Roger  D. Brown,  Adams,  Duque &  Hazeltine,          _________________   _______________   __________________________          James T. Murphy and Hanson, Curran, Parks & Whitman were on brief          _______________     _______________________________          for appellee.                                         -2-               Laura  A. Foggan, Lon A. Berk, Celiza P. Braganca and Wiley,               ________________  ___________  __________________     ______          Rein &  Fielding on brief for  Insurance Environmental Litigation          ________________          Association, amicus curiae.                                 ____________________                                    June 22, 1994                                 ____________________                                                             -3-                    TORRUELLA, Circuit Judge.   This case concerns the oft-                               _____________          litigated pollution  exclusion clause  commonly found  in general          liability  insurance  policies.   Insurance  coverage  under this          clause,  or the lack thereof,  has engendered bitter and frequent          disputes between  insurance  companies and  policyholders  facing          some form of environmental  liability.  We enter the  fray secure          in  the knowledge that, regardless  of our holding,  we will have          followed a sizeable number of the courts that have considered the          issue.   Upon our  own consideration  of the  pollution exclusion          clause as applied to the specific facts of this case, we cast our          lot with those courts narrowly construing the breadth of coverage          afforded under the clause.   We thus affirm the  district court's          order of summary judgment in favor of plaintiff-appellee.                                    I.  BACKGROUND                                    I.  BACKGROUND                    Plaintiff-appellee, St. Paul  Fire and Marine Insurance          Company ("St. Paul"), brought  this action in the  district court          to  obtain a declaratory judgment that St. Paul had no obligation          under  an insurance  contract  issued to  the defendant,  Warwick          Dyeing Corporation  ("Warwick"), to defend  or indemnify  Warwick          for claims arising  from environmental damages at  the Landfill &          Resource  Recovery Superfund  Site  in  North  Smithfield,  Rhode          Island (the "L&RR landfill" or the "Site").  St. Paul asserted in          its complaint  that, among other things,  the pollution exclusion          clause of the insurance  policy barred coverage for contamination          at the L&RR landfill  after Warwick arranged for the  disposal of          its waste materials at the Site.                                         -3-                    A.  The Claims                    A.  The Claims                        __________                    Warwick  is in  the business  of dyeing,  finishing and          coating synthetic and synthetic-natural  fiber blend fabrics.  In          July  of 1979, Warwick hired ACME Services, Inc. ("ACME"), a duly          licensed waste  hauler,  to collect,  haul away,  and dispose  of          various waste  materials  generated  by  Warwick's  West  Warwick          plant.  The waste  contained certain hazardous substances.   ACME          hauled  the waste  to  the L&RR  Site,  also duly  licensed,  and          disposed of it in the landfill.   One ACME truck driver stated in          an affidavit that he discharged waste directly into the  landfill          by opening  a drain valve on his truck and letting the waste pour          onto the ground.   There  is no evidence,  however, that  Warwick          knew  where  or   how  ACME  disposed  of  its  waste  materials.          Furthermore,  no party  or governmental  agency has  alleged that          Warwick or ACME improperly discharged Warwick's waste materials.                    On September 18, 1989,  the United States Environmental          Protection Agency ("EPA") notified Warwick that it had determined          Warwick was  a "potentially responsible party"  ("PRP") under the          Comprehensive Environmental Response, Compensation  and Liability          Act  ("CERCLA"), 42  U.S.C.     9601  et  seq., with  respect  to                                                _______          contamination at  the L&RR  Site.  The  EPA stated that  the L&RR          Site experienced  releases and  threatened releases  of hazardous          substances requiring the EPA  to undertake cleanup activities for          which  the PRP's could be  held liable pursuant  to Sections 104,          106(a) and  107(a)  of CERCLA.    42 U.S.C.     9604,  9606(a)  &          9607(a).                                         -4-                    The   EPA  noted  that  "responsible  parties"  include          "persons who arranged for  disposal of hazardous substances found          at  the site."  Under  CERCLA, a person  that generates hazardous          substances and  arranges for  their disposal is  strictly liable,                                                           ________ ______          regardless  of whether  the person  was at  fault or  whether the          substance actually caused or  contributed to any damage, for  all          costs of remediating environmental damages at  the site where the          substances  ultimately are  disposed.   See  Dedham Water  Co. v.                                                  ___  _________________          Cumberland Farms  Dairy, Inc., 889  F.2d 1146, 1150-56  (1st Cir.          _____________________________          1989); O'Neil v. Picillo,  883 F.2d 176, 177-83 (1st  Cir. 1989),                 ______    _______          cert. denied, 493 U.S. 1071 (1990).          ____  ______                    The EPA alleged that  Warwick was a "responsible party"          at the L&RR Site because it had arranged, "by contract agreement,          or otherwise," for the "disposal" of hazardous  substances at the          L&RR Site.  The EPA demanded reimbursement of the response costs,          mainly for investigation and monitoring, that it had incurred and          planned to incur at the Site.                    On  June 29,  1990,  the EPA  issued an  administrative          order, pursuant  to    104(e)  & 106(a)  of CERCLA, 42  U.S.C.             9604(e) &  9606(a), against  twenty  five respondents,  including          Warwick, demanding  that the respondents perform certain remedial          activities  at the  L&RR Site.   The  order alleged  that Warwick          "arranged  for  the  disposal  of water  soluble  dye  and fibers          containing  acids  and VOCS  [volatile organic  compounds], which          were disposed  of  at the  Site."    According to  the  EPA,  the          hazardous  substances at the  L&RR Site had  been poured directly                                         -5-          into the landfill  or deposited in drums into  the landfill.  The          EPA's order  documented the  results of an  investigation showing          that "the  landfill continues to release  Hazardous Substances to          the environment."   The  EPA made  no allegations, however,  that          waste was improperly  disposed of  or discharged at  the Site  or          that  the landfill  was  improperly  maintained.    In  fact,  no          specific cause of the contamination was mentioned beyond the fact          that the  named respondents disposed of  waste at the Site.   The          EPA   ordered  that   respondents   undertake  various   remedial          activities  to  monitor  and   prevent  the  further  release  of          hazardous substances  and to reimburse  the EPA for  its previous          and future actions at the Site.                    On  July 25, 1991, a  group of fourteen plaintiffs that          were also named by  the EPA as PRPs  at the L&RR Site filed  suit          against  Warwick and  forty-six others  for recovery of  past and          future  response costs incurred at  the Site.   The suit asserted          that  Warwick  was  jointly   and  severally  liable  for  having          "arranged for the disposal of  hazardous substances" at the site.          Subsequent to the  filing of  this suit, Warwick  entered into  a          settlement agreement with the plaintiffs under which Warwick paid          $40,000  and assigned  its  rights under  the St.  Paul insurance          policies to the plaintiffs.                    During  the  EPA's  actions and  the  private  lawsuit,          Warwick  notified  St.  Paul,  its  general  liability  insurance          carrier,  that  it  was  seeking  defense  costs,  and  possibly,          indemnity coverage for the claims made by the EPA and the private                                         -6-          plaintiffs.   St. Paul  denied  that coverage  existed under  the          applicable insurance policies for  the claims against Warwick and          eventually  brought  this   action  to   obtain  an   enforceable          declaration of noncoverage.                    B.  The Insurance Contract                    B.  The Insurance Contract                        ______________________                    St.  Paul  issued a  series  of "Comprehensive  General          Liability  Policies" ("CGL"  policies) to  Warwick  that provided          Warwick  with  continuous coverage  from  1971  through 1985  for          general commercial risks.                    The insurance policies provided:                      The Company [St.Paul] will pay  on behalf                      of the Insured  [Warwick] all sums  which                      the   Insured    shall   become   legally                      obligated to pay as damages because of:                      Coverage A.: bodily injury or                      Coverage B.: property damage                      to which this  insurance applies,  caused                      by  an occurrence, and  the Company shall                      have  the right  and duty  to defend  any                      suit against the insured  seeking damages                      on  account  of  such  bodily  injury  or                      property   damage  even  if  any  of  the                      allegations of the  suit are  groundless,                      false or fraudulent, . . .                    The policies thus provided coverage for property damage          caused by an "occurrence" which the policies defined as:                      an  accident,   including  continuous  or                      repeated  exposure  to conditions,  which                      results  in  bodily  injury  or  property                      damage neither expected nor intended from                      the standpoint of the insured.                    Following this insuring clause was a list of exclusions          from coverage,  including the  pollution exclusion at  issue here          (the "exclusion").   Although  the policies  varied from year  to                                         -7-          year, the  following is  representative  of the  language of  the          exclusion:                      It is agreed that the  insurance does not                      apply to bodily injury or property damage                      arising out of the  discharge, dispersal,                      release or escape of smoke, vapors, soot,                      fumes,  acids, alkalis,  toxic chemicals,                      liquids  or  gases,  waste  materials  or                      other    irritants,    contaminants    or                      pollutants   into   or  upon   land,  the                      atmosphere  or any watercourse or body of                      water.          The  exclusion contained  an  exception (the  "exception")  which          stated:                      This  exclusion does  not  apply if  such                      discharge,  dispersal, release  or escape                      is sudden and accidental.                    St.  Paul filed  its action  on January  27, 1991.   In          response to  motions for summary  judgment made by  both parties,          the federal magistrate recommended  that the district court enter          a judgment  in favor of St.  Paul.  The magistrate  held that the          pollution  exclusion barred coverage for Warwick's claims because          the discharge of pollutants at the L&RR Site was neither "sudden"          nor "accidental" as required by  the exception to the  exclusion.          The district court initially  issued an order on March  18, 1993,          adopting this recommendation.  On the same day, Warwick moved for          reconsideration in light of "newly discovered evidence" regarding          representations  made to  state insurance  regulatory authorities          about  the meaning  of  the pollution  exclusion  clause.     The          district court responded by recalling  its order and vacating the          judgment.   After additional  briefing, however, the  court again          adopted  the magistrate's  recommendation and,  on June  4, 1993,                                         -8-          entered a judgment for St. Paul.                     II.  CONSTRUCTION OF THE INSURANCE CONTRACT                     II.  CONSTRUCTION OF THE INSURANCE CONTRACT                    We review the  district court's  interpretation of  St.          Paul's insurance contract de novo, LaSorsa v. Unum Life Ins. Co.,                                             _______    __________________          955 F.2d 140, 146 (1st Cir.  1992); CPC Int'l, Inc. v. Northbrook                                              _______________    __________          Excess &  Surplus Ins. Co., 962  F.2d 77, 91 (1st  Cir. 1992), to          __________________________          determine if Warwick's  claims are  excluded from  coverage as  a          matter of law.                    Rhode  Island  law  governs  the  construction  of  the          insurance policy in this  case.  To interpret contested  terms of          an insurance policy under  Rhode Island law, the "policy  must be          examined in its  entirety and the words used  must be given their          plain  everyday meaning."  McGowan  v. Connecticut Gen. Life Ins.                                     _______     __________________________          Co.,  289 A.2d 428,  429 (R.I. 1972);  see also  Textron, Inc. v.          ___                                    ________  _____________          Aetna Casualty and  Surety Co.,  638 A.2d 537,  539 (R.I.  1994);          ______________________________          Malo v.  Aetna Casualty and Surety  Co., 459 A.2d 954,  956 (R.I.          ____     ______________________________          1983).   "[W]hen the terms of an insurance policy are found to be          clear and unambiguous, judicial  construction is at an end.   The          contract terms must be  applied as written and the  parties bound          by them."   Amica Mut. Ins.  Co. v. Streicker, 583  A.2d 550, 551                      ____________________    _________          (R.I.  1990) (citing Malo, 459  A.2d at 956);  Hughes v. American                               ____                      ______    ________          Universal  Ins. Co., 423 A.2d  1171, 1173 (R.I.  1980).  Language          ___________________          that  is  found  to be  ambiguous  or capable  of  more  than one          reasonable interpretation will be construed liberally in favor of          the  insured and strictly against the insurer.  Bartlett v. Amica                                                          ________    _____          Mut. Ins. Co., 593 A.2d 45, 47 (R.I. 1991) (citing Streicker, 583          _____________                                      _________                                         -9-          A.2d at 552); Pressman v. Aetna Casualty and Surety Co., 574 A.2d                        ________    _____________________________          757,  759-60  (R.I.  1990).   However,  a  "policy is  not  to be          described as ambiguous because a word is viewed in isolation or a          phrase  is taken out of context.   A court should not, through an          effort to seek out ambiguity when  there is no ambiguity, make an          insurer  assume a liability not imposed by the policy."  McGowan,                                                                   _______          289  A.2d  at  429;  see also  Textron,  638  A.2d  at 539,  541;                               ________  _______          Bartlett, 593 A.2d at 47; Streicker, 583 A.2d at 552.          ________                  _________                    To our knowledge, no Rhode Island court has interpreted          or discussed  the pollution  exclusion  clause at  issue in  this          case.     We  therefore  decide   this  case  according   to  the          aforementioned  principles of  contract construction  under Rhode          Island  law  with guidance  from  the collected  wisdom  of other          courts   applying  similar   principles  of   insurance  contract          interpretation.                    Finally,  although the  parties  agree  that  insurance          companies bear the burden of proving that a policy exclusion bars          coverage  of a  claim, the  parties disagree  over who  bears the          burden of proving whether  or not an exception to  the exclusion,          such  as the  "sudden and  accidental" exception  at issue  here,          affords  coverage in  a  particular case.    Warwick argues  that          because the  exception is  part of  the exclusionary clause,  St.          Paul must  prove that  the exception applies  as well.   See  New                                                                   ___  ___          Castle County v. Hartford Accident & Indemnity Co, 933 F.2d 1162,          _____________    ________________________________          1182  (3d Cir. 1991) (finding that the  burden of proof is on the          insurer  under  Delaware law),  cert.  denied,  113  S. Ct.  1846                                          ____   ______                                         -10-          (1993).  The  last time we considered this  issue, we stated that          the insured bears the burden of establishing that an exception to              _______          a pollution exclusion provision has been satisfied.  A. Johnson &                                                               ____________          Co. v. Aetna  Casualty & Surety  Co., 933 F.2d  66, 76 n.14  (1st          ___    _____________________________          Cir. 1991)  (citing 19 G. Couch, Couch on Insurance   79: 385 (2d                                           ____________________________          ed. 1983)) (applying Maine law).                    We think that the  Supreme Court of Rhode  Island would          agree with  our position  in A.  Johnson.   Once the  insurer has                                       ___________          established  that  the   pollution  exclusion  applies,  coverage          depends  on  the applicability  of  the exception.    Because the          insured  bears  the  burden  of establishing  coverage  under  an          _______          insurance policy, it makes sense that the insured must also prove          that  the  exception  affords  coverage  after  an  exclusion  is          triggered.  Northern Insurance Co. v. Aardvark Assocs., Inc., 942                      ______________________    ______________________          F.2d  189, 194-95 (3d Cir. 1991); Fireman's Fund Ins. Cos. v. Ex-                                            ________________________    ___          Cell-O Corp., 702 F. Supp. 1317,  1328-29 (E.D.Mich. 1988); Borg-          ____________                                                _____          Warner Corp.  v. Insurance Co.  of N. Am., 577  N.Y.S.2d 953, 957          ____________     ________________________          (N.Y.  App. Div. 1992).   We find, therefore,  that Warwick bears          the  burden of establishing that  the discharge of  its waste was          "sudden  and accidental"  under  the exception  to the  pollution          exclusion.                    III.  THE POLLUTION EXCLUSION                    III.  THE POLLUTION EXCLUSION                    The pollution exclusion clause  of the St. Paul-Warwick          insurance policies bars coverage for "property damage arising out                                         -11-          of the  discharge, dispersal,  release or escape"1  of pollutants          of  waste   materials  unless   the  discharge  is   "sudden  and                                                                ___________          accidental" (emphasis added).  The issue before us is whether the          __________          district  court erred in finding  that the discharge of Warwick's          wastes at the L&RR landfill was neither sudden nor accidental and          thus not covered under the policies.                    State and federal courts are fairly evenly divided over          the  meaning  and  application  of the  "sudden  and  accidental"          exception  to the  pollution exclusion  clause.   See, e.g.,  CPC                                                            ___  ____   ___          Int'l, Inc. v. Northbrook Excess & Surplus Ins. Co., 962 F.2d 77,          ___________    ____________________________________          92 (1st Cir. 1992) (reprinting two footnotes from New Castle, 933                                                            __________          F.2d  at 1195, listing 24 cases holding that the pollution clause          bars coverage and 26  cases holding the opposite).2   Most courts          part  company  on  the issue  of  whether  the  term "sudden"  is          ambiguous  --  in  which case  the  policy  is  construed in  the          insured's favor to provide  coverage -- or unambiguous,  in which          case  insurance coverage is  usually barred.   Because most cases          involve  some kind  of  gradual release  of  pollutants into  the          environment over an extended period of time, courts finding a bar          to  coverage  under  the  exclusion have  construed  "sudden"  as                                        ____________________          1  We  hereinafter employ the  term "discharge"  to refer to  the          phrase,  "discharge,   dispersal,  release  or   escape"  in  the          pollution exclusion.          2    Amicus  for  St. Paul,  Insurance  Environmental  Litigation               ______          Association,  provides  a list  of  74  state and  federal  cases          holding that the term "sudden" in  the pollution exclusion clause          clearly has  a temporal meaning that favors  insurers.  We do not          doubt for a minute  that there are another 74  cases holding that          the term is ambiguous, which favors the insureds.                                         -12-          unambiguously meaning  "abrupt" or  "immediate."   E.g., Hartford                                                             ____  ________          Accident &  Indem. Co.  v. U.S.  Fidelity &  Guar. Co., 962  F.2d          ______________________     ___________________________          1484, 1487-90 (10th Cir.),  cert. denied, 113 S. Ct.  411 (1992);                                      ____  ______          Aetna Casualty & Surety  Co. v. General Dynamics Corp.,  968 F.2d          ____________________________    ______________________          707,  710 (8th  Cir.  1992);  A.  Johnson,  933  F.2d  at  72-74;                                        ___________          Aardvark, 942  F.2d at 191-94; Ogden Corp. v. Travelers Indemnity          ________                       ___________    ___________________          Co., 924  F.2d 39,  42  (2d Cir.  1991);  FL Aerospace  v.  Aetna          ___                                       ____________      _____          Casualty  & Surety  Co.,  897 F.2d  214,  219 (6th  Cir.),  cert.          _______________________                                     ____          denied,  498   U.S.  911  (1990);  Dimmitt   Chevrolet,  Inc.  v.          ______                             __________________________          Southeastern Fidelity  Ins. Corp., No. 78293, 1993  WL 241520, at          _________________________________          *1-5 (Fla. July 1, 1993); Hybud Equip. Corp. v. Sphere Drake Ins.                                    __________________    _________________          Co., 597 N.E.2d 1096,  1100-03 (Ohio 1992), cert. denied,  113 S.          ___                                         ____  ______          Ct. 1585 (1993); Upjohn Co. v. New Hampshire Ins. Co., 476 N.W.2d                           __________    ______________________          392 (Mich.  1991); Lumbermens  Mutual Casualty Co.  v. Belleville                             _______________________________     __________          Industries,  Inc., 555  N.E.2d  568, 572-73  (Mass. 1990);  Waste          _________________                                           _____          Management of Carolinas,  Inc. v. Peerless  Ins. Co., 340  S.E.2d          ______________________________    __________________          374, 381-83 (N.C.  1986); Borg-Warner, 577 N.Y.S.2d at  957; Mays                                    ___________                        ____          v.  Transamerica Ins.  Co., 799  P.2d 653,  657 (Or.  App. 1990).              ______________________          Courts  construing the  exception to  the exclusion  as affording          coverage  for gradual  discharges of  pollutants have  found that          "sudden"  could  reasonably  mean  "unintended  and  unexpected."          E.g.,  New Castle, 933 F.2d  at 1193-1203; Morton  Int'l, Inc. v.          ____   __________                          ___________________          General  Accident Ins. Co.,  629 A.2d  831, 847-876  (N.J. 1993);          __________________________          Outboard  Marine Corp. v. Liberty Mut. Ins. Co., 607 N.E.2d 1204,          ______________________    _____________________          1210, 1217-21 (Ill. 1992); Hecla Mining Co. v. New Hampshire Ins.                                     ________________    __________________          Co., 811  P.2d  1083, 1091-92  (Colo.  1991); Claussen  v.  Aetna          ___                                           ________      _____                                         -13-          Casualty & Surety  Co., 380 S.E.2d 686, 688-89  (Ga. 1989).  Even          ______________________          this  Circuit  has   split  over  the  meaning   of  "sudden  and          accidental" in the application of different state laws.   Compare                                                                    _______          CPC  Int'l, 962 F.2d at  91-98 (finding "sudden" ambiguous), with          __________                                                   ____          Lumbermens Mut. Casualty Co. v. Belleville Indus., Inc., 938 F.2d          ____________________________    _______________________          1423, 1429-30  (1st Cir.  1991)  (finding "sudden"  unambiguous),          cert. denied, 112 S. Ct. 969 (1992); A. Johnson, 933  F.2d at 72-          ____  ______                         __________          74 (same);  Great Lakes  Container Corp. v.  National Union  Fire                      ____________________________     ____________________          Ins. Co., 727 F.2d 30, 33-34 (1st Cir. 1984) (same).          ________                    This case, however, can be  decided without determining          whether "sudden" is  ambiguous or unambiguous.   Despite the deep          divisions in  their holdings, almost  all courts  agree, and  the          parties to this  case agree  as well, that  the term "sudden  and          accidental,"   means,  at   the  very   least,   "unintended  and          unexpected."  E.g., CPC  Int'l, 962 F.2d at 91-98;  Hartford, 962                        ____  __________                      ________          F.2d at 1488; New Castle, 933 F.2d at 1192-99; Upjohn, 476 N.W.2d                        __________                       ______          at 392; Hecla, 811 P.2d at 1091-92.  In  other words, intentional                  _____          and  expected  discharges of  pollutants  are  not covered  under          policies with the standard pollution exclusion.  Because we agree          with  the district court that the discharge of pollutants was not          unintended and  unexpected in this  case, we  uphold the  summary          judgment  order  on that  ground  without reaching  the  issue of          whether the term "sudden," as used in the policy, is ambiguous.                    Certain facts of this case are not in dispute.  Warwick          purposefully arranged  to have its waste  materials collected and          hauled off its property.  Those materials were disposed of in the                                         -14-          L&RR  landfill.   At  the same  time,  Warwick presumed  that its          wastes  were  disposed of  lawfully  and  properly.   It  neither          expected nor intended that contamination of the environment would          result from the disposal of its wastes.                    The district court found that Warwick's arrangement for          ACME to  dispose of its  waste in the regular  course of business          was  sufficient  to establish  that  the  relevant discharge  was          "intentional and expected" and thus not "accidental."  On appeal,          Warwick  argues  that the  district  court  erred in  attributing          Warwick's  act  of generating  the  waste and  arranging  for its          disposal with ACME's  act of  discharging the waste  at the  L&RR          Site.   Additionally, Warwick contends  that the  court erred  in          finding the relevant discharge to be the disposal of waste at the          landfill instead of the subsequent escape of  pollutants from the          landfill  into  the  surrounding  environment.   We  reject  both          arguments.                    A.  Arranging for discharge versus making the discharge                    A.  Arranging for discharge versus making the discharge                        ___________________________________________________                    Warwick maintains that the pollution exclusion does not          apply when  the discharges are made  by a third party,  such as a          waste hauler  like ACME.   Rather,  Warwick argues,  the relevant          discharge must be one by the  insured itself.  Because ACME,  and          not  Warwick,  discharged  this   waste  in  this  case,  Warwick          concludes that no discharge has  occurred that would trigger  the          pollution exclusion  to begin with.  This argument has previously          been  rejected by a number of courts.   See Aardvark, 942 F.2d at                                                  ___ ________          194; United States Fidelity  & Guar. Co. v. George  W. Whitesides               ___________________________________    _____________________                                         -15-          Co.,  932 F.2d 1169, 1170-71  (6th Cir. 1991);  Polaroid Corp. v.          ___                                             ______________          Travelers Indem.  Co., 610 N.E.2d  912, 916 (Mass.  1993); Powers          _____________________                                      ______          Chemco, Inc. v.  Federal Ins.  Co., 548 N.E.2d  1301, 1302  (N.Y.          ____________     _________________          1989); Borg-Warner, 577 N.Y.S.2d at 958; see also A. Johnson, 933                 ___________                       ________ __________          F.2d at 72 n.9 (noting that  the pollution exclusion "does not by          its  terms take  account  of an  insured's  status as  a  passive          polluter").                    While it is true that the  act of arranging for a third          party to haul away  one's waste is not in and  of itself any kind          of discharge upon land,  that fact is irrelevant to  the question          of whether  the discharge from  which the pollution  damage arose          was  expected or intended.  The plain and unambiguous language of          the pollution exclusion concerns  "property damage arising out of          the discharge," not "its discharge" or "the insured's discharge."          ___                  ___                    _________          We  thus see nothing in the policy to indicate that the exclusion          is  limited to discharges by  the insured.   See, e.g., Park-Ohio                                                       ___  ____  _________          Indus., Inc. v. Home Indemnity Co., 975 F.2d 1215, 1222 (6th Cir.          ____________    __________________          1992); Aardvark,  942 F.2d at  194; Borg-Warner, 577  N.Y.S.2d at                 ________                     ___________          958.                    Contrary  to   Warwick's   assertions,  there   is   no          meaningful distinction  in this case between  arranging for waste          to be hauled off for disposal and actually disposing of the waste          in a landfill.  For purposes of the exclusion, neither action was          unexpected or unintended by  Warwick.3  Although Warwick did  not                                        ____________________          3   There  is  strong disagreement  among  the parties  and,  not          surprisingly, among  the courts,  over the issue  of whether  the          discharge must  be unintended and unexpected  from the standpoint                                         -16-          know  the particular site where its waste would be disposed, and,          indeed, the record does not  reveal whether Warwick actually knew          that  its waste would  be deposited in  a landfill  to begin with          (presumably, Warwick  intended and expected that  its wastes were          being  "taken care of"  without knowing  any specific  details of          their disposal),4  we think  this case provides  every indication          that the disposal of waste in the L&RR landfill was,  at the very          least, not unexpected or unintended.                 ___ ________________________                    The relevant inquiry is not confined to whether Warwick          actually  knew  or  planned   that  the  discharge  would  occur.          Instead, the relevant  inquiry, according to the  language of the          exception to the pollution exclusion -- "this exclusion  does not                                        ____________________          of the insured or from the  standpoint of some other party who is          more closely connected to the actual discharge of  the waste.  As          this  issue does  not affect  our holding,  we proceed  under the          assumption  that  the  relevant point  of  view  is  that of  the          insured, Warwick.   We do not decide, however, whether this is in          fact the proper construction of the contract.          4   In  a  September  14, 1988,  letter  to  the  EPA,  Warwick's          President  stated: "It was believed by the writer that the liquid          waste  was to be carried to a waster-water [sic] sewage treatment          facility since the waste was acceptable to the West Warwick Sewer          System."   The language of this statement  indicates that Warwick          never bothered to find out,  or even to inquire about, where  its          waste was going.  It does not indicate that Warwick was told that          ACME would bring its waste to a sewage treatment facility or that          disposing of  its  waste  in  a landfill  was  against  Warwick's          intentions.  Moreover, this  statement indicates that Warwick did          not intend for its waste to be  handled in any particular fashion          beyond  merely dumping it down the  sewer.  Notations on the L&RR          manifests, recording  ACME's disposal  of Warwick's waste  at the          landfill, state that, "this product normally goes to [the] sewer.          This  is the  sludge that  collects on  the bottom  [of Warwick's          waste  pit]."   The disposal  of the  waste into  a landfill  was          consistent  with  Warwick's normal  treatment of  the waste  -- a          general disposal  into the normal sanitation  infrastructure.  In          light  of this fact, ACME's discharge of Warwick's waste into the          landfill could not be viewed as unexpected or unintended.                                         -17-          apply if such  discharge . .  . is sudden  and accidental" --  is          whether  the discharge  is "accidental,"  meaning "unexpected  or          unintended."   Coverage  is  only afforded  if  the discharge  is          neither  expected  nor intended.    "The  courts are  practically          agreed that the words 'accident' and 'accidental' mean that which          happens by  chance or fortuitously, without  intention or design,          and which is unexpected, unusual and unforeseen."  Aetna Casualty                                                             ______________          & Surety  Co. v. General Dynamics  Corp., 968 F.2d 707,  710 (8th          _____________    _______________________          Cir. 1992)  (quoting St. Paul Fire &  Marine Ins. Co. v. Northern                               ________________________________    ________          Grain Co., 365 F.2d 361, 364 (8th Cir. 1966)).          _________                    We  think it  would strain  common sense  to find  that          ACME's  disposal of Warwick's waste in  a landfill was unexpected          or unintended by Warwick.   A landfill is a  sufficiently common,          if not  likely, destination for the disposal of waste.  We see no          error  in  presuming that  a party  arranging  to have  its waste          disposed  of by a licensed  hauler would not  find it fortuitous,          unforeseen, unusual, or  otherwise contrary  to its  expectations          that its waste was disposed of at a landfill.  This is not a case          where ACME did something  surprising or out of the  ordinary with          the waste after  collecting it from  Warwick.  ACME did  not dump          the waste  in a river or  at an illegal dumping  ground.  Despite          the affidavit from an  ACME driver stating that waste  was poured          directly onto the ground, the EPA and private party suits against          Warwick  allege no  wrongdoing or  improper dumping at  the Site.          The  essence of the  EPA's letter and order  is that the property          damage  at the  Site arose  as a  result of  hazardous substances                                         -18-          being  placed  in  the  landfill  to  begin  with;  there  is  no          intermediate  event of  discharge that  Warwick can  point to  as          being unexpected or unintended from its standpoint.                    B.  The Relevant Discharge at the L&RR Landfill                    B.  The Relevant Discharge at the L&RR Landfill                        ___________________________________________                    Warwick argues that even if the disposal  of its wastes          at the  L&RR Site was  intended and  expected, this  was not  the          relevant discharge under the pollution exclusion clause.  Warwick          claims  that after  the disposal  of  its waste,  some subsequent          unexpected and unintended release  of hazardous substances at the          Site occurred which led to the damage in this case.  The issue of          whether  the   proper   object  of   Warwick's   intentions   and          expectations  is the disposal of  waste materials at  the Site or          some other discharge  of pollutants is  resolved by reference  to          the contract.  The  language of the pollution exclusion  is clear          that  coverage does not exist for "property damage arising out of          the discharge" of  waste materials or  other pollutants "into  or              _________          upon  land"  unless  "such   discharge  .  .  .  is   sudden  and                                       _________          accidental."   Clearly, the  occurrence that  must be  sudden and          accidental -- or, for  our purposes, unintentional and unexpected          -- is the discharge of pollutants "into or upon land"  from which          the property damage arose.                    It is  well established  that whether the  damages were                                                               _______          intended  or  expected  is irrelevant;  the  pollution  exclusion          plainly refers  to the  discharge and  not  to the  environmental          damages themselves.  A. Johnson, 933 F.2d at  72 (1st Cir. 1991);                               __________          Patz  v. St. Paul  Fire & Marine  Ins. Co., No.  93-2135, 1994 WL          ____     _________________________________                                         -19-          27280 (7th Cir. Feb.  2, 1994); Anaconda Minerals Co.  v. Stoller                                          _____________________     _______          Chemical  Co., 990  F.2d  1175, 1179  (10th  Cir. 1993);  Liberty          _____________                                             _______          Mutual  Ins. Co.  v.  Triangle Industries,  Inc., 957  F.2d 1153,          ________________      __________________________          1157-58 (4th Cir.), cert. denied, 113 S. Ct. 78 (1992); Broderick                              ____  ______                        _________          Investment Co. v. Hartford  Accident & Indem. Co., 954  F.2d 601,          ______________    _______________________________          606-07  (10th Cir.),  cert. denied,  113 S.  Ct. 189  (1992); New                                ____  ______                            ___          Castle, 933 F.2d at 1169, 1199-1202 & n.68; Morton Int'l, Inc. v.          ______                                      __________________          General  Accident Ins.  Co., 629  A.2d  831, 847-48  (N.J. 1993);          ___________________________          Lumbermens Mutual  Casualty Co.  v. Belleville  Industries, Inc.,          _______________________________     ____________________________          555 N.E.2d 568, 571 (Mass. 1990); Technicon Electronics Corp.  v.                                            ___________________________          American  Home  Assurance Co.,  542  N.E.2d  1048, 1050-51  (N.Y.          _____________________________          1989).5  On the  facts before us,  the relevant discharge is  the          disposal  of  the   waste  into  the  landfill,  not  some  other          unspecified occurrence.                    The  EPA  and  the  private  complainants  allege  that          Warwick is liable  for cleanup  and other response  costs at  the          L&RR Site because Warwick  arranged for the disposal of  waste at          the Site.  In essence, the EPA's order, as well as the subsequent                                        ____________________          5  For the same reason, it is not relevant whether or not Warwick          actually  knew  that  its  waste  materials  contained  hazardous          substances.  Independent Petrochemical  Corp. v. Aetna Casualty &                       ________________________________    ________________          Surety Co., 781 F. Supp. 9,  16-17 (D.D.C. 1991), aff'd, 995 F.2d          __________                                        _____          305  (D.C.  Cir.  1993), same  finding  on  this  issue in  later                                   ________________________________________          proceeding,  842 F.  Supp.  575, 584-85  (D.D.C. 1994);  Anaconda          __________                                               ________          Minerals Co. v.  Stoller Chemical  Co., 773 F.  Supp. 1498,  1506          ____________     _____________________          (D.Utah  1991), aff'd,  990  F.2d 1175  (10th  Cir. 1993).    The                          _____          exclusion  bars  coverage  so long  as  the  discharge  of "waste          materials"  was expected and intended and as long as the property          damage is "arising out of" this discharge.  On this latter point,          the EPA's claim that Warwick's waste contained acids and volatile          organic compounds  which contributed to the  contamination of the          Site was sufficient to trigger the pollution exclusion.                                         -20-          lawsuit based upon the EPA's actions, state that waste containing          hazardous  substances was placed in  the L&RR landfill  and, as a          result, the environment surrounding the landfill was contaminated          and  faced the  risk of  continued contamination  unless remedial          measures were  taken to shore up  the landfill.  No  cause of the          contamination, other than the fact that hazardous substances were          placed  in the  landfill, is  mentioned in  the  order or  in the          complaint.                    According  to these  facts,  the  "property damage"  at          issue is the contamination of the environment at the L&RR Site as          well as  the condition  of the  landfill itself,  which threatens          future  contamination.  As a result,  the relevant discharge from          which  the  damage   arose  is  clearly  the  disposal  of  waste          containing hazardous substances into the  landfill.  There is  no          intermediate discharge  onto the land  causing the damage  to the          environment.   This is not a case involving ruptured or exploding          tanks,  leaking drums, or even  some sort of  improper dumping of          waste  after  its  arrival at  the  Site.    Although the  record          contains  an affidavit from one of ACME's drivers stating that he          dumped  waste directly  onto the  ground, the  EPA and  the other          claimants make no allegation that any improper disposal of wastes          occurred  at the  L&RR Site  that might  have been  unexpected or          unintended.   In  sum,  because  there  is  no  evidence  of  any          intervening  discharge  between  the  disposal of  waste  on  the          landfill  and the  actual  damage that  eventually resulted,  the          initial  disposal of waste at the Site was the relevant discharge                                         -21-          which must be sudden  and accidental for coverage to  exist under          the exception to the pollution  exclusion.  See, e.g., Broderick,                                                      ___  ____  _________          954 F.2d at  607; Hartford,  962 F.2d at  1490-92; Aardvark,  942                            ________                         ________          F.2d  at 194-96; A. Johnson, 933 F.2d at 72; Triangle Indus., 957                           __________                  _______________          F.2d at 1157-58;  Oklahoma Pub. Co. v. Kansas City  Fire & Marine                            _________________    __________________________          Ins. Co., 805  F. Supp.  905, 910 (W.D.Okla.  1992); G.  Heileman          ________                                             ____________          Brewing Co. v. Royal Group, Inc., 779 F. Supp. 736, 740 (S.D.N.Y.          ___________    _________________          1991), aff'd, 969 F.2d 1042 (2d  Cir. 1992); Hybud, 597 N.E.2d at                 _____                                 _____          1103; Liberty Mutual Ins.  Co. v. SCA Services, Inc.,  588 N.E.2d                ________________________    __________________          1346, 1350-51 (Mass. 1992);  Borg-Warner, 577 N.Y.S.2d at 957-58;                                       ___________          Mays, 799 P.2d at 657.          ____                    Warwick argues that the damage in this case  arose from          the release of  pollutants from the landfill into the surrounding          environment  --  a  discharge   that  was  neither  expected  nor          intended.   To  put it  another way,  the relevant  discharge for          purposes of the pollution  exclusion was the escape  of hazardous          substances  from a state of containment at the L&RR landfill into          or upon the land outside  the confines of the landfill.   Warwick          highlights  the EPA  statement  that "the  landfill continues  to          release Hazardous  Substances to the  environment."  At  the very          least, Warwick  asserts, the language of  the pollution exclusion          is ambiguous as  to the  meaning of "discharge"  in this  context          where  several possible releases exist.   See, e.g.,  Patz v. St.                                                    ___  ____   ____    ___          Paul Fire & Marine Ins. Co.,  No. 93-2135, 1994 WL 27280, at *3-5          ___________________________          (7th  Cir.  Feb. 2,  1994); F.L.  Aerospace  v. Aetna  Casualty &                                      _______________     _________________          Surety Co., 897 F.2d 214, 220 (6th Cir. 1990); Nestle Foods Corp.          __________                                     __________________                                         -22-          v. Aetna Casualty & Surety Co., 842 F. Supp. 125, 131-32  (D.N.J.             ___________________________          1993);  Pepper's Steel & Alloys, Inc. v. United States Fidelity &                  _____________________________    ________________________          Guar.  Co., 668 F. Supp.  1541, 1549 (S.D.Fla.  1987); Queen City          __________                                             __________          Farms,  Inc. v. Central Nat'l Ins. Co., 827 P.2d 1024 (Wash. App.          ____________    ______________________          1 Div. 1992);  United States  Fidelity & Guar.  Co. v.  Specialty                         ____________________________________     _________          Coatings Co., 535 N.E.2d 1071, 1075-77 (Ill. App. 1 Dist. 1989).          ____________                    We reject  Warwick's argument  as merely an  attempt to          recast the  damages in  this case  as a  separate discharge.   As          previously  noted, the contract is clear that what must be sudden          and accidental is  the discharge and  not the resulting  damages.          The damage in this  case is the contamination of  the environment          by hazardous  substances  disposed  of  in the  landfill.    This          environmental  damage  is essentially  coterminous  with the  so-          called "release" of hazardous substances from the landfill to the          environment.   To  describe  such releases  as  a separate  event          constituting   an  independent  discharge  would  eviscerate  the          important   distinction   established  between   intentional  and          expected damages  and intentional  and expected discharges.   See                                                                        ___          Broderick, 954 F.2d  at 607  ("[The insured] tries  to shift  the          _________          focus to the  second discharge  and attempts to  graft an  intent          requirement related  to damages onto the  unambiguous language of                                  _______          the policy's  exclusion clause.   However, whether  [the insured]          intended the  waste  to seep  into groundwater  and cause  damage          after  the initial  discharges into  the land is  not relevant.")          (emphasis  in original).   Thus,  the fact  that Warwick  did not          intend or expect  the environmental  damage at the  L&RR Site  is                                         -23-          irrelevant.  What matters is whether the initial discharge  "into          or upon land"  that led  to the damage  is expected or  intended;          "only  the  initial  release  is  relevant  to  the  'sudden  and          accidental' inquiry."   A. Johnson,  933 F.2d at  72 & n.9;  see,                                  __________                           ___          e.g., Hartford, 962 F.2d at 1491;  Oklahoma Pub., 805 F. Supp. at          ____  ________                     _____________          910; Heileman, 779 F. Supp. at 740.               ________                    Warwick and its amici insist that  the landfill is some          type of container, like  a storage tank, which did  not discharge          its  contents   into  the  environment  until   some  unforeseen,          unexpected  releasing  event occurred.    Nothing  in the  record          supports this contention that the L&RR landfill was a containment          vessel such  that  discharges  into  it would  not  constitute  a          discharge  "into  or upon  land."   The  EPA did  state  that the          landfill  "releases" hazardous  substances "to  the environment,"          but this  simply describes the property damage resulting from the          discharge of waste into the landfill.  There is no indication the          EPA considered the landfill to be a containment vessel from which          hazardous substances escaped.  To the contrary, the object of the          EPA's concern  in its 87  page order  is the fact  that hazardous          substances  were placed in the  L&RR landfill to  begin with, not          the failure of the landfill to  contain wastes or the failure  of          some party to properly operate and maintain the landfill.                    We are  not  presented with  a situation  like the  one          recently  discussed by  Judge Posner  in Patz, where  the insured                                                   ____          intended its disposal pit to serve as a containment vessel due to          its clay bottom.  Patz, No. 93-2135,  1994 WL 27280, at *3-5.  In                            ____                                         -24-          that case, Judge  Posner found  cause to believe  there may  have          been a separate unexpected  discharge of pollutants subsequent to          the placement  of waste into  the pit.   The waste in  this case,          however, was  removed from  its containers on  Warwick's premises          and placed into the landfill --  literally onto the land -- where          it later caused contamination.   We presume all parties  involved          expected  this  to  be an  acceptable  practice,  but  we see  no          evidence  that the  landfill  itself was  expected  to act  as  a          containment  vessel.    See  Broderick,   954  F.2d  at  607  n.5                                  ___  _________          (rejecting contention that "containment ponds" that may have been          lined  with cement  could  serve as  a  container preventing  the          discharge of waste into them from being a discharge "into or upon          land"  such  that  the  pollution  exclusion  applied  only  when          substances  were subsequently  released from  the ponds  into the          surrounding   environment).     We  therefore   reject  Warwick's          contention  that  there  exists some  unexpected  and  unintended          discharge of its wastes triggering the exception to the pollution          exclusion.   Instead,  we agree  with the  district court  to the          extent  it  found  the  pollution  exclusion  applicable  because          Warwick's discharge of  waste was expected and  intended and thus          not "accidental."                    IV.  REGULATORY ESTOPPEL ARGUMENT ESTOPPED                    IV.  REGULATORY ESTOPPEL ARGUMENT ESTOPPED                    Warwick  argues that  St.  Paul should  be estopped  or          barred from applying the pollution exclusion to the facts of this          case because of alleged representations that were made by various          parties to  state insurance  regulatory authorities.   See Morton                                                                 ___ ______                                         -25-          Int'l,  Inc. v. General Accident  Ins. Co., 629  A.2d 831, 870-76          ____________    __________________________          (N.J.  1993).  This argument  was never made  before the district          court.  "It has long been the rule of this circuit that arguments          not  made initially  to the  district court  cannot be  raised on          appeal."   Kale v. Combined Ins. Co., 861 F.2d 746, 755 (1st Cir.                     ____    _________________          1988);  see, e.g., Vanhaaren v.  State Farm Mut.  Auto. Ins. Co.,                  ___  ____  _________     _______________________________          989 F.2d 1, 4-5 (1st Cir. 1993).                    Warwick claims  that it raised the  estoppel issue when          it argued:                      In short, the insurance industry was able                      to  obtain  approval  of   the  pollution                      exclusion clause by labelling it merely a                      "clarification"  that  would  not  change                      coverage  for  pollution  claims.    This                      Court    should    treat    the    clause                      accordingly.          This  statement  hardly  raises  the issue  of  estoppel  for the          district court's consideration.   Warwick's statement was made in          conjunction  with Warwick's  submission to  the court  of various          materials  relating  to  representations  made before  the  state          insurance  regulatory board.    The submissions  and motions  all          related to the argument that the insurance contract was ambiguous          and should  be interpreted  in  favor of  Warwick.   No claim  of          estoppel  was made  at  the time.    Consequently, the  issue  is          waived.                    We  find no "egregious  circumstances" or "miscarriages          of  justice" that would allow  us to transgress  our rule against          raising  issues for the first time on  appeal.  Kale, 861 F.2d at                                                          ____          755.     Furthermore,  this   case  presents  no   other  special                                         -26-          circumstances,  such  as  an  issue  which  "the  district  court          expressly  and   unequivocally  addressed"  or  an   "an  ongoing          injunction, constraining part  of a  governmental program,"  that          might otherwise  give  us  the authority  to  decide  the  issue.          Trailer Marine Transport Corp.  v. Rivera V zquez, 977 F.2d  1, 6          ______________________________     ______________          (1st Cir. 1992).                    V.  MOTIONS DELAYED AND MOTIONS DENIED                    V.  MOTIONS DELAYED AND MOTIONS DENIED                    Apparently unsatisfied with the argumentation presented          in their  briefs and in the briefs  of various amici, the parties                                                         _____          in this case  have filed a huge  batch of additional  motions and          materials  in  this case.   As  a  consequence, we  received more          paperwork  after  the case  was briefed  and  argued than  we did          before argument.  Because  the majority of this deluge  is either          superfluous, moot, or flaunts even  a liberal application of  our          rules concerning  page limits and  the proper subject  matter for          motions and other filings, we deny most of the motions and strike          many of the other filings.                    For the  record, we  deny the motion  for certification          and  grant St.  Paul's  motion to  strike Warwick's  supplemental          brief  in support of certification.  St. Paul's motions to strike          extrinsic materials  or alternatively expand the  record are moot          as  we  found no  cause  to  consider  the  extrinsic  materials.          Warwick's motion  to  strike St.  Paul's effusive  filing on  the          Nestle case is granted.  We deny St. Paul leave to file responses          ______          and replies to various  reply briefs and to  Warwick's opposition          to  St. Paul's  motion  to strike  extrinsic  evidence.   In  the                                         -27-          alternative,  we  grant Warwick's  motion  to  strike St.  Paul's          responses and replies.  Lest we neglect the amici, we deny amicus                                                      _____          ______          Textron's motion to file  a reply to several other  amicus briefs          and  we find  that  St.  Paul's  motion  to  strike  material  in          Textron's brief  is  moot.   Finally, we  deny Mid-America  Legal          Foundation  permission  to  file an  amicus  brief  and  we grant          Warwick's motion to strike Aetna's amicus brief.                    We  affirm  the  district   court's  order  of  summary                    _______________________________________________________          judgment and dispose of all other motions as described above.          ____________________________________________________________                                         -28-
