
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 93-1729                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                             RICHARD A. MOTTOLO, ET AL.,                               Defendants, Appellants.                                                                                      ____________________        No. 93-2078                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                             RICHARD A. MOTTOLO, ET AL.,                               Defendants, Appellants.                                                                                      ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                [Hon. Robert J. Kelleher,* Senior U.S. District Judge]                                           __________________________                                                                                      ____________________                                        Before                              Torruella, Selya and Cyr,                                   Circuit Judges.                                   ______________                                                                                      ____________________                                    July 18, 1994                                                                                      ____________________                                    ____________________             *Of the District of Central California, sitting by designation.             James H. Gambrill, with whom Engel, Gearreald & Gardner, P.A. was             _________________            ________________________________        on brief for appellants.             Andrea  Nervi Ward,  Attorney, Department  of Justice,  with whom             __________________        Jeffrey  R.  Howard,  Attorney  General,  Anne  E.  Renner,  Assistant        ___________________                       ________________        Attorney General, Lois J. Schiffer, Acting Assistant Attorney General,                          ________________        Beth  Tomasello,  Attorney, EPA,  David C.  Shilton and  Elizabeth Yu,        _______________                   _________________      ____________        Attorneys, Department of Justice, were on brief for appellee.                                          2                    CYR, Circuit Judge.  Defendants Richard A. Mottolo  and                    CYR, Circuit Judge.                           _____________          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                                      __________                    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                        ___  ___          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                                          3          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                                                                     ___          U.S.C.     9607(a)(4)(A),  naming  as  defendants,   inter  alia:                                                               _____  ____          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)                                                   ___ ___          (listing  "potentially responsible  parties,"  who  are  jointly,                                                                   _______          severally, and strictly  liable for all  CERCLA response  costs);          _________      ________          Juniper  Dev. Group v. Kahn  (In re Hemingway  Trans., Inc.), 993          ___________________    ____   _____________________________          F.2d 915, 921  (1st Cir.), cert. denied,  114 S. Ct. 303  (1993).                                     _____ ______          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.                                                          _____________          Mottolo, 695 F. Supp. 615, 631-32 (D.N.H. 1988); see Fed. R. Civ.          _______                                          ___          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                                                                        ___          42 U.S.C.    9607(a)(4)(A), and the  district court  subsequently                                          4          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,                                   _____________    _______          84-90-D  (D.N.H.  Dec. 17,  1992);  see 42  U.S.C.    9613(g)(2).                                              ___          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                                      __________                    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                                     ______          [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                                                   ________  ______          Property,  the  "sole" cause  of  contamination  in the  pristine          southern boundary area of the Property was EPA's gross negligence          ________ ________ ____          in  removing leaching  barrels of  waste to  the latter  area for                                          5          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,                                      ___ ______     _______          178  (1st Cir.  1989), cert.  denied, 493 U.S.  1071 (1990).   We                                 _____  ______          decline to  address these claims because they  were not preserved          in the district court.                      Section  9607(b)(3)  and   the  O'Neil   "divisibility"                                                    ______          doctrine  constitute  affirmative defenses  which  would preclude          CERCLA  liability.  See United  States v. Monsanto  Co., 858 F.2d                              ___ ______________    _____________          160, 168 (4th  Cir. 1988),  cert. denied, 490  U.S. 1106  (1989).                                      _____ ______          Yet neither defense was raised in Mottolo's answers to appellees'          complaints, see Fed. R. Civ. P. 8(c) (in its responsive pleading,                      ___          "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                                        ____________________               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.                                           6          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                                               _____                    ___          Mottolo, 695 F.  Supp. at 625  ("Quinn asserts that  . . .  EPA's          _______                          _____          allegedly negligent supervision  of cleanup operations . .  . .")          (emphasis  added);  id. at  626, 626 n.9  ("Quinn also asserts it                              ___                     _____          exercised due  care in its dealings  . . . .")  (emphasis added).          But cf. id.  at 627-28 (addressing  Mottolo's distinct  equitable          ___ ___ ___                                             _________          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.,                                                                 ___  ____          United Mine Workers 1974  Pension v. Pittston Co., 984  F.2d 469,          _________________________________    ____________          478 (D.C. Cir.),  cert. denied,  113 S. Ct.  3039 (1993);  Pantry                            _____ ______                             ______          Inc. v. Stop-n-Go Foods, Inc., 796 F. Supp. 1164, 1167 (S.D. Ind.          ____    _____________________          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                                             ________          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                                                                    _______                                        ____________________               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.          _______                                          7          first establishing that "(a) [Mottolo himself] exercised due care          _____ ____________            _______                    ___ ____          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                                                                    _______          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"                            _________ ________          as an  "owner," "operator,"  and  "transporter," see  Pahlavi  v.                                                           ___  _______          Palandjian, 809 F.2d 938,  943 (1st Cir. 1987); see  also Celotex          __________                                      ___  ____ _______          Corp. v. Catrett,  477 U.S.  317, 322-23  (1986), factual  issues          _____    _______          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                             _____          Mottolo had yet to  "articulate[] [a 'due care' argument]  on his                                                                     __ ___          own behalf."  Mottolo, Nos. 83-547-D, 84-90-D, slip op. at 10 n.6          ___ ______    _______          (emphasis added).3                                           ____________________               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.          _____ ___________                                   ___  _____          Witschen,  19 F.3d 725, 728  n.4 (1st Cir.  1994) (appellant must          ________          bear responsibility  for omitting material  items from  appellate          record) (citing Fed.  R. App. P. 10(b), 11(a)); see also 1st Cir.                                                          ___ ____                                          8                    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                                                                        ___          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.                    ___ ________ __ ________  ______ _____ __ _________                                                    ____________________          R. 11(c).                                           9
