## Facts

- The Picillo family allowed part of their Coventry, Rhode Island pig farm to be used in 1977 as a disposal site for drummed and bulk wastes.
- Thousands of barrels of hazardous waste were dumped; a major fire later occurred at the site.
- In 1979, Rhode Island and the EPA began response actions and discovered extensive commingled contamination in trenches and pits, along with many corroded, deteriorated drums.
- The State incurred cleanup costs between 1979 and 1982 and sought recovery of past costs and a declaration of liability for future response costs under CERCLA § 107.
- The State sued 35 defendants; most settled for a total of $5.8 million.
- After a bench trial, the district court held three non-settling defendants jointly and severally liable for the State’s unreimbursed past costs and for future costs; two defendants prevailed because the State did not prove their wastes were hazardous under CERCLA.
- American Cyanamid and Rohm & Haas (waste generators) appealed, arguing their contributions were small and that costs should be apportioned based on estimates such as barrel counts.

## Issues

1. Whether CERCLA § 107 permits joint and several liability for non-settling hazardous-waste generators at a multi-party site without precise proof of each generator’s volumetric contribution.
2. Whether the generators proved the harm and response costs were divisible, providing a reasonable basis to apportion damages rather than impose joint and several liability.
3. Whether CERCLA § 107 may constitutionally be applied to allow recovery of government response costs incurred before CERCLA’s enactment.

## Decision

- The First Circuit affirmed the judgment imposing joint and several liability on the appealing generators for the State’s past response costs not covered by settlements and for future necessary response costs.
- The court held that apportionment was unavailable because the generators failed to prove divisibility of harm and a workable method of allocation on the record.
- The court upheld CERCLA’s application to pre-enactment response costs (addressed in a footnote).
- The court noted that recoverability of future costs remains subject to later challenges to necessity, consistency with the national contingency plan, and cost-effectiveness.

## Legal Principles

- Under CERCLA § 107, once the plaintiff proves a defendant is a responsible party whose hazardous substances contributed to a release, joint and several liability applies unless the defendant proves divisibility and a reasonable basis for apportionment.
- The government is not required to prove a defendant was a “substantial contributor” to invoke joint and several liability; the burden shifts to defendants to establish divisibility.
- Commingled wastes, indistinguishable drums, and response actions that address an undifferentiated mass of contamination commonly defeat divisibility and prevent allocation by barrel-counting or similar estimates.
- Settlement with some parties does not bar imposing joint and several liability on non-settling parties for remaining unreimbursed response costs, subject to limits preventing double recovery.
- CERCLA may constitutionally reach government response costs incurred before CERCLA’s enactment.

## Conclusion

The First Circuit affirmed joint and several CERCLA liability for non-settling waste generators where site conditions showed extensive commingling and the defendants failed to prove divisibility or a reasonable allocation method; future-cost recovery remained subject to later review for necessity and cost-effectiveness.


O’Neil v. Picillo, 883 F.2d 176 (1st Cir. 1989)