ELR Citation: ELR 20082
No(s). 90-0484 P (D.R.I. Jun 22, 1992)

The court strikes de minimis, equitable, and prosecutorial defenses asserted by defendants in an action by the United States under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and reinstates the defendants' ambient defense within certain parameters. The court first holds that the magistrate judge correctly struck the defendants' defense of prosecutorial misconduct under CERCLA §107. The court holds that the defendants' ambient defense is sufficient in law, although the defendants perhaps caused the magistrate's misinterpretation by characterizing the defense too broadly. The ambient defense is not a true affirmative defense. If the defendants can show that the concentration of naturally occurring metals and other compounds in uncontaminated areas around the site is equal to or less than that found in the site, one could correctly assume that the substances were not put there by the defendants. However, if the government can prove that the defendants dumped a certain substance at the site, the retort "but it is still lower than the ambient levels" is impermissible. The court reinstates the defense as construed in this manner. The court next holds that the magistrate erred by refusing to strike the defendants' de minimis defense, because the magistrate mistakenly relied on the decision of the U.S. Court of Appeals for the First Circuit in O'Neil v. Picillo, 20 ELR 20115, which refers to the issue of divisibility, not the issue of liability. Other courts have also rejected de minimis defenses in CERCLA cost recovery actions. The court then strikes the defendants' equitable defenses, because the majority of courts to rule on equitable defenses have rejected them. Accordingly, the court overrules that portion of its decision in Violet v. Picillo, 17 ELR 20629, which allows equitable defenses. The court holds that CERCLA §107(a) supplies the restrictive language needed to deprive the court of its traditional equitable jurisdiction.

Counsel for Plaintiffs
Bernard P. Bell, Michele M. Giuliani
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Mark O. Denehy
Adler, Pollock & Sheehan
One Hospital Trust Plaza, Providence RI 02903
(401) 274-7200