ELR Citation: ELR 20289
No(s). s. 93-1729, -2078 (1st Cir. Jul 18, 1994)

The court holds that an owner of contaminated land may not raise for the first time on appeal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107(b)(3)'s third-party defense or the "divisibility" doctrine set forth in O'Neil v. Picillo, 20 ELR 20115 (1st Cir. 1989), as affirmative defenses to joint and several liability under CERCLA §107. The court refuses to address the owner's claims that a genuine issue remained with respect to his entitlement to a third-party affirmative defense under CERCLA §107(b)(3) and that liability for environmental harm to the property is divisible under the divisibility doctrine, because defendant failed to preserve these claims in district court. The defendant raised neither of these affirmative defenses in his answers to the government's complaint or in his response to the government's motions for partial summary judgment. Moreover, the owner's failure to preserve these affirmative defenses was neither technical in nature or inadvertent. The court holds that the owner was not entitled to rely on a codefendant's properly raised third-party defense, because the defense is personal to the defendant who raises it. Even if the defense were not personal, the owner could not claim the benefit of a codefendant's proffer that the U.S. Environmental Protection Agency (EPA) was the sole cause of the contamination without first establishing that the owner exercised due care in his capacity as an owner, operator, and transporter—factual issues wholly distinct from the codefendant's due care as a generator. The court holds that there is no indication that the owner was unable to assert these defenses in a timely manner after the owner's precleanup handling of hazardous waste and EPA's cleanup activities had become a matter of historical fact. And the owner never requested an extension of time for discovery relating to these matters.

[Prior decisions in this litigation are published at 14 ELR 20497, 15 ELR 20444, and 19 ELR 20442.]

Counsel for Plaintiff
Andrea N. Ward
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
James H. Gambrill
Engel, Gearreald & Gardner
P.O. Box 278, Exeter NH 03833
(603) 778-8535

Before TORRUELLA, SELYA, and CYR, Circuit Judges.