Juan R. Torruella

“ When a broker arranges for the disposal of hazardous waste and it does so by exercising control over the waste, such control can amount to constructive possession of the waste. Were we to interpret CERCLA not to impose liability on a party that constructively possessed hazardous waste and arranged for its illegal disposal, then the statute would be subject to a loophole through which brokers and middlemen could escape liability by arranging to have hazardous waste picked up and deposited at an illegal site. ”

“ Under the doctrine of res judicata, "a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Allen v. McCurry, 449 U.S. 90, 94, 66 L. Ed. 2d 308, 101 S.C.t. 411 (1980) (citation omitted) . "For a claim to be precluded, there must be: (1) a final judgment on the merits in an earlier action; (2) sufficient identity between the causes of action asserted in the earlier and later suits; and (3) sufficient identity between the parties in the two suits." ”

“ Focusing on the words "aggregate response costs," the Capuanos contend that the district court erred by not calculating the soil remediation costs together with the groundwater remediation costs. We disagree. Contribution is the right "of one who has discharged a common liability to recover of another also liable, the aliquot portion which he ought to pay or bear." Id. at 99 (quoting Black's Law Dictionary 399 (6th ed. 1990) ) . In the action before the district court, the Capuanos and R&H shared common liability for the groundwater remediation only. ”

“ An environmental cleanup takes many years to complete. To make the cleanup manageable, it is done in phases. If an initial cost recovery action triggered the statute of limitations for the recovery of any costs in future phases, PRPs could manipulate CERCLA to avoid paying their share. Indeed, by settling with the government for the soil remediation, the Capuanos received contribution protection for the soil remediation only. At the time of the soil remediation, the likelihood of a groundwater cleanup was unknown. ”

“ We disagree and, once again, begin our inquiry by examining the language of the statute. When interpreting a statute, "courts must strive to give effect to each subsection contained in a statute, indeed, to give effect to each word and phrase." ”

“ In addition to escaping liability, the broker would also profit by charging a fee for his services. Indeed, the Capuanos earned most of their profits in this manner. The Capuanos found a site, the Picillo pig farm, where hazardous waste could be dumped illegally. They then arranged for the waste to be picked up from various waste generators across New England and dumped on the illegal site. A broker should not be able to profit from such activity, much less escape liability. ”

“ The Capuanos also argue that an adjudged liable PRP who is permitted to seek contribution for response costs before its liability is established, and who can seek an allocation of future response costs once its liability is established, should not be able to split its contribution claims into several successive lawsuits as the cleanup continues and the PRP's costs become fixed. ”

“ Indeed, in 1988, Rhode Island and the United States had not assessed whether there was groundwater contamination at the Picillo site. On appeal in O'Neil, we discussed giving Rhode Island and the EPA "time to conduct further tests" and we discussed the possibility that "after conducting the necessary tests, the government [could] conclude [] [that] there was in fact no harm to the area's groundwater." ”

“ Since the prejudgment interest provision of § 9607 refers to "actions under this section" and because § 9613 (f) incorporates the liability provisions of § 9607, an action for contribution also incorporates the prejudgment interest provision. See Consol. Coal Co., 345 F.3d at 415; Goodrich Corp. v. Town of Middlesbury, 311 F.3d 154, 177 (2d Cir. 2002) ; Bancamerica Commercial Corp., v. Mosher Steel of Kansas, Inc., 100 F.3d 792, 801 (10th Cir. 1996) . For some purposes, such as statutes of limitations, § 9613 and § 9607 are "distinct, non-overlapping anodynes." United Techs. ”

“ The district court held that Rule 19 does not require joinder of other known solvent PRPs. In their appellate brief, the Capuanos mention the Rule 19 issue, but do not provide any arguments as to why Rule 19 requires other PRPs to be joined. Since the Capuanos failed to develop any argument, we consider this issue waived. See United States v. Bongiorno, 106 F.3d 1027, 1034 (1st Cir. 1997) ("We have steadfastly deemed waived issues raised on appeal in a perfunctory manner, not accompanied by developed argumentation.") . ”