The United States Court of Appeals for the First Circuit in the case of Acushnet Co. v. Mohasco Corp., No. 97-2138 (1st Cir. Sept. 21, 1999), affirmed the district court's holding that several deminimis parties were not liable for any contribution. Certain plaintiffs who had agreed in a Consent Decree with EPA to clean up the Sullivan's Ledge Site in Massachusetts, brought a contribution action against other PRPs, including the four who prevailed in the district court. The First Circuit affirmed the judgment in favor of the defendants by looking to the language of the statute that authorizes actions for contribution. 42 U.S.C. Section 9613(f) reads in pertinent part:
Any person may seek contribution from any other person who is liable or potentially liable under 9607(a) of this title, during or following any civil action under 9606 of this title or under 9607(a) of this title. Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure and shall be governed by Federal law. In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.
It was the court's use of its powers of equitable apportionment that the circuit court affirmed. It made clear that it was not claiming that there was a causation requirement for liability under CERCLA. It was merely stating that if that party was responsible for such a slight amount of any cleanup, it could in fact be held to have a zero responsibility based on an equitable determination. "We therefore hold that a defendant may avoid joint and several liability for response costs in a contribution action under §9613(f) if it demonstrates that its share of hazardous waste deposited at the site constitutes no more than background amounts of such substances in the environment and cannot concentrate with other wastes to produce higher amounts. This rule is not based on CERCLA's causation requirement, but is logically derived from §9613(f)'s express authorization that a court take equity into account when fixing each defendant's fair share of response costs." The court then reviewed the evidence against each one of the parties and found that "the evidence was inadequate to permit a rational fact finder to make a quantifiable allocation of response costs" to them.