CERCLA — Allocation Among PRPs

Allocation Among PRPs: Divisibility, Gore Factors, and Contribution Claims

The Default: Joint and Several Liability

CERCLA § 9607(a) does not use the words "joint and several," but courts have consistently held that joint and several liability is the default rule for multi-PRP CERCLA cases. The practical implication: EPA can sue any single PRP for 100% of response costs and that PRP cannot reduce its liability to the government by pointing at other PRPs. The argument "other companies also disposed at this site" does not reduce your client's exposure in a direct government cost recovery action.

The only way to reduce liability below 100% in a government action is to establish that the harm is divisible.

The Divisibility Defense: Burlington Northern Framework

In Burlington Northern & Santa Fe Ry. Co. v. United States, 556 U.S. 599 (2009), the Supreme Court confirmed that if the harm at a site is capable of apportionment -- meaning a defendant can show a reasonable basis for determining its share of the contamination -- joint and several liability does not attach to that defendant's share.

The burden is on the defendant to establish divisibility. The Burlington Northern Court apportioned the railroads' share based on three factors: percentage of site area they owned, duration of their lease relative to total site operations, and the proportion of chemicals from their parcel contributing to remediation costs. The result was a 9% apportionment.

Practical implications for Enrique:

• Divisibility arguments require site-specific technical data: area, volume, toxicity, time period of operations
• The argument is more credible at sites with clearly delineated zones of contamination
• "Commingled" contamination (e.g., groundwater plumes) makes divisibility harder to establish
• The argument should be preserved from the RI/FS phase forward -- the evidentiary record is built in the investigation, not in litigation

Gore Factors for Equitable Allocation in Contribution Actions

Once liability is established (or settled), co-PRPs litigate their relative shares in contribution actions under § 9613(f). Courts apply equitable factors in allocating cleanup costs. The most widely cited list derives from an amendment proposed by then-Senator Albert Gore during CERCLA's legislative history (hence "Gore factors"):

1. Ability of each party to distinguish its contribution to the discharge, release, or disposal
2. Volume of hazardous substances the party contributed
3. Toxicity of the hazardous substances involved
4. Degree of involvement in the generation, treatment, storage, transport, or disposal
5. Degree of care exercised relevant to the hazardous substance involved
6. Degree of cooperation with government officials to prevent harm

Courts are not bound to the Gore factors -- they are guides, not a statute. Enrique should also consider: the financial condition of co-PRPs, their ability to pay, the relative timing and duration of each PRP's operations at the site, and whether any party has engaged in misconduct or bad faith.

§ 9613(f) Contribution Claims: The Two Paths

§ 9613(f)(1) -- Contribution during or after litigation. Any person who has resolved its liability to the United States or a State in a judicially approved settlement may seek contribution from other PRPs. The applicable limitations period under § 9613(g)(3) is three years from: (A) the date of judgment in a civil action; or (B) the date of entry of an administrative order under § 9622(g) or § 9622(h) or a judicially approved settlement.

§ 9613(f)(3)(B) -- Contribution after administrative settlement. A party who has resolved liability to the government through an administrative settlement may also seek contribution. This path is available to parties who resolved via AOC (completing the RI/FS) or via a de minimis settlement under § 9622(g).

Orphan Share Negotiation

Some PRPs at multi-party sites are insolvent, defunct, or unlocatable. Their shares are "orphan shares" -- they must be allocated somewhere. EPA sometimes agrees to absorb orphan shares in a consent decree (in exchange for a higher per-PRP contribution), which is preferable to solvent PRPs paying 100% and then suing phantom co-PRPs. Negotiating the orphan share allocation is a key consent decree issue.

State-Level Allocation Variation

The federal CERCLA allocation rules do not govern state law cleanup claims. The allocation default varies significantly by state:

• New Jersey Spill Act: Joint and several; contribution right exists
• Alabama: Expressly non-joint-and-several. Ala. Code § 22-30A-8(c): "The liability of liable parties is not joint and several." Each party is liable only for costs proportional to its contribution to the hazardous substance at the site. No inter-party contribution mechanism -- § 22-30A-8(e) expressly provides that one party's non-payment does not increase another party's liability. The state (not a co-liable party) bears the shortfall.
• Texas SWDA: Apportionment allowed under Tex. Health & Safety Code §§ 361.322, 361.343; whether the burden rests on the party seeking apportionment requires verification against § 361.343 text
• California HSAA: Joint and several/strict liability

Enrique must run the analysis under both the federal CERCLA framework and the applicable state statute. A client in an Alabama multi-party site faces a fundamentally different structure than federal CERCLA -- no joint-and-several exposure to government, and no co-PRP contribution claims. The liability calculus is proportional from the outset.