The opinion of the court was delivered by: David G. Larimer United States District Judge
This is an action commenced by plaintiff, Seneca Meadows, Inc. ("SMI") and a related company, Macedon Homes, Inc., under the Comprehensive Environmental, Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601 et seq., originally against approximately two dozen corporate defendants.*fn1 SMI sought to recover from those defendants some of the costs that it has incurred in cleaning up a contaminated landfill site that it owns. The contaminated site (sometimes "the Site" or the "Tantalo Site") formerly known as the Tantalo Landfill, consists of about 26 acres south of Black Brook and is part of a 533-acre parcel, parts of which SMI currently uses as the Seneca Meadows landfill near Seneca Falls, New York.*fn2
The 26-acre site was classified by the New York State Department of Environmental Conservation ("DEC") in 1983 as a Class II Inactive Hazardous Waste Disposal Site. The Site was used by prior owners as an open dump and a landfill for decades, dating back to 1958. After a lessee, Wembley Construction, obtained a contract with the City of Rochester to dispose of municipal waste at the Site, it filled rather quickly and was closed in 1974.
In 1981, SMI obtained a permit to expand its operation and develop the landfill north of Black Brook. As part of that process, SMI was required to perform remediation at the Tantalo Site. To comply with DEC requirements, SMI entered into three different consent orders with the DEC (Exs. 1-3).*fn3 The first order, Ex. 1, was executed in 1992, and the last, Ex. 3, in December 2004. Together these consent orders set out SMI's obligations to prepare a remediation plan for the contaminated Tantalo Site. These consent orders memorialized SMI's responsibilities.
As of March 2005, SMI had incurred approximately $8 million in costs to remediate the Site, and the project is not yet complete. Plaintiff expects that, over time, it will incur about twice that amount to complete the multi-year project.
By this action, SMI seeks to recover some of those costs from the industrial entities who deposited hazardous substances at the Site during its lifetime, that is, up to 1974. SMI does not contend that all of the costs should be assumed by others. It does not dispute that it is also responsible for much of the necessary remediation. During pretrial proceedings in the case, SMI appeared to concede its own responsibility for a substantial portion of the costs of remediation. Its principal expert at trial, Dr. Kirk W. Brown, as discussed in more detail below, testified that in his opinion SMI was responsible for 50% of the remediation costs.
The originally-named defendants consist of numerous industrial entities near Seneca Falls who regularly caused refuse to be deposited at the Site prior to its closure in 1974. Because the Site had been closed for 30 years at the time this trial commenced, the parties had the difficult task of determining, with any type of precision, the identity of those depositing at the Site, the nature of the materials deposited, the nature of the hazardous substances, and the volume of refuse deposited by all generators.
By the time trial commenced, SMI's claims for contribution for response costs had been resolved through settlement or other disposition as to all defendants save one. The case proceeded to trial against a single defendant, Goulds Pumps, Inc. ("Goulds Pumps"), and the matter was tried to the Court for over ten days. The parties were granted leave to file post-trial briefs, and both sides have done so.
This Decision and Order constitutes my findings of fact and conclusions of law, as required by FED. R. CIV. P. 52. The principal issues are whether SMI does have a valid cause of action against Goulds Pumps under CERCLA and, if so, what percentage, if any, of the response costs should be allocated to Goulds Pumps.
II. JURISDICTION UNDER CERCLA
SMI commenced this litigation to recoup money spent on remediation at and near the Site, which is allegedly contaminated with pollutants. Goulds Pumps suggests that this Court lacks jurisdiction since SMI fails to meet the requirements for such an action under CERCLA. The dispute centers on whether SMI may bring an action under § 107(a) or 113(b) of the Act. Goulds Pumps contends that plaintiff may not proceed under either section.
This Court has addressed this issue in prior decisions, most recently just prior to trial when Goulds Pumps moved to dismiss for lack of jurisdiction and SMI sought leave to amend its complaint to reinstate a previously-dismissed claim under §107(a). One would think that jurisdictional issues would have been resolved sooner rather than later, but there have been three recent, important court decisions concerning jurisdiction that were decided during the pendency of this action. One was the United States Supreme Court decision in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004). The second is Bedford Affiliates v. Sills, 156 F.3d 416 (2d Cir. 1998), and the third was decided by the Second Circuit subsequent to the trial in this case, Consolidated Edison Co. v. UGI Utilities, Inc., 423 F.3d 90 (2d Cir. 2005) ("Con Ed"). Cooper Industries changed the landscape concerning contribution claims and the Con Ed case clarified, to some extent, the interplay between a § 107(a) action and an action for contribution under § 113(f), in the wake of Cooper Industries and Bedford Affiliates.
In my August 6, 1998 Decision and Order dismissing SMI's cause of action under CERCLA § 107, I stated that "[a]lthough the Second Circuit has not yet addressed this issue, every other circuit that has examined the issue has concluded that only an innocent party, who has undertaken a cleanup, may bring a § 107 cost recovery action to recover all of its response costs. A potentially responsible party ["PRP"], on the other hand, is limited to a § 113 contribution claim to recover only those response costs that exceed its equitable share." 16 F.Supp.2d 255, 258 (citing cases). I "agree[d] with the holding of these courts that a potentially responsible party, such as SMI, may not proceed against defendants under § 107, but that the nature of SMI's claim is for contribution under § 113." Id. The premise was that a party determined to be "responsible" could not recover all costs but only its fair share.
The following month, the Second Circuit joined those other circuits by holding that "an innocent party [may] sue for full recovery of its costs, i.e., indemnity under § 107(a), while a party that is itself liable may recover only those costs exceeding its pro rata share of the entire cleanup expenditure, i.e., contribution under § 113(f)(1)." Bedford Affiliates, 156 F.3d at 424. The court also stated that "a potentially responsible person under § 107(a) that is not entitled to any of the defenses enumerated under § 107(b) ... cannot maintain a § 107(a) action against another potentially responsible person," but "instead must rely on a claim for contribution provided for in CERCLA 113(f)(1)."*fn4 That decision supported my prior ruling that SMI could only pursue a contribution claim under § 113.
In 2004, however, the Supreme Court held in Cooper Industries, that "to assert a contribution claim under § 113(f), a party must satisfy the conditions of either § 113(f)(1) or § 113(f)(3)(B)," i.e., the party must either (1) have been sued under § 106 (which authorizes the federal government to compel responsible parties to clean up contaminated areas) or § 107, see 42 U.S.C. § 9613(f)(1), or (2) have "resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement." 42 U.S.C. § 9613(f)(3)(B). That decision, then, narrowed the circumstances in which a party may bring a contribution action under § 113. Cf. Bedford Affiliates, 156 F.3d at 425 (holding that party that had not been sued under § 106 or § 107 could seek contribution under § 113(f)(1)). The Court expressly declined, however, to decide whether a PRP that is foreclosed from bringing suit under § 113(f) may nonetheless seek some cost recovery or contribution under § 107. Cooper Industries, 543 U.S. at 170.
The following year, after trial of this case, the Second Circuit held in Con Ed, that § 113(f)(3)(B) "create[s] a contribution right only when liability for CERCLA claims, rather than some broader category of legal claims, is resolved." 423 F.3d at 95. In Con Ed, the Second Circuit held that although the plaintiff utility company, which had voluntarily taken measures to clean up certain hazardous waste sites, could not, under the Supreme Court's holding in Cooper Industries, seek contribution from another PRP pursuant to § 113(f), it could "pursue its suit under section 107(a) because, in light of Cooper Industries, Con Ed's costs to clean up the sites ... are 'costs of response' within the meaning of that section." 423 F.3d at 97. Specifically, the court held that "section 107(a) permits a party that has not been sued or made to participate in an administrative proceeding, but that, if sued, would be held liable under section 107(a), to recover necessary response costs incurred voluntarily, not under a court or administrative order or judgment." Id. at 100.
Con Ed did address the interplay between §§ 107(a) and 113(f) in the wake of Cooper Industries, see Con Ed, 423 F.3d at 94-95, but the waters in this area still remain somewhat murky.*fn5 Applying the principles set forth in these recent cases to the facts before me, however, I adhere to my prior ruling that SMI may seek contribution under § 113(f)(3)(B). Alternatively, I believe it has a remedy under § 107(a).
As stated, § 113(f)(3)(B) permits a contribution action to be brought by a party that has "resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement." Here, SMI did enter into consent orders that resolved its liability to New York State. The third, most recent such order provided that [t]o the extent authorized under 42 U.S.C. Section 9613, ... [SMI] shall be deemed to have resolved its liability to the State for purposes of contribution protection provided by CERCLA Section 113(f)(2) for "matters addressed" pursuant to and in accordance with this Order. ... Furthermore, to the extent authorized under 42 U.S.C. Section 9613(f)(3)(B), by entering into this administrative settlement of liability, if any, for some or all of the response action and/or for some or all of the costs of such action, [SMI] is entitled to seek contribution from any person except those who are entitled to contribution protection under 42 U.S.C. Section 9613(f)(2).
Plaintiff's Ex. 3 at 19. The order also provided that upon the DEC's acceptance of a final report evidencing that no further remedial action (other than monitoring) is needed, "such acceptance shall constitute a release and covenant not to sue for each and every claim ... which the Department has or may have pursuant to Article 27, Title 13 of the ECL or pursuant to any other provision of statutory or common law ..." relating to the disposal of hazardous wastes at the Site. Plaintiff's Ex. 3 at 6. Thus, SMI and the DEC clearly viewed the consent order as a settlement of SMI's liability to the State for purposes of CERCLA, and they agreed that upon completion of the remediation, the DEC would release SMI from all liability under the ECL or "any other provision of statutory ... law," which obviously includes CERCLA.
Goulds Pumps contends that the DEC lacked authority to settle SMI's liability under CERCLA because the Environmental Protection Agency ("EPA") never "delegated" its CERCLA authority to the DEC. In support of that contention, Goulds Pumps relies upon case law stating that "[a]bsent an express delegation by the EPA, a state has no CERCLA authority." W.R. Grace & Co.-Conn. v. Zotos Int'l, Inc., No. 98-CV-838, 2005 WL 1076117, at *4 (W.D.N.Y. May 3, 2005) (citing 42 U.S.C. § 9604(d)); see also Con Ed, 423 F.3d at 96 ("section 113(f)(3)(B) does not permit contribution actions based on the resolution of liability for state law--but not CERCLA--claims") (citing W.R. Grace, 2005 WL 1076117, at *7).
W.R. Grace is distinguishable from the case at bar, however. In support of the quoted proposition, the W.R. Grace court cited CERCLA § 104(d)(1)(A), which permits a state to "apply to the [EPA] to carry out actions authorized in this section. If the [EPA] determines that the State ... has the capability to carry out any or all of such actions in accordance with the criteria and priorities established pursuant to section 9605(a)(8) of this title and to carry out related enforcement actions, the [EPA] may enter into a contract or cooperative agreement with the State ... to carry out such actions." "[W]here a state receives such delegation, its actions taken pursuant to the cooperative agreement are on behalf of the Federal government." W.R. Grace, 2005 WL 1076117, at *4 (citing 42 U.S.C. § 9604(d)(3)). Cooperative agreements and the delegation of CERCLA authority are specific to one or more facilities. Id. (citing 42 U.S.C. § 9604(d)(1)(B)).
The court in W.R. Grace did hold that the consent order between the plaintiff and the DEC in that case did not constitute a settlement of the plaintiff's CERCLA liability, in part because there was no indication that the DEC was operating pursuant to a cooperative agreement or contract with the EPA. In addition, though, the consent order "d[id] not state that the DEC was exercising any authority under CERCLA, d[id] not indicate that the EPA concurred with the remedy selected and d[id] not provide a release as to any CERCLA claims. In fact, the 1988 Consent Order ma[de] no mention of CERCLA at all." 2005 WL 1076117, at *7 (emphasis added).
In contrast, the consent orders here expressly state that the parties agreed that SMI had resolved its liability to the state for purposes of CERCLA. In addition, while there is no evidence before me that the DEC was operating pursuant to a cooperative agreement with the EPA, that does not mean that SMI could not have "resolved its liability to [the] State" by means of the consent orders. 42 U.S.C. § 9613(f)(3)(B). Although a state may not be able to act on behalf of the federal government absent a delegation of authority from the EPA, or to completely resolve a party's CERCLA liability, § 107(a)(4)(A) "contains no requirement that a state obtain authorization from the federal government prior to engaging in response actions. States need not obtain EPA authorization to clean up hazardous waste sites and recover costs from potentially responsible parties." Washington State Dep't of Transp. v. Natural Gas Co., Pacificorp, 59 F.3d 793, 801 (9th Cir. 1995) (citing State of New York v. Shore Realty Corp., 759 F.2d 1032, 1047 (2d Cir. 1985) ("Shore apparently is arguing that EPA has ruled that the State cannot act on its own and seek liability under CERCLA. We disagree. Congress envisioned states' using their own resources for cleanup and recovering those costs from polluters under section 9607(a)(4)(A)").
As Pacificorp and Shore Realty explain, then, the DEC could have taken steps on its own to remediate the Site, and then sought recovery of its response costs from SMI under CERCLA. In addition, the December 2004 consent order provided that SMI "shall pay to the Department a sum of money which shall represent reimbursement for State Costs for work performed at or in connection with the Site pursuant to this Order." Plaintiff's Ex. 3 at 9. In my view, therefore, the consent orders amount to a settlement of SMI's liability to the State not just under state law, but under CERCLA as well. SMI may therefore seek contribution from Goulds Pumps under § 113(f)(3)(B). See Benderson Dev. Co. v. Neumade Products Corp., No. 98-CV-0241, 2005 WL 1397013, at *12 (W.D.N.Y. June 13, 2005) (plaintiff who had entered into consent order with DEC providing that "the provisions of 42 U.S.C. Section 9613(f)(3) shall apply" to the plaintiff could seek contribution from third party); Fireman's Fund Ins. Co. v. City of Lodi, California, 296 F.Supp.2d 1197, 1212 (E.D.Cal. 2003) (cooperative agreement between state agency and city was "administrative settlement" within meaning of CERCLA § 113(f)(3)(B), since agreement partially resolved city's liability to state for past and future response costs based upon design, construction, and operation of city's sewers).*fn6
Even if the consent orders here could not be deemed a settlement of SMI's CERCLA liability to the State, thus foreclosing a § 113(f) claim under Cooper Industries, I find that SMI could seek relief under § 107. The law on this subject has changed since I ruled previously that no such action would lie.
The one overarching principle that remains as clear today as before Con Ed and Cooper Industries is that CERCLA should be interpreted in a way that will further "one of CERCLA's main goals, 'encourag[ing] private parties to assume the financial responsibility of cleanup by allowing them to seek recovery from others.'" Con Ed, 423 F.3d at 100 (quoting Key Tronic Corp. v. United States, 511 U.S. 809, 819 n. 13 (1994)). In Con Ed, for example, the Court of Appeals stated that the court "would be impermissibly discouraging voluntary cleanup were we to read section 107(a) to preclude parties that, if sued, would be held liable under section 107(a) from recovering necessary response costs," because, "[w]ere this economic disincentive in place, such parties would likely wait until they are sued to commence cleaning up any site for which they are not exclusively responsible because of their inability to be reimbursed for cleanup expenditures in the absence of a suit." Id. See also Syms v. Olin Corp., 408 F.3d 93, 106 n. 8 (2d Cir. 2005) (noting "CERCLA's stated purpose of 'induc[ing] such persons voluntarily to pursue appropriate environmental response actions with respect to inactive hazardous waste sites'") (quoting H.R.Rep. No. 96-1016(I), at 17 (1980), reprinted in 1980 U.S.C.C.A.N. 6119, 6120).*fn7
It is true, of course, that Bedford Affiliates held that, in general, a PRP cannot maintain a § 107(a) action against another potentially responsible person. 156 F.3d at 425. As several courts--including the Second Circuit--have recognized, however, Bedford Affiliates is of questionable validity following the Supreme Court's decision in Cooper Industries. In Syms, for instance, the court observed that "[the combination of Cooper Industries and Bedford Affiliates, if the latter remains unaltered, would create a perverse incentive for PRP to wait until they are sued before incurring response costs." 408 F.3d at 106 n. 8. Because Cooper Industries was decided after oral argument was held in Syms, and the parties had not fully briefed or argued its impact on Bedford Affiliates, the Second Circuit remanded the case "to allow the district court to address in the first instance the issue of [the plaintiff's] eligibility to sue under § 107(a)." Id. at 107.
In Con Ed, the Second Circuit likewise stated that "Cooper Industries may call into question the rationale of Bedford Affiliates's section 107(a) holding," and that "it might be argued that, in the wake of Cooper Industries, Bedford Affiliates's section 107(a) holding can no longer stand." 423 F.3d at 101 n. 12. The court found it unnecessary to decide whether Bedford Affiliates remains good law, however, because of certain factual distinctions between Bedford Affiliates and Con Ed. Id. at 100-02.
I recognize, then, that the Second Circuit has not expressly overruled Bedford Affiliates, and that the Cooper Industries Court also declined to decide whether Bedford Affiliates and similar cases from other circuits were correctly decided with respect to whether a PRP may pursue other PRPs under § 107(a). 543 U.S. at 169-70. See Benderson Dev. Co., 2005 WL 1397013, at *11 ("It is this Court's opinion that Bedford Affiliates remains controlling precedent in this circuit"). Nevertheless, under the facts of the case before me, in light of CERCLA's purpose to encourage prompt cleanup of hazardous waste sites, and keeping in mind the concerns enunciated by the Second Circuit in Syms and Con Ed, I do not believe that Bedford Affiliates' holding should be applied here in a simplistic, mechanical fashion.
A key factor to consider here is the distinction between a cost recovery action seeking indemnity--i.e., full recovery of all the plaintiff's response costs, and an action seeking contribution--i.e., recoupment of the portion of costs exceeding the plaintiff's equitable share of the total costs. In Con Ed, the court, discussing the holding of Bedford Affiliates, stated that "importantly, [the plaintiff in Bedford Affiliates] argued that it should be able to recover one hundred percent of its costs" under § 107. Con Ed, 423 F.3d at 98 (emphasis added). The court later explained why that was "important": the Bedford Affiliates plaintiff, having agreed to the consent order, put the extent of its liability at issue by proceeding to seek recovery under both sections 107(a) and 113(f)(1). As noted, under section 113(f), the district court found that the plaintiff was partially [five percent] liable for the costs of response. To rule that in those circumstances Bedford could have proceeded under section 107(a) to seek recovery of one hundred percent of the costs, this court would have had to hold in substance that a party already adjudicated liable for a portion of the costs of response under section 113(f)(1) could circumvent that section by recovering under section 107(a) that portion of the costs attributed to it by the adjudication. Id. at 102. In other words, it would make no sense to find that the plaintiff was liable for five percent of the response costs, and then to hold that the plaintiff could seek to recover that very five-percent share of the costs. That is not the situation here. SMI is not seeking to recoup all of its response costs from Goulds Pumps, but only the portion of those costs that it alleges is allocable to Goulds Pumps.
The Con Ed court also noted that though the Court in Cooper Affiliates cited (and declined to consider the correctness of) a long list of circuit court cases stating that PRPs could not pursue a section 107(a) action, "[all but one of those cases are inapposite [because] they considered plaintiffs that had either been held liable--or, because they had been sued, might imminently be held liable--under an administrative or court order or judgment." Con Ed, 423 F.3d at 102 (citing cases). The court contrasted that with the situation before it, involving a party that had incurred response costs voluntarily. The court reasoned that funds expended voluntarily for cleanup might more properly be characterized as "response costs" than would funds spent "solely due to the imposition of liability through a final administrative order." Id. at 101.
In the case at bar, SMI was operating under consent orders issued by the DEC, but it would not be entirely accurate to characterize its response costs as "involuntary." For one thing, the consent orders expressly provided that SMI admitted no liability or fault. See Plaintiff's Ex. 1 at 3; Ex. 2 at 2; Ex. 3 at 2. In addition, SMI had not been sued, and there was no threat that SMI "might imminently be held liable ... under an administrative or court order or judgment." The impetus behind the process leading to the consent orders was SMI's desire to expand the landfill, and the conditions that the DEC placed on SMI in order to obtain the necessary authorization to do so. SMI may not have acted entirely out of altruistic motives, but neither had it been found liable, or even sued at that point.
It should also be pointed out that 113(f) itself expressly provides that it does not necessarily provide the only avenue by which a PRP can seek contribution. Section 113(f)(1) states, in part, that: "Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 of this title or section 9607 of this title." This sentence, which the Cooper Industries Court described as a "saving clause," 543 U.S. at 166, "rebuts any presumption that the express right of contribution provided by the enabling clause is the exclusive cause of action for contribution available to a PRP." Id. at 166-67. See Viacom, Inc. v. United States, 404 F.Supp.2d 3, 7 (D.D.C. 2005) (stating that Cooper Affiliates "clarified ... that § 113(f) does not bar other types of response cost recovery actions," and holding that PRP that cannot sue for contribution due to the absence of a pre-existing civil action, may still seek indemnification from another PRP under § 113(f)); see also McDonald v. Sun Oil Co., ___ F.Supp.2d ___, 2006 WL 696316, at *16 (D.Or. 2006) (concluding that "[w]hen a plaintiff falls outside the technical requirements of § 113, the contribution claim is allowed under § 107, and the mechanics of apportionment are governed by the factors established in § 113").
Finally, I note that SMI and the DEC entered into the consent orders prior to the issuance of the Supreme Court's decision in Cooper Industries.*fn8 They clearly intended SMI to enjoy both protection from contribution claims under CERCLA § 113(f)(2), and the right to seek contribution from others pursuant to § 113(f)(3)(B).*fn9 It would be inequitable, and inconsistent with the purposes of CERCLA as it has been interpreted and applied by the Second Circuit both before and after Cooper Industries, to hold that what was at worst a technical omission--and one that took on potential significance only after Cooper Industries was decided--now bars SMI from seeking any CERCLA contribution at all.
III. FACTORS UTILIZED TO ALLOCATE RESPONSE COSTS
SMI seeks recovery of response costs from Goulds Pumps as a person who deposited hazardous waste at the Site. To establish liability under CERCLA, plaintiff must establish: that the defendant is a "covered person" under the Act; that the site is a "facility"; that there was a release of hazardous substances; and that, as a result, the plaintiff incurred response costs that conformed to the National Contingency Plan as administered by the EPA. United States v. Alcan, 990 F.2d 711, 719-20 (2d Cir. 1993). CERCLA imposes strict liability on "any person" who deposits such material. Id. at 721.
In determining liability, plaintiff is not required to show causation, that is, that the pollutants deposited by the defendant were what necessitated the remediation. Prisco v. A & D Carting Corporation, 168 F.3d 593, 606 (2d Cir. 1999); B. F. Goodrich v. Betkowski, 99 F.3d 505, 517 (2d Cir. 1976).
In the instant case, I believe that SMI has established a prima facie case of the general liability of Goulds Pumps under CERCLA. It is certainly not disputed that some response costs consistent with the National Contingency Plan were incurred by SMI, that the Site is a defined "facility," and that Goulds Pumps, a "person" who arranged for disposal of hazardous substances, see 42 U.S.C. § 9607(a)(3), is a person within one of the four categories of responsible persons. I find that the proof is sufficient to support a finding that from 1968 to 1974, Goulds Pumps did cause refuse to be deposited at the Site that, by definition, constituted a hazardous substance.
At trial, and in its post-trial brief (Dkt. # 279), Goulds Pumps did not claim that plaintiff had failed to make out a prima facie case under CERCLA's strict liability provisions. Instead, Goulds Pumps argues that the proof establishes the complete affirmative defense of divisibility, under § 107(b), that is, that the acts of another caused the release of hazardous waste and the resulting damages. Evidence and concepts relating to an affirmative defense on the one hand, and allocation of response costs in a contribution case, are sometimes discussed interchangeably. But, a defendant, in order to prevail on this affirmative defense, must establish that the harm was caused by a third party and that the defendant's pollution constituted no more than background contamination. Alcan, 990 F.2d at 722.
The focus of this trial, though, has been about allocation of the response costs, and not on any affirmative defense. The factors advanced by Goulds Pumps to minimize its exposure are, of course, germane to the allocation inquiry. The focus, then, must be on the appropriate allocation of costs.
Section § 113(f)(1) directs courts to allocate cleanup costs between responsible parties "using such equitable factors as the court determines are appropriate," and does not limit courts to any particular list of factors. "The statute's expansive language instead affords a district court broad discretion to balance the equities in the interests of justice." Bedford Affiliates, 156 F.3d at 429. In a given case, "a court may consider several factors or a few, depending on the totality of the circumstances and equitable considerations." New Jersey Turnpike Auth. v. PPG Indus., Inc., 197 F.3d 96, 104 (3d Cir. 1999) (citation omitted). See also Environmental Transp. Systems, Inc. v. ENSCO, Inc., 969 F.2d 503, 509 (7th Cir. 1992) ("[T]he language of [CERCLA § 113(f) ] clearly indicates Congress's intent to allow courts to determine what factors should be considered in their own discretion without requiring a court to consider any particular list of factors"); United States v. R.W. Meyer, Inc., 932 F.2d 568, 571 (6th Cir. 1991) ("The trial judge was well within the broad discretion afforded by the statute in making the apportionment he did"). In addition, "in an appropriate case, the court might properly exercise its discretion under § 113(f)(1) to allocate a smaller portion or even no portion of the cleanup cost to a non-polluting PRP landowner ... ." Western Properties Service Corp. v. Shell Oil Co., 358 F.3d 678, 690 (9th Cir. 2004).
"Courts have considered a potpourri of factors in equitably allocating CERCLA response costs among liable parties." United States v. Davis, 31 F.Supp.2d 45, 63 (D.R.I. 1998), aff'd, 261 F.3d 1 (1st Cir. 2001). Many courts, for instance, have applied the six so-called "Gore factors": (1) the ability of the parties to demonstrate that their contribution to the site can be distinguished; (2) the amount of hazardous waste involved; (3) the degree of toxicity of the hazardous waste involved; (4) the degree of involvement by the parties in the generation, transportation, treatment, storage or disposal of the hazardous waste; (5) the degree of care exercised by the parties with respect to the hazardous waste concerned, taking into account the characteristic of such waste; and (6) the degree of cooperation by the parties with federal, state or local officials to prevent any harm to the public health or the environment. See, e.g., United States v. Hercules, Inc., 247 F.3d 706, 718 (8th Cir. 2001); Acushnet Co. v. Mohasco Corp., 191 F.3d 69, 74 (1st Cir. 1999); Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d 344, 354 (6th Cir. 1998).*fn10 Other factors that have been taken into account are: the financial resources of the liable parties; the extent of the benefit that the parties received from the hazardous waste disposal practices; the extent of the parties' knowledge and awareness of the environmental contamination of the site; the efforts made, if any, to prevent environmental harm; and the efforts made to settle the case. Davis, 31 F.Supp.2d at 63 (citing cases).
Among these myriad factors, courts frequently look in particular at the four "critical factors" identified by Judge Ernest C. Torres in Davis: (1) the extent to which cleanup costs are attributable to wastes for which a party is responsible; (2) the party's level of culpability; (3) the degree to which the party benefitted from disposal of the waste; and (4) the party's ability to pay its share of the cost. See, e.g., United States v. Consolidation Coal Co., 184 F.Supp.2d 723, 744 (S.D.Ohio 2002), aff'd in part, vacated on other grounds in part, 345 F.3d 409 (6th Cir. 2003). See also Robert P. Dahlquist, Making Sense of Superfund Allocation Decisions: The Rough Justice of Negotiated and Litigated Allocations, 31 Envtl. L. Rep. 11098, 11099 (2001) ("The Gore factors are most relevant in academic and ...