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Click here for the full text of this decision FACTS:Elementis Chromium LP and Elementis Chromium, Inc. (collectively Elementis) own a manufacturing plant in Corpus Christi that became contaminated with hydrocarbons as a result of operations at one or more nearby properties: 1. a facility owned by El Paso, located to the southwest of the Elementis property; and 2. a facility formerly owned by Hess and purchased by Magellan in 1999; this property is located to the south of the Elementis property. Elementis sued El Paso for recovery and/or contribution of response costs to clean up the hydrocarbon contamination on its property. Elementis and El Paso ultimately settled their case, but El Paso then brought a third-party action against Hess and Magellan, seeking contribution for response costs at the Elementis site. The case went to a bench trial in the Southern District of Texas, where Magellan and Hess were represented by the same counsel. In its findings of fact, the district court concluded that El Paso was 89.95 percent responsible for the contamination at the Elementis property, and that Magellan and Hess were 10.05 percent responsible. Treating Magellan and Hess as a collective entity for the purposes of allocating responsibility, the district court imposed joint and several liability upon the two companies for their share of the cleanup costs. Magellan timely brought a Motion to Amend Findings and Judgment in an effort to receive a specific allocation of responsibility. The district court declined to decide the issue whether liability under CERCLA �113(f) was several only, and instead denied the motion on the grounds that Magellan and Hess had waived their argument by not presenting evidence or arguments at trial. HOLDING:Magellan did not waive its objection to the imposition of joint and several liability against it; the court reverses the district court’s holding to the contrary. Because liability under CERCLA �113(f) is several only, the decision of the district court is vacated and remanded. The court affirms the district court’s allocation of future response costs to El Paso, on remand, the district court need only determine the proper allocation of Magellan and Hess’s 10.05 percent share of response costs. There is no dispute that Magellan included its objection to the imposition of joint and several liability in the pretrial order. An issue included in the pretrial order may be waived where a litigant makes a “specific concession” as to that issue at a later date. The court finds no specific concession by counsel on the issue of joint and several liability. The court does not deem Magellan’s objections waived due to its failure to present evidence. The district court expressed frustration with the fact that Magellan did not prominently argue the issue of joint and several liability at trial, but the company’s failure to do so is understandable, this court states, given that its position at trial was that it was not liable for any of the contamination at the Elementis site. It is El Paso, as the party bringing an action for contribution, that bore the burden of proving the defendant is a responsible party under CERCLA �107(a) and also the burden of proving the defendant’s equitable share of costs. El Paso argues that it does not have to prove liability as to individual defendants in a CERCLA contribution action, but it cites no case law in support of this proposition. The court declines to relieve El Paso of its burden of proof. Magellan cannot be faulted for inadequate presentation of evidence as to the proper allocation of costs when it never bore the burden of proof in the first place. The court finds that the district court abused its discretion in its determination that Magellan waived its objections to the imposition of joint and several liability against it. When one liable party sues another liable party under CERCLA, the action is not a cost recovery action under �107(a), and the imposition of joint and several liability is inappropriate. Because liability is several only in CERCLA contribution actions, the district court erred in imposing joint and several liability upon Hess and Magellan. The court did not clearly err in its allocation of response costs to El Paso. OPINION:Jones, C.J.; Jones, C.J., King and Dennis, J.J.

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