Forty-one years after enactment of the federal Superfund statute, the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Sections 9601-75, we continue to lack clear guidance from the courts or Congress on how to allocate among the responsible parties the cost of cleaning up a contaminated site. The absence of a black-letter allocation rule should mean that each practitioner in each case might wish to develop reasons why his preferred allocation among the responsible parties ought to govern. Careful thinking about how to do that advocacy should also lead to obvious ways in which the parties can avoid discovery into issues that do not swing the allocation very much, and thereby to case management orders that save all the litigants and the court a lot of time and money. How to do that careful thinking deserves a longer, more fully annotated exposition, but here is a framework.

CERCLA Section 113(f) authorizes contribution claims among parties jointly and severally liable for the same response actions or costs. Section 113(f)(1) goes on to provide that “in resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.” See 42 U.S.C. Section 9613(f)(1). In other words, district courts are supposed to allocate costs among responsible parties fairly.

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