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The Plaintiff's Burden in CERCLA Contribution Actions: Unscrambling the First Circuit's Acushnet Decision

February 2001

Citation: ELR 10180

Author: John M. Hyson

In Acushnet Co. v. Mohasco Corp.,2 the U.S. Court of Appeals for the First Circuit affirmed a district court's action in granting summary judgment to defendants on their C3100 contribution claims without first conducting a full "equitable allocation" hearing. In its opinion, the First Circuit rejected the "causation" basis for the district court's ruling but nevertheless affirmed the district court's ruling because "the record was insufficient to permit a meaningful equitable allocation of remediation costs against any of these defendants under § 9613(f)."3

The issue in Acushnet is important. Those who undertake the cleanup of hazardous substances (whether voluntarily or involuntarily) often must incur enormous, multimillion dollar response costs. Not surprisingly, those who incur such costs are eager to obtain at least partial reimbursement of their costs by means of contribution claims under CERCLA § 113(f)(1). But the cost of litigating such claims is substantial because a district court may allocate a portion of the plaintiff's response costs to a defendant only if such allocation is justified by "such equitable factors as the court determines are appropriate." A full equitable allocation hearing thus requires: (1) the presentation of arguments as to the equitable factors that are appropriate, (2) the presentation of evidence regarding each of the appropriate factors that are determined to be appropriate, and (3) the evaluation and weighing of these factors by the court.4 All of this is needed in order for a court to determine a defendant's "equitable share" of the plaintiff's response costs. And all of this takes time and money.5

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