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Making Sense of Superfund Allocation Decisions: The Rough Justice of Negotiated and Litigated Allocations

September 2001

Citation: 31 ELR 11098

Issue: 9

Author: Robert P. Dahlquist

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) allows parties who are liable for environmental cleanup costs to seek contribution from other responsible parties. The statutory right of contribution, codified at 42 U.S.C. § 9213(f)(1), serves as the basis for allocating liability among responsible parties both in private cost recovery actions and in cost recovery actions commenced by governmental entities. The statute empowers a court to "allocate response costs among liable parties using such equitable factors as the court determines are appropriate."1

Aside from suggesting that Superfund allocations should be performed in "an equitable manner,"2 CERCLA provides no real guidance to parties who become embroiled in allocation disputes. Moreover, the relative lack of statutory guidance is not the only challenge facing parties in these disputes. "Allocation is a highly fact-intensive process that depends upon the particular circumstances of each case."3 Hence, in the early history of the Superfund program, most practitioners and parties found it "difficult to predict how costs might be allocated in particular cases."4 However, as time has passed, a body of case law and practical experience has emerged to enable parties and their counsel to more accurately predict the range of likely outcomes in allocation disputes, even in the most factually complex cases.

Mr. Dahlquist is a partner in the law firm of Latham & Watkins. He is the chair of the San Diego office's Environmental Department. His practice areas include environmental law, insurance coverage, and trial court/appellate litigation. He is a graduate of the University of Chicago Law School.

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