party's failure to pay a CERCLA judgment after that judgment has been entered. Rather, the present motion asks the court to determine that it will not, as a matter of law, rule out the possibility that the liability of the third-party defendants may be allocated in an amount higher than it otherwise would have been in this case if all PRP's were identifiable and financially solvent, and if all hazardous wastes could be allocated to a specific known party based upon perfect information.
B. The Ripeness Issue
As a threshold matter, the court will explain why, contrary to the arguments of the third-party defendants, the Direct Defendants' motion in limine is ripe for adjudication at this time.
This case has been managed upon two "tracks," the litigation track in which the United States and State of New Jersey will first try their direct claims arising under CERCLA and other statutes against the direct defendants, and a settlement track in which over 90% of the PRP's have engaged in a court-annexed process of gathering and analyzing data under a settlement protocol followed by negotiations under the guidance of mediators selected by these settlement process parties themselves. The commencement of the first phase of the trial of the government's direct claims is fast approaching, and the court-annexed settlement process is likewise in progress simultaneously.
The third-party defendants contend, inter alia, that the Direct Defendants' motion is not sufficiently "definite or concrete" for resolution, and that if the court were to rule on the motion at this time, its ruling would constitute an advisory opinion. They point out that no judgments have been entered against the defendants, nor have the defendants consummated a settlement with the United States, so that the adjudication of questions relating to the third-party contribution action are premature. The court concludes, however, that this question of law is a live controversy presented by the parties arising from the pleadings.
The Direct Defendants' motion seeks resolution of an almost purely legal issue, specifically, the scope of the authority for equitable allocation granted to district courts by section 113(f)(1) of CERCLA.
See Section II.C, infra. Certainly, this court has the authority to rule pretrial on an issue of law that will shape subsequent proceedings in this case. See Fed. R. Civ. P. 16(c)(1) ("At any conference under this rule consideration may be given, and the court may take appropriate action, with respect to . . . the formulation and simplification of the issues, including the elimination of frivolous claims or defenses."). Just as the court may resolve generic choice-of-law issues before a trial, it may inform the parties of its interpretation of the law that will govern the upcoming trial in this CERCLA case.
The legal issue is indeed in dispute. The third-party defendants take the position that a Direct Defendant, as a contribution plaintiff who, in the first instance, is jointly and severally liable to the United States for all costs under section 107(a) cannot, as a matter of law, recover any portion of an orphan share from the third-party defendants from whom they seek contribution under section 113(f), because liability of a third-party defendant under section 113(f) is "several" but not "joint," so that the Direct Defendant must absorb the orphan share in its entirety. Direct Defendants, in contrast, urge the court to find that a court may apportion the orphan share (including any unallocable or otherwise unfunded share of liability) among all parties found to be liable, using such equitable factors as the court may find to be relevant and applicable under section 113(f).
Despite the fact that the Direct Defendants' in limine motion is phrased in broad terms, the court concludes that it is able to render an informed decision on the motion, and one that will help to narrow and define the issues remaining in this complex case.
The issue is ripe for decision because the court is unable to discern what facts might subsequently be developed that would facilitate the disposition of the Direct Defendants' motion. Decision of the motion will aid the parties in determining what further discovery is needed pertaining to equitable allocation, as well as the likelihood that evidence pertaining to the "orphan share" will be admissible at trial.
The Direct Defendants' motion requires the court to analyze the interplay between the two primary liability provisions of the CERCLA statute: section 107(a) and section 113(f)(1). Section 107(a) imposes joint and several liability on four classes of responsible parties for landfill cleanup costs incurred by the United States:
1) the owner and operator of the facility; 2) any person who owned or operated the facility at the time of disposal of any hazardous substance; 3) any person who by contract, agreement or otherwise arranged for disposal or treatment of hazardous substances owned or possessed by that person; and 4) any person who accepted any hazardous substances for transport to disposal or treatment facilities selected by that person.