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UNITED STATES v. KRAMER

January 29, 1997

UNITED STATES OF AMERICA, Plaintiff,
v.
HELEN KRAMER, et al., Defendants. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiffs, v. ALMO ANTI-POLLUTION SERVICES CORP., et al., Defendants.



The opinion of the court was delivered by: SIMANDLE

 SIMANDLE, District Judge:

 Presently before the court in this Superfund cost-recovery action is a motion in limine brought by certain of the direct defendants in this case *fn1" ("Direct Defendants"). The Direct Defendants' motion asks the court to resolve the following issue of law prior to the commencement of trial in this case:

 
Whether, as a matter of law, the orphan share of responsibility for response costs (however and in whatever amount that share may ultimately be defined or determined to be) must be borne in its entirety by the direct defendants and not to any extent by the third-party defendants, or whether, as a matter of law, the Court may allocate the orphan share of responsibility among all parties, including not only the direct defendants, but also the third-party defendants, under Section 113(f)(1) of the CERCLA, using such equitable factors as the Court determines are appropriate.

 (Direct Def. Br. at n.2). For the reasons discussed herein, the Direct Defendants' motion in limine will be granted, and the court determines that section 113(f)(1) of CERCLA, 42 U.S.C. § 9213(f), permits equitable allocation of a portion of responsibility for such orphan share, if any, to liable third-party defendants using such equitable factors as the court determines are appropriate.

 I. Background

 The United States and the State of New Jersey brought these consolidated cases pursuant to section 107(a) of CERCLA, 42 U.S.C. § 9607(a), to recover costs incurred at the Helen Kramer Landfill in Mantua, New Jersey. This is a major Superfund site at which the federal government and the State of New Jersey have incurred substantial costs claimed to exceed $ 100 million to remedy conditions at the landfill and its environs.

 There are a total of approximately 30 direct defendants in this case, depending on how several joint entities are counted. The government alleges that those direct defendants, as owners or operators of the landfill, and as generators and/or haulers of hazardous substances, are liable for the cleanup of the Kramer landfill pursuant to section 107(a)(1)(3), & (4) of CERCLA, 42 U.S.C. § 9607(a)(1)(3), &(4). Several hundred other entities have been brought into this case as third-party defendants, as alleged generators or haulers of hazardous substances from whom defendants/third-party plaintiffs seek contribution pursuant to section 113(f) of CERCLA, 42 U.S.C. § 9613(f). Collectively, the direct defendants and third-party defendants are called potentially responsible parties (or "PRP's").

 Because this motion concerns a question of law and this court has previously set forth in detail the facts underlying this case, see, e.g., United States v. Kramer, 757 F. Supp. 397 (D.N.J. 1991), and 913 F. Supp. 848 (1995), further discussion herein of the events leading up to the Direct Defendants' motion is unnecessary.

 II. Discussion

 A. The Question Presented

 Before reaching the merits of the Direct Defendants' motion, it is necessary to explain what the motion seeks and what it does not seek. Generally stated, the Direct Defendants are asking the court to determine whether defendants (that is, parties from which the United States seeks CERCLA cost recovery and remediation directly under section 107(a)) and third-party defendants (that is, parties joined as potentially responsible parties by the defendants seeking contribution under section 113 of CERCLA, but which have not been joined as direct defendants by the United States) can both be called upon, if found to be liable, to bear some equitable share of monetary responsibility for parties that are defunct or otherwise unable to pay a full share, and for recovery of cleanup costs attributed to hazardous wastes of unknown origin. At almost any multi-party hazardous waste site, such as the Helen Kramer Landfill, many tons of hazardous wastes may not be traceable to any known generator or transporter. Similarly, a party otherwise qualifying as a responsible party under CERCLA may be defunct, bankrupt, uninsured, or otherwise lack the resources to bear its ideal measure of responsibility in monetary terms. This inability to account for all hazardous wastestreams, or to assign an ideal measure of monetary responsibility to an otherwise responsible party, gives rise to an "orphan share." An orphan share can be measured by the gap between a party's narrowly defined ideal share (based on perfect knowledge of harm caused by that party only, expressed as a proportion of the total costs of remediation at the site) and the party's actual share (if equitably apportioned among all responsible parties considering such factors as, for example, the proportion of the party's wastes -- however measured -- to the total wastes for which responsible parties have been identified, and the ability of each party to pay for its responsible share when financially disabled parties are excluded from consideration). There are, of course, many ways to define such an "orphan share." This opinion uses the term "orphan share" to describe the concept that an equitable allocation among PRP's under CERCLA may take into account the need to increase the ideal allocation of a party to reflect the inability of other entities, known and unknown, to pay a full share, and the inability to ascribe some portion of the wastes to any known entity, all to be considered by the court before fixing the responsible party's actual share. This motion asks whether CERCLA permits such a concept to be applied to the determination of the share of a responsible party which is a third-party defendant from which contribution is sought by a direct defendant, or whether direct defendants must bear the orphan share among themselves, passing no portion on to third-party defendants by way of a section 113(f) contribution claim.

 The court, however, is not being asked to determine whether there will be an orphan share in this case, or what the size of any such share might be, or to identify all bases on which the court plans to apportion liability in this case. Moreover, the Direct Defendants are not seeking a court declaration that if there is an orphan share of some kind in this case, the third-party defendants will necessarily have to bear partial responsibility for that share. Similarly, the court is not called upon to determine whether any party's share is divisible from all other shares under the principles of United States v. Alcan Aluminum Corp., 964 F.2d 252 (3d Cir. 1992). Likewise, this motion does not require the court to determine the consequences of a 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 ...


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