In Elementis Chromium L.P. v. Coastal States Petroleum Co., the Fifth Circuit addressed the apportionment of liability among defendants in a cleanup case under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The case arose after a manufacturing plant owned by Elementis Chromium L.P. became contaminated due to operations at a property owned by El Paso Merchant Energy-Petroleum and another owned by Amerada Hess Corp. that it sold Magellan Terminals Holdings L.P.
Elementis sued El Paso, which settled. El Paso then sued Hess and Magellan, seeking contribution for response costs at the Elementis plant. The case was tried in a bench trial in federal district court.
The court found El Paso 89.95% responsible, Hess and Magellan 10.05% responsible. It concluded that Magellan and Hess should be treated as a collective entity for the purposes of allocating responsibility, and imposed joint and several liability on them. Everyone appealed.
The Fifth Circuit affirmed the lower court's findings regarding El Paso, but reversed as to Hess and Magellan. It held:
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that El Paso bore the burden of proof to establish that Hess and Magellan each is a responsible party under § 107(a) of CERCLA;
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that § 113(f)(1) of CERCLA provides that “any person may seek contribution from any other person who is liable or potentially liable under § 107(a). . . . In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.”;
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that § 113(f) is intended to provide a liable party with a cause of action to “mitigate the harsh effects of joint and several liability” imposed under § 107(a);
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that the "overwhelming majority" of federal circuits have concluded that liability under § 113(f) is several, not joint and several;
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that the Fifth Circuit will follow the majority and hold that liability under § 113(f) should be several; and
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that the district court must determine the proper division of liability between Magellan and Hess.
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