March 01, 2012

Equity Versus Advocacy

John M. Barkett

In one of my lawyer lives, I serve as a Superfund allocation neutral. In my experience, parties who are strictly liable settle contribution actions if they can be made to think like the judge who is required to “equitably” allocate. Parties who instead believe their own expert advocates take their chances in trial and usually rue the decision.

State of New York v. Solvent Chemical Co., Inc. et al., 685 F. Supp. 2d 357 (W.D.N.Y. 2010) illustrates the point. Ultimately, this matter involved the allocation of response costs for four media: soils, “A-Zone” groundwater, “B-Zone” groundwater, and “Hot Spot” groundwater contamination. Solvent Chemical Co., Inc. (Solvent) had spent $9,124,328 addressing soils and groundwater contamination at the site. E.I. du Pont de Nemours & Company (DuPont), and Olin Corporation (Olin) were the allocation defendants. DuPont was the offsite source of chlorinated aliphatic compounds that reached the B-Zone and the Hot Spot. Olin had offsite mercury and chlorinated benzene releases that impacted soils, the B-Zone, and the Hot Spot. Olin also had a counterclaim against Solvent for response costs incurred in the remediation of an area called “Gill Creek.”

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