Contribution Liability Under CERCLA Can Be Joint

The Seventh Circuit Court of Appeals has held in the case of Browning - Ferris Industries v. Ter Maat, 1999 WL 988974 (7th Cir. Nov. 1, 1999) that contribution liability under Section 113(f) of CERCLA can be joint as well as several. The District Court had found two former corporate operators of a landfill to be equally liable for a portion of the cleanup costs paid for by Browning - Ferris. The District Court ruled, however, that CERCLA required him to allocate liability between the two corporations severally rather than jointly. Since one of the corporations had little or no assets, the result would be that Browning - Ferris would only be able to recover half its costs. Therefore it appealed. The Court of Appeals reversed, finding nothing in Section 113(f) that precluded joint liability in cases where it would be inequitable not to do so. "It does not follow that if, as in this case, contribution is sought from more than one party, the defendants cannot be held jointly liable. It is up to the district judge, guided only by equitable considerations ... to decide, and it is easy to imagine cases, of which this may be one, where such considerations weigh heavily in favor of joint liability.

The Circuit Court also upheld the lower court's refusal to pierce the corporate veil and hold Ter Maat liable as a shareholder of the corporate defendants. It remanded to the District Court, however, for a determination of whether the facts justified holding Ter Maat liable personally as an operator of the landfill. "If TerMaat did not merely direct the general operations ..., or specific operations unrelated to pollution ..., but supervised the day - to - day operations of the landfill, - - for example, negotiating waste - dumping contracts with the owners of the wastes or directing where the wastes were to be dumped or designing or directing measures for preventing toxic substances in the wastes from leaching into the ground and thence into the groundwater - - then he would be deemed the operator, jointly with his companies, of the site itself."