ELR Citation: ELR 21460
No(s). 1:92:CV:843 (W.D. Mich. May 9, 1995)

The court holds that potentially responsible parties (PRPs) that sued other PRPs for response costs under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) must share equitably in responsibility for orphan shares of liability. The court first holds that "orphan shares" refer solely to response costs that are attributable to bankrupt or financially insolvent PRPs, and not to solvent PRPs against whom defendants have failed to bring contribution actions under CERCLA §113. The court next holds that in the §113 counterclaims and third-party claims for contribution, the orphan shares must be equitably apportioned among the solvent PRPs, including plaintiffs. Equity and fairness dictate that the shares that would have been attributed to parties that are now insolvent should be apportioned among all of the solvent PRPs. Further, although avoiding orphan share apportionment is certainly an extra incentive for a PRP to participate in cleaning up a hazardous site, it is not clear that exposure to orphan shares is such a disincentive that an otherwise amendable PRP would usually decline to participate in cleanups. PRPs that participate in a cleanup would still gain some control over the cleanup efforts, including costs, and benefit from being able to bring a §107 cost recovery action against only a small subset of the solvent PRPs that may be jointly and severally liable. The court holds that the orphan shares should be apportioned among all of the solvent PRPs that are parties in the litigation in amounts corresponding to their relative equitable responsibility for any indivisible harm for which joint and several liability otherwise applies.

Counsel for Plaintiffs
Richard D. Reed
Reed, Stover & O'Connor
800 Comerica Bldg., Kalamazoo MI 49007
(616) 381-3600

Counsel for Defendants
Thomas W. Daggett
Wildman, Harrold, Allen & Dixon
225 W. Wacker Dr., Ste. 2800, Chicago IL 60606
(312) 201-2000