recognizing _________________________________________________________________ 3 Several do not warrant discussion: that Conoco and Agrico, unlike Beazer, had refused cooperation with the EPA; that the EPA had indi- cated its belief that Conoco and Agrico should be liable by submitting to them information requests under § 104(e); and that § 113(f)(2) entitled Beazer to contribution as a party who had settled with the EPA. 11 that upon proof that a hazardous substance found on a site could not be "fairly attributable" to a party sued under§ 107(a), that party's properly "apportioned share would be zero"
How later courts described this case
- recognizing _________________________________________________________________ 3 Several do not warrant discussion: that Conoco and Agrico, unlike Beazer, had refused cooperation with the EPA; that the EPA had indi- cated its belief that Conoco and Agrico should be liable by submitting to them information requests under § 104(e); and that § 113(f)(2) entitled Beazer to contribution as a party who had settled with the EPA. 11 that upon proof that a hazardous substance found on a site could not be "fairly attributable" to a party sued under§ 107(a), that party's properly "apportioned share would be zero"
- recognizing that upon proof that a hazardous substance found on a site could not be “fairly attributable” to a party sued under § 107(a), that party’s properly “apportioned share would be zero”
- holding apportionment required a showing “that there is a way to determine what portion of the ‘harm’ ... is fairly attributable to [the defendant], as opposed to other responsible parties.”
- allowing the government to use CERCLA to recover administrative costs incurred in a RCRA enforcement action, and noting in passing "that a number of courts have held defendants liable for costs of removal or remedial action even where such costs were not incurred pursuant to CERCLA’s statutory authority.”
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by United States v. E.I. DuPont De Nemours & Co., 432 F.3d 161 (2005)
2 F.3d 1265 (3d Cir. 1993), overruled on other grounds by United States v. E.I. Dupont De Nemours & Co., 432 F.3d 161 (3d Cir. 2005) (en banc), where it held that CERCLA § 107(a)— which provides a cause of action for recovery of response costs—was available “even when the waste removal [wa]s not undertaken pursuant to CERCLA.”
The opinion
SUR PETITION FOR REHEARING
Oct. 22, 1993.
Before: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH and LEWIS, Circuit Judges, and BARRY, District Judge. *
The petition for rehearing filed by appel-lees in the above-entitled case having been submitted to the judges who participated in the decision of this Court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied. Judge Becker would have granted rehearing.