2    SUPERFUND: HOW TO DEAL WITH A TEENAGER AND
AVOID THE JOINT AND SEVERAL LIABILITY TRAP
Anthony S. Benton, Attorney
Brent W. Huber, Attorney
Stuart & Branigin, Lafayette, Indiana 47902-1010
A common misconception regarding the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 ("CERCLA" or "Superfund")1 is that it always mandates joint and several
liability. This paper reviews the recent decision from the Fifth Circuit Court of Appeals in In re Bell
Petroleum Services, Inc. ,2 the first reported case to hold that a responsible party under CERCLA had
proved, as a matter of law, that it was not jointly and severally liable. It also briefly discusses the
federal circuits' varying approaches to joint and several liability under CERCLA and outlines several
of the technical and evidentiary challenges facing CERCLA defendants who seek to avoid joint and
several liability after Bell Petroleum.
BELL PETROLEUM
The Trial Court
The dispute in Bell Petroleum (a.k.a. Sequa) arose out of the operation of a chrome plating shop in
Odessa, Texas, which was operated by two small companies and a division of a major corporation.
During the 1960s and early 1970s, certain rinsewater containing unspecified concentrations of hexavalent chromium found its way into the ground outside this shop, apparently via floor drains and a
sump. The government linked this discharge to groundwater contamination that affected drinking
water supplies in the area.3
The Environmental Protection Agency filed a CERCLA cost-recovery action against Bell, Sequa,
and John Leigh, the operators of the chrome plating shop. The district court entered a case management order providing that the case would be decided in three phases: Phase I —liability, Phase II —
recoverability of EPA's response costs, and Phase III — "responsibility."4 Over Sequa's objections, the
district court ultimately granted the EPA's motion for summary judgment regarding liability, holding
that the defendants were jointly and severally liable.5
In its review of the evidence presented, the trial court emphasized that apportionment necessarily
involved speculation and major assumptions because most of the historical records had been lost.6
There were, in fact, no documents showing how much chromium each successive operator had
disposed of at the site. Basic production records were also unavailable from any of the relevant years.
Sequa relied on expert testimony about the estimated volume contribution (the basis for this expert
testimony is unclear from the opinion) and on an assessment of historical practices, volume of
production, and electrical usage records (by another expert), which it used to establish production,
and, in turn, amounts of chromium usage and disposal at the site.7
The trial court concluded that liability should be joint and several because there was no method of
dividing liability among the defendants "which would rise to any level above mere speculation,
because each of the proposed apportionment methods involved a significant assumption factor,
inasmuch as records had been lost, and because each of the apportionment methods differed significantly."8 Using "equitable factors," the trial court divided responsibility as follows: Bell 35%; Sequa
35%, and Leigh 30%.9 The two smaller, shallow-pocket operators (Bell and Leigh) settled with the
government, leaving a large share of open-ended liability with Sequa, the deep-pocket defendant.
The Appeal
On appeal, the Bell Petroleum court found that Sequa had met its burden of proving a reasonable
basis for apportionment, reversed the lower court's ruling on joint and several liability, and remanded
the case for apportionment. The court explained:
49th Purdue Industrial Waste Conference Proceedings, 1994 Lewis Publishers, Chelsea, Michigan 48118. Printed in
U.S.A.