## Facts

- Fisher-Calo operated a solvent reprocessing business in Indiana; after it failed, the premises remained heavily contaminated.
- The EPA listed the Fisher-Calo location on the National Priorities List and pursued cleanup under CERCLA.
- Akzo and Aigner (with many other companies) had shipped waste solvents and related hazardous substances to Fisher-Calo and were PRPs under CERCLA.
- Aigner and other PRPs entered a consent decree with the EPA to perform and fund most remedial work and incurred substantial response costs; Aigner also obtained settlements from some other PRPs.
- Akzo performed cleanup in an area it conceded received its wastes but argued its contribution responsibility should be limited to that discrete portion and its comparatively smaller waste volume.
- The district court ruled on summary judgment that the Fisher-Calo business premises constituted a single CERCLA “facility,” consistent with the EPA’s treatment of the site.
- After a bench trial, the district court found contaminants had migrated and mixed such that pollutants could not be traced to particular generators or discrete on-site locations.
- In allocating contribution under CERCLA § 113(f)(1), the district court used a primarily volume-based approach (equal weighting of wastes), excluded some nonparty generators from the allocation, applied a dollar-for-dollar credit for Aigner’s settlements, and ordered Akzo to pay 12.56% of Aigner’s net response costs.

## Issues

1. Whether the Fisher-Calo business premises should be treated as a single CERCLA “facility” rather than subdivided for contribution allocation.
2. Whether Akzo proved a reasonable basis to apportion harm by showing its wastes caused distinct, traceable injuries limited to specific areas.
3. Whether the district court abused its discretion under CERCLA § 113(f)(1) by using a predominantly volume-based allocation and equal weighting of wastes given the evidentiary record.
4. Whether settlement payments by other PRPs should reduce the recoverable costs through a pro tanto (dollar-for-dollar) credit rather than a proportionate-share approach.
5. Whether an allocation assigning Akzo 12.56% of costs, despite roughly 9% of waste volume, was permissible under CERCLA’s equitable allocation standard.

## Decision

- The Seventh Circuit affirmed the judgment for Aigner.
- The entire Fisher-Calo premises constituted a single CERCLA facility; the district court properly declined to fragment the site.
- Akzo did not carry its burden to establish divisibility or a workable method to apportion harm because contamination could not be traced by source to discrete harms.
- The district court acted within its CERCLA § 113(f)(1) discretion in adopting a volume-based allocation and treating wastes equally where the record did not support a reliable toxicity- or causation-based cost differentiation.
- The court approved pro tanto settlement credits, reducing recoverable response costs by the dollar amounts received in settlements before applying Akzo’s allocated share.
- The difference between Akzo’s waste volume share and its assigned percentage of costs did not invalidate the allocation; equitable allocation need not track volume proportionally.

## Legal Principles

- Under CERCLA § 113(f)(1), courts may allocate response costs among PRPs using equitable factors the court finds appropriate; the standard affords substantial discretion.
- A PRP seeking to limit responsibility through apportionment must show a reasonable basis for dividing harm; inability to trace mixed and migrating contaminants defeats divisibility.
- Volume of waste may serve as a principal equitable proxy when the evidence does not permit a reliable cost allocation based on toxicity, migration pathways, or other differentiating factors.
- In CERCLA contribution actions, settlement payments by other PRPs may be credited pro tanto (dollar-for-dollar) to avoid over-recovery and to provide an administrable settlement credit rule.

## Conclusion

The Seventh Circuit upheld treating the Fisher-Calo premises as one CERCLA facility, rejected apportionment absent a workable evidentiary basis, approved a volume-based equitable allocation under § 113(f)(1), and adopted a pro tanto settlement credit rule that reduced recoverable response costs by prior settlement amounts before calculating the non-settling PRP’s contribution share.


Akzo Nobel Coatings, Inc. v. Aigner Corp., 197 F.3d 302 (7th Cir. 1999)