## Facts

- The case concerns a 93-acre chemical manufacturing facility in Jacksonville, Arkansas (the Vertac Site) and contaminated off-site areas affected by decades of herbicide production.
- From roughly 1957 to 1986, the facility produced herbicides including 2,4-D, 2,4,5-T, and 2,4,5-TP, generating hazardous substances including dioxin.
- Operations caused widespread contamination of soil, groundwater, equipment, and surrounding areas, and left more than 28,000 drums of hazardous waste.
- Hercules operated the facility for many years and was found liable under CERCLA as an owner/operator and arranger.
- Uniroyal was found liable as an arranger based on tolling agreements under which it supplied 1,2,4,5-tetrachlorobenzene to be processed into 2,4,5-T for Uniroyal.
- The litigation began as a federal enforcement and cost-recovery action to recover EPA cleanup costs; by August 8, 1999, judgment entered for $89,084,710 plus future response costs after May 31, 1998, and post-judgment interest.
- The December 28, 1999 decision addressed the final stage: equitable allocation of response costs between Hercules and Uniroyal under CERCLA contribution principles.

## Issues

1. How should response costs be equitably allocated between Hercules and Uniroyal under CERCLA § 113(f)?
2. Whether allocation should be driven primarily by volumetric proof of each party’s contribution to hazardous substances.
3. What qualitative equitable factors (including role, control, duration of involvement, economic benefit, and cleanup cooperation) should affect the allocation.

## Decision

- The court exercised its discretion under CERCLA § 113(f) to allocate response costs using equitable factors it deemed appropriate.
- The court rejected Uniroyal’s proposed allocation based solely on volume (which would have assigned Uniroyal 1.58% of costs).
- The court assigned Hercules the majority share based on its long-term owner/operator involvement and central role in waste generation and handling decisions.
- The court assigned Uniroyal a small but materially larger share than 1.58%, based on its arranger role, economic benefit from the transactions, and its connection to waste generated from manufacturing for its product line.
- The allocation order apportioned responsibility for the previously awarded costs, along with future response costs and interest, between Hercules and Uniroyal.

## Legal Principles

- Under CERCLA § 113(f), courts may allocate response costs among liable parties using equitable factors the court considers appropriate; no single allocation formula is required.
- Volumetric evidence may inform allocation but is not controlling where role, control, and duration of involvement make a purely quantitative approach inequitable.
- In contribution allocation, courts may weigh comparative responsibility, including owner/operator status, degree of control over operations and waste handling, knowledge, economic benefit from hazardous activities, and conduct relevant to remediation.
- A party’s arranger liability can support more than a minimal cost share when equitable factors show meaningful involvement in and benefit from the hazardous operations, even without ownership or day-to-day operational control.
- Cleanup expenditures and cooperation with regulators may be considered to avoid inequitable cost shifting and to account for remedial efforts already undertaken.

## Conclusion

Applying CERCLA § 113(f), the court allocated response costs through a multi-factor equitable analysis, rejecting a strictly volumetric approach and placing most responsibility on the long-term owner/operator (Hercules) while assigning the arranger (Uniroyal) a modest but increased share based on equitable considerations beyond volume alone.


United States v. Vertac Chem. Corp., 79 F. Supp. 2d 1034 (E.D. Ark. 1999)