Similar to the “Gore Factors,” Section 361.343 sets forth the following factors for a court to consider when apportioning remedial costs among those responsible for solid waste:
- The relationship between the parties’ actions in storing, processing, and disposing of solid waste and the remedy required to eliminate the release or threatened release;
- The volume of solid waste each party is responsible for at the solid waste facility or site to the extent that the costs of the remedy are based on the volume of solid waste present;
- Consideration of toxicity or other waste characteristics if those characteristics affect the cost to eliminate the release or threatened release; and
- A party’s cooperation with state agencies, its cooperation or noncooperation with the pending efforts to eliminate the release or threatened release, or a party’s actions concerning storing, processing, or disposing of solid waste, as well as the degree of care that the party exercised.
The SWDA thus allows even liable parties who have expended remedial costs to apportion those costs among others who are also responsible for solid waste. This is very similar to CERCLA which also permits a PRP to bring a contribution action to recover its response costs and provides that the court may allocate those costs using such equitable factors as the court determines are appropriate.
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