After liability is established, a court then allocates fault using such equitable factors such as the “Gore” Factors. Those factors include:
- The ability of the parties to demonstrate that their contribution to a discharge, release or disposal of a hazardous waste can be distinguished;
- The amount of the hazardous waste involved;
- The degree of toxicity of the hazardous waste involved;
- The degree of involvement by the parties in the generation, transportation, treatment, storage, or disposal of the hazardous waste;
- The degree of care exercised by the parties with respect to the hazardous waste concerned, taking into account the characteristics of such hazardous waste; and
- The degree of cooperation by the parties with Federal, State or local officials to prevent any harm to the public health or the environment.
In addition, courts have also considered the “Torres Factors” to determine allocation of response costs which include consideration of:
- The extent to which cleanup costs are attributable to wastes for which a party is responsible;
- The party’s level of culpability;
- The degree to which the party benefited from disposal of the waste; and
- The party’s ability to pay its share of the cost.
Finally, given the broad discretion granted in Section 113, some courts have looked beyond both the Gore and Torres Factors and considered:
- The knowledge and/or acquiescence of the parties in the contaminating activities;
- The value of the contamination-causing activities to furthering the government’s national defense efforts;
- The existence of an indemnification agreement demonstrating the parties’ intent to allocate liability among themselves;
- The financial benefit that a party may gain from remediation of a site;
- The potential for windfall double recoveries by a plaintiff;
- The potential that a plaintiff might make a profit on the contamination at the expense of another PRP; and
- CERCLA’s intent that responsible parties, rather than taxpayers, bear the costs of cleanup.
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