On Dec. 21, 2007, the federal district court for the District of Kansas held that a potentially responsible party may seek joint and several liability in a claim filed under CERCLA’s section 107. The court in Raytheon Aircraft Company v. United States disagreed with the government’s position that section 107’s joint and several liability remedy should be reserved for the government, as an enforcer of CERCLA, or innocent parties seeking to recover their response costs from responsible parties. The court reasoned that the incentives a joint and several liability remedy provides, such as rapid and voluntary responses to hazardous waste sites, are “very much in play regardless of whether the party asserting a cost recovery claim is the United States, an innocent party or a PRP."
The court noted that regardless of whether the plaintiff is a PRP, it found no unfairness in shifting the burden of proof to the defendant to establish that the harm is divisible and the degree to which a PRP plaintiff is responsible. Furthermore the court noted a defendant’s ability to seek an equitable allocation of response costs through a contribution counterclaim under CERCLA’s section 113.