The 9th Circuit Court of Appeals has reversed a District Court decision allocating 100% of CERCLA response costs at a San Diego Superfund site 
to TDY Holdings, which operated an aeronautical manufacturing plant from 1939 to 1999. TDY has sought contribution from the United States, which was the source of the vast majority of TDY’s business, and which directed TDY to use certain hazardous substances, release of which caused the relevant contamination.
What makes the case so interesting was that the District Court had found that both TDY and the United States were liable parties, held a lengthy trial on the allocation issues, and made specific findings justifying its 100% allocation share to TDY. The Court of Appeals repeatedly noted that its review was subject to an abuse of discretion standard, and acknowledged that the facts found by the District Court justified a significant allocation to TDY.
And yet, the Court of Appeals found the 100% allocation to be an abuse of discretion. Why? I’m not sure that the case really provides any answer, other than that 100% was just plain too much.
Surely that the US was by far the plant’s biggest customer could not by itself be a reason to require that the District Court allocate a non-zero share to the United States. The only solid fact cited by the Court was that the United States required TDY to use two of the three hazardous substances that were released from the facility. That was certainly the view of the concurrence, which went out of its way to make clear that the District Court, on remand, did not have to allocate a very large share to the United States.
I have often noted that facts matter and evidence matters. Here, the concurrence includes this tantalizing statement:
As far as the record discloses, those are chemicals TDY might have chosen not to use if left to its own devices.
Really? An aeronautical parts manufacturing plant operating from 1939-1999? Would any such company not have used chlorinated solvents for parts cleaning and chromium for corrosion resistance? Couldn’t the government have found an expert witness to testify that usage of these compounds was routine in the industry during this time?
And if such a witness had testified, would the Court of Appeals have affirmed the 100% allocation to TDY?