their batteries which were sent to the site by the trailer load.
We realize that another factor the Court may consider is the financial resources of the parties, see e.g., B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1206 (2d Cir. 1992) (where the court held that although municipalities may be found liable under CERCLA, future application of such an equitable factor to determine liability may be considered in allocation of costs), and that a few defendants claim to have limited financial resources. But the fact remains that those defendants reaped a great benefit from their past dealings with Marjol.
Throughout Phase II of the bench trial, the Court heard testimony and saw evidence presented in a way which suggests that the parties should not be held accountable for either their own actions or their predecessor's actions, even though all benefitted greatly from said actions. While we realize that we face a great task of holding parties responsible for their actions and dealings which occurred decades ago in a time when such actions or dealing were second nature to all, we are left in today's time and today's standards with a contaminated site surrounded by a residential neighborhood that still is undergoing remediation investigation. Drastic times call for appropriately strong measures, and, in equity, it would not be fair for any party, especially the defendants, to escape liability by claiming that they were unaware of how Marjol ran its business.
Such arguments are not equitably fair in such a scenario where there are records and other documents indicating that the defendants sent trailers of spent batteries to the site. However, we can say that it is equitably fair that the defendants' liability should be reduced when their conduct is compared with that of the plaintiff.
vi. cooperation by the parties with federal, state or local authorities
The last Gore Factor, the cooperation factor, is also of import in our determination. While Lawrence Fiegleman was stubborn in his beliefs and was irrational in his dealings with DER we do recognize that Gould has been up front and valiant in accepting responsibility for a bad business deal, and its officers should be commended for their actions. But under the law, Gould is responsible for its predecessor's actions, Smith Land & Improvement Corp. v. Celotex Corp. 851 F.2d 86 (3d Cir. 1988), cert. denied, 488 U.S. 1029, 102 L. Ed. 2d 969, 109 S. Ct. 837 (1989), and in light this law, Gould's valiant efforts must be encumbered by Marjol's past actions.
We feel this analysis comports with the law that binds us; that it follows the general testimony and opinions of experts Dr. Hall and Dr. Wise; and that it is a common sense review of the totality of the circumstances surrounding the operations of the site and the relationship of the parties to this action. Environmental Transportation Systems, Inc. v. ENCSO, Inc., 969 F.2d 503, 509 (7th Cir. 1992); U.S. v. Colorado & Eastern Railroad Co., 50 F.3d 1530, 1536 (10th Cir. 1995); Kerr-McGee Chemical v. Lefton Iron & Metal Co., 14 F.3d 321, 326 (7th Cir. 1994)(courts have weighed the Gore Factors on a case by case analysis, based upon the totality of the circumstances).
It is not easy to attach precise mathematical results to this reasoning. But it is clear that the Plaintiff should be responsible to a greater extent than the defendants.
Based upon the totality of the circumstances of this case, that all who dealt with Marjol benefitted; that Gould is to bear the responsibility of its predecessor's actions; and that such actions have severely contaminated the site and surrounding areas, we find, based upon the principles of equity reviewed herein, that Gould should bear 75% of the clean-up costs and that the defendants should bear the remaining 25% of the costs, to be apportioned among the individual defendants in accordance with their attributed amount as indicated by the waste-in list of Mr. M. Alexis Maniatis. Gould's share of costs is also increased by the orphan share of batteries contained at the site, in line with our previous ruling that it is liable for the orphan share.
An appropriate Order follows.
Richard P. Conaboy
United States District Judge
It is the Finding and Verdict of this Court as follows:
1. That both Plaintiff and Defendants to this action contributed to and caused the contamination and resulting cleanup costs at and around the site involved.
2. That the Plaintiff, for the reasons stated in the Findings of Fact and Conclusions of Law, should share a greater proportion of the cleanup costs than the Defendants.
3. That the Plaintiff is responsible for 75% of the cleanup costs.
4. That the Defendants are responsible for 25% of the cleanup costs.
5. That the Defendants' waste-in list (defendants' exh. no. 399) is the appropriate measuring device to be used in determining each individual Defendant's share of the costs.
Richard P. Conaboy
United States District Judge
DATE: September 4th, 1997
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered. (Findings of Fact and Conclusions of Law dated 9/4/97).
IT IS ORDERED AND ADJUDGED
That Judgment Be and Is Hereby Entered in favor of Plaintiff Gould, Inc., and against the Defendants A & M Battery & Tire Service; A. Shapiro & Sons; Abe Cooper Watertown Corporation Alexandria Scrap Corp.; American Scrap Company; Bladensberg River Road Products, Inc.; Brock's Scrap & Salvage; Capitol Scrap Yard; Clinton Metal Co.; Empire Recycling Corp., Exeter Metals Co.; Francis White Scrap Iron & Metal; G.M. Honkus & Sons Inc.; Giordano Waste Material Co. /Halpern Metal Company; Independent Iron & Metal; Interstate Burlap & Bag Co. Inc.; Irving Rubber & Metal Co.; Ithaca Scrap Processors; J. Broomfield & Sons, Inc.; Klein Metal Co., Inc.; Kreiger Waste Paper Co.; Lake Erie Recycling; Levene's Son, Inc.; M. Wilder & Son, Inc.; Maxnor Metal/M. Schipper & Son; Mayer-Saba Metals Co.; Mid-City Scrap Iron & Salvage Co.; Newcastle Junk; P. Jacobson, Inc.; R & R Salvage Inc.; R. L. Poeth Scrap Yard; Roth Brothers Smelting Corp.; Roth Steel Corporation; Schiavone Corp.; American Scrap & Waste Removal Co.; Batavia Waste Material Co. Inc.; Buffered Junk Co.; Cash Automotive Parts; Fairfield Scrap Co.; Frederick Junk Co.; Fulton iron & Steel Co.; General Metals & Smelting Co.; J. Sax & Co.; Klionsky Scrap Iron & Metal Co.; Louis Fiegleman & Co.; M. Hartman Co.; Marley's Division of Abe Cooper; Penn Jersey Rubber & Waste Co.; Pettinelli Used Auto Parts/Iron & Metal; S. Klein Metals Co. Inc.; Seaboard Salvage; Teplitz's Middletown Scrap; Twin Cities Waste & Metal; V. Vaccaro Scrap Co.; Weiner Brockerage Square Deal Metal Recycling; Timpson Salvage Co.; and Waldorf Metals Co; as to liability.
September 4, 1997