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HAZARDS EQUITY: A PERSPECTIVE ON THE COMPENSATION SYSTEM 115 original typesetting files. Page breaks are true to the original; line lengths, word breaks, heading styles, and other typesetting-specific formatting, however, cannot be About this PDF file: This new digital representation of the original work has been recomposed from XML files created from the original paper book, not from the retained, and some typographic errors may have been accidentally inserted. Please use the print version of this publication as the authoritative version for attribution. parties where there is, at least, a factual basis for divisibility (State of Colorado v. Asarco, Inc.). Some of these courts have applied the ''Gore amendment" test as the standard of contribution (U.S. v. A & F Materials Co., Inc.). The Gore amendment refers to Congressman Gore's amendment to H.R. 7020 as passed by the House of Representatives but rejected in the final CERCLA bill. The Gore amendment includes six factors that the court "balances" in arriving at an allocation of damages among generators, transporters, and those who operate hazardous waste sites. The six factors are (1) the degree to which the hazardous waste associated with a particular spill or release can be specifically tied to a given responsible party, (2) the volume of hazardous waste in question that can be traced to a given party, (3) the degree of toxicity of the waste that can be traced to a given party, (4) the degree of fault that can be laid at the doorstep of a given party, (5) the degree of active involvement of a party in the generation, transportation, treatment, storage, and disposal of the hazardous waste in question, and (6) the degree of cooperation of a party with federal, state, and local officials to prevent harm to the public (U.S. Congress, 1980). However, even those courts that apply the concept of contribution to CERCLA, negligence, products liability, and other common-law and statutory damage cases generally allow the claimant to collect all or any part of a judgment against any liable party. It makes no difference that the liable party can demonstrate that its overall responsibility is limited to 1 percent or any determined percentage of the total responsibility among all parties (Keeton and Prosser, 1984, sec. 48; State of Colorado v. Asarco, Inc.). Such a party may seek contribution from other liable parties only for the amount it has paid over and above its proportionate share (and hope that the other liable parties are sufficiently solvent to bear their "fair share"). MODIFYING THE APPLICATION OF COMMON LAW PRINCIPLES New Determinants of Duty The foreseeability doctrine does not serve its intended purpose of defining duty and limiting liability in a predictable and evenhanded way. The doctrine also leads to the superficial application of the principle of foreseeability in the face of contrary reality in many cases (as in the mental suffering and fire and wind cases). Above all, we can probably predict that the cause of harm will be beyond our state of knowledge in the formative years of a given harm in countless situations yet to unfold in the environmental and public health areas. Thus, the lack of foreseeability of the long-range consequences of apparently
