Allocating CERCLA Liability: Divisibility or Section 113 Equitable Contribution
Assessing Harm, Proving Divisibility of Harm Defense Absent a Bright-Line Test, and Apportioning Costs
Recording of a 90-minute CLE webinar with Q&A
This CLE webinar will discuss how recent court decisions have addressed divisibility in CERCLA litigation. The panel will provide guidance for environmental counsel on when the divisibility of harm defense is appropriate and tactics to overcome challenges in proving divisibility.
- Divisibility defense under CERCLA
- Statutory language
- What the BNSF decision means for divisibility
- Section 113 equitable contribution
- Lessons learned from recent decisions
- Best practices
- Circumstances lending themselves to a divisibility defense
- Presenting a divisibility defense
The panel will review these and other key issues:
- How are different jurisdictions applying the Burlington Northern decision in divisibility cases?
- What circumstances lend themselves to a divisibility defense?
- What steps can counsel take to overcome the challenging issues involved in proving divisibility?
John F. Gullace
Manko Gold Katcher & Fox
Mr. Gullace represents a broad array of clients, ranging from Fortune 500 companies to smaller closely held businesses,... | Read More
Mr. Gullace represents a broad array of clients, ranging from Fortune 500 companies to smaller closely held businesses, facing diverse environmental issues. He is co-practice leader of the firm's New Jersey practice, is a partner in the firm’s environmental litigation group, and is also regularly called upon by clients to handle site remediation matters and complex negotiations with government entities and private parties.Close
Kathleen M. (Kate) Whitby
Spencer Fane Britt & Browne
Ms. Whitby concentrates her practice in environmental law, dispute resolution and complex litigation. She has almost 30... | Read More
Ms. Whitby concentrates her practice in environmental law, dispute resolution and complex litigation. She has almost 30 years of experience focused primarily on problem-solving for environmental regulation, contamination and cleanup projects. Ms. Whitby serves as national counsel for clients with CERCLA, RCRA, CWA, CAA, UST, Brownfields, and other environmental regulatory program challenges, and also supports real estate, M&A, and transactional clients in their environmental due diligence efforts.Close
Brian S. Epley
Short Cressman & Burgess
Mr. Epley's practice focuses primarily on environment and natural resource matters, including regulation and... | Read More
Mr. Epley's practice focuses primarily on environment and natural resource matters, including regulation and litigation arising under the CERCLA, Washington’s Model Toxics Control Act (MTCA), and the Clean Water Act (CWA). He represents Indian Tribes in environmental related issues, including prosecuting CERCLA claims on behalf of Tribes. He further assists Tribes with the development and implementation of Tribal Environmental Programs, including water quality programs pursuant to CWA delegation. He also represents municipal and private clients in a range of land use and real estate matters.Close