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


Conducted on Tuesday, June 6, 2017
Recorded event now available


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.

Description

The U.S. Supreme Court’s decision in Burlington Northern & Santa Fe Railway Co. v. U.S. significantly changed the landscape for divisibility under CERCLA. However, there is no bright-line test for determining divisibility and the courts have taken different approaches in evaluating this issue.

In decisions involving the Fox River in Wisconsin and the Upper Columbia River in Washington state, as well as opinions from courts in Rhode Island and South Carolina, judges and parties have wrestled with the key question for divisibility: is the harm “theoretically capable of apportionment.” If a court answers this question with a “yes,” the party seeking to limit its liability succeeds; if no, that party must try again under a much less favorable equitable allocation approach. These and other opinions addressing the divisibility/apportionment divide continue to provide guidance to courts, litigants and pre-litigation parties as they attempt to settle or otherwise resolve responsibility at contaminated sites.

Listen as our authoritative panel examines the statutory language and what the Burlington Northern & Santa Fe Railway Co. v. U.S. decision and its progeny mean for divisibility. The panel will also review cases applying this difficult technical issue, and offer practice pointers on which circumstances lend themselves to a divisibility defense and how to present it.

Outline

  1. Divisibility defense under CERCLA
    1. Statutory language
    2. What the BNSF decision means for divisibility
  2. Section 113 equitable contribution
  3. Lessons learned from recent decisions
  4. Best practices
    1. Circumstances lending themselves to a divisibility defense
    2. Presenting a divisibility defense

Benefits

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?

Faculty

John F. Gullace, Partner
Manko Gold Katcher & Fox, Bala Cynwyd, Pa.

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.

Kathleen M. (Kate) Whitby, Of Counsel
Spencer Fane Britt & Browne, St. Louis

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.

Brian S. Epley, Atty
Short Cressman & Burgess, Seattle

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.


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Environmental Law Advisory Board

John J. Allen

Partner

Allen Matkins

Albert M. Cohen

Partner

Loeb & Loeb

Aaron Courtney

Partner

Stoel Rives

Andrew N. Davis

Partner

Shipman & Goodwin

David R. Gillay

Partner

Barnes & Thornburg

Brian D. Israel

Partner

Arnold & Porter Kaye Scholer

Thomas J. P. McHenry

Partner

Gibson Dunn & Crutcher

James B. Slaughter

Principal

Beveridge & Diamond

Jeffrey A. Smith

Senior Counsel

Sidley Austin

E. Gail Suchman

Special Counsel

Stroock & Stroock & Lavan

Gregory D. Trimarche

Senior Counsel

Ring Bender

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