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

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Program Materials

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.

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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

Gullace, John
John F. Gullace

Partner
Manko Gold Katcher & Fox

Mr. Gullace represents a broad array of clients, ranging from Fortune 500 companies to smaller closely held businesses,...  |  Read More

Whitby, Kathleen
Kathleen M. (Kate) Whitby

Of Counsel
Spencer Fane Britt & Browne

Ms. Whitby concentrates her practice in environmental law, dispute resolution and complex litigation. She has almost 30...  |  Read More

Brian S. Epley
Brian S. Epley

Atty
Short Cressman & Burgess

Mr. Epley's practice focuses primarily on environment and natural resource matters, including regulation and...  |  Read More

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