Allocating CERCLA Liability: Divisibility or Section 113 Equitable Contribution

Assessing Harm, Proving Divisibility of Harm Defense Absent a Bright-Line Test, and Apportioning Costs

A live 90-minute CLE webinar with interactive Q&A


Tuesday, November 13, 2018

1:00pm-2:30pm EST, 10:00am-11:30am PST

Early Registration Discount Deadline, Friday, October 19, 2018

or call 1-800-926-7926

This CLE webinar will discuss how recent court decisions have addressed divisibility in CERCLA litigation. The panel will guide 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 still 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 threshold 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 guide 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 problematic 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 priority 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

Hatfield, William
William S. Hatfield

Director, Environmental
Gibbons

Mr. Hatfield focuses his practice on environmental counseling in complex regulatory and litigation matters, strategic...  |  Read More

Love, Adam
Adam H. Love, Ph.D.

Vice President and Principal Scientist
Roux Associates

Dr. Love leads the firm’s Litigation Practice Group and provides forensic litigation support and expert witness...  |  Read More

Additional faculty
to be announced.

Live Webinar

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Includes Early Discount Savings of $50 (through 10/19/18)

Live Webinar

$247

Buy Live Webinar & Recording
Includes special savings of $250 (through 10/19/18)

Live Webinar & Download

$344

Live Webinar & DVD

$344 + $9.45 S&H

Other Formats
— Anytime, Anywhere

Includes Early Discount Savings of $50 (through 10/19/18)

Strafford will process CLE credit for one person on each recording. All formats include program handouts. To find out which recorded format will provide the best CLE option, select your state:

CLE On-Demand Video

48 hours after event

$247

Download

48 hours after event

$247

DVD

10 business days after event

$247 + $9.45 S&H