Alert

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 Wednesday, January 29, 2020

Recorded event now available

or call 1-800-926-7926
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 critical 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 the answer is 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 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

Carter, Ashley
Ashley Carter
Deputy City Attorney
Portland Office of the City Attorney

Ms. Carter has been with the City Attorney’s Office since 2016 during which her practice has focused on advising...  |  Read More

Stern, Allyn
Allyn L. Stern

Of Counsel
Beveridge & Diamond

Ms. Stern brings over 30 years of insider understanding of government operations. Her experience as former Region 10...  |  Read More

Story, Jane
Jane B. Story

Partner
Jones Day

Ms. Story has counseled clients for more than a decade in state and federal environmental health and safety issues in...  |  Read More

Other Formats
— Anytime, Anywhere

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

$297

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$297