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.
Outline
- 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
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
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
Ms. Carter has been with the City Attorney’s Office since 2016 during which her practice has focused on advising client bureaus on environmental remediation matters, including Superfund and brownfields. She also has experience in environmental and tort litigation as well as debtor/creditor actions for the City of Portland.
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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
Ms. Stern brings over 30 years of insider understanding of government operations. Her experience as former Region 10 Counsel at the EPA informs her deep policy, regulatory, and enforcement knowledge. Ms. Stern draws on her breadth and depth of expertise to help clients comply with an array of environmental statutes and regulations applicable to their businesses, including Clean Water Act and Resource Conservation and Recovery Act permit approvals, risk management under the Clean Air Act 112(r), civil and criminal enforcement, Superfund cleanup and redevelopment, and pollution prevention strategies. She guides clients through environmental issues arising in business operations, real estate development and permitting, or litigation. Ms. Stern has extensive experience with many environmental statutes, particularly CERCLA, RCRA and CWA.
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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
Ms. Story has counseled clients for more than a decade in state and federal environmental health and safety issues in the context of litigation, compliance counseling, and business transactions. Her active litigation practice includes representing clients CERCLA cases, addressing issues such as the scope of arranger liability, and the intricacies of cost recovery versus contribution claims. Ms. Story counsels clients on a diverse range of environmental matters, including shipment of hazardous materials, management of removal and remedial actions at Superfund sites, environmental reporting requirements and options for voluntary self-disclosure, and the use of supplemental or community environmental projects to offset civil penalties. She also analyzes and manages risks associated with environmental liabilities in business transactions, assisting clients with environmental due diligence and developing options for management of material liabilities.
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