Joint and Several Liability and Arranger Liability Under CERCLA

Minimizing Liability and Managing Exposure Since Burlington Northern

Recording of a 90-minute CLE webinar with Q&A

Conducted on Wednesday, February 9, 2011

Recorded event now available

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Program Materials

This CLE webinar will provide environmental legal advisors with a review of the Burlington Northern ruling, how courts are applying it, and the implications for liability under CERCLA. The panel will offer best practices for reducing liability and recovering remediation costs.

Description

The U.S. Supreme Court’s decision in Burlington Northern & Santa Fe Railway Co. v. U.S. significantly changed the landscape for liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

The Court’s ruling limited the pool of potentially responsible parties (PRPs) to pay for cleanup costs. This change makes voluntary cleanups riskier, makes it more difficult for PRPs to recover any orphan share they pay up front, and may be a disincentive for early settlement of liability issues.

The Court also lowered the bar for avoiding joint and several liability, providing arrangers and landowners a strong argument to minimize liability in negotiations and litigation. Making the investment up front is critical to avoid joint and several liability and to manage potential exposure.

Listen as our authoritative panel of environmental attorneys reviews the Supreme Court’s ruling, examines how courts are applying Burlington Northern, and the implications of the decision for liability under CERCLA. The panel will offer best practices for reducing liability and recovering remediation costs.

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Outline

  1. Burlington Northern and Santa Fe Railway Co. v. U.S. and its application
    1. Supreme Court’s decision
    2. Court treatment of joint and several liability following Burlington Northern
  2. Arranger liability
    1. Limitations
    2. Court treatment of arranger liability following Burlington Northern
    3. How it has changed the landscape
  3. Cost recovery
    1. Joint and several liability
    2. Government cost recover actions
    3. Unilateral 106 orders
    4. Increased litigation
    5. Coverage for orphan shares
    6. Impact on landowner liability
  4. How lower courts and agencies have responded to the open questions left by the decision
  5. Best practices
    1. Minimizing CERCLA liability
    2. Recovering remediation costs from other PRPs

Benefits

The panel will review these and other key questions:

  • What constitutes a reasonable basis for apportionment?
  • How can landowners and arrangers minimize their liability under CERCLA?
  • What are the key steps to recover remediation costs from other PRPs?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.

Faculty

Jeffrey D. Dintzer
Jeffrey D. Dintzer
Partner
Gibson Dunn & Crutcher

He co-chairs the firm's Environmental Litigation and Mass Tort Practice Group and focuses on litigation involving...  |  Read More

Marc A. Zeppetello
Marc A. Zeppetello
Partner
Barg Coffin Lewis & Trapp

Mr. Zeppetello has extensive experience with counseling and litigation related to federal and state environmental...  |  Read More

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