Allocating CERCLA Liability: Divisibility or Section 113 Equitable Contribution
Assessing Harm, Proving Divisibility of Harm Defense Absent a Bright-Line Test, and Apportioning Costs
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
- work Practice Area
Environmental
- event Date
Thursday, January 19, 2023
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
-
This CLE course 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.
Ms. Roberts’ practice focuses on contaminated site remediation and water rights disputes. She helps clients steer complex and long-running cases to a successful resolution and also enjoys helping clients navigate challenging regulatory environments. Ms. Roberts advocates for clients and works with experts in contaminated site allocations under both CERCLA and state analogues, including MTCA. She brings her considerable litigation experience to bear in developing strong positions for clients both in the courtroom and in settlement negotiations. Apart from litigation, she helps clients with brownfields redevelopment, environmental covenants, and responses to agency requests for documents. Ms. Roberts also has a strong interest in water rights and has advised municipal water districts on water rights questions. She is a former Trial Attorney for U.S. Department of Justice’s Natural Resources Section of the Environment and Natural Resources Division.
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.
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 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.
- 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
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?
Related Courses
Wildlife Risk in Project Development: Planning With ESA, NEPA, and Regulators in Mind
Thursday, November 6, 2025
1:00 p.m. ET./10:00 a.m. PT
Purchasing Contaminated Properties: Environmental Due Diligence and the ASTM E1527-21 Phase I Standard
Tuesday, October 7, 2025
1:00 p.m. ET./10:00 a.m. PT