PRPs hoping that the Supreme Court in Burlington Northern had established that volume could always be used as a basis for apportioning CERCLA liability will be disappointed by a recent Seventh Circuit opinion. Affirming the trial court’s apportionment decision in the Lower Fox River case on which I blogged earlier, the Seventh Circuit distinguished Burlington Northern and followed the Restatement test that apportionment is not available whenever each tortfeasor’s contribution is independently capable of causing the harm. According to the court, the discharge of PCBs into the Lower Fox River by multiple PRPs was akin to a number of defendants starting different forest fires which each could cause the plaintiff’s house to burn down. Specifically, the 9% of the PCBs discharged into the Lower Fox River by the appellant — NCR — could not be apportioned because that volume of PCBs was purportedly capable of necessitating the entire remediation. However sound the Seventh Circuit’s legal principles, it seems unlikely that a remedy to dredge only 9% of the PCBs in a river would be identical to the remedy to dredge 10 times that amount.
Copyright © 2019, Foley Hoag LLP. All rights reserved.