In Burlington Northern in 2008, the US Supreme Court ruled that Superfund liability could be apportioned whenever there was a reasonable basis for showing that the harm was divisible, such as by considering the length of time a PRP had been operating a site, the volume of waste contributed, or the percentage of the site utilized by that PRP. Notwithstanding that ruling, many courts since 2008 have continued to shy away from apportionment, content to relegate the division of liability to “equitable factors” pursuant to Section 113(f) contribution. Indeed, I blogged several years ago on the reluctance of the Seventh Circuit to follow Burlington Northern in connection with the Lower Fox River Superfund matter.
In a new decision on the Lower Fox River case, US v. P.F. Glatfelter Company , however, the Seventh Circuit has now reversed field, ruling that the trial court erred in failing to recognize the possibility that the harm might be shown to be divisible. Originally in enforcing a preliminary injunction on behalf of the government, the Seventh Circuit had agreed with the trial court that PCB cleanup costs in one portion of the Lower Fox River were not susceptible to apportionment because the PRP’s contribution was sufficient by itself to trigger the cleanup level of 1 part per million. In its new decision, the Seventh Circuit notes that information adduced at trial shows that the issue of divisibility is more complex than a binary test whether the PRP’s contribution was over 1 ppm:
As a result, we think the harm would be theoretically capable of apportionment if [the PRP] could show the extent to which it contributed to PCB concentrations in [that portion of the River]. And if [the PRP] cleared that hurdle, we think a reasonable basis for apportionment could be found in the remediation costs necessitated by each party.
In the end, the Seventh Circuit decision underscores that PRPs should not overlook the opportunity to limit their CERCLA liability through apportionment. It’s hard to imagine a multiparty Superfund site where expert opinion cannot be found to offer a basis for dividing up the response costs in some mathmatical way. Such a division of liability avoids the uncertainty of contribution proceedings where it is difficult to know what equitable factors will be found to be controlling or what parties will have the resources to pay their share of the liability.