Divided, But Not Conquered: Approaches to Apportioning Liability for Contaminated Sites

May 11, 2016Articles Westlaw Journal - VOLUME 36, ISSUE 21

Falling under the Environmental Protection Agency’s hammer of "joint and several liability" in contaminated site cleanup cases is a costly proposition. The U.S. Supreme Court recently threw open the door to dividing these costs, and courts are now considering how to do it.

"Joint and several liability" is a legal concept that holds any one entity can be solely responsible for the entire cost of cleanup whether or not other companies may have contributed to the problem. The EPA often threatens to seek full liability for costs if companies refuse settlements. Parties that do not agree to settlements acceptable to the EPA face the prospect of a trial, after which they may be liable for all costs that were not paid by those who settled.

In 2009, the Supreme Court endorsed "divisibility" — the notion that apportionment of costs rather than joint total liability is proper in some cases. This endorsement was widely viewed to open the possibility of settlements with the EPA based on fair shares for liability, considering parties’ individual contribution to conditions. But how can you prove divisibility to the EPA and the courts?

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