Allocating CERCLA Liability

a Strafford live webinar: 1:00 - 2:30 p.m. EDT

June 6, 2017

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 key 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 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 provide guidance to courts, litigants and pre-litigation parties as they attempt to settle or otherwise resolve responsibility at contaminated sites.

The authoritative panel will examine the statutory language and what the Burlington Northern & Santa Fe Railway Co. v. U.S. decision and its progeny mean for divisibility. The panel will also review cases applying this difficult technical issue, and offer practice pointers on which circumstances lend themselves to a divisibility defense and how to present it.


  1. Divisibility defense under CERCLA
    1. Statutory language
    2. What the BNSF decision means for divisibility
  2. Section 113 equitable contribution
  3. Lessons learned from recent decisions
  4. Best practices
    1. Circumstances lending themselves to a divisibility defense
    2. 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?


John F. Gullace, Partner
Manko Gold Katcher & Fox, Bala Cynwyd, Pa.

Kathleen M. (Kate) Whitby, Of Counsel
Spencer Fane Britt & Browne, St. Louis

Brian S. Epley, Atty
Short Cressman & Burgess, Seattle


Because of John Gullace's involvement in the program, MGKF has free and discounted registrations available for this program. Please contact MGKF's Julie Hayes or 484-430-2352 for more details no later than Friday, June 3.