marshalling the divisibility defense to cercla liability:...

Marshalling the Divisibility Defense to

CERCLA Liability: Apportionment –

Is the Harm Distinguishable?Defining Harm to Establish a Divisibility Defense to Liability and Apportion Costs

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THURSDAY, NOVEMBER 21, 2019

Presenting a live 90-minute webinar with interactive Q&A

William S. Hatfield, Director, Environmental, Gibbons, Newark, N.J.

Adam H. Love, Ph.D., Vice President and Principal Scientist, Roux, Oakland, Calif.

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Newark ♦ New York ♦ Trenton ♦ Philadelphia ♦ Wilmington ♦ gibbonslaw.com

Marshalling the Divisibility

Defense to CERCLA Liability

Apportionment – Is the Harm

Distinguishable?

William Hatfield, Esq.

[email protected]

Strafford Webinars

November 21, 2019


Comprehensive Environmental Response,

Compensation and Liability Act

The Basics

6

gibbonslaw.com ♦ Gibbons is headquartered at One Gateway Center, Newark, NJ 07102.

CERCLA Section 10742 U.S.C. § 9607(a)&(b)

• Establishes joint and several liability

• Creates limited statutory defenses – Act of God

– Act of war

– Act or omission of a third party

7


Divisibility Under CERCLA

• Judicially created defense to joint & several liability– See U.S. v. Monsanto Co., 858 F.2d 160, 172 (4th Cir. 1988)

• Based on Restatement (Second) of Torts § 433A:

“[W]hen two or more persons acting independently caus[e] a

distinct or single harm for which there is a reasonable basis for

division according to the contribution of each, each is subject

to liability only for the portion of the total harm that he himself

caused…But where two or more persons cause a single and

indivisible harm, each is subject to liability for the entire harm.”

8


Divisibility Under CERCLA

• Divisibility/apportionment is a two step process:

– Harm must be divisible, e.g. theoretically capable of apportionment

– Potentially apportion liability, assuming a reasonable factual basis

• Causation is relevant

• Largely unsuccessful before Burlington Northern decision in 2009

9


CERCLA Contribution: Section 11342 U.S.C. § 9613(f)

“[T]he court may allocate response

costs among liable parties using

such equitable factors as the court

determines are appropriate.”

10


The Gore Factors

• Relied on by courts to allocate CERCLA liability among various responsible parties

• Pulled from the legislative

history surrounding three

failed bills, one sponsored

by then-Congressman

Al Gore

11


The Gore FactorsSee Niagara Mohawk v. Chevron, 596 F.3d 112 (2d Cir. 2010)

• The ability of the party to demonstrate that its contribution to the release can be distinguished;

• The amount of the hazardous substance involved;

• The degree of toxicity of the hazardous substance involved;

• The degree of involvement of the person in the manufacture, treatment, transport, or disposal of the hazardous substance; and

• The degree of cooperation between the person and the government agencies in preventing harm to public health or the environment occurring from a release.

12


The Torres FactorsSee United States v. Davis, 31 F. Supp. 2d 45 (D.R.I. 1998)

• The extent to which cleanup costs are attributable

to wastes for which a party is responsible;

• The party’s level of culpability;

• The degree to which the party benefitted from

disposal of the waste; and

• The party’s ability to pay its share of the cost.

13


Apportionment v. Allocation

14


Apportionment v. Allocation

• Some courts conflate apportionment with

allocation

• “To apportion is to request separate checks, with

each party paying only for its own meal. To

allocate is to take an unitemized bill and ask

everyone to pay what is fair.”

• Yankee Gas Services Co. v. UGI Utilities, Inc., 852 F.

Supp. 2d 229, 241-242 (D. Conn. 2012)

15


Allocation & Litigation under

CERCLA §§ 107 & 113• An action under CERCLA § 107(a) allows plaintiff

to pass off all response costs to any defendant found liable, but the defendant can “blunt any inequitable distribution of costs” by filing a counterclaim under § 113(f). – United States v. Atl. Research Corp., 551 U.S. 128, 140 (2007)

• “[O]nce a § 107(a) claim is met with a § 113(f) counterclaim, the action has been effectively converted into an allocation of costs made on the basis of such equitable factors as the court determines are appropriate.” – Yankee Gas, 852 F. Supp. 2d at 240 (2012)

16


Breakthrough:

The Burlington Northern Decision

17


Burlington N. & Santa Fe Ry. v. U.S.556 U.S. 599 (2009)

• Defendants seeking to avoid joint and several liability bear the burden of proving that a reasonable basis for apportionment exists

• Both District Court and Circuit Court agreed that the harm created by the contamination of the site, although singular, was capable of apportionment

• The District Court used geographical factors, timeframes, and types of hazardous substances to apportion liability

18


Burlington N. & Santa Fe Ry. v. U.S.556 US 599 (2009)

• Factors Considered by District Court in Apportioning Liability:

– Railroad parcel constituted only 19% of the surface area of the site

– The Railroad leased their parcel for 13 years, which was 45% of the time the facility was operated

– The volume of activities on the property was 10 times greater than the releases on the Railroad parcel

– Only spills of two chemicals, Nemagon and dinoseb, substantially contributed to the contamination that had originated on the Railroad parcel and those two chemicals contributed 2/3 of the overall site contamination requiring remediation

19


Burlington N. & Santa Fe Ry. v. U.S.556 US 599 (2009)

• Court of Appeals faulted the District Court for relying on simple calculations involving percentages of land area, time of ownership and types of hazardous products

• However, the Supreme Court sided with the District Court because its allocation of liability was supported by the evidence and with apportionment principles

• Upshot: SCOTUS recognizes availability of apportionment of CERCLA liability

20


Burlington Northern:

The Aftermath

21


The Supreme Court’s Decision in Burlington Northern

& Santa Fe Railway Company v. United StatesBefore the Environmental Law Institute—May 29, 2009

• Speech by John C. Cruden, Esq. (former Asst. AG)

• Burlington Northern is “not the death knell of Superfund

Enforcement.”

• Cruden submits that Burlington Northern involved

unusual facts—few Defendants, few relevant products,

and consistent operations:

– Not typical in CERCLA enforcement cases

• Burlington Northern also reinforced the principles of joint

and several liability

• Conclusion:

– “The rumors of CERCLA’s demise are greatly exaggerated.”

22


The Burlington Court’s Flawed Arithmetic 40 Envtl. L. Rep. News & Analysis 10637 (2010)

• Comments by Walter Mugdan, Esq. (EPA Region 2)– See also June 2018 Presentation @ Columbiaclimatelaw.com

• Highly critical of the Burlington Northern decision:– “The court seems not to recognize that if you multiply two

fractions together, the product is always a smaller fraction. Add more fractions to the equation, and the product becomes smaller still.”

• Mugdan’s View: BNSF Decision is fundamentally flawed– “[E]ach Superfund site is likely to present such unique facts that

one size will never fit all.”

– Joint & Several Liability is “alive and well”

– Subsequent Court decisions “… little new ground broken”

– Uncertainty in Govt. negotiations with PRPs and among PRPs

– More sites with orphan share? More mixed funding?

23


Reichhold, Inc. v. United States Metals Refining Co.

655 F. Supp. 2d 400 (D.N.J. 2009)

• The Court concluded that Defendant and a third party caused a

“distinct or single harm” and “[t]here is a reasonable basis for

division according to the contribution of each.”

• Court did not rely on the amount of metals contamination that each

party contributed. “Rather, it is the circumstances that each was

responsible for a sufficient amount of metals contamination that

required the cap.”

• Accordingly, Plaintiff “will be able to collect from [Defendant] only

one—half of its past and future expenditures in connection with the

BTL Parcel Cap.”

• Few Courts have cited to this case.

• Did the court apportion liability or was this an equitable allocation?24


City of Gary v. Shafer2011 WL 3439239 (N.D. Ind. 2011)

• Single harm: lead contamination in soil

• Court determined that defendant Paul’s Auto Yard was responsible for only de minimis moving of soil at the site

• Court held that apportionment was appropriate, joint and several liability was inappropriate and that equitable factors were appropriate

• However, the court relied on calculations of how much contaminated dirt was moved and the minimal timeframe of the activity to determine that Paul’s share was 0.24% of the total costs; not clear what equitable factors entered into the analysis

25


Courts Citing City of Gary

• Few Courts have cited to this case.

• See N. States Power Co. v. City of Ashland,

Wis., 93 F. Supp. 3d 958 (W.D. Wisc. 2015):

– Defendant argues that the Court should allocate it

zero percent contribution costs.

– The Court cites City of Gary, recognizing that “even

a small portion may be allocated to a contributing

party under § 9613.” However, the Court refuses to

conclude at the summary judgment stage that

Defendant should contribute nothing.

26


The Fox River Saga• Lower Fox River Superfund site in Wisconsin

– PCB contamination in the Fox River from manufacture of carbonless paper and recycled paper using carbonless paper waste.

• The District Court granted the EPA’s preliminary injunction against NCR Corp. to perform a remedy in OU4, holding that NCR was unlikely to prevail on a divisibility defense because:

– The mass of contamination bore little relationship with cleanup cost

– The mass of contamination bore little relationship to the harm posed to the public

– Even if the harm is the contaminated sediment itself, it is not divisible because the sediment is constantly being redistributed by natural and anthropogenic forces. See U.S. v. NCR Corp., et al, 2012 U.S. Dist. LEXIS 59089 (E.D. Wis. 2012).

• On appeal, the Seventh Circuit affirmed grant of injunction and agreed that NCR had failed to meet its burden on divisibility, noting that divisibility is not appropriate where a PRP’s pollution is a sufficient cause to bring about the harm.

– Although cleanup costs are not equal to “harm” they reflect the damage caused by pollution and can be taken into account to approximate the harm caused by pollution. See U.S. v. NCR Corp. et al, 688 F.3d 833 (7th Cir. 2012).

27


The Fox River Saga Continued• After the first Seventh Circuit decision, the District Court found that harm was not

divisible. See U.S. v. NCR Corp. et al, 960 F. Supp. 2d 793 (E.D. Wis. 2013).

• The Seventh Circuit reversed divisibility finding and vacated injunction. See U.S. v.

NCR Corp. et al, 768 F.3d 662 (7th Cir. 2014).

• On remand, the District Court found NCR liable for 28% of the remediation costs in

OU4. See U.S. v. NCR Corp. et al, 2015 U.S. Dist. LEXIS 63926 (E.D. Wis. 2015).

• However, on reconsideration, the District Court determined that NCR had failed to

meet its burden to show that harm was divisible and there was a reasonable basis for

apportionment:

– The estimates relied on by NCR “contradict[ed] facts already found by the court,” e.g. the

estimates overstated contributions by one key source of contaminants and were “sharply at

odds with reality.”

– “Substantial divergence from facts [the court has already] found, and which are not presently

contested, calls [the expert’s] conclusions into serious doubt, so much so that NCR has not

met its burden to show the extent to which it contributed to PCB concentrations.” See U.S. v.

NRC Corp. et al, 2015 U.S. Dist. LEXIS 142301 (E.D. Wis. 2015).28


The Fox River Saga – 2019 Update

• NCR’s report relied on estimates in another party’s report that included incomplete data, so it was “largely a mystery” as to how NCR’s expert arrived at his conclusions.

• The court found that it was “clear that NCR [was] attempting to reconstruct what could have been done rather than explaining what [its expert] actually did.”

• In 2017, NCR settled with EPA under a Consent Decree where NCR agreed to complete remaining dredge and capping work.

• In 2019, Final settlement with Glatfelter and GP under a Consent Decree for long term O&M ending the litigation. 29


Emhart Industries. v. U.S.2015 U.S. Dist. LEXIS 125293 (D.R.I. 2015)

• Pollution discovered within the Centredale Manor Restoration Project Superfund Site in North Providence, RI.

• Emhart provided the court with four divisibility options:

1) All incidental amounts of hazardous substances released during manufacturing process at Emhart site have been cleaned up by Emhart, so its divisible share should be zero.

2) Even if some incidental spills of hazardous substances migrated from the manufacturing area, Emhart’s divisible share should be zero because the amount Emhart spent remediating its area far exceeds the % of the total cost of the proposed remedy that could be attributed to the volumetric share of incidental spills and releases compared to the total concentration of hazardous substances at the site.

3) If Emhart discharged its liquid waste from the manufacturing process on site into the nearby river, the liquid waste contained a known quantity of hazardous substances, namely the 20% that settled in outdoor storage tanks.

4) Even if the court rejects the volumetric divisibility, considerations of geography, time and type of contaminant provide a basis to apportion.

30


Emhart Industries. v. U.S.• First, the court noted that all of Emhart’s divisibility options

presuppose that hazardous substances were deposited in dumpsters and hauled off site and not discharged or released elsewhere– Options 1-3 expressly assume this

– Option 4, by implication, assumes waste localized to one area

• Court had already found against this factual assumption –disposal facts undercut application of the divisibility defense

• Next, the court held that there are other reasons why an argument for geographic divisibility fails– Emhart’s argument rests on assumption that waste localized around

manufacturing building, but record shows that waste also deposited elsewhere on site and transported to nearby river

– Court had already found that waste had been transported to river –divisibility undercut by facts

31


Emhart Industries. v. U.S.• Similarly, the court found no reasonable basis for divisibility based on volumetric

calculations.

– Emhart’s position assumed that waste deposits were geographically localized, so there was no

reasonable basis to estimate the amount deposited in other areas

• Emhart’s calculations also assumed facts about duration and frequency of

manufacturing process at the site.

– Court found that there was too much uncertainty to make findings of fact on these issues

• The Court also rejected Emhart’s attempt to apportion harm based on type of

contaminant.

– Six COCs at the site.

– Emhart argued equal harm and that only two COCs were in its operations, so only responsible

for 33% of the COCs—Court finds that Emhart’s calculations are “wholly arbitrary”

• The Court also refused to apportion harm based on temporal divisibility, noting that

Emhart’s duration of operations was unclear.

• Lesson from Emhart: When the proposed divisibility arguments did not comport with

facts on the ground or risks posed at the site - apportionment will fail.32


Superfund and Tort Common Law: Why Courts Should Adopt a

Contemporary Analytical Framework for Divisibility of Harm

(2018)

• Note authored by Joshua M. Greenberg and published in the Minnesota Law Review

• A survey of the landscape of CERCLA cases dealing with apportionment of harm

• Greenberg argues that courts should adopt the Restatement 3rd of Torts, which follows comparative negligence, as opposed to the Restatement 2nd of Torts, which follows contributory negligence

• Appendix lists thirty-three (33) cases on Apportionment:

– Only two (2) cases found divisibility:

• City of Gary and Reichhold, Inc.

– Thirty-one (31) cases found no divisibility

33


Practice Tips Based Upon Analysis of Cases Where

Courts Found No Divisibility

• Tip #1: Experts should evaluate the sources of the harm

and be able to assess/delineate the harm from each

source:

– New York v. Next Millennium Realty, LLC, 160 F. Supp. 3d 485

(E.D.N.Y. 2016):

• Defendants unable to establish that the harm caused by the

Eastern Plume is distinct from the harm caused by the Western

and Central Plume.

• Also, the parties disagreed about the reliability of statements

made in a Supplemental Feasibility Study Technical

Memorandum.

34



Courts Found No Divisibility (Continued)

• Tip #2: Experts should assess all factors that contribute to the harm:

– PCS Nitrogen Inc. v. Ashley II of Charleston LLC, 714 F.3d 161, 185

(4th Cir. 2013):

• Plaintiff’s apportionment methodology for determining the harm that

it committed failed to consider both types of disposal (primary and

secondary) that occurred on the site.

– Pakootas v. Teck Cominco Metals, Ltd., 905 F.3d 565, 589 (9th Cir.

2018), cert. denied sub nom. Teck Metals Ltd. v. Confederated

Tribes of the Colville Reservation, 139 S. Ct. 2693, 204 L. Ed. 2d

1091 (2019):

• Defendant identified hundreds of heavy metal sources that may

have contributed to the Upper Columbia River’s pollution. However,

Defendant’s expert “expressly curtailed his divisibility analysis to the

six hazardous substances allegedly attributable to Defendant.”35




• Tip #3: Experts’ assumptions must be supported by the record/law:

– Emhart Indus., Inc. v. New England Container Co., 130 F. Supp. 3d 534,

605 (D.R.I. 2015):

• Court had found against factual assumptions on waste handling/disposal,

Divisibility Options #1-3 rejected as they relied on these flawed assumptions.

– United States v. Fed. Res. Corp., 30 F. Supp. 3d 979, 993 (D. Idaho

2014), aff'd in part, 691 F. App’x 441 (9th Cir. 2017):

• Defendant’s expert assumed Defendant’s waste rock was benign: “contained

metals concentrations below site cleanup levels and never released

hazardous materials.”

• The Ninth Circuit previously ruled that “CERCLA’s definition of hazardous

substance has no minimum level requirement” so waste rock wasn’t benign.

– 3000 E. Imperial, LLC v. Robertshaw Controls Co., Civ. No. 08-3985,

2010 WL 5464296 (C.D. Cal. Dec. 29, 2010):

• Defendant proposed apportioning by area and COCs, arguing no evidence

of TCE or benzene use in one area, but the Court rejected its claim that it

never used the COC in its operations, finding the expert’s testimony to be

unreliable. 36




• Tip #4: The divisibility defense timing may be determinative:

– Litgo N.J., Inc. v. Martin, Civ. No. 06-2891, 2012 WL 32200 (D.N.J. Jan. 5, 2012), aff'd sub nom. Litgo N.J., Inc. v. Comm’r N.J. Dep’t of Envtl. Prot., 725 F.3d 369 (3d Cir. 2013):

• “Plaintiffs’ apportionment argument is untimely [during damages]. . . Plaintiffs have had ample opportunity to contest liability in this case. To the extent Plaintiffs wanted to raise the issue of apportionment, which is a defense to joint and several liability, those arguments should have been made at the liability phase of the trial.”

– Valbruna Slater Steel Corp. v. Joslyn Mfg. Co., 260 F. Supp. 3d 988 (N.D. Ind. 2017):

• Defendant argued for divisibility following Court’s ruling on summary judgment holding Defendant jointly and severally liable for Plaintiff’s response costs.

• “At the final pretrial conference both parties explicitly confirmed that they did not intend to present any evidence of divisibility. Since Joslyn has not indicated why it could not have previously foreseen that a divisibility defense would be necessary with the exercise of due diligence, the Court will now hold it to its previous representation.”

– But see, United States v. Conagra Grocery Prod. Co., LLC, 4 F. Supp. 3d 243 (D. Me. 2014):

• “Apportionment is not a liability question. ConAgra is free to demonstrate during the damages phase of litigation that it is liable for only some divisible portion of the Government's reasonable costs of remediation.”

37




• Tip #5: Courts tend to reject zero percent apportionment arguments:

– PCS Nitrogen Inc. v. Ashley II of Charleston LLC, 714 F.3d 161 (4th Cir. 2013):

• “The structure and purposes of CERCLA simply do not permit current owner or operator

PRPs to use individual share apportionment to apportion themselves a zero-share

harm.”

– United States v. Saporito, 684 F. Supp. 2d 1043 (N.D. Ill. 2010):

• “Defendant suggests that because the rectifiers were not capable of producing waste on

their own, he should be apportioned no liability for owning them. . . It is undisputed that

the rectifiers were a necessary part of the plating process, so they must be responsible

for some amount of the waste that the process produced. Aside from zero, Defendant

suggests no other possible proportion.”

– N. States Power Co. v. City of Ashland, Wis., 93 F. Supp. 3d 958 (W.D. Wisc.

2015):

• Court refuses to conclude at the summary judgment stage that Defendant should

contribute nothing.

38


Building Divisibility Arguments• Divisibility arguments must have a strong factual foundation

and should be easily understood by the Court or a lay person

• Hire your experts early to help frame the case and collect discovery

• Do not assume only the best case for your client, it is better toevaluate divisibility from different angles and methodologies to find a range that is both reasonable and defensible

• Consider divisibility during the investigation/remedial process –before litigation starts:– Keep track of all costs during remediation: what is done, where it is

done, when it is done; use separate project task and cost tracking where needed – it’s hard to “unscramble the egg” later in litigation

39


Thank You

ENVIRONMENTAL FORENSIC TOOLS

FOR ESTABLISHING DIVISIBILITY

Adam H. Love, Ph.D.

Vice President/Principal Scientist

[email protected]

Origins in “Equitable Factors”42

CERCLA - Section 107 Joint and Several Liability

CERCLA Contribution – Section 113 “[T]he court may allocate response costs among liable

parties using such equitable factors as the court determines are appropriate.”

Objective Gore Factors◼ The ability of the parties to demonstrate that their

contributions to a discharge, release, or disposal of a hazardous waste can be distinguished

◼ The amount of the hazardous waste involved

◼ The degree of toxicity of the hazardous waste involved.

How do you know if it is divisible?43

The threshold for divisibility established by the Supreme Court - BNSF, 129 S. Ct. 1870, 1881 (2009):

apportionment need not be precise, only that there must simply be “facts contained in the record reasonably support[ing] the apportionment of liability”

Technical Strategy for Divisibility

Divisibility Approaches Often Draw From Multiple Lines of Evidence

Operational History

Nature of Release

Extent and Magnitude

Fate and Transport

Toxicity

Degradation Analysis

Chemical Fingerprinting

Cleanup Remedy

44

Two Step Process

1. Determine if the

harm is divisible

2. Apportion the

liability, assuming there

is a reasonable factual

basis

45

Divisibility of What?46

Distinctions based on:

1. Geography

2. Chemical Type

3. Volume

4. Time

1. Geography

Easiest

Impacted matrix is not moving

◼ Soils

◼ Sediment deposition

47

1. Geography

Easiest


◼ Soils


Medium

Impacted matrix is moving, but maintaining physical separation

◼ Groundwater

◼ Air

◼ Suspended sediment

48

1. Geography

Easiest


◼ Soils


Medium

Impacted matrix is moving, but maintaining physical separation

◼ Groundwater

◼ Air

◼ Suspended sediment

Difficult

Impacted matrix is co-mingled

◼ Landfills

◼ Sewer discharges

◼ Fluctuating transport direction

◼ Close proximity

49

Co-mingling does not mean the

contamination is indivisible – as other

approaches to divisibility may apply

2. Chemical Type

Easiest

Unique COC use

50

2. Chemical Type

Easiest

Unique COC use

Medium

Common COC use, but from

different source/application

◼ Unique chemical distribution of COC

mixtures

51

2. Chemical Type

Easiest

Unique COC use

Medium




mixtures

◼ Unique chemical ratios/markers

associated with COC

52

Tetraethyllead (TEL):

• reduced in 85, phase out in 1996

MTBE:

• ~1979-~2002

pristane/phytane (Pr/Ph) ratios

2. Chemical Type

Easiest

Unique COC use

Medium




mixtures


associated with COC

53

2. Chemical Type

Easiest

Unique COC use

Medium




mixtures


associated with COC

◼ Isotope differences

54

Shelley and Love (2015)

2. Chemical Type

Easiest

Unique COC use

Medium




mixtures


associated with COC

◼ Isotope differences

Difficult

Common COC use, from similar

source/application

◼ Successive or adjacent operators

55

Chemical indistinguishability

does not mean the contamination is

indivisible – as other approaches to

divisibility may apply

3. Volume

Easiest

Complete records of COC volumes and loading

56

0

20,000,000

40,000,000

60,000,000

80,000,000

100,000,000

120,000,000

140,000,000

160,000,000

180,000,000

1974 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998

Pounds

3. Volume

Easiest


Medium Use of Surrogates for

Volume/Mass Released

◼ Facility land area (BNSF factor)

◼ Years of operations(BNSF factor)

◼ Nature of Release

57

3. Volume

Easiest


Medium Use of Surrogates for

Volume/Mass Released

◼ Facility land area (BNSF factor)

◼ Years of operations(BNSF factor)

◼ Nature of Release

Difficult

Reconstructing release history

◼ Operational parameters

◼ Discharge/disposal/spill records

◼ Fate and transport analysis

58

0

2000

4000

6000

8000

10000

12000

14000

4/12/1949 11/11/1958 6/11/1968 1/10/1978 8/11/1987 3/11/1997

TSS (

lbs/

day)

Date

4. Timing59

Easiest

Complete records of when releases occurred

4. Timing60

Easiest


Medium Reconstructing timing of release

◼ Transport

◼ Degradation

𝑌𝑒𝑎𝑟𝑠 𝑠𝑖𝑛𝑐𝑒 𝑟𝑒𝑙𝑒𝑎𝑠𝑒 =𝑂𝑏𝑠𝑒𝑟𝑣𝑒𝑑 𝑝𝑙𝑢𝑚𝑒 𝑙𝑒𝑛𝑔𝑡ℎ (𝑓𝑒𝑒𝑡)

𝐺𝑟𝑜𝑢𝑛𝑑𝑤𝑎𝑡𝑒𝑟 𝑣𝑒𝑙𝑜𝑐𝑖𝑡𝑦 (𝑓𝑒𝑒𝑡𝑦𝑒𝑎𝑟

)

4. Timing61

Easiest


Medium Reconstructing timing of release

◼ Transport

◼ Degradation

Difficult

Impacted matrix age-dating

◼ Isotopic age-dating

Interval of

major

contamination

Apportionment of Other Factors62

How much of the divisible portion is being addressed by the remedy?

How much of the divisible portion is contributing to health and/or ecological risk?

How much of the divisible portion is resulting in differential remedy costs?

Putting It All Together63

Geography

Chemical type

Volume

Time

Parallel Lines of Analyses

Leading to comparable results

Analyses in Series

Divisibility within earlier divisions

12%

10%

9.5%

11%

25% 50% 40% 80%

25% x 50% x 40% x 80% = 4%

Reality Check64

If it is too good to be true, it

probably is!

Does it require an alternative

universe?

Would all other RPs

end up with a similarly

good outcome they used the

same technical approach? M.C.. Escher “Relativity” (1953)

Summary65

The Court’s threshold of “a reasonable basis” for

divisibility allows for numerous techniques to be

potentially applied

Make sure you are considering all the potential technical tools

and methods at your disposal

to slice up the liability

marshalling the divisibility defense to cercla liability:...

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