The U.S. Supreme Court has decided to determine when liability is “joint and several” as compared to when it should be “reasonably apportioned.” This case may undermine the EPA’s long time position that CERCLA liability is always joint and several, except when a defendant can prove divisible harm. This position has enabled the EPA to compel any PRP to clean up an entire Superfund site, subject to its ability to pursue cost recovery against other PRPs. Likewise, this position has allowed the EPA to compel solvent PRPs to pay the pro rata share of insolvent and defunct PRPs. This issue should be decided within the next year.

Download DTSC, CALIFORNIA v. BURLINGTON NORTHERN (PDF:945KB).