Implications of the Supreme Court's Ruling on Reasonable Basis for Apportionment:
Increasing the Value of Science
While technically defensible evidence concerning the nature and source of contamination at CERCLA (Superfund) sites has always been useful, the value of such information has increased as a result of the Supreme Court's recent ruling in Burlington Northern & Santa Fe Railway Co. v. United States. Basing the ruling on the common law theory of divisibility, the Court held 8-1 that a potentially responsible party (PRP) can avoid joint and several liability if it demonstrates a "reasonable basis" for determining its contribution to the site contamination. The Court went on to state that "[n]ot all harms are capable of apportionment, however, and CERCLA defendants seeking to avoid joint and several liability bear the burden of proving that a reasonable basis for apportionment exists." Unlike equitable allocation in cost recovery actions, apportionment requires evidence that supports the divisibility of damages jointly caused by PRPs. While the reasonable basis standard will continue to evolve, this ruling further opens the door for PRPs to present technically-based arguments for establishing their share of contaminant inputs to terrestrial and sediment sites, and in doing so, limiting their liability.
Exponent scientists have been supporting clients in developing apportionment strategies and obtaining appropriate evidence for more than 20 years. While always useful in the definitive identification of sources (i.e., chemical fingerprinting), some of this work has also resulted in the successful, quantitative apportionment of chemical inputs to CERCLA sites as determined by the courts. The application of these methods at CERCLA sites, including case studies, was recently summarized in our CLE presentation Technical Approaches for Apportioning Liability and Allocating Environmental Costs, which was also the subject of a recent Technical Roundtable at the annual meeting of the ABA Section of Environment, Energy, and Resources. Many of the applicable and acceptable methods have regularly been presented in books and peer-reviewed journals.
About Exponent
One of our core "signature" areas of business and technical excellence is our practice of Environmental Forensics, in which a group of senior practitioners have developed, published, and applied scientific methods for developing technical bases for apportioning chemical contributions at sediment and terrestrial sites. Working with our colleagues from Environmental Cost Consulting, Site Investigation & Remediation, and related practice areas, we provide an integrated approach to apportionment investigations. Our team of environmental forensics leaders has presented scientifically defensible approaches, data, and findings in courts. This work has assisted counsel in obtaining fair results for their clients.
Exponent's Environmental Forensics staff use a variety of complementary peer-reviewed and litigation-tested tools including historical (and operations) research and reconstruction of releases, chemical fingerprinting, age-dating, transport pathway analyses, geospatial mapping and analysis, etc., in our practice. Our consultants have published key papers, and have testified in the courtroom on methods for developing quantitative bases for apportionment.
We would be pleased to discuss these approaches with you.
Walter J. Shields, Ph.D., C.P.S.S.
shieldsw@exponent.com (425) 519-8762
Mark W. Johns, Ph.D., P.G., L.G.
mjohns@exponent.com (425) 519-8732 |
