Twelve years ago, the Supreme Court injected a bit of common-law common sense into liability for remedial work at Superfund sites. Specifically, under the right set of circumstances (geography, volumetric contribution, operational timeframe, etc.) a liable party might be able to ensure that it pay only for the harms it caused, and not for the harms caused by others at the same Superfund site.
In the aftermath of that case, Burlington Northern v. United States, dozens of parties sought this relief—known formally as “divisibility,” or “apportionment.” Burlington Northern & Santa Fe Ry. v. United States, 556 U.S. 599 (2009). Time and time again these parties were told by lower courts that they had not presented “the right set of circumstances”—even in cases with facts similar to Burlington Northern’s. A new Seventh Circuit decision, Von Duprin LLC, now provides a final nail, confirming that Burlington Northern is an outlier as far as the courts tasked with applying it are concerned.
The Seventh Circuit’s decision overturned a decision from the Northern District of Indiana that, until appealed, had presented divisibility’s best hope. Most Superfund sites involve multiple parties that released contaminants that ultimately comingled in soil and/or groundwater. But Burlington Northern did not treat comingling as a decisive factor. It approved a divisibility finding at a site where the pollution was comingled, but where certain dischargers could distinguish their waste to show they had contributed much less (in terms of quantity, area, time of disposal, etc.) to the contamination than others.
In the years following Burlington Northern, lower courts rarely allowed divisibility when comingling had occurred. Each of the contributing parties at these sites had performed acts that resulted in contamination that needed to be addressed by the same remedial program. While scale mattered to equitable allocation, allocation alone does not guarantee that a party will be liable only for a discrete set of costs.
According to Burlington Northern, divisibility is a two-step process. The first step is to determine the legal question of whether the divisibility is “theoretically capable of apportionment.” If that threshold is satisfied, then the court determines—as a factual matter—whether there is a “reasonable basis for apportionment” under the circumstances of the case.
Many court decisions conflate the two steps. But the party seeking divisibility in Von Duprin forced the issue by filing a summary-judgment motion covering only the first step. In support of the motion, it provided expert testimony claiming that the harms were theoretically capable of apportionment, even though party’s pollutants had become comingled with pollutants from other parties at the site. (The other parties were strongly opposed to divisibility.)
The expert survived a Daubert challenge, and the court concluded that the theoretical step had been satisfied. The opposing parties complained that, under the cleanup site’s circumstances, the methodology had numerous flaws. But the court ruled that those objections pertained to the second, fact-based, step—the moving party was seeking a ruling only on the first step. The movants had presented valid, if imperfect “theory”, and so the “theoretically capable” step had been satisfied.
The ensuing bench trial covered numerous topics, not just the second step of Burlington Northern. With little discussion, the court ultimately ruled that, once applied, the movant’s divisibility method did provide a “reasonable basis for apportionment.”
If the court’s decision in Von Duprin had stood, it would have been a rally point for parties attempting to make divisibility arguments. Even though the district court’s decision finding divisibility at a site with a comingled plume was an outlier, movants could tout its persuasive force as the only district court decision that properly separated the two-step Burlington Northern test.
On appeal, however, the Seventh Circuit concluded that the district court’s focus on “proceeding in two distinct steps,” was a weakness, not a strength. Per the panel, when applying Burlington Northern “it is often easier and more practical to think of [the two steps] as blending together and interrelated. . . . [T]he overarching question is whether, as a matter of record evidence, the environmental harm (and responsibility for the response costs at issue) can be apportioned by applying principles of causation.” The appeals panel advised that, moving forward, district courts should simply treat Burlington Northern’s test as a factual issue, albeit one that operates in a framework of legal “principles of causation.”
In sum, the Burlington Northern decision was a battle that divisibility won, in a war that it ultimately lost. The decision’s lack of practical guidance—especially with regard to the nature of the “theoretical” step—led courts to return to prior practice of treating divisibility with deep skepticism. Tellingly, the Seventh Circuit’s Von Duprin decision emphasizes that divisibility is “rare” and supports this with cites to Seventh Circuit cases pre-dating Burlington Northern. Unless and until the Supreme Court revisits divisibility, it is a concept that has little meaning in practice.
Comingled Contamination, Reproduced from Emhart Indus. v. New Eng. Container Co., 130 F. Supp. 3 (D.R.I. 2015).