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Implications of the Supreme Court's Ruling on Reasonable Basis for Apportionment: Increasing the Value of Science


May 8, 2009

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.

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.

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