Is There A De Minimis Defense To Liability in Superfund? The Supreme Court Indicated There Was; One District Court Says No.

Explore:  CERCLA Superfund

Burlington Northern squarely decided that where environmental harm is divisible, an individual PRP can obtain apportionment of its liability and be assigned a specific percentage share; in such instances, there will be no joint and several liability.  The possibility follows from Burlington Northern that a PRP which can establish divisibility of harm might be able to show that its percentage share of liability is so small that it effectively has a complete defense to  liability.

That precise issue came up in the most recent decision in the Lower Fox River Superfund matter.  There, several PRPs had disposed of PCBs upgradient of an operable unit in the Lower Fox River.  These PRPs argued that they could not be held liable on summary judgment because the PCBs they had discharged did not reach the operable unit in sufficient quantities to require any response action.  The court rejected this argument on the ground that there was no “de minimis defense” in CERCLA and liability had been established once these PRPs acknowledged that they had discharged PCBs which had migrated in any amount to the operable unit.

In granting the government’s summary judgment motion, the low volume PRPs were deemed to be jointly and severally liable for the operable unit even though virtually all of the PCBs had come from other parties.  While the practical consequence of this decision may be ameliorated if these low volume PRPs end up being assigned small contribution shares, the decision seems dubious, particularly on summary judgment.  Contrary to the court’s assertion that CERCLA does not afford a de minimis defense, Burlington Northern indicates that there would be a de minimis defense if a PRP can show that the harm can be apportioned with a liability share at or near zero.  At a minimium, it is a factual issue whether the harm can be apportioned, which should be sufficient to defeat summary judgment.


Written by:

Published In:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley Hoag LLP - Environmental Law | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »

All the intelligence you need, in one easy email:

Great! Your first step to building an email digest of JD Supra authors and topics. Log in with LinkedIn so we can start sending your digest...

Sign up for your custom alerts now, using LinkedIn ›

* With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name.