The Ninth Circuit Court of Appeals decided a case of first impression regarding the “divisibility” defense to joint
and several liability under the federal Superfund, or “CERCLA.” In Department of Toxic Substances Control v.
Burlington Northern & Santa Fe Railway Co., et al., Case No. 03-17125 (9th Cir. 2007) (“Burlington Northern”),
the Court examined the issue of how, in lieu of joint and several liability, the courts could apportion liability
amongst the PRPs when they have been sued in a cost recovery action (as opposed to a contribution action).
Such apportionment would avoid the transaction costs and potential unfairness encountered when PRPs are held liable for contamination they did not cause, and are forced to pursue contribution actions against other responsible parties.
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