The Divisibility of Harm Defense to Joint and Several Liability Under CERCLA

David Montgomery Moore

Mr. Moore is a staff attorney at the U.S. Environmental Protection Agency (EPA) in the Office of Enforcement, Superfund Division. He is a graduate of the University of South Florida (B.S. Biology 1988) and Pace University School of Law (J.D. 1992), where he was editor-in-chief of the Pace Environmental Law Review. The views expressed in this Dialogue should be attributed to the author only and do not reflect the position of EPA.

[23 ELR 10529]

The Comprehensive Environmental Response, Compensation, and Liability Act¹ (CERCLA) does not expressly provide for joint and several liability, but it is well-established that under CERCLA § 107(a)² potentially responsible parties (PRPs) will be jointly and severally liable for the release, or threat of release, of hazardous substances.³ As a general proposition, a PRP may be able to defend against the full application of joint and several liability in a particular case if it can show that harm it caused or for which it is responsible is divisible and reasonably capable of apportionment.⁴ However, no defendant has ever successfully invoked the divisibility defense in any reported decision.

Where hazardous substances are commingled following disposal at a site, evidence that a single PRP's contribution caused a distinct and segregable environmental harm is typically unavailable. The unavailability of this type of evidence is important because the divisibility defense requires a fact-intensive analysis, and because the defendant bears a heavy burden of proof. Consequently, the defense should be unsuccessful in all but the clearest of cases. In addition, proof of divisibility of harm is not a complete defense to liability. A PRP that is able to establish that its harm is divisible is nevertheless liable for its discrete portion of the harm caused by a release for which it is responsible. In this respect, divisibility of harm is only a partial defense to liability for all cleanup costs at a site.

Two recent decisions captioned United States v. Alcan Aluminum Corp.,⁵ one by the U.S. Court of Appeals for the Second Circuit and one by the U.S. Court of Appeals for the Third Circuit, have created renewed interest in the divisibility of harm defense to joint and several liability. Divisibility claims may become more common as a result of these cases. While these decisions may affect the procedural posture in which divisibility claims are raised in litigation, they do not lessen a defendant's burden of proof nor are they expected to alter the likelihood of success of divisibility claims.

This Dialogue describes the general principles of the divisibility of harm defense, the respective burdens on the parties, the appropriate timing for raising the defense, and methods of apportioning harm. The Dialogue summarizes and discusses the principles of divisibility of environmental harm and the cases in which the principles have been applied under CERCLA. It is intended to provide a framework for analyzing and assessing claims of divisibility made by PRPs in the negotiation and settlement of CERCLA enforcement cases, in referrals, and in settlements.

General Principles

Application of the "divisibility of harm" defense to joint and several liability under CERCLA arose due to a conflict over the scope of CERCLA liability. Language imposing joint and several liability was deleted from an early draft of the statute because legislators were concerned that it would produce inequitable results.⁶ Instead, the legislative history indicates a congressional intent that courts determine liability based on [23 ELR 10530] common-law principles applicable to multiple generator defendants.⁷ The courts, as a result, have adopted as federal common law in CERCLA cases the principles of liability applicable to joint tortfeasors, including divisibility.⁸

The Restatement of Torts Standard of Liability

The first reported decision to address the application of the divisibility defense in a CERCLA action was United States v. Chem-Dyne Corp.⁹ In Chem-Dyne, the U.S. District Court for the Southern District of Ohio read the legislative history of CERCLA as supporting adoption of liability standards applicable to joint tortfeasors under the Restatement (Second) of Torts §§ 433A and 881.¹⁰ Restatement § 433A provides that

(1) Damages for harm are to be apportioned among two or more causes where

(a) there are distinct harms, or

(b) there is a reasonable basis for determining the contribution of each cause to a single harm.

(2) Damages for any other harm cannot be apportioned among two or more causes.¹¹

Restatement § 881 provides that

if two or more persons, acting independently, tortiously cause distinct harms or a single harm for which there is a reasonable basis for division according to the contribution of each, each is subject to liability only for the portion of the total harm that he has himself caused.¹²

Applying these principles to government enforcement actions under CERCLA, courts have found that PRPs as joint tortfeasors are jointly and severally liable, unless the environmental harm caused by one joint tortfeasor is discrete and distinct from that caused by other tortfeasors, and there is a reasonable basis for determining or apportioning the harm caused.¹³ Most courts addressing the issue have adopted the reasoning of the Chem-Dyne decision,¹⁴ and the legislative history of the Superfund Amendments and Reauthorization Act of 1986¹⁵ (SARA) cited the case with approval.¹⁶

No Causation Burden on the Government

Citing Restatement § 433B,¹⁷ some defendants have attempted to argue that before joint and several liability can be imposed, the government has the initial burden of showing that the defendants were a "substantial" cause of the harm.¹⁸ However, courts have rejected this argument as contrary to the policies underlying CERCLA.¹⁹ In fact, the government need not even trace the exact wastes found at a site back to wastes deposited by a defendant.²⁰ The Restatement, therefore, is merely a source for courts to consult, and not an absolute declaration of the liability standard applicable to CERCLA.²¹

Burden of Proof on the Defendant

The burden is on the defendant to demonstrate that the harm is divisible.²² To overcome this burden, the defendant must demonstrate that the hazardous substances it sent to a site caused a specific environmental harm, separate and distinct from other environmental harm at the site.²³ Although no CERCLA defendant has successfully opposed joint and several liability under a divisibility argument, courts have indicated that evidence of toxicity, migratory potential, and synergistic capacity of the hazardous substances at the site is necessary to a successful divisibility defense.²⁴

Timing of Divisibility Arguments

Because the divisibility defense challenges the application of joint and several liability to a particular defendant, divisibility of harm may be an appropriate affirmative defense during the liability phase of litigation.²⁵ Most recently, the [23 ELR 10531] Third Circuit suggested that hearings on divisibility of harm at the summary judgment stage of litigation may be required under certain circumstances.²⁶

This decision may potentially affect the procedural posture of a case, rather than the substance of the defense. The Second Circuit, on the other hand, has explicitly declined to determine when hearings on divisibility are appropriate, leaving this decision up to the district courts.²⁷

Reasonable Basis for Apportionment of Harm

The defendant must establish a reasonable basis for apportioning liability for environmental harm.²⁸ Establishing a reasonable basis for apportionment is the most important and difficult issue in determining whether a divisibility of harm defense will succeed. Apportionment of liability (as opposed to apportionment of costs) is dependent on the defendant establishing that the environmental harm caused is specific, separate, and distinct. Even if the defendant can show that the harm is separate, the defense will not succeed if there is no reasonable basis on which to apportion liability.²⁹

Volumetric Apportionment. When volumetric apportionment is used as a basis for apportioning a defendant's environmental harm, the defendant must show that a relationship exists among the waste volume, the release of hazardous substances, and the harm at the site.³⁰ Harm may be apportioned volumetrically if it can be reasonably assumed or shown that no separate, independent factor affected the environment.³¹ However, the volume of wastes may not always be an accurate predictor of harm, because the toxicity and migratory potential of a hazardous substance varies independently of its volume.³² For this reason, and because the defendant bears the burden of showing divisibility, volumetric apportionment is particularly unsuitable for application at large sites with numerous sources of hazardous substances.

Commingled Substances. The presence of commingled waste is good evidence that harm is indivisible.³³ "[T]he commingling and migration of wastes at a disposal site makes identification of sources scientifically difficult and economically infeasible."³⁴

Harm from commingled wastes is not automatically considered indivisible.³⁵ It may be possible to obtain evidence of the individual and interactive qualities of chemicals in order to apportion the harm resulting from commingled wastes.³⁶ Again, evidence disclosing the relative toxicity, migratory potential, and synergistic capacity of the hazardous substances at the site are relevant to establishing divisibility of harm.³⁷ As a practical matter, such evidence is often unavailable, speculative, and/or insufficient for a defendant to satisfy its substantial burden of showing that its harm is divisible.

Fingerprinted or Traceable Substances. The fact that hazardous substances are traceable to a defendant does not necessarily mean that the harm caused by those substances is divisible.³⁸ For example, in United States v. Western Processing Co.,³⁹ the U.S. District Court for the Western District of Washington found that some of the arsenic at a contaminated site could be traced to the defendant by virtue of arsenic-contaminated oxalozolidone, a byproduct produced at the defendant's plant. Nevertheless, the harm caused by the defendant's release of arsenic was not divisible, because arsenic was commingled with other hazardous substances throughout the site. The defendant's wastes had become part of the "chemical soup," inseparable from other wastes at the site.⁴⁰ Thus, where it is impossible to clean up one defendant's waste without also cleaning up another defendant's waste, the environmental harm is indivisible and there is no basis for apportionment.

Containerized Substances. Even where barrels of waste are relatively intact, or containerized, and clearly attributable to particular defendants, environmental harm is not necessarily divisible. In O'Neil v. Picillo,⁴¹ the defendant argued that the harm caused by its wastes was divisible from the harm at the site based on the allocation of costs of removing the 10,000 barrels the defendant sent there.⁴² The U.S. Court of Appeals for the First Circuit rejected this approach, noting that added precautions were required to handle some drums, including the defendant's, which contained especially hazardous wastes.⁴³ Furthermore, some of the defendant's wastes had leaked from its containers and were commingled with other wastes in the surrounding soil.⁴⁴ Picillo demonstrates how difficult it is, as a practical matter, to establish a legally valid basis for the divisibility defense.

[23 ELR 10532]

Rejected Arguments

The extent to which harm is specific, separable, and distinct is the only relevant inquiry.⁴⁵ Accordingly, courts have rejected divisibility arguments based on removal or remedial expense, consistency with the national contingency plan,⁴⁶ and equitable considerations. The divisibility of harm defense is based on the environmental conditions at a site.⁴⁷ The amount of money spent on various removal or remedial activities is not in any way relevant to divisibility.⁴⁸ Thus, courts should reject defendants' attempts to raise divisibility arguments based on the expense of various stages of remediation.

Equitable factors have no bearing on determining whether liability to the United States is divisible or joint and several.⁴⁹ Rather, equitable factors are only relevant for consideration in a contribution action between PRPs as joint tortfeasors when considering the issue of relative liability.⁵⁰

Distinguishing Allocation of Costs and Apportionment of Harm

The apportionment of harm prong of the divisibility of harm defense is sometimes confused with "allocation of costs" in a contribution action.⁵¹ As noted above, "allocation of costs" applies only to contribution actions under CERCLA § 113(f)⁵² and refers to the assignment of a portion of the costs of a single, indivisible harm among PRPs that are jointly and severally liable for the harm. "Apportionment of harm" or "apportionment of fault," on the other hand, challenges joint and several liability itself based on the divisibility of the environmental harm for which a group of defendants are responsible.⁵³

Because these concepts of allocation and apportionment are closely related, defendants sometimes argue for an apportionment based on the so-called Gore factors.⁵⁴ However, courts have made it clear that the Gore factors apply, if at all, to private contribution actions as a method for allocating costs among jointly and severally liable parties, and not as a defense to joint and several liability.⁵⁵

The Alcan Decisions

Two recent decisions captioned United States v. Alcan Aluminum Corp., one by the Second Circuit (Alcan-New York) and one by the Third Circuit (Alcan-Butler), have raised new issues as to when a court should hear divisibility arguments and accept divisibility evidence.⁵⁶ The Alcan decisions, however, in no way change the position of the government or PRPs on liability during negotiation. The standard of liability adopted in the Alcan decisions is precisely the same standard used since Chem-Dyne was decided in 1983: "whether a harm is divisible and reasonably capable of apportionment…."⁵⁷ Because the Alcan decisions did not change the standard of joint and several liability, or any of the principles of divisibility of harm, they should be read as affecting only the procedural posture of the divisibility defense, not the substance of the defense.⁵⁸

The decisions provide that, where appropriate, the divisibility [23 ELR 10533] of harm defense may be raised on summary judgment. If a court decides to hear divisibility arguments at the liability phase, then the Alcan decisions provide a test. A defendant may avoid being held jointly and severally liable for response costs only if it successfully proves its portion of the harm is divisible and capable of reasonable apportionment.⁵⁹ A defendant cannot entirely avoid liability for response costs unless it proves that its hazardous substances had not or could not have caused or contributed to the release or to the resultant response costs.⁶⁰

Assuming a district court allows the defense to be raised during summary judgment on liability,⁶¹ the Alcan decisions leave unaddressed the issue of what is the threshold evidentiary burden a defendant must meet in order to obtain a hearing on divisibility. Under Rule 56 of the Federal Rules of Civil Procedure, mere assertion of the defense will not suffice to defeat a motion for summary judgment or warrant an evidentiary hearing on divisibility. Rather, evidence establishing a genuine issue of material fact as to a scientifically supported theory of divisibility, and the toxicity, migratory potential, and synergistic capacity of the hazardous substances at issue must be provided.⁶²

Alcan-Butler

In Alcan-Butler, the Third Circuit vacated an entry of summary judgment for the United States, and remanded to the district court for a hearing on whether the harm in that case was divisible and the damages capable of reasonable apportionment. The district court found that Alcan Aluminum Corp. had disposed of approximately two million gallons of oily wastes, containing aluminum, copper, chromium, cadmium, lead, and zinc, into a former mineshaft, the Butler tunnel, that discharged directly into the Susquehanna River.

Alcan argued that it was not liable for any response costs because the environmental harm caused by its wastes was divisible and negligible.⁶³ Alcan contended that any harm it caused was negligible because the levels of toxic constituents in its wastes were far below the U.S. Environmental Protection Agency's (EPA's) toxicity levels, and that the levels of these constituents were below ambient levels.⁶⁴ Furthermore, Alcan argued that any harm caused by its oily wastes was divisible from other harm at the site due to the low concentration of Alcan's wastes.⁶⁵

EPA countered by arguing that CERCLA contains no quantitative threshold in the definition of hazardous substances.⁶⁶ Furthermore, EPA argued that for cases where multiple defendants have caused environmental harm, individual defendants must be held responsible for the environmental injury even where low concentrations of hazardous substances in their wastes could not alone have produced the environmental harm.⁶⁷ Otherwise, multiple defendants who contributed low concentrations of hazardous substances could avoid liability even though significant harm was caused by their wastes.⁶⁸

The court held that the district court erred in granting summary judgment in favor of EPA without conducting a divisibility hearing.⁶⁹ In a footnote, the court rejected EPA's argument that harm was per se indivisible because the wastes in question were commingled.⁷⁰ The court stated that because the divisibility argument involves relative degrees of liability, it is best resolved at the liability stage rather than the "contribution" stage of litigation.⁷¹ Finally, the court concluded that "if Alcan can establish that the hazardous substances in its [wastes] could not, when added to other hazardous substances, have caused or contributed to the release or the resultant response costs, then it should not be liable for any of the response costs."⁷² The court specifically upheld the government's position that (1) there is no quantitative threshold in the definition of hazardous substances, and (2) the plaintiff need not establish a causal connection between a given defendant's waste and the release or the incurrence of response costs.⁷³

By remanding the case for an evidentiary hearing on the facts underlying the divisibility issue, the Third Circuit raised new questions as to the timing of a divisibility hearing and the burden of proof a defendant must meet to trigger such a hearing.

The court clearly stated that Alcan's burden in attempting to prove divisibility of harm was "substantial" and would require a factually complex analysis including "an assessment of the relative toxicity, migratory potential and synergistic capacity of the hazardous waste at issue."⁷⁴ The court recognized that even though Alcan's wastes may have contained the same concentration of trace metals as other wastes, or were below ambient levels, the record did not determine whether the toxins had become concentrated and thereby posed an environmental threat.⁷⁵ Thus, the precise nature of the burden on a defendant in the Third Circuit to trigger a divisibility of harm hearing cannot be determined until the outcome of Alcan-Butler on remand.

Alcan-New York

In Alcan-New York, the Second Circuit affirmed in part and reversed in part an entry of summary judgment for the United States and the state of New York, and remanded to the district court for further proceedings on whether [23 ELR 10534] the harm in that case was divisible and the damages capable of reasonable apportionment. From 1970 to 1977, Pollution Abatement Services (PAS) operated a waste disposal and treatment facility in Oswego County, New York.⁷⁶ Alcan arranged for the treatment or disposal of 4.6 million gallons of oil emulsion consisting mostly of water and mineral oil, but also containing lead, copper, chromium, zinc, and cadmium.⁷⁷ Alcan argued that the concentration of hazardous substances in its emulsion did not exceed a minimum threshold for liability under CERCLA, and that its wastes did not contribute to the incurrence of response costs.⁷⁸

The Second Circuit agreed with the district court's determination that CERCLA's definition of hazardous substances is extremely broad and did not impose "a quantitative requirement on CERCLA liability."⁷⁹ Furthermore, the Second Circuit said that the statute "does away with a causation requirement" and that the strict liability standard allows the imposition of CERCLA liability without the government having to show that a specific defendant's waste caused incurrence of cleanup costs.⁸⁰

The Second Circuit then held that joint tortfeasors are liable only for their own portion of the harm where each can show that the harm is distinct and there is a reasonable basis for apportionment.⁸¹ This standard is based on the common-law principles of joint and several liability adopted by a number of courts for use under CERCLA.⁸² Therefore, the court held, "Alcan may escape any liability for response costs if it either succeeds in proving that its oil emulsion, when mixed with other hazardous wastes, did not contribute to the release and the cleanup costs that followed, or contributed at most to only a divisible portion of the harm."⁸³ The court held that, to defeat a motion for summary judgment, Alcan needs to show that "there are genuine issues of material fact regarding a reasonable basis for apportionment of liability."⁸⁴ The defendant has the burden of proof to defeat the government's motion for summary judgment on the issue of divisibility. Evidence supporting divisibility of harm includes proof of relative toxicity, migratory potential, degree of migration, and synergistic capacities of the hazardous substances at the site.⁸⁵

The court adopted what it termed a "special exception" to the normal case (where causation need not be shown), allowing a defendant to "escape payment where its pollutants did not contribute more than background contamination and also cannot concentrate."⁸⁶ This exception "is applicable only to claims, like Alcan's, where background levels are not exceeded [and] in the absence of any EPA thresholds."⁸⁷

The Second Circuit did not rule on whether to follow the Third Circuit's approach articulated in Alcan-Butler that required divisibility to be decided at the initial liability phase of the case. The Second Circuit preferred to let the trial courts decide when to address divisibility and apportionment issues.⁸⁸

Analysis of the Alcan Decisions

The Alcan decisions affirmed many of the basic principles of the divisibility of harm defense, but raise new issues as to the timing of the defense and potential implications of background contamination. The standard for the divisibility of harm defense to full joint and several liability remains the same: (1) whether the environmental harm caused by the defendant is divisible, and (2) whether the damage is reasonably capable of apportionment.⁸⁹ The burden of proving divisibility of harm remains on the defendant.⁹⁰ These new issues may be resolved on remand.⁹¹

The Alcan decisions change only the procedural posture of the divisibility of harm defense to joint and several liability, but leave many questions unanswered. The appropriate point at which to raise the defense is unclear. For courts in the Third Circuit, the divisibility of harm defense may be raised at the summary judgment stage of litigation,⁹² but in other courts, the divisibility of harm defense may not be properly raised at that stage. After reviewing the language and legislative history of CERCLA, the Second Circuit specifically refused to follow the Third Circuit's approach, because "it may be contrary to the statutory dictates of CERCLA."⁹³

The Alcan decisions raise the important question of what is the appropriate burden of proof to trigger a hearing on divisibility. The Third Circuit has described the burden as "substantial" and "factually complex," requiring analysis of "toxicity, migratory potential, and synergistic capacity of the hazardous [substance] at issue.⁹⁴ To defeat the government's motion for summary judgment, both the Second and Third Circuits appear to agree that a defendant must [23 ELR 10535] show that the harm is divisible and reasonably capable of apportionment.⁹⁵

The Second Circuit raised a new issue with respect to background contamination that had not been previously addressed by the courts. Without citing case law or statutory or legislative authority, the Alcan-New York court created what it termed a "special exception" to the absence of a causation requirement that had long been established by courts interpreting CERCLA.⁹⁶ This special exception would apply to situations where a defendant's pollutants did not contribute more than background contamination and also are not capable of concentration.⁹⁷ The exception is limited only to substances for which EPA has not established a threshold.⁹⁸

The nature of this special exception is unclear due to imprecise language in the opinion. The Second Circuit stated that this exception is "reintroduced only to permit a defendant to escape payment…."⁹⁹ The language is confusing and raises the question of whether the court intended that a defendant who contributed contaminants in concentrations below background level escape payment by declaring no costs be allocated to that defendant, or whether the court meant to exempt such defendants from liability altogether. An exemption from liability would be contrary to established case law and has no ascertainable basis in the statute.

Conclusion

Depending on the outcome of the Second and Third Circuit remands, the Alcan decisions may require litigants to prepare scientific and technical assessments of the nature of environmental harm at an earlier stage of litigation. At any stage of litigation, claims of divisibility of harm must be carefully analyzed to ensure that the claim is viable and that defendants are not confusing arguments for divisibility of harm with arguments for allocation of costs. Any assertion during negotiation or litigation that harm is divisible carries a substantial burden and will require a significant amount of proof. Courts have consistently held that a divisibility of harm determination depends heavily on the facts of the case.¹⁰⁰ At the very least, a PRP must present evidence on the toxicity, migratory potential, and synergistic capacity of the hazardous substances at issue.¹⁰¹ For the vast majority of cases, this type of evidence is unavailable, speculative, and/or insufficient to meet the substantial burden for showing divisibility. Therefore, divisibility arguments during negotiation should not be entertained unless appropriate data is made available to meet this burden. Even if such evidence is available, the case law unanimously requires a reasonable basis on which to apportion the costs of the harm.

Therefore, the relevant inquiry raised by the divisibility defense is whether the environmental harm caused by a particular defendant is distinct and severable from other environmental harm at the site, and if so, whether there is some reasonable basis for apportioning the defendant's harm as compared to other harm at the site. To make this showing, a defendant must provide scientific and technical evidence demonstrating that the defendant's harm is divisible under a scientifically acceptable theory. A defendant must present this evidence at any stage of litigation that the defendant seeks to raise a divisibility defense, including during settlement negotiations.

Confusion surrounding the parameters of the defense has led defendants to raise a number of erroneous divisibility of harm arguments that courts should reject based on the statute and case law. Proof that a defendant contributed a particular volume of waste does not alone establish a reasonable basis of allocation to support a divisibility claim. Where hazardous substances contributed by the defendant are similar or identical in composition and concentration to other hazardous substances at the site, apportionment by volume is not appropriate because the single harm to the environment is indivisible and will require the same response action. Apportionment by volume may also not be appropriate where hazardous substances contributed by the defendant differ in composition, concentration, and toxicity; where the wastes are commingled; where a unified response action is required to abate the environmental harm;¹⁰² or where the environmental harm is otherwise inseparable. Once again, the relevant inquiry focuses on the environmental harm itself, and only evidence relating to factors that affect the environmental harm, such as toxicity, migratory potential, and synergistic capacity of the hazardous substances is relevant.

1. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA 007-075.

2. 42 U.S.C. § 9607(a), ELR STAT. CERCLA 024.

3. The statutory premise for strict liability is found in § 101(32), 42 U.S.C. § 9601(32), ELR STAT. CERCLA 009, which incorporates the standard of liability of the Federal Water Pollution Control Act (FWPCA). FWPCA § 311(c), 33 U.S.C. § 1321(c), ELR STAT. FWPCA 71. See, e.g., United States v. Chem-Dyne Corp., 572 F. Supp. 802, 804-08, 13 ELR 20986, 20987-88 (S.D. Ohio 1983); see also United States v. Monsanto Co., 858 F.2d 160, 171, 19 ELR 20085, 20089 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989); United States v. Northeastern Pharmaceutical & Chem. Co., 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986), aff'g in part and rev'g in part, 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984).

4. See, e.g., Monsanto, 858 F.2d at 171-72, 19 ELR at 20089-90 ("[w]hile CERCLA does not mandate joint and several liability, it permits it in cases of indivisible harm"); United States v. Marisol, Inc., 725 F. Supp. 833 (M.D. Pa. 1989); United States v. Ottati & Goss, Inc., 630 F. Supp. 1361, 16 ELR 20763 (D.N.H. 1985) (burden on defendant to show apportionment is proper); United States v. Conservation Chem. Co., 619 F. Supp. 162, 199, 16 ELR 20193, 20207 (W.D. Mo. 1985) (liability is joint and several where the injury is indivisible); Chem-Dyne, 572 F. Supp. at 811, 13 ELR at 20989.

5. United States v. Alcan Aluminum Corp., 990 F.2d 711, 23 ELR 20706 (2d Cir. 1993) (Alcan-New York); UnitedStates v. Alcan Aluminum Corp., 964 F.2d 252, 22 ELR 21124 (3d Cir. 1992) (Alcan-Butler).

6. Chem-Dyne, 572 F. Supp. at 808, 13 ELR at 20987; H. REP. NO. 253(I), 99th Cong., 2d Sess. 79-80, reprinted in 1986 U.S.C.C.A.N. 2835, 2861-62.

7. H. REP. NO. 253(I), 99th Cong., 2d Sess. 79-80, reprinted in 1986 U.S.C.C.A.N. 2835, 2861-62.

8. See supra note 3 and accompanying text.

9. 572 F. Supp. 802, 13 ELR 20986 (S.D. Ohio 1983).

10. RESTATEMENT (SECOND) OF TORTS §§ 433A, 881 (1979) [hereinafter RESTATEMENT]. Chem-Dyne, 572 F. Supp. at 809-11, 13 ELR at 20988-89. The court's authority for creating a federal common-law standard of liability was well-established. However, the court cited no authority for its adoption of the joint and several liability standard under tort law.

11. RESTATEMENT, supra note 10, § 433A.

12. RESTATEMENT, supra note 10, § 881.

13. See, e.g., United States v. Monsanto Co., 858 F.2d 160, 171-72, 19 ELR 20085, 20089-90 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989); Chem-Dyne, 572 F. Supp. at 811, 13 ELR at 20989.

14. Alcan-New York, 990 F.2d 711, 722, 23 ELR 20706, 20710-11; Alcan-Butler, 964 F.2d 252, 269, 22 ELR 21124, 21133-34; Monsanto, 858 F.2d at 172, 19 ELR at 20090; United States v. Miami Drum Serv., Inc., 17 ELR 20539 (S.D. Fla. 1986); United States v. South Carolina Recycling & Disposal, Inc., 653 F. Supp. 984, 14 ELR 20272 (D.S.C. 1984).

15. Pub. L. No. 99-499, 100 Stat. 1613.

16. H.R. REP. NO. 253, 99th Cong., 1st Sess., pt. 1 at 74, reprinted in 1986 U.S.C.C.A.N. 2835, 2856; 131 CONG. REC. H11073 (daily ed. Dec. 5, 1985) (remarks of Rep. Eckart).

17. RESTATEMENT, supra note 10, § 433B.

18. See, e.g., O'Neil v. Picillo, 883 F.2d 176, 179, 20 ELR 20115, 20116-17 (1st Cir. 1989).

19. Id.

20. United States v. Bliss, 667 F. Supp. 1298, 1310, 18 ELR 20055, 20059 (E.D. Mo. 1987) (fact that defendants contributed "in some degree to the release of the hazardous substances and the incurrence of response costs" made them jointly and severally liable); United States v. Wade, 577 F. Supp. 1326, 1333, 14 ELR 20096, 20098 (E.D. Pa. 1983) ("to require a plaintiff under CERCLA to 'fingerprint' wastes is to eviscerate the statute…. The only required nexus between the defendant and the site is that the defendant have [sic] dumped his waste there and that the hazardous substances found in the defendant's waste are also found at the site.").

21. Picillo, 883 F. Supp. at 179-81, 20 ELR at 20116-18 (on issues of joint and several liability, the courts will follow evolving principles of common law except where the agency demonstrates Congress' intention to abandon the common law).

22. Alcan-New York, 990 F.2d 711, 722, 23 ELR 20706, 20711; Alcan-Butler, 964 F.2d 252, 269, 22 ELR 21124, 21133-34; United States v. Monsanto Co., 858 F.2d 160, 172, 19 ELR 20085, 20090 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989); Bliss, 667 F. Supp. at 1312-13, 18 ELR at 20060-61; United States v. Chem-Dyne Corp., 572 F. Supp. 802, 809-11, 13 ELR 20986, 20988-89 (S.D. Ohio 1983).

23. United States v. Mottolo, No. 83-547-D, slip op. (D.N.H. Dec. 17, 1992); United States v. Western Processing Co., 734 F. Supp. 930, 942, 20 ELR 20990, 20995-96 (W.D. Wash. 1990).

24. Alcan-New York, 990 F.2d at 722, 23 ELR at 20711; Alcan-Butler, 964 F.2d at 269, 22 ELR at 21133-34 (citing Monsanto, 858 F.2d at 172, n.26, 19 ELR at 20090, n.26; Chem-Dyne, 572 F. Supp. at 811, 13 ELR at 20989).

25. Alcan-Butler, 964 F.2d at 270, n.29, 22 ELR at 21134, n.29; United States v. Kramer, 757 F. Supp. 397, 413, 21 ELR 20879, 20885 (D.N.J. 1991) (refusing to strike divisibility of harm as an affirmative defense).

26. Alcan-Butler, 964 F.2d at 270, n.29, 22 ELR at 21134, n.29.

27. Alcan-New York, 990 F.2d at 723, 23 ELR at 20711. The Second Circuit considered the approach of the Third Circuit in Alcan-Butler, but stated that "it may be contrary to the statutory dictates of CERCLA." Alcan-New York, 990 F.2d at 723, 23 ELR at 20711. Therefore, the Second Circuit held that "the choice as to when to address divisibility and apportionment are questions best left to the sound discretion of the trial court in the handling of an individual case." Id., 23 ELR at 20712.

28. Monsanto, 858 F.2d at 172, 19 ELR at 20090.

29. An apportionment of liability may be shown, for example, where a portion of the response to a defendant's wastes is distinct from the response to other wastes at a site.

30. Monsanto, 858 F.2d at 172, 19 ELR at 20090.

31. Id.

32. United States v. Chem-Dyne Corp., 572 F. Supp. 802, 811, 13 ELR 20986, 20989 (S.D. Ohio 1983); United States v. South Carolina Recycling & Disposal, Inc., 653 F. Supp. 984, 14 ELR 20272 (D.S.C. 1984).

33. See, e.g., United States v. Stringfellow, 661 F. Supp. 1053, 1060, 17 ELR 21134, 21135 (C.D. Cal. 1987).

34. United States v. Bliss, 667 F. Supp. 1298, 1309, 18 ELR 20055, 20059 (E.D. Mo. 1987).

35. Alcan-New York, 990 F.2d 711, 722, 23 ELR 20706, 20711; Alcan-Butler, 964 F.2d 252, 270, n.29, 22 ELR 21124, 21134, n.29.

36. United States v. Monsanto Co.,858 F.2d 160, 172, 19 ELR 20085, 20090 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989).

37. Id.

38. United States v. Western Processing Co., 734 F. Supp. 930, 942, 20 ELR 20990, 20995-96 (W.D. Wash. 1990).

39. Id.

40. Id.

41. 883 F.2d 176, 20 ELR 20115 (1st Cir. 1989).

42. Id. at 182, 20 ELR at 20118.

43. Id.

44. Id.; see also United States v. Medley, 17 ELR 20297 (D.S.C. 1986) (thousands of corroded, leaking drums commingled to create single, indivisible harm); South Carolina Recycling & Disposal, Inc., 653 F. Supp. 984, 14 ELR 20272 (D.S.C. 1984) (same).

45. See supra note 10 and accompanying text.

46. United States v. Western Processing, 734 F. Supp. at 937, 20 ELR at 20993; United States v. Atlas Minerals & Chem., Inc., 797 F. Supp. 411 (E.D. Pa. 1992).

47. Western Processing, 734 F. Supp. 930, 937, 20 ELR 20990, 20993 (W.D. Wash. 1990); United States v. R. W. Meyer, Inc., 889 F.2d 1497, 1507, 20 ELR 20319, 20325 (6th Cir. 1989); United States v. Monsanto Co., 858 F.2d 160, 171, n.22, 19 ELR 20085, 20090, n.22 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989).

48. Western Processing, 734 F. Supp. at 937, 20 ELR at 20993.

49. Monsanto, 858 F.2d at 171, n.22, 19 ELR at 20089, n.22; Western Processing, 734 F. Supp. at 937, 20 ELR at 20993. But see Allied Corp. v. Acme Solvents Reclaiming, Inc., 691 F. Supp. 1100, 1118, 19 ELR 21254, 21262 (N.D. Ill. 1988) (court would allow equitable factors to be considered in establishing liability in contribution action between private parties, but "makes no ruling as to the propriety of the approach in cost recovery claims involving the government as plaintiff…."); United States v. A & F Materials Co., 578 F. Supp. 1249, 14 ELR 20105 (S.D. Ill. 1984).

50. CERCLA § 113(f), 42 U.S.C. § 9613(f), ELR STAT. CERCLA 039. See Monsanto, 858 F.2d at 171, n.22, 19 ELR at 20089, n.22; Western Processing, 734 F. Supp. at 937, 20 ELR at 20993.

51. The Western Processing court made the following distinction between the two:

If there is a single harm that is theoretically or practically indivisible, each defendant is jointly and severally liable for the entire injury. However, if there are distinct harms that are capable of division then liability should be apportioned according to the contribution of each defendant … [b]ut the court's discretion in allocating damages among the defendants during the contribution phase does not affect the defendant's liability.

Western Processing, 734 F. Supp. at 938, 20 ELR at 20993; see also United States v. Kramer, 757 F. Supp. 397, 21 ELR 20879 (D.N.J. 1991); United States v. Stringfellow, 661 F. Supp. 1053, 17 ELR 21134 (C.D. Cal. 1987).

52. 42 U.S.C. § 9613(f), ELR STAT. CERCLA 039.

53. Western Processing, 734 F. Supp. at 938, 19 ELR at 20993; see also Kramer, 757 F. Supp. 397, 21 ELR 20879. But see A & F Materials, 578 F. Supp. at 1252-57, 14 ELR at 20106-08 (apportioned costs among defendants based upon Gore amendment criteria in fact of opposition from the United States).

54. Western Processing, 734 F. Supp. at 934-35, 19 ELR at 20991-92. The Gore factors are named after the sponsor of the original CERCLA bill, former Senator Al Gore. The amendment ultimately failed, but included the following criteria:

(1) The ability of the parties to demonstrate that their contribution to a discharge, release, or disposal of a hazardous waste can be distinguished;

(2) The amount of the hazardous waste involved;

(3) The degree of toxicity of the hazardous waste involved;

(4) The degree of involvement by the parties in the generation, transportation, treatment, storage, or disposal of the hazardous waste;

(5) The degree of care exercised by the parties with respect to the hazardous waste concerned, taking into account the characteristics of such hazardous waste; and

(6) The degree of cooperation by the parties with Federal, State or local officials to prevent any harm to the public health or the environment.

Id. (citing Allied Corp. v. Acme Solvents Reclaiming, Inc., 691 F. Supp. 1100, 1116-17, 19 ELR at 21254, 21261 (N.D. Ill. 1988)).

55. Western Processing, 734 F. Supp. at 938, 19 ELR at 20993; Allied Corp., 691 F. Supp. at 1116-17, 19 ELR at 21261.

56. Alcan-Butler, 964 F.2d 252, 22 ELR at 21124; Alcan-New York, 990 F.2d 711, 23 ELR at 20706.

57. Alcan-Butler, 964 F.2d at 269, 22 ELR at 21133-34; Alcan-New York, 990 F.2d at 722, 23 ELR at 20711.

58. The decisions refer throughout to the well-established divisibility principles from cases such as O'Neil v. Picillo, 883 F.2d 176, 20 ELR 20115, (1st Cir. 1989); United States v. Monsanto Co., 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989); Western Processing Co., 734 F. Supp. 930, 20 ELR 20990 (W.D. Wash. 1990), and United States v. Chem-Dyne Corp., 572 F. Supp. 802, 13 ELR 20986 (S.D. Ohio 1983).

59. Alcan-Butler, 964 F.2d at 270, 22 ELR at 21134.

60. Alcan-New York, 990 F.2d at 722, 23 ELR at 20711 (2d Cir. 1993); Alcan-Butler, 964 F.2d at 271, 22 ELR at 21135.

61. The Second and Third Circuits diverge on the issue of timing — when the divisibility of harm defense may appropriately be raised.

62. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986) ("[w]hen a motion for summary judgment is made and supported as provided in [Rule 56], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but the adverse party's response, by affidavits or otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.").

63. Alcan-Butler, 964 F.2d at 259, 267, 22 ELR at 21127, 21132.

64. Id. at 259, 22 ELR at 21127.

65. Id. at 268, 22 ELR at 21133.

66. Id. at 260, 22 ELR at 21128.

67. Id. at 267, 22 ELR at 21132.

68. Id.

69. Id. at 269, 22 ELR at 21134.

70. Id. at 270, n.29, 22 ELR at 21134, n.29.

71. Id.

72. Id. at 271, 22 ELR at 21135.

73. Id. at 267, 22 ELR at 21132.

74. Id. at 269, 22 ELR at 21133.

75. Id. at 270, 22 ELR at 21134.

76. Alcan-New York, 990 F.2d at 717, 23 ELR at 20707.

77. Id.

78. Id. at 718, 23 ELR at 20708.

79. Id. at 720, 23 ELR at 20709-10.

80. Id. at 721, 23 ELR at 20710.

81. Id. at 722, 23 ELR at 20710-11.

82. Id.at 722, 23 ELR at 20710-11.

83. Id.

84. Id.

85. Id. at 722, 23 ELR 20711.

86. Id.

87. Id. The nature of this exception is difficult to ascertain from the language of the Second Circuit opinion. When read in light of prior case law and other portions of the opinion, the court would seem to be referring not to an exception to joint and several liability for releases below background, but rather a theory under which a PRP may ultimately avoid payment for releases below background levels. At most, this "exception" applies only to hazardous substances that are naturally occurring in background.

88. Id. at 723, 23 ELR at 20712.

89. Alcan-New York, 990 F.2d at 722, 23 ELR at 20711; Alcan-Butler, 964 F.2d at 270, 22 ELR at 21134.

90. Alcan-New York, 990 F.2d at 722, 23 ELR at 20711; Alcan-Butler, 964 F.2d at 269, 22 ELR at 21133.

91. Petitions for rehearing have been denied in both the Second and Third Circuits and both cases are on remand. Alcan-Butler, 964 F.2d 252, 22 ELR 21124, reh'g en banc denied, 1192 U.S. App. Lexis 17371 (3d Cir. July 27, 1992); Alcan-New York, 990 F.2d 711, 23 ELR 20706, reh'g en banc denied, Civ. Nos. 92-6158, -6160 (2d Cir. July 9, 1993).

92. Alcan-Butler, 964 F.2d at 269-71, 22 ELR at 21133-34.

93. Alcan-New York, 990 F.2d at 723, 23 ELR at 20711.

94. Alcan-Butler, 964 F.2d at 269, 22 ELR at 21133.

95. Alcan-New York, 990 F.2d at 722, 23 ELR at 20711; Alcan-Butler, 964 F.2d at 270, 22 ELR at 21134.

96. Alcan-New York, 990 F.2d at 722, 23 ELR at 20711.

97. Id.

98. Id.

99. Id.

100. See, e.g., Alcan-Butler, 964 F.2d 252, 22 ELR 21124 (3d Cir. 1992) (remarking on the "intensely factual nature of the 'divisibility' issue").

101. Id. at 269, 22 ELR at 21133-34.

102. When a unified response action is required to abate the environmental harm, such as in a removal action, the divisibility of harm defense generally will not apply. In such cases, the environmental harm driving the response action is single: removal of soil to prevent groundwater contamination, removal of drums to prevent fire, or explosion risk.