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PRPs hoping that the Supreme Court in Burlington Northern had established
that volume could always be used as a basis for apportioning CERCLA
liability will be disappointed by a recent Seventh Circuit opinion. Affirming the
trial court's apportionment decision in the Lower Fox River
case on which I blogged
earlier, the Seventh Circuit distinguished Burlington
Northern and followed the Restatement test that apportionment
is not available whenever each tortfeasor's contribution is
independently capable of causing the harm. According to the
court, the discharge of PCBs into the Lower Fox River by
multiple PRPs was akin to a number of defendants starting
different forest fires which each could cause the plaintiff's
house to burn down. Specifically, the 9% of the PCBs
discharged into the Lower Fox River by the appellant -- NCR --
could not be apportioned because that volume of PCBs was
purportedly capable of necessitating the entire
remediation. However sound the Seventh Circuit's
legal principles, it seems unlikely that a remedy to
dredge only 9% of the PCBs in a river would be identical to the
remedy to dredge 10 times that amount.
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