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CERCLA Divisibility: Clear & Comprehensive Requirements

Posted on December 13, 2023

A new ruling lays out with clarity what it takes to be successful with claims of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) divisibility. For contaminated sites, CERCLA allows the United States Environmental Protection Agency (EPA) to hold each owner, operator, waste generator, or transporter liable for the entire site cleanup costs—unless it can be shown through a technical evaluation that the harm is “divisible.” However, CERCLA provides no specific guidance for the technical requirements necessary to demonstrate divisibility. Over the years, the courts have evaluated claims of divisibility via the Restatement (Second) of Torts, and through those rulings provided direction on what is needed for successful divisibility claims.

Just last week, a Federal District court case in Missouri (Short Creek Development, LLC vs. MFA Incorporated, Western District of Missouri, No. 22-05021-CV-SW-WBG) ruled on the Phase I trial on divisibility. Roux’s expert in the case, Adam Love, PhD, was the sole witness for the Plaintiffs in the divisibility trial where he opined that the environmental harm was not divisible, and that the Defendants had not met the technical burden required for a divisibility claim. The court ruling was a complete Plaintiff win, as divisibility was denied. Additionally, the court’s analysis laid out the requirements for divisibility in a clear and comprehensive way, such that it provides a useful template for future divisibility claims.

Over the years, Roux has been at the center of expert opinions on divisibility in numerous cases, including the notable granting of divisibility in the Von Duprin LLC v. Major Holdings, LLC et al. case, where upon appeal the United States 7th Circuit Court of Appeals stated, “nobody questions Dr. Love’s qualifications, as he plainly has the training and experience necessary to offer an opinion pertinent to whether responsibility for the contamination can be divided among the PRPs.”

Interested in a copy of the ruling, speaking to a Roux expert, or hearing an in-house presentation on technical elements for divisibility? Reach out to us below.

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