RECENT FEDERAL DECISIONS

May 2008

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Ninth Circuit Affirms CERCA Apportionment Allowed among Potentially Responsible Parties at Liability Stage
U.S. and California Department of Toxic Substances Control v. Burlington Northern & Santa Fe Railway Company, ___F.3d___

This case arises from environmental contamination caused by a defunct company-Brown & Bryant (BB), which owed and operated an agricultural chemical distribution facility from 1960 to 1989. In 1975, BB leased from the defendant-Railroads (Railroads) a contiguous parcel of land. This parcel was used to transfer and store agricultural chemicals, of which D-D was purchased from Shell. Environmental testing indicated levels of chemical contamination on and under the BB parcel arising from these operations. Pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the U.S. Environmental Protection Agency (EPA) and the California DTSC (DTSC) cleaned up the site, and both filed a CERCLA action against the Railroads and Shell. The District Court fixed the Railroads’ liability at 6 percent, as the Railroad parcel constituted a fraction of the BB facility, and was only leased to BB for 45 percent of the time of BB’s operation.