ELR Citation: 45 ELR 20098
No(s). 10-C-910 (E.D. Wis. May 15, 2015) (Griesbach, J.)

A district court held that a PRP established the divisibility defense and, therefore, is not jointly and severally liable for cleanup costs at the Lower Fox River Superfund site in Wisconsin. On remand from the Seventh Circuit, the district court was ordered to reconsider the PRP's divisibility defense. Notably, the appellate court directed the district court to view the "harm" in terms of its actual toxicity rather than in terms of the remedy or costs that harm may have triggered. Here, the PRP demonstrated that the harm is theoretically capable of being divided and that there is a reasonable way of apportioning the damages. Based on the evidence before it, the court apportioned the PRP's share of the remediation costs at 28 percent. This is the first district court decision to uphold a divisibility defense under CERCLA since the U.S. Supreme Court's decision in Burlington Northern & Santa Fe Railway Co. v. United States, 556 U.S. 599, 39 ELR 20098 (2009).