In the five years since the seminal decision in Burlington Northern and Santa Fe Railway Co. v. United States, 556 U.S. 599 (2009)—which held that if a defendant can demonstrate a reasonable means of apportioning a single divisible harm it will not be held jointly and severally liable under CERCLA—few courts have actually concluded there was divisibility of harm among potentially responsible parties (PRPs). As a result, counsel seeking to establish a divisible CERCLA harm must be rigorous at first demonstrating the entire harm and then a reasonable means of segregating the harm caused by her client.
As explained by Judge Mark R. Kravitz in Yankee Gas Servs. Co. v. UGI Utils., 852 F.Supp. 2d 229, 242 (D.Conn. 2012), to “apportion” is to request separate checks, with each party paying only for its own meal. To “allocate” is to take an unitemized bill and ask everyone to pay what is fair.
