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Four Years Later: How Has BNSF Changed CERCLA Practice?

Four Years Later: How Has BNSF Changed CERCLA Practice?
Product Code - EHAU03
Speaker(s): Anthony G. Hopp and Colin Patrick O’Donovan, Edwards Wildman Palmer LLP and Paul S. Kline, Three Rivers Management, Inc.
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 In Burlington Northern Santa Fe Railway Co. v. U.S., 129 S. Ct. 1870 (2009), the U.S. Supreme Court tackled two unsettled areas of the law under the Comprehensive Environmental Response, Compensation and Liability Act. The decision addresses what activities or states of mind make a defendant liable as someone who has arranged for the disposal or treatment of hazardous substances. The court resolved a split in the circuits on the definition of “arrange” by looking the word up in Webster’s Dictionary. As simple as this approach may sound, it was nothing short of revolutionary in some circuits. The court’s ruling on the issue of apportionment was more evolutionary than revolutionary. While most courts had acknowledged that CERCLA liability may be apportioned in appropriate circumstances, many courts took a restrictive view of what circumstances were appropriate. However, in BNSF the Supreme Court appeared to endorse a permissive approach to apportionment, holding that a district court’s apportionment decision will not be reversed as long as it is reasonable. While there have been only a few circuit court CERCLA apportionment decisions since BNSF, the most recent appears to advocate a return to a more restrictive view.

This 90-minute webinar will address the sometimes murky standard for arranger liability that predated BNSF and examine post-BNSF case law to demonstrate the refreshing level of clarity the decision delivered to this area of the law. It also will examine post-BNSF case law and the extent to which recent decisions are inconsistent with the Supreme Court’s ruling.

Specifically, the panelists, Anthony G. Hopp, Edwards Wildman Palmer LLP, Colin Patrick O’Donovan, Edwards Wildman Palmer LLP, and Paul S. Kline, ThreeRivers Management, Inc, will discuss:

  • What are the best strategies for proving or disproving the intent required to impose “arranger” liability?
  • What are the best strategies for proving or disproving that CERCLA liability is capable of apportionment?
  • What is the interplay, if any, between apportionment and allocation?

Register easily and securely to reserve your space now for Bloomberg BNA's upcoming EHS Webinar and get a $75 discount as a BNA subscriber! Or, call 800-372-1033, menu Option 6, submenu Option 1, and refer to the date and title of this conference. Lines are open from 8:30 a.m. to 7:00 p.m. ET, excluding most federal holidays.

Don’t miss this opportunity to hear a lively, dynamic presentation. Not only are EHS Webinars an excellent way for you to stay current, with Bloomberg BNA you also get:

  • Quality. Count on it. Nothing is canned.
  • Objectivity. BNA provides you with the best and most objective information. Unlike other companies, we don’t use our Webinars as a forum to sell outside solutions.
  • Affordability. EHS Webinars are inexpensive compared to the cost of travel to attend a conference. Plus, you may use a speakerphone and invite as many of your colleagues as you want to listen in—all for the price of a single registration.
  • Convenience. No airlines. No travel. No time out of the office.

In addition, you’ll receive:

  • Personal attention. Once you’ve registered, send your questions in advance to and they’ll be included in the program. You’ll also have a chance to ask your questions during the Webinar.
  • Follow-up materials. You need no materials upfront to follow along to our live conference. But BNA always issues a follow-up e-mail with contact information for our speakers as well as other materials related to the topic.
  • CLE credits will be available for this EHS Webinar.

Anthony G. Hopp and Colin Patrick O’Donovan, Edwards Wildman Palmer LLP and Paul S. Kline, Three Rivers Management, Inc.

 Anthony G. Hopp is a partner at Edwards Wildman Palmer LLP where he serves as co-chair of the Product Liability/Mass Torts Practice Group. Over the past 24 years, Tony has represented clients in superfund, private-cost recovery, toxic tort, personal injury and property damage cases across the United States. Tony currently serves as co-chair of the Science and Technology Subcommittee of the American Bar Association’s Section of Environment, Energy and Resources.

Colin Patrick O’Donovan is an associate in the Litigation Department of Edwards Wildman Palmer LLP, where he represents clients in a variety of commercial matters, including toxic tort and product liability actions.

Paul S. Kline is in-house Environmental Counsel for Three Rivers Management, Inc. with a practice devoted exclusively to legacy CERCLA, RCRA, and state environmental liability. Kline spent his first 12 professional years in the Environmental Group of Reed Smith, LLP. Kline also has worked in-house for General Electric, Corporate Environmental Programs. He has sat on the Board of a nuclear D&D company, the Institutional Review Board for a major health provider, and on the Professional Advisory Committee for the Nat’l Multiple Sclerosis Society.