The City of West Sacramento filed a lawsuit under RCRA, CERCLA, the Gatto Act, and several other state law causes of action to address toxic levels of soil and groundwater contamination resulting from the release of hazardous substances at a property once occupied by a metal plating facility. The Court found the defendants liable after the City filed a motion for summary judgment. Following three days of testimony and evidence, the Court found that the former operators of a chrome plating facility did not meet their burden to prove their divisibility defense under CERCLA. Accordingly, the Court held each of the defendants jointly and severally liable for the entirety of the harm.

The Divisibility Defense

A divisibility defense under CERCLA is not a defense to liability. Rather, it is a defense to the scope of liability — specifically, to joint and several liability. If proven, the divisibility defense allows responsible parties to avoid joint and several liability and instead allows a court to apportion liability among them. To prevail on the divisibility defense, the defendant must prove: (1) that the environmental harm is theoretically capable of apportionment, and (2) that there is a reasonable basis on which to apportion liability. The Court found that the defendants did not establish that the entirety of the contamination is theoretically capable of apportionment because the contamination still has not been fully delineated.