On May 4, 2009, the U.S. Supreme Court rocked the CERCLA world in Burlington Northern and Santa Fe Railway Company v. United States.1 Two major issues were addressed. First, how much proof is required before a company is labeled an “arranger” for disposal of hazardous wastes under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the federal Superfund law? The answer is more than before. Second, how much proof must a single potentially responsible party (PRP) under CERCLA present before a court will find its liability divisible and refuse to apply the general rule of joint and several liability? The answer is less than before.
In Burlington Northern, the Court freed Shell Oil Company of arranger liability for pesticide disposal even though Shell chose to sell its chemicals in bulk in a manner that it knew was resulting in spills and leaks on the purchaser’s property. The Court also disagreed with the U.S. Court of Appeals for the Ninth Circuit for insisting on joint and several liability for the two railroad owners of a portion of the property when, based on a thin fact record, the lower court was able to find divisible harm.
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