March 21, 2012 Articles

Arranger Liability under CERCLA after Burlington Northern

By Andrew J. Scholz and Matthew D. Cabral

In 2009, the U.S. Supreme Court decided the seminal case of Burlington Northern & S.F. R. Co. v. United States, 129 S. Ct. 1870 (2009), which fundamentally altered liability and damages analysis under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). Two years of subsequent case law has now been decided addressing the scope of liability and divisibility of damages under CERCLA in light of the Burlington Northern decision.

CERCLA imposes strict liability for environmental contamination on four broad classes of potentially responsible parties (PRPs). Among the classes of PRPs is “any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances.” CERCLA § 107(a)(3), 42 U.S.C. § 9607(a)(3). These PRPs are commonly referred to as “arrangers.”

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