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Burlington Northern Has CERCLA Liability Changed ?

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<ul><li> 1. Mississippi College School of LawMississippi College School of Law Environmental Law CLEEnvironmental Law CLE Natural Resources, Energy and Environmental SectionNatural Resources, Energy and Environmental Section Mississippi BarMississippi Bar Burlington Northern Has CERCLA LiabilityBurlington Northern Has CERCLA Liability Changed ?Changed ? Keith TurnerKeith Turner Watkins Ludlam Winter &amp; StennisWatkins Ludlam Winter &amp; Stennis April 2010April 2010 </li></ul> <p> 2. Burlington Northern Has CERCLA LiabilityBurlington Northern Has CERCLA Liability Changed ?Changed ? Short Answer YesShort Answer Yes Long Answer Yes, butLong Answer Yes, but 3. FactsFacts Brown &amp; Bryant purchased agriculturalBrown &amp; Bryant purchased agricultural chemicals from several manufacturerschemicals from several manufacturers including Shellincluding Shell From 1960s through 1970s, tanker trucksFrom 1960s through 1970s, tanker trucks and rail cars were offloaded at the siteand rail cars were offloaded at the site Chemicals included pesticides Dinoseb,Chemicals included pesticides Dinoseb, D-D, NemogonD-D, Nemogon 4. NUMEROUS SPILLS OCCURRED OVER THE YEARS 5. FactsFacts Aware of the industry spillage problem ShellAware of the industry spillage problem Shell provided safety manuals, discounts forprovided safety manuals, discounts for improvements made to offloading facilities,improvements made to offloading facilities, required PE certifications, specified types ofrequired PE certifications, specified types of offloading equipmentoffloading equipment Spills continued at B &amp; BSpills continued at B &amp; B Sump and drainage pond unlined until 1979Sump and drainage pond unlined until 1979 6. Significant Aspects of theSignificant Aspects of the Burlington DecisionBurlington Decision Narrowing of Arranger LiabilityNarrowing of Arranger Liability Further development of apportionmentFurther development of apportionment methods ?methods ? 7. Arranger LiabilityArranger Liability When does the supplier of a usefulWhen does the supplier of a useful product become responsible for resultingproduct become responsible for resulting wastes ?wastes ? 8. Arranger LiabilityArranger Liability Spills occurred not just at originalSpills occurred not just at original offloading but when product was movedoffloading but when product was moved about on the property for storage andabout on the property for storage and mixing - and when loaded for resalemixing - and when loaded for resale 9. Arranger LiabilityArranger Liability Government argued arranger liability forGovernment argued arranger liability for ShellShell Was there disposal underWas there disposal under 107 ? 107 ? CERCLACERCLA 9607(a)(3) disposal9607(a)(3) disposal 9601(29) - Disposal includes spilling and9601(29) - Disposal includes spilling and leaking (referring to RCRA definition)leaking (referring to RCRA definition) 10. Arranger LiabilityArranger Liability Was Shells knowledge that spills wereWas Shells knowledge that spills were occurring and would likely continue tooccurring and would likely continue to some degree sufficient ?some degree sufficient ? 11. Arranger LiabilityArranger Liability knowledge alone is insufficient to proveknowledge alone is insufficient to prove that an entity "planned for" the disposal,that an entity "planned for" the disposal, particularly when the disposal occurs as aparticularly when the disposal occurs as a peripheral result of the legitimate sale ofperipheral result of the legitimate sale of an unused, useful productan unused, useful product Burlington Northern at 1880Burlington Northern at 1880 There may be some instances that knowledge isThere may be some instances that knowledge is evidence of intent to disposeevidence of intent to dispose 12. Arranger LiabilityArranger Liability The defendant must have entered into theThe defendant must have entered into the sale of [the product] with the intention thatsale of [the product] with the intention that at least a portion of the product beat least a portion of the product be disposed during the transfer process.disposed during the transfer process. Burlington Northern at 1880Burlington Northern at 1880 If Shell shipped product other than FOB factor forIf Shell shipped product other than FOB factor for finding liability ?finding liability ? (FOB - buyer pays shipping cost, and takes responsibility for the(FOB - buyer pays shipping cost, and takes responsibility for the goods when the goods leave the seller's premises)goods when the goods leave the seller's premises) 13. Arranger LiabilityArranger Liability For new useful products direct evidence ofFor new useful products direct evidence of intent now required ? Likelyintent now required ? Likely What about used products -doesWhat about used products -does knowledge become a factor in determiningknowledge become a factor in determining liability ? Possiblyliability ? Possibly 14. ApportionmentApportionment US Government Corporation A Corporation B 15. ApportionmentApportionment Which is proper liability for the railroads Which is proper liability for the railroads joint and several or apportionment ?joint and several or apportionment ? 16. ApportionmentApportionment Burlington court began with U.S. v. Chem-DyneBurlington court began with U.S. v. Chem-Dyne Corp, 572 F.Supp. 802 (S.D. Ohio 1983)Corp, 572 F.Supp. 802 (S.D. Ohio 1983) ToTo 433A433A Restatement (Second) of TortsRestatement (Second) of Torts when two or more persons acting independently caus[e] awhen two or more persons acting independently caus[e] a distinct or single harm for which there is a reasonable basisdistinct or single harm for which there is a reasonable basis for division according to the contribution of each, each isfor division according to the contribution of each, each is subject to liability only for the portion of the total harm that hesubject to liability only for the portion of the total harm that he has himself caused.has himself caused. 17. ApportionmentApportionment apportionment is proper when there is aapportionment is proper when there is a reasonable basis for determining thereasonable basis for determining the contribution of each cause to a singlecontribution of each cause to a single harm. (Restatement)harm. (Restatement) 18. ApportionmentApportionment Equitable considerations play no role inEquitable considerations play no role in the apportionment analysisthe apportionment analysis Burlington Northern FN9Burlington Northern FN9 19. Burlington Northern Court FactorsBurlington Northern Court Factors (District Courts*)(District Courts*) Area OwnershipArea Ownership Percentage of the sitePercentage of the site TimeTime Percentage of time property controlled compared to period ofPercentage of time property controlled compared to period of time during operations resulting in spillstime during operations resulting in spills VolumeVolume Quantity of waste compared to main portion of siteQuantity of waste compared to main portion of site Court allowed for 50% margin of errorCourt allowed for 50% margin of error *District Court was required to create its own approach because the parties*District Court was required to create its own approach because the parties refused to cooperaterefused to cooperate 20. Burlington Northern District CourtBurlington Northern District Court Apportionment EquationApportionment Equation ..19 (% surface area) x .45 (% time operation) x .66 (2/3s19 (% surface area) x .45 (% time operation) x .66 (2/3s contribution of volume) = % liabilitycontribution of volume) = % liability 6% (+/-) x 50% errors = 9% liability6% (+/-) x 50% errors = 9% liability Remember court did this without involvement of the PRPsRemember court did this without involvement of the PRPs 21. ApportionmentApportionment Liability is Joint and Several unlessLiability is Joint and Several unless apportionment by:apportionment by: Distinct harms (physical, chemical, geographic orDistinct harms (physical, chemical, geographic or other)other) PRPs argue there is a reasonable basis forPRPs argue there is a reasonable basis for determining the contributiondetermining the contribution How broad this will be has yet to be determinedHow broad this will be has yet to be determined 22. ProgenyProgeny Hinds Investments L.P. v. TeamHinds Investments L.P. v. Team Investments, Inc. 2010 WL 922416 (E.D.Investments, Inc. 2010 WL 922416 (E.D. Cal.)Cal.) PRP claimed dry cleaning machinePRP claimed dry cleaning machine manufacturer arranged for waste disposalmanufacturer arranged for waste disposal from its machine into drains arranger liabilityfrom its machine into drains arranger liability PRP claimed manufacturer manual directedPRP claimed manufacturer manual directed wastewater flow to open drain which iswastewater flow to open drain which is evidence of intentional step to dispose of PCEevidence of intentional step to dispose of PCE 23. Hinds Investments L.P. v. TeamHinds Investments L.P. v. Team InvestmentsInvestments Manufacturer was not an arranger Manufacturer was not an arranger No ownership or possession of wasteNo ownership or possession of waste Knowledge alone not sufficientKnowledge alone not sufficient No involvement in installation or direction on disposalNo involvement in installation or direction on disposal Useful Product Defense the transaction at issue was the saleUseful Product Defense the transaction at issue was the sale of the equipment which did not create or involve hazardousof the equipment which did not create or involve hazardous wastewaste 24. Hinds Investments L.P. v. TeamHinds Investments L.P. v. Team InvestmentsInvestments Hinds court - Plaintiffs conveniently ignoreHinds court - Plaintiffs conveniently ignore the ownership/possession factor of arrangerthe ownership/possession factor of arranger liability ----------- following 3liability ----------- following 3rdrd Circuit whichCircuit which states that 107(a)(3) requires suchstates that 107(a)(3) requires such The 3The 3rdrd Circuit missed important languageCircuit missed important language under 107 - by any other party or entityunder 107 - by any other party or entity Arranger liability does not require ownershipArranger liability does not require ownership or actual possession of the waste !or actual possession of the waste ! 25. ProgenyProgeny Evansville Greenway and Remediation Trust v. SouthernEvansville Greenway and Remediation Trust v. Southern Indiana Gas and Electric, 661 F. Supp. 2d 989, Sept. 29,Indiana Gas and Electric, 661 F. Supp. 2d 989, Sept. 29, 2009 (S.D. Ind)2009 (S.D. Ind) Scrap yard received batteries from SIGECO and othersScrap yard received batteries from SIGECO and others Is SIGECO jointly and severally liable or can thereIs SIGECO jointly and severally liable or can there apportionment ?apportionment ? Yard records destroyed (contained quantities, types etc)Yard records destroyed (contained quantities, types etc) When applicable law in flux the best role the district court canWhen applicable law in flux the best role the district court can play is hold a trial to make detailed findingsplay is hold a trial to make detailed findings Apportionment would have been impossible prior to BurlingtonApportionment would have been impossible prior to Burlington but now court needs more facts to determine is appropriatebut now court needs more facts to determine is appropriate 26. ProgenyProgeny U.S. v. Washington State Department ofU.S. v. Washington State Department of Transportation, 665 F. Supp. 1233, Sept.Transportation, 665 F. Supp. 1233, Sept. 15, 2009 (W.D. WA)15, 2009 (W.D. WA) Thea Foss Waterway 27. U.S. v. Washington StateU.S. v. Washington State Department of TransportationDepartment of Transportation Claim that Corps of Engineers was arranger as aClaim that Corps of Engineers was arranger as a result of prior cleanup activities (1902 1949) (1912-result of prior cleanup activities (1902 1949) (1912- 1915) (1975-1983) during dredging project1915) (1975-1983) during dredging project Was Corps just a permitting authority or more ?Was Corps just a permitting authority or more ? Corps claimed only issued permit for 1975-1983 workCorps claimed only issued permit for 1975-1983 work Did the Corps specify disposal locations ?Did the Corps specify disposal locations ? Because a fact-intensive inquiry is necessary theBecause a fact-intensive inquiry is necessary the court could not find for summary judgmentcourt could not find for summary judgment 28. ProgenyProgeny U.S. v. Saporito, 2010 WL 489708 (N.D.U.S. v. Saporito, 2010 WL 489708 (N.D. Ill.)Ill.) PRP owner of metal plating businessPRP owner of metal plating business attempted to apportionment based uponattempted to apportionment based upon period andperiod and typetype of equipment ownershipof equipment ownership (purchased and leased back)(purchased and leased back) Court held him comparable to joint ventureCourt held him comparable to joint venture which would not allow apportionmentwhich would not allow apportionment 29. ProgenyProgeny Halliburton Energy Services, Inc. v. NLHalliburton Energy Services, Inc. v. NL Industries, 648 F. Supp. 2d 840 Aug. 18Industries, 648 F. Supp. 2d 840 Aug. 18 2009 (S.D. Texas)2009 (S.D. Texas) Former barite ore mining and milling siteFormer barite ore mining and milling site An attempt to use Burlington Northern by oneAn attempt to use Burlington Northern by one PRP against another claiming arranger liabilityPRP against another claiming arranger liability Court dismissed discussion as irrelevantCourt dismissed discussion as irrelevant because the liability issue was under otherbecause the liability issue was under other CERCLA statute (113)CERCLA statute (113) 30. Future effects of BurlingtonFuture effects of Burlington Northern ?Northern ? Will the courts be willing to embrace efforts toWill the courts be willing to embrace efforts to find a basis for apportionment?find a basis for apportionment? Loss of Joint and Several Liability early settlingLoss of Joint and Several Liability early settling incentive ?incentive ? Fewer PRPs ?Fewer PRPs ? More liability for owners and operators ?More liability for owners and operators ? 31. More ?More ? Is Intent always a threshold for arranger liability?Is Intent always a threshold for arranger liability? Litigation over reasonable basis ?Litigation over reasonable basis ? More time and costs developing facts ?More time and costs developing facts ? Shifting of remediation costs to government ?Shifting of remediation costs to government ? More pressure for Superfund Tax ?More pressure for Superfund Tax ? </p>

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