No to the first question, and Yes to the second. Shell is not responsible because it didn't intend for its product to be dumped. Shell was selling a useful chemical, not trying to get rid of waste. Knowing spills might happen isn't the same as planning for them. Regarding the Railroads, the first judge was right to split the bill. The judge used common sense—looking at the size of the land and how long it was used—to make a reasonable estimate that the Railroads were only responsible for 9% of the mess. You don't need perfect math to be fair.

Yes to the first question. Shell should have to pay. Shell wasn't just an innocent seller; it forced B&B to use a delivery system that made spills 'inevitable.' By creating a situation where pollution was guaranteed to happen, Shell helped cause the problem and should help pay to fix it. As for splitting the bill, I think the first judge shouldn't have done all the math on his own. The case should go back so the companies and the government can argue properly over who owes what.

No, Shell doesn't have to pay for the cleanup under CERCLA because it didn't try on purpose to get rid of the dangerous chemicals. Shell knew there were small spills but tried to get Brown & Bryant to be more careful. That's not enough to make Shell responsible.

Yes, it was okay how the court decided the Railroads should pay 9% of the cleanup cost. The court found most of the pollution was far away from the Railroads' land, and the spills on their land didn't cause that much of the total pollution. The court did a good job figuring out how much the Railroads should pay based on the facts.

I think the other courts were right that Shell is responsible under CERCLA. The facts show Shell made Brown & Bryant store the chemicals in a way that made spills happen, and Shell knew spills would happen when they delivered the chemicals. Shell had a lot of control over the deliveries. That's enough to make Shell responsible.

The court worked really hard to split up the costs, but it's not clear if the court should have done that on its own. The companies didn't give the court much help. I would send the cases back to let everyone have a chance to argue about how the court divided up the costs.

CERCLA "was designed to promote the timely cleanup of hazardous waste sites and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination."

"[A] n entity may qualify as an arranger under § 9607 (a)(3) when it takes intentional steps to dispose of a hazardous substance."

In such cases, courts have concluded that the determination whether an entity is an arranger requires a fact-intensive inquiry that looks beyond the parties' characterization of the transaction as a "disposal" or a "sale" and seeks to discern whether the arrangement was one Congress intended to fall within the scope of CERCLA's strict-liability provisions.

Congress enacted CERCLA in 1980 "in response to the serious environmental and health risks posed by industrial pollution."

"CERCLA defendants seeking to avoid joint and several liability bear the burden of proving that a reasonable basis for apportionment exists."

CERCLA imposes "strict liability for environmental contamination" upon four classes of potentially responsible parties.

In fact, the Court itself recognized that "[i] t is plain from the language of the statute that CERCLA liability would attach under § 9607 (a)(3) if an entity were to enter into a transaction for the sole purpose of discarding a used and no longer useful hazardous substance."

Divisibility allows a party to be liable "for [only] the portion of the total harm that he has himself caused."

The Court held that "knowledge alone is insufficient to prove that an entity `planned for'the disposal, particularly when the disposal occurs as a peripheral result of the legitimate sale of an unused, useful product. "

—"apportionment is proper when `there is a reasonable basis for determining the contribution of each cause to a single harm.'"

No, as to the first question, and Yes, as to the second. An entity is liable as an 'arranger' under CERCLA only if it takes intentional steps to dispose of a hazardous substance, not merely because it knew spills could occur as a peripheral result of the legitimate sale of a useful product. Because Shell sold a new and useful product and its actions showed an intent to encourage safe handling, not disposal, it cannot be held liable as an arranger. As to apportionment, joint and several liability is not mandatory where a reasonable basis for dividing the harm exists. The District Court reasonably used factors such as land area, lease duration, and the location and type of chemical spills to apportion the Railroads' share of liability at 9%, and the Court of Appeals erred in rejecting this fact-based apportionment simply because it lacked mathematical precision.

Yes, as to the first question. Shell should qualify as an arranger under CERCLA. Shell's liability should not be defeated by its characterization as a seller of a useful product, because it went beyond mere knowledge of spills. By requiring B&B to use a bulk transfer system that made spills and leaks 'inevitable' and inherent in the delivery process, Shell's actions 'necessarily and immediately' resulted in the disposal of hazardous substances. Relieving Shell of liability is at odds with CERCLA’s objective of placing cleanup costs on those who contributed to the contamination. Regarding apportionment, the case should be remanded because the District Court performed the analysis on its own after the parties failed to offer helpful arguments, depriving the government of a fair opportunity to rebut the court's theories.

No, Shell is not liable as an arranger under CERCLA because it did not take intentional steps to dispose of a hazardous substance. The evidence shows that Shell was aware of minor, accidental spills by B&B but took numerous steps to encourage the safe handling of its products. This is insufficient grounds for concluding that Shell arranged for the disposal of D-D within the meaning of CERCLA. 

Yes, the district court's apportionment of the Railroads' liability was reasonable. The district court's detailed findings make it abundantly clear that the primary pollution occurred in areas distant from the Railroads' parcel and that spills on the Railroads' parcel contributed to no more than 10% of the total site contamination, some of which did not require remediation. The district court's ultimate allocation of liability, assigning the Railroads 9% of the total remediation costs with a 50% margin of error, is supported by the evidence and comports with the apportionment principles outlined.

I would uphold the determinations of the courts below that Shell qualifies as an arranger under CERCLA. The facts found by the district court show that Shell arranged for disposal of hazardous substances it owned when it required B&B to maintain bulk storage facilities and specified the equipment to be used in transferring the chemicals, fully aware that spills and leaks were inevitable in the delivery process. Shell's control over the delivery process and knowledge of the spills mean it was properly ranked an arranger. 

As to apportioning costs, the district court undertook a heroic labor given the Railroads' and Shell's scorched earth approach to liability. However, it is questionable whether the court should have pursued the apportionment analysis sua sponte under our adversarial system. I would return these cases to the district court to give all parties a fair opportunity to address the court's endeavor to allocate costs.

Burlington Northern & Santa Fe Railway Co. v. United States

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