Arranger Liability Under CERCLA: Leveraging Recent Court Decisions
Reducing Liability Amid Uncertainty and Absent Clear Guidance
Suzanne Ilene Schiller
The U.S. Supreme Court’s decision in Burlington Northern & Santa Fe Railway Co. v. U.S. significantly changed the landscape for liability under the CERCLA, setting the limits of arranger liability. However, application of the fact-intensive inquiry set out in BNSF has proved challenging.
For example, two recent cases involving one company for the same practices at two different sites came to different conclusions. In one instance, the Eastern District of Wisconsin concluded the company was not liable as an arranger, while the Western District of Michigan determined the company was liable as an arranger.
As CERCLA arranger liability has evolved and cases addressing such liability are being aggressively litigated, counsel for those facing potential liability must understand how courts are addressing the issues and develop the factual record to demonstrate intent or lack thereof of the potential disposer.
This program will examine the recent decisions on arranger liability and how the courts are applying BNSF, as well as the implications for CERCLA liability. The panel will offer best practices for minimizing CERCLA liability.
1. Brief overview of arranger liability
2. Discussion of the challenging issues related to arranger liability
- arranged for
- nature of transaction
3. Lessons learned from recent decisions
- Appleton Papers Inc. and NCR Corp. v. George A. Whiting Paper Co. (E.D. Wis. 2013)
- Georgia-Pacific Consumer Products v. NCR Corp. (W.D. Mich. 2013)
- Carolina Power & Light Co. v. Alcan Aluminum Corp. (E.D.N.C. 2013)
- W.R. Grace & Co.-Conn. V. Zotos Int'l Inc. (W.D.N.Y. 2013)
- American Int’l Specialty Lines Ins. Co. v. U.S. (C.D. Cal. 2013)
4. Best practices
- development of factual record
- minimizing CERCLA liability
Manko, Gold, Katcher & Fox partner Suzanne Ilene Schiller will join other panel members to address these key questions:
- What intent is necessary to implicate arranger liablity under CERCLA?
- How are different jurisdictions applying the Burlington Northern decision in the arranger liability cases?
- What steps can counsel take to overcome the challenging issues involved in arranger liability litigation?
Sponsored by the Legal Publishing Group of Strafford Publications