"Arranging for Disposal" Under CERCLA: When Is a Generator Liable?

June 1985
Citation:
15
ELR 10160
Issue
6
Author
James L. Conner II

Editors' Summary: A close reading of the broad and convoluted liability provisions of the Comprehensive Environmental Response, Compensation, and Liability Act suggests that generators who arranged for the disposal of wastes are not liable for cleaning up subsequent hazardous substance releases to the environment, unless they chose the unsafe sites at which the releases occurred. The legal battles that have been waged over the scope of generator liability under the Act have largely bypassed this issue, concentrating instead on joint and several liability and causation. While those fights are not over, the results to date have been one-sided, in favor of expanding generator liability in accordance with the legislative history and policy considerations of the Act. In two recent cases raising the site selection issue, generator defendants fared no better. While the most recent decision lends some support to the argument that generators that did not choose the leaking disposal site should be exculpated, the court found a way to make the generator potentially liable for cleanup of its toxic wastes.

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