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United States v. Lyon

ELR Citation: 38 ELR 20013
Nos. No. 07-0491, (E.D. Cal., 12/14/2007)

A district court denied a chemical manufacturer's motion to dismiss property owners' third-party contribution claims against it under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for perchloroethylene (PCE) contamination at a former dry cleaning site. Under United States v. Burlington Northern & Santa Fe Railway, 502 F.3d 781, 37 ELR 20065 (9th Cir. 2007), the manufacturer could be liable as an arranger. An entity can be an arranger even if it did not intend to dispose of the product. Arranging for a transaction in which there necessarily would be leakage or some other form of disposal of hazardous substances is sufficient. The court rejected the manufacturer's argument that it had a complete defense to CERCLA liability under the useful product doctrine. At this early stage in the litigation, it is not possible to determine whether the manufacturer, as a PCE manufacturer and seller, is a disposer or discharger of PCE waste. The manufacturer also argued that the case should be dismissed because the allegations never stated that the manufacturer owned the PCE. The property owners, however, alleged that the manufacturer "sold" PCE. Such allegation reveals sufficient ownership under Burlington Northern.