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United States v. Burlington N. & Santa Fe Ry. Co.

ELR Citation: 38 ELR 20079
Nos. Nos. 03-17125 et al., (9th Cir., 03/25/2008) Amended opinion

In an amended opinion filed with a dissent, the Ninth Circuit court reversed a lower court decision holding an oil corporation and railroad companies liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for only a minor portion of the cleanup costs incurred at a former chemical storage and distribution facility in California. The district court erred in determining that the harm in this case could be apportioned on the record. CERCLA permits equitable considerations to be taken into account in a contribution action amongst potentially responsible parties, but CERCLA's strict liability scheme does not permit equitable considerations to have any bearing in an action to determine whether defendants have presented sufficient evidence to apportion liability. Here, there is no reasonable basis for apportioning the damages attributable to the railroads’ activities given the paucity of evidence and the district court's erroneous approach in determining apportionment. Evidence on the record in regard to the oil corporation is also insufficient to support apportionment. The district court, however, followed the proper analysis in finding that the oil corporation is liable as an arranger. It arranged for the sale and transfer of chemicals under circumstances in which a known, inherent part of that transfer was the leakage of those chemicals. The court, therefore, reversed the district court’s finding on apportionment but affirmed the district court’s findings regarding both the railroads’ and the oil corporation’s liability. On remand, the parties should be held jointly and severally liable for the harm at the site.

[The prior decision in this litigation is published at 37 ELR 20065.]