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MEMC Pasadena, Inc. v. Goodgames Industrial Solutions, LLC

ELR Citation: 45 ELR 20204
Nos. 4:13-CV-599, (S.D. Tex., 10/27/2015) (Ellison, J.)

A district court held that a waste broker is liable as an arranger under CERCLA and the Texas Solid Waste Disposal Act (TSWDA) in connection with the disposal of waste at the U.S. Oil Recovery Superfund site in Texas. A manufacturing company hired the broker to help facilitate the movement of its waste to the disposal facility. The company now seeks contribution from the broker to recover some of its response costs. The company adequately demonstrated that it incurred response costs. The primary issue, therefore, was whether the broker could be held liable as an arranger. It argued that to be liable as an arranger, it had to have selected the site at which the waste was disposed. The broker also claimed that it lacked sufficient decisionmaking authority over the disposal process to be held liable as an arranger. But the court disagreed. Although CERCLA §107(a)(4) expressly requires that transporters select the disposal site to be deemed liable, §107(a)(3), which concerns arranger liability, lacks a similar requirement. In addition, one can "plan" for something even when another party has the ultimate authority to decide. Here, the broker suggested the disposal site, organized the manufacturer's visit to the site, coordinated all paperwork between the manufacturer and the site, advised the manufacturer about the number of loads the disposal site could handle, delivered samples of the manufacturer's waste to the site, contacted transporters to pick up the waste, received invoices directly from the site, and then sent those invoices to the manufacturer with a 10-26% markup. And because the broker is liable under CERCLA as an arranger, the court also found the broker liable under the TSDWA. But the court dismissed all but one of the manufacturer's breach-of-contract claims as well as all remaining state-law claims against the broker.