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A Tale of Two Rivers: An Analysis of Different Approaches to Proving Intent for CERCLA Arranger Liability

July 2015

Citation: ELR 10699

Author: Chris Dow

Courts have grappled with the scope of CERCLA arranger liability ever since the U.S. Supreme Court’s 2009 decision in Burlington Northern & Santa Fe Railway Co. v. United States. Two opposite decisions on nearly identical facts illustrate the variety of approaches. In the first, a manufacturer’s actions related to the sale of PCB-laden scrap paper did not show the requisite intent to dispose; in the second, evidence gleaned from documents and expert testimony was the primary basis for holding the same manufacturer liable as an arranger. The latter outcome suggests the importance of circumstantial evidence in these cases, and counsel should seek discovery of such evidence at an early stage.

Chris Dow is an environmental attorney in San Francisco, CA, with several years of CERCLA litigation experience.

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