In Town of Islip v Datre, 2017 WL 1157188 (EDNY, March 28, 2017), the court misread CERCLA and added a requirement that a defendant know that it is disposing of hazardous waste. This post will examine the causes of this error.

The first cause of the error is trying to interpret language in a Supreme Court decision without any attempt to examine the underlying reasoning. The Supreme Court in Burlington Northern noted that “arranger liability,” unlike other Superfund liability such as owner/operator liability, is not strict liability. The basis for that conclusion was the meaning of the word “arrange.” Arrange means to make a plan and one cannot make a plan accidentally. Based on that, all one needs to know is that they are disposing of something – then they have arranged for disposal. The precise issue before the court was whether accidental spills could be the source of arranger liability and the court examined the extent to which knew about these spills and never addressed the issue of whether they knew that what they were disposing of was hazardous.

The second cause of the error is a failure to examine the history of the development of CERCLA liability. Early cases had waste generators arguing that they should not be liable because they did not know that they were handling hazardous waste. Numerous courts made clear that they did not have to know they were handling a hazardous waste. There is nothing in Burlington Northern to indicate that they intended to overturn that line of cases.

As someone who has a history of representing responsible parties at Superfund sites, I tend root for the defendant because there are areas of unfairness in Superfund. However, as someone who has published numerous law review articles on Superfund issues, I would be very surprised if this is not overturned on appeal. My analysis of the arranger issue in Burlington Northern can be found in the University of Baltimore Law Review, volume 40, pages 383-418.

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