Is CERCLA More Reasonable Than the Common Law? Only in California, I Hope


In Burlington Northern, the Supreme Court made clear that, in order to impose liability on a defendant as an “arranger” under Superfund for the sale of a product, the plaintiff must demonstrate that the defendant

must have entered into the sale of [the product] with the intention that at least a portion of the product be disposed during the transfer process.

Although courts do not seem thus far to have taken to heart the Supreme Court’s allocation discussion in Burlington Northern, there is growing evidence that the arranger discussion is taking hold in the lower courts.  I previously noted the decision in Schiavone v. Northeast Utilities Service Company, in which the court held that a seller of used transformers to a scrap yard would not result in liability, absent evidence that the defendants actually intended to dispose of PCB.

Now, in KFD Enterprises v. City of Eureka, a court has granted a summary judgment motion filed by a defendant who had sold dry cleaning equipment to a dry cleaning business.  The plaintiff’s hook was that the product manual stated that “waste water must flow into an open drain.”  The court was not persuaded, making the important distinction that knowledge of future disposal does not equate to intent that such disposal should occur.

My sympathies to my colleagues in California.  While the court dismissed the CERCLA claims, it denied the defendant’s motion for summary judgment on private and public nuisance, and strict liability and negligence counts.  It’s a nuisance to sell dry cleaning equipment with a manual advising buyers to discharge waste water to a drain?

And my clients think Massachusetts is a tough place to do business!


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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