Burlington Northern & Santa Fe Railway Co. v. United States

(Slip Opinion) OCTOBER TERM, 2008 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BURLINGTON NORTHERN & SANTA FE RAILWAY
CO. ET AL. v. UNITED STATES ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 07–1601. Argued February 24, 2009—Decided May 4, 2009*
The Comprehensive Environmental Response, Compensation, and Li
ability Act (CERCLA) is designed to promote the cleanup of hazard
ous waste sites and to ensure that cleanup costs are borne by those
responsible for the contamination. In 1960, Brown & Bryant, Inc.
(B&B), an agricultural chemical distributor, began operating on a
parcel of land located in Arvin, California. B&B later expanded onto
an adjacent parcel owned by petitioners Burlington Northern and
Santa Fe Railway Company and Union Pacific Railroad Company
(Railroads). As part of its business, B&B purchased and stored vari
ous hazardous chemicals, including the pesticide D–D, which it
bought from petitioner Shell Oil Company (Shell). Over time, many
of these chemicals spilled during transfers and deliveries, and as a
result of equipment failures.
Investigations of B&B by the California Department of Toxic Sub
stances Control and the federal Environmental Protection Agency
(Governments) revealed significant soil and ground water contamina
tion and in 1989, the Governments exercised their CERCLA author
ity to clean up the Arvin site, spending over $8 million by 1998.
Seeking to recover their costs, the Governments initiated legal action
against Shell and the Railroads. The District Court ruled in favor of
the Governments, finding that both the Railroads and Shell were po
tentially responsible parties under CERCLA—the Railroads because
they owned part of the facility and Shell because it had “arranged for
disposal . . . of hazardous substances,” 42 U. S. C. §9607(a)(3),
——————
* Together with No. 07–1607, Shell Oil Co. v. United States et al., also
on certiorari to the same court.
2 BURLINGTON N. & S. F. R. CO. v. UNITED STATES
Syllabus
through D–D’s sale and delivery. The District Court apportioned li
ability, holding the Railroads liable for 9% of the Governments’ total
response costs, and Shell liable for 6%. On appeal, the Ninth Circuit
agreed that Shell could be held liable as an arranger under
§9607(a)(3) and affirmed the District Court’s decision in that respect.
Although the Court of Appeals agreed that the harm in this case was
theoretically capable of apportionment, it found the facts present in
the record insufficient to support apportionment, and therefore held
Shell and the Railroads jointly and severally liable for the Govern
ments’ response costs.
Held:
1. Shell is not liable as an arranger for the contamination at the
Arvin facility. Section §9607(a)(3) liability may not extend beyond
the limits of the statute itself. Because CERCLA does not specifically
define what it means to “arrang[e] for” disposal of a hazardous sub
stance, the phrase should be given its ordinary meaning. In common
parlance, “arrange” implies action directed to a specific purpose.
Thus, under §9607(a)(3)’s plain language, an entity may qualify as an
arranger when it takes intentional steps to dispose of a hazardous
substance. To qualify as an arranger, Shell must have entered into
D–D sales with the intent that at least a portion of the product be
disposed of during the transfer process by one or more of §6903(3)’s
methods. The facts found by the District Court do not support such a
conclusion. The evidence shows that Shell was aware that minor, ac
cidental spills occurred during D–D’s transfer from the common car
rier to B&B’s storage tanks after the product had come under B&B’s
stewardship; however, it also reveals that Shell took numerous steps
to encourage its distributors to reduce the likelihood of spills. Thus,
Shell’s mere knowledge of continuing spills and leaks is insufficient
grounds for concluding that it “arranged for” D–D’s disposal. Pp. 8–
13.
2. The District Court reasonably apportioned the Railroads’ share
of the site remediation costs at 9%. Calculating liability based on
three figures—the percentage of the total area of the facility that was
owned by the Railroads, the duration of B&B’s business divided by
the term of the Railroads’ lease, and the court’s determination that
only two polluting chemicals (not D–D) spilled on the leased parcel
required remediation and that those chemicals were responsible for
roughly two-thirds of the remediable site contamination—the District
Court ultimately determined that the Railroads were responsible for
9% of the remediation costs. The District Court’s detailed findings
show that the primary pollution at the site was on a portion of the fa
cility most distant from the Railroad parcel and that the hazardous
chemical spills on the Railroad parcel contributed to no more than
Cite as: 556 U. S. ____ (2009) 3
Syllabus
10% of the total site contamination, some of which did not require
remediation. Moreover, although the evidence adduced by the par
ties did not allow the District Court to calculate precisely the amount
of hazardous chemicals contributed by the Railroad parcel to the total
site contamination or the exact percentage of harm caused by each
chemical, the evidence showed that fewer spills occurred on the Rail
road parcel and that not all of them crossed to the B&B site, where
most of the contamination originated, thus supporting the conclusion
that the parcel contributed only two chemicals in quantities requiring
remediation. Pp. 13–19.
520 F. 3d 918, reversed and remanded.
STEVENS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, SOUTER, THOMAS, BREYER, and ALITO, JJ.,
joined. GINSBURG, J., filed a dissenting opinion.
Cite as: 556 U. S. ____ (2009) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 07–1601 and 07–1607
_________________
BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY, ET AL., PETITIONERS
07–1601 v.
UNITED STATES ET AL.
SHELL OIL COMPANY, PETITIONER
07–1607 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[May 4, 2009]
JUSTICE STEVENS delivered the opinion of the Court.
In 1980, Congress enacted the Comprehensive Envi
ronmental Response, Compensation, and Liability Act
(CERCLA), 94 Stat. 2767, as amended, 42 U. S. C.
§§9601–9675, in response to the serious environmental
and health risks posed by industrial pollution. See United
States v. Bestfoods, 524 U. S. 51, 55 (1998). The Act was
designed to promote the “ ‘timely cleanup of hazardous
waste sites’ ” and to ensure that the costs of such cleanup
efforts were borne by those responsible for the contamina
tion. Consolidated Edison Co. of N. Y. v. UGI Util., Inc.,
423 F. 3d 90, 94 (CA2 2005); see also Meghrig v. KFC
Western, Inc., 516 U. S. 479, 483 (1996); Dedham Water
Co. v. Cumberland Farms Dairy, Inc., 805 F. 2d 1074,
1081 (CA1 1986). These cases raise the questions whether
and to what extent a party associated with a contaminated
2 BURLINGTON N. & S. F. R. CO. v. UNITED STATES
Opinion of the Court
site may be held responsible for the full costs of remedia
tion.
I
In 1960, Brown & Bryant, Inc. (B&B), began operating
an agricultural chemical distribution business, purchasing
pesticides and other chemical products from suppliers
such as Shell Oil Company (Shell). Using its own equip
ment, B&B applied its products to customers’ farms. B&B
opened its business on a 3.8 acre parcel of former farm
land in Arvin, California, and in 1975, expanded opera
tions onto an adjacent .9 acre parcel of land owned jointly
by the Atchison, Topeka & Santa Fe Railway Company,
and the Southern Pacific Transportation Company (now
known respectively as the Burlington Northern and Santa
Fe Railway Company and Union Pacific Railroad Com
pany) (Railroads). Both parcels of the Arvin facility were
graded toward a sump and drainage pond located on the
southeast corner of the primary parcel. See Appendix,
infra. Neither the sump nor the drainage pond was lined
until 1979, allowing waste water and chemical runoff from
the facility to seep into the ground water below.
During its years of operation, B&B stored and distrib
uted various hazardous chemicals on its property. Among
these were the herbicide dinoseb, sold by Dow Chemicals,
and the pesticides D–D and Nemagon, both sold by Shell.
Dinoseb was stored in 55-gallon drums and 5-gallon con
tainers on a concrete slab outside B&B’s warehouse.
Nemagon was stored in 30-gallon drums and 5-gallon
containers inside the warehouse. Originally, B&B pur
chased D–D in 55-gallon drums; beginning in the mid
1960’s, however, Shell began requiring its distributors to
maintain bulk storage facilities for D–D. From that time
onward, B&B purchased D–D in bulk.1
——————
1 Because D–D is corrosive, bulk storage of the chemical led to nu
Cite as: 556 U. S. ____ (2009) 3
Opinion of the Court
When B&B purchased D–D, Shell would arrange for
delivery by common carrier, f.o.b. destination.2 When the
product arrived, it was transferred from tanker trucks to a
bulk storage tank located on B&B’s primary parcel. From
there, the chemical was transferred to bobtail trucks,
nurse tanks, and pull rigs. During each of these transfers
leaks and spills could—and often did—occur. Although
the common carrier and B&B used buckets to catch spills
from hoses and gaskets connecting the tanker trucks to its
bulk storage tank, the buckets sometimes overflowed or
were knocked over, causing D–D to spill onto the ground
during the transfer process.
Aware that spills of D–D were commonplace among its
distributors, in the late 1970’s Shell took several steps to
encourage the safe handling of its products. Shell pro
vided distributors with detailed safety manuals and insti
tuted a voluntary discount program for distributors that
made improvements in their bulk handling and safety
facilities. Later, Shell revised its program to require
distributors to obtain an inspection by a qualified engineer
and provide self-certification of compliance with applicable
laws and regulations. B&B’s Arvin facility was inspected
twice, and in 1981, B&B certified to Shell that it had made
a number of recommended improvements to its facilities.
Despite these improvements, B&B remained a
“ ‘[s]loppy’ [o]perator.” App. to Pet. for Cert. in No. 07–
1601, p. 130a. Over the course of B&B’s 28 years of opera
tion, delivery spills, equipment failures, and the rinsing of
——————
merous tank failures and spills as the chemical rusted tanks and
eroded valves.
2 F.o.b. destination means “the seller must at his own expense and
risk transport the goods to [the destination] and there tender delivery
of them . . . .” U. C. C. §2–319(1)(b) (2001). The District Court found
that B&B assumed “stewardship” over the D–D as soon as the common
carrier entered the Arvin facility. App. to Pet. for Cert. in No. 07–1601,
p. 124a.
4 BURLINGTON N. & S. F. R. CO. v. UNITED STATES
Opinion of the Court
tanks and trucks allowed Nemagon, D–D and dinoseb to
seep into the soil and upper levels of ground water of the
Arvin facility. In 1983, the California Department of Toxic
Substances Control (DTSC) began investigating B&B’s
violation of hazardous waste laws, and the United States
Environmental Protection Agency (EPA) soon followed
suit, discovering significant contamination of soil and
ground water. Of particular concern was a plume of con
taminated ground water located under the facility that
threatened to leach into an adjacent supply of potential
drinking water.3
Although B&B undertook some efforts at remediation,
by 1989 it had become insolvent and ceased all operations.
That same year, the Arvin facility was added to the Na
tional Priority List, see 54 Fed. Reg. 41027, and subse
quently, DTSC and EPA (Governments) exercised their
authority under 42 U. S. C. §9604 to undertake cleanup
efforts at the site. By 1998, the Governments had spent
more than $8 million responding to the site contamina
tion; their costs have continued to accrue.
In 1991, EPA issued an administrative order to the
Railroads directing them, as owners of a portion of the
property on which the Arvin facility was located, to per
form certain remedial tasks in connection with the site.
The Railroads did so, incurring expenses of more than $3
million in the process. Seeking to recover at least a por
tion of their response costs, in 1992 the Railroads brought
——————
3 The ground water at the Arvin site is divided into three zones. The
A-zone is located 60–80 feet below the ground. It has been tested and
found to have high levels of contamination. The B-zone is located 150
feet below ground. Although the B-zone is not currently used as a
source of drinking water, it has the potential to serve as such a source.
No contamination has yet been found in that zone. The C-zone is an
aquifer located 200 feet below ground. It is the sole current source of
drinking water and, thus far, has suffered no contamination from the
Arvin site.
Cite as: 556 U. S. ____ (2009) 5
Opinion of the Court
suit against B&B in the United States District Court for
the Eastern District of California. In 1996, that lawsuit
was consolidated with two recovery actions brought by
DTSC and EPA against Shell and the Railroads.
The District Court conducted a 6-week bench trial in
1999 and four years later entered a judgment in favor of
the Governments. In a lengthy order supported by 507
separate findings of fact and conclusions of law, the court
held that both the Railroads and Shell were potentially
responsible parties (PRPs) under CERCLA—the Railroads
because they were owners of a portion of the facility, see
42 U. S. C. §§9607(a)(1)–(2), and Shell because it had
“arranged for” the disposal of hazardous substances
through its sale and delivery of D–D, see §9607(a)(3).
Although the court found the parties liable, it did not
impose joint and several liability on Shell and the Rail
roads for the entire response cost incurred by the Govern
ments. The court found that the site contamination cre
ated a single harm but concluded that the harm was
divisible and therefore capable of apportionment. Based
on three figures—the percentage of the total area of the
facility that was owned by the Railroads, the duration of
B&B’s business divided by the term of the Railroads’ lease,
and the Court’s determination that only two of three
polluting chemicals spilled on the leased parcel required
remediation and that those two chemicals were responsi
ble for roughly two-thirds of the overall site contamination
requiring remediation—the court apportioned the Rail
roads’ liability as 9% of the Governments’ total response
cost.4 Based on estimations of chemicals spills of Shell
——————
4 Although the Railroads did not produce precise figures regarding
the exact quantity of chemical spills on each parcel in each year of the
facility’s operation, the District Court found it “indisputable that the
overwhelming majority of hazardous substances were released from the
B&B parcel.” Id., at 248a. The court explained that “the predominant
activities conducted on the Railroad parcel through the years were
6 BURLINGTON N. & S. F. R. CO. v. UNITED STATES
Opinion of the Court
products, the court held Shell liable for 6% of the total site
response cost.
The Governments appealed the District Court’s appor
tionment, and Shell cross-appealed the court’s finding of
liability. The Court of Appeals acknowledged that Shell
did not qualify as a “traditional” arranger under
§9607(a)(3), insofar as it had not contracted with B&B to
directly dispose of a hazardous waste product. 520 F. 3d
918, 948 (CA9 2008). Nevertheless, the court stated that
Shell could still be held liable under a “ ‘broader’ category
of arranger liability” if the “disposal of hazardous wastes
[wa]s a foreseeable byproduct of, but not the purpose of,
the transaction giving rise to” arranger liability. Ibid.Relying on CERCLA’s definition of “disposal,” which cov
ers acts such as “leaking” and “spilling,” 42 U. S. C.
§6903(3), the Ninth Circuit concluded that an entity could
arrange for “disposal” “even if it did not intend to dispose”
of a hazardous substance. 520 F. 3d, at 949.
Applying that theory of arranger liability to the District
Court’s findings of fact, the Ninth Circuit held that Shell
arranged for the disposal of a hazardous substance
through its sale and delivery of D–D:
“Shell arranged for delivery of the substances to the
site by its subcontractors; was aware of, and to some
degree dictated, the transfer arrangements; knew that
some leakage was likely in the transfer process; and
provided advice and supervision concerning safe
transfer and storage. Disposal of a hazardous sub
stance was thus a necessary part of the sale and de
livery process.” Id., at 950.
——————
storage and some washing and rinsing of tanks, other receptacles, and
chemical application vehicles. Mixing, formulating, loading, and
unloading of ag-chemical hazardous substances, which contributed
most of the liability causing releases, were predominantly carried out
by B&B on the B&B parcel.” Id., at 247a–248a.
Cite as: 556 U. S. ____ (2009) 7
Opinion of the Court
Under such circumstances, the court concluded, arranger
liability was not precluded by the fact that the purpose of
Shell’s action had been to transport a useful and previ
ously unused product to B&B for sale.
On the subject of apportionment, the Court of Appeals
found “no dispute” on the question whether the harm
caused by Shell and the Railroads was capable of appor
tionment. Id., at 942. The court observed that a portion of
the site contamination occurred before the Railroad parcel
became part of the facility, only some of the hazardous
substances were stored on the Railroad parcel, and “only
some of the water on the facility washed over the Rail
roads’ site.” Ibid. With respect to Shell, the court noted
that not all of the hazardous substances spilled on the
facility had been sold by Shell. Given those facts, the
court readily concluded that “the contamination traceable
to the Railroads and Shell, with adequate information,
would be allocable, as would be the cost of cleaning up that
contamination.” Ibid. Nevertheless, the Court of Appeals
held that the District Court erred in finding that the
record established a reasonable basis for apportionment.
Because the burden of proof on the question of apportion
ment rested with Shell and the Railroads, the Court of
Appeals reversed the District Court’s apportionment of
liability and held Shell and the Railroads jointly and
severally liable for the Governments’ cost of responding to
the contamination of the Arvin facility.
The Railroads and Shell moved for rehearing en banc,
which the Court of Appeals denied over the dissent of
eight judges. See id., at 952 (Bea, J., dissenting). We
granted certiorari to determine whether Shell was prop
erly held liable as an entity that had “arranged for dis
posal” of hazardous substances within the meaning of
§9607(a)(3), and whether Shell and the Railroads were
properly held liable for all response costs incurred by EPA
and the State of California. See 554 U. S. ___ (2008).
8 BURLINGTON N. & S. F. R. CO. v. UNITED STATES
Opinion of the Court
Finding error on both points, we now reverse.
II
CERCLA imposes strict liability for environmental con
tamination upon four broad classes of PRPs:
“(1) the owner and operator of a vessel or a facility,
“(2) any person[5] who at the time of disposal of any
hazardous substance owned or operated any facility at
which such hazardous substances were disposed of,
“(3) any person who by contract, agreement, or oth
erwise arranged for disposal or treatment, or ar
ranged with a transporter for transport for disposal or
treatment, of hazardous substances owned or pos
sessed by such person, by any other party or entity, at
any facility or incineration vessel owned or operated
by another party or entity and containing such haz
ardous substances, and
“(4) any person who accepts or accepted any haz
ardous substances for transport to disposal or treat
ment facilities, incineration vessels or sites selected
by such person, from which there is a release, or a
threatened release which causes the incurrence of re
sponse costs, of a hazardous substance. . . .” 42
U. S. C. §9607(a).
Once an entity is identified as a PRP, it may be compelled
to clean up a contaminated area or reimburse the Gov
ernment for its past and future response costs. See Cooper
——————
5 For purposes of the statute, a “person” is defined as “an individual,
firm, corporation, association, partnership, consortium, joint venture,
commercial entity, United States Government, State, municipality,
commission, political subdivision of a State, or any interstate body.” 42
U. S. C. §9601(21).
Cite as: 556 U. S. ____ (2009) 9
Opinion of the Court
Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 161
(2004).6
In these cases, it is undisputed that the Railroads qual
ify as PRPs under both §§9607(a)(1) and 9607(a)(2) be
cause they owned the land leased by B&B at the time of
the contamination and continue to own it now. The more
difficult question is whether Shell also qualifies as a PRP
under §9607(a)(3) by virtue of the circumstances sur
rounding its sales to B&B.
To determine whether Shell may be held liable as an
arranger, we begin with the language of the statute. As
relevant here, §9607(a)(3) applies to an entity that “ar
range[s] for disposal . . . of hazardous substances.” It is
plain from the language of the statute that CERCLA
liability would attach under §9607(a)(3) if an entity were
to enter into a transaction for the sole purpose of discard
ing a used and no longer useful hazardous substance. It is
similarly clear that an entity could not be held liable as an
arranger merely for selling a new and useful product if the
purchaser of that product later, and unbeknownst to the
seller, disposed of the product in a way that led to con
tamination. See Freeman v. Glaxo Wellcome, Inc., 189
F. 3d 160, 164 (CA2 1999); Florida Power & Light Co. v.
Allis Chalmers Corp., 893 F. 2d 1313, 1318 (CA11 1990).
Less clear is the liability attaching to the many permuta
tions of “arrangements” that fall between these two ex
——————
6 Under CERCLA, PRPs are liable for: “(A) all costs of removal or
remedial action incurred by the United States Government or a State
or an Indian tribe not inconsistent with the national contingency plan;
“(B) any other necessary costs of response incurred by any other per
son consistent with the national contingency plan;
“(C) damages for injury to, destruction of, or loss of natural resources,
including the reasonable costs of assessing such injury, destruction, or
loss resulting from such a release; and
“(D) the costs of any health assessment or health effects study carried
out under section 9604(i) of this title.” §9607(a)(4).
10 BURLINGTON N. & S. F. R. CO. v. UNITED STATES
Opinion of the Court
tremes—cases in which the seller has some knowledge of
the buyers’ planned disposal or whose motives for the
“sale” of a hazardous substance are less than clear. In
such cases, courts have concluded that the determination
whether an entity is an arranger requires a fact-intensive
inquiry that looks beyond the parties’ characterization of
the transaction as a “disposal” or a “sale” and seeks to
discern whether the arrangement was one Congress in
tended to fall within the scope of CERCLA’s strict-liability
provisions. See Freeman, 189 F. 3d, at 164; Pneumo Abex
Corp. v. High Point, Thomasville & Denton R. Co., 142 F.
3d 769, 775 (CA4 1998) (“ ‘[T]here is no bright line between
a sale and a disposal under CERCLA. A party’s responsi
bility . . . must by necessity turn on a fact-specific inquiry
into the nature of the transaction’ ” (quoting United States
v. Petersen Sand & Gravel, 806 F. Supp. 1346, 1354 (ND
Ill. 1992))); Florida Power & Light Co., 893 F. 2d, at 1318.
Although we agree that the question whether
§9607(a)(3) liability attaches is fact intensive and case
specific, such liability may not extend beyond the limits of
the statute itself. Because CERCLA does not specifically
define what it means to “arrang[e] for” disposal of a haz
ardous substance, see, e.g., United States v. Cello-Foil
Prods., Inc., 100 F. 3d 1227, 1231 (CA6 1996); Amcast
Indus. Corp. v. Detrex Corp., 2 F. 3d 746, 751 (CA7 1993);
Florida Power & Light Co., 893 F. 2d, at 1317, we give the
phrase its ordinary meaning. Crawford v. Metropolitan
Government of Nashville and Davidson Cty., 555 U. S.
____ (2009); Perrin v. United States, 444 U. S. 37, 42
(1979). In common parlance, the word “arrange” implies
action directed to a specific purpose. See Merriam-
Webster’s Collegiate Dictionary 64 (10th ed. 1993) (defin
ing “arrange” as “to make preparations for: plan[;] . . . to
bring about an agreement or understanding concerning”);
see also Amcast Indus. Corp., 2 F. 3d, at 751 (words “ ‘ar
ranged for’ . . . imply intentional action”). Consequently,
Cite as: 556 U. S. ____ (2009) 11
Opinion of the Court
under the plain language of the statute, an entity may
qualify as an arranger under §9607(a)(3) when it takes
intentional steps to dispose of a hazardous substance. See
Cello-Foil Prods., Inc., 100 F. 3d, at 1231 (“[I]t would be
error for us not to recognize the indispensable role that
state of mind must play in determining whether a party
has ‘otherwise arranged for disposal . . . of hazardous
substances’ ”).
The Governments do not deny that the statute requires
an entity to “arrang[e] for” disposal; however, they inter
pret that phrase by reference to the statutory term “dis
posal,” which the Act broadly defines as “the discharge,
deposit, injection, dumping, spilling, leaking, or placing of
any solid waste or hazardous waste into or on any land or
water.” 42 U. S. C. §6903(3); see also §9601(29) (adopting
the definition of “disposal” contained in the Solid Waste
Disposal Act).7 The Governments assert that by including
unintentional acts such as “spilling” and “leaking” in the
definition of disposal, Congress intended to impose liabil
ity on entities not only when they directly dispose of waste
products but also when they engage in legitimate sales of
hazardous substances8 knowing that some disposal may
occur as a collateral consequence of the sale itself. Apply
ing that reading of the statute, the Governments contend
that Shell arranged for the disposal of D–D within the
meaning of §9607(a)(3) by shipping D–D to B&B under
conditions it knew would result in the spilling of a portion
——————
7 “Hazardous waste” is defined as “a solid waste, or combination of
solid wastes, which . . . may . . . pose a substantial present or potential
hazard to human health or the environment when improperly treated,
stored, transported, or disposed of, or otherwise managed.” §6903(5)(B);
§9601(29).
8 CERCLA defines “hazardous substance” to include a variety of
chemicals and toxins including those designated by EPA as air pollut
ants, water pollutants, and solid wastes. §9601(14).
12 BURLINGTON N. & S. F. R. CO. v. UNITED STATES
Opinion of the Court
of the hazardous substance by the purchaser or common
carrier. See Brief for United States 24 (“Although the
delivery of a useful product was the ultimate purpose of
the arrangement, Shell’s continued participation in the
delivery, with knowledge that spills and leaks would
result, was sufficient to establish Shell’s intent to dispose
of hazardous substances”). Because these spills resulted
in wasted D–D, a result Shell anticipated, the Govern
ments insist that Shell was properly found to have ar
ranged for the disposal of D–D.
While it is true that in some instances an entity’s knowl
edge that its product will be leaked, spilled, dumped, or
otherwise discarded may provide evidence of the entity’s
intent to dispose of its hazardous wastes, knowledge alone
is insufficient to prove that an entity “planned for” the
disposal, particularly when the disposal occurs as a pe
ripheral result of the legitimate sale of an unused, useful
product. In order to qualify as an arranger, Shell must
have entered into the sale of D–D with the intention that
at least a portion of the product be disposed of during the
transfer process by one or more of the methods described
in §6903(3). Here, the facts found by the District Court do
not support such a conclusion.
Although the evidence adduced at trial showed that
Shell was aware that minor, accidental spills occurred
during the transfer of D–D from the common carrier to
B&B’s bulk storage tanks after the product had arrived at
the Arvin facility and had come under B&B’s stewardship,
the evidence does not support an inference that Shell
intended such spills to occur. To the contrary, the evi
dence revealed that Shell took numerous steps to encour
age its distributors to reduce the likelihood of such spills,
providing them with detailed safety manuals, requiring
them to maintain adequate storage facilities, and provid
ing discounts for those that took safety precautions. Al
though Shell’s efforts were less than wholly successful,
Cite as: 556 U. S. ____ (2009) 13
Opinion of the Court
given these facts, Shell’s mere knowledge that spills and
leaks continued to occur is insufficient grounds for con
cluding that Shell “arranged for” the disposal of D–D
within the meaning of §9607(a)(3). Accordingly, we con
clude that Shell was not liable as an arranger for the
contamination that occurred at B&B’s Arvin facility.
III
Having concluded that Shell is not liable as an arranger,
we need not decide whether the Court of Appeals erred in
reversing the District Court’s apportionment of Shell’s
liability for the cost of remediation. We must, however,
determine whether the Railroads were properly held
jointly and severally liable for the full cost of the Govern
ments’ response efforts.
The seminal opinion on the subject of apportionment in
CERCLA actions was written in 1983 by Chief Judge Carl
Rubin of the United States District Court for the Southern
District of Ohio. United States v. Chem-Dyne Corp., 572
F. Supp. 802. After reviewing CERCLA’s history, Chief
Judge Rubin concluded that although the Act imposed a
“strict liability standard,” id., at 805, it did not mandate
“joint and several” liability in every case. See id., at 807.
Rather, Congress intended the scope of liability to “be
determined from traditional and evolving principles of
common law[.]” Id., at 808. The Chem-Dyne approach has
been fully embraced by the Courts of Appeals. See, e.g.,
In re Bell Petroleum Services, Inc., 3 F. 3d 889, 901–902
(CA5 1993); United States v. Alcan Aluminum Corp., 964
F. 2d 252, 268 (CA3 1992); O’Neil v. Picillo, 883 F. 2d 176,
178 (CA1 1989); United States v. Monsanto Co., 858 F. 2d
160, 171–173 (CA4 1988).
Following Chem-Dyne, the courts of appeals have ac
knowledged that “[t]he universal starting point for divisi
bility of harm analyses in CERCLA cases” is §433A of the
Restatement (Second) of Torts. United States v. Hercules,
14 BURLINGTON N. & S. F. R. CO. v. UNITED STATES
Opinion of the Court
Inc., 247 F. 3d 706, 717 (CA8 2001); Chem-Nuclear Sys
tems, Inc. v. Bush, 292 F. 3d 254, 259 (CADC 2002);
United States v. R. W. Meyer, Inc., 889 F. 2d 1497, 1507
(CA6 1989). Under the Restatement,
“when two or more persons acting independently
caus[e] a distinct or single harm for which there is a
reasonable basis for division according to the contri
bution of each, each is subject to liability only for the
portion of the total harm that he has himself caused.
Restatement (Second) of Torts, §§433A, 881 (1976);
Prosser, Law of Torts, pp. 313–314 (4th ed. 1971) . . . .
But where two or more persons cause a single and in
divisible harm, each is subject to liability for the en
tire harm. Restatement (Second) of Torts, §875;
Prosser, at 315–316.” Chem-Dyne Corp., 572 F. Supp.,
at 810.
In other words, apportionment is proper when “there is a
reasonable basis for determining the contribution of each
cause to a single harm.” Restatement (Second) of Torts
§433A(1)(b), p. 434 (1963–1964).
Not all harms are capable of apportionment, however,
and CERCLA defendants seeking to avoid joint and sev
eral liability bear the burden of proving that a reasonable
basis for apportionment exists. See Chem-Dyne Corp., 572
F. Supp., at 810 (citing Restatement (Second) of Torts
§433B (1976)) (placing burden of proof on party seeking
apportionment). When two or more causes produce a
single, indivisible harm, “courts have refused to make an
arbitrary apportionment for its own sake, and each of the
causes is charged with responsibility for the entire harm.”
Restatement (Second) of Torts §433A, Comment i, p. 440
(1963–1964).
Neither the parties nor the lower courts dispute the
principles that govern apportionment in CERCLA cases,
and both the District Court and Court of Appeals agreed
Cite as: 556 U. S. ____ (2009) 15
Opinion of the Court
that the harm created by the contamination of the Arvin
site, although singular, was theoretically capable of appor
tionment. The question then is whether the record pro
vided a reasonable basis for the District Court’s conclusion
that the Railroads were liable for only 9% of the harm
caused by contamination at the Arvin facility.
The District Court criticized the Railroads for taking a
“ ‘scorched earth,’ all-or-nothing approach to liability,”
failing to acknowledge any responsibility for the release of
hazardous substances that occurred on their parcel
throughout the 13-year period of B&B’s lease. According
to the District Court, the Railroads’ position on liability,
combined with the Governments’ refusal to acknowledge
the potential divisibility of the harm, complicated the
apportioning of liability. See App. to Pet. for Cert. in No.
07–1601, at 236a–237a (“All parties . . . effectively abdi
cated providing any helpful arguments to the court and
have left the court to independently perform the equitable
apportionment analysis demanded by the circumstances of
the case”).9 Yet despite the parties’ failure to assist the
——————
9 As the Governments point out, insofar as the District Court made
reference to equitable considerations favoring apportionment, it erred.
Equitable considerations play no role in the apportionment analysis;
rather, apportionment is proper only when the evidence supports the
divisibility of the damages jointly caused by the PRPs. See generally
United States v. Hercules, Inc., 247 F. 3d 706, 718–719 (CA8 2001);
United States v. Brighton, 153 F. 3d 307, 318–319 (CA6 1998); Redwing
Carriers, Inc. v. Saraland Apartments, 94 F. 3d 1489, 1513 (CA11
1996). As the Court of Appeals explained, “[a]pportionment . . . looks to
whether defendants may avoid joint and several liability by establish
ing a fixed amount of damage for which they are liable,” while contribu
tion actions allow jointly and severally liable PRPs to recover from each
other on the basis of equitable considerations. 520 F. 3d 918, 939–940
(CA9 2008); see also 42 U. S. C. §9613(f)(1) (providing that, “[i]n resolv
ing contribution claims, the court may allocate response costs among
liable parties using such equitable factors as the court determines are
appropriate”). The error is of no consequence, however, because despite
the District Court’s reference to equity, its actual apportionment
16 BURLINGTON N. & S. F. R. CO. v. UNITED STATES
Opinion of the Court
court in linking the evidence supporting apportionment to
the proper allocation of liability, the District Court ulti
mately concluded that this was “a classic ‘divisible in
terms of degree’ case, both as to the time period in which
defendants’ conduct occurred, and ownership existed, and
as to the estimated maximum contribution of each party’s
activities that released hazardous substances that caused
Site contamination.” Id., at 239a. Consequently, the
District Court apportioned liability, assigning the Rail
roads 9% of the total remediation costs.
The District Court calculated the Railroads’ liability
based on three figures. First, the court noted that the
Railroad parcel constituted only 19% of the surface area of
the Arvin site. Second, the court observed that the Rail
roads had leased their parcel to B&B for 13 years, which
was only 45% of the time B&B operated the Arvin facility.
Finally, the court found that the volume of hazardous
substance-releasing activities on the B&B property was at
least 10 times greater than the releases that occurred on
the Railroad parcel, and it concluded that only spills of
two chemicals, Nemagon and dinoseb (not D–D), substan
tially contributed to the contamination that had originated
on the Railroad parcel and that those two chemicals had
contributed to two-thirds of the overall site contamination
requiring remediation. The court then multiplied .19 by
.45 by .66 (two-thirds) and rounded up to determine that
the Railroads were responsible for approximately 6% of
the remediation costs. “Allowing for calculation errors up
to 50%,” the court concluded that the Railroads could be
held responsible for 9% of the total CERCLA response cost
for the Arvin site. Id., at 252a.
The Court of Appeals criticized the evidence on which
——————
decision was properly rooted in evidence that provided a reasonable
basis for identifying the portion of the harm attributable to the Rail
roads.
Cite as: 556 U. S. ____ (2009) 17
Opinion of the Court
the District Court’s conclusions rested, finding a lack of
sufficient data to establish the precise proportion of con
tamination that occurred on the relative portions of the
Arvin facility and the rate of contamination in the years
prior to B&B’s addition of the Railroad parcel. The court
noted that neither the duration of the lease nor the size of
the leased area alone was a reliable measure of the harm
caused by activities on the property owned by the Rail
roads, and—as the court’s upward adjustment confirmed—
the court had relied on estimates rather than specific and
detailed records as a basis for its conclusions.
Despite these criticisms, we conclude that the facts
contained in the record reasonably supported the appor
tionment of liability. The District Court’s detailed find
ings make it abundantly clear that the primary pollution
at the Arvin facility was contained in an unlined sump
and an unlined pond in the southeastern portion of the
facility most distant from the Railroads’ parcel and that
the spills of hazardous chemicals that occurred on the
Railroad parcel contributed to no more than 10% of the
total site contamination, see id., at 247a–248a, some of
which did not require remediation. With those back
ground facts in mind, we are persuaded that it was rea
sonable for the court to use the size of the leased parcel
and the duration of the lease as the starting point for its
analysis. Although the Court of Appeals faulted the Dis
trict Court for relying on the “simplest of considerations:
percentages of land area, time of ownership, and types of
hazardous products,” 520 F. 3d, at 943, these were the
same factors the court had earlier acknowledged were
relevant to the apportionment analysis. See id., at 936,
n.18 (“We of course agree with our sister circuits that, if
adequate information is available, divisibility may be
established by ‘volumetric, chronological, or other types of
evidence,’ including appropriate geographic considera
tions” (citations omitted)).
18 BURLINGTON N. & S. F. R. CO. v. UNITED STATES
Opinion of the Court
The Court of Appeals also criticized the District Court’s
assumption that spills of Nemagon and dinoseb were
responsible for only two-thirds of the chemical spills re
quiring remediation, observing that each PRP’s share of
the total harm was not necessarily equal to the quantity of
pollutants that were deposited on its portion of the total
facility. Although the evidence adduced by the parties did
not allow the court to calculate precisely the amount of
hazardous chemicals contributed by the Railroad parcel to
the total site contamination or the exact percentage of
harm caused by each chemical, the evidence did show that
fewer spills occurred on the Railroad parcel and that of
those spills that occurred, not all were carried across the
Railroad parcel to the B&B sump and pond from which
most of the contamination originated. The fact that no D–
D spills on the Railroad parcel required remediation lends
strength to the District Court’s conclusion that the Rail
road parcel contributed only Nemagon and dinoseb in
quantities requiring remediation.
The District Court’s conclusion that those two chemicals
accounted for only two-thirds of the contamination requir
ing remediation finds less support in the record; however,
any miscalculation on that point is harmless in light of the
District Court’s ultimate allocation of liability, which
included a 50% margin of error equal to the 3% reduction
in liability the District Court provided based on its as
sessment of the effect of the Nemagon and dinoseb spills.
Had the District Court limited its apportionment calcula
tions to the amount of time the Railroad parcel was in use
and the percentage of the facility located on that parcel, it
would have assigned the Railroads 9% of the response
cost. By including a two-thirds reduction in liability for
the Nemagon and dinoseb with a 50% “margin of error,”
the District Court reached the same result. Because the
District Court’s ultimate allocation of liability is supported
by the evidence and comports with the apportionment
Cite as: 556 U. S. ____ (2009) 19
Opinion of the Court
principles outlined above, we reverse the Court of Appeals’
conclusion that the Railroads are subject to joint and
several liability for all response costs arising out of the
contamination of the Arvin facility.
IV
For the foregoing reasons, we conclude that the Court of
Appeals erred by holding Shell liable as an arranger under
CERCLA for the costs of remediating environmental con
tamination at the Arvin, California facility. Furthermore,
we conclude that the District Court reasonably appor
tioned the Railroads’ share of the site remediation costs
at 9%. The judgment is reversed, and the cases are
remanded for further proceedings consistent with this
opinion.
It is so ordered.
20 BURLINGTON N. & S. F. R. CO. v. UNITED STATES
Opinion of the Court
Appendix to opinion of the Court
APPENDIX
Cite as: 556 U. S. ____ (2009) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 07–1601 and 07–1607
_________________
BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY, ET AL., PETITIONERS
07–1601 v.
UNITED STATES ET AL.
SHELL OIL COMPANY, PETITIONER
07–1607 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[May 4, 2009]
JUSTICE GINSBURG, dissenting.
Although the question is close, I would uphold the de­
terminations of the courts below that Shell qualifies as an
arranger within the compass of the Comprehensive Envi­
ronmental Response, Compensation and Liability Act
(CERCLA). See 42 U. S. C. §9607(a)(3). As the facts
found by the District Court bear out, App. to Pet. for Cert.
in No. 07–1601, pp. 113a–129a, 208a–213a, Shell “ar­
ranged for disposal . . . of hazardous substances” owned by
Shell when the arrangements were made.1
In the 1950’s and early 1960’s, Shell shipped most of its
products to Brown and Bryant (B&B) in 55-gallon drums,
thereby ensuring against spillage or leakage during deliv­
ery and transfer. Id., at 89a, 115a. Later, Shell found it
economically advantageous, in lieu of shipping in drums,
——————
1 “Disposal” is defined in 42 U. S. C. §6903(3) to include “spilling [or]
leaking” of “any . . . hazardous waste into or on any land or water so
that [the] . . . hazardous waste or any constituent thereof may enter the
environment or be emitted into the air or discharged into any waters.”
2 BURLINGTON N. & S. F. R. CO. v. UNITED STATES
GINSBURG, J., dissenting
to require B&B to maintain bulk storage facilities for
receipt of the chemicals B&B purchased from Shell. Id., at
115a. By the mid-1960’s, Shell was delivering its chemical
to B&B in bulk tank truckloads. Id., at 89a, 115a. As the
Court recognizes, “bulk storage of the chemical led to
numerous tank failures and spills as the chemical rusted
tanks and eroded valves.” Ante, at 2–3, n. 1.
Shell furthermore specified the equipment to be used in
transferring the chemicals from the delivery truck to
B&B’s storage tanks. App. to Pet. for Cert. in No. 07–
1601, pp. 120a–122a, 124a.2 In the process, spills and
leaks were inevitable, indeed spills occurred every time
deliveries were made. 520 F. 3d 918, 950–951 (CA9 2008).
See also App. to Pet. for Cert. in No. 07–1601, pp. 119a–
122a (“It is undisputed that spills were inherent in the
delivery process that Shell arranged . . . .”).
That Shell sold B&B useful products, the Ninth Circuit
observed, did not exonerate Shell from CERCLA liability,
for the sales “necessarily and immediately result[ed] in
the leakage of hazardous substances.” 520 F. 3d, at 950.
The deliveries, Shell was well aware, directly and rou­
tinely resulted in disposals of hazardous substances
(through spills and leaks) for more than 20 years. “[M]ere
knowledge” may not be enough, ante, at 13, but Shell did
not simply know of the spills and leaks without contribut­
ing to them. Given the control rein held by Shell over the
mode of delivery and transfer, 520 F. 3d, at 950–951, the
——————
2 Shell shipped the chemicals to B&B “F.O.B. Destination.” At oral
argument, the Court asked Shell’s counsel: Suppose there had been “no
transfer of ownership until the delivery [was] complete?” In that event,
counsel responded, “Shell would have been the owner of the waste.” Tr.
of Oral Arg. 8. The Court credits the fact that at the time of the spills,
the chemicals, having been shipped “F.O.B. Destination,” “had come
under B&B’s stewardship.” Ante, at 12. In my view, CERCLA liability,
or the absence thereof, should not turn, in any part, on such an emi­
nently shipper-fixable specification as “F.O.B. Destination.”
Cite as: 556 U. S. ____ (2009) 3
GINSBURG, J., dissenting
lower courts held and I agree, Shell was properly ranked
an arranger. Relieving Shell of any obligation to pay for
the cleanup undertaken by the United States and Califor­
nia is hardly commanded by CERCLA’s text, and is surely
at odds with CERCLA’s objective—to place the cost of
remediation on persons whose activities contributed to the
contamination rather than on the taxpaying public.
As to apportioning costs, the District Court undertook
an heroic labor. The Railroads and Shell, the court noted,
had pursued a “ ‘scorched earth,’ all-or-nothing approach to
liability. Neither acknowledged an iota of responsibility
. . . . Neither party offered helpful arguments to apportion
liability.” App. to Pet. for Cert. in No. 07–1601, p. 236a,
¶455. Consequently, the court strived “independently [to]
perform [an] equitable apportionment analysis.” Id., at
237a, ¶455. Given the party presentation principle basic
to our procedural system, Greenlaw v. United States, 554
U. S. ___, ___ (2008) (slip op., at 5), it is questionable
whether the court should have pursued the matter sua
sponte. See Castro v. United States, 540 U. S. 375, 386
(2003) (SCALIA, J., concurring) (“Our adversary system is
designed around the premise that the parties know what
is best for them, and are responsible for advancing the
facts and arguments entitling them to relief.”). Cf. Kap­
lan, von Mehren, & Schaefer, Phases of German Civil
Procedure I, 71 Harv. L. Rev. 1193, 1224 (1958) (describ­
ing court’s obligation, under Germany’s Code of Civil
Procedure, to see to it that the case is fully developed).
The trial court’s mode of procedure, the United States
urged before this Court, “deprived the government of a fair
opportunity to respond to the court’s theories of appor­
tionment and to rebut their factual underpinnings—an
opportunity the governmen[t] would have had if those
theories had been advanced by petitioners themselves.”
4 BURLINGTON N. & S. F. R. CO. v. UNITED STATES
GINSBURG, J., dissenting
Brief for United States 41.3 I would return these cases to
the District Court to give all parties a fair opportunity to
address that court’s endeavor to allocate costs. Because
the Court’s disposition precludes that opportunity, I dis­
sent from the Court’s judgment.
——————
3 For example, on brief, the United States observed: “[P]etitioners
identify no record support for the district court’s assumption that each
party’s contribution to the overall harm is proportional to the relative
volume of hazardous substances attributable to it.” Brief for United
States 45. And at oral argument, counsel for the United States
stressed that the District Court “framed the relevant inquiry as what
percentage of the contamination was attributable to the railroad parcel,
to the Shell-controlled deliveries, and to the B&B parcel. But it made
no finding . . . as to what the cost of [remediation] would have been . . .
if the only source of contamination had been the railroad parcel.” Tr. of
Oral Arg. 52. See also id., at 56 (“[T]he crucial question is what re­
sponse costs the government would have been required to bear . . . if
only the railroad parcel’s contamination had been at issue . . . .”).