Record and brief — Burlington N. & S. F. R. Co. v. United States

SLIP

OPINION

(Slip Opinion) OCTOBER TERM, 2008 l

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 of the opinion of the Court but has been

pared by the rter of Decisions for the convenience of the reader.

e 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 FT 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.

BURLINGTON N. & S. F. R. Co. vu. 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) l

Opinion of the Court

NOTICE: This er is subject to formal revision Detengnesneien ie tap

prelimi print of the United States , ers are requested to

otify the Reperter of Decisions i Gedy a OE States, Wash-

ington, D. C. 20543, of any ical 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. vu. UNITED STATES

Opinion of the Court

site may be held responsible for the full costs of remedia-

tion.

|

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.!

1Because D-D is corrosive, bulk storage of the chemical led to nu-

Cite as: 556U.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

“Is|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.

2F.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.®

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

’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: 556U.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. Based on estimations of chemicals spills of Shell

4Although 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.” 7/d., 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.” /d., 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 t!iat 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. /d., 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.” Jbid. 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.” Jbid. 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!) 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

5For 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: 556U.S.__s (2009) 9

Opinion of the Court

Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 161

(2004).®

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-

®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(j) of this title.” §9607(a)(4).

10 BURLINGTON N. & S. F. R. Co. vu. 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) (“There is no bright line between

a se.e 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 Siates

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. Metropoliian

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).? 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 substances* 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

'“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).

8CERCLA 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. A\l-

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.

iil

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{.]” Jd., 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. vu. 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 foi ae

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 lability. 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’). Yet despite the parties’ failure to assist the

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 (CAI11

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, 989-940

(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 ult-

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.” TJd., 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 ttme 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. Jd., 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.

BURLINGTON N. & S. F. R. Co. v. UNITED STATES

Appendix to opinion of the Court

APPENDIX

20

F

mcnigai wags Aqieg i i;

‘aa aioe Un ikemmem +| une

Cite as: 556 U. S. (2009) 1

GINSBURG, J., dissenting

SUPREME COURT OF THE UNITED STATES

Nos. 07—160i 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, | 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.!

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. /d., 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. vu. UNITED STATES

GINSBURG, J., dissenting

to require B&B to maintain bulk storage facilities for

receipt of the chemicals B&B purchased from Shell. Jd., at

1l5a. By the mid-1960’s, Shell was delivering its chemical

to B&B in bulk tank truckloads. /Jd., 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. “[Ml]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

2Shell 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 | 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.” IJd., at

237a, 4455. 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 courts 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.”

A BURLINGTON N. & S. F. R. Co. vu. UNITED STATES

GINSBURG, J., dissenting

Brief for United States 41.5 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.

8For 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 .. . .”).