When Is An Arranger Not An Arranger? When It Sells Some Good Stuff Along With The Junk

As Superfund lawyers know, the Supreme Court decision in Burlington Northern required proof of an intent to dispose hazardous substances as a prerequisite to imposition of arranger liability.  While lower courts have often blissfully ignored the holdings in Supreme Court decisions under CERCLA, arranger liability seems to be one area in which the lower courts have taken the Supreme Court decision to heart.

In any event, while I have been pleased that lower courts have applied the rule in Burlington Northern, the arranger liability decision last week in United States v. D.S.C. of Newark Enterprises suggests to me that the pendulum may actually have swung too far.  In D.S.C., a predecessor of the former owner had manufactured brake linings, shoes, and pads at the site.  Those operations generated asbestos dust, which the operator captured in baghouses.  In 1983, the operator sold the property and equipment, including the baghouses.