ENVIRONMENTAL LAW—CERCLA ENFORCEMENT: TERMINOLOGY AND MEANING OF “TREATMENT” ARRANGER LIABILITY

CERCLA arranger liability was forever changed by the Supreme Court decision in Burlington Northern & Santa Fe Ry. Co. v. United States, 556 U.S. 599 (2009). In the aftermath, EPA has been hamstrung with the difficulty of substantiating a Potentially Responsible Party’s (“PRP”) intent to arrange for disposal of a hazardous substance, as well as attempting to overcome the ever-increasing scientific capabilities of PRPs to demonstrate that proportionality of damages is appropriate for a given Superfund site. This Article is the first in depth analysis teasing apart what it means for a PRP to arrange for disposal, as opposed to arrange for treatment—both found under CERCLA § 107(a)(3)—and to establish that the use of the treatment terminology could strengthen the Environmental Protection Agency’s (“EPA”) enforcement efficiency and effectiveness. In particular, this Article opines on the following: (1) Congress included the treatment term because the treatment of hazardous substances inherently generate the possibility of Superfund sites; (2) Congress intended liability to attach to the transferor anytime the selling party intends—whether implicitly or explicitly—to alter the hazardous substance through some process to make it more useful or reuseable, and that process was the proximate cause of the release of hazardous waste at the site; and (3) attaching liability under the treatment term is an easier standard to meet and would result in an increased percentage of successful CERCLA enforcement actions and contribution claims. To illustrate, this Article discusses two real-world scenarios in an effort to shed light on situations in which treatment arranger liability could and should be utilized as a litigation tactic over disposal arranger liability