Faculty Journal Articles and Book Chapters

Interpreting Section 170(A)(3) of CERCLA: When Has a Person Arranged for Disposal

Abstract

Under Section 107(a)(3) of the Comprehensive Environmental Response Compensation and Liability Act, persons who arranged for disposal of hazardous substances are included among the group of potentially responsible parties. In general, courts have concluded that sales of products containing hazardous substances do not constitute arranging for disposal. Given the complexity of business transactions, however, courts have engaged in case-by-case assessments to determine whether a transaction constituted a true sale or was in fact an arrangement involving the disposal of a hazardous substance. These ad hoc assessments undertaken by the courts, however, have left parties with considerable uncertainty as to when a transaction will result in potential liability under CERCLA.

This Article assesses the developing case law to determine when a transaction will be considered to be arranging for disposal. The Article suggests that liability under section 107(a)(3) should be limited to parties who engage in transactions involving solid wastes as defined under the Resource Conservation and Recovery Act (RCRA). Although the scope of materials that are hazardous substances under CERCLA is broader than the class of hazardous wastes under RCRA, this Article suggests that strong reasons exist both in the language and legislative history of CERCLA to limit liability. Given the need for certainty in this area and the fact that the Environmental Protection Agency (EPA) already has struggled with the concept of disposal in its definition of solid waste under RCRA, this Article suggests that it is foolish for courts to reinvent the wheel through an ad hoc assessment of liability of persons who may have arranged for disposal.

Publication Title

Southwestern Law Journal

Document Type

Article

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