## Facts

- Brown & Bryant, Inc. (B&B) operated an agricultural chemical distribution business on a four-acre site in Arvin, California, beginning in 1960.
- In 1975, B&B expanded onto an adjacent one-acre parcel leased from Burlington Northern and Santa Fe Railway Company and Union Pacific Railroad Company (the Railroads).
- B&B stored and distributed hazardous substances, including pesticides, causing repeated spills and leaks that contaminated soil and groundwater.
- Shell Oil Company supplied B&B with the soil fumigant D-D, first in drums and later in bulk deliveries transferred from tanker trucks to B&B storage tanks, during which spills occurred.
- By 1989, B&B became insolvent and ceased operations, leaving a groundwater contamination plume threatening a nearby drinking water supply.
- The United States and California environmental agencies conducted response actions under CERCLA and sought recovery of more than $8 million in cleanup costs from Shell and the Railroads.

## Issues

1. Whether Shell was liable as an “arranger” under CERCLA § 107(a)(3) for selling and delivering a useful product (D-D) that was spilled during transfer.
2. Whether the site contamination was divisible such that the Railroads’ liability could be apportioned instead of imposed jointly and severally for all response costs.

## Decision

- The Supreme Court held Shell was not liable as an arranger because the sale and delivery of D-D was a transaction for a useful product and the record did not show Shell intended disposal.
- The Court held the Railroads established a reasonable basis for apportionment; joint and several liability was not required.
- The Court reinstated the district court’s apportionment for the Railroads (9% of response costs) and rejected the Ninth Circuit’s imposition of joint and several liability.
- Justice Ginsburg dissented.

## Legal Principles

- CERCLA § 107(a)(3) arranger liability generally requires intentional steps toward disposal; mere knowledge that spills may occur in the course of selling a useful product is insufficient.
- A party selling a new, useful product is not an arranger absent proof that the transaction was undertaken with the purpose that at least some of the hazardous substance be discarded.
- CERCLA does not impose joint and several liability in every case; common-law divisibility and apportionment principles apply when the harm is divisible.
- Defendants bear the burden to prove divisibility and provide a reasonable basis for apportionment; precise quantification is not required if the allocation rests on evidence-based assumptions.
- Apportionment may consider spatial, temporal, and chemical-specific evidence linking a party’s contribution to a portion of the overall harm.

## Conclusion

The Court limited CERCLA arranger liability to situations involving intent to dispose and confirmed that potentially responsible parties may avoid joint and several liability when they prove divisible harm and offer an evidence-based, reasonably approximated apportionment.


Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599 (2009)