## Facts

- Tippins Inc. contracted to contain and dispose of electric-arc-furnace (EAF) dust, a hazardous steel-manufacturing by-product.
- Tippins solicited bids for transport and disposal; Petroclean, Inc., a hazardous-waste transporter, obtained the contract.
- Petroclean identified an initial disposal facility, but its requirements were cost-prohibitive.
- Petroclean investigated alternatives, identified two viable disposal options, gathered information, and presented the options to Tippins.
- Tippins chose the Four County Landfill in Indiana; Petroclean transported and disposed of the EAF dust there.
- The EPA and Indiana environmental authorities initiated remediation at Four County due to contamination, and the EPA notified Tippins that it was a potentially responsible party for response costs.
- Tippins and International Mill Construction, Inc. sued USX Corp. and Petroclean for contribution to CERCLA response costs.
- The district court held USX liable as an arranger and Petroclean liable as a transporter under CERCLA § 107(a)(4), and allocated response costs among the parties.

## Issues

1. Under CERCLA § 107(a)(4), can a transporter be liable for response costs when it did not make the final decision selecting the disposal facility but actively participated in the selection process?
2. Does “selected by such person” in § 107(a)(4) require proof that the transporter made the ultimate, formal site-selection decision?

## Decision

- The Third Circuit affirmed the imposition of transporter liability on Petroclean under CERCLA § 107(a)(4).
- The court rejected the view that transporter liability requires the transporter to have made the ultimate site-selection decision.
- The court also rejected the view that any substantial involvement connected to transport is enough, without regard to the nature of the transporter’s role in choosing the site.
- The court held that Petroclean’s investigation, screening, and presentation of disposal options constituted sufficient engagement in the selection process to support liability, even though Tippins made the final choice of Four County.

## Legal Principles

- CERCLA § 107(a)(4) imposes liability on a person who accepts hazardous substances for transport to disposal or treatment facilities “selected by such person,” from which a release or threatened release causes response costs.
- A transporter does not “select” a disposal site merely by following the contracting party’s directions as to destination.
- Transporter liability may attach where the transporter is so engaged in the selection process that imposing liability serves CERCLA’s objective of placing cleanup costs on those actively involved in hazardous-waste disposal decisions.
- “Selection” under § 107(a)(4) may be shared; the statutory requirement can be satisfied by substantive participation in narrowing and presenting viable disposal options, even if another party makes the final, formal selection.

## Conclusion

The Third Circuit held that CERCLA transporter liability is determined by the transporter’s substantive role in the disposal-site selection process, and affirmed liability where the transporter actively investigated and presented viable disposal options that led to the chosen site.


Tippins Inc. v. USX Corp., 37 F.3d 87 (3d Cir. 1994)