FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff,

and

DEPARTMENT OF TOXIC SUBSTANCES

CONTROL, STATE OF CALIFORNIA,

Plaintiff-Appellant,

No. 03-17125

v.

D.C. Nos. BURLINGTON NORTHERN & SANTA  CV-92-05068-OWW FE RAILWAY COMPANY, as CV-96-06226-OWW successor in interest to the CV-96-06228-OWW Atchison, Topeka & Santa Fe

Railway Company; UNION PACIFIC

TRANSPORTATION COMPANY, as

successor in interest to the

Southern Pacific Transportation

Company; SHELL OIL COMPANY,

Defendants-Appellees. 

11287
UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

and

DEPARTMENT OF TOXIC SUBSTANCES

CONTROL, STATE OF CALIFORNIA,

Plaintiff,

v. No. 03-17153

BURLINGTON NORTHERN & SANTA  D.C. No. FE RAILWAY COMPANY, as CV-92-05068-OWW successor in interest to the

Atchison, Topeka & Santa Fe

Railway Company; UNION PACIFIC

TRANSPORTATION COMPANY, as

successor in interest to the

Southern Pacific Transportation

Company; SHELL OIL COMPANY,

Defendants-Appellees. 

11288 DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN
UNITED STATES OF AMERICA; 

DEPARTMENT OF TOXIC SUBSTANCES

CONTROL, STATE OF CALIFORNIA,

Plaintiffs-Appellees,

v.

No. 03-17169 BURLINGTON NORTHERN & SANTA

FE RAILWAY COMPANY, as D.C. No.

successor in interest to the CV-92-05068-OWW

Atchison, Topeka & Santa Fe  ORDER

Railway Company; UNION PACIFIC AMENDING

TRANSPORTATION COMPANY, as OPINION AND

successor in interest to the AMENDED

Southern Pacific Transportation OPINION

Company,

Defendants,

and

SHELL OIL COMPANY,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of California

Oliver W. Wanger, District Judge, Presiding

Argued and Submitted

September 12, 2005—San Francisco, California

Submission Withdrawn September 14, 2005

Resubmitted March 16, 2007

Filed March 16, 2007

Amended September 4, 2007

Before: Betty B. Fletcher, John R. Gibson,* and

Marsha S. Berzon, Circuit Judges.

*The Honorable John R. Gibson, Senior United States Circuit Judge for

the Eighth Circuit, sitting by designation. 

DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN 11289
Opinion by Judge Berzon

11290 DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN
COUNSEL

Aaron P. Avila, Department of Justice, Washington, D.C.,

argued the case for appellant EPA; Kelly Johnson, Acting

Assistant Attorney General, David C. Shilton, James R.

MacAyeal, and John T. Stahr, Department of Justice, Environment and Natural Resources Division, Washington, D.C.,

Allyn Stern, Office of Regional Counsel, EPA, were on the

briefs for appellant EPA. 

Reed Sato, Deputy Attorney General of the State of California, Sacramento, California, argued the case and was on the

briefs for appellant California Department of Toxic Substances Control; Bill Lockyer, Attorney General of the State

of California, Tom Greene, Chief Assistant Attorney General,

and Theodora P. Berger, Senior Assistant Attorney General,

Sacramento, California, were on the briefs for appellant California Department of Toxic Substances Control. 

John F. Barg, San Francisco, California, argued the case for

appellees Burlington Northern & Santa Fe Railway Company

and Union Pacific Transportation Company; Marc A. Zeppe11294 DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN
tello, San Francisco, California, was on the briefs for the

appellees. 

Michael K. Johnson, San Francisco, California, argued the

case for appellee-cross-appellant Shell Oil Company; Randall

J. Heldt, Shell Oil Company, Houston, Texas, was on the

briefs for appellee-cross-appellant Shell.

ORDER

The opinion filed March 16, 2007, slip op. 3209, and published at 479 F.3d 1113 (9th Cir. 2007) is hereby amended as

follows: 

1. Replace <the State of California> with <the defendant oil

companies> in the second sentence of footnote 30 on

page 3250 of the slip opinion, 479 F.3d at 1139.

2. In the last paragraph of the opinion, on page 3256 of the

slip opinion, 479 F.3d. at 1142, replace <The Railroads

. . . the harm at the Arvin site.> with <The Railroads . . .

the harm at the Arvin site, except with regard to the socalled “Dinoseb hot spot.”

32> 

3. Add the following text as footnote 32: <The district court

found that the “Dinoseb hot spot” was a discrete area

contaminated by Dinoseb (a Dow product) as the result

of a major spill in 1983, that Shell did not manufacture

or ship that product, and that Shell thus bore no responsibility for any part of the $1.3 million cost of cleaning up

this discrete spill. The governments did not challenge this

finding on appeal. That finding therefore stands, and the

district court should not include the $1.3 million dollar

cleanup costs for the “Dinoseb hot spot” in the calculation of Shell’s liability.> 

DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN 11295
The petition for rehearing and petition for rehearing en

banc remain pending.

OPINION

BERZON, Circuit Judge: 

A now-defunct company, Brown & Bryant, Inc. (B&B),

owned and operated a facility at which toxic chemicals were

stored and distributed. Part of the land on which the chemical

operation was located was owned by two railroad companies

(the Railroads), and some of the chemicals used by B&B were

supplied and delivered to the facility by Shell Oil Company

(Shell). Because toxic chemicals remaining at the facility

threatened groundwater and may continue to do so in the

future, the United States Environmental Protection Agency

(EPA) and the State of California’s Department of Toxic Substances Control (DTSC) spent a considerable amount of

money to clean up the site and may need to spend more in the

future. The two agencies sought to recover these response

costs under the Comprehensive Environmental Response,

Compensation, and Liability Act, 42 U.S.C. §§ 9601 9675,1

(CERCLA), but the district court held the Railroads and Shell

liable for only a minor portion of the total cleanup costs. B&B

was defunct by that time, and so could not contribute to the

cleanup costs. The agencies were thus left holding the bag for

a great deal of money. 

Seeking to hold the Railroads and Shell jointly and severally liable for the entire judgment, the agencies appeal. Shell

cross-appeals, claiming that it was not an “arranger” under

CERCLA, § 9607(a)(3), and therefore is not a party on whom

any cleanup liability can be imposed. We reverse the portion

of the judgment that declined to impose full joint and several

1Unless otherwise noted, all statutory citations are to Title 42 and the

2000 edition of the U.S. Code. 

11296 DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN
liability on the Railroads and Shell and affirm the portion of

the judgment that imposed liability on Shell as an arranger.2

I. Background

Beginning in 1960, B&B operated an agricultural chemical

storage and distribution facility in Arvin, California on a 3.8-

acre parcel of land (the B&B parcel). In 1975, B&B’s agricultural chemical distribution business outgrew that parcel, and

B&B began leasing a 0.9-acre parcel of land adjacent to its

own parcel. The 0.9-acre parcel (the Railroad parcel) was

jointly owned by the Railroads — Atchison, Topeka & Santa

Fe Railroad Co., the predecessor in interest to Burlington

Northern & Santa Fe Railway Co., and Southern Pacific

Transportation Co., the predecessor in interest to Union

Pacific Transportation Co. B&B used the Railroad parcel

principally to park fertilizer rigs. 

The Railroad parcel comprised the western portion of the

Arvin site.3 Directly to the east of the Railroad parcel sat

B&B’s warehouse. The Railroad parcel, like the rest of the

Arvin site, was graded toward a drainage pond on the B&B

parcel. 

B&B used the Railroad parcel as an integral part of its

overall agricultural chemical facility. From its facility B&B

sold local growers agricultural chemical products produced by

various manufacturers. In particular, B&B purchased,

received delivery of, stored on the Arvin site, and distributed

two Shell-produced agricultural chemicals: the soil fumigants

2The Railroads have requested judicial notice of the EPA proceedings

concerning their suit for reimbursement from the government and of the

stay of those proceedings pending the determination of joint and several

liability in this case. These proceedings do not “ ‘have a direct relation to

matters at issue.’ ” United States ex rel. Robinson Rancheria Citizens

Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (citation omitted). We therefore deny the Railroads’ request for judicial notice. 

3We refer to the B&B and Railroad parcels together as the “Arvin site.”

DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN 11297
D-D and Nemagon. D-D and Nemagon — members of a class

of chemicals called nematocides — are designed to kill nematodes, microscopic worms that attack the roots of crops.

Nematocides work by penetrating the soil and then dispersing.

B&B also stored on the Arvin site dinitro (dinoseb) weed

killer, purchased from Dow Chemical Company. 

During the 1960s and 1970s, Shell strongly encouraged its

customers, including B&B, to purchase D-D in bulk, a policy

requiring customers to maintain large storage tanks. Shell

delivered the bulk D-D to B&B “FOB Destination” via common carrier trucks.4

 When the trucks carrying D-D arrived at

the Arvin facility, the contents of the trucks were transferred

to B&B’s large tanks by hoses. The process was quite messy,

with frequent spills. 

To apply D-D to growers’ fields, B&B used rigs loaded

with the chemical. The rigs were stored on the Railroad parcel, as were bulk containers of dinoseb and, occasionally,

empty fertilizer cans. Chemicals also reached the Railroad

parcel through water flow from the B&B parcel. 

In 1978, after a windstorm destroyed the bulk D-D storage

tank used to store Shell D-D, B&B began using converted

stainless steel milk trailers to store the bulk D-D. The chemical, which is highly corrosive and eats through steel, can

cause leakage in steel tanks only a few years old. B&B kept

these leak-prone tanks all over the Arvin facility, including on

the Railroad parcel. 

D-D, when it leaks, evaporates quickly if exposed to air but

is highly soluble in water. When D-D infiltrates the ground,

it moves through the soil by molecular diffusion, dispersing

4

“FOB Destination” means “free on board” and “when the term is

F.O.B. the place of destination, the seller must at his own expense and risk

transport the goods to that place and there tender delivery of them.”

U.C.C. § 2-319(1)(b) (2003). 

11298 DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN
in all directions. A slight pull from gravity, however, makes

the chemical a bit more likely to flow downward into groundwater than laterally through the soil. Dinoseb, similarly, tends

to move to the groundwater table if there is water movement

in that direction. No toxic chemicals can reach the groundwater level currently used as a source of drinking water because

of an impermeable layer of soil. The next highest level, however, is a potential source of drinking water, and contamination can reach that level. 

After more than twenty years of leakage and dissemination

of hazardous materials, the DTSC in 1983 found B&B in violation of several hazardous waste laws. The EPA investigated

separately and found evidence of substantial soil and groundwater contamination at B&B’s Arvin facility. The EPA and

DTSC (the Governments) began to remedy the contamination

pursuant to their cleanup authority under CERCLA, incurring

substantial remediation costs. In 1991, the EPA ordered the

Railroads to take specific preventative steps on the Railroad

parcel, including installing groundwater monitoring wells.

None of the contamination requiring immediate remediation

was on the Railroad parcel. 

In 1992, the Railroads filed an action against B&B and certain of its principals for contribution for costs incurred in the

EPA-ordered cleanup. Four years later, the Governments each

filed CERCLA actions against B&B, the Railroads, and Shell

for reimbursement of their investigation and cleanup costs.5

The district court consolidated the three cases and, after a

twenty-seven day bench trial, issued an exceedingly detailed

185-page Findings of Fact and Conclusions of Law, thereafter

slightly amended.6

5The relevant statutory sections covering contribution and reimbursement actions, § 9613(f) and § 9607, are quoted later in this opinion. 

6Quotations from and discussion of the district court’s ruling in this

opinion concern the district court’s Amended Findings of Fact and Conclusions of Law unless otherwise noted. 

DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN 11299
The district court found the Railroads liable as owners of

the Arvin facility and as persons who “at the time of disposal

of any hazardous substance owned or operated any facility at

which such hazardous substances were disposed of.

§ 9607(a)(1), (2). Shell was held liable as a “person who . . .

arranged for disposal . . . of hazardous substances.”

§ 9607(a)(3). Turning to whether the Railroads and Shell were

liable for all or only a portion of the cleanup costs, the district

court found that the harm to the Arvin site was capable of

apportionment and proceeded to apportion it. The Railroads

and Shell had, by acknowledging no liability at all, taken what

the district court termed a “ ‘scorched earth,’ all-or-nothing

approach to liability,” and so provided little assistance on the

apportionment issue. The district court nonetheless proceeded

to “perform the equitable apportionment analysis demanded

by the circumstances of the case.” 

For the Railroads, the court multiplied three proportions:

(1) the percentage of the overall site that was owned by the

Railroads, 19.1%;7 (2) the percentage of time that the Railroads leased the parcel in relation to B&B’s total operations,

45%;8 and (3) the fraction of hazardous products attributable

to the Railroad parcel, 66%.9 This calculation resulted in a

determination of 6% liability. Then, to account for any “calculation errors,” the district court assumed 50% error and

raised the Railroads’ proportion of the total liability to 9%. 

7

0.9 acres ÷ 4.7 acres = 0.191 (19.1%). 

8B&B began operations in 1960. The Railroad parcel was leased starting in 1975. In 1988, B&B ceased its operations at Arvin. Thus, the Railroad parcel was part of the Arvin site for 13 of 29 years, or 45% of the

time B&B operated the facility. 

9There were three pertinent chemicals: D-D, Nemagon, and dinoseb.

The district court found that although there was some D-D contamination

attributable to the Railroad parcel, that “slight contamination is offset by

the fact that the [Arvin] Site is graded towards the southeast pond [on the

B&B parcel] and the levels of chemical contamination on the B&B parcel

are substantially higher than the reported detections on the Railroad parcel.” On that reasoning, the district court removed all D-D from the equation. 

11300 DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN
For Shell, the district court approximated the percentages

of leakage from various activities attributable to Shell and

multiplied them together to set Shell’s proportion of the total

liability at 6%.10 Shell was also assigned, in the contribution

action, 6% of the costs incurred by the Railroads in their

cleanup effort.11

DTSC and the EPA timely appealed the district court’s

judgment. Shell timely cross-appealed the finding that it was

liable as an “arranger” under CERCLA. 

II. Standards of Liability Under CERCLA

[1] CERCLA was enacted in 1980 to provide for effective

responses to health and environmental threats posed by hazardous waste sites. See generally Mardan Corp. v. C.G.C.

Music, Ltd., 804 F.2d 1454, 1455 (9th Cir. 1986). Under

CERCLA, state and federal governments can first begin the

cleanup of toxic areas, see § 9604(a)-(d), and then sue potentially responsible parties (PRPs) for reimbursement, see

§ 9607(a). A key purpose of this scheme is “shift[ing] the cost

of cleaning up environmental harm from the taxpayers to the

parties who benefitted from the disposal of the wastes that

caused the harm.” EPA v. Sequa Corp. (In the Matter of Bell

Petroleum Servs., Inc.), 3 F.3d 889, 897 (5th Cir. 1993) (citing United States v. Chem-Dyne Corp., 572 F. Supp. 802,

805-06 (S.D. Ohio 1983)). 

[2] In accord with this purpose, CERCLA is a “super-strict”

liability statute. Under its provisions, parties can be liable for

cleaning up toxic chemicals if they fit into one or more of the

four PRP categories set out in § 9607(a): 

10B&B, albeit insolvent, was assigned 100% joint and several liability.

11The Railroads do not challenge the percentage of liability assigned to

Shell. 

DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN 11301
(1) the owner and operator of . . . a facility, 

(2) any person who at the time of disposal of any

hazardous substance owned or operated any facility

at which such hazardous substances were disposed

of, 

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or

arranged with a transporter for transport for disposal

or treatment, of hazardous substances owned or possessed by such person . . . , and 

(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities . . . . 

A “facility” is defined in § 9601(9)(B) as “any site or area

where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does

not include any consumer product in consumer use or any vessel.”12 The statute’s basic liability provision, in turn, provides

that “subject only to the defenses set forth in subsection (b)

of this section [PRPs shall be liable for] — (A) all costs of

removal or remedial action incurred by the United States

Government or a State or an Indian tribe not inconsistent with

the national contingency plan . . . .” § 9607(a). Thus, PRPs

can be responsible for the costs of cleaning up hazardous

waste sites without any finding that they were negligent or

that they caused the contamination, unless they can make out

the third-party defense set out in § 9607(b)(3).13

12The district court found that the entire Arvin site, including the Railroad parcel, was a single facility for the purposes of § 9607. The Railroads

do not appeal that finding. 

13Section 9607(b) reads: 

There shall be no liability under subsection (a) of this section

for a person otherwise liable who can establish by a preponder11302 DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN
A. Validity of Apportionment 

[3] CERCLA does not address the question whether, as

between PRPs who are liable for cleanup costs, liability is

joint and several — meaning that each PRP responsible for all

cleanup costs at a facility is liable for such costs — or severable — meaning that cleanup costs at a single facility can be

apportioned among PRPs on some basis. 

In this circuit, liability is joint and several when the harm

is indivisible. Fireman’s Fund Ins. Co. v. City of Lodi, 302

F.3d 928, 945 (9th Cir. 2002); see also Carson Harbor Vill.,

Ltd. v. Unocal Corp., 270 F.3d 863, 871 (9th Cir. 2001) (en

banc). Thus, a defendant “may be held fully liable for the

entire clean-up costs at a site despite the fact that the defendant PRP was in fact responsible for only a fraction of the

contamination.” Fireman’s Fund, 302 F.3d at 945. 

We have also referred in general terms to the possibility of

ance of the evidence that the release or threat of release of a hazardous substance and the damages resulting therefrom were

caused solely by— 

. . . 

(3) an act or omission of a third party other than an employee

or agent of the defendant, or than one whose act or omission

occurs in connection with a contractual relationship, existing

directly or indirectly, with the defendant (except where the sole

contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail), if the defendant

establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned,

taking into consideration the characteristics of such hazardous

substance, in light of all relevant facts and circumstances, and (b)

he took precautions against foreseeable acts or omissions of any

such third party and the consequences that could foreseeably

result from such acts or omissions. 

(Emphasis added). Section 9607(b) also provides defenses for “an act of

God” and “an act of war.” § 9607(b)(1), (2). 

DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN 11303
apportioning liability. See id. (noting the use of “federal common law principles” of apportionment); Carson Harbor Vill.,

270 F.3d at 871 (stating that once liability has been found,

“the defendant may avoid joint and several liability by establishing that it caused only a divisible portion of the harm”).

Yet, in none of our cases has there been an actual dispute

regarding whether liability should be apportioned among the

liable PRPs.14 This case squarely presents that question. To

determine whether the district court was correct to apportion

liability in this case, we thus must address, initially, the general propriety of severability.15 In line with every circuit that

has addressed the issue, we hold that apportionment is available at the liability stage. 

14The major cases addressing division of PRP liability under CERCLA

in the Ninth Circuit instead have been contribution cases among PRPs,

decided after joint liability was established, see, e.g., Carson Harbor Vill.,

270 F.3d at 871; Pinal Creek Group v. Newmont Mining Corp., 118 F.3d

1298, 1301 (9th Cir. 1997), or have addressed a different issue entirely,

see, e.g., Fireman’s Fund, 302 F.3d at 945 (analyzing the possibility that

CERCLA preempts state laws). 

15DTSC argues that the apportionment question is not properly before

us because it was not properly raised in the pretrial order, but we do not

agree. To preserve a claim, a party must put forward a position in the pretrial statement in a manner sufficient to put the opposing party on notice

and allow the trial court to consider its merits. See Cripe v. City of San

Jose, 261 F.3d 877, 886 n.9 (9th Cir. 2001) (refusing to hold that defendants had waived an affirmative defense by mislabeling it, because the

court and plaintiffs were on notice of the real issue); Arizona v. Components Inc., 66 F.3d 213, 217 (9th Cir. 1995) (noting that argument must

be raised sufficiently for the court to rule on it). Notice to the district court

is not an issue in this case, as the final decision addresses apportionment.

While the Governments claim to have been unaware that they needed to

address the apportionment issue, their assertion is not supported by the

record. Both the Railroads and Shell directly addressed the apportionment

issue in their pretrial orders. The Railroads “den[ied] that they are jointly

and severally liable for the response costs claimed by the Government”

but argued that, if liable, they should only be responsible for that fraction

of the total mass of groundwater contamination proven to be traceable to

their parcel. Shell noted that joint and several liability is not mandatory

and cited cases regarding apportionment. As a result, we conclude that the

issue of apportioning liability was not waived and is properly before us.

11304 DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN
In so ruling we rely, as have the other circuits that have

analyzed the issue, on a seminal case decided in 1983 in the

Southern District of Ohio, Chem-Dyne. After reviewing the

evolution of the statute, Chem-Dyne concluded that liability

under § 9607(a) may be joint and several even though the

statute does not expressly so provide. Chem-Dyne, 572 F.

Supp. at 810. Suggesting that Congress intended to leave the

matter to the usual common law rules, adjusted to CERCLA

as necessary, Chem-Dyne held that courts should look to the

Restatement (Second) of Torts, as well as to other indications

of federal common law, for the principles of joint and several

liability applicable under CERCLA. See id. at 809-10. Later,

circuit court cases endorsed this approach. See Chem-Nuclear

Sys., Inc. v. Bush, 292 F.3d 254, 259-60 (D.C. Cir. 2002);

United States v. Hercules, Inc., 247 F.3d 706, 717 (8th Cir.

2001); United States v. Township of Brighton, 153 F.3d 307,

318 (6th Cir. 1998); Bell Petroleum, 3 F.3d at 895-96; United

States v. Alcan Aluminum Corp. (Alcan-PAS), 990 F.2d 711,

721-22 (2d Cir. 1993); United States v. Alcan Aluminum

Corp. (Alcan-Butler), 964 F.2d 252, 268-69 (3d Cir. 1992);

United States v. Monsanto Co., 858 F.2d 160, 171-72 (4th Cir.

1988). 

[4] As Chem-Dyne persuasively recounts, the history of

§ 107(a) of CERCLA, 42 U.S.C. § 9607(a), indicates that

although Congress declined to mandate joint and several liability, it did not intend by doing so “a rejection of joint and

severable liability.” Chem-Dyne, 572 F. Supp. at 808. Instead,

recognizing the difficulties inherent “ ‘in prescribing in statutory terms liability standards which will be applicable in individual cases,’ ” id. at 806 (quoting 126 CONG. REC. S14964

(Nov. 24, 1980) (remarks of Sen. Randolph)), Congress meant

“to have the scope of liability determined under common law

principles, where a court performing a case by case evaluation

of the complex factual scenarios associated . . . will assess the

propriety of applying joint and several liability on an individual basis,” id. at 808. We agree with this account of ConDEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN 11305
gress’s intent and hold that apportionment can be appropriate

under CERCLA.

B. Standards for Apportionment 

Because we hold that apportionment is available at the liability stage in CERCLA cases, we must determine the appropriate standards for determining when apportionment is

available and, when it is, how to ascertain the proper division

of damages among defendants. Again, we draw on the experience of our sister circuits. 

[5] The circuits that have addressed these questions have

looked to common law principles of tort in general, and the

Restatement in particular, for guidance as to when and how

to impose joint and several liability under § 9607(a). We

agree that this approach is proper and adopt it here. We also

follow Chem-Dyne and all of the courts of appeals that have

addressed the question in holding that the resulting standard

must be a uniform federal rule. See, e.g., Aviall Servs., Inc. v.

Cooper Indus., Inc., 312 F.3d 677, 684 (5th Cir. 2002) (holding that apportionment of CERCLA liability “is . . . a matter

of federal common law”), reversed on other grounds by 543

U.S. 157 (2004); United States v. Burlington N. R. Co., 200

F.3d 679, 697 (10th Cir. 1999) (same); Township of Brighton,

153 F.3d at 329 (same); Monsanto Co., 858 F.2d at 172

(same). As Chem-Dyne noted, the legislative history of CERCLA supports such an approach, as does its policy favoring

national uniformity so as to discourage “illegal dumping in

states with lax liability laws.” Chem-Dyne, 572 F. Supp. at 809.16

16The parties here have assumed that the apportionment standard must

be one of uniform federal common law. As stated above, every federal circuit to address the issue, including those decided after O’Melveny &

Myers v. FDIC, 512 U.S. 79 (1994), and Atherton v. FDIC, 519 U.S. 213

(1997), has shared that understanding. Although Atchison, Topeka &

Santa Fe Ry. Co. v. Brown & Bryant, Inc., 159 F.3d 358, 362-64 (9th Cir.

1997), questioned whether O’Melveny & Myers and Atherton upset Ninth

11306 DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN
[6] The question, then, is what the uniform federal law

should be. Once again, all the circuits that have addressed this

question have followed Chem-Dyne, holding that the appropriate source for a common law rule of apportionment is Section 433A of the Restatement of Torts. See Hercules, 247

F.3d at 716 & n.9, 717 (noting that courts support the divisibility doctrine as borrowed from the Restatement); Bell Petroleum, 3 F.3d at 895 (relying on the Restatement); Chem-Dyne,

572 F. Supp. at 810 (establishing this method). We concur in

this conclusion generally, although we borrow from the

Restatement with two important caveats, as there are two

areas where the Restatement approach is a somewhat poor fit

and requires slight modifications to ensure that our approach

comports with the liability and remediation scheme of CERCLA. First, there are important distinctions between causation as conceived in the Restatement and causation in the

context of CERCLA. We describe these and import a nexus

concept that relates to the particular PRP provisions at issue.

And second, the concept of “harm” in the Restatement as

actual injury does not correspond easily to CERCLA’s priorities. We conclude instead that contamination and the cost of

remediation are both relevant for the “harm” analysis under

CERCLA. The Restatement’s fundamental reliance on objective rather than equitable considerations, however, does comport well with the “super-strict” nature of CERCLA and with

the development of the statute, leaving us to conclude that

equitable considerations have no role at this stage in the applicable standards. 

Circuit law with regard to the adoption of uniform federal common law

regarding successor liability under CERCLA, very different considerations

govern with respect to apportionment. In Atchinson, resolution of the

question of successor liability would resolve who was liable under

CERLA, an inquiry with roots in state corporate law. Here, the inquiry

diverges from state law completely. As we explain in this section, the

“super-strict” nature of CERCLA liability is sui generis, so there is no

state law directly applicable. The resulting apportionment analysis therefore requires a similarly unique set of considerations, married to the statute’s functions and purpose. 

DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN 11307
1. Causation

[7] Section 433A of the Restatement allows for apportionment of damages where “(a) there are distinct harms,[17] or (b)

there is a reasonable basis for determining the contribution of

each cause to a single harm.”

18 RESTATEMENT (SECOND) OF

TORTS § 433A(1) (1965) (emphasis added). CERCLA, however, does not require causation as a prerequisite to liability

(except with regard to the third-party defense, see § 9607(b),

not at issue here). Nonetheless, most of the leading cases on

joint and several liability under CERCLA have addressed

divisibility under § 433A(1)(b) and thereby incorporated a

modified concept of causation.19 See, e.g., Bell Petroleum, 3

17Comment b of section 433A notes: 

Distinct harms. There are other results which, by their nature, are

more capable of apportionment. If two defendants independently

shoot the plaintiff at the same time, and one wounds him in the

arm and the other in the leg, the ultimate result may be a badly

damaged plaintiff in the hospital, but it is still possible, as a logical, reasonable, and practical matter, to regard the two wounds as

separate injuries, and as distinct wrongs. The mere coincidence

in time does not make the two wounds a single harm, or the conduct of the two defendants one tort. There may be difficulty in

the apportionment of some elements of damages, such as the pain

and suffering resulting from the two wounds, or the medical

expenses, but this does not mean that one defendant must be liable for the distinct harm inflicted by the other. 

18Comment d of section 433A notes: 

Divisible harm. There are other kinds of harm which, while not

so clearly marked out as severable into distinct parts, are still

capable of division upon a reasonable and rational basis, and of

fair apportionment among the causes responsible. Thus where the

cattle of two or more owners trespass upon the plaintiff’s land

and destroy his crop, the aggregate harm is a lost crop, but it may

nevertheless be apportioned among the owners of the cattle, on

the basis of the number owned by each, and the reasonable

assumption that the respective harm done is proportionate to that

number. Where such apportionment can be made without injustice to any of the parties, the court may require it to be made. 

19The sections of the Restatement that courts have used to establish the

rules of joint and several liability under CERCLA are found in the negli11308 DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN
F.3d at 902-03; Monsanto, 858 F.2d at 172; Chem-Dyne, 572

F. Supp. at 810. 

Notably, these cases often dealt with simpler facts than

those we confront. Chem-Dyne, for instance, assumed a case

quite different from this one. There, the court stated that

“[t]ypically . . . there will be numerous hazardous substance

generators or transporters who have disposed of wastes at a

particular site.” 572 F. Supp. at 810. It was in that context —

that is, where the question was apportionment among defendants who all disposed of wastes themselves — that ChemDyne determined that courts could follow the divisibility principles of the Restatement and remain true to CERCLA. In a

situation in which the several defendants are all polluters

themselves, divisibility under the Restatement standard is

indeed a relatively straightforward analysis, and one in which

causation concepts are useful. If the court can estimate with

some confidence the amount of waste that each defendant disposed of and has a basis for determining that the extent of

contamination of the site is proportional to the amount of

waste disposed of, then the Restatement approach to apportionment works nicely. 

The situation here is different.20 The three “responsible”

gence division of the Restatement. As these courts recognize, CERCLA is

a strict liability statute. See, e.g., Hercules, 247 F.3d at 716; Township of

Brighton, 153 F.3d at 318. Because there is no comparable divisibility rule

in the strict liability portion of the Second Restatement, courts have

adapted the negligence rules to strict liability by declining to rely on the

portion of the Restatement section that places an initial burden as to causation on the plaintiff. Compare Hercules, 247 F.3d at 717, and Bell Petroleum, 3 F.3d at 896, with RESTATEMENT (SECOND) OF TORTS § 433B(1). 

20One commentator has noted that trying to apply the Restatement to

CERCLA in most cases is like “pushing a round peg through a square

hole. Traditional tort law principles falter in the CERCLA context because

CERCLA is so unlike a typical tort law cause of action.” Lynda J. Oswald,

New Directions in Joint and Several Liability Under CERCLA?, 28 U.C.

DAVIS L. REV. 299, 360 (1995). 

DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN 11309
parties are: the now-insolvent majority owner and operator of

the site; the mostly absentee landlord of a portion of the site;

and a seller of chemicals shipped to and stored at the site.

Each party had an entirely different role in the contamination

process, with overlapping effects, and not all “caused” contamination in any meaningful sense. 

[8] Most notably, PRP status premised on ownership of a

facility does not require any involvement in the disposal of

hazardous substances. Thus, to speak of a PRP “causing” contamination of its land simply by owning land on which someone else disposes of hazardous wastes is to indulge in

metaphor. At the same time, to allow CERCLA defendants,

especially landowner PRPs, to prove through traditional causation analysis that they were not entirely liable would be to

undermine the premise on which the statute designated them

as PRPs to begin with. CERCLA requires a connection — for

example, that the PRP be a landowner “at the time of disposal,” see § 9607(a)(2) — but no further causation. We therefore adjust the application of the Restatement principles to the

current circumstance by abjuring the traditional “causation”

principles and substituting a nexus concept that depends upon

the particular PRP provision applicable. Where, as here, the

pertinent PRP status is as landowner, the landowner can

establish divisibility only by demonstrating that portions of

the contamination are in no respect traceable to the portion of

the facility that the landowner owned at the time of the disposal. The arranger nexus is more straightforward, with a

focus not on ownership of the facility but rather on the relevant, arranged disposals in light of other contamination at the

facility. 

2. Harm 

[9] A second difficulty that results from relying on tort

principles in a scheme not based on tort law concerns the

application of the term “harm,” used in the Restatement, as

applied to CERCLA. See RESTATEMENT (SECOND) OF TORTS

11310 DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN
§ 433A. The CERCLA cost recovery section does not focus

on “harm,” but rather on “costs of removal or remedial

action” and “necessary costs of response.”

21 § 9607(a). Thus,

when applying the Restatement in the context of CERCLA,

the question becomes: What is the “harm” that we are

attempting to divide? 

There are three possible kinds of “harm” in actions for

remediation costs under CERCLA: the initial disposal, the

resulting contamination, and the costs of remediating the contamination. Actual injury to individuals or to property, the

usual “harms” in a tort suit, are not a pertinent consideration;

the statute is concerned with averting future injury by

remediating contamination, not with compensation for past

injuries. 

If the harm were the disposal, then divisibility based on

volume of discharge by operators or by parcel would always

make sense, because disposal occurs in specific amounts at

specific places. If the harm were contamination, then some

attempt would have to be made either to justify a direct correlation between disposal and contamination under the specific

circumstances or to separate out the leakage that remained as

contamination from leakage that either evaporated, was adequately diluted, or for other reasons did not remain on the

property in toxic form.22 If the harm is the cost of remediation,

then divisibility would have to be based on the pro rata cost

of cleaning up each defendant’s contribution to the contami21The statute also mentions “damages for injury to, destruction of, or

loss of natural resources” and “costs of any health assessment or health

effects study.” § 9607(a)(C), (D). These provisions may be informative

with regard to the nature of the harm in other cases but are not here applicable. 

22In many instances, of course — as in Chem-Dyne — the various polluters will dispose of the same substance in the same location, so there will

be a basis for assuming that each polluter’s pro rata share of the hazardous

waste disposed of and of the resulting contamination is the same. See also

Bell Petroleum, 3 F.3d at 903. 

DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN 11311
nation. That pro rata cost will sometimes differ from the proportion of contamination caused by each defendant, because

the cost of removing contamination can vary with geographical considerations, degree of toxicity, the means of extraction

used for different toxic substances, or other factors. 

[10] In light of a CERCLA liability suit’s central purpose

— recovering the cost of eradicating contamination — we

conclude that it is most useful for purposes of determining

divisibility to view the “harm” under CERCLA as the contamination traceable to each defendant. Disposal itself is not

the focus of the statute, unless it results in contamination. And

the cost of cleaning up the contamination is most analogous

to the damages recovered in a tort suit, not to the injury on

which liability is based.23

3. Equity 

[11] Because this case is one in which the harms are not

distinct, apportionment must be under Restatement

§ 433A(1)(b) if it is to be allowed at all. That is, there must

be a reasonable basis for determining the contribution of each

PRP to the harm. While nothing in the statute directly

addresses the question whether equitable factors are appropriate for purposes of apportioning liability among joint tortfeasors, all the other circuits that have addressed the issue have

held that they are not. We again follow their lead. 

Although CERCLA is not explicit on this issue, there is a

statutory provision concerning the separate question of contri23The cost of cleanup of different toxic substances or in different areas

of the facility will often be a useful measure of the proportion of the pertinent contamination allocable to each defendant. That cost will depend

upon factors such as which contamination was serious enough to merit

remediation and how thoroughly the soil was contaminated in various

areas. Thus, the “harm” allocation analysis may in some instances usefully

focus initially on the proportion of costs associated with remedying various aspects of the contamination. 

11312 DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN
bution actions among PRPs once liability to the plaintiffs

seeking to recover cleanup costs has been determined. That

provision, § 9613(f), added to CERCLA in 1986, is silent as

to initial divisibility. It only describes, quite generally, the

considerations applicable in a contribution action for determining whether one PRP can collect from another a portion

of the costs for which it has been held liable: “In resolving

contribution claims, the court may allocate response costs

among liable parties using such equitable factors as the court

determines are appropriate.” § 9613(f) (emphasis added).24 In

contrast, § 433A(1)(b) of the Restatement and the appended

commentary concerning divisibility are silent as to equitable

considerations.25

Although, as noted, this circuit heretofore has not addressed

divisibility analysis, the implication from our cases deciding

§ 9613(f) contribution issues is that the proper time to focus

on such factors is at the contribution phase, not the liability

phase. See, e.g., Carson Harbor Vill., 270 F.3d at 871 (noting

that the “contribution provision aims to avoid a variety of scenarios by which a comparatively innocent PRP might be on

the hook for the entirety of a large cleanup bill”); Pinal Creek,

118 F.3d at 1301 (“A PRP’s contribution liability will corre24Among the equitable factors used in CERCLA contribution cases are

the so-called “Gore factors.” See Hercules, 247 F.3d at 718. Those factors

are derived from the amendment that then-Representative Gore introduced

in 1980 to alleviate the harshness of mandatory apportionment, which at

that time was a part of the bill. See 126 CONG. REC. 26782 (1980) (statement of Rep. Gore). Although these factors are appropriate in contribution

cases, they are not, for the reasons suggested in the text, appropriate considerations at the liability stage. 

25The only mention of equity in Restatement § 433A is in comment h,

regarding “[e]xceptional cases.” Comment h suggests that in cases of

insolvent defendants, when an “innocent plaintiff would be forced to bear

the share of the loss due to the defendant from whom he could not collect

damages,” courts may refuse to allocate harm to avoid “injustice to the

plaintiff.” Because we determine that there is no reasonable basis for

apportioning the defendants’ harm, we do not reach the question of

whether the considerations of comment h are applicable here. 

DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN 11313
spond to that party’s equitable share of the total liability and

will not be joint and several.”). 

Other circuits have been careful to delineate the difference

between the equitable considerations pertinent under

§ 9613(f) and the objective considerations pertinent under

§ 9607(a). See Hercules, 247 F.3d at 718; Township of Brighton, 153 F.3d at 318; Bell Petroleum, 3 F.3d at 901. As the

Sixth Circuit has noted, divisibility analysis has the potential

to eviscerate the strict liability principles of CERCLA

entirely, “because defendants who can show that the harm is

divisible, and that they are not responsible for any of the

harm” could whittle their liability to zero. Township of Brighton, 153 F.3d at 318. Additionally, as Township of Brighton

also noted in rejecting a fairness-based approach, divisibility

analysis is not an invitation to “split the difference” and come

up with a “compromise amount.” Id. at 319. 

While it may seem unfair to hold a partial owner liable for

all the contamination cleanup costs, that perceived unfairness

is the result of the statutory “super-strict” liability scheme.

Assuring fairness among PRPs is the proper subject of the

contribution stage, not of apportionment at the liability stage.

See United States v. Rohm & Haas Co., 2 F.3d 1265, 1280-81

(3d Cir. 1993), overruled on other grounds by United States

v. E.I. Dupont de Nemours & Co., 432 F.3d 161, 162-63 (3d

Cir. 2005) (en banc). At the liability stage, CERCLA simply

assigns liability to statutorily responsible parties so as to

assure that, as between those with some connection to the

contamination — and who have, it may be assumed, benefitted from the contamination-causing process — and those with

none, such as the taxpayers. Any court-created structure that

would allow PRPs to whittle their share to little or nothing

and leave the taxpayers holding the bag may seem more equitable to some PRPs but would violate the basic structure of

the CERCLA statutory scheme. Because of such concerns,

courts have generally refrained from using an equity-based

11314 DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN
allocation analysis, so as not to weaken further the strict liability principle basic to CERCLA. 

[12] We agree that while joint and several liability need not

be universally applied, see Bell Petroleum, 3 F.3d at 897, the

inquiry as to whether such liability is appropriate must focus

strictly on whether there is a reasonable basis for apportionment, see, e.g., id. at 901-04. Consequently, in an action under

§ 9607(a), a court is not to look to equitable considerations,

such as relative fault, in determining whether liability is to be

joint and several or apportioned. 

III. Analysis of Railroads’ and Shell’s CERCLA

Liability

We now proceed to apply these fairly straightforward principles to the circumstances of this case. Here, the Railroads

were found to be PRPs under § 9607(a)(2), as the owners of

a “facility at which . . . hazardous substances were disposed

of,” and Shell was found to be a PRP under § 9607(a)(3), as

a person who “arranged for disposal . . . of hazardous substances owned or possessed by such person.” The first question we address is whether the Railroads and Shell are liable

for all the cleanup costs at the Arvin site, or, as the district

court held, only some of them. The second question,

addressed later, is whether Shell is liable for any of the harm,

as an “arranger.” 

A. Apportionment of Liability 

1. Standard of Review and Burden of Proof 

Because we have not heretofore faced a CERCLA apportionment issue directly, there is no Ninth Circuit precedent

concerning the standard of appellate review for such an issue.

Three circuits have addressed the question, and two separate

approaches have emerged. 

DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN 11315
The Fifth and Eighth Circuits look first to whether there is

a reasonable basis for apportioning the harm, an inquiry they

consider a question of law reviewed de novo. See Hercules,

247 F.3d at 718-19; Bell Petroleum, 3 F.3d at 896, 902. These

two circuits then examine, as a question of fact reviewed

under the clearly erroneous standard, precisely how damages

are to be divided. See Hercules, 247 F.3d at 718 (holding that

“actual apportionment” of damages is a question of fact); Bell

Petroleum, 3 F.3d at 896 (same). 

In contrast, the Sixth Circuit considers divisibility as a

whole a factual matter of causation, reviewed entirely under

the clearly erroneous standard. Township of Brighton, 153

F.3d at 318 n.13. This view, however, disregards a distinction

between conceptual divisibility and actual allocation that we

find both persuasive and useful. The latter inquiry can involve

the resolution of credibility issues and of conflicting evidence,

while the former ordinarily does not. 

We believe the most appropriate approach, and the one we

therefore adopt here, is the one adopted in Hercules and Bell

Petroleum, with a refinement suggested by Judge Parker’s

dissent in Bell Petroleum. Judge Parker thought that the

majority confused the distinction between the “legal burden

that the single harm at issue caused is of a type capable of

apportionment, and the factual burden of proving the amount

of harm attributable to a particular party.” Bell Petroleum, 3

F.3d at 909 (Parker, J., concurring in part and dissenting in

part). We are not sure that there was any such confusion.

Rather, an aspect of clear error review is the legal determination whether the party with the burden of proof met that burden; if the party did not and the district court nonetheless

ruled for it, then the district court clearly erred. See Lloyd v.

Schlag, 884 F.2d 409, 415 (9th Cir. 1989) (reviewing

“whether the district court committed clear error by holding

that [plaintiff] had not met his burden of proof”). Thus,

although the harm may be capable of apportionment, the

harm may not actually be apportionable in the particular case

11316 DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN
as a factual matter, given the evidence produced, because the

party advocating apportionment has not come forward with

the minimum showing needed to meet its burden of proof as

to the proper division of liability. 

We therefore proceed as follows: We inquire, first, whether

the particular harm at issue in the case is theoretically capable

of apportionment — i.e., whether it could ever be apportioned

or whether it is, by nature, too unified for apportionment. That

question is one of law, reviewed de novo. Cf. Taisho Marine

& Fire Ins. Co. v. M/V Sea-Land Endurance, 815 F.2d 1270,

1274 (9th Cir. 1987). Second, we review for clear error

whether the defendant submitted evidence sufficient to establish a reasonable basis for the apportionment of liability, taking into account that the burden of proof is on the party

seeking allocation, as well as the district court’s actual division of liability. 

There is no dispute here on the first, purely legal question

— whether the harm is capable of apportionment. See Bell

Petroleum, 3 F.3d at 896; Chem-Dyne, 572 F. Supp. at 810.

Some of the contamination on the B&B site occurred before

the Railroads’ parcel became part of the facility, and the original B&B site is distinct from the portion leased from the Railroads. Only some of the toxic substances were stored on the

Railroads’ parcel, and only some of the water on the facility

washed over the Railroads’ site. As to Shell, only some of the

toxic substances spilled on the facility were sold by the company. The different toxic substances vary in their likelihood

to leak and in the manner and speed in which they disseminate in ground water. So, conceptually, the contamination

traceable to the Railroads and Shell, with perfect information,

would be allocable, as would be the cost of cleaning up that

contamination. 

The questions, then, are whether the district court clearly

erred in finding that the Railroads and Shell established a

“reasonable basis” for apportionment, Bell Petroleum, 3 F.3d

DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN 11317
at 901, and whether, having so found, the district court properly apportioned the harm. 

We recognize that the district court at one point stated that

the Railroads failed to “meet their burden of proof” as to

divisibility. But its overall ruling was necessarily to the contrary, as the court also stated that it “independently found [in

the record] a reasonable basis for apportionment in spite of

the parties[’] presentations.” Thus, while the district court

rejected both defendants’ theories as to divisibility, it used

record evidence it found persuasive to determine apportionment. Whether the district court was correct in this regard is,

as we have noted, part of the review of the factual decision

regarding apportionment, discussed hereafter. The burden of

proof issue thus melds with the merits of the apportionment

issue, rather than barring us from considering it. 

2. The Railroads 

As we have established, if apportionment is to be allowed

under the Restatement approach, there must be a reasonable

basis for calculating the connection between the Railroads’

PRP status and the relevant harms. Again, the harm we consider is the contamination on the Arvin site. Where, as for the

Railroads, the PRPs’ responsibility under the statute derives

solely from their status as landowner, the PRPs can establish

divisibility by demonstrating that discrete portions of the contamination are in no respect traceable to land they owned at

the time of the toxic disposal. 

Here, the district court’s severability analysis — after 191

pages of an amended opinion that included over 80 pages of

factual findings — ultimately relied on the simplest of considerations: percentages of land area, time of ownership, and

types of hazardous products. Although we do not fault the district court’s factfinding — its numbers are mostly correct —

its legal conclusion that these three factors alone suffice to

11318 DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN
support apportionment cannot stand.26 We address each factor

below to show why. 

a. Land Area 

The only court of appeals case that has fully addressed

divisibility of landowner liability takes a relatively strict

approach to apportionment on the basis of land area. In

United States v. Rohm and Haas Co., 2 F.3d 1265 (3d Cir.

1993), the most analogous CERCLA divisibility case to this

one, the Third Circuit held, as do we, that “simply showing

that one owns only a portion of the facility in question is [not]

sufficient to warrant apportionment.” Id. at 1280. 

Like this case, Rohm and Haas concerned a landowner PRP

and changes in landownership over time. Although the Third

Circuit’s divisibility analysis is fairly cursory, its reluctance to

apportion landowner liability on the basis of land boundaries

is informative. Rohm and Haas indicates that the mere percentage of land owned by one PRP relative to the entire facility cannot alone be a basis for apportionment, as it does not

provide a minimally reliable basis for tracing the proportion

of leakage, contamination, or cleanup costs associated with

the entire parcel. 

Contrary to Rohm and Haas, the district court’s analysis

gave star billing to the percentage of land ownership, even in

a unified facility.27 We agree with Rohm and Haas that this

26We emphasize that our conclusion does not rest simply on the fact that

the district court’s calculation of the Railroads’ share of liability was, as

the court recognized, “rough[ ].” It is neither unusual nor fatal to the validity of the resulting allocation that an apportionment determination includes

estimates of contribution to contamination based on extrapolation of

record facts, as long as the basis for the extrapolation is explained, is logical, and does not disregard other record facts. 

27Judge Moore, concurring in the result in Township of Brighton,

asserted that a court can never apportion liability for contamination at a

DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN 11319
approach, seemingly straightforward though it is, fails in most

circumstances to comport with the “reasonable basis” test, as

the facts of this case illustrate. 

[13] The Arvin site was a single facility. CERCLA premises landowner liability on ownership of a facility, not on

ownership of a certain parcel of land that is part of a facility.

The operations on the site were dynamic, with fertilizer rigs

stored on the Railroad parcel and filled up on the B&B parcel.

Empty pesticide cans were stored on the Railroad parcel

before they were crushed and disposed of. After the 1978

windstorm, tanks were stored all over the facility, including

on the Railroad parcel. A simple calculation of land ownership does not capture any data that reflect this dynamic, unitary operation of the single Arvin facility. 

In addition, the synergistic use of different parts of the

Arvin site makes division based on percentage of land ownership particularly untenable. The record shows that B&B

leased the Railroad parcel to accommodate its expanding

operations. The Railroad parcel added an unquantifiable and

perhaps exponential amount to B&B’s soil contamination.

Were the Railroad parcel not part of the facility, there would

have been less overall storage capacity. One can assume that

a smaller amount of toxic chemicals would have been delivered to, and spilled on, the Arvin site. The fertilizer rigs, for

example, were stored almost exclusively on the Railroad parcel. Had that parcel not been available, less fertilizer might

have been delivered to — and leaked onto — the Arvin parcel. As these descriptions suggest, nothing in the record supports a conclusion that the leakage of contaminants that ended

single facility on the basis of geography. Township of Brighton, 153 F.3d

at 331 n.12 (Moore, J., concurring in result). We do not go as far as Judge

Moore. We do note, however, that purely geographic apportionment of a

single facility is unlikely to be appropriate if operations on the two portions are intertwined to the extent present in this case. 

11320 DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN
up on the B&B parcel occurred on each parcel in proportion

to its size. 

[14] Instead, given the circumstances of this case, more

pertinent comparisons would be the proportion of the amount

of chemicals stored, poured from one container to another, or

spilled on each parcel. For example, were adequate records

kept, it would be possible to estimate the amount of leakage

attributable to activities on the Railroad parcel, how that leakage traveled to and contaminated the soil and groundwater

under the Arvin parcel, and the cost of cleaning up that contamination. 

[15] But none of this data is in the record. It may well be

that such information is, as a practical matter, not available

for periods long in the past, when future environmental

cleanup was not contemplated. Unlike records concerning the

amount of toxic chemicals produced by a given operator of a

facility, records that separate out, with any precision, the

amount of toxic chemicals stored on one part of a facility as

opposed to another would have had little utility to B&B, the

operator of the facility, and none to the Railroads, the owners

of the parcel. This observation is true in spades for the more

directly pertinent data, such as the amount of leakage on the

Railroad parcel, the amount of that leakage that flowed onto

the B&B parcel, and the amount of that residue that remained

as contamination under the B&B parcel when the cleanup

began. 

[16] So the failure to keep these records is quite understandable. But these practical considerations cannot justify a

“meat-axe” approach to the divisibility issue, premised on

percentages of land ownership, as a means of adjusting for the

difficulties of proving divisibility with precision when PRP

status is based on land ownership alone. Such an approach

would be tantamount to a disagreement with the imposition of

no-fault land ownership liability. Congress, however, created

precisely such liability, placing the responsibility to pay for

DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN 11321
environmental cleanup on parties, such as the Railroads, that

profited from the circumstances giving rise to the contamination so that the taxpayers are not left holding the tab. The risk

of lack of adequate information for meaningful division of

harm therefore must rest on the responsible parties, even

when that information is extremely hard to come by. 

b. Period of Ownership 

[17] Just as the district court’s land area calculations did

not correspond to the harms in this case, its simple fraction

based on the time that the Railroads owned the land cannot be

a basis for apportionment. The fraction it chose assumes constant leakage on the facility as a whole or constant contamination traceable to the facility as a whole for each time period;

no evidence suggests that to be the case. Again, if adequate

information were available, it would make sense to eliminate

the Railroads’ liability for the period before B&B leased the

Railroad parcel. See, e.g., Rohm and Haas, 2 F.3d at 1280.

The evidentiary vacuum concerning the amount of contamination traceable to the pre-lease period, however, precludes any

such calculation here. 

c. Types of Hazardous Products 

[18] While many of the district court’s calculations were

factually correct but legally insufficient, its decision to assign

a two-thirds fraction to represent the present types of hazardous products contains a basic factual error. All three chemicals were on the Railroad parcel at some time. There is no

evidence as to which chemicals spilled on the parcel, where

on the parcel they spilled, or when they spilled. Yet, there is

evidence that there may well have been leakage on the Railroad parcel of D-D, the chemical the district court excluded

in its calculations. Given the record, the district court clearly

erred in its attempt to rely on the proportion of hazardous

products present on the Railroad parcel. 

11322 DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN
d. Conclusion 

It will often be the case that a landowner PRP will not be

able to prove in any detail the degree of contamination traceable to activities on its land. A landowner PRP need not be

involved at all in the disposal of hazardous chemicals and so

will often have no information concerning that disposal or its

impact. The net result of our approach to apportionment of

liability, consequently, may be that landowner PRPs, who

typically have the least direct involvement in generating the

contamination, will be the least able to prove divisibility. And

contribution “is not a complete panacea since it frequently

will be difficult for defendants to locate a sufficient number

of additional, solvent parties.” O’Neil v. Picillo, 883 F.2d 176,

179 (1st Cir. 1989). 

While the result may appear to fault a landowner PRP for

failing to keep records proving the minor connection of its

land to the contamination on the facility as a whole, CERCLA

is not a statute concerned with allocation of fault. Instead,

CERCLA seeks to distribute economic burdens. Joint and

several liability, even for PRPs with a minor connection to the

contaminated facility, is the norm, designed to assure, as far

as possible, that some entity with connection to the contamination picks up the tab. Apportionment is the exception, available only in those circumstances in which adequate records

were kept and the harm is meaningfully divisible. 

[19] In sum, although most of the numbers the district court

used were sufficiently exact, they bore insufficient logical

connection to the pertinent question: What part of the contaminants found on the Arvin parcel were attributable to the presence of toxic substances or to activities on the Railroad

parcel? We therefore reject the district court’s apportionment

calculation and hold that the Railroads have failed to prove

any reasonable basis for apportioning liability for the costs of

remediation. 

DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN 11323
3. Shell 

Shell’s contribution to the contamination of the Arvin site

is easier to isolate than that of the Railroads’, as it involved

ascertainable pollutants entering the soil in a specific way.

Shell thus had a greater prospect of succeeding on divisibility

than did the Railroads, as there is some volumetric basis for

comparing its contribution to the total volume of contamination on the Arvin site. 

Nonetheless, the evidence actually produced was insufficient to allow even a rough approximation of the contamination remaining on the facility, either directly or through the

presumption that the pro rata cost of remediating contamination is likely to be equivalent to a PRP’s pro rata share of contamination. Indeed, Shell produced only evidence concerning

leakage. 

[20] Such leakage or disposal evidence cannot suffice in

the present circumstances as a basis for apportioning the harm

in question. As we have explained, contamination — as distinct from leakage — is the necessary consideration. Where

there is disposal of multiple contaminants, courts have

demanded a “showing [of] a relationship between waste volume, the release of hazardous substances, and the harm at the

site.” Monsanto, 858 F.2d at 172. Factors such as “relative

toxicity, migratory potential, and synergistic capacity of the

hazardous substances” are relevant to demonstrating this relationship. Id. at 172 n.26. Alternatively, volumetric calculations of contaminating chemicals — those remaining in the

environment and requiring cleanup — could be sufficiently

specific for apportionment. See Hercules, 247 F.3d at 719;

Bell Petroleum, 3 F.3d at 903. But Shell provided no evidence

regarding such factors. It thus failed to prove whether its

leaked chemicals contaminated the soil in any specific proportion as compared to other chemicals spilled at the site. See

United States v. Agway, Inc., 193 F. Supp. 2d 545, 549

(N.D.N.Y. 2002) (noting that defendants whose products have

11324 DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN
become commingled in the soil “face an uphill battle in

attempting to demonstrate that volumetric contribution is a

reasonable basis for apportioning liability of a single harm”).

To fill these evidentiary gaps, the district court assumed

equal contamination and cleanup cost from all the chemicals’

leakage. This methodology entirely failed to account for the

possibility that leakage of one chemical might contribute to

more contamination than leakage of another, because of their

specific physical properties. Similarly, the cost of cleanup

depends upon which contaminants are present; some contaminants are more expensive than others to extract from the soil.

Moreover, even as an approximation of leakage, the district

court’s calculations were too speculative to support apportionment. Chem-Nuclear is informative in this regard. In ChemNuclear, the defendant disposed of drums of hazardous waste

at several facilities. 292 F.3d at 255. At least eighty drums

found at a single site were attributable to the defendant. Id.

The defendant could not prove, however, that it was responsible only for those eighty drums, and therefore was not entitled

to apportionment. Id. at 259-61. Although the defendant provided evidence supporting inferences regarding where its

drums went, the court refused to accept these inferences as

sufficient proof. Id. at 260. 

Here, the court estimated the volume of Shell’s chemicals

that leaked from each transfer based on data samples that do

not readily extrapolate to total leakage over the entire twentythree-year period that Shell supplied B&B with D-D. The

court used figures from only six years of B&B’s purchases of

Shell D-D to calculate the average D-D transferred at the

Arvin site each year, yet provided no basis for assuming equal

purchases each year. The court then based its estimate of the

amount of D-D spilled during each transfer on guesses by witnesses.28 Also, although D-D was known to leak when sight

28For the quantity of D-D that spilled during transfer from Shell’s carriers’ trucks to the D-D rigs, for example, the court relied on estimates of

witnesses that the spill was between a cup and a quart. It then calculated

“3 cups x 23 years = 2,691 cups => 168 gallons of D-D.” 

DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN 11325
gauges on D-D rigs broke, the court had no evidence of how

much D-D leaked under these circumstances and, therefore,

did not add any quantity for sight gauge leakage into the calculation. Even if each of these estimates alone might have

been reasonable, the resulting combined estimate is too speculative to serve as an accurate basis for ascertaining leakage,

let alone contamination or the costs of cleaning up the contamination.29

Again, Shell’s harm was capable of apportionment. Shell

could have provided data showing the volume of chemicals

shipped to B&B every year, or more precise estimates of the

average volume of leaked chemicals during the transfer process. Data connecting the properties of the various chemicals

leaked at the site to the likelihood that they contributed to the

contamination could have been presented and considered. But

the record before us provides none of that information, most

likely because Shell put its eggs in the no-liability basket. 

29There is something of a circuit split on the degree of specificity of

proof necessary to establish the amount of liability apportioned to each

PRP. According to some courts, proving up the precise proportion attributable to each PRP is a “very difficult proposition,” Control Data Corp. v.

S.C.S.C. Corp., 53 F.3d 930, 934 n.4 (8th Cir. 1995), requiring “concrete

and specific” evidence in support of any proposed apportionment, Hercules, 247 F.3d at 718. The defendant cannot rely on a “chain of possible

inferences.” Chem-Nuclear, 292 F.3d at 260. In contrast, other courts have

permitted informal estimates or data rather than more exact calculations.

See Bell Petroleum, 3 F.3d at 903-04 (allowing estimation of the proportion of contamination produced by each of a series of successive operators

of a facility, where reliable approximations were simple because there was

a single chemical produced by the successive operators each of whom

operated the facility similarly); see also Hercules, 247 F.3d at 719 (relying

on Bell Petroleum, 3 F.3d at 895-96, and holding that the defendant need

not show that there was no possibility that it contributed to the harm,

because certain approximations can suffice). Aside from noting, as we

have, supra n.27, that logical, supportable inferences from the record facts

are, as always, permissible, we need not weigh in on this dispute, as the

district court’s extrapolations could not be upheld under even a forgiving

standard. 

11326 DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN
[21] In the end, the district court’s apportionment analysis

with regard to Shell came closer to meeting the legal standard

than the method it used with respect to the Railroads. We

hold, nonetheless, that on the facts of this case as the district

court found them, there was no reasonable basis for apportioning the pertinent harm caused by Shell. 

B. “Arranger” Liability

[22] Under CERCLA, “any person who by contract, agreement, or otherwise arranged for disposal or treatment, or

arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such

person” is liable. § 9607(a)(3). Shell claims that (1) the district court applied the wrong legal standard in determining

whether Shell was an “arranger” under § 9607(a); (2) the

“useful product” doctrine precludes imposition of “arranger”

liability on Shell; (3) Shell lacked ownership and control over

the chemicals at the time of the transfers and thus the district

court could not find that it had arranged them; and (4) because

D-D evaporates or disperses rather than remaining in toxic

form in the soil, the district court erred when it determined

that Shell contributed to the groundwater contamination. We

reject these contentions and affirm the district court’s ruling

on the “arranger” issue. 

We review the district court’s interpretation of CERCLA to

determine the legal standard for arranger liability as a question of law, reviewed de novo. Carson Harbor Vill., 270 F.3d

at 870. We review the district court’s factual determinations

regarding Shell’s operations for clear error. W. Prop. Serv.

Corp. v. Shell Oil Co., 358 F.3d 678, 685 (9th Cir. 2004). 

1. Requirements for “Arranger” Liability

CERCLA does not define “arrange[ ].” We have avoided

giving the term “arranger” too narrow an interpretation to

avoid frustrating CERCLA’s goal of requiring that companies

DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN 11327
responsible for the introduction of hazardous waste into the

environment pay for remediation. Pakootas v. Teck Cominco

Metals, Ltd., 452 F.3d 1066, 1081 (9th Cir. 2006); Cadillac

Fairview/Cal., Inc. v. United States, 41 F.3d 562, 565 n.4 (9th

Cir. 1994) (per curiam) (citing with approval United States v.

Aceto Agric. Chems. Corp., 872 F.2d 1373, 1380 (8th Cir.

1989)); see also Jones-Hamilton Co. v. Beazer Materials &

Servs., Inc., 973 F.2d 688, 694-95 (9th Cir. 1992) (discussing

Aceto, 872 F.2d at 1390). Accordingly, we have recognized,

in addition to “direct” arranger liability, a “broader” category

of arranger liability, see United States v. Shell Oil Co., 294

F.3d 1045, 1054-55 (9th Cir. 2002), in which disposal of hazardous wastes is a foreseeable byproduct of, but not the purpose of, the transaction giving rise to PRP status. 

“Direct” arranger liability — also referred to as “ ‘traditional’ direct” arranger liability — involves transactions in

which the central purpose of the transaction is disposing of

hazardous wastes. See id.; see, e.g., Cadillac Fairview, 41

F.3d at 563-65 (involving rubber companies that transferred

contaminated styrene to Dow Chemical for reprocessing);

Catellus Dev. Corp. v. United States, 34 F.3d 748, 749-50

(9th Cir. 1994) (involving a company that sold used automotive batteries to a lead reclamation plant). In contrast, “broader” arranger liability involves transactions that contemplate

disposal as a part of, but not the focus of, the transaction; the

“arranger” is either the source of the pollution or manages its

disposal. See Shell Oil, 294 F.3d at 1058. In the “broader”

arranger liability cases, such as Shell Oil, we examined the

connection between the alleged arranger transaction and the

disposal and decided whether the transaction necessarily constituted an arrangement for disposal of hazardous substances,

whatever immediate form it may have taken. 

These broader arranger cases can involve situations, like

the present one, in which the alleged arrangers did not contract directly for the disposal of hazardous substances but did

contract for the sale or transfer of hazardous substances,

11328 DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN
which were then disposed of. See, e.g., Fla. Power & Light

Co. v. Allis Chalmers Corp., 893 F.2d 1313, 1315, 1318 (11th

Cir. 1990) (involving purchaser and recycler that sued manufacturer of transformers for cleanup costs from later disposal);

Mathews v. Dow Chemical Co., 947 F. Supp. 1517, 1519-20

(D. Colo. 1996) (involving neighbors of chemical company

who sued manufacturer of paint thinner for contamination

resulting from packaging paint thinner); Courtaulds Aerospace, Inc. v. Huffman, 826 F. Supp. 345, 347-48, 353-54

(E.D. Cal. 1993) (involving neighbor of smelting plant who

sued companies that contracted with plant for burning and

smelting of copper wire for resulting contamination). There

are no Ninth Circuit cases in this category.30

[23] The inclusion of such circumstances within the “arranger” concept, however, accords with the statutory language

and structure as a whole. To be an “arranger,” one must “arrange[ ] for disposal or treatment, or arrange[ ] with a transporter for transport for disposal or treatment, of hazardous

substances . . . .” § 9607(a)(3). CERCLA’s definition of “disposal,” in turn, includes “the discharge, deposit, injection,

dumping, spilling, leaking, or placing of any solid waste or

hazardous waste into or on any land or water so that such

solid waste or hazardous waste or constituent thereof may

enter the environment or be . . . discharged into any waters,

including ground waters.” § 6903(3) (referred to by

§ 9601(29)). That “disposal” includes such unintentional pro30Although Shell Oil involved “broader” arranger liability, it concerned

“arranger” liability of a customer, rather than a producer, of hazardous

materials. 294 F.3d at 1056. There, the defendant oil companies sought to

hold the United States liable as an “arranger” because the federal government had purchased large quantities of high octane fuel for military use;

the process used by the oil companies to refine the fuel resulted in toxic

waste that the oil companies later dumped at a site in California. Id.

Because the United States was the end purchaser, never owned the intervening toxic products used in the refining process, and did not contract out

the crucial, waste-producing intermediate step, we held that it was not an

arranger under § 9607(a)(3). Id. at 1056-59. 

DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN 11329
cesses as “leaking” indicates that “disposal” need not be purposeful. See Carson Harbor Vill., 270 F.3d at 880 (holding

that “leaking” may not “require affirmative . . . conduct”

(internal quotation marks omitted) (quoting and adopting

interpretation of United States v. CDMG Realty Co., 96 F.3d

706, 714 (3d Cir. 1996))). Thus, an entity can be an arranger

even if it did not intend to dispose of the product. Arranging

for a transaction in which there necessarily would be leakage

or some other form of disposal of hazardous substances is sufficient. 

2. “Useful Product” Doctrine 

[24] While adopting a generally expansive view of arranger

liability, we have refused to hold manufacturers liable as

arrangers for selling a useful product containing or generating

hazardous substances that later were disposed of. See, e.g.,

3550 Stevens Creek Assocs. v. Barclays Bank of Cal., 915

F.2d 1355, 1362-65 (9th Cir. 1990). As Stevens Creek and

other “useful product” cases recognize, liability cannot extend

so far as to include all manufacturers of hazardous substances,

on the theory that there will have to be disposal of the substances some time down the line, after it is used as intended.

See, e.g., Stevens Creek, 915 F.2d at 1362-65 (refusing to hold

manufacturer liable for costs of removing asbestos from

building); Fla. Power & Light, 893 F.2d at 1318-19 (refusing

to hold manufacturer of transformers liable for subsequent

release of chemicals upon disposal of transformers). Also, the

asserted liability in “useful product” cases generally involved

only the normal use of those chemicals. See, e.g., Jordan v.

S. Wood Piedmont Co., 805 F. Supp. 1575, 1577 (S.D. Ga.

1992) (involving the sale of chemicals to treat wood and the

contamination from the wood treatment process); Edward

Hines Lumber Co. v. Vulcan Materials Co., 685 F. Supp. 651,

653 (N.D. Ill. 1988) (same). 

[25] The useful product cases have no applicability where,

as here, the sale of a useful product necessarily and immedi11330 DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN
ately results in the leakage of hazardous substances. In that

circumstance, the leaked portions of the hazardous substances

are never used for their intended purpose. See Zands v. Nelson, 779 F. Supp. 1254, 1262 (S.D. Cal. 1991) (stating that

“gasoline is no longer a useful product after it leaks into, and

contaminates, the soil”); see also Aceto, 872 F.2d at 1381

(rejecting application of the useful product doctrine where

“waste is generated and disposed of contemporaneously with

the process” (emphasis added)). 

Here, although Shell sold B&B a useful product, leakage of

some of that product before B&B could use it was both inherent in the transfer process arranged by Shell and contemporaneous with that process.31 Shell arranged for delivery of the

substances to the site by its subcontractors; was aware of, and

to some degree dictated, the transfer arrangements; knew that

some leakage was likely in the transfer process; and provided

advice and supervision concerning safe transfer and storage.

Disposal of a hazardous substance was thus a necessary part

of the sale and delivery process. 

Put another way, the district court did not assign arranger

liability to Shell for contamination resulting from the application of Shell’s useful products to the soil as fertilizers or fumigants, or for disposal of contaminated soil after the products

were used. Instead, the district court assigned arranger liability on the portion of product that never made it to the fields

for its intended use but was disposed of prior to use. Because

Shell’s liability here stems from the leaked chemicals rather

than the fertilizer that was used as fertilizer, the useful product doctrine is not applicable. 

31For this reason, we also reject Shell’s argument that, because manufacturers are taxed to provide money for the Superfund, Congress could

not, without more, have intended for them to be subject to liability as

arrangers. See 26 U.S.C. §§ 4661, 4662. Shell’s liability derives not from

its role as a manufacturer of a useful product but rather from its role in

leakage prior to use. The Superfund tax is wholly irrelevant to the latter

imposition of liability and certainly does not bar it. 

DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN 11331
3. Control and Ownership 

Much of the district court’s analysis relies on the factual

determination that spills would necessarily occur during the

transfer of Shell’s chemicals to B&B. Shell maintains that this

finding was inadequate, because Shell did not itself transport

the chemicals or participate in transferring the chemicals to

B&B’s containers. Central to this contention is Shell’s insistence that it lacked ownership and control of the chemicals at

the time of transfer and so could not be an “arranger.” We do

not agree that the district court’s findings about Shell’s

involvement were insufficient to support “arranger” liability.

There was evidence before the district court that: (1) Spills

occurred every time the deliveries were made; (2) Shell

arranged for delivery and chose the common carrier that

transported its product to the Arvin site; (3) Shell changed its

delivery process so as to require the use of large storage tanks,

thus necessitating the transfer of large quantities of chemicals

and causing leakage from corrosion of the large steel tanks;

(4) Shell provided a rebate for improvements in B&B’s bulk

handling and safety facilities and required an inspection by a

qualified engineer; (5) Shell regularly would reduce the purchase price of the D-D, in an amount the district court concluded was linked to loss from leakage; and (6) Shell

distributed a manual and created a checklist of the manual

requirements, to ensure that D-D tanks were being operated

in accordance with Shell’s safety instructions.

The parties vigorously dispute whether, given these facts,

Shell owned the pesticide during the transfer and controlled

the transfer process. Although the district court addressed

these questions and resolved them against Shell, we do not

enter this controversy. The text of the statute does not require

that the arranger own the hazardous wastes, either at the time

the “arranger” arranged for the transaction or at the time of

transfer of ownership. See Pakootas, 452 F.3d at 1081.

Indeed, to require ownership at the time of disposal “would

11332 DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN
make it too easy for a party, wishing to dispose of a hazardous

substance, to escape by a sale its responsibility to see that the

substance is safely disposed of.” Catellus, 34 F.3d at 752. Nor

is control a statutory requirement, Cadillac Fairview, 41 F.3d

at 565, although it has been viewed as a pertinent consideration in cases quite different from this one. 

Where an owner of hazardous substances directly “arranges” for disposal — by, for example, using a hazardous

substance disposal company — that owner is plainly an “arranger” even if it has nothing more to do with disposal. See,

e.g., Catellus, 34 F.3d at 752. In “broader” arranger liability

cases, however, we have tended to view control as a “crucial

element” in determining whether the party arranged for disposal. Shell Oil, 294 F.3d at 1055. We also have viewed ownership of hazardous substances at the time of disposal as an

important factor in nontraditional, indirect arranger liability

cases. See Jones-Hamilton, 973 F.2d at 695 (relying on Aceto,

872 F.2d at 1380). 

None of these cases, however, indicates that ownership or

control at the time of transfer are the sine qua non of nontraditional arranger liability. Instead, ownership and control at

time of disposal are useful indices or clues toward the end of

“look[ing] beyond defendants’ characterizations to determine

whether a transaction in fact involves an arrangement for the

disposal of a hazardous substance.” Aceto, 872 F.2d at 1381.

In Shell Oil, for example, the government never owned the

chemicals before disposal occurred, so control over the substances was an important factor in determining whether or not

the government could have “arranged” for disposal. Shell Oil,

294 F.3d at 1057-59. 

[26] Here, ownership at the time of disposal is not an informative consideration, and control is informative only in light

of additional considerations. Unlike in Shell Oil, where the

absence of any ownership or control was a clue concerning

whether the sales transaction necessarily contemplated disDEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN 11333
posal as an inherent part of the transaction, Shell here owned

the chemicals at the time the sale was entered into. The statute

requires nothing more in terms of ownership. We therefore

need not determine the precise moment when ownership

transferred to B&B. As to the control question, the district

court’s findings, recited above, demonstrate that Shell had

sufficient control over, and knowledge of, the transfer process

to be considered an “arranger,” within the meaning of CERCLA, for the disposal of the chemicals that leaked. 

4. Groundwater Contamination 

Shell, finally, contends that the court erred when it determined that it contributed to the groundwater contamination,

maintaining that D-D evaporates or disperses rather than

remaining in toxic form in the soil. The district court’s analysis on this issue is factually complex and based on several

weeks of testimony. The district court made specific findings

that D-D can indeed enter groundwater. Those findings are

based on the testimony of experts whom the court found persuasive. In light of the complexity of the science and the substantial expert evidence supporting the finding, the district

court’s determination was not clearly erroneous.

IV. Conclusion

The district court erred in determining that the harm in this

case could be apportioned on this record. Given the district

court’s erroneous approach and the paucity of record evidence, there is no reasonable basis for apportioning the damages attributable to the Railroads’ activity. Shell’s liability is

a closer call, but the evidence on the record in that regard is

also insufficient to support apportionment. 

The district court followed the proper analysis in finding

that Shell is liable as an arranger. Shell arranged for the sale

and transfer of chemicals under circumstances in which a

11334 DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN
known, inherent part of that transfer was the leakage, and so

the disposal, of those chemicals. 

We therefore reverse as to the district court’s finding on

apportionment. We affirm the district court’s findings regarding both the Railroads’ and Shell’s liability. The Railroads

and Shell are jointly and severally liable for the harm at the

Arvin site, except with regard to the so-called “Dinoseb hot

spot.”

32 We remand for further proceedings not inconsistent

with this opinion. 

REVERSED in part and AFFIRMED in part. 

32The district court found that the “Dinoseb hot spot” was a discrete

area contaminated by Dinoseb (a Dow product) as the result of a major

spill in 1983, that Shell did not manufacture or ship that product, and that

Shell thus bore no responsibility for any part of the $1.3 million cost of

cleaning up this discrete spill. The governments did not challenge this

finding on appeal. That finding therefore stands, and the district court

should not include the $1.3 million dollar cleanup costs for the “Dinoseb

hot spot” in the calculation of Shell’s liability. 

DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN 11335