1 (Slip Opin i o n) OCTOBER T ERM, 20 08 Sy llabu s N O TE : Wh er e it i s feas ibl e , a s y llab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s y ll abu s con s titu tes n o p a rt of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r . Se e United Statesv. Detroit Timbe r& Lumb er Co., 200U. S

. 3 21, 337
. 

# SUPREME CO URT O FTHE UNI TED STATES Sy llabu s 

### BURLI N GTON NORT HER N & SANTA FE RAILWAY CO. ET AL


### . v . UNITE D STAT ES ET AL


### . CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 07–1 60 1. Ar g u ed Feb r u a r y24, 2009 —Dec ided M ay4, 2009 * The Comprehens ive Enviro nmenta l Resp onse, Compensation, and Li

abil i tyAct(C ERCLA) is de sig n ed to pro m ote the cle a nup of hazard

ou s w a ste site s an d to en su r eth atcleanup costs are bo rne by those r e spon sible forth e c o n t ami n ation

. In1 9 60, Br own& Br y a n t , In c . (B&B), anag r i c u ltu r al c h emic al di str ibu tor , beg a noper atin gona parcel of land located in Arvin, Ca lifornia. B&B later ex panded onto a na d ja centpa rcel owned b ypet i t i oners Burlingt on Nort hern a n d Santa Fe Rai l wayCompan yand Union Pacific Railro a d Comp any (R a i l r o a d s )

. A s p a r to f i t s b u s i ness, B&B purchased and stored vari

ous hazardous chemicals, includ ing thepesticide D–D, whi c h it bought fr om petitionerShellOil Company(Shell). Ov er time, many of these chemicals spil led d u ring tr an sfers an d deliv er ies, an d as a result of equipment failures.

Investigations of B&B by the Ca liforniaDepa rtment of Toxic S u b

s t a n ces Cont rol a n d t h e federa l En vironmental Protec tion Agency (Governments) revealed significan t soil an d g r oun dwaterc o n t amin a tion and in 1 9 89, the Gov e r n ment s exercised their CERCLA author

ityto c l eanu p th e Arv i nsite, spen din gov er$8 mill io nby1998
. S eeking t orec o ver t h eir cos t s , t h e Governments initi a te d legal actio n against Shell and the Railroads. The Dis t rictCourt rule d in favorof the Gov e r n ments, findingthat both the Ra ilroads and Shell were po tential l yresponsible part ies under CERCLA—the Railro a ds becaus e they owned part of the facili ty an d S h ell b e ca us e it ha d “a rra nged for dispos al .

. . of h a zar d ou s su bs tan c es,” 42 U. S. C. §96 07(a)( 3 ),

——————

* Tog e th erwith No. 07–16 07, Shell Oil Co. v. Un it edSt ates e t al. , also on ce rt iora ri t ot h e s a m ecou r t
.2 BURLINGTO NN. & S

. F. R

. C O . v. UNITED STATES Sy llabu s t h rough D–D’ s s a le a n d delivery. T h e Di s t rictCourtapport ioned li

abil i ty, holding the Railroad s liable for 9% of the Governments’ tot a l response costs , and Shell li ab le fo r 6%. On appeal, the Ninth Circuit ag r eed th at Sh ell c o u l d be h e ld liabl e as anar ran g er u n d er §960 7(a)(3) an d affir m ed th e Distr i c tCou r t’ s dec i sioninth at r e spec t. Althoughthe Cour t of Appeals ag r eed tha tthe har min this c a se wa s theoretically capable of apportionmen t, it foundthe facts present in t h e record ins u fficientt os u pport apportio nment, and therefore held Shell and the Railroads joi n tly an d seve rally liable fo r the Go vern men t s’ r e spon se c o sts. Held: 1. Shell is notliab l e a s an arra nger fo r the conta m ina t ion a tthe Arv i n facility

. Section §9607(a)( 3 ) liabili tymaynot extend bey o nd the limit s of t h e statute i t se lf. Because CERCLA doe s not specificall y define what it means to “arrang[e] fo r” di sposal of a hazardous sub

stan c e , th e ph r a se sh ou ld be giv e nits or di n a r ymean in g . Inc o mmon pa rla n ce, “ a rra nge” im plies a c t i on directed t o as p ecific purpos e. Th u s , un der §960 7(a)(3)’ s pl ainlan g u a g e , anen titymay qu alifyas a n arranger whe nit takes int e ntiona l step s to dispose of a hazardous su bst a n c e. To qu alifya s anar r a n g er , Shell mu s th av een ter e d in t o D–D sales wit hthe intent that at le ast apor t ion of the pr oduc t be disposedof during the transfer proc ess by one or more of §6903(3)’s methods. The fac t s found by the Distr i c tCour t do not suppor tsuc ha conclusion. T h e evidenceshows th at Sh ellwas awar e th at min o r , ac cident a ls p ills occ u rredduri ng D–D ’ s t r a n s f er fromt h e com m o n ca r r i erto B&B’ s stor ag e tanks afterthe pr od uc t had c o me underB&B’ s stewardship; howeve r, it al so reve als that Shelltook n u merous steps t oencoura g eit s dist rib u t o rs t o red uce the likelihood of s p ills. Thus, Shell’s mere knowledge of continui ng spills and leak s i s insufficient grou nds for co ncludingt h a tit“ a rra nged for” D–D’s dis p os a l

. Pp. 8– 13.

2. Th e Distr i ct Cou r t r e ason ablyappor t i o n e d th e Rail r o ads’ sh ar e of the site re media t ion cos t s a t9%. C a lculating liab i lity ba sed on three figures

—the percentage of the to tal area of the fac ility tha twa s owned by the Railroad s , th e durati onof B&B’ s bu sin e ss div i dedby the term of the Railroad s ’ lease, and the c o ur t’ s deter m ination tha t only two polluting chem icals (not D–D) spilled on the leased parce l r e qu ir ed r e mediation an d t h at th os e chemicals were responsible for r o ughlytwo-thir ds of the r e mediab le sit e cont a m ina t ion

—t h e Dis t rict Cour t ultimat e lydeter m ined that the Rai l r o ads wer er e sponsib l e for 9% of the remedia t ion cos t s. The Di str i ct Court’s det a iled f i ndings show that the pr imar ypo llution at the site was on a porti o n of the fa

cility mos td i s t ant from the Railr oadparcel and that the hazardous

chem ica ls p ills on t h e Railroa d pa rcel cont rib u t e d t o no m o re t h an3 Cite as: 55 6 U

. S. ____ (2009) Sy llabu s 10% of the to tal site c o nta m ination, so m eof whic h did not r e quir e rem e dia t ion. Moreove r , a l t h ough the e v i d ence adduce d by the par

ties d i d not all o w the Distr i c tCour t to calc ulate preciselythe amount of hazardous c h emicals contr ibuted bythe Railr oadpar c e l to the to tal site c o n t amin ationorth e ex ac t pe rcent a g e of ha rm ca us ed b yea ch chemical, the evidence showed thatfewer s p ills occurredon t h e Ra il

r o ad par c e l a n d that not al l of them c r o s s ed to the B& B si te, wher e most of the contaminat ion originat ed, thus supporting the co nclusion th at th e p a r c e l c o n t r ibu ted o n lytwo c h emic als inqu an tit i es r e qu ir in g r e mediation

. Pp. 13–1 9. 520 F. 3d 91 8, r e v e r s ed an d reman d ed.

S TEVENS , J., delivered the opinion of the Court, in whi c h R OBERTS , C. J., and S CALIA , K ENNEDY , S OUTER , T HOMAS , B REYER , and ALITO , JJ., joined. G IN SB U R G , J., filed adissenting opinion._________________

_________________ 1 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt NOTIC E : Th is op i n ionis subjec t to f o rma lrevi si onbef o r e publicat ioninth e p r eli m in ary p rin t of th e U n it edS t at es R e p o rts
. R e ad ers ar e r e qu es ted to n o tif yth e R e p o rt e rof D e c i s i on s , Su p r em e C o u rt of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s . 

# SUPREME CO URT O FTHE UNI TED STATES
Nos. 07– 16 01 an d 07– 160 7 

### BURLI N GTON NORT HER NA N D SA NTA F E RAILWA Y COMPANY , ET AL 

### ., PETITIONERS 07–1601 v. UNITE D STATE S ET AL


### . SHELL OIL COM PANY, PETIT I ONER 07–1607 v. UNITE D STATE S ET AL


### . ON WRITS OF CERTIORARI TO THE UNITED STAT ES COURT OF APPEAL S FOR THE NINT H CIRCUIT [M ay4, 2009] 

### J USTICE 

### S T EVEN S

### delivered the opi n ion of the Court. In 1980, Congress enacted the Comprehensive Envi

ronmental Response, Compensation, and Liability Act (CERCLA), 94 Stat. 2767, as amended, 42 U. S. C. §§9601–967 5, in response to the serious environmental and health risks posed by industrial polluti on. See United Sta t es v. Bestfoods , 524 U. S. 51, 5 5 (1998). The Act was designed to promote the “ ‘timely cleanup of hazardou s waste sites’ ” and to ensure that the costs of such cleanup efforts were borne by those respon sible for th e contamina

tion. Consolidated Ed ison Co. of N. Y. v. UGI Util., Inc. , 423 F. 3d 90, 94 (CA2 2005); see also Meghrig v. KFC W

e st er n, Inc

. , 516 U. S. 479, 483 (1996); De dham Wa te r Co. v. Cu mberland Farms Dai r y, Inc. , 80 5 F. 2d 10 74, 1081 (CA1 1986). These cases raise the quest ions whether and to what extent a party associated with a contaminated2 BURLINGTO NN. & S

. F. R

. C O . v. UNITED STATES Opinion of theCourt 

### site may be held responsible for the full costs of remedia

tion. I In 1960, Br own & Bryant, Inc. (B&B), began operatin g an agricultural chemical distribution busin ess , purchasing pesticides and other chemicalp r oducts f r om suppliers such as Shell Oil Com p any (Shell). Using its own equi p ment, B&B applied its products to customers’ farms. B&B opened its business ona 3.8 acre parcel of former farm

land in Arvin, California, and in 1975, expanded opera

tions onto an adjacent .9 acre parc el of land owned jointl y by the Atchison, Topeka & Santa Fe Railway Company, and the So uthern Pacific Transportation Company (no w known resp ectively as the Bu rlington Northern and Santa Fe Railway Company and Union Pacific Ra ilroad Com

pany) (Railroads). Both parcels of the Arvin facility were graded toward a sump and drainage pond located on th e southeast corner of the primary parcel. Se e Appendix , infra

. Neither the su mp nor the drainage pond was lined until 1979, allowing waste water and chemical runoff from the facility to seep into the ground water below. During its years of operation, B&B stored and distrib

uted various hazardous chemicals on its property. Among these were the herbicide dinose b, sold by Do w Chemical s, and the pes t icides D–D and Nema gon, both s o ld by Shell. Dinoseb was stored in 55-gallon d r ums and 5-gallon con

tainers on a concrete slab out s ide B&B’s warehouse. Nemagon was stored in 30-gallon drums and 5-gallon containers inside the warehouse. Originally, B&B pu r chased D–D in 55-ga llon drums; beginning in the mid

1960’s, however, Shell began requiring its dis tributors to maintain b u lk storage facilities f o r D–D. Fro m that time onward, B& B purchase dD–D in b u lk. 1

——————

1 Beca us e D–D is corros ive, b u lk s t orage of the chemical led to nu

-3 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt 

### When B&B purchased D–D, She ll would arrange fo r delivery by common carrier, f.o.b. destination. 2 

### When the product ar r i ved, it was transferredfrom tanker truc k s to a bulk storage tank located on B&B’s primary parcel. From there, the chemical was transferred to bobtail trucks, nurse tanks , and pull rigs. During each of thes e transfers leaks and spills could

— and often did—occur. Although the common carrier and B&B used buckets to catch spills from hoses and gaskets connecti ng the tanker truc k s to its bulkstorage tank , the buck e ts so metimes overflowed or were knocked over, causing D–D to spill ont o the ground during the t r ansfer process. Aware that spills of D–D were co mmonplace among its distributors, in the lat e 1970’s Sh ell took several steps t o encourage the safe ha ndling of it s products. Shellpro vided distributors with detailed s a fety manuals and in sti

tuted a vol untary discount pr ogr a m for distributors th at made improvements in their bulk handling and safety facilities. Later, Shell revised i t s program to require distributors to obtain an inspection by a qualified engineer and provide self-certification of compliance with applicable laws and re gulations. B&B’s Arvi n facility was inspected twice, and in 1981, B&B certified to Shell that it had made a number of recommended improvements to it s facilities. Despite these improvements, B&B remained a “ ‘[s]loppy ’ [ o ]perator.” App. to P e t. for Cer t . in No. 07 – 1601, p. 130a. Over th e course of B&B’s 28 years of opera

tion, delivery spills, eq uipment fai l ures, and t h e rinsing of

—————— mer o u s tan kfailu r e s an d spill s a s th e c h emic al r u sted tan k s an d eroded valves.

2 F.o.b

. des t i n at i o n m e a n s “the s e l l e r m u stathi s own expens e a n d risk transport the goods to [ t he de stinatio n] and there tender delivery of th em . . . .” U. C. C. §2–319( 1)(b) (2 00 1). Th e Distr i c tCou r t fou n d that B & B a s s u med “stew a r d ship” ov erthe D–D as soon as the c o mmo n carrier entere d the Arvin facility. App. to Pet. for Cert. in No. 07– 160 1 , p. 124a.4 BURLINGTO NN. & S

. F. R

. C O . v. UNITED STATES Opinion of theCourt 

### tanks and trucks allowed Nemagon, D–D an d dinoseb to seep into the soil and upper levels of ground water of the Arvin facility. In 1983, the California Departm ent of Toxic Substances Control (DTSC) began investigating B&B’s violation of hazardous waste laws, and the United State s Environmental Protection Agency (EPA) soon fo llowe d suit, discovering significant contamination of soil a n d ground water. Of particular conce r n was a pl ume of con

taminated ground water located under the facility that threatened to leach in to an adjacent supply of potential drinking water. 3 

### Although B&B undertook some efforts at re mediation, by 1989 it had become insolvent an d ceased all operations. That same year, the Arvin facility was added to the Na

tional Priority List, see 54 Fed. Reg. 41027, and subse

quently, DTSC and EPA (Gove r nments) exercised their authority u n der 42 U. S. C. §9604 to undertake cleanup efforts at the site. By 1998, the Governments had spen t more than $8 milli on responding to the site contamina

tion; their costs have continued to accrue. In 1991, EPA issued an adminis trative order to the Railroads directing the m , as owners of a portion of the property on which the Arvin facility was located, to per

form certai nremedial tasks inc o nnection with the si te. The Railroa ds did so, incurring expenses of more than $3 millionin t h e process. Seeking to recover at least a por

tion of theirresponse c o sts, in 199 2 the Railro a ds brought

——————

3 The g r ound watera tthe Arv i n site is divi ded into three zones. The A-zone is loca ted 6 0

– 80 fee tbelow th e ground. It has been testedan d found to havehigh levels of contaminatio n. The B-zone is locate d 15 0 feet b e low gr ound. Although the B-zone is not curre ntly us ed as a s o urce of drin king wa t e r, it ha s t h e pot e ntia l t os e rve as s u ch as o urce. No conta m ination ha s yet been found in tha tzone. The C-zone is a n aqu iferloc a te d 200 feet bel o w g r ou n d

. Itis th e sole c u r r e n tsour c eof drinking wa ter a n d, thus fa r, ha s s u ffere d no conta m ina t ion from the Arv i n site.5 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt 

### suit against B&B in t h e United States Dist rict Court f o r the Eastern District of California. In 1996, that lawsui t was consolidated withtwo recov e ry actions brought b y DTSC and EPA agains t Shell and the Railroads. The District Court co nducted a 6-week ben c h trial in 1999 and four years l a ter entered a ju dgme nt in favor of the Governments. In a lengthy order supported by 50 7 separate findings of fact and conclusions of law, the cour t held that b o th the Rai l roads and Shell were potentially responsible parties (PRPs) under CERCLA—the Railroads because they were owners of a portion of the facility, see 42 U. S. C. §§9607(a)( 1 )–(2), and Shell bec ause it ha d “arranged for” the disposal of hazardous substances through its sale and delivery of D–D, see §960 7(a)(3). Although t h e court found the parties liable, it did not impose join t and several liability on Shell and the Rail

roads for th e entire response cost incurred b y the Govern

ments. The court found that the site contamination cre

ated a sin gle harm but concluded that the harm was divisible an d therefore capable of apportionment. Based on three figures—the percentage of the total area of th e facility that was owned by the Railroads, the duration of B&B’s business divided by the term of the Railroads’ lease, and the C o urt’s dete rmination that only two of th r ee polluting chemicals s p illed on the leased p a rcel required remediation and that those two chemicals were responsi

ble for roughly two-thirds of the overall site contamination requiring r e mediation—the courtapportioned the Rail

roads’ liability as 9% of the Governments’ total response cost. 4

### Based on estim a tions of chemicals s p ills of Shell

——————

4 Althoughthe Rai l r o ads di d not pr oduce precise figures regarding the ex ac t quantityof c h emi c al spill s on each parcel in each year of the facility’s oper ation, the Dis t rict Co urt found it “indisp u table that the overwhelming majority of hazardous substances were released from th e B&B parcel.” Id. , at 248a. Th e c o u r t ex pl ain e d th at “th e pr edomin an t ac tiv i ties c o nduc ted on the Railr oa d pa r c e l thr o ugh the y e ar s wer e6 BURLINGTO NN. & S

. F. R

. C O . v. UNITED STATES Opinion of theCourt 

### products, th e court heldShell liable for 6% of t h e total site response cost. The Gover n ments appealed the DistrictCo urt’s a ppor tionment, a n d Shell cross-appeal ed the court’s finding of liability. The Court of Appeals a c knowledge dthat Shell did not q ualify as a “tra ditional” arranger under §9607(a)(3), insofar as it had not contracted with B&B to directly dispose of a h a zardous waste product. 520 F. 3d 918, 948 (CA9 2008). Nevertheless, the court stated that Shell could still be hel dliable under a “ ‘bro ader’ ca tegory of arranger liability” if the “disposal of haza r dous wastes [wa]s a foreseeabl e byproduct of, but not the purpose of , the transaction giving rise to” a rranger liability. Ibi d

. Relying on CER CLA’ s definitionof “disposal,” which cov ers acts such as “leaking” and “spilling,” 42 U. S. C. §6903(3), the Ninth Circuit concluded that an entity could arrange for “disposal” “even if it di d not intend to dispose ” of a hazardous substan c e. 520 F. 3d, at 949. Applying that theory of arr anger liability to the District Court’s find ings of fact, the Ninth Circuit hel dthatShel l arranged for the disposal of ahazardous substance through its sale and delivery of D–D: “Shell arra nged for delivery of th e substances to th e site by its subcontracto rs; was aware of, and to some degree dict ated, the tr ansfer arra ngements; knew tha t some leakage was like l y in the transfer process; and provided a dvice and supervision concerning safe transfer and storage. Disposal of a hazardous sub

stance was thus a necessary part of the sale and de

livery proce ss.” Id. , at 950.

—————— stor ag e an d some w a sh in gan d r i n s in g of t a n k s, oth e r r e c e ptac les, an d chemical application vehicles. Mi xing, formulating, loading, and unloa ding of a g -chemica l ha za rdous sub s ta nces , w h ich contrib u ted most of the li abil i tyc a usingr e leas es, were predominantly carried o u t byB&B on the B&B parcel.” Id. , at 247 a–2 48a.7 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt 

### Under such circumstan ces, the court concluded, arranger liability was not preclu ded by the fact that the purpose of Shell’s action had been to transport a useful and previ

ously unused product to B&B for sa le. On the subj ect of appo rtionment, the Court o f Appeals found “no dispute” on the question whether the harm caused by Shell and the Railroad s was capable of appor tionment. Id. , at 942. The court observed that a portion of the site contamination occurre d be fore the Railroad parcel became part of the facility, only some of th e hazardous substances were stored on the Railroad parce l, and “only some of th e water on the facility washed o v er the Rai l

roads’ site.” Ibid. Wit hrespect to Sh ell, the court noted that not all of the ha zardous substances spilled on th e facility had been soldby Shell. Given tho s e facts, th e court readily concluded that “the contamination traceable to the Railroads and Shell, with adequate information , would be allocable, as would be the cost of cleaning up tha t contamination.” Ibid. Nevertheless, the Court of Appeals held that t h e DistrictCourt err e d in finding that th e record esta blished a reasonable basis for apportionment. Because the burden of proof onthe questi o n of apportion

ment rested with Shell and the Railroads, the Court of Appeals reversed the DistrictC o urt’s appo rtionment of liability an d held Shell and the Railroads jointly and severally liable for the Governme nts’ cost of responding to the contamination of the Arvin faci lity. The Railroads and Sh ell moved for rehearing en banc, which the Court of Appeals denied over the dissent o f eight judge s . See id. , at 952 (Bea, J., diss enting). We granted cer t iorari to determine whether Shell was prop

erly held liable as an entity that had “arra nged for dis

posal” of h a zardous substances within the meaning of §9607(a)(3), and whether Shell and the Railroads were properly he ld liable forall response costs incurred by EPA and the State of Cali fornia. See 554 U. S. ___ (200 8).8 BURLINGTO NN. & S

. F. R

. C O . v. UNITED STATES Opinion of theCourt 

### Finding err o r on both points, we now reverse. II CERCLA i m poses strict liabilit y for environmental con

tamination upon four broad classes of PRPs: “(1) the owner and operator of a vessel or a facility, “(2) any person [5] 

### who a tthe time o f disposal of any hazardous s ubstance owned orope r ated any facility at which such hazardous substances were disposed of, “(3) any pe rson who by contract, agreement, or oth

erwise arranged for disposal ortreatment, or ar

ranged wit ha transpo rter for tra nsport for d i sposal or treatment, of hazardous substances owned or pos

sessed by such person, by an y oth e r part y or entity, a t any facility or inciner a tionvessel owned or operated by another party or entity an d containing such haz

ardous substances, and “(4) any pe rson who accepts or a ccepted an y haz

ardous substances for transport to disposal or treat

ment facilities, incin e ration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of re

sponse cos t s, of a h a zardous substance.

. . .” 42 U. S. C. §9607(a). Once an entity is identified as aP R P , i tm a yb e c o m p e l l e d to clean up a contaminated area or reimburse the Gov

ernment for its past and future response costs. See Coope r

——————

5 For purposes of the statute, a “per son” is defined as “anindividual, firm , corpora t ion, a s s o ciat ion, pa rt ners hip, cons ortium, j o int venture, c o mmer c i al entity , United State s Gov e r n ment, State, munic i pality , commiss ion, political sub d ivision of a St at e, or an yin tersta te body .” 42 U. S. C. §9601 (21).9 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt 

### Industries, Inc. v. Aviall Services, Inc. , 543 U. S. 157, 161 (2004). 6 

### In these ca ses, it is un disputed that the Railroads qual

ify as PRPs under both §§9607(a)(1) and 9 607(a)(2) be

cause they owned the land leased by B&B at the time o f the contamination and continue to own it now. The more difficult question is whether Shell also qualifies as a PRP under §9607(a)(3) by virtue of the circums tances sur

rounding its sales to B & B. To determine whether Shell maybe held liable as an arranger, we begin with the language of the statute. As relevant here, §9607(a)(3) applies to an entity tha t“a r range[s] for disposal . . . of hazardous subst ances.” It is plain from the language of the statute th at CERCLA liability would attach under §9607(a)(3) if a nentity we re to enter into a transaction for the sole purpose of discard

ing a used and no long er useful ha zardous substance. It is similarly clear that an entity could not be h e ldliable as a n arranger merely for selling a new and useful product if the purchaser of that product later, and unbeknownst to the seller, disposed of the produc t ina wa y tha tled to co n tamination. See F ree manv. Gl axo Well come, Inc. , 18 9 F. 3d 160, 164 (CA2 1999); Florida Power & Light Co. v. Allis Chal mers Corp. , 893 F. 2d 1313, 1318 (CA11 1990). Less clear is the liability at tachin g to the ma ny permuta

tions of “arrangements” that fall between these two ex

-

——————

6 Under CERCLA, PRPs are liab l e for: “(A) al l cost s of remov a l or r e medial ac tio nin cu r r e d by th e Un ited State s Gov e r n men tora Sta t e or an Indian t r ibe not incons istent with the national c o nting e nc yplan;

“ ( B) a n y ot herneces s a ry cos t s of res p ons eincur r ed b ya n y ot herper s o n cons is tent with the na tiona lcontingen c y pla n ;

“ ( C) dam a ges for inj u ry t o , d e s t ruct ion of, or los s of nat u ra l res o urces , including t h e rea s onab l e cost s of as s e ss ing s u ch inj u ry , des t ruct ion, or loss r e su ltin gfr om su c ha r e l e ase; an d

“(D ) th e c o sts of an yh e alth asse ss men tor h e altheffec t s stu d yc a r r i ed ou t u n d er sec t ion9604(i) of t h is title.” §96 07(a)( 4).10 BURLINGTO NN. & S

. F. R

. C O . v. UNITED STATES Opinion of theCourt 

### tremes—ca ses in whic h the sel l erhas som e knowledge of the buyers’ planned disposal or whose motives for the “sale” of a hazardous substance are less than clear. I n such cases, courts hav e concluded thatthe d e termination whether anentity is a narranger requires a fact-intensive inquiry tha tlooks beyond the pa rties’ chara cterization of the transaction as a “disposal” or a “sale” and seeks to discern whether the arrangement was one Congress in

tended to fa ll within th e scope of CERCLA’s s t rict-liability provisions. See Freem an , 189 F. 3d, at 164; Pneumo Abex Corp. v. Hi gh Point, Thomasville & Den t on R. Co. , 142 F. 3d 769, 775 (CA4 1998) (“ ‘[T]here i s no bright line between a sale and a disposal under CERCLA. A pa rty’s responsi

bility .

. . must by necessity turn o na fact-specific inquiry into the nature of the transaction’ ” (quoting United Sta t es v. Pe te rsenSand & Gr avel , 806 F. Supp. 1346, 1354 (ND Ill. 1992))); Florida Po wer & Ligh t Co. , 893 F. 2d, at 1318. Although we agree that the question whether §9607(a)(3) liability attaches is fact intensive and cas e specific, such liability may not extend beyond the limits of the statute itself. Bec ause CERC LA does no t specifically define what it means to “arrang[e] for” disposal of a haz

ardous substance, see, e.g. , United Sta t esv. Cello-Fo il Prods., Inc. , 100 F. 3d 1227, 123 1 (CA6 1996); Amcas t Indus. Corp. v. De trex Corp. , 2 F. 3d 746, 751 (CA7 1993); Florida Po wer & Ligh t Co. , 893 F. 2d, at 1317, we give the phrase its ordinary m e aning. Cr awfordv. Metropolitan Governm e nt of Nashv ille and Davidson Cty. , 555 U. S. ____ (2009) ; Perrinv. United States , 444 U. S. 37, 42 (1979). In common parlance, the word “arra nge” implies action directed to a specific purpose. See MerriamWebster’s Collegiate Dictionary 64 (10th ed. 1993) (defin

ing “arrang e” as “to make prepar ations for: plan[;] . . . to bring about an agreem ent or unde r standing concerning”); see also A m cast Indus. Corp. , 2 F. 3d, at 75 1 (words “ ‘ar

ranged for’ . . . imply intentional action”). Consequently,11 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt 

### under the plain langu a ge of the statute, an entity may qualify as an arrange runder §9 607(a)(3) when it take s intentional steps to dispose of a hazardous substance. Se e Cello-Foil Prods., Inc. , 100 F. 3d, at 1231 (“[ I ]t would b e error for us not to recognize the indispensable role th at state of mind must play in determining whether a party has ‘otherwise arranged for disposal .

. . of hazardous substances’ ”). The Govern ments do n o t deny tha tthe sta t ut e requires an entity t o “arrang [e] for” disposal; however, theyinter

pret tha tp h rase by re ference to t h e statutor y term “dis

posal,” which the Act broadly defines as “the discharge, deposit, inj e ction, dumping, spillin g, leaking, or placing of any solid waste or hazardous wa ste into or on any land or water.” 42 U. S. C. §69 03(3); see also §9601(2 9 ) (adoptin g the definition of “disposal” contained in the Solid Waste Disposal Act). 7

### The Governments a ssert that by including unintention al acts such as “spilling” and “leaking” in the definition of disposal, Congress intended to impose liab i l

ity on entities not only when they directly dispose of waste products bu t also when they engag e in legitimate sales o f hazardous substances 8

### knowing that some di sposal may occur as a c o llateral consequence of the sale itself. Apply

ing that reading of th e statute, the Govern ments contend that Shell arranged for the disposal of D–D within th e meaning of §9607(a)(3) by shippi ng D–D to B&B under conditions it knew would result in the spilling of a portion

——————

7 “Hazar dou s w a ste ” i s defin e d as “ aso lid waste, orc o m b in ationof s o lid was t es , which

. . . may. . . pos ea su bst a n t ia l pr es ent or potential ha za rd to hu ma n hea l th orthe envi ronm ent whe nimproperly treate d, stored, transp orted, or disposed of, or othe rwise managed.” §6903(5)(B); §960 1(29).

8 CERCLA defi nes “hazardo us subst a nce” to include a v a rietyof c h emic als an dtox i n s in c l u d in gth ose desig n ated byEPA as airpollu t

ants , water pollutants , and solid was t es . §9601(14).12 BURLINGTO NN. & S

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. C O . v. UNITED STATES Opinion of theCourt 

### of the hazardous substance by the purchaser or common carrier. See Brief for United States 24 (“Although the delivery of a useful pr oduct was the ultimate purposeof the arrang ement, Shell’s continued particip a tion in the delivery, with knowledge that s p ills and l e aks woul d result, was sufficient to establish Shell’s intent to dispose of hazardous substan c es”). Because these s p ills result ed in wasted D–D, a result Shell anticipated, the Govern

ments insis tthat Shell was properly found to have ar

ranged for the disposal of D–D. While it is true that in some instan ces an entity’s knowl

edge that i t s product will be leaked, spilled, dumped, or otherwise discarded m a y provid e evidence of the entity’s intent to dispose of its hazardous wastes, k n owledge alone is insufficient to prove that an entity “planned for” th e disposal, particularly when the disposal oc curs as a pe ripheral result of the legitimate sale of an u nused, usef ul product. In order to qualify as an arrange r , Shell mus t have entered into the sale of D–D with the intention that at least a portion of the product be disposed of during the transfer process by one or more o f the methods described in §6903(3). Here, the facts found by the District Court do not supportsuch a conclusion. Although the evidence adduced at trial showed that Shell was aware that minor, accidental spills occurred during the transfer of D–D f r om the common carrier t o B&B ’ s bulk storage ta nks after th e product h a d arrived at the Arvin facility and had come u n der B&B’s stewardship, the eviden ce does n o t support an inferenc e that Shell intended such spills to occur. To the contrary, the evi

dence revealed that Shell tooknumerous steps to encour

age its distributors to reduce the l i kelihood of such spills, providing them with detailed sa fety manuals, requirin g them to maintain adequate st orage facilities, and provid

ing discounts for those that t ook safety precautions. Al

though She ll’s efforts were less than wholly successful,13 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt 

### given these facts, Shell’s mere knowledge that spills an d leaks continued to occ u r is insuff icient grounds for con

cluding th at Shell “arranged for” the disposal of D–D within the meaning of §9607(a)(3 ). Accordin gly, we con

clude that Shell was not liable as an arranger for th e contamination that occurred at B&B’s Arvin facility. III Having concluded that Shell is not liable as anarranger, we need not decide wh ether th e Court of App e als erred in reversing t h e DistrictCourt’ s apportionment of Shell ’ s liability for the cost of remediation. We must, however, determine whether the Railroads were properly held jointly and severally liable for the full cost of the Gover n ments’ response efforts

. The semina l opinion onthe subject of apportio n ment in CERCLA a ctions was written in 1 983 by Chie f Judge Ca rl Rubin of th e United States District Court for the Southern District of Ohio. United Sta t es v. Chem-Dyn e Corp., 572 F. Supp. 80 2. After reviewing CERCLA’s h i story, Chief Judge Rubin concluded that although the Act imposed a “strict liability standard,” id. , at 805, it did n o t mandate “joint and several” liability in every case. See id. , at 807. Rather, Congress intended the s c ope of l i ab ility to “b e determined from traditional andevolving principles of common law[.]” Id. , at 808. The Chem-Dyneapproach h a s been fully embraced by the Courts of Appeals. See, e. g. , In re Bell P e troleum Se rvice s , Inc. , 3 F. 3d 889, 901–902 (CA5 1993); United S t a t esv. AlcanAluminum Corp. , 964 F. 2d 252, 268 (CA3 19 92); O’N eil v. Picillo , 8 83 F. 2d 176, 178 (CA1 1989); Unit ed St at esv. Monsanto Co. , 858 F. 2d 160, 171–17 3 (CA4 1988). Following Chem-Dyne , the courts of appeals have ac

knowledged that “[t]he univers al starting poi n t for divisi

bility of harm analyses in CERCLA cases” is §433A of the Restatement (Second) of Torts. United Statesv. H e rc ules ,14 BURLINGTO NN. & S

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. C O . v. UNITED STATES Opinion of theCourt 

### Inc. , 247 F. 3d 706, 717 (CA8 200 1); Chem-Nuclear Sys

tems, Inc. v. Bu sh , 2 92 F. 3d 2 54, 259 (CADC 2002); UnitedS t atesv. R. W. Meyer, Inc

. , 889 F. 2 d1497, 1507 (CA6 1989). Under the Restatement, “when two or more persons acting independently caus[e] a distinct or single harm for which th ere is a reasonable basis for divisionaccording to the contri

bution of each, each is subject to l i ability onl yfor the portion of the total ha rm that he has himself caused. Restatement (Second) of Torts, §§433A, 881 (1976); Prosser, Law of Torts, pp. 313–314 (4th ed. 1 971) .

. . . But where two or more persons cause a single and in

divisible ha rm, each is subject to liability for the en

tire harm. Restatement (Second) of Tor t s, §875; Prosser, at 315–316.” Chem-DyneCorp. , 572 F. Supp. , at 810. In other words, apportionment is proper whe n“there is a reasonable basis for determining the contribution of each cause to a single harm.” Restatement (Second) of Torts §433A(1)(b), p. 434 (1963–1964). Not all harms are capable of apportionment, however, and CERC LA defendants seeking to avoid joint and sev

eral liability bear the burden of proving that a reasonable basis for apportionment exists. Se e Chem-Dy n e Corp. , 57 2 F. Supp., at 810 (citing Restatement (Second) of Torts §433B (1976)) (placing burden of proof on pa rty seeking apportionment). Whe ntwo or more cause s produce a single, indivisible harm, “courts have refused to make an arbitrary apportionment for its own sake, and each of the causes is charged with responsibility for the entire harm.” Restatement (Second) of Torts §4 33A, Comment i , p. 44 0 (1963–1964). Neither th e parties nor the lower courts d i spute the principles that governa pportionment in CERCLA cas e s, and both the District Court and Court of Appeals agreed15 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt 

### that the ha rm created by the contamination of the Arvi n site, althou gh singular, was theoretically capa ble of appor

tionment. The question then is whether th e record p r o vided a reasonable bas is for th e District Court’s conclusion that the Railroads were liable fo r only 9% of the harm caused by contamination at the Arvin facility. The District Court criticized the Railroads for taking a
“ ‘scorched earth,’ all-or-nothing approach to liability,” failing to ac knowledge any responsibility for t h e releas e of hazardous substances that occurred on their parcel throughoutthe 13-year period of B&B ’ s lease. Accordin g to the Dist rict Cour t, the Railroads’ position on liability, combined with the Governments’ refusal to acknowledg e the potential divisibility of the harm, com p licated th e apportioning of liabil i ty. See App. to Pet. for Cert. in No. 07–1601, at 236a–237a (“All parties .

. . effectively abdi

cated provi d ing any helpful arguments to the court and have left the court to independently perform t h e equitable apportionment analysis demanded by the circumstances of the case”). 9 

### Yet despite the par t ies’ failure to assist the

——————

9 As the Gov e rnments poin t out, insofaras the Distr i c tCour t made reference to equitable consi d erations favoring a pport ionm ent , iterred. Equ i table c o n s ider ation s pl ayn or o le inth e appor t ion m en t an aly s i s ; rather, apportionment is pr oper on ly whe nthe evidence supports th e divisib ility of the damages j o intly ca used by the PRPs. See generally United Stat esv. He rc ule s , Inc. , 247 F. 3d 706, 7 1 8

– 7 19 (CA 82 001 ); United States v. Brighton , 1 53 F. 3d 307, 318–3 19 (CA 6199 8); Redwing Carriers, In c. v. Saraland Apartm ent s , 94 F. 3d 14 8 9 , 151 3 (CA 1 1 199 6). As th e Cou r t of Appeals ex plai ned, “[a]pportionment . . . looks to wh eth e rdefendan ts mayav oid join t an d sev e r a l liabili t ybyestabli s h

ing afixeda m ountof da m a ge for wh ich they are liable,” while contribu

tion actions al low jointly an d severallyliab l e PRPs t orecover f r omea ch oth e ronth e b a si s of e q u i table c o n s ider at ion s . 5 20 F. 3 d91 8, 9 3 9 –94 0 (CA9 2008); se e also 42 U. S. C. § 9613(f)(1) (providing that, “[i]n reso lv

ing cont rib u t i on cla i m s , t h e courtm a y a lloca t eres p onse cos t s am ong liab l e partie s using such equitable f a c t or s as the c o ur t deter m ines ar e appropriate”). The error is of no cons eq uen c e, ho weve r, b e ca us e des p ite the Distr i c t Cour t’ s r e fer e nc e to equity , its ac tual appor t ionmen t16 BURLINGTO NN. & S

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### court in linking the ev idence supporting appo rtionment t o the proper allocation of liability, the District Court ulti

mately concluded that this was “a classic ‘divisible in terms of degree’ case, both as to t h e time peri od in whic h defendants’ conduct occurred, and ownership existed, and as to the estimated ma ximum cont ribution of each part y’s activities that released hazardou s substances that caus ed Site contamination.” Id. , at 23 9a. Consequently, the DistrictCo urt ap porti oned liability, assigni n g the Rai l

roads 9% of the total remediation costs. The District Court calcul ated the Railroads’ liability based on three figures. First, t h e court n o ted that t h e Railroad parcel constituted only 19% of the surface area of the Arvin site. Second, the court observed that the Rail

roads had leased their parcel to B&B for 13 years, whi c h was only 45% of the ti me B&B operated the Arvin facility. Finally, the court found that th e volume of hazardous

substance-releasing activities on the B&B pro p erty was a t least 10 times greater than the releases th at occurred on the Railroad parcel, and it concl u ded that only spills of two chemicals, Nemago n and dinoseb (not D–D), substan

tially contri buted to the contamination that ha d originate d on the Rai l r oad parcel and that those two c h emicals h a d contributedto two-thir ds of the ov erall site contamination requiring remediation. The court then multi p lied .19 by .45 by .66 (two-thirds) and rounded up to determine tha t the Railroads were re sponsible f o r approximately 6% of the remediation costs. “Allowi ng for calculati o n errors up to 50%,” th e court concluded thatthe Railroads could be held responsible for 9% of the total CER CLA r e sponse cost for the Arvi n site. Id. , at 252a. The Court of Appeals criticized t h e evidence on whic h

—————— decision was properly rooted in ev idencethat provided a reasonabl e bas is for identifying the po rtion of the har mattr ibut ab le to the Rai l

roa d s .17 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt 

### the DistrictCourt’s co nclusions rested, finding a lack o f sufficient data to establish the precise proportion of con

tamination that oc cur r ed on the relative p o rtions of the Arvin facility and the rate of contamination i nthe years prior to B& B’s additio nof the Railroad parc el. The court noted that neither the duration of the lease nor the size of the leas ed area alone was a reliable mea s ure of th e har m caused by activities on the p r operty o w ned by the Ra il

roads, and—as the court’s upward adjustme nt confirmed— the court had relied on estimates rather tha nspecific and detailed records as a basis for its conclusions. Despite these criticisms, we conclude that the facts contained in the record re asonably supporte d the appor

tionment of liability. The District Court’s detailed find

ings make it abundantl yclear tha tthe primary pollution at the Arvi n facility was contai ned in an unlined sump and an unlined pond in the sout heastern portion of th e facility most distant from the Rai l roads’ parcel and that the spills of hazardo us chemicals that occurred on the Railroad parcel contributed to no more than 10% of t h e total site contamination, see id. , at 247a–2 48a, some of which did not require remediation. With those back

ground facts in mind, we are persuaded that it was rea sonable forthe court to use the size of the leased parce l and the du ration of the lease as the startingpoint for its analysis. Although the Court of Appeals fa ulted the Dis

trict Court for relying on the “simplest of considerations: percentages of land area, time of ownership, a n d types of hazardous products,” 520 F. 3d, at 943, these were th e same factors the cou rt had ear lier acknowledged were relev antto the apportionment an alysis. See id. , at 936 , n.18(“We of course agree with our sister circuits that, i f adequate i n formation is available, divisib ility may be established by ‘volumetric, ch ro nological, or other ty pes of evidence,’ including approp riate geographic considera

tions” (citations omitted)).18 BURLINGTO NN. & S

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### The Court of Appeals also criticized the District Court ’ s assumption that spills of Nemagon and dinoseb were responsible for only t w o-thirds of the chemi c al spills re quiring remediation, observing that each PRP’s share of the total ha rm was not necessarily equal to the quantity of pollutants that were deposited on its portion of the total facility. Although the evidence adduced by the parties di d not allow the court to calculate precisely th e amount of hazardous chemicals contributed b ythe Railro a d parcel to the total site contamination or t h e exact p e rcentage o f harm caused by each chemical, th e evidence did show that fewer spills occurred o nthe Railroad parcel and that of those spills that occurred, not all were carri ed across the Railroad parcel to the B&B sump and pond from which most of the contamination originated. The fact that no D– D spills on the Railroad parcel required remediation lend s strength to the Distric tCourt’s co nclusion that the Rail

road parcelcontributed only Nemagon and dinoseb in quantities requiring remediation. The Distric tCour t’s conclusion that those t w o chemicals accounted f o r only two- thirds of th e contamination requir

ing remediation finds less suppor tin the rec o rd; however, any miscalculation on that point is harmless in light of th e District Co urt’s ultim a te allo cati on of l i abi lity, which included a 50% margin of error e qual to the 3% redu ction in liability the District Court pro vided based on its as

sessment of the effect of the Nemagon and dinoseb spil l s . Had the Di strict Cour tlimited its apportionment calcula

tions to the amount of time the Railroad parcel was in use and the percentage of the facility l o cated on that parcel, it would have assigned the Railroads 9% of the response cost. By including a two-thirds reduction in liability for the Nemagon and dinoseb with a 50% “margin of error,” the Distric tCourt reac hed the same result. Because t h e District Co urt’s ulti mate allocation of liabilit y is supported by the evidence and comports with the apportionment19 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt 

### principles outlined above, we reve rse the Court of Appeal s’ conclusion that the Railroads are subject to joint and several liab ility for allresponse c o sts arising out of the contamination of the Arvin facility. IV For the foregoing reasons, we conclude that th e Court o f Appeals erred by holding Shell liable as an arranger under CER CLA fo r the costs of remediating environmental con

tamination at the Arvi n, Californi a facility. Furthermore, we conclude that the Dis trict Court reasonably appor

tioned the Railroads’ share of the site remediation costs at 9%. The judgme nt is reversed, and the cases are remanded for furtherproceedings consistent with th is opinion. It is so orde red.Opinion of theCourt 20 BURLINGTO NN. & S

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. C O . v. UNITED STATES Appendix to opinion of the C o urt 

### APPENDIX_________________

_________________ 1 Cite as: 55 6 U

. S. ____ (2009) G IN SB U R G , J., dis s e nting 

# SUPREME CO URT O FTHE UNI TED STATES
Nos. 07– 16 01 an d 07– 160 7 

### BURLI N GTON NORT HER NA N D SA NTA F E RAILWA Y COMPANY , ET AL 

### ., PETITIONERS 07–1601 v. UNITE D STATE S ET AL


### . SHELL OIL COM PANY, PETIT I ONER 07–1607 v. UNITE D STATE S ET AL


### . ON WRITS OF CERTIORARI TO THE UNITED STAT ES COURT OF APPEAL S FOR THE NINT H CIRCUIT [M ay4, 2009] 

### J USTICE 

### G IN S B UR G 

### , dissenting. Although the questionis close, I would uphold the determinations of the courts below that Shell qualifies as an arranger within the compass of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). See 42 U. S. C. §9607(a)(3). As the facts found by th e District C o urt bear out, App. to Pet. for Cer t
. in No. 07– 1601, pp. 113a–129a, 208a–213 a, Shell “a rranged for disposal .

. . of hazardous substances” owned b y Shell when the arrange m ents were made. 1 

### In the 1950’s and early 1960’s, Shell shipped most of its products to Brownand Bryant (B&B) in 55-gallon drums, thereby ensuring against spillage or leakage during delivery and tra nsfer. Id., at 89a, 115 a. Later, Shell found it economicall yadvantageous, in li eu of shipping in drums,

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1 “Disposal” i s defin e d in42 U. S. C. §6903 (3) to in c l u d e “spil lin g[or] leaking” of “any .

. . hazardous was t e into or on any la nd or water so that [the] .

. . hazardous was t e or anyc o nstituent ther e o f mayenterthe env i r o nment orbe emitted into the ai r or di s c ha rged int o a n y wa t e rs .”2 BURLINGTO NN. & S

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. C O . v. UNITED STATES G IN SB U R G , J., dis s e nting 

### to require B&B to maintain bul k storage facilities fo r receipt of the chemicals B&B pur c h a sed from Shell. Id., at 115a. By the mid-196 0’s, Shell w a s deliverin g its chemical to B&B in b u lk tank tr uckloads. Id., at 89a, 115a. As the Court recognizes, “bu l k stora g e of the che m ical led t o numerous tank failures and spills as the che m ical rusted tanks and e r oded valves.” Ante , at 2–3, n. 1. Shell furthermore specified the equipment to be used i n transferrin gthe chemicals from the delivery truc kto B&B ’ s stor age tanks. App. to P e t. for Cert . in No. 07– 1601, pp. 1 20a–122a, 124a. 2 

### Int h e process, spills and leak s were inevitable, indeed spi lls occurred every time deliveries were made. 520 F. 3d 9 18, 950–951 (CA9 200 8). See also App. to Pet. for Cert. in No. 07–1601, pp. 119a– 122a (“It is undisputed that spills were inherent in the delivery pro c ess that Shell arranged . . . .”). That Shell sold B&B u s eful products, the Nin t h Circui t observed, did not exonerate Shell from CERCLA liability, for the sales “necessa rily and immediately result[ed] in the leakage of hazardous substances.” 520 F. 3d, at 950. The deliveries, Shell was well aware, directly and routinely resu lted in disposals of hazardous substances (through spills and leaks) for more than 20 years. “[M]e r e k n owledge” may not be enough, an te , at 13, but Shell did not simply know of the spills and l e aks without contributing to them

. Given the control rei nheld by S h ell over the mode of delivery and transfer, 520 F. 3d, at 950–951, the

——————

2 Shell shippedthe chemicals to B & B “F. O.B. Des t ination.” At oral ar g u ment, the Cour t asked Shell’ s c o unsel: Suppose there had been “n o transfer of ownership until the delivery [was] c o mp lete? ” In th at ev ent , couns el res p o n ded, “S hell would have been the owner of the waste.” Tr. of Oral Arg. 8. The Court credits the fac t that at the ti me of the spill s, the chemicals , having been s h ippe d “F.O.B. Des t ination,” “had come under B&B’s stewa r ds hip.” Ante , at 12. I nmyv i ew, CERCLA l i ab ili ty , or the absence thereof, sh ould not turn, in any part, o nsuch an em inently s h ipper -fixable s p ecification as “F.O.B. Des t ination

. ”3 Cite as: 55 6 U

. S. ____ (2009) G IN SB U R G , J., dis s e nting 

### lower courts held and I agree, Shell was properly rank ed an arrange r . Relieving Shell of a n y obligation to pay fo r the cleanup undertake n by the United State s and California is hardly commanded by CERCLA’s text, and is surely at odds wi th C ERC LA’s obje ctive—to place the cost of remediation on persons whose activities contributed to the contamination rather than on the taxpayin g public. As to apportioning costs, the District Court undertoo k an heroic labor. The Railroads and Shell, the court noted, had pursue d a “ ‘scorched earth,’ all-or-nothing approach to liability. Neither acknowledgedan iota of responsibil i ty

. . . . Neither party offe red helpful arguments to apportion liability.” App. to Pet. for Cert. in No. 07–1 601, p. 236 a, ¶455. Consequently, the court strived “independently [to] perform [a n] equitable apportionment analysis.” Id., at 237a, ¶455. Given the party presentation principle basic to our procedural system, Greenl a w v. Uni t ed Sta t es , 554 U. S. ___, ___ (2008) (slip op., at 5), it is questionabl e whether th e court should have p u rsued the matter su a sponte
. Se e Cas t ro v. United S t ates , 540 U. S. 375, 38 6 (2003) (S CALIA 

### , J., concurring) (“Our advers ary system is designed around the p r emise that the parties k n ow what is best f o r them, and are respons ible f o r advancing th e facts and a r guments entitling them to relief.”). Cf. Ka p lan, von M e hren, & Schaefer, Phases of German Civil Procedure I, 71 Harv. L. Rev. 1193, 1224 (19 58) (describing court’s obligation, under Ge rmany’s Code of Civil Procedure, to see to it t hat the case is fully developed). The trial court’s mode of procedure, the United State s urged before this Court, “depri ved the government of a fair opportunityto respon d to the court’s theories of apportionment a n d to rebu t their factual underpinnings—an opportunitythe governmen[t] would have had if those theories had been advanced by petitioners themselves.”4 BURLINGTO NN. & S

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. C O . v. UNITED STATES G IN SB U R G , J., dis s e nting 

### Brief for United State s 41. 3

### I wou l d return th ese cases to the Distric tCourt to gi ve all parti es a fair opportunity t o address th at court ’ s e n deavor to allocate costs. Becaus e the Court’s disposition precludes that opport unity, I dissent from the Court’s judgment.

——————

3 For e x ample, on brief, theUnitedState s observed: “[P]etitioners ident i fy no rec o rd s u pportfor t h e dis t rictcourt ’ s a s s u m p t i on t h a tea ch party’s contribution to the overall ha rm is proportional to the relative v o lume of hazar d ous subs ta nc es attr ib ut ab le to it.” Brief for United Sta t es 45. An d at or al ar g u men t , co unsel for the United States str e ssed that the Distr i c tCour t “fr a med the relevant inquiry as what percentage of the contamination was attr i b utable to the r a ilr oad par c e l, to the Shell-co ntrolled deliveries, an d to th e B&B p a r c e l. But it made no finding

. . . as to what the cos t of [remediation] would have been .

. . if the only sou rce of contami n ation had be en the railroad parcel.” Tr. of Or al Ar g . 52. See al so id., at 5 6(“[T]h e c r u c i al qu esti onis wh at r e sponse costs the go vernment would have been requiredto bear .

. . if only the railroad parcel’s contamina t ion had been at is s u e . . . .”).