A Uniform Approach for Determining Arranger Liability under CERCLA

I. INTRODUCTION The Comprehensive Environmental Response, Compensation, and Liability Act of 19801 (CERCLA) "is a broad, remedial statute enacted by Congress in order to enable the Environmental Protection Agency (EPA) to respond quickly and effectively to hazardous waste spills that threaten the environment."2 CERCLA places the ultimate responsibility for the cleanup of hazardous waste on those responsible for the problems caused by the disposal of that waste.3 Due to "the difficulty in prescribing in statutory terms liability standards which [would] be applicable in individual cases,"4 Congress deliberately gave the courts the task of developing a "uniform approach"5 of determining liability issues through the "traditional and evolving principles of common law."fi This has proven difficult since CERCLA "was prepared and passed in considerable haste"7 and as a result, the statute was "inadequately drafted."8 Courts have been left with the difficult task of determining its scope and intent.9 Due to ambiguity in the language of CERCLA,lo instead of a uniform approach, there is a split of opinion in federal courts on many issues that impact liability determinations.ll One issue on which courts are split is what the term "arranged for," as used in 42 U.S.C. 9607(a)(3),12 means.l3 Although Congress expressly defines some of CERCLA's statutory terms,l4 Congress did not clarify what is meant by the term "arranged for." "Interpretation of this term, however, is critical" to a determination of liability.l5 To add to the confusion, as courts nationwide struggle to interpret the term "arranged for,16the positions taken by individual courts may change over time. For example, in one action involving the Ekotek site in Utah, the federal district court in Utah stated that "[in] enacting CERCLA, Congress made the public policy decision to place the burden of the cost of remedying environmental damage upon `responsible parties,' an aptly-named class defined by Congress in sweeping terms, without regard to individual intent, expectation, guilty knowledge or degree of negligence."' Approximately two years later, in another case involving the Ekotek site, the court reasoned that "requiring intentional action is consistent with the plain language of the statute" and that "in order to hold a person responsible for arranger liability, the person must have intended to `get rid of its hazardous wastes.'"ls Courts attempting to interpret CERCLA's language are understandably confused by its language and may be persuaded more by a litigant's arguments as to how the language should be construed than by prior decisions of the court. Uncertainty in how courts interpret arranger liability under CERCLA can lead to unfair settlements"9 or excessive litigation 20 because so much is at stake. Litigation costs for CERCLA actions are significant. More than one third of the money spent on Superfund sites by the private sector is spent on litigation.21 CERCLA cleanup operations take an average of seven to ten years 22 and cost an average of thirty million dollars.23 It is not uncommon for site cleanups to cost almost one billion dollars,24 and at some sites, cleanups could reach fifty billion dollars.25 Since CERCLA liability is strict2 and applied jointly and severally,27 even slight variations in the manner courts determine arranger liability have significant ramifications for plaintiffs and defendants.2s Environmental problems are "often not susceptible of a local solution."29 Eliminating the dangers resulting from hazardous waste disposal requires "a national solution to a nationwide problem."30 Without uniform national standards, businesses that dispose of hazardous substances could skirt liability by locating "primarily in states with more lenient laws."31 Liability under CERCLA should depend on the nature of the activity engaged in, rather than the federal court in which the action is brought. Yet CERCLA is a federal statute that, in the eighteen years it has been in effect, has not developed a uniform approach to arranger liability. …