Hastings Law Journal


The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) authorizes and finances the cleanup of inactive hazardous waste sites, imposing cost liability on responsible parties. Since the Act's passage in 1980, courts and commentators alike have criticized the statute as a whole as being poorly drafted. This Note focuses on CERCLA section 107(a)(3), a particularly vague provision that imposes liability on those who arrange for the disposal or treatment of a hazardous substance. Left without a statutory definition of the term "arrange," the federal courts have been unable to develop a coherent standard for determining the scope of "arranger liability." Instead, courts have engaged in what can best be described as ad hoc, case-by-case decisionmaking. Accordingly, it is often difficult to determine when the sale of a recyclable hazardous substance will give rise to subsequent arranger liability.

The Ninth Circuit has been no stranger to the interpretive problems caused by the vague liability provision. In fact, until recently, arguably contradictory decisions on the subject existed in the Circuit. However, in Catellus Development Corp. v. United States, the court reconciled its previous decisions and apparently established a clear standard for determining when the sale of a hazardous substance gives rise to arranger liability.

This Note seeks protection from section 107(a)(3) liability for parties who engage in recycling transactions involving certain hazardous materials. In order to both encourage responsible recycling and respect the broad environmental goals of CERCLA, the author makes a two-part proposal. First, courts should follow the bright-line test established by the Ninth Circuit in Catellus. Second, Congress should approve the recycling exemption to arranger liability contained in the Superfund Recycling Equity Act, which currently awaits congressional action. Simultaneous adoption of these two reforms will provide courts and litigants with a clear rule to guide pretransaction decisions, prelitigation settlement decisions, and liability determinations.

Included in

Law Commons