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Copyright © 2016 McGraw-Hill Education. All rights reserved. No reproduction or distribution without
the prior written consent of McGraw-Hill Education.
Case 19.3
BURLINGTON NORTHERN AND SANTA FE RAILWAY CO. V. UNITED STATES
Supreme Court of the United States
556 U.S. 599; 129 S. Ct. 1870; 2009 U.S. LEXIS 3306 [May 4, 2009]
FACTS:
In 1960, Brown & Bryant Inc. (B&B) began operating an agricultural chemical distribution business,
purchasing pesticides and other chemical products from suppliers such as Shell Oil Company (Shell).
B&B opened its business on a 3.8 acre parcel of former farmland in Arvin, California, and in 1975,
expanded operations onto an adjacent .9 acre parcel of land owned jointly by the Atchison, Topeka
& Santa Fe Railway Company.
During its years of operation, B&B stored and distributed various hazardous chemicals on its
property.
Among these were herbicide dinoseb, sold by Dow Chemical and the pesticides D-D and Nemagon,
both sole by Shell.
In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) in response to the serious environmental and health risks posed by industrial
pollution.
The Act was designed to promote the “timely cleanup of hazardous waste sites” and to ensure that
the costs of such cleanup efforts were borne by those responsible for the contamination.
The toxic chemicals leaked, the Government was forced to clean it up and sued all potentially
responsible parties (PRP), including Shell and the Railroads.
PROCEDURE: The District Court apportioned liability, holding the Railroads liable for 9% of the
Governments’ total response costs and shell liable for 6%. On Appeal, the Ninth Circuit held shell liable
as an “arranger” and affirmed the District Court’s decision. The Court of Appeals held Shell and the
Railroads jointly and severally liable for the Governments’ response costs.
ISSUE: Was Shell an “arranger” under CERCLA and were the Railroads jointly and severally liable?
RULE: “An entity may qualify as an arranger when it takes intentional steps to dispose of a hazardous
substance.”
“When two or more persons acting independently cause a distinct or single harm for which there is a
reasonable basis for division according to the contribution of each, each is subject to liability only for
the portion of the total harm that he has himself caused….But where two or more persons cause a
single and indivisible harm, each is subject to liability for the entire harm. Apportionment is proper
when ‘there is a reasonable basis for determining the contribution of each cause to a single harm.’”
REASONING:
1. Once an entity is identified as a potentially responsible party (PRP) it may be compelled to clean up
a contaminated area or reimburse the Government for its past and future response costs.
2. It is undisputed that the Railroads qualify as PRPs under CERCLA because they owned the land
leased by B&B at the time of the contamination and they continue to own it.
3. It is clear that an entity could not be held liable as an arranger merely for selling a new and useful
product if the purchaser of that product later, and unbeknownst to the seller, disposed of the
liability to ‘be determined from traditional and evolving principles of common law.’”
ADDITIONAL INFORMATION:
Although B&B undertook some efforts at remediation, by 1989 it had become insolvent and ceased
all operations that same year, the Arvin facility was added to the National Priority List, and
subsequently, DTSC and EPA (Governments) exercised their authority under 42 U.S.C. Section 9604
