Does the Supreme Court's Burlington Northern Decision Require Reconsideration of the Aceto Line of "Arranger" Liability Cases?

Aaron Gershonowitz, Forchelli, Curto, Crowe, Deegan, Schwartz, Mineo & Coh.

Abstract

The Eighth Circuit’s decision in United States v. Aceto Agricultural Chemicals Corp., 872 F2d 1373 (8th Cir. 1989) represents perhaps the most expansive reading of Superfund "arranger" liability, holding that a corporation can be liable even though the corporation never possessed the waste and made no decisions regarding disposal. The Aceto theory of liability has been followed by several other federal circuit courts of appeals.

In Burlington Northern and Santa Fe Railroad Co. v. United States, 129 S. Ct. 1870 (2009) the Supreme Court addressed whether a seller of chemicals could be held liable as an "arranger" when chemicals it sold accidentally spilled on delivery. The Ninth Circuit Court of Appeals held that the seller could be liable as an arranger. The Supreme Court reversed, limiting "arranger" liability to persons who intended to dispose of hazardous substances because “arrange” means to make a plan and one cannot make a plan accidentally.

This article assesses whether the Court’s reasoning in Burlington Northern limits the scope of arranger liability so much that the Aceto line cannot survive. In particular, it examines whether the Burlington Northern Court meant that all arrangers must intend to arrange for disposal or whether the decision should be read more narrowly to conclude that a seller of a useful non-waste product can only be liable as an arranger if he or she intends a disposal.