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Larry Schnapf recently started a blog on CommonGround concerning developments in environmental law. Larry has been a thoughtful commentator on developments in this field for over 20 years. I look for Larry to continue providing wise counsel on thorny environmental issues. We recently discussed the potential reach of the Supreme Court's decision in Burlington Northern, which evaluated what is necessary to establish "arranger" liability under CERCLA. In my view, the discussion of "arranger" liability is relevant only to CERCLA 107(a)(3) claims; it has no bearing on a PRP's liability under CERCLA 107(a)(2). In other words, a product manufacturer cannot escape CERCLA liability for contamination to the manufacturer's former property by arguing that the relelases did not constitute "intentional steps" to dispose of a hazardous substance. The PRP's conduct in causing a release under (a)(1) or (a)(2)--whether intentional or merely negligent--is entirely irrelevant--always has been, always will be. In contrast, in cases involving the sale of a product to a customer's location, intent will now figure into any (a)(3) analysis. Has the Supreme Court carved out what is basically a "product exception" to CERCLA liability?
