Companies that spend money cleaning up historic hazardous waste have had a difficult time recouping their costs from liable parties. One obstacle was the number of potentially responsible parties (PRPs), which can drag litigation out for years. Another was confusing guidance from the courts on whether a company could be liable as an "arranger" for waste material it shipped to a second company, that in turn resulted in contamination.

In 2009, Roetzel & Andress successfully used two recent U.S. Supreme Court decisions to put the companies it represented on solid footing in respect to both problems.

In regard to PRP litigation, in December 2009, an Ohio federal district judge recently granted our request to dismiss certain third party counterclaims and complaints brought by the sole defendant against seven alleged PRPs. On behalf of our client, we argued that a recent U.S. Supreme Court decision allowed district court to determine the liability of the defendant, and that the defendant did not have a claim for contribution or indemnity against the other PRPs unless and until it paid more than its allocated share. United States v. Atlantic Research Corp., 551 U.S. 128, 127 S. Ct. 2331, 2338 (2007). As the defendant had not yet paid any response costs at the facility, our attorneys successfully argued that it would unnecessarily complicate and delay the litigation to permit third-party claims against other PRPs.

Using another recent Supreme Court decision, the firm obtained a federal district court decision in Florida interpreting "arranger liability." We believe it is the first such decision after the Supreme Court issued a comprehensive decision on this issue last May. Burlington Northern & Santa Fe Railway Co. v. U.S., 129 S. Ct. 1870 (2009). To make its chemicals, the manufacturer sometimes received free deliveries and sometimes bought an acidic by-product of local phosphate processing plants. Our client claimed that the phosphate processing plants effectively arranged to have its waste processed, treated and disposed of on the chemical manufacturer's property.

The defendant argued that it was not a liable "arranger" under Burlington because our client failed to show that the defendant intended to dispose of the waste. In our brief, we asserted that our client only needed to show that the acid was a waste by-product. The district court agreed with our view that if a waste is at issue, rather than a new product that has spilled for some reason, than the generator of the waste can be liable without further evidence of intent.