A federal court in Colorado has denied the federal government’s motion for summary judgment as to the issue of "arranger" liability arising from its claim that a person who sold a trailer filled with containers of hazardous substances had "arranged" for disposal of the hazardous substances and would be liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). United States v. Wilmer, No. 11-cv-2244-CMA-MJW (D. Colo. 3/7/13). The court granted the motion in all other respects.
The alleged liable party owned a trailer that contained liquids he owned from a print shop operation. The materials included various substances regulated as hazardous under CERCLA, including lead and carbon tetrachloride. The trailer owner sold the trailer and its contents to a third party in what was described as a "five minute transaction." The trailer’s sale price was stipulated to be less than it would have been had the trailer not contained the print shop liquids. The buyer moved the trailer to a residential neighborhood where it was parked "for an extended period of time" and eventually unloaded hundreds of containers from the trailer and into storage at the site, moving the trailer elsewhere. The U.S. Environmental Protection Agency (EPA) inspected the site and found the containers damaged. It conducted a removal action under CERCLA.
EPA asserted that the trailer’s seller was liable because the sale amounted to an arrangement for disposal of the liquids in the containers. The seller, who represented himself in the litigation, claimed that the sale was not intended as an arrangement to dispose of the liquids. The court held that this sale fell into a grey area between transactions whose sole purpose is to dispose of hazardous substances and those in which useful products are sold and the purchaser later discards some of those materials without the seller’s knowledge. Expressing doubt as to whether the liquids were useful materials or merely waste when sold, which would require the government to demonstrate that the seller specifically intended to dispose of them when he made the sale, the court found a genuine issue of material fact as to the nature of the sale thus precluding summary judgment on the question of "arranger" liability under CERCLA.