What a Long, Strange Trip It's Been: Broader Arranger Liability in the Ninth Circuit and Rethinking the Useful Product Doctrine

Article excerpt

I. INTRODUCTION
II. ARRANGER LIABILITY UNDER CERCLA AND THE NINTH CIRCUIT'S RECENT
      EXPANSION OF "BROADER" ARRANGER LIABILITY
      A. A Brief Introduction to CERCLA Liability
      B. Arranger Liability Under Section 107(a)(3)
      C. Recent Ninth Circuit Decisions Examining "Broader" Arranger
           Liability
           1. United States v. Burlington Northern & Santa Fe
                Railway. Co.
           2. California Department of Toxic Substances Control v.
                Alco Pacific, Inc.
III. THE DISTINCTION BETWEEN VIRGIN AND SECONDARY MATERIALS, BROADER
      ARRANGER LIABILITY, AND THE USEFUL PRODUCT DOCTRINE
      A. Virgin Materials Must Be Distinguished From Secondary
           Materials
      B. The Current Ninth Circuit Analysis of Broader Arranger
           Liability
      C. The Impact o/Burlington on the Ninth Circuit's Arranger
           Liability Analysis
      D. The Current Application of the Useful Product Doctrine
IV. THE USEFUL PRODUCT DOCTRINE AS APPLIED TO SECONDARY MATERIALS
      A. CERCLA's Definition of "Disposal" and Importation of the
           "Waste" Requirement
      B. The Current Useful Product Doctrine Analysis for Secondary
           Materials
V. THE NINTH CIRCUIT'S APPLICATION OF THE USEFUL PRODUCT DOCTRINE TO
      SECONDARY MATERIALS IS INCORRECT BECAUSE THE FOCUS SHOULD LIE
      UPON THE TRANSACTION, NOT THE CURRENT STATE OF THE MATERIAL
      A. Importation of RCRA's "Waste "Requirement Misses the Mark
           1. CERCLA Incorporates the Statutory Definition of
                "Hazardous Waste" from RCRA, Thus the RCRA Regulations
                Utilized by the Ninth Circuit are Inapplicable
           2. No Version of RCRA Regulations Provides a Feasible
                Framework for the CERCLA Analysis; Therefore, the
                Ninth Circuit Erred in Looking to RCRA Regulations
                a. The Genesis of the CERCLA Definition of "Disposal"
                     Predates RCRA Regulations
                b. Incorporation of RCRA Regulations That Were in Place
                     at the Time of the Enactment of CERCLA Speaks
                     Against the "Waste "Requirement and Complicates
                     Interpretation
                c. Use of Current RCRA Regulations Forsakes Any and All
                     Stability In the CERCLA Liability Analysis
           3. The "Waste "Requirement Should Be Eliminated From the
                CERCLA Analysis
      B. Focusing on the Transaction and Dissecting the Secondary
           Material
      C. The Proper Analysis Should Distinguish Between Virgin and
           Secondary Materials and Focus on the Transaction
           1. Step 1: Is this a Virgin Product or Secondary Material?
           2. Step 2: Look to the Transaction and Dissect the Secondary
                Material
           3. Step 3: Assign Liability for Disposal
VI. THE CURRENT CONCEPTION OF BROADER ARRANGER LIABILITY AND THE PROPER
      USEFUL PRODUCT DOCTRINE ANALYSIS COMPELS THE DETERMINATION THAT
      THE SALE OF A SECONDARY MATERIAL IS AN ARRANGEMENT FOR DISPOSAL
      A. Useful Products Doctrine Aside, the Sale of Secondary
           Materials is an Arrangement for Disposal
           1. Disposal is Inherent in the Transaction
           2. The Sale of Secondary Products Meets the Arranger
                Liability Factors
      B. Secondary Substances Do Not T)'t Within the Proper Conception
           of the Useful Product Doctrine
VII. CONCLUSION

I. INTRODUCTION

Arranger liability under section 107(a)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (1) encompasses the furthest reaches of the statute, and the Ninth Circuit's current understanding of "broader" arranger liability represents the most expansive scope accepted by any federal court of appeals. The circuit recently expanded on this conception through two significant decisions: United States v. …