DEPARTMENT OF TOXIC SUBSTANCES CONTROL v. BURLINGTON NORTHERN
The Ninth Circuit Court of Appeals today released an amended order in DEPARTMENT OF TOXIC SUBSTANCES CONTROL v. BURLINGTON NORTHERN, No. 03-17125, an appeal in a civil action brought by the United States. The panel consisted of Betty B. Fletcher, John R. Gibson, and Marsha S. Berzon, Circuit Judges.
BERZON, Circuit Judge:
A now-defunct company, Brown & Bryant, Inc. (B&B), owned and operated a facility at which toxic chemicals were stored and distributed. Part of the land on which the chemical operation was located was owned by two railroad companies (the Railroads), and some of the chemicals used by B&B were supplied and delivered to the facility by Shell Oil Company (Shell). Because toxic chemicals remaining at the facility threatened groundwater and may continue to do so in the future, the United States Environmental Protection Agency (EPA) and the State of California’s Department of Toxic Substances Control (DTSC) spent a considerable amount of money to clean up the site and may need to spend more in the future. The two agencies sought to recover these response costs under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 9675,1 (CERCLA), but the district court held the Railroads and Shell liable for only a minor portion of the total cleanup costs. B&B was defunct by that time, and so could not contribute to the cleanup costs. The agencies were thus left holding the bag for a great deal of money. Seeking to hold the Railroads and Shell jointly and severally liable for the entire judgment, the agencies appeal. Shell cross-appeals, claiming that it was not an “arranger” under CERCLA, § 9607(a)(3), and therefore is not a party on whom any cleanup liability can be imposed. We reverse the portion of the judgment that declined to impose full joint and several. . .
The opinion filed March 16, 2007, slip op. 3209, and published at 479 F.3d 1113 (9th Cir. 2007) is hereby amended as follows:
1. Replace <the State of California> with <the defendant oil companies> in the second sentence of footnote 30 on page 3250 of the slip opinion, 479 F.3d at 1139. 2. In the last paragraph of the opinion, on page 3256 of the slip opinion, 479 F.3d. at 1142, replace <The Railroads . . . the harm at the Arvin site.> with <The Railroads . . . the harm at the Arvin site, except with regard to the socalled “Dinoseb hot spot.”32> 3. Add the following text as footnote 32: <The district court found that the “Dinoseb hot spot” was a discrete area contaminated by Dinoseb (a Dow product) as the result of a major spill in 1983, that Shell did not manufacture or ship that product, and that Shell thus bore no responsibility for any part of the $1.3 million cost of cleaning up this discrete spill. The governments did not challenge this finding on appeal. That finding therefore stands, and the district court should not include the $1.3 million dollar cleanup costs for the “Dinoseb hot spot” in the calculation of Shell’s liability.> . . .