Superfund “Arranger” Liability:

Why Ownership of the Hazardous Substance Matters

Author: Aaron Gershonowitz
Published: 59 S.C. L. Rev. 147 (2007)
The Superfund Law lists four categories of parties who may be held liable for remediation costs at inactive hazardous waste sites: (1) the current owner or operator of the facility; (2) the owner or operator of the facility at the time of the disposal of hazardous substances; (3) a person who arranged for disposal of hazardous substances “owned or possessed by such person”; and (4) a person who transported waste to the facility, if that person chose the facility. This article examines the third category, the arranger, and analyzes the role played by the qualifier, “owned or possessed by such person.” This article argues that there is no “disagreement” among the courts regarding the role of ownership; instead, there are four distinct scenarios that give rise to arranger liability, and the role of the language “owned or possessed by” differs depending on the scenario. Within each scenario, however, there is actually a great deal of consistency. The definition of “arranger” derived from this analysis is then used to propose a resolution to some other difficulties courts have had in determining who is an “arranger.”