BURLINGTON NORTHERN & SANTA FE RAILWAY CO. et al. v. UNITED STATES et al.

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599 OCTOBER TERM, 2008
Syllabus
BURLINGTON NORTHERN & SANTA FE RAILWAY
CO. et al. v. UNITED STATES et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 07–1601. Argued February 24, 2009—Decided May 4, 2009*
The Comprehensive Environmental Response, Compensation, and Liabil
ity Act (CERCLA) is designed to promote the cleanup of hazardous
waste sites and to ensure that cleanup costs are borne by those responsi
ble for the contamination. In 1960, Brown & Bryant, Inc. (B&B), an
agricultural chemical distributor, began operating on a parcel of land
located in Arvin, California. B&B later expanded onto an adjacent par
cel owned by petitioners Burlington Northern and Santa Fe Railway
Company and Union Pacific Railroad Company (Railroads). As part of
its business, B&B purchased and stored various hazardous chemicals,
including the pesticide D–D, which it bought from petitioner Shell Oil
Company (Shell). Over time, many of these chemicals spilled during
transfers and deliveries, and as a result of equipment failures.
Investigations of B&B by the California Department of Toxic Sub
stances Control and the federal Environmental Protection Agency (Gov
ernments) revealed significant soil and ground water contamination and
in 1989, the Governments exercised their CERCLA authority to clean
up the Arvin site, spending over $8 million by 1998. Seeking to recover
their costs, the Governments initiated legal action against Shell and the
Railroads. The District Court ruled in favor of the Governments, find
ing that both the Railroads and Shell were potentially responsible par
ties under CERCLA—the Railroads because they owned part of the
facility and Shell because it had “arranged for disposal . . . of hazardous
substances,” 42 U. S. C. § 9607(a)(3), through D–D’s sale and delivery.
The District Court apportioned liability, holding the Railroads liable for
9% of the Governments’ total response costs, and Shell liable for 6%.
On appeal, the Ninth Circuit agreed that Shell could be held liable as
an arranger under § 9607(a)(3) and affirmed the District Court’s decision
in that respect. Although the Court of Appeals agreed that the harm
in these cases was theoretically capable of apportionment, it found the
facts present in the record insufficient to support apportionment, and
*Together with No. 07–1607, Shell Oil Co. v. United States et al., also
on certiorari to the same court.

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600 BURLINGTON N. & S. F. R. CO. v. UNITED STATES
Syllabus
therefore held Shell and the Railroads jointly and severally liable for
the Governments’ response costs.
Held:
1. Shell is not liable as an arranger for the contamination at the Arvin
facility. Section 9607(a)(3) liability may not extend beyond the limits of
the statute itself. Because CERCLA does not specifically define what
it means to “arrang[e] for” disposal of a hazardous substance, the phrase
should be given its ordinary meaning. In common parlance, “arrange”
implies action directed to a specific purpose. Thus, under § 9607(a)(3)’s
plain language, an entity may qualify as an arranger when it takes inten
tional steps to dispose of a hazardous substance. To qualify as an ar
ranger, Shell must have entered into D–D sales with the intent that at
least a portion of the product be disposed of during the transfer process
by one or more of § 6903(3)’s methods. The facts found by the District
Court do not support such a conclusion. The evidence shows that Shell
was aware that minor, accidental spills occurred during D–D’s transfer
from the common carrier to B&B’s storage tanks after the product had
come under B&B’s stewardship; however, it also reveals that Shell took
numerous steps to encourage its distributors to reduce the likelihood of
spills. Thus, Shell’s mere knowledge of continuing spills and leaks is
insufficient grounds for concluding that it “arranged for” D–D’s dis
posal. Pp. 608–613.
2. The District Court reasonably apportioned the Railroads’ share of
the site remediation costs at 9%. Calculating liability based on three
figures—the percentage of the total area of the facility that was owned
by the Railroads, the duration of B&B’s business divided by the term of
the Railroads’ lease, and the court’s determination that only two pollut
ing chemicals (not D–D) spilled on the leased parcel required remedia
tion and that those chemicals were responsible for roughly two-thirds
of the remediable site contamination—the District Court ultimately de
termined that the Railroads were responsible for 9% of the remediation
costs. The District Court’s detailed findings show that the primary pol
lution at the site was on a portion of the facility most distant from the
Railroad parcel and that the hazardous-chemical spills on the Railroad
parcel contributed to no more than 10% of the total site contamination,
some of which did not require remediation. Moreover, although the
evidence adduced by the parties did not allow the District Court to
calculate precisely the amount of hazardous chemicals contributed by
the Railroad parcel to the total site contamination or the exact percent
age of harm caused by each chemical, the evidence showed that fewer
spills occurred on the Railroad parcel and that not all of them crossed
to the B&B site, where most of the contamination originated, thus sup

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Syllabus
porting the conclusion that the parcel contributed only two chemicals in
quantities requiring remediation. Pp. 613–619.
520 F. 3d 918, reversed and remanded.
Stevens, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Scalia, Kennedy, Souter, Thomas, Breyer, and Alito, JJ., joined.
Ginsburg, J., filed a dissenting opinion, post, p. 620.
Kathleen M. Sullivan argued the cause for petitioner in
No. 07–1607. With her on the briefs were Crystal Nix
Hines, William B. Adams, Cisselon Nichols Hurd, and Mi
chael Johnson.
Maureen E. Mahoney argued the cause for petitioners in
No. 07–1601. With her on the briefs were J. Scott Ballenger,
Charles G. Cole, Bennett Evan Cooper, Roger Nober, Orest
B. Dachniwsky, J. Michael Hemmer, David P. Young, and
Robert C. Bylsma.
Deputy Solicitor General Stewart argued the cause for
respondents in both cases. With him on the brief for the
United States were former Solicitor General Garre, Acting
Assistant Attorney General Guzman, Pratik A. Shah,
James R. MacAyeal, Aaron P. Avila, and Patricia K.
Hirsch. Edmund G. Brown, Jr., Attorney General of Cali
fornia, James Humes, Chief Assistant Attorney General,
Manuel M. Medeiros, State Solicitor General, Gordon Burns,
Deputy Solicitor General, Ken Alex, Senior Assistant Attor
ney General, Donald A. Robinson, Supervising Deputy At
torney General, and Ann Rushton and Janill L. Richards,
Deputy Attorneys General, filed a brief for respondent State
of California.†
†Briefs of amici curiae urging reversal in both cases were filed for the
Association of American Railroads by Carter G. Phillips, G. Paul Moates,
and Eric A. Shumsky; for the Chamber of Commerce of the United States
of America et al. by Thomas C. Jackson, Robin S. Conrad, Amar D. Sar
wal, Donald D. Evans, Leslie Hulse, Douglas T. Nelson, Harry M. Ng,
Jan S. Amundson, and Quentin Riegel; for General Electric Co. by Lau
rence H. Tribe, Thomas C. Goldstein, Michael C. Small, and Jonathan
Massey; for the Product Liability Advisory Council, Inc., by Charles H.

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602 BURLINGTON N. & S. F. R. CO. v. UNITED STATES
Opinion of the Court
Justice Stevens delivered the opinion of the Court.
In 1980, Congress enacted the Comprehensive Envi
ronmental Response, Compensation, and Liability Act
(CERCLA or Act), 94 Stat. 2767, as amended, 42 U. S. C.
§§ 9601–9675, in response to the serious environmental and
health risks posed by industrial pollution. See United
States v. Bestfoods, 524 U. S. 51, 55 (1998). The Act was
designed to promote the “ ‘timely cleanup of hazardous waste
sites’ ” and to ensure that the costs of such cleanup efforts
were borne by those responsible for the contamination.
Consolidated Edison Co. of N. Y. v. UGI Util., Inc., 423 F.
3d 90, 94 (CA2 2005); see also Meghrig v. KFC Western, Inc.,
516 U. S. 479, 483 (1996); Dedham Water Co. v. Cumberland
Farms Dairy, Inc., 805 F. 2d 1074, 1081 (CA1 1986). These
cases raise the questions whether and to what extent a party
associated with a contaminated site may be held responsible
for the full costs of remediation.
I
In 1960, Brown & Bryant, Inc. (B&B), began operating an
agricultural chemical distribution business, purchasing pesti
cides and other chemical products from suppliers such as
Shell Oil Company (Shell). Using its own equipment, B&B
applied its products to customers’ farms. B&B opened its
business on a 3.8-acre parcel of former farmland in Arvin,
California, and in 1975, expanded operations onto an adjacent
Moellenberg, Jr., and Leon F. DeJulius, Jr.; and for the Washington Legal
Foundation by Lawrence A. Salibra II, Daniel J. Popeo, and Paul D.
Kamenar.
Briefs of amici curiae urging reversal in No. 07–1607 were filed for
the Civil Justice Association of California by Fred J. Hiestand; for the
International Association of Defense Counsel by Mary-Christine Sun
gaila, Jeremy B. Rosen, Bradley S. Pauley, and Felix Shafir; and for Teck
Cominco Metals, Ltd., by Theodore B. Olson, Matthew D. McGill, and
Amir C. Tayrani.
Joel W. Nomkin filed a brief for Newmont USA Ltd. et al. as amici
curiae in both cases.

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0.9-acre parcel of land owned jointly by the Atchison,
Topeka & Santa Fe Railway Company and the Southern Pa
cific Transportation Company (now known respectively as
the Burlington Northern and Santa Fe Railway Company
and Union Pacific Railroad Company) (Railroads). Both
parcels of the Arvin facility were graded toward a sump and
drainage pond located on the southeast corner of the primary
parcel. See Appendix, infra. Neither the sump nor the
drainage pond was lined until 1979, allowing waste water
and chemical runoff from the facility to seep into the ground
water below.
During its years of operation, B&B stored and distributed
various hazardous chemicals on its property. Among these
were the herbicide dinoseb, sold by Dow Chemicals, and the
pesticides D–D and Nemagon, both sold by Shell. Dinoseb
was stored in 55-gallon drums and 5-gallon containers on a
concrete slab outside B&B’s warehouse. Nemagon was
stored in 30-gallon drums and 5-gallon containers inside the
warehouse. Originally, B&B purchased D–D in 55-gallon
drums; beginning in the mid-1960’s, however, Shell began
requiring its distributors to maintain bulk storage facilities
for D–D. From that time onward, B&B purchased D–D in
bulk.1
When B&B purchased D–D, Shell would arrange for deliv
ery by common carrier, f.o.b. destination.2 When the prod
uct arrived, it was transferred from tanker trucks to a bulk
storage tank located on B&B’s primary parcel. From there,
the chemical was transferred to bobtail trucks, nurse tanks,
1 Because D–D is corrosive, bulk storage of the chemical led to numerous
tank failures and spills as the chemical rusted tanks and eroded valves.
2 F.o.b. destination means “the seller must at his own expense and risk
transport the goods to [the destination] and there tender delivery of
them . . . .” U. C. C. § 2–319(1)(b) (2001). The District Court found that
B&B assumed “stewardship” over the D–D as soon as the common carrier
entered the Arvin facility. App. to Pet. for Cert. in No. 07–1601, p. 124a,
¶ 160.

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604 BURLINGTON N. & S. F. R. CO. v. UNITED STATES
Opinion of the Court
and pull rigs. During each of these transfers leaks and
spills could—and often did—occur. Although the common
carrier and B&B used buckets to catch spills from hoses and
gaskets connecting the tanker trucks to its bulk storage
tank, the buckets sometimes overflowed or were knocked
over, causing D–D to spill onto the ground during the trans
fer process.
Aware that spills of D–D were commonplace among its dis
tributors, in the late 1970’s Shell took several steps to en
courage the safe handling of its products. Shell provided
distributors with detailed safety manuals and instituted a
voluntary discount program for distributors that made im
provements in their bulk handling and safety facilities.
Later, Shell revised its program to require distributors to
obtain an inspection by a qualified engineer and provide
self-certification of compliance with applicable laws and reg
ulations. B&B’s Arvin facility was inspected twice, and in
1981, B&B certified to Shell that it had made a number of
recommended improvements to its facilities.
Despite these improvements, B&B remained a “ ‘[s]loppy’
[o]perator.” App. to Pet. for Cert. in No. 07–1601, p. 130a,
¶ 186(Y). Over the course of B&B’s 28 years of operation,
delivery spills, equipment failures, and the rinsing of tanks
and trucks allowed Nemagon, D–D, and dinoseb to seep into
the soil and upper levels of ground water of the Arvin facil
ity. In 1983, the California Department of Toxic Substances
Control (DTSC) began investigating B&B’s violation of haz
ardous waste laws, and the United States Environmental
Protection Agency (EPA) soon followed suit, discovering sig
nificant contamination of soil and ground water. Of particu
lar concern was a plume of contaminated ground water lo
cated under the facility that threatened to leach into an
adjacent supply of potential drinking water.3
3 The ground water at the Arvin site is divided into three zones. The
A-zone is located 60–80 feet below the ground. It has been tested and
found to have high levels of contamination. The B-zone is located 150 feet

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Although B&B undertook some efforts at remediation, by
1989 it had become insolvent and ceased all operations.
That same year, the Arvin facility was added to the National
Priority List, see 54 Fed. Reg. 41027, and subsequently,
DTSC and EPA (Governments) exercised their authority
under 42 U. S. C. § 9604 to undertake cleanup efforts at the
site. By 1998, the Governments had spent more than $8 mil
lion responding to the site contamination; their costs have
continued to accrue.
In 1991, EPA issued an administrative order to the Rail
roads directing them, as owners of a portion of the property
on which the Arvin facility was located, to perform certain
remedial tasks in connection with the site. The Railroads
did so, incurring expenses of more than $3 million in the
process. Seeking to recover at least a portion of their
response costs, in 1992 the Railroads brought suit against
B&B in the United States District Court for the Eastern
District of California. In 1996, that lawsuit was consoli
dated with two recovery actions brought by DTSC and EPA
against Shell and the Railroads.
The District Court conducted a 6-week bench trial in 1999
and four years later entered a judgment in favor of the Gov
ernments. In a lengthy order supported by 507 separate
findings of fact and conclusions of law, the court held that
both the Railroads and Shell were potentially responsible
parties (PRPs) under CERCLA—the Railroads because they
were owners of a portion of the facility, see 42 U. S. C.
§§ 9607(a)(1)–(2), and Shell because it had “arranged for” the
disposal of hazardous substances through its sale and deliv
ery of D–D, see § 9607(a)(3).
below ground. Although the B-zone is not currently used as a source of
drinking water, it has the potential to serve as such a source. No contam
ination has yet been found in that zone. The C-zone is an aquifer located
200 feet below ground. It is the sole current source of drinking water
and, thus far, has suffered no contamination from the Arvin site.

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606 BURLINGTON N. & S. F. R. CO. v. UNITED STATES
Opinion of the Court
Although the court found the parties liable, it did not im
pose joint and several liability on Shell and the Railroads for
the entire response cost incurred by the Governments. The
court found that the site contamination created a single harm
but concluded that the harm was divisible and therefore ca
pable of apportionment. Based on three figures—the per
centage of the total area of the facility that was owned by
the Railroads, the duration of B&B’s business divided by the
term of the Railroads’ lease, and the Court’s determination
that only two of three polluting chemicals spilled on the
leased parcel required remediation and that those two chemi
cals were responsible for roughly two-thirds of the overall
site contamination requiring remediation—the court appor
tioned the Railroads’ liability as 9% of the Governments’
total response cost.4 Based on estimations of chemical spills
of Shell products, the court held Shell liable for 6% of the
total site response cost.
The Governments appealed the District Court’s apportion
ment, and Shell cross-appealed the court’s finding of liability.
The Court of Appeals acknowledged that Shell did not qual
ify as a “traditional” arranger under § 9607(a)(3), insofar as
it had not contracted with B&B to directly dispose of a haz
ardous waste product. 520 F. 3d 918, 948 (CA9 2008). Nev
ertheless, the court stated that Shell could still be held liable
under a “ ‘broader’ category of arranger liability” if the “dis
posal of hazardous wastes [wa]s a foreseeable byproduct of,
4 Although the Railroads did not produce precise figures regarding the
exact quantity of chemical spills on each parcel in each year of the facility’s
operation, the District Court found it “indisputable that the overwhelming
majority of hazardous substances were released from the B&B parcel.”
Id., at 248a, ¶ 477. The court explained that “the predominant activities
conducted on the Railroad parcel through the years were storage and some
washing and rinsing of tanks, other receptacles, and chemical application
vehicles. Mixing, formulating, loading, and unloading of ag-chemical haz
ardous substances, which contributed most of the liability causing releases,
were predominantly carried out by B&B on the B&B parcel.” Id., at
247a–248a, ¶ 476.

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but not the purpose of, the transaction giving rise to” ar
ranger liability. Ibid. Relying on CERCLA’s definition of
“disposal,” which covers acts such as “leaking” and “spill
ing,” 42 U. S. C. § 6903(3), the Ninth Circuit concluded that
an entity could arrange for “disposal” “even if it did not in
tend to dispose” of a hazardous substance. 520 F. 3d, at 949.
Applying that theory of arranger liability to the District
Court’s findings of fact, the Ninth Circuit held that Shell ar
ranged for the disposal of a hazardous substance through its
sale and delivery of D–D:
“Shell arranged for delivery of the substances to the site
by its subcontractors; was aware of, and to some degree
dictated, the transfer arrangements; knew that some
leakage was likely in the transfer process; and provided
advice and supervision concerning safe transfer and
storage. Disposal of a hazardous substance was thus a
necessary part of the sale and delivery process.” Id.,
at 950.
Under such circumstances, the court concluded, arranger lia
bility was not precluded by the fact that the purpose of
Shell’s action had been to transport a useful and previously
unused product to B&B for sale.
On the subject of apportionment, the Court of Appeals
found “no dispute” on the question whether the harm caused
by Shell and the Railroads was capable of apportionment.
Id., at 942. The court observed that a portion of the site
contamination occurred before the Railroad parcel became
part of the facility, only some of the hazardous substances
were stored on the Railroad parcel, and “only some of the
water on the facility washed over the Railroads’ site.” Ibid.
With respect to Shell, the court noted that not all of the
hazardous substances spilled on the facility had been sold by
Shell. Given those facts, the court readily concluded that
“the contamination traceable to the Railroads and Shell, with
adequate information, would be allocable, as would be the

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608 BURLINGTON N. & S. F. R. CO. v. UNITED STATES
Opinion of the Court
cost of cleaning up that contamination.” Ibid. Neverthe
less, the Court of Appeals held that the District Court erred
in finding that the record established a reasonable basis for
apportionment. Because the burden of proof on the ques
tion of apportionment rested with Shell and the Railroads,
the Court of Appeals reversed the District Court’s appor
tionment of liability and held Shell and the Railroads jointly
and severally liable for the Governments’ cost of responding
to the contamination of the Arvin facility.
The Railroads and Shell moved for rehearing en banc,
which the Court of Appeals denied over the dissent of eight
judges. See id., at 952 (Bea, J., dissenting). We granted
certiorari to determine whether Shell was properly held lia
ble as an entity that had “arranged for disposal” of hazardous
substances within the meaning of § 9607(a)(3), and whether
Shell and the Railroads were properly held liable for all re
sponse costs incurred by EPA and the State of California.
See 554 U. S. 945 (2008). Finding error on both points, we
now reverse.
II
CERCLA imposes strict liability for environmental con
tamination upon four broad classes of PRPs:
“(1) the owner and operator of a vessel or a facility,
“(2) any person[5] who at the time of disposal of any
hazardous substance owned or operated any facility at
which such hazardous substances were disposed of,
“(3) any person who by contract, agreement, or other
wise arranged for disposal or treatment, or arranged
with a transporter for transport for disposal or treat
5 For purposes of the statute, a “person” is defined as “an individual,
firm, corporation, association, partnership, consortium, joint venture, com
mercial entity, United States Government, State, municipality, commis
sion, political subdivision of a State, or any interstate body.” 42 U. S. C.
§ 9601(21).

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ment, of hazardous substances owned or possessed by
such person, by any other party or entity, at any facility
or incineration vessel owned or operated by another
party or entity and containing such hazardous sub
stances, and
“(4) any person who accepts or accepted any hazard
ous substances for transport to disposal or treatment
facilities, incineration vessels or sites selected by such
person, from which there is a release, or a threatened
release which causes the incurrence of response costs, of
a hazardous substance . . . .” 42 U. S. C. § 9607(a).
Once an entity is identified as a PRP, it may be compelled to
clean up a contaminated area or reimburse the Government
for its past and future response costs. See Cooper Indus
tries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 161 (2004).6
In these cases, it is undisputed that the Railroads qualify
as PRPs under both §§ 9607(a)(1) and 9607(a)(2) because they
owned the land leased by B&B at the time of the contamina
tion and continue to own it now. The more difficult question
is whether Shell also qualifies as a PRP under § 9607(a)(3) by
virtue of the circumstances surrounding its sales to B&B.
To determine whether Shell may be held liable as an ar
ranger, we begin with the language of the statute. As rele
vant here, § 9607(a)(3) applies to an entity that “arrange[s]
for disposal . . . of hazardous substances.” It is plain from
6 Under CERCLA, PRPs are liable for:
“(A) all costs of removal or remedial action incurred by the United
States Government or a State or an Indian tribe not inconsistent with the
national contingency plan;
“(B) any other necessary costs of response incurred by any other person
consistent with the national contingency plan;
“(C) damages for injury to, destruction of, or loss of natural resources,
including the reasonable costs of assessing such injury, destruction, or loss
resulting from such a release; and
“(D) the costs of any health assessment or health effects study carried
out under section 9604(i) of this title.” § 9607(a)(4).

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the language of the statute that CERCLA liability would
attach under § 9607(a)(3) if an entity were to enter into a
transaction for the sole purpose of discarding a used and no
longer useful hazardous substance. It is similarly clear that
an entity could not be held liable as an arranger merely for
selling a new and useful product if the purchaser of that
product later, and unbeknownst to the seller, disposed of the
product in a way that led to contamination. See Freeman v.
Glaxo Wellcome, Inc., 189 F. 3d 160, 164 (CA2 1999); Florida
Power & Light Co. v. Allis Chalmers Corp., 893 F. 2d 1313,
1318 (CA11 1990). Less clear is the liability attaching to
the many permutations of “arrangements” that fall between
these two extremes—cases in which the seller has some
knowledge of the buyers’ planned disposal or whose motives
for the “sale” of a hazardous substance are less than clear.
In such cases, courts have concluded that the determination
whether an entity is an arranger requires a fact-intensive
inquiry that looks beyond the parties’ characterization of the
transaction as a “disposal” or a “sale” and seeks to discern
whether the arrangement was one Congress intended to fall
within the scope of CERCLA’s strict-liability provisions.
See Freeman, 189 F. 3d, at 164; Pneumo Abex Corp. v. High
Point, Thomasville & Denton R. Co., 142 F. 3d 769, 775 (CA4
1998) (“ ‘[T]here is no bright line between a sale and a dis
posal under CERCLA. A party’s responsibility . . . must by
necessity turn on a fact-specific inquiry into the nature of
the transaction’ ” (quoting United States v. Petersen Sand &
Gravel, 806 F. Supp. 1346, 1354 (ND Ill. 1992))); Florida
Power & Light Co., 893 F. 2d, at 1318.
Although we agree that the question whether § 9607(a)(3)
liability attaches is fact intensive and case specific, such lia
bility may not extend beyond the limits of the statute itself.
Because CERCLA does not specifically define what it means
to “arrang[e] for” disposal of a hazardous substance, see, e. g.,
United States v. Cello-Foil Prods., Inc., 100 F. 3d 1227, 1231
(CA6 1996); Amcast Indus. Corp. v. Detrex Corp., 2 F. 3d 746,

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751 (CA7 1993); Florida Power & Light Co., 893 F. 2d, at
1317, we give the phrase its ordinary meaning. Crawford v.
Metropolitan Government of Nashville and Davidson Cty.,
555 U. S. 271, 276 (2009); Perrin v. United States, 444 U. S.
37, 42 (1979). In common parlance, the word “arrange” im
plies action directed to a specific purpose. See Merriam
Webster’s Collegiate Dictionary 64 (10th ed. 1993) (defining
“arrange” as “to make preparations for: plan[;] . . . to bring
about an agreement or understanding concerning”); see also
Amcast Indus. Corp., 2 F. 3d, at 751 (words “ ‘arranged
for’ . . . imply intentional action”). Consequently, under the
plain language of the statute, an entity may qualify as an
arranger under § 9607(a)(3) when it takes intentional steps
to dispose of a hazardous substance. See Cello-Foil Prods.,
Inc., 100 F. 3d, at 1231 (“[I]t would be error for us not to
recognize the indispensable role that state of mind must play
in determining whether a party has ‘otherwise arranged for
disposal . . . of hazardous substances’ ”).
The Governments do not deny that the statute requires an
entity to “arrang[e] for” disposal; however, they interpret
that phrase by reference to the statutory term “disposal,”
which the Act broadly defines as “the discharge, deposit, in
jection, dumping, spilling, leaking, or placing of any solid
waste or hazardous waste into or on any land or water.” 42
U. S. C. § 6903(3); see also § 9601(29) (adopting the definition
of “disposal” contained in the Solid Waste Disposal Act).7
The Governments assert that by including unintentional acts
such as “spilling” and “leaking” in the definition of disposal,
Congress intended to impose liability on entities not only
when they directly dispose of waste products but also when
7 “Hazardous waste” is defined as “a solid waste, or combination of solid
wastes, which . . . may . . . pose a substantial present or potential haz
ard to human health or the environment when improperly treated,
stored, transported, or disposed of, or otherwise managed.” § 6903(5)(B);
§ 9601(29).

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612 BURLINGTON N. & S. F. R. CO. v. UNITED STATES
Opinion of the Court
they engage in legitimate sales of hazardous substances 8
knowing that some disposal may occur as a collateral con
sequence of the sale itself. Applying that reading of the
statute, the Governments contend that Shell arranged for
the disposal of D–D within the meaning of § 9607(a)(3) by
shipping D–D to B&B under conditions it knew would result
in the spilling of a portion of the hazardous substance by the
purchaser or common carrier. See Brief for United States
24 (“Although the delivery of a useful product was the ulti
mate purpose of the arrangement, Shell’s continued par
ticipation in the delivery, with knowledge that spills and
leaks would result, was sufficient to establish Shell’s intent
to dispose of hazardous substances”). Because these spills
resulted in wasted D–D, a result Shell anticipated, the
Governments insist that Shell was properly found to have
arranged for the disposal of D–D.
While it is true that in some instances an entity’s knowl
edge that its product will be leaked, spilled, dumped, or oth
erwise discarded may provide evidence of the entity’s intent
to dispose of its hazardous wastes, knowledge alone is insuf
ficient to prove that an entity “planned for” the disposal, par
ticularly when the disposal occurs as a peripheral result of
the legitimate sale of an unused, useful product. In order
to qualify as an arranger, Shell must have entered into the
sale of D–D with the intention that at least a portion of the
product be disposed of during the transfer process by one or
more of the methods described in § 6903(3). Here, the facts
found by the District Court do not support such a conclusion.
Although the evidence adduced at trial showed that Shell
was aware that minor, accidental spills occurred during the
transfer of D–D from the common carrier to B&B’s bulk stor
age tanks after the product had arrived at the Arvin facility
and had come under B&B’s stewardship, the evidence does
8 CERCLA defines “hazardous substance” to include a variety of chemi
cals and toxins including those designated by EPA as air pollutants, water
pollutants, and solid wastes. § 9601(14).

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Opinion of the Court
not support an inference that Shell intended such spills to
occur. To the contrary, the evidence revealed that Shell
took numerous steps to encourage its distributors to reduce
the likelihood of such spills, providing them with detailed
safety manuals, requiring them to maintain adequate storage
facilities, and providing discounts for those that took safety
precautions. Although Shell’s efforts were less than wholly
successful, given these facts, Shell’s mere knowledge that
spills and leaks continued to occur is insufficient grounds for
concluding that Shell “arranged for” the disposal of D–D
within the meaning of § 9607(a)(3). Accordingly, we con
clude that Shell was not liable as an arranger for the contam
ination that occurred at B&B’s Arvin facility.
III
Having concluded that Shell is not liable as an arranger,
we need not decide whether the Court of Appeals erred in
reversing the District Court’s apportionment of Shell’s liabil
ity for the cost of remediation. We must, however, deter
mine whether the Railroads were properly held jointly and
severally liable for the full cost of the Governments’ re
sponse efforts.
The seminal opinion on the subject of apportionment in
CERCLA actions was written in 1983 by Chief Judge Carl
Rubin of the United States District Court for the Southern
District of Ohio. United States v. Chem-Dyne Corp., 572
F. Supp. 802. After reviewing CERCLA’s history, Chief
Judge Rubin concluded that although the Act imposed a
“strict liability standard,” id., at 805, it did not mandate
“joint and several” liability in every case, see id., at 807.
Rather, Congress intended the scope of liability to “be deter
mined from traditional and evolving principles of common
law.” Id., at 808. The Chem-Dyne approach has been fully
embraced by the Courts of Appeals. See, e. g., In re Bell
Petroleum Servs., Inc., 3 F. 3d 889, 901–902 (CA5 1993);
United States v. Alcan Aluminum Corp., 964 F. 2d 252, 268

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614 BURLINGTON N. & S. F. R. CO. v. UNITED STATES
Opinion of the Court
(CA3 1992); O’Neil v. Picillo, 883 F. 2d 176, 178 (CA1 1989);
United States v. Monsanto Co., 858 F. 2d 160, 171–173 (CA4
1988).
Following Chem-Dyne, the Courts of Appeals have ac
knowledged that “[t]he universal starting point for divisibil
ity of harm analyses in CERCLA cases” is § 433A of the
Restatement (Second) of Torts. United States v. Hercules,
Inc., 247 F. 3d 706, 717 (CA8 2001); Chem-Nuclear Systems,
Inc. v. Bush, 292 F. 3d 254, 259 (CADC 2002); United States
v. R. W. Meyer, Inc., 889 F. 2d 1497, 1507 (CA6 1989). Under
the Restatement,
“when two or more persons acting independently caus[e]
a distinct or single harm for which there is a reasonable
basis for division according to the contribution of each,
each is subject to liability only for the portion of the
total harm that he has himself caused. Restatement
(Second) of Torts, §§ 433A, 881 (1976); Prosser, Law of
Torts (4th ed. 1971), pp. 313–314 . . . . But where two or
more persons cause a single and indivisible harm, each is
subject to liability for the entire harm. Restatement
(Second) of Torts, § 875; Prosser at 315–316.” Chem-
Dyne Corp., 572 F. Supp., at 810.
In other words, apportionment is proper when “there is a
reasonable basis for determining the contribution of each
cause to a single harm.” Restatement (Second) of Torts
§ 433A(1)(b), p. 434 (1963–1964) (hereinafter Restatement).
Not all harms are capable of apportionment, however, and
CERCLA defendants seeking to avoid joint and several lia
bility bear the burden of proving that a reasonable basis for
apportionment exists. See Chem-Dyne Corp., 572 F. Supp.,
at 810 (citing Restatement § 433B (1976)) (placing burden of
proof on party seeking apportionment). When two or more
causes produce a single, indivisible harm, “courts have re
fused to make an arbitrary apportionment for its own sake,

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Opinion of the Court
and each of the causes is charged with responsibility for the
entire harm.” Id., § 433A, Comment i, at 440 (1963–1964).
Neither the parties nor the lower courts dispute the princi
ples that govern apportionment in CERCLA cases, and both
the District Court and Court of Appeals agreed that the
harm created by the contamination of the Arvin site, al
though singular, was theoretically capable of apportionment.
The question then is whether the record provided a reason
able basis for the District Court’s conclusion that the Rail
roads were liable for only 9% of the harm caused by contami
nation at the Arvin facility.
The District Court criticized the Railroads for taking a
“ ‘scorched earth,’ all-or-nothing approach to liability,” failing
to acknowledge any responsibility for the release of hazard
ous substances that occurred on their parcel throughout the
13-year period of B&B’s lease. According to the District
Court, the Railroads’ position on liability, combined with the
Governments’ refusal to acknowledge the potential divisibil
ity of the harm, complicated the apportioning of liability.
See App. to Pet. for Cert. in No. 07–1601, at 236a–237a, ¶ 455
(“All parties . . . effectively abdicated providing any helpful
arguments to the court and have left the court to independ
ently perform the equitable apportionment analysis de
manded by the circumstances of the case”).9 Yet despite the
9 As the Governments point out, insofar as the District Court made ref
erence to equitable considerations favoring apportionment, it erred. Eq
uitable considerations play no role in the apportionment analysis; rather,
apportionment is proper only when the evidence supports the divisibility
of the damages jointly caused by the PRPs. See generally United States
v. Hercules, Inc., 247 F. 3d 706, 718–719 (CA8 2001); United States v.
Brighton, 153 F. 3d 307, 318–319 (CA6 1998); Redwing Carriers, Inc. v.
Saraland Apartments, 94 F. 3d 1489, 1513 (CA11 1996). As the Court of
Appeals explained, “[a]pportionment . . . looks to whether defendants may
avoid joint and several liability by establishing a fixed amount of damage
for which they are liable,” while contribution actions allow jointly and
severally liable PRPs to recover from each other on the basis of equitable

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616 BURLINGTON N. & S. F. R. CO. v. UNITED STATES
Opinion of the Court
parties’ failure to assist the court in linking the evidence
supporting apportionment to the proper allocation of liabil
ity, the District Court ultimately concluded that this was
“a classic ‘divisible in terms of degree’ case, both as to the
time period in which defendants’ conduct occurred, and own
ership existed, and as to the estimated maximum contribu
tion of each party’s activities that released hazardous sub
stances that caused Site contamination.” Id., at 239a, ¶ 462.
Consequently, the District Court apportioned liability, as
signing the Railroads 9% of the total remediation costs.
The District Court calculated the Railroads’ liability based
on three figures. First, the court noted that the Railroad
parcel constituted only 19% of the surface area of the Arvin
site. Second, the court observed that the Railroads had
leased their parcel to B&B for 13 years, which was only 45%
of the time B&B operated the Arvin facility. Finally, the
court found that the volume of hazardous-substance
releasing activities on the B&B property was at least 10
times greater than the releases that occurred on the Railroad
parcel, and it concluded that only spills of two chemicals,
Nemagon and dinoseb (not D–D), substantially contributed
to the contamination that had originated on the Railroad par
cel and that those two chemicals had contributed to two
thirds of the overall site contamination requiring remedia
tion. The court then multiplied .19 by .45 by .66 (two-thirds)
and rounded up to determine that the Railroads were re
sponsible for approximately 6% of the remediation costs.
“Allowing for calculation errors up to 50%,” the court con
considerations. 520 F. 3d 918, 939–940 (CA9 2008); see also 42 U. S. C.
§ 9613(f)(1) (providing that, “[i]n resolving contribution claims, the court
may allocate response costs among liable parties using such equitable fac
tors as the court determines are appropriate”). The error is of no conse
quence, however, because despite the District Court’s reference to equity,
its actual apportionment decision was properly rooted in evidence that
provided a reasonable basis for identifying the portion of the harm attrib
utable to the Railroads.

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cluded that the Railroads could be held responsible for 9% of
the total CERCLA response cost for the Arvin site. Id., at
252a, ¶ 489.
The Court of Appeals criticized the evidence on which the
District Court’s conclusions rested, finding a lack of sufficient
data to establish the precise proportion of contamination that
occurred on the relative portions of the Arvin facility and the
rate of contamination in the years prior to B&B’s addition of
the Railroad parcel. The court noted that neither the dura
tion of the lease nor the size of the leased area alone was a
reliable measure of the harm caused by activities on the
property owned by the Railroads, and—as the court’s up
ward adjustment confirmed—the court had relied on esti
mates rather than specific and detailed records as a basis for
its conclusions.
Despite these criticisms, we conclude that the facts con
tained in the record reasonably supported the apportionment
of liability. The District Court’s detailed findings make it
abundantly clear that the primary pollution at the Arvin fa
cility was contained in an unlined sump and an unlined pond
in the southeastern portion of the facility most distant from
the Railroads’ parcel and that the spills of hazardous chemi
cals that occurred on the Railroad parcel contributed to no
more than 10% of the total site contamination, see id., at
247a–248a, some of which did not require remediation. With
those background facts in mind, we are persuaded that it was
reasonable for the court to use the size of the leased parcel
and the duration of the lease as the starting point for its
analysis. Although the Court of Appeals faulted the Dis
trict Court for relying on the “simplest of considerations:
percentages of land area, time of ownership, and types of
hazardous products,” 520 F. 3d, at 943, these were the same
factors the court had earlier acknowledged were relevant to
the apportionment analysis, see id., at 936, n. 18 (“We of
course agree with our sister circuits that, if adequate infor
mation is available, divisibility may be established by ‘volu

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618 BURLINGTON N. & S. F. R. CO. v. UNITED STATES
Opinion of the Court
metric, chronological, or other types of evidence,’ including
appropriate geographic considerations” (citations omitted)).
The Court of Appeals also criticized the District Court’s
assumption that spills of Nemagon and dinoseb were respon
sible for only two-thirds of the chemical spills requiring re
mediation, observing that each PRP’s share of the total harm
was not necessarily equal to the quantity of pollutants that
were deposited on its portion of the total facility. Although
the evidence adduced by the parties did not allow the court
to calculate precisely the amount of hazardous chemicals con
tributed by the Railroad parcel to the total site contamina
tion or the exact percentage of harm caused by each chemi
cal, the evidence did show that fewer spills occurred on the
Railroad parcel and that of those spills that occurred, not all
were carried across the Railroad parcel to the B&B sump
and pond from which most of the contamination originated.
The fact that no D–D spills on the Railroad parcel required
remediation lends strength to the District Court’s conclusion
that the Railroad parcel contributed only Nemagon and dino
seb in quantities requiring remediation.
The District Court’s conclusion that those two chemicals
accounted for only two-thirds of the contamination requiring
remediation finds less support in the record; however, any
miscalculation on that point is harmless in light of the Dis
trict Court’s ultimate allocation of liability, which included a
50% margin of error equal to the 3% reduction in liability
the District Court provided based on its assessment of the
effect of the Nemagon and dinoseb spills. Had the District
Court limited its apportionment calculations to the amount
of time the Railroad parcel was in use and the percentage of
the facility located on that parcel, it would have assigned the
Railroads 9% of the response cost. By including a two
thirds reduction in liability for the Nemagon and dinoseb
with a 50% “margin of error,” the District Court reached the
same result. Because the District Court’s ultimate alloca
tion of liability is supported by the evidence and comports

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619 Cite as: 556 U. S. 599 (2009)
Opinion of the Court
with the apportionment principles outlined above, we re
verse the Court of Appeals’ conclusion that the Railroads are
subject to joint and several liability for all response costs
arising out of the contamination of the Arvin facility.
IV
For the foregoing reasons, we conclude that the Court of
Appeals erred by holding Shell liable as an arranger under
CERCLA for the costs of remediating environmental con
tamination at the Arvin, California, facility. Furthermore,
we conclude that the District Court reasonably apportioned
the Railroads’ share of the site remediation costs at 9%.
The judgment is reversed, and the cases are remanded for
further proceedings consistent with this opinion.
It is so ordered.
[Appendix to opinion of the Court follows this page.]

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620 BURLINGTON N. & S. F. R. CO. v. UNITED STATES
Ginsburg, J., dissenting
APPENDIX
Justice Ginsburg, dissenting.
Although the question is close, I would uphold the de
terminations of the courts below that Shell qualifies as an
arranger within the compass of the Comprehensive Envi

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621 Cite as: 556 U. S. 599 (2009)
Ginsburg, J., dissenting
ronmental Response, Compensation and Liability Act
(CERCLA). See 42 U. S. C. § 9607(a)(3). As the facts
found by the District Court bear out, App. to Pet. for Cert.
in No. 07–1601, pp. 113a–129a, 208a–213a, Shell “arranged for
disposal . . . of hazardous substances” owned by Shell when
the arrangements were made.1
In the 1950’s and early 1960’s, Shell shipped most of its
products to Brown and Bryant (B&B) in 55-gallon drums,
thereby ensuring against spillage or leakage during delivery
and transfer. Id., at 89a, 115a. Later, Shell found it eco
nomically advantageous, in lieu of shipping in drums, to re
quire B&B to maintain bulk storage facilities for receipt of
the chemicals B&B purchased from Shell. Id., at 115a. By
the mid-1960’s, Shell was delivering its chemical to B&B in
bulk tank truckloads. Id., at 89a, 115a. As the Court rec
ognizes, “bulk storage of the chemical led to numerous tank
failures and spills as the chemical rusted tanks and eroded
valves.” Ante, at 603, n. 1.
Shell furthermore specified the equipment to be used in
transferring the chemicals from the delivery truck to
B&B’s storage tanks. App. to Pet. for Cert. in No. 07–1601,
pp. 120a–122a, 124a.2 In the process, spills and leaks were
inevitable; indeed spills occurred every time deliveries were
made. 520 F. 3d 918, 950–951 (CA9 2008). See also App.
1 “Disposal” is defined in 42 U. S. C. § 6903(3) to include “spilling [or]
leaking” of “any . . . hazardous waste into or on any land or water so
that [the] . . . hazardous waste or any constituent thereof may enter the
environment or be emitted into the air or discharged into any waters.”
2 Shell shipped the chemicals to B&B “F.O.B. Destination.” At oral ar
gument, the Court asked Shell’s counsel: Suppose there had been “no
transfer of ownership until the delivery [was] complete?” In that event,
counsel responded, “Shell would have been the owner of the waste.”
Tr. of Oral Arg. 8. The Court credits the fact that at the time of the
spills, the chemicals, having been shipped “F.O.B. Destination,” “had come
under B&B’s stewardship.” Ante, at 612. In my view, CERCLA liabil
ity, or the absence thereof, should not turn, in any part, on such an emi
nently shipper-fixable specification as “F.O.B. Destination.”

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622 BURLINGTON N. & S. F. R. CO. v. UNITED STATES
Ginsburg, J., dissenting
to Pet. for Cert. in No. 07–1601, pp. 119a–122a, ¶ 142 (“It is
undisputed that spills were inherent in the delivery process
that Shell arranged . . . .”).
That Shell sold B&B useful products, the Ninth Circuit
observed, did not exonerate Shell from CERCLA liability,
for the sales “necessarily and immediately result[ed] in the
leakage of hazardous substances.” 520 F. 3d, at 950. The
deliveries, Shell was well aware, directly and routinely re
sulted in disposals of hazardous substances (through spills
and leaks) for more than 20 years. “[M]ere knowledge” may
not be enough, ante, at 613, but Shell did not simply know of
the spills and leaks without contributing to them. Given the
control rein held by Shell over the mode of delivery and
transfer, 520 F. 3d, at 950–951, the lower courts held and I
agree, Shell was properly ranked an arranger. Relieving
Shell of any obligation to pay for the cleanup undertaken by
the United States and California is hardly commanded by
CERCLA’s text, and is surely at odds with CERCLA’s objec
tive—to place the cost of remediation on persons whose ac
tivities contributed to the contamination rather than on the
taxpaying public.
As to apportioning costs, the District Court undertook a
heroic labor. The Railroads and Shell, the court noted, had
pursued a “ ‘scorched earth,’ all-or-nothing approach to liabil
ity. Neither acknowledged an iota of responsibility . . . .
Neither party offered helpful arguments to apportion liabil
ity.” App. to Pet. for Cert. in No. 07–1601, p. 236a, ¶ 455.
Consequently, the court strived “independently [to] perform
[an] equitable apportionment analysis.” Id., at 237a, ¶ 455.
Given the party presentation principle basic to our proce
dural system, Greenlaw v. United States, 554 U. S. 237, 243–
244 (2008), it is questionable whether the court should have
pursued the matter sua sponte. See Castro v. United
States, 540 U. S. 375, 386 (2003) (Scalia, J., concurring in
part and concurring in judgment) (“Our adversary system is
designed around the premise that the parties know what is

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623 Cite as: 556 U. S. 599 (2009)
Ginsburg, J., dissenting
best for them, and are responsible for advancing the facts
and arguments entitling them to relief.”). Cf. Kaplan, von
Mehren, & Schaefer, Phases of German Civil Procedure I, 71
Harv. L. Rev. 1193, 1224 (1958) (describing court’s obligation,
under Germany’s Code of Civil Procedure, to see to it that
the case is fully developed).
The trial court’s mode of procedure, the United States
urged before this Court, “deprived the government of a fair
opportunity to respond to the court’s theories of apportion
ment and to rebut their factual underpinnings—an opportu
nity the governmen[t] would have had if those theories had
been advanced by petitioners themselves.” Brief for United
States 41.3 I would return these cases to the District Court
to give all parties a fair opportunity to address that court’s
endeavor to allocate costs. Because the Court’s disposi
tion precludes that opportunity, I dissent from the Court’s
judgment.
3 For example, on brief, the United States observed: “[P]etitioners iden
tify no record support for the district court’s assumption that each party’s
contribution to the overall harm is proportional to the relative volume of
hazardous substances attributable to it.” Brief for United States 45.
And at oral argument, counsel for the United States stressed that the
District Court “framed the relevant inquiry as what percentage of the
contamination was attributable to the railroad parcel, to the Shell
controlled deliveries, and to the B&B parcel. But it made no finding . . .
as to what the cost of [remediation] would have been . . . if the only source
of contamination had been the railroad parcel.” Tr. of Oral Arg. 52. See
also id., at 56 (“[T]he crucial question is what response costs the govern
ment would have been required to bear . . . if only the railroad parcel’s
contamination had been at issue . . . .”).