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Section 107(a)(4) (42 U.S.C.S. § 9607(a)(4)) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.S. § 9601 et seq., applies if the transporter's advice was a substantial contributing factor in the decision to dispose of the hazardous waste at a particular facility. A transporter selects the disposal facility when it actively and substantially participates in the decision-making process which ultimately identifies a facility for disposal.
The generator of hazardous waste contracted with the transporter to dispose of the waste. The transporter surveyed alternate landfills, completed applications for disposal locations, and forwarded the estimated disposal costs to the generator, who relied upon that information to make the final selection of the disposal facility. The United States Environmental Protection Agency notified the generator that it was a potentially responsible party for environmental contamination at the disposal facility. The generator advised the transporter of its potential liability under CERCLA, which the transporter denied.
Was the transporter liable for contribution to the generator for the response costs incurred in the remedial program?
The court noted that § 107(a)(4) (42 U.S.C.S. § 9607(a)(4)) of CERCLA, 42 U.S.C.S. § 9601, et seq., was inartfully drafted. The court held that liability under CERCLA extended to the selection of disposal facilities as well as sites. The court held that because the transporter was actively and substantially involved in the selection of the disposal facility, and because the generator relied on the transporter's expertise in choosing the facility, the transporter was liable for contribution to the generator for the response costs incurred in the remedial program.