On May 4, 2009 the Supreme Court overturned the 9th Circuit Court of Appeals ruling and held that Shell Oil Company was not liable under the Comprehensive Response, Compensation, and Liability Act (CERCLA, commonly referred to as Superfund) for spills of pesticide that occurred “as a peripheral result of the legitimate sale of an unused, useful product” where the party took numerous steps to reduce the likelihood of those spills. Burlington Northern and Santa Fe Railway Co. et al v United States et al, 129 S. Ct. 1870 (U.S. 2009). The Supreme Court also found that the district court's “detailed findings” reasonably supported the district court’s apportionment of liability to Burlington Northern and Santa Fe Railway Company and Union Pacific Railroad Company.

The case involved a Superfund site in Arvin, California. In 1960, Brown & Bryant began operating an agricultural chemical distribution business on its four-acre property. In 1975, Brown & Bryant expanded its operation onto a one-acre parcel that it leased from Burlington Northern. Brown & Bryant stored and distributed hazardous substances on the site, including a pesticide sold by Shell. Over the years of operation, these hazardous substances including the pesticide sold by Shell seeped into the soil and upper levels of groundwater at the site. Leaks and spills of one of the pesticides, which Shell required Brown & Bryant to purchase in bulk, occurred in part during the transfer process from delivery tanker trucks to Brown & Bryant’s bulk storage tank. A plume of contaminated groundwater located under the site threatened to leach into an adjacent drinking water supply. Brown & Bryant became insolvent and ceased all operations in 1989. The United States Environmental Protection Agency and the California Department of Toxic Substances Control undertook cleanup efforts and by 1998 had incurred more than $8 million in response costs. The United States and the State sued both Burlington Northern and Shell for cost recovery pursuant to CERCLA.

For more information, contact:

Greg Wall
Attorney Advisor
U.S. Environmental Protection Agency (MC2272A)
1200 Pennsylvania Avenue, NW
Washington, D.C. 20460
(202) 564-4498
wall.gregory@epa.gov

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