ELR Citation: ELR 21398
No(s). 93-5113, 94-4397 (11th Cir. Jun 3, 1996)

The court holds that customers who contracted with pesticide sprayers for aerial spraying services did not "otherwise arrange for" the disposal of pesticide wastes under §107(a)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The sprayers sought contribution from the customers under CERCLA for the costs of cleaning up contamination that occurred when pesticides were mixed and loaded into the planes' applicating tanks and were rinsed out of the tanks after spraying runs. The court holds that contracting for aerial spraying services is not sufficient to establish the customers' liability. The sprayers failed to demonstrate that the customers took some affirmative act to dispose of the waste. The sprayers did not allege that the customers assisted the sprayers in loading the planes or rinsing out the applicating tanks or that the customers had either the duty or authority to monitor or control the sprayers' activities. Furthermore, aerial pesticide spraying does not obviously involve the creation and disposal of hazardous waste, and the court cannot infer that the customers had knowledge that spraying their crop and pasture lands with pesticides entailed the spilling of pesticides and draining of contaminated rinse water. The court holds that without this knowledge, the customers could not have acquiesced to the sprayers' disposal of the wastes. The court, however, refuses to hold that parties who contract for services involving the application of hazardous substances can never be found liable under §107(a)(3).

Counsel for Plaintiffs
Philip M. Burlington
Caruso, Burlington, Bohn & Compiani
1615 Forum Pl., Ste. 3-A, West Palm Beach FL 33401
(561) 686-8010

Counsel for Defendants
Arnold L. Berman
Shutts & Bowen
250 Australian Ave., Ste. 500, West Palm Beach FL 33401
(561) 835-8500

Before HATCHETT and BLACK, Circuit Judges, and CLARK, Senior Circuit Judge.