ELR Citation: ELR 21486
No(s). s. 93-3587 et al (3d Cir. Sep 12, 1994)

The court holds that a hazardous waste transport company that had substantial input into its customer's disposal facility selection "selected" the disposal facility and, thus, is liable as a transporter under §107(a)(4), of the Comprehensive Environmental Response, Compensation, and Liability Act. The court first holds that to be held liable under §107(a)(4), a transporter must select the disposal facility. The phrase "selected by such person" in §107(a)(4) modifies the terms "sites" and "facilities" in that subsection. Interpreting the term "selected," the court next holds that for liability to attach under §107(a)(4), a transporter must be so involved in the selection process that it has substantial input into the disposal process. The court determines that the substantiality of the input will be a function, in part, of whether the decisionmaker relied on the transporter's special expertise in reaching its final decision such that the selection is done jointly. Applying what the court deems the "active participation" standard, the court holds that the transporter actively participated in the decision to dispose of waste at the site in question. Although the transporter did not make the final decision to dispose of the waste at the site, it substantially contributed to and shared in that decision by locating and submitting a limited number of potential disposal sites from which its customer could make the final selection.

Counsel for Appellees
Carolyn M. Branthoover
Kirkpatrick & Lockhart
1500 Oliver Bldg., Pittsburgh PA 15222
(412) 355-6500

Counsel for Appellant
David L. Smiga
USX Corporation
600 Grant St., Pittsburgh PA 15219
(412) 433-1121

Before Hutchinson and Joyner,^* JJ.