Author: Jacob J. Franchino

In Town of Islip v. Datre, a recent decision out of the Eastern District of New York, the court adopted an approach to “arranger liability” under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) that holds parties cannot be liable unless they knew that the substances they arranged for disposal were, in fact, hazardous. The Islip court’s approach represents a departure from traditional considerations of arranger liability and, if followed by future courts, may present a defense for potentially responsible parties who, though intentionally arranging for disposal of materials which ultimately lead to contamination, lacked specific knowledge that such materials contained hazardous substances. The Islip case arises out of illegal dumping of hazardous construction and demolition debris that occurred at a public park (“the park”) in Islip, New York between 2013 and 2014. Though the case involves an elaborate and bizarre dumping scheme involving, among many others, a local church, the parks department, and a number of haulers, as well as the eventual filing of criminal charges, it is sufficient for present purposes to distill the facts as follows. Relevant to the issue of arranger liability, a civil complaint filed by the Town of Islip (“the Town”) alleged that two companies (the “arranger defendants”) acted as brokers between those defendants who generated the construction...