Shandy, who was one of eight contenders for the position, will be sworn into office during the Board’s next regular meeting on July 19 and will serve until the Board’s annual election on Feb. 8, 2011.

Shandy is an expert in air pollution and environmental law and has extensive experience representing state, regional, and national clients in environmental matters. Shandy also has deep ties to Norman Public Schools – two of his four children have graduated from Norman Public Schools, and the other two are current students.

Don Shandy’s “Attorney Bio” can be found here.

A July 8, 2010, Norman Transcript article announcing the appointment can be found here.

For more information, please see: http://www.epa.gov/nsr/documents/20100413fs.pdf
For full text of the rule, please see: http://www.epa.gov/nsr/documents/20100413final.pdf

In addition to sponsoring the conference, several RWCS attorneys presented during the Conference’s second day. Specifically, RWCS attorneys Mark Coldiron and Stephen Jantzen, along with Byron Starns of the firm Leonard, Street & Deinard of Minneapolis, presented “Session 5B: Courtroom Classics: Preserving Cost Recovery Rights.” The presentation was accompanied by a paper co-authored by the Mark Coldiron, Stephen Jantzen, and Byron Starns along with RWCS associate Ivan London. The paper, titled “Preserving Claims to Recoup Response Costs during Brownfields Redevelopment,” and the PowerPoint presentation can be viewed by clicking the following links:

"Preserving Claims to Recoup Response Costs during Brownfields Redevelopment"

PowerPoint Presentation

In addition, Stephen Jantzen moderated “Session 3A: Sustainable Development: Non-Profits LEED by Example.” During that session, the panel discussed the legal and employment implications for “Green Building”, particularly as the topic relates to Oklahoma.

Brownfields are real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant. These often include abandoned or unused commercial and industrial facilities. Redevelopment of Brownfields properties have become a focus for many municipalities, real estate developers and environmental groups due to their revitalization of blighted areas, reuse of strategically located property, and environmental protection.

The 2010 Oklahoma Brownfields Conference gave participants the opportunity to explore the environmental, economical and social benefits of Brownfields redevelopment. Key public and private sector leaders presented their experiences and shared resources regarding, among other things, technical and regulatory considerations, financial incentives, liability protection, and economic development tools.

For more information on the conference please visit: http://www.oklahomabrownfields.com

For more information on Oklahoma’s Brownfields program please visit: http://www.deq.state.ok.us/LPDnew/brownfindex.html

Pros for Africa will feed more than two thousand people (with support from Feed the Children), provide health care to as many as possible (thanks to Drs. Al Moorad, Suben Naidu, John Carey and Rob Tibbes) and dig water wells that will provide for the entire region for years to come (due to the efforts of the Water4 Foundation).  In addition, Pros for Africa will assist in the construction of a small school building and spend countless hours playing games and sports with hundreds of eager children.  Pros for Africa plans to provide the people of Uganda with a little hope, help and love – Oklahoma style.  NEWS 9 and The News On 6 will have live reports starting the week of March 15 and will air a Uganda Special on April 21.

Pros for Africa is a cooperative effort through the Whitten-Newman Foundation and several other organizations and generous individuals who have come together to join Sister Rosemary and the St. Monica Girls’ Tailoring Centre in support of this truly revolutionary initiative. 

For more information on Pros for Africa and its sponsors, or to make a donation, please visit:  http://prosforafrica.com

For more information on the Whitten-Newman Foundation and its other charitable programs, please visit:  http://www.whitten-newmanfoundation.org

The decision addresses Citizen United’s 2008 documentary entitled Hillary: The Movie, a critical documentary of Democratic Presidential Primary candidate Senator Hillary Clinton.  Citizen United wanted to release the documentary within 30 days of the election through video-on-demand, but feared recourse from the Federal Election Commission based on the BCRA.  Unable to “resolve the case on narrower ground without chilling political speech,” the Court held that the ban on campaign expenditures by corporations is unconstitutional. To read the full opinion, please visit http://www.supremecourtus.gov/opinions/09pdf/08-205.pdf.

The decision has received both praise and criticism.  While President Obama criticized the decision and promised a “forceful response” from Congress, Senate Minority Leader Mitch McConnell viewed the decision as a victory for free speech, “upon which our democracy depends.”  See Analysis: High court ruling a game-changer for campaign spending, link below. 

Justice Stevens delivered a ninety page dissenting opinion, part of which he read aloud from the bench, stating that this decision is a “radical change in the law.” 

For more information, please see:

Supreme Court reject limits on corporate spending in electoral campaigns, available at http://www.washingtonpost.com/wp-dyn/content/article/2010/01/21/AR2010012104866.html?hpid=topnews.

Analysis: High court ruling a game-changer for campaign spending, available at http://www.cnn.com/2010/POLITICS/01/21/supreme.court.analysis/index.html

Ryan Whaley Coldiron Shandy is a Platinum Sponsor for this year’s Oklahoma Brownfields Conference.  The Conference is set to take place April 28-29, 2010 at the Historic Skirvin Hilton Hotel in Downtown Oklahoma City.  This is the second consecutive year that RWCS has sponsored the Conference. 

Brownfields are real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.  These often include abandoned or unused commercial and industrial facilities.  Redevelopment of Brownfields properties have become a focus for many municipalities, real estate developers and environmental groups due to their revitalization of blighted areas, reuse of strategically located property, and environmental protection.

The 2010 Oklahoma Brownfields Conference is expected to give participants the opportunity to explore the environmental, economical and social benefits of Brownfields redevelopment.  Key public and private sector leaders will present their experiences and share resources regarding, among other things, technical and regulatory considerations, financial incentives, liability protection, and economic development tools.

For more information on the conference please visit: http://www.oklahomabrownfields.com

For more information on Oklahoma’s Brownfields program please visit: http://www.deq.state.ok.us/LPDnew/brownfindex.html

For more information on federal Brownfields programs please visit:  http://epa.gov/brownfields

The agency is proposing to replace the Bush-administration’s 2008 standard of 0.075 parts per million with a new “primary standard” between 0.060 and 0.070 parts per million measured over eight hours.

In EPA parlance a “primary standard” is a pollution limit designed to mitigate adverse health effects, while a “secondary standard” is a pollution limit designed to mitigate adverse environmental effects such as damage to property, plants, visibility, etc.

The proposed 0.060 – 0.070 ppm standard might have a devastating effect on Oklahoma industry. For example, according to the Oklahoma Department of Environmental Quality’s most recent “Air Quality Update,” while all of the Oklahoma ozone monitoring sites met the current 0.075 ppm standard in 2009, ozone monitoring sites in the Oklahoma City, Tulsa, and Lawton exceeded an ozone level of 0.065 ppm, and several exceeded 0.070 ppm. For more details on the 2009 ozone averages in Oklahoma, please visit:  http://www.deq.state.ok.us/AQDnew/newsletters/Dec09/Dec09.html#ozone

In addition to setting a new 8-hour ozone “primary standard”, EPA is also proposing to set a separate seasonal “secondary standard.” The seasonal standard is designed to protect plants and trees from damage occurring from repeated ozone exposure, which can reduce tree growth, damage leaves, and increase susceptibility to disease.

EPA estimates that the costs of implementing this proposal will range from $19 billion to $90 billion.

EPA will take public comment for 60 days after the proposed rule is published in the Federal Register. The agency will hold three public hearings on the proposal: Feb. 2, 2010, in Arlington, Va. and in Houston, TX; and Feb. 4, 2010, in Sacramento, CA.

More information: http://www.epa.gov/groundlevelozone and
http://yosemite.epa.gov/opa/admpress.nsf/0/D70B9C433C46FAA3852576A40058B1D4

A significant addition to the new rules is a method for calculating the “last day” of a time period.  The new Rule 6(a)(4) differentiates between electronic filing and other means of filing.  For electronic filing, the last day expires at midnight in the court’s time zone.  For all other means of filing, the last day expires when the clerk’s office is scheduled to close. Rule 6(a)(1)(C) still extends the time period for filing when the last day of the period is a weekend or legal holiday, and allows filing until the end of the next day that is not a weekend or a legal holiday.  Moreover, if the Clerk’s office is “inaccessible” on the last day for filing, the deadline is extended until the “first accessible day” that is not a Saturday, Sunday, or legal holiday under Rule 6(a)(3)(B).

The new Rule 6(a)(2) also provides a method of calculating time periods stated in hours.  The rule states that counting for a period stated in hours begins “immediately on the occurrence of the event that triggers the period.”  The rule further mandates that “every hour is counted, including hours during intermediate Saturdays, Sunday, or legal holidays.”  In the event that the last hour falls on a Saturday, Sunday, legal holiday, or on a day the Clerk’s office is inaccessible then the deadline is extended to the same time on the next day that is not a Saturday, Sunday, or legal holiday, or the court is accessible.

The amendments to the current Federal Rules attempt to simplify the attorney’s life with regard to timing and deadlines.  Will the new rules have such an outcome? Only time will tell. 

For a full text of the amended rules, visit www.uscourts.gov/rules.
To view the Power Point Presentation, The Days of Our Circuit Court Lives, click here www.uscourts.gov/rules/presentation.html
To view Time Changes Coming to the Federal Rules, click here http://www.uscourts.gov/ttb/2009-06/article02.cfm. 
See Fed. R. Civ. P. 6 (2009).

RWCS directors Matt Kane and Dan Webber will receive the 2008 Maurice Merrill Golden Quill Award for their article “Federal Sentencing:  The New Frontier of Modern Legal Advocacy,” which appears in the October 10, 2009 issue of the Oklahoma Bar Journal.  See http://www.okbar.org/news/front/2009/10/07-awards-winners.htm.  The award is named after former University of Oklahoma College of Law professor Dr. Maurice Merrill, and is given annually to the authors of the best written article published in the Oklahoma Bar Journal, as determined by the Oklahoma Bar Association Board of Editors.  Both Kane and Webber have represented numerous clients in federal criminal and civil investigations dealing with allegations ranging from securities fraud to political corruption to health care overbilling.

RWCS is a sponsor of the 2009 Governor's Water Law Conference, to be held Nov. 3-5 at the Sheraton-Reed Conference Center in Midwest City.  The Governor's Water Law Conference is hosted each year by the Oklahoma Water Resources Board, and covers the latest issues and developments water policy, water quality, water management, and water supply.  For more information about the conference, see http://www.owrb.ok.gov/news/waterconference.php (and once there, see the link to RWCS at the bottom of the "2009 Sponsors" block).   For more information about RWCS experience and involvement in local, regional, and national water cases and issues, see various links on this web site, or contact Keith Klein, Steve Jantzen, or Mark Coldiron.

The plaintiffs in Connecticut v. American Electric Power Company seek to force the defendants to cap and reduce their carbon dioxide emissions in view of the “clear scientific consensus” on global warming. Rather than sue pursuant to the Clean Air Act, however, the plaintiffs have alleged claims under the federal common law nuisance for injuries attributable to global warming such as reduction in mountain snowpack and its concomitant flooding, increased illness from heat waves and smog, prolonged droughts, flooding, and wildfires, and beach erosion and sea level rise.

The Second Circuit’s opinion did not assert that the plaintiffs will succeed in imposing caps on carbon dioxide emissions, but is very important due to the likelihood that it will prompt a rush of litigation by states and municipalities as well as private interest groups against a broad array of companies.

The ruling – especially when combined with a recent opinion by a federal court that ordered the Tennessee Valley Authority utilize specific pollution controls based on a state nuisance law claim, North Carolina v. TVA, 593 F.Supp.2d 812 (W.D.N.C. 2009) – leaves open a nuisance cause of action against any industrial facility that emits significant quantities of greenhouse gases, and that risk will survive unless and until Congress or the Environmental Protection Agency more pervasively regulate carbon dioxide emissions. For our updates on recent developments in carbon dioxide regulation, please see http://www.ryanwhaley.com/epa-will-begin-monitoring-greenhouse-gas-emissions-in-20101 and http://www.ryanwhaley.com/epa-to-regulate-greenhouse-gasses.

Perhaps most important, the opinion will help future nuisance cases survive dismissal by imposing a low bar for proving the link between CO2 emissions and the claimed injuries: “[Causation] is an issue best left to the rigors of evidentiary proof at a future stage of the proceedings, rather than dispensed with as a threshold question of constitutional standing.”

The Connecticut opinion reveals that until there is a national carbon dioxide emissions policy public and private parties will be able to use the federal courts to seek incremental relief by imposing carbon dioxide caps on individual facilities. The Second Circuit stated:

Nowhere in their complaints do Plaintiffs ask the court to fashion a comprehensive and far-reaching solution to global climate change . . . . A decision by a single federal court concerning a common law of nuisance cause of action, brought by domestic plaintiffs against domestic companies for domestic conduct, does not establish a national or international emissions policy (assuming that emissions caps are even put into place).

The Connecticut opinion should be studied closely by plant managers, environmental managers, and counsel for any facility that produces significant quantities of greenhouse gases, so that going forward members of industry can (1) plan for potential litigation and (2) devise an approach for addressing whether comprehensive federal regulation of greenhouse gases will be preferred over piecemeal litigation.

The Second Circuit’s opinion in Connecticut v. American Electric Power Co., No. 05-5104 (2d Cir. Sept. 21, 2009) can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/f7872f7d-579c-48ea-8483-e14964926376/28/doc/05-5104-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/f7872f7d-579c-48ea-8483-e14964926376/28/hilite/.

Rationale:  In analyzing § 101(5)(B) of the Bankruptcy Code, the court stated that in situations where the equitable remedy is unobtainable, such an equitable claim can be reduced to a money judgment if the claim “gives rise to a right to payment.”  Thereafter, the claim can be discharged in bankruptcy.  Distinguishing between a mortgage, which gives rise to a right of payment in the event of default, and an injunction under RCRA, the court reasoned that because RCRA “does not authorize any form of monetary relief,” an injunction under RCRA does not give rise to a right to payment, and merely entitles the government to order clean up at the defendant’s expense.  Defendant argued that the court should distinguish between types of injunctions, such as those that can be complied with internally versus those that require an independent contractor for compliance, in determining whether or not the claim is dischargeable.  The court rejected this argument, holding that such distinctions are arbitrary and would encourage polluters to hire third parties to clean up, even if fully capable of doing so internally.

Case:  United States v. Apex Oil Co., Inc., 579 F.3d 734 (7th Cir. 2009).

Congratulations to RWCS client Goodyear (Lawton, Oklahoma tire plant) for winning the Frank Condon Award for Environmental Excellence.  The award was presented to Bryce Smith on Oct. 1 during the Environmental Federation of Oklahoma Annual Meeting for the Lawton plant's program "Solvent and Landfill Elimination." 

• ODEQ Director Steve Thompson first discussed this year's budget shortfall and the potential for increased fees in 2011, then addressed increased federal regulation, including reductions in the ozone standard, increased Clean Water Act enforcement, and other programs.
• Lt. Gov. Jari Askins reviewed stimulus programs with a green focus, especially the Oklahoma Water Resources Board's use of $62 million in funds to leverage almost $250 million for water and wastewater projects.
• Michael Mondshine, SAIC, provided estimates of the economic impacts of pending "cap and trade" greenhouse gas reduction legislation.  One observation: a gradual increase in the cost of natural gas until 2020, then a rapid increase in cost afterward.
• Derek Smithee, OWRB, explained the development of the Oklahoma Comprehensive Water Plan (OCWP), including a water quality chapter, and invited participation in the working group and public review process currently underway.

Starting January 1, 2010, EPA will require suppliers of fossil fuels or industrial greenhouse gases (“GHG”), manufacturers of vehicles and engines, and facilities that emit 25,000 metric tons or more per year of GHG emissions to submit annual reports to EPA.

The gases covered by the proposed rule are carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFC), perfluorocarbons (PFC), sulfur hexafluoride (SF6), and other fluorinated gases including nitrogen trifluoride (NF3) and hydrofluorinated ethers (HFE).

EPA’s goal is to account for approximately 85 percent of the nation’s GHG emissions, and the new standard will apply to roughly 10,000 facilities. As a result, the new rule specifically covers many industries, including:

·    Portland cement manufacturing plants

·    Carbon black manufacturing facilities

·    Natural gas distribution facilities

·    Lime and nitric acid production facilities

·    Fossil-fuel fired electric generating units

·    Electroplating, plating, anodizing, and coloring facilities

·    Feedlots, hog and pig farms, and chicken and turkey production

·    Pulp and paper mills and manufacturers of lumber and wood products

·    Chemical manufacturers

·    Petroleum refineries and manufacturers of coal products

·    Manufacturers of motor vehicle parts

·    Lead smelting and refining facilities

·    Municipal solid waste landfills

The first annual reports for the largest emitting facilities, covering calendar year 2010, will be submitted to EPA in 2011.

According to EPA, the rule is intended to provide a better understanding of the sources of GHG emissions, so as to help EPA develop policies and programs to reduce emissions.  EPA provides more information and the text of the rule at its website: http://www.epa.gov/climatechange/emissions/ghgrulemaking.html.

Provocative questions like this make Heart of Dryness - a modern environmental case study - a worthwhile read for anyone interested or involved in water law and water rights issues.  As the Conrad-inspired title indicates, the action takes place in Africa - Botswana to be precise - a place which most Americans probably don't give much thought.  But the author, global water journalist James Workman, draws many interesting parallels to Western, Midwestern, and Southeastern U.S. water history including diminishing annual snowpack and the resultant effect on rivers such as the Colorado, drying forests, evaporation of Lake Mead and other reservoirs, water infrastructure aging (there is some amazing information about how much water can leak from old piping), and depletion of groundwater.  The author cites the Ogallala Aquifer as a prime example (some areas of the aquifer are estimated to have less than 25 years groundwater supply left).  For more on the Ogallala Aquifer's current condition see this link: http://www.scientificamerican.com/article.cfm?id=the-ogallala-aquifer&page=4 (Oklahoma appears to be in somewhat better shape vis-a-vis remaining aquifer groundwater supplies than other areas). 

Other fascinating points in Heart of Dryness include the criticism of biodiesel fuel policy.  Producing biodiesel fuel requires massive amounts of water, which the author argues makes little sense when surface and groundwater supplies are at risk, especially when clean natural gas is so abundant in the Midwest (and currently very low-priced)? 

The author argues that strategies of African Bushmen for coping with water scarcity can be adapted and applied in countries like the United States, and offers new perspectives on U.S. policy regarding water law, water rights, and water usage.  One need look no farther than the current lawsuits by Dallas's Tarrant County Water District and the City of Hugo - which seek to invalidate Oklahoma's legislative moratorium on sale of water out-of-state - to see the real-world manifestation of a key Workman thesis - "we do not govern water, it governs us."

Ryan Whaley Coldiron Shandy attorneys are very familiar with Oklahoma water law and water rights issues, similar issues in other states, have represented key clients in such matters, and have spoken at water law conferences and seminars.

• Retain only experts who are thoroughly screened and Daubert-knowledgeable because they will have to invest adequate time and effort to produce a report with sufficient detail and explanation and defend it against Daubert challenge while facing brutal scheduling issues. 
• Make sure experts are committed and have the capability (from a mental, physical, temperament, and scheduling standpoint) to engage in the arduous and lengthy expert process, which will likely include: helping formulate and guide discovery, reviewing documents, performing their work, preparing a report, undergoing tough depositions (and the extensive preparation needed to get ready for them), assisting with Daubert motions (both defending their work and advising on challenges to a counterpart expert's work), testifying at Daubert hearings, and preparing demonstrative exhibits.
• Do not underestimate the importance of expert involvement, time demands, and complexity in (a) selecting exhibits to be identified on the exhibit list at the time set in the scheduling order, and (b) preparing demonstrative exhibits, usually for exchange at some later point closer to trial.  In a complex case, experts tend to want later deadlines for demonstratives and  frequently come up with changes and refinements to demonstratives as the dealine approaches.  New technology and techniques for illustrating expert testimony encourage constant improvement of demonstratives - which can be draining on counsel and expensive.  Start working on demonstratives early!

For more on this issue, see: http://www.epa.gov/oecaerth/civil/cwa/cwaenfplan.html

There has been a significant development in the climate change-energy debate.  Last Friday, June 26, the House passed ACES - the American Clean Energy & Security Act (also known as the Waxman-Markey Bill).  Although the bill passed in the House by a close vote and its fate in the Senate is uncertain, one could hardly have imagined the US being at this point two years ago.  ACES is the Obama administration's proposed legislation to reduce greenhouse gas emissions via a cap and trade program, and would make the US a leader in world climate change policy.  For more details, see http://www.pewclimate.org/acesa.  

10/1/09 update:  On Sept. 30, Sens. Kerry and Boxer introduced a revised climate change bill.  See: http://epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=fbc5a0e4-96b6-401d-9b25-7d585bf39e7a

What happened:  The Eleventh Circuit decided a major case taking away a potential defense for companies and other defendants seeking to block a Clean Water Act (CWA) citizen suit.  Essentially, the Court held that a defendant cannot prevent a citizen suit from proceeding by getting the state regulatory agency to take an administrative or civil enforcement action that might result in a lighter penalty.  If a citizen provides notice of intent to sue under the CWA before any enforcement action has been taken, and files suit within 120 days after the notice of intent to sue, the citizen suit can proceed even if the state takes enforcement action after the notice of intent to sue.

Rationale:  Citizens are required to give a 60-day notice of intent to sue before filing a CWA citizen suit.  Separate provisions in the CWA bar citizen suits when EPA or a state agency has commenced and is diligently prosecuting an enforcement action against a polluter.  The bar contains exceptions language, but defendants typically argue that language only lifts the bar with regard to enforcement by EPA.  The Eleventh Circuit rejected this contention, ruling that the exceptions language applies to both EPA and state enforcement actions based on its plain and ordinary meaning, and that the citizen suit bar is lifted when notice of intent to sue is given before either an EPA or state enforcement action (and the citizen suit is then timely filed).  The Court also found that its interpretation was consistent with Congress's intent to avoid placing obstacles in the way of citizen suits and maximizing the lmiited resources of EPA, states, and citizens as enforcers and guardians of the Nation's waterways. 

Consequences:  This ruling will likely encourage more CWA citizen suits because defendants will not be able to block these suits  by entering into consent orders with state regulators to resolve the violations which led to the citizens' notice of intent to sue.  

Example:  Company fails to comply with stormwater permit and the muddy run-off impacts landowners downstream.  Landowners properly issue 60-day notice of intent to sue before any state enforcement action is taken.  Landowners can maintain suit even if state then takes enforcement action (provided landowners sue within 120 days of notice of intent to sue).

Case:  Black Warrior Riverkeeper, Inc. v. Cherokee Mining, LLC, 548 F.3rd 986 (11th Cir. 2008) (rehearing en banc denied). 

In Burlington Northern & Santa Fe Railway Co. v. United States and Shell Oil Co. v. United States, an agricultural chemical distributor expanded its operations onto a parcel owned by Burlington Northern. As part of its business, the distributor purchased and stored pesticides from Shell. Over time, many of the chemicals spilled during deliveries. EPA and the California state environmental agency discovered the contamination, and by 1998 had spent over $8m to clean up the site. When the agencies sued Burlington Northern and Shell for response costs (the distributor had gone bankrupt), the district court found them liable. Specifically, Burlington Northern was liable as an owner of a portion of the overall site, and Shell was liable as an “arranger” for its role in delivering pesticides to the site.

Having found liability and legal divisibility of the harms, the district court then ruled that the portions that each defendant contributed to the overall harm at the site were divisible in fact. Based on the percentage of surface area at the site owned by Burlington Northern, the duration of its ownership vis-à-vis the contamination, and the contribution of the chemicals spilled on Burlington Northern’s parcel to the overall harm, along with a factor accounting for math error, the court affixed 9% of the liability for the total cleanup costs to Burlington Northern. Based on an estimate of contribution to the overall harms from spills of Shell’s pesticides on delivery, the court affixed 6% of the liability for the total cleanup costs to Shell. While the Ninth Circuit Court of Appeals upheld the ruling on liability, it ruled that the evidence in the record did not support the divisibility in fact of the cleanup costs.

While the Supreme Court agreed with the trial court with respect to Burlington Northern’s liability under Section 107, it applied the ordinary meaning of the word “arrange” – a term that CERCLA does not define – to hold that “arranger liability” requires an element of intent. Although knowledge of leaks and spills may be used as evidence that a PRP intended to dispose of hazardous wastes, knowledge alone does not satisfy the intent element required for “arranger liability.”

In the other portion of the opinion, the Supreme Court affirmed the growing trend among the Courts of Appeals in favor of dividing Section 107 liability “when two or more persons acting independently caus[e] a distinct or single harm for which there is a reasonable basis for division . . . .” In this case, although the evidence in the record did not yield exact determinations of apportioned harm, it did provide a reasonable basis for affixing 9% of the cleanup costs on Burlington Northern. So the Supreme Court reversed the Ninth Circuit and reinstated the district court’s findings of fact as to Burlington Northern’s proper portion of the cleanup costs. The Supreme Court was careful to note that equitable considerations do not play a role in divisibility, as they only arise under Section 113(f) contribution claims, not Section 107 claims.