Update on the Bigger Better Bottle Bill

In my May Environmental Update, I detailed the requirements in the “Bigger Better Bottle Bill,” New York’s newly expanded returnable beverage container law.  This new Returnable Container Act, which was signed into law in early April 2009, contained many amendments, including four major and controversial new provisions: (1) deposits would now be required on certain water drinks including flavored water and nutritionally enhanced water (previously water bottles were excluded); (2) bottlers and distributors would now be required to return 80% of all unclaimed deposits to the State’s general fund (previously these unclaimed deposits were kept by the bottlers) (3) the handling fee would be increase from 2 cents per container to 3.5 cents per container and (4) deposit initiators would be required to produce new labels for containers offered for sale in New York which would have a “New York State specific” UPC bar code identifying the container as being offered for sale exclusively in New York. These new requirements were scheduled to be implemented within a few months of the enactment of the new statute, with all to be in place by June 1, 2009.

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The “Bigger, Better Bottle Bill” Is Now The Law In New York

New York State’s budget process had the usual twists and turns and finger pointing as in past years.  This year, however, after serious lobbying by both sides of the “Bigger, Better Bottle Bill” debate, a new and very substantial change to New York’s returnable beverage container law was incorporated into the 2009 budget bill and signed into law by Governor Patterson.

The original bottle bill, enacted in 1982, regulated only carbonated soft drinks, beer and other similar beverages. Since that time, however, there has been an enormous explosion of the sale of non-carbonated drinks.  For example, water drink sales have grown to almost one quarter of all beverage containers sold in New York.  None of these drinks are sold in returnable containers and, as a result, there has been a glut of plastic and other bottles which are either recycled or simply tossed into the garbage and, ultimately, a landfill.  In addition, under the old law, unredeemed deposits on returnable containers, totaling millions of dollars per year, were kept by beer and soda companies.

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Supreme Court Changes the Rules in “Landmark” CERCLA Decision

On May 4, 2009, in a major 8-1 opinion, the United States Supreme Court addressed the scope of “arranger” liability and the basis for apportioning liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  In Burlington Northern & Santa Fe Railway Co., et al. v. United States, et al., the Supreme Court found that the liability of a party which “arranges for disposal” of hazardous substances requires a showing of  “intent.”   The Supreme Court also ruled that apportionment of liability under CERCLA is appropriate where the record provides a “reasonable basis” for such apportionment.

Beginning in 1960, Brown & Bryants, Inc. (B&B) operated an agricultural chemical distribution business on property it owned in Arvin, California.  B&B received deliveries hazardous chemicals which it then stored and distributed to customers.  In 1975, B&B expanded its operations and leased an adjacent one acre parcel which was owned jointly by several railroad companies, now defendants Burlington Northern and Santa Fe Railroad (“the Railroads”). 

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