ELR Citation: 45 ELR 20064
No(s). 13-1603 et al (4th Cir. Mar 20, 2015)

The Fourth Circuit held that a public utility that sold used PCB-containing electrical transformers in the 1980s to a company for reconditioning and resale should not be held liable under CERCLA as an arranger. EPA added the site to the NPL in the mid-2000s, and the current owners of the site bore much of the cleanup costs. They now seek contribution. But the owners failed to present record evidence creating any genuine issue of material fact as to whether the utility sold the transformers "with the intention that at least a portion of the product be disposed of during the transfer process by one or more of the methods" within the statutory definition of disposal. As the U.S. Supreme Court made clear in Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 559, 39 ELR 20098 (2009), a party does not "intend to dispose" of a hazardous substance solely by selling a product to a buyer who at some point down the line disposes of a hazardous substance that was within the product. Here, there is no direct evidence, nor circumstantial evidence, that the utility intended, even in part, to arrange for the disposal of PCBs through the transactions.