ELR Citation: ELR 20727
No(s). 8:CV90-00395 (D. Neb. Dec 19, 1994)

The court holds that a company that sold lead plates it reclaimed from spent batteries to a lead smelter did not "otherwise arrange for disposal or treatment" of the lead within the meaning of §107(a)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first holds that becausethere is no evidence that the company shipped the lead plates to the smelter to have them processed from a hazardous substance into a nonhazardous substance, it did not arrange for their "treatment." The court next holds that parties do not arrange for disposal merely by selling a hazardous substance. The sale of a useful, although hazardous, substance to serve a particular purpose is not an arrangement for disposal and will not result in CERCLA liability. The court concludes that a distinction can be drawn between a seller of whole spent batteries and a seller of reclaimed lead from such batteries. A reclaimer and seller of lead plates creates a new and useful product that may be incorporated into the buyer's manufacturing process without imposing liability on the seller as an arranger for the lead's disposal. The court holds that it will not extend CERCLA liability to the company, which sold a hazardous but useful product to the smelter, which was responsible for its misuse. To hold otherwise would inhibit the company and other companies like it that create a useful product from what would otherwise be hazardous waste. Further, unlike in cases that impose liability on sellers of hazardous byproducts of their manufacturing processes, the lead plates here are the company's principal business product, not a byproduct. The court holds that the company is not a responsible person subject to liability under CERCLA and grants its motion for summary judgment.

Counsel for Plaintiff
John L. Wittenborn
Collier, Shannon, Rill & Scott
3050 K St. NW, Ste. 400, Washington DC 20007
(202) 342-8400

Counsel for Defendants
Richard C. Ford
Crowe & Dunlevy
1800 Mid-America Tower
20 N. Broadway, Oklahoma City OK 73102
(405) 235-7700