ELR Citation: ELR 20747
No(s). 93-B-711 (D. Colo. Dec 13, 1993)

The court holds that the sale by a manufacturer of a plug-valve sealant containing polychlorinated biphenyls (PCBs) to a natural gas transmission and distribution company may constitute arranging for the disposal of a hazardous substance under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107(a)(3). The court refuses to adopt a bright-line rule that would automatically exempt from CERCLA liability sellers of useful products. The court holds that product sales may constitute an arrangement for disposal under §107(a)(3) if the sales are affirmative acts to dispose of hazardous waste. The natural gas company's allegations that the manufacturer was not engaging in sales of a product, but instead was disposing of or arranging for the disposal of PCBs, are sufficient to withstand a motion to dismiss. The court holds that the amended complaint sufficiently alleges a release of a hazardous substance into the environment. Although the complaint repeatedly alleges a release or threatened release not expressly "into the environment," the court construes "release" to mean a release into the environment. The court holds that the complaint sufficiently alleges that the release of hazardous substances occurred from a facility within the meaning of §107(a)(4). The court holds that the company's pipelines and natural gas facilities do not fall within CERCLA §101(9)'s exclusion from the term "facility" any consumer product in consumer use, because the facilities are not consumer products. The Act's legislative history reveals that the consumer products exception is meant to cover individual consumers, not commercial businesses such as the company's.

Counsel for Plaintiffs
Peter W. Pryor, Rodney R. Patula
Pryor, Carney & Johnson
6200 S. Syracuse St., Ste. 400, Englewood CO 80111
(303) 771-6200

Counsel for Defendants
Fern C. Bomchill, Thomas B. McNeill
Mayer, Brown & Platt
190 S. La Salle St., Chicago IL 60603
(312) 782-0600