Consolidation Coal Co. v. Georgia Power Co.

WYNN, Circuit Judge,

dissenting.

In 1983 and 1984, Georgia Power Company (“Georgia Power”) sold Ward Transformer Company (“Ward Transformer”) over one hundred electrical transformers at “scrapping” auctions. The used transformers were in various stages of disrepair and contained varying amounts of oil tainted with polychlorinated biphenyls (“PCBs”) — potent human carcinogens “linked to skin cancer, liver cancer, brain cancer, intestinal cancer, bladder cancer, leukemia, birth defects in humans and animals, and other health problems.” United States v. Gen. Elec. Co., 670 F.3d 377, 379 n. 1 (1st Cir.2012). Georgia Power knew that to function as transformers again, its broken and obsolete transformers would have to be opened and repaired, and toxic oil-saturated parts replaced.

*156Ward Transformer’s rebuilding and refurbishment of the transformers it purchased “inevitably” resulted in the disposal of PCBs at its facility. Carolina Power & Light Co. v. Alcan Aluminum Corp., 921 F.Supp.2d 488, 494 n. 14 (E.D.N.C.2013). Since 2005, over 400,000 tons of soil have been removed from the Ward Transformer site and millions of dollars expended to mitigate the contamination wrought by PCB-laden oil.

A party who arranges the disposal of hazardous materials may be liable for response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). The Supreme Court recently made clear that intent is central to the question of arranger liability. Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 609-13, 129 S.Ct. 1870, 173 L.Ed.2d 812 (2009). This Court has long made equally clear that “subjective states and objective manifestations of intention present interpretive issues traditionally understood to be for the trier of fact.” Charbonnages de France v. Smith, 597 F.2d 406, 415 (4th Cir.1979) (reversing summary judgment where intent was at issue).

At the heart of this CERCLA case, then, is Georgia Power’s intent. Today the majority holds as a matter of law that a power company who, in its own words, “disposefs] of’ “scrap!]” electrical transformers known to contain varying levels of hazardous substances does not intend even in part to “dispose of’ hazardous substances within the meaning of CERCLA. Viewing the evidence in the light most favorable to the non-moving parties, as we must on summary judgment, however, a rational finder of fact could conclude otherwise.

I.

Congress enacted CERCLA in 1980 “in response to the serious environmental and health risks posed by industrial pollution.” Burlington Northern, 556 U.S. at 602, 129 S.Ct. 1870. At the time, Congress was confronting a “legacy of past haphazard disposal of chemical wastes and the continuing danger of spills” which posed what some called “the most serious health and environmental challenge of the decade.” Alexandra B. Klass, From Reservoirs to Remediation: The Impact of CERCLA on Common Law Strict Liability Environmental Claims, 39 Wake Forest L.Rev. 903, 927 (2004) (citing Report of the Comm. on Env’t and Pub. Works, S.Rep. No. 96-848, at 2 (2d Sess.1980)). Among the hazardous substances being improperly disposed of at the time were PCBs.

By enacting CERCLA, Congress sought to provide “a mechanism for clean up of sites polluted with hazardous waste” as well as “a mechanism by which a governmental entity or private party may recover the cost of clean up from all parties responsible for the pollution of the site.” Pneumo Abex Corp. v. High Point, Thomasville & Denton R. Co., 142 F.3d 769, 774 (4th Cir.1998) (citing 42 U.S.C. § 9607; 42 U.S.C. § 9613(f)) (emphasis added).

As courts have repeatedly emphasized, CERCLA is a remedial statute and thus “must be given a broad interpretation to effect its ameliorative goals.” First United Methodist Church of Hyattsville v. U.S. Gypsum Co., 882 F.2d 862, 867 (4th Cir.1989); see also B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir.1992) (stating that because CERCLA is a remedial statute, it must be “construed liberally” to achieve its purpose). This remains true even if faithful application of CERC-LA may, at times, yield seemingly harsh results. Cf. Matter of Bell Petroleum Servs., Inc., 3 F.3d 889, 897 (5th Cir.1993) (noting that, under CERCLA liability is “[o]ften ... imposed upon entities for con*157duct predating the enactment of CERC-LA, and even for conduct that was not illegal, unethical, or immoral at the time it occurred.”) (citations omitted).

With that background in mind, I turn to the CERCLA provision at issue here.

II.

A.

Central to this case is CERCLA’s arranger liability provision. Specifically, among the “covered persons” liable under CERC-LA for recovery costs are persons who “arranged for the disposal ... of hazardous substances.” 42 U.S.C. § 9607(a)(3). “[A]rranger liability was intended to deter and, if necessary, to sanction parties seeking to evade liability by ‘contracting away’ responsibility.” Gen. Elec. Co., 670 F.3d at 382. Arranger liability thus “ensures that owners of hazardous substances may not free themselves from liability by selling or otherwise transferring a hazardous substance to another party for the purpose of disposal.” Team Enters., LLC v. W. Inv. Real Estate Trust, 647 F.3d 901, 907 (9th Cir.2011).

CERCLA does not define “arrange.” In Burlington Northern, the Supreme Court held some amount of intent inheres in the word “arrange” and that an arranger must therefore intend, at least in part, to dispose of a hazardous substance for CERC-LA liability to attach. Arranger liability thus turns on a fact-sensitive analysis of the defendant’s state-of mind — a type of analysis rarely appropriate for summary judgment. See Charbonnages, 597 F.2d at 415. Not surprisingly, then, Burlington Northern was the product of a trial — a six-week bench trial culminating in “507 separate findings of fact and conclusions of law.” 556 U.S. at 605, 129 S.Ct. 1870. On appeal, the Ninth Circuit recognized that “disposal of hazardous wastes” was “not the purpose ” of Shell Oil’s transactions. Id. at 606-07, 129 S.Ct. 1870 (emphasis added). Nevertheless, the court affirmed the trial courts holding of arranger liability. The Supreme Court reversed, holding that to qualify as an arranger under CERCLA, the party must have intended, at least in part, to dispose of hazardous substances. Id,

In reaching this conclusion, the Supreme Court relied on United States v. Cello-Foil Prods., Inc., for the proposition that “ ‘state of mind’ ” plays an “ ‘indispensable role’ ” in determining whether a party qualifies as an arranger. Burlington Northern, 556 U.S. at 611, 129 S.Ct. 1870 (quoting 100 F.3d 1227, 1231 (6th Cir.1996)). In light of the Supreme Court’s favorable citation to Cello-Foil, this case is worth examining in some detail.

In Cello-Foil, a solvent company shipped solvents in reusable drums, charging customers a deposit that would be refunded upon the drums’ return. 100 F.3d at-1230. Many customers returned drums with residual amounts of solvent inside. Id. “Some of the drums’ contents had been emptied as much as possible, some had been refilled with water, and some contained unused solvents of up to fifteen gallons.” Id. In most eases, the solvent company would simply pour any remaining contents of the drums onto the ground. Id. But nothing indicated that the customers knew how the solvent company handled residual solvents left in the drums.

The government brought an action to recover response costs from several solvent purchasers, alleging that they had “arranged for” the disposal of hazardous substances when they returned their drums in exchange for the deposit. Id. The district court granted summary judgment to the solvent purchasers, stating that “the purpose of Defendants’ returning of the drums was to recover the deposits *158that Defendants had paid; the Government has absolutely no proof that Defendants’ purpose was to dispose of residual amounts of hazardous substances remaining in those drums.” Id. at 1233. The Sixth Circuit reversed, finding a genuine issue of material fact as to whether the customers faced arranger liability under CERCLA. Id. at 1230.

Notably, in concluding that the district court “acted too hastily in finding no showing of intent [as a matter of law],” the court cited Fourth Circuit precedent counseling that “issues regarding parties’ intent ... ‘present interpretive issues traditionally understood to be for the trier of fact.’ ” Id. at 1234 (quoting Charbonnages, 597 F.2d at 415). Even though, in the eyes of the court, the customers’ primary purpose in returning the drums was to recover their deposits, the Sixth Circuit nonetheless found that a reasonable fact-finder could infer that a “further purpose was to dispose of the residual wastes returned with the drums.” Id. at 1233.

B.

Rather than heed the advice of Cello-Foil and defer resolving the question of intent until after trial, the majority concludes that no reasonable finder of fact could infer that Georgia Power intended to “dispose of’ PCB-tainted oil within the meaning of CERCLA when it, in its own words, “disposed of’ and “scrapp[ed]” its “surplus, obsolete or damaged” transformers by auctioning them off with varying amounts of PCB-tainted oil inside. J.A. 1331, 1329. In reviewing Georgia Power’s motion for summary judgment, we are bound to view the facts in the light most favorable to Appellants PCS Phosphate Company (“PCS”) and Consolidation Coal Company (“Consol”) and to draw all reasonable inferences in their favor. Garofolo v. Donald B. Heslep Assocs., Inc., 405 F.3d 194, 198 (4th Cir.2005). Doing so here, and with an eye to the case law discussed above, leads to the conclusion that Georgia Power’s motion for summary judgment should have been denied. Specifically, a reasonable finder of fact could infer from the record evidence that Georgia Power sold its used transformers not just for economic gain but also for the purpose of disposing of the PCBs contained therein.

Many of the transformers at issue were nothing more than “usable carcasses,” while others would have to be “completely rebuilt.” J.A. 1279. Perhaps not surprisingly, then, Georgia Power left the transformers at issue exposed to the elements, knowing that moisture exposure could cripple the transformers’ ability to function. Some of Georgia Power’s transformers ended up with an “oil residue & rainwater mixture” inside of them. J.A. 1427. Such moisture to a transformer is “basically like cancer to a person” as it- is “the number one cause of failures.” J.A. 1250. Georgia Power referred to its sale of the transformers as “scrapping” and “disposing of’ them. J.A. 1331. And it sold the transformers with no minimum price and no warranties other than as to title.

Further, while Georgia Power drained some of its transformers of insulating oil, some still contained gallons of oil even after being drained. Indeed, one of the drained transformers had “about 5 [gallons]” of 17.4 parts per million (“ppm”) PCB oil in it after arriving at Ward Transformer. Others were not drained at all. J.A. 2225. In fact, though regulations under the Toxic Substances Control Act of 1976 (“TSCA”) prohibited Georgia Power from selling transformers containing greater than 50 ppm PCB oil, Ward Transformer’s records show that one of Georgia Power’s transformers arrived with 488 ppm PCB oil still inside. Significantly, any oil-laden transformers would have to *159be drained by Ward Transformer before any internal components could be repaired or replaced. Ward Transformer’s records indicate that on at least one occasion, Ward Transformer replaced the free-flowing oil contained in Georgia Power’s transformers with new oil. Supra at 145.

What is more, Georgia Power had a keen awareness of the PCB contents of its transformers and their hazardous nature. It also knew from its own employees’ experiences that transformer repairs were likely to result in the spilling and disposal of oil. Significantly, the district court described such disposal events at the Ward Transformer facility as “inevitable.” Carolina Power & Light Co., 921 F.Supp.2d at 494 n. 14.

In this Circuit, we have long recognized that “subjective states and objective manifestations of intent ... present interpretive issues traditionally understood to be for the trier of fact.” Charbonnages, 597 F.2d at 415 (citing Cram v. Sun Ins. Office, Ltd., 375 F.2d 670, 674 (4th Cir.1967)); see also, e.g., Gen. Analytics Corp. v. CNA Ins. Cos., 86 F.3d 51, 54 (4th Cir.1996) (citation omitted) (“[Determining intent is fact-intensive, and when the circumstantial evidence of a person’s intent is ambiguous, the question of intent cannot be resolved on summary judgment.”).

As in Cello-Foil, Georgia Power may well have disposed of the transformers at issue here for economic gain. That the arrangement was economically beneficial does not, however, mean that it was not also intended as a way of getting rid of hazardous materials. A transaction may have multiple purposes, and a reasonable finder of fact could determine here that in selling its transformers to Ward Transformer, Georgia Power intended to “dispose of’ the used transformers and the PCB-laden oil therein.

C.

In reaching the opposite conclusion, the majority accords essentially no significance to Georgia Power’s use of terms like “dispose” and “scrapping” to describe its treatment of the transformers it sold to Ward Transformer. It is true that Burlington Northern instructs courts to look “beyond the parties’ characterization of the transaction as a ‘disposal’ or a ‘sale’ and seeks to discern whether the arrangement was one Congress intended to fall within the scope of CERCLA’s strict-liability provisions.” 556 U.S. at 610, 129 S.Ct. 1870. However, this does not give courts license to ignore the language that the parties use to describe their own actions, particularly given the “indispensable role that state of mind must play in determining whether a party has otherwise arranged for disposal ... of hazardous substances.” 556 U.S. at 611, 129 S.Ct. 1870 (internal quotation marks and citation omitted).

In Pneumo Abex, we identified several factors courts have looked to in determining the intent of a transaction, i.e., to discern whether it “was for the discard of hazardous substances” or “for the sale of valuable materials”: whether the materials were to be reused entirely or reclaimed and then reused; the value of the materials sold; the usefulness of the materials in the condition in which they were sold; and the state of the product at the time of transferal. Pneumo Abex, 142 F.3d at 775 (citations omitted). Contrary to the majority opinion, applying the factors set out in Pneumo Abex do not support the determination that the intent of these transactions can be determined as a matter of law.

Regarding the first factor, the parties could not have intended that the Georgia Power’s transformers would be used “in their entirety.” Id. For Ward Transformer to “reuse” Georgia Power’s transform*160ers, nearly half of which were identified as “scrap” or “faulty”, J.A. 650-51, 658, 667, Ward Transformer had to open the transformers and replace worn-out and broken PCB-tainted parts. This stands in stark contrast to the pesticides at issue in Burlington Northern, which were an “unused, useful product” in their present condition. 556 U.S. at 612,129 S.Ct. 1870.

Regarding the second factor' — '“the value of the materials sold” — the majority opinion suggests that this factor favors Georgia Power because Ward Transformer was able to resell the transformers at a profit. However, a party is not absolved of liability as an arranger merely because it is able to identify some market, however small, for a product containing the hazardous substances it seeks to discard. And as already discussed, a transaction may have multiple motivations, including economic gain and disposal of hazardous substances.1

The third Pneumo Abex factor looks to the “usefulness of the materials in the condition in which they were sold.” 142 F.3d at 775. This factor is crucial to assessing the intent of an arranger because a party selling a product that is useful in its present condition quite clearly does not contemplate the disposal of hazardous substances through the sale. Many of Georgia Power’s transformers were not useful in the condition in which they were sold. Many had to be “remanufactured, which included removing defective parts” that would have been dripping with PCB-tainted oil. J.A. 3407. Additionally, repair to the core and coils of these transformers would have required Ward Transformer to “drain” the transformers of any free-flowing oil so that the core and coil could be removed. J.A. 1002.2

*161At the end of the day, this appeal comes down to the guiding star for arranger liability: intent. Intent is generally a question for the finder of fact, and nothing here makes this case so unusual that it whips the intent inquiry out of the factfinder’s province and into ours.

III.

Viewing the evidence and reasonable inferences in the light most favorable to Consol and PCS, as we must on summary judgment, a reasonable factfinder could decide that Georgia Power intended, at least in part, to dispose of hazardous waste when it sold Ward Transformer its used, broken, and obsolete transformers laden with carcinogen-ridden oil at “scrapping” auctions. Accordingly, I respectfully dissent.

. The majority also points to NCR Corp. v. George A. Whiting Paper Co., as supporting summary judgment for Georgia Power here. 768 F.3d 682, 706 (7th Cir.2014). In NCR, the Seventh Circuit affirmed the district court's determination that a paper company which sold a hazardous byproduct of the paper manufacturing process to a recycling mill was not liable as an arranger under CERCLA. Importantly, however, the district court there had conducted a trial on the issue of arranger liability and found that "[the paper company's] main purpose in selling broke was not to get rid of it, but instead to place it on a competitive market and recoup some of its costs of production.” Id. at 705. The Seventh Circuit correctly recognized that it could disturb this factual finding only if it were clearly erroneous, which it was not. Here, by contrast, there has been no trial, and we must construe all the facts and reasonable inferences therefrom in favor of Consol and PCS.

. In its decision below, the district court relied in large part on Florida Power & Light Co. v. Allis Chalmers Corp., 893 F.2d 1313, 1319 (11th Cir.1990), for the proposition that Georgia Power’s surplus transformers were useful "in the condition in which thy were sold.” Pneumo Abex, 142 F.3d at 775. According to the district court, Florida Power & Light held that "forty year-old transformers with PCB-laden oil, sold as scrap at the end of their useful lives, were still a useful product at the their sale to a salvage company.” Carolina Power & Light Co., 921 F.Supp.2d at 498. But that entirely mischaracterizes Florida Power & Light.

In Florida Power & Light, a utility purchased transformers containing PCB-tainted oil from the manufacturers of the transformers and used them in their business for forty years. 893 F.2d at 1315. At the "end of their useful life,” the utility sold the transformer to a scrap metal company, which reclaimed the metals contained in the transformers and resold them. Id. at 1315. During the reclamation process, oil contaminated the scrap metal site. The issue the Eleventh Circuit addressed was whether the utility and the scrap metal company could recover from the original manufacturers of the transformers. Not surprisingly, the Eleventh Circuit answered that question in the negative. Indeed, as the Supreme Court recognized in Burlington Northern, "an entity could not be held liable as an arranger merely for selling a new and useful product if the purchaser of that product later, and unbeknownst to the seller, dis*161posed of the product in a way that led to contamination.” 556 U.S. at 610, 129 S.Ct. 1870. The Eleventh Circuit's decision in favor of the manufacturers thus in no way supports the proposition that used, broken, and obsolete transformers are “useful[] ... in the condition in which they were sold.” Pneumo Abex Corp., 142 F.3d at 77$.

It is also notable that the utility that sold the transformers for scrap in Florida Power & Light participated in cleanup efforts at the contaminated site. See United States v. Pepper’s Steel & Alloys, Inc., 658 F.Supp. 1160 (S.D.Fla.1987). Thus, Florida Power & Light does not exempt Georgia Power from contributing to the cleanup costs here.