Consolidation Coal Company v. Georgia Power Company

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1603
CONSOLIDATION COAL COMPANY,
Defendant – Appellant,
v.
GEORGIA POWER COMPANY,
Defendant – Appellee,
and
DUKE ENERGY PROGRESS, INC., Progress Energy Carolinas, Inc.,
Plaintiff,
and
UNION ELECTRIC COMPANY; AMERICAN ELECTRIC CORPORATION; TOWN
OF BLACKSTONE, VIRGINIA; BONNER ELECTRIC, INC.; CHEVRON
MINING, INC.; COHEN AND GREEN SALVAGE COMPANY, INC.; OWEN
ELECTRIC STEEL COMPANY OF SOUTH CAROLINA and/or SMI-OWEN
STEEL COMPANY, INC. and/or SMI STEEL, d/b/a CMC Steel South
Carolina, an Alabama corporation operating a steel plant in
Cayce, South Carolina and/or Commercial Metals Company as
successors in interest to SMI Steel; COOPER INDUSTRIES,
INC., as successor-in-interest for Abex Friction Products
Division of Abex, Inc.; COTTER ELECTRIC COMPANY; CITY OF
DOVER, DELAWARE; ENDICOTT CLAY PRODUCTS COMPANY; HAGERSTOWN
LIGHT DEPARTMENT; HUNTSVILLE UTILITIES; JET ELECTRIC MOTOR
CO., INC.; KELLY GENERATOR & EQUIPMENT, INC. AND/OR KELLY
ELECTRICAL CONSTRUCTION, INC., f/k/a Kelly & Bishop
Electrical Construction, Inc. and/or John E. Kelly & Sons
Electrical Construction, Inc.; LAFARGE MID-ATLANTIC, LLC
AND/OR LAFARGE MID-ATLANTIC, INC. AS SUCCESSOR-IN-INTEREST
TO OR REDLAND GENSTAR, INC. AND GENSTAR STONE PRODUCTS,
INC.; LEWIS ELECTRIC SUPPLY CO., INC.; CITY OF MASCOUTAH,
ILLINOIS; M-P ELECTRICAL CONTRACTORS, INC.; NEW SOUTHERN OF
ROCKY MOUNT, INC.; NORTH CAROLINA DEPARTMENT OF AGRICULTURE
AND CONSUMER SERVICES; P.C. CAMPANA, INC.; PHOENIX SOLUTIONS
COMPANY, as successor in interest to Plasma Energy Company;
SURRY-YADKIN ELECTRIC MEMBERSHIP CORPORATION; TENNESSEE
ASSOCIATED ELECTRIC, INC. OR TENNESSEE ASSOCIATED ELECTRIC,
a/k/a Tennessee Associated Electric Holdings, Inc.; VENTECH
ENGINEERS, INC., AND/OR VENTECH PROCESS EQUIPMENT, INC.
AND/OR VENTECH EQUIPMENT INC. AND/OR THE VENTECH COMPANIES;
W.R. SCHOFIELD CONSTRUCTION CO., INC.; OWEN ELECTRIC STEEL
COMPANY OF SOUTH CAROLINA; VEOLIA ENVIRONMENTAL SERVICES
WASTE-TO-ENERGY, f/k/a Montenay Power Corporation;
INTERNATIONAL POWER MACHINERY COMPANY; 3M COMPANY; ALCAN
PRIMARY PRODUCTS CORPORATION; ALCOA, INCORPORATED; AMERICAN
SKIING COMPANY; APOGEE COAL COMPANY, LLC; APPALACHIAN POWER
COMPANY; ARKEMA, INC., f/k/a Pennwalt Corporation; ATLANTIC
CITY ELECTRIC COMPANY; BALTIMORE GAS AND ELECTRIC COMPANY;
BASF CORPORATION; BASSETT FURNITURE INDUSTRIES,
INCORPORATED; BAYER CROPSCIENCE, INCORPORATED; BEDFORD RURAL
ELECTRIC COOPERATIVE, INC.; BLUE RIDGE ELECTRIC COOPERATIVE,
INC.; BROAD RIVER ELECTRIC COOPERATIVE, INC.; BRUCE-
MERRILEES ELECTRIC COMPANY; BUIST ELECTRIC, INC.; CAPE
HATTERAS ELECTRIC MEMBERSHIP CORPORATION; CARGILL,
INCORPORATED; CARLISLE SYNTEC, INCORPORATED; CARR AND DUFF,
INC.; CATERPILLAR, INCORPORATED; CBS CORPORATION; UNITED
STATES CENTRAL INTELLIGENCE AGENCY; UNITED STATES DEFENSE
LOGISTICS AGENCY; UNITED STATES DEPARTMENT OF THE ARMY;
UNITED STATES DEPARTMENT OF THE NAVY; UNITED TECHNOLOGIES
CORPORATION; UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL;
VIRGINIA ELECTRIC & POWER COMPANY (VEPCO); VULCAN
CONSTRUCTION MATERIALS, LIMITED PARTNERSHIP; WARREN ELECTRIC
COOPERATIVE, INCORPORATED; WARTBURG COLLEGE; WASHINGTON
SUBURBAN SANITARY COMMISSION; WEST PENN POWER COMPANY;
WEYERHAEUSER COMPANY; CENTRAL REGIONAL HOSPITAL; CHEMICAL
PRODUCTS CORPORATION; CHERRY HOSPITAL; CHRISTUS HEALTH;
CLEVELAND ELECTRIC COMPANY; COGENTRIX ENERGY, LLC;
CONOCOPHILLIPS COMPANY; CONSUMERS ENERGY; COOPER TIRE &
RUBBER COMPANY; CSX RESIDUAL COMPANY; DANNY CORPORATION;
DEAN'S LIGHT BOX, INC.; DELMARVA POWER & LIGHT COMPANY;
DIXON LUMBER COMPANY, INCORPORATED; DOMTAR PAPER COMPANY,
LLC; DOREY ELECTRIC COMPANY; DUKE ENERGY CAROLINAS, LLC;
DUQUESNE LIGHT COMPANY; EAST KENTUCKY POWER COOPERATIVE,
INC.; ELECTRIC CONTROL EQUIPMENT CO.; ELECTRIC EQUIPMENT
CORPORATION OF VIRGINIA; ENVIRONMENTAL PROTECTION SERVICES,
INCORPORATED; ERACHEM COMILOG, INC.; FLORIDA POWER & LIGHT
COMPANY; FOREMOST ELECTRIC & TRANSMISSION, INC.; FRONTIER
COMMUNICATIONS CORPORATION; FURMAN UNIVERSITY; G&S MOTOR
EQUIPMENT COMPANY, INC.; GENERAL ELECTRIC COMPANY; GENERAL
2
EXTRUSIONS, INC.; GKN DRIVELINE NORTH AMERICAN, INC.;
GLADIEUX TRADING & MARKETING CO., LP, AND/OR LIMITED
CORPORATION; GLENWOOD RESOLUTION AUTHORITY, INC.; GREEN
CIRCLE GROWERS, INC.; GREENWOOD MILLS, INCORPORATED;
GUERNSEY-MUSKINGUM ELECTRIC COOPERATIVE INC.; HAINES AND
KIBBLEHOUSE, INC.; THE HOLLADAY CORPORATION, a/k/a Holladay
Property Services Midwest, Inc.; HUDSON LIGHT AND POWER
DEPARTMENT; IES COMMERCIAL, INC., AND/OR INTEGRATED
ELECTRICAL SERVICES, INC.; IMERYS CARBONATES, LLC;
INTERNATIONAL PAPER COMPANY; INTERTAPE POLYMER GROUP,
INCORPORATED; CITY OF JACKSONVILLE, FLORIDA; JESSOP STEEL,
LLC; KINGSPORT POWER COMPANY; KOBE COPPER PRODUCTS, INC.;
KOCH INDUSTRIES, INCORPORATED; KRAFT FOODS GLOBAL,
INCORPORATED; CITY OF LAKELAND, FLORIDA; LOCKWOOD'S ELECTRIC
MOTOR SERVICE; TOWN OF LOUISBURG, NORTH CAROLINA; LWB
REFRACTORIES COMPANY; MARTIN MARIETTA MATERIALS,
INCORPORATED; MIDAMERICAN ENERGY COMPANY; MONONGAHELA POWER
COMPANY; NIAGARA MOHAWK POWER CORPORATION; N.L. INDUSTRIES,
INC.; NORFOLK SOUTHERN RAILWAY COMPANY; NORTH CAROLINA STATE
UNIVERSITY; NORTH GEORGIA ELECTRIC MEMBERSHIP CORPORATION;
HUNTINGTON INGALLS INCORPORATED; NUCOR CORPORATION; O'BERRY
NEURO-MEDICAL CENTER; OCCIDENTAL CHEMICAL CORPORATION;
PACTIV CORPORATION; PALMETTO ELECTRIC COOPERATIVE, INC.; PCS
PHOSPHATE COMPANY, INCORPORATED; PHARMACIA CORPORATION;
POTOMAC ELECTRIC POWER COMPANY; PPG INDUSTRIES,
INCORPORATED; PPL ELECTRIC UTILITIES CORPORATION; ROYAL
STREET JUNK COMPANY, INC.; SANTEE ELECTRIC COOPERATIVE,
INCORPORATED; SARA LEE CORPORATION; SONOCO PRODUCTS COMPANY;
SOUTH CENTRAL POWER COMPANY; SOUTHLAND ELECTRICAL SUPPLY,
INC.; ST. JOSEPH MEDICAL CENTER, INC.; SUMTER ELECTRIC
COOPERATIVE, INCORPORATED, a/k/a SECO Energy; T AND R
ELECTRIC SUPPLY COMPANY, INC.; TENNESSEE ELECTRO MINERALS,
INC.; TENNESSEE VALLEY AUTHORITY; TRAP ROCK, INC.; TREDEGAR
FILM PRODUCTS CORPORATION; TRI-STATE ARMATURE & ELECTRICAL
WORKS, INC.; UNIMIN CORPORATION; UNION CARBIDE CORPORATION;
UNITED STATES AIR FORCE; SALES TRANSACTION DEFENDANTS
LIAISON; JOHNSON/KERNER LIAISON GROUP,
Defendants,
and
BARNES & POWELL ELECTRICAL COMPANY, INC.; TRINITY
INDUSTRIES, INCORPORATED; GEORGIA-PACIFIC, LLC; MELINZ
REBAR, INC.; BABSON COLLEGE; VILLANOVA UNIVERSITY;
BATESVILLE CASKET COMPANY, INCORPORATED; BAY MECHANICAL &
ELECTRICAL CORPORATION; CEMEX CONSTRUCTION MATERIALS FL,
3
LLC; CITY OF WINSTON-SALEM, NORTH CAROLINA; DACCO
INCORPORATED; DAVIS. JERRY INC.; DELAWARE ELECTRIC
COOPERATIVE, INCORPORATED; E. LUKE GREENE COMPANY, INC.;
J.C. BLAIR MEMORIAL HOSPITAL; KERR-MCGEE CORPORATION;
MAGNETIC METALS CORPORATION; MASS. ELECTRIC CONSTRUCTION
CO.; NATIONAL RAILROAD PASSENGER CORPORATION; NOVARTIS
CORPORATION; ROBERT BOSCH LLC; SHO-ME POWER ELECTRIC
COOPERATIVE; SEABROOK ENTERPRISES, INC.; ST. JOHN'S COLLEGE;
TALLAHASSEE MEMORIAL HEALTHCARE, INC.; THE NORTH CAROLINA
GRANITE CORPORATION; THE ROUSE COMPANY, LLC; THOMASVILLE
FURNITURE INDUSTRIES, INCORPORATED; TRULAND CORPORATION; UPS
GROUND FREIGHT, INC.; VILLANOVA UNIVERSITY IN THE STATE OF
PENNSYLVANIA; EMMA L. BIXBY MEDICAL CENTER; GENCORP, INC.;
PARKER-HANNIFIN CORPORATION; RILEY POWER, INC.; THE NATIONAL
LIME AND STONE COMPANY; TIMKEN US LLC; WOODSTREAM
CORPORATION; FABRI-KAL CORPORATION; HENKELS & MCCOY, INC.;
OHIO VALLEY MEDICAL CENTER, INC.; SAINT AUGUSTINE'S COLLEGE;
SOUTHERN ALLOY CORPORATION,
Third Party Defendants.
No. 13-1617
CONSOLIDATION COAL COMPANY,
Plaintiff – Appellant,
and
PCS PHOSPHATE COMPANY, INC.,
Third Party Plaintiff,
v.
GEORGIA POWER COMPANY,
Defendant – Appellee,
and
UNION ELECTRIC COMPANY; AMERICAN ELECTRIC CORPORATION; TOWN
OF BLACKSTONE, VIRGINIA; BONNER ELECTRIC, INC.; CHEVRON
MINING, INC., as successor-in-interest to Pittsburg & Midway
4
Coal Mining Co.; OWEN ELECTRIC STEEL COMPANY OF SOUTH
CAROLINA, and/or SMI OWEN STEEL COMPANY, INC., and/or SMI
STEEL,d/b/a CMC Steel South Carolina and/or Commercial
Metals Company; COHEN AND GREEN SALVAGE COMPANY, INC.;
COOPER INDUSTRIES, INC., as successor-in-interest for Abex
Friction Products Division of Abex, Inc.; COTTER ELECTRIC
COMPANY; CITY OF DOVER, DELAWARE; ENDICOTT CLAY PRODUCTS
COMPANY; HAGERSTOWN LIGHT DEPARTMENT; HUNTSVILLE UTILITIES;
JET ELECTRIC MOTOR CO., INC.; LAFARGE MID-ATLANTIC, LLC
AND/OR LAFARGE MID-ATLANTIC, INC. AS SUCCESSOR-IN-INTEREST
TO OR REDLAND GENSTAR, INC. AND GENSTAR STONE PRODUCTS,
INC.; LEWIS ELECTRIC SUPPLY CO., INC.; CITY OF MASCOUTAH,
ILLINOIS; M-P ELECTRICAL CONTRACTORS, INC.; NEW SOUTHERN OF
ROCKY MOUNT, INC.; NORTH CAROLINA DEPARTMENT OF AGRICULTURE
AND CONSUMER SERVICES; P.C. CAMPANA, INC.; PHOENIX SOLUTIONS
COMPANY, as successor in interest to Plasma Energy Company;
SURRY-YADKIN ELECTRIC MEMBERSHIP CORPORATION; TENNESSEE
ASSOCIATED ELECTRIC, INC. OR TENNESSEE ASSOCIATED ELECTRIC,
a/k/a Tennessee Associated Electric Holdings, Inc.; VENTECH
ENGINEERS, INC., AND/OR VENTECH PROCESS EQUIPMENT, INC.
AND/OR VENTECH EQUIPMENT INC. AND/OR THE VENTECH COMPANIES;
VEOLIA ENVIRONMENTAL SERVICES WASTE-TO-ENERGY, f/k/a
Montenay Power Corporation; W.R. SCHOFIELD CONSTRUCTION CO.,
INC.; KELLY GENERATOR & EQUIPMENT, INC. AND/OR KELLY
ELECTRICAL CONSTRUCTION, INC., f/k/a Kelly & Bishop
Electrical Construction, Inc. and/or John E. Kelly & Sons
Electrical Construction, Inc.; OWEN ELECTRIC STEEL COMPANY
OF SOUTH CAROLINA; 3M COMPANY; ALCAN PRIMARY PRODUCTS
CORPORATION; ALCOA, INCORPORATED; AMERICAN SKIING COMPANY;
APOGEE COAL COMPANY, L.L.C.; APPALACHIAN POWER COMPANY;
ARKEMA, INC.; ATLANTIC CITY ELECTRIC COMPANY; BALTIMORE GAS
AND ELECTRIC COMPANY; BASF CORPORATION; BAYER CROPSCIENCE,
INCORPORATED; BEDFORD RURAL ELECTRIC COOPERATIVE, INC.; BLUE
RIDGE ELECTRIC COOPERATIVE, INC.; BROAD RIVER ELECTRIC
COOPERATIVE, INC.; BRUCE-MERRILEES ELECTRIC COMPANY; BUIST
ELECTRIC, INC.; CAPE HATTERAS ELECTRIC MEMBERSHIP
CORPORATION; CARGILL, INCORPORATED; CARLISLE SYNTEC,
INCORPORATED; DUKE ENERGY PROGRESS, INC.; CARR AND DUFF,
INC.; CATERPILLAR, INCORPORATED; CBS CORPORATION; CENTRAL
REGIONAL HOSPITAL; CHEMICAL PRODUCTS CORPORATION; CHERRY
HOSPITAL; CHRISTUS HEALTH; CLEVELAND ELECTRIC COMPANY;
COGENTRIX ENERGY, LLC; CONOCOPHILLIPS COMPANY; CONSUMERS
ENERGY COMPANY; COOPER TIRE & RUBBER COMPANY; CSX RESIDUAL
COMPANY; DANNY CORPORATION; DEAN'S LIGHT BOX, INC.; DELMARVA
POWER & LIGHT COMPANY; DIXON LUMBER COMPANY, INCORPORATED;
DOMTAR PAPER COMPANY, LLC; DOREY ELECTRIC COMPANY; DUKE
ENERGY CAROLINAS, LLC; DUQUESNE LIGHT COMPANY; EAST KENTUCKY
5
POWER COOPERATIVE, INC.; ELECTRIC CONTROL EQUIPMENT CO.;
ELECTRIC EQUIPMENT CORPORATION OF VIRGINIA; ENVIRONMENTAL
PROTECTION SERVICES, INCORPORATED; ERACHEM COMILOG, INC.;
FLORIDA POWER & LIGHT COMPANY; FOREMOST ELECTRIC &
TRANSMISSION, INC.; FRONTIER COMMUNICATIONS CORPORATION;
FURMAN UNIVERSITY; G&S MOTOR EQUIPMENT COMPANY, INC.;
GENERAL ELECTRIC COMPANY; GENERAL EXTRUSIONS, INC.; GKN
DRIVELINE NORTH AMERICAN, INC.; GLENWOOD RESOLUTION
AUTHORITY, INC.; GREEN CIRCLE GROWERS, INC.; GREENWOOD
MILLS, INCORPORATED; GUERNSEY-MUSKINGUM ELECTRIC
COOPERATIVE, INC.; HAINES AND KIBBLEHOUSE, INC.; HUDSON
LIGHT AND POWER DEPARTMENT; IMERYS CARBONATES, LLC;
INTERNATIONAL POWER MACHINERY COMPANY; INTERNATIONAL PAPER
COMPANY; INTERTAPE POLYMER GROUP, INCORPORATED; KINGSPORT
POWER COMPANY; KOBE COPPER PRODUCTS, INC.; KOCH INDUSTRIES,
INCORPORATED; KRAFT FOODS GLOBAL, INCORPORATED; CITY OF
LAKELAND, FLORIDA; LOCKWOOD'S ELECTRIC MOTOR SERVICE; TOWN
OF LOUISBURG, NORTH CAROLINA; LWB REFRACTORIES COMPANY;
MARTIN MARIETTA MATERIALS, INCORPORATED; MIDAMERICAN ENERGY
COMPANY; MONONGAHELA POWER COMPANY; NIAGARA MOHAWK POWER
CORPORATION, d/b/a National Grid; NL INDUSTRIES, INC.;
NORFOLK SOUTHERN RAILWAY COMPANY; NORTH GEORGIA ELECTRIC
MEMBERSHIP CORPORATION; NUCOR CORPORATION; O'BERRY NEURO-
MEDICAL CENTER; OCCIDENTAL CHEMICAL CORPORATION; PACTIV
CORPORATION; PALMETTO ELECTRIC COOPERATIVE, INC.; PHARMACIA
CORPORATION; POTOMAC ELECTRIC POWER COMPANY; PPL ELECTRIC
UTILITIES CORPORATION; ROYAL STREET JUNK COMPANY, INC.;
SANTEE ELECTRIC COOPERATIVE, INCORPORATED; SARA LEE
CORPORATION, d/b/a Hillshire Farms; SONOCO PRODUCTS COMPANY;
SOUTH CENTRAL POWER COMPANY; SOUTHLAND ELECTRICAL SUPPLY,
INC.; ST. JOSEPH MEDICAL CENTER, INC.; SUMTER ELECTRIC
COOPERATIVE, INCORPORATED, d/b/a SECO Energy; T AND R
ELECTRIC SUPPLY COMPANY, INC.; TENNESSEE ELECTRO-MINERALS,
INC.; TENNESSEE VALLEY AUTHORITY; TRAP ROCK, INC.; TREDEGAR
FILM PRODUCTS CORPORATION; TRI-STATE ARMATURE & ELECTRICAL
WORKS, INC.; UNIMIN CORPORATION; UNION CARBIDE CORPORATION;
UNITED STATES DEFENSE LOGISTICS AGENCY; UNITED STATES
DEPARTMENT OF THE ARMY; UNITED STATES DEPARTMENT OF THE
NAVY; VIRGINIA ELECTRIC & POWER COMPANY; VULCAN CONSTRUCTION
MATERIALS, L. P.; WARREN ELECTRIC COOPERATIVE, INCORPORATED;
WARTBURG COLLEGE; WASHINGTON SUBURBAN SANITARY COMMISSION;
WEYERHAEUSER COMPANY; WEST PENN POWER COMPANY; SALES
TRANSACTION DEFENDANTS LIAISON; VILLANOVA UNIVERSITY IN THE
STATE OF PENNSYLVANIA; HUNTINGTON INGALLS INCORPORATED;
JOHNSON/KERNER LIAISON GROUP; WHEELABRATOR TECHNOLOGIES,
INCORPORATED, CELANESE CORPORATION, THE CENTRAL INTELLIGENCE
AGENCY, GLADIEUX TRADING & MARKETING COMPANY, L.P., HOLLADAY
6
PROPERTY SERVICES MIDWEST, INC., INTEGRATED ELECTRICAL
SERVICES, INC., JESSOP STEEL COMPANY, NORTH CAROLINA STATE
UNIVERSITY IS A CONSTITUENT OF THE UNIVERSITY OF NORTH
CAROLINA, PEACE COLLEGE OF RALEIGH, INC., UNITED STATES
DEPARTMENT OF THE AIR FORCE, UNITED TECHNOLOGIES
CORPORATION, PRATT & WHITNEY DIVISION, UNIVERSITY OF NORTH
CAROLINA AT CHAPEL HILL, A CONSTITUENT INSTITUTION OF THE
UNIVERSITY OF NORTH CAROLINA AND POWER MACHINERY COMPANY,
Defendants,
and
TRINITY INDUSTRIES, INCORPORATED; VILLANOVA UNIVERSITY;
BABSON COLLEGE; BARNES & POWELL ELECTRICAL COMPANY, INC.;
BATESVILLE CASKET COMPANY, INCORPORATED; BAY MECHANICAL &
ELECTRICAL CORPORATION; CEMEX CONSTRUCTION MATERIALS FL,
LLC; CITY OF WINSTON-SALEM, NORTH CAROLINA; DACCO
INCORPORATED; DAVIS. JERRY INC.; DELAWARE ELECTRIC
COOPERATIVE, INCORPORATED; E. LUKE GREENE COMPANY, INC.;
FABRI-KAL CORPORATION; HENKELS & MCCOY, INC.; IES
COMMERCIAL, INC., AND/OR INTEGRATED ELECTRICAL SERVICES,
INC.; J.C. BLAIR MEMORIAL HOSPITAL; KERR-MCGEE CORPORATION;
MAGNETIC METALS CORPORATION; MASS. ELECTRIC CONSTRUCTION
CO.; MELINZ REBAR, INC.; NATIONAL RAILROAD PASSENGER
CORPORATION; NOVARTIS CORPORATION; OHIO VALLEY MEDICAL
CENTER, INC.; ROBERT BOSCH LLC; SHO-ME POWER ELECTRIC
COOPERATIVE; SAINT AUGUSTINE'S COLLEGE; SEABROOK
ENTERPRISES, INC.; SOUTHERN ALLOY CORPORATION; ST. JOHN'S
COLLEGE; TALLAHASSEE MEMORIAL HEALTHCARE, INC.; THE NORTH
CAROLINA GRANITE CORPORATION; THE ROUSE COMPANY, LLC;
THOMASVILLE FURNITURE INDUSTRIES, INCORPORATED; TRULAND
CORPORATION; UPS GROUND FREIGHT, INC.; GENCORP, INC.;
PARKER-HANNIFIN CORPORATION; THE NATIONAL LIME AND STONE
COMPANY; TIMKEN US LLC; WOODSTREAM CORPORATION; EMMA L.
BIXBY MEDICAL CENTER; RILEY POWER, INC.,
Third Party Defendants.
No. 13-1664
PCS PHOSPHATE COMPANY, INC.,
Defendant – Appellant,
7
v.
GEORGIA POWER COMPANY,
Defendant – Appellee,
and
DUKE ENERGY PROGRESS, INC., d/b/a Progress Energy Carolinas,
Incorporated,
Plaintiff,
and
UNION ELECTRIC COMPANY; AMERICAN ELECTRIC CORPORATION; TOWN
OF BLACKSTONE, VIRGINIA; BONNER ELECTRIC, INC.; CHEVRON
MINING, INC., as successor-in-interest to Pittsburg & Midway
Coal Mining Company; COHEN AND GREEN SALVAGE COMPANY, INC.;
OWEN ELECTRIC STEEL COMPANY OF SOUTH CAROLINA and/or SMI-
OWEN STEEL COMPANY, INC. and/or SMI STEEL, d/b/a CMC Steel
South Carolina, an Alabama corporation operating a steel
plant in Cayce, South Carolina and/or Commercial Metals
Company as successors in interest to SMI Steel; COOPER
INDUSTRIES, INC., as successor-in-interest for Abex Friction
Products Division of Abex, Inc.; COTTER ELECTRIC COMPANY;
CITY OF DOVER, DELAWARE; ENDICOTT CLAY PRODUCTS COMPANY;
HAGERSTOWN LIGHT DEPARTMENT; HUNTSVILLE UTILITIES; JET
ELECTRIC MOTOR CO., INC.; KELLY GENERATOR & EQUIPMENT, INC.
AND/OR KELLY ELECTRICAL CONSTRUCTION, INC., f/k/a Kelly &
Bishop Electrical Construction, Inc. and/or John E. Kelly &
Sons Electrical Construction, Inc.; LAFARGE MID-ATLANTIC,
LLC AND/OR LAFARGE MID-ATLANTIC, INC. AS SUCCESSOR-IN-
INTEREST TO OR REDLAND GENSTAR, INC. AND GENSTAR STONE
PRODUCTS, INC.; LEWIS ELECTRIC SUPPLY CO., INC.; CITY OF
MASCOUTAH, ILLINOIS; M-P ELECTRICAL CONTRACTORS, INC.; NEW
SOUTHERN OF ROCKY MOUNT, INC.; NORTH CAROLINA DEPARTMENT OF
AGRICULTURE AND CONSUMER SERVICES; P.C. CAMPANA, INC.;
PHOENIX SOLUTIONS COMPANY, as successor in interest to
Plasma Energy Company; SURRY-YADKIN ELECTRIC MEMBERSHIP
CORPORATION; TENNESSEE ASSOCIATED ELECTRIC, INC. OR
TENNESSEE ASSOCIATED ELECTRIC, a/k/a Tennessee Associated
Electric Holdings, Inc.; VENTECH ENGINEERS, INC., AND/OR
VENTECH PROCESS EQUIPMENT, INC. AND/OR VENTECH EQUIPMENT
INC. AND/OR THE VENTECH COMPANIES; W.R. SCHOFIELD
CONSTRUCTION CO., INC.; OWEN ELECTRIC STEEL COMPANY OF SOUTH
CAROLINA; VEOLIA ENVIRONMENTAL SERVICES WASTE-TO-ENERGY,
8
f/k/a Montenay Power Corporation; INTERNATIONAL POWER
MACHINERY COMPANY; 3M COMPANY; ALCAN PRIMARY PRODUCTS
CORPORATION; ALCOA, INCORPORATED; AMERICAN SKIING COMPANY;
APOGEE COAL COMPANY, LLC; APPALACHIAN POWER COMPANY; ARKEMA,
INC., f/k/a Pennwalt Corporation; ATLANTIC CITY ELECTRIC
COMPANY; BALTIMORE GAS AND ELECTRIC COMPANY; BASF
CORPORATION; BASSETT FURNITURE INDUSTRIES, INCORPORATED;
BAYER CROPSCIENCE, INCORPORATED; BEDFORD RURAL ELECTRIC
COOPERATIVE, INC.; BLUE RIDGE ELECTRIC COOPERATIVE, INC.;
BROAD RIVER ELECTRIC COOPERATIVE, INC.; BRUCE-MERRILEES
ELECTRIC COMPANY; BUIST ELECTRIC, INC.; CAPE HATTERAS
ELECTRIC MEMBERSHIP CORPORATION; CARGILL, INCORPORATED;
CARLISLE SYNTEC, INCORPORATED; CARR AND DUFF, INC.;
CATERPILLAR, INCORPORATED; CBS CORPORATION; UNITED STATES
CENTRAL INTELLIGENCE AGENCY; UNITED STATES DEFENSE LOGISTICS
AGENCY; UNITED STATES DEPARTMENT OF THE ARMY; UNITED STATES
DEPARTMENT OF THE NAVY; UNITED TECHNOLOGIES CORPORATION;
UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL; VIRGINIA
ELECTRIC AND POWER COMPANY (VEPCO); VULCAN CONSTRUCTION
MATERIALS, LIMITED PARTNERSHIP; WARREN ELECTRIC COOPERATIVE,
INCORPORATED; WARTBURG COLLEGE; WASHINGTON SUBURBAN SANITARY
COMMISSION; WEST PENN POWER COMPANY; WEYERHAEUSER COMPANY;
CENTRAL REGIONAL HOSPITAL; CHEMICAL PRODUCTS CORPORATION;
CHERRY HOSPITAL; CHRISTUS HEALTH; CLEVELAND ELECTRIC
COMPANY; COGENTRIX ENERGY, LLC; CONOCOPHILLIPS COMPANY;
CONSOLIDATION COAL COMPANY; CONSUMERS ENERGY COMPANY; COOPER
TIRE & RUBBER COMPANY; CSX RESIDUAL COMPANY; DANNY
CORPORATION; DEAN'S LIGHT BOX, INC.; DELMARVA POWER & LIGHT
COMPANY; DIXON LUMBER COMPANY, INCORPORATED; DOMTAR PAPER
COMPANY, LLC; DOREY ELECTRIC COMPANY; DUKE ENERGY CAROLINAS,
LLC; DUQUESNE LIGHT COMPANY; EAST KENTUCKY POWER
COOPERATIVE, INC.; ELECTRIC CONTROL EQUIPMENT CO.; ELECTRIC
EQUIPMENT CORPORATION OF VIRGINIA; ENVIRONMENTAL PROTECTION
SERVICES, INCORPORATED; ERACHEM COMILOG, INC.; FLORIDA POWER
& LIGHT COMPANY; FOREMOST ELECTRIC & TRANSMISSION, INC.;
FRONTIER COMMUNICATIONS CORPORATION; FURMAN UNIVERSITY; G&S
MOTOR EQUIPMENT COMPANY, INC.; GENERAL ELECTRIC COMPANY;
GENERAL EXTRUSIONS, INC.; GKN DRIVELINE NORTH AMERICAN,
INC.; GLADIEUX TRADING & MARKETING CO., LP, AND/OR LIMITED
CORPORATION; GLENWOOD RESOLUTION AUTHORITY, INC.; GREEN
CIRCLE GROWERS, INC.; GREENWOOD MILLS, INCORPORATED;
GUERNSEY-MUSKINGUM ELECTRIC COOPERATIVE INC.; HAINES AND
KIBBLEHOUSE, INC.; THE HOLLADAY CORPORATION, a/k/a Holladay
Property Services Midwest, Inc.; HUDSON LIGHT AND POWER
DEPARTMENT; IES COMMERCIAL, INC., AND/OR INTEGRATED
ELECTRICAL SERVICES, INC.; IMERYS CARBONATES, LLC;
INTERNATIONAL PAPER COMPANY; INTERTAPE POLYMER GROUP,
9
INCORPORATED; CITY OF JACKSONVILLE, FLORIDA; JESSOP STEEL,
LLC; KINGSPORT POWER COMPANY; KOBE COPPER PRODUCTS, INC.;
KOCH INDUSTRIES, INCORPORATED; KRAFT FOODS GLOBAL,
INCORPORATED; CITY OF LAKELAND, FLORIDA; LOCKWOOD'S ELECTRIC
MOTOR SERVICE; TOWN OF LOUISBURG, NORTH CAROLINA; LWB
REFRACTORIES COMPANY; MARTIN MARIETTA MATERIALS,
INCORPORATED; MIDAMERICAN ENERGY COMPANY; MONONGAHELA POWER
COMPANY; NIAGARA MOHAWK POWER CORPORATION; N.L. INDUSTRIES,
INC.; NORFOLK SOUTHERN RAILWAY COMPANY; NORTH CAROLINA STATE
UNIVERSITY; NORTH GEORGIA ELECTRIC MEMBERSHIP CORPORATION;
HUNTINGTON INGALLS INCORPORATED; NUCOR CORPORATION; O'BERRY
NEURO-MEDICAL CENTER; OCCIDENTAL CHEMICAL CORPORATION;
PACTIV CORPORATION; PALMETTO ELECTRIC COOPERATIVE, INC.;
PHARMACIA CORPORATION; POTOMAC ELECTRIC POWER COMPANY; PPG
INDUSTRIES, INCORPORATED; PPL ELECTRIC UTILITIES
CORPORATION; ROYAL STREET JUNK COMPANY, INC.; SANTEE
ELECTRIC COOPERATIVE, INCORPORATED; SARA LEE CORPORATION;
SONOCO PRODUCTS COMPANY; SOUTH CENTRAL POWER COMPANY;
SOUTHLAND ELECTRICAL SUPPLY, INC.; ST. JOSEPH MEDICAL
CENTER, INC.; SUMTER ELECTRIC COOPERATIVE, INCORPORATED,
a/k/a SECO Energy; T AND R ELECTRIC SUPPLY COMPANY, INC.;
TENNESSEE ELECTRO MINERALS, INC.; TENNESSEE VALLEY
AUTHORITY; TRAP ROCK, INC.; TREDEGAR FILM PRODUCTS
CORPORATION; TRI-STATE ARMATURE & ELECTRICAL WORKS, INC.;
UNIMIN CORPORATION; UNION CARBIDE CORPORATION; UNITED STATES
AIR FORCE; SALES TRANSACTION DEFENDANTS LIAISON;
JOHNSON/KERNER LIAISON GROUP,
Defendants,
and
BARNES & POWELL ELECTRICAL COMPANY, INC.; TRINITY
INDUSTRIES, INCORPORATED; GEORGIA-PACIFIC, LLC; MELINZ
REBAR, INC.; BABSON COLLEGE; VILLANOVA UNIVERSITY;
BATESVILLE CASKET COMPANY, INCORPORATED; BAY MECHANICAL &
ELECTRICAL CORPORATION; CEMEX CONSTRUCTION MATERIALS FL,
LLC; CITY OF WINSTON-SALEM, NORTH CAROLINA; DACCO
INCORPORATED; DAVIS. JERRY INC.; DELAWARE ELECTRIC
COOPERATIVE, INCORPORATED; E. LUKE GREENE COMPANY, INC.;
FABRI-KAL CORPORATION; HENKELS & MCCOY, INC.; J.C. BLAIR
MEMORIAL HOSPITAL; KERR-MCGEE CORPORATION; MAGNETIC METALS
CORPORATION; MASS. ELECTRIC CONSTRUCTION CO.; NATIONAL
RAILROAD PASSENGER CORPORATION; NOVARTIS CORPORATION; OHIO
VALLEY MEDICAL CENTER, INC.; ROBERT BOSCH LLC; SHO-ME POWER
ELECTRIC COOPERATIVE; SAINT AUGUSTINE'S COLLEGE; SEABROOK
ENTERPRISES, INC.; SOUTHERN ALLOY CORPORATION; ST. JOHN'S
10
COLLEGE; TALLAHASSEE MEMORIAL HEALTHCARE, INC.; THE NORTH
CAROLINA GRANITE CORPORATION; THE ROUSE COMPANY, LLC;
THOMASVILLE FURNITURE INDUSTRIES, INCORPORATED; TRULAND
CORPORATION; UPS GROUND FREIGHT, INC.; VILLANOVA UNIVERSITY
IN THE STATE OF PENNSYLVANIA; EMMA L. BIXBY MEDICAL CENTER;
GENCORP, INC.; PARKER-HANNIFIN CORPORATION; RILEY POWER,
INC.; THE NATIONAL LIME AND STONE COMPANY; TIMKEN US LLC;
WOODSTREAM CORPORATION,
Third Party Defendants.
No. 13-1666
CONSOLIDATION COAL COMPANY,
Plaintiff,
and
PCS PHOSPHATE COMPANY, INC.,
Defendant – Appellant,
v.
GEORGIA POWER COMPANY,
Defendant – Appellee,
and
UNION ELECTRIC COMPANY; AMERICAN ELECTRIC CORPORATION; TOWN
OF BLACKSTONE, VIRGINIA; BONNER ELECTRIC, INC.; CHEVRON
MINING, INC., as successor-in-interest to Pittsburg & Midway
Coal Mining Co.; OWEN ELECTRIC STEEL COMPANY OF SOUTH
CAROLINA and/or SMI OWEN STEEL COMPANY, INC., and/or SMI
STEEL, d/b/a CMC Steel South Carolina and/or Commercial
Metals Company; COHEN AND GREEN SALVAGE COMPANY, INC.;
COOPER INDUSTRIES, INC., as successor-in-interest for Abex
Friction Products Division of Abex, Inc.; COTTER ELECTRIC
COMPANY; CITY OF DOVER, DELAWARE; ENDICOTT CLAY PRODUCTS
COMPANY; HAGERSTOWN LIGHT DEPARTMENT; HUNTSVILLE UTILITIES;
JET ELECTRIC MOTOR CO., INC.; LAFARGE MID-ATLANTIC, LLC
AND/OR LAFARGE MID-ATLANTIC, INC. AS SUCCESSOR-IN-INTEREST
11
TO OR REDLAND GENSTAR, INC. AND GENSTAR STONE PRODUCTS,
INC.; LEWIS ELECTRIC SUPPLY CO., INC.; CITY OF MASCOUTAH,
ILLINOIS; M-P ELECTRICAL CONTRACTORS, INC.; NEW SOUTHERN OF
ROCKY MOUNT, INC.; NORTH CAROLINA DEPARTMENT OF AGRICULTURE
AND CONSUMER SERVICES; P.C. CAMPANA, INC.; PHOENIX SOLUTIONS
COMPANY, as successor in interest to Plasma Energy Company;
SURRY YADKIN ELECTRIC MEMBERSHIP CORPORATION; TENNESSEE
ASSOCIATED ELECTRIC, INC. OR TENNESSEE ASSOCIATED ELECTRIC,
a/k/a Tennessee Associated Electric Holdings, Inc.; VENTECH
ENGINEERS, INC., AND/OR VENTECH PROCESS EQUIPMENT, INC.
AND/OR VENTECH EQUIPMENT INC. AND/OR THE VENTECH COMPANIES;
VEOLIA ENVIRONMENTAL SERVICES WASTE-TO-ENERGY, f/k/a
Montenay Power Corporation; W.R. SCHOFIELD CONSTRUCTION CO.,
INC.; KELLY GENERATOR & EQUIPMENT, INC. AND/OR KELLY
ELECTRICAL CONSTRUCTION, INC., f/k/a Kelly & Bishop
Electrical Construction, Inc. and/or John E. Kelly & Sons
Electrical Construction, Inc.; OWEN ELECTRIC STEEL COMPANY
OF SOUTH CAROLINA; 3M COMPANY; ALCAN PRIMARY PRODUCTS
CORPORATION; ALCOA, INCORPORATED; AMERICAN SKIING COMPANY;
APOGEE COAL COMPANY, L.L.C.; APPALACHIAN POWER COMPANY;
ARKEMA, INC.; ATLANTIC CITY ELECTRIC COMPANY; BALTIMORE GAS
AND ELECTRIC COMPANY; BASF CORPORATION; BAYER CROPSCIENCE,
INCORPORATED; BEDFORD RURAL ELECTRIC COOPERATIVE, INC.; BLUE
RIDGE ELECTRIC COOPERATIVE, INC.; BROAD RIVER ELECTRIC
COOPERATIVE, INC.; BRUCE-MERRILEES ELECTRIC COMPANY; BUIST
ELECTRIC, INC.; CAPE HATTERAS ELECTRIC MEMBERSHIP
CORPORATION; CARGILL, INCORPORATED; CARLISLE SYNTEC,
INCORPORATED; DUKE ENERGY PROGRESS, INC.; CARR AND DUFF,
INC.; CATERPILLAR, INCORPORATED; CBS CORPORATION; CENTRAL
REGIONAL HOSPITAL; CHEMICAL PRODUCTS CORPORATION; CHERRY
HOSPITAL; CHRISTUS HEALTH; CLEVELAND ELECTRIC COMPANY;
COGENTRIX ENERGY, LLC; CONOCOPHILLIPS, COMPANY ; CONSUMERS
ENERGY COMPANY; COOPER TIRE & RUBBER COMPANY; CSX RESIDUAL
COMPANY; DANNY CORPORATION; DEAN'S LIGHT BOX, INC.; DELMARVA
POWER & LIGHT COMPANY; DIXON LUMBER COMPANY, INCORPORATED;
DOMTAR PAPER COMPANY, LLC; DOREY ELECTRIC COMPANY; DUKE
ENERGY CAROLINAS, LLC; DUQUESNE LIGHT COMPANY; EAST KENTUCKY
POWER COOPERATIVE, INC.; ELECTRIC CONTROL EQUIPMENT CO.;
ELECTRIC EQUIPMENT CORPORATION OF VIRGINIA; ENVIRONMENTAL
PROTECTION SERVICES, INCORPORATED; ERACHEM COMILOG, INC.;
FLORIDA POWER & LIGHT COMPANY; FOREMOST ELECTRIC &
TRANSMISSION, INC.; FRONTIER COMMUNICATIONS CORPORATION;
FURMAN UNIVERSITY; G&S MOTOR EQUIPMENT COMPANY, INC.;
GENERAL ELECTRIC COMPANY; GENERAL EXTRUSIONS, INC.; GKN
DRIVELINE NORTH AMERICAN, INC.; GLENWOOD RESOLUTION
AUTHORITY, INC.; GREEN CIRCLE GROWERS, INC.; GREENWOOD
MILLS, INCORPORATED; GUERNSEY-MUSKINGUM ELECTRIC
12
COOPERATIVE, INC.; HAINES AND KIBBLEHOUSE, INC.; HUDSON
LIGHT AND POWER DEPARTMENT; IMERYS CARBONATES, LLC;
INTERNATIONAL POWER MACHINERY COMPANY; INTERNATIONAL PAPER
COMPANY; INTERTAPE POLYMER GROUP, INCORPORATED; KINGSPORT
POWER COMPANY; KOBE COPPER PRODUCTS, INC.; KOCH INDUSTRIES,
INCORPORATED; KRAFT FOODS GLOBAL, INCORPORATED; CITY OF
LAKELAND, FLORIDA; LOCKWOOD'S ELECTRIC MOTOR SERVICE; TOWN
OF LOUISBURG, NORTH CAROLINA; LWB REFRACTORIES COMPANY;
MARTIN MARIETTA MATERIALS, INCORPORATED; MIDAMERICAN ENERGY
COMPANY; MONONGAHELA POWER COMPANY; NIAGARA MOHAWK POWER
CORPORATION, d/b/a National Grid; N.L. INDUSTRIES, INC.;
NORFOLK SOUTHERN RAILWAY COMPANY; NORTH GEORGIA ELECTRIC
MEMBERSHIP CORPORATION; NUCOR CORPORATION; O'BERRY NEURO-
MEDICAL CENTER; OCCIDENTAL CHEMICAL CORPORATION; PACTIV
CORPORATION; PALMETTO ELECTRIC COOPERATIVE, INC.; PHARMACIA
CORPORATION; POTOMAC ELECTRIC POWER COMPANY; PPL ELECTRIC
UTILITIES CORPORATION; ROYAL STREET JUNK COMPANY, INC.;
SANTEE ELECTRIC COOPERATIVE, INCORPORATED; SARA LEE
CORPORATION, d/b/a Hillshire Farms; SONOCO PRODUCTS COMPANY;
SOUTH CENTRAL POWER COMPANY; SOUTHLAND ELECTRICAL SUPPLY,
INC.; ST. JOSEPH MEDICAL CENTER, INC.; SUMTER ELECTRIC
COOPERATIVE, INCORPORATED, d/b/a SECO Energy; T AND R
ELECTRIC SUPPLY COMPANY, INC.; TENNESSEE ELECTRO-MINERALS,
INC.; TENNESSEE VALLEY AUTHORITY; TRAP ROCK, INC.; TREDEGAR
FILM PRODUCTS CORPORATION; TRI-STATE ARMATURE & ELECTRICAL
WORKS, INC.; UNIMIN CORPORATION; UNION CARBIDE CORPORATION;
UNITED STATES DEFENSE LOGISTICS AGENCY; UNITED STATES
DEPARTMENT OF THE ARMY; UNITED STATES DEPARTMENT OF THE
NAVY; VIRGINIA ELECTRIC & POWER COMPANY (VEPCO); VULCAN
CONSTRUCTION MATERIALS, L.P. ; WARREN ELECTRIC COOPERATIVE,
INCORPORATED; WARTBURG COLLEGE; WASHINGTON SUBURBAN SANITARY
COMMISSION; WEYERHAEUSER COMPANY; WEST PENN POWER COMPANY;
SALES TRANSACTION DEFENDANTS LIAISON; VILLANOVA UNIVERSITY
IN THE STATE OF PENNSYLVANIA; HUNTINGTON INGALLS
INCORPORATED; JOHNSON/KERNER LIAISON GROUP; WHEELABRATOR
TECHNOLOGIES, INCORPORATED; CELANESE CORPORATION; THE
CENTRAL INTELLIGENCE AGENCY; GLADIEUX TRADING & MARKETING
COMPANY, L.P.; HOLLADAY PROPERTY SERVICES MIDWEST, INC.;
INTEGRATED ELECTRICAL SERVICES, INCORPORATED; JESSOP STEEL
COMPANY, now known as Jessop Steel, LLC; NORTH CAROLINA
STATE UNIVERSITY IS A CONSTITUENT OF THE UNIVERSITY OF NORTH
CAROLINA; PEACE COLLEGE OF RALEIGH, INC.; UNITED STATES
DEPARTMENT OF THE AIR FORCE; UNITED TECHNOLOGIES
CORPORATION, PRATT & WHITNEY DIVISION; UNIVERSITY OF NORTH
13
CAROLINA AT CHAPEL HILL, A CONSTITUENT INSTITUTION OF THE
UNIVERSITY OF NORTH CAROLINA; POWER MACHINERY COMPANY,
Defendants,
and
TRINITY INDUSTRIES, INCORPORATED; VILLANOVA UNIVERSITY;
BABSON COLLEGE; BARNES & POWELL ELECTRICAL COMPANY, INC.;
BATESVILLE CASKET COMPANY, INCORPORATED; BAY MECHANICAL &
ELECTRICAL CORPORATION; CEMEX CONSTRUCTION MATERIALS FL,
LLC; CITY OF WINSTON-SALEM, NORTH CAROLINA; DACCO
INCORPORATED; DAVIS. JERRY INC.; DELAWARE ELECTRIC
COOPERATIVE, INCORPORATED; E. LUKE GREENE COMPANY, INC.;
FABRI-KAL CORPORATION; HENKELS & MCCOY, INC.; IES
COMMERCIAL, INC., AND/OR INTEGRATED ELECTRICAL SERVICES,
INC.; J.C. BLAIR MEMORIAL HOSPITAL; KERR-MCGEE CORPORATION;
MAGNETIC METALS CORPORATION; MASS. ELECTRIC CONSTRUCTION
CO.; MELINZ REBAR, INC.; NATIONAL RAILROAD PASSENGER
CORPORATION; NOVARTIS CORPORATION; OHIO VALLEY MEDICAL
CENTER, INC.; ROBERT BOSCH LLC; SHO-ME POWER ELECTRIC
COOPERATIVE; SAINT AUGUSTINE'S COLLEGE; SEABROOK
ENTERPRISES, INC.; SOUTHERN ALLOY CORPORATION; ST. JOHN'S
COLLEGE; TALLAHASSEE MEMORIAL HEALTHCARE, INC.; THE NORTH
CAROLINA GRANITE CORPORATION; THE ROUSE COMPANY, LLC;
THOMASVILLE FURNITURE INDUSTRIES, INCORPORATED; TRULAND
CORPORATION; UPS GROUND FREIGHT, INC.; GENCORP, INC.;
PARKER-HANNIFIN CORPORATION; THE NATIONAL LIME AND STONE
COMPANY; TIMKEN US LLC; WOODSTREAM CORPORATION; EMMA L.
BIXBY MEDICAL CENTER; RILEY POWER, INC.,
Third Party Defendants.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:08-cv-00460-FL; 5:08-cv-00463-FL)
Argued: October 30, 2014 Decided: March 20, 2015
Before SHEDD, AGEE, and WYNN, Circuit Judges.
14
Affirmed by published opinion. Judge Agee wrote the majority
opinion, in which Judge Shedd joined. Judge Wynn wrote a
dissenting opinion.
ARGUED: Daniel M. Darragh, COHEN & GRIGSBY, P.C., Pittsburgh,
Pennsylvania; Michael Howard Ginsberg, JONES DAY, Pittsburgh,
Pennsylvania, for Appellants. Daniel S. Reinhardt, TROUTMAN
SANDERS LLP, Atlanta, Georgia, for Appellee. ON BRIEF: Julie W.
Vanneman, COHEN & GRIGSBY, P.C., Pittsburgh, Pennsylvania, for
Appellant Consolidation Coal Company. Brian J. Murray, Chicago,
Illinois, Mary Beth Deemer, JONES DAY, Pittsburgh, Pennsylvania,
for Appellant PCS Phosphate Company, Incorporated. Hollister A.
Hill, Jaime L. Theriot, Atlanta, Georgia, Whitney S. Waldenberg,
TROUTMAN SANDERS LLP, Raleigh, North Carolina, for Appellee.
15
AGEE, Circuit Judge:
In the early 1980s, Georgia Power, a utility company that
supplies power to most of Georgia, sold many of its used
electrical transformers at auction to Ward Transformer Company
(“Ward”). These electrical transformers contained insulating
oil, and some of that oil contained polychlorinated biphenyls
(“PCBs”), toxic compounds that have been banned since 1979.
Ward repaired and rebuilt used transformers, including those it
purchased from Georgia Power, for resale to meet third-party
customers’ specifications. In the process, Ward’s Raleigh,
North Carolina, facility (the “Ward Site”) became contaminated
with PCBs.
In the mid-2000s, the EPA added the Ward Site to its
National Priorities List and initiated a costly removal action.
Consolidated Coal Company (“Consol”) and PCS Phosphate Company,
Inc. (“PCS”) have borne much of that removal cost. They filed a
complaint under the Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA”) against Georgia
Power, contending that, as supplier of some of the transformers
to Ward, it should be liable for a contribution to those costs.
The district court granted summary judgment in favor of Georgia
Power. For the reasons discussed below, we affirm the judgment
of the district court.
16
I. Background
A. CERCLA
In 1980, Congress enacted CERCLA in response to the
environmental and health risks posed by industrial pollution.
Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 559,
602 (2009). “The Act was designed to promote the ‘timely
cleanup of hazardous waste sites’ and to ensure that the costs
of such cleanup efforts were borne by those responsible for the
contamination.” Id. (quoting Consol. Edison Co. of N.Y. v. UGI
Util., Inc., 423 F.3d 90, 94 (2d Cir. 2005)).
CERCLA imposes liability upon four broad categories of
“potentially responsible parties” (“PRPs”). Id. at 605, 608.
Briefly stated, these categories are (1) owners and operators of
a vessel or facility, (2) any person who owned or operated a
facility at the time a hazardous substance is disposed, (3)
those persons who arrange for disposal or treatment of hazardous
substances, and (4) those who accept hazardous substances for
transport to disposal or treatment facilities. 42 U.S.C.
§ 9607(a). The case before us involves the third liability
category, often termed the arranger provision, which imposes
liability on
any person who by contract, agreement, or otherwise
arranged for disposal or treatment . . . of hazardous
substances owned or possessed by such person, by any
other party or entity, at any facility or incineration
17
vessel owned or operated by another party or entity
and containing such hazardous substances.
Id. § 9607(a)(3) (emphasis added). If PRP status is
established, a party faces liability under CERCLA for “all costs
of removal or remedial action incurred by the United States
Government or a State” as well as “any other necessary costs of
response incurred by any other person consistent with the
national contingency plan.” Id. § 9607(a)(4). CERCLA permits a
PRP to “seek contribution from any other person who is liable or
potentially liable under section 9607(a).” Id. § 9613(f)(1). 1
B. The Ward Site
Ward operated a business in which it purchased used,
obsolete, or damaged electrical transformers and reconditioned
or repaired them for resale. These types of transformers “step
down” the voltage of electricity as it moves from power plants
to end users. The particular type of electrical transformer at
issue here typically contains an enclosed, vacuum-sealed
external tank, an internal iron core, and coils consisting of
copper or aluminum windings wrapped in cellulose insulation that
tightly surround the core. These internal parts must be
1
Though PCBs have been banned since 1979, the EPA continues
to employ CERCLA in an effort to clean PCB-contaminated sites.
See, e.g., NCR Corp. v. George A. Whiting Paper Co., 768 F.3d
682, 688-89 (7th Cir. 2014); Fla. Power & Light Co. v. Allis
Chalmers Corp., 893 F.2d 1313, 1315 (11th Cir. 1990).
18
immersed in oil to work properly, and often the insulating oil
contained PCBs.
Ward left some of the transformers it purchased on an
outside lot. When Ward received an order, it would then select
a transformer from the lot and recondition or rebuild it to the
customer’s specifications. This process ranged from cleaning,
testing and painting a transformer, to rebuilding it entirely by
draining any remaining oil and removing the inner components by
crane to perform work on the core and coils.
Given the sometimes significant work Ward performed on
transformers, some oil spills occurred at the Ward Site. 2
Because of PCB contamination, the EPA added the Ward Site to its
National Priorities List. In 2004 the EPA formally initiated a
time-critical removal action, during which workers have removed
over 400,000 tons of contaminated soil.
2
Georgia Power disputes that contamination occurred after
1979, during the years at issue here. Ward witnesses testified
that they believed contamination occurred before the early 1980s
because, in approximately 1978, Ward implemented strict policies
and procedures regarding handling of transformers and
transformer oil. The district court, however, made no factual
finding on this issue. Taking the evidence in the light most
favorable to Consol and PCS, we assume that some contamination
continued at the Ward Site through the period at issue in this
case.
19
C. The Georgia Power Transformers
When Georgia Power ceased using transformers, it sent them
to its own repair facility. There, Georgia Power inspected each
used transformer and designated it either for repair and reuse
within the company or for disposal in a commercially reasonable
manner. A 1974 Georgia Power bulletin provided procedures “for
disposing of surplus, obsolete or damaged distribution line
transformers.” (J.A. 1329.) The bulletin refers to the
disposition of retired transformers as “scrapping,” but
clarifies that scrapped transformers are “actually sold.” (Id.
at 1331 (providing instructions for “[w]hen transformers are
scrapped, (actually sold)”).) The “Scrapping Procedure”
instructs Georgia Power employees to “conclude the disposal of
the transformers to the best advantage of the company.” (Id.)
Because PCBs are regulated by the Toxic Substances Control
Act of 1976 (“TSCA”), Georgia Power had to adjust procedures
after the passage of that Act. Georgia Power began testing
surplus transformers for PCB concentration, with the resulting
concentration dictating what course Georgia Power pursued with
regard to a transformer. The TSCA prohibited Georgia Power from
selling transformers with PCB concentrations at 50 parts per
million (“ppm”) or more for continued use or rebuilding.
Georgia Power therefore sent those transformers to TSCA-licensed
20
smelters. Transformers with less than 50 ppm were either
repaired for reuse by the company or sold at auction.
Georgia Power transferred the transformers designated for
sale to its Salvage Department, also known as the Investment
Recovery department. Before sale, Georgia Power usually removed
the free-flowing oil from the transformers through a double-
pumping procedure. This process removed all oil from the
transformers except a thin sheen coating the inside of the
transformers and the cores and coils. 3
Moisture from the atmosphere can cause damage to the
internal components of an exposed transformer lacking oil.
“[M]oisture [to a transformer] is basically like cancer to a
person.” (Id. at 2211.) Georgia Power, nonetheless, sometimes
kept surplus drained transformers uncapped and exposed to
moisture prior to sale.
Georgia Power sold used transformers in lots to the highest
bidder at auction. Buyers placed bids on a per kilovolt-ampere
basis (“KVA,” a measure of transformer capacity) for the entire
lot. The winning bidder could inspect the transformers and
reject any lots or, in some cases, individual units that it did
3
The removed PCB-contaminated oil was disposed of by third-
party contractors, sold to TSCA-authorized boiler facilities, or
burned in Georgia Power’s TSCA-authorized generating plant. Oil
with less than 10 ppm was reclaimed for reuse, and oil with 10
to 49 ppm was sold as a secondary fuel. There is no issue as to
the disposition of this removed oil.
21
not wish to purchase. Georgia Power guaranteed title to the
transformers to the buyer, but made no other warranties.
From September 1983 to October 1984, Ward successfully bid
upon and purchased 101 Georgia Power transformers at four
separate auctions. Ward bid on other lots of transformers that
it did not win and on one occasion opted to take possession of
only 11 transformers despite winning a lot that contained 18.
Of the transformers that Ward purchased, Georgia Power
designated approximately 20 as “scrap,” indicating that they
needed repair. Ward records identify the same transformers and
at least 20 others as “FAULTY,” which indicated an electrical
defect due to a short, bad wiring, or some other problem. (Id.
at 2215, 2219, 2222-23.) 4 Georgia Power drained the majority of
the transformers prior to transfer, but it left the oil in 14 of
the 101 transformers. These undrained units all had PCB
concentrations between 0 and 50 ppm, except one that had a
concentration of 488 ppm. Ward’s records indicate that one of
the drained transformers still had “about 5 gals” of 17.4 ppm
PCB oil in it four years after arriving at Ward. (Id. at 2225.)
Ward replaced the five gallons with new oil.
4
A portion of Consol’s and PCS’ evidence stems from an
affidavit that Georgia Power moved to strike. The district
court assumed admissibility and denied the motion to strike as
moot after granting summary judgment. (Id. at 3405.) For our
analysis, we likewise assume that the evidence was admissible.
22
For the 101 transformers it purchased, Ward paid from $0.77
to $3.21 per KVA for 43 units. For another 31 units, the lot
prices ranged from $1.11 to $1.18 per KVA. And for the final 27
transformers, Ward paid from $1.74 to $2.16 per KVA. Because
transformers typically contain thousands of pounds of metals,
even broken transformers remained valuable. 5
Ward sold all 101 transformers it purchased from Georgia
Power to third parties as working transformers. It “rebuilt” 80
of the transformers prior to sale. “[I]n most cases,” this
involved “untank[ing] the transformer and do[ing] some work to
the coils, whether [it was] reconnecting or rewinding part of
it.” (Id. 1046; 3267-68.) None of the Georgia Power
transformers was sold for scrap.
D. Savannah Electric Transformers
In 1980, Savannah Electric and Power Company (“Savannah
Electric”) sold 20 transformers at auction to Electric Equipment
5
The record provides sparse evidence from which to give any
context to these per-KVA values. Richard Westover, who
defendants below disclosed as an expert in used electrical
equipment, testified that a sale at $3.00 per KVA would tend to
indicate that the transformers were functional, whereas a sale
around $1.00 per KVA suggests that the parties “obviously knew
that these were non-working transformers.” (Id. at 1280-81.)
The Plaintiffs’ Joint Statement of Material Facts, filed below,
claims that the $1.00 per KVA price for a broken transformer is
“to account for the value of the raw materials inside.” (Id. at
2229.) However, it is unclear from the record to what extent,
if any, the raw materials or any other factor might contribute
to that value.
23
Company of New York (“EECNY”). EECNY then shipped these units
to Ward for storage until it or Ward could find a third-party
buyer. In 2006, Savannah Electric merged with Georgia Power
with Georgia Power as the surviving entity.
When it sold the transformers to EENCY, Savannah Electric
was updating its inventory of transformers by selling and
replacing those that contained PCBs. To accomplish that goal it
sold transformers that “were in good shape” that it “just had no
use for.” (Id. at 2231.)
The 20 transformers that Savannah Electric sold to EECNY
thus were in “perfectly good working order.” (Id. at 2233.)
These transformers “had been in service and were simply de-
energized and sold with no record of any problems or defects.”
(Id.) All the units sold contained oil, with some level of PCB
concentration. Ward performed work on some of the units to
alter obsolete voltage configurations to meet the demands of
certain prospective purchasers. Ward sold three units as
“COMPLETELY REBUILT” with changed voltages, having opened the
transformers to rewind the coils. (Id. at 2234-35, 2456.) Ward
labeled three other transformers as “REBUILT AND GUARANTEED,”
after baking out their coils and doing other work. (Id. at
2235-36, 2438.) However, all 20 transformers were functioning
units that could have been used without alteration by a third-
party purchaser with a matching KVA need.
24
Ward sold each of the 20 Savannah Electric transformers as
well as the 101 Georgia Power transformers. The available
records show that Ward sold the transformers for more than it
had paid and expended varying degrees of resources on those
transformers before sale.
E. Relevant Proceedings Below
In 2005, Duke Energy Progress, Inc. (“Progress,” f/k/a
Carolina Power & Light Company) and Consol entered into an
administrative settlement with the EPA, in which they agreed to
perform removal actions at the Ward Site and to reimburse the
EPA for removal costs. PCS later entered a trust agreement with
Progress and Consol and contributed toward the costs of the Ward
cleanup. Consol and PCS have each paid more than $17 million in
cleanup costs related to the Ward Site.
In 2008 and 2009, Consol and Progress filed complaints in
the U.S. District Court for the Eastern District of North
Carolina against Georgia Power, PCS, and a number of other
defendants seeking contribution for response costs under CERCLA.
See 42 U.S.C. § 9613(f). The district court consolidated the
suits into two cases, one with Consol as plaintiff and one with
Progress as plaintiff. PCS counterclaimed against Consol and
Progress, and it cross-claimed for CERCLA contribution against
the other defendants, including Georgia Power. Consol,
25
Progress, and PCS alleged that Georgia Power “arranged for
disposal . . . of” PCBs through its sales of used transformers
to Ward and was liable for the Savannah Electric transformers as
the successor in interest to that entity. Id. § 9607(a)(3).
The parties proceeded via a test case method, in which one
defendant who had sold transformers to Ward and one defendant
who had transformers repaired by Ward volunteered to litigate
their respective liability, with discovery stayed for all other
parties. The district court bifurcated the proceedings into two
phases: the first to determine liability under CERCLA and, if
necessary, the second to allocate damages. Georgia Power
volunteered to be the test case for a selling defendant.
After discovery, Georgia Power moved for summary judgment.
The district court granted the motion, finding that Georgia
Power had “show[n] it did not have the necessary intent to
create arranger liability under CERCLA.” Carolina Power & Light
Co. v. Alcan Aluminum Corp. (CP&L), 921 F. Supp. 2d 488, 499
(E.D.N.C. 2013). The court emphasized that the used
transformers were useful, valuable products from which Ward was
able to “mak[e] thousands of dollars more than what [it] paid
Georgia Power.” Id. at 488. At Consol’s and PCS’ request, the
court entered final judgment on the claims against Georgia
Power.
26
Consol and PCS timely appealed, and we consolidated the
appeals into the present case. We have jurisdiction over this
appeal pursuant to 28 U.S.C. § 1291.
II. Discussion
Consol and PCS argue that the district court improperly
focused on the overall value of the used transformers and Ward’s
ability to profit from their resell. This, they contend,
overlooks the possibility that Georgia Power had a dual intent:
to gain revenue from the sales and to arrange for the disposal
of PCBs. Georgia Power counters that it intended only to engage
in legitimate sale transactions in a competitive market and that
nothing in the record suggests its intent to dispose of PCBs.
We review de novo the district court’s determination of PRP
status under CERCLA and grant of summary judgment. PCS Nitrogen
Inc. v. Ashley II of Charleston LLC, 714 F.3d 161, 172 (4th Cir.
2013). In doing so, we construe all facts and reasonable
inference in favor of the non-moving parties, which here are
Consol and PCS. Turner v. United States, 736 F.3d 274, 280
(4th Cir. 2013).
A. CERCLA Arranger Liability
What qualifies as “arranging for disposal” under CERCLA “is
clear at the margins but murky in the middle.” NCR Corp., 768
F.3d at 704. At one extreme, liability plainly attaches if an
27
entity enters a transaction “for the sole purpose of discarding
a used and no longer useful hazardous substance.” Burlington,
556 U.S. at 610. On the other extreme, there is no liability
“merely for selling a new and useful product if the purchaser of
that product later, and unbeknownst to the seller, disposed of
the product in a way that led to contamination.” Id.
“[B]etween these two extremes” are arrangements where “the
seller has some knowledge of the buyers’ planned disposal or
whose motives for the ‘sale’ of hazardous substances are less
than clear.” Id. In those cases, the court must undertake a
“fact-intensive inquiry that looks beyond the parties’
characterization of the transaction as a ‘disposal’ or a
‘sale.’” Id.
In Burlington, the Supreme Court considered whether Shell
Oil had arranged for disposal of pesticides and other chemical
products by shipping them to a wholesale distributor “under
conditions it knew would result in the spilling of a portion of
the hazardous substance by the purchaser or common carrier.”
Id. at 612. The government contended that the phrase “arranged
for disposal” should be interpreted broadly, based on the
definition of the statutory term “disposal.” 6 Id. at 611. In
6
CERCLA defines “disposal” as “the discharge, deposit,
injection, dumping, spilling, leaking, or placing of any solid
waste or hazardous waste into or on any land or water so that
(Continued)
28
the government’s view, Congress had included “unintentional acts
such as ‘spilling’ and ‘leaking’ in the definition of disposal”
because it intended to impose liability when entities “engage in
legitimate sales of hazardous substances knowing that some
disposal may occur as a collateral consequence of the sale
itself.” Id. at 611-12 (footnote omitted).
The Supreme Court rejected the government’s position. To
be sure, the Court acknowledged, “in some instances an entity’s
knowledge that its product will be leaked, spilled, dumped, or
otherwise discarded may provide evidence of the entity’s intent
to dispose of its hazardous wastes.” Id. at 612. But the Court
further concluded that “knowledge alone is insufficient to prove
that an entity ‘planned for’ the disposal, particularly when the
disposal occurs as a peripheral result of the legitimate sale of
an unused, useful product.” Id. at 612. To qualify as an
arranger, Shell would have had to sell the chemicals “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. Id. at 612. Far
from intending for the spills to occur, Shell “took numerous
such solid waste or hazardous waste or any constituent thereof
may enter the environment or be emitted into the air or
discharged into any waters, including ground waters.” 42 U.S.C.
§ 6903(3).
29
steps to encourage its distributors to reduce the likelihood of
such spills.” Id. at 613. Given those circumstances, Shell’s
“mere knowledge that spills and leaks continued to occur”
provided “insufficient grounds” to find that Shell had arranged
for a disposal within the meaning of § 9607(a)(3). Id. Thus,
for arranger liability to be found, something more is required
than mere knowledge “that some disposal may occur as a
collateral consequence of the sale itself.” Id. at 612.
Prior to Burlington, we identified four factors in Pneumo
Abex Corp. v. High Point, Thomasville and Denton Railroad Co.
that could be useful in “determining whether a transaction was
for the discard of hazardous substances or for the sale of
valuable materials”:
[1] the intent of the parties to the contract as to
whether the materials were to be reused entirely or
reclaimed and then reused, [2] the value of the
materials sold, [3] the usefulness of the materials in
the condition in which they were sold, and [4] the
state of the product at the time of transferral (was
the hazardous material contained or leaking/ loose).
142 F.3d 769, 775 (4th Cir. 1998). We also recognized that
there was “no bright line” and that “[a] party’s responsibility
. . . must by necessity turn on a fact-specific inquiry into the
nature of the transaction.” Id. (internal quotation marks
omitted).
In Pneumo Abex, a parts foundry sought contribution for
cleanup costs from railroads that shipped used wheel bearings to
30
the foundry and received credit for their weight against the
purchase of new bearings. Id. at 773. The foundry removed
dirt, grease, and impurities from the used bearings and melted
the bearings to mold new bearings. In this process dust and
slag was produced, which was dumped in an area that the EPA
found to be contaminated. Id. at 775.
We concluded that the railroads did not arrange for
disposal of the wheel bearings, for CERCLA purposes, by sending
them to the foundry. “The intent of both parties to the
transaction was that the wheel bearings would be reused in their
entirety in the creation of new wheel bearings,” not simply
disposed of as hazardous metals. Id. We likened the case to
one “in which a party sells to another a material which becomes
hazardous in its use, but is contained when sold.” Id.
Several factors led to that conclusion. The slag and dust
would have been produced “even if virgin materials were used to
make the new bearings.” Id. The dirt and grease were removed
“incidental to remolding new bearings,” and “were not the
hazardous materials, the metals themselves were.” Id. Also,
the foundry paid for the bearings; the railroads did not pay for
disposal of unwanted metal. Id. In sum, “[t]he parties
contemplated that the bearings were a valuable product for which
the Foundry paid a competitive price.” Id. at 775-76.
31
Consol and PCS do not contend that the sole or even primary
purpose of the sale of the transformers was to dispose of PCBs.
On this record, Burlington would foreclose that claim. Instead,
Consol and PCS contend Georgia Power and Savannah Electric had a
secondary motive for the transformer sale -- to dispose of PCBs
–- and that this secondary motive is sufficient to create
arranger liability under CERCLA.
In that regard, neither Burlington nor Pneumo Abex
foreclose arranger liability as a matter of law based on a
secondary intent, at least when there is a sufficient factual
basis for such a finding from the necessary “fact intensive and
case specific” inquiry. Burlington, 556 U.S. at 610.
Nonetheless, 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. The Supreme Court made that point quite
clear in Burlington. Anytime an entity sells a product that
contains a hazardous substance, it also “intends” to rid itself
of that hazardous substance in some metaphysical sense. But
intent to sell a product that happens to contain a hazardous
substance is not equivalent to intent to dispose of a hazardous
substance under CERCLA. For arranger liability to attach, there
must be something more.
32
The something more could be the seller’s “intentional
steps,” beyond what is inherent to the sale, to dispose of the
hazardous waste. Id. at 611. Or other evidence might
demonstrate that the seller “entered into the sale . . . with
the intention that at least a portion of the [hazardous] product
be disposed of” as defined in the act -– by discharge, deposit,
injection, dumping, spilling, leaking, or placing it into or on
any land or water. Id. at 612. This is the “fact-intensive
inquiry that looks beyond the parties’ characterization,” id. at
610, and “into the nature of the transaction,” Pneumo Abex, 142
F.3d at 775 (internal quotation marks omitted). With that
framework in mind, we turn to the circumstances of transformer
sales by Georgia Power and Savannah Electric.
B. Georgia Power Transformers
Consol and PCS fail to establish a material issue of fact
in dispute as to Georgia Power’s intent to arrange for the
disposal of PCBs in the 101 transformers it sold to Ward. There
is no direct evidence that Georgia Power intended, even in part,
to arrange for the disposal of PCBs through these transactions.
Nor is there circumstantial evidence from which a reasonable
juror could infer that Georgia Power so intended.
33
1. Direct Evidence
Consol and PCS have pointed to no direct evidence that
Georgia Power auctioned its transformers to Ward intending to
dispose of the contained PCBs. What direct evidence does exist
of Georgia Power’s subjective intent reflects only that it
wished to sell its used transformers “to the best advantage of
the company” –- to recover revenue. (J.A. 1331.) Although
Georgia Power’s procedures for offloading transformers refer to
“scrapping,” and even to “disposal,” it is equally clear that,
where permitted by the TSCA, Georgia Power meant those terms to
reflect that the transformers were “actually sold.” (Id.)
Georgia Power may have called these sales “disposals” in its
1974 procedures bulletin, but that has limited bearing on its
intent to “dispose” of transformers as the word is construed in
CERCLA, let alone the PCBs within those transformers.
Consol and PCS argue that Georgia Power’s PCB testing
procedure for used transformers –- first testing the PCB
concentrations and then processing the transformers differently
based on the result -- proves that one overall goal was to
dispose of PCBs. The procedure, however, merely demonstrates
Georgia Power’s intent to comply with the TSCA, the federal
waste statute that compels a differential process based on
products with PCB levels above or below 50 ppm. Georgia Power
legitimately sought to sell used transformers to its greatest
34
commercial advantage, and the TSCA circumscribed how Georgia
Power went about accomplishing that goal. Compliance with the
TSCA does not create a backdoor arranger liability factor under
CERCLA.
In Burlington, the Supreme Court noted “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 (internal quotation marks omitted)
(quoting with approval United States v. Cello-Foil Prods., Inc.,
100 F.3d 1227, 1231 (6th Cir. 1996)). The record before us does
not contain any direct evidence that Georgia Power’s “state of
mind” in selling the transformers was to “dispose” of PCBs.
2. Circumstantial Evidence
The circumstantial evidence surrounding Georgia Power’s
transformers sales also fails to create a material issue of fact
as to Georgia Power’s intent in selling the transformers.
Consol and PCS argue that intent to dispose of the PCBs is
evident from the nature of the sales. For example, they contend
that some transformers were drained of oil and non-functional,
exposed to damaging moisture, or sold in lots at low prices.
However, the circumstances of the sales, viewed through the lens
of Burlington and supported by the Pneumo Abex factors, do not
support arranger liability in this case. The record reflects
35
the position of Consol and PCS rests on speculation, not a
dispute over a genuine issue of material fact.
a) Intent for Reuse
The first Pneumo Abex factor asks whether the parties
intended for “the materials . . . to be reused entirely or
reclaimed and then reused.” 142 F.3d at 775. Consol and PCS
argue that the PCB-contaminated oil and parts were “worthless
accouterments” to the transformer shells that Ward really
wanted. (Appellant’s Br. 39.) Georgia Power, focusing on the
overall product, responds that Ward commercially reused all of
the transformers, selling them to third-party buyers and usually
for a profit.
Much of the parties’ disagreement as to this and the
remaining Pneumo Abex factors turns on whether the court should
apply the factors with respect to the overall product (the
transformers) or only the hazardous material contained within,
ignoring all other circumstances of the transaction. Where, as
here, the hazardous materials are part of the overall product, a
court may consider whether those materials were necessary to the
sale, or instead, could and should have been separated. As we
noted in Pneumo Abex, if the hazardous materials are an
“incidental” component of a legitimate sale, then their
inclusion in the transaction may well demonstrate nothing more
36
than the seller’s intent to complete the sale of the overall
product. Pneumo Abex, 142 F.3d at 775-76 (no arranger liability
for returning wheel bearings containing valuable but hazardous
metal that was molded into new bearings); see also, e.g., NCR
Corp., 768 F.3d at 688, 707 (no arranger liability for a paper
company who sold paper scraps containing PCBs to a recycling
plant, where the PCBs were released only once the plant
processed the valuable scraps into usable fibers).
On the other hand, if the hazardous material could
practicably have been excluded from the sale, that may suggest
the seller entered the transaction with a further intent to
arrange for a disposal. See, e.g., Cello-Foil, 100 F.3d at 1230(recognizing an issue of fact as to arranger liability and
reversing a grant of summary judgment where a solvent purchaser
returned reusable drums to recover a deposit but in some cases
left in the drums “unused solvents of up to fifteen gallons”).
For these reasons, the proper focus of the Pneumo Abex analysis
-- the overall product or a particular material within –- will
likely depend on the product’s construction. If the hazardous
materials are easily separable from the overall product, such as
a battery in a toy, it may generally be appropriate to direct
the Pneumo Abex inquiry toward those materials. But if
separation is impractical, like a coat of paint on the toy, it
37
will make more sense to direct the inquiry toward the overall
product.
At the product level in this case, there is no dispute that
Ward, the purchaser, intended to reuse the transformers to the
greatest extent possible, including as whole units. Ward was in
the repair and resale business; it did not operate a disposal
facility. The record does not establish that Ward purchased the
transformers to resell for scrap. Nor does the record establish
that the parties had any divergent intent for how Ward would
handle the PCB-containing oil and oil-soaked parts. The
evidence, such as it is, simply does not support an inference
that either of the parties entered into the sale of the
transformers with the intent that Ward would replace the oil or
any oil-soaked parts as a matter of course.
Ward’s later decision not to reuse the PCB oil and oil-
coated parts in some transformers does not imply that Georgia
Power had an intent to dispose of the oil when selling the
transformers. Third-party customer specifications, which
directed Ward’s profit motive, dictated how Ward chose to
process the transformers. While some of the former Georgia
Power transformers might be sold “as is, where is” to a third-
party for a reasonable commercial return, others might be sold
for a higher profit to a customer only after repair or retooling
38
depending on that customer’s need. None of that connects to a
disposal intent for oil on the part of Georgia Power.
Any disposal of PCBs occurred only as a result of Ward’s
later business judgments, not any implicit agreement or
understanding between Ward and Georgia Power at the time of
auction. Nothing in the record reflects to the contrary. See
NCR Corp., 768 F.3d at 706 (observing that the purchaser had
multiple options for handling the hazardous byproduct it
produced; that the seller “neither contracted with them to take
that step, nor did it have any control over what the [purchaser]
ultimately did”; and that this “lack of control” was “a good
reason to find [the seller] was not arranging for disposal”);
Pneumo Abex, 142 F.3d at 775 (observing that the “removal of
contaminants was not the purpose of the transaction”; the
foundry processed the wheel bearing because they were “worn out
or broken”). Here, Georgia Power lacked knowledge of or control
over what Ward chose to do with the transformers Ward acquired.
Even more, Georgia Power did not know whether and to what extent
Ward would reuse the PCB-contaminated oil and parts in any
transformers it determined to rebuild or retool.
Other than speculation on the part of the appellants, there
is no record basis to conclude that when Georgia Power sold the
transformers to Ward, either party had any intent that the
transformers be scrapped or sold for parts as reclaimed
39
materials as opposed to “reused entirely.” Thus, we find no
error in the district court’s implicit conclusion that the first
Pneumo Abex factor weighs in Georgia Power’s favor based on its
“fact-intensive and case-specific” inquiry. 7
b) Value
Pneumo Abex also advises courts to consider “the value of
the materials sold.” Id. Consol and PCS argue that the
transformers had value “despite the tainted residual oil, not
because of it.” (Appellant’s Br. 40.) Georgia Power
emphasizes, as the district court did, that the transformers had
real commercial value, for which Ward paid a “competitive price”
and later sold them all for profit. See CP&L, 921 F. Supp. 2d
at 500.
The record confirms that Georgia Power recovered revenue in
excess of scrap value from the sales, and that Ward profited
from the resale of the transformers. Ward purchased the
transformers at competitive auctions, sometimes losing units to
7
Consol and PCS argue that the district court’s failure to
expressly state its resolution of the first Pneumo Abex factor
is a fatal error that requires vacation of the judgment. We
find the district court’s resolution of this factor to be
sufficiently clear from its remaining analysis, and in any
event, Pneumo Abex merely highlights some factors that courts
“focus on” in carrying out the arranger liability inquiry. 142
F.3d at 775. The result of the inquiry is not contingent on any
single factor.
40
higher bids. Cf. Pneumo Abex, 142 F.3d at 775-76 (“The parties
contemplated that the bearings were a valuable product for which
the Foundry paid a competitive price.”). This is not a case
where the parties entered an “idiosyncratic” transaction for a
substance for which there was no “general demand.” United
States v. Gen. Elec. Co., 670 F.3d 377, 386 (1st Cir. 2012)
(“[T]he lack of a viable market for scrap Pyranol during the
relevant period supplies further proof that GE did not view
scrap Pyranol as a legitimate and serviceable product.”). In
the district court’ words, “Ward was able to resell most or all
of the transformers that it purchased from Georgia Power, after
reconditioning and/or reconfiguration, making thousands of
dollars more than what Ward paid Georgia Power, on resale.”
CP&L, 921 F. Supp. 2d at 498. That Ward repaired or rebuilt
some of the transformers was simply its business model and the
used transformers were, in essence, its raw materials.
“Clearly, the transformers that Georgia Power sold to Ward had
marketable value.” Id.
The record does not support the conclusion that the
presence of PCB-contaminated oil and parts depressed the
transformers’ value. Consol and PCS present no evidence that
Ward paid less for transformers based on PCBs, which could have
suggested Georgia Power’s intent to “contract[] away [its]
responsibility” to dispose. Fla. Power & Light Co., 893 F.2d at
41
1318 (internal quotation marks omitted); see also Pneumo Abex,
142 F.3d at 775 (“The Foundry paid the appellants for the
bearings; the appellants did not pay the Foundry to dispose of
unwanted metal.”). The undrained transformers would not have
been functional without the oil and oil-coated parts, and a
functional transformer is intuitively more valuable than a
nonfunctional transformer. Georgia Power’s decision to not
render these transformers inoperable can hardly be evidence that
Georgia Power intended to dispose of PCBs. For the drained
transformers, the evidence does not show that a residual PCB oil
sheen created increased costs for Ward during the repair and
rebuilding processes or, as noted above, affected the auction
price. In short, there is no basis in the record to isolate a
negative value for the PCB-contaminated oil and parts from the
unquestionably positive commercial value of the transformers.
Consol and PCS argue that certain factors relating to the
sales -- that Georgia Power sold the transformers in lots,
allowed some of the coils to be exposed to moisture, and
provided no warranties except as to title -- reflect an intent
to simply scrap the transformers to get rid of the PCBs in the
oil. But Consol and PCS adduced no evidence that such sale
factors had any relationship to a decision to dispose of PCBs
and were not ordinary commercial terms of sale. The value of
the transformers was in their ability to be resold to meet
42
third-party customers’ orders. Cf. NCR Corp., 768 F.3d at 704
(“Purchasing this product was essential to the recycling mills’
business operations, and they must take the bitter with the
sweet of operating in that market.”). There simply is not
evidence in the record supporting the argument by Consol and PCS
that the auctions were, even in part, an intended PCB disposal
arrangement. Accordingly, the district court’s determination as
to the Pneumo Abex “value” factor is well supported.
c) Usefulness
The third Pneumo Abex factor considers “the usefulness of
the materials in the condition in which they were sold.” 142
F.3d at 775. Consol and PCS argue that the residual oil “could
not by itself cool a transformer” and was “undesirable to use in
rebuilt transformers.” (Appellant’s Br. 43.) Georgia Power,
again, focuses on the transformers and highlights the district
court’s conclusion that “all or most continued to be used as
transformers after their sale because they had not reached the
end of their useful lives.” CP&L, 921 F. Supp. 2d at 489.
The PCB content thus does not appear to have factored into
the continued usefulness of the auctioned transformers. Consol
and PCS say that some materials in some transformers were
discarded, but not that they had to be. Georgia Power did not
auction all of the used transformers that regulations permitted
43
it to sell; some it reconditioned and retained itself. That
decision was based not on PCB content, but on age, obsolescence,
the need for additional stock of the particular transformer
type, and the nature and extent of any needed repairs. (J.A.
2201.)
Once Ward acquired the transformers, the record does not
show that Ward was required or necessarily had to remove
residual oil or oil sheen containing the PCBs. Customer
specifications dictated how Ward processed the transformers, and
it was able to process all of them for sale. Again, we find no
error in the district court’s application of this Pneumo Abex
factor.
d) State at the Time of Transfer
Finally, the fourth Pneumo Abex factor addresses “the state
of the product at the time of transferral,” and particularly
whether the “hazardous material [was] contained or leaking/
loose.” 142 F.3d at 775. Consol and PCS acknowledge that the
transformers were not leaking, but conjecture that the condition
of some of the transformers at the time of transfer was
equivalent to a leaking transformer. The record, however, shows
that, as in Pneumo Abex, this is a case “in which a party sells
to another a material which becomes hazardous in its use, but is
contained when sold.” Id.
44
There is no evidence that any form of “disposal” under
CERCLA occurred during the transformers’ transfer from Georgia
Power to Ward. None of the undrained transformers were leaking
oil at the time of sale because they were capped. CP&L, 921 F.
Supp. 2d at 498. Nor is there any record evidence that the
drained transformers leaked or spilled in conjunction with the
sale transfer. As the district court found, allegations
relating to the condition of the transformers do not “amount to
leaking at the time of sale.” Id. at 498-99. Absent leaks or
some similar disposal of hazardous substances during the
transfer, this factor does not indicate Georgia Power’s intent
to arrange for a disposal. See Pneumo Abex, 142 F.3d at 775
(noting that the hazardous metals “were in a contained form when
delivered for sale”). The district court did not err in
concluding that the fourth Pneumo Abex factor weighed in favor
of Georgia Power.
e) Knowledge
Finally, relying on Burlington, Consol and PCS argue that
Georgia Power’s intent to dispose can be inferred from its
knowledge that Ward could spill PCBs while rebuilding the
transformers. The district court observed that knowledge alone
was insufficient for liability “where all other factors counsel
toward a finding that Georgia Power lacked the requisite intent
45
for arranger liability.” CP&L, 921 F. Supp. 2d at 499 (citing
Burlington, 556 U.S. at 612 (“[K]nowledge alone is insufficient
to prove that an entity ‘planned for’ the disposal[.]”)). The
district court noted that, at any rate, the “knowledge” Consol
and PCS allege was “merely about Georgia Power’s general
expertise in dealing with transformers and PCB-laden oils, and
not any knowledge as to spills at Ward.” Id. at 499. Nothing
in the record contradicts that determination or the view that
Ward “unbeknownst to the seller, disposed of the product in a
way that led to contamination.” Burlington, 556 U.S. at 610.
In some respects, Georgia Power appears even less culpable
than Shell Oil in Burlington, which apparently had some
knowledge “that some disposal may occur as a collateral
consequence of the sale itself.” Id. at 612. Shell Oil was
nonetheless found not to have sufficient intent for arranger
liability. In contrast, the record here shows no knowledge by
Georgia Power of the disposition of the transformers (and any
PCBs) once acquired by Ward. Given Georgia Power’s clear intent
to sell a valuable product on a competitive market, and its lack
of specific knowledge regarding how Ward would process the
transformers, the “knowledge” factor is of no aid to Consol and
PCS.
In sum, Consol and PCS fail under Burlington to adduce
record evidence creating any genuine issue of material fact as
46
to whether Georgia Power 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. 556 U.S. at 612.
The Pneumo Abex factors, whether examined individually or
holistically, also favor Georgia Power. Given the district
court’s “fact-intensive and case-specific” analysis, we find no
error in its award of summary judgment in favor of Georgia Power
on this issue.
C. Savannah Electric Transformers
Applying the same analysis, we find the circumstances as to
the sale of the Savannah Electric transformers fall squarely on
the side of a legitimate sale and against arranger liability.
The 20 Savannah Electric transformers were in “perfectly good
working order” and “were simply de-energized and sold with no
record of any problems or defects.” (Id. at 2233.) The record
appears to reflect that the Savannah Electric transformers were
operational at the time of sale and could have been used without
adjustment if they fit a particular customer’s KVA requirements.
The record evidence indicates only that Savannah Electric
intended for the transformers to be reused entirely (factor 1);
that the transformers retained significant value (factor 2);
that the transformers were in a useful condition (factor 3); and
47
that they were not leaking (factor 4). While Ward opted to
rebuild some of the transformers, that decision was made to meet
customer orders and reveals nothing about Savannah Electric’s
intent at the time of the original sale.
On this record, the Pneumo Abex factors counsel against
arranger liability and do not support the inference that
Savannah Electric’s intent was to dispose of PCBs. Accordingly,
the district court did not err in awarding summary judgment to
Georgia Power.
III.
For the foregoing reasons, we find that the circumstances
of the transformer sales by Georgia Power and Savannah Electric
do not indicate the intent to dispose of PCBs and therefore do
not support arranger liability. The judgment of the district
court is
AFFIRMED.
48
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.
Ward 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
49
(“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
(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, “dispose[s] 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. At the time, Congress was
confronting a “legacy of past haphazard disposal of chemical
50
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
CERCLA may, at times, yield seemingly harsh results. Cf. Matter
51
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 conduct predating the enactment of CERCLA, 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 CERCLA 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
52
“arrange” and that an arranger must therefore intend, at least
in part, to dispose of a hazardous substance for CERCLA
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. On appeal, the Ninth
Circuit recognized that “disposal of hazardous wastes” was “not
the purpose” of Shell Oil’s transactions. Id. at 606-07(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 (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.
53
In Cello-Foil, a solvent company shipped solvents in re-
usable 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 cases, 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 that 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.
54
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 factfinder 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.
55
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
56
(“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 be 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 21.
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,
57
e.g., Gen. Analytics Corp. v. CNA Ins. Cos., 86 F.3d 51, 54 (4th
Cir. 1996) (citation omitted) (“[D]etermining 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. However, this does not
58
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 (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 transformers, 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-
59
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.
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
1
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.
60
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
2
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
(Continued)
61
At 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.
product if the purchaser of that product later, and unbeknownst
to the seller, disposed of the product in a way that led to
contamination.” 556 U.S. at 610. 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 775.
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.
62