Consolidation Coal Co. v. Georgia Power Co.

Affirmed by published opinion. Judge AGEE wrote the majority opinion, in which Judge SHEDD joined. Judge WYNN wrote a dissenting opinion.

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.

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. 599, 602, 129 S.Ct. 1870, 173 L.Ed.2d 812 (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 vessel owned or operated by another party or entity and containing such hazardous substances.

Id. § 9607(a)(3) (emphasis added). IfPRP 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 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 specifíea--tions. 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.

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 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]ois-ture [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-am-pere 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 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.

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 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 EEN-CY, 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.

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, 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.

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 entity enters a transaction “for the sole purpose of discarding a used and no longer useful hazardous substance.” Burlington, 556 U.S. at 610, 129 S.Ct. 1870. 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 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 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 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.

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, 129 S.Ct. 1870. 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.

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, 129 S.Ct. 1870. 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, 129 S.Ct. 1870. This is the “fact-intensive inquiry that looks beyond the parties’ characterization,” id. at 610, 129 S.Ct. 1870, 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.

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 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, 129 S.Ct. 1870 (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-fune-tional, 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 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 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 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 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 Carp., 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 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 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 “con-tractu away [its] responsibility” to dispose. Fla. Power & Light Co., 893 F.2d at 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 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. Con-sol 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 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.

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 fayor 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 for arranger liability.” CP & L, 921 F.Supp.2d at 499 (citing Burlington, 556 U.S. at 612, 129 S.Ct. 1870 (“[Knowledge 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, 129 S.Ct. 1870.

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 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, 129 S.Ct. 1870. 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 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.

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).

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.

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.

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.

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 nonworking 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.

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 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).

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.