Duke Energy Progress, Inc. v. Consolidation Coal Company

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 5:08-cv-00460-FL. [999550206]. [13-1603, 13-1617, 13-1664, 13-1666]

Appeal: 13-1603

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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

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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.; BRUCEMERRILEES 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

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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

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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

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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

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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 NEUROMEDICAL 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

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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

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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 SMIOWEN 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-ININTEREST 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

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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,
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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
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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
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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
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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 NEUROMEDICAL 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

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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:

Before SHEDD, AGEE, and WYNN, Circuit Judges.

14

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Affirmed by published opinion.
opinion, in which Judge Shedd
dissenting opinion.

Pg: 15 of 62

Judge Agee wrote the majority
joined.
Judge Wynn wrote a

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.

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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.
complaint

under

Compensation,

and

the

Comprehensive

Liability

Act

They filed a

Environmental

(“CERCLA”)

against

Response,
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.

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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

“potentially responsible parties” (“PRPs”).

categories

of

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

§ 9607(a).
category,

disposal
The

often

or

treatment

case

before

termed

the

us

facilities.

involves

arranger

the

42

third

provision,

U.S.C.

liability

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

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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

national contingency plan.”

other

person

consistent

Id. § 9607(a)(4).

with

the

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.
issue

here

The particular type of electrical transformer at
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

1

internal

parts

must

be

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).
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immersed in oil to work properly, and often the insulating oil
contained PCBs.
Ward

left

outside lot.

some

of

the

transformers

it

purchased

on

an

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

transformers,

sometimes
some

oil

significant
spills

work

occurred

at

Ward
the

performed
Ward

on

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.
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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.
disposing

A 1974 Georgia Power bulletin provided procedures “for
of

surplus,

obsolete

transformers.”

(J.A.

disposition

retired

of

1329.)

or

damaged

The

distribution

bulletin

transformers

as

refers

to

1331

scrapped,

(providing
(actually

instructions
sold)”).)

for

“[w]hen

The

the

“scrapping,”

clarifies that scrapped transformers are “actually sold.”
at

line

but
(Id.

transformers

“Scrapping

are

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

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smelters.

Filed: 03/20/2015

Transformers

with

Pg: 21 of 62

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 doublepumping

procedure.

transformers

except

This
a

process

thin

sheen

removed
coating

all

oil

the

from

the

inside

of

the

damage

to

the

transformers and the cores and coils. 3
Moisture
internal

from

components

the

atmosphere

of

an

exposed

can

cause

transformer

lacking

oil.

“[M]oisture [to a transformer] is basically like cancer to a
person.”
kept

(Id. at 2211.)

surplus

drained

Georgia Power, nonetheless, sometimes

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 thirdparty 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

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not wish to purchase.

Pg: 22 of 62

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

separate auctions.

101

Georgia

Power

transformers

at

four

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

designated

transformers

that

approximately

needed repair.

20

Ward
as

purchased,

“scrap,”

Georgia

indicating

Power

that

they

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.
at 2215, 2219, 2222-23.) 4

(Id.

Georgia Power drained the majority of

the transformers prior to transfer, but it left the oil in 14 of
the

101

transformers.

concentrations

between

These
0

concentration of 488 ppm.

and

50

undrained
ppm,

units

except

all

one

had

that

PCB

had

a

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.
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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.
of the transformers prior to sale.

It “rebuilt” 80

“[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.
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Company of New York (“EECNY”).

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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

replacing those that contained PCBs.

by

selling

and

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.”
These

transformers

“had

been

in

service

and

(Id. at 2233.)
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.
2235-36, 2438.)

(Id. at

However, all 20 transformers were functioning

units that could have been used without alteration by a thirdparty purchaser with a matching KVA need.
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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

(“Progress,”

f/k/a

transformers before sale.

E. Relevant Proceedings Below
In

2005,

Carolina

Power

Duke
&

Energy

Light

Progress,

Company)

and

Inc.

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.

Carolina

District
against

Court

Georgia

for

the

Power,

Eastern

PCS,

and

District
a

number

of

North

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

25

Georgia

Power.

Consol,

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Progress,

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and

PCS

alleged

Pg: 26 of 62

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

Power

had

court

“show[n]

granted

the

it

not

did

motion,
have

finding

the

create arranger liability under CERCLA.”

that

necessary

Georgia

intent

to

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.”
court

entered

Id. at 488.
final

judgment

At Consol’s and PCS’ request, the
on

Power.

26

the

claims

against

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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.”
F.3d at 704.

NCR Corp., 768

At one extreme, liability plainly attaches if an
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entity enters a transaction “for the sole purpose of discarding
a used and no longer useful hazardous substance.”
556 U.S. at 610.

Burlington,

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

“[B]etween

in

a

these

way

two

that

led

extremes”

to

are

contamination.”

arrangements

Id.

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

characterization

of

transaction

‘sale.’”

the

looks

beyond
as

a

the

parties’

‘disposal’

or

a

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.
for

The government contended that the phrase “arranged

disposal”

should

be

interpreted

broadly,

definition of the statutory term “disposal.” 6

6

based

on

the

Id. at 611.

In

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)
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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

occur

hazardous
as

a

substances

disposal

may

collateral

itself.”

knowing

consequence

that

some

the

sale

of

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

within the statutory definition of disposal.

of

the

methods”

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).
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steps to encourage its distributors to reduce the likelihood of
such spills.”
“mere

Id. at 613.

knowledge

that

Given those circumstances, Shell’s

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

collateral consequence of the sale itself.”

may

occur

as

a

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
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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.
We

concluded

that

Id. at 775.
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

disposed of as hazardous metals.

wheel
Id.

bearings,”

not

simply

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.”
Several factors led to that conclusion.

Id.

The slag and dust

would have been produced “even if virgin materials were used to
make the new bearings.”
“incidental

to

remolding

Id.
new

The dirt and grease were removed
bearings,”

and

“were

hazardous materials, the metals themselves were.”

not

Id.

the
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.”

31

Id. at 775-76.

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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
foreclose

that

regard,

arranger

neither

liability

as

Burlington
a

matter

nor
of

law

Pneumo
based

Abex
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.

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something

more

could

Pg: 33 of 62

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

disposal of PCBs in the 101 transformers it sold to Ward.

the

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.

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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

intent

Georgia

Power’s

subjective

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
procedure

and
for

PCS
used

argue

that

transformers

Georgia
–-

Power’s

first

PCB

testing

testing
the

PCB

concentrations and then processing the transformers differently
based on the result -- proves that one overall goal was to
dispose of PCBs.
Georgia
waste

Power’s

statute

The procedure, however, merely demonstrates
intent

that

to

compels

comply
a

with

the

differential

TSCA,

the

process

products with PCB levels above or below 50 ppm.

federal

based

on

Georgia Power

legitimately sought to sell used transformers to its greatest
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commercial

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advantage,

and

the

Pg: 35 of 62

TSCA

circumscribed

Power went about accomplishing that goal.

how

Georgia

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

substances.”

arranged

for

disposal

.

.

.

of

hazardous

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.

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of

Consol

and

PCS

Pg: 36 of 62

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”
wanted.

to

the

transformer

(Appellant’s Br. 39.)

shells

that

Ward

really

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.
noted

in

Pneumo

“incidental”

Abex,

component

if
of

the
a

hazardous
legitimate

materials
sale,

then

As we
are

an

their

inclusion in the transaction may well demonstrate nothing more

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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

material

could

processed the valuable scraps into usable fibers).
On

the

other

hand,

if

the

hazardous

practicably have been excluded from the sale, that may suggest
the

seller

entered

the

arrange for a disposal.
(recognizing

an

issue

transaction

with

a

further

intent

to

See, e.g., Cello-Foil, 100 F.3d at 1230
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

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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 oilcoated parts in some transformers does not imply that Georgia
Power had an intent to dispose of the oil when selling the
transformers.

Third-party

directed

profit

process

Ward’s
the

customer

motive,

transformers.

While

specifications,

dictated
some

of

how
the

Ward

which

chose

former

to

Georgia

Power transformers might be sold “as is, where is” to a thirdparty for a reasonable commercial return, others might be sold
for a higher profit to a customer only after repair or retooling

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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

understanding
auction.

judgments,

between

Ward

not

implicit

Georgia

and

any

Power

at

agreement
the

time

Nothing in the record reflects to the contrary.

or
of
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

transformers

be

Ward,

either

scrapped

or

party

had

sold

for

39

any

intent

parts

as

that

the

reclaimed

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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.
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higher bids.

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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
dollars

more

and/or
than

reconfiguration,

what

Ward

paid

CP&L, 921 F. Supp. 2d at 498.

making

Georgia

thousands

Power,

on

of

resale.”

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.”
The
presence

record
of

Id.
does

not

support

PCB-contaminated

transformers’ value.

oil

the

conclusion

that

the

and

parts

depressed

the

Consol and PCS present no evidence that

Ward paid less for transformers based on PCBs, which could have
suggested

Georgia

Power’s

responsibility” to dispose.

intent

to

“contract[]

away

[its]

Fla. Power & Light Co., 893 F.2d at
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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.”).
been

functional

functional

The undrained transformers would not have

without

transformer

nonfunctional

the
is

oil

and

oil-coated

intuitively

transformer.

Georgia

parts,

and

a
a

more

valuable

than

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

--

allowed

that
some

Georgia
of

the

Power
coils

sold
to

be

the

transformers

exposed

to

in

lots,

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

transformers

was

in

their

ability

42

to

be

The value of
resold

to

meet

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third-party customers’ orders.

Pg: 43 of 62

Cf. NCR Corp., 768 F.3d at 704

(“Purchasing this product was essential to the recycling mills’
business
sweet

of

operations,
operating

and
in

they

that

must

take

market.”).

the

bitter

There

with

simply

is

the
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.”
F.3d at 775.

142

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.
and

PCS

say

that

some

materials

in

discarded, but not that they had to be.

some

Consol

transformers

were

Georgia Power did not

auction all of the used transformers that regulations permitted

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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

residual

Ward
oil

was

or

required

oil

sheen

or

necessarily

containing

the

had

to

PCBs.

remove

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
loose.”

the

“hazardous

material

142 F.3d at 775.

[was]

contained

or

leaking/

Consol and PCS acknowledge that the

transformers were not leaking, but conjecture that the condition
of

some

of

the

transformers

at

equivalent to a leaking transformer.

the

time

of

transfer

was

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.

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is

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no

Pg: 45 of 62

evidence

any

that

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.
Supp. 2d at 498.

CP&L, 921 F.

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.”
some

similar

disposal

of

Id. at 498-99.

hazardous

Absent leaks or

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

knowledge

that

transformers.

intent
Ward

to

could

dispose

can

spill

PCBs

be

inferred

while

from

its

rebuilding

the

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

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for arranger liability.”

Pg: 46 of 62

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

knowledge

Oil
“that

in

Burlington,

some

disposal

which
may

consequence of the sale itself.”

apparently

occur

as

Id. at 612.

a

had

some

collateral

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
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Georgia

Power

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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

within the statutory definition of disposal.
The

Pneumo

Abex

holistically,

also

factors,
favor

whether

Georgia

the

methods”

556 U.S. at 612.

examined

Power.

of

individually

Given

the

or

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

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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

Savannah Electric’s intent was to dispose of PCBs.

that

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.

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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

and

transformers

were

in

various

stages

of

disrepair

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,

Cir.

379

function

n.1

(1st

2012).

as

transformers

Georgia

again,

its

Power

knew
and

broken

that

to

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

Environmental

for

response

Response,

costs

under

Compensation,
49

the

and

Comprehensive
Liability

Act

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(“CERCLA”).

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Pg: 50 of 62

The Supreme Court recently made clear that intent

is central to the question of arranger liability.
&

Santa

(2009).
states

Fe

Ry.

Co.

v.

United

States,

556

Burlington N.

U.S.

599,

609-13

This Court has long made equally clear that “subjective
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.
the

evidence

in

the

light

most

favorable

to

the

Viewing

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
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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.

statute,
purpose).

1992)
it

(stating

must

be

that

because

“construed

CERCLA

liberally”

is
to

a

remedial

achieve

its

This remains true even if faithful application of

CERCLA may, at times, yield seemingly harsh results.
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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
provision.

to

this

case

Specifically,

is

among

CERCLA’s
the

arranger

“covered

liability

persons”

liable

under CERCLA for recovery costs are persons who “arranged for
the

disposal

§ 9607(a)(3).

.

.

.

of

hazardous

substances.”

42

U.S.C.

“[A]rranger liability was intended to deter and,

if necessary, to sanction parties seeking to evade liability by
‘contracting away’ responsibility.”
382.

Gen. Elec. Co., 670 F.3d at

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
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“arrange” and that an arranger must therefore intend, at least
in

part,

to

dispose

liability to attach.

of

a

hazardous

substance

for

CERCLA

Arranger liability thus turns on a fact-

sensitive analysis of the defendant’s state-of mind—a type of
analysis

rarely

Charbonnages,

appropriate

597

F.2d

at

for

summary

415.

Not

judgment.

See

surprisingly,

then,

Burlington Northern was the product of a trial—a six-week bench
trial

culminating

in

conclusions of law.”

“507

separate

findings

556 U.S. at 605.

of

fact

and

On appeal, the Ninth

Circuit recognized that “disposal of hazardous wastes” was “not
the

purpose”

of

Shell

(emphasis added).
courts

holding

Oil’s

transactions.

Id.

at

606-07

Nevertheless, the court affirmed the trial

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

determining

of

mind’”

whether

a

plays

an

party

“‘indispensable

qualifies

as

role’”

an

in

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.
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In Cello-Foil, a solvent company shipped solvents in reusable

drums,

refunded

charging

upon

customers
inside.

the

drums’

returned
Id.

customers

drums

a

return.
with

deposit

100

F.3d

residual

that
at

would

1230.

amounts

of

be
Many

solvent

“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

indicated

the

that

drums
the

onto

the

customers

ground.

knew

how

Id.
the

But

nothing

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.
district

court

granted

summary

judgment

to

Id.

the

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

substances remaining in those drums.”

amounts

of

Id. at 1233.

hazardous
The Sixth

Circuit reversed, finding a genuine issue of material fact as to
whether

the

customers

faced

arranger

Id. at 1230.
54

liability

under

CERCLA.

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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.’”
1234 (quoting Charbonnages, 597 F.2d at 415).
the

eyes

of

the

court,

the

customers’

Id. at

Even though, in

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”)

reasonable inferences in their favor.
55

and

to

draw

all

Garofolo v. Donald B.

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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

judgment should have been denied.

motion

for

summary

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

transformers as “scrapping” and “disposing of” them.
And

it

sold

the

transformers

with

no

minimum

of

the

J.A. 1331.

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

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(“ppm”)

PCB

Filed: 03/20/2015

oil

in

it

after

Pg: 57 of 62

arriving

Others were not drained at all.
regulations
(“TSCA”)

under

the

prohibited

containing

greater

Toxic

Georgia
than

50

at

Ward

J.A. 2225.

Substances
Power
ppm

from

PCB

In fact, though

Control
selling

oil,

Transformer.

Ward

Act

of

1976

transformers
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

Georgia Power’s transformers with new oil.

oil

contained

in

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,
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e.g., Gen. Analytics Corp. v. CNA Ins. Cos., 86 F.3d 51, 54 (4th
Cir. 1996) (citation omitted) (“[D]etermining intent is factintensive, 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

hazardous materials.

intended

as

a

way

of

getting

rid

of

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

transformers
Burlington

it

“scrapping”
sold

Northern

to

to

describe

Ward

its

Transformer.

instructs

courts

to

treatment
It
look

is

of

the

true

that

“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 strictliability provisions.”

556 U.S. at 610.
58

However, this does not

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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.
(citations omitted).
the

factors

determination

set
that

Pneumo Abex, 142 F.3d at 775

Contrary to the majority opinion, applying

out

in

the

Pneumo

intent

of

Abex
these

do

not

support

transactions

the

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 PCB59

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tainted parts.

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This stands in stark contrast to the pesticides

at issue in Burlington Northern, which were an “unused, useful
product” in their present condition.
Regarding
sold”—the

the

majority

second

556 U.S. at 612.

factor—“the

opinion

suggests

value
that

of

the

this

materials

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,

hazardous

however

substances

discussed,

a

small,
it

for

seeks

transaction

may

to

a

product

discard.
have

containing
And

multiple

as

the

already

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.”
F.3d at 775.

142

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.
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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.

2

J.A. 1002. 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)
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At

the

guiding

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end

star

of

for

the

day,

arranger

Pg: 62 of 62

this

appeal

liability:

comes

down

the

Intent

intent.

to

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

judgment,

a

to

Consol

reasonable

and

PCS,

factfinder

as

could

we

must

decide

on

summary

that

Georgia

Power intended, at least in part, to dispose of hazardous waste
when it sold Ward Transformer its used, broken, and obsolete
transformers
auctions.

laden

with

carcinogen-ridden

oil

at

“scrapping”

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