Sale of a Usable Waste Defense — Another Instance of the Unstated Rule of CERCLA Liability

Extending its string of CERCLA PCB losses in the Midwest, NCR Corporation was recently found liable for contribution based on its sale of waste scrap from its manufacture of carbonless copy paper in Michigan.   In Georgia-Pacific v. NCR Corporation , the federal court rejected NCR’s claim that it had merely had sold a useful product when it sold waste resulting from its carbonless copy paper.   Instead, the court found that NCR had arranged for the disposal of a hazardous substance when it continued to sell waste scrap to mills after it learned that the scrap contained PCBs which the mills would discharge to surrounding waters in reprocessing that scrap.

For over a year now, I have suggested (here and here) that the cases involving a defense to arranger  liability based on the sale of a usable waste defense can virtually all be explained by an unstated rule:  a party will be held liable if it sells a waste that cannot be used or won’t be used as delivered without first causing the release of a hazardous substance.  The NCR decision easily fits the pattern of this unstated rule, since the Court found that NCR knew that the waste scrap it was selling to mills could only be used after it was reprocessed — which resulted in the release of PCBs.