In Consolidated Coal Company v. Georgia Power Company,the Fourth Circuit recently applied the same four part test used by trial court (and blogged about here) to hold that the sale of a used product containing PCBs would not give rise to arranger liabiity under Section 107(a)(3) of CERCLA.  The appeals court reaffirmed the basic proposition that selling a used product that contains hazarous substances which eventually will be disposed is not sufficient to establish arranger liability:

Anytime an entity sells a product that contains a hazardous substance, it also ‘intends’ to rid itself of the hazardous substance in some metaphysical sense.  But intent to sell a product that happends to contain a hazardous substance is not equivalent to intent to dispose of a hazardous substance under CERCLA.  For arranger liability to attach, there has to be something more.

Precisely what beyond metaphysics is needed to establish arranger liability seems to be pretty metaphysical in the majority’s opinion: “The something more could be the seller’s ‘intentional steps,’ beyond what is inherent in the sale, to dispose of the hazardous waste.”  In the end, the majority says there must be a “fact-intensive” inquiry into the nature of the transactions.  Noting that a grant of summary judgment is rarely appropriate to resolve fact intensive issues such as intent, one of the appellate judges lodged a dissent.

In the end, after all the vague verbal formulations, the courts on this issue all seem to follow an unstated rule which I have recited before:  a party will be held liable if it sells a used product or waste that cannot be used or won’t be used as delivered without first causing the release of a hazardous substance.