Judges Weigh Utility's 'Intent' In Determining Superfund Arranger Liability

摘要

Appellate judges presiding over a closely watched Superfund arranger liability case keyed in during recent oral arguments on the intent of an electric utility when it sold used transformers that subsequently released polychlorinated biphenyls (PCBs), questioning arguments made by both sides over the usability of the transformers and the sophistication of the seller as well as the legitimacy of the sales. The three-judge panel of the U.S. Court of Appeals for the 4th Circuit hearing Consolidation Coal Co. v. Georgia Power Co. Oct. 30 contested arguments from Consolidation Coal and PCS Phosphate Company that sought to broadly define when a party is liable as an "arranger" under the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA). But the judges also voiced skepticism over Georgia Power's attempts to link other rulings that have dismissed sellers of various used items as arrangers to the facts in this case. And the judges weighed whether subjective intent can be used as a factor in a summary judgment ruling, or whether a trial would be necessary.