                               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
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.; 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    &    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
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
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
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
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 NEURO-
MEDICAL 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
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
          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 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 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
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,

                                    9
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

                                  10
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

                                  11
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

                                 12
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 NEURO-
MEDICAL 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




                                  13
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:   March 20, 2015


Before SHEDD, AGEE, and WYNN, Circuit Judges.




                                 14
Affirmed by published opinion.      Judge Agee wrote the majority
opinion, in which Judge Shedd       joined.   Judge Wynn wrote a
dissenting opinion.


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.




                               15
AGEE, Circuit Judge:

     In the early 1980s, Georgia Power, a utility company that

supplies    power     to    most     of   Georgia,       sold   many     of    its    used

electrical transformers at auction to Ward Transformer Company

(“Ward”).        These     electrical     transformers        contained       insulating

oil, and some of that oil contained polychlorinated biphenyls

(“PCBs”),    toxic       compounds    that      have   been     banned    since      1979.

Ward repaired and rebuilt used transformers, including those it

purchased from Georgia Power, for resale to meet third-party

customers’       specifications.          In    the    process,    Ward’s       Raleigh,

North Carolina, facility (the “Ward Site”) became contaminated

with PCBs.

     In    the    mid-2000s,       the    EPA    added    the    Ward    Site    to   its

National Priorities List and initiated a costly removal action.

Consolidated Coal Company (“Consol”) and PCS Phosphate Company,

Inc. (“PCS”) have borne much of that removal cost.                       They filed a

complaint     under        the     Comprehensive         Environmental        Response,

Compensation,       and     Liability      Act    (“CERCLA”)       against       Georgia

Power, contending that, as supplier of some of the transformers

to Ward, it should be liable for a contribution to those costs.

The district court granted summary judgment in favor of Georgia

Power.     For the reasons discussed below, we affirm the judgment

of the district court.



                                           16
                                        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     categories       of

“potentially responsible parties” (“PRPs”).                          Id. at 605, 608.

Briefly stated, these categories are (1) owners and operators of

a vessel or facility, (2) any person who owned or operated a

facility    at      the   time     a    hazardous      substance     is   disposed,       (3)

those persons who arrange for disposal or treatment of hazardous

substances, and (4) those who accept hazardous substances for

transport      to    disposal          or    treatment    facilities.           42    U.S.C.

§ 9607(a).          The   case     before      us   involves     the    third     liability

category,    often        termed       the   arranger     provision,      which      imposes

liability on

      any person who by contract, agreement, or otherwise
      arranged for disposal or treatment . . . of hazardous
      substances owned or possessed by such person, by any
      other party or entity, at any facility or incineration


                                               17
       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   other      person      consistent        with    the

national contingency plan.”                Id. § 9607(a)(4).            CERCLA permits a

PRP to “seek contribution from any other person who is liable or

potentially liable under section 9607(a).”                      Id. § 9613(f)(1). 1


                                   B. The Ward Site

       Ward     operated     a     business       in    which      it   purchased     used,

obsolete, or damaged electrical transformers and reconditioned

or repaired them for resale.                These types of transformers “step

down” the voltage of electricity as it moves from power plants

to end users.           The particular type of electrical transformer at

issue       here    typically       contains           an   enclosed,       vacuum-sealed

external tank, an internal iron core, and coils consisting of

copper or aluminum windings wrapped in cellulose insulation that

tightly       surround     the     core.      These         internal      parts    must    be


       1
       Though PCBs have been banned since 1979, the EPA continues
to employ CERCLA in an effort to clean PCB-contaminated sites.
See, e.g., NCR Corp. v. George A. Whiting Paper Co., 768 F.3d
682, 688-89 (7th Cir. 2014); Fla. Power & Light Co. v. Allis
Chalmers Corp., 893 F.2d 1313, 1315 (11th Cir. 1990).


                                             18
immersed in oil to work properly, and often the insulating oil

contained PCBs.

     Ward    left    some    of   the    transformers       it   purchased     on   an

outside lot.    When Ward received an order, it would then select

a transformer from the lot and recondition or rebuild it to the

customer’s 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    sometimes     significant       work      Ward    performed    on

transformers,       some    oil   spills       occurred   at     the    Ward   Site. 2

Because of PCB contamination, the EPA added the Ward Site to its

National Priorities List.          In 2004 the EPA formally initiated a

time-critical removal action, during which workers have removed

over 400,000 tons of contaminated soil.




     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.


                                          19
                       C. The Georgia Power Transformers

      When Georgia Power ceased using transformers, it sent them

to its own repair facility.              There, Georgia Power inspected each

used transformer and designated it either for repair and reuse

within the company or for disposal in a commercially reasonable

manner.     A 1974 Georgia Power bulletin provided procedures “for

disposing    of    surplus,      obsolete         or     damaged     distribution        line

transformers.”          (J.A.    1329.)            The    bulletin        refers    to     the

disposition       of     retired       transformers           as     “scrapping,”          but

clarifies that scrapped transformers are “actually sold.”                                (Id.

at   1331   (providing        instructions         for    “[w]hen        transformers      are

scrapped,     (actually        sold)”).)               The   “Scrapping         Procedure”

instructs Georgia Power employees to “conclude the disposal of

the transformers to the best advantage of the company.”                            (Id.)

      Because PCBs are regulated by the Toxic Substances Control

Act of 1976 (“TSCA”), Georgia Power had to adjust procedures

after the passage of that Act.                      Georgia Power began testing

surplus transformers for PCB concentration, with the resulting

concentration dictating what course Georgia Power pursued with

regard to a transformer.              The TSCA prohibited Georgia Power from

selling transformers with PCB concentrations at 50 parts per

million     (“ppm”)      or    more    for        continued        use    or   rebuilding.

Georgia Power therefore sent those transformers to TSCA-licensed




                                             20
smelters.           Transformers         with    less    than     50    ppm     were    either

repaired for reuse by the company or sold at auction.

       Georgia Power transferred the transformers designated for

sale to its Salvage Department, also known as the Investment

Recovery department.            Before sale, Georgia Power usually removed

the free-flowing oil from the transformers through a double-

pumping      procedure.           This     process      removed        all    oil     from   the

transformers         except   a     thin    sheen       coating    the       inside     of    the

transformers and the cores and coils. 3

       Moisture       from    the    atmosphere          can    cause        damage    to    the

internal      components       of    an     exposed       transformer          lacking       oil.

“[M]oisture [to a transformer] is basically like cancer to a

person.”          (Id. at 2211.)         Georgia Power, nonetheless, sometimes

kept       surplus    drained       transformers         uncapped        and    exposed        to

moisture prior to sale.

       Georgia Power sold used transformers in lots to the highest

bidder at auction.            Buyers placed bids on a per kilovolt-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 third-
party contractors, sold to TSCA-authorized boiler facilities, or
burned in Georgia Power’s TSCA-authorized generating plant. Oil
with less than 10 ppm was reclaimed for reuse, and oil with 10
to 49 ppm was sold as a secondary fuel. There is no issue as to
the disposition of this removed oil.


                                                21
not wish to purchase.                Georgia Power guaranteed title to the

transformers to the buyer, but made no other warranties.

       From September 1983 to October 1984, Ward successfully bid

upon       and   purchased    101     Georgia       Power    transformers         at     four

separate auctions.           Ward bid on other lots of transformers that

it did not win and on one occasion opted to take possession of

only 11 transformers despite winning a lot that contained 18.

Of     the       transformers    that        Ward     purchased,       Georgia          Power

designated        approximately      20     as    “scrap,”    indicating         that    they

needed repair.         Ward records identify the same transformers and

at least 20 others as “FAULTY,” which indicated an electrical

defect due to a short, bad wiring, or some other problem.                                (Id.

at 2215, 2219, 2222-23.) 4            Georgia Power drained the majority of

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

the    101       transformers.        These       undrained    units       all    had     PCB

concentrations        between    0    and    50     ppm,    except   one    that        had   a

concentration of 488 ppm.                 Ward’s records indicate that one of

the drained transformers still had “about 5 gals” of 17.4 ppm

PCB oil in it four years after arriving at Ward.                       (Id. at 2225.)

Ward replaced the five gallons with new oil.


       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.


                                             22
       For the 101 transformers it purchased, Ward paid from $0.77

to $3.21 per KVA for 43 units.               For another 31 units, the lot

prices ranged from $1.11 to $1.18 per KVA.                  And for the final 27

transformers, Ward paid from $1.74 to $2.16 per KVA.                        Because

transformers typically contain thousands of pounds of metals,

even broken transformers remained valuable. 5

       Ward sold all 101 transformers it purchased from Georgia

Power to third parties as working transformers.                   It “rebuilt” 80

of the transformers prior to sale.                  “[I]n most cases,” this

involved “untank[ing] the transformer and do[ing] some work to

the coils, whether [it was] reconnecting or rewinding part of

it.”        (Id.    1046;   3267-68.)        None    of     the   Georgia     Power

transformers was sold for scrap.


                     D. Savannah Electric Transformers

       In   1980,   Savannah   Electric      and    Power    Company   (“Savannah

Electric”) sold 20 transformers at auction to Electric Equipment

       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.


                                        23
Company of New York (“EECNY”).               EECNY then shipped these units

to Ward for storage until it or Ward could find a third-party

buyer.      In 2006, Savannah Electric merged with Georgia Power

with Georgia Power as the surviving entity.

      When it sold the transformers to EENCY, Savannah Electric

was   updating    its     inventory     of    transformers     by     selling    and

replacing those that contained PCBs.             To accomplish that goal it

sold transformers that “were in good shape” that it “just had no

use for.”    (Id. at 2231.)

      The 20 transformers that Savannah Electric sold to EECNY

thus were in “perfectly good working order.”                    (Id. at 2233.)

These    transformers     “had   been   in    service    and   were    simply    de-

energized and sold with no record of any problems or defects.”

(Id.)     All the units sold contained oil, with some level of PCB

concentration.      Ward performed work on some of the units to

alter obsolete voltage configurations to meet the demands of

certain     prospective    purchasers.          Ward    sold   three     units    as

“COMPLETELY REBUILT” with changed voltages, having opened the

transformers to rewind the coils.             (Id. at 2234-35, 2456.)           Ward

labeled three other transformers as “REBUILT AND GUARANTEED,”

after baking out their coils and doing other work.                        (Id. at

2235-36, 2438.)         However, all 20 transformers were functioning

units that could have been used without alteration by a third-

party purchaser with a matching KVA need.

                                        24
       Ward sold each of the 20 Savannah Electric transformers as

well    as    the    101    Georgia    Power      transformers.          The    available

records show that Ward sold the transformers for more than it

had    paid and       expended      varying    degrees     of    resources      on   those

transformers before sale.


                           E. Relevant Proceedings Below

       In    2005,    Duke    Energy     Progress,        Inc.   (“Progress,”        f/k/a

Carolina      Power    &    Light    Company)       and   Consol      entered    into   an

administrative settlement with the EPA, in which they agreed to

perform removal actions at the Ward Site and to reimburse the

EPA for removal costs.              PCS later entered a trust agreement with

Progress and Consol and contributed toward the costs of the Ward

cleanup.      Consol and PCS have each paid more than $17 million in

cleanup costs related to the Ward Site.

       In 2008 and 2009, Consol and Progress filed complaints in

the    U.S.    District      Court     for    the    Eastern     District       of   North

Carolina      against      Georgia     Power,     PCS,    and    a    number    of   other

defendants seeking contribution for response costs under CERCLA.

See 42 U.S.C. § 9613(f).                The district court consolidated the

suits into two cases, one with Consol as plaintiff and one with

Progress as plaintiff.               PCS counterclaimed against Consol and

Progress, and it cross-claimed for CERCLA contribution against

the    other        defendants,       including      Georgia         Power.      Consol,


                                             25
Progress,      and    PCS    alleged     that     Georgia       Power    “arranged    for

disposal . . . of” PCBs through its sales of used transformers

to Ward and was liable for the Savannah Electric transformers as

the successor in interest to that entity.                      Id. § 9607(a)(3).

      The parties proceeded via a test case method, in which one

defendant who had sold transformers to Ward and one defendant

who had transformers repaired by Ward volunteered to litigate

their respective liability, with discovery stayed for all other

parties.       The district court bifurcated the proceedings into two

phases: the first to determine liability under CERCLA and, if

necessary,      the    second      to    allocate       damages.         Georgia    Power

volunteered to be the test case for a selling defendant.

      After discovery, Georgia Power moved for summary judgment.

The   district       court    granted     the    motion,       finding    that     Georgia

Power    had    “show[n]      it   did    not    have    the    necessary    intent    to

create arranger liability under CERCLA.”                    Carolina Power & Light

Co. v. Alcan Aluminum Corp. (CP&L), 921 F. Supp. 2d 488, 499

(E.D.N.C.       2013).         The       court    emphasized        that     the     used

transformers were useful, valuable products from which Ward was

able to “mak[e] thousands of dollars more than what [it] paid

Georgia Power.”         Id. at 488.        At Consol’s and PCS’ request, the

court    entered      final    judgment     on     the    claims     against     Georgia

Power.



                                            26
     Consol and PCS timely appealed, and we consolidated the

appeals into the present case.               We have jurisdiction over this

appeal pursuant to 28 U.S.C. § 1291.


                                 II. Discussion

     Consol and PCS argue that the district court improperly

focused on the overall value of the used transformers and Ward’s

ability    to   profit    from    their   resell.      This,   they    contend,

overlooks the possibility that Georgia Power had a dual intent:

to gain revenue from the sales and to arrange for the disposal

of PCBs.    Georgia Power counters that it intended only to engage

in legitimate sale transactions in a competitive market and that

nothing in the record suggests its intent to dispose of PCBs.

     We review de novo the district court’s determination of PRP

status under CERCLA and grant of summary judgment.               PCS Nitrogen

Inc. v. Ashley II of Charleston LLC, 714 F.3d 161, 172 (4th Cir.

2013).     In   doing    so,     we   construe   all   facts   and   reasonable

inference in favor of the non-moving parties, which here are

Consol and PCS.          Turner v. United States, 736 F.3d 274, 280

(4th Cir. 2013).


                        A. CERCLA Arranger Liability

     What qualifies as “arranging for disposal” under CERCLA “is

clear at the margins but murky in the middle.”                 NCR Corp., 768

F.3d at 704.      At one extreme, liability plainly attaches if an

                                        27
entity enters a transaction “for the sole purpose of discarding

a used and no longer useful hazardous substance.”                              Burlington,

556 U.S. at 610.            On the other extreme, there is no liability

“merely for selling a new and useful product if the purchaser of

that product later, and unbeknownst to the seller, disposed of

the   product     in    a     way    that     led       to        contamination.”           Id.

“[B]etween      these    two    extremes”         are     arrangements         where       “the

seller has some knowledge of the buyers’ planned disposal or

whose motives for the ‘sale’ of hazardous substances are less

than clear.”      Id.        In those cases, the court must undertake a

“fact-intensive         inquiry        that       looks       beyond        the     parties’

characterization        of     the     transaction           as     a    ‘disposal’    or    a

‘sale.’”   Id.

      In Burlington, the Supreme Court considered whether Shell

Oil had arranged for disposal of pesticides and other chemical

products   by    shipping       them    to    a    wholesale            distributor    “under

conditions it knew would result in the spilling of a portion of

the hazardous substance by the purchaser or common carrier.”

Id. at 612.      The government contended that the phrase “arranged

for   disposal”     should      be     interpreted           broadly,       based     on    the

definition of the statutory term “disposal.” 6                            Id. at 611.        In


      6
       CERCLA defines “disposal” as “the discharge, deposit,
injection, dumping, spilling, leaking, or placing of any solid
waste or hazardous waste into or on any land or water so that
(Continued)
                                             28
the government’s view, Congress had included “unintentional acts

such as ‘spilling’ and ‘leaking’ in the definition of disposal”

because it intended to impose liability when entities “engage in

legitimate     sales   of    hazardous       substances    knowing        that   some

disposal   may   occur      as   a   collateral     consequence      of    the   sale

itself.”   Id. at 611-12 (footnote omitted).

     The Supreme Court rejected the government’s position.                        To

be sure, the Court acknowledged, “in some instances an entity’s

knowledge that its product will be leaked, spilled, dumped, or

otherwise discarded may provide evidence of the entity’s intent

to dispose of its hazardous wastes.”               Id. at 612.       But the Court

further concluded that “knowledge alone is insufficient to prove

that an entity ‘planned for’ the disposal, particularly when the

disposal occurs as a peripheral result of the legitimate sale of

an unused, useful product.”              Id. at 612.           To qualify as an

arranger, Shell would have had to sell the chemicals “with the

intention that at least a portion of the product be disposed of

during   the   transfer     process    by    one   or   more    of   the    methods”

within the statutory definition of disposal.                   Id. at 612.       Far

from intending for the spills to occur, Shell “took numerous




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).


                                        29
steps to encourage its distributors to reduce the likelihood of

such spills.”           Id. at 613.       Given those circumstances, Shell’s

“mere    knowledge       that    spills     and    leaks   continued    to    occur”

provided “insufficient grounds” to find that Shell had arranged

for a disposal within the meaning of § 9607(a)(3).                     Id.     Thus,

for arranger liability to be found, something more is required

than     mere     knowledge     “that      some    disposal     may   occur    as   a

collateral consequence of the sale itself.”                Id. at 612.

       Prior to Burlington, we identified four factors in Pneumo

Abex Corp. v. High Point, Thomasville and Denton Railroad Co.

that could be useful in “determining whether a transaction was

for    the    discard     of   hazardous    substances     or   for   the    sale   of

valuable materials”:

       [1] the intent of the parties to the contract as to
       whether the materials were to be reused entirely or
       reclaimed and then reused, [2] the value of the
       materials sold, [3] the usefulness of the materials in
       the condition in which they were sold, and [4] the
       state of the product at the time of transferral (was
       the hazardous material contained or leaking/ loose).

142 F.3d 769, 775 (4th Cir. 1998).                    We also recognized that

there was “no bright line” and that “[a] party’s responsibility

. . . must by necessity turn on a fact-specific inquiry into the

nature       of   the   transaction.”        Id.    (internal    quotation     marks

omitted).

       In Pneumo Abex, a parts foundry sought contribution for

cleanup costs from railroads that shipped used wheel bearings to

                                           30
the foundry and received credit for their weight against the

purchase of new bearings.                 Id. at 773.          The foundry removed

dirt, grease, and impurities from the used bearings and melted

the bearings to mold new bearings.                     In this process dust and

slag was produced, which was dumped in an area that the EPA

found to be contaminated.           Id. at 775.

       We   concluded      that     the    railroads         did    not   arrange      for

disposal of the wheel bearings, for CERCLA purposes, by sending

them   to   the    foundry.         “The   intent      of    both    parties      to   the

transaction was that the wheel bearings would be reused in their

entirety    in    the    creation    of    new   wheel       bearings,”     not   simply

disposed of as hazardous metals.                 Id.     We likened the case to

one “in which a party sells to another a material which becomes

hazardous in its use, but is contained when sold.”                        Id.

       Several factors led to that conclusion.                     The slag and dust

would have been produced “even if virgin materials were used to

make the new bearings.”             Id.    The dirt and grease were removed

“incidental       to    remolding    new    bearings,”         and    “were     not    the

hazardous materials, the metals themselves were.”                           Id.       Also,

the foundry paid for the bearings; the railroads did not pay for

disposal    of    unwanted    metal.         Id.        In    sum,    “[t]he      parties

contemplated that the bearings were a valuable product for which

the Foundry paid a competitive price.”                 Id. at 775-76.



                                           31
       Consol and PCS do not contend that the sole or even primary

purpose of the sale of the transformers was to dispose of PCBs.

On this record, Burlington would foreclose that claim.                  Instead,

Consol and PCS contend Georgia Power and Savannah Electric had a

secondary motive for the transformer sale -- to dispose of PCBs

–-   and    that   this   secondary   motive    is   sufficient       to     create

arranger liability under CERCLA.

       In   that    regard,     neither    Burlington     nor       Pneumo     Abex

foreclose    arranger     liability   as   a   matter   of    law   based     on   a

secondary intent, at least when there is a sufficient factual

basis for such a finding from the necessary “fact intensive and

case    specific”     inquiry.        Burlington,       556    U.S.    at     610.

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.



                                      32
       The   something     more     could       be    the   seller’s    “intentional

steps,” beyond what is inherent to the sale, to dispose of the

hazardous      waste.      Id.     at     611.        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   the

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

is no direct evidence that Georgia Power intended, even in part,

to arrange for the disposal of PCBs through these transactions.

Nor is there circumstantial evidence from which a reasonable

juror could infer that Georgia Power so intended.




                                           33
                                1. Direct Evidence

      Consol    and    PCS    have     pointed      to     no   direct    evidence       that

Georgia Power auctioned its transformers to Ward intending to

dispose of the contained PCBs.                What direct evidence does exist

of   Georgia    Power’s       subjective          intent    reflects      only    that     it

wished to sell its used transformers “to the best advantage of

the company” –- to recover revenue.                         (J.A. 1331.)          Although

Georgia Power’s procedures for offloading transformers refer to

“scrapping,” and even to “disposal,” it is equally clear that,

where permitted by the TSCA, Georgia Power meant those terms to

reflect   that       the   transformers        were      “actually       sold.”         (Id.)

Georgia Power may have called these sales “disposals” in its

1974 procedures bulletin, but that has limited bearing on its

intent to “dispose” of transformers as the word is construed in

CERCLA, let alone the PCBs within those transformers.

      Consol    and    PCS     argue    that       Georgia      Power’s     PCB    testing

procedure      for    used     transformers         –-     first    testing       the     PCB

concentrations and then processing the transformers differently

based on the result -- proves that one overall goal was to

dispose of PCBs.             The procedure, however, merely demonstrates

Georgia   Power’s      intent    to     comply      with     the   TSCA,    the    federal

waste   statute       that    compels    a    differential         process       based     on

products with PCB levels above or below 50 ppm.                            Georgia Power

legitimately sought to sell used transformers to its greatest

                                             34
commercial     advantage,   and    the    TSCA     circumscribed        how   Georgia

Power went about accomplishing that goal.                    Compliance with the

TSCA does not create a backdoor arranger liability factor under

CERCLA.

      In Burlington, the Supreme Court noted “the indispensable

role that state of mind must play in determining whether a party

has    otherwise      arranged    for    disposal      .     .    .    of   hazardous

substances.”       556 U.S. at 611 (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.                     The record reflects


                                         35
the   position       of    Consol    and   PCS       rests      on    speculation,       not    a

dispute over a genuine issue of material fact.


                                   a) Intent for Reuse

        The    first      Pneumo    Abex   factor         asks       whether   the     parties

intended for “the materials . . . to be reused entirely or

reclaimed and then reused.”                 142 F.3d at 775.                 Consol and PCS

argue that the PCB-contaminated oil and parts were “worthless

accouterments”         to    the     transformer          shells       that    Ward     really

wanted.        (Appellant’s Br. 39.)                Georgia Power, focusing on the

overall product, responds that Ward commercially reused all of

the transformers, selling them to third-party buyers and usually

for a profit.

        Much    of   the    parties’       disagreement          as     to    this    and     the

remaining Pneumo Abex factors turns on whether the court should

apply    the    factors      with     respect        to   the    overall       product       (the

transformers) or only the hazardous material contained within,

ignoring all other circumstances of the transaction.                                 Where, as

here, the hazardous materials are part of the overall product, a

court may consider whether those materials were necessary to the

sale, or instead, could and should have been separated.                                  As we

noted     in    Pneumo      Abex,     if    the      hazardous         materials       are     an

“incidental”         component       of    a        legitimate        sale,     then     their

inclusion in the transaction may well demonstrate nothing more


                                               36
than the seller’s intent to complete the sale of the overall

product.     Pneumo Abex, 142 F.3d at 775-76 (no arranger liability

for returning wheel bearings containing valuable but hazardous

metal that was molded into new bearings); see also, e.g., NCR

Corp., 768 F.3d at 688, 707 (no arranger liability for a paper

company who sold paper scraps containing PCBs to a recycling

plant,     where     the    PCBs        were    released         only     once    the     plant

processed the valuable scraps into usable fibers).

      On    the     other     hand,       if    the       hazardous        material       could

practicably have been excluded from the sale, that may suggest

the   seller      entered    the    transaction           with    a     further   intent      to

arrange for a disposal.             See, e.g., Cello-Foil, 100 F.3d at 1230

(recognizing       an     issue    of    fact       as    to   arranger     liability         and

reversing a grant of summary judgment where a solvent purchaser

returned reusable drums to recover a deposit but in some cases

left in the drums “unused solvents of up to fifteen gallons”).

For these reasons, the proper focus of the Pneumo Abex analysis

-- the overall product or a particular material within –- will

likely depend on the product’s construction.                             If the hazardous

materials are easily separable from the overall product, such as

a battery in a toy, it may generally be appropriate to direct

the   Pneumo       Abex     inquiry       toward         those    materials.            But   if

separation is impractical, like a coat of paint on the toy, it



                                               37
will make more sense to direct the inquiry toward the overall

product.

       At the product level in this case, there is no dispute that

Ward, the purchaser, intended to reuse the transformers to the

greatest extent possible, including as whole units.                    Ward was in

the repair and resale business; it did not operate a disposal

facility.        The record does not establish that Ward purchased the

transformers to resell for scrap.             Nor does the record establish

that the parties had any divergent intent for how Ward would

handle     the     PCB-containing     oil    and   oil-soaked        parts.         The

evidence, such as it is, simply does not support an inference

that   either      of   the   parties   entered       into    the    sale     of    the

transformers with the intent that Ward would replace the oil or

any oil-soaked parts as a matter of course.

         Ward’s later decision not to reuse the PCB oil and oil-

coated parts in some transformers does not imply that Georgia

Power had an intent to dispose of the oil when selling the

transformers.           Third-party     customer       specifications,             which

directed    Ward’s      profit   motive,      dictated       how    Ward    chose    to

process    the     transformers.      While    some    of    the    former    Georgia

Power transformers might be sold “as is, where is” to a third-

party for a reasonable commercial return, others might be sold

for a higher profit to a customer only after repair or retooling



                                        38
depending on that customer’s need.                   None of that connects to a

disposal intent for oil on the part of Georgia Power.

       Any disposal of PCBs occurred only as a result of Ward’s

later    business       judgments,      not        any     implicit          agreement       or

understanding     between       Ward   and       Georgia       Power    at    the    time    of

auction.    Nothing in the record reflects to the contrary.                                 See

NCR 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     Ward,    either      party       had    any    intent       that    the

transformers     be     scrapped       or    sold        for     parts       as     reclaimed

                                            39
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.


                                             40
higher bids.         Cf. Pneumo Abex, 142 F.3d at 775-76 (“The parties

contemplated that the bearings were a valuable product for which

the Foundry paid a competitive price.”).                          This is not a case

where the parties entered an “idiosyncratic” transaction for a

substance      for    which     there    was       no   “general      demand.”        United

States v. Gen. Elec. Co., 670 F.3d 377, 386 (1st Cir. 2012)

(“[T]he lack of a viable market for scrap Pyranol during the

relevant      period    supplies      further        proof     that   GE   did     not    view

scrap Pyranol as a legitimate and serviceable product.”).                                   In

the district court’ words, “Ward was able to resell most or all

of the transformers that it purchased from Georgia Power, after

reconditioning         and/or      reconfiguration,            making      thousands        of

dollars      more    than   what    Ward      paid      Georgia    Power,     on    resale.”

CP&L, 921 F. Supp. 2d at 498.                      That Ward repaired or rebuilt

some of the transformers was simply its business model and the

used    transformers          were,      in    essence,         its     raw      materials.

“Clearly, the transformers that Georgia Power sold to Ward had

marketable value.”          Id.

       The    record     does      not   support         the    conclusion         that    the

presence      of     PCB-contaminated          oil       and    parts      depressed       the

transformers’ value.              Consol and PCS present no evidence that

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

suggested      Georgia      Power’s      intent         to   “contract[]      away        [its]

responsibility” to dispose.              Fla. Power & Light Co., 893 F.2d at

                                              41
1318 (internal quotation marks omitted); see also Pneumo Abex,

142    F.3d    at    775    (“The       Foundry       paid     the    appellants      for     the

bearings; the appellants did not pay the Foundry to dispose of

unwanted metal.”).                The undrained transformers would not have

been    functional         without      the     oil   and    oil-coated        parts,       and   a

functional       transformer         is       intuitively        more      valuable     than      a

nonfunctional         transformer.              Georgia      Power’s       decision     to    not

render these transformers inoperable can hardly be evidence that

Georgia Power intended to dispose of PCBs.                                 For the drained

transformers, the evidence does not show that a residual PCB oil

sheen created increased costs for Ward during the repair and

rebuilding processes or, as noted above, affected the auction

price.     In short, there is no basis in the record to isolate a

negative value for the PCB-contaminated oil and parts from the

unquestionably positive commercial value of the transformers.

       Consol and PCS argue that certain factors relating to the

sales    --    that    Georgia          Power    sold      the   transformers         in    lots,

allowed       some    of    the    coils        to    be   exposed      to    moisture,       and

provided no warranties except as to title -- reflect an intent

to simply scrap the transformers to get rid of the PCBs in the

oil.      But Consol and PCS adduced no evidence that such sale

factors had any relationship to a decision to dispose of PCBs

and were not ordinary commercial terms of sale.                                The value of

the    transformers         was    in    their       ability     to   be     resold    to    meet

                                                 42
third-party customers’ orders.              Cf. NCR Corp., 768 F.3d at 704

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

business     operations,    and    they    must   take   the    bitter   with   the

sweet   of   operating     in    that    market.”).      There    simply   is   not

evidence in the record supporting the argument by Consol and PCS

that the auctions were, even in part, an intended PCB disposal

arrangement.       Accordingly, the district court’s determination as

to the Pneumo Abex “value” factor is well supported.


                                  c) Usefulness

      The third Pneumo Abex factor considers “the usefulness of

the materials in the condition in which they were sold.”                         142

F.3d at 775.       Consol and PCS argue that the residual oil “could

not by itself cool a transformer” and was “undesirable to use in

rebuilt transformers.”            (Appellant’s Br. 43.)           Georgia Power,

again, focuses on the transformers and highlights the district

court’s conclusion that “all or most continued to be used as

transformers after their sale because they had not reached the

end of their useful lives.”             CP&L, 921 F. Supp. 2d at 489.

      The PCB content thus does not appear to have factored into

the continued usefulness of the auctioned transformers.                    Consol

and   PCS    say   that   some    materials       in   some    transformers     were

discarded, but not that they had to be.                  Georgia Power did not

auction all of the used transformers that regulations permitted


                                          43
it to sell; some it reconditioned and retained itself.                                   That

decision was based not on PCB content, but on age, obsolescence,

the    need    for     additional        stock     of   the   particular        transformer

type, and the nature and extent of any needed repairs.                                  (J.A.

2201.)

       Once Ward acquired the transformers, the record does not

show    that        Ward    was    required      or     necessarily       had    to    remove

residual       oil     or    oil    sheen     containing       the    PCBs.          Customer

specifications dictated how Ward processed the transformers, and

it was able to process all of them for sale.                         Again, we find no

error in the district court’s application of this Pneumo Abex

factor.


                           d) State at the Time of Transfer

       Finally, the fourth Pneumo Abex factor addresses “the state

of the product at the time of transferral,” and particularly

whether       the    “hazardous      material         [was]   contained         or   leaking/

loose.”       142 F.3d at 775.            Consol and PCS acknowledge that the

transformers were not leaking, but conjecture that the condition

of    some     of    the     transformers        at     the   time   of    transfer      was

equivalent to a leaking transformer.                     The record, however, shows

that, as in Pneumo Abex, this is a case “in which a party sells

to another a material which becomes hazardous in its use, but is

contained when sold.”              Id.


                                              44
       There   is     no    evidence     that      any    form    of     “disposal”     under

CERCLA occurred during the transformers’ transfer from Georgia

Power to Ward.         None of the undrained transformers were leaking

oil at the time of sale because they were capped.                              CP&L, 921 F.

Supp. 2d at 498.             Nor is there any record evidence that the

drained transformers leaked or spilled in conjunction with the

sale    transfer.           As   the     district        court       found,     allegations

relating to the condition of the transformers do not “amount to

leaking at the time of sale.”                  Id. at 498-99.             Absent leaks or

some    similar       disposal      of       hazardous         substances      during       the

transfer, this factor does not indicate Georgia Power’s intent

to arrange for a disposal.                   See Pneumo Abex, 142 F.3d at 775

(noting that the hazardous metals “were in a contained form when

delivered      for    sale”).          The    district         court     did   not    err    in

concluding that the fourth Pneumo Abex factor weighed in favor

of Georgia Power.


                                       e) Knowledge

       Finally, relying on Burlington, Consol and PCS argue that

Georgia   Power’s          intent   to   dispose         can    be     inferred      from   its

knowledge      that    Ward      could       spill   PCBs        while    rebuilding        the

transformers.         The district court observed that knowledge alone

was insufficient for liability “where all other factors counsel

toward a finding that Georgia Power lacked the requisite intent


                                              45
for arranger liability.”              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       Oil   in     Burlington,       which    apparently         had     some

knowledge       “that     some    disposal       may     occur     as    a    collateral

consequence of the sale itself.”                   Id. at 612.          Shell Oil was

nonetheless found not to have sufficient intent for arranger

liability.       In contrast, the record here shows no knowledge by

Georgia Power of the disposition of the transformers (and any

PCBs) once acquired by Ward.                Given Georgia Power’s clear intent

to sell a valuable product on a competitive market, and its lack

of    specific      knowledge     regarding        how   Ward    would       process    the

transformers, the “knowledge” factor is of no aid to Consol and

PCS.

       In    sum,   Consol      and   PCS   fail    under   Burlington         to    adduce

record evidence creating any genuine issue of material fact as

                                            46
to     whether   Georgia     Power     sold    the     transformers      “with    the

intention that at least a portion of the product be disposed of

during    the    transfer    process    by    one    or   more   of    the   methods”

within the statutory definition of disposal.                     556 U.S. at 612.

The     Pneumo   Abex     factors,     whether       examined    individually      or

holistically,      also     favor   Georgia     Power.        Given    the   district

court’s “fact-intensive and case-specific” analysis, we find no

error in its award of summary judgment in favor of Georgia Power

on this issue.


                    C. Savannah Electric Transformers

       Applying the same analysis, we find the circumstances as to

the sale of the Savannah Electric transformers fall squarely on

the side of a legitimate sale and against arranger liability.

The 20 Savannah Electric transformers were in “perfectly good

working order” and “were simply de-energized and sold with no

record of any problems or defects.”                 (Id. at 2233.)       The record

appears to reflect that the Savannah Electric transformers were

operational at the time of sale and could have been used without

adjustment if they fit a particular customer’s KVA requirements.

The     record   evidence     indicates       only     that     Savannah     Electric

intended for the transformers to be reused entirely (factor 1);

that    the   transformers     retained       significant      value    (factor   2);

that the transformers were in a useful condition (factor 3); and


                                         47
that they were not leaking (factor 4).             While Ward opted to

rebuild some of the transformers, that decision was made to meet

customer orders and reveals nothing about Savannah Electric’s

intent at the time of the original sale.

     On this record, the Pneumo Abex factors counsel against

arranger   liability   and   do   not    support   the   inference   that

Savannah Electric’s intent was to dispose of PCBs.          Accordingly,

the district court did not err in awarding summary judgment to

Georgia Power.


                                  III.

     For the foregoing reasons, we find that the circumstances

of the transformer sales by Georgia Power and Savannah Electric

do not indicate the intent to dispose of PCBs and therefore do

not support arranger liability.          The judgment of the district

court is

                                                               AFFIRMED.




                                   48
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    transformers        were     in    various     stages     of    disrepair       and

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,   379     n.1   (1st     Cir.    2012).        Georgia     Power    knew    that    to

function       as    transformers          again,     its     broken     and    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    for    response       costs     under     the    Comprehensive

Environmental          Response,       Compensation,          and       Liability       Act

                                             49
(“CERCLA”).        The Supreme Court recently made clear that intent

is central to the question of arranger liability.                        Burlington N.

&   Santa   Fe     Ry.   Co.   v.   United       States,   556    U.S.      599,    609-13

(2009).     This Court has long made equally clear that “subjective

states      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.                             Viewing

the   evidence      in   the    light   most      favorable      to   the    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

                                            50
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.    1992)     (stating   that   because   CERCLA     is    a    remedial

statute,     it   must    be   “construed      liberally”    to     achieve       its

purpose).      This remains true even if faithful application of

CERCLA may, at times, yield seemingly harsh results.                  Cf. Matter

                                       51
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    to    this   case    is       CERCLA’s     arranger     liability

provision.        Specifically,     among       the   “covered    persons”    liable

under CERCLA for recovery costs are persons who “arranged for

the    disposal    .   .   .   of   hazardous         substances.”       42   U.S.C.

§ 9607(a)(3).        “[A]rranger liability was intended to deter and,

if necessary, to sanction parties seeking to evade liability by

‘contracting away’ responsibility.”               Gen. Elec. Co., 670 F.3d at

382.    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

                                           52
“arrange” and that an arranger must therefore intend, at least

in     part,   to    dispose            of    a        hazardous        substance       for    CERCLA

liability to attach.                Arranger liability thus turns on a fact-

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

analysis       rarely      appropriate                  for      summary       judgment.          See

Charbonnages,        597       F.2d          at        415.       Not    surprisingly,          then,

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

trial     culminating          in       “507           separate     findings       of    fact     and

conclusions of law.”                556 U.S. at 605.                    On appeal, the Ninth

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

the    purpose”      of    Shell          Oil’s          transactions.            Id.    at    606-07

(emphasis added).              Nevertheless, the court affirmed the trial

courts     holding        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      of    mind’”            plays          an   “‘indispensable         role’”    in

determining         whether         a        party          qualifies      as      an      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.

                                                       53
       In Cello-Foil, a solvent company shipped solvents in re-

usable     drums,    charging           customers       a    deposit        that        would    be

refunded    upon     the       drums’    return.         100      F.3d   at    1230.            Many

customers     returned          drums     with      residual        amounts        of     solvent

inside.     Id.     “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     the     drums    onto      the    ground.          Id.        But      nothing

indicated    that        the    customers        knew       how    the    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.                                       Id.      The

district     court        granted        summary        judgment         to    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           amounts     of        hazardous

substances remaining in those drums.”                        Id. at 1233.            The Sixth

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

whether    the     customers       faced      arranger       liability        under       CERCLA.

Id. at 1230.

                                              54
      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.’”                             Id. at

1234 (quoting Charbonnages, 597 F.2d at 415).                        Even though, in

the   eyes     of    the   court,    the    customers’           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”)     and   to    draw     all

reasonable inferences in their favor.                       Garofolo v. Donald B.

                                           55
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         motion      for    summary

judgment should have been denied.                   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    of    the

transformers as “scrapping” and “disposing of” them.                          J.A. 1331.

And    it   sold    the    transformers      with    no    minimum         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
(“ppm”)    PCB    oil    in    it    after    arriving       at   Ward       Transformer.

Others were not drained at all.                   J.A. 2225.          In fact, though

regulations      under    the       Toxic    Substances       Control       Act       of   1976

(“TSCA”)     prohibited        Georgia      Power    from     selling        transformers

containing      greater       than    50    ppm   PCB    oil,     Ward      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         oil      contained        in

Georgia Power’s transformers with new oil.                    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,

                                             57
e.g., Gen. Analytics Corp. v. CNA Ins. Cos., 86 F.3d 51, 54 (4th

Cir. 1996) (citation omitted) (“[D]etermining intent is fact-

intensive, 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    intended        as   a   way    of    getting       rid    of

hazardous materials.             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       “scrapping”     to     describe      its    treatment       of       the

transformers       it     sold    to   Ward    Transformer.             It   is   true    that

Burlington        Northern       instructs         courts    to    look       “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 strict-

liability provisions.”             556 U.S. at 610.          However, this does not

                                              58
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.                   Pneumo Abex, 142 F.3d at 775

(citations omitted).           Contrary to the majority opinion, applying

the   factors     set    out     in    Pneumo         Abex    do    not   support     the

determination     that     the     intent       of    these      transactions   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 PCB-

                                           59
tainted parts.        This stands in stark contrast to the pesticides

at issue in Burlington Northern, which were an “unused, useful

product” in their present condition.                 556 U.S. at 612.

       Regarding      the   second    factor—“the         value   of    the   materials

sold”—the      majority     opinion    suggests         that   this     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,   however    small,       for    a     product      containing   the

hazardous      substances      it    seeks    to    discard.        And    as    already

discussed,       a    transaction       may        have    multiple       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.”                             142

F.3d at 775.         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.


                                         60
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.        J.A. 1002. 2


     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)
                                   61
       At   the    end    of    the    day,     this      appeal    comes      down   to   the

guiding     star     for       arranger       liability:        intent.          Intent    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         to    Consol     and      PCS,    as   we    must      on    summary

judgment,     a    reasonable         factfinder       could       decide    that     Georgia

Power intended, at least in part, to dispose of hazardous waste

when it sold Ward Transformer its used, broken, and obsolete

transformers       laden       with   carcinogen-ridden             oil   at    “scrapping”

auctions.     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.


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