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McFarland v. Kempthorne

ELR Citation: 38 ELR 20255
Nos. No. 06-36106, (9th Cir., 10/02/2008)

A district court denied a company's motion for partial summary judgment that it is not liable for response costs incurred at a former metal smelting facility. The facility sought response costs from the company under §107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), arguing that the company arranged for the disposal of hazardous waste. Conversely, the company argued that it sold to the facility a useful material from which nickel could be recovered and thus arranger liability could not be imposed. But the company sold the spent nickel catalyst for much less than its market value. Thus, a reasonable fact finder could conclude that the sale was actually an arrangement for the treatment or disposal of a hazardous substance. The company also argued that the amount of nickel at the site attributable to the company did not cause the facility to incur response costs. But material issues of fact remain as to the final resting place and concentration of the spent nickel catalyst at the site. And although the U.S. Environmental Protection Agency (EPA) did not require a response to nickel at the concentration found, CERCLA liability does not require a contaminant to be listed in EPA's record of decision.