Are “useful products” subject to CERCLA liability?

No.  Congress did not intend CERCLA to target legitimate manufacturers or sellers of useful products.  Therefore, if the material at issue is “a useful product,” then it is not waste and not subject to CERCLA.   The status of a substance as hazardous does not preclude it also being a useful product.  Selling hazardous substances as part of a complete useful product does not generally make a party a responsible person.  Neither does selling a useful ingredient in a manufacturing process.  

The inquiry as to whether the useful product defense defeats CERCLA liability, like the question of arranger liability, is a fact-specific inquiry.  For example, the characterization of a transaction as a sale does not automatically mean that it is not in fact an arrangement for disposal.  On the other hand, in United States v. American Cyanamid Co., Inc., the district court noted that “the useful product defense is not applicable when the product is deemed to be waste and of no further use to the seller and when it can be shown that the seller’s motivation was to get rid of the product, even though the buyer makes further use of the product and pays valuable consideration for it.”    Oftentimes, the hard cases occur when a company uses the by-products of its main manufacturing process, or sells them for use by others (i.e., when it uses waste products as the raw material for further processing). 

In Tex Tin Corp. v. United States, the parties disagreed on whether Dow’s sale of HCL to the operators of the Tex Tin site constituted sales of a useful product or an arrangement for disposal.   The court held that the HCL was a useful product based upon evidence that: (1) Tex Tin purchased the HCL from Dow for ore reduction and ferric chloride production; (2) Dow produced HCL as a co-product of other chemical processes, and that was sold to other customers besides Tex Tin; and (3) the HCL was not waste, that had been used or spent, or for which Dow was otherwise looking to dispose of it.

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