ELR Citation: 42 ELR 20051
No(s). 11-1034 (1st Cir. Feb 29, 2012)

The First Circuit affirmed a lower court decision holding a manufacturing company liable under CERCLA for response costs EPA incurred at the Fletcher's Paint Works and Storage Facility Superfund site in Milford, New Hampshire. The lower court properly ruled that the company was liable as an arranger. The company sold PCB-containing scrap material to a paint manufacturer, and the record contains ample evidence that the company viewed the scrap as waste material and that any profit it derived from selling it to the paint manufacturer was subordinate and incidental to the immediate benefit of being rid of an overstock of unusable chemicals. The facts also establish that the company purposefully entered into its arrangement with the paint manufacturer with the desire to be rid of the scrap. Though the initial arrangement may not have expressly directed the paint manufacturer to dispose of the scrap, the company certainly understood this would be the result of its actions and took the conscious and intentional step of leaving the paint manufacturer to dispose of the materials. The court also affirmed the lower court's award of certain cleanup costs to the United States. The manufacturer argued that the claims were barred by CERCLA's three-year statute of limitations. But the statute of limitations did not expire because the instant suit was a "subsequent action" under the Act.