ELR Citation: ELR 20914
No(s). 1:90cv102 (N.D. W. Va. Feb 3, 1997)

The court holds that the final purchaser of electrical transformers, and its agent, are liable as arrangers under the Comprehensive Environmental Response, Compensation, and Liability Act for polychlorinated biphenyl (PCB) contamination at the site of the transformers' ultimate disposal. The court first holds that each case in which "arrangement for disposal" is to be construed must be decided by reviewing the totality of the circumstances, on a case-by-case basis. In this case, the final purchaser's agent knew that the transformers contained significant levels of PCBs and that one of the transformers was leaking oil. He also had special knowledge of the environmental regulations governing the transport and disposal of PCB transformers. Nevertheless, he authorized his employee to assist the seller's employee in removing metal plates that identified the transformers, and he personally removed the labels that identified the transformers as containing PCBs. In addition, he authorized his employee to provide a tarp to cover the transformers and two drums of PCB-contaminated oil when they left his facility, knowing that transporting transformers and waste oil in this manner was illegal. Although he characterized his actions as merely returning goods due to their nonconformance with the conditions of the original sale, the undisputed facts conclusively establish that he did much more than return the goods. He actively assisted in concealing the ultimate disposal of hazardous waste. The court rejects defendants' argument that they were merely parties to a transaction for a useful product. Although the court found that the transformers were not at the end of their useful life when the original owner sold them to the company from which the final purchaser acquired them, the condition of the transformers has dramatically changed since then.

[A prior opinion in this litigation is published at 23 ELR 20645.]

Counsel for Plaintiff
Patrick Flately, Molly Hall, Ass't U.S. Attorneys
U.S. Attorney's Office
1100 Main St., Ste. 200, Wheeling WV 26003
(304) 234-0100

Counsel for Defendants
James West Jr., W. Henry Lawrence
West & Jones
360 Washington Ave., P.O. Box 2348, Clarksburg WV 26302
(304) 624-5501