According to a district court in North Carolina, a company that sent transformers to a facility for repair could be liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), although a different company that sold transformers to the facility, which then repaired them, would not. Duke Energy Progress Inc. v. Alcan Aluminum Corp., No. 5:08-cv-460-FL (E.D.N.C. 5/6/13).

Plaintiffs sought contribution for cleanup costs at a facility that purchased, sold and repaired electrical transformers. The court previously granted the summary judgment motion of defendant Georgia Power, which had sold transformers to the site, but denied the summary judgment motion of defendant Broad River Electric Cooperative, which had sent transformers to the site for repair. The order concerns Broad River’s motion for reconsideration, which the court denied because the company failed to present the court with any new law or facts.

Still, the court decided to address the distinction between its two orders “to aid the parties’ understanding as litigation moves forward.” Explaining that the difference between a sale and a repair for purposes of CERCLA liability “is critical,” the court opined that “the circumstances of [Georgia Power’s] sales of transformers . . . showed defendant Georgia Power did not have the requisite intent to establish arranger liability under CERCLA.” The court found it important that Broad River retained ownership of the transformers during the repair process, but also pointed to other “significant evidence . . . that contributes to finding of intent to arrange for disposal,” such as retaining authority “to direct [the site] as to the specific handling of transformers while under repair.” According to the court, the record also shows “several instances in which such authority was used.”