August 17, 1993, the EPA informed Housewares that soil samples taken from the Antrim site contained unacceptable levels of hazardous materials and indicated that removal of the contaminated soil would be necessary. The letter stated that the cleanup “must be performed pursuant to an administrative order.” Record at 343. After a meeting between the EPA, the New Hampshire Department of Environmental Services (DES), and Housewares, the EPA on October 1, 1993, formally delegated to the DES the responsibility of overseeing the cleanup efforts at the Antrim site.
On October 8, 1993, Housewares filed a complaint in the United States District Court for the District of New Hampshire against David Hurlin and Peter Boorum, who were also PRPs with regard to the Antrim site. Housewares sought contribution and indemnification pursuant to CERCLA, New Hampshire statute, and common law for the expenses it had incurred as a result of the remediation efforts.
On December 2, 1993, the DES sent an “Environmental Assessment” to Housewares which outlined certain areas of concern which needed further investigation. This assessment letter noted that state statutes and regulations impose strict liability for costs relating to the remediation of a contaminated site upon any party that directly or indirectly owns or controls a facility where hazardous wastes have been generated or improperly disposed. The DES also advised Housewares that it was responsible for any costs incurred as a result of the cleanup, and would have to repay the EPA’s past costs as well.