ELR Citation: ELR 21352
No(s). 90-2325-V (D. Kan. Mar 12, 1992)

The court holds that a dissolved corporation with collectible undistributed assets that previously operated a site contaminated by asbestos waste may be sued for the site cleanup costs by the owner of the site under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court adopts the Utah district court's conclusion in United States v. Sharon Steel Corp., 18 ELR 20242, that CERCLA supersedes the Fed. R. Civ. P. 17(b) requirement that a corporation's capacity to be sued be determined by state law, and so preempts state laws governing the capacity of dissolved corporations. The court holds that CERCLA actions clearly can be brought against a "dead" but "unburied" corporation that is dissolved but still has undistributed assets. Because no determination has been made as to the financial status of the dissolved corporation and its successor, the court denies motions for summary judgment and dismissal of the suit. The court further holds that CERCLA does not preclude the site owner from seeking contribution when asbestos was disposed of at the site, and that the dissolved corporation and its successor are jointly and severally liable under CERCLA.

Counsel for Plaintiff
Elizabeth Nay
Lewis, Rice & Fingersh
One Kansas Pl., 1200 Main St., Ste. 3800, Kansas City MO 64105
(816) 421-2500

Counsel for Defendants
Roger Stanton
Stinson, Mag & Fizzell
7500 W. 110th St., Overland Park KS 66210
(913) 451-8600