ELR Citation: ELR 20659
No(s). 91-2382-GTV (D. Kan. Oct 26, 1994)

The court holds that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) preempts an Oklahoma statute limiting a dissolved corporation's capacity to be sued. The court follows what it perceives to be a "clear trend" among courts to construe CERCLA to supersede Federal Rule of Civil Procedure 17(b) and to preempt state law. Moreover, Congress intended to hold responsible parties liable for cleanup costs notwithstanding any other provision or rule of law, thus to hold otherwise would allow corporations to escape CERCLA liability simply by dissolving before the government brought suit. The court holds that the dissolved corporation was not "dead and buried" for purposes of precluding the imposition of CERCLA liability, because the corporation's assets included the right to receive annual payments owed to it and a former shareholder continued to receive similar payments. The court also holds that even if Oklahoma law prohibits direct action against stockholders for the corporation's debt, the dissolved corporation's majority shareholder could be held personally liable for environmental cleanup costs. She is alleged to have been responsible for policies and practices with regard to disposal of hazardous wastes. The court denies a motion to stay the action pending resolution of an unrelated case presenting similar issues, because no significant benefit would arise from awaiting the outcome of the other action, the third-party defendants will not suffer inordinate hardship by going forward with both cases, and the third-party complainant is not a party to that case.

Counsel for Plaintiff
David R. Tripp, Richard L. Green
Stinson, Mag & Fizzell
1201 Walnut St., Ste. 2800, P.O. Box 419251, Kansas City MO 64106
(816) 842-8600

Counsel for Defendant
James T. Price, Mark A. Thornhill
Spencer, Fane, Britt & Browne
1400 Commerce Bank Bldg.
1000 Walnut St., Kansas City MO 64106
(816) 474-8100