ELR Citation: ELR 20354
No(s). 90-148-S (D.N.H. Aug 23, 1991)

The court rules on several pretrial motions concerning the liability of corporate officers under the Comprehensive Environmental Response, Compensation, and Recovery Act for contamination of the Savage Well Superfund site in Milford, New Hampshire. The court first holds that the executrix for the estate of a potentially responsible party, who died during the pendancy of this action, is properly substituted as a party to this action. No authority has been introduced that suggests that either the federal or state claims against the deceased were extinguished on his death. The court next denies the summary judgment motion of an individual defendant, formerly sales manager and vice president for sales of a corporate defendant, because factual issues regarding the individual's operational liability exist. The individual's assertions of nonresponsibility and control are countered by the corporate defendant's former manufacturing manager, whose affidavit implicates the individual in the control of the hazardous waste generated by the corporate defendant. The court next denies the current owner and operator's motion for summary judgment on the issue of liability. The evidence shows that the owner's stewardship of the site has involved more than the mere passive ownership of stock shares. The owner sold assets formerly used in operations at the site to a third party, approved his own election as director, president, and chairman of the newly owned corporation, and sold a division of the corporation.

Moreover, the owner is the sole owner of the company that controls the contaminating facility, he purchased the facility with full knowledge of its environmental problems, and he has exerted and apparently maintains the power to exert a high degree of control both over the facility and the corporate entities that own it. However, the court notes that because no determination of liability has been made in this litigation, counter motions for summary judgment on the issue of liability are premature and are denied.

Counsel for Plaintiff
Thomas S. Burack, Gregory W. Swope, Daniel J. Lynch
Sheehan, Phinney, Bass & Green
P.O. Box 3701, Manchester NH 03105
(603) 668-0300

Counsel for Defendants
Steven J. McAuliffe
Gallagher, Callahan & Gartrell
214 N. Main St., Box 1415, Concord NH 03302
(603) 228-1181

T. David Plourde
Devine & Nyquist
66 Hanover St., Box 1540, Manchester NH 03105
(603) 668-5888