ELR Citation: ELR 20223
No(s). 90-2349 (E.D. La. Jun 24, 1992)

The court holds that the former parent corporation of a barge-cleaning company, which is a potentially responsible party (PRP) at a Superfund site, is not liable to the barge-cleaning company's successor parent corporation for the barge-cleaning company's liability at the site under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court also holds that because a rational trier of fact could reasonably conclude from the record that hazardous substances from the former parent corporation's barges were transshipped from its subsidiary barge-cleaning company's impoundment to the Superfund site, summary judgment on the issue of the former parent corporation's CERCLA liability is inappropriate.

The court first finds that sufficient evidence exists for a trier of fact to infer that the barge-cleaning company's waste oils were treated or disposed of at the Superfund site. The court next notes that because this case involves a suit by the sole shareholder (current parent corporation) of a settling PRP (the barge-cleaning company) against the former parent corporation, which was the sole shareholder of the barge-cleaning company, the court must assess whether to pierce the corporate veil of the barge-cleaning company to determine CERCLA liability. The court holds that there is no evidence to support a finding that the barge-cleaning company was formed to perpetrate a fraud. The court next holds that although many of the veil-piercing factors used by the Fifth Circuit in Joslyn Corp. v. T.L. James & Co., 19 ELR 20518, are applicable to this case, the circumstances are legally insufficient to warrant the exceptional equitable remedy of veil-piercing. Despite the former parent corporation's assertion of some control over the barge-cleaning company, the degree of control is insufficient to find that the barge-cleaning company was a "sham" corporation.

The court next turns to whether the former parent corporation may be liable to the current parent corporation for hazardous substances at the Superfund site that were from the former parent corporation's barges, which were disposed of at the site by the barge-cleaning company. The court finds that hazardous materials from the former parent corporation's barges were substantially the same as those subsequently deposited in the barge-cleaning company's impoundment. The facts reveal that the former parent corporation was in the business of transporting the same sorts of materials as those handled or used by the barge-cleaning company, and that the former parent corporation subsequently disposed of hazardous substances at the barge-cleaning company's impoundment. Because a rational trier of fact could either reasonably infer or not infer that hazardous substances from the former parent corporation were transshipped from the barge-cleaning company's impoundment to the Superfund site, summary judgment on that aspect of CERCLA liability is denied.

Counsel for Plaintiff
Frederick Addison
Locke, Purnell, Rain & Harrell
2200 Ross Ave., Ste. 2200, Dallas TX 75207
(214) 740-8000

Counsel for Defendant
Wayne McNeil
Lemle & Kelleher
601 Poydras St., New Orleans LA 70130
(504) 586-1241

Clement, J.