ELR Citation: ELR 20879
No(s). 84-2086C(1) (E.D. Mo. Sep 27, 1988)

The court holds that four defendants—the person arranging to transport and dispose of hazardous waste, his corporate successor, the corporation owning a site where waste was deposited, and a corporate officer of the corporation that owned the site—are jointly and severally liable under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) for response costs incurred by the federal government and Missouri at two sites. The court first holds that the sites are facilities under CERCLA because they are areas where hazardous substances were deposited. The court holds that there was a release of hazardous substances from the sites and that the federal and state governments have incurred response costs in connection with the cleanup of the sites. The court holds that the person arranging for disposal and transport of the waste is a responsible person under CERCLA §107(a)(3) even if he did not know where the waste would be deposited or that it was hazardous. The court holds that retroactive application of CERCLA to this defendant's conduct is not unconstitutional. The court holds that the first defendant's corporate successor is also liable under CERCLA §107(a)(3). The court, referring to Missouri law, rules that the doctrine of successor liability applies to CERCLA cases. The court then holds that collateral estoppel bars relitigation of the successor liability issue, which was litigated fully and fairly by the Missouri Supreme Court. The court holds that the statutory trustees of a company that owned one of the sites when hazardous substances were disposed there are liable under §107(a)(2). The court holds that the president of this company is personally liable under §107(a)(2). The government does not have to pierce the corporate veil to impose personal liability on a corporate officer when a corporate officer who owns interest in a facility and is actively participating in its management can be held liable as an owner or operator of the facility. Finally, the court holds that defendants are jointly and severally liable for the government's response costs, since there is no reasonable basis for apportioning the harm. Joint and several liability is imposed where two or more persons cause a single and indivisible harm and each is subject to liability for the entire harm.

Counsel for Plaintiffs
Tim Duggan, Ass't Attorney General
P.O. Box 899, Jefferson City MO 65102
(314) 751-0660

Joseph Moore, U.S. Attorney General
414 U.S. Court & Custom House, 1114 Market St., St. Louis MO 63101
(314) 539-2200

Brian G. Donohue
Land & Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-5471

Counsel for Defendants
Timothy Harker
The Harker Firm
2021 K St., N.W., Ste. 310, Washington DC 20006
(202) 223-9880

Eric Rothenberg
Bryan, Cave, McPheeters & McRoberts
350 Park Ave., New York NY 10022-6022
(212) 888-1199