ELR Citation: ELR 21486
No(s). s. N 87-0030 C, N 89-0132 C (E.D. Mo. May 16, 1991)

The court holds that a dissolved waste oil company and its president are primarily liable for governmental response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and an energy company that purchased the waste oil company's assets is liable under CERCLA in accordance with successor liability doctrine. The court first holds that the successor company had a full and fair opportunity to be heard and to cross-examine witnesses, even though it was absent from the liability trial against the predecessor company. The successor company's absence was of its own doing, and no procedural opportunities were available at the first trial that were not available at the second trial. Further, the successor company's recalcitrance required the court to sever a previously consolidated action and to expend extra time and money for two separate trials. The court also holds that the plaintiff's late submission of exhibit and witness lists did not violate the court's local rules or prejudice the successor company. Turning to the merits, the court holds that the predecessor company is liable under CERCLA §107(a)(2) as an owner or operator of a facility at which hazardous substances were disposed. The evidence demonstrates that the predecessor company was the owner of the tanks, maintained control over them, and was the sole user of the tanks during the relevant period. The court also concludes that the predecessor company's president was directly responsible for all of the company's operations at the time of disposal and possessed ultimate authority to control the disposal of the hazardous substances. Thus, the court holds that the predecessor company's president is a liable person under CERCLA §107(a)(2), which defines both individuals and corporations as "persons" and does not exclude corporate officers or employees. That the predecessor company's capacity to be sued is contingent on Delaware law, which provides that a dissolving corporation is continued and thus liable for three years after dissolution, is no bar because this action was filed within three years after dissolution and before a complete winding down and distribution of assets. The court next holds that the successor company is liable under CERCLA. The successor retained the same employees and management, operated out of the same physical facilities, continued the same waste-hauling business, held itself out to the public as the same company, and retained almost all of the operating assets of the predecessor company. That the successor did not retain the same officers or directors is not fatal since these other factors are present. Finally, the court holds that the predecessor company, its president, and the successor company are liable to a cross-claimant for contribution under CERCLA §113(f).

Counsel for Plaintiff
Joseph Moore, Ass't U.S. Attorney
414 U.S. Court and Custom House
1114 Market St., St. Louis MO 63101
(314) 539-2226

Robert Foster, Wendy E. Wagner
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Bradford A. Brett
Brett, Erdel, Van Matre, Tanzey & Hamlett
103 W. Monroe, Mexico MO 65265
(314) 581-5280

J. Kent Lowry
P.O. Box 1069, Jefferson City MO 65102
(314) 636-8135

David A. Oliver
P.O. Box 977, Columbia MO 65205
(314) 443-3134