Benjamin Franklin famously said that nothing in this world is certain, except death and taxes. A recent decision from the Southern District of Ohio ruled that in some circumstances, not even death can save a party from CERCLA liability.
In Garrett Day, LLC v. International Paper Co., No. 3:15-CV-36, 2019 WL 1331680 (S.D. Ohio Mar. 25, 2019), several parties fought over who should pay for the expensive cleanup of a former paper mill that operated for 100 years in Dayton, Ohio. The site contained several hazardous substances like asbestos, trichloroethylene, polycyclic aromatic hydrocarbons and polychlorinated biphenyls. The current owner of the site brought a CERCLA claim and a similar state law claim against former owners and operators who may have contributed to the contamination.
Congress enacted CERCLA with the broad remedial purpose of facilitating prompt cleanup of hazardous waste sites and shifting the cleanup costs to those responsible for the contamination. Congress cast the liability net wide to capture all potentially responsible parties.
Several parties attempted to escape liability, however, arguing on summary judgment that they were “dead and buried.” In this context, “dead” means a company or entity that has been dissolved. “Dead and buried” means a company or entity that has been dissolved and its assets stripped and distributed. The parties argued that they were not the type of entity that could be liable under CERCLA.
Although other courts have found otherwise, the Southern District of Ohio court found that being "dead and buried" is not enough to escape liability. “Given CERCLA’s broad remedial purpose, it is unlikely that Congress intended to exclude dissolved legal entities from liability.” The court also agreed, at least at the early stages of litigation, that it was possible that there were old insurance policies that might help pay for the cleanup, or that the plaintiffs might be able to go after the business successors.
Being "dead and buried" was enough to escape liability under Ohio’s state law. This was no doubt small comfort to the "dead" entities facing CERCLA liability.