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United States v. Mottolo

Citation: 14 ELR 20497
No. No. 83-547-D, 629 F. Supp. 56/22 ERC 1026/(D.N.H., 05/04/1984) Ruling on corporate officer liability, 11th Amendment defense

The Court rules that a corporate officer may be personally liable for response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and that the Eleventh Amendment bars a contribution and indemnification claim against a state by the defendant in a CERCLA cleanup action. Initially, the court rules that the owner of a corporation allegedly liable under CERCLA § 107 may be individually liable if personally involved in the actions giving rise to liability. Because the owner's involvement is unclear from the evidence before the court, the court denies the owner summary judgment on his liability. It also rules that one arranging for disposal of hazardous substances may be liable under § 107 whether or not he actually owned or possessed the substances. The court grants plaintiff leave to amend its complaint to properly plead that defendant also is liable under a corporate alter ego theory.

The court next rejects defendant's counterclaim alleging misrepresentations including defendant to allow the government entry to the site for cleanup action. The Federal Tort Claims Act waives sovereign immunity, but an exception bars claims based on reliance on government agents' misrepresentations.

Finally, the court rules that defendant's third-party complaint against the state for allegedly increasing the cost of the cleanup through mismanagement is barred by the Eleventh Amendment. This action is one for damages by a Delaware corporation against New Hampshire and thus falls under the Eleventh Amendment, which precludes citizens of one state from suing another state for damages in federal court. A state can waive its sovereign immunity, but statutes waiving New Hampshire's immunity in tort suits in state court do not waive its Eleventh Amendment immunity in federal court.

Counsel for Plaintiff
Douglas J. Miller, Ass't U.S. Attorney
55 Pleasant St., Concord NH 03301
(603) 225-5588

Elizabeth Yu
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2778

Counsel for Third-Party Plaintiff
Rodney L. Stark
Stark & Peltonen
67 Central St., Manchester NH 03101
(603) 627-4111

Counsel for Defendant
Lynn D. Morris
Shute, Engel & Morse
P.O. Box 278, Exeter NH 03833
(603) 778-8535

James Higgins
Sheehan, Phinney, Bass & Green
1000 Elm St., Manchester NH 03101
(603) 668-0300

Counsel for Third-Party Defendant
Edward L. Cross Jr., Ass't Attorney General
Environmental Protection Division
State House Annex, Concord NH 03301
(603) 271-3678