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United States v. Mexico Feed & Seed Co.

United States Court of Appeals for the Eighth Circuit

June 8, 1992, Submitted ; November 16, 1992, Filed

No. 91-3085, No. 91-3090

Opinion

 [*482]  BEAM, Circuit Judge.

This is an appeal from a district court judgment finding Moreco Energy, Inc. (Moreco), Pierce Waste Oil Service, Inc. (PWOS), and Jack Pierce [**3]  (Pierce) jointly and severally liable under 42 U.S.C § 9607 1 for clean-up costs of $ 1,024,321.79 plus prejudgment interest. Moreco, PWOS, and Pierce also appeal the court's judgment for James Covington and Mexico Feed and Seed Company (Mexico) on their 42 U.S.C. § 9613(f) cross-claim for a contribution of $ 36,500 to their response costs.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We affirm in part and reverse in part.

 I. BACKGROUND

James Covington owned a 53-acre tract in Audrain County, Missouri. He used three acres of the tract as the business offices of Mexico, of which he is president. During the mid-1960s, Jack Pierce, the president and owner of PWOS, a waste oil hauling company, approached Covington about putting some tanks on Mexico's premises.  [**4]  PWOS intended to store waste oil in these tanks, until enough was collected to haul to its Springfield, Illinois, processing plant. Pierce and Covington entered into an oral lease, allowing PWOS to place four tanks on a 40' by 40' parcel for $ 150 a year. That parcel is the focus of this litigation.

PWOS actively used the tanks until 1976. After that time PWOS stopped using them and allowed them to fall into disrepair. Rent was paid only through May, 1975. At least once after 1976, PWOS pumped one of the tanks out after Covington complained it was leaking. Neither Mexico nor Covington ever used the tanks for their own purposes nor did they accept ownership of the tanks in lieu of rent. No third party ever used the tanks, although once several people were arrested for trying to remove oil from the tanks.

During the time PWOS used the tanks, it hauled oil to the tanks from numerous clients who were later found to have  [*483]  PCBs 2 at their sites. PWOS never tested the oil for PCBs. 3 Oil was spilled around the tanks while PWOS trucks loaded and unloaded material. After PWOS stopped using the tanks, they developed holes which allowed rain and snow to accumulate in the tanks and oil residue [**5]  to ooze out. PWOS never cleaned the sludge out of the tanks.

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980 F.2d 478 *; 1992 U.S. App. LEXIS 29932 **; 23 ELR 20461; 35 ERC (BNA) 1761; 24 Fed. R. Serv. 3d (Callaghan) 1032

United States of America, Appellee, v. Mexico Feed and Seed Company, Inc.; James F. Covington, Individually; Mary J. Covington; James F. Covington, doing business as Mexico Feed and Seed Company, Appellees, Jack Pierce, Individually and as a Director of Pierce Waste Oil Service; Pierce Waste Oil Service, Inc.; Martin J. Pierce, a Director of Pierce Waste Oil Service, Inc., Moreco Energy, Inc., Appellant. United States of America, Appellee, v. Mexico Feed and Seed Company, Inc.; James F. Covington, Individually; Mary J. Covington; James F. Covington, doing business as Mexico Feed and Seed Company, Appellees, Jack Pierce, Individually and as a Director of Pierce Waste Oil Service; Pierce Waste Oil Service, Inc., Appellants, Martin J. Pierce, a Director of Pierce Waste Oil Service, Inc.,

Prior History:  [**1]  Appeals from the United States District Court for the Eastern District of Missouri. District No. N87-0030C. George F. Gunn, Jr., U.S. District Judge.

CORE TERMS

tanks, corporate successor, continuation, oil, costs, responsible party, contamination, purchaser, successor, purposes, seller's, parties, site, hazardous, successor liability, network, purchasing corporation, hauled, trucks, district court, notice, mere continuation, attorney's fees, substituted, collection, ownership, benefits, evaded, cases, clean

Environmental Law, Hazardous Wastes & Toxic Substances, Cleanup, CERCLA & Superfund, General Overview, Enforcement, Cleanup Costs, Potentially Responsible Parties, Operators & Owners, Cost Recovery Actions, Strict Liability, Business & Corporate Law, Joint Ventures, Successors, Governments, Legislation, Interpretation, Mergers & Acquisitions Law, Liabilities & Rights of Successors, Torts, Vicarious Liability, Corporations, Predecessor & Successor Corporations, General Business Considerations, De Facto Mergers, Mere Continuation, Civil Procedure, Appeals, Standards of Review, De Novo Review, Trials, Jury Trials, Province of Court & Jury, Administrative Proceedings & Litigation, Defenses, Multiple Defendants, Contribution, Attorney Fees & Expenses, Basis of Recovery, Statutory Awards, Remedies, Costs & Attorney Fees, Contribution Actions, Damages