The opinion of the court was delivered by: SAUNDRA BROWN ARMSTRONG
ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF FRED PARR COX
Fred Parr Cox has moved for summary judgment dismissing all claims against him in these consolidated actions or in the alternative for partial summary judgment. No opposition to dismissal of the claims for public nuisance, private nuisance, ultrahazardous activities, or liability under 42 U.S.C. § 9607(a)(1), (3), or (4) was raised in any papers submitted to the court, and the non-opposition to dismissal of those claims was confirmed during the hearing held on this motion on October 24, 1991. The only dispute is as to dismissal of the claim that Fred Parr Cox is personally liable as an owner or operator of a facility at which hazardous substances were disposed of under Section 107(a)(2) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA").
These actions involve claims relating to the clean-up of contaminated real property located on the Richmond, California waterfront (the "Property"). The facts relevant to this motion are largely undisputed.
On June 1, 1949, the Parr-Richmond Industrial Corporation ("PRIC") purchased the Property from the War Assets Administration. Ownership of the Property was transferred to two related companies -- the Parr Industrial Corporation ("PIC") in 1956 and the Parr-Richmond Terminal Company ("PRTC") in 1961 -- before being sold to the Levin Metals Corporation in 1981.
At the time PRIC originally acquired the Property, it was encumbered by a long-term lease between the government and the R.J. Prentiss Company ("Prentiss"). Prentiss operated a facility on a portion of the Property which ground, manufactured, and processed pesticides (the "Facility"). At that time, and through the present date, the Property has also been an active bulk cargo marine terminal. At some point, Prentiss transferred its lease to Heckathorn & Company ("Heckathorn"),
which continued to grind and manufacture pesticides at the Property until 1965.
Fred Parr Cox was at various times a minority shareholder, director, and/or officer of PRIC, PIC, and PRTC. He was never a majority shareholder of any of the corporations. Between 1949 and 1961, in his capacity as Vice President in Charge of Leasing of PRIC and then PIC, Fred Parr Cox helped to keep the books for, and to obtain major financing for, the companies' important sales and leases.
From the time PRTC acquired the Property in 1961 until 1979, when he was asked to resign and did, Fred Parr Cox was a director and PRTC's Vice President in Charge of Leasing. His actual involvement with PRTC during that period was limited to his negotiating one leasing contract, which did not involve the Facility, on PRTC's behalf.
No party contends that Fred Parr Cox at any time participated in the actual operations of the Facility or otherwise exercised control over the companies -- Prentiss and Heckathorn -- which did operate the Facility. Fred Parr Cox's only involvement with Prentiss and Heckathorn was to collect rents from Heckathorn and Prentiss from 1949 at least until 1956
and to discuss lease amendments and renewals between 1949 and 1961.
The only disputed question is whether Fred Parr Cox can be liable as an "owner or operator" of the Facility under CERCLA Section 107(a)(2).
It is well-established, however, that in certain circumstances an officer or shareholder of the corporate owner of a facility can be liable as an "operator" under CERCLA even if the traditional requirements for piercing the corporate veil are not met. See Columbia River Service Corp. v. Gilman, 751 F.Supp. 1448, 1454 (W.D. Wa. 1990); New York City v. Exxon Corp., 31 E.R.C. ...