Amicus Curiae Brief — Northeastern Pharmaceutical & Chemical Co. v. United States

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, i SEP. 9 1987

No. 87-63 JOSEPH F. SPANIOL, JR

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

NORTHEASTERN PHARMACEUTICAL AND

CHEMICAL COMPANY, INC., et al.,

‘ Petitioners,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF OF CHEMICAL LEAMAN TANK LINES, INC.,

THE KENDALL COMPANY,

GENERAL DYNAMICS CORPORATION, AND

NATIONAL TANK TRUCK CARRIERS

ASSOCIATION, INC.,

AS AMICI CURIAE IN SUPPORT OF

THE PETITION FOR CERTIORARI

STEVEN A. TASHER

JOHN P. DEAN *

STEVEN M. OSTER

DONOVAN LEISURE NEWTON

& IRVINE

1850 K Street, N.W., Suite 1200

Washington, D.C. 20006

(202) 862-4700

Attorneys for Amici Curiae

Chemical Leaman Tank Lines,

Inc.

The Kendall Company

General Dynamics Corporation

National Tank Truck Carriers

* Counsel of Record Association, Inc.

ERASE TEE LEELA RE TELE LILO oe

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

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- QUESTION PRESENTED

The petition for certiorari presents several questions

for review. Amici curiae filing this brief urge the Court

to grant the petition with respect to the fourth question

presented, which may be stated as follows: Whether

merely holding a corporate office, and thereby possessing

some authority over the corporation’s waste handling

policies, subjects an individual officer to civil liability

under section 7003(a) of the Resource Conservation and

Recovery Act, 42 U.S.C. § 6973(a), for acts undertaken

by other corporate employees without the officer’s knowl-

edge, participation, or authorization.

(i)

OS SS Moe

“TABLE OF CONTENTS

Page

a, | i

TABLE OF AUTHORITIES ........... laiilacantiesdiidsbbkeisetana iv

INTEREST OF AMICI CURIAE ....W0000..0.0220..22002200222---- 1

a iltias sctelistndenecibarepensnkbaimnevnsseeceasenanace 2

REASONS FOR GRANTING THE WRIT .................... 3

I. Imposing RCRA Liability On Michaels Solely

On The Basis Of His Corporate Office Is In-

consistent With Well Settled Principles Recog-

nized In Virtually Every Other Circuit ............... 3

II. Neither RCRA Nor Its Legislative History

Supports The Eighth Circuit’s Deviation From

The General Rule Of Officer And Shareholder

ES SRE TE TE CED 8

III. The Authority Relied Upon By The Court Of

Appeals Does Not Support Imposition Of Lia-

Neen oa cnceaeecencnsesepecnaceno sees 11

ET iii iblnatatthtieaiesnoncenstenconatescosencnssessnucnmvcccneccee== 13

(iii)

TABLE OF AUTHORITIES

Cases:

Donsco, Inc. v. Casper Corp., 587 F.2d 602 (3d

(| NRE Nemes rie De BEATE. AS eS ae aS

Escude Cruz v. Ortho Pharmaceutical Corp., 619

ps Bo eo et Re | EE eee eee

Hagemeyer Chemical Co. v. Insect-O-Lite Co., 291

et EE st Rene nen eet <I

Lobato v. Pay Less Drug Stores, 261 F.2d 406

6 Re RE DFR See eae

Marks v. Polaroid Corp., 237 F.2d 428 (ist Cir.

1956), cert. denied, 352 U.S. 1005 (1957) ........

Mozingo v. Correct Mfg. Corp., 752 F.2d 168 (5th

+ RRR RR REAL RI ee

Musikiwamba v. ESSI, Inc., 760 F.2d 740 (7th

Ss Ie citetihicnceiicliphceidataconnihnia tennant nticiiecnicanlhbtiiciecn

Orthokinetics, Inc. v. Safety Travel Chairs, Inc.,

806 F.2d 1565 (Fed. Cir. 1986) —..........020222000002...

Patel v. Wargo, 803 F.2d 632 (11th Cir. 1986)...

State of New York v. Shore Realty Corp., 759

F.2d 1032 (2d Cir. 1985)

Tillman v. Wheaton-Haven Recreation Assn., Inc.,

GET Fe RAGE CG Ge, BCID acca csescncss..c............

Transgo, Inc. v. Ajac Transmission Parts Corp.,

768 F.2d 1001 (9th Cir. 1985), cert. denied,

oe ee SB RE RS rere omen

United States v. Johnson & Towers, Inc., 741 F.2d

662 (3d Cir. 1984), cert. denied sub nom. Angel

v. United States, 469 U.S. 1208 (1985) ...0000..

United States v. Pollution Abatement Services of

Oswego, Inc., 763 F.2d 183 (2d Cir.), cert. de-

nied sub nom. Miller v. United States, 106 S. Ct.

United States v. Price, 523 F. Supp. 1055 (D.N.J.

1981)

United States v. Van Diviner, 822 F.2d 960 (10th

SDs Sa ERTS area hor rien asitire ear rmcstrr. oe omar ence

United States v. Ward, 676 F.2d 94 (4th Cir.),

- cert. denied, 459 U.S. 835 (1982) . ’

TABLE OF AUTHORITIES—Continued

Statutes: Page

REAL ER RRR OF Unie i psen errant ana eae 9

a oa nsienlinensepnianlinnias aaidiaealiaieadnae 9

RE I II scncesinianssniietianiicnigninbiceipenniatinn 12

29 U.S.C. § 203 (d) 6

a ssesdoanionen sien Rarer AEE 12

42 U.S.C. § 6901 et seq. .... ia 2

| een 8

A rcs psnbhbenanpebeinbnieas 11

42 U.S.C. § 6973 (a) .... ...8, 8, 9, 10, 12

Rc OES ANN et SOE 7, 12

Legislative Materials:

H.R. Rep. No. 198, Part I, 98th Cong., 2d Sess.

(1983), reprinted in 1984 Code Cong. & Ad.

SEED -snisidhiaccihauieesdbaacenindeintaneninaamatenmniaiiictediibietialaibiinias 10

S. Rep. No. 172, 96th Cong., 2d Sess. (1979),

reprinted in 1980 Code Cong. & Ad. News........ 9,10

Miscellaneous:

3A Fletcher Cyc. Corp. § 1137 (Perm. Ed.) ........ 6

rare

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re ral

IN THE

Supreme Court of the Wuited States

OCTOBER TERM, 1387

No. 87-63

NORTHEASTERN PHARMACEUTICAL AND

CHEMICAL COMPANY, INC., et al.,

Petitioners,

UNITED STATES OF AMERICA,

Re ndent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF OF CHEMICAL LEAMAN TANK LINES, INC.,

THE KENDALL COMPANY,

GENERAL DYNAMICS CORPORATION, AND

NATIONAL TANK TRUCK CARRIERS

ASSOCIATION, INC.,

AS AMICI CURIAE IN SUPPORT OF

THE PETITION FOR CERTIORARI

INTEREST OF AMICI CURIAE

Chemical Leaman Tank Lines, Inc., The Kendall Com-

pany, and General Dynamics Corporation are corpora-

tions which, in varying degrees, handle or have in the

past handled solid or hazardous wastes and hence are

subject to regulation under the Resource Conservation

and Recovery Act, 42 U.S.C. § 6901 et seg. (“RCRA”).

The National Tank Truck Carriers Association, Inc., is

a trade association whose members include companies

which, at times, handle or transport solid or hazardous

wastes and hence are subject to regulation under RCRA.

The Eighth Circuit’s ruling in this case would impose

civil liability under RCRA upon persons solely by virtue

of their being officers or shareholders of a corporation.

Such persons could suffer liability in the absence of

personal involvement in or awareness of the acts or omis-

sions giving rise to the corporation’s liability. Amici

believe that this rule is erroneous as a matter of law.

Moreover, it conflicts with the well-established rule rec-

ognized in other Circuits which precludes the imposition

of personal liability upon corporate officers and share-

holders for corporate acts which they neither committed

nor authorized. If left undisturbed, the Eighth Circuit’s

rule will be a formidable disincentive to holding corpo-

rate office. It will be extremely difficult for corporations

which handle solid or hazardous waste (which include,

inter alia, virtually every manufacturing, petro-chemical,

chemical, industrial, and commercial transportation con-

cern in the United States) to attract capable corporate

leadership.*

FACTS

Amici will set out briefly those facts material to the

Court’s resolution of the question discussed in this brief.

Northeastern Pharmaceutical and Chemical Company,

Inc. (““NEPACCO”), disposed of hazardous wastes from

its Verona, Missouri plant at a nearby site known as the

Denney farm in mid-July of 1971. Appendix to the Peti-

tion at 57 (hereinafter cited as, e.g., “A-57”). The dis-

1To the extent the opinion below identifies share ownership as a

basis for liability for corporate acts, it also discourages investment,

particularly in smaller companies.

posal was undertaken by, inter alia, Bill Ray, the plant

manager of the Verona plant, A-56, A-57, and with the

knowledge of another of NEPACCO’s officers, petitioner

Lee. Jd.’ Petitioner Michaels, however, was present at

the Verona plant only during its first year of operation

(1976). A-53. By early 1971 he “had moved back to the

state of Connecticut, leaving the direct management re-

sponsibility for the NEPACCO plant operation and for

quality control with Lee.” Jd. Thus, Michaels was nei-

ther present at the plant nor did he have immediate

control over plant operations at the time the NEPACCO

wastes were sent to the site. Indeed, the District Court

expressly found that the United States “failed to estab-

lish that Michaels had prior direct knowledge of the

proposed plan to dispose of hazardous wastes at the

Denney farm site.” A-85. The Court of Appeals did not

overturn this finding.

REASONS FOR GRANTING THE WRIT

I. Imposing RCRA Liability On Michaels Solely On The

Basis Of His Corporate Office Is Inconsistent With

Well Settled Principies Recognized In Virtually Every

Other Circuit

Section 7003(a) of RCRA, 42 U.S.C. § 6973(a), im-

poses liability upon any person who “has contributed or

who is contributing to” the handling, storage, treatment,

transportation, or disposal of hazardous wastes that

“may present an imminent and substantial endanger-

ment to health or the environment.” In finding petitioner

Michaels liable as a “contributor,” the Court of Appeals

relied solely upon his status as a corporate officer and

shareholder who had authority over his subordinates,

even though he neither knew of nor participated in the

disposal of NEPACCO’s wastes at the Denney farm site:

Unlike Lee, Michaels was not personally involved in

the actual decision to transport and dispose of the

hazardous substances. As NEPACCO’s corporate

president and as a major NEPACCO shareholder,

however, Michaels was the individual in charge of

and directly responsible for all of NEPACCO’s op-

erations, including those at the Verona plant, and

he had the ultimate authority to control the disposal

of NEPACCO’s hazardous substances.’

A-36. This holding is wholly inconsistent with traditional

principles of individual civil liability for corporate acts.

The general, if not universal, rule under both federal

statutory law and common law is that a corporate officer

or stockholder cannot be liable for cui porate acts under-

taken by others without his knowledge, participation, or

authorization.*®

For instance, in Escude Cruz v. Ortho Pharmaceutical

Corp., 619 F.2d 902 (1st Cir. 1980), the court s.ated

that holding a corporate officer liable for corporate acts

“require[s] .. . some showing of direct personal involve-

ment by the corporate officer in some decision or action

which is causally related to plaintiff’s injury.” Jd. at

907. The plaintiff had alleged personal injury due to

contamination from toxic substances in his workplace.

He brought suit in the District of Puerto Rico against

his employer, its corporate parent, and officers of the

corporate parent. The individual defendants, who were

not residents of Puerto Rico, sought dismissal on juris-

dictional grounds. The district court held, inter alia,

that the plaintiff had failed to make out a prima facie

tort case against the individual defendants, necessary to

satisfy Puerto Rico’s long-arm statute. The First Cir-

cui agreed, noting as follows:

2 The District Court did not reach the question of individual lia-

bility under RCRA because it concluded that RCRA did not impose

liability upon past, non-negligent f-site generators like NEPACCO.

A-68. The Cour’ of Appeals reversed that holding. A-27.

3 We note that the Court of Appeals did not find facts sufficient

to pierce the corporate veil. See A-33, A-35.

. “It is the general rule that if an officer or agent of a

corporation directs or participates actively in the

commission of a tortious act or an act from which

a tort necessarily follows or may reasonably be ex-

pected to follow, he is personally liable to 2 third

person for injuries proximately resulting therefrom.

But merely being an officer or agent of a corpora-

tion doez not render one personally liable for a tor-

tious act of the corporation. Specific direction or

sanction of, or active participation or cooperation in,

a positively wrongful act of commission or omission

which operates to the injury or prejudice of the

complaining party is necessary to generate individ-

ual liability in damages of an officer or-agent of a

corporation for the tort of the corporation.”

Id. (emphasis supplied) (quoting Lobato v. Pay Less

Drug Stores, 261 F.2d 406, 408-09 (10th Cir. 1958) ).

In Tillman v. Wheaton-Haven Recreation Assn., Inc.,

517 F.2d 1141 (4th Cir. 1975), the Fourth Circuit ap-

plied this rule in the context of a civil rights suit alleg-

ing that a community swimming pool had discriminated

against black applicants for membership. The plaintiff

joined as defendants the individual directors of the as-

sociation. The Court of Appeals ruled: “If a director

does not personally participate in the corporation’s tort,

general corporation law does not subject him to liability

simply by virtue of his office.” Jd. at 1144 (citation

omitted).

The Seventh Circuit adheres to the same rule. In

Musikiwamba v. ESSI, Inc., 760 F.2d 740 (7th Cir.

1985), the plaintiff alleged employment discrimination

and joined as a defendant the chief executive officer and

major shareholder of the corporate successor to his for-

mer employer. In affirming the district court’s dismissal

of the individual defendant, the Court of Appeals stated:

We agree with the Fourth Circuit that personal lia-

bility cannot be imposed on a corporate official for

the corporation’s violation of section 1981 when that

official is not alleged to have participated in the

actual discrimination against the plaintiff.

Id. at 753 (citing Tillman, supra). The Seventh Circuit

acknowledged the “clear” rule of corporate law that

personal liability for corporate acts “cannot be imposed

on a person merely because he is an officer, shareholder,

and incorporator of that corporation.” Musikiwamba,

supra, 760 F.2d at 753. Rather, “[p]ersonal liability is

imposed only when the officer is alleged to have taken

part in the illegal act initially giving rise to the cor-

poration’s liability.” Jd. (emphasis in original).

This rule has been consistently applied throughout the

circuits in cases arising under both federal statutes and

the common law.‘ See United States v. Van Diviner, 822

F.2d 960, 963 (10th Cir. 1987) (under federal com-

mon law, personal liability “cannot be imposed on an

individual merely because he is an officer or share-

holder of that corporation”); Hagemeyer Chemical Co.

v. Insect-O-Lite Co., 291 F.2d 696, 699 (6th Cir. 1961)

(in trademark infringement case, “[o]fficers, directors

or shareholders of a corporation are not personally liable

for wrongful or tortious conduct of the corporation or its

other agents, unless there can be found some active or

passive participation in such wrongful conduct by such

persons”); Patel v. Wargo, 803 F.2d 632, 638 (11th

Cir. 1986) (under Fair Labor Standards Act, 29 U.S.C.

§ 203(d), officer not liable where “neither responsible for

[employee’s] contract nor involved in the day-to-day

operation of the facility”) ; 3A Fletcher Cyc. Corp. § 1137

(Perm. Ed.).

4 Federal cases applying state common law are relevant to the

issue of personal liability under RCRA since Congress expected

courts to apply established common law principles under the statute.

See Part II, infra.

Cases which have imposed liability upon corporate offi-

cers uniformly have involved instances of direct partici-

pation, as where the defendant was the “guiding spirit”

behind the’ wrongful conduct, Marks v. Polaroid Corp.,

237 F.2d 428, 435 (1st Cir. 1956), cert. denied, 352 U.S.

1005 (1957) (patent infringement), the “central figure”

in the challenged corporate activity, Donsco, Inc. v.

Casper Corp., 587 F.2d 602, 605-6 (3d Cir. 1978) (un-

fair competition), or “actively aid[ed] and abet[ted]”

the corporation’s wrongfu! acts. Orthokinetics, Inc. v.

Safety Travel Chairs, Inc., 806 F.2d 1565, 1579 (Fed.

Cir. 1986) (patent infringement). Accord, Transgo, Inc.

v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1021

(9th Cir. 1985), cert. denied, 106 S. Ct. 802 (1986)

(corporate officer “personally liable for all torts which

he authorizes or directs or in which he participates’) ;

United States v. Pollution Abatement Services of Os-

wego, Inc., 763 F.2d 133, 185 (2d Cir.), cert. denied

sub nom. Miller v. United States, 106 S. Ct. 605 (1985)

(corporate officers’ and shareholders’ liability “bottomed

on their personal involvement in the firm’s activities’’).

The evidence adduced with respect to Michaels falls

far short of what this authority requires. The District

Court made an express finding, which the Court of

Appeals did not overturn, that Michaels had no prior

knowledge of NEPACCO’s plan to dispose of wastes at

the site. A-85.° In the absence of any participation in,

5 Although the District Court states that both petitioners Lee and

Michaels were “actively involved in the planning and implementa-

tion of NEPACCO’s disposal practices,” A-107, it did so in the

context of holding Michaels liable as an “owner or operator” under

section 107(a) of the Comprehensive Environmental Response,

Compensation, and Liability Act, 42 U.S.C. §9607(a), because he

participated in the management of NEPACCO. The Court of Ap-

peals reversed this holding. A-31. It is not disputed that, although

he participated in the management of NEPACCO, and was involved

in some waste disposal negotiations before moving to Connecticut,

Michaels was unaware of the disposal of NEPACCO wastes at the

Denney farm.

authorization of, or knowledge of the events giving rise

to NEPACCO’s liability, the Court of Appeals imposed

liability on him simply because of his “ultimate author-

ity” and being “directly responsible” as a corporate offi-

cer and shareholder. A-36. That holding cannot there-

fore be reconciled with the rule universally followed by

other circuits.®

II. Neither RCRA Nor Its Legislative History Supports

* The Eighth Circuit’s Deviation From The General Rule

Of Officer And Shareholder Liability

Of course, had it wished to do so, Congress could have

imposed strict liability under section 7003 of RCRA

upon corporate officers or shareholders without requiring

proof of their personal involvement in the handling of

hazardous wastes. Neither the language of the statute

nor its legislative history, however, indicates any such

intent.

Although section 7003(a) imposes liability upon “any

person . . . who has contributed or who is contributing

to” the handling, storage, treatment, transportation or

disposal of hazardous wastes, and although the statutory

definition of “person” includes natural persons, 42 U.S.C.

§ 6903(15), nothing in the language of section 7003 (a)

gives even a hint that Congress believed that a corporate

officer or shareholder contributes to the corporation’s

hazardous waste activities in the absence of any evidence

that he or she was personally involved in such activities.

6 Elsewhere the Court of Appeals notes that Michaels was aware

that “NEPACCO’s manufacturing process produced various haz-

ardous and toxic byproducts... .” A-4. If Michaels can be held

personally liable merely on the basis of such knowledge without any

personal involvement in the disposal at issue, any corporate officer

who fails to maintain an almost total ignorance of the corporation’s

general business practices may suffer personal liability for the

handling of its byproducts by others. See Mozingo v. Correct Mfg.

Corp., 752 F.2d 168, 174 (5th Cir. 1985).

The statutory language certainly does not say that merely

possessing corporate authority is sufficient to impose lia-

bility upon an officer or shareholder.

Indeed, when Congress seeks to impose liability upon

corporate officials solely by virtue of their position, it

does so explicitly. See, e.g., 15 U.S.C. § 77k (purchaser

of security who relied on registration statement contain-

ing untrue facts or some material omission may sue,

inter alia, signatoric .f statement and directors of the

issuer at the time of filing); 15 U.S.C. § 1709 (pur-

chaser of a lot who relied on a property report which

contained untrue facts or some material omission may

sue developer or agent).

Nor does the legislative history of section 7003 (a)

support the Court of Appeals’ holding. When Congress

amended and reauthorized RCRA in eee it stated as

follows:

Like other imminent and substantial endangerment

provisions in environmental statutes, (e.g., section

504 of the Ciean Water Act, section 303 of the Clean

Air Act, and section 1431 of the Safe Drinking Wa-

ter Act), section 7003 is essentially a codification of

common law public nuisance remedies. . . .

Section 7003, therefore, incorporates the legal the-

ories used for centuries to assess liability for creat-

ing a public nuisance (including intentional tort,

negligency, and strict sete and to determine

appropriate remedies. .

S. Rep. No. 172, 96th ey 2d Sess. 5 (1979), re-

printed in 1980 Code Cong. & Ad. News 5019, 5023.

As noted above, established common law rules preclude

imposition of liability for corporate acts solely on the

basis of corporate office or stock ownership.’

7 We note that the Senate Report also indicates that some terms

in section 7003 should be construed more liberally than their com-

Moreover, in reporting favorably on the 1984 RCRA

amendments, the House Committee on Energy and Com-

merce stated the following with respect to section 7003

(a):

. . . Section 7008 is clarified to establish that it ap-

plies to any act, whether past or present, which has

resulted in or may result in an imminent and sub-

stantial endangerment to public healti or the en-

vironment. ...

The amendment reflects the long-standing view that

generators and other persons involved in the han-

dling, storage, treatment, transportation, or disposal

of hazardous wastes must share in responsibility for

the abatement of the hazards arising from their ac-

tivities.

H.R. Rep. No. 198, Part I, 98th Cong., 2d Sess. 48

(1983), reprinted in 1984 Code Cong. & Ad. News 5607

(emphasis supplied). Because Congress intended to im-

pose liability under section 7003(a) for “acts,” “involve-

ment,” and “activities,” there is no basis to extend lia-

bility to one who simply has “authority” to act but fails

to do so where he has no knowledge of the events under-

lying liability. Put another way, Michaels, on the rec-

ord below, was neither an actor nor involved in the dis-

posal of NEPACCO’s wastes at the site and hence cannot

be a contributor under section 7003 (a).

mon law counterparts, including the term “contributing to.” S.

Rep. No. 172, supra, at 5. The Report, however, explains that this

language was meant to embrace off-site generators of hazardous

waste. Id. There is nothing in the legislative history which sug-

gests Congress intended to do away with common law principles of

corporate officer and shareholder liability.

8 Even if Congress intended that an ofiicer should be liable for

intentionally or recklessly failing to hecc me informed of facts indi-

cating that the corporation was liab’e, nothing in the record indi-

cates Michaels was guilty of any such failure.

me Ok wet

se MONEE ARES a EE A RE my eB A SO A a

There was therefore no statutory basis for the Court

of Appeals to disregard the well-established rule preclud-

ing imposition of liability for corporate acts solely on

the basis of one’s status as an officer or stockholder of

the corporation.

III. The Authority Relied Upon By The Court Of Appeals

Does Not Support Imposition Of Liability On Michaels

The authority cited by the Court below in support of

imposing liability on petitioner Michaels is inapposite

because in each case the individual defendant found lia-

ble played an active role in the events giving rise to

liability.

In United States v. Johnson & Towers, Inc., 741 F.2d

662 (3d Cir. 1984), cert. denied sub nom. Angel v. United

States, 469 U.S. 1208 (1985), the issue before the court

was whether the individual defendants could be prose-

cuted for knowing violations of criminal provisions of

RCRA. Id. at 665. Since the district court had dis-

missed the indictments, the Court of Appeals only faced

the narrow question whether the term “person” con-

tained in 42 U.S.C. § 6928(d) included responsible cor-

porate officials. As the Court noted:

The indictment charged that. both individual defend-

ants “managed, supervised, and directed a substan-

tial portion of Johnson & Towers’ operations at the

Mount Laurel plant, including those related to...

disposal of hazardous wastes and pollutants.” App.

at 7a. This case reaches us without any evidence

or findings of the defendants’ actual knowledge of

the facts at issue, and with inconsistent descriptions

of defendants’ responsibilities.

Id. at 670. Thus the Court did not address the question

whether a corporate official who did not know of or par-

ticipate in such acts would be liable.

United States v. Ward, 676 F.2d 94 (4th Cir.), cert.

denied, 459 U.S. 835 (1982), is another criminal case,

involving the unlawful disposal of toxic substances in

violation of the Toxic Substances Control Act, 15 U.S.C.

§ 2601 et seg. The jury found that the convicted corpo-

rate president was an “active participant” in a scheme

to spray PCB-iaced waste oil along rural North Carolina

roadsides. Jd. at 97. In United States v. Price, 523 F.

Supp. 1055 (D.N.J. 1981), a civil RCRA § 7003 case,

the individual defendants were either owners, operators

or employees of a landfill who had themselves improperly

stored chemical waste. Jd. at 1073. The individual de-

fendants operated the landfill as a sole proprietorship

rather than a corporation, Jd. at 1058, and then sold it

to a partnership. Jd. Thus not only had the individual

defendants actively participated in the events giving rise

to liability, but corporate defenses were unavailable to

them.

In United States v. Pollution Abatement Services of

Oswego, supra, the court noted that the individual de-

fendants, who were stockholders and officers of the de-

fendant corporation, were “responsible for” the corpora-

tion’s “illegal dumping and storage activities.” Jd., 763

F.2d at 135. In holding them liable under section 13 of

the Rivers and Harbors Act, 42 U.S.C. § 407, the court

stated that their liability “was not premised solely on

their corporate offices or ownership, but was bottomed on

their personal involvement in the firm’s activities.” Id.

Finally, in State of New York v. Shore Realty Corp., 759

F.2d 1082 (2d Cir. 1985), a case decided under section

107(a) of the Comprehensive Environmental Response,

Compensation, and Liability Act, 42 U.S.C. § 9607(a),

and New York’s common law of nuisance, the individual

defendant was the sole stockholder and active officer of

the defendant corporation. Jd. at 1034. The Second Cir-

cuit found it “beyond dispute that LeoGrande [the indi-

vidual] specifically directs, sanctions, and actively par-

ticipates in Shore’s maintenance of the nuisance.” Id. at

1082 (citing Escude Cruz, supra, with approval).

erent UBT ie

CONCLUSION

For the foregoing reasons, amici respectfully request

the Court to grant the petition for certiorari on the

fourth question presented by petitioners.

Dated: September 9, 1987

Respectfully submitted,

STEVEN A. TASHER

- JOHN P. DEAN *

; STEVEN M. OSTER