A federal court in Mississippi has ruled that the owner of a contaminated site in Yazoo City, Mississippi, is a “covered person” who may face liability under CERCLA despite an indemnity agreement between the site owner and plaintiff, a company that sent materials to the site. U.S. Technology Corporation v. Ramsey, No. 08-218 (S.D. Ms. 5/13/11). In 2000, plaintiff entered into a contract with Hydromex, Inc., under which plaintiff sent spent abrasive material to a site leased by Hydromex from Delta Logging & Co. After EPA inspected the site in 2002 and determined that the spent material had been buried onsite and not properly disposed, plaintiff entered into a consent decree with the Mississippi Department of Environmental Quality and agreed to remove the improperly disposed material from the site. As part of an access agreement, plaintiff agreed to indemnify the site owner, Delta Logging, for any CERCLA liability at the site.
In 2008, plaintiff filed a CERCLA contribution action against Delta Logging and its president/owner and moved for partial summary judgment seeking a ruling that the site owner was a “covered person” under CERCLA. Delta Logging argued that it was not liable to plaintiff, citing the indemnity agreement.
Granting partial summary judgment to plaintiff, the court ruled that Delta Logging is a “covered person” under CERCLA. The court interpreted plaintiff’s argument to be not that Delta Logging was liable to plaintiff, but that the company met the definition of “covered person” under CERCLA. According to the court, the status of defendant as a “covered person” is distinct from the issue of liability to plaintiff.