A federal court in Ohio has denied a motion for judgment on the pleadings filed by the defendant in a cost-recovery action under the Comprehensive Environmental Response, Compensation, and Liability Act. Fla. Power Corp. v. FirstEnergy Corp., No. 1:12-cv-01839 (N.D. Ohio 3/18/13). At issue is the cleanup of two former manufactured gas plant sites in Florida. Both of the sites ceased operation by 1948, and each was owned by a different subsidiary, through a lengthy corporate chain, of Associated Gas & Electric Corp. Defendant FirstEnergy is alleged to be the successor through merger of Associated Gas, but the subsidiaries that operated the two plants were not allegedly part of Associated Gas when the merger occurred.
Denying that it was a successor to the two subsidiaries that operated the plants, FirstEnergy moved to dismiss. The court, however, determined that plaintiff had pleaded sufficient facts, including citations to federal regulatory conclusions and a court opinion, and offered sufficient expert testimony indicating that Associated Gas so completely controlled its subsidiaries that the corporate veil could be pierced. As the successor to Associated Gas, FirstEnergy could potentially be liable for the two sites. The court therefore declined to dismiss the case on this ground.
The court also determined that the case, filed in December 2011, had been initiated within the statute of limitations. The court held that administrative orders on consent executed in 1998 and 2003 were not judicially approved and did not resolve the plaintiff’s liability to the United States, and they therefore could not start the statute running. For one site, the court found that the statute began running upon entry of a consent decree in 2009, and the suit therefore was timely. For the second site, the court held that the statute had not begun to run because plaintiff was undertaking a removal action that had not yet been completed.