Dеfendant-third-party plaintiff-appellant Kerr-MeGee Chemical Corporation (“Kerr-
Background
Union Bag & Paper, the predecessor of Union Camp, formed American Creosoting Corporation (“AmCre Corp.”) in 1956 to facilitate Union Camp’s acquisition of certain assets from American Creosoting Comрany. With funds supplied by Union Camp, AmCre Corp., a wholly owned subsidiary of Union Camp, purchased these assets, which included a business on certain leased real property in North Haven, Connecticut. American Creosoting Company had operated a creosoting facility on this property since 1922. On July 24, 1964, Union Camp entered into a stock purchase agreement with Kerr-McGee Oil, the predecessor of Kerr-McGee Corporation, whereby Kerr-McGee acquired Am-Cre Corp. In Section 4 of this stock purchase agreement (“the indemnification agreement”), which the parties accepted in New York and contemplated closing in New York, Union Camp agreed to indemnify and hold harmless AmCre Corp. and Kerr-McGee for legal claims and suits filed against them prior to August 1, 1965. The indemnification agreement reads, in pertinent part:
Union [Camp] hereby indemnifies and agrees to hold [AmCre Corp.] harmless from and against any and all of the following: ...
(iii) Any obligation or liability of [AmCre Corp.] under or pursuant to any legal action or other proceeding, now or hereafter instituted, based on a cause of action arising out of or attributable to the operations or activities of [AmCre Corp.] prior to the time of Closing hereunder; and Union does further indemnify and agree to hold Kerr-McGee harmless from any and all loss or expense, of whatsoever nature, which Kerr-McGee may sustain or incur by reason of аny such liability or obligation. ...
J.A. at 86. Subsequent to its purchase of AmCre Corp., Kerr-McGee changed the name of AmCre Corp. to Moss American, Inc. (“Moss American”). In 1974 Kerr-McGee Chemical Corporation, a subsidiary of Kerr-McGee Corporation, merged with Moss American, assuming all Moss American’s liabilities.
A contract between AmCre Corp. and the New York, New Haven and Hartford Railroad Company (“the Railroad”), concerning the operations of the creosoting plant in North Haven, Connecticut (“the plant”), forms the basis of the underlying action. From approximately 1921 through 1966, the Railroad owned the property on which the plant is located and leased it to American Creosoting Company. The property, which changed ownership several times over subsequent years, suffered creosote contamination as a result of the plant’s storage, handling, and disposal activities. Prior to September 25, 1984, at the behest of the Connecticut Department of Environmental Protection, the then-owners of the property, defendants Herbert H. Pearce (“Pearce”) and Donald B. Lippineott (“Lippincott”), implemented a remedial program to cleanse the land. Their curative efforts, however, were not without critics.
During that period, Union Camp and Am-Cre Corp. shared the same board of directors, and several of AmCre Corp.’s high-ranking officers, specifically its president, general counsel, assistant comptroller, and assistant treasurer, were also employed by Union Camp. During the years in question, Union Camp’s legal department rendered services to AmCre Corp., including the review and approval of the 1958 renewal of the contract concerning the operations of the plant. Kerr-McGee states that several Uniоn Camp employees participated, as officers and directors of AmCre Corp., in the negotiations surrounding the 1958 contract renewal. Kerr-McGee also maintains that during this period, the interlocking Union Camp-AmCre Corp. board of directors examined and approved capital expenditures, including pollution-control equipment, for AmCre Corp.’s ereosoting plants.
Union Camp moved for summary judgment on both the CERCLA and state statutory claims. On August 25,1994, the district court granted the motion, finding that the indemnification agreement shifted all Union Camp’s liabilities, including environmental liabilities, to Kerr-McGee. The district court did not address the factual question of the extent of Union Camp’s direct liability, if any, as it deemed Kerr-McGee’s CERCLA and state statutory claims to be barred, based on the indemnification agreement. On September 14, 1994, Kerr-McGee moved for reconsideration, arguing that the district court had incorrectly interpreted the indemnification agreement and had improperly declined to address the issue of Union Camp’s direct CERCLA and state statutory liability. In an April 18,1995, ruling, the district court denied Kerr-McGee’s motion, and on June 1, 1995, final judgment was entered in favor of Union Camp.
This appeal followed.
Discussion
We review a grant of summary judgment de novo. Mellon Bank, N.A. v. United Bank Corp.,
Kerr-MeGee’s theory of liability is that, given the degree to which Union Camp controlled the management of the plant, Union Camp has incurred direct and independent liability as an operator under CERCLA, 42 U.S.C. §§ 9607(a)(2). Kerr-McGee’s contribution claim is based alsо on Conn.Gen.Stat. § 22a-452, which provides a private right of action for reimbursement of environmental clean-up costs. In essence, Kerr-McGee asserts that Union Camp’s own actions in advising and overseeing the plant’s operations subject it directly, not derivatively through AmCre Corp., to CERCLA and state statutory liability.
Summary judgment is appropriate only when the language оf a contract is “wholly unambiguous.” Mellon,
A. The Indemnification Agreement
A purchase agreement entered into in New York, with closing contemplated in New York, is to be interpreted under New York law. See Tehran-Berkeley Civil and Envtl. Eng’rs v. Tippetts-Abbett-McCarthy-Stratton,
Union Camp’s indemnification covers “any obligation or liability of [AmCre Corp.] ... under or pursuant to any legal action ..., based on a cause of action arising out of or attributable to the operations or activities of [AmCre Corp.],” as well as “any and all loss or expense ... which Kerr-McGee may sustain or incur by reason of any such liability or obligation_” J.A. at 86. Kerr-McGee focuses on the explicit language, “any obligation or liability of [AmCre Corp.],” in arguing that the liability section of the indemnification agreement concerns only AmCrе Corp.’s liabilities, not those of Union Camp. In a closely related argument, Kerr-McGee also maintains that the parties never intended Section 4, an indemnification provision, actually to transfer liability. Union Camp looks to the wording, “arising out of or attributable to the operations or activities of [AmCre Corp.],” for its contention that the indemnification agreement allocates, after the cut-off date, all liabilities related to Am-Cre Corp., regardless of who incurred the liabilities. The district court, relying on the same phrase, similarly read the indemnification agreement as transferring all AmCre Corp.-related liabilities to Kerr-McGee.
A close reading of that language supports the interpretation proffered by Kerr-McGee. The phrase on which the district court so heavily relied as embracing liabilities incurred by Union Camp — “arising out of or attributable to the operations or activities of [AmCre Corp.]” — seems better understood simply as modifying “cause of action.” It thus limits Union Camp’s blanket indemnification of AmCre Corp. and Kerr-McGee to suits concerning AmCre Corp.’s business operations. This adjectival clause in no way alters the core of the indemnification agreement, indemnifying AmCre Corp. and Kerr-McGee for “any obligation or liability of [AmCre Corp.] ” prior to August 1965.
Under this close reading, which Commander Oil and Olin compel that we give indemnity agreements, the expiration of the indemnification period shifted to Kerr-McGee full responsibility only for AmCre
B. CERCLA Liability
1. Operator Liability
CERCLA charges with liability four categories of persons, one of which is “аny person who at the time of disposal of any hazardous substance owned or operated any facility at which such. ...” disposal took place. 42 U.S.C. § 9607(a)(2). ‘“Owner or operator’ means ... any person owning or operating such facility ...,” id. § 9601(20)(A)(ii), and “person” is defined as “an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, State, municipality, commission, political subdivision of a State, or any interstаte body,” id. § 9601(21).
In light of the indemnification agreement, a perceived tension exists between any liabilities Union Camp may have independently, as an operator under CERCLA, and any liabilities that Union Camp may possess derivatively, as the parent of AmCre Corp. This seeming conflict turns on the characterization of Union Camp’s liability: whether, although “arising out of or attributable to the operations or activities of [AmCre Corp.],” it nevertheless results from Union Camp’s own actions related to management of the plant, or whether it instead results from AmCre Corp.’s actions only, with Union Camp’s liability arising from traditional concepts of corporate veil piercing. See Lynda J. Oswald & Cindy A. Schipani, CERCLA and the “Erosion” of Traditional Corporate Law Doctrine, 86 Nw.U.L.Rev. 259, 301 (1992) (“In considering the liability of parent corporations for the environmental torts of their subsidiaries, the issue is often whether the applicable standard of liability derives from common law principles of corporate law or from direct application of the statutory definitions of CERCLA.”). The classification of Union Camp’s liability is of great relevance, for if its liability is derivative, attaching to Union Camp only as a result of the acts of its subsidiary, then the liability effectively is that of AmCre Corp. and would fall within the terms of the indemnification agreement.
This perceived tension between direct liability and liability based on veil piercing can be reconciled, however, when examined against the overall goals of CERCLA and the uniqueness of its statutory scheme. Congress enacted CERCLA with the expansive, remedial purpose of ensuring “that those responsible for any damage, environmental harm, or injury from chemical poisons bear the costs of their actions.” S.Rep. No. 848, 96th Cong., 2d Sess. 13 (1980), reprinted in 1980 U.S.C.A.A.N. 6119, 6119, and in 1 CERCLA, Legislative History, at 320 (1980). One of CERCLA’s primary goals is to extend liability to all those involved in creating harmful environmental conditions. See B.F. Goodrich Co. v. Murtha,
Courts have held parent corporations independently liable, as operators, for the activities of their subsidiaries. See, e.g., United States v. TIC Inv. Corp.,
Courts imposing operator liability directly on a parent corporation have drawn support not only from legislative intent, but also from related statutory language. The mоst compelling argument points to the distinction between “owner” and “operator,” as evidenced by Congress’ inclusion of both terms. Observing that “ ‘owner’ liability and ‘operator’ liability denote two separate concepts,” courts stress the disjunctive character of CERCLA liability. Lansford-Coaldale,
This distinction has particular relevance in the context of parent and subsidiary corporations where the theory of liability selected mandates different bases of proof. A finding of owner liability invokes the parent-subsidiary relationship and can be made only in circumstances that permit corporate veil piercing. USX Corp.,
Under CERCLA, a corporation may be held liable as an owner for the actions of its subsidiary corporation in situations in which it is determined that piercing the corporate veil is warranted.... Operator liability, in contrast, is generally reserved for those situations in which a parent or sister corporation is deemed, due to the specifics of its relationship with its affiliated corporation, to have had substantial control over the facility in question.
Lansford-Coaldale,
An additional justification raised by courts in support of this characterization of operator liability looks to the statute’s definition of “person.” See 42 U.S.C. § 9601(21). “‘[P]erson’ is defined broadly to include a firm, corporation, or commercial entity, among other things. CERCLA’s language, therefore, indicates an intent to hold a corporation liable for the environmental violatiоns of its subsidiaries and sister corporations, if it is otherwise determined to have operated the facility in question.” Lansford-Coaldale,
While many courts thus find in the legislative intent, evidenced both generally and textually, a willingness to extend CERCLA liability beyond the established bounds of corporate common law, there is an alternative approach that strictly adheres to traditional veil-piercing concepts. See United States v. Cordova Chem. Co.,
Although we are not unmindful of the weighty concerns expressed by the Fifth and Sixth Circuits, we subscribe instead to thе views adopted by the First, see, e.g., John S. Boyd Co.,
2. Union Camp’s Liability
The parties contest certain facts critical to the issue of Union Camp’s liability as an operator under CERCLA. Specifically, they dispute (1) the degree of involvement by Union Camp’s emplоyees in negotiating the 1958 renewal of the contract concerning the plant’s operations and (2) the control exercised by Union Camp’s employees over AmCre Corp.’s capital expenditures. The parties debate whether there exists control sufficient for the imposition of operator liability. Such a determination, however, “re-quirting] an inherently fact-intensive inquiry” — especially where, as here, certain key facts are in dispute — presents a question of fact for resolution at trial. Lansford-Coaldale,
C. State Statutory Liability
Conn.Gen.Stat. § 22a-452 reads, in relevant part:
(a) Any person, firm, corporation or municipality which contains or removes or otherwise mitigates the effects of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous*256 wastes resulting from discharge, spillage, uncontrolled loss, seepage or filtration of such substance or material or waste shall be entitled to reimbursement from any person, firm or corporation for the reasonаble costs expended for such containment, removal or mitigation, if such oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes pollution or contamination or other emergency resulted from the negligence or other actions of such person, firm or corporation.
The statute thus provides a private right of action for reimbursement of environmental clean-up costs. Unlike CERCLA’s strict liability standard, Section 22a-452 “requirе[s] a showing of culpability and not merely causation.” Connecticut Resources Recovery Auth. v. Refuse Gardens, Inc.,
However, like CERCLA, the Connecticut statute is remedial legislation whose language should be construed liberally to effectuate its purpose. See Blackburn v. Miller-Stephenson Chem. Co., Inc., No. 31 40 89,
Thus, like CERCLA operator liability, whatever obligations Union Camp may have under the Connecticut statute are distinct from any responsibility incurred by AmCre Corp. As a determination of Section 22a-452 liability necessitates a fact-based inquiry, Chromium Process Co. v. Yankee Gas Serv. Co., No. CV 92 03 85 32,
Conclusion
The order of the district court entered June 1, 1995, pursuant to its opinion of August 25, 1994, is vacated. The case is remanded for a determination of Union Camp’s liability under CERCLA § 9607(a)(2) and Conn.Gen.Stat. § 22a-452.
Notes
. For purposes of this opinion, we use the short form "Kerr-McGee” to include (1) defendant-third-party plaintiff-appellant Kerr-McGee Chemical Corporation; (2) its parent, defendant Kerr-McGee Corporation; and (3) Kerr-McGee Oil, the predecessor of Kerr-McGee Corporation.
. For purposes of this opinion, the term "Union Camp" refers coEectively to Union Camp Corporation and Union Bag & Paper, the predecessor of Union Camp Corporation.
. Specifically, both Kerr-McGee Corporation and Kеrr-McGee Chemical Corporation are named defendants, the former as a restdt of its acquisition of AmCre Corp. through the 1964 stock purchase, and the latter in light of the 1974 merger whereby Kerr-McGee Chemical Corporation assumed all liabilities of the former AmCre Corp.
. Union Camp disagrees with Kerr-McGee over the extent of participation by its employees in negotiating the 1958 contract renewal and in approving AmCre Corp.’s capital expenditures.
. The question of what control must be exercised by the parent corporation has received differing judicial responses. Some courts require actual control to sustain a finding of operator liability. Lansford-Coaldale,