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PUHCA Companies: Caught By Superfund

An analysis of holding company liability under federal Superfund and parallel state laws.
Fortnightly Magazine - April 15 2003

locate significant data as to the practices of particular holding companies and their service affiliates. The FTC's Report to the Senate of the United States on Economic, Financial and Corporate Phases of Holding and Operating Companies of Electric and Gas Utilities is a very large collection of pertinent information. Records of the SEC and the courts are also a rich resource, along with utility archives. Sometimes retirees with useful recollections can be located, and there are even a few people still employed in fields such as consulting or law from those earlier times. Persistence is the most significant element in this kind of project.

Thus, even today some entities that used to be holding companies of the old style and their affiliated service companies are exposed to supportable claims of operator liability under Superfund. As a result of the PUHCA "simplification" process, utility companies now facing cleanup costs are often no longer related to their prior parents (although this is not necessarily a requirement for a claim), and several public utilities have filed claims securing reimbursement of cleanup costs under the principle of operator liability. In the field of site cleanups, there is usually only red ink, and achievements such as these are always worthy of examination.

  1. Superfund is properly titled the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq. Parallel state laws, typically titled Hazardous Site Cleanup Act, exist in at least three-fourths of the states. For purposes of this article, all will be jointly referred to as "Superfund."
  2. , Doc. 92 (70th Congress, 1935)(the "FTC Report"), Vol. No. 72-A, pp. 38-46.
  3. Id. p. 56b.
  4. Forrest McDonald, Insull (Univ. of Chicago Press, 1962), p. 275
  5. 15 U.S.C. Section 79k et seq.
  6. U.S. v. , 524 U.S. 51 (1998).
  7. The Standard Gas & Electric System contract with its affiliate, Byllesby & Co. FTC Report, Vol. 72-A, p. 622.
  8. Insull's Middle West Utilities Group service contract. FTC Report, Vol. 72-A, p. 637; also Vol. 38, p. 787.
  9. Id., Vol. 72-A, pp. 626 et seq. In this instance, the Associated Gas & Electric System, all cash was deposited in bank accounts in the name of the parent (not the operating utilities). FTC Report, Vol. 45, pages 1013-14.
  10. FTC Report, Vol. 72-A, p. 600.
  11. See Interstate Power Co. v. Kansas City Power & Light Co., 909 F. Supp. 1241 (N.D. Iowa 1993); North Shore Gas Co. v. Salomon, 152 F.3d 642 (7 Cir. 1998).

Landmark Dates in Superfund History

Sept. 19, 1980: Following EPA estimates of thousands of inactive and uncontrolled hazardous waste sites in the United States, the House of Representatives passes legislation establishing a "superfund" to be used for environmental emergencies. An amended version of the bill eventually would pass in the Senate.

Dec. 11, 1980: Outgoing President Jimmy Carter signs Superfund (the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, or CERCLA) into law. The law gives the federal Environmental Protection Agency the authority to respond to a release, or substantial threat of a release, of a "hazardous substance" or "any pollutant or contaminant which may