USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 92-2150
THE JOHN S. BOYD COMPANY, INC., ET AL.,
Plaintiffs, Appellees,
v.
BOSTON GAS COMPANY, ET AL.,
Defendants, Appellees,
____________________
NEW ENGLAND ELECTRIC SYSTEM, ET AL.,
Defendants, Appellants.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
___________________
____________________
Before
Torruella, Cyr and Boudin,
Circuit Judges.
______________

_____________________

Scott P. Lewis, with whom Palmer & Dodge, and John F.

_______________
________________
________
Sherman III, were on brief for appellants.
___________
Gerald P. Tishler, with whom James W. Stoll, Jonathan J.
__________________
______________
___________
Kane, Brown, Rudnick, Freed & Gesmer, Lawrence E. McCormick, and
____ _______________________________ _____________________
Wendy B. Levine, were on brief for appellees.
_______________
____________________
May 26, 1993
____________________

TORRUELLA, Circuit Judge.

_____________
whether

appellants must pay the

different
waste.

entire cost of

environmental hazards:
As

the district

In this appeal we determine

coal gas

court correctly

cleaning up two

waste and

oil gas

apportioned liability

under the governing principles of the Comprehensive Environmental

Response, Compensation
U.S.C.

and Liability Act of

1980 ("CERCLA"), 42

9601 et seq., and the Massachusetts Superfund Act, Mass.

_______

Ann. L. ch. 21E (1993), we affirm.

FACTS
FACTS
_____

The

Lynn

Gas Light

Co.

Massachusetts in the mid-1800's.

began

manufacturing gas

in

The Lynn Electric Light Co., an

electric utility, began operation some thirty years later.

These

companies merged in 1888, by legislative decree, to form the Lynn

Gas and Electric Co.
from

coal ("coal

natural

gas")

gas became

Electric Co. and

of

in large

available.

quantities
After that

the successor to its gas

gas from oil ("oil

supply

That company continued to

manufacture gas
until 1951,

date, Lynn

gas

during

peak

Gas and

business manufactured

gas") in small quantities, to

natural

when

periods

supplement the
of

use.

This

manufacture, called peak shaving, continued until 1972.

New England Electric System ("NEES"), a holding company

owning various utilities

and an appellant

in this case,

about 97% of the Lynn Gas and Electric Company in 1957.

NEES

created a

new

company,

called

the

Lynn

Gas

bought

In 1959,
Co.,

and

structured a transaction between the new company and the Lynn Gas
and

Electric Co.

In this transaction, the Lynn Gas Co. acquired

-2-

the gas portion of

Electric

the Lynn Gas and

Co. kept the electric

Electric Co.

portion and changed

Lynn Gas

and

its name to

Lynn

Electric Co.

division.
Electric

Lynn

In 1962, Lynn

Gas

Co. became

part

of NEES'

gas

Electric merged into the Massachusetts

Company ("Mass.

Electric"), a

subsidiary of

NEES and

also an appellant in this case.

In the

1959 Separation

assume "all the duties

related to such gas
duties

to "indemnify
duty

and liabilities of Lynn Gas

business."

and liabilities,

other contingent

or

Agreement, Lynn Gas

but

did not

Nonetheless, Lynn

and save harmless

to

the

the

separation

occurred,

related parcels of land to

from any

business."

The

Electric was not truly

Mass. Electric conveyed much of the

gas-related real estate to Lynn Gas

after

gas

or

Gas Co. agreed

Lynn Electric Company

with respect

by the Agreement.

out those

mention environmental

separation of the Lynn Gas Co. from Mass.

completed

and Electric

The Agreement spelled

liabilities.

liability

agreed to

in 1962, more than two years

and continued

Lynn Gas until 1970.

conveying

gas-

Mass. Electric

never transferred other parcels.

In
gas

1964 the SEC ordered

NEES to divest

holdings under the Public Utilities

U.S.C.

79a et seq.
_______

The Supreme Court

itself of its

Holding Company Act, 15

affirmed.

SEC
___

v. New
___

England Electric System, 390 U.S. 207 (1968).

_______________________

NEES finalized the

divestiture in 1973

several other

companies
the

by selling

to Boston Gas, a

Purchase

Agreement,

Lynn Gas and

company unaffiliated with

Boston
-3-

Gas

agreed

to

NEES.
assume

gas

In

the

liabilities of Lynn Gas "as then existing."

A similar clause

the later

Liabilities provided

document entitled

Assumption of

that Boston Gas would assume all liabilities "outstanding

date hereof."

in

at the

The Lynn Gas Co. was dissolved in 1980.

Some of the land upon which the Lynn Gas & Electric Co.
and Lynn Gas
from Boston
buyers.

Co. manufactured

Gas and Mass. Electric

When

these buyers

contaminated

by

coal

subsidiaries, and
parallel.1
claim

gas was taken

gas

in 1981 and

discovered
waste,

they

the course of

sued

property

was

NEES,

NEES

and its Massachusetts

the suit,

against NEES because oil gas

domain

sold to outside

that the

Boston Gas under CERCLA

During

by eminent

Boston Gas filed

waste, generated after 1951,

contaminated property it acquired in the Lynn Gas Co. deal.

The case
resulted
jointly
second

in

Gas

partial

in two

phases.

consent decree

The first

holding

the

phase

utilities

and severally liable to plaintiffs for the cleanup.

The

phase concerned liability among the utilities, and is the

subject of
full

proceeded

this appeal.

In the second phase, the court assigned

liability to Mass. Electric,

and

Electric Co.,

plaintiffs' property.

as the successor

for

the cleanup

The

court

of

of the Lynn

coal gas

also ordered

NEES

waste on
and

its

subsidiary

New England Power Service

Co. ("NEPSCO")2 to pay for

____________________

1
Plaintiffs also raised other claims, but their disposition is
not at issue on appeal.
2
NEPSCO
is
a service
administrative, engineering,
companies.

company devoted
to
and
other services

providing
to
NEES

-4-

the

cleanup of

appeal followed.

oil gas

waste

on Boston

Gas' property.

This

-5-

DISCUSSION
DISCUSSION
__________
Under CERCLA3, four parties
costs

of an environmental

operator

of a

operator

of a facility at

person who

cleanup.

contaminated vessel

arranges for the

may be responsible for the

These are:
or facility;

the time it

the
the

owner or

owner and

became contaminated; any

transport or disposal

of hazardous

wastes;

and

any person

who

accepts hazardous

purposes of transport or disposal.

have interpreted
in a

this statute to include

merger situation,
1240,

e.g.,
____

Inc.,
____

922 F.2d

Corp.
_____

v. Asarco, Inc., 909

____________

and

42 U.S.C.

parent corporations

Anspec Co.
__________

1245 (6th

United States v.
_____________

(1st Cir.

1990), cert. denied, 111

_____________

owner,

parent can

Courts

Louisiana-Pacific
_________________

(9th Cir. 1990),

be

Kayser-Roth Corp.,
_________________
S.

9607(a).

v. Johnson Controls,
__________________

F.2d 1260, 1262-63

operator,

for the

successor corporations

Cir. 1991);

when the

wastes

considered an

910 F.2d

Ct. 957

United States v. Kayser-Roth Corp., 724 F.

_____________
__________________

24, 26

(1991), or

an

Supp. 15, 23

____________________

3
Although we primarily discuss CERCLA in the body of the
opinion, we have not overlooked the fact that the Massachusetts
Superfund Act is also a part of this case. CERCLA "is in many
ways analogous to the Massachusetts statute." Acme Laundry Co.
_________________
v. Secretary of Environmental Affairs, 410 Mass. 760, 575 N.E.2d
__________________________________
1086, 1092 (1991); see also Dedham Water Co. v. Cumberland Farms
________ ________________
________________
Dairy, Inc., 889 F.2d 1146, 1156 (1st Cir. 1989) (Massachusetts
____________
statute "is patterned after the federal CERCLA statute").
As
such, the Massachusetts courts construe it in line with the
Federal decisions "absent compelling reasons to the contrary or
significant differences in content."
Rollins Environmental
______________________
Services, Inc. v. Superior Court, 368 Mass. 174, 330 N.E.2d 814,
_______________
______________
818 (1975) (discussing rules of procedure).
Of course, the
Massachusetts statute differs from CERCLA in some respects. See
___
Griffith v. New England Telephone & Telegraph Co., 414 Mass. 824,
________
_____________________________________
610 N.E.2d 944 (1993) (defining owner and operator differently

for the purposes of strict liability).

We will not discuss
Massachusetts law unless it becomes relevant to the case.
-6-

(D. R.I. 1989).

The
"essential

list

purpose"

caused by the

created."

of making

for

parties

reflects

"those responsible

chemical poisons bear

remedying

the

harmful

CERCLA's

for problems
the costs

conditions

and

they

Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805

________________
____________________________

1074,

parties

responsible

disposal of

responsibility

F.2d

of

1081

(1st Cir.

1986).4

CERCLA

thus makes

such

liable to the government or to other private parties for

the costs of a cleanup.

If

9607(a)

Id.
___
imposes liability on

a party, then

that

party cannot escape liability by means of a contract with another

party.

42 U.S.C.

agreement
owner

or conveyance shall be

or operator of

who may be

provides

that "[n]o

any vessel or facility

other person

effective to transfer from the

liable for a release or threat

section, to any
section."

9607(e)(1)

the liability

or from any person

of release under this

imposed under

That is, the government or a private

this

party can pursue

any responsible party it desires.

Two

or more

responsibility among

parties,

however, can

themselves by

contract.

allocate ultimate
The

same statute

states that "[n]othing in this subsection shall bar any agreement

to

insure, hold harmless, or indemnify a party to such agreement

____________________
4

In Dedham Water, we recognized one other fundamental policy of

____________
CERCLA:
"Congress intended that the federal government be
immediately given the tools necessary for a prompt and effective
response to the problems of national magnitude resulting from
hazardous waste disposal." 805 F.2d at 1081. That policy is not
implicated in this appeal.
-7-

for any liability under this section."

been

described as

Jones-Hamilton Co.
__________________

"tangential"

to the

Id.
___

Such agreements have

enforcement of

CERCLA.

v. Beazer Materials and Services, Inc., 973

_____________________________________

F.2d 688, 692 (9th Cir. 1992).

Appellants
imposing

contend that

the full cost of cleanup

as companies separate from the

Lynn

Gas Co.,

they are

not

the

district court

erred in

in this case on them because,

Lynn Gas and Electric Co.

responsible parties

or the

under CERCLA.

Rather, the district court

cleanup

on appellee

Boston

conclusion in two steps.

is the

should have imposed the full

Gas.

Co.,

appellants

and

assumed

gas portion of the

its

coal

argue that Boston Gas,

Gas Co., assumed its

at

this

First, they argue that the Lynn Gas Co.

direct successor to the

Electric

Appellants arrive

cost of

gas

Lynn Gas and

liability.

as the successor

coal and oil gas liabilities.

Next,

of the Lynn

We disagree

with appellant on all points.

I.
I.
We first
waste
with

discuss who is

created before
the

Lynn

conclusion,

any of the

Gas and

we must

responsible for the

present parties

Electric

find

that the

Co.

To accept

coal gas

were involved

appellant's

liability shifted

from the

independent Lynn Gas and Electric Co., to the NEES-owned Lynn Gas

and Electric Co. (renamed the Lynn Electric Co.), to the Lynn Gas
Co., and finally to Boston Gas.

We cannot do so, as the district

court

chain of liability

correctly found that the

for coal gas

waste broke at the link between NEES and the Lynn Gas Co.
-8-

When

NEES

bought

Lynn

Gas

and

Electric

Co.,

it

maintained

that company

as

a separate

entity with

continuing

liability under CERCLA for the waste it created before 1951.

42

U.S.C.

9607(a)(1) (owner

and

facility is a responsible party).

of

Lynn Gas and Electric Co.

operator

of

See
___

vessel

or

When NEES sold the gas portion

to the newly-created Lynn Gas Co.,

the environmental liabilities

of Lynn Gas

and Electric did

not

disappear.
Consistent with CERCLA's policy
that sullied
see
___

of holding the company

the property responsible for the

Dedham Water, supra,

_____________ _____

successor, if

those

any, of Lynn

costs of cleanup,

liabilities

travelled to

Gas and Electric.

See 42
___

the

U.S.C.

9607(a)(2) (owner or operator of facility at time of discharge is

a responsible party); Smith Land & Improvement Corp. v.
_______________________________
Corp., 851
_____

F.2d 86, 91

(3d Cir. 1988),

Celotex
_______

cert. denied, 488

____________

U.S.

1029 (1989).
Initially, Lynn Gas and
Co. were
because

the same entities.

of a

simple

Electric Co. kept

above, the Lynn
Electric,

That fact is

name change,

Lynn Gas

but

Mass.

between 1962

Electric

the

Lynn

As

noted

merged into

Mass.

and Electric's property.

Electric Co.,

points

reflected not merely

also because

which by then

conveyed the gas-related property

at various
merger,

Electric Co. and Lynn Electric

became

and

1970.

the

heir

liabilities of the Lynn Electric Co.

to the Lynn Gas Co.

By
to

virtue of
the

assets

the

and

See Smith Land, 851 F.2d at

___ __________

91

("In case

of merger

. . . where

one corporation

ceases to

-9-

exist

and

the other

corporation

latter corporation is

continues

in existence,

liable for the debts,

the

contracts and torts

of the former").
The
Electric

question,

Co.

responsibility

then,

transferred
for

to

environmental

relevant document is the

entered

also

apportions

bears

CERCLA

intent of

whether

the

Lynn

Lynn

Gas

Co.

the

hazards

on

the

issue.

As

We

Gas

The

"Agreement")

1959; a later

neither

we must

do this by reference

and

ultimate

contract.

on September 9,

liabilities explicitly,

the parties.

by

Separation Agreement (the

into between the parties

indenture

is

document

discern the

to other cases

dealing with nonexplicit assumptions of liability in order to set

a standard by which to measure that intent.
We note
uncertain whether

at

the outset

the district

court

was

to use a state rule of contract interpretation

or a uniform federal rule.

validity of

that

Indeed, while federal law governs the

liability agreements

in the CERCLA

context, Mardan
______

Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454, 1457 (9th Cir. 1986),
_____
__________________

courts have wrestled with what the content of that law should be.
The

majority

of courts

have turned

to

state contract

law to

provide the substantive rule, so long as it is not hostile to the

federal interests animating

CERCLA.

E.g., id.; United States v.

____ ___ _____________

Hardage, 985 F.2d 1427, 1433 (10th Cir. 1993); Jones-Hamilton Co.
_______
__________________
v. Beazer Materials & Services, Inc., 973 F.2d 688,
__________________________________
Cir.

1992);

Olin Corp.
__________

692-93 (9th

v. Consolidated Aluminum Corp,

___________________________

807 F.

Supp. 1133, 1141 (S.D.N.Y. 1992); Rodenbeck v. Marathon Petroleum

_________
__________________
-10-

Co., 742 F. Supp. 1448, 1456-57 (N.D. Ind. 1990).

___
Corp.
_____

v. Allied-Signal, Inc., 761

____________________

F. Supp.

But see Mobay

_______ _____

345, 352

(D. N.J.

1991); Wiegmann & Rose Int'l Corp. v. NL Industries, 735 F. Supp.

___________________________
_____________
957, 961-62 (N.D. Cal. 1990).

This circuit recently reached the same conclusion in an

analogous situation.

American

Policyholders

Insurance Co.

v.

______________________________________
Nyacol Products, Inc.,
______________________
Feb. 24,

1993)

No. 92-1949,

(rejecting

use

of

decision to govern interpretation

of

coverage

vis-a-vis CERCLA

Controls Co. v.
____________
Me. 1992)

slip op.
"uniform

at 16

(1st Cir.

federal

rule

of

of an insurance policy's scope

liability"); see also Robertshaw

_________ __________

Watts Regulator Co., 807

___________________

(applying state rather

F. Supp. 144, 153

than federal law

(D.

to interpret

whether settlement agreement shifted CERCLA liability).

We

thus

interpreting the

look to

Massachusetts

Agreement with

respect to

Two principles strike us as particularly

enacted

after the

execution of

considered to become part of

clearly

establish

that

subsequent enactments
Inc.
____

an

for guidance

in

CERCLA liabilities.

relevant.

First, "laws

agreement are

not commonly

the agreement unless its provisions

parties

intended

into their agreement."

to

incorporate

Arthur D. Little,
_________________

v. Commissioner of Health and Hospitals, 395 Mass. 535, 481

____________________________________

N.E.2d

441, 452

Mass. 633, 369

v.

the

law

n.13 (1985)

(quoting Feakes
______

v.

Bozycako, 373
________

N.E.2d 978, 980 (1977)); see also Mayor of Salem

_________ ______________

Warner-Amex Cable Communications, Inc.,

_______________________________________

N.E.2d 208, 210 (1984).

Second, "a general

392 Mass.

663, 467

release . . . is to

be given effect, even if the parties did not have in mind all the
-11-

wrongs which existed at the time of the release," so

language

of

that release

contingent liability.

is

broad

enough to

long as the

encompass

Naukeag Inn, Inc. v. Rideout,

__________________
_______

such

351 Mass.

353, 220 N.E.2d 916, 918 (1966).

These
applicable to

principles

the present case.

the Agreement must contain

say

that the

parties

recognize the

of all

to

one

rule

CERCLA liability,

language broad enough to allow

or all

possibility of

Gas and Electric

lead

To transfer

intended to

environmental liability,

release.

essentially

transfer either

liability.

The

Unfortunately for

the form

appellants,

the

contingent,

Agreement must

future liability or

liabilities in

us to

dispense Lynn
of a

general

language of

the

provides that "Lynn

Gas

Agreement is not drafted in such broad terms.

While initially the Agreement

will assume and take over all the duties and liabilities" related

to the gas business, the Agreement later lists those obligations.

The series

contains obligations pertaining only

business,

such

contracts

for the

provide
gas

as obligations
purchase

to

and

serve
sale

to the existing

gas customers,

of new

facilities,

honor

and

reserves to account for bad debt and depreciation on the

plant.

No reference

is made

to any future

or contingent

liabilities.

An indenture entered into by the parties several months

later

contains

similar

list.

catch-all

provision

on

liability refers to the liabilities "indicated in summary form by

the

balance sheet" attached to the document, revealing an intent

-12-

that the only liabilities assumed were those known, existing, and
somehow accounted

for at the time of execution.

It is true that

the indenture states that the liabilities specifically assumed by

Lynn Gas are "without
to

say that

quite

another

the list
to

implied limitation."
of liabilities

assume

that the

But it

is not

is one thing

all-inclusive and

obligations

not

specified

include then non-existent environmental liabilities to be created

under CERCLA and unforeseeable when the agreement was made.
We must

conclude that

neither document

evidences the

intent to transfer environmental liability in the requisite broad

language.

The responsible

party in this case, as

Electric

and Boston Gas, is

Mass. Electric --

the Lynn Gas and Electric Co.

See ante at 7-8.

___ ____

between Mass.

the successor to

II.
II.

We now discuss who is responsible for the oil gas waste

contaminating
appellants,

the property

we must determine

the environmental
Lynn

Gas Co.

between

1951 and

determine

whether

Gas agreed

on the issue

to

find for

agreed to assume

Happily,

analysis on this

Boston

To

oil gas waste

1970.

our analysis

most of our

Boston Gas.

that Boston Gas

liabilities of the

principles that steered

waste steer

owned by

produced by
the

of coal

issue also.
assume

contract

gas

We must

environmental

liabilities in its agreement to buy Lynn Gas Co.5

____________________

5 Technically, NEES sold the Lynn Gas Co. first to Eastern Gas
and Fuel Associates, the parent company of Boston Gas.
Eastern
then sold Lynn Gas to Boston Gas on the same day.
Because this
intermediate transaction does not alter any liability in this
case by statute, contract, or any other norm, we discuss Eastern
-13-

The contract
Gas,

governing the sale of Lynn

Gas to Boston

the Closing Agreement, provides an easier case than did the

Agreement

discussed

above.

The Closing

limited the liabilities assumed

existing."

A similar

clause in

Agreement

by Boston Gas to those

the Assumption

expressly

"as then

of Liabilities

document

provided

liabilities

that

Boston

"outstanding at

fairly

obviously

agreed

to

environmental

the

forecloses

assume

any

Gas

would

assume

date hereof."

the possibility

Such
that

contingent liabilities,

liabilities

at

issue

only

here.

those

language

Boston

Gas

less

the

in

the

much
Nothing

remaining documents changes this conclusion.

Apart from

the language of the

contract, the district

court found several other facts convincing in finding that Boston

Gas lacked the intent to assume the liability here at issue.
example,

the

negotiations.

parties did
Indeed,

not discuss

it does

oil

not appear that

informed about the oil gas waste at all.

no

communication

liabilities not
bolster

between

the

appearing on

our confidence

gas waste

Boston Gas

about

any

balance sheet.

in concluding

in their

was

Furthermore, there was

parties
the

For

that Boston

contingent
These

facts

Gas did

not

accept those liabilities.

Although

we are

convinced that

Boston Gas

cannot be

held liable for the oil gas waste, we must determine whether
district court
and

NEPSCO.

was correct to
In other

impose those liabilities

words, are

____________________
no further.
-14-

NEES and

the

on NEES

NEPSCO responsible

parties?
In
parent

Kayser-Roth, 910
___________

companies can

operators

of

be

F.2d

at 26,

we determined

for

CERCLA liability

held liable

contaminated

facility

9607(a)(2).6

Such liability is

to pierce the

corporate veil.

under

42

direct; it does
Id. at 27
___

that

as

U.S.C.

not require us

("Kayser is being held

liable for its activities as an operator, not the activities of a

___
subsidiary").
of

In contrast, piercing the corporate veil is a form

owner liability.

district

court

Kayser Roth,
____________

determined that

operator and an owner.

724 F.

Kayser

Id. at 22-24.
___

was liable

open the question of owner

our

operator

on

satisfactorily.

23.
both

When the case came

our court, we left

finding

Supp. at

liability

The

as an

before

liability because

resolved

the

issues

910 F.2d at 28 n.11.

We envisioned in Kayser that holding a parent liable as

______
an operator would
operator

be somewhat unusual.

requires more

than merely

Id. at
___

27.

complete ownership

concomitant general

authority or

with ownership.

a minimum it requires active

At

the activities of the

an

investigation into

subsidiary."

"To be

ability to control

Id.
___

the relationship

This

an

and the

that comes

involvement in

standard requires

between the

parent and

subsidiary,

in order to reveal

involvement.

As

the

the requisite level of corporate

question is

fact-laden,

district court's findings only for clear error.

we

review the

Id.
___

____________________

6
That section holds liable "any person who at the time of
disposal of any hazardous substance owned or operated any
facility at which such hazardous substances were disposed of."
-15-

The relationship
case amply demonstrates that
NEPSCO

among the relevant companies

operator liability burdens NEES and

with the responsibility to

Boston Gas'

property.

the district

court

in this

We recite

purge the oil

only a few of

found dispositive,

and

gas waste from

the facts which

which we

too

find

among

the

important.
NEES
officers and

continually

maintained

directors of Lynn Gas.

presence

The president of

Lynn Gas

was also the president of NEES' gas division; he was appointed by

the

chairman of

NEES and reported

directly to

NEES selected the directors of Lynn Gas,

NEES approved Lynn Gas' budget.
expenditures over $5,000.

NEES officials.

and a senior officer of

Lynn Gas needed approval for all

NEPSCO provided extensive services to

Lynn Gas, such as controlling the checking

purchase

of the oil used

Gas property.

account, handling the

in peak shaving,

NEPSCO employees were

and maintaining Lynn

also well represented among

Lynn's officers and directors.

Given
that

the almost overwhelming

the district court clearly

NEPSCO

were

operators of

NEPSCO

are responsible

erred in finding

the Lynn

parties

evidence, we cannot say

Gas

for the

that NEES and

facilities.
oil gas

NEES and

waste created

while they were linked to the Lynn Gas Co.

III.
III.

We must resolve several residual matters, but they need

not detain us long.
Appellants

contend

that

under

the

principles

of

-16-

successor liability, Boston Gas must be liable for the cleanup of

the waste sites.

Appellants' argument has initial appeal in that

Boston Gas, and Lynn Gas before it, took over the gas business of
other companies.

This argument, however,

successor corporation

doctrine.

In

does not reflect

Dayton v.
______

the

Peck, Stow and

_______________

Wilcox Co., 739 F.2d 690, 692 (1st Cir. 1984), we identified four
__________
situations in which successor liability is appropriate:
buyer

agrees to

assume liability;

facto merger occurs; when

the

seller;

and

when

a consolidation

the buyer is merely a

when the

transaction

when the

is

or de

continuation of

fraud to

escape

liability.
We have
Gas

already determined

before it, did not

that Boston Gas,

agree to assume environmental liability.

Furthermore, there is no allegation of fraud in

the merger

this case.

Boston

no formal

merger

Gas -- assumed the

Co., so appellants
Central

to a

corporation

Only

and continuation situations remain to bind Boston Gas

as successor to the gas liabilities in this case.

course,

and Lynn

de

by which

Lynn Gas

facto merger

claim, however,

Co. --

liabilities of Lynn

would have to prove a de

or

is

There was, of

Gas and Electric

facto merger claim.

continuation of
finding

and later

that

the

seller

shareholders,

officers and directors continued into the buyer corporation.

at 693.
The

Boston Gas, however, did not share any such

successor corporation

liability on

doctrine

their corporate structures.

-17-

continuity.

actually supports

appellants, as the requisite

Id.
___

imposing

continuity existed in

Appellants also argue that

requires

the

assumption

liabilities at issue here.

purchasing

by

Mass. Gen. L. ch. 164

Boston Gas

of

the

98

environmental

That brief statute states that "[t]he

or consolidated company shall . . . be subject to all

the duties, liabilities and

restrictions, of the company selling

or merged

far as

as aforesaid, so

purchasing or
that

they are

consolidated company."

the statute

simply serves

public

with respect to the

rights

of

applicable to

The district

to allocate

contracting parties

to

allocate

court found

the rights

utilities, and does

the

of the

not curtail the

ultimate liability

between themselves.

We find no error in the district court's interpretation

of

98.

Co. and
98.
by
The

The documents transferring the gas business to Lynn Gas

later selling Lynn Gas

Co. to Boston Gas

both refer to

The documents proceed to list the present liabilities owed

the companies to customers

parties thus

understood

existing liabilities only.

and other members

the statute

of the public.

to allocate

certain,

The liabilities at issue in this case

are not among them.

Finally,
Gas

to share

inequitable
however.
befouled

in
in

appellants argue that

the cost

imposing

The policy
the

of
those

the cleanup.
costs

underlying CERCLA

environment

equity requires Boston

responsible

We find

solely
--

on

to make

for its

nothing

appellants,

those who

cleanup

--

is

certainly

equitable.

See
___

Dedham Water, 805

____________

F.2d at

1081.

We

have found that appellants were the proper responsible parties in

-18-

this case, and it is equitable for them to clean up the property.

Affirmed.
________

-19-